Nalini Vs State of Tamil Nadu

NALINI VS.
THE STATE OF TAMIL NADU
&
NALINI VS. THE SUPERITENDENT OF POLICE
Here is a little reference to the famous Rajiv Gandhi assassination case for Conspiracy
and confession of conspirators with respect to Section 10 and the law of agency.
The essence of conspiracy is, therefore, that there should be an agreement between
persons to do one or other of the acts described in the section. The said agreement may be
proved by direct evidence or may be inferred from acts and conduct of the parties. There
is no difference between the mode of proof of the offence of conspiracy and that of any
other offence, it can be established by direct evidence or by circumstantial evidence. But
s.10 of the Evidence Act introduces the doctrine of agency and if the conditions laid
down therein are satisfied, the acts done by one are admissible against the co-
conspirators. The said section reads:
"Where there is reasonable ground to believe that two or more persons have conspired
together to commit an offence or an actionable wrong, anything said, done or written by
any one of such persons in reference to their common intention, after the time when such
intention was first entertained by any one of them, is a relevant fact as against each of the
persons believed to be so conspiring as well for the purpose of proving the existence of
the conspiracy as for the purpose of showing that any such person was a party to it."
This section, as the opening words indicate, will come into play only when the Court is
satisfied that there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, that is to say, there
should be a prima facie evidence that a person was a party to the conspiracy before his
acts can be used against his co-conspirators. Once such a reasonable ground exists,
anything said, done or written by one of the conspirators in reference to the common
intention, after the said intention was entertained, is relevant against the others, not only
for the purpose of proving the existence of the conspiracy but also for proving that the
other person was a party to it. The evidentiary value of the said acts is limited by two
circumstances, namely, that the acts shall be in reference to their common intention and
in respect of a period after such intention was entertained by any one of them. The
expression "in reference to their common intention" is very comprehensive and it appears
to have been designedly used to give it a wider scope than the words "in furtherance of"
in the English law; with the result, anything said, done or written by a co-conspirator,
after the conspiracy was formed, will be evidence against the other before he entered the
field of conspiracy or after he left it. Another important limitation implicit in the language
is indicated by the expressed scope of its relevancy. Anything so said, done or written is a
relevant fact only "as against each of the persons believed to be so conspiring as well for
the purpose of proving the existence of the conspiracy as for the purpose of showing that
any such person was a party to it". It can only be used for the purpose of proving the
existence of the conspiracy or that the other person was a party to it. It cannot be used in
favour of the other party or for the purpose of showing that such a person was not a party
to the conspiracy. In short, the section can be analysed as follows:
(1) There shall be a prima facie evidence affording a reasonable ground for a Court to
believe that two or more persons are members of a conspiracy;
(2) if the said condition is fulfilled, anything said, done or written by any one of them in
reference to their common intention will be evidence against the other;
(3) anything said, done or written by him should have been said, done or written by him
after the intention was formed by any one of them;
(4) it would also be relevant for the said purpose against another who entered the
conspiracy whether it was said, done or written before he entered the conspiracy or after
he left it;
(5) it can only be used against a co-conspirator and not in his favour."
Then in State of Gujarat vs. Mohammed Atik & Ors. [(1998) 4 SCC 351] this Court said
as under:
"It is well-nigh settled that Section 10 of the Evidence Act is founded on the principle of
law of agency by rendering the statement or act of one conspirator binding on the other if
it was said during subsistence of the common intention as between the conspirators. If so,
once the common intention ceased to exist any statement made by a former conspirator
thereafter cannot be regarded as one made "in reference to their common intention". In
other words, a post-arrest statement made to a police officer, whether it is a confession or
otherwise, touching his involvement in the conspiracy, would not fall within the ambit
of Section 10 of the Evidence Act."

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NALINI VS.

THE STATE OF TAMIL NADU

NALINI VS. THE SUPERITENDENT OF POLICE

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