Conspiracy & Alibi: Section 10, 11 & 13 Evidence Act/BSA

Section 10 — Proof of Conspiracy; Section 11 — Facts Not Otherwise Relevant; Section 13 — Rights and Customs

Part I: Conspiracy Under Section 10 of the Evidence Act and Section 8 of the BSA, 2023

What Is Conspiracy?

The word "conspiracy" carries with it an air of secrecy and danger, and the law has always recognised that crimes hatched in darkness require special evidentiary tools to prosecute. Section 10 of the Indian Evidence Act, 1872 — now reproduced as Section 8 of the Bharatiya Sakshya Adhiniyam, 2023 — addresses this need directly.

Section 10 provides: "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 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."

A conspiracy, at its core, is an agreement between two or more persons to commit an offence or an actionable wrong — meaning an offence under the Indian Penal Code or any other criminal law, or a tort. As classically defined by Lord Denman in R v Jones (1832) 4 B&Ad 345 — "conspiracy is an agreement to do an unlawful act or a lawful act by unlawful means" — the essence of conspiracy is not the commission of the crime itself, but the agreement to commit it. This is why conspiracy is called an inchoate offence: the crime is complete the moment the agreement is made. Brett, J, said in R v Aspinall (1876) 2 QBD 48: "It is not necessary in order to complete the offence that any one thing should be done beyond the agreement. The conspirators may repent and stop... Nevertheless, the crime is complete."

Under Indian law, Section 120A of the Indian Penal Code, 1860 defines criminal conspiracy as an agreement between two or more persons to do an illegal act or a lawful act by illegal means. A mere agreement to commit an offence is by itself the crime of criminal conspiracy — no overt act is required. However, under the proviso to Section 120A, if the conspiracy is to commit a tort (an actionable wrong), some overt act in pursuance of the agreement is additionally necessary.

The critical relationship between Section 10 of the Evidence Act and Section 120A of the IPC is this: Section 120A deals with the first stage — the agreement constituting criminal conspiracy as a substantive offence. Section 10 deals with the second stage — it makes relevant the acts, statements, and writings of each conspirator in proof of the resultant offence committed in furtherance of the common intention. The section is, in the words of the Supreme Court in State of Delhi v. Navjot Sandhu (AIR 2005 SC 3820), a recognition that each conspirator, by virtue of the prior agreement, constitutes every other conspirator his agent — and whatever an agent does within the scope of his authority binds his principal.

The underlying rationale, as explained in Badri Rai v. State of Bihar (AIR 1958 SC 953), is that since a conspiracy is hatched in secrecy and executed in darkness, it is not feasible for the prosecution to connect each isolated act or statement of one accused with the acts of the others unless there is a common bond linking them together. Section 10 provides that common bond by making the entire body of evidence — acts, statements, and writings of each conspirator — available as evidence against all.

The Conditions for Invoking Section 10

Three conditions must be satisfied before Section 10 can be invoked:

First, there must be reasonable ground to believe that two or more persons have conspired together. This is a threshold condition — it does not require proof beyond reasonable doubt at the pre-trial or opening stage but requires some prima facie material from which the existence of a conspiracy can be inferred. As the Calcutta High Court held in Barindra Kumar Ghose v. Emperor (1909) 37 Cal 467, the agreement to conspire may be inferred from circumstances which raise a presumption of a concerted plan. In Kehar Singh v. State of Delhi (AIR 1988 SC 1883), the Supreme Court held that even the fact of two accused persons being seen in whispered conversation and avoiding questions about it was sufficient to create reasonable ground to believe a conspiracy.

Second, what is sought to be proved must be something said, done, or written in reference to their common intention. This phrase is very comprehensive. The act or statement need not be explicitly referable to the conspiracy — it is enough if it is connected with the common intention. Thus, procuring arms in another country, collecting funds, distributing pamphlets, persuading persons to join — all are acts done "in reference to the common intention," even if each conspirator was performing his task independently without personal knowledge of what the others were doing.

Third, the act, statement, or writing must have been made after the time when the common intention was first entertained by any one of them. This marks the temporal commencement of the section's operation. Crucially, the section is not limited to acts done while the conspiracy was actively on foot in the direct sense — it expressly covers acts done even before a particular conspirator joined the conspiracy or after he left it. This is the sweeping reach of the section, and its illustration makes this stark.

The Illustration to Section 10 — A Case Study

The illustration to Section 10 (substantially retained in the illustration to Section 8 of the BSA) is a veritable classroom in itself. Reasonable ground exists for believing that A has joined a conspiracy to wage war against the State. The following facts are each relevant, both to prove the conspiracy and to prove A's complicity:

B procured arms in Europe for the purpose of the conspiracy
C collected money in Calcutta / Kolkata for a like object
D persuaded persons to join the conspiracy in Bombay / Mumbai
E published writings advocating the object at Agra
F transmitted from Delhi to G at Kabul / Singapore money collected by C
H wrote a letter giving an account of the conspiracy

All these acts are relevant as against A — although he may have been ignorant of all of them, and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it. This is the extraordinary reach of Section 10 — it builds a ring of constructive liability around every conspirator that extends across time, geography, and personal knowledge.

Temporal Limits: Commencement and Termination

Section 10 begins operating from the moment the common intention was first entertained by any one of them — not when at least two have agreed. This creates a further widening: suppose A first entertains the idea of waging war on 1 January 2010 and commits some acts alone; B joins on 1 April 2010 — the conspiracy formally commences then, but B's liability under Section 10 stretches back to cover A's acts of 1 January 2010.

On the other end, what happens when a conspirator withdraws? The illustration explicitly says a conspirator remains liable for acts committed by others even after he left the conspiracy. This was elaborated in S. Swamirathnam v. State of Madras (AIR 1957 SC 340), where the Supreme Court held that there can be a single conspiracy spread over several years, that several persons could join or leave during its course, and that the fact that several acts could be committed by some without the knowledge of others does not split the conspiracy into several conspiracies.

However, there is a critical limitation on the temporal front: a statement made after the conspiracy has come to an end — by arrest, completion of the object, or otherwise — is not covered by Section 10. The Privy Council held in Mirza Akbar v. Emperor (AIR 1940 PC 760): "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, is not admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference." In the Mumbai terror attack case — Mohd. Ajmal Amir Kasab v. State of Maharashtra (AIR 2012 SC 3565) — the Supreme Court held that the transcripts of phone conversations between the terrorists and their foreign collaborators were fully covered by Section 10, because those transcripts were made when the speakers were not only free but were actively involved in fulfilling the objects of their conspiracy.

When Acts of One Conspirator Are Used Against Others

From the above, the conditions that must all be met for the acts, statements, and writings of one conspirator to be used against the others under Section 10 are:

There must be reasonable ground to believe a conspiracy exists and that the person against whom evidence is sought is a party to it.
The act, statement, or writing must be by a person who was, at the relevant time, a party to the conspiracy.
It must have been said, done, or written in reference to the common intention — not a purely personal or collateral matter.
It must have occurred after the common intention was first entertained by any one of the conspirators.
The conspiracy must still be on foot at the time — not terminated.

A confession made to a Magistrate after arrest is not covered by Section 10 because it is made after the conspiracy has been disrupted. Such a confession can be used only under Section 30 of the Evidence Act (Section 24 of the BSA) as a confession in a joint trial, which has its own and more restrictive conditions. The distinction is important: under Section 30, only a confession (an admission of guilt) can be used against a co-accused in a joint trial. Under Section 10, any act, statement, or writing — not necessarily a confession — is admissible, as long as it satisfies the conditions of the section.

Part II: When Facts Not Otherwise Relevant Become Relevant — Section 11 and the Plea of Alibi

The General Principle

Section 11 of the Indian Evidence Act, 1872 — now Section 9 of the Bharatiya Sakshya Adhiniyam, 2023 — deals with a class of facts that would, standing alone, have no connection with the case at all, but acquire legal significance because of the logical relationship they bear to the facts in issue or relevant facts. The section provides that facts not otherwise relevant are relevant if:

They are inconsistent with any fact in issue or relevant fact (clause 1), or
They make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable (clause 2).

The principle on which this section rests is not obscure. The law of evidence is ultimately a system for reconstructing past events. Any fact that logically makes it more or less likely that a particular event occurred is valuable to that reconstruction. Section 11 captures two residual but important classes of such facts — facts that create logical inconsistency with what is alleged, and facts that, while not conclusive, significantly alter the probabilities.

As stated authoritatively in Khaver Sultan v. Rukha Sultan (1904) 6 Bom LR 983: "In order that a collateral fact may be admissible as relevant under this section there are two requirements — that the collateral fact must itself be established by reasonably conclusive evidence and that it must, when established, afford a reasonable presumption or inference as to the matter in dispute."

Clause 1: The Plea of Alibi

The most important and most frequently litigated application of Section 11, clause 1, is the plea of alibi — the defence that the accused was not at the place where the crime was committed at the time when it was committed. The word "alibi" is Latin for "elsewhere" — it is the assertion that the accused was somewhere else.

This plea does not, on its face, seem to relate to the facts in issue at all. Whether A was in Ladakh on the day the alleged crime was committed in Chennai is not itself a fact in issue, nor a relevant fact as such. But it becomes relevant under Section 11 because A's presence in Ladakh is inconsistent with his presence in Chennai, and the crime, if committed in Chennai, could only have been committed by a person present in Chennai at that time. This is the principle of essential inconsistency: a certain fact cannot co-exist with the doing of the act in question, and therefore, if that fact is proved true, the commission of the act becomes logically impossible.

Illustration (a) to Section 11 (reproduced as Illustration (a) to Section 9 of the BSA) makes this explicit: "The question is, whether A committed a crime at Chennai on a certain day. The fact that, on that day, A was at Ladakh is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant."

The illustration reveals a graduated scale: mere distance from the scene at approximately the relevant time renders commission highly improbable, while presence in a far-off place at the precise time renders it logically impossible. Both are relevant — the former under clause 2 (high improbability) and the latter under clause 1 (essential inconsistency).

Illustration (b) takes a different perspective: "The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else, and that it was not committed by either B, C or D, is relevant." This captures a situation where the field of suspects is small and the elimination of others tends to establish A's guilt.

The Burden of Proving Alibi

The law has always placed the burden of establishing the plea of alibi on the accused, because it is the accused who asserts a special fact within his personal knowledge. Section 103 of the Evidence Act (Section 106 of the BSA) provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. In Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220, the Supreme Court held that "the plea of alibi must be proved by cogent and satisfactory evidence completely excluding the possibility of the presence of the accused at the scene of occurrence at the relevant time." A belated and vague plea of alibi is easily dismissed as an afterthought, as the court did in that very case.

The plea of alibi must be weighed against the positive prosecution evidence — not only the testimony of eyewitnesses and the dying declarations, but also scientific evidence such as DNA analysis, fingerprint analysis, and bite mark analysis, the accuracy of which is scientifically acclaimed. In the Nirbhaya case — Mukesh v. State for NCT of Delhi (AIR 2017 SC 2161) — the court held that the alibi must be tested against the totality of all prosecution material.

The courts have repeatedly emphasised that where the prosecution establishes the presence of the accused at the scene of the offence by reliable and cogent evidence, the court will be slow to accept a plea of alibi set up by the accused. Rajesh Kumar v. Dharamvir (AIR 1997 SC 3769) is instructive — the accused claimed to have visited an advocate at the time the offence was committed, but no contemporaneous document was produced, and the plea was rejected as an afterthought.

Clause 2: High Probability or Improbability

The second category under Section 11 admits of a wider range of collateral facts — those which, by themselves or in connection with other facts, make the existence or non-existence of a fact in issue highly probable or improbable. This does not require that the collateral fact conclusively establishes the matter; it is enough if it significantly tilts the balance of probability. A document that acknowledges the existence of an adjacent plot of land was held in Kantilal v. Shanti Devi (AIR 1997 Raj 230) to be admissible under Section 11 as making the existence of the plot highly probable, being relevant under both Section 11 and Section 13(a). Previous admissions in former suits, inconsistent conduct, and circumstantial evidence from which a party's knowledge of a fact can be inferred all fall within this residual category.

Part III: Facts Relevant When the Question Is as to the Existence of Any Right or Custom — Section 13 / Section 11 of BSA

The Provision

Section 13 of the Indian Evidence Act, 1872 — now Section 11 of the Bharatiya Sakshya Adhiniyam, 2023 — addresses a particular evidentiary challenge: how does a court ascertain whether a right or a custom exists, when by their very nature such rights and customs are not created by a single document or a single act, but grow through repeated assertion, recognition, and exercise over time? The section provides that when the question is as to the existence of any right or custom, the following facts are relevant:

(a) Any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted, or denied, or which was inconsistent with its existence.

(b) Particular instances in which the right or custom was claimed, recognised, or exercised, or in which its exercise was disputed, asserted, or departed from.

The corresponding provision in the BSA, 2023 is Section 11, which is identical to Section 13 of the Evidence Act — there is no change whatsoever in the text. The section has been carried forward as it is.

The Philosophy of the Section

The section is animated by a recognition that rights — particularly private rights — and customs do not spring into existence at a single moment. They are living legal phenomena, created, asserted, modified, and contested through the transactions of life. As Beaman, J, observed in Mahamad v. Hasan (1906) 31 Bom 143: "The cases this section is intended to meet are those in which the right or custom in question is regarded as capable of surviving repeated instances of its assertion and denial, where transactions may be supposed to have gone on modifying, asserting, denying, creating, recognizing it, or being inconsistent with its existence, leaving it, after all that has been given in evidence, fair matter for judicial consideration."

The term "right" in the section is wide. The Supreme Court in Salekh Chand v. Satya Gupta (2008) 13 SCC 119 confirmed that the term "comprehends every right known to the law" — it is not confined to public rights but covers private rights also. A right of fishery, a right of way, a right to perform a puja at a particular temple, a right of inheritance under customary law, a right to draw water from a well — all fall within the section's ambit.

The term "custom" has its own legal standard. Beaman, J's formulation, approved and followed by the Supreme Court, is that a custom must be ancient, continuous and uniform, reasonable, certain, compulsory, peaceable, and not immoral. The English rule that a custom must be proved from time immemorial is not strictly applied in India. The Privy Council in Subhani v. Nawab (AIR 1941 PC 21) held: "Having regard to the circumstances under which local customs have arisen in India... it would create great perplexity to require that in every case the antiquity of a custom must be carried back to a period beyond the memory of man." What must be established is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule.

The Illustration to Section 13 — A Concrete Example

The illustration to Section 13 is luminous in its practical guidance:

"The question is, whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father irreconcilable with the mortgage, particular instances in which A's father exercised the right, or in which the exercise of the right was stopped by A's neighbours, are relevant facts."

From this illustration, one can draw out the full sweep of the section:

The original deed conferring the fishery on A's ancestors — this is a transaction by which the right was created.
The mortgage of the fishery by A's father — this is a transaction by which the right was asserted (a mortgagor can only mortgage what he has a right to).
The subsequent grant irreconcilable with the mortgage — this is a transaction inconsistent with the existence of the right in its full form, potentially showing a modification.
Particular instances in which A's father exercised the right — clause (b): instances of exercise.
Instances where exercise was stopped by A's neighbours — clause (b): instances where the right was disputed.

All of these are relevant. The court must weigh them together and arrive at a determination of whether the right exists.

Transaction Under Section 13

The word "transaction" in Section 13 is not confined to dealings inter vivos — it includes testamentary dealings with property. Chandrakant v. Sharatchandra confirmed that any business or dealing carried on between two or more persons, including a grant, a deed, a mortgage, or a bequest relating to the right in question, falls within the term.

Clause (b): Particular Instances

Clause (b) is the especially rich part of the section. It admits:

Instances in which the right was claimed — assertions by the party claiming the right, made openly and within the knowledge of those who would be affected.
Instances in which the right was recognised — acknowledgment by others, including adversaries.
Instances in which the right was exercised — acts done pursuant to the right.
Instances in which the exercise was disputed — challenges to the right by others.
Instances in which the exercise was asserted — reaffirmations of the right in response to challenges.
Instances in which the exercise was departed from — temporary non-exercise, which is relevant to show the court that the right is not absolute or perhaps has been waived or abandoned.

Important Example: Suppose the question is whether the villagers of village X have a customary right to a road passing through the land of a zamindar. The following facts would all be relevant under Section 13(b): a record in the village accounts showing annual repair of the road by the village, instances of market goers using the road openly, an action by the zamindar to block the road (disputed), a subsequent order by the revenue officer directing it to be reopened (recognised), and a decade-long gap during which it was disused (departed from). The court must assess all these together.

The Burden of Proving a Custom

It is a cardinal rule that the burden of proving a custom lies upon the party setting it up. Saraswathi Ammal v. Jagadambal (AIR 1953 SC 201) laid down that it is incumbent on a party setting up a custom to allege and prove the custom upon which he relies. The court further held that a custom cannot be extended by analogy and cannot be established by a priori methods. It must be proved by its actual practice — and the evidence of acts of the kind, acquiescence in those acts, their publicity, decisions of courts or even panchayats upholding such acts, and statements of experienced persons of their belief that such acts were legal are all admissible. However, while such evidence is admissible, it is of little weight if unsupported by actual examples of the usage asserted in practice.

Where a property and its income have been treated in a particular manner over long years, that treatment has been held relevant under Section 13 to determine whether the property is secular or religious, as the Calcutta High Court held in Phani Bhusan v. Kenaram Bhuniya (AIR 1980 Cal 255). The right to perform Kali puja at a temple can be established by showing that it was ancient, reasonable, and exercised openly and peaceably — it is not necessary to prove its exercise since time immemorial, as held in Purna Chandra v. Durlav Chandra (AIR 1980 Cal 10). What the section requires is patient accumulation of instances — a mosaic of transactions, exercises, disputes, and recognitions — from which the court can form a judicial conclusion about the existence of the right or custom as a living rule of law.