REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 1208-1210 OF 2008
Childline India Foundation & Anr. .... Appellant(s)
Versus
Allan John Waters & Ors. .... Respondent(s)
WITH
CRIMINAL APPEAL NOs. 1205-1207 OF 2008
J U D G M E N T
P. Sathasivam, J.
1) These appeals are filed against the common final judgment
and order dated 23.07.2008 passed by the Division Bench of
the High Court of Bombay in Criminal Appeal Nos. 476, 603
and 681 of 2006 whereby the High Court allowed the appeals
and reversed the judgment dated 18.03.2006 passed by the
Additional Sessions Judge for Greater Bombay in Sessions
Case Nos. 87 of 2002, 886 of 2004 and 795 of 2005 convicting
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all the accused under various Sections of the Indian Penal
Code (in short `the IPC'), the Code of Criminal Procedure, 1973
(in short `the Code') and the Juvenile Justice Act, 2000 (in
short `the JJ Act').
2) Brief Facts:
(a) In the year 1986, a petition was brought before the High
Court of Bombay complaining about the plight of children at
various children homes in Maharashtra. In the same petition,
the High Court appointed a Committee, namely, the
Maharashtra State Monitoring Committee on Juvenile Justice
(in short "the Committee") headed by Justice Hosbet Suresh, a
retired Judge of the High Court of Bombay. This Committee
received some complaints from the Child Rights Organizations
like Saathi Online, Childline and CRY about the
mismanagement of Anchorage Shelters, and on that basis, the
Committee sought permission of the High Court to visit
various Anchorage Shelters. After visiting various Anchorage
Shelters including the one at Colaba and Cuffe Parade, a
report was submitted before the High Court.
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(b) On the basis of the said report, specifically expressing
unconfirmed report of sexual exploitation of children, on
17.10.2001, one Ms. Meher Pestonji telephoned Advocate Ms.
Maharukh Adenwala and informed her that some children
residing in Shelter Homes were sexually exploited by those
who were running these Homes. On receiving this
information, Ms. Maharukh Adenwala met those boys, who
were allegedly sexually assaulted, at the residence of Ms.
Meher Pestonji to ascertain the truth. After confirming the
said fact, Ms. Maharukh Adenwala thought it proper to inform
it to the Members of the Committee. After consulting the
Committee, Ms. Maharukh Adenwala moved a suo motu
Criminal Writ Petition No 585 of 1985 before the High Court.
On 19.10.2001, the High Court passed an order for the
protection of the children at Anchorage Shelter Homes. On
21.10.2001, one Shridhar Naik telephonically contacted Ms
Maharukh Adenwala and informed her that the order of the
High Court giving protection to the children was being
misinterpreted by the police and, therefore, certain
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clarifications were sought from the High Court and by order
dated 22.10.2001, the High Court clarified the same.
(c) With regard to the sexual and physical abuse at the
Anchorage Shelters, on 24.10.2001, Childline India
Foundation filed a complaint with the Cuffe Parade Police
Station and while lodging the said complaint, Ms. Maharukh
Adenwala was also present there. In spite of the fact that a
complaint had been lodged, the police did not take cognizance
of the offence under the pretext that the matter was sub judice
and was pending before the High Court. Since the matter was
not being looked into by the police, Ms. Maharukh Adenwala
recorded statements of some of the victims and informed the
said fact to the Members of the Committee. On 28.10.2001,
Dr. (Mrs.) Kalindi Muzumdar and Dr. (Mrs.) Asha Bajpai met
those victims at the office of India Centre for Human Rights
and Law and endorsed that the statements previously
recorded by Ms. Maharukh Adenwala were correctly recorded.
After ascertaining the correctness of the statements by the
Members of the Committee, the said facts were placed before
the High Court and it was also submitted that the police
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authorities at Cuffe Parade Police Station were not seriously
pursuing the complaint. The High Court, by order dated
07.11.2001, directed the police authorities of the State of
Maharashtra to take action on the basis of the complaint
lodged by the Childline India Foundation.
(d) Based on this specific direction, Sr. Inspector of Police,
Colaba Police Station was directed to investigate in detail the
complaint lodged by Childline and to take such action as is
required to be taken in law. On 12.11.2001, Colaba Police
Station recorded the statement of one Sonu Raju Thakur and
the statement of one Sunil Kadam (PW-1) was recorded by
Murud police station on 13.11.2001. On 15.11.2001, police
ultimately registered an offence at Colaba police station by
treating the statement of Sonu Raju Thakur as formal First
Information Report (in short `the FIR') being C.R. No.
312/2001 and started investigation.
(e) Though the offence was mainly registered against three
accused barring William D'Souza (A1), the remaining two
accused, namely, Allan John Waters (A2) and Duncan
Alexander Grant (A3) had already left the country and
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therefore, on 05.04.2002, an Interpol Red Corner Notice was
issued against A2 and A3. In pursuance of Red Corner Notice,
A2 was arrested in USA and sometimes thereafter A3 also
surrendered before the Court in India. The Metropolitan
Magistrate committed the case to the Court of Session and
after committal, it was initially assigned to the First Track
Court at Sewree. All the three accused pleaded not guilty and,
therefore, claimed to be tried.
(f) The Sessions Judge, by judgment dated 18.03.2006,
convicted William D'Souza (A1) for the offence punishable
under Section 377 read with Section 109 IPC, Sections 120B
and 323 IPC and under Section 23 of the JJ Act. Allan John
Waters (A2) was convicted under Section 377 IPC, Section
120B read with Section 377 IPC and Section 373 IPC. Duncan
Aleander Grant (A3) was convicted under Section 377 IPC,
Section 373 read with 109 IPC, Section 372 IPC and Section
23 of JJ Act.
(g) Aggrieved by the said order, A1 filed Criminal Appeal No.
681 of 2006, A2 and A3 filed Criminal Appeal No. 476 of 2006
before the High Court of Bombay. State Government also
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preferred Criminal Appeal No. 603 of 2006 before the High
Court for enhancement of the sentence of the accused
persons. The High Court, vide its common judgment dated
23.07.2008, set aside the order of conviction passed by the
Sessions Judge and allowed the criminal appeals filed by A1,
A2 and A3 and acquitted all of them from the charges leveled
against them and dismissed the appeal filed by the State
Government.
(h) Aggrieved by the order of the High Court, Childline India
Foundation and Ms. Maharukh Adenwala filed Criminal
Appeal Nos. 1208-1210 of 2008 and State of Maharashtra has
filed Criminal Appeal No. 1205-1207 of 2008 before this Court
by way of special leave petitions.
3) Heard Mr. K.V. Vishwanathan, learned senior counsel for
the appellants in Criminal Appeal Nos. 1208-1210 of 2008,
Mr. Sanjay V. Kharde, learned counsel for the appellants in
Criminal Appeal Nos. 1205-1207 of 2008, Mr. Shekhar
Naphade, learned senior counsel for Respondent Nos. 1 & 2 in
Crl. A. Nos. 1208 and 1210 of 2008 and Respondent Nos. 2 &
3 in Crl. A. No. 1206 of 2008 and Respondent No. 3 in Crl. A.
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No. 1210 of 2008 and Mr. Rameshwar Prasad Goyal, learned
counsel for Respondent No. 1 in Crl.A. Nos. 1209, 1210, 1206
and sole Respondent in Crl. A.No. 1207 of 2008.
4) The only point for consideration in these appeals is
whether the High Court is justified in acquitting all the
accused by interfering with the order of conviction and
sentence passed by the trial Court?
5) Childline India Foundation is a project of the Ministry of
Social Justice & Empowerment, Government of India and runs
a 24 hrs. emergency phone helpline for children in distress. It
was at their behest that investigation into the sexual and
physical abuse of children at the Anchorage Shelters was
initiated and F.I.R. No. 312 of 2001 was registered. When
initially the police refused to record the statements of the
victims, it was the Childline along with Ms. Maharukh
Adenwala and others talked to the victims and recorded their
statements and also produced them before the Committee.
The Childline India Foundation intervened in support of the
prosecution before the trial Court.
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6) Ms. Maharukh Adenwala has been a practicing advocate
since 1985 litigating matters concerning social issues,
including child rights. She has been appointed as Amicus
Curiae in several child related cases by the Bombay High
Court including suo motu Criminal Writ Petition No. 585 of
1985 about the plight of street children in Mumbai. She was
involved in the present case since its inception and she
brought the activities going-on at Anchorage Shelters to the
notice of the Bombay High Court in the above said suo motu
writ petition and obtained several orders and directions for the
protection of the boys. She was examined before the trial
Court as PW-2, especially to depose about the background of
the case, how the complaint came to be filed and the various
orders passed by the Bombay High Court in the abovesaid suo
motu writ petition. Childline India Foundation and Ms.
Maharukh Adenwala have been closely associated with the
present case right from its inception. Childline India
Foundation as a de facto complainant and intervenor and Ms.
Maharukh Adenwala as PW-2.
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7) In October, 2001, when it was brought to the notice of
Ms. Maharukh Adenwala that some children living at the
Anchorage Shelters had complained about sexual abuse, she
immediately brought this to the notice of the High Court of
Bombay and obtained necessary orders. She along with the
representatives of Childline lodged a complaint at Cuffe Parade
Police Station about the unlawful activities at Anchorage
Shelters. Since the police officers of Cuffe Parade Police
Station refused to investigate the said complaint under the
pretext that the matter is sub judice and pending before the
High Court, she recorded the statements of some of the
victims and placed it before the High Court seeking direction
for the police to investigate into the complaint filed by the
Childline. By order dated 07.11.2001 passed by the High
Court in suo motu Criminal W.P. No. 585 of 1985, the
representatives of the Childline were permitted to visit the
Anchorage Shelters to interview the boys and to submit a
report before the High Court and seek police assistance, if any.
Their representatives have since been regularly visiting the
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Anchorage Shelters and providing necessary assistance to the
boys residing there.
8) The other facts relating to these criminal appeals are that
Duncan Alexander Grant (A3), a British national, in and
around 1995 opened three Shelters called the Anchorage
Shelters for the welfare of street children in Mumbai and its
vicinity, namely, at Colaba, Cuffe Parade and Murud. Allan
John Waters (A2), who was also a British national and a friend
of Dunkan Alexander Grant (A3) used to visit the said Shelters
regularly. Both of them were formerly working with the British
Navy. Another accused William D'Souza (A-1) was the
Manager of the Anchorage Shelters.
9) In January, 2001, Dr. (Mrs.) Kalindi Muzumdar, a
Member of the Committee received complaints from
organizations working in the field of child rights such as
Childline, Saathi, CRY about the sexual exploitation of
children residing in Anchorage Shelters and other children's
institutions in Mumbai. She has been examined as PW-3. By
letter dated 22.01.2001, she sought permission from the High
Court to visit Anchorage Shelters and other institutions in
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respect of which she had received complaints and permission
was subsequently granted by the Division Bench of the High
Court by its order dated 28.02.2001 in Suo Moto Criminal W.P.
No. 585 of 1985. Accordingly, on 18.08.2001, the Members of
the Committee including Justice H. Suresh who headed the
said Committee, visited the Anchorage Shelters and submitted
their reports to the High Court. These reports show that the
atmosphere in the Shelters was unconducive for growing
children, there was no education and health facilities, the
management of the Shelters was unprofessional, the children
were scared to go to the Murud Shelter, there were allegations
of repeated beatings of the boys, the Shelters were not licensed
and did not maintain children's records, nor proper accounts
were maintained etc. Moreover, the said Report stated that,
"There are unconfirmed reports of sexual abuse in the Shelters
especially at Murud", and that "the Shelters, especially, the
Murud Shelter should be investigated thoroughly for
possibility of sexual abuse".
10) There is no doubt that when Cuffe Parade Police Station
refused to investigate the matter, it was Ms. Maharukh
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Adenwala and Ms. Meher Pestonjee who recorded the
statements and supplementary statements of the minor boys,
namely, Rasul Mohd. Sheikh, Sonu Thakur and Gopal
Shrivastav, on 25th, 26th and 27th October, 2001. In their
respective statements, the boys have spoken of the sexual
abuse at the hands of (A2) and (A3) and physical abuse at the
hands of (A1). The said statements also show that the boys
had told (A1) about the sexual abuse, but he did not take any
appropriate action to protect them. The complaint of the
Childline is the basis of the FIR in this case. The written
complaint dated 24.10.2001 submitted by the Childline to the
Cuffe Parade Police Station and the boys' statements were
brought to the notice of the High Court. On 07.11.2001, the
High Court directed the police authorities of the State of
Maharashtra to take immediate action on the complaint of
Childline. Thereafter, the matter was investigated by Colaba
Police Station and an offence was registered on 15.11.2001
being FIR No. C.R.No. 312 of 2001. In the course of the
investigation, the police recorded the statements of five boys,
who had suffered sexual abuse at the hands of (A2) and (A3)
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and physical abuse at the hands of (A1). All the three accused
were arrested at different times. The Colaba Police Station
filed three separate charge sheets but the matters, viz.,
Sessions Case Nos. 87 of 2002, 886 of 2004 and 795 of 2005
were heard together by the trial Court and the accused
persons were charged under Sections 377, 373, 372 and 323
IPC read with Sections 120-B and 109 IPC and Section 120-B
IPC and Section 23 of the JJ Act.
11) The prosecution examined six witnesses, namely, two
victim boys - Sunil Suresh Kadam as PW-1 & Kranti Abraham
Londhe as PW-4, Ms. Maharukh Adenwala as PW-2, Ms.
Kalindi Muzumdar as PW-3 and two Investigation Officers as
PWs 5 & 6. The defence examined two witnesses, namely,
Kiran Waman Salve as DW-1 and Rasul Mohd. Sheikh as DW-
2, both being boys who resided in the Anchorage Shelters at
Mumbai. DW-2 had been cited as a prosecution witness.
Thereafter the prosecution examined Veersingh P. Taware -
the Additional Chief Metropolitan Magistrate as PW-7, who
had recorded the statement of Rasul Mohd. Sheikh under
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Section 164 of the Code, wherein he had spoken about the
sexual abuse.
12) The two victim boys, namely, Sunil Suresh Kadam (PW-1)
and Kranti Abraham Londhe (PW-4) deposed in detail about
the activities going-on at the Anchorage Shelters and their
depositions reflect that there was a criminal conspiracy
amongst the accused to obtain possession of minor vulnerable
boys residing on the streets and subject them to sexual abuse.
The trial Court, by order dated 18.03.2006, accepted the
evidence of PWs 1 & 4 who have been victimised in the Shelter
Homes and social activists PWs 2 & 3 and after considering
various aspects convicted all the three accused and sentenced
them as mentioned hereunder:
Accused U/s Sentence
A-1 William D'Souza 377 r/w 149 IPC 3 Yrs RI+Rs. 5000/- ID 1 yr RI
120B IPC No separate sentence.
323 IPC 3m RI+Rs. 5000/- ID 15 days RI
23 JJ Act 1m RI+Rs. 500/- ID 1 week RI.
A-2 Allan John Waters 377 IPC 6 yrs. RI no fine
377 r/w 120B IPC No separate sentence
373 IPC 3 yrs. RI. No fine
Compensation of 20000 UK pounds
ID 1 yr RI.
A-3 Duncan Alexander Grant 377 IPC 6 yrs. RI. No fine.
377 r/w 120B IPC 6 yrs. RI. No fine.
373 r/w 109 IPC 3 yrs. RI. No fine.
372 IPC 3 yrs. RI. No fine.
323 IPC 3 months RI. No fine.
Compensation of 20000 UK pounds
ID 1 yr RI.
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13) The Division Bench of the High Court, by the impugned
order, doubted the veracity of the statements of PWs 1 & 4.
According to the High Court, their statements are suspicious,
unreliable, not proved beyond shadow of doubt and not credit
worthy. The High Court has also eschewed the evidence of
PWs 2 & 3 as not admissible and ultimately doubting the
prosecution case, set aside the order of conviction and
sentence passed by the trial Court and acquitted all the three
accused from the charges leveled against them.
14) We have already highlighted the plight of street children
at the Shelter Homes in Mumbai. At the foremost, let us
consider the testimony of PWs 1 and 4. On the date of
deposing before the Court, PW-1 was about 20 years old.
However, from the age of 12 to 13 he was wandering in the
streets and earning by doing any sort of work for maintaining
himself. He had stated that there was no shelter for him at
that time and he was sleeping on footpath. His father was
earning a little amount by shoe shining and he was addicted
to liquor and he used to quarrel with the family everyday. He
used to stay on the pavements near Dhanraj Mahal which is
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situated near Gateway of India. While deposing before the
Court and in the dock, he identified A2 and A3. According to
him, he came to know that A3 has opened one Shelter Home
and he was asked to stay in the Shelter Home along with other
boys. The Shelter Home is situated at Colaba. He admitted
that he knows A2 because he was a friend of A-3 and he met
him at the Shelter Home. He also informed that about 40-50
boys were staying in the said Shelter Home and the boys
staying there were between the age of 8 to 20 years. There is
one more Shelter Home situated at Murud at Alibag District
and one at Cuffee Parade. He stayed in the Shelter Home up
to 2001. He highlighted how Duncan Alexander Grant (A3)
and Allen Water (A2) had sex with him and also explained how
he was beaten by William (A1). PW-1 has stated before the
trial Court as under:
"Duncan had sex with me on many occasions. He used
to tell me to hold his penis and also he used to hold my
penis. This must have taken place at least on 20 to 25
occasions. This happened at Murud (Janjira) shelter
home as well as Colaba shelter home. Allan Waters also
had sat with me on many occasions. He also used to
tell me to hold his penis and he also used to hold my
penis. Allan waters also had sex with me at Colaba
shelter home and also at Murud (Janjira) shelter home.
Allan must have had sex with me on 10 to 15 occasions.
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Duncan Grant and Allan Waters also had a similar
relationship with other boys. Accused Duncan and
Allan Waters used to ask for fellatio with the other boys
and not the other way round. I have seen this
happened with my own eyes. I have seen this with
respect to other boys named Babu, Kiran, Sai and
Dhanraj. I know Sonu Thakur, Rasul Sheikh, Gopal
Srivastava, Kranti Londhe. With the abovementioned
boys also the same thing had happened and I had
witnessed it. The abovementioned boys used to stay in
the shelter home during the relevant period. When this
happened for the first time with me I was aged about
14/15 years. Prior to that I had no knowledge about
sex. When I had it for the first time I did not like it.
Even though I did not like it, I stayed in the shelter
home because it was my compulsion. I made a
complaint to William about the conduct of Duncan
Grant and Allan Water"
"Accused No.1 William used to beat us on flimsy
grounds. He used to do canning. However, he never
had sex with either me or with other boys. When I
made a complaint to William (about Allan and Duncan),
he told me not to divulge the said fact to anybody failing
which he would beat me."
"On the day I was interrogated I had an injury on my
right hand as William had bitten me. I had taken
medical treatment with respect to the said injury."
In the cross-examination, PW-1 asserted that during his stay
in the shelter home, nearly for a period of five years, these
instances were happening regularly. He also stated that
"Accused Duncan Grant and Allan Waters used to have sex
with me independently and they did not do it together with
me". About William, in cross-examination PW-1 has stated
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that "it is a fact that whenever we used to commit mistake,
William used to beat us". When a question was put to him
whether he had said so before police, he answered that "I did
state that fact to the police at the time of recording my
statement that Allan Waters also had sex with me at Colaba
shelter home and also at Murud (Janjira) shelter home. Allen
must have had sex with me on 10-15 occasions. I cannot
assign any reason as to why the said statement in exact
sequence is missing in the police report. I did state the said
fact to the police at the time of recording my statement that,
"Accused Duncan and Allan Waters used to ask for fellatio
with the other boys. Duncan Grant and Allan Waters used to
do fellatio with the other boys and not the other way round. I
have seen this happened with my own eyes. I have seen this
with respect to other boys named Babu, Kiran, Sai and
Dhanraj. I know Sonu Thakur, Rasul Sheikh, Gopal
Srivastava, Krani Londhe. With the abovementioned boys also
the same thing had happened and I had witnessed it."
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15) Before analyzing the evidence of PW-1 further, it is also
useful to refer the statement of PW-4 before the Court. He
deposed that he lost his father when he was a child and his
entire family was residing on a footpath near Gateway of India.
Though his house was at Jogeswari, according to him, he
along with his mother used to stay on the pavements near
Gateway of India. His elder brother Madhu Londhe was a
Rickshaw puller. He has not studied in any school. He used
to work as guide and earn his livelihood. According to him, for
many days, he used to stay on the pavements near Gateway of
India. PW-4 has identified each accused correctly when they
were in the dock. About William (A1), he deposed that:
"I know accused William since my childhood. I know William
because he used to come at Gateway of India to work.
William used to work as a pimp. William is also known as
Natwar."
About Duncan (A3), he stated that:
"I know accused Duncan since I used to stay near Gateway
of India along with my mother. I know accused Duncan
because he used to come near Gateway of India and used to
collect the boys there and used to talk to the boys. Duncan
used to come near Gateway of India sometimes on bicycle
and sometimes on foot. I had a conversation with Duncan at
that point of time and he used to offer me to stay at
Anchorage. The said Anchorage of Duncan is situated at
Colaba. I do not know as to why he was offering me to come
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and stay at Anchorage. When I was offered to stay at
Anchorage after I lost my mother, I am unable to state
approximately when I went to stay at Anchorage. Today, I
stay near Gateway of India on the pavements. I am unable
to state as to how long I stayed at Anchorage. When I
started residing at Anchorage, I met William (accused No. 1)
as he was working as a Manager at Anchorage. I do not
know the name of the building in which the said anchorage
is situated. I also do not know the name of the road on
which the said building is situated. The said Anchorage is
situated on the 3rd floor. 30 to 40 boys used to stay in the
Anchorage when I was staying there. All the boys were from
the age group of 10 to 12 years.
Thereafter, he went to stay at Anchorage and met Allan Water
(A2). The Anchorage is consisting of one big room with
attached bathroom and a terrace. All of them were provided
food at Anchorage Shelters. Duncan also used to distribute
pocket money on every Sunday amongst the boys staying at
Anchorage Shelters. He also explained the reason for his stay
at Anchorage was that on many days, he had no earnings and
he was starving. After staying at Anchorage, he used to work
in a garage and getting Rs. 10/- or Rs. 20/- a day. He also
informed the Court that William used to beat them by a cane
when they were staying at Anchorage for no reason.
About Duncan, PW-4 has also deposed:
"Duncan used to beat me when I used to stay at
Anchorage. Duncan used to remove all the clothes and
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by making me naked he used to beat me. Duncan used
to hold my head between his thighs and then used to
ask the monitor to beat me by a stick either 6 times at a
time or 12 times at a time. In spite of my telling them
not to beat me, they used to beat me. The same was the
treatment given to the other boys residing in the
Anchorage by Duncan."
About Allan Waters (A2), he deposed that
"Allan Waters used to have sex with the boys. Allan used to
have fellatio with me and the other boys. Allan used to take
my penis in his mouth. He might have done this act with me
on 30 to 40 occasions. When I was staying in Anchorage
Duncan also did the same thing with me. Duncan did this
act with me on many occasions. When this was done for the
first time with me I felt bad. I then told the said fact to
William with respect to the act done by Duncan and Allan.
Thereafter William beat me. I was beaten because I told
William about the acts done by Duncan and Allan."
He further stated that:
"Allan and Duncan used to have sex with me sometimes in
the bathroom and sometimes on the cot. When these
persons used to have this act with me on the cot the other
boys used to remain in the same room but asleep."
In the cross-examination, about recording of his statement by
Police, it was stated:
"When my statements were recorded for the first time the
other boys from Anchorage were also present in the police
station with whom similar instances had taken place. It is
true that the other boys also stated the same thing to the
police about the incident. It is true that those boys also
stated it in my presence about the incident. The questions
were asked to me in Hindi and I answered the questions in
Hindi to the police."
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He also asserted that similar statements were made by him
before the Police and according to him, it is not clear why the
same were not recorded fully.
16) The analysis of the evidence of PW-1 and PW-4, victims,
at the hands of these accused in the shelter homes clearly
shows that both Duncan Alexander Grant (A3) and Allan
Waters (A2) had sex with them on many occasions. They also
had similar sex with other boys who stayed in the shelter
homes. Both these accused used to have fellatio with them
and also with other boys. They also asserted that the accused
used to direct them and other boys to hold their penis and
they also used to hold penis of them. It is also seen that many
a times they directed them to take their penis in their mouth.
Though many other boys had similar experience, out of fear,
except PWs 1 and 4 nobody narrated the incident to the police
and to the Court. As a matter of fact, they did not attribute
any sexual activities to William except alleging that he used to
beat them on flimsy grounds and used to do canning. Both
PWs 1 and 4 asserted that William never had sex with them or
other boys. As rightly observed by the trial Judge, the above
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information by PWs 1 and 4 shows that they were staying in
the shelter homes at the relevant time. After analyzing the
evidence of PWs 1 and 4, we are of the view that more
confidence can be reposed on their evidence and the omissions
as pointed out by the High Court are not fatal to the
prosecution case. In case, there may be some omissions
because the Public Prosecutor has put questions to these
witnesses which the I.O. has not, we are, however, satisfied
that there is no variance between the examination-in-chief and
cross-examination of PWs 1 and 4 with regard to the material
particulars of sexual abuse. No statement of these boys
during cross-examination has been negated before the
examination-in-chief. Considering the background of PWs 1
and 4, the delay in divulging the facts of beating and also of
sexual abuse to any other person does not mean that there is
no sexual exploitation or abuse or that they were deterred or
that they were deposed falsely as per the design of some other
person. We hold that the trial Judge has correctly appreciated
the evidence of PWs 1 and 4 and arrived at a proper
conclusion, on the other hand, the High Court committed an
24
error in holding that their statements are suspicious and not
reliable and not proved beyond shadow of doubt. We are fully
satisfied that there is no such basis for arriving at the above
conclusion.
17) Coming to the evidence of Maharukh Adenwala (PW-2),
as stated in the earlier paragraphs she is a practising
advocate, however, evincing more interest on the welfare of
uncared street children. It was brought to our notice that all
alone she worked and even now working sincerely and
selflessly to protect the street children for no personal gain.
As an activist, her intention was to protect the children. The
High Court of Bombay had reposed faith in her and appointed
her as an amicus curiae in child related cases. From the initial
stage, she brought all the events that have taken place at
Anchorage Shelters to the notice of the Committee and to the
Bombay High Court. Even in cross-examination, the
statement of PW-2 has not been shattered and there is no
reason to doubt her integrity. It is true that whatever she did
cannot be the basis for convicting the accused. However, she
did not stop enquiring the children and submitting a report to
25
the Committee and to the High Court but she also participated
as a prosecution witness, namely PW-2 and highlighted the
grievance of the neglected children at shelter homes and
sexual abuse undergone by them. On going through the
activities of PW-2 prior to the launching of prosecution against
the accused, her report to the High Court and to the
Committee, her evidence before the Court and her activities
aimed for the welfare of the neglected children, particularly, in
shelter homes, we are unable to agree with the conclusion
arrived at by the High Court in rejecting her evidence in toto.
We have already noted that conviction cannot be based on her
evidence alone. However, while appreciating the evidence of
victims PWs 1 and 4, the work done by PW-2 cannot be
ignored.
18) Coming to the evidence of PW-3 Dr (Mrs.) Kalindi
Muzumdar, her academic credentials show that she retired as
Vice Principal of Nirmala Niketan and she is also a Member of
the Committee appointed by the High Court. PW-3 in
association with Dr. Asha Bajpai and PW-2, personally and
independently interacted with the children in the shelter
26
homes and as in the case of the evidence of PW-2, the evidence
of PW-3 also solely relied on for convicting the accused.
However, as rightly observed by the trial Court for a limited
purpose, namely, to corroborate the evidence of Ms. Maharukh
Adenwala, the role played by Ms. Maharukh Adenwala (PW-2)
and Mrs. Kalindi Mazmudar (PW-3) undoubtedly supported
this case for taking the cause of vulnerable street children and
they played their role in a responsible manner. Undoubtedly
PW-3, like PW-2, had no enmity with the accused nor can any
ulterior motive be attributed to them.
19) The analysis of the evidence and the role played by PWs 2
and 3 show that they supported the boys in bringing to the
notice of the relevant authorities that what was happening in
the Anchorage Shelters. As rightly observed by the trial Court,
both of them, particularly, PW-2 played her role in a
responsible manner. It is further seen that PW-3 along with
Dr. Asha Bajpai, Members of the Committee verified the
witnesses and endorsed their statements made to PW-2. It is
further seen that PW-3 forwarded statement of victims to the
Registrar of the High Court on many occasions.
27
20) As stated earlier, based on the statement of PWs 2 and 3,
undoubtedly the accused persons cannot be convicted. But as
observed earlier and taking into account their initiation, work
done, interview with the children at the shelter homes laid the
foundation for the investigation. To that extent, the trial Court
has rightly considered their statements and actions.
Unfortunately, the High Court ignored their statements as
unacceptable.
21) Learned senior counsel appearing for the accused
submitted that except the testimony of PWs 1 and 4, there is
no corroborative statement by any of the other boys who
stayed with them in the shelter homes. First of all, there is no
need to examine more victims of similar nature. It is not in
dispute that most of the children before reaching the shelter
homes were on streets, particularly, near Gateway of India to
eke out their livelihood and used the same place as shelter
during night. Since the boys in the shelter homes were
provided with stay, clothes and food and these persons were
not taken care of by their families, most of them lost their
parents and relatives, out of fear and in order to continue the
28
life in the same shelter, they did not make a complaint to
anyone. Only when the matter was taken up to the High
Court by persons like PWs 2 and 3 and on the orders of the
High Court they enquired and submitted a report which was
the basis for investigation by the Police. Regarding the
requirement of corroboration about the testimony of PWs 1
and 4, with regard to sexual abuse, it is useful to refer the
decision of this Court in State of Kerala vs. Kurissum
Moottil Antony, (2007) 1 SCC (Crl) 403. In that case, the
respondent was found guilty of offences punishable under
Section 451 and 377 IPC. The trial Court had convicted the
respondent and imposed sentence of six months and one
year's rigorous imprisonment respectively with a fine of
Rs.2,000/- in each case. The factual background shows that
on 10.11.1986 the accused trespassed into the house of the
victim girl who was nearly about 10 years of age on the date of
occurrence and committed unnatural offence on her. After
finding the victim alone in the house, the accused committed
unnatural offence by putting his penis having carnal
intercourse against order of nature. The victim PW-1 told
29
about the incident to her friend PW-2 who narrated the same
to the parents of the victim and accordingly on 13.11.1986, an
FIR was lodged. On consideration of the entire prosecution
version, the trial Court found the accused guilty and convicted
and sentenced as aforesaid. An appeal before the Sessions
Judge did not bring any relief to the accused and revision was
filed before the High Court which set aside the order of
conviction and sentence. The primary ground on which the
High Court directed acquittal was the absence of corroboration
and alleged suppression of a report purported to have been
given before the FIR in question was lodged. In support of the
appeal, the State submitted that the High Court's approach is
clearly erroneous and it was pointed out that corroboration is
not necessary for a case of this nature. The following
observations and conclusion are relevant:
"7. An accused cannot cling to a fossil formula and
insist on corroborative evidence, even if taken as a whole,
the case spoken to by the victim strikes a judicial mind as
probable. Judicial response to human rights cannot be
blunted by legal jugglery. A similar view was expressed by
this Court in Rafiq v. State of U.P. with some anguish. The
same was echoed again in Bharwada Bhoginbhai Hirjibhai
v. State of Gujarat. It was observed in the said case that in
the Indian setting refusal to act on the testimony of the
victim of sexual assault in the absence of corroboration as
a rule, is adding insult to injury. A girl or a woman in the
30
tradition-bound non-permissive society of India would be
extremely reluctant even to admit that any incident which
is likely to reflect on her chastity or dignity had ever
occurred. She would be conscious of the danger of being
ostracised by the society and when in the face of these
factors the crime is brought to light, there is inbuilt
assurance that the charge is genuine rather than
fabricated. Just as a witness who has sustained an injury,
which is not shown or believed to be self-inflicted, is the
best witness in the sense that he is least likely to exculpate
the real offender, the evidence of a victim of sex offence is
entitled to great weight, absence of corroboration
notwithstanding. Corroboration is not the sine qua non for
conviction in a rape case. The observations of Vivian Bose,
J. in Rameshwar v. State of Rajasthan were:
"The rule, which according to the cases has hardened
into one of law, is not that corroboration is essential
before there can be a conviction but that the necessity
of corroboration, as a matter of prudence, except where
the circumstances make it safe to dispense with it, must
be present to the mind of the judge, ..."
8. To insist on corroboration except in the rarest of rare
cases is to equate one who is a victim of the lust of another
with an accomplice to a crime and thereby insult
womanhood. It would be adding insult to injury to tell a
woman that her claim of rape will not be believed unless it
is corroborated in material particulars as in "the case of an
accomplice to a crime". (See State of Maharashtra v.
Chandraprakash Kewalchand Jain.) Why should the
evidence of the girl or the woman who complains of rape or
sexual molestation be viewed with the aid of spectacles
fitted with lenses tinged with doubt, disbelief or suspicion?
The plea about lack of corroboration has no substance.
9. It is unfortunate that respect for womanhood in our
country is on the decline and cases of molestation and
rape are steadily growing. Decency and morality in public
and social life can be protected only if courts deal strictly
with those who violate the social norms.
10. The above position was highlighted by this Court in
Bhupinder Sharma v. State of H.P.
11. The rule regarding non-requirement of corroboration
is equally applicable to a case of this nature, relating to
Section 377 IPC."
31
We are in agreement with the said conclusion and in a case of
this nature, the Court is not justified in asking further
corroboration apart from the testimony of PWs 1 and 4.
Accordingly, we reject the contention raised by the learned
senior counsel for the accused.
22) A serious argument was projected by learned senior
counsel for the accused stating that even if the
allegations/statements of prosecution witnesses are
acceptable, the same would not constitute an offence under
Section 377 IPC. Section 377 reads thus:
"377. Unnatural offences.- Whoever voluntarily has carnal
intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for
life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to
fine.
Explanation.- Penetration is sufficient to constitute the
carnal intercourse necessary to the offence described in this
section."
23) To attract the above offence, the following ingredients are
required: 1) Carnal intercourse and 2) against the order of
nature. Though the High Court has adverted to various
dictionary meanings and decisions to hold that the offence has
not been made out, we have extracted the exact statements of
32
the victims - PWs 1 and 4. PW-1 has stated before the trial
Court as under:
i "Duncan had sex with me on many occasions. He
used to tell me to hold his penis and also he used to
hold my penis."
ii "Allan Waters also had sex with me on many
occasions. He also used to tell me to hold his penis
and he also used to hold my penis."
iii "Duncan Grant and Allan Waters also had a similar
relationship with other boys. Accused Duncan and
Allan Waters used to ask for fellatio with the other
boys Duncan Grant and Allan Waters used to do
fellatio with the other boys and not the other way
round. I have seen this happened with my own eyes"
iv "Accused No.1 William used to beat us on flimsy
grounds. He used to do canning. However, he never
had sex with me or with other boys. When I made a
complaint to William (about Allan and Duncan), he
told me not to divulge the said fact to anybody failing
which he would beat me."
(PW4) has stated before the trial Court as under:
i. "Allan Waters used to have sex with the boys. Allan used to
have fellatio with me and the other boys. Allan used to take my
penis in his mouth"
ii. "When I was staying in Anchorage Duncan also did the same
thing with me."
iii. "When this was done for the first time with me, I felt bad. I then
told the said fact to William with respect to the act done by
Duncan and Allan. Thereafter William beat me. I was beaten
because I told William about the acts done by Duncan and
Allan."
iv. "William used to tell me to speak before the Court that Allan
and Duncan are good people."
Those statements show how these accused, particularly, A1
and A2, sexually abused the children at the shelter homes.
The way in which the children at all the three places i.e.
33
Colaba, Murud (Janjira) and Cuffe Parade were being used for
sexual exploitation, it cannot be claimed that the ingredients
of Section 377 have not been proved. The street children
having no roof on the top, no proper food and no proper
clothing used to accept the invitation to come to the shelter
homes and became the prey of the sexual lust of the
paedophilia. By reading all the entire testimony of PWs 1 and
4 coupled with the other materials even prior to the
occurrence, it cannot be claimed that the prosecution has not
established all the charges leveled against them. On the other
hand, the analysis of the entire material clearly support the
prosecution case and we agree with the conclusion arrived at
by the trial Judge.
Constitutional provisions relating to children
24) Children are the greatest gift to humanity. The sexual
abuse of children is one of the most heinous crimes. It is an
appalling violation of their trust, an ugly breach of our
commitment to protect the innocent. There are special
safeguards in the Constitution that apply specifically to
children. The Constitution has envisaged a happy and healthy
34
childhood for children which is free from abuse and
exploitation. Article 15(3) of the Constitution has provided the
State with the power to make special provisions for women
and children. Article 21A of the Constitution mandates that
every child in India shall be entitled to free and compulsory
education upto the age of 14 years. The word "life" in the
context of article 21 of the Constitution has been found to
include "education" and accordingly this Court has implied
that "right to education" is in fact a fundamental right.
25) Article 23 of the Constitution prohibits traffic in human
beings, beggars and other similar forms of forced labour and
exploitation. Although this article does not specifically speak
of children, yet it is applied to them and is more relevant in
their context because children are the most vulnerable section
of the society. It is a known fact that many children are
exploited because of their poverty. They are deprived of
education, made to do all sorts of work injurious to their
health and personality. Article 24 expressly provides that no
child below the age of 14 years shall be employed to work in
35
any factory or mine or engaged in any hazardous employment.
This Court has issued elaborate guidelines on this issue.
26) The Directive Principles of State Policy embodied in the
Constitution of India provides policy of protection of children
with a self- imposing direction towards securing the health
and strength of workers, particularly, to see that the children
of tender age is not abused, nor they are forced by economic
necessity to enter into avocations unsuited to their strength.
27) Article 45 has provided that the State shall endeavor to
provide early childhood care and education for all the children
until they complete the age of fourteen years. This Directive
Principle signifies that it is not only confined to primary
education, but extends to free education whatever it may be
upto the age of 14 years. Article 45 is supplementary to Article
24 on the ground that when the child is not to be employed
before the age of 14 years, he is to be kept occupied in some
educational institutions. It is suggested that Article 24 in turn
supplements the clause (e) and (f) of Article 39, thus ensuring
distributive justice to children in the matter of education.
Virtually, Article 45 recognizes the importance of dignity and
36
personality of the child and directs the State to provide free
and compulsory education for the children upto the age of 14
years.
28) The Juvenile Justice Act was enacted to provide for the
care, protection, treatment, development and rehabilitation of
neglected or delinquent juveniles and for the adjudication of
such matters relating to disposition of delinquent juveniles.
This is being ensured by establishing observation homes,
juvenile houses, juvenile homes or neglected juveniles and
special homes for delinquent or neglected juveniles.
29) Even in the case of Vishal Jeet vs. Union of India,
(1990) 3 SCC 318 this Court issued several directions to the
State and Central Government for eradicating the child
prostitution and for providing adequate and rehabilitative
homes well manned by well qualified trained senior workers,
psychiatrists and doctors.
30) The above analysis shows our Constitution provides
several measures to protect our children. It obligates both
Central, State & Union territories to protect them from the
evils, provide free and good education and make them good
37
citizens of this country. Several legislations and directions of
this Court are there to safeguard their intent. But these are to
be properly implemented and monitored. We hope and trust
that all the authorities concerned through various responsible
NGOs implement the same for better future of these children.
31) Under these circumstances, the impugned judgment of
the High Court acquitting all the accused in respect of charges
leveled against them is set aside and we restore the conviction
and sentence passed by the trial Judge. It is brought to our
notice that A1 has undergone imprisonment for 3 years and 1
month and A2 was in custody for about 5 years and A3 was in
custody for about 3 years and 2 months. Inasmuch as the
trial Court has imposed maximum sentence of 3 years for
William D'Souza (A1) and he had already undergone 3 years
and 1 month while confirming his conviction imposed by the
trial Court, we clarify that there is no need for him to undergo
further imprisonment. On the other hand, inasmuch as Allan
John Waters (A2) and Duncan Alexander Grant (A3) were
awarded 6 years imprisonment under Section 377 IPC while
confirming their conviction, we direct them to serve the
38
remaining period of sentence. The trial Judge is directed to
take appropriate steps to serve the remaining sentence and for
payment of compensation amount, if not already paid. For the
disbursement and other modalities, the directions of the trial
Court shall be implemented. The appeals are allowed on the
above terms.
.................................................J.
(P. SATHASIVAM)
...............................................J.
(DR. B.S. CHAUHAN)
NEW DELHI;
MARCH 18, 2011.
39
