Section – 10 of Indian Evidence Act, 1872

Introduction

Section 10 of the Indian Evidence Act 1872 deals with the topic of admissibility of evidence in relation to anything said or done by conspirator in reference to common design.

Criminal Conspiracy

• Plainly Conspiracy means a secret plan by a group of people to do something harmful or illegal.
• The Indian Penal Code defines Criminal Conspiracy under Section 120A as:
  • Section 120A - Definition of Criminal Conspiracy - When two or more persons agree to do, or cause to be done:
    • (1) an illegal act, or
    • (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
    • Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
    • Explanation—It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object.

Concept Of Conspiracy Under Section 10 – Indian Evidence Act

• Section 10 - Things said or done by conspirator in reference to common design – 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.
• Illustration
  • Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India.
  • The facts that B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D persuaded persons to join the conspiracy in Bombay, E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

Principle of Section 10

• The provision of conspiracy acts on the principle of implied agency as its foundation i.e. every conspirator is an agent of the parties to the agreement to carry out the object of conspiracy.

Admissibility of Evidence Under Section 10

• Anything said, done or written by anyone of the conspirators in respect of their common intention is admissible against all conspirators for proving:
  • That the conspiracy existed.
  • That the person was a part of such conspiracy

Relevancy Under Section 10

• Whether evidence is relevant under Section 10 or not is decided as per following parameters:
  • That anything said, done or written by one of the conspirators at any random time is not relevant and cannot be proved.
  • That anything said, done or written by one of the conspirators at any time before such conspiracy is entertained is not relevant and cannot be proved.
  • That anything said, done or written by one of the conspirators at the time after such intention was first entertained by any one of them is relevant.
  • That anything said, done or written by one of the conspirators at the time after such conspiracy was over is not relevant and cannot be proved.
  • That anything said, done or written by one of the conspirators should be in reference to their common intention.
• Before the court admits the evidence, it looks into the fact that whether reasonable grounds exist to establish the fact that the concerned persons entered into a conspiracy.
• Also, any fact disclosed by the accused to the Police after his arrest and Confessional statements made by the accused if any would not be fall under the ambit of S.10.

Important Case Laws

• Mirza Akbar v. Emperor AIR (1940):
  • FACTS – This English case revolves around a married couple, Mehr Taja and Ali Askar. Mehr Taja was in an extramarital union with Mirza Akbar. They both intended to marry each other and for that they wanted to get rid of Ali Askar. For the purpose of murdering Ali Askar, they hired Umer Sher. Ali Askar was in turn shot by Umer Sher and Mehr Taja was arrested on charge of conspiracy.
  • VERDICT – Lord Wright said that the provision specifically takes only those facts into consideration which were said, written or done during the conspiracy. The admission made Mehr Taja to the Examiner Magistrate was therefore not considered admissible under the provision although the exchange of letters was within the ambit and hence were admissible.
• Badri Rai v. State of Bihar (1958)

The SC in this case has held that Section 10 is intentionally enacted to render the acts and statements of a co-conspirator admissible as evidence against the entire group of conspirators, given the nature of the crime.

Conclusion

As it is said, to test the admissibility of evidence it is the Judge’s duty to sift the grain from the chaff, similarly, to make an evidence fall under the purview of Section 10, it is to be seen carefully that the evidence of the co-conspirators should not belong to the period which is outside the duration of conspiracy.