Childline India Foundation & Anr. v. Allan John Waters & Ors.
Appeals were filed against the judgment passed by the Division Bench of the High Court of Bombay in Criminal Appeal Nos. 476, 603 and 681 of 2006 whereby the High Court allowed the appeals and reversed the judgment passed by the Additional Sessions Judge for Greater Bombay convicting all the accused under various sections of the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Juvenile Justice Act, 2000.
With regard to the sexual and physical abuse at the Anchorage Shelters, Childline India Foundation filed a complaint with the Cuffe Parade Police Station but 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. 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. Based on this specific direction, Sr. Inspector of Police, Colaba Police Station was directed to investigate in detail the complaint lodged by Childline and to take such action as is required to be taken in law. Police ultimately registered an offence at Colaba police station by treating the statement of one Sonu Raju Thakur as formal First Information Report and started investigation. The offence was mainly registered against three accused but other than William D’Souza (A1), the remaining two accused Allan John Waters (A2) and Duncan Alexander Grant (A3) had already left the country and thus 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 Court in India. The Metropolitan Magistrate committed the case to the Court of Session and after committal, it was initially assigned to the First Track Court at Sewree. All the three accused pleaded not guilty and, therefore, claimed to be tried. The Sessions Judge convicted William D’Souza (A1) for the offence punishable under Section 377 read with Section 109 IPC, Sections 120B and 323 IPC and under Section 23 of the Juvenile Justice Act. A2 was convicted under Section 377 IPC, Section 120B read with Section 377 IPC and Section 373 IPC. A3 was convicted under Section 377 IPC, Section 373 read with 109 IPC, Section 372 IPC and Section 23 of Juvenile Justice Act.The High Court 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 levelled against them and dismissed the appeal filed by the State Government.
The point for consideration in these appeals was whether the High Court was justified in acquitting all the accused by interfering with the order of conviction and sentence passed by the trial Court?
Accused submitted that except the testimony of PWs 1 and 4, there was no corroborative statement by any of the other boys who stayed with them in the shelter homes. But the Supreme Court held that there was no need to examine more victims of similar nature. The accused further submitted that even if the allegations/statements of prosecution witnesses are acceptable, the same would not constitute an offence under Section 377 IPC. The Supreme Court observed that to attract the above offence, the following ingredients are required: 1) Carnal intercourse and 2) against the order of nature. Though the High Court had adverted to various dictionary meanings and decisions to hold that the offence had not been made out, the Supreme Court held that by reading all the entire testimony of PWs 1 and 4 coupled with the other materials even prior to the occurrence, it could not be claimed that the prosecution had not established all the charges leveled against them. On the other hand, the analysis of the entire material clearly supported the prosecution case and thus the Court agreed with the conclusion arrived at by the trial Judge. The appeals were thus allowed.