IPC Section 38: Persons Concerned in a Criminal Act May Be Guilty of Different Offences
Section 38 of the Indian Penal Code, 1860 (IPC), recognises that people involved in the same criminal act can incur different criminal liability. Their intention, knowledge, circumstances and applicable defences may differ. The corresponding rule is found in Section 3(9) of the Bharatiya Nyaya Sanhita, 2023 (BNS).
1. Statutory text of IPC Section 38
Section 38 - Persons concerned in criminal act may be guilty of different offences:
“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.”
The provision does not itself create a separate punishable offence. Instead, it guides the attribution of liability when several persons participate in a criminal occurrence.
2. Original statutory illustration
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.
This illustration shows that a mitigating circumstance applicable to one participant is not necessarily available to another. The same fatal outcome can therefore lead to different offences, depending on each participant's legally relevant state of mind and circumstances.
3. Current law: BNS Section 3(9)
Section 3(9) of the Bharatiya Nyaya Sanhita, 2023 carries forward the rule that several persons concerned in the commission of a criminal act may be guilty of different offences by means of that act. The BNS came into force on 1 July 2024, subject to its commencement, repeal and savings provisions. The IPC remains relevant to conduct governed by the earlier law and to interpretation of older cases.
| Topic | Indian Penal Code, 1860 | Bharatiya Nyaya Sanhita, 2023 |
|---|---|---|
| Corresponding provision | Section 38 | Section 3(9) |
| General rule | Participants in one criminal act may be guilty of different offences | Retains the same principle |
| Nature of provision | Rule of interpretation and liability | General explanation |
| Separate punishment | Not prescribed by this section | Not prescribed by this subsection |
4. Why can different participants face different offences?
Criminal liability is not determined solely by the fact that several people were present or that their conduct contributed to the same event. A court may need to examine:
- Intention: whether each person intended the particular criminal result.
- Knowledge: what each participant knew about the likely consequences.
- Individual circumstances: whether a legally recognised exception or mitigating circumstance applies to a particular person.
- Nature of participation: the conduct and role proved against each accused.
- Ingredients of the offence: whether the prosecution establishes every element of the specific offence charged.
For example, the statutory illustration distinguishes an attacker acting under grave provocation from an assisting participant who acts with an independent intention to kill and without that provocation. The illustration assumes that the legal conditions for the respective offences are satisfied.
5. Relationship with IPC Sections 34 to 37
IPC Section 34 deals with liability for a criminal act done by several persons in furtherance of their common intention. Section 35 addresses the knowledge or intention of each participant. Section 36 concerns an effect caused partly by an act and partly by an omission. Section 37 concerns intentional cooperation through one of several acts constituting an offence.
Section 38 complements these rules by recognising that participation in one criminal act does not invariably produce an identical offence for every participant. The relevant provisions must be read together with the facts and the elements of the charged offences.
6. Practical application
Example 1 - Different mental states: If two people participate in an incident but the evidence establishes different intentions or knowledge, the offences proved against them may differ. This depends on the precise statutory elements and findings of fact.
Example 2 - Personal mitigating circumstances: A legally recognised circumstance affecting the classification of one person's conduct may not extend to another participant who does not satisfy the conditions of that circumstance.
Example 3 - Different roles: A person who commits the principal act and another who provides assistance may be assessed under different substantive provisions, depending on the law of participation and the evidence. Mere association is not enough by itself to establish guilt.
7. Frequently asked questions
What does IPC Section 38 mean?
It means that several people involved in one criminal act may be guilty of different offences, rather than necessarily the same offence.
Which BNS provision corresponds to IPC Section 38?
The corresponding provision is BNS Section 3(9).
Can one accused be guilty of murder while another is guilty of culpable homicide not amounting to murder?
Yes. The statutory illustration demonstrates this possibility where grave provocation applies to one participant but not the other, and the required elements of each offence are established.
Does Section 38 prescribe any punishment?
No. It is a general legal rule. Punishment is determined under the substantive offence provisions applicable to each person.
Does common participation always establish common intention?
No. Common intention must be established under the applicable legal test; participation in the same occurrence alone does not automatically prove it.
8. Official statutory sources
- India Code - Bharatiya Nyaya Sanhita, 2023 (Section 3(9))
- India Code - official database of central legislation (IPC, 1860)
- Ministry of Home Affairs - New Criminal Laws
This material is general legal information. Individual liability depends on the applicable statute, evidence and judicial findings.