1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Dist.: MUMBAI CRIMINAL APPEAL NO. 476 OF 2006 1. Allan John Waters ] Age 53, 24, Cador Drive, ] Portchester, Fareham Hants, ] P.O. 169 EP, United Kingdom ] 2. Duncan Alexander Grant ] Age 60, Great South Sea Street, ] Portmouth, Fareham Hants, ] P.O. 53 BY, United Kingdom ] (Both presently lodged at Nagpur Prison)] ...Appellants (Ori. Accused No. 2 & 3) Versus 1. State of Maharashtra ] (Colaba Police Station C.R.No. 312/2001) 2. Maharukh Adenwalla ] R. No. 4/D 1st Floor ] Ismail Building ] 381 Dr. D.N. Road ] Mumbai 400 001 ] ...Respondents WITH CRIMINAL APPEAL NO. 603 OF 2006 The State of Maharashtra ] ...Appellant (Ori. Complainant) Versus 2 1. William Michael D'souza ] Age 45 years ] R/o. Tihur Taluka Murud-Janjira ] District Raigad ] 2. Allan John Waters ] Age 53, ] R/o. Cador Drive, ] Portchester, Fareham Hants, ] P.O. 169 EP, United Kingdom ] 3. Duncan Alexander Grant ] Age 50 years, ] R/o. Great South Sea Street, ] Portmouth, Fareham Hants, ] P.O. 53 BY, United Kingdom ] ...Respondents (Ori. Accused Nos. 1 to 3) AND CRIMINAL APPEAL NO. 681 OF 2006 William Michael D'souza ] Age 45 years ] R/o. Tihur Taluka Murud-Janjira ] District Raigad ] (Presently lodged at Nagpur Prison) ] ...Appellant (Ori. Accused No. 1) Versus State of Maharashtra ] (Colaba Police Station C.R.No. 312/2001)...Respondents IN ALL MATTERS: Mr. Taraq Sayed with Mr. S.V. Kotwal and Mr. S.S. Bhandari for the Appellants in Criminal Appeal No. 476 of 2006 Mr. Vijay Nahar, Special Public Prosecutor, for the State with Ms. Maharukh Adenwalla and Mr. Y. Chaudhary for the Respondents 3 in Criminal Appeal No. 476 of 2006 Mr. D.S. Mhaispurkar, Additional Public Prosecutor, for the State in Criminal Appeals No. 476 and 603 of 2006. CORAM: B ILAL NAZKI and S.A. BOBDE, JJ. Date of reserving the judgment: 28-2-2008 Date of pronouncing: 23-7-2008 JUDGMENT (Per Bilal Nazki, J.):- Appeals No. 476 and 681 of 2006 are filed by the accused persons against their convictions, whereas Appeal No. 603 of 2006 is filed by the State for enhancement of the sentence of the accused persons. 2. There were three accused. Two of them faced trial. They were tried for offences under Sections 372, 373, 377, 323 read with Sections 109 and 120-B of the Indian Penal Code. They were also tried under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. These cases were filed against the accused persons in unusual circumstances. A Criminal Writ Petition was suo motu entertained by the High Court, being Writ Petition No. 585 of 1985. Ms. Maharukh Adenwalla was appointed amicus curiae in this Writ 4 Petition and also in another Criminal Writ Petition. She had also been appointed amicus curiae in Criminal Writ Petition No. 1107 of 1996 by this Court. 3. It appears that in the year 1985, a girl had been brought from Gujarat to Mumbai as a maid servant. A news item appeared that this girl was being sexually exploited. The High Court took notice of the matter, and a Writ Petition was entertained, being Writ Petition No. 585 of 1985. 4. In the year 1986, a petition was brought, complaining about the plight of children at various children homes in Maharashtra. This Criminal Writ Petition came to be registered as Writ Petition No. 1107 of 1996. In the same petition, the High Court appointed a Committee, which was named as “the Maharashtra State Monitoring Committee on Juvenile Justice”. Hon'ble Mr. Justice Hosbet Suresh (Retd.) was the Chairman of the Committee. Dr Asha Bajpai and Mrs. Kalindi Muzumdar were its Members. This Committee received complaints from organisations like Saathi Online and C.R.Y. about the mismanagement of Anchorage Shelters, and in the background, the 5 Committee sought permission of the High Court to visit various Anchorage Shelters, and on the basis of their visits, a report was submitted to the Bombay High Court. The Committee also visited the Anchorage Shelters at Colaba and Cuffe Parade, and ultimately submitted reports before the High Court. These reports were also brought before the trial Court as Exhibits 39 and 40. 5. One Ms. Meher Pestonji telephoned Advocate Ms. Maharukh Adenwalla, informed her that some children residing in shelter homes were sexually exploited by those who were running the same. Ms. Maharukh, on receiving this information, met - at the residence of Meher Pestonji - the boys, who allegedly were sexually assaulted, and ascertained the “truth of Pestonji's allegations”. Ms. Maharukh then informed the members of the Maharashtra State Monitoring Committee. The Committee decided that the matter be communicated to the High Court in Criminal Writ Petition No. 585 of 1985. On 18th October, 2001, an affidavit was filed by Ms.Maharukh Adenwalla (Exhibit 30). On 19th October, 2001, the High Court passed an order for the protection of children at Anchorage Shelter Homes. On 21st October, 2001, one Shridhar Nayak telephoned Advocate Adenwalla, and informed her that the order of the Bombay High Court, giving protection to the children, 6 was being misinterpreted by the police, and, therefore, certain clarifications should be sought from the High Court. The High Court passed an order on 22nd October, 2001. 6. With this background, the Child Line India Foundation filed a complaint with the Cuffe Parade Police Station, and while lodging the complaint, Advocate M. Adenwalla was also present in the police station. In spite of the fact that a complaint had been lodged with the Cuffe Parade Police Station, the police station did not take cognizance of the offence, under the impression that the matte was sub judice, and was pending before the High Court. Since the matter was not being looked into by the police, Ms. Maharukh Adenwalla recorded statement of some of the victims of the said child-abuse herself. 7. On 25th October, 2001, the statement of Sonu Thakur was recorded (Exhibit 33). On 26th October, 2001, statement of one Rasul Mohd. Shaikh was recorded (Exhibit 35). On 27th October, 2001, supplementary statements of the boys, whose statements had already been recorded by Ms.Adenwalla, were recorded. 8. After recording these statements, Ms. Maharukh Adenwalla 7 informed the Members of the Maharashtra State Monitoring Committee, and on 28th October, 2001, Dr. Kalindi Muzumdar and Dr. Asha Bajpai met these boys at the office of India Centre for Human Rights and Law, and endorsed that the statements previously recorded by Ms. Maharukh were correctly recorded. Then the Committee informed the High Court, and also complained that in spite of a complaint having been made at Cuffe Parade Police Station, the police were not pursuing the matter. The High Court, on 7th November, 2001, passed an order, and directed the Police Authorities to take action on the basis of the complaint lodged by the Childline India Foundation. On 11th November, 2001, the Joint Commissioner of Police (Crimes) wrote a letter to the concerned police station to pursue the complaint (Exhibit 52). On 12th November, 2001, Colaba Police Station recorded the statement of one Sonu Raju Thakur. On 13th November, 2001, statement of one Sunil Kadam was recorded by Murud Police station, as the said boy was in the Shelter Home at Murud. On 15th November, 2001, police registered an offence at Colaba Police Station by treating the statement of Sonu Raju Thakur as formal First Information Report, C.R. No. 312 of 2001. After the said offence was registered on 15th November, 2001, the investigation started, and during the course of investigation, some additional statements were recorded. On 20th November, 2001, statement of 8 Advocate Ms. Maharukh Adenwalla was recorded. Some statements were also got recorded under Section 164 of the Code of Criminal Procedure. These are the background facts in which the case, C.R. No. 312 of 2001, was registered. 9. It was one of the assertions of the learned counsel for the appellants-accused that whatever happened before registering C.R. No.312 of 2001 could not be treated as evidence for the basis of convicting the accused persons. Neither the information, which was collected by Ms. Maharukh, nor the information that was endorsed by a Special Committee, could be treated as evidence, as, at best, this was a hearsay evidence. We will deal with this argument at the appropriate time during the course of this judgment. But the fact of the matter is that C.R.No. 312 of 2001 was registered on 15th November, 2001. 10. Thereafter, the investigation started, and prosecution was launched. Charges were framed. The first charge was under Section 377 of the Indian Penal Code against all the three accused. They were alleged to have entered into a conspiracy and were continuing with criminal conspiracy to obtain possession and charge of young boys under the age of 18 years with intent to use them for 9 unlawful and immoral purpose at three different places. The second charge was against accused Nos. 2 and 3 to have used a young boy, Sonu Raju Thakur, who was under the age of 18 years for unlawful and immoral purpose, and an offence was committed under Section 373 of the Indian Penal Code. The third charge was also under Section 373. In all, 38 charges were framed, and the charges were mainly under Sections 372, 373, 377, 323 read with Sections 109 and 120-B of the Indian Penal Code and also under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The accused pleaded not guilty, and claimed to be tried. 11. Accused No. 1, William Michael D'souza, was convicted of offence under Section 377 read with Section 109 of I.P.C., and sentenced to suffer rigorous imprisonment for three years. He was also fined Rs.5,000/-, and in default, rigorous imprisonment for one year. He was also convicted under Section 120-B, but was not given any separate sentence. He was also convicted for offence punishable under Section 323 and sentenced to suffer rigorous imprisonment for three months. In default, he has to undergo further imprisonment for 15 days. He is also convicted for offence under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, and was sentenced 10 to suffer rigorous imprisonment for one month. He is also fined Rs.500/- on this count, and in default, he has to undergo rigorous imprisonment for one week. 12. Accused No. 2, Allan John Waters, was also convicted for offence under Section 377 of the Indian Penal Code, and sentenced to suffer rigorous imprisonment for 6 years. He was also convicted for offence under Section 120-B read with Section 377, but no separate sentence was imposed. He was also convicted for offence under Section 373, and sentenced to suffer rigorous imprisonment for three years. Accused No. 3, Duncan Alexander Grant, was convicted for offence under Section 377 and sentenced to suffer rigorous imprisonment for 6 years. He is also convicted for offence under Section 377 read with Section 109 and sentenced to suffer rigorous imprisonment for 6 years. He was also convicted for offence under Section 373 read with Section 109 and sentenced to suffer rigorous imprisonment for three years. He was also convicted under Section 372, and sentenced to suffer rigorous imprisonment for three years. Accused No. 3 was further convicted under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000, and sentenced to suffer rigorous imprisonment for three months. Compensation was also 11 ordered to be paid from accused No. 2 and accused No. 3. Substantive sentences were to run concurrently. 13. Two main facets of the case have been argued by the learned counsel appearing for the appellants-accused before us. One of the contentions was that the whole case was built on testimony of P.W. 2, and according to the learned counsel for the appellants-accused, on the basis of such evidence which was at best hearsay evidence, the conviction cannot be sustained, and the second contention of the learned counsel for the appellants-accused was that even if the statements made by the witnesses during trial were to be believed in the manner in which the prosecution wants this Court to believe them, even then, an offence under Section 377 of the Indian Penal Code is not made out. The learned counsel for the appellants-accused submits that the whole story was built up by the prosecution on the basis of the statements recorded even before registration of case by Ms. Maharukh Adenwalla, who also appeared in Court as a witness as P.W. 2. She had no knowledge of her own, and whatever she stated even before the Court was the knowledge she acquired through some of the alleged victims. Therefore, the testimony of P.W. 2 is not at all admissible in evidence, and, as a matter of fact, it should not be looked 12 into. 14. On the other hand, the learned Special Public Prosecutor appearing in the case submits that there is sufficient evidence recorded by the trial Court, which would show that the trial Court was right in convicting the accused persons. He submits that if the evidence is believed by the Court, then there would be no confusion whether an offence under Section 377 was made out or not. The first submission raised by the learned counsel for the appellants-accused will have to be considered in the light of the evidence that is produced. It may also be noted that there is no serious contest by the learned Special Public Prosecutor about the contention of the learned counsel for the appellants-accused that P.W.2's evidence was a hearsay evidence. But he only submits that in view of the statements of the victims, whose statements had been recorded by P.W. 2 prior to investigation, these statements assume a corroborative character. In the light of these statements, let us examine the statements of the witnesses. 15. The prosecution, in all, examined 7 witnesses. After the examination of the accused persons under Section 313 of the Code of Criminal Procedure, they also examined two witnesses. 13 16. P.W. 1, Sunil Suresh Kadam, stated in his statement that he was 20 years' old when the statement was recorded on 20th April, 2005. At the time of making the statement, he was living with his mother in Aeroli. He did not know where his father was residing. He did not know whether he was alive. He had one younger brother and one elder sister. The sister was married. He was an illiterate person. From the age of 12 to 13 years, he started earning for himself by doing some work. He had no shelter, and he used to sleep on foot-path. From year 2000, he started residing with his mother. He was in contact with his brother and sister. 14 17. It may be noted that when this statement was recorded on 20th April, 2005, after the portion of the statement was recorded in examination-in-chief, which has been referred to hereinabove, the learned Special Public Prosecutor sought an adjournment on the ground that he had yet to study the case, and the adjournment was granted till 27th April, 2005, and the examination-in-chief continued on 27th April, 2005. 18. The witness stated that his father was a shoe-shiner. He was addicted to alcohol, and on this account, there used to be quarrels regularly in his house. He studied up to 2nd or 3rd standard. He was not able to specify the day, date and the year. Up to the age of 8 years, he was residing along with his family, and thereafter, he left the house. His father sold his house. When he left the place, all the members of the family scattered. After leaving the home, he used to work to maintain himself. He used to stay on the pavements near Dhanraj Mahal, which is situate near Gateway of India. He stayed on pavements for about a year. He made friendship with many boys like him, who were also staying on the pavements. He was unable to state the names of those friends. He knew accused No. 1. He also knew Duncan Grant and Allan Waters. Some of his friends told him that Duncan had opened one 15 shelter home. He was asked to stay in the said shelter home along with other boys. Four to five years before, be went to said shelter home. The name of the home was 'Anchorage Shelter Home.' The home was situate at Colaba. He did not know the name of the building in which this shelter home was situate. However, it was situate on 3rd floor. Duncan used to run the home. The witness knew Allan Waters because he was a friend of Duncan Grant. He had met Allan Waters at the shelter home. He knew that Allan Waters was a resident of London. After every two months, Allan Waters used to come to the shelter home. Allan Waters used to help Duncan in running the shelter home. Accused No. 1 was the General Secretary of the shelter home. He also knew one Ganesh as he also used to work in the said shelter home. It consisted of one big room. There was attached toilet to the said room. There was also one terrace attached to the said room. Forty to fifty boys were staying in the said shelter home. The boys were between the range of 8 to 20 years. There was another shelter home situate at Murud in Alibag District and one at Cuffe Parade. Accused Nos. 3 and 4 were also identified by him. From Gateway of India, there was a launch service to go to Murud. When he shifted to the shelter home, he started working in a motor garage to assist a mechanic. Duncan Grant introduced him to the said garage. He worked for about two months in 16 the garage, and thereafter, he got admitted himself in a school run by Y.W.C.A. For about a year, he studied in the said school. Thereafter, he started working in the shelter home at Colaba, like preparing tea, etc. The children in the home used to sleep on the floor. They were served good food. Duncan Grant and Allan Waters used to sleep in the shelter home. They both used to sleep on cots. There were two cots in the shelter home. The shelter home also used to provide them cloths. They also used to get pocket money and occasionally gifts from the shelter home. The friends of Duncan Grant regularly used to come to shelter home. Allan Waters used to give them gifts. Duncan Grant's friends were also from London. He stayed in the shelter home up to the year 2001 till the case was filed. He also stayed at the shelter home in Murud on 20 to 25 occasions. William used to look after the management of the shelter home at Murud. Duncan had sex with the witness on many occasions. He used to tell him to hold his penis and also he used to hold the penis of the witness. This act must have taken place on 20 to 25 occasions. This happened at Murud as well as at Colaba. Allan Waters also had sex with him on many occasions. He also used to tell him to hold his penis and he also would hold the penis of the witness. Allan Waters also had sex with him at Colaba Shelter Home and also at Murud. Allan must have had sex with him 10 to 15 17 times. Duncan Grant and Allan Waters had similar relationship with other boys. Accused Duncan and Allan Waters used to ask for fellatio with the other boys. They both used to do fellatio with the other boys and not the other way round. He had seen this happening with his own eyes. He had seen it with respect to boys named Babu, Kiran, Sai and Dhanraj. He knew Sonu Thakur, Rasul Sheikh, Gopal Srivastava and Kranti Londhe. With these boys also, the accused had sex. These boys also used to stay in the shelter home during the relevant period. When it happened for the first time with him, he was aged about 14 to 15 years. Prior to that, he had no knowledge of sex. When he had it for the first time, he did not like it. Although he did not like it, he stayed in the shelter home because of compulsion. He made a complaint to William about the conduct of Duncan Grant and Allan Waters. Accused No. 1 William used to beat all of them on flimsy grounds. He used to do caning. However, he never had sex with either him or with other boys. When he had made a complaint about Allan and Duncan, he told him not to divulge the said fact to anybody. A police officer from Murud Police Station interrogated him at Murud Shelter Home. 10 to 12 police persons had come to the shelter home. On the day when he was examined by police, he had an injury on his right hand, as William had bitten him. He had taken treatment with respect to the said 18 injury. With respect to this incident of biting by William, a case had been filed against William. This witness was examined as a witness in the Court, but he did not support the prosecution case at the time of the trial. He did not support the prosecution, because he was frightened. Some boys had threatened him. Since the case was filed, he saw William in the Court, but he never met him. He had no conversation with him. On the date of giving evidence, he was working as a cook, and was working as a waiter also, and was staying at the place where he was cooking. 19. In cross-examination, the witness stated that besides Hindi, he could partly understand Marathi and so also English. His statement was recorded in English. He did not remember the date and year of recording his statement. He could not read and write English. Therefore, he had not read his statement. His statement was read over to him in English, and the same was explained to him in Hindi. The police had recorded his statement correctly. Duncan Grant was from London. The witness stayed for about 4 to 5 years in the shelter home either at Colaba or Murud. Duncan Grant mainly used to stay at the shelter home and Allan Waters regularly used to come. In three shelter homes, around 100 – 150 boys used to stay. At Murud, there 19 were about 60 to 70 boys and at Colaba, around 30 to 40 boys used to stay, whereas at Cuffe Parade, around 20 to 30 boys used to stay. He did not know whether a person named Ganesh, who was working in the shelter home, was dead or alive. When he had experience of sex for the first time, he made a complaint to Ganesh, who was then working in the shelter home. However, Ganesh did not believe him. He had also complained to William. Besides William and Ganesh, he did not divulge the said fact to any other person. He did not remember as to when he started residing at the shelter home. Ganesh was the Manager, and left the shelter a year or two before the witness left the home. After Ganesh, William became the Manager, but immediately after he started residing at the shelter home, the instances with respect to sex started taking place. During his stay of 4 – 5 years at the home, these instances kept happening regularly. When Murud Police Station officer recorded his statement, he was residing at the shelter home at Murud. When he was examined before the Magistrate's Court with regard to the incident of biting, he had told the Magistrate that he received the injury by way of an accident. He had not made any complaint before any authority about the threats