JUDGMENT :

R.N. Manjula, J.

(Heard through video conference)

(Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C. seeking to set aside the judgment of conviction and sentence dated 21.08.2017 passed in Special Case No.14 of 2017 on the file of the Additional Sessions Judge, Magalir Neethimanram (Fast Track Mahila Court) Erode.)

1. This Criminal Appeal has been filed against the judgment of conviction and sentence dated 21.08.2017 passed in Special Case No.14 of 2017 on the file of the Additional Sessions Judge, Magalir Neethimanram (Fast Track Mahila Court) Erode.

2. The facts of the case in brief is as under:

The victim boy is the son the defacto complainant. On 17.11.2016, the victim boy went to his grandmother’s house and stayed there. Next day morning at about 9.00 a.m., he went to school by a mini bus. After the school was over, he did not reach back to his parents’ house. On the way to his home he got down at Erode bus stand and was urinating behind the bus. The accused who came there in a motorcycle took the victim boy by telling that he would drop him at his house. As the accused took a different road, the victim boy questioned him. The accused threatened the victim boy and took him to a house in a place called Otta methai. During night times, the accused confined the victim inside a room and compelled him to have oral sex with him. He also committed anus- penile penetrative sexual offence with the boy. Whenever the boy cried out of fear, he was beaten by the accused. This had happened for one week.

2.1. The victim boy found out the name of the accused as Kumar @ Kumaresan while the accused was talking through cell phone with others. One day when the accused was talking through cell phone, the victim boy escaped from there and came to his house. After coming home, he told about the occurrence to his father and his father taken him to the police station, where he had already given a complaint that the boy was missing.

2.2. After the boy was enquired the charges of the case were altered to Sec.365, 343 IPC and Section 6 of Protection of Children from sexual offences Act. After the completion of the investigation, charge sheet was filed against the accused for the offence under Section 367, 343, 324, 377 IPC and Section 6 of Protection of Children from Sexual Offences Act. After taking cognizance of the offence and after giving due opportunity, charges were framed against the accused under Sections 367, 346, 324, 377 IPC and Section 6 of Protection of Children from Sexual Offences Act and he was questioned. The accused pleaded not guilty and claimed to be tried.

3. The brief evidence of the prosecution witnesses is as under:-

PW.1-Nagulesh who is the father of the victim boy and the complainant herein was examined as PW.1. His evidence would reveal that the victim was studying in 7th standard at the time of occurrence and he had some psychiatric issues; so he was in the habit of going to his friend’s house on his own, stay there for a few days and then come back. On 17.11.2016, the victim boy told his parents that he would go to his grandmother’s(PW.1's mother) house. The next day morning PW.1's mother sent the victim boy to school by bus. Since the boy did not reach back home from school and after searching him at the houses of his friends, PW.1 gave the complaint (Ex.P.1) on 24.11.2016. The victim boy returned home after a week. When PW.1 enquired him, he told that when he was standing in the Erode Bus Stand, a person came and told him that he would take him to his parents’place in bike and so he went along with him. But the said person instead of taking him to his house took a different route and went to a house at “Otta methai”; he confined the victim boy in the said house for a week and tortured him by committing different kinds of penetrative sexual assault on him; one day when the accused was speaking with his cell phone, the victim boy managed to escape from him. Knowing the occurrence from the victim boy, his father