Role of Mens Rea in S.120A IPC

Criminal conspiracy, which is the most serious offence defined by the Indian Penal Code, 1860 (IPC), is the act of a group of people working together to organise and carry out illegal activities. Criminal conspiracy is defined by Section 120A of the IPC as the agreement of two or more people to commit an illegal act or an act that is not illegal in and of itself but is carried out illegally. Using illegal means to commit an offence and achieve the desired result is the main goal of criminal conspiracy.

The IPC, which Lord Macaulay drafted in 1860, did not contain any specific provisions addressing the crime of criminal conspiracy. 2 But later on, legislators realised that the legal system needed to change, so they introduced specific laws that dealt only with the crime of criminal conspiracy. As a result, to address this particular legal issue, Chapter VA was added to the IPC in 1913. Before the insertion of section 120A, there was no such offence as a criminal conspiracy in IPC, rather there was only abetment by conspiracy under section 107 (secondly) of the code, which had some discrepancies as follows: 3

  • Mere agreement to commit an offence is not punishable
  • Agreement to commit civil wrong or any act prohibited by law was not punishable.

A criminal conspiracy was added as an independent offence through an amendment made in 1913, which adjudged Section 120A and 120B under Chapter V-A.

Conspiracy, in contrast to other actual or potential offences, primarily focuses on the mental state of the accused. Although a person may simply contemplate committing a crime without violating the law, the contemplation becomes unlawful if the same criminal thought is incorporated in an agreement. However, conspiracy is more than just an agreement; it involves a mental state.

A conspiracy is viewed as more dangerous than the actions of a single person because it involves an agreement between two or more people to commit a crime. Consequently, it justifies pre-emptive intervention by the legal system. This increases the concern about group action stems from various reasons. First, it is thought that social pressure opposes a decision to delay or refuse the commission of the crime, while psychological reinforcement supports the decision to commit it. 4 Second, even if one of the conspirators dissociates himself from the conspiracy, the rest of the members may accomplish the act that was earlier set into motion. 5 Third, crime is likely to be accomplished due to the greater number of participants. 6

Mens Rea to agree

Dean Harno states that “The conspiracy consists not merely in the agreement of two or more but in their intention”. 7 The parties to an agreement must not only understand that they are joining to commit a crime but also have the intention of carrying out the crime as a result of their cooperation. Therefore, criminal conspiracy involves two distinct psychological states. The first frame of mind guides the conspirators in creating an agreement, while the second is focused on the particular crime that is to be achieved by that agreement. Due to the predominantly mental nature of the crime of conspiracy, numerous critical issues in conspiracy cases centre around the dual state-of-mind requirement. These concerns include defining these mental states, providing evidence of their existence through particular conduct, and identifying the precise mental states required for convictions. Since the major purpose of conspiracy law is to prevent the commission of substantive crimes, only agreements whose objects are criminal should be punishable. 8 For a criminal conspiracy to be established, the parties must genuinely grasp that they are agreeing together. If there's a mistaken perception about the intent of the conspiracy, it nullifies the otherwise present state of mind. Generally, the state of mind regarding the agreement is less crucial than the mental state related to the intended crime.

The famous word of Willes J. in Mulcahy v. R 9 is that “the common law recognised that a conspiracy necessarily involved not merely a superficial concordance of language and actions but also a concordance of intentions.” 10 The mens rea can be simply stated in the criminal conspiracy in the following way: “First, the defendants in the combination must intend to commit the object offence. Second, they must understand that committing the crime is a consequence of their agreement. 11Finally, they must desire that particular offence as the outcome of their agreement.” Because of this particularised desire as to the outcome, the state of mind requirement has been properly labeled “specific intent”. 12 The Supreme Court in Firozuddin Basheeruddin and others v. State of Kerala 13 opined that “It is not necessary that each one of them must have actively participated in the commission of the offence or was involved in it from start to finish. What is important is that they were involved in the conspiracy”

A conspiracy law's primary goal is to address the risk of joint criminal activity. The offence of conspiracy allows the state to pre-empt dangerous criminal relationships at a stage earlier than commission. These illicit relationships are the sole object and rationale for the crime. Therefore, the de-emphasis of the relationship between the conspirators, even in the state of mind area, is difficult to justify. 14 In the case of State of Maharashtra v. Som Nath Thapa 15 it was observed that “for a person to conspire with another, he must have knowledge of what the co-conspirators were wanting to achieve, and thereafter, having the intent to further the illegal act takes recourse to a course of conduct to achieve the illegal end or facilitate its accomplishment.”

Elements of Criminal Conspiracy under S. 120A

By the plain reading of S. 120A of IPC, the following elements become necessary for criminal conspiracy:

Agreement: An agreement between two or more individuals to commit an illegal act, or an act that is not illegal but is carried out illegally, is the first and most crucial element of a criminal conspiracy. An agreement needs to be made before the crime is committed and between two or more persons.

Intention: The second element of a criminal conspiracy is the intent to commit the crime. The parties to the agreement must share a common intention to commit the illegal act. The crime must be intended to be committed, not just discussed.

Act: the third component is taking a step to carry out the agreement constitutes the third element of a criminal conspiracy. This action can include any activity that helps carry out the crime, like obtaining weapons, gathering victim information, or planning the specifics of the crime.

Criminality: The fourth component of criminal conspiracy states that the act must be unlawful. The intention must be to commit an offence that is punishable by law. Criminal conspiracy may still apply even in cases where the act itself is lawful but the methods used to carry it out are illicit.

Parties: The requirement that two or more persons be parties to the agreement is the last component of criminal conspiracy. A single person performing the act does not qualify as a criminal conspiracy.

The essential ingredients of the offence of criminal conspiracy as held by the Supreme Court in Rajiv Kumar v. State of U.P. 16 are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. “It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is the sine qua non of criminal conspiracy.” 17 Notably, the proviso of section 120A of IPC prescribes that unless a conspiracy results in some illegal act, no court can initiate legal proceedings for the sake of agreement alone. 18

However, there is a difference between Joint Liability (Section 34) and Criminal Conspiracy (Section 120A) of IPC. For the applicability of section 34, active participation of offenders is necessary for an offence, whereas, for the applicability of section 120A, no active participation of offenders is necessary for an offence. For the applicability of section 34, an act done in pursuance of common intention is necessary, whereas for the applicability of section 120A, an act done in pursuance of intention is not necessary but the only intention itself is enough to commit an offence.

Section 120A can be segmented into two components. The first part is applicable when there is a reasonable basis to believe that two or more individuals have conspired to commit an offence or an actionable wrong. 19 The second portion of the section becomes active once this requirement is satisfied. In this case, any words, deeds, or writings made by any of these people about the shared intention after the moment when any of them first thought of it constitute pertinent evidence against each individual who is thought to have been a part of the conspiracy. Establishing the conspiracy's existence is the aim of this evidence. 20 According to Section 10 of the Evidence Act, an act of one conspirator becomes the act of another once a conspiracy to commit an offence is established. The admissibility of evidence in conspiracy cases is covered in Section 10. This clause states that any writings, acts, or statements made by any conspirator motivated by their common goal may be used as evidence against all conspirators to prove the conspiracy's existence. It is essential to have solid evidence that two or more people have planned to commit a crime or other actionable wrong.


“The very heart of the crime of conspiracy is the agreement. To reach an agreement that constitutes criminal behaviour, the parties must intend to agree and intend to achieve the same object.” 21 But it is important to remember that the burden of proof for a criminal conspiracy act is the same as it is for any other crime: beyond a reasonable doubt. 22 Finally, it is critical to emphasise that the main goal of legislative efforts to enact criminal conspiracy laws is to stop criminal intent before it manifests itself in illegal behaviour. The offense of criminal conspiracy is considered an inchoate crime, as it does not necessitate the actual commission of an illegal act; the agreement itself is adequate to hold the accused accountable. However, exceptions exist when the act is expressly prohibited by law or constitutes a civil wrong. It entails conspirators working together in a mutually agreeable partnership to commit any criminal act.

Article is authored by Vishal Kumar, a Delhi based lawyer. 1

1 This article is authored by Vishal Kumar, a Delhi based lawyer.
2 Amit Pandey , “Himanshu Singh, Offence of criminal conspiracy under Indian criminal Law”, Manupatra, May 18, 2022 (last visited on Feb 5, 2024). Available at
3 Ibid.
4 Note “Criminal Conspiracy: Bearing of Overt Acts Upon the Nature of Crime”, 37 Harvard Law Review 1121, 1123 (1924).
5 Note, “Developments in the Law: Criminal Conspiracy.”72(5) Harvard Law Review, 920–1008(1959). available at
6 Note “The Conspiracy Dilemma: Prosecution of Group Crime or Protection of Individual Defendants” 62(2) Harvard Law Review, 276–286(1948). Available at
7 Hamo, “Intent in Criminal Conspiracy”, 89 Pennsylvania Law Review 624, 630 (1941).
8 Ted Prim, “Mens Rea Requirement for Conspiracy: The Model Penal Code and the Progressive Law of Judge Learned Hand”, 40(3) Missouri Law Review, (1975).
9 (1868) L.R. 3 H.L. 306 at p. 317
10 G.H.L. Fridman, “Mens Rea in Conspiracy”,19(3) Modern Law Review (May 1956).
11 P. Marcus,“Criminal Conspiracy: The State of Mind Crime - Intent, Proving Intent, Anti-Federal Intent”, University of Illois Law Forum, 623-656( 1976). available at
12 Ibid.
13 MANU/SC/0471/2001.
14 Supra note 11.
15 MANU/SC/0451/1996.
16 MANU/SC/0932/2017.
17 Ibid.
18 Indian Penal Code, 1860, s.120A.
19 Pavan Narang, “Criminal Conspiracy – The Law and its applicability”, Bar & Bench, May 29, 2018(last visited on Jan 5, 2024). Available at
20 Ibid.
21 Supra note 11.
22 Supra note 19.
  • Toll Free No : 1-800-103-3550

  • +91-120-4014521


Copyright © 2024 Manupatra. All Rights Reserved.