Judgment 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 1 and 2 in furtherence to a common intention have stolen away five idols form the house of Kunjaya Ammal, grandmother 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 15th July, 1983, P.W.2, the Sub-Inspector of Police attached to Crime Branch, C.I.D., had arrested accused 2 at Chintadripet at 4 p.m. and found in his possession of a bag M. O. 9 and Amman Idol M. O. 4 was found therein. Both M. Os’. were seized under mahazar Ex.P6. From the statement under S.27 of the Evidence Act given by accused 2, P.W.12 arrested accused 3 near Raja An-namalai 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. P8. A case was registered under Crime No. 50 of 1983 under Ss.41, and 192, I.P.C. 2. The Investigating Officer consulted P.W.9 an expert of the Archaeological Department who stated that the idols belonged to Seventeenth Century. P.W.12 therefore caused an advertisement to be issued in the press. Thereafter P.W.1 Velusamy gave a Complaint Ex. P1 about the theft of the idols. 3. Then it is the case of the prosecution that P.W.6 belonging to the same village as accused 1 produced A1 before P.W.12. On Completion of the investigation, P.W.12 filed final report on 13th January, 1984 under S.173, Crl.P.C., to the effect that offences under Ss.457, 380 read with S.34, I.P.C. appeared to have been committed by accused 1 and 2 and that an offence under S.414, I.P.C. also appeared to have been committed by accused 3. 4. Accordingly, charges were framed by the trial Court. The trial Court found not guilty accused 1 under Ss.457, 380 read with 34, I.P.C, and acquitted him of these charges. 4. Accordingly, charges were framed by the trial Court. The trial Court found not guilty accused 1 under Ss.457, 380 read with 34, I.P.C, and acquitted him of these charges. It found accused 2 alone guilty, of an offence under S.411 and convicted him thereunder an sentenced him to one year rigorous imprisonment Accused 3 was found guilty under S.414, I.P.C. as charged and was convicted thereunder and sentenced to one year rigorous imprisonment. 5. Accused 2 and 3 preferred an appeal before the First Additional Sessions Judge, Madras, who by judgment dated 4th December, 19S4 confirmed the conviction and sentence. 6. 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 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. 7. .As far as accused 2 is concerned, he contended that he having been charged under Ss.457 and 380, I.P.C. and acquitted of those charges, cannot be convicted under S.411, I.P.C. Learned counsel appearing for the prosecution contended that as per the provisions of S.221, Crl. P.C., and especially in view of the Illustration (b) under that section, the conviction under S.411 was legal. 8. Conviction of a person under a section other than the one under which he was charged is possible under Ss.221 and 222, Crl. P.C. Here the case of the prosecution is that the conviction is done under the power conferred under S.221 .S.221, Crl. P.C. applies when there is a doubt regarding which offence has been committed. In such a case the Court has got a choice of charging for all the offences or only one of such offences. If the second option of the alternative is made, that is to say, charging with only one offence, then the accused may be convicted for another offence. In such a case the Court has got a choice of charging for all the offences or only one of such offences. If the second option of the alternative is made, that is to say, charging with only one offence, then the accused may be convicted for another offence. This is what is explained in Illustrations (a) and (b) of S.221, Crl.P.C. Illustration (b) relied upon by the learned counsel appearing for the prosecution, has to be read along with Illustration (a). Therefore, if the act was susceptible of amounting to theft or receiving stolen properly and if there was doubt about that matter and if the accused was only charged for theft, he can be convicted for receiving of stolen property, if the latter offence was proved. In this case the charges are as follows: “Firstly: That you A.1 and A.2 Mohazaparuvoor Village, Virudhachalam Taluk, S.A. District, between January and April, 1982 in furtherence of a common intention of committing house breaking by night and to commit theft committed house breaking by night by entering into the building belonging to one Kunjayammal and used as a human dwelling after the hour of sun set and before the hour of sun rise in order to the commission of certain offence punishable with imprisonment, to wit, the offence of theft in a building and that you A1 and A2 thereby committed an offence punishable under S.457 (Part IT) read with 34 of the Indian Penal Code and within my cognizance. Secondly: That you A1, and A2 at the same time and place and in the course of the same transaction, committed in a building used as a human dwelling by one Kunjayammal, the theft of five idols, namely (1) Somaskandar (Siva), (2) Somaskandar Amman, (3) Thaniamman, (4) sitting Siva and (5) Chakkaram belonging to the Viswanathar Temple of Mohaza Paruvoor and thereby you Al and A2 committed an offence punishable under S.380 read with 34 of the Indian Penal Code and within my cognizance.” It is seen from the above that the clear case of the prosecution was that accused 2 along with accused 1 had committed theft from the house of the one Kunjayammal and that loo after breaking that house by night. Therefore, there was no doubt and the case was not one falling under S.221, Crl. Therefore, there was no doubt and the case was not one falling under S.221, Crl. P.C. If the investigation disclosed only possession of stolen idols and it was not very clear whether the possession of the articles would amount to the possession of the articles would amount to theft or whether the accused were guilty of receiving and concealing stolen property, then recourse could be had to the provision of S.221, Crl. P.C. It is clearly not so in this case. Since accused 2 had to answer the precise charge of theft after house breaking by night, he cannot be convicted for an offence under S.411, I.P.C. the ingredients of which are quite different and for which the defence necessarily has also to be different Therefore, I came to the conclusion that in the present case the provisions on S.221, Crl. P.C. do not apply and therefore, the conviction is illegal. 9. Coming now to the case of accused 3, he stands convicted of an offence under S.414, I.P.C. For an offence under S.414, I.P.C. with a specific case of the prosecution that accused 3 was assisting in disposing of the property, the charge does not disclose whom he was assisting. Since accused 3 was the accountant of accused 2 one can presume that he was not prejudiced by the fact that accused 2 was not mentioned. But no evidence was adduced to show that accused 3 assisted accused 2 in the act of disposing of the stolen property. The only evidence apart from the seizure from the accused 3 is the one of P.W.6 who said that he saw the seized idols in the house of accused 3 in January, 1983. But P.W.6 was Completely disbelieved by the Appellate Court as he was found not to be a reliable witness. Even otherwise the very simple fact that idols were found in accused 3's house would not amount to an act of actively assisting accused 2 in the disposal of the property. Therefore, the conviction against accused 3 is not sustainable. 10. In the result, the criminal revision petition is allowed and both the conviction and sentence of the petitioners are set aside. B.S. ----- Petitions allowed.