Section 38 IPC: Persons concerned in criminal act may be guilty of different offences

Indian Penal Code, 1860

Section 38 IPC at a Glance

Section 38 IPC deals with persons concerned in criminal act may be guilty of different offences. From 1 July 2024 it is replaced by Section 3(9) BNS.

Punishment

None of its own. Each person is liable to the punishment for the offence he is guilty of.

BNS Equivalent

Section 3(9) →

Section 38 IPC Bare Act Text

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.

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.

Source: Section 38, Indian Penal Code, 1860

Section 38 IPC in Simple Words

Section 38 of the Indian Penal Code (IPC) says that 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 section creates no offence and sets no punishment.

Ingredients of Section 38 IPC

  • Several persons engaged or concerned in the commission of a criminal act
  • One criminal act committed by them
  • Guilt of different offences by means of that act

Punishment Under Section 38 IPC

Imprisonment

None of its own. Each person is liable to the punishment for the offence he is guilty of.

Fine

None of its own. Any fine comes from the section for the offence committed.

Section 38 IPC has no entry in the First Schedule to the CrPC. Cognizance, bail and the trial court follow the entry for the offence committed.

Example of Section 38 IPC

In 2017 in Coimbatore, Suraj and Naveen were both engaged in a physical attack on Dinesh outside a textile mill. Suraj joined the attack intending only to cause simple hurt by punching Dinesh on the shoulder, without knowing or intending any fatal harm. During the same attack, Naveen, who intended to kill Dinesh over a business rivalry, struck Dinesh on the head with an iron rod and killed him. Because both were concerned in the criminal act with different intentions, they are guilty of different offences by means of that act under Section 38 IPC.

When Section 38 IPC Does Not Apply

  • Section 38 IPC does not apply when a criminal act is committed by a single individual acting alone.
  • Section 38 IPC does not apply to a person who is neither engaged nor concerned in committing the criminal act.
  • Section 38 IPC does not apply when all participants act in furtherance of a shared common intention and are liable for the same offence under Section 34 IPC.

Section 38 IPC in the BNS

Section 38 IPC is now covered under Section 3(9) BNS.

Section 3(9) BNS carries the rule and its illustration in the same words. It is a sub-section of the general explanations in Section 3(9) BNS and has no heading of its own.

View detailed comparison (IPC 38 vs BNS 3(9)) →

FAQs on Section 38 IPC

What does Section 38 IPC say?▼

That 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.

What does the illustration to Section 38 IPC show?▼

A attacks Z under grave provocation, so that his killing of Z would be only culpable homicide not amounting to murder. B, who has ill-will towards Z, intends to kill him and was not subject to the provocation, assists A. B is guilty of murder and A only of culpable homicide.

How does Section 38 IPC sit with Section 34 IPC?▼

Section 34 IPC makes each person liable for a criminal act done in furtherance of the common intention of all. Section 38 IPC says that persons concerned in one criminal act may still be guilty of different offences.

Does Section 38 IPC create an offence?▼

No. It sets a rule of liability and no punishment. The punishment comes from the section for the offence each person is guilty of.

Where is Section 38 IPC in the Bharatiya Nyaya Sanhita?▼

In Section 3(9) BNS, with the same words and the same illustration.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Indian Penal Code, 1860 · Last updated: 16 Oct 2026 ·