JUDGMENT :

SANDEEP KUMAR, J.

In this appeal, the appellant has challenged the order dated 01.11.2018 passed by the learned District & Sessions Judge, IV-cum-Special Judge, S.C./S.T. Patna, by which the learned Judge has rejected the discharge petition filed by the appellant.

2. As per the F.I.R. on the date of occurrence, one Praduman Singh came to the house of the informant at about 2:00 P.M. and requested the brother of the informant (Chotu Kumar) to drop him to the market, since his own vehicle was out of order. Thereafter, the brother of the informant along with said Praduman Singh and the informant went to the market and while they were near a bamboo orchard (Tara Baba ke Bagicha) the said Praduman Singh asked the brother of the informant to stop the vehicle. As soon as, the brother of the informant, stopped the motorcycle, 5-7 persons surrounded them and one Bholu Singh shot at the brother of the informant in the head. It has also been alleged that at that time one Vikas Singh, Doman Singh and Raj Kumar Singh and 3-4 other persons whom the informant can identify but does not know their names were also present. Thereafter, the informant in order to save his life raised hulla and ran towards his house and informed his family members about the incident and when the informant and his family members came at the place of occurrence they saw that the body of the brother of the informant was laying there. Thereafter, the brother of the informant was taken to the hospital where the doctor declared him dead. It has also been alleged that the accused persons used to torture the informant and his family members by taking their caste name.

3. Learned counsel for the appellant submits that the appellant is not named in the F.I.R. and he has falsely been implicated in this case merely on the basis of the statement of the witnesses. He further submits that the appellant and the informant belong to the same village and because of village politics he has falsely been implicated in this case though he was not present at the place of occurrence.

4. It has been submitted by learned counsel for the appellant that one Bholu Singh had fired upon the brother of the informant and as a result of which, he died and while the informant side were going towards the alleged place of occurrence, they saw the appellant and other persons who were working in the field and started assaulting the appellant and Doman Singh, at that time, the police came there and took them to the police station. The appellant and co-accused were taken under custody by the police on the same day of occurrence before lodging the F.I.R.

5. It has also been submitted that the appellant is not named in the F.I.R. but the informant in his further statement has taken the name of the appellant that he was present at the place of occurrence. Further, though the father of the informant and one Vikram Paswan were not eye witnesses to the occurrence, but they have stated in their statements that the appellant and other accused persons were seen fleeing from the place of occurrence.

6. Learned APP for the State and learned counsel for the respondent no.2 have opposed this appeal and submitted that it is a case of murder and three witnesses in their statements have specifically stated that the appellant is involved in the crime. They have also submitted that the accused persons including the appellant have also tortured the informant and his family members since they were the members of S.C./S.T. community.

7. I have considered the submissions of the parties and perused the materials available on record.

8. The present application has been filed assailing the order rejecting discharge petition preferred by the present appellant.

9. It would be apposite to refer the law laid down by the Hon’ble Supreme Court in the case of State of Bihar vs. Ramesh Singh, reported as (1977) 4 SCC 39. Paragraph no.5 of the aforesaid decision reads as under :-

“5. In Nirmaljit Singh Hoon v. State of West Bengal [(1973)