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Things said, done, or written by one of the conspirators will be relevant against the others only if it was so done during the time of the common intention was afoot. If the thing was said, done or written in the past, i.e, before the common intention was first formed, it would not be relevant under this section. Similarly, if the thing is said, done or written by one of the members after the conspiracy is over; it would not be relevant under this section. In the case of Mirza Akbar v. King Emperor, (1940) 67 IA 336, the appellant (Mirza Akbar), wife off the deceased (Mst. Mehr Laqa) and a hired assassin (Umar Sher) were charged with conspiracy and murder. One of the items to prove conspiracy was a statement made by the wife before the examining Magistrate after she had been arrested and the same was made in the appellant’s absence. The issue was whether this statement, made after the conspiracy was over, to the Magistrate by the wife was admissible under this section. The Privy Council while declaring it as inadmissible since the statement related to the period when the common intention no longer existed observed.
“The words common intention signify common intention existing at the time when the thing was said, done, or written by the one of them. Things said, done or written while the conspiracy was afoot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But is would be a very different matter to hold that any narrative, or statement or confession made to a third party after the common intention or conspiracy was no longer operating, and had ceased to exist, it admissible against the other party. There is, then no common intention of the conspirators to which the statement can have reference. Section 10 embodies this principle.”
It must be borne in mind that the thing said, done or written by one person will be admissible against him and others in a conspiracy case only when that thing is said, done or written in reference to the common intention of the conspiracy. Anything said, done or written by a conspirator will not be admissible against him or others if it is not done in reference to the common intention of the conspiracy.
The word “intention” implies that the act intended is in the future and the section makes relevant statements by a conspirator with reference to the future. The words “in reference to their common intention” mean in reference to what at the time of statement was intended in the future. Narratives coming from the conspirators as to their past acts cannot be said to have a reference to their common intention. On this aspect of law is the case of Emperor v. Vaishampayan, (1931) ILR 55 Bom 839. This is also known as the Limington Road Shooting Conspiracy. On October 9, 1930, a police officer and his wife were wounded by revolver shots near the police station at Lamington Road in Bombay. These shots were fired by some persons who were in motor car which was standing on the opposite side of the road.
Evidence was sought to be given of a statement of an absconding accused to the approver, that the conspirator had shot a police-officer, that a pamphlet should be written and distributed to start a propaganda in furtherance of the objects of the conspiracy. It was held:
“Reading Sec. 10 it appears that narratives coming from the conspirators as to their past acts cannot be said to have a reference to their common intention. The word “intention” implies that the act intended is in the future and the section makes relevant statements made by a conspirator with reference to the future. I interpret the word ‘in reference to their common intention’ to mean in reference to what at the time of statement was intended in the future.”
But the statement about publishing a pamphlet would be relevant, because the statement furthers the object of the conspiracy. It says in effect. “Let us do this to achieve”
In R. v. Blake & Tye, (1844) 6 QB 126.
This was a case where Blake was an officer, employed in the customs house, and Tye, an agent of the importers. They made false entries in his daybook, to have some goods passed without paying full duty. These entries, and the counterfoil of his cheque book showing that money was paid to blake were tendered in evidence by the prosecution in a trial of the two accused for the offence of conspiracy to pass the goods without paying full duty. It was held that the (i) entries in the daybook were admissible against Blake, for they were necessary to exclude their common object; (ii) but the counterfoil was irrelevant, being a mere statement to show that the plunder had been shared after the object of the conspiracy had been achieved.
Badri Rai v. State of Bihar, 1959 SCJ 117
This was a case where the two accused met on the road a police inspector who was conducting an investigation against opne of them in a criminal case, and asked the inspector to hush up the case for valuable consideration. A few days later, the other accused met the inspector at the police station and offered a packet of Rs 500 saying that the accused, against whom investigation was pending, has sent the money for hushing up the case. The two accused were charged with the offence of conspiracy to bribe the police officer. The question that arose was whether the statement of one accused at the police station was relevant against the other. It was held that (i) the evidence of the conversation on the road showed that there were prima facie grounds for believing that the accused had entered into a conspiracy to commit the offence, and (ii) therefore, under section 10, the statement made by one of them, in execution of the conspiracy, would be relevant against the other.
- Hashim v. State of Tamil Nadu, 2005 SC
It was held that things said, done or written before the conspirator against whom the evidence is sought to be proved had entered the field of conspiracy or after he left it was clearly covered, inspite of the fact being related to the period prior to the commission of offence.