The Anchorage judgement
Susan Abraham looks at the Anchorage Shelter paedophilia case and discusses the recent Bombay High Court judgement
It was a judgement that took the Bombay High Court five months to deliver and when it finally came, it shook the ground that child rights activists had so diligently built up. After arguments were wrapped up on 28.2.2008 in 3 criminal appeals – two filed by the 3 accused against their convictions (Ciminal Appeal Nos 476 and 681 of 2006) and one filed by the State for enhanced of punishment to the accused (Ciminal Appeal No 603 of 2006) - Justices Bilal Nazki and S S Bobde of the Bombay High Court delivered their 67-page judgement on 23.7.2008, by giving a clean acquittal to Duncan Grant, Allan Waters and William D’souza - the three accused in the sexual and physical abuse and exploitation of children at the Anchorage Shelter Homes run and managed by them. The judgement completely overturned the 18.3.2006 judgement of the Sessions Court in convicting the three accused expressing the view that paedophiles operating internationally needed to be taught a lesson that India would not be a safe haven for them. The Bombay High Court in reversing the order of the trial court has, let the accused off scott free.
Worse than dashing their hopes, child rights activists who pursued the case with commitment and who ensured that the two accused foreign nationals were brought back to face trial since both had left the country when the offence relating to rampant sexual abuse of the children in their care was registered against them. These activists were pilloried in the judgement and their testimonies dismissed as hearsay, not as corroborative evidence. Worse still, aspersions were cast on the motives of the High Court - appointed amicus curae, a lawyer and leading child rights activist herself, that it was not the police but she who had conducted the trial. The judgement has proved a setback for child rights activists to expose cases of child sex abuse and to book the perpetrators of the most heinous crime imaginable. Most heinous because not only are the victims hapless impoverished children but also because the crimes are carried out within the confines of so-called shelter homes by the child care providers.
The High Court even refused to stay its judgement for a few days to enable an appeal to the Supreme Court which would prevent the release of the Accused from jail. It should be noted that two out of the three accused persons are British nationals, and that all three accused persons have at different stages done their utmost to abscond and evade the process of law in India. Had the Accused been released before the appeal could be filed and heard in the Supreme Court, they would surely have left the country and it would have been impossible to bring them back to India again. As happened with the Martys couple case.
Appeals against the High Court judgement were filed with remarkable promptness in the Supreme Court in Criminal Appeal Nos 1208 – 1210 of 2008 by Childline and Mahrukh Adenwalla. The State too did not lose time in filing its appeal in the Supreme Court. The speed with which the petitioners moved the Supreme Court because of which there was no delay in ensuring that Grant and Waters did not flee the country once again, is indeed praiseworthy. The Supreme Court has given a reprieve of sorts by staying the High Court judgement to the extent that the police are not to hand over to them passports of Duncan Grant and Allan Waters and all three have been given three weeks time to show cause as to why they should not be re-arrested.
THE BACKDROP
The litigation which acts as a backdrop to the judgement began two decades ago. In 1985, in the heydays of public interest litigation, the Bombay High Court suo moto initiated
Criminal Writ Petition No 585 of 1985 based on a newspaper item about sexual exploitation of a girl brought to Mumbai from Gujarat as a maid. A decade later, Writ Petition No 1107 of 1996 was filed to look into the plight of children in various children homes in Maharashtra. In both these petitions, Maharukh Adenwalla, advocate and child rights activist, was appointed amicus curiae. Due to her persistent efforts in highlighting instances of abuse of children especially in child care institutions, the High Court set up the `Maharashtra State Monitoring Committee for Juvenile Justice’ comprising of Justice H Suresh (retd) as chairperson and Dr Asha Bajpai, Ms Kalindi Mazumdar and Dr Sharit Bhowmick as members. The Committee received complaints from Childline a 24-hour emergency phone helpline for children in distress as well as from other children’s care NGOs like Saathi and CRY.
When Meher Pestonji freelance journalist and resident of Colaba heard from some boys about their sexual abuse at the Anchorage Shelter Home in Colaba in October 2001, she informed Ms Adenwalla after recording their statements on video. The statement of the victim was done in Ms Adenwala’s presence. Ms Adenwala then brought this to the notice of the Monitoring Committee. On 19.10.2001, the High Court passed protection orders for children of Anchorage. On 24.10.2000, a formal complaint regarding this was lodged by Childline Foundation at the Cuffe Parade police station, which refused to take cognizance saying matter was sub-judice. Ms Adenwala with the help of Ms Pestonjee recorded the statements of a number of victims on three consecutive days. The Monitoring Committee then recorded their complaints before the High Court in Writ Petition No 585 of 1985. The High Court passed further orders on 7.11.2001 directing the police authorities to take cognizance of the complaint filed by Childline Foundation. After recording of complaints of five victim boys on 15.11.2001, an offence under sections 372, 373, 377 and 323 read with sections 109 and 120-B of the IPC in C R No 312 of 2001 was registered by Colaba police station.
Something that the High Court could have drawn adverse inference from but was completely overlooked in the judgement was the fact that while the case for prosecution of the offenders was being painstakingly put together by Childline, Ms Adenwala and others, the offenders had taken to their heels. Duncan Grant had left the country on 22.9.2001 and Alan Waters fled the country on 24.11.2001. By the time, the State hesitatingly took up the investigation into the offence, both these foreign nationals had `vanished’. The 3rd accused Walter D’Souza was arrested on 13.12.2001. Since Grant and Waters did not return to India to face trial, on 5.4.2003 a red-corner alert notice was issued by Interpol during the pendency of the trial. Five months later, Waters was traced in U.S.A., and was extradited to India on 6.9.2004 despite his attempts to challenge his extradition. Grant was traced to Tanzania a full year and two months later, and was arrested at Mumbai airport on 30.6.2005.
There can be no doubt that were it not for the stellar roles played by Childline and Ms Adenwala, it would not have been possible to bring to light the sexual abuse of children at the Anchorage Shelters and to bring the perpetrators to book.
THE TRIAL
The recording of evidence commenced in March 2005 and continued till March 2006. The prosecution examined six witnesses : two victim boys, (PW1) and (PW4), Ms Adenwala (PW2), Ms. Kalindi Mazumdar (PW3) and two Investigating Officers (PW5 and PW6). The defense examined two witnesses, (DW1) and (DW2), both being boys who had resided in the Anchorage Shelters. The second Defence Witness (19 years by the time of trial) had originally been cited as a prosecution witness as it he who reported the abuse by Grant and Waters to Ms Pestonji and Ms Adenwala and later to the police. The prosecution also examined Veersingh P. Taware (PW7), the Additional Chief Metropolitan Magistrate who had recorded the section 164 Cr.P.C. statement of (DW2) wherein he had spoken about the sexual offences committed by the accused.
Finally, two of the minor victims stood as prosecution witnesses. (PW1) withstood the battering of the defence lawyers cross examination and gave detailed testimonies about the circumstances in which they came to be living off the streets, and the sinister manner in which the children were `rescued’ and given free lodging and food by Grant and Waters, about the sexual and physical abuse that the minor boys were subjected to at Anchorage by all three accused and how they were regularly showered with gifts from foreign visitors. Their deposition reflects that there was a criminal conspiracy amongst the accused to obtain possession of minor vulnerable boys residing on the streets and to subject them to sexual abuse and that the Anchorage `shelters’ at Colaba, Cuffe Parade and Murud were more of a cover for an elaborate paedophilia racket.
Both the witnesses gave accounts of how they were forced to have sex with Waters and Grant from around the ages of 13 to 14 years. That though they found it hateful, they had to participate out of compulsion because they had no option since they would have to leave the shelter and live off the streets again. When the victims would complain to William D’Souza they were told not to divulge to anyone. The boys were scared of him because he used to regularly beat them with a cane. PW1 had once been bitten by William about which a case was filed against the latter. PW4 on the other stated that knew William from when he was small since he used to live with his family on the streets of Colaba and referred to William as a pimp. PW4 said he knew that Grant used to come to gateway and collect boys to offer them accommodation. Which is how he went to stay there after the death of his mother. Both were working – PW1 at a garage and PW4 as a guide.
Both Childline and Ms Adenwala were present before the Trial Court : Childline as de facto complainant and as intervenor, and Ms Adenwala as a prosecution witness. She was examined before the Trial Court as Prosecution Witness No. 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 suo-moto Criminal Writ Petition No. 585 of 1985.
The Defense’s case was that the representatives of Childline and Ms Adenwala had bribed and tutored the boys to make false complaints against the accused, and defense witnesses were examined to such effect. These allegations against Childline and Ms Adenwala were falsified by the cross-examination of defense witnesses, and these allegations were rightly disbelieved by the trial judge. In its judgment, the Trial Court has praised the role played by the Ms Adenwala holding that she has worked sincerely and selflessly to protect street-children for no personal gain.
TRIAL COURT JUDGEMENT
Based on evidence led before it the Trial Court found the testimonies of the boy victims (PW1) and (PW4) to be credible, and did not find that the omissions to be fatal to the prosecution’s case. The court found that the omissions to be because the Public Prosecutor had put questions to these witnesses that the Investigation Officer has not put to them. On sexual abuse, the court found no variance between the examination-in-chief and cross-examination of PW1 and PW4 with regard to the details of the nature of the abuse. On the delay in divulging the facts of their sexual abuse the trial court concluded that this was due to the their vulnerability due to age and economic conditions and not because there was no sexual exploitation or abuse, or that they were tutored. The trial court on the other hand found that the defense, except for suggestions, had not brought any evidence on record to prove their version, viz., that Shridhar Naik and Alan Denning wanted to take over the Anchorage Shelters, and hence had orchestrated the complaints against the three accused.
On the roles of the child rights activists, the trial court noted that Kalindi Mazumdar (PW No 3 in the appeal before the High Court) has independently spoken to some of the victim boys, and her evidence corroborates the evidence of Ms Adenwala (PW No..2 in the said criminal appeal).
As for the the investigation carried out by the police, the Trial Court found it was “absolutely rudderless”, noting that despite orders of the Bombay High Court, the police restricted its investigation to the Anchorage Shelter at Colaba and did nothing to investigate the goings on at the Cuffe Parade and Murud shelters. However, the trial court qualified this view by stating that it did not find the conduct or non action to be deliberate but that “The investigational lacunae are either on account of the lack of sensitivity or due to the lack of expertise in investigating the unusual offence.”.
As for the child victim and witness (14 at the time complaint recorded and 19 by the time of the trial) originally for the prosecution later turned hostile for the prosecution (DW2), the trial court found that he had been sexually exploited by the Accused Alan John Waters and Duncan Alexander Grant as he had repeatedly stated so in the past to different individuals and agencies and further corroborated by his reply to a question put by the Trial Court, “Yes. I am in the habit of lying by accepting more money.”
The Sessions Court meted out the following sentences to the three accused. Alan John Waters was convicted under section 377 IPC for 6 years rigorous imprisonment; under section 120B r/w 377 IPC, but no separate punishment was imposed; under section 373 IPC for 3 years rigorous imprisonment. Duncan Alexander Grant was convicted under section 377 IPC for 6 years rigorous imprisonment; under section 377 r/w 109 IPC for 6 years rigorous imprisonment; under section 373 r/w 109 IPC for 3 years rigorous imprisonment; under section 372 IPC for 3 years rigorous imprisonment; under section 23 of the Juvenile Justice (Care and Protection of Children) Act 2000 for 3 months. Willyam Michael D’Souza was convicted under section 377 r/w 109 IPC for 3 years rigorous imprisonment and fine of Rs.5,000/-, in default further rigorous imprisonment for 1 year; under section 120B IPC, but no separate punishment was imposed; under section 323 IPC for 3 months rigorous imprisonment and fine of Rs.1,000/-, in default further rigorous imprisonment for 15 days; under section 23 of the Juvenile Justice (Care and Protection of Children) Act 2000 for rigorous imprisonment of 1 year and fine of Rs.500/-, in default further rigorous imprisonment for 1 week. The substantive sentences were to run concurrently. The two Accused Alan John Waters and William Alexander Grant were each ordered by the Trial Court to pay compensation amounting to the equivalent of 20,000 UK pound and in default further rigorous imprisonment of 1 year. A Committee was constituted to prepare a plan for utilisation of the compensation amount collected u/s 357 Cr.P.C. for the rehabilitation of the children who had stayed or continued to stay at the Anchorage Shelter. This Committee was to be headed by Ms Adenwala, with Ms. Kalindi Mazumdar and Ms. Renu Gavaskar as its members and they had to decide the manner in which the compensation from Alan John Waters and Duncan Alexander Grant would be utilized for rehabilitation of the children of Anchorage Shelter.
HIGH COURT JUDGEMENT
The High Court judgement did not appreciate the sensitive nature of a case where the Accused are wolves in saviour’s clothings arrayed against hapless minors who have been victims of sexual and physical abuse. The High Court completely negated the testimonies of the two prosecution witnesses who were the child victims as unreliable. It has given credence to the wholly untested defense of the accused that the entire case has been rigged by child rights activists who in turn were marching to the tune of vested interests who wished to take over the Anchorage shelter homes. The High Court also gave credence to the defence put up by the Accused that if from the testimony of the minor victims, that which was not stated in front of the police is taken out, then there remains nothing which can indict the accused. The High Court judgement chose to be unmoved by the fact that in any offence involving sexual exploitation, delay cannot be the criteria for disbelieving the testimony of victims.
The High Court judgement weighed the evidence of these minor victims as prosecution witnesses on the same test tone that is used for adult witnesses. “PW1 who did not appear to be a novice, had stated that one of the accused had sexual relations with him, but he stayed in the home for 4 to 5 years.” Again, that he attended school, worked in a garage and did not complain to anybody was seen as “unnatural”. On PW4 deposition on the sexual acts he was forced into by the accused, the High Court found the fact that Accused No 3 used to put witness penis in his mouth and did so 30 to 40 times but he “did not complain for years together” sufficient for the court to conclude that his testimony cannot be relied upon.The judgement goes further in this vein – by disbelieving the testimony of PW4, that he was working as a guide but did not know the name of the building or the road in which the Anchorage home was situated. It is sufficiently known that these young boys who operate as tourist guides around the Gateway or in Colaba take tourists or sight seers to particular destinations only and they maybe wholly unaware of the exact names and locations of other buildings etc.
It is indeed strange that the High Court has completely ignored the Report of the Maharashtra State Monitoring Committee on Juvenile Justice set up by the High Court which states as early as August 2001“The Shelter, especially the at Murud, needs to be investigated thoroughly for possibility of sexual abuse.” The Court further ignored the fact that the Anchorage shelter could at most be considered a night shelter only since it conducted no programmes for the development of children.
ON THE ROLE OF AMICUS CURAIE
The High Court judgement finds that the statements of Ms Adenwala, PW2 and of PW3 Kalinidi Mazumdar not important “as both of them did not have personal knowledge and whatever they stated to be in the form of heresay. Para 30 of the judgement concludes that “whatever happened thereafter was either at the instance of Mrs Meher or of the witness (i.e. Ms Adenwala). They got hold of certain boys and recorded their statements. Therefore it is submitted by the learned counsel for the accused-appellants that these statements, which were recorded by the witness or Mrs Meher, have no evidentiary value.” And thereby with one stroke, the Bombay High Court brought to nought years of dogged labour put in by child rights activists like Ms Adenwala to bring to book perpetrators of sexual crimes on children.
The High Court also chose to completely believe the untested case of the defence that the police did not do thorough investigation but rather that it handed over the investigation to Ms Adenwala. In fact, the entire tenor of the judgement is such that a deep animosity is on display towards appointment of an amicus curaie dedicated to the cause he or she may be pursuing for the benefit a particular section of society.
The High Court did not for a minute mull over the fact children, especially street children, need the support of adults and institutions and that they will never come forward on their own to complain to the police. Street children particularly are vulnerable and completely at the mercy of the police.
The High Court has chosen to completely ignored the findings of the trial court that throughout the trial proceedings Childline was present as de facto complainant and intervenor and Ms Adenwala as prosecution witness. The Sessions judge in its judgement has praised the role played by Ms Adenwala as sincere and selfless to protect the welfare of street children and rightly disbelieved the argument on behalf of the accused that the boys were tutored and/or were bribed to give false testimonies against the accused. shows absolute sincerity with regards to her role in the present case, where all her actions were to protect street-children from sexual abuse. The Trial Court further found that Ms Adenwala has from the initial stage brought the goings-on at the Anchorage Shelters to the notice of the Maharashtra State Monitoring Committee on Juvenile Justice constituted by the Bombay High Court.
ON S.377 IPC
Probably the most problematic aspect of the judgement is its reading of section 377 IPC in the context of penalizing paedophilia. Section 377 IPC is discussed at length in the last 16 paras of the judgement. There is not a single line anywhere in the context of offences against minor children, even though there were enough case laws cited to support the case of the prosecution that the sexual acts committed by the two accused foreign nationals fall within the scope of section 377 [(1)State of Kerala v.Kundumkara Govindan & Anr., 1969 Cri.L.J. 818, (2) Brother John Antony v. The State, 1992 Cri.L.J. 1352, (3) Lohana Vasantlal Devchand & Ors. v. The State, AIR 1968 Gujarat 252, (4) Calvin Francis v. State of Orissa, VI-1992 (2) Crimes 455, (5) Ashok Wasudeorao Arvikar v. State of Maharashtra, 2005 ALL MR (Cri) 1010].
The judgement states “What was stated by P.Ws.1 and 4 as regards the actual conduct of the accused was that the accused used to take the penis of the witness into his mouth or hand; and one of the witnesses even stated that the accused also made the witness to take
his penis in his hand.” The judgement then goes into a detailed dissection of the three ingredients of the section – carnal, intercourse and penetration. After referring to Butterworth Medical Dictionarty 2nd edtition, Oxford English Dictionary 1978 edition, and Winston’s Simplified Advanced Dictionary – and concludes that insertion of the male organ by a person into another person's or animal's body, with an aim of
satisfying the sexual lust, would constitute these ingredients. But then why did the High Court not conclude that what was committed against the witnesses by the two accused foreign nationals had all three aspects?
The judgement then gets involved with the discussion on `sodomy’ and relies on a 19th century judgement [Government v. Bapoji Bhatt, reported in Mysore Law Reports 1884, Vol. VII, 280] to equate section 377 with `sodomy’, to conclude that “where a man forced open a child's mouth and put in his private part and completed his lust, that act did not constitute the offence of Sodomy”. The High Court found that the law on sodomy as laid down in Rex v. Samuel Jacobs (1817) Russ & Ry. 331 C C R was confirmed in the Bapoji Bhatt judgement. The High Court then insists on the same yardstick to evaluate the other case laws cited before it (“we are not in agreement with this view, and we feel ourselves in agreement with the view of the law laid down in Rex v. Samuel Jacobs (1817) and uses the same yardstick to weigh the charges against the Anchorage accused.
In short what the judgement does is, it disbelieves the testimony of the two child victim witnesses that they were sexually abused on the one hand, and then goes further to say that at any rate their allegations do not constitute an offence under section 377 of the IPC!
The discussion on section 377 ends with a complete non sequitur. “We would also point out that such an act is an offence under Section 377 where consent is immaterial. There are lots of changes taking place in social milieu, and lots of people are having different sexual preferences, which are even not considered to be unnatural. Therefore, it is high time that the provision of law, which is made more than a century before, is looked at again.”
Should this then be extended to looking at sexual offences committed against children, paedophilia in other words, be looked as merely a “different sexual preference”?
CONCLUSION
What needs to be seen is that the Bombay High Court in its judgement in the Anchorage case has failed to recognize the phenomenon of sexual exploitation of street children and how to weigh the evidence in that context. This shows that that child rights campaigners have no option but to ensure that a legislation that covers these aspects is enacted. (see interview with Kajol Menon of Childline Foundation).
However, it needs to be said that one important player who showed exemplary sensitivity to the issue has been the State. It can be attributed to the efforts of child rights campaigners that the State which began so hesitatingly at the start of investigation into the case, later warmed up to the seriousness of the crime as the case progressed. The state appointed a very senior and experienced counsel Adv Vijay Nahar as special public prosecutor in the case, it spent time, money and effort in extradition proceedings against the Grant and Waters. The State also did not waste time in filing its appeal against the Bombay High Court judgement before the Supreme Court.