# 3 S.C.R. 989 CHILDLINE INDIA FOUNDATION & ANR v. ALLAN JOHN WATERS & ORS

- **Citation:** [2011] 3 S.C.R. 989
- **Court:** Supreme Court of India
- **Decided:** 2011-03-18
- **Case number:** Criminal Appeal Nos. 1208-1210 of 2008
- **Bench:** P' Sathasivam, Dr. B.S. Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/3-s-c-r-989-childline-india-foundation-anr-v-allan-john-waters-ors-27512
- **Pages:** 35

## Headnote

PENAL CODE 1860:
A
B
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
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
G
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, in

## Text

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[2011) 3 S.C.R. 989
CHILDLINE INDIA FOUNDATION & ANR.
v.
ALLAN JOHN WATERS & ORS.
(Criminal Appeal Nos. 1208-1210 of 2008)
MARCH 18, 2011
[P' SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
PENAL CODE 1860:
A
B
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
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
G
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 crossexamination 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) [1013B-F]
1.5. After analyzing the evidence of PWs 1 and 4, this
Court is of the view that more confidence can be reposed
on their evidence and the omissions as pointed out by
8
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 examinationin-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-AF
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 PW3 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.
B
But takinc into account their initiation, work done,
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; 1016C
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
0
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 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
8 offence, the ingredients required are: (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, 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] [1023C-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
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
E
of 14 years. The word "life" in the context of article 21 has
been found to include "education" and accordingly this
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
F
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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; 1022A-F; 1023-A-B]
G
Vishaf Jeet vs. Union of India (1990) 3 SCC 318 - relied
on.
H
Case Law Reference:
(2007) 1 sec (Crl) 403
relied on
(1990) 3 sec 318
relied on
para 21
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:
(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,
F
· 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
A
B
c
D
E
F
G
H
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SUPREME COURT REPORTS
[2011) 3 S.C.R.
Shelters, and on that basis, the Committee sought
permission of the High Court to visit various Anchorage
Shelters. After visiting various Anchorage Shelters
including the one at Colaba and Cuffe Parade, a report
was submitted before the High Court.
(b) On the basis of the said report, specifically expressing
unconfirmed report of sexual exploitation of children, on
17.10.2001, one Ms. Meher Pestonji telephoned Advocate
Ms. Maharukh Adenwala and informed her that some
children residing in Shelter Homes were sexually exploited
by those who were running these Homes. On receiving this
information, Ms. Maharukh Adenwala met those boys, who
were allegedly sexually assaulted, at the residence of Ms.
Meher Pestonji to ascertain the truth. After confirming the
said fact, Ms. Maharukh Adenwala thought it proper to
inform it to the Members of the Committee. After consulting
the Committee, Ms. Maharukh Adenwala moved a suo
motu Criminal Writ Petition No 585 of 1985 before the
High Court. On 19.10.2001, the High Court passed an
order for the protection of the children at Anchorage Shelter
Homes. On 21.10.2001, one Shridhar Naik telephonically
contacted Ms Maharukh Adenwala and informed her that
the order of the High Court giving protection to the children
was being misinterpreted by the police and, therefore,
certain 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, Child line 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
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
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
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c
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SUPREME COURT REPORTS
[2011] 3 S.C.R.
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 (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
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 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
common judgment dated 23.07.2008, set aside the order
of conviction passed by the Sessions Judge and allowed
the criminal appeals filed by A 1, 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
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.
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?
B
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 PW2, 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
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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.
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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
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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
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
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[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 DW2, 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.
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
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.
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
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
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P' · '<; 2 & 3 as not admissible and ultimately doubting the
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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
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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:
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"Duncan had sex with me on many occasions. He used to
tell me to hold his penis and also he used to hold my penis.
This must have taken place at least on 20 to 25 occasions.
This happened at Murud (Janjira) shelter home as well as
Colaba shelter home. Allan Waters also had sat with me
on many occasions. He also used to tell me to hold his
penis and he also used to hold my penis. Allan waters also
had sex with me at Colaba shelter home and also at Murud
(Janjira) shelter home. Allan must have had sex with me
on 10 to 15 occasions. Duncan Grant and Allan Waters
also had a similar relationship with other boys. Accused
Duncan and Allan Waters used to ask for fellatio with the
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.