Child Line India Foundation v/s Allen John Waters, (2011) 6 SCC 261

Facts:
The Anchorage Shelter Home in Colaba at Mumbai was set up by Duncan Grant
in 1995 visited by Waters frequently. The two Britons Allan Waters and Duncan
Grant had sexually abused children for years. In October 2001, CHILDLINE
Mumbai received a call from a volunteer of the Anchorage shelter home in
Colaba, Mumbai, marking CHILDLINEs association with this case. The Committee
in August 2001 visited the Anchorage Shelters and submitted a report to the
High Court confirming the strong suspicion of sexual abuse and recommending a
police investigation.
The investigation revealed that Grant and Waters were sexually abusing the
children under their care and that a large number of foreign paedophiles were
regularly visiting the Shelters and taking the children to Goa where the children
were also being sexually abused. The acts of abuse documented by the police
investigation are: (a) oral sex forcibly performed on the boys, (b), forced
manipulation of the boys' penis, (c) boys made to forcibly manipulate the
accused's penis, (d) sadistic beatings of the boys, (e) biting of the boys for
perverse pleasure, etc.
After the facts became public, that Grant and Waters had absconded from India
which resulted delay in trial process. The Government, through Interpol, issued
international red corner alerts for the arrest of Grant and Waters. Waters was
arrested on his arrival at New York airport, and after a lengthy extradition process
and after he exhausted all appellate avenues, he was extradited to India to stand
trial. Duncan Grant was found to be hiding in Tanzania where he had started
similar shelters for children. He was deported to Britain and forced to return to
India to stand trial.
Issues:
Judgement:
The Mumbai Sessions Court sentenced the accused to six years in prison on the
charge of sodomy and sexually abusing five minor boys. The accused challenged
the trial Court verdict in an appeal in the High Court, which acquitted the
accused in 2008. But, the apex Court rejected the arguments of the accused and
sentenced them to finish their time in jail.
Fully aware of how difficult and rare such prosecutions are even though such
offences are on the increase, the judgment of the Sessions Court, while
convicting them under sections 120 B, 107, 373 and 377 IPC sentenced Grant
and Waters to six years imprisonment and a fine of Rs 20,000/- each, stated that
a deterrent punishment, was being imposed in order to help wipe 'out the name
of India from the map of sex tourism. Let pedophiles all over the world know that
India should not be their destination in future.' The said judgement was hailed as
a landmark judgement in its field by lawyers, academics and the public.

The Supreme Court restored the conviction and sentence of six-year rigorous
imprisonment imposed on two British nationals who were acquitted by the
Bombay High Court in a pedophilia case. The Bench directed Allan and Duncan to
serve the remaining period of sentence. John Waters was in jail for about five
years and Grant had served three years and two months. It also confirmed the
conviction and sentence of three-year jail awarded by the trial court to another
accused, William D' Souza, who had already served the term. For CHILDLINE, the
landmark judgement marked the closure of a ten year period of struggle as we
collaborated and wrestled in unpredictable turns with the law enforcement
agencies of Mumbai to deliver justice to the children of Anchorage.
Critical Analysis:
A victim whose testimony was crucial to the case revealed that from the age of
14-15, he was made to perform oral sex on the two of them. Another victim too
deposed: "Allan used to take my penis in his mouth, on about 30 or 40 different
occasions. I was made to do the same on Duncan many a time as well. The first
time this happened, I felt very bad."
CHILDLINE had filed the police complaint in 2001, along with the street children
about the kinds of atrocities going on in the shelter. As CHILDLINE probed
deeper, we unpacked stories of sordid violations from volunteers and the
children. This set us off on a tough and long journey of investigation and legal
recourse, culminating in a landmark judgement against child sex abuse.
The sexual abuse of the boys at Anchorage Shelters was also brought to the
notice of Advocate Ms. Maharukh Adenwalla who works on issues of child rights,
and she brought the same to the attention of the Bombay High Court in a matter
in which she was amicus curae.
The Bombay High Court passed directions to protect the boys at Anchorage
Shelters. Thereafter, CIF lodged a detailed complaint at Cuffe Parade Police
Station on 24-10-2001, but the police refused to investigate the said complaint
as the matter was subjudice. At the instance of Advocate Ms. Maharukh
Adenwalla, the Bombay High Court directed the police to investigate the
complaint filed by CIF. Police investigation revealed that two British nationals,
Duncan Grant (Accused No. 1) and Alan Waters (Accused No. 2), used to run the
Anchorage Shelters, which housed a large number of street children aged
between 8-18 years. Willyam D'Souza (Accused No. 3), an Indian, and a former
pimp for homosexual tourists, was the Manager of the shelters.
It took CHILDLINE and its linked partners ten years of struggle and on March 18,
2011, P Sathasivam and Dr Balbir Singh Chauhan, Justices, Supreme Court
upheld the appeal by CHILDLINE India Foundation and the Maharashtra
Government against the Mumbai High Court Judgement (Cr Appeal no 476).
The Supreme Court rejected arguments of Duncan and Walter's Counsel, Naphde
and sentenced them to finish their time in jail. In a thumping, landmark order,
the Supreme Court Bench of Justices P Sathasivam and BS Chauhan said,

"Children are the greatest gift to humanity. The sexual abuse of children is one of
the most heinous crimes."

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.

In their judgement delivered on 23rd July, the hon'ble judges stated:

The testimony of the two boys, Sunil and Kranti , which was the basis for the Trial
Court's judgement cannot be considered reliable as their testimonies recorded by
the Police subsequent to the FIR was not consistent with what they recorded with
Meher Pestonjee, freelance journalist and Maharukh Adenwala prior to the FIR
being lodged- the judges agreed with the Defence that this construed as
improving the testimony and not corroborative as contended by the Prosecution.
The testimony of Mahrukh Adenwala was construed as "hearsay" and hence not
relevant.
The acts that the boys testimony reported were ruled to not indicate a definitive
crime under Section 377.
The States appeal for enhancement was dismissed as the testimony of the
victims was not reliable.
The accused were acquitted of all charges.