Childline India Foundation & Anr vs Alan John Waters & Ors

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.

8 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.

9 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."

19 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