Things Said or Done by Conspirator (Section 8 BSA)

Section 8 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — re-enacting Section 10 of the Indian Evidence Act, 1872 (IEA) — admits as relevant against each conspirator anything said, done or written by any one conspirator in reference to the common intention of all, after the time when such intention was first entertained by any one of them. The provision is short, but it is one of the most heavily litigated in Indian criminal evidence, because criminal conspiracy is rarely capable of direct proof and almost always has to be inferred from the things said and done by its members.

The section is the statutory anchor of the partnership theory of conspiracy: each conspirator is treated as the agent of the others for the purpose of the common design, and the act or statement of one is therefore receivable in evidence against all. The Supreme Court in Sardul Singh Caveeshar v. State of Bombay, AIR 1957 SC 747, treated the rule as flowing from the agency of partnership, and that has been the conceptual foundation of every subsequent decision under the section.

Concept — the partnership theory of conspiracy

The principle underlying the reception of evidence of the statements, acts and writings of one co-conspirator as against another is the theory of partnership and agency. When two or more persons agree to commit an offence, they enter into a relationship in which each becomes the agent of the other for the limited purpose of accomplishing the common design. Whatever is said, done or written by any of them in reference to the common design is therefore admissible as evidence against all, in the same way that the act of an agent within the scope of his authority is admissible against the principal.

The provision is an exception to the rule that a person is bound only by what he himself has said or done. It is justified by the practical necessity of proving conspiracy: the agreement that constitutes a conspiracy is rarely formed in the open, and the prosecution would otherwise have no means of establishing the agreement except by inference from the overt acts of its members. The chapter on relevancy of facts under Section 3 BSA develops the broader logic of which Section 8 BSA is one application.

Statutory anchor — Section 8 BSA / Section 10 IEA

Section 8 BSA reproduces Section 10 IEA almost word for word. The only changes recorded in the official correspondence table are cosmetic — "Government of India" replaced by "State" in the illustrations, and city names changed from Calcutta to Kolkata, Bombay to Mumbai and Kabul to Singapore. The substantive doctrine is unaltered.

The text of the provision admits, against each conspirator: (a) anything said, done or written by any one of them; (b) in reference to the common intention of all; (c) after the time when such intention was first entertained by any one of them. The "anything said, done or written" is broad — it covers oral statements, physical acts, written instruments, telegrams, letters, telephone calls, and modern electronic communications. The "in reference to the common intention" is the critical limiting condition. The "after the time when such intention was first entertained" fixes the temporal boundary at both ends.

Ingredients — the four conditions of Section 8 BSA

1. There must be reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong. The Supreme Court has emphasised that this prima facie evidence of conspiracy must exist independently before Section 8 BSA can be invoked; the section is not itself a means of proving the conspiracy.
2. The thing said, done or written must be by one of the conspirators. A statement by a non-conspirator, however well-informed, is not admissible under the section.
3. The thing must be in reference to the common intention. Statements about unrelated matters, even if made by a conspirator, are not admissible. The reference must be to the common design that constitutes the conspiracy.
4. The thing must have been said, done or written after the time when the common intention was first entertained by any one of the conspirators, and before the conspiracy ended. Statements made before the formation of the conspiracy or after its termination are not admissible under this section.

The fourth condition has a corollary that is critical for trial practice. Statements made by a conspirator after the object of the conspiracy is achieved are not admissible: the conspiracy has ended. Statements made by a conspirator after his arrest are similarly not admissible — the agency relationship has dissolved by the time he is in custody, as the Supreme Court held in State (N.C.T. of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820. The chapter on confessions under Sections 22 to 30 BSA develops the parallel doctrine that custodial statements cannot be made evidence against co-accused except as Section 30 BSA narrowly permits.

The four limbs of the rule

The Supreme Court's classic articulation in Sardul Singh Caveeshar identified four propositions that govern Section 8 BSA in operation:

1. The relevant statements, acts or writings must have been made by a conspirator.
2. They must have been made in reference to the common design.
3. They must have been made during the period of the conspiracy — after its formation and before its termination.
4. They may be used against a co-conspirator and not in his favour.

The fourth proposition was settled in Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682, where the Court held that Section 10 IEA is an enabling provision that admits evidence against a co-conspirator; it does not work in his favour. A conspirator cannot invoke the section to bring in self-serving statements of his fellow conspirators.

Documents created by conspirators

Documents used by conspirators in achieving the object of the conspiracy are admissible as evidence under Section 8 BSA. The Supreme Court in Badri Rai v. State of Bihar, AIR 1958 SC 953, held that documents prepared in the course of the conspiracy and used to advance its object fall squarely within the section. Documents created after the object of the conspiracy is achieved are not admissible — the conspiracy has ended, and the agency relationship that justified mutual admissibility has ceased.

The principle has obvious modern applications. Emails exchanged by conspirators during the conspiracy are admissible against all of them under Section 8 BSA, subject to the proof requirements for electronic evidence. The chapter on electronic evidence under Section 63 BSA develops the evidentiary requirements that must be satisfied before such documents can be received.

Conspiracy and common intention — distinct doctrines

Conspiracy under Section 120A of the IPC (now under Section 61 of the Bharatiya Nyaya Sanhita, 2023) is the substantive offence of agreement to commit an offence or an actionable wrong. Common intention under Section 34 IPC (now under Section 3(5) BNS) is the doctrine that imposes vicarious liability on those who participate in an offence in furtherance of a common intention. The two doctrines are different, and the evidence rule in Section 8 BSA must be kept distinct from each.

The Supreme Court in Virendra Singh v. State of Madhya Pradesh, (2010) 8 SCC 407, observed that unless common intention and participation are both present, the provisions relating to acts done by several persons in furtherance of common intention cannot apply. The proof of common intention is itself difficult, and the proof of common intention of a group of persons is all the more so. The decision in Aizaz v. State of Uttar Pradesh, (2008), is to the same effect.

Section 8 BSA admits the things said and done by a conspirator; it does not by itself prove the conspiracy. The prosecution must independently establish a prima facie case of conspiracy before the section can be applied. Once the prima facie case is established, the section opens the door to receiving the further evidence that completes the proof.

Inference from overt acts — how conspiracy is established

Conspiracies are not openly hatched, and the agreement that constitutes the offence cannot generally be directly proved. The Supreme Court has repeatedly held that the agreement may be inferred from the established facts in the case, and that overt acts raise a presumption of an agreement and knowledge of the purpose of the conspiracy. The connection has to be established with the conspiracy and not with the separate acts of different conspirators which are the overt acts of different individuals in proof of the conspiracy.

Overt acts may properly be looked at as evidence of the existence of a concerted intention, and in many cases it is only by means of overt acts that the existence of the conspiracy can be made out. The criminality of the conspiracy is independent of the criminality of the overt act — a person can be convicted of conspiracy even if the overt acts that evidence the conspiracy do not themselves amount to offences.

The State of Andhra Pradesh decision in State of Andhra Pradesh v. Kandinalla Subbaiah, AIR 1961 SC 1241, sets out the framework for charging conspiracy together with the substantive offence committed in pursuance of it. The two are distinct offences. Where the substantive offence flows from the conspiracy, the appropriate form of charge is a specific charge in respect of each substantive offence along with the charge of conspiracy.

Late-joining and early-leaving conspirators

The fact that some members of a conspiracy are not members from the start but join only later does not make them less liable to conviction. Sirima Narasimha Rao v. State of Andhra Pradesh, 2010 Cri LJ 769, is direct authority for this proposition. A late joiner is bound by the things said and done by his fellow conspirators after he joined; he is not bound by things said and done before his joining.

The position of the early-leaving conspirator is more delicate. A conspirator may be liable for what other conspirators do "after he left" the conspiracy if the doing was contemplated by the original agreement. A conspirator may be said to share common intention with persons who are even strangers to him, provided the common intention and prior agreement are proved.

Where common intention and prior agreement are proved, the mere presence of a conspirator at the time of the commission of the intended offence may suffice to infer participation. But the mere fact that he was seen at the scene without taking any part in the offence, in the absence of proof of common intention, will not be a ground for fastening liability — the Supreme Court so held in Raju @ Devendra Choubey v. State of Chhattisgarh, AIR 2014 SC 3741.

Statements after arrest and after the conspiracy ends

Statements made by conspirators after they are arrested cannot be brought within the ambit of Section 8 BSA, because by that time the conspiracy has ended. The Supreme Court so held in State (N.C.T. of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820. Such statements may be admissible as confessions of the maker against himself, subject to the bars of Sections 23 and 24 BSA, but they cannot be evidence against the co-accused under Section 8 BSA.

The same logic excludes a disclosure statement made in another First Information Report from being used to prove conspiracy. The common intention is no longer in existence at the time of the statement, and the agency relationship that justifies mutual admissibility has dissolved. Indra Dalal v. State of Haryana, 2015 Cr LJ 3147, applies this principle.

Conspiracy as an inchoate offence

Criminal conspiracy, abetment and attempt are treated as inchoate offences — offences that consist in something less than the completed substantive crime. State of Andhra Pradesh v. Kandinalla Subbaiah, AIR 1961 SC 1241, classifies them as such. The doctrinal significance is that the offence of conspiracy is complete the moment the agreement is reached; subsequent acts in furtherance of the agreement are evidence of the conspiracy but are not themselves part of it.

The doctrinal classification matters for Section 8 BSA because the temporal boundary of the section runs from the formation of the agreement to its termination. The agreement begins the period of admissibility; the achievement of the object — or the abandonment of the conspiracy, or the arrest of all conspirators — ends it. Within this period, the things said and done by any conspirator in reference to the common design are admissible against all.

Distinguishing Section 8 BSA from neighbouring rules

Two distinctions are critical.

Section 8 BSA versus Section 4 BSA (res gestae). Res gestae admits things said and done that are part of the same transaction as the fact in issue; the basis is the unity of transaction. Section 8 BSA admits things said and done by a conspirator in reference to the common design; the basis is the partnership theory of conspiracy. The chapter on the doctrine of res gestae sets out the boundary.

Section 8 BSA versus Section 30 BSA (joint trial confessions). Section 30 BSA admits a confession by one accused as a circumstance against another accused tried jointly for the same offence; the conditions are stricter and the evidentiary value is weaker — the confession is not substantive evidence but a circumstance that may lend assurance to other evidence. Section 8 BSA admits things said and done by a conspirator as substantive evidence against all conspirators. The two heads of admissibility are entirely distinct, and the most common confusion in answer scripts is to invoke Section 30 BSA when Section 8 BSA is the right provision.

Practical illustrations from leading prosecutions

The most instructive Indian prosecutions on Section 8 BSA arise out of large-scale economic offences and politically charged conspiracies. In the Sardul Singh Caveeshar prosecution itself, the Supreme Court applied the partnership theory to a complex web of corporate transactions, holding that the books of account, correspondence and resolutions of the corporate vehicles used by the conspirators were admissible against all of them under what is now Section 8 BSA. The principle has since been extended to bank-fraud prosecutions, where the entries in the books of the conspiring bank are received against every conspirator on the same footing.

In terror prosecutions, Section 8 BSA does the heaviest work. Telephonic intercepts of one conspirator's conversations with another are admissible against all the conspirators provided the intercepts relate to the common design and were captured during the period of the conspiracy. Once the arrest takes place, the section ceases to apply, and any further intercepts must be received, if at all, on a different head — typically as confessions of the maker against himself. The chapter on electronic evidence sets out the additional certificate requirements that apply to such intercepts.

In economic offences and white-collar prosecutions, the section admits the records of shell companies, the bank statements of the conspirators, and the digital communications between them — all subject to the four conditions of the section. The character of the maker of such communications, where it becomes relevant, is governed by the separate rules in our chapter on character when relevant in civil and criminal cases. The Supreme Court in Kavit v. State, decided on 21 March 2011 (Guj HC), affirmed that overt acts of different individuals serve as proof of the conspiracy, and that the criminality of the conspiracy is independent of the criminality of the overt act.

BSA-specific changes — cosmetic only

The BSA reproduces Section 10 IEA in Section 8 BSA without substantive change. The illustrations are reproduced with minor textual updating — "Government of India" replaced by "State", city names updated. The classical authorities — Sardul Singh Caveeshar, Bhagwan Swarup Lal Bishan Lal, Badri Rai, Navjot Sandhu, Sirima Narasimha Rao — continue to govern the section as renumbered. For the section-by-section mapping see our IEA to BSA section-mapping table.

Common pitfalls in answer scripts

Three errors recur.

First, treating Section 8 BSA as the section that proves the conspiracy. It is not. The prosecution must independently establish a prima facie case of conspiracy before the section can be invoked. Section 8 BSA opens the door to evidence; it does not by itself prove the agreement.

Second, treating statements made after arrest as admissible against co-conspirators. They are not. The conspiracy ends at the latest with the arrest of the conspirator, and the agency relationship that justified mutual admissibility dissolves.

Third, conflating Section 8 BSA with Section 30 BSA. The two provisions admit different categories of evidence on different conditions and produce different evidentiary effects. The student who keeps them separate will not be tripped up.

For the broader topic-cluster of Evidence Act and BSA notes covering relevancy, conspiracy, admissions, confessions and the BSA-specific innovations, the chapter index links to every other unit in the syllabus. For the rules of presumption that interact with conspiracy inference, see our chapter on presumptions — may presume, shall presume, conclusive proof, and for the documentary-evidence rules that govern proof of conspiratorial communications see our chapter on documentary evidence — concept and classification.

Section 8 BSA and the standard of proof in conspiracy cases

A separate but related question is the standard of proof that applies to conspiracy cases. The conspiracy is a substantive offence, and conviction requires proof beyond reasonable doubt. Section 8 BSA is concerned only with the admissibility of evidence; it does not lower the standard of proof. The trial judge who has admitted a body of conspirator statements under Section 8 BSA must still ask whether the cumulative effect of those statements, taken together with the other prosecution evidence, satisfies the criminal standard. The chapter on burden of proof under Sections 101 to 114 develops the standard in detail.

Conclusion — the partnership theory in operation

Section 8 BSA is the operational expression of the partnership theory of conspiracy. Each conspirator is treated as the agent of the others for the limited purpose of the common design, and the things said and done by one in reference to the common design are admissible against all. The four conditions — conspiracy independently established, statement by a conspirator, in reference to the common design, during the period of the conspiracy — are cumulative and strictly enforced. The mains aspirant who has internalised the four conditions and the four propositions of Sardul Singh Caveeshar will not be tripped up by any conspiracy fact-pattern, however ingeniously the examiner constructs it.

Frequently asked questions

Does Section 8 BSA prove the existence of the conspiracy?

No. Section 8 BSA (previously Section 10 IEA) is an enabling provision that admits evidence against a conspirator once the conspiracy is independently established. The prosecution must first show a prima facie case of conspiracy through other evidence; only then does Section 8 BSA open the door to receiving the things said and done by one conspirator as evidence against all. The section facilitates proof; it does not itself constitute proof.

Are statements made by a conspirator after his arrest admissible under Section 8 BSA?

No. The Supreme Court in State (N.C.T. of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820, held that statements made by conspirators after arrest fall outside Section 8 BSA because the conspiracy has by then ended. The agency relationship that justified mutual admissibility dissolves with the arrest. Such statements may be admissible as confessions of the maker against himself, subject to Sections 23 and 24 BSA, but cannot be used against co-accused under Section 8 BSA.

Can Section 8 BSA be used in favour of a co-conspirator?

No. Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra, AIR 1965 SC 682, settled that Section 10 IEA — and the corresponding Section 8 BSA — is a one-way provision. It admits the things said and done by one conspirator as evidence against another. It cannot be invoked by a conspirator to bring in self-serving statements of his fellow conspirators in his own favour. The asymmetry is intrinsic to the partnership theory.

Are documents created by conspirators admissible against all of them?

Yes, provided they are created and used in the course of the conspiracy and in reference to the common design. Badri Rai v. State of Bihar, AIR 1958 SC 953, holds that such documents fall within the section. Documents created after the object of the conspiracy is achieved are not admissible because the conspiracy has ended. Modern electronic communications — emails, messages, encrypted chats — are admissible on the same principle, subject to the proof requirements for electronic evidence.

What is the difference between Section 8 BSA and Section 30 BSA?

Section 8 BSA admits things said and done by a conspirator in reference to the common design as substantive evidence against all conspirators. Section 30 BSA admits a confession by one accused as a circumstance — not as substantive evidence — against another accused tried jointly for the same offence; its evidentiary value is weaker and it cannot by itself sustain a conviction. The two heads of admissibility are entirely distinct, and the most common error in answer scripts is to invoke the wrong provision.