“Admissibility of the statements made under section 10 of Indian Evidence Act, 1872”
S.10 of Evidence Act:
Things said or done by conspirator in reference to common intention:-
Where there is reasonable ground to believe that two or more person have conspired together to commit an offence or an actionable wrong, anything said, done, or written by any one of such person 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 person 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 talks about the things said, done or written by the conspirator in reference to common intention. In this section there are some expressions have been used as thins said, done or written, in reference to their common intention. Each of the word has its own importance in the application of this section and all these things must be properly taken into consider by the courts before applying this section.
This section is based on the “theory of implied agency”. So the things said or done by one conspirator are admissible against the other if they relate to the conspiracy.
Meaning of conspiracy:-
The term conspiracy means a secret plan by a group to do something unlawful and harmful or something which is not unlawful but by unlawful means.
According to Stephen, “when two or more persons agree to commit any crime, they are guilty of conspiracy whether the crime was committed or not”.
It is not necessary in order to constitute a conspiracy that the acts agreed to be done should be acts which if done should be criminal. A conspiracy consists of unlawful combination of two or more persons to do that which is contrary to law or to do that which is wrongful towards other persons. A mere agreement to commit an offence becomes criminal conspiracy.
In Indian penal code section 120A the term conspiracy has been defined as:
When two or more persons agree to do, or cause to be done, an illegal act or an act which is not illegal but illegal by means, such an agreement amount to criminal conspiracy.
The Supreme Court also defined in bhagwant swarup v. State of Maharashtra, conspiracy as two or more corrupt persons agreeing together to do, by concerted action, something unlawful either as a mean or as an end. Thus the conspiracy is a kind of agreement to do an unlawful act, or a lawful act by lawful means. Being contrary to law the conspiracy is always hatched in secrecy, and executed in darkness of the facts.
Principal and Scope:
Theory of agency:
The general principal is that no person can be made liable for the acts of another except in cases of abetment in criminal proceeding and contract of agency in civil proceeding. But in conspiracy the persons who take part in conspiracy are deemed to be the mutual agent or confederates for the purpose of the executive of the joint purpose.
In Badri Rai v. State, it has been held that section 10 of the evidence act has been deliberately in order to make such acts or statements of the co-conspirator admissible against the whole body of conspirators, because of the nature of the crime. A conspiracy is hatched in secrecy, and executed in darkness. Naturally, therefore it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts or statement of the others, unless there is common bound linking all of them together.
In emperor v. Shafi ahmed it has been held that if two or more persons conspire together to commit an offence, each is regarded as the agent of the other, and just the principal is liable for the acts of agent, so each conspirator is liable for what is done by his fellow conspirator, in furtherance of the common intention entertained by both of them.
In Indian law the scope of this section is wider than the English law. As in English law the expression is used is “in furtherance of their common intention” whereas in Indian law the expression is used is “in reference to their common intention”. This expression in Indian law is only used to give wider effect to this section than the English law.
Admissibility and Applicability:-
There are some essential elements which must be proved prima facie before the court to admit the statements made under S.10 of Evidence Act.
Existence of the conspiracy:
The operation of S10 is strictly conditional upon being reasonable ground to believe that two or more persons have conspired together.
In Government of NCT of Delhi v. Jaspal Singh, it has been held that once there is sufficient material to reasonable believe that there was concert and connection between persons charged with a common design, it is immaterial whether they were strangers to each other, or ignorant of actual role of each of them or they did not perform any one or more of such acts by joint efforts. It is not necessary that all should have joined in the scheme from the first; those who come in at later stage are equally guilty, provided the agreement is proved.
Before bringing on record, anything said, done, or written by an alleged conspirator the court has to bring on record some evidences which prima facie proves the existence of the conspiracy.
In Gulab Singh v. Emperor, it has been observed that it is necessary in a prosecution for conspiracy to prove that there were two or more persons agreeing for purpose of conspiracy and that there could not be a conspiracy of one. This decision is based on the decision given in King v. Plummer.
The person making statement must be a party to such conspiracy and the alleged person must conspire together with other members:
All acts and statements of a conspirator can only be used for the purpose of proving the existence of the conspiracy or that a particular person was 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 it. And there must be reasonable ground to believe that they have conspired together.
It is true that the expression ‘reasonable ground to believe’ does not mean it is proved. It certainly contemplates something short of actual proof and means that there should exists prima facie evidence in support of the existence of the conspiracy between two or more accused persons, and it is then only that anything said, done or written by one can be used against the other.
In Samundar Singh v. State, it has been held that the evidence is taken after a prima facie proof of conspiracy but at a later stage of the trial that reasonable ground of belief or prima facie proof is displaced by further evidence; the court must reject the evidence previously taken.
Things said, done, or written in reference to their common intention:
If the things are said, done, or written in reference to the common intention of the conspiracy then only the things said, done, or written will be admissible in the court of law. But if anything said, done, or written by any fellow conspirator after the conspiracy no longer exist and had ended or ceased to exist, it will be inadmissible against other.
‘Anything said’ would include the speeches, or declarations made by the person. Evidence of communication between conspirators while the conspiracy is on is admissible. Anything written by a conspirator will not bse admissible against him or others if it is not done in the reference to the common intention of the conspiracy. The expression ‘written’ would include the manuscripts, whether signed or unsigned, written or typewritten.
The word in reference to their common intention mean in reference to what at the time of statement was intended in the future.
Every conspiracy is made in a great privacy due to that it is very difficult to gather evidences against the conspiracy. Direct evidences cannot be taken because of that. It is only from the members of the family or from the persons who are intimately connected with those persons or from their associates the evidences can be collected.
Admissions of Evidences related to acts outside the period of conspiracy:
This is very clear with the bear text of S.10 that the things said, done, or written will be relevant only then when such intention was first entertain by any one party to the conspiracy. Again the thing is necessary to remember that the things said, done, or written is not relevant when the conspiracy is over.
In the case State of Tamil Nadu v. Nalini, it has been held that once it is shown that a person snapped out of conspiracy, any statement made subsequently thereto cannot be used against other conspirator under section 10 of Evidence Act.
In the case of Mirza Akbar v. King emperor, the privy council held that correspondence between the accused was relevant under section 10 as the substance of the latter were only consistent with the conspiracy between the accused prisoners to procure the death of ali asghar, but the statement of mehr laqa to the magistrate was not relevant under section 10 as it was made after the object of conspiracy had already been carried out.
In the case of L.K.Advani v. CBI, Delhi high court held that there is no evidence on record except the alleged entries in the diaries and no loose sheet to prove the clam of the conspiracy and also there is no evidence to show that the entries were made in reference to common intention of the conspirators after it was first entertained.
By above discussion we can say that there are some essentials which a court considers to be look after it before admitting the statements under section 10 of Evidence Act.
In re: Raman Ratanan, the first accused agreed to supply to the second accused a packet of explosive for the purpose of blowing up a railway bridge and the second accused along with others used the explosive, but his attempt proved unsuccessful; later the second accused wrote a letter to the first accused mentioning his unsuccessful attempt and ask him to supply some more explosive substance. On those facts it has been held that the latter of second accused was not admissible against the first accused as to the common intention had ceased to exist after the attempt to blow up the bridge failed.
In different judgments of the court of law it has been held that the statements said, done, or written in reference to their common intention must be made when the conspiracy is on. Neither before it start nor after it end. In both the cases the statements will not be admissible.
After going through section 10 of Evidence Act and many case related to this section thoroughly I came to the conclusion that, there is no discretionary power given to the courts as to the admissibility of the statements made under section 10 of the Act, but there are some essential ingredients which has to be fulfilled in this regard. Those ingredients are stated in the case of bhagwant Swaroop v. State of Maharashtra are:
· There shall be prima facie evidence affording a reasonable ground for a court to believe that two or more persons are member of a conspiracy;
· If the said condition is fulfilled then anything said, done or written by anyone of them in reference to their common intention will be evidence against the others;
· 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;
· it would also be relevant for the said purpose against the another who entered the conspiracy, whether it was said, done or written before he entered the conspiracy or after he left;
· And it can be used only against and not in his favour.
The time of the thing said, done or written is also a essential thing to look after before the admissibility of the statement that on the time when the statement is made at that time the conspiracy was on or not, a statement cannot be admissible under section 10 if the statement is made before the time when the conspiracy was first entertained and after the conspiracy is end.
Hence it is clear that there is no discretionary power given to the court for the admission of the statements made under section 10 of Evidence Act but there are some prima facie and circumstantial evidences which must proved before any admission of the statement under this section of the Act.
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The author can be reached at: BhagwatiDanCharan@legalserviceindia.com