Criminal conspiracy and attempt
Bharatiya Nyaya Sanhita · Unit II · Topic 8 of 29 · 6 min read
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Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Criminal conspiracy: section 61(1) (old ss.120A and 120B IPC)
When two or more persons agree to do, or cause to be done, (a) an illegal act, or (b) an act which is not illegal by illegal means, the agreement is a criminal conspiracy. The proviso: no agreement except an agreement to commit an offence amounts to a criminal conspiracy unless some act besides the agreement is done by one or more parties in pursuance of it. The Explanation adds that it is immaterial whether the illegal act is the ultimate object of the agreement or merely incidental to it.
The elements are therefore:
- Two or more persons. One cannot conspire alone. If all but one alleged conspirator are acquitted, the last cannot be convicted of conspiracy with them, unless others unknown or untried are shown to be parties.
- An agreement. A meeting of minds. Mere knowledge, or even discussion, is not enough.
- An unlawful object or unlawful means. “Illegal” under s.2(15) covers offences, anything prohibited by law and anything furnishing ground for a civil action.
- An overt act, only where the object is not an offence.
2. Punishment: section 61(2)
- Conspiracy to commit an offence punishable with death, life imprisonment or rigorous imprisonment of two years or more: punished as if the conspirator had abetted the offence, where no express provision exists (s.61(2)(a)).
- Any other criminal conspiracy: up to six months, or fine, or both (s.61(2)(b)).
Specific conspiracy offences exist elsewhere, such as conspiracy to wage war (s.148).
3. How conspiracy is proved: Kehar Singh
Conspiracies are hatched in secret and direct evidence is rare. In Kehar Singh v. State (Delhi Administration), 1988 INSC 200, (1988) 3 SCC 609, arising from the assassination of Prime Minister Indira Gandhi, the Court held that:
- the gist of the offence is the agreement; it is complete when the agreement is made, and continues as long as the parties persist in it;
- it may be proved by circumstantial evidence and by inference from the conduct of the parties, but the circumstances must point to the agreement and not merely to suspicion;
- each conspirator need not know every detail or every other member, nor take part in every act;
- what one conspirator says or does in reference to the common design is relevant against all (now s.8 of the Bharatiya Sakshya Adhiniyam, old s.10 Evidence Act), once there is reasonable ground to believe a conspiracy existed.
The Court upheld the conviction and death sentence of Kehar Singh on the circumstances showing his association with and influence on the assassin, and acquitted Balbir Singh, against whom the evidence did not go beyond suspicion.
4. Conspiracy and abetment by conspiracy
- Under s.61, the agreement to commit an offence is itself punishable. Under s.45(b), abetment by conspiracy needs an act or illegal omission in pursuance of the agreement.
- Section 61 needs at least two persons; abetment can be by one person.
- Section 61 covers agreements to do non-criminal illegal acts (with an overt act); abetment relates to the doing of a “thing” which must be an offence for it to be punishable.
5. Attempt: section 62 (old s.511 IPC)
Whoever attempts to commit an offence punishable with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, is punished, where no express provision exists, with up to one-half of the imprisonment for life or one-half of the longest term, or fine, or both. Many offences have their own attempt provisions (attempt to murder, s.109; attempt to commit culpable homicide, s.110), and some definitions include attempt (waging war, s.147).
The illustrations make impossibility no defence: A breaks open a box to steal jewels and finds it empty; A thrusts his hand into Z's empty pocket. Each is guilty of attempt.
6. Preparation and attempt: the tests
- Proximity rule. The act must be sufficiently proximate to the intended offence, not merely remote preparation.
- Equivocality rule. The act must, on its face, unequivocally show the intention to commit the offence.
- Locus poenitentiae. As long as the accused can still withdraw, he is in preparation; once he has passed the point of turning back, he is in attempt.
- Last act test, rejected in India: an attempt need not be the penultimate act.
In Abhayanand Mishra v. State of Bihar, 1961 INSC 178, AIR 1961 SC 1698, the appellant applied to Patna University for permission to sit the M.A. English examination as a private candidate, falsely representing that he was a graduate and a teacher, and supplied forged certificates. The University issued an admission card before the fraud was discovered. The Court held him guilty of attempt to cheat. Preparation was over when he sent the application; an attempt begins when the accused, having prepared, commences to do something with the intention of committing the offence, and the act need not be the last act before the offence would be complete.
In State of Maharashtra v. Mohd. Yakub, 1980 INSC 40, (1980) 3 SCC 57, the accused were intercepted at night near the sea coast with silver ingots in their vehicles, unloading them close to a creek while the sound of a sea-craft engine was heard. They were held guilty of attempting to export silver illegally. Sarkaria J. described the four stages and explained that an act is an attempt when the accused, intending the offence and having made preparations, does an act towards its commission which shows that he has gone beyond preparation, even though it is not the last act.
7. Problem
A buys poison intending to kill B, and mixes it into a sweet which he wraps and keeps in his drawer. Next day he hands the sweet to B's servant to deliver. The servant becomes suspicious and informs the police. Liability of A?
Issue. Whether A's acts amount to preparation or to an attempt to murder.
Law. Section 109 (attempt to murder) and s.62; the tests in Abhayanand Mishra and Mohd. Yakub.
Application. Buying poison and preparing the sweet are preparation: A could still change his mind. Handing the sweet to the servant for delivery is an act towards the commission of murder which A has put out of his control, and the intention is unequivocal.
Conclusion. A is guilty of attempt to murder under s.109 BNS (old s.307 IPC), though B was never harmed.
How this is examined
“Criminal conspiracy” appears regularly as an essay or short note: definition, elements, punishment, proof, and difference from abetment. “Distinguish between preparation and attempt” is a standing question; give the four stages, the tests, and the two Supreme Court cases. Problems on attempt with an empty pocket or a stopped poisoning are common.
Now try the real questions: Bharatiya Nyaya Sanhita past question papers.