JUDGMENT :

S. Vaidyanathan, G. Jayachandran, JJ.

(Prayer: Referred Trial under Section 366 of the Code of Criminal Procedure on the judgment of the learned Sessions Judge, (Mahila Court), Pudukkottai, in Spl.S.C.No.6 of 2020, dated 18.02.2021.

Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure against the judgment of the learned Sessions Judge, (Mahila Court), Pudukkottai, in Spl.S.C.No.6 of 2020, dated 18.02.2021.)

1. The reference in R.T.(MD) No.3 of 2021, is made by the learned Sessions Judge, (Mahila Court), Pudukkottai, under Section 366 Cr.P.C., seeking confirmation of capital punishment imposed on the accused. Crl.A.(MD)No.300 of 2021, is filed by the accused challenging the conviction and sentence imposed on him and both the matters are heard together and disposed of by this common Judgment.

2. Danish Patel, aged about 32 years (2019), S/o.Amrendra Patel, who is the sole accused in Spl S.C.No.6 of 2020, on the file of Mahila Court at Pudukkottai, was found guilty of offences under Sections 363 and 302 of I.P.C. and Sections 5(i) r/w 6(1), 5(j) (iv) r/w 6(1) and 5(k) r/w 6(1) of the Protection of Children from Sexual Offences Act [hereinafter referred to as ''the POCSO Act''], vide judgement dated 18.02.2021 by the trial Court.

3. He was sentenced to undergo life imprisonment for the offence under Section 302 of I.P.C., 7 years rigorous imprisonment for the offence under Section 363 IPC and death sentence for the offences under Sections 5(i) r/w 6(1), 5(k) r/w 6(1) and 5(j) (iv) r/w 6(1) of the POCSO Act, subject to confirmation by this Court in terms of Section 366 Cr.P.C.

Accordingly, the Referred Trial(MD)No.3 of 2021 seeking confirmation of the death sentence is before us along with the appeal filed by the sole accused being aggrieved of the conviction and sentence.

The case of the prosecution:-

4. On 18.12.2019 the de-facto complainant Pugalenthi (PW-1) came to Keeranur All Women Police Station along with the accused Danish Patel and a two wheeler bearing Registration No.TN-55-AV-6568 and gave a complaint (Ex.P-1) alleging that, while he was standing at the bus stop of the Odukur Bazaar, at about 2.00 p.m. he saw the accused taking the mentally challenged victim boy aged about 17 years towards Kottapalam Road in the above mentioned two wheeler. Thereafter, he went to his home to have lunch. At about 2.30 p.m. he received a call from Chitra (PW-3), wife of Murugesan, that somebody doing something to the victim boy near the bush. Hearing this, P.W.1 along with the neighboring residents Selvaraj and Manikandan rushed to the place where Chitra was gracing her cattle. On the information of Chitra, they went to the graveyard area and inside Kaliyaperumal Dhoor Dal field, they saw the victim boy lying face down and the accused near the victim boy. On seeing them, the accused tried to flee. They caught hold of the accused. On examining the victim, they found injuries all over his body and he was not conscious. After sometime, the boy regained conscious and started weeping showing his bleeding anus and the accused. The injured boy was taken to the hospital. They brought the accused and his two wheeler to the Police Station for action against the accused person, who had committed penetrative sexual assault on a mentally challenged minor boy.

5. Smt.Sumaiyabanu, (P.W.15) Sub-Inspector of Police attached to All Women Police Station, Keeranur, received the complaint and registered F.I.R. (Ex.P.20) in Crime No.11 of 2019 under Section 363 and 5(k) r/w 6 of the POCSO Act, 2012 on 18.12.2019 at 18.00 hours. The investigation of the case was taken up by Smt.Kavitha, Inspector of Police (P.W.16). The confession statement of the accused was recorded. His clothe were seized under Mahazar. She arrested the accused and produced him before the learned Judicial Magistrate for remand.

6. In the hospital, the Investigation Of