Introduction

Criminal conspiracy, arguably the most vital criminal law doctrine, pertains to
the agreement by at least two people with regard to any act or omission. This
concept is codified under Section 120A of the Indian Penal Code, 1860 (IPC),
and retained under Section 61 of the Bharatiya Nyaya Sanhita (BNS), 2023.
Criminal conspiracy is the only crime, where mere agreement to commit an
offence is sufficient, even when no illegal act has taken place. Chapter V-A was
introduced into the IPC in 1913, dealing specially with the offense of criminal
conspiracy, which reflects the purpose of the law of prevention of crimes at the
incipient stage. The charge of criminal conspiracy normally is coupled with
another substantive offense and thus further extends its wide scope of
application. In this assignment, the substantive offense of criminal conspiracy
will be discussed in great detail along with the relevant case laws for better
understanding, implications, and judicial interpretation.

Legal Framework under IPC and

BNS
According to section 120A of the Indian Penal Code, conspiracy can be defined
as an agreement between two or more persons to commit an act which is illegal
or to do something which is legal in a wrongful manner. This indeed forms the
offense itself and not because the conspirators succeeded in doing what formed
the object of the conspiracy.

Section 61 of the BNS, 2023, states the same theme with slight word changes
while keeping the main ideas of criminal conspiracy defined under the IPC:
When two or more persons agree with the common object to do, or cause to be
done—(a) an illegal act; or (b) a legal act by illegal means, such an agreement is
designated a criminal conspiracy.1

1
P. S. Atchuthen Pillai, Criminal Law (12th edn, Lexis Nexis 2019) 181; BNS 2023,s 61(1)
Essentials of Criminal Conspiracy
Agreement Between Two or More People
The most important part of a conspiracy is that two or more people must come
together and agree to commit a crime. This agreement doesn't have to be in
writing or even spoken out loud—it can be understood from their actions or
behavior. Simply planning or talking about the crime is enough.
For example, if two friends decide to rob a bank but don't actually do it, they
can still be charged with conspiracy because they agreed to the plan.2

2. Illegal Act or Legal Act by Illegal Means

The people involved in the conspiracy must agree to either:
• Do something that is illegal (like theft or murder), or
• Do something that is legal but by using illegal methods (for example,
running a business but through fraud).
So, even if the final goal is legal, if they plan to achieve it in a dishonest or
illegal way, it counts as conspiracy.3

3. No Requirement of Overt Act (in Serious Offenses)

In the case of a conspiracy to commit an offence, the mere agreement is
sufficient to impose liability without the requirement that some overt act in
furtherance of the conspiracy should have been committed. However, in the
case of a conspiracy to do a legal act by illegal means, there ought to be some
overt act which should have been committed by one or more parties to the
agreement, apart from the agreement itself.4

2
P. S. Atchuthen Pillai, Criminal Law (12th edn, Lexis Nexis 2019) 182
3
P. S. Atchuthen Pillai (n 2) 183
4
P. S. Atchuthen Pillai (n 2) 183
Punishment for Criminal
Conspiracy
1. Punishable with death,
2. Imprisonment for life or
3. Rigorous imprisonment for a term of two years or upwards
4. and where no express punishment is provided under the Code for such
conspiracy, every person who is a party to such a criminal conspiracy
shall be punished in the same manner as if he had abetted such offence.
5. Criminal conspiracy to commit offences other than those covered in the
first category: Whoever is a party to such a criminal conspiracy shall be
punished with imprisonment of either description for a term not
exceeding six months or with fine or with both.5

Section 120B of the Indian Penal Code (IPC) classifies criminal conspiracies
into two categories for punishment purposes:

1. **Serious Offences:** If the conspiracy is to commit a serious offence

(punishable with two or more years of imprisonment), the conspirator is
punished as if they had abetted the offence.

2. **Other Offences:** For conspiracies involving less serious offences

(including those punishable by fine only) or illegal acts that are not offences,
the punishment is up to six months imprisonment, with or without a fine.

5
P. S. Atchuthen Pillai, Criminal Law (12th edn, Lexis Nexis 2019) 188; BNS 2023 s 61(2)
 However, Section 120B must be read with Section 196 of the Criminal
Procedure Code (CrPC). It requires prior approval from the Central or State
Government before a court can take action on conspiracies related to:

- Offences against the state (Chapter VI IPC)

- Promoting communal disharmony (Section 153-A)
- Insulting religion (Section 295-A)
- Public mischief (Section 505(1))

Approval from the government or District Magistrate is also required for

conspiracies:

- Against national integration (Section 153-B)

- Promoting enmity between groups (Sections 505(2) and (3))

Consent is needed for offences with imprisonment less than two years but
not for those covered under Section 195 CrPC. Before granting approval, a
preliminary police investigation is mandated. If the conspiracy involves
foreign locations or high seas, only Central Government sanction is required.
However, a conspiracy hatched in India to commit an unlawful act outside
India doesn't need Central Government approval.6

Proof of Conspiracy
Offence of criminal conspiracy can be proved by either direct or circumstantial
evidence. A conspiracy is usually hatched in a secret and private setting which is
why it is almost impossible to produce any affirmative evidence about the date
of the formation of the criminal conspiracy, the persons involved in it or the

6
P. S. Atchuthen Pillai, Criminal Law (12th edn, Lexis Nexis 2019) 188
object of such conspiracy or how such object is to be carried out. All this is
more or less a matter of inference

Brief Comparison between s 45B and

61
Aspect Section 45B (Abetment) Section 61 (Criminal Conspiracy)

Instigating, engaging in Agreement between two or more

conspiracy, or aiding another persons to commit an illegal act or a
Definition
person to commit an offense. legal act by illegal means. No overt
Requires an overt act. act needed in serious crimes.

Requires an overt act in Mere agreement is sufficient

Nature of
furtherance of the conspiracy to for serious offenses; no need
Agreement
establish the offense. for an overt act.

Punishes individuals for their Punishes individuals based on the

Scope of
role in instigating, conspiring, agreement to commit a crime,
Liability
or aiding a crime. even if no act is carried out.

Abetment is incomplete The offense of conspiracy is

Completion without an act or omission complete once the agreement is
of Offense following the conspiracy or made, without requiring further
instigation. action for serious crimes.

Covers all crimes, requiring

Types of Covers serious crimes like
some form of active
Crimes murder, robbery, etc., where the
participation or aid in their
Covered agreement alone is punishable.
commission.

The abettor is punished with the All conspirators are punished as

same penalty as the principal if they had committed the
Punishment
offender if the crime is offense themselves for serious
committed. crimes.
Key Case Laws
Kehar Singh vs. State (1988):
Citation: AIR 1988 SC 1883
Court: Supreme Court of India
Facts:
• The case involves the assassination of Prime Minister Indira Gandhi on
October 31, 1984, by her bodyguards, Satwant Singh and Beant Singh,
both of whom were Sikhs.
• Kehar Singh was alleged to be part of the conspiracy leading to the
assassination. He was charged under Section 120B (criminal
conspiracy) of the Indian Penal Code (IPC) and Section 302 (murder).
• Kehar Singh was not present at the scene of the assassination but was
accused of instigating and motivating the assassins due to his strong
religious beliefs after Operation Blue Star, which involved the Indian
Army’s attack on the Golden Temple in June 1984.
Trial Court:
• The trial court convicted Kehar Singh for conspiracy to assassinate the
Prime Minister and sentenced him to death. His appeal was later rejected
by the Delhi High Court.
Supreme Court:
• Kehar Singh appealed to the Supreme Court against the decision of the
lower courts, arguing that there was no direct evidence linking him to the
conspiracy and that the conviction was based on circumstantial evidence
and hearsay.
• The Supreme Court, in a 3-2 majority decision, upheld the conviction and
death sentence of Kehar Singh, relying on circumstantial evidence,
holding that the chain of events and circumstances pointed to his
involvement in the conspiracy.
Legal Issues:
1. Admissibility of Circumstantial Evidence: The case largely rested on
circumstantial evidence rather than direct evidence. The Court had to
decide whether the circumstantial evidence presented was enough to
establish guilt beyond a reasonable doubt.
2. Criminal Conspiracy (Section 120B IPC): The key legal issue was
whether Kehar Singh had entered into a conspiracy to assassinate Indira
Gandhi, even though he was not directly involved in the killing.
3. Interpretation of Criminal Liability: The Court examined whether
indirect involvement, instigation, or motivation in a criminal act could
make an individual culpable under the law.
Court’s Ruling and Analysis:
• Circumstantial Evidence: The Supreme Court emphasized that
circumstantial evidence, if strong and conclusive enough to form a
complete chain, can be sufficient to convict someone in a criminal
conspiracy. The Court found that the circumstantial evidence against
Kehar Singh — including his connection with the assassins and his role in
influencing their actions — was sufficient to establish his participation in
the conspiracy.
• Criminal Conspiracy (Section 120B IPC): The Court noted that for a
conspiracy charge, the presence of an agreement to commit an unlawful
act is sufficient, even if the accused does not directly participate in the
execution of the act. Kehar Singh’s involvement in instigating the
assassins was seen as part of the conspiracy, making him equally liable
for the murder.
• Mens Rea (Guilty Mind): The Court pointed out that while Kehar Singh
did not physically participate in the assassination, his role in motivating
the assassins indicated a clear guilty mind (mens rea), which is central to
a conspiracy charge.
• Death Penalty: The Court upheld the death sentence on the grounds that
the assassination of a sitting Prime Minister was an attack on the
sovereignty of India, justifying the extreme punishment.7

7
Kehar Singh vs. State (1988) AIR 1883.
 State of Maharashtra vs. Som Nath Thapa (1996)
Citation: (1996) 4 SCC 659
Court: Supreme Court of India
Summary of the Case:
Facts:
• The case involved a criminal conspiracy under Section 120B IPC where
army officers, including Som Nath Thapa, were accused of smuggling
arms into India to carry out terrorist activities.
• The prosecution relied on circumstantial evidence to prove the
conspiracy, as the accused were not directly involved in smuggling but
were part of a larger plot.
Key Legal Issues:
1. Criminal Conspiracy: Whether the accused had agreed to commit an
illegal act (smuggling arms), which is central to proving conspiracy under
Section 120B IPC.
2. Circumstantial Evidence: Whether circumstantial evidence was
sufficient to establish the accused's involvement in the conspiracy.
3. Mens Rea (Intent): Whether the accused had the intent (mens rea) to
participate in the conspiracy.
Court’s Ruling:
• Conspiracy (Section 120B IPC): The Court ruled that a conspiracy is
complete once an agreement to commit an illegal act is made, even if the
conspirators do not directly commit the act.
• Circumstantial Evidence: Circumstantial evidence was deemed
sufficient to frame charges, provided it forms a complete chain pointing
to the guilt of the accused.
• Prima Facie Case: The Court held that at the charge-framing stage, only
a prima facie case is needed, not proof beyond a reasonable doubt.
Conclusion:
The Supreme Court upheld the framing of charges against Som Nath Thapa,
stating that circumstantial evidence and intent were enough to proceed with the
trial. This case clarified the law on conspiracy, emphasizing that the agreement
to commit a crime constitutes conspiracy, even without direct involvement8.

Faguna Kanta Nath vs. State of Assam (1959)

Citation: AIR 1959 SC 673
Facts:
Faguna Kanta Nath, a sub-inspector in Assam’s Supply Department, was
charged with criminal conspiracy (Section 120B IPC) and criminal breach of
trust (Section 409 IPC) for misappropriating public funds, particularly rice
meant for distribution, using false receipts.
Ruling:
The Supreme Court found insufficient evidence to prove both the conspiracy
and misappropriation charges. It held that the prosecution failed to show an
agreement to commit the crime and acquitted Faguna Kanta Nath.
Conclusion:
The Court emphasized the need for clear proof of conspiracy and direct
involvement in breach of trust cases.9

Sajjan Kumar vs. Central Bureau of Investigation (2010)

Citation: (2010) 9 SCC 368
Facts:
Sajjan Kumar, a politician, was accused of inciting violence during the 1984
anti-Sikh riots. He was charged with murder, incitement, and conspiracy for
encouraging a mob that led to the killings of Sikhs.
Ruling:
The trial court acquitted him, but the Delhi High Court overturned the acquittal
in 2018, convicting him based on witness testimonies and circumstantial
evidence that the lower court had disregarded.

8
State of Maharashtra vs. Som Nath Thapa (1996) 4 SCC 659
9
Faguna Kanta Nath vs. State of Assam, AIR 1959 SC 673.
Analysis:
• Delayed Justice: The conviction came over 30 years after the riots,
showing how political influence and witness intimidation can delay
justice in communal violence cases.
• Witness Protection: The case highlighted the need for witness
protection, as many were initially too afraid to testify.
• Circumstantial Evidence: The court emphasized that circumstantial
evidence can be crucial where direct evidence is scarce.
• Accountability: It reinforced that public officials must be held
accountable, regardless of political power.
Conclusion:
This case is a key example of how proper evaluation of evidence and witness
protection are vital in ensuring justice, even in long-pending communal
violence cases.10

Major E.G. Barsay v. The State of Bombay (1962) SC

In this case, it was held that an agreement to break the law constitutes the gist of
the offence of criminal conspiracy under Section 120A IPC. The parties to such
an agreement are guilty of criminal conspiracy even if the illegal act agreed to
be done by them has not been done. The Court also held that it is not an
ingredient of the offence of criminal conspiracy that all the parties should agree
to do a single illegal act and a conspiracy may comprise the commission of
several acts.11

Ram Narain PoplI v. C.B.I. (2003) SC

In this case, the Supreme Court held that mere proof of the agreement between
two or more persons to do an unlawful act or an act by unlawful means is
enough to convict the parties for criminal conspiracy under Section 120B.12

10
Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368.
11
Major E.G. Barsav v The State of Bombay ,1961 AIR 1762

12
Ram Narain PoplI v. C.B.I. (2003) SC
Topandas v. State of Bombay (1955) SC
In this case, the appellant along with three others was charged with the offence
under Section 120B read with Sections 471 and 420 I.P.C. for conspiracy to use
forged documents. The Trial Court acquitted all the accused, but the High Court,
in appeal reversed the acquittal of the appellant and convicted him for the
substantive offence as well as for criminal conspiracy. In appeal, the Supreme
Court held that it is a matter of common sense that one person alone can never
be held guilty of criminal conspiracy for the simple reason that he cannot
conspire. It was held that the appellant could not be convicted under Section
120B when his alleged co-conspirators were acquitted of that offence. When all
the alleged co-conspirators have been acquitted, the accused alone cannot be
held guilty for conspiracy unless it can be proved that he conspired to commit
an offence not only with the co-accused but with some third person(s) who has
not been tried, because he is minor or is absconding.13

Conclusion
The offence of criminal conspiracy comes under the category of inchoate crimes
as it does not require the commission of an illegal act. Criminal conspiracy is a
partnership in crime and a joint or mutual agency exists in each conspiracy for
the prosecution of a common plan. Nowadays, it is seen that the provision of
criminal conspiracy is very loosely invoked which is not in line with the
principles laid down by the Supreme Court. Hence, it is very much required that
the superior courts keep a check on the misuse of the provision while upholding
the rule of law.

13
Topandas vs The State Of Bombay on 14 October, 1955