[Cites 11, Cited by 0]

Karnataka High Court

Sir Shakthivelu vs The State Of Karnataka on 22 January, 2026

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                                                       NC: 2026:KHC:3816
                                                   CRL.A No. 863 of 2018


              HC-KAR



                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                     DATED THIS THE 22ND DAY OF JANUARY, 2026
                                        BEFORE
                       THE HON'BLE MR. JUSTICE G BASAVARAJA
                        CRIMINAL APPEAL NO.863 OF 2018 (C)
              BETWEEN:
                    SIR SHAKTHIVELU
                    S/O MADESH
                    AGED ABOUT 37 YEARS
                    R/AT NO.110, 4TH CROSS
                    GOKUL, MATHIKERE,
                    YESHWANTHAPURA
                    BENGALURU 560054
                                                            ...APPELLANT
              (BY SRI. K MURTHY.,ADVOCATE)
              AND:
              1.    THE STATE OF KARNATAKA
                    BY SRIRAMPURA POLICE
                    BENGALURU CITY 560 021
                    REP. BY
                    STATE PUBLIC PROSECUTOR
                    HIGH COURT BUILDINGS
                    AMBEDKAR VEEDHI
                    BENGALURU 560 001
Digitally
signed by B   2.    SMT.VALLI
LAVANYA             W/O.PERUMAL
Location:           AGED ABOUT 37 YEARS
HIGH                R/AT NO.104, 3RD CROSS
COURT OF
KARNATAKA           BHASYAM NAGAR
                    SRIRAMPURAM
                    BENGALURU - 560 021
                                                      ...RESPONDENTS
              (BY SRI.M.DIWAKAR MADDAR., HCGP FOR R-1;
              NOTICE SERVED TO R-2 & UNREPRESENTED)
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                                         NC: 2026:KHC:3816
                                     CRL.A No. 863 of 2018


HC-KAR



     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.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA


                      ORAL JUDGMENT

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

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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

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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

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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

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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.

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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,

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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.


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  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 &

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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

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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.