Victim's instinct of 'bad touch' must be believed: Bombay High Court upholds ex-Army officer's POCSO sentence

The Bombay High Court recently refused to quash a court martial order sentencing a former Lieutenant Colonel to five years in prison for sexually assaulting an 11-year-old girl, emphasising that the victim's instinct in identifying a "bad touch" must be believed. [Lt. Col PK Tiwari v. UOI].The bench of Justices Revati Mohite Dere and Neela Gokhale upheld the findings of the General Court Martial (GCM) and the Armed Forces Tribunal (AFT), reasoning,"The girl met the Petitioner for the very first time and there was no reason for the Petitioner to hold her hand and read her palm even under the pretext of reading her horoscope, touch her thigh and request to kiss her. The girl immediately sensed a bad touch and reported as such to her father instantly." It further added, “...her instinct of identifying a bad touch of the petitioner must be believed.”.Former Lieutenant Colonel PK Tiwari was convicted by a GCM for sexual offences under the Protection of Children from Sexual Offences Act (POCSO).The incident occurred on February 1, 2020, after Tiwari joined his new posting at the Army Sports Institute in Pune. The victim, an 11-year-old girl, was brought to meet Tiwari by her father, when Tiwari allegedly touched her thigh inappropriately while claiming to read her palm.Tiwari also made an inappropriate request, asking the girl if he could kiss her. The girl immediately reported the incident to her father, and an investigation followed. The GCM found Tiwari guilty, sentencing him to five years in prison and dismissing him from service. This decision was later upheld by the confirming authority and the AFT, prompting Tiwari to file a writ petition before the High Court..Tiwari’s defense was that there were procedural issues, including the lack of a Court of Inquiry, discrepancies in the victim’s statements and the absence of proof of the victim’s age. He also claimed that his actions were innocent and fatherly/grand-fatherly in nature, not sexually motivated.The High Court dismissed these claims, noting that a Court of Inquiry is not mandatory in every case. The Court also addressed the lack of a medical examination, stating, "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." The Court further emphasised that the victim’s testimony was consistent and trustworthy, and in such cases, her statement alone can be sufficient for conviction.Ultimately, the Court vacated the interim protection granted to Tiwari and directed him to surrender to the Army authorities..Advocates Saakshi Jha, Ujjwal Gandhi, Prateek Dutta, Bhavi Kapoor and Parth Govilkar appeared for the Tiwari.Advocate Amarendra Mishra appeared for the Central government. Additional Public Prosecutor Aashish Satpute appeared for the State..[Read Order]