Section 35 of the Indian Penal Code, 1860.
When such an act is criminal by reason of its being done with a criminal knowledge or intention. Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.
The preceding section1) provided for a case in which a criminal act was done by several persons in furtherance of the common intention of all. Under this section a person assisting the accused, who actually performs the act, must be shown to have the particular intent or knowledge, if the act is criminal only by reason of its being done with a criminal knowledge or intention. If several persons, having one and the same criminal intention or knowledge, jointly commit murder or an assault, each is liable for the offence as if he has acted alone; but if several persons join in an act, each having a different intention or knowledge from the others, each is liable according to his own criminal intention or knowledge, and he is not liable further. If an act which is an offence in itself and without reference to any criminal knowledge or intention on the part of the doers is done by several persons, each of such persons is liable for the offence.
Neither s. 34 nor this section provides that those who take part in the act are jointly liable for the same offence. They merely provide that each of the performers shall be liable for the act in the same manner as if the act were done by him alone.
Criminal acts may be offences of two kinds. Section 34 of the IPC begins by speaking of 'a criminal act'. It starts with the assumption that a criminal act has been committed. Now a criminal act may be an offence of one of two kinds:
It may be noted that the expression 'in furtherance of the common intention of all' which is found in s 34 is absent in s 35 . The latter section deals with an act which is criminal only by reason of its being done with a criminal knowledge or intention. Thus s 35 applies also to a case of criminal knowledge whereas s 34 does not. Again the 'common intention' required by s 34 is different from the mens rea mentioned s 35 . Synopsis notes under s 34 under same heading may be referred to.
Section 37 of the Indian Penal Code, 1860.
When an offence is committed by means of several acts, whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence.
(a) A and B agree to murder Z by severally and at different times giving him small doses of poison. A and B administer the poison according to the agreement with intent to murder Z. Z dies from the effects of the several doses of poison so administered to him. Here A and B intentionally co-operate in the commission of murder and as each of them does an act by which the death is caused, they are both guilty of the offence though their acts are separate.
(b) A and B are joint jailors, and as such have the charge of Z, a prisoner, alternatively for six hours at a time. A and B, intending to cause Z's death, knowingly co-operate in causing that effect by illegally omitting, each during the time of his attendance, to furnish Z with food supplied to them for that purpose. Z dies of hunger. Both A and B are guilty of the murder of Z.
(c) A, a jailor, has the charge of Z, a prisoner. A, intending to cause Z's death, illegally omits to supply Z with food; in consequence of which Z is much reduced in strength, but the starvation is not sufficient to cause his death. A is dismissed from his office, and B succeeds him. B, without collusion or co-operation with A, illegally omits to supply Z with food, knowing that he is likely thereby to cause Z's death. Z dies of hunger. B is guilty of murder, but, as A did not co-operate with B, A is guilty only of an attempt to commit murder.
This section follows as a corollary from s. 35 as appears from the illustrations. It provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence.
If common intention is the hub of S.34, intentional cooperation is the spindle of S.37 of the Penal Code. One who shares common intention can as well cooperate in the commission of the offence intentionally. In that sense the two sections are not contradictory to each other. The former does not necessarily exclude the latter. Cooperation in the commission of the offence need not be for the entire gamut of the offence committed. It is enough if he cooperates in one of the several acts which constitute the offence.2)