IMPORTANT POINT
Section 221, Criminal Procedure Code, 1973 applies when there is a doubt regarding which offence has been committed.

JUDGMENT

David Annoussamy, J. - This petition coming on for hearing on this day upon perusing the petition, and the Judgment of the Lower Courts, and the record in the case, and upon hearing the arguments of Mr. T.S. Arunachalam, Advocate for the Petitioners, and of Mr. T. Munirathnam Naidu for the Public Prosecutor on behalf of the State, the Court made the following Order:

2. This is a criminal revision case by accused 2 and 3. Originally there were three accused. The first accused belongs to a village called Mohaza Paruvoor. The second accused is a vessel merchant belonging to a nearby village. The third accused is an accountant under the second accused. The case of the prosecution is that accused’s 1 and 2 in furtherance of a common intention have stolen away five idols from the house of Kunjaya Ammal grand-mother of P W. 1, Velusamy, between January and April 1982 by house breaking by night and that accused 3 has assisted accused 2 in disposing of the stolen properties. On 15.7.1983, P.W. 12, the Sub-Inspector of

Police attached to Crime Branch, C.I.D. arrested accused 2 at Chintadripet at 4 p.m. and found in his possession a bag M.O. 9 and Amman Idol M.O. 4 was found therein. Both the M.Os. were seized under mahazar Ex. P-6. From the statement under section 27 of the Evidence Act given by accused 2, P. W. 12 arrested accused 3 near Raja Annamalai Manram, From Accused 3 he seized a box M.O. 8 containing four idols covered by a gunny bag M.O. 10. All the articles along with the key of the box were seized under mahazar Ex. P-8. A case was registered under Crime No. 50 of 1983 under sections 41 and 102, I.P.C.

3. The Investigating Officer consulted P.W. 9 an expert of the Archaeological Department who stated that the idols belonged to the Seventeenth Century. P.W. 12 therefore caused an advertisement to be issued in the press. Thereafter P.W. 1 Velusamy gave a complaint Ex. P-l about the theft of the idols.

4. Then it is the case of the prosecution that P.W. 6 belonging to the same village as accused produced A-1 before P.W. 12. On completion of the investigation, P.W. 12 filed a film report on 13.1.1984 under section 173, Cr.P.C. to the effect that offences under sections 457, 380 read with section 34, I.P.C. appeared to have been committed by accused’s 1 and 2 and that an offence under section 414, I.P.C. also appeared to have been committed by accused 3.

5. Accordingly, charges were framed by the trial Court. The trial Court found not guilty accused 1 under sections 457, 380 read with 34 I.P.C. and acquitted him of these charges. It found accused 2 alone guilty of an offence under section 411 and convicted him thereunder and sentenced him to one year's rigorous imprisonment. Accused 3 was found guilty under section 414, I.P.C. as charged and was convicted thereunder and sentenced to one year's rigorous imprisonment.

6. Accuseds 2 and 3 preferred an appeal before the First Additional Sessions Judge, Madras, who by Judgment dated 4.12.1984 confirmed the conviction and sentence.

7. Learned counsel for the revision petitioners raised several contentions. One such contention was that the arrest and the seizure as spoken to by P.W. 12 could not be true and that the defence has produced sufficient witness to show that the version of the investigating officer was far from truth. But that contention of the defence which was put before the trial Court and repeated before the Appellate Court was not accepted by any of them. I do not go into that contention raised also in this revision petition since the learned counsel for the revision petitioners has raised other contentions relating to law.

8. As far as accused 2 is concerned, he contended that he having been charged under sections 457 and 381, I.P.C. and acquitted of those charges, cannot be convicted under section 411, I.P.C. Learned Counsel appearing for the Prosecution contended that as per the provisions of section 221, Cr.P.C. and especially in view of the Illustration (b) u