REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1208-1210 OF 2008

Childline India Foundation & Anr.      .... Appellant(s)

Versus

Allan John Waters & Ors.              .... Respondent(s)

WITH

CRIMINAL APPEAL NOs. 1205-1207 OF 2008

J U D G M E N T  

P. Sathasivam, J.

1)  These appeals are filed against the common final judgment  

and order dated 23.07.2008 passed by the Division Bench of  

the High Court of Bombay in Criminal Appeal Nos. 476, 603  

and 681 of 2006 whereby the High Court allowed the appeals  

and reversed the judgment dated 18.03.2006 passed by the  

Additional  Sessions  Judge  for  Greater  Bombay  in  Sessions  

Case Nos. 87 of 2002, 886 of 2004 and 795 of 2005 convicting  

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all  the  accused under  various  Sections  of  the  Indian Penal  

Code (in short ‘the IPC’), the Code of Criminal Procedure, 1973  

(in short  ‘the Code’)  and the  Juvenile  Justice  Act,  2000 (in  

short ‘the JJ Act’).  

2) Brief Facts:

(a) In the year 1986, a petition was brought before the High  

Court of Bombay complaining about the plight of children at  

various children homes in Maharashtra.  In the same petition,  

the  High  Court  appointed  a  Committee,  namely,  the  

Maharashtra State Monitoring Committee on Juvenile Justice  

(in short “the Committee”) headed by Justice Hosbet Suresh, a  

retired Judge of the High Court of Bombay.   This Committee  

received some complaints from the Child Rights Organizations  

like  Saathi  Online,  Childline  and  CRY  about  the  

mismanagement of Anchorage Shelters, and on that basis, the  

Committee  sought  permission  of  the  High  Court  to  visit  

various Anchorage Shelters.  After visiting various Anchorage  

Shelters  including  the  one  at  Colaba  and  Cuffe  Parade,  a  

report was submitted before the High Court.   

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(b)   On the  basis  of  the  said  report,  specifically  expressing  

unconfirmed  report  of  sexual  exploitation  of  children,  on  

17.10.2001, one Ms. Meher Pestonji telephoned Advocate Ms.  

Maharukh  Adenwala  and  informed  her  that  some  children  

residing  in  Shelter  Homes  were  sexually  exploited  by  those  

who  were  running  these  Homes.   On  receiving  this  

information,  Ms.  Maharukh Adenwala  met  those  boys,  who  

were  allegedly  sexually  assaulted,  at  the  residence  of  Ms.  

Meher Pestonji  to ascertain the truth.   After  confirming the  

said fact, Ms. Maharukh Adenwala thought it proper to inform  

it  to  the  Members  of  the  Committee.   After  consulting  the  

Committee,  Ms.  Maharukh  Adenwala  moved  a  suo  motu  

Criminal Writ Petition No 585 of 1985 before the High Court.  

On  19.10.2001,  the  High  Court  passed  an  order  for  the  

protection  of  the  children  at  Anchorage  Shelter  Homes.  On  

21.10.2001,  one  Shridhar  Naik  telephonically  contacted  Ms  

Maharukh Adenwala and informed her that the order of the  

High  Court  giving  protection  to  the  children  was  being  

misinterpreted  by  the  police  and,  therefore,  certain  

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clarifications were sought from the High Court and by order  

dated 22.10.2001, the High Court clarified the same.

(c)   With  regard  to  the  sexual  and  physical  abuse  at  the  

Anchorage  Shelters,  on  24.10.2001,  Childline  India  

Foundation  filed  a  complaint  with  the  Cuffe  Parade  Police  

Station and while lodging the said complaint, Ms. Maharukh  

Adenwala was also present there.  In spite of the fact that a  

complaint had been lodged, the police did not take cognizance  

of the offence under the pretext that the matter was sub judice  

and was pending before the High Court.  Since the matter was  

not being looked into by the police, Ms. Maharukh Adenwala  

recorded statements of some of the victims and informed the  

said fact to the Members of the Committee.  On 28.10.2001,  

Dr. (Mrs.) Kalindi Muzumdar and Dr. (Mrs.) Asha Bajpai met  

those victims at the office of India Centre for Human Rights  

and  Law  and  endorsed  that  the  statements  previously  

recorded by Ms. Maharukh Adenwala were correctly recorded.  

After  ascertaining  the  correctness  of  the  statements  by  the  

Members of the Committee, the said facts were placed before  

the  High  Court  and  it  was  also  submitted  that  the  police  

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authorities at Cuffe Parade Police Station were not seriously  

pursuing  the  complaint.   The  High  Court,  by  order  dated  

07.11.2001,  directed  the  police  authorities  of  the  State  of  

Maharashtra  to  take  action  on  the  basis  of  the  complaint  

lodged by the Childline India Foundation.   

(d)   Based on this specific direction, Sr. Inspector of Police,  

Colaba Police Station was directed to investigate in detail the  

complaint lodged by Childline and to take such action as is  

required to be taken in law.  On 12.11.2001, Colaba Police  

Station recorded the statement of one Sonu Raju Thakur and  

the  statement  of  one  Sunil  Kadam (PW-1)  was  recorded by  

Murud police station on 13.11.2001.  On 15.11.2001, police  

ultimately  registered an offence  at  Colaba  police  station  by  

treating the statement of Sonu Raju Thakur as formal First  

Information  Report  (in  short  ‘the  FIR’)  being  C.R.  No.  

312/2001 and started investigation.   

(e)   Though the offence was mainly registered against  three  

accused  barring  William  D’Souza  (A1),  the  remaining  two  

accused,  namely,  Allan  John  Waters  (A2)  and  Duncan  

Alexander  Grant  (A3)  had  already  left  the  country  and  

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therefore, on 05.04.2002, an Interpol Red Corner Notice was  

issued against A2 and A3.  In pursuance of Red Corner Notice,  

A2  was  arrested  in  USA and  sometimes  thereafter  A3  also  

surrendered  before  the  Court  in  India.   The  Metropolitan  

Magistrate  committed the  case to the Court  of  Session and  

after  committal,  it  was  initially  assigned  to  the  First  Track  

Court at Sewree.  All the three accused pleaded not guilty and,  

therefore, claimed to be tried.   

(f)   The  Sessions  Judge,  by  judgment  dated  18.03.2006,  

convicted  William  D’Souza  (A1)  for  the  offence  punishable  

under Section 377 read with Section 109 IPC, Sections 120B  

and 323 IPC and under Section 23 of the JJ Act.  Allan John  

Waters  (A2)  was  convicted  under  Section  377  IPC,  Section  

120B read with Section 377 IPC and Section 373 IPC.  Duncan  

Aleander  Grant  (A3)  was  convicted  under  Section  377  IPC,  

Section 373 read with 109 IPC, Section 372 IPC and Section  

23 of JJ Act.   

(g)  Aggrieved by the said order, A1 filed Criminal Appeal No.  

681 of 2006, A2 and A3 filed Criminal Appeal No. 476 of 2006  

before  the  High  Court  of  Bombay.   State  Government  also  

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preferred Criminal  Appeal  No.  603 of  2006 before  the  High  

Court  for  enhancement  of  the  sentence  of  the  accused  

persons.  The High Court, vide its common judgment dated  

23.07.2008,  set  aside the order of  conviction passed by the  

Sessions Judge and allowed the criminal appeals filed by A1,  

A2 and A3 and acquitted all of them from the charges leveled  

against  them  and  dismissed  the  appeal  filed  by  the  State  

Government.   

(h)  Aggrieved by the order of the High Court, Childline India  

Foundation  and  Ms.  Maharukh  Adenwala  filed  Criminal  

Appeal Nos. 1208-1210 of 2008 and State of Maharashtra has  

filed Criminal Appeal No. 1205-1207 of 2008 before this Court  

by way of special leave petitions.  

3) Heard Mr. K.V. Vishwanathan, learned senior counsel for  

the appellants  in Criminal  Appeal  Nos.  1208-1210 of  2008,  

Mr. Sanjay V. Kharde, learned counsel for the appellants in  

Criminal  Appeal  Nos.  1205-1207  of  2008,  Mr.  Shekhar  

Naphade, learned senior counsel for Respondent Nos. 1 & 2 in  

Crl. A. Nos. 1208 and 1210 of 2008 and Respondent Nos. 2 &  

3 in Crl. A. No. 1206 of 2008 and Respondent No. 3 in Crl. A.  

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No. 1210 of 2008 and Mr. Rameshwar Prasad Goyal, learned  

counsel for Respondent No. 1 in Crl.A. Nos. 1209, 1210, 1206  

and sole Respondent in Crl. A.No. 1207 of 2008.

4) The  only  point  for  consideration  in  these  appeals  is  

whether  the  High  Court  is  justified  in  acquitting  all  the  

accused  by  interfering  with  the  order  of  conviction  and  

sentence passed by the trial Court?

5) Childline India Foundation is a project of the Ministry of  

Social Justice & Empowerment, Government of India and runs  

a 24 hrs. emergency phone helpline for children in distress.  It  

was  at  their  behest  that  investigation  into  the  sexual  and  

physical  abuse  of  children  at  the  Anchorage  Shelters  was  

initiated and F.I.R.  No.  312 of  2001 was registered.   When  

initially  the  police  refused  to  record  the  statements  of  the  

victims,  it  was  the  Childline  along  with  Ms.  Maharukh  

Adenwala and others talked to the victims and recorded their  

statements  and  also  produced  them  before  the  Committee.  

The Childline India Foundation intervened in support of the  

prosecution before the trial Court.

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6) Ms. Maharukh Adenwala has been a practicing advocate  

since  1985  litigating  matters  concerning  social  issues,  

including  child  rights.   She  has  been appointed  as  Amicus  

Curiae  in  several  child  related  cases  by  the  Bombay  High  

Court  including  suo motu Criminal  Writ  Petition No.  585 of  

1985 about the plight of street children in Mumbai.  She was  

involved  in  the  present  case  since  its  inception  and  she  

brought the activities going-on at Anchorage Shelters to the  

notice of the Bombay High Court in  the above said suo motu  

writ petition and obtained several orders and directions for the  

protection  of  the  boys.   She  was  examined  before  the  trial  

Court as PW-2, especially to depose about the background of  

the case, how the complaint came to be filed and the various  

orders passed by the Bombay High Court in the abovesaid suo  

motu writ  petition.   Childline  India  Foundation  and  Ms.  

Maharukh  Adenwala have  been  closely  associated  with  the  

present  case  right  from  its  inception.   Childline  India  

Foundation as a de facto complainant and intervenor and Ms.  

Maharukh Adenwala as PW-2.

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7) In October, 2001, when it was brought to the notice of  

Ms.  Maharukh  Adenwala that  some  children  living  at  the  

Anchorage Shelters had complained about sexual abuse, she  

immediately brought this to the notice of the High Court of  

Bombay and obtained necessary orders.  She along with the  

representatives of Childline lodged a complaint at Cuffe Parade  

Police  Station  about  the  unlawful  activities  at  Anchorage  

Shelters.   Since  the  police  officers  of  Cuffe  Parade  Police  

Station  refused to  investigate  the  said  complaint  under  the  

pretext that the matter is  sub judice and pending before the  

High  Court,  she  recorded  the  statements  of  some  of  the  

victims and placed it before the High Court seeking direction  

for  the  police  to  investigate  into  the  complaint  filed  by  the  

Childline.   By  order  dated  07.11.2001  passed  by  the  High  

Court  in  suo  motu Criminal  W.P.  No.  585  of  1985,  the  

representatives  of  the  Childline  were  permitted  to  visit  the  

Anchorage  Shelters  to  interview  the  boys  and  to  submit  a  

report before the High Court and seek police assistance, if any.  

Their  representatives  have  since  been  regularly  visiting  the  

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Anchorage Shelters and providing necessary assistance to the  

boys residing there.

8) The other facts relating to these criminal appeals are that  

Duncan  Alexander  Grant  (A3),  a  British  national,  in  and  

around  1995  opened  three  Shelters  called  the  Anchorage  

Shelters for the welfare of street children in Mumbai and its  

vicinity, namely, at Colaba, Cuffe Parade and Murud.   Allan  

John Waters (A2), who was also a British national and a friend  

of Dunkan Alexander Grant (A3) used to visit the said Shelters  

regularly.  Both of them were formerly working with the British  

Navy.   Another  accused  William  D’Souza  (A-1)  was  the  

Manager of the Anchorage Shelters.   

9) In  January,  2001,  Dr.  (Mrs.)  Kalindi  Muzumdar,  a  

Member  of  the  Committee  received  complaints  from  

organizations  working  in  the  field  of  child  rights  such  as  

Childline,  Saathi,  CRY  about  the  sexual  exploitation  of  

children residing in Anchorage Shelters and other children’s  

institutions in Mumbai.  She has been examined as PW-3.  By  

letter dated 22.01.2001, she sought permission from the High  

Court  to  visit  Anchorage  Shelters  and  other  institutions  in  

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respect of which she had received complaints and permission  

was subsequently granted by the Division Bench of the High  

Court by its order dated 28.02.2001 in Suo Moto Criminal W.P.  

No. 585 of 1985.  Accordingly, on 18.08.2001, the Members of  

the Committee including Justice H. Suresh who headed the  

said Committee, visited the Anchorage Shelters and submitted  

their reports to the High Court.  These reports show that the  

atmosphere  in  the  Shelters  was  unconducive  for  growing  

children,  there  was  no  education  and  health  facilities,  the  

management of the Shelters was unprofessional, the children  

were scared to go to the Murud Shelter, there were allegations  

of repeated beatings of the boys, the Shelters were not licensed  

and did not maintain children’s records, nor proper accounts  

were maintained etc.  Moreover, the said Report stated that,  

“There are unconfirmed reports of sexual abuse in the Shelters  

especially  at Murud”,  and that “the Shelters,  especially,  the  

Murud  Shelter  should  be  investigated  thoroughly  for  

possibility of sexual abuse”.   

10)  There is no doubt that when Cuffe Parade Police Station  

refused  to  investigate  the  matter,  it  was  Ms.  Maharukh  

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Adenwala and  Ms.  Meher  Pestonjee  who  recorded  the  

statements and supplementary statements of the minor boys,  

namely,  Rasul  Mohd.  Sheikh,  Sonu  Thakur  and  Gopal  

Shrivastav,  on 25th,  26th and 27th October,  2001.    In their  

respective  statements,  the  boys  have  spoken  of  the  sexual  

abuse at the hands of (A2) and (A3) and physical abuse at the  

hands of (A1).  The said statements also show that the boys  

had told (A1) about the sexual abuse, but he did not take any  

appropriate  action  to  protect  them.   The  complaint  of  the  

Childline  is  the  basis  of  the  FIR in  this  case.   The  written  

complaint dated 24.10.2001 submitted by the Childline to the  

Cuffe  Parade  Police  Station  and  the  boys’  statements  were  

brought to the notice of the High Court.  On 07.11.2001, the  

High  Court  directed  the  police  authorities  of  the  State  of  

Maharashtra  to  take  immediate  action  on  the  complaint  of  

Childline.    Thereafter, the matter was investigated by Colaba  

Police  Station and an offence was registered on 15.11.2001  

being  FIR  No.  C.R.No.  312  of  2001.   In  the  course  of  the  

investigation, the police recorded the statements of five boys,  

who had suffered sexual abuse at the hands of (A2) and (A3)  

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and physical abuse at the hands of (A1).  All the three accused  

were arrested at  different times.   The Colaba Police  Station  

filed  three  separate  charge  sheets  but  the  matters,  viz.,  

Sessions Case Nos. 87 of 2002, 886 of 2004 and 795 of 2005  

were  heard  together  by  the  trial  Court  and  the  accused  

persons were charged under Sections 377, 373, 372 and 323  

IPC read with Sections 120-B and 109 IPC and Section 120-B  

IPC and Section 23 of the JJ Act.   

11)   The  prosecution  examined  six  witnesses,  namely,  two  

victim boys – Sunil Suresh Kadam as PW-1 & Kranti Abraham  

Londhe  as  PW-4,  Ms.  Maharukh  Adenwala as  PW-2,  Ms.  

Kalindi Muzumdar as PW-3 and two Investigation Officers as  

PWs 5 & 6.   The defence examined two witnesses,  namely,  

Kiran Waman Salve as DW-1 and Rasul Mohd. Sheikh as DW-

2, both being boys who resided in the Anchorage Shelters at  

Mumbai.   DW-2  had  been  cited  as  a  prosecution  witness.  

Thereafter  the  prosecution examined Veersingh P.  Taware  –  

the  Additional  Chief  Metropolitan  Magistrate  as  PW-7,  who  

had  recorded  the  statement  of  Rasul  Mohd.  Sheikh  under  

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Section 164 of  the Code, wherein he had spoken about the  

sexual abuse.   

12) The two victim boys, namely, Sunil Suresh Kadam (PW-1)  

and Kranti Abraham Londhe (PW-4) deposed in detail  about  

the  activities  going-on  at  the  Anchorage  Shelters  and  their  

depositions  reflect  that  there  was  a  criminal  conspiracy  

amongst the accused to obtain possession of minor vulnerable  

boys residing on the streets and subject them to sexual abuse.  

The  trial  Court,  by  order  dated  18.03.2006,  accepted  the  

evidence of PWs 1 & 4 who have been victimised in the Shelter  

Homes and social activists PWs 2 & 3 and after considering  

various aspects convicted all the three accused and sentenced  

them as mentioned hereunder:

        Accused         U/s            Sentence A-1 William D’Souza 377 r/w 149 IPC

120B IPC 323 IPC 23 JJ Act

3 Yrs RI+Rs. 5000/- ID 1 yr RI No separate sentence. 3m RI+Rs. 5000/- ID 15 days RI 1m RI+Rs. 500/- ID 1 week RI.

A-2 Allan John Waters 377 IPC 377 r/w 120B IPC 373 IPC

6 yrs. RI no fine No separate sentence 3 yrs. RI. No fine Compensation of 20000 UK pounds  ID 1 yr RI.

A-3 Duncan Alexander Grant 377 IPC 377 r/w 120B IPC 373 r/w 109 IPC 372 IPC 323 IPC

6 yrs. RI. No fine. 6 yrs. RI. No fine. 3 yrs. RI. No fine. 3 yrs. RI. No fine. 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  

18

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  

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 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.”   

22

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  

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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  

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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.  

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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  

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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  

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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  

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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  

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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  

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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.   

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