Criminal conspiracy, by its very nature, is an offence rooted in secrecy. It involves a covert agreement between two or more persons to commit an illegal act or a legal act by illegal means. Due to the private and concealed manner in which conspiracies are formed, proving them presents unique challenges to law enforcement and prosecutors. However, Indian jurisprudence, shaped by statutory provisions and judicial precedents, has laid down a clear legal framework for proving such offences.

Section 61 – Criminal Conspiracy (BNS, 2023)

Definition:

When two or more persons agree to:

1. Do, or cause to be done—
   • An illegal act, or
   • A legal act by illegal means,
     such an agreement is designated a criminal conspiracy.

Explanation:

• Illegal act includes acts that are offences or prohibited by law.
• An act abetted by conspiracy becomes punishable even if no act besides the agreement is done, when the object is to commit an offence.

🔹 Punishment under BNS:

The punishment depends on the object of the conspiracy:

1. If the conspiracy is to commit an offence punishable with death, life imprisonment, or rigorous imprisonment of two years or more:
   • Punishment is same as for abetment of that offence.
2. If the conspiracy is for any other illegal act or legal act by illegal means:
   • Punishable with imprisonment up to six months, or
   • Fine, or
   • Both.

🔹 Key Elements to Prove:

To establish Criminal Conspiracy under BNS:

• Two or more persons
• Must have entered into an agreement
• The object is to commit an illegal act or a legal act by illegal means

🔹 Comparison with IPC:

This section is almost identical to Section 120A and 120B of the IPC. The BNS has simply reorganized and renumbered the sections while keeping the legal principles intact.

🔹 Example:

If two people agree to forge documents (which is an offence), the moment the agreement is made, a criminal conspiracy is formed — even if the act isn’t carried out yet.

I. Understanding Criminal Conspiracy: Legal Foundation

Criminal conspiracy is defined under Section 120A of the Indian Penal Code, 1860, and is punishable under Section 120B. It criminalizes the mere agreement between two or more persons to commit an offence, regardless of whether the act is ultimately carried out.

The offence is unique because the agreement itself constitutes the crime, even if no overt act follows, provided the object is an illegal act. This makes the offence of conspiracy distinct from other inchoate offences.

II. Essential Ingredients of Criminal Conspiracy

To establish a charge of criminal conspiracy, the prosecution must prove the following essential elements:

1. Agreement Between Two or More Persons

The core of conspiracy lies in the “meeting of minds”. As held in Kehar Singh v. State (Delhi Administration), it is the agreement to commit an illegal act (or a legal act by illegal means) that constitutes the offence. The act itself need not be carried out for the conspiracy to be punishable.

2. Knowledge and Intent

Mere presence or association with conspirators is insufficient. It must be proved that the accused had knowledge of the object of the conspiracy and actively participated with the intent to further the illegal design. This element is crucial to distinguish between innocent association and culpable involvement.

III. The Role of Evidence: Direct vs. Circumstantial

1. Direct Evidence

Due to the secretive nature of conspiracies, direct evidence (such as confessions, wiretaps, or written agreements) is rarely available. Occasionally, direct evidence may come in the form of testimony from a co-conspirator turned approver.

2. Circumstantial Evidence

In most cases, conspiracy is proved through circumstantial evidence. This includes:

• Frequent communications between the accused
• Co-ordinated activities suggesting a common plan
• Destruction or fabrication of evidence
• Financial transactions or travel records linked to the illegal purpose

As emphasized in Sajeev v. State of Kerala (2023), the Supreme Court accepted a chain of circumstantial facts—including destruction of records—as sufficient to infer the existence of a conspiracy.

IV. Section 10 of the Indian Evidence Act, 1872: A Critical Provision

1. Principle of Implied Agency

Section 10 provides that anything said, done, or written by any conspirator after the formation of the conspiracy and in reference to the common design is admissible against all conspirators. The doctrine works on the principle that each conspirator acts as an agent of the other.

2. Conditions for Application

For evidence under Section 10 to be admissible, two pre-conditions must be met:

• Existence of Conspiracy: There must be a prima facie case showing reasonable grounds that a conspiracy existed.
• Acts in Reference to Common Design: The act, statement, or writing must be related to the common intention and made after the conspiracy began.

Importantly, acts or statements made before the conspiracy was formed or after it ended are not admissible under this section.

V. Judicial Pronouncements Shaping the Law

Indian courts have consistently laid down and reinforced the standards for proving criminal conspiracy:

1. Suspicion vs. Proof

In Subramaniam Swamy v. A Raja, the Court held that “suspicion, however grave, cannot take the place of legal proof”. The mere meeting of accused persons, without proof of a common intention or illegal design, is not sufficient.

2. Adequacy of Circumstantial Evidence

In State (NCT of Delhi) v. Navjot Sandhu, the Court warned that a scattered collection of facts (“a few bits here and a few bits there”) does not establish a conspiracy unless they form a coherent and unbroken chain leading to one conclusion.

3. Joint Responsibility

In Mohd. Naushad v. State of NCT of Delhi (2023), the Court reiterated that conspiracy implies joint liability, making all conspirators culpable for acts done by others in furtherance of the conspiracy.

VI. Standard of Proof

The standard of proof in criminal conspiracy cases remains “beyond reasonable doubt”, just as in other criminal trials. Courts are cautious not to dilute this standard, especially when relying on circumstantial evidence. Inference must be strong, cogent, and lead unmistakably to the guilt of the accused.

VII. Prima Facie Requirement for Applying Section 10

Before invoking Section 10 of the Evidence Act, the court must determine whether a prima facie conspiracy exists. This ensures that statements of co-conspirators are not prematurely used to implicate others without sufficient foundational proof.

VIII. Challenges in Proving Criminal Conspiracy

1. Secrecy of Formation

Conspiracies are usually formed in secret, often without documentation or witnesses. This makes it difficult to prove:

• The exact date or place of agreement
• The specific roles played by each conspirator
• The precise objective of the conspiracy

2. Misapplication of Presumptions

In some cases, courts have inadvertently applied the concept of deemed presumption, which is not permitted under IPC. The Supreme Court has cautioned against such practices, emphasizing adherence to the traditional standard of proof.

IX. Best Practices for Prosecution in Conspiracy Cases

• Establish a Coherent Chain of Circumstantial Evidence: Each link must be credible and logically lead to the conclusion of a conspiracy.
• Prove Prior Agreement: Demonstrate that the accused shared a common design and worked towards achieving it.
• Utilize Section 10 Wisely: Only after prima facie conspiracy is established.
• Avoid Over-reliance on Suspicion: Every piece of evidence must withstand scrutiny under the “beyond reasonable doubt” standard.

1. Legislative Changes / Debate around “Common Intention”

• The new BNS explicitly includes “common intention” in subsection (1), merging the traditional conspiracy test with shared design
• Legal critics (e.g., think‑tank Project 39A) argue that this blurs distinct legal concepts—i.e., conspiracy vs. common intention—and raises potential complications in interpretation

2. ⚖️ Judicial & Enforcement Use

• First CBI FIR under BNS Section 61(2) was launched in July 2024: two Delhi Police head constables were accused of conspiring to extort a ₹10 lakh bribe related to a Tihar Jail detainee
• A June 2025 FIR in Lucknow invoked Section 61(2) amidst allegations of extortion, defamation, threats, and conspiracy by journalists and a lawyer

3. 📚 Interpretation, Precedents & Comparisons

• BNS Section 61 retains the core structure of IPC Sections 120A & 120B, but adds emphasis on early intervention, including conspiracy even before an overt act is performed
• Landmark IPC conspiracy judgments (e.g., Kehar Singh, Ram Narayan Popli, Yakub Memon) remain applicable under BNS—they highlight reliance on circumstantial evidence and minimum involvement standards
• The BNS clarifies that no overt act is required if the agreement is to commit an offence—though if about legal acts via illegal means, some overt act is necessary

Conclusion

Criminal conspiracy is a complex but powerful legal tool to combat collective criminal designs. While proving such an offence is fraught with challenges due to its secretive nature, the Indian legal system has evolved robust principles—balancing prosecutorial effectiveness with constitutional safeguards. Courts must continue to apply these standards diligently, ensuring that the rights of the accused are protected while enabling justice for the victims of organised criminal conduct.

A successful prosecution of criminal conspiracy, therefore, hinges on meticulous investigation, careful presentation of circumstantial evidence, and a strict adherence to procedural safeguards laid down in law and interpreted by the judiciary.