{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1149 OF 2010 Amol @ Annya s/o Ramesh Kale Age-21 years, Occ-Labour R/o Pandharpur, Tq & Dist-Aurangabad APPLICANT VERSUS The State of Maharashtra RESPONDENT ....... Mr. I.G.Durani Advocate for the applicant Mr. K.S.Patil, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 8th June 2010 PER COURT: 1. By the present application, the applicant has prayed to release him on bail in connection with CR No.187/2009 registered with MIDC, Waluj police station, Aurangabad for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. 2. The applicant is arrested on 21st October 2010 and after completion of investigation charge sheet has been filed and even the case is committed to the Court of Sessions, Aurangabad. As the application moved by the applicant is rejected by the {2} learned Sessions Judge, Aurangabad, the applicant is before this Court. 3. Heard learned counsel for the applicant followed by learned APP and perused the papers of investigation. 4. Perusal of the papers of investigation indicates that police officer Suresh Aute had received a wireless message from MIDC Waluj Police station that one person is lying in injured condition near Salampure Nagar. When the said officer reached at the spot, he noticed that one unknown person, aged about 45 years, was lying on the ground and one tommy (iron rod) was found beside him. On the basis of said incident, offence came to be registered against unknown persons. 5. During the course of investigation present applicant along with two others came to be arrested on 21st October 2009. It appears that during the investigation statement of one Gaidwad, who claimed to be an eye witness to the said incident, came to be recorded on 23rd October 2009, In the statement of the said eye witness it is alleged that in the said night he had seen the applicant assaulting the victim with iron rod and at that time two unknown persons had caught hold of the deceased and hence he immediately reported the incident on phone to the said police station. {3} 6. Learned counsel for the applicant has contended that the so called eye witness is a got up witness and he has not actually witnessed the alleged incident and hence he cannot be termed as an eye witness. It appears that during the course of investigation statement of one Yusuf Shaikh was recorded, who identified the tommy, weapon of assault, which was found near the deceased, According to learned counsel for the applicant the case of the prosecution rests on circumstances and there are no circumstances to link the applicant with the accusation. 7. Learned APP vehemently opposed the application. 8. It requires to consider as to whether at this stage the statement of the eye witness is to be believed or not, which prima facie links the applicant with the alleged offence. In the morning sessions, when the matter was being heard, it was noticed that it is stated by the so called eye witness that immediately he had intimated the incident which discloses names of victim as well as the assailant. Hence, APP was directed call and collect relevant station diary entry. Now, the extract of said station diary entry No. 45 is shown to me. No doubt, in the said entry it is recorded that information was given by the said eye witness on phone, however the same does not disclose name of the assailant nor that of the victim. Thus, the statement of the so called eye witness is not supported by the station diary entry. {4} 9. Considering the fact that the entire case of the prosecution rests on circumstances, which is a weak piece of evidence, the applicant deserves to be enlarged on bail, however, by imposing certain conditions. 10. In the result, the application is allowed. The applicant be released on bail in connection with CR No.187/2009 registered with MIDC, Waluj police station, Aurangabad on his furnishing surety in the sum of Rs.20,000/- and on executing PR bond in the like amount. The applicant is directed not to leave the local jurisdiction of the MIDC, Waluj police station, Aurangabad till final disposal of the trial, without previous permission in writing from the IO concerned. Applicant is also directed not to contact or tamper with the prosecution witnesses. Accordingly, the application stands disposed of. [A.V.POTDAR, J.] drp/B10/criapln1149-10