Things said or done by a conspirator in reference to a common design - Section 8 to 14

Section 8 of the Bhartiya Sakshya  Adhiniyam lays down the relevancy of things said or done by conspirators in reference to their common intention. This section is an exception to the general rule that one cannot be criminally responsible for the acts/statements of others.

Principle

The basic principle behind the policy of Section 8 is the theory of agency. Every conspirator is considered to be the agent of the association carrying out the offence. Section 8, which is an exception to the general rule, while permitting the statements made by one conspirator against another conspirator restricts it to the statement made during the period when agency subsisted.

Condition precedent before applicability of section 8

For the purpose of proving the acts, statements and writing of a conspirator and using it against the other conspirator, the following conditions as laid down under Section 8 must be fulfilled:

i. There must be prima facie evidence affording a reasonable ground for a court to believe that two or more persons are members of a conspiracy;

ii. Anything said, done or written by any one of such conspirators must be in reference to their common intention.

iii. Such act or statement or writing must be made after the time when such intention was first entertained by any one of them.

If all these conditions co-exist, the acts, statements and writings of the conspirator will be relevant as against the other conspirator. Conspiracy is an agreement to do an unlawful act by unlawful means. Conspiracy is a crime as well as a civil wrong (tort). This section applies in both these cases.

Prima facie evidence of conspiracy

The first condition essential to invoke Section 8 is to prove existence of 'reasonable ground to believe' that the conspirators have conspired together. This condition will be satisfied when there is some prima facie evidence to show that there was a criminal conspiracy. In order to invoke this section only prima facie case of conspiracy has to be made out.

In Kehar Singh v. State (Delhi Administration), AIR 1988 SC 1988 SC 1883, two accused were seen together before the crime isolating themselves and making efforts to conceal their conversations from the family and friends. It was held to be prima facie proof of conspiracy so as to punish one for the action of others. 

Supreme Court in Jayendra Saraswati Swamigal v. State of Tamil Nadu, AIR 2005 SC 716 held that there should be prima facie evidence that the person was a party to the conspiracy before his acts or statements can be used against co-conspirators.

Supreme Court in CBI v. V.C. Shukla (1998) 3 SCC 410, held that enteries in the diary of a person showing the names of certain persons to whom payments were made were held insufficient to create prima facie evidence of conspiracy. Court held that ordinarily, a person cannot be made responsible for the acts of others. This section provides an exception to that rule by laying down that an overt act committed by any one of the conspirators is sufficient to make it the act of all.

Rule in R. v. Blake: Leading case on this points is R v. Blake and tye. In this case Blake and Tye were charged with conspiracy to defraud their customers by passing goods without paying duty. Tye made certain entries in two books. One of them was used for carrying out fraud and the other one for his private record. It was held that enteris in the former one was admissible against Blake but not the latter one. The court held that evidence of the former entry was clearly receivable as it was an entry made in the course of transaction and it could not have been proved by any other means. The court further held that a mere statement by one conspirator or an act done by him, which is not necessary to carry out the conspiracy is not evidence under this provision.

In effect, it can be summed that the crux of this decision was that evidence of an act of a conspirator is relevant against another if the act was done to carry out the conspiracy.

Section 8 uses the expression 'in reference to their common intention. In Mirza Akbar v. emperor, the Privy Council held that the wordds 'common intention' signify common intention existing at the time when the thing was said, done or written by one of them. Any statement or confession made to the third party after the common intention or the conspiracy has ceased to exist is not admissible against the other party under this provision. In the case Mirza Akbar and one Mehar Taja were charged with conspiracy to commit murder to one Ali Aksar. Ali Aksar was husband of Mehar Taja but she was in love with Mirza Akbar. Principle evidence of conspiracy was the letters which were exchanged between Mirza Akba and Mehar Taja. It was held that letters were relevant under Section 10 [ Now Section 8 of BSA] because their terms were consistent with a conspiracy betwen the conspirators to cause death of Ali Aksar. It must be mentioned here that after being arrested Mehr Taja also made statements before Magistrate of the charge of conspiracy. Those statements before Magistrate were held not to be relevant under Section 10 [Now Section 8 of BSA] as they were made after the object of the conspiracy had already been attained. Therefore, Privy Council in Mirza akbar's case held that Section 8 of BSA lays down essence of Principles laid down in R v. Blake and Tye. In State of Gujarat v. Mohd Atik, AIR 1998 SC 1686 Supreme Court held that once common intention ceased to exist any statement made by former conspirator, thereafter could not be regarded as one made in reference to their common intention.

In Emperor v. Ganesh Raghunath Vaishampayan, ILR (1931) 55 Bom 839 (Lamington road Shooting Conspiracy Case) court held that on reading Section 10 (Now Section 8 of BSA) it appears that narratives coming from the conspirators as to their past acts cannot be said to have a reference to their common intention. The word 'intention' implies that the act intended is in the future and the section makes relevant statements made by a conspirator with reference to the future.

Period of conspiracy: Supreme Court in State v. Nalini, (1999) 5 SCC 253 held that a statement made by a particular conspirator before the commencement of conspiracy is not admissible against the co-conspirator under section 10 of the Act [ Now Section 8 of BSA]. Similarly a statement made after conspiracy has been terminated is not admissible against co-conspirator. Fixing period of conspiracy is important as Section 10 [ Now Section 8 of BSA] would apply only during the period of conspiracy.

View of Indian Courts: This view of Privy Council was affirmed by Supreme Court in Sardul Singh v. State of Bombay, AIR 1957 SC 747 and Supreme Court held that Section 10 [ Now Section 8 of BSA] is based on the principle of agency. Further, Supreme Court in Badri Rai v. State of Bihar, AIR 1958 SC 953, held that Section 10 [ Now Section 8 of BSA] is based on same line of English law as expounded in Blake and Tye case.

When facts not otherwise relevant become relevant

Section 9 of Bhartiya Sakshya Adhiniyam deals with cases when facts not otherwise relevant become relevant. This Section is based on the principle that the object of a trial is to prove or disprove, by evidence, a particular claim or charge and thus, any fact which either disprove or tends to disprove that claim  or charge and thus, any fact whic either disproves or tends to disprove that claim or charge is relevant. Section 9 contains two claused which are discussed as under:

1. Facts inconsistent with any fact in issue or relevant facts

One fact is said to be inconsistent with the other when it cannot co-exist with the other. The inconsistency with the main fact is sufficient to establish relevancy.

Plea of alibi

The term 'alibi' is a Latin term which means 'elsewhere'. The plea of alibi flows from Section 9. Supreme Court in Darchan Singh v. State of Punjab, (2016) 3 SCC 37, held that alibi is not an exception given in Indian Penal Code [Now BNS]. It is a rule of evidence recognized by Section 9 of BSA.

This plea is commonly taken by the accused in order to make a fact relevant under this Section. It is the plea of absence of a person charged with an offence from the place of occurrence at the time of commission of the offence.

In Doodhnath Pandey v. State of UP., 1981 SC 911 Supreme Court held that in order to establish this plea, the accused must lead evidence to show  that he was so far off at the moment of crime from the place of occurence that he could not have committed the offence.

In State of Maharashtra v. Narsingrao, AIR 1984 SC 63 Supreme Court held that plea of alibi must be proved with absolute certainty so as to absolutely exclude the possibility of the presence of the concerned person at the place of occurence.

The plea of alibi postulates physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. For example the question is whether A committed a crime in Culcutta on a certain day. The fact that A was at Lahore on that day is relevant as they cannot co-exist. In State of UP v. Sughar Singh, AIR 1978 SC 191 Supreme Court held that the burden of proving the plea of alibi is on the person who sets up the plea. 

In Dasari Siva Prasad Reddy v. Public Prosecutor, High Court Andhra Pradesh, AIR 2004 SC 4383 Supreme Court held that failure on part of accused to establish plea of alibi does not help prosecution. Thus mere failure on part of accused to establish alibi will not lead to an inference that accused was present at the scene of crime.

Burden of proof in case of plea of alibi: In Jayantibhai v. State of Gujarat, (2002) 8 SCC 165 Supreme Court observed that the burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by mere fact that the accused has adopted the defence of alibi. The Plea of alibi taken by accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed to discharge the burden of proving the commission of crime beyond reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi.

In Kamal Prasad and Ors. v. State of MP 2023, Supreme Court reiterated the principles regarding the plea of alibi, as follows:

i. It is not part of the General Exceptions under the IPC [Now BNS] and is instead a rule of evidence under Section 11 of the Indian Evidence Act, 1872 [Now Section 9 of BSA.]

ii. This plea being taken does not lessen the burden of the prosecution to prove that the accused was present at the scene of the crime and had participated therein.

iii. Such plea is only to be considered subsequent to the prosecution having discharged, satisfactorily, its burden.

iv. The burden to establish the plea is on the person taking such a plea. The same must be achieved be leading cogent and satisfactory evidence. 

v. It is required to be proved with certainty so as to completely exclude the possibility of the presence of the accused at the spot of the crime. In other words, a standard of 'strict scrutiny' is required when such a plea is taken.

Other examples

Where a person is accused of murdering another person on 6th August, 2024 and he tries to prove that such another person was alive till 31st August, 2024, the fact is relevant under Section 9 as it is inconsistent with fact in issue.

A is charged with murder of B. A can prove that one C murdered B as the fact C murdered B is inconsistent with the fact that A murdered him.

If a person is charged with murder of A, he can prove that the latter committed suicide.

2. Facts making the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Under Section 9(2), facts are relevant if they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. The word 'highly probable' point out that the connection between the facts in issue and collaterail facts must be so immediate as to render the co-existence of the two highly probable. 

For example A was killed by B who shot him with a gun. 3 witnesses said the gun was shot from 25 feet but medical evidence showed burn mark near the wound which can be caused when gun was shot more closely. This fact is relevant under Section 9 as both the evidences are rendering existence of fact in issue improbable.

The terms of Section 9 are no doubt wide but they must be read subject to the other Sections of the BSA and therefore, the fact relied on must be proved in accordance with the provisions of the BSA.

Fact relevant when right or custom is in question

Section 11 provides that where the existence of a right or custom is in question, the following facts are relevant - 

1. Any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence.

2. Particular instance in which the right or custom was claimed, recognized or exercised, or in which it exercise was disputed, asserted or departed from.

The purpose of Section 11 is to enable a right to be proved by transactions or particular instances in which the right or custom in question was asserted or denied. Apart from the above, a custom may also be proved by following evidences:

1. By opinions of persons likely to know of its existence or having special means of knowledge thereof [Section 42]

2. By statement of persons who are dead or whose attendance cannot be procured without unreasonable delay or expenses provided they were made before controversy as to such custom arose and were made by persons who would have been or likely to have been aware of the existence of such custom if it existed. [Section 26].

3. Judgments, orders and decree are also relevant to prove a custom though not conclusively. [Section 36]

Whether the Judgement is a transaction?

The judgement in a previous suit (though not inter parties) is admissible in evidence like any other fact. It is not the correctness of the previous decision which is relevant but the fact that there has been a previous decision is established from the judgement. [Tirumala Tirupati Devasthanams v. K.M Krishniah, AIR 1988 SC 1132]

Facts showing existence of state of mind, or of body or of bodily feelings

Section 12 of the BSA provides that the facts showing the existence of state of mind such as intention, knowledge, good faith, ill-will, rashness, good will or negligence or existence of state of body or bodily feeling are relevant when existence of such state of mind or bodily feeling is in issue or relevant. This Section deals with the proof of psychological facts which can be proved either by - 

a. Statement of the person whose mental condition is in dispute, or

b. Evidences of other persons who speak to outward manifestations known to them of state of mind and body. Such manifestation may be either by conduct or by correspondence.

Section 12 makes admissible similar acts in order to show the state of mind of a person but not to prove fact in issue.

For example, 'A' is accused of fraudulently delivering to another person a counterfeit currency, whic at the time he delivered it he knew to be counterfeit. The fact that at the time of delivery, 'A' was possessed of a number of other pieces of counterfeit currency is relevant as the possession of many counterfeit currency almost exclude the possibility of his having them by chance, incident or in good faith. [Illustration (b) to Section 12]

Similarly, where A is accused of defaming B by publishing an impuration intended to harm the reputation of B, the fact of previous publications by A respecting B, showing ill-will on the part of A towards B is relevant as proving A's intention to harm B's reputation. [Illustration (e) to Section 12]

Explanation 1 to Section 12: According to the Explanation 1 to Section 12, a fact relevant as showing existence of a relevant state of mind must show that the state of mind exists not generally but in reference to a particular matter in question. This explanation, thus, narrows the application of Section 12 and facts showing mental state in reference to a fact under inquiry are relevant.

For example A is accused of murdering a woman X. It is sought to be proved that two years ago, he murdered his wife Y and so he had mens rea to kill X. However, this fact cannot be proved and is irrelevant for proving A's intention to kill because it does not relate to the fact under inquiry.

In Reg v. Prabhudas, the question before the court was of the intention to commit the crime of forging the promissory note. The court held that the fact that a person is found in possession of number of documents apparently forged is not relevant to prove existence of intention to commit a particuar crime. Such fact can only prove the tendency of a person to commit crime.

Explanation 2 to Section 12: This Explanation provides that where previous commission by an accused of any offence is relevant under Section 12, the previous conviction of such person will also be a relevant fact.

What are similar facts and whether they can be taken in evidence?

A fact is said to be similar to another when it is similar to a fact in issue. If a person is prosecuted for theft, the similar fact will be commissioned of theft on other occasions. The question is whether the evidence of similar facts should be allowed? That is to say, if it is required to be proved that the accused has committed theft, whether the evidence of past thefs can be given?

The general principle of law is that the evidence of similar facts is not allowed. This broad principle was developed by the court in Makin v. Attorney General for New South wales. The rule is that every case must be tried on the basis of its own facts and circumstances. Therefore, evidence of similar acts is of no use.

Position under Bhartiya Sakshya adhiniyam

Bhartiya Sakshya Adhiniyam does not mention the words 'similar facts'. There is nothing in the Adhiniyam which provides that evidence of similar facts cannot be given. However, in Queen Empress v. Abdullah the court pointed out that Section 5 of the Act [Section 3 of BSA] in effect prohibits the employment of any kind of evidence which is not specifically authorized by the act. In evidence act [now BSA] 'similar fact' is not specifically authorized therefore, the position is that evidence of similar facts is not relevant.

Exceptions: The exception to this rule recognized by English Common Law are covered by some of the other sections of Adhiniyam. Following are certain exceptions:

(1) Section 13; It is the most important exception recognized by the Adhiniyam. This section is invoked in following two cases:-

i. When the question is whether the act with which the person is charged is accidental or intentional and the defence of accident has been set up;

ii. When the question is whether the Act was done with particular knowledge or intention.

In Makin v. Attorney General for New South Walves, accused, husband and wife, were prosecuted for murder of child whom they earlier adopted. The child was found buried in the yard. They took the defence that the child died of natural causes. In order to rebut this defence the evidence was offered that in previous occasions also they had adopted babies and their bodies were found in the house they occupied. The court held that the mere fact that the evidence adduced tends to show the commission of other crime does not render it inadmissible if it is relevant to an issue. It may be relevant to an issue if it relates to the question whether the acts alleged were intentional or accidental.

However, this exception is not applicable where the act in question is intentional and there is not suggestion of an accident.

(2) Section 12: Evidence of similar facts can be given when it is proposed to establish a state of mind or mens rea. Section 12 renders such facts relevant if they tend to prove a particular state of mind which is essential to a liability. For the applicability of this section it is not necessary that the accused must take the defence of accident.

(3) Section 7: This section is related to facts which establish identity of anything or person whose identity is relevant. Facts showing identity will be relevant even if they relate to the evidences of similar offences on the part of the accused on the other occasions. House of Lords in Thompason v. R admitted evidence of similar facts to establish identity.

Court in Harris v. D.P.P observed that the exclusion of similar facts is not a rule of law but it is a matter of practice.

Section 12 and 13: It must be notes here that Section 12 and 13 are to be read together. Section 13 is only an application of the general rule laid down in Section 12. Section 12 is a general section dealing with all cases in which mental state is involved whereas Section 13 deals with only those cases where the question is whether the particular act is accidental or intentional.

Existence of course of business is relevant

Section 14 provides that when there is a question whether the particular act was done, the existence of an course of business, according to which it naturally would have been done, is a relevant fact.

The general course of business has great evidentiary values in the eyes of law. If certain act is shown to have been done in a general course of business then the law will presume that the thing must have been done in that general course of business. Illustration (f) to Section 119 further says that the court may presume that the common course of business has been followed in particular cases. This presumption is however, rebuttable. The party against whom this presumption is taken may deny it.