1. The first accused (appellant in C.A. No. 312 of 1942) was convicted by the Sessions Judge of Coimbatore of an offence punishable under Section 380, Indian Penal Code, and the second accused (appellant in C.A. No. 286 of 1942) of an offence punishable under Section 411, Indian Penal Code, in connection with the same stolen articles.
2. The trial was with jury; and I do not think that much can be said against the charge to the jury; but there seems to have been a misjoinder of charges. Both the appellants were charged with regard to two offences in which they were alleged to have been jointly connected alternatively under Section 380 or 411, Indian Penal Code. Section 234 read with Section 239, Criminal Procedure Code, permits of the joinder of more offences than one of the same kind committed within the space of 12 months; but it has been more than once laid down that offences under Sections 380 and 411 are not of the same kind. They are not even punishable with the same maximum term of imprisonment. So that the charging of one or more persons of offences under Section 380 and Section 411 would amount to a misjoinder of charges, although there is a specific provision in Section 236, Criminal Procedure Code, for charging a person in the alternative with regard to any one offence.
3. Although as a general rule one should presume prejudice to an accused from a misjoinder of charges, yet in the present case 1 feel that no prejudice could have resulted; because it was unnecessary for the Judge to charge the appellants in the alternative. He could have charged them under Section 380 only, in which case it would still have been open to him to have convicted either or both of them under Section 411. As a joint trial would have been permissible if the appellants had been charged under Section 380, they cannot have suffered because the Sessions Judge added as an alternative charges under Section 411.
4. The sentences are not excessive. The appeals are dismissed.