Delhi District Court
State vs Arif on 9 February, 2026
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
1
IN THE COURT OF DR. RAJ KUMAR SINGH
JUDICIAL MAGISTRATE FIRST CLASS-05
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
DLCT020009392018
JUDGMENT
(a) CIS No. 333/2018
(b) Date of offence 05.11.2017
c) Complainant Asdesh Kumar s/o.
Sahabdeen
(d) Accused Arif s/o. Dilshad r/o. 95/26,
Fresh Khana, PS begam
Ganj, Khanpur, UP
(e) Offence 392/411/174A IPC
(f) Plea of accused Not pleaded guilty
(g) Final Order Convicted
(h) Date of Institution 12.01.2018
(i) Date when judgment was 15.01.2026 & 03.02.2026
reserved
(j) Date of judgment 09.02.2026
1. This judgment disposes of the charge sheet arising out of FIR
No. 265/2017, Police Station Darya Ganj, whereby accused
RAJ
KUMAR
SINGH
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Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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Arif s/o Dilshad was sent up for trial for offences under
Sections 392 and 411 IPC and, in the course of trial, was
additionally charged under Section 174A IPC on account of his
non-appearance and subsequent proclamation under Section 82
CrPC.
2. In brief, as per the police report under Section 173 CrPC, on
05.11.2017, DD entry regarding apprehension of a thief was
received at PS Darya Ganj. On receipt of the information, ASI
Ikram along with Ct. Ravinder proceeded to Netaji Subhash
Marg, opposite Golcha Cinema, Darya Ganj, where they met
complainant Awdesh Kumar and ASI Kanhaiya Lal with other
staff, who had already apprehended one person along with a
robbed mobile phone.
3. Statement of complainant Awdesh Kumar was recorded to the
effect that he was residing on rent at the given address and
working as an operator with Matbricks India Private Limited.
On 05.11.2017, he travelled from his village Kundli to
Jahangirpuri and then by metro to Chandni Chowk. Thereafter,
he boarded DTC bus route No. 429 from Old Delhi Railway
Station towards Sangam Vihar. When the bus reached near
Darya Ganj on Netaji Subhash Marg, he moved towards the
front portion of the bus and was standing there. The
complainant felt that someone was trying to take out his
mobile phone from the right pocket of his jeans. When he tried
to stop the person standing behind him, that person slapped
him strongly, hit him on the chest with a fist blow, took out his
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RAJ signed
KUMAR by RAJ
SINGH KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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Samsung Galaxy J2 golden coloured mobile phone, containing
one Jio SIM and one Tata Docomo SIM, from his right pocket
and, after pushing him, jumped out of the bus and started
running away.
4. The complainant immediately followed him, raising alarm.
With the help of public persons and police staff present nearby,
the said person was apprehended at a short distance. On
personal search of that person, the robbed mobile phone was
recovered from the front pocket of his grey pyjama. On
inquiry, his name was revealed as Arif s/o Dilshad, resident of
the addresses mentioned in the charge sheet. The complainant
requested for legal action and for return of his phone.
5. On the basis of the said statement, ASI Ikram made his
endorsement and got FIR registered under Sections 392 and
411 IPC through Ct. Ravinder. The recovered Samsung Galaxy
J2 golden mobile phone was seized, and the accused was
arrested and personally searched. The complainant later
produced the purchase invoice of the phone. After completion
of investigation, charge sheet for offences under Sections 392
and 411 IPC was filed.
6. During the trial, the accused later stopped appearing. Bailable
and non-bailable warrants were issued. Processes under
Section 82 CrPC were directed and executed at his Delhi and
Kanpur addresses. On the basis of the reports and statements of
the process servers, he was declared a proclaimed offender by
RAJ
a detailed order dated 19.09.2025. Subsequently, on
KUMAR
SINGH
Digitally signed
by RAJ KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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03.10.2025, he was apprehended by the Anti Narcotics Cell
pursuant to secret information that a proclaimed offender in
FIR No. 265/2017 would be present near Darya Ganj,
whereafter a kalandra under Section 35.1(D) BNSS was
prepared and he was produced before this Court.
7. After filing of the charge sheet, cognizance of offences under
Sections 392 and 411 IPC was taken and the accused was
summoned. On his appearance, compliance with Section 207
CrPC was carried out and copies of the charge sheet and relied
upon documents were supplied to him.
8. Vide order dated 25.04.2018, the learned predecessor court
framed charge against the accused for offences under Sections
392 and 411 IPC. The charge, in substance, alleged that on
05.11.2017 at about 2.30 p.m. at Netaji Subhash Marg,
opposite Golcha Cinema, Darya Ganj, the accused took away
the mobile phone of the complainant by slapping and fisting
him, and that the same was recovered from his possession. The
accused pleaded not guilty and claimed trial.
9. During the course of trial, after the accused absconded and was
declared a proclaimed offender, he was produced back in this
case on the strength of the kalandra under Section 35.1(D)
BNSS. This Court, vide order dated 27.11.2025, framed an
additional charge under Section 174A IPC against him,
alleging that, being an accused in this case, he failed to appear
before this Court on or before 28.08.2025 and was declared a
proclaimed person on 19.09.2025. The accused again pleaded
Digitally
RAJ signed
KUMAR by RAJ
SINGH KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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not guilty and claimed trial.
10. During prosecution evidence, the accused, vide his statement
dated 27.11.2025 under Section 294 CrPC read with Section
330 BNSS, without admitting the prosecution case and without
prejudice to his defence, did not dispute the genuineness of the
copy of e-FIR, the certificate under Section 65B of the Indian
Evidence Act, the endorsement on the rukka and the factum of
deposit of case property in the malkhana. He also stated that he
had no objection if these documents were read in evidence and
the formal witnesses were dropped.
11. To prove its case, the prosecution examined in all nine
witnesses. No independent public witness to the incident, apart
from the complainant himself, was examined.
12. PW1 is the complainant and victim, Awdesh Kumar. He
deposed that on the date of incident he was residing at his
rented address and working in Matbricks India Pvt. Ltd. as an
operator. On 05.11.2017 at about 12 noon he left home,
reached Jahangirpuri, then by metro came to Chandni Chowk
and thereafter boarded DTC bus route No. 429 from Old Delhi
Railway Station towards Sangam Vihar. At about 2.30 p.m.,
when the bus reached near Darya Ganj, he was standing in the
front portion of the bus. PW1 stated that he felt someone
putting a hand into his right jeans pocket and taking out his
Samsung Galaxy J2 golden coloured mobile phone containing
two SIM cards, one Jio and one Tata Docomo. He immediately
turned around and suspected the accused Arif, present in court,
Digitally
RAJ signed
KUMAR by RAJ
SINGH KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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and asked him to check regarding his phone. The accused did
not allow him to check and instead pushed him with both
hands. He became imbalanced, and taking advantage of this,
the accused deboarded the bus and started running away.
13. PW1 further deposed that he also deboarded the bus, raised
alarm and chased the accused. With the help of two police
officials and public persons present at the spot, the accused
was apprehended. On inquiry by those police officials, the
accused produced and handed over his mobile phone. His
statement Ex. PW1/A was recorded. He pointed out the place
of incident and the site plan Ex. PW1/B was prepared at his
instance. The mobile phone was seized by the police vide
memo Ex. PW1/C. The accused was arrested in his presence
vide arrest memo Ex. PW1/D and personally searched vide
memo Ex. PW1/E. PW1 stated that he later gave the invoice of
his phone to the IO, which is marked as Mark P. He got his
phone released on superdagi through court, as reflected in
indemnity bond Ex. PW1/F and panchnama Ex. PW1/G. He
correctly identified the photographs Ex. PW1/1 to Ex. PW1/3,
collectively exhibited as Ex. P1, as those of his mobile phone.
14. In cross-examination, PW1 stated that the police officials did
not ask him to produce the bus ticket. He admitted that he had
not brought the ticket and further stated that he did not keep it
and, therefore, could not now produce it. He denied
suggestions that he was never having a bus ticket or that he
RAJ never boarded bus route No. 429 on that day. He admitted that
KUMAR
SINGH
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signed by RAJ
KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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the bus was moving at the time of the incident, but volunteered
that it had nearly reached the bus stop and itself stopped, so
there was no need to ask anyone to stop it. He admitted that his
statement Ex. PW1/A does not mention that the bus itself
stopped due to the bus stop. He denied suggestions that the
phone identified by him in court was different from the one
shown as recovered from the accused, or that the Tata Docomo
SIM was not in his phone. He admitted that his statement, the
site plan and the seizure memo were prepared in the police
station, but denied the suggestion that the accused was already
present in the police station in some other matter and was
falsely implicated. He denied that the invoice of the phone was
false or fabricated. He firmly denied that the accused is not the
person who robbed his phone or that nothing was recovered
from the accused, or that he was deposing falsely at the
instance of the IO.
15. PW2 is Ct. Ravinder, posted at PS Darya Ganj on the relevant
date. In his examination in chief, he deposed that on
05.11.2017 he was on patrolling duty along with ASI Kanhaiya
near Netaji Subhash Marg opposite Golcha Cinema when, at
about 2.30 p.m., they saw the complainant along with some
public persons who had caught hold of accused Arif. On
enquiry, the complainant told them that the accused had tried
to run away after committing robbery of his mobile phone and
that he had been caught with the help of public persons. After
some time, IO ASI Ikram came at the spot, recorded the
statement of the complainant and prepared the rukka, which
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RAJ signed
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Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
8
was handed over to PW2 for registration of FIR. He went to
the police station, got the FIR registered and returned to the
spot, where he handed over the copy of FIR and original rukka
to the IO. He supported the seizure of the mobile phone vide
Ex. PW1/C, the arrest vide Ex. PW1/D, the personal search
vide Ex. PW1/E and the recording of the disclosure statement
Ex. PW2/A. He identified the accused in court and also
identified the mobile phone in the photographs Ex. P1 as the
same phone recovered from the accused.
16. In cross-examination, PW2 admitted that in his statement
under Section 161 CrPC he had not stated that he was on
patrolling duty at the time of incident and had instead stated
that he went to the spot along with IO ASI Ikram after receipt
of a PCR call at the police station. He admitted that IO did not
record the names and addresses of public persons and that he
did not know whether any notice was given to them to join the
investigation. He stated that the mobile phone recovered from
the accused was sealed with the seal of DG1 and that the seal
after use was handed over to him and later deposited in the
malkhana, but admitted that no seal handing over memo was
prepared. He denied suggestions that he never visited the spot,
that all documents were prepared in the police station or that
the accused was never apprehended at the spot.
17. PW3 is SI Kanhaiya, who was ASI at the relevant time. His
testimony is broadly consistent with that of PW2. He deposed
that on 05.11.2017 he was on patrolling duty with Ct. Ravinder
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KUMAR by RAJ
SINGH KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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near Netaji Subhash Marg opposite Golcha Cinema when they
saw the complainant along with some public persons who had
caught hold of accused Arif. On enquiry, the complainant
stated that the accused had tried to run away after committing
robbery of his mobile phone and had been caught with the help
of public persons. After some time, IO ASI Ikram came to the
spot, recorded the statement of the complainant and prepared
the rukka. PW3 identified the accused in court and also
identified the mobile phone in the photographs Ex. P1 to P3 as
the same phone recovered in the case. In cross-examination he
denied the suggestion that he never visited the spot or that the
accused was never apprehended there.
18. PW4 is SI Ikram, the IO of the case. He deposed that on
05.11.2017 he was on emergency duty at PS Darya Ganj. On
receipt of DD No. 15A, he along with Ct. Ravinder went to
Netaji Subhash Marg opposite Golcha Cinema, where he met
complainant Awdesh and ASI Kanhaiya. He recorded the
statement of the complainant and prepared the rukka by
making endorsement Ex. PW4/A. The rukka was handed over
to Ct. Ravinder to get the FIR registered. After registration, Ct.
Ravinder returned with the copy of FIR and original rukka.
PW4 further deposed that the recovered Samsung Galaxy J2
golden mobile phone with two SIM cards was seized vide
memo Ex. PW1/C, that accused Arif was handed over to him
by ASI Kanhaiya and the complainant, that he arrested the
accused vide memo Ex. PW1/D and conducted his personal
search vide memo Ex. PW1/E, that he recorded the disclosure
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STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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statement Ex. PW2/A, prepared the site plan Ex. PW1/B at the
instance of the complainant, deposited the case property in the
malkhana, recorded statements under Section 161 CrPC and,
after completing investigation, filed the charge sheet in court.
He identified the accused in court and also identified the
photographs Ex. P1 to P3 as those of the mobile phone
recovered in the case.
19. In cross-examination, PW4 stated that he requested public
persons to join the investigation but did not record their names
and addresses and did not serve any notice to them. He
admitted that he did not remember the exact impression of the
seal, did not remember to whom it was handed over after use
and did not remember whether any seal handing over memo
was prepared. He denied suggestions that the statement of the
complainant was recorded in the police station or that he never
visited the spot or that the accused was never apprehended
there or that nothing was recovered from the possession of the
accused.
20. PW5 ASI Sunil Kumar, PW6 HC Manish and PW9 HC Anuj
Kumar are members of the raiding party of the Anti Narcotics
Cell which apprehended the accused on 03.10.2025. Their
testimonies are consistent to the effect that on that day, secret
information was received by IO/HC Anuj that a person named
Arif, who had been declared proclaimed offender in FIR No.
265/2017 PS Darya Ganj, would come near Darya Ganj
between 11.00 a.m. and 12.00 noon, and that if a raid was
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Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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conducted he could be apprehended. A raiding party
comprising HC Anuj, ASI Sunil and HC Manish was
constituted. They reached Darya Ganj red light, where the
secret informer pointed out the accused and then left. The
accused was overpowered and apprehended. On interrogation,
he disclosed his name as Arif. On checking the list of
proclaimed offenders, he was found to be a proclaimed
offender in the present FIR. He was arrested vide arrest memo
Ex. PW5/A and personally searched vide memo Ex. PW5/B,
taken to LNJP Hospital for medical examination and produced
before court with kalandra Ex. PW9/A under Section 35.1(D)
BNSS. All three witnesses identified the accused in court. In
cross-examination, they admitted that no independent public
witness was joined at the time of arrest but denied suggestions
that they were not part of the raiding party or that they were
deposing falsely.
21. PW7 HC Manish and PW8 Ct. Mohit are the process servers
who had earlier been examined as CW1 and CW2 at the stage
of proclamation. PW7 deposed that on 28.07.2025 he visited
the Delhi address of the accused, namely house of Makki
Irshad, Jagat Cinema, Jama Masjid, for execution of process
under Section 82 CrPC. The accused was not found there. One
Md. Rashid met him and stated that he had been residing at
that address for 20 to 25 years and that the accused had never
resided there. PW7 stated that he read out the proclamation
loudly in the locality after gathering local persons, affixed a
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copy of the process on the notice board in the locality and also
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STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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affixed a copy on the notice board of this court. He prepared
his report Ex. CW1/B and proved GD entry Mark C and
newspaper publications Mark D (colly). He denied that he did
not execute the process or that he prepared a false report.
22. PW8 Ct. Mohit deposed that on 07.07.2025 he visited the
Kanpur address of the accused, namely house No. 95/26,
Mohalla Farash Khana, PS Begam Ganj, Khanpur, Uttar
Pradesh, to execute process under Section 82 CrPC. The
accused was not found there. One Santosh informed him that
the accused was not residing at that address. PW8 stated that
he read out the proclamation loudly in the locality after
gathering local persons, affixed a copy of the process on the
notice board in the locality and also on the notice board of this
court. He prepared his report Ex. CW2/A and proved GD entry
Mark C and newspaper publications Mark D (colly). In cross-
examination he maintained that he had executed the process
and denied that his report was false.
23. After completion of prosecution evidence, the statement of the
accused under Section 313 CrPC read with Sections 316 and
351 BNSS was recorded. The entire incriminating evidence
was put to him in a detailed question-and-answer format. The
accused denied all material allegations. He denied having
robbed any mobile phone from the complainant, denied that
any mobile was recovered from his possession and denied that
he was apprehended from the bus or from the spot. He stated
that he had been falsely implicated. As regards the
RAJ
KUMAR
SINGH
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by RAJ KUMAR
SINGH
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FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
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proclamation and his later arrest, he stated that he had not
intentionally avoided the court, disputed that the process under
Section 82 CrPC was properly executed and denied that he was
rightly declared a proclaimed person. He also denied the
version of his arrest pursuant to the kalandra and the
identification by Anti Narcotics Cell witnesses.
24. He admitted that he had only conceded the genuineness of
certain documents under Section 294 CrPC so that formal
witnesses need not be examined, and maintained that he did
not admit the truth of any allegations contained in those
documents. He stated that he did not wish to lead defence
evidence. When asked why prosecution witnesses had deposed
against him, he stated that he did not know and reiterated that
he had been falsely implicated and was innocent.
25. Learned APP for the State argued that the testimony of PW1 is
natural, cogent and consistent in material particulars and is
fully supported by PW2, PW3 and PW4, as well as by the
documentary record. It was contended that there is no reason
for PW1 to falsely implicate the accused, with whom he had
no prior enmity, and that minor discrepancies or procedural
lapses regarding bus ticket, joining of public witnesses or seal
handing over memo do not detract from the core truth of the
prosecution version. It was submitted that the prosecution has
proved the offence of robbery under Section 392 IPC and,
further, that the ingredients of Section 174A IPC are also
satisfied.
RAJ
KUMAR
SINGH
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SINGH
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26. Learned defence counsel, per-contra, on the other hand, relied
on certain discrepancies and omissions. It was pointed out that
PW1 did not repeat in his deposition the specific words “slap”
and “fist blow on chest” as recorded in his original written
complaint, that there is a contradiction between the version of
PW2 in court and his statement under Section 161 CrPC about
whether he was on patrolling duty or had gone with the IO
from the police station, that no bus ticket was produced and
that no independent public witness was joined. Emphasis was
also placed on the lack of a seal handing over memo. It was
argued that these circumstances show that the accused was not
apprehended at the spot and that the entire story was fabricated
in the police station. It was further argued that the
proclamation under Section 82 CrPC was not properly
executed and that, therefore, the charge under Section 174A
IPC was not made out.
27. In view of the rival contentions and the material on record, the
following questions arise for determination, (i) Whether, on
05.11.2017 at about 2.30 p.m. at Netaji Subhash Marg,
opposite Golcha Cinema, PS Darya Ganj, the accused
committed robbery of the mobile phone of complainant
Awdesh Kumar, so as to attract Section 392 IPC. (ii) Whether,
on the same facts, the alternative charge under Section 411 IPC
is made out. (iii) Whether the accused, being an accused in this
case, failed to appear in court in spite of proclamation under
Section 82 CrPC and was rightly declared a proclaimed
person, thereby committing an offence under Section 174A
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IPC.
28. Section 392 IPC prescribes punishment for robbery. Where
robbery is based on theft, Section 390 IPC requires the
prosecution to establish that the accused committed theft of
movable property and, in order to commit that theft, or in
committing the theft, or in carrying away or attempting to
carry away property obtained by that theft, voluntarily caused
or attempted to cause to any person death, hurt or wrongful
restraint or fear of instant death, instant hurt or instant
wrongful restraint.
29. Section 411 IPC deals with dishonestly receiving or retaining
stolen property, knowing or having reason to believe the same
to be stolen property. One of its essential ingredients is that,
before the accused came into possession of the property, some
person other than the accused had possession of it.
30. Section 174A IPC, so far as relevant here, punishes a person
who fails to appear in court in spite of a proclamation issued
under Section 82 CrPC, after expiry of the stipulated period,
and is declared a proclaimed offender or proclaimed person,
without just cause.
31. Coming first to the incident of robbery, PW1 is the natural and
most material witness. His presence in the bus at the relevant
date, time and route has not been effectively challenged. The
defence suggestions that he never boarded bus route No. 429
and that he had no bus ticket have remained mere suggestions.
PW1 has explained that the police did not ask for the ticket and
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that he did not keep it. The non-production of the ticket, in the
facts of this case, does not by itself render his testimony
suspect.
32. There is some variation between the precise description of the
assault in the written complaint and the deposition of PW1.
The complaint speaks of a slap and a fist blow on the chest,
whereas in court he has spoken in simpler terms of the accused
pushing him with both hands, as a result of which he became
imbalanced, and the accused took advantage of this to escape.
When seen from the standpoint of a lay victim narrating an
incident that occurred in a moving bus, such variation is
natural. The core of PW1’s version, namely that the accused
standing immediately behind him surreptitiously removed his
mobile phone from his right pocket and used force to facilitate
his escape with that phone, remains consistent.
33. PW1 has categorically identified the accused in court as the
person who removed his mobile phone and then pushed him
and fled. He has also consistently identified the mobile phone
in the photographs Ex. P1 as his phone, which he later received
on superdagi. His cross-examination, though lengthy, has not
shaken his core version. He has denied all suggestions of false
implication, of the accused being already present in the police
station or of the phone being planted. There is no suggestion or
material that PW1 had any animus against the accused so as to
falsely implicate him in a serious offence like robbery.
34. PW2, PW3 and PW4, all police witnesses, provide a
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supporting chain around the central testimony of PW1. PW2
and PW3 have stated that they were on patrolling duty near the
spot, saw the complainant and public persons having caught
hold of the accused, and were informed that the accused had
committed robbery of the mobile phone and tried to flee, but
was apprehended with the help of public persons. PW4 then
arrived, recorded the statement, prepared the rukka and
completed the formalities of seizure and arrest. All three have
identified the accused in court and supported the seizure of the
phone and the arrest.
35. The contradiction in the version of PW2, namely that in court
he stated he was on patrolling duty with PW3 while in his
Section 161 CrPC statement he had said he went to the spot
with the IO on receipt of PCR call, is noted and weighed.
However, even taking this contradiction into account, PW2 has
consistently supported the main prosecution story that the
complainant and public persons had apprehended the accused,
that the complainant alleged robbery of his phone and that the
phone was recovered from the accused and seized in his
presence.
36. The defence has relied heavily on the absence of independent
public witnesses to the seizure and arrest and on the fact that
the site plan and some documents were prepared in the police
station. Ideally, the IO should have joined public witnesses in
the investigation and, if they refused, should have recorded
their particulars and issued written notices. Similarly, the
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preparation of documents at the police station rather than at the
spot is a procedural lapse. However, these lapses must be seen
in the context of the overall evidence. PW1’s evidence stands
on its own strength and is not rendered unreliable merely
because public persons were not examined. It is a matter of
common experience that public persons often hesitate to get
involved in criminal proceedings. In the absence of any
material to suggest that PW1 and the police officials have
colluded to falsely implicate the accused, the non-examination
of public witnesses, though a weakness, is not fatal.
37. As regards the seal, it has come in evidence that the phone was
sealed, but no seal handing over memo was prepared and the
witnesses are unable to recall all details. However, the phone
was later identified by PW1 through photographs taken before
its release on superdari, and there is no suggestion or material
that the phone shown to him was not his phone. In the absence
of any indication of tampering, these deficiencies, while noted,
do not demolish the prosecution case.
38. The defence theory that the accused was already in the police
station in some other matter and was falsely implicated has
remained a bare suggestion. No document or circumstance has
been brought on record to lend any plausibility to this plea. On
the other hand, the combined effect of the testimonies of PW1
to PW4 indicates that the accused was apprehended near the
spot soon after the occurrence and that the robbed phone was
recovered from his possession.
Digitally
RAJ signed
KUMAR by RAJ
SINGH KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
19
39. Taking the testimony of PW1 as the central plank, and reading
it in conjunction with the depositions of PW2, PW3 and PW4
and the admitted documents, this Court finds that the
prosecution has successfully proved that the accused, while
travelling behind PW1 in a DTC bus, dishonestly removed
PW1’s mobile phone from his pocket and, in order to carry
away that property, used force by pushing PW1 and jumping
out of the bus to flee, but was chased and apprehended with the
robbed phone in his possession. The ingredients of robbery, as
defined in Section 390 and punishable under Section 392 IPC,
are satisfied.
40. Section 411 IPC deals with dishonestly receiving or retaining
stolen property. To sustain a conviction under Section 411 IPC,
the prosecution must establish, among other ingredients, that
the property in question was stolen, that it was found in the
possession of the accused and that, before the accused came
into such possession, some other person had possession of that
property. The Supreme Court in Trimbak v. State of Madhya
Pradesh, AIR 1954 SC 39, explained that one of the essential
ingredients of Section 411 IPC is that a person other than the
accused had possession of the property before the accused.
41. It is equally well settled that a person who is the actual thief of
the property cannot, for the same act and in respect of the same
property, be simultaneously treated as a receiver of stolen
property under Section 411 IPC. The Hon’ble Delhi High
Court in Sunil Mashi @ Silly v. State of NCT of Delhi, Crl.
Digitally
RAJ signed
KUMAR by RAJ
SINGH KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
20
Appeal No. 6101/2023 decided on 14.10.2014, reiterated that
once an accused is found to be the real thief and is convicted
under Section 379 IPC, there is no justification in convicting
him also under Section 411 IPC in respect of the same
property, since a real thief cannot be the receiver of his own
stolen property. The principle laid down is of general
application and applies equally where the substantive
conviction is for robbery under Section 392 IPC, that is, theft
coupled with the requisite degree of force or fear.
42. In the present case, as discussed in detail above, the evidence
on record clearly establishes that it was the accused himself
who dishonestly removed the mobile phone of the complainant
from his right pocket while both were travelling in the DTC
bus, and that, in order to facilitate his escape with that phone,
he used force by pushing the complainant, jumped off the bus
and ran, but was apprehended almost immediately thereafter
with the robbed phone on his person.
43. Once this Court records a categorical finding that the accused
is the actual robber, he cannot, in respect of the same mobile
phone and the same transaction, be treated as a receiver who
dishonestly receives or retains stolen property from another
person. One of the essential ingredients of Section 411 IPC, as
noted in Trimbak (supra), is that some person other than the
accused must have had possession of the property before the
accused got possession of it. In the facts of the present case,
there is no such intervening hand. The possession of the
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KUMAR
SINGH
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Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
21
mobile phone moved directly from the complainant to the
accused in the course of the robbery and the same phone was
recovered from the accused almost immediately upon his
apprehension.
44. The Delhi High Court in Sunil Mashi @ Silly (supra) has
reiterated that where an accused is found to be the real thief
and is convicted for theft, his simultaneous conviction under
Section 411 IPC in respect of the same property is not legally
justified, as a real thief cannot be the receiver of his own stolen
property. The same principle squarely applies here. In view of
the categorical finding that the accused is guilty of robbery of
the complainant’s mobile phone under Section 392 IPC, a
separate conviction under Section 411 IPC in respect of that
same phone would be legally impermissible.
45. Accordingly, the charge under Section 411 IPC does not
survive and the accused is not being convicted for that offence.
46. The record reveals that after commencement of trial the
accused stopped appearing. Bailable and non-bailable warrants
were issued against him. On his continued non-appearance,
processes under Section 82 CrPC were ordered to be issued at
his available addresses.
47. PW7 HC Manish has proved that on 28.07.2025 he visited the
Delhi address of the accused, namely house of Makki Irshad,
Jagat Cinema, Jama Masjid, in order to execute the process
under Section 82 CrPC. The accused was not found there. One
Md. Rashid informed him that he had been living at that
Digitally
RAJ signed
KUMAR by RAJ
SINGH KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
22
address for 20 to 25 years and that the accused had never
resided there. PW7 has deposed that he read out the
proclamation loudly at a public place after gathering local
persons of the area, that he affixed a copy of the process on the
notice board in the locality and also affixed a copy on the
notice board of this court. He prepared his report Ex. CW1/B
and proved GD entry Mark C and newspaper publications
Mark D (colly). He admitted in cross-examination that there
was no videography, but maintained that he had made the
announcement in a loud voice and executed the process. He
denied suggestions that he did not execute the process or that
he prepared a false report.
48. PW8 Ct. Mohit has similarly proved that on 07.07.2025 he
visited the Kanpur address of the accused, namely house No.
95/26, Mohalla Farash Khana, PS Begam Ganj, Khanpur, Uttar
Pradesh, to execute the process under Section 82 CrPC. The
accused was not found there. One Santosh informed him that
the accused was not residing at that address. PW8 has deposed
that he read out the proclamation loudly at a public place after
gathering local persons, affixed a copy of the process on the
notice board of the locality and also affixed a copy on the
notice board of this court. He prepared his report Ex. CW2/A
and proved GD entry Mark C and newspaper publications
Mark D (colly). He denied that he had not executed the process
or that his report was false.
49. The order dated 19.09.2025 passed by this Court, on record.
Digitally
RAJ signed
KUMAR by RAJ
SINGH KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
23
After considering the reports and the then statements of PW7
and PW8 as court witnesses, this Court reached a considered
conclusion that the accused Arif s/o Dilshad had absconded or
was concealing himself so as to avoid execution of warrants
and processes, that despite lapse of the statutory period after
publication of proclamation he had failed to appear and that,
accordingly, he was liable to be declared a proclaimed offender
in this very case. He was so declared by a speaking order.
50. The later testimonies of PW5, PW6 and PW9 further show that
on 03.10.2025 a secret informer informed IO/HC Anuj that a
person named Arif, who had been declared proclaimed
offender in FIR No. 265/2017 PS Darya Ganj, would come
near Darya Ganj between 11.00 a.m. and 12.00 noon, that a
raiding party was constituted, that the secret informer pointed
out the accused at Darya Ganj red light and left, that the
accused was overpowered and apprehended and that, on
checking, he was found to be a proclaimed offender in the
present FIR. He was then arrested and produced before this
Court along with kalandra Ex. PW9/A. All three witnesses
have identified the accused in court as the same person
apprehended in that raid.
51. The defence has not produced any material to show any just
cause for the non-appearance of the accused during the period
between issuance and execution of proclamation and his
declaration as a proclaimed person, nor has any plausible
explanation been offered in the Section 313 CrPC statement
RAJ KUMAR
SINGH
Digitally signed
by RAJ KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
24
beyond a bare denial. A mere denial, without any supporting
material, is insufficient to rebut the clear and consistent
evidence regarding execution and publication of the
proclamation and the subsequent judicial order of this Court
declaring him a proclaimed offender.
52. It is correct that videography was not conducted. However,
Section 82 CrPC requires that the proclamation be publicly
read in some conspicuous place of the town or village in which
the accused ordinarily resides, that it be affixed to some
conspicuous part of the house in which he ordinarily resides
and of the courthouse, and that, if the court so directs, it be
published in a daily newspaper. The evidence of PW7 and
PW8, read with their reports and the order dated 19.09.2025,
shows compliance with the statutory requirements. In the facts
of this case, the absence of videography or drum beating does
not vitiate the proclamation.
53. On a cumulative consideration of the testimonies of PW7,
PW8, PW5, PW6 and PW9 along with the relevant orders of
this Court, it stands proved that the accused, being an accused
in the present case, failed to appear in court in spite of properly
executed proclamation under Section 82 CrPC, that after
expiry of the statutory period he was declared a proclaimed
offender by a speaking order dated 19.09.2025 and that he was
subsequently apprehended as such proclaimed offender on
03.10.2025. The ingredients of Section 174A IPC are thus
satisfied.
Digitally
RAJ signed
KUMAR by RAJ
SINGH KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
25
54. In view of the aforesaid discussion, this Court records the
following conclusions:
(i) The testimony of PW1, the complainant and victim, is natural
and consistent in material particulars. It is supported by PW2,
PW3 and PW4 and by the admitted documents. Minor
discrepancies regarding the exact description of the assault,
contradiction in PW2’s account as to how he reached the spot,
non-production of the bus ticket, non-joining of independent
public witnesses and omissions regarding seal handing over
memo, though noted, do not create any reasonable doubt about
the core prosecution case.
(ii) The prosecution has proved beyond reasonable doubt that on
05.11.2017 at about 2.30 p.m. at Netaji Subhash Marg,
opposite Golcha Cinema, Darya Ganj, the accused Arif
committed robbery of the mobile phone of complainant
Awdesh Kumar, within the meaning of Sections 390 and 392
IPC.
(iii) In view of the settled legal position explained in Trimbak v.
State of Madhya Pradesh, AIR 1954 SC 39, and Sunil Mashi
@ Silly v. State of NCT of Delhi (supra), and in view of the
categorical finding that the accused himself committed the
robbery of the complainant’s mobile phone and that there was
no intervening hand in the movement of the property, the
essential ingredient of Section 411 IPC, namely prior
possession by a person other than the accused, is not satisfied.
The charge under Section 411 IPC, therefore, does not stand
RAJ
KUMAR
SINGH
Digitally signed
by RAJ KUMAR
SINGH
Cr. Case 333/2018
STATE Vs. ARIF
FIR No.265/2017
(Darya Ganj)
U/s:392/411/174A IPC
26
attracted and the accused cannot be convicted for that offence.
(iv) The prosecution has proved beyond reasonable doubt that the
accused, being an accused in this case, failed to appear in court
in spite of proclamation issued and duly executed under
Section 82 CrPC, that after lapse of the statutory period he was
declared a proclaimed offender by order dated 19.09.2025 and
that he was subsequently apprehended as such proclaimed
offender on 03.10.2025. The ingredients of Section 174A IPC
are thus made out.
55. Accordingly, accused Arif s/o Dilshad is held guilty and is
hereby convicted for the offences punishable under Sections
392 IPC and 174A IPC. The accused is acquitted of the charge
under Section 411 IPC, for the reasons recorded in the body of
this judgment.
56. Let the convict be heard on the question of sentence. Put up for
hearing on sentence on a date to be fixed separately.
57. Copy of this judgment be supplied to the convict free of cost
against acknowledgment.
58. The judgment and the order be uploaded as per rules.
Announced in open court
on 09.02.2026
(Dr. Raj Kumar Singh)
Judicial Magistrate First Class-05/Central
Delhi/09.02.2026
Note: This judgment contains 26 (Twenty Six ) pages and having
my signature on each page.
(Dr. Raj Kumar Singh)
Judicial Magistrate First Class-05/Central
Digitally Delhi/09.02.2026
RAJ signed
KUMAR by RAJ
SINGH KUMAR
SINGH