Judgment Thus Appeal raises a question viz. whether a person who stands charged for an offence under Sec. 302 I.P.C. as well as for an offence under Sec.211 I.P.C. can be found guilty and convicted for an offence under Sec.211 I.P.C. on his acquittal on the charge of murder under Sec.302 I.P.C. 2. Certain basic facts, which are not in dispute, may first be stated. The accused, Sethurama Konar, and the deceased, Seethaiammal, are closely related. Seethaiammal is the wife of the elder brother of the accused. P.W.12, Thirupathi, is the son of the deceased. P.W.8, Pandi is a Harijana. P.W. 9 Deivanai Ammal, is the Wife of P.W.8. P.W.10 is the sister of P.W.9. The accused party belonged to the community of Konar. All of them are residents of Chinthamani, situate 6 K.M. north east of Avaniapuram Police Station, Madurai. It is common ground that there was enmity between the two groups. Ten years earlier, the brother of the accused was alleged to have been murdered by the community men of P.W.8 and P.W.8 was assisting the accused persons in that case and the case ended in conviction of the relatives of P.W.8. 3. While so, on 3.3.1981 at or about 4 p.m. the accused left his village for Madurai and reached Madurai at 5 p.m. The deceased came from her village Pudur to Madurai. Both of them met at about 7 p.m. and they visited the shop of P.W. 7, Nataraja Nadar at or about 8.30 p.m. The accused asked the deceased to stay there for a while and so. saying went to Thirumalai Naicken Palace side and returned by 11 p.m. Thereafter, both of them left for their Village Chinthamani, on the way they have come across P.W. 2 Muthukaruppan and P.W.4, Kathamuthu and another. They passed through them. At or about mid-night the accused saw P.W. 8 and two others sitting on a parapet wall and they passed through them within a short time, according to the accused, P.W.8 and two other persons beat the deceased as well as the accused with a stick. The accused raised an alarm. As a result, P.W. 1 and 5 came to the place. In the meantime, P.W.8 and. two others ran away. The deceased became unconscious. The accused raised an alarm. As a result, P.W. 1 and 5 came to the place. In the meantime, P.W.8 and. two others ran away. The deceased became unconscious. From the dynamo light of the cycle belonging to P.W. 1, they were able to see, bleeding from the mouth of the deceased and she was lingering for life. The accused found a gold chain, weighing about 10 sovereigns, was missing from the neck of the deceased. Thereafter, P.W.4 went to the residence of one Krishna Konar. From there, the younger brother of the deceased was sent for. Thereafter, P.W.4 informed the Police. 4. P.W.6, Chandran, a Police Constable in the Police Control Room, Madurai, recorded the information, marked as Ex.P.9. Then he informed the police van about the message received, from P.W.4. P.W.5, Vaiyaburi, the constable, went to the scene of occurrence and saw a crowd. From there, he removed Seethaiammal and the accused and took them to Rajaji Hospital at Madurai and admitted them at 1.50 a.m. P.W.5 made a note marked as Ex.P.8. 5. P.W.2 Dr. Ramaswamy, examined the accused on 4.3.1981 at about 2.20 a.m. The accused complained of pain on the back of his neck. The Doctor found a contusion on his right thigh measuring 10 cm x 10 cm. according to P.W.2, the injury found on the accused was simple in nature and he gave Ex.P.1 wound certificate with reference to the accused. P.W.2 when examined Seethaiammal saw her dead. He gave intimation to the police under Ex.p.2. He also intimated the examination of the accused to the Police under Ex.P.3. In the meantime, P.W.17, Muneeswaran the Deputy Inspector of Police, came to know about the occurrence through the control room and rushed to the Rajaji Hospital and examined the accused at 4 p.m. The statement recorded by P.W. 17 from the accused is marked as Ex.P.19. P.W.17 returned to the station and registered Ex.P.19as his Station Cr. No.24/81 under Sections 302 and 3 79 I.P.C., and prepared express F.I.Rs. and despatched the express F.I.Rs. to the authorities concerned. Ex.P.20 is one such express F.I.R. Thereafter, P.W.17 went to Rajaji Hospital and conducted an inquest over the dead body of Seethaiammal. P.W.17 returned to the station and registered Ex.P.19as his Station Cr. No.24/81 under Sections 302 and 3 79 I.P.C., and prepared express F.I.Rs. and despatched the express F.I.Rs. to the authorities concerned. Ex.P.20 is one such express F.I.R. Thereafter, P.W.17 went to Rajaji Hospital and conducted an inquest over the dead body of Seethaiammal. During the inquest, P.W.17 examined P.W.12, the son of the deceased as well as the accused and handed over the dead body for post mortem to P.W.16, Gandhi, with a request to conduct the post mortem. Ex.P.4 is the requisition. Ex.P.21 is the inquest report. Then, P.W.17, visited the scene of occurrence, prepared Ex.P.6 mahazar and draw a sketch marked as Ex.P.22. He seized M.O.1, blood stained earth, M.O.2 yellow bag containing two cocoanuts, marked as M.O.3 series, a bottle marked as M.O.4 and a sweep wrapped in a paper, marked as M.O.5, under Ex.P.7, attested by P.W.4 On the very same day, he examined P.Ws. 1, 4, 50, 8 and 11. P.W.8 was detained at Avaniapuram Police Station by the Deputy Superintendent of Police and the Sub-Inspector of Police. He examined. P.W.8 at the Police Station. 6. In the meanwhile, P.W.3, Dr. Rajendran, conducted the post mortem over the dead body of Seethaiammal and noticed the following injuries: 1. Abrasion on the right side of forehead 2 cms. above the lateral end of ‘eye brows 6 x 6 cms. On dissection: contusion underlying tissue 7 x 6 cms. 2. Abrasion on the left side of forehead. 3 cms above the eye brow 6 x 6 cms. On dissection contusion underlying tissue 7 x 7 cms. 3. Abrasion on the left side of face over cheek 10 x 6 cms. On dissection contusion underlying tissue 12 x 7 cms. 4. Abrasion on the front of chest on left side 3 cms. below the left collar bone 3 x 2 cms. On dissection: contusion underlying tissue 5 x 3 cms; 5. Abrasion on the right side of face 4 cms. below the right lower eye lid 4 x 3 cms. On dissection: contusion underlying tissue 5 x 4 cms. 6. Saccration on the left car lobe 2 x 2 cms. 7. Loosening of the 6 teeth on the upper jaw with alteration of the gum margins and bleeding present (4 incisor and two canine on both sides). 8. Contusion over the seerums anteriorly 6 x 6 cms. On dissection: contusion underlying tissue 5 x 4 cms. 6. Saccration on the left car lobe 2 x 2 cms. 7. Loosening of the 6 teeth on the upper jaw with alteration of the gum margins and bleeding present (4 incisor and two canine on both sides). 8. Contusion over the seerums anteriorly 6 x 6 cms. and posterior contusion 7 x 4 cms. at the level of sterno-clavicular Joint 9. Fracture of the 2nd rib on right side in the anterior axillary (toe) 10. Contusion of the tissue on the joint and both sides of the neck 16 x 10 cms. 11. Bruising of the tissue on the front of thyroid cartilage 6 x 3 cms. On dissection fracture of the thyroid cartilage on both sides over the superior horn. 12. Contusion on the tissue around the hyoid bone 7 x 3 cms. On dissection fracture of the born of hyoid bone on both sides. 13. On further dissection contusion of the tissues over the larynx, trachea 3 x 3 cms. and over the ossophagus 4 x 3 cms. Ex.P.5 is the post mortem certificate. According to P.W.5, deceased would appear to have died of asphyxia due to compression of the neck. P.W.3 on 5.3.1981 and noticed the discrepancies between the contents of Ex.P.19 and P.W.5. Since the evidence of P.W.3 revealed that the deceased died as a result of asphyxia due to compression of the neck, P.W.17 suspected that the contents of Ex.P. 19 could not be true and suspected the accused and searched for the accused. The accused was absconding. On 6.5.1981 he examined P.W.2 the Doctor, who examined the accused. The accused was arrested at about 4.30 p.m. on 10.8.1981. After examining the accused, they visited the shop of P.W.14, a pawn broker and recovered Exts.P.11 to P.13, which are not in any way connected with this crime. Thereafter, he remanded the accused. After completing the investigation, to laid the charge sheet against the accused for offences under Secs.302 and 211 I.P.C. on 14.4.1981. 7. The first charge is for having murdered Seethaiammal at or about 12 mid-night on 3.3.1981. The second charge is for falsely implicating P.W.8 as the murderor of Seethaiammal. 8. When questioned on the evidence appearing against the accused, the accused denied the offence and stuck to the F.I.R. marked as Ex.P.19. 7. The first charge is for having murdered Seethaiammal at or about 12 mid-night on 3.3.1981. The second charge is for falsely implicating P.W.8 as the murderor of Seethaiammal. 8. When questioned on the evidence appearing against the accused, the accused denied the offence and stuck to the F.I.R. marked as Ex.P.19. He did not examine any witness on his behalf, but marked Ex.D.1, the statement of P.W.12 recorded by P.W. 17 under Sec.104 Cr.P.C. 9. On a consideration of the oral and documentary evidence, the trial Court came to the conclusion that no ground has been made out to warrant a conviction for an offence under Sec.302 I.P.C. However, the trial court found the accused guilty for an offence under Sec.211 I.P.C. and sentenced him to undergo rigorous imprisonment for two years. 10. Learned counsel for the appellant contended that the trial Court erred in convicting the appellant for an offence under Sec.211 I.P.C. after having acquitted him for an offence under Sec.302 I.P.C. and cited the decision reported in re, Dodda Narasa, (1938) 2 M.L.J. 771 : 48 L.W. 601: A.I.R. 1939 Madras 59. In that case, the learned Sessions Judge convicted the accused not only for an offence under Sec.302 I.P.C. but also for an offence under Sec.211 I.P.C. In the appeal preferred by the accused, the High Court found the evidence defective to convict the accused for an offence under Sec.302 I.P.C. and acquitted him. while acquitting the accused, the High Court has observed that if the conviction for murder is set aside, the conviction for the offence under S.211 must fall automatically. On that ground, the High Court set aside the conviction under Sections 302 and 211 I.P.C. During the course of the judgment the High Court has observed as follows: "It is obviously very embarrassing to the accused to have to answer a charge of murder at the same time as a charge of wilfully preferring a false complaint of murder. It is also embarrassing to the prosecution and may lead, as we fear it has led in this case, to failure of justice. I find what the High Court has observed in that case is applicable in all fours to the facts of this case also. It is also embarrassing to the prosecution and may lead, as we fear it has led in this case, to failure of justice. I find what the High Court has observed in that case is applicable in all fours to the facts of this case also. Further, though there is no irregularity of trying an accused for an offence under Sec.302 I.P.C. as well as for an offence under Sec.211 I.P.C., it would be in’ the interest of the public that the Investigating Officer follows the procedure stated in Sec.169 Cr.P.C. in such a situation. In case the Investigating Officer has followed the procedure stated in Sec.169 Cr.P.C. he would have forwarded P.W.8 to a Magistrate with or without sureties with no undertaking to appear before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused of commit him for trial. P.W.17 instead of following the procedure stated in Sec.169 Cr.P.C. came to the conclusion on his own accord that what is stated in Ex.P.19, the report given by the accused, which he has registered as the F.I.R. as false and straightway filed the charge sheet against the accused under the same Crime No. in which the appellant is not shown as an accused. P.W.17 ought to have registered a fresh Crime No. against the accused for an offence under Sec.302 I.P.C. as provided in Sec.174 Cr.P.C. and should have investigated the case before filing a charge sheet against the accused. In this case, the trial Court has been carried away by the discrepancy found in Ex.P.19 as well as in the evidence of P.W.3. Even the evidence of P.W.3 as well as the number of injuries found on the deceased show that the injuries could not have been caused by one person within a short time. The conviction of the accused for an offence under Sec.211 I.P.C. is purely based on presumption. Because of that the trial Court was not in a position to put any question concerning the offence under Sec.211 I.P.C. The evidence of P.W.12, the son of the deceased, shows that it is the appellant who is taking care of his family and there is nothing to infer any motive for the appellant to murder the deceased. 11. Because of that the trial Court was not in a position to put any question concerning the offence under Sec.211 I.P.C. The evidence of P.W.12, the son of the deceased, shows that it is the appellant who is taking care of his family and there is nothing to infer any motive for the appellant to murder the deceased. 11. Learned counsel for the appellant raised a plea that Sec.195(1)(b)(i) Cr.P.C. is a bar for prosecuting the appellant under Sec.211 I.P.C. Sec.195(1)(b)(i) reads as follows: “No Court shall take cognizance-of any offence punishable under any of the following sections of the Indian Penal Code, namely Sections. 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, any Court, or...” According to the, learned counsel, the Crime No. pertaining to P.W.8 alone is before the trial Court and the appellant was remanded in that Crime No. As such, the offence alleged to have been committed by the appellant is in relation to the proceeding pending before the trial Court, therefore, the trial court ought not to have taken cognizance of the offence against the appellant without following the procedure stated in Sec.195(1)(b)(i) Cr.P.C. Since I find that the conviction of the appellant is based on no evidence but on presumption, it is unnecessary to go into the question raised by the counsel now. 12. In the result, the appeal is allowed and the conviction and sentence of the appellant/accused under Sec.211 I.P.C. are set aside, the bail bonds, if any, shall stand cancelled.