ORAL ORDER

1. Heard learned advocate Mr. Ujjwal R. Sareen for the applicant and learned Additional Public Prosecutor Ms. M. D. Mehta for the respondent – State.

2. This application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR registered at I-C.R.No. 11200049211876 of 2021 with Vapi GIDC Police Station, District – Valsad for the offence punishable under Sections 302 and 34 of the Indian Penal Code and under Section 135 of the Gujarat Police Act.

3. Learned advocate Mr. Ujjawal R. Sareen appearing for the applicant submitted that the applicant is the father of the Said Anwar who was carrying axe and it was Said Anwar who was wearing a black colour floral shirt as can be seen from the various statements and it was he who had given an axe blow on the head and on leg of the deceased person. Even as per the CCTV Footage as well as arrest panchnama, the present applicant was wearing green colour shirt on the date of incident. He submits that as per the CCTV footage recovered from the Food Inn Hotel, the CCTV footage indicates that the present applicant was going into Boston Tea Stall. However, it specifically indicates that the present applicant was wearing a green shirt and it is absolutely silent about the fact that the present applicant was carrying an axe with him. He further states that as per the statement of Yogeshbhai Ashokbhai Patil who was the eye witness of the incident, a person’s age around 30 years was wearing a black colour floral shirt was carrying an axe and he had given blows to the deceased which would indicate that it was not the present applicant who had given an axe blow to the deceased person and merely because the present applicant was present at the scene of offence, on that basis, he cannot be denied bail.

4. Learned APP appearing for the respondent – State as well as learned advocate Mr. Minhaj Shaikh appearing for the respondent – complainant could not point out any material indicating that it was present applicant who had given axe blows to the deceased person. However, learned advocate Mr.

Shaikh apprehended that since the deceased ‘s family and present applicant are residing just adjacent to each-other and they were having common wall, he apprehended that once released the present applicant may try to attack the complainant or his family. He further submitted that there are call records between the present applicant and his son who is the other accused which would indicate the involvement of the present applicant in the offence and by making the aforesaid submissions, prayed for rejection of the present applicant.

5. I have considered the submissions made by the learned advocates for the respective parties and ultimately, I have come to the conclusion that the grievance for apprehension of the complainant can be taken care of by imposing suitable conditions upon the present applicant to remain outside of Valsad District. Hence, this Court has considered the following facts while exercising discretion in favour of the applicant :-

[a] The applicant is in jail since 05.12.2021.

[b] Investigation is over and charge-sheet is filed.

[c] As per the statement of eye witness – Yogeshbhai Ashokbhai Patil, the age of the person who had given an axe blow was around 30 years whereas the applicant is around 50 years of age and as per the statement of eye witness the person who had given axe blows was wearing a black floral shirt whereas the petitioner was wearing green shirt. The aforesaid fact is substantiated from the CCTV footage recovered from adjacent hotel i.e. Food Inn Hotel which is situated just adjacent to Boston Tea Stall where the incident took place and as per the CCTV footage of the Food Inn Hotel, the present applicant was seen going towards Boston Tea Stall wearing green shirt.

[d] As per the learned advocate for the applicant, there are no antecedents against the applicant.

6. In view of the aforesaid facts, without discussing th