"IMPLEMENTATION AND IMPLICATIONS OF SECTION 10, INDIAN EVIDENCE ACT IN INDIA VIS--VIS ENGLISH LAW"

(Satyam Khandelwal, 2010-15/B.A. LL.B./046) Section 10 of the Indian Evidence Act, 1872 (hereinafter IEA) reads 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 intentions, 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. The general rule of evidence is that an act or action of an accused cannot be used as evidence against another.1 Section 10 of the Evidence Act which is an exception to the general rule while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period where agency subsisted.2 The basic principle underlying Section 10 is the theory of agency. The words of Section 10, IEA are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed.3 Reasonable ground to believe in the existence of a conspiracy must be shown as a condition precedent to the admission of acts and declaration of a conspirator against his fellow conspirators, i.e. the existence of a conspiracy must be established by prima facie evidence before anything said, done or written by one of the accused can be used against the others. Under the English law on a charge of conspiracy, although statements or acts made by one conspirator or in furtherance of the common object are admissible against the others, statements or acts by one not made in pursuance of the conspiracy or not in furtherance of the common purpose, are not admissible against the others, nor are the statements made after the

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Saju v. State, (2001) 1 SCC 378. Sarakar, M.C., SARKARS LAW OF EVIDENCE, Vol. 1, 17th ed (2010), p.412. Mirza Akbar v. R., 45 CWN 269 PC. 1|Page

termination or abandonment of the conspiracy or the attainment of its object or after the end of his connection with the conspiracy.4 S.10 has a wider scope than the English law as:(i) Under S.10 anything said or done in reference to the common intention, although it may be not in support or in furtherance of the conspiracy, is relevant against the others. Any act or declaration of a conspirator before another joined the conspiracy or a letter giving an account of the conspiracy is relevant. Thus, in R. v. Amiruddin,5 letter containing an account of conspiracy were admitted even though not written in support of or in furtherance of it. (ii) Under the English law, statements or acts of the other conspirators after one terminated his connection with the conspiracy are not admissible against the latter; but under S.10 they are admissible against him.6 The words used in this section are in reference to and not in furtherance of as in English Law and so they make its scope wider than the rule of English Law. S.10 renders admissible in cases of conspiracy much evidence which is not otherwise ordinarily admissible under the English Law. Its provisions are wider than that of English Law. The expression in reference to their common intention in S.10 is very comprehensive and is designedly used to give it a wider scope than the words in furtherance of in the English Law.7 Though the use of words in reference to appears to give the section a somewhat wider latitude, it should be remembered that the things said, done or written in reference to the conspiracy must have happened after the conspiracy was conceived by any one of the persons and that the acts or declarations of the conspirator after the conspiracy has terminated and the common intention ceased to operate are not admissible against a fellow conspirator.8 While it is true that section 10 does not use the words in furtherance of the common design but uses the words in reference to their common intention, the Privy Council in Mirza Akbar

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R. v. Blake, 1844 6 Q.B. 126. 15 WR Cr 25. Sarakar, M.C., SARKARS LAW OF EVIDENCE, Vol. 1, 17th ed (2010), p.417. Bhagwan & Ors. v. S, A 1965 SC 682; See Malek, Hodge M, PHIPSON ON EVIDENCE 17th Ed. Ram Pd v. R, A 1927 O 369; Bhola Nath v. R., A 1939 A 567; R. v. Abani, 38 C 169. 2|Page

v. Emperor,9 in very clear terms held that the words are not to be widely construed and practically read the English law into sec. 10, that the words in reference mean in furtherance. That is the construction which has been applied to sec. 10 in decisions in India, for instance, in Emperor v. Ganesh Raghunath 10 and Emperor v. Abani.11 In these cases the distinction was drawn between communications between conspirators while the conspiracy was going on with reference to the carrying out of conspiracy and statements made, after arrest or after the conspiracy had ended, by way of descriptions of events then past. S.10 is not however capable of being widely construed so as to include a statement made by one conspirator with reference to past acts than in the actual course of carrying out the conspiracy, as the common intention signifies a common intention existing at the time when the thing was said, done or written.12 The main distinctions between English and Indian Law are: Firstly, that while in English law the act must have been done or declaration made in execution or furtherance of the common object, under the Indian Evidence Act, to establish the admissibility of the act or declaration, it is sufficient to show that it had reference to the common intention,13 Secondly, that while in English law the act of a conspirator must have been done, or declaration made, before the person against whom it is sought to be given in evidence ceased to be a member of the conspiracy,14 in Indian law the act or declaration would be admissible, even though it was done or made after the person, against whom it is sought to be given in evidence, terminated his connection with the conspiracy.

AIR 1940 PC p.176 55 Bom 839. 38 Cal 169. Mirza Akbar v. R., 45 CWN 269 PC. Balmokand v. E., 17 PR 1915 Cr: 28 IC 738: 16 Cr LJ 354. R. v. Hardy, 24 How St Trials 718 (731) 3|Page

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The recommendations by the 185th Law Commission report stated thus: The question before the Commission in the 69th Report was the same and after referring to the fact that this is an exception to the hearsay rule, the Commission did feel that it should be narrowly construed. But still, the Commission retained the words with reference to and did not substitute the said words by in furtherance of. We are of the view, that the section should be amended by using the words in furtherance of as held by the Privy Council and the Supreme Court and we accordingly differ from the 69th Report. After reading the various differences between English and Indian laws, the 185th Law Commission recommended that S.10 now be read as:10. Where(a) the existence of a conspiracy to commit an offence or an actionable wrong, or the fact that any person was a party to such a conspiracy, is a fact in issue or a relevant fact; and (b) the question is whether two or more persons have entered into such conspiracy, 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.

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