Bombay High Court Upholds General Court Martial Conviction Under POCSO: “Victim’s Testimony Requires No Corroboration”; Orders Immediate Surrender of Former Army Officer

Court’s Decision

The Bombay High Court dismissed a writ petition challenging the conviction and sentence imposed by a General Court Martial (GCM) for offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The petitioner, a former Army officer, was convicted for aggravated sexual assault (Section 10, POCSO Act) and sexual harassment (Section 12, POCSO Act). The GCM sentenced him to five years of imprisonment and cashiered him from service.

The petitioner challenged this decision before the Armed Forces Tribunal (AFT), Mumbai, which upheld the GCM’s findings. Subsequently, he filed a writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court, arguing procedural irregularities and lack of evidence.

The High Court held that:

• The GCM proceedings complied with the Army Act and Army Rules.
• The petitioner’s actions met the threshold for sexual assault under POCSO.
• There was no violation of fundamental rights or jurisdictional error in the military trial.
• The victim’s testimony was credible and did not require corroboration.
• Failure to conduct a medical examination did not weaken the prosecution’s case.

The Court vacated its earlier stay on the sentence and directed the petitioner to surrender immediately for transfer to prison.

Facts of the Case

1. Incident and Complaint
   • The petitioner joined his posting at the Army Sports Institute in Pune on January 31, 2020.
   • The next day, he called a Havildar’s 11-year-old daughter to his room, claiming he could read palms.
   • The victim later alleged that while her father was momentarily absent, the petitioner touched her thigh inappropriately and asked if he could kiss her.
   • When she refused, he repeated the request, stating that it would be as a friend.
   • The victim immediately reported the incident to her father, who called the Commanding Officer.
2. Military Investigation and Court Martial
   • A Summary of Evidence was recorded by Army authorities.
   • The General Court Martial (GCM) was convened and found the petitioner guilty under Sections 10 and 12 of the POCSO Act.
   • The petitioner was sentenced to 5 years of imprisonment and cashiered from service.
3. Appeal Before Armed Forces Tribunal (AFT), Mumbai
   • The petitioner challenged the GCM’s findings before the Armed Forces Tribunal (AFT), Mumbai, arguing lack of evidence and procedural lapses.
   • The AFT dismissed his appeal, upholding the GCM’s decision.
4. Writ Petition Before Bombay High Court
   • The petitioner then approached the Bombay High Court under Articles 226 and 227 of the Constitution.
   • The Court initially stayed the execution of the sentence pending a full hearing.
   • After hearing arguments, the High Court dismissed the petition, upheld the GCM’s conviction, and directed the petitioner to surrender immediately.

Issues Before the Court

1. Whether the GCM proceedings complied with the Army Act and Army Rules.
2. Whether the conviction was vitiated by procedural lapses, such as the absence of a Court of Inquiry.
3. Whether the absence of a medical examination of the victim weakened the prosecution’s case.
4. Whether the High Court had jurisdiction under Article 226 to review a military court’s decision.
5. Whether the victim’s testimony alone was sufficient for conviction under POCSO.
6. Whether the petitioner’s alleged conduct constituted sexual assault under POCSO.

Petitioner’s Arguments

1. Procedural Irregularities in Complaint Processing
   • The petitioner argued that the initial complaint by the Havildar was not properly processed.
   • It lacked an acknowledgment signature from the receiving officer.
2. Motive for False Accusation
   • The petitioner claimed that the Havildar filed a false complaint out of revenge.
   • He alleged that he had denied the Havildar’s request to attend a Map Reading Course, which led to the false accusation.
3. Lack of Proof of Victim’s Age
   • The petitioner argued that no original birth certificate was produced to prove the victim was a minor.
4. Absence of Sexual Intent
   • The petitioner contended that there was no evidence of sexual intent, which is required for conviction under Sections 10 and 12 of POCSO.
   • He claimed his actions were “fatherly” or “grandfatherly”.
5. No Medical Examination of the Victim
   • The petitioner argued that the victim was not medically examined, which violated the mandatory procedure under POCSO.
6. Discrepancies in the Victim’s Statement
   • He alleged that the victim’s testimony contained inconsistencies, making it unreliable.

Respondent’s Arguments (Union of India & Army Authorities)

1. GCM Followed Due Process
   • The Army Act and Army Rules were followed during the court martial.
   • A Court of Inquiry was not mandatory before convening a GCM.
2. False Accusation Theory Was Baseless
   • The Havildar had already received permission for the Map Reading Course before the petitioner joined, eliminating any motive for a false complaint.
3. Victim’s Age Was Established
   • The victim’s birth certificate was produced, proving she was a minor.
   • The petitioner did not challenge the victim’s age before the GCM.
4. Medical Examination Was Not Essential
   • No bodily injury was alleged, so medical evidence was not necessary.
5. Victim’s Testimony Was Reliable
   • The victim immediately reported the incident to her father.
   • The GCM found her statement to be consistent and credible.
6. Petitioner’s Conduct Proved Guilt
   • The petitioner admitted to requesting a kiss, but claimed it was out of affection.
   • The prosecution argued that this admission itself proved intent.

Court’s Analysis of the Law

Judicial Review of Court Martial Decisions

• The Court cited Union of India v. Parashotam Dass (2023), which held that High Courts can exercise judicial review over GCM decisions under Article 226.
• Judicial review is allowed where:
  • Fundamental rights are violated.
  • Jurisdictional errors occur.

Reliability of Victim’s Testimony

• The Court referred to State of Punjab v. Gurmit Singh (1996), which held that the testimony of a sexual assault victim requires no corroboration if credible.
• The victim’s immediate disclosure and consistent statements satisfied this legal standard.

Intent Under POCSO Act

• Sexual intent can be inferred from conduct, even if the accused claims innocence.
• The Court found that the petitioner’s admission of requesting a kiss satisfied the intent requirement.

Court’s Final Ruling

• The GCM’s conviction and sentence were upheld.
• The High Court found no procedural irregularities or denial of fundamental rights.
• The Court rejected the petitioner’s request for a stay on the judgment.
• The petitioner was ordered to surrender immediately to Army authorities.

Implications of the Judgment

1. Reaffirms High Court’s Power Over Military Trials
   • Court Martial verdicts are subject to judicial review if fundamental rights are violated.
2. Strengthens POCSO Law
   • Victim testimony alone can sustain a conviction if found credible.
3. Clarifies the Importance of Intent in POCSO Cases
   • Even an alleged “fatherly” touch can amount to sexual assault under the law.

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