Law Optional (Joint and constructive liability) by Rajnish Jindal

Model Answer

Question #1. Explain possible parties to the crime. How do the liabilities of the parties vary?10 marks (150 words)

Ans. Parties to crime: The four parties to crime at early common law were principals in the first degree, principals in the second degree, accessories before the fact, and accessories after the fact.

These designations signified the following:

1. Principals in the first degree committed the crime.
2. Principals in the second degree were present at the crime scene and assisted in the crime’s commission.
3. Accessories before the fact were not present at the crime scene, but assisted in preparing for the crime’s commission.
4. Accessories after the fact helped a party to the crime avoid detection and escape prosecution or conviction.

In modern times, the parties to crime are principals and their accomplices, and accessories.

1. The criminal act element required for accomplice liability is aiding, abetting, or assisting in the commission of a crime. In many jurisdictions, words are enough to constitute the accomplice criminal act element, while mere presence at the scene without a legal duty to act is not enough.
2. The criminal intent element required for accomplice liability is either specific intent or purposely or general intent or knowingly.
3. The natural and probable consequences doctrine holds an accomplice criminally responsible if the crime the principal commits is foreseeable when the accomplice assists the principal.
4. The consequences of accomplice liability are that the accomplice is criminally responsible for the crimes the principal commits.
5. In many jurisdictions, an accomplice can be prosecuted for an offense even if the principal is not prosecuted or is tried and acquitted.

Classification of crimes for the purpose of determination of parties to Crime. They are:

1. Treasons
   • Felony
   • Misdemeanors

1. Treasons - No legal distinction between the various recognized modes of taking part in the commission of such offences.

• Slightest share in treason is regarded as heinous
• No activity in a misdemeanor is considered as heinous and no formal distinction between it and any less prominent mode of taking part in the offence
• All persons who are concerned in it in any way – whether by actually committing it or even by keeping near in order to assist while it is being committed or merely suggesting it are classed together

2. Felony - Notice will be taken of the gradations of participation in them. Four categories of guilty association with a felony:

A. Principal in the 1st degree - Actual offender: The person whose guilty mind is the latest blamable mental cause of the criminal act. In most of the cases the person who actually done the act.

Exceptions

• Doctor asking nurse to administer poisonous substance as drug to kill a patient
• Using child to commit felony
• Using animal to commit any felony

 B. More than one Principal of 1st degree

• • Dishonest servant who unlocks the door of master’s house to commit burglary with others
  • Father and mother for allowing a child’s death due to starvation
  • A man holds the victim and the other person cuts his throat

c. Principal in the 2nd degree (Aiders and Abettors) - The person who aided and abetted at the very time when the offence is committed.

• • Car owner sitting beside the driver who kills by over – fast driving
  • Bigamist second spouse
  • Receiver of stolen property

D. Accessories before the fact:

• • He knows the particular deed contemplated
  • He approved it
  • His views are expressed in such a form which encouraged the principal to perform the deed
  • The person is absent at the time when felony is committed
  • These things happened before the offence is committed
  • A person who procures, counsels, commands or abets the commission of offence

E. Accessories after the fact:

• • He knows that the felony has been committed
  • He shelters or relieves any felons
  • Enable him to elude justice
  • Supplies the felons the means to escape
  • Helps the felons to get out of the prison
  • Active assistance to felons is necessary
  • Wife’s immunity for helping husband who is a felony

3. Misdemeanors - A misdemeanor, a criminal offense that is less serious than a felony. It is generally punishable by a fine or incarceration in a local jail, or both.

Many jurisdictions separate misdemeanors into three classes:

• high or gross misdemeanors,
• ordinary misdemeanors, and
• petty misdemeanors.

Question #2. What do you mean by term Criminal Conspiracy? How is it punishable? Discuss differences between Criminal liability under section 34 IPC and criminal conspiracy under section 120A IPC.15 marks (250 words)

Ans. In the original I.P.C., the criminal conspiracy in the stictu sensu was absent. It existed only by way of abetment under section 107-clause secondly of the IPC. Subsequent to addition of Sec. 120-A & B in IPC vide 1913 amendment, the scope of criminal conspiracy has expanded and assumed the character of a substantive offence.

For the first time, the House of Lord in England evolved a new criminal jurisprudence in the form of criminal conspiracy in its judgment Mulcahy vs Regina, (1868) LR HL 306. Later on, Lord Brampton defined Criminal conspiracy in leading case of Quinn v. Leathem (1901) AC 495 (528). The aforesaid definition is also reflected under S. 120-A of the IPC and goes to state that when two or more persons agree to do or cause to be done an illegal act or an act which is not illegal by illegal means. It is further added by virtue of 'Proviso' in the section that except when the agreement is to commit an offence in order to constitute criminal conspiracy some act in addition to such agreement is also required to be done.

Punishability: Conspiracy is both a crime as well as a tort in India. Unlike just for a ground of damages, in order to be punishable the conspiracy has to satisfy the substantive ingredient of offence as provided under section 120 A of IPC. To govern its procedural aspect, there are also several other relevant provision. Section 10 of IEA act acknowledges that conspiracy is hatched in secrecy and thereby makes special rule to lead fact in evidence to prove the same. Likewise, section 196(2) of CrPc provides special procedure of obtaining sanction of the government when conspired offence is punishable with less than 2 year rigorous imprisonment because provision of conspiracy is prone to be misused to implicate even innocent person.

Recently, Hon'ble Apex court in Rajiv Kumar vs State of Uttar Pradesh (2017) 8 SCC 791 has highlighted the necessary constituent element of criminal conspiracy which are as under:

• There has to be an agreement to cause an illegal act or an act which is not illegal in itself by way of illegal means : So long as a design rests in intention only, howsoever horrendous it may be, it is not indictable because conspiracy consists not merely in the intention of two or more but in the agreement of two or more. The essence of the offence of conspiracy is the meeting of minds and such combination or association is itself the gist of the offence. So, it is the unlawful agreement which is the gravemen of the crime of conspiracy.

Since, the offence of criminal conspiracy has its foundation in an agreement to commit an illegal act or a legal act by illegal means. Section 43 of IPC defines expression 'illegal' to cover everything which is an offence or which is prohibited by law or which furnishes ground for a civil action. Such unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. It is also not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage.

The crux of the aforementioned law has been nicely summed up by Hon'ble Apex Court in Esher Singh vs State of Andhra Pradesh (2004) 11 SCC 585 is that when two or more person agree to carry out an illegal act or a legal act by illegal means into effect, then the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, is punishable.

• The agreement must be between two or more natural persons: It is an established rule of the law of conspiracy that there should be at least two persons. The Hon'ble Apex court in Topandas vs The State Of Bombay AIR 1956 SC 33 held that it is a principle of common sense that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself. But, Hon'ble Apex court has also visualized the possibility in Bimbadhar Pradhan vs The State Of Orissa AIR 1956 SC 469 when a person may be indicted alone for conspiring with persons who are unknown, dead, uncaught, incapable of committing the crime or immune or have been pardoned.
• If such agreement is to commit offence then it is ipso facto sufficient to constitute criminal conspiracy and in all other cases an act besides agreement is also needed: The 'Proviso' attached to the section 120 A of the act draws distinction between an agreement to commit offence and all other agreement such as an act forbidden by law etc. While in the former case agreement on its own constitutes the criminal conspiracy but in the latter cases an overt act needs to be done in pursuance of the conspiracy to complete the criminal conspiracy. The Hon'ble apex court also held in State vs Nalini (1999) 5 SCC 253 (Rajiv Gandhi Assassination case) that when agreement is to do a legal act by illegal means then an overt act is necessary to constitute crime of conspiracy.

Difference: Both section 34 of IPC and section 120-A of IPC aim to discourage the group offender. But, they differ as under:

1. Section 34 of IPC incorporates a rule of evidence and does not constitute any offence on its own. So, the charge under section 34 of IPC should be along with some other substantive offence, i.e. 323/34 of IPC. Whereas, section 120 A of IPC creates a substantive and independent offence i.e. 120 B of IPC.
2. Under section 34 of IPC, the essence of offence is common intention by two or more persons. Whereas, under section 120 A of IPC, it is an agreement to commit an offence etc by two or more persons which is gravemen of offence.
3. Section 34 of IPC is applicable when some criminal act is done in furtherance of common intention of all. Whereas, under section 120A of IPC mere an agreement to commit an offence is per se punishable without any need of overt or covert act.
4. Under section 34 of IPC, the offender has to be physically present at the scene of crime or at such distant place from where he can participate in some way in the offence including just keeping watch by binocular. But, under section 120 A of IPC a person even far away from the place of offence and doing nothing at the time of offence can be made liable for criminal conspiracy if he was privy to the agreement to commit an offence.