Foundation & ANR. Vs Allan John Waters & Ors
J U D G M E N T
P. Sathasivam, J.
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 1all 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').
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.
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 3clarifications 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 4authorities 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
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 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 6preferred
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
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
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. 7No. 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.
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?
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.
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.
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.
have since been regularly visiting the 10Anchorage 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.
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 11respect 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".
is no doubt that when Cuffe Parade Police Station refused to investigate the matter,
it was Ms. Maharukh 12Adenwala 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) 13and 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.
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 14Section 164 of the
Code, wherein he had spoken about the sexual abuse.
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 SentenceA-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. 15
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.
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 16situated
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
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. 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.
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
"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 18that "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
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 20 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 21 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 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." 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
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 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 24error 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
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-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 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 to. 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.
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 26homes and as in the case of the evidence of PW-2, the evidence
of PW-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.
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
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.
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 28life 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
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 29about 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 30tradition-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.
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." 31We
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.
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."
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 32the victims - PWs 1 and 4. 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."
"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."
"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"
"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:
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"
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. 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
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 34childhood 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
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 35any factory or mine or engaged in any hazardous
employment. This Court has issued elaborate guidelines on this issue.
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.
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 personality of the child and directs the State to provide free
and compulsory education for the children upto the age of 14 years.
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
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.
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 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.
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 38remaining
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. (DR. B.S. CHAUHAN)