Neutral Citation No. - 2025:AHC:57724 Court No. - 78 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45813 of 2024 Applicant :- Ashish Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Ved Prakash Pandey,Yogesh Krishna Mishra Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J. 1-Heard learned counsel for the applicant and learned Additional Government Advocate representing the State. 2-By means of this fourth bail application under Section 439 of Cr.P.C., applicant-Ashish Yadav, who is involved in Case Crime No. 1216 of 2018, under Section 302 I.P.C., Police Station Cantt, District Varanasi, seeks enlargement on bail during the pendency of trial. 3-The first, second and third bail application of the applicant was rejected vide order dated 31.07.2019, 28.11.2022 and 26.04.2023 in Criminal Misc. Bail Application Nos. 5675 of 2019, 54348 of 2019 and 12061 of 2023 respectively. 4-The main substratum of argument of learned counsel for the applicant is that the prosecution has shown a recovery of a pistol from the possession of present applicant and in the recovery memo, Daya Ram (PW-1) has been shown as one of the witness, whereas, Daya Ram, in his cross-examination, has stated inter-alia that he was not present at the spot from where the pistol was recovered from the accused. As soon as he opened the gate of his house after hearing the sound of fire, he saw that his brother Pappu Yadav (deceased) was lying on the ground. It is next argued that the applicant is languishing in jail since 04.11.2018 but till date, his trial has not been concluded, therefore, considering the detention period of the applicant, he may be enlarged on bail. 5-Per contra, learned A.G.A. for the State opposed the prayer for bail of the applicant by contending that the F.I.R. of this case was lodged by Daya Ram (brother of the deceased) and he was also an eye- witness of the incident. It is next argued that Daya Ram was examined as PW-1 before the trial court and he has fully supported the prosecution case. It is also pointed out that the recovered pistol and cartridges were sent for forensic examination and as per forensic report dated 25.11.2021, it has confirmed that the cartridges in question was fired from the country made pistol which was recovered from the possession of the applicant. So far as the delay in concluding the trial of the applicant is concerned, he undertakes that effort shall be made to produce all the remaining prosecution witnesses before the trial court. Much emphasis has been given by contending that the Hon'ble Apex Court in the case of X vs. State of Rajasthan and Another, 2024 SCC OnLine SC 3539 has held that if the trial of the accused has started, his bail should not be granted in heinous offences. 6-Having heard learned counsel for the parties and examined the matter in its entirety, I find that considering the gravity of the offence, bail application of the applicant has been rejected thrice. Dayaram Yadav (PW-1) is the only eye-witness of the incident and he has already been examined and supported the prosecution case. The other prosecution witnesses namely Bharat Yadav and Dr. Dev Anand have also been examined before the trial court as PW-2 and PW-3. The trial of the applicant is proceeding, hence, I do not find any good ground to enlarge the applicant on bail. 7-Accordingly, the bail application is rejected. 8-It is made clear that since the allegation of the prosecution and defence of the accused are still open to be urged before the trial court, therefore, this Court in exercise of powers under Section 439 Cr.P.C. is not examining the statement of the prosecution witnesses meticulously so that it may not affect the merit of the case. 9-However considering the detention period of the applicant, Commissioner of Police, Varanasi is directed to ensure the presence of all the remaining prosecution witnesses on the dates fixed before the trial court so that the trial of the applicant may be concluded at earliest. 10-On appearance of the prosecution witnesses, the trial court shall record their statement on the same day and an opportunity for cross-examination to the accused/defence shall be afforded in continuation of examination-in-chief of the witnesses. 11-Copy of this order be sent to the Commissioner of Police, Varanasi as well as to the concerned trial court for necessary information and compliance. Order Date :- 18.4.2025 Saurabh Digitally signed by :- SAURABH KUMAR High Court of Judicature at Allahabad