Supreme Court of India
CHILDLINE INDIA FOUNDATION & ANR.versusALLAN JOHN WATERS & ORS.
- Citation
- 2011 INSC 225
- Decided
- 18 March 2011
- Disposal
- Appeal(s) allowed
- Bench
- P SATHASIVAM
Holding
The Court held that the victim testimonies, though uncorroborated, were reliable and sufficient to establish the offences, and therefore the High Court’s acquittal was erroneous, leading to the restoration of the convictions.
Summary
The Supreme Court examined appeals filed by Childline India Foundation and the State of Maharashtra against the Bombay High Court’s order acquitting three accused of sexual and physical abuse of children in Anchorage Shelter Homes in Mumbai. The trial court had convicted the accused under IPC sections 377, 109, 1208, 120B, 373, 372, 323 and the Juvenile Justice Act, s.23, based on detailed testimonies of two victim boys and corroborative statements of child‑rights activists. The High Court had held those testimonies unreliable and set aside the convictions. The Supreme Court held that the victim testimonies were credible, that lack of corroboration was not fatal, and that the acts described satisfied the ingredients of section 377 IPC. Consequently, the Court restored the trial court’s convictions and sentences. The judgment also reiterated constitutional safeguards for children and the need for effective implementation of child‑protection legislation.
Issues considered
- The reliability and sufficiency of the victim boys' testimonies to prove offences under IPC 377 and related sections.
- Whether the absence of corroborative evidence mandates acquittal in cases of sexual abuse of children.
- Whether the High Court erred in overturning the trial court’s convictions.
- Whether the sexual acts described constitute "carnal intercourse against the order of nature" under IPC 377.
- Whether conviction under the Juvenile Justice (Care and Protection of Children) Act, 2000, s.23 is appropriate.
Legislation cited
- Indian Penal Code, 1860s. 109, s. 1208, s. 120B, s. 323, s. 372, s. 373, s. 377
- Juvenile Justice (Care and Protection of Children) Act, 2000s. 23
Subjects
sexual abuse of childrenchild protectionIPC 377Juvenile Justice Actevidence reliabilitycorroborationshelter homesconvictionappeal
Judgment
[2011) 3 S.C.R. 989
CHILDLINE INDIA FOUNDATION & ANR. A
v.
ALLAN JOHN WATERS & ORS.
(Criminal Appeal Nos. 1208-1210 of 2008)
MARCH 18, 2011
B
[P' SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
PENAL CODE 1860:
ss.377, 377 rlw 1208, 373,373, rlw 109, 372, 323 and C
120-8 and s. 23 of Juvenile Justice Act - Sexual abuse of, and
physical assault on children of Anchorage Shelters in Mumbai
- Conviction by trial court of all the three accused -Acquittal
by High Court - HELD: The analysis of the evidence of the
two Victims at the hands of the accused in the shelter homes
clearly shows that both A-3 and A-2 had sex with them, on D
many occasions - They also had similar sex with other boys
who stayed in the shelter homes - Trial court has correctly
appreciated the evidence of the victims, and arrived at a
proper conclusion - On the other hand, the High Court
committed an error in holding that their statements are E
suspicious and not reliable and not proved beyonp sha.dow
of doubt - There is no such basis for the High Court to have
come to such a conclusion-In the circumstances, the
impugned judgment of the High Court acquitting all the
accused in respect of charges levelled against them is set F
aside and the conviction and sentence passed by the trial
court restored - Juvenile Justice (Care and Protection of
Childreq) Act, 2000 - s.23.
CONSTITUTION OF IND/A. 1950
G
Anic/t=>~ 23, 15(3), 21-A, 24, 39 (e), (f), and 45 rlw s.23 of
Juvenile Justice Act- Protection of children against sexual
abuse - HELD: Sexual abuse of children is one of the most
heinous crimes - There are special safeguards in the
989 H
990 SUPREME COURT REPORTS [2011) 3 S.C.R.
A Constitution that apply specifically to children - The
Constitution has envisaged a happy and healthy childhood
for children which is free from abuse and exploitation - Thus,
our Constitution provides several measures to protect our
children - It obligates the Central and all State Governments
B and 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 the Supreme
Court are there to safeguard their interests - But these are to
be properly implemented and monitored - The Court hopes
c and trusts that all the authorities concerned through various
responsible NGOs implement the same for better future of the
children - Juvenile justice (Care and Protection of Chil1.1"ren )
Act, 2000 - Penal Code, 1860.
In a writ petition complaining about the plight of
D children of shelter homes in Maharashtra, the High Court
appointed a Committee, namely, the Maharashtra State
Monitoring Committee on Juvenile Justice, which was
headed by a retired Judge of the High Court. The
Committee after visiting various shelter houses,
E submitted a report to the High Court specifically
mentioning unconfirmed report of sexual exploitation of
children. PW 2, an Advocate, after consulting the
Committee, filed another writ petition on which the High
Court passed an order for protection of childre_n of
F Anchorage Sheiter Homes. On 24.10.2001 the appellant
NGO filed a complaint with the Cuffe Parade Police
Station, Mumbai with regard to sexual abuse and physical
abuse of children at the Anchorage Shelters. It was stated
that when the police did not take any action, PW 2
G recorded statements of some of the victims. The
Committee placed the facts before the High Court and on
its direction the police of Colaba Police Station recorded
the statements of two of the victims, namely, PW 1 and
PW 4, and registered an FIR against three accused (A-1,
H A-2 and A-3). A-3, a British national, was running three
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 991
JOHN WATERS & ORS.
shelters called Archorage Shelters. for welfare of street A
. children; A-2 another British national and a friend of A·2
used to visit the shelters regularly; and A-1 was the
Manager of the Anchorage Shelters. The trial court
convicted A-1 u/s 377, r/w s 109, ss.120-8 and 323 IPC
and s. 23 of Juvenile Justice (Care and Protection of B
Children) Act, 2000 and sentenced him to 3 years RI and
a fine of Rs. 5,500/-; A-2 and A-3 were convicted, inter alia,
u/ss 377, 377 r/w s.120-8, s.373 IPC and sentenced to 6
years RI and to pay a fine of 20,000/- UK pounds each.
However, the High Court acquitted all the three accused c
of all the charges. Aggrieved, the NGO, namely, Childline
India Foundation filed the appeals.
Allowing the appec.ls, the Court
HELD: 1.1. The two victim boys, namely, PW-1 and D
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 E
court, by order dated 18.03.2006,' accepted the evidence
of PWs 1 and 4 who have been victimised in the Shelter
Homes, and social activists PWs 2 and 3 and after
considering various aspects rightly convicted and
sentenced all the three accused. [para 12] [1006-G-H; F
1007-A-C]
1.2. On the date of deposing before the court, PW-1
was about 20 years old. However, from the age of 12-13 ·
he was wandering in the streets and earning by doing
any s ".'rt of work for maintaining himself. He stated that G
there w~~ no shelter for him at that time and he was
sleeping on footpath. He used to stay on the pavements
near Gateway of India. While deposing before the court,
he identified A-2 and A-3 in the dock. According to him,
he came to know that A-3 had cj..aned a Shelter Home H
992 SUPREME COURT REPORTS [2011] 3 S.C.R.
A and he was asked to stay in the Shelter Home along with
other boys. He admitted that he knows A-2 because he
was a friend of A-3 and he met him at the Shelter Home.
He also Informed that about 40-50 boys between the age
of 8 to 20 years were staying in the said Shelter Home.
B He stayed in the Shelter Home up to 2001. He
highlighted how A-2 and A-3 had sex with him and also
explained how he was beaten by A-1. In his cross-
examination he stated that he could not assign any
reason as to why his statement in exact sequence is
c missing in the police report. He said that he did state the
said fact to the police at the time of recording his
statement. [para 14) [1008-A-E; 1010-A-B]
1.3. PW-4 deposed before the court that he lost his
father when he was a chifd and he along with his mother
D used to stay on the pavements near Gateway of India.
He said that he was offered- by A-3 to stay in Anchorage
homE1. Thereafter, he went to stay at Anchorage Shelter
and met A-2 there. He also informed the Court that A-1
used to beat them by a cane when they were staying at .
E Anchorage Shelter for no reason. He stated that A-2 and
A-3 used to have sex with him. PW-4 has identified each
accused correctly when they were in the dock. [para 15)
[1010-D-F]
1.4. The analysis of the evidence of PW-1 and PW-4,
F the victims, at the hands of the accused in the shelter
homes clearly shows that both A-3 and A-2 had sex with
them on many occasions. They also had similar sex with
other boys who stayed in the shelter homes. Though
many other boys had similar experience, out of fear,
G except PWs 1 and 4, nobody narrated the incident to the
police or to the Court. As a matter of fact, they did not
attribute any sexual activities to A-1 except alleging that
he used to beat them on flimsy grounds. Both PWs 1 and
4 asserted that A-1 never had sex with them or other
H boys. As rightly observed by the trial court, the above
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 993
JOHN WATERS & ORS.
I
Information by PWs 1 and 4 shows that they were staying A
in the shelter homes at the relevant time. [para 16) [1013-
B-F]
1.5. After analyzing the evidence of PWs 1 and 4, this
Court is of the view that more confidence can be reposed
8
on their evidence and the omissions as pointed out by
the u:,..h Court are not fatal to the prosecution case.
11tere may be some omissions because the Public
Prosecutor has put questions to these witnesses which
the 1.0. has not, however, there is no variance between
the examination-in-chief and cross-examination of PWs C
1 and 4 with regard to the material particulars of sexual
abuse. No statement of these boys in the examination-
in-chief has been negated during cross-examination.
Considering the background of PWs 1 and 4, the delay
in divulging the facts of beating and also of sexual abuse D
to any other person does not mean that there is no sexual
exploitation or abuse or that they were deterred or that
they had deposed falsely as per the design of some other
person. The trial court has correctly appreciated the
evidence of PWs 1 and 4 and arrived at a proper E
conclusion, on the other hand, the High Court committed
an error in holding that their statements are suspicious
and not reliable and not proved beyond shadow of
doubt. There is no such basis for the High Court to have
come to such a conclusion. [para 16] [1013-E-H; 1014-A- F
B]
1.6. PW-2, is a practising advocate, however, evincing
more interest on the welfare of uncared street children.
All alone she worked and even on date she is working
sincerely and selflessly to protect the street children for G
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 H
994 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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.
B However, she enquired the children and submitted a
report to the Committee and to the High Court and also
participated as a prosecution witness, as PW-2 and
highlighted the grievance of the neglected children at
shelter homes and sexual abuse undergone by them. On
c 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, the
D conclusion arrived at by the High Court in rejecting her
evidence in toto cannot be accepted. Though conviction
cannot be based on evidence of PW-2 alone, however,
while appreciating the evidence of victims PWs 1 and 4,
the work done by PW-2 cannot be ignored. [para 17)
E [1014-C-H; 1015-A]
1.7. The academic credentials of PW-3 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 PW-2 and others,
F personally and independently interacted with the children
in the shelter homes and as in the case of the evidence
of PW-2, the evidence of PW-3 also solely cannot be
relied on for convicting the accused. However, as rightly
observed by the trial court, her evidence can be
G considered for a limited purpose, namely, to corroborate
the evidence of PW-2. The role played by PW-2 and PW-
3 undoubtedly supported this case for taking the cause
of vulnerable street children and in bringing to the notice
of the relevant authorities what was happening in the
H Anchorage Shelters. They played their role in a
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 995
JOHN WATERS & ORS.
responsible manner, Undoubtedly PW-3, like PW-2, had A
no enmity with the accused nor can any ulterior motive
be attributed to them. [para 18] [1015-B-D]
1.8. Based on the statement of PWs 2 and 3,
undoubtedly the accused persons cannot be convicted.
But takinc into account their initiation, work done, B
intervi"'w with the children at the shelter homes laid the
fot. ... ation for the investigation. To that extent, the trial
court has rightly considered their statements and
actions. Unfortunately, the High Court ignored thelr ·
statements as unacceptable. [para 20] [1015-G-H; 1016- C
A]
1.9. As regards the plea of the accused 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 0
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 night shelter. Since the boys in the shelter homes were E
provided with stay, clothes and food and were not taken
care of by their families, arid most of them had lost their
parents and relatives, out of fear and in order to continue
the life in the same shelter, they did not make a complaint
to anyone. Only when the matter was taken up to the F
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. [para 21] [1016-B-E]
1.10. Further, regarding the requirement of G
corroboration about the testimony of PWs 1 and 4, with
regard to sexual abuse, as has been held by this Court
in Kurissum Moottil Antony's case, the Court is not justified
in asking further corroboration apart from the testimony
of PWs 1 and 4. [para 21] [1016-E-F] '· H
996 SUPREME COURT REPORTS [2011) 3 S.C.R.
A State of Kera/a vs. Kurissum Moottil Antony, (2007) 1
sec (Crl) 403 - relied on.
1.11. It cannot be said that the acts of the accused
do not constitute offence u/s. 377 IPC. To attract the said
offence, the ingredients required are: (1) carnal
8
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, the exact statements of the victims - PWs
1 and 4. show how these accused, particularly, A1 and
C 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 s.377 have not been proved. The street
D 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 the entire testimony
of PWs 1 and 4 coupled with the other materials even
E prior to the occurrence, it cannot be claimed that the
prosecution has not established all the charges leveled
against the accused. On the other hand, the analysis of
the entire material clearly support the prosecution case
and the conclusion arrived at by the trial court is
F concurred with. [para 22-23] (1091-8-E-F; 1020-G-H; 1021·
A-B]
1.12. In tha circumstances, the Impugned judgment
of the High Court-Gequitting all the accused in respect of
charges leveled against them is set aside and the
G conviction and sentence passed by the trial court
restored. It is brought to the notice of the Court 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
H the trial court has imposed maximum sentence of 3 years
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 997
JOHN WATERS & ORS.
on A-1 and he has already undergone 3 years and 1 A
month. While confirming his conviction imposed by the
trial court, it is clarified that there is no need for him to
undergo further imprisonment. On the other hand,
inasmuch as A-2 and A-3 were awarded 6 years
imprisonment u/s. 377 !PC, while confirming their B
conviction, the Court directs them to serve the remaining
period of sentence. The trial court 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 c
of the trial Court shall be implemented. [para 31] [1023-
C-F]
2. Children are the greatest gift to humanity. Sexual
abuse of children is one of the most heinous crimes. It is
an appalling violation of their trust, an ugly breach of our D
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 childhood for children which is free from abuse
and exploitation. Article 15(3) of the Constitution of India E
has provided the State with the power to make special
provisions for women and children. Article 21A mandates
free and compulsory education to every one upto the age
of 14 years. The word "life" in the context of article 21 has
been found to include "education" and accordingly this F
Court has implied that "right to education" is in fact a
fundamental right. Article 23 prohibits traffic in human
beings, beggars and other similar forms of forced labour
and exploitation. This article is more relevant in the
context of children because they are the most vulnerable G
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 prohibits child labour. The Directive Principles
H
998 SUPREME COURT REPORTS [2011] 3 S.C.R.
A of State Policy embodied in the Constitution provide
policy of protection of children. 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. Article
B 45 is supplementary to Article 24 in as much as 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 clauses
(e) and (f) of Article 39, thus ensuring distributive justice
c to children in the matter of education. Thus, our
Constitution provides several measures to protect our
children. It obligates all, the Central and State
Governments and Union Territories to protect them from
the evils, provide free and good education and make them
0 good citizens of this country. 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
E ensured by establishing observation homes, juvenile
houses, juvenile homes for neglected juveniles and
special homes for delinquent or neglected juveniles.
Several legislations and directions of this Court are there
to safeguard their interests. But these are to be properly
implemented and monitored. The Court hopes and trusts
F that ail the authorities concerned through various
responsible NGOs implement the same for better future
of these children. [para 24-27,28 and 30] [1021-C-H; 1022-
A-F; 1023-A-B]
G Vishaf Jeet vs. Union of India (1990) 3 SCC 318 - relied
on.
Case Law Reference:
(2007) 1 sec (Crl) 403 relied on para 21
H (1990) 3 sec 318 relied on para 28
. CHILDLINE INDIA FOUNDATION & ANR. v.,ALLAN 999
JOHN WATERS & ORS.
CRIMINAL APPELLATE JURISDICTION : Criminal A
Appeal No. 1208-1210 of 2008.
WITH
Criminal Appeal Nos. 1205-1207 of 2008.
B
K.V. Vishwanatha, Shekhar Naphade, Trideep Pais,
Mahrook Adenwal, Shakthi Kumaran, Nikhil Nayyar, Sanjay V.
Kharde, Arun Pendenker, Asha, G. Nair, Ravindra Keshavrao
Adsure, Rameshwar Prasad Goyal, Taraq Sayyad, Sushi!
Karanjkar, K.N. Rai and Nikhil Nayyar for the appearing parties. c
The Judgmemnt of the Court was delivered by
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 D
Appeal Nos. 476, 603 and 681 of 2006 whereby the High Court
allowed the appeals and rev·ersed 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 all the accused under various E
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:
F
(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 G
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 H I
1000 SUPREME COURT REPORTS [2011) 3 S.C.R.
A 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
(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
c 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
D 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
E 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 clarifications were sought from the High Court and
F 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, Child line India
Foundation filed a complaint with the Cuffe Parade Police
G
Station and while lodging the said complaint, Ms.
Maharukh Adenwala was also present there. In spite of the
fac;t 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
H Court. Since the matter was not being looked into by the
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 1001
JOHN WATERS & ORS. [P. SATHASIVAM, J.]
police. Ms. Maharukh Adenwala recorded statements of A
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 B.
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 authorities at Cuffe Parade Police Station were not c
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, D
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 Sun ii Kadam (PW-1) was E
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. F
(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 G
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 H
1002 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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,
B
convicted William D'Souza (A 1) for the offence punishable
under Section 377 read with Section 109 IPC, Sections
1208 and 323 IPC and under Section 23 of the JJ Act.
Allan John Waters (A2) was convicted under Section 377
lPC, Section 1208 read with Section 377 IPC and Section
c 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
D No. 681 of 2006, A2 and A3 filed Cr:.:iinal Appeal No. 476
o.f 2006 before the High Court of Bombay. State
Government also 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
E 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.
F (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.
G
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
H Naphade, learned senior counsel for Respondent Nos. 1 & 2
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 1003
JOHN WATERS & ORS. [P. SATHASIVAM, J.]
in Crl. A. Nos. 1208 and 1210 cf 2008 and Respondent Nos. A
2 & 3 in Cri. A. No. 1206 of 2008 and Respondent No. 3 in
Crl. A. 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.
B
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 C
Sock1I 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.l.R. No. 312 of 2001 was registered. When initially the police D
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. E
6. Ms. Mahr•ukh 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 sue motu Criminal Writ Petition No. 585 F
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 G
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 H
1004 SUPREME COURT REPORTS [2011) 3 S.C.R.
A 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.
B 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
C 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
D 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
E 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 Anchorage Shelters and
providing necessary assistance to the boys residing there.
F 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
G 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.
H 9. In January, 2001, Dr. (Mrs.) Kalindi Muzumdar, a
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 1005
JOHN WATERS & ORS. [P. SATHASIVAM, J.)
Member of the Committee received complaints from A
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 B
Anchorage Shelters and other institutions in respect of which
she had received complaints and permission was subsequently
granted by the Division Benc,h of the High Court by its order
dated 28.02.2001 in Suo Moto Criminal W.P. No. 585of1985.
Accordingly, on 18.08.2001, the Members of the Committee c
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 0
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 E
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 F
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
re..:r)ective statements, the boys have spoken of the sexual G
abus~ "+ the hands of (A2) and (A3) and physical abuse at the
hands of (A 1). The said statements also show that the boys had
told (A 1) 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 F::-: in this case. The written H
1006 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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.
B 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,
thP. police recorded the statements of five boys, who had
suffered sexual abuse at the hands of (A2) and (A3) and
c physical abuse at the hands of (A 1). All the three accused were
arrested at different Lmes. The Colaba Police Station filed three
separate charge sheets but the matters, viz., Sessions ~ase
Nos. 87 of 2002, 886 of 2004 and 795 of 2005 were he?• ·
together by the trial Co1 ~rt and the accused person<> v.~re
0 charged under Sections 317, 373, 372 and 323 IPC read with
Sections 120-B an,. 102 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
E Londhe as PW-4, Ms. Maharukh Adenwala as PW-2, Ms.
Kalind. 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
F 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 Section
164 of the Code, wherein he had spoke!l about the sexual
G 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
H their depositions reflect that there was a criminal conspiracy
CHILDL!NE INDIA FOUNDATION & ANR. v. ALLAN 1007
JOHN WATERS & ORS. [P. SATHASIVAM, J.]
amongst the accused to obtain possession of minor vulnerable A
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 B
them as mentioned hereunder:
Accused U/s Sentence
A-1 William D'Souza 377 r/w 149 IPC 3 Yrs Rl+Rs. 5000/- ID 1yr RI.
120BIPC No separate sentence. c
323 IPC 3mRl+Rs. 5000/-ID 15 days Rl
23 JJ Act 1m Rl+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
D
Compensation of 20000 UK
pounds ID 1 yr RI.
A-3 Duncan Alexander 377 IF'C 6 yrs. RI. No fine.
Grant 377r/w 1208 IPC 6 yrs. RI. No fine.
373 r/w 109 IPC 3 yrs. RI. No fine.
372 IPC 3 yrs. RI. No fine. E
3 months RI. No fine.
Compensation of 20000 UK
pounds ID 1 yr RI.
13. The Division Bench of the High Court, by the impugned
F
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
P' · '<; 2 & 3 as not admissible and ultimately doubting the G
prose\'ution case, set aside the order of conviction and
sentence • --:sed 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
H
1008 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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
B 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 situated near Gateway
c 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 askc..: to stay
in the Shelter Home along with other boys. The Shelter 1-· 1e
is situated at Colaba. He admitted that he knows A" bt:cause
D 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
E 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
F 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
G 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
H Duncan and Allan Waters used to ask for fellatio with the
CHILDLINE INDIA FOUNDATION & ANR. \/. ALLAN 1009
JOHN WATERS & ORS. [P. SATHASIVAM, J.]
other boys and not the other way round. I have seen this A
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 B
abovementioned boys used to stay in the shelter home
dP~iny 111e 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 c
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 D
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 E
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
F
that "Accused Duncan Grant andAllan 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 that "it is a fact that whenever we used to commit
mistake, William used to beat us". When a question was G
put to him whether he had sai,d so before police, he
answered that "I did sta.te that fact to the police at the time
of.recording my statement that Allan Waters also had sex
with me at Colab.a shelter home and also at Murud
H
·. 1010 SUPREME COURT REPORTS [2011] 3 S.C.R.
A (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
B 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
c 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."
15. Before analyzing the evidence of PW-1 further, it is also
D 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
E 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
F dock. About William (A 1), 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
G
known as Nati.var."
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
H
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 1011
JOHN WATERS & ORS. [P. SATHASIVAM, J.] .
because he used to come near Gateway of India and used A
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 .B
situated at Colaba. I do not know.as to why he was offering ·
Ii•" to come 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 c
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 D
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
to
boys were from the age·group of 10 12 years.
Thereafter, he went to stay at Anchorage and met Allan E
Water (A2). The Anchorage is consisting of one big room with
attached bathroom and a terrace. All of them were provided
food at Anc~orage 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 F
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. G
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 by
H
1012 SUPREME COURT REPORTS [2011) 3 S.C.R.
A 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
B given to the oth~; boys residing in the Anchorage by
Duncan."
About Allan Waters (A2), he deposed that
"Allan Waters used to have ~ex with the boys. Allan used
c 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
D 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."
E
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
F 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 rny statements were recorded for the first time the
G 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
H were asked to me in Hindi and I answered the questions
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 1013
JOHN WATERS & ORS. [P. SATHASIVAM, J.]
in Hindi to the police." A
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, B
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 C
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 D
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~ E
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 F
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 1.0. has not, we
are, however, satisfied that there is no variance between the
examination-in-chief and cross-examination of PWs 1 and 4 G
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 H
1014 SUPREME COURT REPORTS [2011) 3 S.C.R.
A 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
B committed an 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 foi
arriving at the above conclusion.
17. Coming to the evidence of Maharukh Adenwala (PW-
C 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
D 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
E 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 the Committee and to
F 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
G 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
H conviction cannot be based on her evidence alone. However,
CHILDLINE INDIA FOUNDATION & ANR: v. ALLAN 1015 ·
JOHN WATERS & ORS. [P. SATHASIVAM, J.]
while appreciating the evidence of victims PWs 1 and 4, the. A.
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 8
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 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, C
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, D
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 E
the notice of the relevant authorities that what was happening
in the Anchorage Shelters. As rightly observed by the trial Court,
both of t~em, particularly, PW-2 played her role in a responsible
manner. It is further seen that PW-3 along with Dr. Asha Bajpai, I
Members of the Committee verified the witnesses and F
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.
20. As stated earlier, based on the statement of PWs 2
and 3, undoubtedly the accused persons cannot be convicted. · G
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.
H
1016 SUPREME COURT REPORTS [2011) 3 S.C.R.
A 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
8
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.
C 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 life in the same shelter, they
did not make a complaint to anyone. Only when the matter was
D 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 fo1 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
E the decision of this Court in State of Kera/a vs. Kurissum
MoottiJ 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
F 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
G 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 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
H consideration of the entire prosecution version, the trial Court
CHILDLINE !NOIA FOUNDATION & ANR. v. ALLAN 1017
JOHN WATERS & ORS. [P. SATHASIVAM, J.]
found the accused guilty and convicted and sentenced as A
aforesaid. An appeal before the Sessions Judge did not bring
any relief to the accused and revisionwas 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 · B
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 c
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 D
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 E
victim of sexual assault in the absence of corroboration as
a rule, is adoing insult to injury. A girl or a woman in the
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 F
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 G
shown or believed to be self-inflicted, is the best witness
in the sense that he is· 1east 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 H
1018 SUPREME COURT REPORTS [2011] 3 S.C.R
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
B
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
c 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
D 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?
E 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
F with those who violate the social norms.
10. The above position was highlighted by this Court in
Bhupinder Sharma v. State of H.P.
G 11. The rule regarding non-requirement of
corroboration is equally applicable to a case of this nature,
relating to Section 377 IPC."
. We are in agreement with the said conclusion and in a
case of this nature, the Court is not justified in asking further
H
CHILDLINE INDIA FOUNDATION & ANR. I/. ALLAN 1019
JOHN WATERS & ORS. [P. SATHASIVAM, J.]
corroboration apart from the testimony of PWs 1 and 4. A
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
8
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, C
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. ·
D
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 a.nd 2) against the order of E
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 the
victims - PWs 1 and 4. PW-1 has stated before the trial Court
as under: F
"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. n
ii "Allan Waters also had sex with me on many G
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 H
1020 SUPREME COURT REPORTS [2011) 3 S.C.R.
A 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
B 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."
c
(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"
D
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
E 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
F 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,
G 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
H the prey of the sexual lust of the paedophilia. By reading all the.
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 1021
JOHN WATERS & ORS. [P. SATHASIVAM, J.]
entire testimony of PWs 1 and 4 coupled with the other A
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. B
Constitutional provisions relating to· children
24. Children are the greatest gift to humaniJy. The se)(ual
abµse of children is one of the most heinous crimes. It is an
appalling violation of their trust, an ugly breach of our C
commitment to protect ~he innocent. There are special
safeguards in the Constitution that apply specifically to children.
The Constitution has envisaged a happy and healthy .childhood
for children which is free from abuse iiind exploitati()n. Ai:ticle
15(~) of the Constitution has provided the State with the power D
to ma(<e special provisions for women and children. Article
21 A of the Constitution mandates Jhatevery 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 E
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 F
children, yet it is applied to them and is more relevant in their
context because children are the most vulnera!:>le section of the
society. It is a known fact that many children are exploited
beca...:~e of ttieir poverty. They are deprived of education, made
to do ah ~orts of work injurious to their health and personc~lity. G
Articl,e 24 c;,:;Jressly ·provides that no child ·below the ;:1ge of
14 years. shall ·be employed· ~o work in any factory or mine or
engaged in any hazardous employment. This Court has issued
elaborate guidelines on this issue.
H
1022 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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
. B 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
C 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 emplow~d
before. the age of 14 years, he is to be kept occupied in some
educational institutions. It is suggested that Article ~'+ in turn
D 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.
E
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
F 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 Visha/ Jeet vs. Union of India,
(1990) 3 SCC 318 this Court issued several directions to the
G 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.
H 30. The above analysis shows our Constitution provides
CHILDLINE INDIA FOUNDATION & ANR. v. ALLAN 1023
JOHN WATERS & ORS. [P. SATHASIVAM, J.]
several measures to protect our children. It obligates both A
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 8
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 C
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 D
William D'Souza (A1) and he had already undergone 3 years
and 1 month while confirrning 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 E
6 years imprisonment under Section 377 IPC while confirming
their conviction, we direct them to serve the 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 p
disbursement and other modalities, the directions of the trial
Court shall be implemented. The appeals are allowed on the
above terms.
R.P. Appeals allowed.
G
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