Hon'ble SHARMA, J.—The accused petitioner Keshardev has filed this criminal misc. Second bail application under Section 439 Cr.P.C. The accused petitioner is facing trial for the offence under Sections 302, and 307 IPC and 3/25 and 3/27 of the Arms Act in FIR No. 68/2005 registered at Police Station Nechwa, District Sikar before the Additional Sessions Judge (Fast Track) No. 1 Sikar. Earlier the accused petitioner filed application under Secs. 439 Cr.P.C. Before this Court, which was dismissed as withdrawn on 18.1.2010. The accused petitioner was arrested on 5.9.2005 and since then he is in custody.

2. Brief facts of the case are that on 5.9.2005 the complainant Heeralal resident of Meelon Ki Dhani, Sikar lodged a report with the Police Station Nechwa and stated therein that on 4.9.2005, he (the complainant), his father Narayan, his mother Jeevani, sister Jana Devi, and Mukesh were sleeping in their house but in the night at about 1.30 a.m. the accused Kesar Dev came with some accused persons and started beating the whole family members. Hearing hue and cry his grandfather Ramdev Singh and grand mother Tiju Devi, Tulcha Ram and Bhanwar Singh came then the accused Kesar Dev shot fire by his 12 bore gun due to which Ramdev and Tiju Devi sustained pallet injuries and they were taken to hospital where they expired. The statements of principal eye witnesses namely, PW.1 Heeralal (complainant), PW. 2 Narayan, PW.3 Neewani, PW. 4 Mukesh and PW. 5 Tulcha Ram have been recorded before the trial Court. In the FIR and statements all eye witnesses made allegations of committing murder of Ramdev Singh and Tiju Devi against the accused petitioner Kesar Dev.

3. The accused petitioner filed fresh application for bail before the trial Court. The Additional Sessions Judge (Fast Track) Sikar while rejecting the application under Section 439 Cr.P.C. of the accused petitioner stated that the main accused in the case is accused petitioner Kesar Dev himself and allegations against him is that he killed two persons Teeju and Ramdev.

4. Heard learned counsel for the accused petitioner and the learned Public Prosecutor on this second bail application.

5. The learned counsel for the accused petitioner argued that the petitioner is in custody near about 4 years and 8 months, hence he should be released on bail as the trial will take further time. The learned counsel for the accused petitioner in support of his argument relied on the decisions of the Apex Court in Kadra Pehadiya and others vs. State of Bihar reported in AIR 1981 SC 939 and Surinder Singh @ Shingara Singh vs. State of Punjab reported in JT 2005 (8) SC 157.

6. The Public Prosecutor stated that the accused petitioner Kesar Dev is the main accused and allegations against him is that he killed two persons by firing gun. The eye witnesses whose statements have been recorded by the trial Court have taken the name of the accused petitioner Kesar Dev as the main accused in inflicting fire arms injuries to the deceased persons.

7. The cases relied on by the learned counsel for the accused petitioner are not applicable to the facts and circumstances of the present case. In the instant matter the trial is pending and the cases relied on by the learned counsel related to the appeals pending before the appellate court and the accused persons in those cases were serving the sentence after conviction by the trial Court. The accused petitioner is the main accused in the case wherein two persons have been killed by using fire arms.

8. In Surinder Singh vs. State of Punjab, (2005) 7 SCC 387, at page 392, the Apex Court on the basis of Punjab and Haryana High Court judgment in Dharam Pal case (2000) 1 Chan LR 74 laying down certain principles for releasing the convicts, who are undergoing sentences in jail, observed that "it does not lay down any hard-and fast rule of universal application."

9. In the instant case the trial is yet to complete and important witnesses of the prosecution are further to be examined and

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