Things Said or Done by Conspirators under Section 8 of the Bharatiya Sakshya Adhiniyam, 2023: Evidence in Cases of Criminal Conspiracy

Section 8 is the most far-reaching provision in the relevancy chapter. It permits the acts, words and writings of one person to be used as evidence against another who was not present, may never have met him, and may not have joined the enterprise when the act was done. It is a deliberate and closely guarded departure from the principle that a transaction between others ought not to prejudice a person who was no party to it, and it rests on the idea that conspirators act as agents of one another.

1. The Provision

Section 8, BSA — Things said or done by conspirator in reference to common design

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.

Section 8 corresponds to Section 10 of the Indian Evidence Act and is carried forward without material change. The marginal note has been simplified from 'Things said or done by conspirator in reference to common design', which is retained.

1.1 The Illustration

The single Illustration is unusually elaborate, and it is the best guide to the width of the section. Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India. The following facts are each relevant, both to prove the existence of the conspiracy and to prove A's complicity in it:

that B procured arms in Europe for the purpose of the conspiracy;
that C collected money at one place for a like object;
that D persuaded persons to join the conspiracy at another place;
that E published writings advocating the object in view at a third place;
that F transmitted from one city to G in another the money which C had collected; and
the contents of a letter written by H giving an account of the conspiracy.

Each of these is relevant against A although he may have been ignorant of all of them, 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. No other provision in the Adhiniyam reaches so far.

2. The Principle Underlying the Section

The justification for the section is the law of agency. Persons who agree to pursue a common unlawful object are treated as having appointed one another to act on behalf of all, within the scope of that object. What one does in pursuit of the common design he does as agent for the rest, and it is therefore evidence against all of them. Section 8 is the evidentiary counterpart of the substantive rule that each conspirator is liable for acts done in pursuance of the conspiracy.

General rule	Section 8
Res inter alios acta alteri nocere non debet — a transaction between others ought not to prejudice a person who was no party to it	Displaced, because conspirators are treated as agents of one another
A statement made out of court by a person who is not a witness is hearsay and inadmissible	Displaced, because the statement of one conspirator in reference to the common intention is receivable against all
The confession of a co-accused is not substantive evidence and cannot found a conviction — Section 24	Section 8 operates on a different footing: what is admitted is not a confession but an act, word or writing done in the course of the conspiracy
A person is not affected by what occurred before he became involved	Displaced, expressly, by the words of the Illustration

3. The Essentials

Requirement	What it means	Why it matters
1. Reasonable ground to believe a conspiracy exists	There must be independent material, apart from the statement sought to be proved, giving reasonable ground to believe that two or more persons conspired	This is the condition precedent. The section cannot be used to prove the conspiracy from the statement, and then the statement from the conspiracy
2. Two or more persons	A conspiracy requires a plurality of persons; a single person cannot conspire with himself	Where all but one of the alleged conspirators are acquitted, the basis of the section falls away
3. To commit an offence or an actionable wrong	The object must be either an offence, or a civil wrong for which an action lies	The section applies to civil as well as criminal proceedings
4. Anything said, done or written	Acts, oral statements and documents alike	Wider than the English rule, which is largely confined to acts and to statements in furtherance of the design
5. In reference to their common intention	The act or statement must relate to the common design and not be an independent utterance	This is the principal limitation and the ground on which most material is excluded
6. After the intention was first entertained by any one of them	The material must be from the period after the conspiracy came into existence	Anything from before that moment is outside the section, though it may be relevant under Sections 5 or 6

📖 Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682

Held: The Supreme Court set out the conditions for the application of Section 10 of the Indian Evidence Act. There must be reasonable ground to believe that two or more persons conspired to commit an offence or an actionable wrong; once that condition is satisfied, anything said, done or written by any one of them in reference to their common intention is admissible against the others; the words 'in reference to their common intention' are very comprehensive and appear to have been designedly used to give the section a wider scope than the corresponding English rule; and the material must relate to the period after the intention was first entertained. The evidence is admissible both to prove the existence of the conspiracy and to show that a particular person was a party to it.

Ratio: The leading Indian statement of the conditions governing the section, and the authority for the proposition that 'in reference to' is wider than 'in furtherance of'.

📖 Sardul Singh Caveeshar v. State of Bombay, AIR 1957 SC 747

Held: The principle underlying the reception of evidence under Section 10 against a co-conspirator is the theory of agency. Every conspirator is an agent of his associates in carrying out the object of the conspiracy. The section is founded on that principle and must be applied within its limits.

Ratio: Agency is the rationale of the section, and the scope of what is admissible is measured by the scope of that agency.

4. The Condition Precedent — Reasonable Ground to Believe

The opening words of Section 8 are not decorative. Before any material can be received under the section, the court must be satisfied that there is reasonable ground to believe that a conspiracy existed, and that belief must rest on evidence aliunde — evidence other than the statement or act sought to be admitted.

Question	Position
What standard applies at this stage?	Reasonable ground to believe. This is lower than proof beyond reasonable doubt, and does not require the conspiracy to be established before the evidence is received
Can the statement itself supply the reasonable ground?	No. That would be circular. There must be independent material — the acts of the parties, their association, recovered documents, financial transactions, or other circumstances
When is the question decided?	The court may admit the evidence subject to proof of the foundational material, and assess it at the conclusion of the trial. Where the reasonable ground is not made out, the material admitted under Section 8 must be excluded from consideration
What if the conspiracy is not ultimately established?	The material admitted under Section 8 cannot be used against a co-conspirator, since the foundation for the agency has failed

⚠ The order in which a conspiracy case is built

A prosecution under Section 8 proceeds in a fixed order. Independent material is first led to establish reasonable ground to believe that a conspiracy existed and that the accused was a party to it. Only then does the material within Section 8 become receivable. A case which begins with the statement of a co-conspirator and works backwards to the conspiracy inverts the statutory scheme, and the courts have consistently refused to permit it.

5. 'In Reference to Their Common Intention'

This phrase is both the source of the section's width and its principal limitation. It has been treated as wider than the English requirement that the statement be made 'in furtherance of' the conspiracy, so that a statement need not itself advance the design provided it relates to it. But it does not extend to everything a conspirator happens to say once a conspiracy is afoot.

Material	Within Section 8?	Reason
Letters between conspirators arranging the plan	Yes	Written in reference to the common intention
An entry in a conspirator's diary recording the arrangements	Yes	A writing in reference to the common intention
A statement by one conspirator to a third party describing what is to be done	Yes	The recipient need not be a conspirator — the statement still relates to the common design
Acts of collection of money, procurement of arms, recruitment of members	Yes	Acts done in reference to the common intention
A confession made to the police after arrest, implicating the others	No	The conspiracy has ended; the statement is a narrative of a past design, not an act in reference to it
A statement made by a conspirator to explain or justify his conduct after detection	No	Made after the common intention had ceased to operate
A statement about a matter unconnected with the design	No	Not in reference to the common intention
Anything said or done before the intention was first entertained	No	Outside the temporal limit, though it may be relevant under Sections 5 or 6

📖 Mirza Akbar v. King Emperor, AIR 1940 PC 176

Facts: A statement made by one alleged conspirator to a Magistrate after the arrest, narrating the conspiracy and implicating the others, was relied upon at the trial.

Held: The Privy Council held the statement inadmissible. Section 10 must be construed in accordance with the principle that the acts and statements of one conspirator are admissible against another only where they are done or made while the conspiracy is on foot and in carrying out the common purpose. Where the common intention no longer exists, a narrative statement about the past conspiracy is not receivable. The words 'in reference to their common intention' do not extend to a statement made after the conspiracy has ended.

Ratio: The leading authority on the temporal limit of the section. Section 8 admits material generated during the conspiracy, not accounts of it given afterwards.

📖 Badri Rai v. State of Bihar, AIR 1958 SC 953

Held: A statement made by one of the conspirators to a third person, who was not a conspirator, in reference to the common intention, was held admissible under Section 10 against the other conspirator. The section does not require that the statement be made to a fellow conspirator; what matters is that it was made in reference to the common design while the conspiracy was on foot.

Ratio: The identity of the person addressed is immaterial; the connection with the common intention is what governs.

6. Section 8 and the Substantive Law of Conspiracy

Section 8 is a rule of evidence. The offence itself is created by the substantive law, and the two must not be confused.

	Substantive law	Law of evidence
Provision	Section 61, Bharatiya Nyaya Sanhita, 2023, which defines criminal conspiracy and provides for its punishment, corresponding to Sections 120A and 120B of the Indian Penal Code, 1860	Section 8, BSA
What it does	Makes the agreement itself an offence, and fixes liability	Determines what material may be used to prove the conspiracy and a person's participation in it
What must be shown	An agreement between two or more persons to do, or cause to be done, an illegal act, or a legal act by illegal means; and, for offences below a specified threshold, an overt act in pursuance of the agreement	Reasonable ground to believe that such an agreement existed, before the material becomes receivable
Standard	Proof beyond reasonable doubt	Reasonable ground to believe, at the threshold stage

📖 Kehar Singh v. State (Delhi Administration), (1988) 3 SCC 609

Held: A conspiracy is hatched in secrecy and executed in darkness, and it is rarely possible to establish it by direct evidence. The prosecution ordinarily relies on circumstantial evidence, and the existence of the agreement must be inferred from the conduct of the parties and the circumstances. The Court reiterated that the material admissible under Section 10 of the Indian Evidence Act is confined to what was said, done or written in reference to the common intention while the conspiracy subsisted.

Ratio: Conspiracy is ordinarily proved by inference from conduct and circumstances, and Section 8 supplies the evidentiary mechanism within its stated limits.

📖 State of Tamil Nadu v. Nalini, (1999) 5 SCC 253

Held: The Court examined the scope of Section 10 at length. The most important ingredient is that of reasonable ground to believe that the conspirators have conspired together, and this must appear from evidence independent of the statement sought to be admitted. Once that is established, anything said, done or written by any of them in reference to the common intention is receivable against all, whether or not they were present or aware of it. The Court cautioned that mere knowledge, discussion, or even approval of a plan does not by itself make a person a conspirator; there must be an agreement to which he is a party.

Ratio: The condition precedent must rest on independent material, and participation in the agreement, not mere association or knowledge, is what attracts the section.

7. Section 8 Distinguished from Section 24

Both provisions permit material emanating from one accused to bear upon another, and they are frequently confused. Their scope, effect and evidentiary status are entirely different.

	Section 8 — conspirator	Section 24 — confession of a co-accused
What is admitted	Anything said, done or written in reference to the common intention	A confession made by one of several persons tried jointly for the same offence
When	While the conspiracy is on foot, after the intention was first entertained	At any time; ordinarily after the offence and after detection
Condition precedent	Reasonable ground to believe a conspiracy existed, on independent material	A joint trial of more persons than one for the same offence, and a confession affecting the maker and the others
Evidentiary status	Substantive evidence of the existence of the conspiracy and of participation in it	Not substantive. The court may take it into consideration, but it cannot found a conviction
Requires a conspiracy	Yes, by definition	No; it applies to any joint trial for the same offence
Leading authority	Mirza Akbar; Bhagwan Swarup	Kashmira Singh v. State of M.P., AIR 1952 SC 159

⚠ Why the distinction is decisive

A statement by an arrested conspirator narrating the plan and naming his associates falls outside Section 8, because the conspiracy has ended. It may fall within Section 24 if the makers are tried jointly for the same offence. But Section 24 gives it only the status of material the court may take into consideration after the case is otherwise established. The practical result is that a post-arrest statement can never be the foundation of a conspiracy case, whichever provision is invoked.

8. Practical Working of a Conspiracy Case

Step	What must be established	Provision
1	Independent material giving reasonable ground to believe that two or more persons agreed to commit an offence or actionable wrong	Section 8, opening words; Sections 5 and 6 supply much of this material
2	That the accused was a party to that agreement, and not merely aware of or associated with the persons concerned	Section 8; Nalini
3	That the material sought to be used was said, done or written after the intention was first entertained and while the conspiracy subsisted	Section 8; Mirza Akbar
4	That it was in reference to the common intention	Section 8; Bhagwan Swarup
5	That the whole of the material, taken together, establishes the agreement and the participation of the accused beyond reasonable doubt	The standard applicable to circumstantial evidence; Sharad Birdhichand Sarda

9. Related Topics and Provisions

Topic or provision	Connection
Facts in Issue and Relevant Facts — Section 3	The gateway provision, and the principle of res inter alios acta that Section 8 displaces
Motive, Preparation and Conduct — Section 6	Acts of preparation and conduct by which the foundational material is ordinarily built
Direct Evidence vs Circumstantial Evidence	Conspiracy is almost always established by inference from circumstances
Section 24, BSA	Confession of a co-accused in a joint trial, and its Explanation on absconding accused
Sections 15 to 23, BSA	Admissions and confessions, the alternative routes for statements outside Section 8
Section 61, Bharatiya Nyaya Sanhita, 2023	Criminal conspiracy — the substantive offence
Section 12, BSA	Facts showing the existence of a state of mind, including common intention