The court held that section 248 (2) of the Code of Criminal Procedure, 1973, which provides for a mandatory sentence of imprisonment for certain offences, does not apply to a trial pending on the date of the commencement of the new Code.

S. Narain, J.

1. The sole petitioner Dasai Kandu has been convicted under section 457 of the Penal Code and sentenced to rigorous imprisonment for six months. He has further been convicted under section 354 of the Penal Code and sentenced to rigorous imprisonment for six months thereunder also. Both the sentences have been ordered to run concurrently. His appeal having been dismissed, the petitioner has come up to this Court in revision.

2. The prosecution case, briefly stated, is that shortly after sunset near about 7 p. m. on 9.8.70, the petitioner entered the house of the informant Babuni devi, that Prem Shila Kumari (P. W.5), the eight year old daughter of the informant, raised an alarm that some one had entered the house and on hearing this the informant Babuni Devi who was in the shop situated in a portion of the same house, rushed inside with a lantern and saw the petitioner inside the house. The petitioner, therefore, it is alleged dragged Babuni towards him, embraced her and kissed both her cheeks and wanted to drag her to a room. The prosecution case further is that the informant raised alarm and on her cry Pachia and Shyama Kumari came and saw the petitioner fleeing away and that the informant related the incident to them.

3. The case against the petitioner was instituted upon a first information report lodged at Sahar Police Station within whose jurisdiction the place of occurrence was situate that very day at 9-30 p. m.

4. The defence of the petitioner was that the proseoution case was false and he had been falsely implicated at the instance of Kamta Sah, brother of the informant, who was annoyed with him as he had contested him in the election for the office of Mukhia. As already stated, both the courts below have held the prosecution to have been proved beyond doubt and convicted and sentenced the petitioner.

5. The learned Advocate for the petitioner contended that the finding that the prosecution case had been proved bsyond doubt is illegal because though it was the definite case of the informant that the petitioner was identified by her in the light of the lantern, the lantern was not produced before the investigating Officer nor was it found by the Investigating Officer when he inspected the place of occurrence. The Investigating Officer (P. W.7), no doubt, stated that he did not find the lantern and further that the lantern was not produced before him, hut I do not think on that because mere omission to produce the lantern, it can be held that the prosecution case that the informant had come there with a lantern is false and that the petitioner could not have been identified. As the appellate court has pointed out, the Investigating Officer did not say that he had looked for and asked for the lantern. We do not know when the Investigating Officer inspected the place of occurrence. The appellate court has further stated that as the petitioner was a person well known to the informant and the two had come in close contact, the petitioner could have been identified even in the absence of lantern. That view cannot be said to be absolutely unreasonable. At any rate, I am not prepared to hold, nor has the appellate court held, that the story of lantern was false. In support of the aforesaid contention reliance was placed by the learned Advocate for the petitioner on the decision of the Supreme Court in the case of The State of U. P. V/s. Hari Prasad and others, (AIR 1974 SC 1740 ). That decision can hardly be regarded as an authority for the proposition that if a lantern in the light of which the identification is alleged to have been made is not produced, the prosecution case must be thrown out. In that case it was held that the story of there being a lantern was false and there were other features about the prosecution case which made it doubtful. In the other case relied by the learned advocate for the petitioner reported in 1977 Bihar Bar Council Journal 400 (Amirchand Ahir and others V/s. State of Bih