The Bombay High Court recently upheld the conviction of former Lieutenant Colonel PK Tiwari for aggravated sexual assault under the Protection of Children from Sexual Offences (POCSO) Act. The Court reaffirmed that a victim’s instinct in identifying inappropriate touch must be trusted and respected.

The case involved an 11-year-old girl who reported that Tiwari had touched her thigh and asked if he could kiss her under the pretext of reading her palm. The General Court Martial (GCM) found him guilty, sentencing him to five years in prison and dismissing him from service.

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The bench of Justices Revati Mohite Dere and Neela Gokhale, while dismissing Tiwari’s appeal, stated:

“The girl met the petitioner for the first time. There was no reason for him to hold her hand, read her palm under the pretext of astrology, touch her thigh, and ask to kiss her. The girl immediately sensed a bad touch and reported it to her father.”

The Court emphasized that the child’s instinct of recognizing inappropriate touch must be believed.

The Incident and Conviction

On February 1, 2020, Tiwari had just joined his new post at the Army Sports Institute in Pune. The victim, an 11-year-old girl, was introduced to him by her father, a havildar in the Army. During this meeting, Tiwari allegedly held her hand, touched her thigh, and asked if he could kiss her.

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The girl immediately informed her father about the incident, leading to an inquiry. After a thorough investigation, the General Court Martial found Tiwari guilty of violating Section 10 and Section 12 of the POCSO Act and sentenced him to five years in prison. This decision was later upheld by the Armed Forces Tribunal (AFT), Mumbai Bench.

Tiwari challenged the verdict in the Bombay High Court, claiming:

• There were procedural lapses, such as the absence of a Court of Inquiry.
• The victim’s statements had inconsistencies that were ignored.
• There was no medical examination to substantiate the claims.
• His actions were misinterpreted as sexual in nature, whereas they were fatherly or grandfatherly gestures.

However, the Court rejected these arguments, stating that a Court of Inquiry is not mandatory in every case. Additionally, the victim’s testimony was found to be credible and consistent.

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Tiwari’s counsel argued that since there was no medical examination, the case lacked evidence. The Court dismissed this argument, stating:

“Failure to conduct a medical examination, especially when no physical injury is involved, does not weaken the findings of the General Court Martial.”

This decision highlights that a victim’s statement, when consistent and credible, is sufficient for conviction in sexual offense cases.

The High Court reiterated the Supreme Court’s stance from the State of Punjab vs. Gurmit Singh case, which emphasized:

“The testimony of a victim of sexual assault is of utmost importance. If her statement is trustworthy, it does not require further corroboration.”

The Court also noted that minor inconsistencies in the victim’s statements do not invalidate the case.

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After reviewing all the facts, the Bombay High Court dismissed Tiwari’s plea, stating that there was no violation of his fundamental rights or procedural irregularities. The Court ordered him to surrender to the Army authorities immediately for his transfer to the designated prison.

"The victim’s instinct must be respected. Her testimony was clear, consistent, and truthful. The conviction stands."

For the Petitioner (Tiwari): Advocates Saakshi Jha, Ujjwal Gandhi, Prateek Dutta, Bhavi Kapoor, and Parth Govilkar

For the Union of India: Advocate Amarendra Mishra

For the State: Additional Public Prosecutor Aashish Satpute

Case Title: Ex-LT Col PK Tiwari v UOI