JUDGMENT :

1. Heard Shri Sachin Malik, learned counsel for the applicant and Shri Rabindra Kumar Singh, learned Additional Government Advocate representing the State and perused the record.

2. By means of this application under Section 439 of Cr.P.C., applicant Vardan, who is involved in Case Crime No. 184 of 2021, under Sections 302, 34 IPC, police station Adarsh Mandi Shamli, district Shamli, seeks enlargement on bail during the pendency of trial.

3. In nutshell, the facts giving rise to the present application are that the informant, who is uncle of Sameer (hereinafter referred as 'the deceased') lodged a first information report on 10.09.2021 against eight accused persons namely Vatanraj, Vardan, Akshay, Raj, Ashish, Luckky, Chintu alias Ayush Rana and Bhonda with the allegations inter alia that on 09.09.2021 at about 6.00 PM, as soon as the deceased got down from the bus at Banat Bus Stand, the aforementioned accused persons, who were present there from before and who harbour enmity with the deceased, with a common intention assaulted the deceased with lathi, danda and iron rod and also bashed her head on the road. On listening the noise, Alkama, Jahid and Fazil, who were already present there, rushed to the spot. The FIR further alleges that considering the victim as dead, the accused ran away. On reference to one hospital after another, the deceased succumbed to the injuries.

4. Main substratum of argument of learned counsel for the applicant is that first information report of this case has been lodged against eight accused persons, namely, Vatanraj, Vardan (present applicant), Akshay, Raj, Ashish, Luckky, Chintu @ Aayush Rana and Bhonda, but after culmination of investigation, four persons, namely, Raj, Chintu, Ashish and Bhonda have been exonerated and charge-sheet has been submitted only against Vatanraj, present applicant-Vardan, Akshay and Luckky. It is next submitted that co-accused Akshay Rana, Vatan Raj and Luccky have been granted bail vide orders dated 13.07.2022, 06.09.2022 and 03.01.2023 in Criminal Misc. Bail Application Nos. 18593 of 2022, 21199 of 2022 and 48995 of 2022, respectively and on the ground of parity, the applicant is also entitled to be released on bail. It is next submitted that as per the prosecution case, injuries to the deceased were caused by lathi, danda and iron rod by the accused persons including the present applicant, by which he died, but in the post mortem report, single injury was found on the head of the deceased which was in the nature of traumatic swelling (10 cm x 8 cm on left side parietal region). It is also pointed out that during investigation, role of causing said injury has been assigned to the present applicant Vardan, but it is also the case of the prosecution that on pushing by all the accused persons, the deceased fell down. Much emphasis has been given by contending that the aforesaid injury cannot be caused by danda. Lastly, it is submitted by the learned counsel for the applicant that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 10.09.2021 and in case, the applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.

5. On the other hand, learned Additional Government Advocate representing the State submits that eyewitnesses Niyazuddin, Rajveer alias Thakur, Aslam, Javed and Rahul have assigned the role of causing injury by danda to the present applicant and danda used in the commission of crime has also been recovered from the applicant. He further submits that it is a brutal murder, which has been committed in day light in a crowded market.

6. Placing reliance upon the decision of Hon'ble Supreme Court in Brijmani Devi Vs. Pappu Kumar (2022) 4 SCC 497, learned Additional Government Advocate also submits that parity cannot be the sole criteria to grant bail and if the bail granted to similarly placed co-accused pers