Misjoinder of charges does not invalidate a conviction unless it results in a failure of justice.

JUDGMENT :

This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). The appellant was the sole accused in S.C.No.44 of 2006 before the Additional Sessions Judge (Adhoc)-II, Kalpetta. He was convicted and sentenced for the offences punishable under Sections 324, 354 and 448 of the Indian Penal Code, 1860 (IPC).

2. A final report was filed by the Sub Inspector of Police, Kalpetta in crime No.177 of 2005 of that Police Station alleging offences punishable under Section 308, 354 and 448 of IPC. The allegations were that on 02.05.2005 at about 3.00 a.m. the accused tried to outrage the modesty of PW2 by trespassing into her house which bears door No.XII/702(IV) of Kalpetta Municipality. Further, he stabbed PW1 with a knife at 5.30 p.m. on 03.05.2005 with the knowledge that his intended act would have caused the death of PW1. Thus, the appellant had committed the above-mentioned offences.

3. Upon framing a charge and denying the same by the appellant, the prosecution has examined PWs.1 to 14 and proved Exts.P1 to P9. MOs.1 to 3 were identified. During examination under Section 313(1)(b) of the Code, the appellant denied incriminating circumstances. He further stated that the case was foisted by the relatives of PW2 knowing her relationship with the appellant. No defence evidence was let in.

4. The trial court, after considering the evidence found that on 02.05.2005 night the appellant trespassed into the house of PW2 and outraged her modesty by catching her hold of. It was also found that on 03.05.2005 at about 5.30 p.m. the appellant stabbed PW1 causing an injury to his left hand. The trial court took the view that the attack by the appellant on PW1 did not amount to an offence punishable under Section 308 of the IPC, but, that act amounted to an offence punishable under Section 324 of the IPC.

5. Heard the learned Amicus Curiae for the appellant and the learned Public Prosecutor.

6. The learned Amicus Curiae would submit that the conviction is bad since charges relating to two distinct offences were joined and a single trial was held, which is illegal and against the provisions in Section 218 of the Code. It is submitted that such a misjoinder of charges caused prejudice to the appellant and therefore the conviction is liable to be set aside. The further submission of the learned Amicus Curiae is that the evidence in regard to both the incidents is too scanty to enable a conviction. From the evidence, it is quite obvious that PW3 is an interested witness. Evidence of PW 1 therefore remains uncorroborated. Similarly, the evidence available regarding the incident said to have occurred at 3 O’clock in the night of 02.05.2005 is the interested testimony of PW2 alone and therefore the charge concerning that incident also is not proved.

7. The learned Public Prosecutor would submit that the two incidents were closely related inasmuch as the first incident was the causation for the second incident, and hence joinder of both the charges and a joint trial is permitted under Section 220(1) of the Code. It is submitted, if at all there is misjoinder of charges, no prejudice occurred to the accused and therefore the conviction is valid. In regard to the reliability of the witnesses, it is submitted by the learned Public Prosecutor that PWs.1 to 3 and 12 are turned out to be credible witnesses. It is accordingly contended that there is no infirmity to the findings of the trial court leading to the conviction of the appellant.

8. PW1 is the de facto complainant. It was on the basis of his statement, Ext.P1, crime was registered. PW10 reached Leo Hospital, Kalpetta, on 04.05.2005 on receipt of Ext.P7 intimation that PW1 was undergoing treatment in that hospital. He has recorded Ext.P1 statement from PW1 and based on that statement, the crime was registered by PW11. The version of PW1 is that at about 5.30 p.m. on 03.05.2005 on his way to Thurki Bazar Kalpetta, he saw the appellant and questioned him in connection with