LLM Group 5 Criminal Law and Criminal Administration Criminal Jurisprudence 2019 Question Paper with Solutions

It came late into the Penal Code. Until 1913 an agreement was punishable in India only as abetment by conspiracy under section 107, which required an act in pursuance, or, for conspiracies against the State, under section 121A. The Indian Criminal Law Amendment Act, 1913 inserted sections 120A and 120B. The Bharatiya Nyaya Sanhita, 2023 merges the definition and the punishment into a single provision, section 61.

The proviso is where marks are won and lost. Where the agreement is to commit an offence, the agreement alone completes the crime. Where the agreement is to do some other illegal act, or a lawful act by unlawful means, the section requires that some act besides the agreement be done by one or more of the parties in pursuance of it. The Explanation adds that it is immaterial whether the illegal act is the ultimate object of the agreement or is merely incidental to it.

Punishment follows the object. A conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for two years or upwards is punished in the same manner as if the conspirator had abetted the offence. Any other criminal conspiracy carries imprisonment up to six months, or fine, or both.

The special rule of evidence must be named. Section 10 of the Evidence Act, 1872, now section 8 of the Bharatiya Sakshya Adhiniyam, 2023, makes anything said, done or written by one conspirator in reference to the common intention relevant against every other, once reasonable ground exists to believe that they conspired. That is why proof of the agreement must come first: the rule of evidence cannot be used to prove the very fact that lets it operate.

Criticism. Conspiracy is the widest of the inchoate offences. Liability attaches before any harm, the actus reus is invisible, the evidence is usually accomplice testimony or the conduct of others, and the co-conspirator rule admits material against a person who was not present. The controls are judicial rather than statutory: agreement must be proved, not inferred from company kept.

(b) Mistake of law and mistake of fact

The maxim is ignorantia facti excusat, ignorantia juris non excusat: ignorance of fact excuses, ignorance of law does not.

The three conditions of the excusing mistake. It must be a mistake of fact, that is, about the world and not about the legal rule. It must be made in good faith, which section 52 of the Code and section 2(11) of the Sanhita define as requiring due care and attention, so an honest but careless belief fails. And the act must have been lawful on the facts as supposed; a mistake that would not have made the act lawful gives no protection.

Chirangi v. State, AIR 1952 Nag 282, illustrates all three. Chirangi Lohar, a widower in Bastar, took an axe and went with his young son to gather leaves on a hill, and killed the boy with the axe, saying he had struck at a tiger. Medical evidence showed that a fall, together with his existing ailments and poor sight, could have produced a state in which he genuinely took his son for a tiger. The Nagpur High Court held him protected by section 79: the mistake was of fact, it was made in good faith, and killing a tiger would have been lawful. The case bears on the note because it shows the excusing mistake at its clearest.

How conspiracy differs from its neighbours

The concept is best fixed by setting it against the three devices it is confused with.

Yash Pal Mittal v. State of Punjab, (1977) 4 SCC 540, supplies the propositions. The appellant was implicated in a scheme to obtain passports by personation. The Supreme Court held that the agreement, concert or league is itself the ingredient of the offence under section 120A; that it is not necessary that all the conspirators know every detail, so long as they are co-participators in the main object; and that the parties are guilty though the illegal act agreed upon was never done. It added that the agreement need not be to do a single illegal act and may comprise a number of acts. The case bears on the note because it states the two propositions that separate conspiracy from every other form of group liability: the agreement is the crime, and the design need not be executed.

Conclusion. The two notes are both about the mind the law will and will not inquire into. Criminal conspiracy makes an agreement punishable in itself, subject to the overt-act proviso where the object falls short of an offence, and after Kehar Singh the prosecution must prove an agreement rather than an association, with the co-conspirator rule in section 10 of the Evidence Act, now section 8 of the Adhiniyam, operating only once that agreement is shown. Mistake works the other way: the law will inquire into the accused's belief about the world, and excuse him under sections 76 and 79 if it was honest and careful, as Chirangi and Ram Bahadur Thapa show, but it will not inquire into his belief about the law itself, as Mayer Hans George shows, because that would make liability depend on something no court could test.