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Sonu Sawarkar vs State on 27 February, 2020

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.A 345/2013

Reserved on : 25.02.2020
Date of Decision : 27.02.2020
IN THE MATTER OF:
SONU SAWARKAR ….. Appellant
Through: Mr. Pratap Shanker, Advocate

Versus

STATE ….. Respondent

Through: Dr. M.P. Singh, APP for State

CORAM:

HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. The present appeal is instituted against the judgment dated
08.01.2013 passed by Addl. Sessions Judge in FIR No. 58/2012
registered under Sections 354/367/384/34 IPC Sections 67A and 67B
of the IT Act, Police Station Chankyapuri, Delhi whereby the petitioner
was convicted for the offence punishable under Section 367/354 IPC,
Section 67A IT Act and also for the offence punishable under Section
384 read with Section 34 IPC.

2. That vide order on sentence dated 10.01.2013, the appellant was
sentenced as under:-

(i) rigorous imprisonment of 04 years and fine of Rs.
5,000 I- under Section 367 IPC. In default of payment of
fine, convict shall undergo simple imprisonment for three
months; and

CRL.A. 345/2013 Page 1 of 8

(ii) rigorous imprisonment of 02 years under Section 354
IPC; and

(iii) rigorous imprisonment of 03 years under Section 384
IPC; and

(iv) rigorous imprisonment of 04 years and fine of Rs.
5000 I- under Section 67 A if the IT Act. In default of
payment of fine, convict shall undergo simple
imprisonment for three months

3. Briefly the facts noted by the trial court are as under:

“1.0 Prosecution case is that the accused who lived
nearby, allured the minor prosecutrix to a jungle near
Madhu Limay Marg, where he molested her by caressing
her breasts after making her lie down on the ground; he
also forcibly made her unchain his pants and made her
suck his penis. He also prepared a video clip of this act
on his mobile phone. Subsequently, the accused passed on
this video clip to another boy namely Sanju Topo
(juvenile), who lived in the neighbourhood at D-1/68,
Servant Quarter, Satya Marg, Chanakya Puri, New
Delhi. The said Sanju Topo (juvenile) told the prosecutrix
that accused Sonu passed on her video clip to him and
that he would put it on the internet. He also told her that
in case she paid him Rs.l500/-, then he will not put it on
the net. On which, the prosecutrix expressed her inability
to pay such a large amount. Juvenile Sanju Topo then
told her that she would have to pay minimum sum of
Rs.800/- otherwise, he would put the video clip on the
internet. The prosecutrix gave Rs.300/- to Sanju top
(Juvenile) out of her savings. But, Sanju Topo (juvenile)
told her that same is not sufficient and again threatened
her. On which, the prosecutrix stole her mother’s tops
(earrings) and locket and gave the same to Sanju Topo
(juvenile).

1.1 On prosecutrix’s parents discovering the said gold
articles to be missing, reported the matter to police.
During investigation, the prosecutrix revealed the entire
facts and that she had handed over her mother’s jewellery

CRL.A. 345/2013 Page 2 of 8
to Sanju Topo (juvenile). On further investigation juvenile
revealed that he had already sold off the said jewellery
articles. During further investigation, two mobile phones
of make Nokia from the custody of accused Sonu and one
mobile phone of make Rokea from Sanju Topo (juvenile)
were recovered and seized and the same were sent to
FSL, Rohini for examination.”

4. After completing the investigation, a charge-sheet was filed
against the appellant. The co-accused Sanju Topu, being a juvenile was
produced before the Juvenile Justice Board-II, Delhi Gate, Delhi. On
30.07.2012, charge under Section 367/354IPC, 384/34 IPC and under
Section 67A IT Act was framed against the appellant who pleaded not
guilty and claimed trial.

5. The prosecution in support of its case examined a total of 11
witnesses. The accused chose not to lead any defence evidence.

MATERIAL WITNESSES

6. The prosecution examined Mamta Anand, Head Mistress as PW-5
and Maman Singh Rana as PW-6 to prove the age of the prosecutrix. As
per the aforementioned witnesses deposed that as per the school record of
the prosecutrix, her date of birth was 13.07.1998. A copy of the School
Admission Form and the supporting affidavit of the father of the
prosecutrix given at the time of admission in Class-V was exhibited as
Ex. PW5/A Ex. PW5/B respectively. The relevant entry of the
admission register was exhibited as Ex. PW5/C. The prosecutrix was
also medically examined for her age determination. The Medical Board
opined her age to be between14 to 16 years. From above, the trial court
came to the conclusion that the prosecutrix being about 14 years of age
was a minor at the time of the incident.

CRL.A. 345/2013 Page 3 of 8

7. The prosecutrix was examined as PW-1. She deposed that the
appellant was residing near her house and being her friend, was known to
her for last 1 ½ years. In March 2012, at around 1:30-2:00 p.m., the
appellant met her in the ground near her house and asked her to
accompany him to Jungle where he had kept something. The appellant
insisted her to accompany him. On reaching the Jungle, the appellant
made her lie on the ground and lifted her shirt. He caressed her chest,
unchained his pant, took out his penis and asked her to hold it, which she
refused. The appellant also made a video recording on his mobile phone
and when the prosecutrix objected, he stated that nobody touches his
mobile phone. The appellant was identified in the Court by the
prosecutrix.

8. The prosecutrix also deposed that after reaching home, she met
Sanju (the co-accused) who demanded Rs.1500 from her for deleting her
film which was available on the internet. As she did not have any money,
she agreed to pay him Rs.800. Rs. 300 was paid and as she did not have
the remaining money, she took her mother’s gold pendant and a pair of
gold earrings and gave them to Sanju. When her parents discovered the
missing pendant and the gold earrings, on being enquired she told them
that the same were given to a friend in School. Later, she confessed that
the same were given to Sanju for deleting the video from the internet.
Her mother confronted Sanju and subsequently her father lodged the FIR
for theft of gold articles and when the Police came, she narrated the
entire incident.

9. During investigation, two mobile Phones of make ‘Nokia’ were
seized from the appellant and a mobile phone of make ‘Rokea’ was

CRL.A. 345/2013 Page 4 of 8
seized from the co-accused. The mobile phones were sent to FSL lab. Dr.
N.P. Waghmare, Assistant Director, FSL, Rohini was examined as PW-
10 who proved his report as PW-10/A. He deposed that the SIM cards of
the two Nokia phones as well as the phones itself could not be attached
to the UFED device, hence no data could be retrieved from them. The
memory cards from the three seized mobile phones were also
forensically examined and a video was found in the memory card of
seized Rokea mobile phone. The video CD prepared by him of the video
found in the Rokea phone was exhibited as Ex.PW1/C.

10. During the deposition of the prosecutrix, the video CD prepared by
Dr. N.P. Waghmare was played in the Court. The prosecutrix, after
seeing the CD identified the recording to be the same which was made on
the day of the incident by the appellant. She reiterated that the act shown
in the CD was committed by the appellant where he forced her to suck
his penis and put the same in her mouth. In cross examination, she stated
that the incident occurred in March, 2012. She admitted that she did not
ask any passer-by to nab the accused. She also admitted that after
returning from the Jungle, she did not inform her mother and brother
about the incident. She also admitted that when Sanju asked her for
money, he was alone.

11. The other witnesses examined were WSI Kusum Dhama (PW-3),
who recorded the statement of the prosecutrix; S.I K.L. Yadav (PW-9),
who had accompanied WSI Kusum Dhama. Inspector Neelmani, the I.O.
was examined as PW-11.

12. Learned counsel for the appellant contended that the testimony of
the prosecutrix is not creditworthy as there are material contradictions in

CRL.A. 345/2013 Page 5 of 8
her statements recorded during investigation and her deposition before
the Court. He submitted that the ingredient of the offence under Section
367 IPC are not made out as no evidence of any enticement has come on
record. It was further submitted that nothing incriminating was recovered
from the mobile phones seized from the appellant and even as per the
testimony of the prosecutrix, the demand of Rs.1500/- was made by the
co-accused when he was alone. He further contended that the video
clipping cannot be relied on as the same does not show the face of the
appellant.

13. Per contra, learned APP for the State has supported the impugned
judgment. It was submitted that the appellant was already known to the
prosecutrix and her testimony is creditworthy and reliable.

14. I have heard learned counsel for the parties and gone through the
case records.

15. The prosecution in terms of the evidence of Ms. Mamta Anand
(PW-5) Maman Singh Rana (PW-6) has proved that at the relevant
time, the prosecutrix was a minor of about 14 years of age.

16. The testimony of the prosecutrix so far as role of the present
appellant is concerned, is consistent. The contradictions pointed out by
the learned counsel for the appellant as to her location whether she was at
home or in the ground outside her home, when the appellant has
approached her on the day of the incident, are immaterial. The
prosecutrix has unequivocally stated that it was the appellant who had
asked her to accompany him to the Jungle to show her something and on
her refusal, he insisted her to come along. The identity of the appellant
was not disputed. The prosecutrix deposed that the appellant was already

CRL.A. 345/2013 Page 6 of 8
known to her for about 1 ½ years. The prosecutrix has narrated in detail
the incident that occurred in the Jungle. It is proved on record that the
appellant had insisted upon the prosecutrix to accompany her to the
Jungle to commit the offence. The prosecutrix, being a minor was thus
enticed to go to the jungle by the appellant.

17. The prosecutrix deposed that the appellant had made a video on his
mobile phone while he committed the offence. Though the prosecution
seized two mobile phones from the appellant, but in the FSL examination
nothing could be retrieved from the mobile phones/SIM cards/memory
cards recovered at the instance of the appellant. The video clip was
retrieved from the memory card of the mobile phone make ‘Rokea’
which was seized at the instance of the co-accused. Learned counsel for
the appellant contended that the Investigating Agency did not bring any
evidence on record to prove that the video clip was transferred from the
appellant’s phone to the mobile phone of the co-accused. Although no
data could be retrieved from the appellant’s phones and at the time of
demanding money, the co-accused was alone but the fact remains that a
video clip was found and retrieved from the mobile phone of Sanju and
the prosecutrix identified it to be the same video which was recorded by
the appellant. For the aforesaid reasons, I do not find any force in the
contentions of the learned counsel for the appellant that no offence under
Section 67A IT Act or under Section 384/34 IPC is made out.

18. Lastly, it was contended that the CD was not accompanied by a
certificate under Section 65B of the Evidence Act. However, since no
objection to the same was taken before the trial court, the same cannot be
taken at this stage. In the case of Sonu @ Amar v. State of Haryana

CRL.A. 345/2013 Page 7 of 8
reported as (2017) 8 SCC 570, it was held that mode and method of
proof is procedural and objections, if not taken at the trial cannot be
permitted at the appellate stage.

19. The testimony of prosecutrix is both credible and trustworthy. The
appellant could not bring anything on record to shake her testimony.

20. From the above discussion, the prosecution has been able to prove
its case against the appellant. The appellant’s conviction and sentence
awarded under the aforesaid Sections is upheld.

21. As per the nominal roll received, the appellant has already been
released after completing his sentence and payment of fine.

22. Accordingly, the appeal is dismissed.

23. A copy of this order be communicated to the trial court.

(MANOJ KUMAR OHRI)
JUDGE

FEBRUARY 27, 2020
p’ma

CRL.A. 345/2013 Page 8 of 8

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