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The accused argued that his intent was not inappropriate and his touch and conduct was purely motivated by a sentiment of fatherly nature
The Bombay High Court has refused to quash a General Court Martial (GCM) order sentencing former Lieutenant Colonel PK Tiwari to five years of imprisonment for sexually assaulting an 11-year-old girl.
A Division bench of Justice Revati Mohite Dere and Justice Neela Gokhale, delivered the ruling underscoring the need to trust a minor victim’s instinct in identifying a bad touch. The court noted, “the statement of the prosecutrix- minor girl inspires confidence that she has narrated the incident correctly. Furthermore, her instinct of identifying a bad touch of the petitioner must be believed.”
The case stemmed from an incident that occurred on February 1, 2020, shortly after the accused/ petitioner took charge at the Army Sports Institute in Pune. The victim, an 11-year-old girl, had been brought to meet Tiwari by her father. During the meeting, the accused allegedly touched her thigh inappropriately under the guise of reading her palm and requested to kiss her. The girl immediately informed her father, leading to an investigation.
A GCM convicted the accused of committing Aggravated Sexual Assault under Section 10 and Sexual Harassment under Section 12 of the Protection of Children from Sexual Offences (POCSO) Act, sentencing him to five years in prison and ordering his dismissal from service. The conviction was later confirmed by the Armed Forces Tribunal (AFT), prompting the accused to file a writ petition before the High Court.
The accused contended that his actions were “fatherly or grand-fatherly” and not sexually motivated. He further highlighted procedural irregularities, including the absence of a Court of Inquiry, inconsistencies in the victim’s statements, no medical examination of the victim as required under the provisions of POCSO Act, and a lack of evidence proving the victim’s age.
The court clarified that its scope of intervention was limited to examining the question pertaining to denial of a fundamental right under Part III of the Constitution or a jurisdictional error or error apparent on the face of the record to warrant interference in the findings of the GCM.
The court found no substance in the argument of the petitioner about assembling a Court of Inquiry (CoI). It emphasised that a CoI is not mandatory in all cases, stating that “It is only if the competent authority is of the view that evidence requires to be collected, that the authorities may decide to constitute a CoI for the purpose of collecting evidence. It is merely in the nature of a Fact Finding Inquiry which is not mandatory under the AA nor the Army Rules.”
Addressing the absence of a medical examination, the court observed: “Although a medical examination ought to have been conducted immediately, even if to ascertain the mental status and trauma suffered by the victim, failure in sending the victim for medical examination per se, especially in the absence of any physical injury to her person, does not lend infirmity to the finding of the GCM, in the facts of the present matter.”
Consequently, the court dismissed the petition not finding any violation of the fundamental rights of the petitioner. Additionally, the court vacated the interim protection granted to the petitioner and directed him to surrender to the Army authorities.
Cause Title: Ex LT Col PK Tiwari v Union of India [CRIMINAL WRIT PETITION NO. 2919 OF 2024]
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