R.K.Choudhary, J.

1. This application is directed against an order of discharge passed by Mr. J, Singh, Magistrate First Class, Patna City, dated the 5th of June, 1959.

2. The prosecution case is that, on the night of the 26th o£ March, 1959, at about 10-15 p.m. Rajbahadur Rai alias Chhote Rai (P. W. 3) was taking betel at the shop of Raghunath (P. W. 1). The opposite parties came from the east in a car, bearing No. BRA 261, belonging to opposite party No. 1, Bipat Gope. Some more persons also came on a tandem. Bipat and Lakhan had chhuras, Misri and Chlandrika had garasas, and Bideshi had a lathi. The persons who came in the tandem were also armed with lathis and bhalas, but they could not be identified. Bipat ordered his men, including opposite parties 2 to 5, to kill Chhote, on which all of them ran at him, Chhote fled westwards, but he was waylaid by Chandrika and others. They pushed him, and took him towards Bipats garage. Near the gate of the garage, Bipat again said to his men to kill Chhote, and he himself aimed a blow at his panjara, but it hit his back due to bodily movement. Misri gave a garasa blow on his head, and Chandrika gave a garasa blow on his left leg. B