M.L. Visa, J.
1. These five appeals by five appellants, each filing separate appeal, on his behalf, have been heard together and are being disposed of by this common judgment as all these appeals arise out of same judgment dated 30-8-1996 and order dated 31-8-1996 passed by the 2nd Addl;. Sessions Judge, Bhagalpur in Sessions Trial No. 423/93 convicting and sentencing appellant Lallua alias Lallua Mian to life imprisonment under Section 302, IPC and remaining four appellants, namely, Piyaru alias Piyarua Mian, Lallu alias Masood Akhtar, Md. Chand and Md. Quaisar to life imprisonment under Section 302/34, IPC. All the five appellants have further been convicted and sentenced to RI for five years each under Section 3 and Section 4 of the Explosive Substances Act and R.I. for two years under Section 27 of Arms Act. Besides this, appellants Lallua alias Lallua Mian and Piyaru alias Piyaraua Mian have been further convicted and sentenced to undergo RI for five years each under Section 307, IPC. The appellant Piyaru alias Piyarua Mian. Md. Quaisar, Lallua alias Masood Akhtar and Md. Chand have been convicted under Section 436, IPC also but no separate sentence under this count has been passed. All the sentences passed against the appellants have, however, been ordered to run concurrently.
2. The case of prosecution, as disclosed in the fardbeyan of informant Kumari Shabnam (PW 8) recorded by S.I., Sita Ram Singh (P.W. 13) on 14-5-1990 at 11.30 a.m. at Tatarpur Chowk P.S. Kotwali, District Bhagalpur, in short is that on 14-5-1990 informant along with her mother Bunni Begam (PW 5) and her younger sister Gudiya (PW 7) was sitting in her house situate on the south side of a road near Tatarpur Chowk. Her younger brother Jawed (deceased) aged about 15-16 years at that time was in his betel shop situate on the north side of road in front of the house of informant. At about 11.00 a.m. 10-12 miscreants came from the east of market to the shop of Jawed. Out of them informant identified the appellants and co-accused Sallan Mian, Nisam Kana and Mahtab (all three declared absconders). Appellant Lallua (in his examination under Section 313, Cr.P.C. as Lallua alias Lallua Mian and in the Fardbeyan and evidence of prosecution witnesses described as Lallua son of Md. Kallu or Lallua of Habibpurwala but hereinafter referred to as Lallua) was carrying a pistol in one hand and a bomb in other hand, appellant Piyaru alias Piyarua Mian was carrying a pistol in one hand and a bag of bombs in his other hand, appellant Lallu (in chargesheet Lallua, alias Maksood Akhatar and in Fardbeyan and evidence of prosecution witnesses described as Lallu son of Jahir or Lallu of Tatarpurwala but hereinafter referred to as Lallu) was carrying pistol in both the hands, appellant Md. Quaisar was carrying a bag containing bombs and appellant Md. Chand were carrying a pistol in one hand and a bomb in other hand. Co-accused Nasim was carrying a bag containing bombs, co-accused Mahatab was carrying a pistol in one hand and a bag of bombs in other hand and co-accused Sallan was carrying pistol in his both hands. The moment the miscreants reached the shop of Jawed appellant Lallua assaulted Jawed by butt of pistol on his head. Jawed cried and the informant along with her mother (P.W. 5) and her younger sister Gudiya (P.W. 4) went to his shop to rescue him. In the meantime Jawed went running on the roof of the house of Dr. K. Rehman (PW 1). Appellant Lallua and co-accused Sallan Mian chased him and caught hold of him on the roof of the house of Dr. K. Rehman and they brought Jawed down from the roof by dragging him. The informant, her mother, and sister requested the appellants and their companies to spare Jawed but they did not listen to them. Jawed clung to his mother. Appellant Piyaru alias Piyarua Mian hurled a bomb on Jawed but the bomb did not explode. In the meantime appellant Lallua Mian hurled a bomb on Jawed which exploded causing injuries to Jawed and Bunni Begaum (PW 5), who both, after receiving injuries fell down on the side of he road. Thereafter the appellants and their companions set the shop of informant on fire and also hurled bomb on the shop. Co-accused Sallan Mian by abusing said that he would finish the entire family of informant by throwing bombs and thereafter all the appellants and their companions fled away to south towards Habibpur. The informant found that Jawed had already died and her mother had received serious injuries. The occurrences was witnessed by number of persons who had assembled there on hearing 'hulla' and the sound of explosion of bomb. About the motive of occurrence the informant in her fardbeyan stated that in the same year on the 10th day of 'Ramjan' her elder brother Md. Ekbal was murdered by the appellants and 22 days thereafter the appellants had also shot at his younger brother Md. Harul, who at that time was under treatment. Giving the reason of rivalry she stated that there are two groups in her mohalla - one led by co-accused Sallan Mian and another by Ansari Mian and her elder brother Zinna Mian was in Ansari group. She further stated that in the same year one Ismail Vakil of her Mohalla was a candidate in an election who was supported by the group of Sallan Mian but her brother did not support Ismail Vakil which had caused annoyance to him and he had given threats that he would finish the entire family of informant. According to informant Ismail Vakil was instrumental for the occurrence who had instigated co-accused Sallan Mian to commit the occurrence. On the basis of the fardbeyan of informant a case under Sections 148, 149, 302, 435, 427, 342, 302 and 109 of IPC, under Sections 3, 4 and 5 of Explosive Substances Act and under Section 27 of Arms Act was registered against the appellants as well as against co-accused Sallan Mian, Nasim Kana and Mahatab. Sita Ram Singh (PW 13) after recording the fardbeyan (Ext. 5) and registration of a case by drawing a formal F.I.R. (Ext. 9) took up the investigation of the case, inspected the place of occurrence, prepared inquest report (Ext. 6) of deceased Jawad, seized burnt ashes of bamboo, a burnt piece of tarpol aburnt packet of inscence from the shop of deceased and prepared seizure list (Ext. 7) and also seized remains of exploded bombs near the place where the dead body was lying and prepared another seizure list (Ext. 8) and also seized a live bomb and prepared separate seizure list (Ext. 8/1) and after investigation submitted charge sheet against the appellants as well as against co-accused Sallan Mian, Nasim Kana and Mahatab, who could not be apprehended and were declared absconder by the committing Court and the case of appellants only was committed to the Court of Sessions where charges under Section 302 read with Sections 34 and 436, IPC under Sections 3 and 4 of Explosive Substances Act and Section 27 of Arms Act were framed against all the five appellants. Besides this, a separate charge under Section 397, IPC against appellant Piyaru alias Piyarua Mian and charges under Sections 302 and 307, IPC were framed against appellant Lallu. The appellants denied the charges against them and they pleaded not guilty. Their defence, as it appears from the witnesses examined on their behalf as well as from the trend of cross-examination of prosecution witnesses is that on the date of alleged occurrence appellant Lallu was posted at A.N. College, Dumka and at the time of the alleged occurrence he was there and the appellants have been falsely implicated in this case on account of their enmity with the informant's party.
3. In order to prove its case the prosecution examined 13 witnesses. Dr. Kalimur Rahman (PW 1) has been declared hostile by the prosecution. Sajid Ali (PW 2), Dr. Md. Ataur Rahman (P.W. 3) and Md. Woli (P.W. 4) are formal witnesses, who have proved signatures on inquest report (Exhs. 1 and 1/1) and signatures on seizure list (Exts. 1/2 and 1/5), Md. Hassan Uddin Khan (P.W. 12) is also a formal witness who has proved sanction for prosecution (Ext. 4) for offences under Explosive Substances Act. Shabnam (P.W. 8) is the informant, Bunni Begum (P.W. 5) is the mother of informant, Zeenat Parwin (P.W.6), minor sister of informant, Gudiya (P.W, 7) another sister of informant and Bibi Nanhi (P.W. 11) elder sister of informant are eye-witnesses to the occurrence and out of these witnesses Bunni Begum (P.W. 5) is also said to have received injuries at the time of occurrence. Dr. Kailash Jha (P.W. 9) is the doctor who had conducted the autopsy on the deadbody of deceased Jawed. Dr. M. Izhar (PW 10) is the doctor who had examined the injured Bunni Begum (P.W. 5). Sita Ram Singh (P.W. 13 ) is the I.O.
4. Dr. Kailash Jha (P.W. 9) in his evidence has stated that on 14-5-1990 al 2.00 p.m. he conducted the post mortem examination on the dead body of deceased Md. Jawed and found the following ante mortem injuries on the body ;
(i) Multiple bruises, abrasions and lacerations with seizing of spleen and yellow powder deposition on spleen at chest, abdomen, thigh and arm anteriorly as blast wounds, Fibre iron pieces recovered.
(ii) Firearm wound of entry on right side neck 1 /2' round x soft tissue of neck right to mid line in middle zone. One metallic bullet was recovered from it.
According to him aforesaid injury No. (i)was caused by explosives and injury No. (ii) was caused by firearm and the cause of death was shock and haemorrhage and time since death elapsed was 3 to 6 hours. He has proved his post-mortem examination report (Ext. 2) and in cross-examination he has stated that injury No. 1 cannot be caused if a bomb in preparation by the injured himself blasts and injury No. (ii) was the bullet injury and not a pellet injury and it was not possible if pellet is there in the bomb. From the evidence of this witness it appears that death of deceased was the result of injuries caused by bomb explosion and firearm and it was homicide. Now it has to be seen what evidence has been led on behalf of prosecution against the appellants for making them responsible for the injuries.
5. Shabnam (P.W. 8), the informant, in her evidence has stated that at the time of occurrence she was standing in a lane in front of her 'darwaja' and at that time her deceased-brother was in his betel and cigarette shop. Her mother and her sister were also with her. She heard cries of her brother from the shop and she then along with her mother and sister ran towards there (them) and she went to the shop. She found appellant-Lallua assaulting his brother on his head by the butt of his revolver. She identified all the five appellants and co-accused-Mehtab, Nasim and Sallan. Some others were also with them but she could not identify them. Appellants-Lallua, Piyaru and Lallu were carrying revolvers and bags containing bombs and appellants-Quaisar and Chand were carrying bags with bombs and their other companions were also carrying revolvers and bags with bombs. Her brother after receiving injuries by the butt of revolver went running to the roof of the house of Dr. Kalimur Rehman (P.W. 1) but he was brought on road by dragging by appellants-Lallua and co-accused-Sallan and thereafter appellants-Piyaru and Lallua threw bombs on her brother who by that time had clung to her mother. The bomb exploded and her brother died on the spot and her mother was also injured and thereafter all the appellants throwing bombs fled away towards east. She has further stated that earlier also appellants had killed her brother Ikbal. Bunni Begam (P.W. 5) is the mother of deceased. She in her evidence has stated that at the time of occurrence she was at her 'darwaja' along with her daughter Bibi Nanhi (P.W. 11), Shabnam (P.W. 8) and Guidya (P.W. 7) and at about 11.00 a.m. she heard the cries of her son Jawed and then she went running to the betel-biri shop where she saw all the five appellants along with co-accused-Sallan, Mahtab and Nasim, who all chased her son, who ran on the roof of house of Dr. Kalimur Rehman (P.W. 1). Thereafter all the appellants and their companions brought her son from the roof of Dr. Kaliman Rehman by dragging him and her son then clung to her asking her to save him. Appellant-Piyaru then hurled a bomb and thereafter appellant-Lallua also threw a bomb which exploded and her son Javed died on the spot and she also received injuries. She has stated that all appellants were carrying revolvers and bags of bombs. She has further stated that thereafter the appellants set her shop on fire causing damage to articles worth Rs. 20,000/- and they also looted away articles from her shop. Zeenat Parwin (P.W. 6) is the. sister of deceased as well as of informant. She is a child witness and she has been examined after voire dire. She in her evidence has stated that at the time of occurrence she along with her mother, three sisters and brother was at 'darwaja' of her house when she heard cries of her brother Md. Jawed from the shop and she then along with her mother and sister ran towards the shop where she found that her brother Md. Jawed was running towards the roof of the house of Dr. Kalimur Rehman and was crying for help. Appellants-Lallua and co-accused-Sallan went to the roof of house of Dr. Kalimur Rehman, caught hold of her brother Md. Jawed and brought him down. Her brother clung to her mother. Appellant-Lallua and Piyaru then threw bombs which exploded and her brother Md. Jawed died on the spot and her mother also received injuries. She has said that among the miscreants she identified the appellants-Lallua, Piyaru, Chand and Quaisar and co-accused-Sallan and Mahtab. She has also stated that the appellants and their companions while leaving the place of occurrence set fire to the shop of his brother and looted away its articles. Gudiya (P.W. 7), the sister of deceased, in her evidence has stated that at the time of occurrence she was walking at her 'darwaja' and she heard cries of her brother Md. Jawed from the shop and she along with Zeenat (P.W. 6), Shabnam (P.W. 8) and her mother Bunni Begam (P.W. 5) went there and found that her brother Md. Jawed was running from his shop towards the roof of the house of Dr. Kalimur Rehman but appellants-Piyaru, Lallua and co-accused-Sallan brought him down by dragging him and her brother then clung to her mother and then appellant-Piyaru threw a bomb. Thereafter appellant-Lallua threw a bomb and her brother died on the spot. Her mother was badly injured. She has stated that among the miscreants she identified all the five appellants and co-accused-Sallan, Nasim and Mahtab and the appellants and their companions all were carrying bombs and revolvers. Bibi Nanhi (P.W. 11) another sister of deceased Md. Jawed in her evidence has stated that at the time of occurrence she was walking at her 'darwaja' when she heard the cries of her brother and she then along with her mother and sister went running to the shop of her father where she found 10-12- miscreants assaulting her brother Jawed and thereafter appellant-Piyaru assaulted her brother by bomb and other miscreants also assaulted her brother and they set fire to the shop of her father and when her mother went to save him she was also assaulted by bomb. She has said that among the miscreants she identified the appellants and co-accused-Sallan and Mahtab.
6. Dr. M. Izhar (P.W. 10) is the doctor who had examined Bunni Begam (P.W. 5), the mother of deceased. He in his evidence has stated that on 14-5-1990 at 11.30 a.m. he examined Bunni Begam and found the following injuries on her person :
i) Lacerated bleeding wound on the medial aspect of left leg 3' x 2' x 1/2'.
ii) Multiple splinter injury on left buttock with haematoma spreading in a wide area with charring.
iii) Splinter injury on posterior aspect of back of left thigh 1/2 in diameter.
iv) Multiple splinter injury on the lateral aspect of left elbow.
According to him all the aforesaid injuries were caused by explosive substances and age of injuries was within six hours. In cross-examination he has said that the injuries were possible by a bomb blast. He has proved the injury report which is marked as Ext. 3. The evidence of Bunni Begam (P.W. 5) coupled with the medical evidence of P.W. 10, the doctor who had examined her, supports the case of prosecution that Bunni Begam had received injuries by the explosion of bomb at the time of occurrence. At the time of her examination before the Court below she by showing her left leg deposed that the injury caused by explosion of bomb flesh of her left leg had been blown up.
7. Sita Ram Singh (P.W. 13) is the I.O. of the case. He in his evidence has stated that on 14-5-1990 he was posted as Officer Incharge at Tatarpur Police Station and on that day after hearing the sound of explosion of bomb he reached the place of occurrence where he recorded the fardbeyan (Ext. 5) of informant and thereafter he took up the investigation of the case and he prepared the inquest report (Ext. 6) of the dead body of the deceased-Jawed and sent the dead body for post-mortem examination. He has further stated that other senior police officers also reached the place of occurrence and supervised the investigation and he handed over the fardbeyan of informant to S.I. Ram Bilash Singh for instituting a case and he himself inspected the place of occurrence. According to him place of occurrence is situate towards north of the betel shop of deceased and he found the shop completely burnt and he seized burnt pieces of bamboos, tarpaulin and incense sticks and prepared a seizure list (Ext. 7). He had found the deadbody of the deceased at the place of occurrence where he also found blood in abundant quantity and also found remains of exploded bombs near the dead body and he seized those remains and prepared another seizure list (Ext. 8). He also seized a live bomb which was found at a distance of 3' west from the place where the deadbody was lying and he prepared a separate seizure list (Ext. 8/1). After completing investigation he submitted charge-sheet. He has proved the formal FIR marked as Ext. 9. Considering the evidence of eye-witnesses to the occurrence, evidence of P.W. 9, the doctor who had conducted autopsy on the dead body of the deceased, evidence of P.W. 10, the doctor who had examined the injuries on Bunni Begam and the evidence of I.O. we find that prosecution has fully proved its case against the appellants. The eye-witnesses to the occurrence have been cross-examined at length but the defence has not been able to elicit any fact from their evidence to disbelieve them. Only this much has been argued that all the eyewitnesses arc closely related to each other and no independent witness has been examined by prosecution in this case. It is true that all the eye-witnesses examined in this case are closely related to deceased but then the house of deceased is situate at a distance of 50 yards from the place where the dead body of the deceased was found as stated by the I.O. in para 9 of his evidence. The eyewitnesses to the occurrence are none else but the family members of the deceased and because the occurrence took place near their house so their presence in their house at the time of occurrence and their coming to the place of occurrence after hearing the cries of deceased who was being badly chased by the appellants cannot be said to be unnatural.
8. Now coming to the case of defence on the point of alibi of appellant-Lallu we find that the case of defence is that at the time of occurrence this appellant was on duty at A.N. College at Dumka where this appellant is employed as a Peon. The defence has examined three witnesses to prove the alibi of appellant-Laliu. Dilip Kumar Ghose (D.W. ' 2) a Headclerk of A.N. College, Dumka, in his evidence has stated that on 14-5-1990 appellant-Lallu had put his signature (Ext. D) on the attendance register and Rajesh Kumar Singh (D.W. 1), the Principal of A.N. College, Dumka, in his evidence has proved some entries (Ext. A) in an employment register in the pen of D.W. 2 and has said that on 14-5-1990 appellant-Lallu was in office from 10.00 a.m. to 5.00 p.m. In cross-examination he has stated that on 14-5-1990 the appellant had not put his signature in the attendance register in his presence. Again he has said that on 14-5-1990 he had allotted the duty to appellant as night guard. This witness has proved his signature (Ext. C) on a letter in the pen of one Manoranjan Choudhary. In this letter he has shown appellant-Lallu on duty on 2-3-1990 but he has admitted that in the attendance register there is no attendance mark of appellant-Lallu for 2-3-1990. This evidence clearly suggests that no reliance can be placed on the attendance register. The Court below has rightly observed that D.W. 1 being Principal of the College was negligent of his duties and he issued letter in favour of appellant-Lallu showing his presence on 2-3-1990 without verifying the attendance register and actual state regarding his joining on 2-3-1990. The Court below has also noticed that the attendance of appellant-Lallu for 14-5-1990 in the attendance register which is in the pen of D.W. 2 differs from all other writings of D.W. 2 on all pages and it is in different ink. It has also been argued that appellant-Lallu who has been described in fardbeyan and in the evidence of prosecution witness as resident of Tatarpur is, in fact, a resident of Mohalla Asanandpur and not of Tatarpur. Md. Ansar (D.W. 3) in his evidence has stated that appellant-Lallu is a resident of Mohalla Asanandpur and is his neighbour and he does not own any house in Mohalla Tatarpur. In cross-examination he has said that he does not know the holding number of the house of appellant-Lallu. The Court below has rightly observed that the appellant-Lallu has not brought any document on record to show that he had a house at Mohalla Asanandpur at the time of occurrence. It has further been argued on behalf of this appellant that in fact his real name is Md. Masood Akhtar but Shabanam (P.W. 8) the informant in para 11 of her evidence has stated that she does not know anyone named Md. Masood Akhtar. Similarly Zeenat Parwin (P.W. 6) in para 9 of her evidence has stated that she does not know any Masood Akhtar of Asanandpur and Gudiya (P.W. 7) in para 16 of her evidence has also stated that she does not know anybody named Masood Akhtar. In fact, the argument is that the evidence of aforesaid witnesses completely negatives the presence of this appellant at the time of occurrence and his participation in the alleged crime. This appellant has been described by the aforesaid witnesses as Lallu and as stated earlier while submitting charge-sheet the name of this appellant was shown as Lallu alias Md. Masood Akhtar. From the perusal of the evidence of the aforesaid three witnesses we find that when Shabnam (P.W. 8), the informant, and Gudiya (P.W. 7) were examined as witnesses by Court below on that day he was present in Court and he was identified by these witnesses. Gudiya (P.W. 7) in fact identified him in dock by describing him as Lallu son of Zahir. On both the occasions the claim of identification of all the appellants including this appellant was not challenged which is clearly mentioned in the deposition of these two witnesses. When Zeenat Parwin (P.W. 6) was examined by the Court below as a witness on that day this appellant was not physically present in the Court and was represented through his lawyer. Once this appellant was identified by witnesses in Court as Lallu and this identification was not challenged, therefore, now he cannot take the plea that he is not Lallu and his only name is Md. Masood Akhtar. If the witnesses do not know the alias name, which is Md. Masood Akhtar, of this appellant that will not be ground for discarding their positive evidence where they identified him as Lallu and have stated that he was also one of the accused persons taking part in commission of the offence.
9. It has been argued on behalf of the appellants that Shabnam (P.W. 8) in para 8 of her evidence has stated that she had no relation with the appellants either before the occurrence or after it which suggests that the appellants were not known to her from before and falsifies her evidence that at the time of occurrence she identified the appellants. We are unable to accept this argument. Simply because there was no relation between the informant and the appellants from before the occurrence it cannot be a ground to hold that the appellants were not known to the informant. It has also been argued that the prosecution witnesses have stated that at the time of occurrence the deceased had clung to his mother and Gudiya (P.W. 7) in her evidence has stated that the deceased clung to her mother from front side and in this view of matter the deceased could not have received injuries on front portion of his body such as chest and abdomen which were found by Dr. Kailash (P.W. 9) who held autopsy on the dead body. It is true that the prosecution witnesses have stated that when the deceased had clung to his mother thereafter the bombs were thrown and they have stated that appellants-Piyaru and Lallua both had thrown bombs. The evidence of Bunni Begam is that first Piyaru threw bomb and thereafter Lallua threw bomb which exploded. The deceased received injuries by explosion of bomb. It is true that according to the case of prosecution before the bombs were thrown, deceased clung to his mother but this does not mean that at the time when the bomb thrown by appellant-Lallua exploded at that time also he was so closely clung to his mother that he would not have received injuries by the splinters of bombs. There is consistent evidence of prosecution witnesses that deceased received injuries by the explosion of bomb and he died on the spot. This is further supported by the medical evidence of Dr. Kailash Jha (P.W. 9) who had conducted autopsy on the dead body of the deceased. It is true that the doctor (P.W. 9) who had held post-mortem examination on the deadbody of deceased besides injuries caused by explosives he also found another ante-mortem injury on right side of neck of deceased which was caused by firearm and one metallic bullet was recovered from this wound. According to him the cause of death was shock and haemorrhage. He has not classified whether combined effect of both the injuries was the cause of death or each of the two injuries was itself sufficient to cause the death. The eye-witnesses to the occurrence have not stated the use of fire arm for causing injury to the deceased but all of them have said that the deceased was chased by appellants and was brought down by dragging from the roof of the house of Dr. Kalimur Rahman (P.W. 1) and thereafter bombs were hurled and he received injuries by the explosion of bomb and he instantaneously died on the spot. In presence of ocular evidence coupled with the medical evidence we find that the prosecution has proved its case beyond all reasonable doubts that at the time of occurrence all the appellants shared common intention to cause the death of the deceased and in furtherance of their common intention two of them namely, Piyaru alias Piyarua Mian and Lallua threw bombs and the bomb thrown by Lallua exploded and it caused the death of deceased and also caused injuries to Bunni Begam (P.W. 5), mother of deceased.
10. All the appellants have been convicted and sentenced under Sections 3 and 4 of the Explosive Substances Act besides other offences. Section 7 of the Explosive Substances Act provides that 'no Court shall proceed to the trial of any person for the offence under this Act except with the consent of Central Government.' According to Section 3(8) (d) of General Clauses Act, 1897 Central Government in relation to anything done or to be done after the commencement of the Constitution shall mean President. Article 258(1) of the Constitution of India provides that 'the President may with the consent of the Government of a State entrust either conditionally or unconditionally to that Government or its officers functions in relation to any matter to which the executive power of the Union extends. In exercise of these powers the President by notification No. S.O. 3583, dated 2nd December, 1978 issued by Ministry of Home Affairs, New Delhi with the consent of the Government of States of Andhra Pradesh, Assam, Bihar, Madhya Pradesh and Tamil Nadu has entrusted all District Magistrates in the said States the functions of the Central Government under Section 7 of the Explosive Substances Act, 1908. In this case the consent for prosecution of appellants for offences under Sections 3 and 4 of the Explosive Substances Act, 1908 as required by Section 7 of the Act has been given by District Magistrate, Bhagalpur which has been proved by P.W. 12 and which is marked Ext. 4. As stated above since the District Magistrates of this State have been entrusted the functions of Central Government under Section 7 of the Explosive Substances Act we find nothing wrong with the consent given by District Magistrate, Bhagalpur for prosecution of appellants for the offences under Sections 3 and 4 of the Explosive Substances Act. A Division Bench of this Court in the case of Shobrati Mian v. State of Bihar (1998) 1 East Cri C 328 quashed the conviction of one of the appellants under Section 3 of the Explosive Substances Act on the ground that the District Magistrate, who had given consent for prosecution was not competent to grant sanction. It appears that the aforesaid notification by which all the District Magistrates of this State have been entrusted by the President the functions of Central Government under Section 7 of the Explosive Substances Act was not brought to the notice of the Division Bench. The finding of the Division Bench of this Court in the case of Shobrati Mian v. State of Bihar on the point of consent for prosecution as required under Section 7 of the Explosive Substances Act appears to be per incuriam.
11. Considering the materials on record the conviction and sentence of appellant-Lallua alias Lallua Mian under Section 302, I.P.C., conviction and sentence of remaining four appellants, namely, Piyaru alias Piyarua Mian, Lallu alias Md. Masood Akhtar, Md. Chand and Md. Quaisar under Section 302 read with Section 34 of I.P.C., conviction and sentence of all the appellants under Section 27 of Arms Act and under Sections 3 and 4 of Explosive Substances Act, conviction and sentence of appellants-Lallua alias Lallua Mian and Piyaru alias Piyarua Mian under Section 307, I.P.C. and conviction of the appellants except appellant-Lallua alias Lallua Mian under Section 436 read with Section 34, I.P.C. for which no separate sentence has been passed are upheld and the judgment and order of Court below in respect of all these offences is hereby confirmed.
12. In the result all the appeals are dismissed. Appellant-Lallua alias Lallua Mian is already in jail custody while other appellants are on bail. The bail bonds of appellants-Lallua alias Md. Masood Akhtar, Piyaru alias Piyarua Mian, Md. Chand and Md. Quaisar are cancelled and they are directed to surrender before the Court below for serving the remainder of sentences passed against them.
B.P. Sharma, J.
13. I agree.