Reimagining the Limits of the Co-Conspirator’s Exception to Hearsay in India

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– Apoorva Nangia*

The offence of ‘criminal conspiracy’ criminalises an agreement to commit an illegal act.[1] It is difficult to prove the offence as the agreement may be formed in secrecy. Further, it may be difficult to establish a common intention among all the conspirators if their actions or statements are considered in isolation from each other.[2] To resolve this, section 10 of the Indian Evidence Act (‘IEA’) is a special rule[3] that enables the prosecution to make anything that has been said, done or written by a conspirator, ‘in reference to’ the common intention and after such intention was first entertained, a relevant fact against his co-conspirators.[4] Section 10 provides for the co-conspirator’s exception to hearsay in India[5] and can be used to prove the existence of the conspiracy and that a person was a party to it.[6]   

Mirza Akbar v. King Emperor, which is the landmark decision on the interpretation of section 10, relies on the English case R v. Blake to arrive at its ruling. The Privy Council read in the requirements under English law while interpreting section 10. It reasoned that the co-conspirator’s exception to hearsay is a ‘common law rule not based on, or limited by, express statutory words’. It held that acts that are not in ‘pursuance’ of the conspiracy are not covered under section 10. It also held that section 10 cannot be interpreted to include things said or done after the conspiracy has ended. Subsequent judgments, in cases such as Sardul Singh v. State of Bombay and Afzal Guru, have primarily relied on the pendency requirement, i.e., the things must be said or done while the conspiracy is pending. They have not emphasised on the furtherance requirement, i.e., they must be said or done in pursuance or furtherance of the conspiracy.

In this paper, I argue for a different interpretation of section 10 than that adopted by courts in India. First, the use of section 10 need not be restricted to the period of the conspiracy. Instead, courts can allow things said or done by a co-conspirator after the end of the conspiracy as a relevant fact under section 10. Second, descriptive narratives in reference to the common intention, irrespective of when they are made, must not be used against a co-conspirator except as provided under section 30 of the IEA. 

Expanding the Use of Section 10 

Courts have favoured a restricted interpretation of section 10 and have limited its application to things said or done during the pendency of the conspiracy. Such interpretation is based on the presumption that section 10 embodies a rule of common responsibility that is based on the theory of agency. The theory of agency has been explicitly recognised by the Court in Badri Rai v. State of Bihar and the Afzal Guru cases. Under this theory, there is a relationship of mutual agency among conspirators. Each conspirator is considered an agent of all his co-conspirators in carrying out the object of the conspiracy.[7] Therefore, the statements and acts of a conspirator bind his co-conspirators when made ‘in furtherance of the conspiracy’.[8]

I submit that in Indian law, section 10 is not based on the theory of agency. First, the language of section 10 only requires that the things must be written, said or done after the common intention was first entertained. It does not contain the furtherance requirement or the pendency requirement. Further, the Court in Bhagwan Swarup v. State of Maharashtra acknowledges that ‘in reference to’ is more comprehensive than ‘in furtherance of’ and has been designedly used to give a broader scope to the application section 10. Hence, the wording of section 10 indicates that its use is broader than that allowed by the theory of agency. 

Second, the theory of agency does not justify the use of things said or done by co-conspirators after a conspirator leaves the conspiracy. This is because the relationship of agency between the leaving conspirator and others has terminated. Hence, the latter’s actions cannot be used against the former.[9] However, the illustration to section 10 and its interpretation in Bhagwan Swarup clearly demonstrate that things said or done by co-conspirators can be made relevant against a leaving conspirator even if they are said or done after he leaves the conspiracy.[10]

Third, the agency rationale does not justify the use of declarations made after the end of the conspiracy or not in furtherance of it.[11] This would include descriptive narratives by a conspirator as to the existence of or participation in the conspiracy. Such declarations are not in furtherance of the conspiracy, irrespective of when they are made.[12] A confession by a conspirator is a type of descriptive narrative. Confessions are usually made after the conspiracy has terminated, and in any case, are not in furtherance of it. Hence, they are not admissible against co-conspirators under the theory of agency.[13] However, under Indian law, a confession of a conspirator, irrespective of when it is made, can be considered against co-conspirators under section 30 of the IEA. 

The language of section 10 does not contain the furtherance or pendency requirements. The judiciary has read in the pendency requirement on the presumption that section 10 is based on the theory of agency. However, the above points make it clear that the theory of agency is not the basis of Indian law. Therefore, the interpretation of section 10 need not be restricted by this theory. 

Alternatively, the theory of necessity is said to justify the law that allows the use of declarations after the end of the conspiracy or substitutes the furtherance requirement with a pendency requirement.[14] The necessity theory is based on the probative need for admitting such statements or actions as evidence, to make the offence of conspiracy provable despite its secretive nature.[15] From the Indian position of law that has been elaborated, it is submitted that the necessity theory provides a better justification for section 10. 

In the Afzal Guru case, it was argued that post-termination statements must also be ‘admitted’ (allowed to be made relevant) under section 10. If not, there would hardly be any evidence that can be made relevant under section 10 to prove the existence of and participation in the conspiracy. This argument convinced the Supreme Court, but it did not accept it on the grounds of precedent and the theory of agency. However, since section 10 is not based on the theory of agency, it can be used to make post-termination acts and statements also relevant. The necessity theory supports the broader interpretation and allows for the language of section 10 to be given full effect. Hence, section 10 can be used to make relevant anything said, done or written by one of the conspirators ‘in reference to’ the common intention, after such intention was first entertained. I submit that this would include descriptive narratives that are in reference to the conspiracy. It would also include acts done by a conspirator after the termination of the conspiracy but which are related to the conspiracy, like the distribution of stolen goods among co-conspirators in a conspiracy to commit theft.[16]

Non-Confessional Descriptive Narratives 

Under the proposed interpretation of section 10, descriptive narratives that are in reference to the conspiracy can be made relevant against co-conspirators. I submit that this situation may arise even under the current judicial interpretation of section 10, which only has a pendency requirement and could thus cover descriptive narratives made during the conspiracy. The theory of necessity would justify the unqualified use of such descriptive narratives. It is however submitted that this could seriously affect the rights of an accused person. A conspirator may betray the accused co-conspirators and implicate them or entirely shift the blame onto them through such descriptive narratives.[17] Further, when he is not making the statements as a witness under section 133 of the IEA, he is not under oath, in the presence of the accused co-conspirator, or subject to cross-examination.[18] This gives him ample opportunity to concoct a false narrative as to his and the accused co-conspirator’s roles in the conspiracy and present a narrative that is biased against the accused.[19] This problem can arise irrespective of when such statements are made. Hence, I submit that descriptive narratives must not be used in determining the guilt of the accused co-conspirator, except as provided under section 30 of the IEA.

Section 30 allows the court to consider the confession an accused against the co-accused as well.[20] Such confession would include an extra-judicial confession [21] and a retracted confession [22] but not a confession that is barred by sections 24, 25 or 26 of the IEA.[23] The term ‘confession’ has been judicially interpreted in the landmark judgment of Pakala Narayan Swami v. Emperor. It means an admission that admits to the offence or all facts that constitute the offence. Admission of a gravely incriminating fact does not amount to a confession and the confession must not contain any self-exculpatory material. In Bhuboni Sahu v. King, the Privy Council noted that Section 30 is based on the view that the admission by an accused of his own guilt ensures the truth of the confession against himself and the co-accused.

The use of the confession against a co-accused is subject to various safeguards. First, the maker of the confession and the co-accused against whom it may be considered must face a joint trial.[24] Second, the maker of the confession must implicate himself to the same extent as the co-accused against whom the confession is to be taken into consideration. The confession cannot be considered if the maker shifts the main blame on the co-accused and implicates himself to a lesser extent.[25] This requirement provides some guarantee as to the truth of the confession as it relates to the co-accused.[26]Third, the confession must not be considered as evidence under section 3 of the IEA [27] and the court cannot convict a co-accused on its basis.[28] Despite these safeguards, it has very weak value in determining the guilt of the co-accused and can only be used when there is strong corroboration that the offence was committed and the co-accused was involved in it.[29] Further, if the court suspects false implication, it has the discretion to discard the confession as having no probative value against the co-accused.[30] These safeguards protect the co-accused from being convicted on the basis of a false implication by the maker of the confession.

Non-confessional descriptive narratives would include admissions of gravely incriminating facts or admissions that contain self-exculpatory material but implicate a co-conspirator. Due to the absence of the requirement that the maker of the statement must implicate himself to the same degree and must admit his guilt, there is nothing to guarantee the truth of his statements.  For example, A, B, and C are on trial for the charge of conspiracy and murder of X. A, during the course of the conspiracy, tells D that B and C want to murder X and have prepared to commit such murder. A’s statement to D is not covered under section 30 as it does not implicate him but only implicates the other co-conspirators. However, such a statement can be made a relevant fact under section 10 under both the present and proposed interpretations. Hence, evidence can be given to prove the fact that A told D that B and C want to murder X.[31] However, it is to be noted that the evidence would only prove that A made such statements but would not prove the veracity of the statements. The contents of the statement and the position of A with respect to the offence do not inspire confidence in its veracity. Further, when such statements are made after arrest, they may be a result of police pressure to implicate a particular co-conspirator.   

Therefore, I submit that although such statements are relevant facts, the court must not give any weight to the evidence that is admitted to prove them in determining the guilt of a co-conspirator. The task of weighing evidence and drawing inferences from it is entirely left to the discretion of the court and depends on the facts of the case.[32] However, considering that courts have previously acknowledged the tendency of an accused to falsely implicate his co-accused (in Bhuboni Sahu) and that the evidence does not prove the veracity of the statements, courts must guard themselves from using such evidence to support the conviction of the co-conspirator. Even if any weight must be given to such evidence, it must be lower than that accorded to a confession under section 30. This would ensure that evidence to prove non-confessional statements that were made without safeguards is not accorded a higher weight than confessional statements that have safeguards. 

It must be noted that non-confessional descriptive narratives in reference to the conspiracy would also include the evidence given by a conspirator when he is a witness under section 133 of the IEA. These statements are evidence before the court that are given in the capacity of a witness. Hence, he can be cross-examined by the co-accused.[33] Further, although the court can convict a conspirator based on such evidence of a co-conspirator,[34] it does not do so as a rule of prudence. Based on illustration (b) of section 114, the court requires independent evidence, apart from the testimony of other accomplices, to corroborate the testimony of a co-conspirator.[35] In this type of non-confessional descriptive narratives, the opportunity to cross-examine and the requirement of independent corroborative evidence protect the accused from being convicted on the basis of a false description by a co-conspirator. Therefore, the weight of such evidence can be determined based on the court’s discretion and the above argument does not extend to this situation. 

Conclusion

This paper rejects the interpretation of section 10 that has been adopted in India and argues for an alternative interpretation. First, it establishes that section 10 is not based on the theory of agency by looking at the provision itself, its judicial interpretation, and other provisions of the IEA. Therefore, the interpretation of section 10 need not be restricted by the agency theory and its language can be given full effect, to extend to things said or done even after the end of the conspiracy. Second, it establishes that non-confessional descriptive narratives can be made relevant under section 10 under the present and proposed interpretations. However, since there are no safeguards to ensure the truthfulness of such narratives, it would be anomalous to give more weight to the evidence that proves them than that is given to confessional narratives, where the co-accused is protected by some safeguards. Therefore, such evidence must not be given any weight in determining the guilt of the co-accused. Even if it is given some weight, it must be lesser than what is given to a confession under section 30, which is itself considered to have very weak value in determining a co-accused’s guilt. The proposed interpretation acknowledges the departure of section 10 from English law and the theory of agency. It also accounts for the protection of an accused conspirator from being falsely implicated by his co-conspirators.

*Apoorva Nangia is a III Year B.A. LL.B. (Hons.) student at National Law School of India University, Bangalore.


[1] Indian Penal Code 1860, s 120A. 

[2] Badri Rai v State of Bihar AIR 1958 SC 953. 

[3] ibid.

[4] Indian Evidence Act 1872, s 10. 

[5] See Stephen Whitzman, ‘Proof of Conspiracy: The Co-Conspirator’s Exception to the Hearsay Rule’ (1986) 28 Criminal Law Quarterly 203.

[6] Indian Evidence Act 1872, s 10. 

[7] Whitzman (n 5).

[8] ‘Developments in the Law: Criminal Conspiracy’ (1959) 72(5) Harvard Law Review 902.

[9] Bhagwan Swarup v State of Maharashtra AIR 1965 SC 682.

[10] Indian Evidence Act 1872, illustration to s 10. The illustration to section 10 reads: ‘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 stranger to him, and although they may have taken place before he joined the conspiracy or after he left it.’

[11] ‘Developments in the Law: Criminal Conspiracy’ (1959) 72(5) Harvard Law Review 902.

[12] Whitzman (n 5). 

[13] Donald G McLean, ‘Conspiracy: Admissible Evidence and Method of Proof’ (1979) 21 Criminal Law Quarterly 286.

[14] ‘Developments in the Law: Criminal Conspiracy’ (1959) 72(5) Harvard Law Review 902. 

[15] Joseph H Levie, ‘Hearsay and Conspiracy: A Re-examination of the Co-Conspirators’ Exception to the Hearsay Rule’ (1954) 52(8) Michigan Law Review 1159.

[16] See R v Blake and Tye (1844) 6 QB 126.

[17] Bhuboni Sahu v King 1949 SCC OnLine PC 85. 

[18] Mohd Khalid v State of West Bengal (2002) Supp 2 SCR 31. 

[19] Levie (n 15). 

[20] Indian Evidence Act 1872, s 30. 

[21] State of Madhya Pradesh v Paltan Mallah (2005) 3 SCC 169. 

[22] Ram Prakash v State of Punjab AIR 1959 SC 1. 

[23] Mohd Khalid v State of West Bengal (2002) Supp 2 SCR 31. 

[24] Indian Evidence Act 1872, s 30. 

[25] Balbir Singh v State of Punjab AIR 1957 SC 216. 

[26] Mohd Khalid v State of West Bengal (2002) Supp 2 SCR 31.

[27] Haricharan Kurmi v State of Bihar AIR 1964 SC 1184.

[28] Kashmira Singh v State of Madhya Pradesh 1952 SCR 526. 

[29] Ram Prakash v State of Punjab AIR 1959 SC 1. 

[30] Haroon Haji Abdulla v State of Maharashtra AIR 1968 SC 832.

[31] Indian Evidence Act 1872, s 5. 

[32] Halsbury’s Laws of India – Evidence, vol 18 (2nd edn, Lexis Nexis 2016). 

[33] Tribhuvan Nath v State of Maharashtra AIR 1972 SC 2134. 

[34] Indian Evidence Act 1872, s 133. 

[35] K Hashim v State of Tamil Nadu (2005) 1 SCC 237.

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