Legal Provisions of Section 38 of Indian Penal Code, 1860.
Persons concerned in criminal act may be guilty of different offences:
ADVERTISEMENTS:
The section states a principle where more than one person may be involved in the commission of a criminal act but their guilt may be different from each other by means of that act. While under section 34 of the Code liability of a group of persons is same when they commit an offence in furtherance of the common intention of all, the responsibility under this section for persons concerned in the commission of a criminal act may be different.
The illustration very aptly illustrates this aspect by showing that while both A and В are engaged in the commission of causing the death of Z, their liability is for different offences. In Bhaba Nanda v. State, three persons were engaged in an attack on the deceased. While two of them were attacking him severely the third accused did not even use his lathi. The Supreme Court held the first two guilty of murder with the help of section 34 while the third accused was held liable under section 304, Part II read with section 38 of the Code as he had joined the other two in the criminal act intentionally fully knowing that there was likelihood of the deceased dying.
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