Section 38 of the Indian Penal Code.
Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.
Illustration: A attacks Z under such circumstances of grave provocation that his killing of Z would be only culpable homicide not amounting to murder. B, having ill-will towards Z and intending to kill him, and not having been subject to the provocation, assists A in killing Z. Here, though A and B are both engaged in causing Z's death, B is guilty of murder, and A is guilty only of culpable homicide.
Sections 34, 35 and 38 deal with the same subject and should be read together. Section 34 treats of acts done with a ‘common intention’: this section, of acts done with different intentions. Sections 34-38 lay down principles similar to the English law of “principals in the first and second degrees.”
The basic principle which runs through ss. 32 to 38 is that an entire act is attributed to a person who may have performed only a fractional part of it. This axiom is laid down in s. 34 in which emphasis is on the act. Sections 35 to 38 take up this axiom as the basis of a further rule by which the criminal liability of the doer of a fractional part (who is to be taken as the doer of the entire act) is to be adjudged in different situations of mens rea. Without the axiom itself, however, the other sections would not work, inasmuch as it is the foundation on which they all stand.
This section provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other. It indicates that persons engaged in the commission of one act may be guilty of different offences owing to the difference in their intentions. The illustration clearly exemplifies this principle. A quarrel arose between C on the one side and A and B on the other. C abused A, whereupon A struck him with a stick, and B struck him down with an axe on the head. He also received two other wounds with the axe on other parts of the body. Any one of the three axe-wounds mis sufficient to cause death, more especially that on the head. It was held that B was guilty of culpable homicide, while . A was guilty of voluntarily causing hurt.
Bhaba Nanda Sarma and Others v. State of Assam: Victim was assaulted by three accused. Held on facts and circumstances of the case that the liability of the two accused for the murder of the victim was established with the aid of S.34, Penal Code. Applying the principles of law under S.38, Penal Code, the third accused could be held guilty only under S.304, Part II as he had intentionally joined in the commission of the act with the knowledge that the assault on the victim was likely to result in his death.1)