Delhi District Court
State vs Asif@ Bony on 30 January, 2026
(RK) (Judgment) State Vs. Asif @ Bony & Anr.
IN THE COURT OF BABRU BHAN, ADDITIONAL SESSIONS
JUDGE-04, NORTH-EAST DISTRICT, KKD COURTS,
DELHI
SC No-44349/2015
State Vs. Asif @ Bony & Anr.
FIR No-1276/2014
PS Khajuri Khas
(a) Session Case No. 44349/2015
(CNR No-DLNE01-000148-2015)
(b) Date of offence 23.11.2014
(c) Accused 1. Asif @ Bony
S/o- Sh. Sattar
R/o- H.No-501, Gali no-14,
E-Block, Nehru Vihar, Delhi.
2. Javed @ Happy
S/o- Sh. Wajid
R/o- H. No- 769, Gali no-14,
E-Block, Nehru Vihar, Delhi.
(d) Offence U/s 397/394/34 IPC
(e) Plea of Accused Not guilty
(f) Final Order Conviction U/s 394/34 of IPC
(g) Date of Institution 01.05.2015
(h) Date when Judgment 15.12.2025
was reserved
(i) Date of Judgment 30.01.2026
JUDGMENT
SC No-44349/2015 FIR No-1276/2014 Page 1 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:52 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
BRIEF FACTS
1. Accused Asif @ Bony and Javed @ Happy have been sent for trial on the allegations that on 23.11.2014 at about 06:45 AM, in front of Aadharshila School, H.No- B-8/15, Shahadatpur Extension, Karawal Nagar, within jurisdiction of PS Khajuri Khas, they committed robbery of a mobile phone make Samsung Note Black from complainant PW-3/Umesh Kumar. When complainant put resistance, accused Asif @ Bony pulled out a pistol and fired 02 bullet shots upon the complainant and caused grievous injuries to him.
2. The process of investigation was rolled into motion when PW-12/Yogender Sharma came out of his house hearing the distress call of injured PW-3/Umesh Kumar . PW-12 saw that injured was lying with a bullet injury. PW-12 brought his mobile phone and made a PCR call.
3. The PCR call was ultimately transmitted to PS Khajuri Khas where PW-2/ASI Shanti Lal recorded the same in form of DD No-13A Ex.PW2/A and the aforesaid DD No-13A was assigned to PW-7/SI Saheb Singh. PW-7 alongwith PW-1/Ct. Thane Ram reached at the spot where some public persons had assembled. On inquiry, PW-7 learnt that injured had already been removed to GTB hospital by PCR Van. PW-7 left PW-1/Ct. Thane Ram at the spot and reached to GTB hospital and collected MLC Ex.PW16/A of injured Umesh Kumar. Thereafter, PW-7 recorded statement Ex.PW3/A of injured Umesh Kumar. In his statement, PW-3/Umesh Kumar stated that on 23.11.2014, he left his house for morning walk. At about 06:45 AM, when he reached in front of Aadharshila Public School, H.No- B-8/15, SC No-44349/2015 FIR No-1276/2014 Page 2 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:52 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
Shahadatpur, suddenly, one boy wearing red sweater and jeans approached him and started snatching his mobile phone. When PW-3 put resistance, that boy pulled out a pistol and fired at the complainant. One bullet hit the left thigh of the complainant. Assailant fired another shot which hit the left side of his (complainant's) abdomen. Thereafter, the said assailant ran away on a black colour motorcycle which was parked nearby and another associate of the assailant was sitting on it.
4. On the aforesaid statement of PW-3/Umesh Kumar, PW-7/SI Saheb Singh prepared rukka Ex.PW7/A and handed over the same to PW-1/Ct. Thane Ram for registration of FIR.
5. PW-9/ASI Yashvir was working as Duty Officer at PS Khajuri Khas on that day. On the basis of rukka, PW-9 registered the present FIR Ex.PW3/B and made a corresponding endorsement Ex.PW3/A on the rukka in this regard. After registration of FIR, PW-1/Ct. Thane Ram reached at the spot.
6. On that day, PW-4/Ct. Mahesh was on duty in GTB Hospital. PW-4 handed over the pullanda of the clothes of the injured to PW-7/SI Saheb Singh and PW-7 seized the same vide seizure memo Ex.PW4/A. PW-7 also called crime team at the spot.
7. PW-5/Insp. E.S Yadav was In-charge of the mobile crime team. He reached at the spot and carried out inspection and prepared his report Ex.PW5/A whereas PW-6/Ct. Ajeet Singh who was the photographer of the crime team. PW-6 took 14 photographs of the spot Ex.PW6/A-1 to Ex.PW6/A-14 (negatives of the same are Ex.PW6/B-1 to Ex.PW6/B-14).
SC No-44349/2015 FIR No-1276/2014 Page 3 of 23 BABRU
BHAN
Digitally signed
by BABRU BHAN
Date: 2026.01.30
17:10:49 +0530
(RK) (Judgment) State Vs. Asif @ Bony & Anr.
8. PW-7/SI Saheb Singh had also prepared the sketch Ex.PW1/A of the empty cartridge recovered from the spot. The said cartridge was seized vide memo Ex.PW1/B and was sealed with the seal of SS. After used, the seal was handed over to PW-1/Ct. Thane Ram.
9. During subsequent investigation, PW-11/SI Arun Kumar inspected the site and prepared site-plan Ex.PW3/B. After preparing the site-plan, PW-11 alongwith PW-1/Ct. Thane Ram reached the hospital and showed the site-plan to the complainant/Umesh Kumar and obtained his signatures on the site-plan.
10. On 11.01.2015, PW-8/ASI Pradeep Kumar was attending DD No-26 A which was assigned to him for further necessary action. Acting upon the aforesaid DD, PW-8 reached at a place situated at Wazirabad road near Sri Ram Colony Pulia. There, PW-10/Ct. Asha Ram (HC at the time of examination) and Ct. Ganga Ram were found present and they produced accused Asif @ Bony. PW-10/Ct. Asha Ram and Ct. Ganga Ram also produced button actuated knife and a motorcycle bearing no- DL 1SU 4015 (Hero Honda Splendor). Accused Asif @ Bony was arrested because he was found in possession of button actuated knife. PW-8 recorded the statement of Ct. Asha Ram and got registered an FIR No-47/2015 U/s 25/54/59 of Arms Act against accused Asif @ Bony.
11. During interrogation, accused Asif @ Bony disclosed his involvement in the present case. Accordingly, PW-11/SI Arun Kumar formally arrested accused Asif @ Bony vide memo Ex.PW11/A. Thereafter, PW-11 personally searched accused Asif @ Bony vide SC No-44349/2015 FIR No-1276/2014 Page 4 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:51 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
memo Ex.PW11/B. In his disclosure statement Ex.PW10/A, accused Asif @ Bony also disclosed the place of incident and IO prepared the pointing out memo Ex.PW10/B in this regard.
12. On 21.01.2015, 3rd IO/ASI Chanderveer (not examined as a witness) moved an application before the court for formal arrest and interrogation of accused Javed @ Happy. The said application was allowed and accordingly accused Javed @ Happy was formally arrested by ASI Chanderveer vide memo Ex.PW15/A bearing signatures of PW-15 at point A. Accused Javed @ Happy was personally searched vide memo Ex.PW15/B. IO recorded his disclosure statement Ex.PW15/C.
13. On completion of investigation, IO filed the charge-sheet accusing the accused persons for committing offence U/s 397/394/34 of IPC.
14. On 08.09.2015, formal charges for offence U/s 397/394/34 of IPC were framed against accused Asif @ Bony whereas charges for offence U/s 394/34 of IPC were framed against accused Javed @ Happy. Both the accused persons pleaded not guilty and claimed to be tried.
15. In order to prove its case, prosecution has examined 19 witnesses. Most of the witnesses are formal witnesses who merely participated in formal process of investigation. Their respective brief roles have already been narrated in the forgoing discussion. Therefore, reproduction of their detailed testimony can be avoided for sake of brevity.
SC No-44349/2015 FIR No-1276/2014 Page 5 of 23 BABRU
BHAN
Digitally signed
by BABRU BHAN
Date: 2026.01.30
17:10:50 +0530
(RK) (Judgment) State Vs. Asif @ Bony & Anr.
16. PW-3/Umesh Kumar is the complainant of this case. He has narrated the same facts which have already been elaborated above, therefore, his testimony is not required to be reproduced again in verbatim for sake of brevity.
17. PW-13/Ms. Harleen Singh, Ld. SCJ, East, KKD Court has deposed that on 14.01.2015, she had conducted TIP proceedings of accused Asif @ Bony. Accused was produced in muffled face. He was duly warned that refusal to join the TIP proceedings may warrant an adverse inference at the time of trial. However, accused Asif @ Bony refused to participate in the TIP proceedings. PW-13 has proved the TIP proceedings Ex.PW13/A in this regard.
18. PW-14/Sh. Santosh Kumar, Ahlmad, Shahdara District has produced the judicial file of case FIR No-47/2015, PS Khajuri Khas registered U/s 25/54/59 of Arms Act. From the aforesaid case file, PW-1/ASI Prem Pal had exhibited the FIR as Ex.PW1/A. He has proved the arrest memo and personal search of accused Mohd. Asif which are Ex.PW1/D and Ex.PW1/E respectively.
19. PW-16/Dr. Sharad Verma and PW/Dr. Abhishek Kumar have identified the signatures of Dr. Deovrat who had prepared the MLC Ex.PW16/A of injured Umesh Kumar.
20. PW-18/Dr. V.R Anand has opined that evidence bullet (EB-1) corresponding to the bullet of 7.65mm. He has further opined that evidence cartridge (EC-1) was a fired empty cartridge. He had also opined that EB-1 and EC-1 were ammunition as defined under Arms Act 1954. His detailed report is Ex.PW18/A. SC No-44349/2015 FIR No-1276/2014 Page 6 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:50 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
21. PW-19/Dr. Rahul Kumar, Senior Resident has identified the signatures of Dr. Nikhil in MLC Ex.PW16/A. He has stated that as per the opinion given by Dr. Nikhil, the nature of injury was grievous.
22. The prosecution evidence was followed by statements of accused persons in terms of Section 313 Cr.P.C (351 of BNSS), wherein both the accused persons pleaded innocence and claimed false implication. They were given opportunity to lead defense evidence, but they opted not to lead any.
23. Arguments have been heard. Record has been perused.
24. The prosecution has sought to prove against the accused persons that on 23.11.2014, at about 06:45 PM, in front of Aadharshila School, H.No- B-8/15, Shahdatpur Extension near Karawal Nagar, they committed robbery of one mobile phone make of Samsung Note (black Colour) from complainant PW-3/Umesh Kumar. To prove the aforesaid allegations, prosecution has placed heavy reliance on the version given by PW-3/Umesh Kumar. PW-3 has deposed in his court statement that on aforesaid date, time and place, accused Javed @ Happy started snatching his mobile phone. When PW-3 objected to the same, accused Javed took out a country made pistol from waist of his pants and fired 02 rounds. One bullet hit in his left thigh and the second bullet stuck on his back. PW-2 fell down on the ground and accused Javed ran away on a motorcycle on which accused Asif was already sitting. Public persons gathered at the spot. Someone made a PCR call. Police reached the spot within 10 minutes and he was removed to hospital where police recorded his statement Ex.PW3/A. SC No-44349/2015 FIR No-1276/2014 Page 7 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:50 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
25. This court has perused the statement Ex.PW3/A of Umesh Kumar wherein he had deposed the same facts which he has deposed in his court statement as noted above.
26. Statement of PW-3 is supported by PW-12/Yogender Sharma. He has also deposed in his court statement that 03-04 years back, he was sleeping at his residence. Suddenly, he heard whimpering voice of someone from the street. He came out and saw that a person was lying with bullet injuries. Thereafter, PW-12 made a PCR call from his mobile no-9136810393. This mobile no of PW-12 is also mentioned in DD No-13A Ex.PW2/A which records that "Dayalpur Tukmipur Road gali no-3 aadharshila public school ke paas goli maar kar phone chin liya hai, phone no-9136810393". The DD Ex.PW2/A proves that PCR call was made by PW-12 and that he had reached the spot and had seen the complainant in injured condition. PW-12 has also stated that his residence is about is about 20 house away from Aadharshila Public School. It means that his presence at the spot was natural as he was residing nearby. This witness has not been cross-examined therefore, his testimony has gone un-rebutted. So, the testimony of PW-12 would support the version of PW-3 to the extent that on the date of incident, PW-3 had suffered bullet injuries.
27. PW-7/Retd. SI Saheb Singh and PW-1/Ct. Thane Ram have also deposed that on 23.11.2014, at about 07:00 AM, DD No-13A Ex.PW2/A was assigned to PW-7/SI Saheb Singh. PW-7 and PW-1/Ct. Thane Ram reached at the spot where PW-7 learnt that injured had already been removed to hospital. Accordingly, he alongwith PW-1 went to GTB Hospital where the injured was found admitted vide SC No-44349/2015 FIR No-1276/2014 Page 8 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:51 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
MLC Ex.PW16/A. Thereafter, PW-3/Umesh Kumar made a statement Ex.PW3/A wherein he narrated about the incident. PW-7 has further stated that he prepared rukka Ex.PW7/A on the statement of the complainant Umesh Kumar and handed over the same to PW-1/Ct. Thane Ram for registration of FIR. The empty cartridges found at the spot was seized vide seizure memo Ex.PW1/B. Same facts have been deposed by PW-1/Ct. Thane Ram.
28. During cross-examination of PW-7 and PW-1, some questions relating to their time of arrival at the spot and the duration they remained there were asked. Both the aforesaid witnesses have satisfactorily answered the questions and no discrepancy has been seen in their version. Thus, the statement of PW-7 and PW-1 are also corroborative to the version of PW-3 that an incident of firing had taken place on 23.11.2014 where PW-3/Umesh had suffered bullet injury.
29. Another piece of corroborative evidence is the MLC Ex.PW16/A of injured Umesh Kumar. This MLC records that on 23.11.2014, at 07:21 AM, injured Umesh Kumar was brought to the hospital with alleged history of fire-arm injury. PW-16/Dr. Sharad Verma has deposed that on that day, under his supervision, Dr. Deovrat had examined the patient Umesh Kumar vide the aforesaid MLC. During the cross-examination, in reply to a question, PW-16 has stated that it was easily deductable from the MLC that firing had done from a distance, however, he could not tell the exact distance.
30. By putting the aforesaid suggestion regarding the distance from SC No-44349/2015 FIR No-1276/2014 Page 9 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:53 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
which the bullet was fired, the defence somewhere went to admit the fact that injured Umesh Kumar had suffered bullet injuries. Reliance in this regard can be placed on the observations made by Hon'ble Apex Court of India in case titled as "Balu Sudam Khalde Vs. State of Maharashtra, 2023 SCC Online SC355" where the Hon'ble Apex Court held that a suggestion made by the defense Counsel to a witness in the cross-examination, if found to be incriminating in nature in any manner, would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admission against the client. So, the MLC Ex.PW16/A is another piece of evidence which goes to show that Umesh Kumar had suffered bullet injuries in an incident which had taken place in the morning of 23.11.2014.
31. PW-7/SI Saheb Singh has deposed that after recording the statement of Umesh Kumar, he returned to the spot and called the crime team. PW-5/Insp. E.S Yadav, was leading the Crime Team. PW-5 alongwith PW-6/Ajeet Singh reached at the spot. PW-5 has deposed in his court statement that on inspection, he found one empty cartridge case lying at the spot. IO SI Saheb Singh and SI Arun Kumar were instructed to seize the same. PW-5 has mentioned this face in his report Ex.PW5/A also. PW-6/Ct. Ajeet had taken 14 photographs Ex.PW6/A-1 to Ex.PW6/A-14 of the spot and in some of the photographs, an empty cartridge is seen lying on the road. PW-5 and PW-6 have not been cross-examined on the aspect that when they reached at the spot, an empty cartridge was found lying there. Since, an empty cartridge was found at the spot, this fact would further confirm that a firing incident had taken place at the spot as mentioned by SC No-44349/2015 FIR No-1276/2014 Page 10 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:52 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
PW-3/Complainant.
32. The complete chronological picture of events which emerges from the aforesaid evidence is that PW-3/Umesh Kumar had gone out for a morning walk on 23.11.2014, at about 06:45 AM, when one person tried to forcibly snatch his mobile phone. When PW-3 put some resistance, accused fired 02 bullet shots upon PW-3. PW-3 fell down on the road and the assailants ran away with his associate on the motorcycle. PW-12/Yogender Sharma heard the whimpering voice of PW-3 and he came out of his house. He made a PCR call which was transmitted to PS Khajuri Khas where PW-2/ASI Shanti Lal was working as duty officer. PW-2 recorded the call in form of DD No Ex.PW2/A at about 07:00 AM. Injured Umesh Kumar was taken to GTB hospital at about 07:21 AM with alleged history of fire-arm injury where he was treated vide MLC Ex.PW16/A. In police station, DD Ex.PW2/A was assigned to PW-7/SI Saheb Singh who alongwith PW-1/Ct. Thane Ram reached the hospital and recorded the statement of PW-3/Umesh Kumar and sent the rukka at 10:15 AM. On basis of rukka, the present case FIR was registered at 10:35 AM by PW-9/ASI Yashveer as his endorsement Ex.PW9/A on the rukka proves time of registration of FIR. The aforesaid chronology of events shows that after the incident had happened, there was no undue delay in reporting the matter to the police or taking the injured to the hospital. The FIR was registered within 02 and a half hours of the incident. Thus, it stands proved that an incident of firing had taken place on 23.11.2014 where PW-3/Umesh Kumar had suffered bullet injuries.
33. Now, the next question which comes before the court is that who SC No-44349/2015 FIR No-1276/2014 Page 11 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:50 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
had actually caused those injuries to the complainant. To prove the identity of the complainant, prosecution has again taken reference of the statement of PW-3. In his initial statement Ex.PW3/A, PW-3 had stated that one person had shot him while committing robbery and thereafter he fled away on a motorcycle with his other associate. The case projected by the prosecution is that it was accused Asif @ Bony who has caused fire-arm injury to PW-3/Umesh Kumar. To the contrary, in his court statement, PW-3/Umesh Kumar has identified accused Javed as the person who had caused the fire-arm injuries to him.
34. In light of the above discrepancy upon the identity of the actual assailant, Ld. Defense Counsel has firstly argued that the version of PW-3 is different from the version projected by the investigating agency in the charge-sheet. Therefore, same should not be relied upon. Next argument made by Ld. Defense Counsel is that accused Asif @ Bony has been charged for offence U/s 397 of IPC but he has not been identified by PW-3 as the assailant who had used the dangerous weapon at the time of commission of robbery. Therefore, he cannot be convicted for offence U/s 397 of IPC. Accused Javed has been identified by PW-3 as the assailant who had caused fire-arm injuries but he has been charged for offence U/s 394 of IPC only which is less grievous than 397 of IPC and therefore he cannot be convicted for a more grievous offence of section 397 of IPC for which charges have not been proved.
35. The effect of the aforesaid discrepancy upon the credibility of PW-3 shall be discussed in the conclusion part of the judgment, after SC No-44349/2015 FIR No-1276/2014 Page 12 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:53 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
detailed evaluation of the evidence of PW-3. At this stage, this court would deal with the argument for the limited purpose of deciding as to whether accused Javed can be convicted for offence U/s 397 of IPC when he has not been charged for the same. There is no dispute on the legal position that when an accused is charged for more serious offence, he can be convicted for a lesser serious offence, if the ingredients of serious offence are not proved but prosecution has successfully proved the ingredients of lesser serious offence. However, if an accused is charged with lesser serious offence, he cannot be convicted for more serious offence, if not charged for the same. Here in this case, accused Asif @ Bony has been charged for offence U/s 397 of IPC but as per statement of PW-3, it was accused Javed who had caused the fire-arm injury. Since, PW-3 has exonerated accused Asif @ Bony from the allegations of offence U/s 397 of IPC, he cannot be convicted for the same as there is no additional evidence to prove the offence U/s 397 of IPC against him. Although, PW-3 has levelled the allegations of using fire-arm and causing injuries against accused Javed but he has not been charged for that offence U/s 397 of IPC. Therefore, he can also not be convicted for the said offence. Thus, the case of prosecution for offence U/s 397 of IPC ends here.
36. Both the accused persons have been charged for offence U/s 394/34 of IPC. Therefore, now, this court shall proceed to analyze the evidence to see as to whether the offence U/s 394/34 of IPC has been proved against the accused persons or not. As this court has discussed above, the prosecution has satisfactorily proved that a firing incident in pursuit of robbery had taken place on 23.11.2014. Now, the only question which remains to be adjudicated is that whether the accused SC No-44349/2015 FIR No-1276/2014 Page 13 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:51 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
persons had committed the said robbery or not. PW-3/Umesh Kumar has stated in his court statement that accused Javed tried to snatch his mobile phone and when PW-3 put resistance, accused took out a pistol and shot him. Thereafter, he sat with the pillion on a motorcycle upon which accused Asif @ Bony was already sitting and thereafter they ran away from the spot. PW-3 has correctly identified both the accused persons in the court.
37. During the cross-examination, Ld. Counsel for accused Javed asked PW-3 about the day and time of the incident. He also asked about the place of incident and his house, the time of arrival of police. PW-3 has withstood the test of cross-examination and has answered all the questions. Ld. Counsel also asked the witness as to whether he had told the attending doctor that he had sustained injuries due to gunshot. PW-3 replied that he had told the doctor about the same and this fact is established by MLC Ex.PW16/A which records that the patient was brought to the hospital with alleged history of fire-arm injury.
38. During the investigation, IO had moved an application for getting the TIP of accused Javed and during the TIP proceedings, PW-3 Umesh had correctly identified accused Javed @ Happy. During the cross-examination, Ld. Defense Counsel made some attempt to demolish the credibility of TIP proceedings by asking a question that when PW-3 had seen Javed for the first time, PW-3 replied that he had seen accused Javed for the first time during the TIP proceedings. No suggestion was given to the witness that he was shown the photograph of accused Javed before TIP Proceedings. The copy of TIP proceedings would show that when the magistrate had taken the consent of accused SC No-44349/2015 FIR No-1276/2014 Page 14 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:51 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
Javed for the TIP proceedings, he did not whisper anything that he or his photograph were shown to the complainant. So, the identification of accused Javed by PW-3/Complainant Umesh in the court and during the TIP proceedings shall definitely go against accused Javed.
39. Similarly, during investigation, IO had moved an application for TIP of accused Asif @ Bony conducted. Same were conducted by Ms. Harleen Singh, Ld. SCJ. She has deposed that on 14.01.2015, SI Chanderveer Singh had moved an application for TIP of accused Asif @ Bony. Accused was produced in a muffled face. He was warned that refusal to participate in the TIP proceedings may warrant an adverse inference at the time of trial but accused refused to participate in the TIP Proceedings stating that he was shown to the complainant. Accused Asif @ Bony did not elaborate that when he was show to the complainant and by whom. In the cross-examination of PW-3 conducted on behalf of accused Asif @ Bony, not even a single suggestion was given to PW-3 that accused Asif @ Bony was shown to him before the TIP proceedings. Further, although PW-3 has stated in his own statement that he had seen accused Asif @ Bony in the police station but from that statement, no inference can be drawn that witness had seen him before the consent of accused Asif @ Bony was obtained for the TIP proceedings. The Ld. Defense Counsel was supposed to ask these questions during the cross-examination of PW-3 but no such question was asked to ascertain as to whether the witness had seen the accused before or after the TIP proceedings.
40. Thus, from the refusal fo accused Asif @ Bony to participate in the TIP proceedings, this court can draw an adverse inference against SC No-44349/2015 FIR No-1276/2014 Page 15 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:52 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
him U/s 54A of Cr.P.C because the refusal of the accused without any justifiable explanation suggests that he refused to participate due to fear of identification. So, this refusal of accused Asif @ Bony shall serve as a corroborative evidence indicating his participation in the crime.
41. During cross-examination of PW-3, Ld. Counsels appearing on behalf of the accused persons had made suggestions to PW-3 that he had falsely implicated the accused persons in connivance with the police officials. During the course of arguments also, Ld. Defense Counsels have argued that the accused persons were falsely implicated in connivance with police. The medical documents have proved that PW-3 was seriously injured during the incident. It has nowhere been suggested or pleaded that PW-3 had prior enmity or some other motive to falsely implicate the accused persons. Now, since PW-3 had no previous enmity with the accused persons, why he would implicate them and to protect the actual assailants who had nearly killed him. Thus, this court is not inclined to accept this argument that accused persons have been falsely implicated.
42. In case titled as "BALU SUDAM KHALDE AND ANOTHER versus THE STATE OF MAHARASHTRA, Crl Apl No-1910 of 2010, dated 29th March 2023, SCC. The hon'ble apex court has discussed the evidentiary value of injured witness in the following words:-
" 25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be SC No-44349/2015 FIR No-1276/2014 Page 16 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:50 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
SC No-44349/2015 FIR No-1276/2014 Page 17 of 23 BABRU
BHAN
Digitally signed
by BABRU BHAN
Date: 2026.01.30
17:10:51 +0530
(RK) (Judgment) State Vs. Asif @ Bony & Anr.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 1983 Cri LJ 1096 :
(AIR 1983 SC 753) Leela Ram v. State of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State of UP (AIR 1959 SC 1012)]
26. When the evidence of an injured eye-witness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
SC No-44349/2015 FIR No-1276/2014 Page 18 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:53 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
27. In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or put forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
43. In the aforesaid judgment, Hon'ble Apex Court has also held that appreciation of oral evidence is a hard task. While appreciating the oral evidence, court has to keep multiple factors in mind which may affect the credibility of the witness. Evidence given by an injured witness has to be given high evidentiary value because the injury caused to the witness firstly probablize his presence at the spot. Secondly, such witness would seldom let the actual culprit escape and implicate an innocent person. Evidence of such injured witness generally should not be visited with suspicion unless there are apparent contradictions. Here in this case, the testimony of PW-3/Umesh Kumar is sufficiently corroborated by PW-12/Sh. Yogender Sharma who was first to reach the spot. The medical documents also record that injured was taken to hospital with history of fire-arm injuries. The testimony of members of crime team and other police witnesses would also confirm that PW-3 had suffered bullet injuries in an incident occurred SC No-44349/2015 FIR No-1276/2014 Page 19 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:52 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
in the morning of 23.11.2014. Although, a defense has been pleaded that PW-3 has falsely implicated the accused persons at the instance of police but no cogent reason of alleged false implication has been put forth. Thus, this court has no reason to view the evidence of PW-3 with any suspicion.
44. Now, this court shall return to the discussion on the effect of the discrepancy regarding the identity of the actual assailant upon the credibility of PW-3/Umesh Kumar. In his initial statement Ex.PW3/A given to the IO, PW-3 had not disclosed the identity of the assailants as they were not known to him. In his court statement, PW-3 has identified accused Javed as the actual assailant. So, as far as version of PW-3 is concerned, he never made any contradictory statement alleging that accused Asif @ Bony was the actual assailant. Although, IO has mentioned in additional statement of PW-3 recorded U/s 161 of Cr.P.C wherein he had identified accused Asif @ Bony as the actual assailant but these statements were neither confronted to this witness nor same had been signed by PW-3. In view of the above, the aforesaid discrepancy regarding the identity of actual assailant shall not affect the credibility of PW-3 in any manner. Moreover, as the discussion above has made it clear, the evidence of PW-3 is supported by every surrounding circumstance. Therefore, this court has no reason to visit the evidence given by PW-3 with any suspicion.
45. Indian Evidence Act has not prescribed any particular number of witnesses required to prove the case of prosecution. In some cases, even 100 witnesses may not be sufficient whereas in another case, one witness of sterling quality may be sufficient to prove the allegations.
SC No-44349/2015 FIR No-1276/2014 Page 20 of 23 BABRU
BHAN
Digitally signed
by BABRU BHAN
Date: 2026.01.30
17:10:50 +0530
(RK) (Judgment) State Vs. Asif @ Bony & Anr.
The only condition is that the evidence given by such witness should be of such a quality that court can accept it for its face value without hesitation. It should be natural and consistent with the case of the prosecution.
46. The Hon'ble Supreme Court of India in the case of "Rai Sandeep @ Deepu alias Deepu Vs. State (NCT of Delhi) (2012) 8 SCC 21" has held:-
"22. In our considered opinion, the "sterling witness" should be of very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on SC No-44349/2015 FIR No-1276/2014 Page 21 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:49 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
47. Here in this case, as has been noted above, PW-3 has given a statement that in pursuit of committing a robbery, 02 assailants had shot him and thereafter they ran away. The incident of firing and injuries to PW-3 has been proved by every piece of evidence brought on record. The public witnesses, police witnesses, crime team members and medical documents, all have confirmed that a firing incident had taken place at the time and place specified by the complainant. On aspect of identification of the accused persons, PW-3 had identified accused Javed during TIP proceedings Ex.PW3/C. He has also identified him in the court. Similarly, accused Asif @ Bony had refused to participate in the TIP proceedings but he has also been identified by the complainant in the court. Although, accused Asif @ Bony sought to explain that he had refused to participate in the TIP proceedings because he was shown to the witness but during the trial no such explanation was furnished at any stage that when he was shown to PW-3. It is also not the defense pleaded that complainant/PW-3 had some prior enmity or motive to falsely implicate accused persons in this case. Thus, although PW-3 is the sole eye-witness upon whose ocular evidence, the prosecution has premised its case but the testimony of PW-3 has received all the requisite corroboration from all the surrounding circumstances. He has withstood the test of cross-examination. In opinion of this court, PW-3 has qualified as a sterling witness and his testimony can be sole basis SC No-44349/2015 FIR No-1276/2014 Page 22 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:53 +0530 (RK) (Judgment) State Vs. Asif @ Bony & Anr.
for conviction.
48. Conclusion of the aforesaid discussion is that none of the accused persons can be convicted for offence U/s 397 of IPC for the reasons elaborated in para no-35 of this Judgment. Despite the discrepancy regarding the identity of the assailant who used the fire- arm, the testimony of PW-3/Umesh Kumar and the other material and circumstances discussed above have unerringly proved that both the accused persons and none else had assaulted the complainant/Umesh Kumar to commit robbery upon him. In that pursuit, they seriously injured him.
49. Accordingly, both the accused persons namely Asif @ Bony and Javed @ Happy are convicted for offence U/s 394/34 of IPC. They be taken into custody.
50. Copy of this Judgment be provided to the accused persons for free of cost.
51. File be consigned to Record Room.
52. Matter be put up for arguments on order on sentence on 10.02.2026.
53. Ordered accordingly. BABRU BHAN Announced in open court on Digitally signed by BABRU BHAN 30 th of January, 2026 Date: 2026.01.30 17:11:07 +0530 (BABRU BHAN) ASJ-04, North-East District KKD/DELHI/30.01.2026 SC No-44349/2015 FIR No-1276/2014 Page 23 of 23 BABRU BHAN Digitally signed by BABRU BHAN Date: 2026.01.30 17:10:52 +0530