THE PROJECT REPORT

ON

CONSTRUCTIVE
CRIMINALITY & CRIMINAL
CONSPIRACY

SUBMITTED TO:

SUBMITTED BY:

DR. BAJIRAO A. RAJWADE

ANURAG SINGH SINDHAL

ARMY INSTITUTE OF LAW

ROLL NO. 107

L.L.M 2015-16

CONSTRUCTIVE CRIMINALITY
Where, by a strained construction of a penal statute, it is made to include an act not otherwise
punishable, it is said to be a "constructive crime," that is, one built up by the court with the aid of
inference and implication.1
Section 34 of the Indian Penal Code recognizes the principle of vicarious liability in the criminal
jurisprudence. It makes a person liable for action of an offence not committed by him but by
another person with whom he shared the common intention. The section gives statutory
recognition to the common sense principle that if more than two persons intentionally do a thing
jointly, it is just the same as if each of them had done it individually.

The section 34 reads:

When a criminal act is done by several persons in furtherance of the common intention of all,
each of such persons is liable for that act in the same manner as if it were done by him alone.2
A plain look at the statute reveals that the essence of Section 34 is simultaneous consensus of the
mind of persons participating in the criminal action to bring about a particular result. It is trite to
record that such consensus can be developed at the spot.3
Section 34 carves out an exception from general law that a person is responsible for his own act,
as it provides that a person can also be held vicariously responsible for the act of others if he has
the common intention to commit the offence. The phrase common intention implies a
prearranged plan and acting in concert pursuant to the plan. Thus, the common intention must be
there prior to the commission of the offence in point of time. The common intention to bring
about a particular result may also well develop on the spot as between a number of persons, with
1 Blacks Law Dictionary 2nd ed.
2 Indian Penal Code,1860
3 Ramaswami Ayyangar v. State of Tamilnadu

reference to the facts of the case and circumstances existing thereto. The common intention
under Section 34 is to be understood in a different sense from the same intention or similar
intention or common object. The persons having similar intention which is not the result of
the prearranged plan cannot be held guilty of the criminal act with the aid of Section 34 of IPC.4
Common Intention within the meaning of the section implies a pre- arranged plan, and to convict
the accused of an offence applying the section it should be proved that the criminal act was done
in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not
impossible to procure direct evidence to prove the intention of an individual; in most cases it has
to be inferred from this act or conduct or other relevant circumstances of the case.5
Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive
liability. Section 34 IPC stipulates that the act must have been done in furtherance of the
common intention. In order to incur joint liability for an offence there must be a pre- arranged
and pre-meditated concert between the accused persons for doing the act actually done, though
there might not be long interval between the act and the pre-meditation and though the plan may
be formed suddenly. In order that section 34 IPC may apply, it is not necessary that the
prosecution must prove that the act was done by a particular or a specified person. In fact, the
section is intended to cover a case where a number of persons act together and on the facts of the
case it is not possible for the prosecution to prove as to which of the persons who acted together
actually committed the crime. Little or no distinction exists between a charge for an offence
under a particular section and a charge under that section read with Section 34.6
Applicability of Section 34 is dependent on the facts and circumstances of each case. No hard
and fast rule can be made out regarding applicability or non-applicability of Section 34.7

4 Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259

5 Mahboob Shah vs. Emperor AIR 1945 PC 118
6 Virendra Singh V/s. State of Madhya Pradesh, JT 2010 (8) SC 319,
7 Krishnan and Anr. V/s. State represented by Inspector of Police, (2003) 7 SCC 56

Section 34 also deals with constructive criminal liability. The section is restricted to common
intention and does not embrace any knowledge. It does not require proof that any particular
accused was responsible for the commission of the actual offence. It is not restricted to honour a
case in which it may be difficult to distinguish between the acts of individual members of a party
or to prove exactly what part was taken by each of them. It can be applied to cases in which
offence is committed by only one or two or three persons who all had a common intention.
Common intention is not alike or identical to mens rea. The latter may be coincidental with or
collateral to the former but they are distinct and different.

APPLICATION OF SECTION 34
To attract the application of Section 34, the following conditions must be satisfied:
1. Some Criminal Act : Criminal act used in section 34 does not refer to individual acts
where a crime is committed by a group of persons. Where a crime is committed by
several persons in furtherance of common intention of all of them, each of them doing
some act, similar or diverse, big or small shall be liable for that act.
That act refers to the criminal act used in section 34 which means the unity of criminal
behaviour which results in something for which an individual would be punishable if it
were all done by himself alone in an offence.
2. Criminal Act Done By Several Persons : The criminal act in question must have been
done by several persons i.e. by more than one person. The number of wrong doers should
be at least two. Most importantly, if the criminal act was fresh and independent act
springing wholly from the mind of the doer, the others are not liable merely because
when it was done they were intending to be partakers with the doer in a different criminal
act.

3.

Common Intention : The words in furtherance of the common intention of all were
added to section 34 after words persons in 1870 the idea for which, possibly, was
derived from the following passage of the Privy Councils judgment:
Where parties go with a common purpose to execute a common intention, each and
everyone becomes responsible for the acts of each and every other in execution and
furtherance of their common purpose, as the purpose is common so must be the
responsibility.
The expression common intention means unity of purpose or a prearranged plan; it has
been given various meanings which are as follows Common intention implies a
prearranged plan, prior meeting of minds, prior consultation in between all the persons
constituting the group.

Common intention means the mens rea necessary to constitute the offence that has been
committed.
It also means evil intent to commit some criminal act, but not necessarily the same offence which
is committed. Where there is no indication of premeditation or of a prearranged plan, the mere
fact that the two accused were seen at the spot or that the two accused fired as a result of which
one person died and two others received simple injuries could not be held sufficient to infer
common intention.
However, common intention may develop on the spot as between a number of persons and this
has to be inferred from the act and conduct of the accused, and facts and circumstances of the
case.
4.

Participation in the Criminal Act : The participation in a criminal act of a group is a

condition precedent in order to fix joint liability and there must be some overt act
indicative of a common intention to commit an offence. The law requires that the accused
must be present on the spot during the occurrence of the crime and take part in its
commission; it is enough if he is present somewhere nearby.

CRIMINAL CONSPIRACY
Conspiracy is a consultation or agreement between two or more persons, either falsely to accuse
another of a crime punishable by law; or wrongfully to injure or prejudice a third person, or any
body of men, in any manner; or to commit any offense punishable by law; or to do any act with
intent to prevent the course of justice; or to effect a legal purpose with a corrupt intent, or by
improper means.8

The Section 120A reads:

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.9
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or
more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it
is not indictable. When two agree to carry it into eect, the very plot is an act in itself, and an act
of each of the parties, promise against promise, actus contra actum, capable of being enforced, if
lawful, punishable if for a criminal object or for use of criminal means.10

8 Black's Law Dictionary 2nd ed.

9 Indian Penal Code, 1860

For conspiracy, the agreement is regarded as a sucient preparatory step. However, whether the
agreement amounts to preparation or not has to be seen. In the 4 stages of a criminal intention, a
conspiracy is denitely beyond the intention stage, as it requires the manifestation of the
intention and mere intention is not punishable unless it is manifested. However, it can only be
preparation if the agreement is regarded as a preparatory step beyond the formation of intention
as for the oence of conspiracy under 120A, no further act need be taken if the conspiracy for an
oence.
As far as conspiracies to commit illegal acts not amounting to oences is concerned, it is an
oence punished at the preparatory stage, as an overt act is needed in furtherance of such a
conspiracy as this can be regarded as a step of preparation.
Thus the oence of criminal conspiracy consists in the very agreement Between two or more
persons to commit a criminal oence irrespective of the further consideration whether or not
those oences have actually been committed.
The very fact of the conspiracy constitutes the oence and it is immaterial whether anything has
been done in pursuance of the unlawful agreement. This position is subject to the proviso to
section 120A which states that if the agreement is for an illegal act not amounting to an oence,
then in that case an overt is essential to make the agreement punishable, but in a conspiracy to
commit an oence no overt act is essential.
It is submitted that this overt act for the purposes of conspiracy does not have to be an act in the
actual commission of the oence or an attempt. The section saysunless some act besides the
agreement is done by one or more parties to such agreement in pursuance thereof. Thus the
section says that some act has to be done in furtherance of the agreement, and doesnt specify
that it has to be an act in the actual commission of the oence or an attempt. It just has to be any
act in pursuance and furtherance of the conspiratorial agreement. E.g. the entry of a foreigner in
India in pursuance of a conspiracy is an overt act.

10 Devender Pal Singh v. State of NCT Delhi, AIR 2002 SC 1661, Mulcahy v. Queen
(1868) L.R. 3 H.L. 306, 317

It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental
to that object.
The prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to
be done illegal act; the agreement may be proved by necessary implication.
Even though the agreement initially may not have been an oence, but where it is so later but the
accused did not withdraw from it and continued to carry out that agreement, the oence under
section 120B may still be said to have been committed.
Thus the oence is complete as soon as there is meeting of minds and unity of purpose between
the conspirators to do that illegal act or legal act by illegal means. However, though it is
complete the oence does not end here and continues each time an act is done in pursuance of
the conspiracy.
The inchoate offenses like conspiracy require specific intent in a slightly different sense. The
rationale for the existence of criminal laws is as a deterrent to those who represent a danger to
society. If an accused has actually committed the full offense, the reality of the danger has been
demonstrated. But, where the commission of the actus reus is in the future and the accused is
merely acting in anticipation of committing the full offense at some time in the future, a clear
subjective intention to cause the actus reus of the full offense must be demonstrated.
Without this specific intent, there is insufficient evidence that the accused is the clear danger as
feared because, at any time before the commission of the full offense, the accused may change
his or her mind and not continue. Hence, this specific intent must also be demonstrated on a
subjective basis.
To constitute the offence of conspiracy there must be an agreement of two or more persons to do
an act which is illegal or which is to be done by illegal means for one cannot conspire with
oneself.11
The gist of the offence is the bare engagement and association to break the law, whether any act
be done in pursuance thereof by the conspirators or not. The Meeting of minds is essential, mere
11 Haradhan Chakrabarty V. Union of India AIR 1990 SC 1210.

knowledge or discussion is not sufficient. In the absence of an agreement, a mere thought to

commit a crime does not constitute the offence.12
The offence of conspiracy is a substantive offence. It renders the mere agreement to commit an
offence punishable even if no offence takes place pursuant to the illegal agreement.13
The punishment for conspiracy is the same as if the conspirator had abetted the offence. The
punishment for criminal conspiracy is more severe if the agreement is one to commit a serious
offence. Conspiracy to commit an offence is itself an offence and a person can be separately
charge with respect to such conspiracy. Section 120 B of the Indian Penal Code applies to those
who are members of conspiracy during its continuance. Conspiracy has to be treated as a
continuing offence and whoever is party to the conspiracy during the period for which he is
charged, is liable under this section.
Where the charge of conspiracy fails the individual accused could still be convicted for the
offences committed by him. Where no jail term is awarded to the principal accused in a
conspiracy and he was let off with fine alone, the other co-accused cannot be awarded
substantive sentence of imprisonment, they also shall be ordered to pay fine only.

CONCLUSION
Section 34 of IPC is a rule of evidence. It embodies the principle of joint liability in the doing of
a criminal act, the essence of that liability being the existence of a common intention.
Participation in the commission of the offence in furtherance of the common intention invites its
application. The meeting of the minds must be before the commission of the offence. But
Criminal conspiracy is a substantive offence under 120B of I.P.C. It differs from the other
offences in that mere agreement is made an offence even if no step is taken to carry out that
agreement.
12 Sudhir Shantilal Mehta V. CBI (2009) 8 SCC 1
13 Yogesh Vs. State of Maharashtra AIR 2008 SC 2991

Conspiracy from its very nature is hatched in secrecy and it is, therefore, extremely rare that
direct evidence in proof of conspiracy can be forthcoming, but like other offences it can be
proved by circumstantial evidence. Surrounding circumstance and antecedent and subsequent
conduct, among other factors constitute relevant material. In fact, because of the difficulties of
having direct evidence of criminal conspiracy, once reasonable ground is shown for believing
that two or more persons have conspired to commit an offence then anything done by any one of
them in reference to their common intention after the same is entertained becomes, according to
the law of evidence relevant for proving both conspiracy and the offences committed pursuant
thereto. 14
The rationale behind making conspiracy an oence is that the required objective manifestation of
disposition to criminality is provided by the act of agreement.
Conspiracy criminalizes in agreement to commit a crime. To put it dierently, the law punishes
conduct that threatens to produce the harm, as well as conduct that has actually produced it.15
There is not much substantial difference between conspiracy, as defined in Section 120-A and
acting on a common intention, as contemplated in Section 34. While in the former, the gist of the
offence is bare engagement and association to break the law even though the illegal act does not
follow, the gist of the offence under Section 34, is the commission of a criminal act in
furtherance of a common intention of all the offenders which means that there should be unity of
criminal behaviour resulting in something for which an individual would be punishable, as if it
were all done by himself alone.

All the accused against whom the prosecution alleges that there was unity of criminal behaviour
actuated by a common intention to extort a confession can, therefore, be jointly tried under
Section 223 of Cr. P.C. The evidence as to conspiracy under Section 120-B having been rejected,
the same evidence could not be used for finding a common intention proved under Section 34.
14 Noor Mohammad Mohd. Yusuf Momin Vs. State of Maharashtra, AIR 1971 SC
885 : 1971 (1) SCR 119 : (1971) 1 SCC 696
15 Firojuddin Basheeruddin Vs. State of Kerala, AIR 2001 SC 3488.

Where the only evidence against the accused of his being a member of the conspiracy consists of
the commission of the offences themselves by others it cannot be said that he was in the
conspiracy. Section 34 enunciates a principle of liability. It is not an offence by itself. Section
120-A refers to an offence i.e. an agreement to commit an offence.
It is settled law that common intention and conspiracy are matters of inference and if while
drawing an inference any benefit of doubt creeps in, it must go to the accused.16
So faras Section 34 of IPC is concerned, it embodies the principle of joint liability in the doing of
a criminal act, the essence of that liability being the existence of a common intention.
Participation in the commission of the offence in furtherance of the common intention invites its
application. Turning to the charge under section 120-B of IPC criminal conspiracy was made a
substantive offence in 1913 by the introduction of Chapter V-A in the Indian Penal Code.
Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be
done an illegal act or an act which is not illegal, by illegal means. It differs from other offences
in that mere agreement is made an offence even if no step is taken to carry out that agreement.

16 Baliya Vs. State of M.P. (2012) 9 SCC 696.

BIBLIOGRAPHY

1. Clarkson and Keating, Criminal Law: Texts and Materials (London: Sweet and Maxwell,
2.
3.
4.
5.

2003).
K.D.Gaur, Criminal Law: Cases and Materials, (New Delhi: Butterworths, 1999).
P.S.A Pillai, Criminal Law, , (New Delhi: Butterworths, 2000).
Ratanlal and Dhirajlal, Law of Crimes, (New Delhi: Bharat Law House, 2002).
The Judgement System of Supreme Court of India referred on 27th Sept. 2015.
http://judis.nic.in/supremecourt/chejudis.asp