Bombay High Court: The petitioner challenged the judgment and order dated 17-01-2024 passed by the Armed Forces Tribunal, Mumbai (‘AFT’) and the judgment and order dated 19-03-2021 passed by the General Court Martial (‘GCM’) convened by the respondents, to try the petitioner for offences punishable under Section 69 of the Army Act, 1950 (‘the Army Act’). The Division Bench of Revati Mohite Dere and Neela Gokhale, JJ., stated that the victim immediately sensed a bad touch when the petitioner-accused touched her thigh, and thus her instinct of identifying a bad touch of the petitioner must be believed. The Court held that it did not find any jurisdictional error with the findings of the GCM and AFT and there was not any violation of the fundamental rights of the petitioner.
Background
The petitioner was tried by the Court Martial for two charges under Section 69 of the Army Act, firstly, for allegedly committing aggravating sexual offence under Section 10 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) and secondly, for allegedly committing sexual harassment under Section 12 of POCSO Act.
The alleged incident took place on 01-02-2020 and the convening order was issued on 21-01-2021. The charges were framed and post-trial, the petitioner was sentenced to the minimum punishment of 5 years imprisonment under relevant sections of POCSO and he was also sentenced to be cashiered from service. The sentence was promulgated by the competent authority and thus, the petitioner challenged the finding and sentence of GCM before AFT by filing an original application, which later got dismissed. Thereafter, the petitioner challenged the said judgment and order in the present petition under Article 226/227 of the Constitution.
Analysis, Law, and Decision
The Court relied on Union of India v. Parashotam Dass, 2023 SCC OnLine SC 314, where the Supreme Court affirmed that the exercise of power of judicial review by the High Court under Article 226 was not diluted even for matters dealing with courts-martial. The High Courts, under Article 226, had the power of judicial review even in respect of courts martial and the High Court could grant appropriate relief “if the assailed proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record”. Thus, the Court opined that it could deal with the challenge in the present petition.
The Court further opined that its scope of intervention was limited and would only examine if there was a denial of a fundamental right under Part III of the Constitution of the petitioner or there was a jurisdictional error or error apparent on the face of the record to warrant interference in the findings of the GCM which evidence had already been substantially re-appreciated by AFT.
The Court noted that the petitioner alleged to have inappropriately touched the thigh of the 11-year-old daughter-victim of Havildar-the complainant and asked her if he could kiss her. When she declined, he again asked her if he could kiss her as a friend. The Court stated that in relation to establishing the victim’s age, there was ample proof in the form of her birth certificate, which was sufficient to establish the victim’s correct age. The Court agreed with AFT’s view that there was no physical injury to the victim.
The Court opined that the aggravated sexual assault in the present matter related to an inappropriate touch on the thigh of the victim accompanied with a request to kiss her. 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, did not lend infirmity to the finding of the GCM, in the facts of the present matter.
The Court noted that the victim clearly narrated the incident before the GCM and opined that in cases of sexual assault, supposed considerations which had no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix herself, should not, unless the discrepancies were such which were of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The Court opined that the victim’s testimony in such cases was vital and unless there were compelling reasons which necessitated looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and was found to be reliable.
The Court noted that the GCM opined that there was sufficient consistency in the victim’s narration of the details of the incident and her demonstration in Court regarding the specific way the accused behaved with her once her father left the room was depicted with immense clarity. The Court opined that the statement of the victim inspired confidence that she had narrated the incident correctly and her instinct of identifying a bad touch of the petitioner must be believed.
The Court noted that AFT had recorded that the petitioner had not denied the incident but had justified his behaviour by saying that the touch was not intentional but was in the nature of a touch of a parent or grandfather. The Court stated that the victim immediately sensed a bad touch and reported to her father instantly.
Thus, the Court held that it did not find any jurisdictional error with the findings of the GCM, and the judgment and order passed by AFT and there was not any violation of the fundamental rights of the petitioner. The Court also opined that there was no infirmity in the decision-making process in arriving at the impugned finding by both the GCM and AFT.
The Court dismissed the petition, vacated the interim order dated 31-01-2024 and directed the petitioner to surrender to the Army authorities with immediate effect to facilitate his transfer to the concerned Prison Authorities, as per rules.
[PK Tiwari v. Union of India, 2025 SCC OnLine Bom 325, decided on 17-02-2025]
*Judgment authored by: Justice Neela Gokhale
Advocates who appeared in this case:
For the Petitioner: Saakshi Jha a/w Ujjwal Gandhi, Prateek Dutta, Bhavi Kapoor, and Parth Govilkar, for the Petitioner;
For the Respondents: Amarendra Mishra, for Respondent 1; Aashish Satpute, APP for Respondent-State.
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