Tshewang Dema: SECTION 34 to 38 OF IPC
INTRODUCTION
The first Penal Code came into existence in the year 1862 and since then a number of amendments have made in the code. It is a comprehensive code intended to cover all the substantive aspects of criminal law. Before October 31st 2019, the Jammu and Kashmir Penal Code was known as Ranbir Penal Code (RPC). The total number of sections enumerated in the Indian Penal Code is five hundred eleven. Every section defines the different category of crimes committed by persons of Indian origin.
The Indian Penal Code is one of the most unique and spectacular Penal Law Code entailing a number of crimes, their scope, nature and punishments thereof. It is best-taken care in the hands of Judiciary, Law practitioners, academicians, students and law learner.
The Indian Penal Code indirectly owes its origin to Jeremy Bentham, who is a well-known jurist on the subject of law reforms. The basic premise of the substantive law Code is very much influenced by British law, however, elements from the Napoleonic Code (1804) and Louisiana Civil Code (1825) have also been derived. The Code is all around recognized as a pertinently drafted code, relatively revolutionary. It has considerably survived for more than 150 years in a number of jurisdictions without major corrections or amendments.
The Indian Penal Code in its basic structure is a document that consist of the list of all the punishments and case that a person who commits any kind of a crime is to be held liable and charged with. It covers any India Citizen or a person India origin. The exception to this document is that any kind of military or armed force crime cannot be charged on the basis of Indian Penal Code. They have a different dedicated list of laws and the Indian Penal Code cannot supersede any part of it.
The introductory draft of India Penal Code was formulated in the year 1860 and this was done under the supervision of the First Law Commission which was chaired by Lord Macaulay who said: “ Our principle is simply this- uniformity when you can have it; diversity when you must have it; but, in all cases certainty.”[1] The Indian Penal code is a role model in the matter of certainty. During the 143 years of its existence on the statute book, it has undergone the last number of amendments. Indeed, rarely one comes across a judgment stressing the need to fill in any lacuna in the Penal Code due to ambiguous language or otherwise.
In this paper, it mainly contained of section 34 till 38 in chapter II of the Indian Penal Code, 1860 which is essential to understand the basic commencement of offence and this section should be read together for better understanding and dealing with ‘General Explanation’ that state the conditions in which a person may be held constructively liable for the acts committed by the other members of group.
Section 34 deals with a situation, where an offence requires a particular criminal intention or knowledge and is committed by several persons. Each of them who join the act with such knowledge or intention is liable in the same way as if it were done by him alone with that intention or knowledge. The liability of individuals under this circumstance is called Joint Liability.
Section 35 deals with several persons who actually perform 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.
Section 36 deals with the legal consequences of an ‘act’ and of an ‘omission’ being the same, if an offence is committed partly by an act and partly by an omission the consequences will be the same as if the offence was committed by an ‘act’ or by an ‘omission’ alone.
Section 37 deals with 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.
Section 38 deals with the responsibility for the completed criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act and this section does not mention anything about intention common or otherwise or knowledge.
HISTORICAL BACKGROUND OF INDIAN PENAL CODE
The Indian Penal Code (IPC) is the main criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Government of India Act 1833 under the Chairmanship of Thomas Babington Macaulay. It came into force in British India during the early British Raj period in 1862. However, it did not apply automatically in the Princely states, which had their own courts and legal systems until the 1940s. The Code came into operation on 1st January 1862. Macaulay did not survive to see his masterpiece come into force having died near the end of 1859. The Code has since been amended several times and is now supplemented by other criminal provisions.
SECTION 34 OF INDIAN PENAL CODE
“Acts done by several persons in furtherance of common intention. —When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone”.
HISTORY OF SECTION 34 OF IPC
Section 34 IPC, 1860 is part of the original Code of 1860 as drafted by Lord Macaulay. The original section as it stood was “When a criminal act is done by several persons, each of such persons is liable for that act in the same manner as if the act was done by him alone.” However, on account of certain observations made by Sir Barnes Peacock, CJ, in Queen v Gora Chand Gope,[2] it was necessary to bring about a change in the wordings of the section. Accordingly, in the year 1870 an amendment was brought which introduced the following words after “when a criminal act is done by several persons…” “…in furtherance of the common intention…”. After this change, the section has not been changed or amended ever.
EXPLANATION OF THE SECTION
Criminal Intention is the highest form of blameworthiness of mind or mens rea. Intention occupies a symbolic place in criminal law. As the highest form of the mental element, it applies to murder and the gravest form of crimes in the criminal justice system. The term ‘intention’ is not defined in Indian Penal Code but section 34 of IPC deals with common intention. The intention made among several people to do something wrong and act done in that manner in which it was formulated comes under the sanction of Section 34 of IPC.
Common intention under Section 34 of the Indian Penal Code is a species of constructive liability that renders every member of a group who shares such intention responsible for the criminal act committed by anyone of them when such an act is done in furtherance of the common intention. Common intention, however, cannot be confused with a similar intention.
Section 149 of the India Penal Code deals with common object. According to this provision, every member of an unlawful assembly is held liable for any criminal act done furtherance of a common object.
However, Section 34 of IPC deals with the joint liability on the criminal case which conclude to criminal joint liability. The section can be explained as when two or more persons commit any criminal act and with the intention of committing that criminal act, then each of them will be liable for that act as if the act is done by them individually.
THE OBJECT OF SECTION 34 OF IPC
Section 34 of IPC does not in any way specify any separate offence and states the only rule of evidence. It only goes to the extent of defining the vicarious liability in the certain acts committed by several persons in the perpetuation of common intention. It is essentially read with the relevant section under which the offence is committed.
This section is classified as cognizable offence due to the obscurity faced by the adjudicators while distinguishing the each and every act of the ‘Participes Crimines’ i.e., partners in crime. In such a case, inferences are drawn by way of presumptions and the principle of joint liability is applied wherein, each person is presumed to be liable for the criminal act committed in furtherance of common intention which was duly shared with and known to all the accomplices.
Section 34 is designed to deal with a situation in which it might be hard to differentiate between the criminal acts of individual party members acting in favour of a common intention of all, or to prove precisely what part each of them took. The reason why all are found guilty in such instances is that an accomplice’s existence provides encouragement, help, safety, and trust to an individual who is actually engaged in an illegal act. Accordingly, every person who is engaged in the commission of a criminal offense is held liable by virtue of his involvement in the act performed, even if the specific act in question was not performed by either member of the group.
The section only provides for the constitution of joint liability, not the punishment. This section is only a rule of evidence and does not constitute a substantive offence. It provides for the principle of constructive liability. As this section is not an offence in itself, this section is always read with other sections under the Indian Penal Code, 1860. This is the limited scope of joint liability under Section 34, Indian Penal Code, 1860.
In the case of Chhotu v State of Maharashtra,[3] the complainant and the proofs proved that there were three persons assaulting the victim. The three persons were held liable under joint liability and assault. So it can be deduced that the section cannot be read alone and requires to be read with some other section under the statute of India.
BASIC ELEMENTS OF SECTION 34 OF IPC
It was decided in the case of Surendra Chauhan v. State of M.P,[4] it was held that in order to apply this section, apart from the fact that there should be two or more accused, two facts must be established: (1) Common Intention (2) participation of the accused in the commission of an offence.
Ingredients/ Element for the applicable for the section 34
- Criminal Acts:
‘Criminal act’ used in section 34 does not refer to individual acts where a crime is committed by a group of persons. Where a crime is committed by several persons in furtherance of common intention of all of them, each of them doing some act, similar or diverse, big or small shall be liable for that act. ‘That act’ refers to the ‘criminal act’ used in section 34 which means the unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone in an offence.
2. Criminal Act done by several persons:
The criminal act in question must have been done by several persons i.e. by more than one person. The number of wrong doers should be at least two. Most importantly, if the criminal act was fresh and independent act springing wholly from the mind of the doer, the others are not liable merely because when it was done, they were intending to be partakers with the doer in a different criminal act.
3. Active participation in the Criminal Act:
To constitute an offence under this section, it must be kept in mind that to fix joint liability there must be a blatant act which manifests the common intention. The presence and participation of the all the accused person is required at the scene of occurrence of the crime.
The participation in a criminal act of a group is a condition precedent in order to fix joint liability and there must be some overt act indicative of a common intention to commit an offence. The law requires that the accused must be present on the spot during the occurrence of the crime and take part in its commission; it is enough if he is present somewhere nearby.
The Supreme Court has held that it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence some way or other at the time crime is actually being committed.[5]
4. Common Intention:
It must be noted that the words “in furtherance of the common intention” were added in 1870 only after the judgment by the Privy Council in the case titled as Ganesh Singh v. Ram Raja,[6] It was duly observed that to constitute a common intention, there must exist a unity of purpose or pre-arranged plan.
The expression ‘common intention’ means unity of purpose or a pre-arranged plan; it has been given various meanings which are as follows-
Common intention implies a pre-arranged plan, prior meeting of minds, prior consultation in between all the persons constituting the group which states in the case Mahboob Shah v. Emperor.[7]
Common intention means the mens rea necessary to constitute the offence that has been committed which was constituted in the case of in Ibra Akanda v. Emperor.[8]
Common intention implies a pre-arranged plan. Pre-arranged plan means prior concert or prior meeting of minds. Criminal act must be done in concert pursuant to the pre-arranged plan. Common intention comes into being prior to the commission of the act in point of time.
Where there is no indication of premeditation or of a pre-arranged plan, the mere fact that the two accused were seen at the spot or that the two accused fired as a result of which one person died and two others received simple injuries could not be held sufficient to infer common intention which was defined in the case of Ramachander v. State of Rajasthan.[9]
ILLUSTRATION ON SECTION 34 OF IPC
A, B, C and D are charged under section 302, read with section 34, of the Indian Penal Code, for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder.
A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence.
CASE LAW
Following three cases are the landmark judgment on the basis of Section 34 of India Penal Code where essential of section 34 was explained in different situation.
- Barendra Kumar Ghosh v King Emperor[10]
The first leading case on the point is Barendra Kumar Ghosh v. King Emperor,[11] (also known as Shankari Tola Post Office Murder Case), which explained where the court convicted another person for the act of another done in furtherance of common intention and participation in the criminal act. In this case, the accused Barendra with other three persons went to Shankaritola post office at about 3.30 pm on the 3rd August 1923 armed with firearms. The accused stood outside the post office while the other three entered the post office through the backdoor of office. They asked post master Amrita Lal Roy to give the money which he was counting. When he refused, then others three opened fire from the pistol and fled from the place.
As a result of which he died almost immediately. Seeing others running the accused also ran away by air firing with his pistol. But he was chased and caught by the post office assistant. He was charged with others under s.302 (murder to post master) and s.394 (causing hurt in doing robbery) with S.34 in common intention of all. He contended that he was only standing guard outside the post office and he did not have the intention to kill the post master. Calcutta High Court confirmed his conviction of murder under S.302 with S.34. In the appeal before the Privy Council, Lord Sumner dismissed the appeal against the conviction and held that – “criminal acts mean that unity of criminal behaviour which results in something for which an individual would be responsible, if it were all done by himself alone, that is, in criminal offence.”
- Mahboob Shah v. Emperor[12]
In the case of Mahboob Shah v. Emperor,[13] talks about on one of the essential elements of Section 34 which is common intention, where appellant Mahboob Shah was 19 years old and was convicted of the murder of Allah Dad by the Session Judge of the charge Section 302 with Section 34. He was convicted for death by the Session tribunal. The death sentence was also upheld by the High Court of Judicature. The conviction for murder and death sentence was overturned on appeal to the Lordship. It was argued before the appellant that–” when Allah Dad and Hamidullah attempted to run away, Wali Shah and Mahboob Shah came next to them and fired” and thus there was proof at the spur of the time that they formed a common intention. The lordship was not happy with this perspective and cordially advised his Majesty that his appeal had been successful, the appeal must be allowed and the conviction of him for murder and death sentence should be set aside.
The common intention is most often confused with Section 149, which states that each member of the unlawful assembly is guilty of the offense committed in prosecuting a common object. It must be recognized that there are differences between the operations of both the sections.
Both Section 149 and Section 34 of the Indian Penal Code deal with a person’s association that becomes responsible for punishment for the act they commit. It is not essential to prove that each and every one of them was engaged in the overt act in order to hold an individual vicariously responsible under IPC Section 34 or Section 149
- Kirpal Singh V state of UP[14]
In the case of Kirpal Singh v State of UP,[15] the Supreme Court held that acquittal of some joint persons on the ground that they did not share the common intention, would not suffice to acquit others. The facts of the case were as follows: there was long standing enmity between the accused and the deceased ‘X’. One morning the accused while working on their field saw that some laborers were going towards field of ‘X’. The accused shouted at the laborers to come to them, but the laborers paid no heed. Thereupon, the accused began beating the laborers. In the meantime, ‘X’ arrived and intervened. But, even he was attacked by the accused. Some hit him on the leg. ‘A’ stabbed ‘X’ on the head and ‘X’ died on the spot. A’s act was deliberate and was convicted for the charge of murder. The other accused were convicted under sections 326/34 and not under Secs 302/34 as their common intention could be to cause injury with the weapons and not to kill.
SECTION 35 OF 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”.
EXPLANATION OF THE SECTION
Under this section there is no common intention amongst the assailants as is required under section 34 but all those who join in a criminal act, made punishable only when done with a distinct criminal knowledge or intention, with the same knowledge or intention, are liable.
So if a several person having the same criminal intention or knowledge jointly murder, each one could be liable for the offence as if he is done alone but if serval persons joint in the act, each having different intention or knowledge from other, each is liable according to his own criminal intention or knowledge. It has been clearly mentioned in this section that if many of the persons joins together with same criminal intention and having same knowledge and has committed such crime. So, the person involve in that crime will be punishable as whole with same punishment. But if they have different opinion and intention or knowledge of doing that crime, so they will be liable for their own intention and commitment.
ILLUSTRATION OF SECTION 35
A, B and C had plan to do robbery from house that belongs to Z at midnight of 11th November, 2011. Here C have intention or knowledge to murder Z while robbing from his place as he had guts for him after they have fight at school. But this knowledge was not aware by A and B. So that night they went to rob house of Z where C have drawn his knife and killed Z where A and B were not aware that C have plan to murder Z. Hence here the C will be liable and guilty for the murder whereas A and B will be guilty for robbery.
CASE LAW
Adam Ali Taluqdar’s Case[16]
There was three persons A, B and C. A and B together beats C who dies. A intended to murder him and knew that the act would cause death. A’s intention was clear that he wanted to murder C but B only intended to caused grievous hurt to C and did not know his act will cause death and B was not aware of the fact that his act would cause death or such body injury. That injury was lightly to cause death. Therefore, here A was held for the guilty of murder and B was guilty for grievous hurt. From this case, it is clear that under section 35 that if serval persons joint in the act, each having different intention or knowledge from other, each is liable according to his own criminal intention or knowledge.
Difference Between Section 34 And 35 Of Indian Penal Code
| Section 34 | Section 35 |
| Acts done by several person in furtherance of common intention.When a criminal act is done by several persons in furtherance of the common intention of all, each of such manner as if it were done by him alone. | 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 reasons of its being done with 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. |
SECTION 36 OF INDIAN PENAL CODE, 1860
“Effect caused partly by act and partly by omission.- Wherever the causing of a certain effect, or an attempt to cause that effect, by an act or by an omission, is an offence, it is to be understood that the causing of that effect partly by an act and partly by an omission is the same offence”.
A. EXPLAINATION OF THE SECTION
This section follows as a corollary from section 32. The legal consequences of an ‘act’ and of an ‘omission’ being the same, if an offence is committed partly by an act and partly by an omission the consequences will be the same as if the offence was committed by an ‘act’ or by an ‘omission’ alone. Fire in the transformer installed in a cinema hall led to multiple deaths but was not the causa causans of the tragedy. The absence of rapid dispersal facilities, various acts of omission and commission, violation of rules and bye-laws meant for public safety were other causes which contributed to the tragedy in equal proportion. A charge under this section was held to be justifiable.
It even describe about denotation “EFFECT CAUSED PARTLY BY THE ACT AND PARTLY BY OMISSION” signifies that if the cause of any crime is induced by an act and omission is an offense in the eyes of the law, it is mandatory for people to recognize that any act performed partly under the act or omission will be considered in the eyes of the law the same offence. It should be understood that causing that effect partly by the act and partly by the omission would be called the same as the offence which people always consider it not be wrong. But this section of IPC clearly states this as crime.
Example-If someone for say A, a boy intentionally causes death to girl Z, partly by illegally omitting to give food to her, and partly by beating her all day long without any reason. So, A has committed crime. So if the ACT or omission may constitute offence but omission to act may not constitute offence just as duties of citizen under article 51 of Indian Constitution. It solely depends on the circumstances So section-36 IPC provisions the court to consider all acts committed all responsibilities omitted by the defendant that finally lead to the injury.
B. ILLUSTRATION OF SECTION 36
A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder.
CASE LAW
Gajendra Nilakantappa Kawashi And Anr V.The State Of Karnataka.[17]
In this case the respondent –Police have alleged the petitioners as accused no.5 and no.6 of the commission of offences which are punishable under section 120(B) 201,409,465,468,471,477(A) with section 36 of IPC. The allegation against the accused persons was that, the accused NO.1 was working as Cluster Bank Manager (CBM) and the other person who was arrayed as accused no.2 was working as Customer Services Manager at ICICI Bank, Vijaypura.
One day on 5th of August 2015, both the cluster bank manager and customer services manager unauthorizedly took 1.5 crores from the cashier stating that the cash that they took would be handed over to the other bank. But soon after all of took place both of them went missing and when tried to contact them their mobiles were switched off. The very next day on 6th august 2015 Nazir Ahmed, friend of Cluster Bank Manager (accused no.1) approached the bank and informed them that the said Rs.1.5 Crores was in the car and the car was parked bus stand of Suryapet, and the amount was recovered after certain verifications and confirmation.
But soon after that three more complaints were lodged against both of the bank managers, namely the accused no.1 and no.2. by ICICI Bank Authorities in APMC Police Station, Bidar in crimes Nos.67/2015,68/2015 and 89/2015 by ICICI Bank Authorities. In the charge sheet which was submitted against accused No.1 and No.2 alleging misappropriation of around Rs. 70,44,25,056.But sod after that a consolidates charge sheet was also being filed, wherein the petitioners were arrayed as accused no.5 and accused no.6 ,the allegations which were against them were that the accused no.5 who was the Deputy Manager during his tenure was involved in 8 controversial transactions and transacted 8 cheques and the accused no.6 being the cashier of the said Bank was involved in 82 controversial transactions.
Since the commencement of investigation which started around 2015 till submission of the charge sheet in 2017, there was nothing on record to show or to provide as proof. So all the attempts which were made by the Investigating Agency were to arrest the petitioners. Taking into account the nature of the allegations made against the petitioners that are essentially required to be substantiated by documentary evidence, which is already in the custody of the court, there can be no apprehension on the part of those petitioners that alter such evidence. Therefore, there can be no requirement for the custody of these petitioners either for investigation purposes or for a possible trial. Their presence for trial purposes could be secured by imposing the necessary conditions.
JUDGEMENT- So the criminal petition was allowed. The petitioners were ordered to appear before the jurisdictional magistrate within the given time i.e.,15 days from the date of the order, after their appearances the magistrate shall grant them bail on the same subject on certain conditions. –
- The petitioners shall appear before the court when required.
- They shall furnish the bonds in a sum of Rs, 2,00,000/- each with two sureties.
- The petitioner shall not threaten the prosecution witnesses.
SECTION 37 OF INDIAN PENAL CODE
“Co-operation by doing one of several acts constituting an offence. —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. EXPLANATION OF THE SECTION
This section states that the denotation “CO-OPERATION BY DOING ONE OF SEVERAL ACTS CONSTITUTING AN OFFENCE” denotes when an offence is caused by committing by several acts. Any person who is intentionally involved in the commission of the act which is an offence and is a criminal activity. Any act has done either singly and jointly with any other person has committed any kind of crime is liable for the judgement of the offence.
Essential to constitute under section 37 of IPC
- Cooperation 2. Doing of several acts 3. Committing Offence
This section follows as a corollary from section 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. By co-operating in the doing of several acts which together constitute a single criminal act, each person who cooperates in the commission of that offence by doing any one of the acts is either singly or jointly liable for that offence.
If common intention is the hub of section 34, intentional cooperation is the spindle of section 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. Co-operation 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. Sections 34–38 of the Penal Code delineate the parameters of constructive or vicarious penal liability in different situations. Therefore, it is not imperative that the charge should contain the particular section of the Penal Code with which constructive liability is fastened.
B. ILLUSTRATIONS OF SECTION 37
(a) In a case where two persons A and B decides to murder the third person G, by giving him/her the small doses of poison. They both are involved in the act to murder the third person so they are both liable of the punishments of the murder, they will be considered guilty of the same offence but although they have different acts.
(b) In a case where there are two jailors A and B, they are in charge of a prisoner Z. They both get the duty of the prisoner in shifts but when they intentionally decide to starve him to death. They are intentionally involved in the acts that lead to the cause of the death of that prisoner. In this condition, they will be both be considered guilty of the offence which is the murder of the prisoner.
(c) In the case where the jailor A, is in charge of the prisoner Z. The jailor A decides to starve the prisoner Z to death, but the acts performed by the jailor A for the death of the prisoner Z is not sufficient and the jailor A gets removed from the job. Then the other jailor of B will succeed the acts of the jailor A, to cause the death of the prisoner Z and he gets successful in causing the death of the prisoner. In this case jailor, A did not complete the murder of the prisoner Z then the jailor A will be charged with the crime of Attempt to murder and the jailor B, will be charged with the offence commitment of the murder.
Difference between Section 34 and 37 of Indian Penal Code
| Section 34 | Section 37 |
| It deals with the requirement of a common intention for a criminal act done by several persons (i.e., unity of criminal behaviour which results in a criminal offence), in which case each actor becomes liable as if that act were done by him alone. | It deals with intentional cooperation in an offence committed by means of several acts, and punishes such cooperation (provided it consists in doing any one of those acts either singly or jointly with any other person) as if it constituted the offence itself. |
SECTION 38 OF INDIAN PENAL CODE
“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”.
EXPLANATION OF THE SECTION
Section 38 provides that the responsibility for the completed criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act and this section does not mention anything about intention common or otherwise or knowledge.
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. The section applies where a criminal act jointly done by several persons and the several persons have different intentions or states of knowledge in doing the joint act.
ILLUSTRATION OF SECTION 38
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.
CASE LAW
Bhaba Nanda v State of Assam[18]
In this case, X and Y were together in one side and Z other side quarrelling together. Z abused X and whereas upon X heat on Z with stick and Y stuck down Z with an axe on the head. Thus, Z received two kind of injury, where this injury was sufficient to cause death more over injury on the head. It was held that X was liable for the voluntary causing hurt and Y was held liable for the murder.
CONCLUSION
Section 34 to section 38 of IPC in chapter II of IPC dealing with ‘General Explanation’ state the conditions in which a person may be held constructively liable for the acts committed by the other members of the group. Where the criminal conspiracy and joint liability are indispensable parts of the criminal legal system in India. The study above shows the relation between them along with understanding them separately. Where it is safe to say that there is still a large scope of possible reforms in the system, it has also been modified according to the need of the hour from the time.
The basic principle which runs through sections 32 to 38 is that in certain circumstances an entire act is attributed to a person who may have performed only a fractional part of it. This axiom is laid down in section 34 in which emphasis are on the act. Sections 35–38 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. The section applies where a criminal act jointly done by several persons and the several persons have different intentions or states of knowledge in doing the joint act.
Sections 34 to 38 of IPC are inter-woven which explain the principle of joint liability in doing of a criminal act with common intention. Out of them, Sec. 34 explains about joint liability including common intention. Sec. 34 does not create distinctive substantive offence. In fact, it is only a rule of evidence.
In the scenarios involving more than one person committing an offence, leads to a complex situation in determining the intention and role of each person. in such cases the principle of joint liability is applied. It is important that the accused actively participate in a criminal act with knowledge of the consequences and share a common intention. The common intention, however, has to be incidental to the act and conduct of the accused and the circumstances of the case.
BIBLIOGRAPHY
https://shodhganga.inflibnet.ac.in/bitstream/10603/129450/15/15_chapter%207.pdf
https://www.lawctopus.com/academike/common-intention-common
[1] Vasundhara, Indian Penal Code background, Legal Bites, 29th November 2018, available at: https://www.legalbites.in/indian-penal-code-general-introduction-background/ , last seen on 29/08/2020.
[2] Queen v Gora Chand Gope, (1866) 5 South WR (Cr) 45.
[3] AIR 1997 SC 3501
[4] AIR 2001 SC 1344.
[5] Saranshkothari, Scope of imposing joint liability under Indian Penal Code, Legal Service India.com, available at: http://www.legalservicesindia.com/article/1343/Scope-of-Imposing-Joint-Liability-under-Indian-Penal-Code.html, last seen on 1/09/2020.
[6] (1869) 3 Beng LR (PC) 44, 45.
[7] AIR 1945 PC 118
[8] AIR 1944 Cal. 339
[9] 1970 Cr.L.J. 653.
[10] AIR 1925 PC 1.
[11] Ibid.
[12] AIR 1945 PC 148.
[13] Ibid.
[14] AIR 1954 SC 706.
[15] Ibid.
[16] AIR 1972 Cal 324.
[17] JT 1993 (4) SC 27
[18] AIR 1977 SC 2252
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