DEMYSTIFYING COMMONLY CONFUSED PROVISIONS OF THE INDIAN PENAL CODE, 1860

Common Intention (Sec. 34, IPC), Abetment (Sec. 107, IPC), and Criminal Conspiracy (Sec. 120A, IPC) are oft-quoted provisions of IPC, yet the line defining their distinction is a mystery. The partition, which divides their bonds, is very thin; nevertheless, the distinction is real and substantial and, if overlooked, will result in the miscarriage of justice because the punishment for each of these offences may vary.

Criminal Conspiracy is an agreement to do an illegal act or legal act through illegal means. A mere discussion does not amount to an agreement; there must be a consensus between the parties to the conspiracy. In order to reach this consensus, it is a pre-requisite that the conspirators must have knowledge about the illegal act or the illegal means through which the legal act is to be performed.

The Hon’ble Supreme Court of India in Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469, has observed as followed:

“… the offence of criminal conspiracy consists in the very agreement between two or more persons to commit a criminal offence irrespective of the further consideration whether or not those offences have actually been committed. The very fact of the conspiracy constitutes the offence and it is immaterial whether anything has been done in pursuance of the unlawful agreement.”

Therefore, the agreement alone without any overt act is sufficient to constitute the offence of Criminal Conspiracy. On the other hand, overt act in furtherance of the agreement is one of the essential ingredients to constitute the offences of Abetment and Common Intention. Further, the distinguishing factor between Abetment and Common Intention is the time at which the act is performed. If the overt act is committed at the time of the commission of crime i.e., at the scene of the crime, then the person will be prosecuted for Common Intention under Sec. 34, IPC. On the other hand, if the overt act is committed at the preparatory stage or otherwise barring scene of crime then it will amount to Abetment. The Supreme Court has clarified this position in the case of Shreekantiah Ramayya Munipalli v. State of Bombay, (1955) 1 SCR 1177, wherein it held as follows:

“The antithesis is between the preliminary stages, the agreement, the preparation, the planning, which is covered by section 109, and the stage of commission when the plans are put into effect and carried out. Section 34 is concerned with the latter. It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act.”

To summarise, Criminal Conspiracy is an agreement to commit an illegal act or legal act through illegal means, and no overt act is necessary to constitute a criminal conspiracy. In the case of Common Intention, an overt act in furtherance of the agreement at the scene of crime is necessary. However, in the case of Abetment, an overt act is mandatory, but not at the scene of crime.