(Prayer: This Crl.a. is filed u/s.374(2) Cr.p.c praying to set aside the judgment and order dated 23.04.2018 and sentence dated 26.04.2018 passed by the liv additional city civil and sessions judge, (cch-55), sitting at child friendly court, Bengaluru urban district in spl.c.c.no.389/2017 - convicting the appellant/accused for the offence p/u/s 6 of pocso act and sec. 376(2)(f) and (i) of ipc and sec. 10 of POCSO Act and Section 354(a)(2) of IPC and section 506 of IPC.)

Oral Judgment:

1. The appellant has preferred this appeal against a judgment of conviction and order on sentence passed by the LIV Addl. City Civil & Sessions Judge, Sitting in Child Friendly Court, Bengaluru Urban District in Spl. CC No. 389 for 2017.

2. The parties are referred to as per their ranking before the trial Court.

3. The brief facts leading to this appeal are that the accused being the step father of the victim girls aged 12 years and 11 years respectively, two months prior to 3.5.2017 at about 4 P.M., when CW2/victim girl came out of the school, the accused told her that her mother was in the house and asked him to bring her (CW2/victim girl) and by saying so, he took CW2/victim girl in his two wheeler to her house and when CW2/victim girl entered the house and asked where her mother was, the accused told CW2/victim girl that, her mother has gone to sell ambli [eatables] and took CW2/victim girl to a room and made her to forcibly remove her uniform and when CW2/victim girl tried to shout, the accused gagged her mouth by clothes and tied her hands and committed rape on her, knowing that she was a small child and his step daughter. Again one month prior to 3.5.2017 when CW1/complainant fell ill and she was sleeping, the accused gave her tablets and when CW1 was sleeping, and in the midnight, CW2/victim girl screamed loudly; CW3/victim girl woke up and tried to wake up CW1, but, CW1 did not wake up, and saw that, the accused removed his pant and slept on CW2/victim girl and by seeing it, CW3/victim girl got frightened and slept; and that the accused committed aggravated penetrative sexual assault/rape on CW2/victim girl, knowingly that she was minor who was aged 12 years and his step-daughter and that due to fear of killing her mother-CW1 and sister-CW2, she [CW2/victim girl] did not disclose the incident to anybody; and that after 5 to 6 days of the above stated incident, the accused took CW3/victim girl to the terrace of the house and scratched her left breast with his nails and outraged her modesty, and committed aggravated sexual assault on CW3/victim girl who was a child of 11 years and his step-daughter and the accused with a criminal intimidation, threatened CW2/victim girl of killing CW1 and CW3/victim girl, if she discloses the said incident to anybody and also threatened CW3/victim girl that, he would kill her mother-CW1 and her sister-CW2/victim girl, if she discloses the said act committed by him to anybody.

                  3.1     A case was registered on the basis of the complaint lodged by the complainant/mother of the victim girls. During the course of investigation, the accused was arrested on 3.5.2017 and since from then, the accused is in judicial custody.

                  3.2     After completion of investigation, the Investigating Officer has filed the charge sheet against the accused for the offences punishable under Sections 376, 354 and 506 of IPC and Sections 6, 8, 10 and 12 of POCSO Act, 2012.

                  3.3     On hearing, the trial Court framed the charges for the alleged commission of offences and same was read over and explained to the accused in the language known to him. The accused having understood the same, pleaded not guilty and claimed to be tried.

                  3.4     To prove the guilt of the accused, 16 witnesses were examined as PWs.1 to 16 and 19 documents were marked as Exhibit P1 to Exhibit P19 and four material objects were marked as Mos.1 to 4. After closure of prosecution evidence, statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused has totally denied the evidence of prosecution witnesses. However, he did not choose to lead any defence evidence on his behalf.

                  3.5     Having heard the arguments on both sides, the trial Court has convicted the accused for the offences punishable under Section 6 of POCSO Act, 2012 & Section 376(2)(f)(i) of IPC ; Section 10 of POCSO Act, 2012 & Section 354(A)(2) of IPC; and Section 506 IPC and the accused was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.2,500/- for the offence under Section 6 of POCSO Act, 2012 r/w Section 376(2)(f) and (i) of IPC; to undergo rigorous imprisonment for a period of 5 years and pay a fine of Rs.2,500/- for the offence under Section 10 of POCSO Act, 2012 and Section 354(A)(2) of IPC; and to undergo imprisonment for a period of 2 years and to pay a fine of Rs.1,500 for the offence under Section 506 IPC. All the sentences were directed to run concurrently.

                  3.6     Being aggrieved by the impugned judgment of conviction and order on sentence passed by the trial Court, the appellant has preferred this appeal.

4. The learned counsel for the appellant would submit that though the appellant has urged several grounds in the appeal against the impugned judgment of conviction and order and sentence, now the appellant will withdraw all the grounds except giving the benefit under Section 468 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS' for short) which corresponds to Section 428 of CrPC, which is not given by the trial Court.

5. In this regard, an application - I.A. No.2/2025 for amendment of prayer and for consideration of benefit under Section 468 BNSS (which corresponds to Section 428 of Cr.PC) came to be filed. In the application, it is stated that the appellant was in judicial custody as an under-trial prisoner from 03.05.2017 till the date of conviction. The trial Court, while imposing the sentence, has not granted statutory benefit under Section 468 of BNSS (which corresponds to Section 428 of CrPC), by which the period of detention undergone by the appellant during investigation and trial ought to have been set off against the term of imprisonment imposed. The appellant is not interested in pursuing the other grounds raised in the present appeal and seeks permission of this Court to withdraw all other prayers, except the limited prayer seeking set off of the under-trial period as mandated under Section 468 of BNSS. The provision of Section 468 BNSS (which corresponds to Section 428 of CrPC) is mandatory in nature, and the appellant is entitled to have the entire period of pre-trial and under-trial detention set off against the substantive sentence imposed. On all these grounds, sought for modification of the sentence passed by the trial Court. This application is supported with a memorandum of facts of Sri K. Murthy, advocate.

6. Having heard the arguments on both sides, the following points would arise for my consideration.

                  i)        Whether the application - I.A. No.2/2025 filed under Section 468 of BNNS (which corresponds to Section 428 of CrPC) deserves to be allowed ?

                  ii)       What order ?

7. My answers to the above points are as follows:-

                  (i)       Affirmative.

                  (ii)      As per the final order.

8. I have examined the materials placed before this Court. The appellant has preferred this appeal against the judgment of conviction and order on sentence passed by the trial Court in Spl. CC No. 389/2017. That in view of submission made by the learned counsel for the appellant, this Court has not discussed anything about the merits of the appeal, as the appellant has withdrawn all the grounds urged in the memorandum of appeal.

9. The trial Court has convicted the accused for the offences punishable under Section 6 of POCSO Act, 2012 & Section 376(2)(f)(i) of IPC; Section 10 of POCSO Act, 2012 & Section 354(A)(2) of IPC; and Section 506 of IPC. The trial court has passed the sentence as under:

                  "The accused by name Shakthivelu is sentenced to undergo Rigorous Imprisonment for a period of 10 Years and to pay a fine of Rs.2,500/-. In default of payment of fine amount of Rs.2,500/- the accused shall further undergo simple imprisonment for a term of 6 Months, for the offences punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376(2)(f) and (i) of IPC.

                  Further, the accused shall undergo Imprisonment for a period of 5 Years and to pay a fine of Rs.2,500/-. In default of payment of fine amount of Rs.2,500/- the accused shall further undergo simple imprisonment for a term of 6 Months, for the offence punishable under Sec.10 of POCSO Act, 2012, as it is higher in degree than that, of the offence punishable under Sec.354(A)(2) of IPC.

                  Further, the accused shall undergo imprisonment for a period of 2 Years and to pay a fine of Rs.1,500/-. In default of payment of fine amount of Rs.1,500/- the accused shall further undergo simple imprisonment for a term of 3 Months, for the offence punishable under Sec.506 of IPC.

                  All these sentences shall run concurrently."

10. That, it is necessary to mention here as to the provision of Section 428 of the Code of Criminal Procedure 1973, which reads as under:

                  "Section 428: Period of detention undergone by the accused to be set off against the sentence of imprisonment.

                  Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.

                  Provided that in cases referred to in Section 433-A, such period of detention shall be set off against the period of fourteen years referred to in that Section."

11. In the case on hand, the trial Court has not passed any order as to the set off against a term of imprisonment imposed on accused as required under Section 428 of CrPC. The trial Court has not assigned any reasons for non-compliance of Section 428 of Code of Criminal Procedure. The trial Court might have by mistake has not given set off under Section 428 of CrPC, which is mandatory in nature. Considering the provision of Section 428 of Code of Criminal Procedure and the averments made in the application, I am of the considered opinion that it is just and proper to allow this application. Accordingly, I answer point no. (i) in affirmative.

12. Point No.(ii): For the aforesaid reasons and discussion, I proceed to pass the following:

                  O R D E R

                  i) The application - I.A. No.2/2025 is allowed.

                  ii) Consequently, the judgment of conviction and order on sentence passed by the learned LIV Addl. City Civil & Sessions Judge (CCH-55), sitting in Child Friendly Court, Bengaluru Urban District, in a Spl. CC No. 389/2017, is confirmed.

                  iii) The impugned order on sentence is also confirmed except the benefit has to be given to the appellant/accused as required under Section 428 of CrPC. Accordingly, the accused/appellant is entitled to avail the benefit of Section 428 of Cr.PC.

                  iv) The concerned jail authorities are directed to set off the entire period of detention undergone by the appellant/accused as an under-trial prisoner prior to conviction against the term of imprisonment imposed by the trial Court.

                  Accordingly, the appeal is disposed of.

                  Registry is directed to communicate the same to the concerned jail authorities.