U. S. TRIPATHI, J. ( 1 ) THIS criminal appeal has been preferred against the judgment and order dated 1-5-2000, passed by Sri Brahm Singh, learned Sessions Judge, Kushinagar at Padrauna in Session Trial No. 96 of 1998, convicting the appellant under Section 376, IPC and sentencing him to three years rigorous imprisonment over and above incarcertaion of two years or so already undergone by him. ( 2 ) THE prosecution story, briefly stated, was that on 16-9-98 at about 10. 00 a. m. Km. Sushila, PW2, aged about ten years, sister of the complainant Bahoran Pal, P. W. 1 was watching her maize crop. Appellant Amerika called her for lifting bundle of maize crop. She went there and observing the bundle of crop showed her inability to lift it. Thereafter the appellant took her inside a sugarcane field, where he committed rape on her. She raised alarm and on her alarm her brother Bahoran Pal, PW1 and uncle Vishwa Nath came there. Observing them the appellant ran away leaving the prosecutrix on the spot. Her vagina was bleeding and blood had also fallen on her clothes and on the spot. Bahoran Pal PW1 took the prosecutrix to his house and thereafter went to police station and lodged a written report, on the basis of which a case was registered under Section 376, IPC against the appellant. The prosecutrix was sent to Female Hospital, Gorakhpur, where she was medically examined at 12. 00 in the night by Dr. Raksha Rani Tiwari, P. W. 3 who found that there was second degree perineal tear. Hymen torn, fresh bleeding from margins seen. Central perineal tear skin and muscle deep bleeding 3 cm lacerated wound found. Margin irregular. As per vaginal examination she found second degree perineal tear Hymen torn Vagina admitted one finger with difficulty. Bleeding present. Vagina full of clots. The Doctor prepared medical report Ext. 5. X-ray examination of the prosecutrix was also done and according to the X-ray examination report her age was found about 10-12 years. ( 3 ) INVESTIGATION of the case was taken by SI Sri S. P. Singh and thereafter by Virendra Vikram Azad who after investigation submitted a charge sheet against the appellant. In the trial the appellant pleaded not guilty and contended that he was falsely implicated due to election rivalry between his father and Bahoran Pal. ( 3 ) INVESTIGATION of the case was taken by SI Sri S. P. Singh and thereafter by Virendra Vikram Azad who after investigation submitted a charge sheet against the appellant. In the trial the appellant pleaded not guilty and contended that he was falsely implicated due to election rivalry between his father and Bahoran Pal. ( 4 ) THE prosecution in support of its case examined Bahoran Pal, PW1, Km. Sushila, P. W. 2, Dr. Raksha Rani Tiwari, P. W. 3, Dr. Smt. Asha Gupta, P. W. 4, Sri Virendra Vikram Azad, P. W. 5 and Constable Abhay Raj Singh, P. W. 6. ( 5 ) LEARNED Sessions Judge on considering the evidence of the prosecution held that the prosecution has successfully proved the guilt of the appellant for offence punishable under Section 376, IPC. with this finding he convicted the appellant under Section 376, IPC and sentenced him to three years R. I. over and above the period already undergone. ( 6 ) HEARD learned counsel for the appellant, learned A. G. A. and perused evidence on record. ( 7 ) THE appeal was not argued on merit. The only argument in this appeal raised by the learned counsel for the appellant was that the learned Sessions Judge has sentenced the appellant to three years RI, but added that the above sentence shall be over and above the period already undergone by the appellant in jail which was against the provisions of Section 428, Cr. P. C. He further argued that under Section 428, Cr. P. C. a prisoner had statutory right for remission of the sentence he had already undergone during investigation or trial. ( 8 ) HAVING considered the relevant provisions of law in this regard I find much force in the above contention. The operative portion of the judgment of the learned Sessions Judge reads as under :-"accused Amerika convicted under Section 376, IPC is sentenced to three years rigorous imprisonment over and above incarceration of two years, or so as already undergone by him. He is in judicial custody. Let him serve out the sentence awarded to him. "section 428, Cr. The operative portion of the judgment of the learned Sessions Judge reads as under :-"accused Amerika convicted under Section 376, IPC is sentenced to three years rigorous imprisonment over and above incarceration of two years, or so as already undergone by him. He is in judicial custody. Let him serve out the sentence awarded to him. "section 428, Cr. P. C. reads as below :-"when 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. " ( 9 ) THE above section clearly shows that the accused has a statutory right to set off period already undergone by him during the investigation, inquiry, or trial of the same case before the date of conviction. The above statutory right therefore, cannot be curtailed. ( 10 ) A Division Bench of the Bombay High Court in the case of Jeevan Singh Guru Bax Singh Rajmestry v. The State of Maharashtra, 1977 Cr LJ 1636 had observed that "the learned Trial Judge was clearly in error in adding direction to the operative part of his judgment that the sentence shall be exclusive of the period of detention. No Court seems to have such a right to impose such sentence. The sentence must be thought of independently on the basis of nature and the gravity of the offence. The concession which the accused person gets under Section 428, Cr. P. C. as a matter of right is a Legislatures fiat and that has nothing to do with the quantum of sentence which a Court is inclined to impose. " ( 11 ) IN this way imposing a condition by the Trial Court that the sentence of three years RI shall be over and above incarceration of two years already undergone by the appellant is denial of statutory right of the accused under Section 428, Cr. P. C. and against the mandate of law. " ( 11 ) IN this way imposing a condition by the Trial Court that the sentence of three years RI shall be over and above incarceration of two years already undergone by the appellant is denial of statutory right of the accused under Section 428, Cr. P. C. and against the mandate of law. Thus, the above direction was beyond the jurisdiction of the Sessions Judge as he cannot curtail the statutory right of the accused to set off the period undergone during investigation, inquiry, or trial in the substantive sentence. Therefore, the above condition laid down by the Sessions Judge is liable to be quashed. ( 12 ) NO other point was pressed by the learned counsel for the appellant. ( 13 ) ACCORDINGLY the appeal is partly allowed and the direction of the learned Sessions Judge that the substantive sentence of three years R. I. shall be over and above the incarceration of two years already undergone is quashed and it is made clear that the sentence awarded by the Trial Court in this case was three years RI only and period of detention undergone by the accused shall be given credit to from the substantive sentence and the jail authorities are directed to give the accused the credit of his period ofdetention under Section 428, Cr. P. C. on the footing that only sentence in the case is three years RI. ( 14 ) THE office is directed to send a copy of this order to the Sessions Judge, Kushi Nagar (Padrauna) and Superintendent District Jail Deoria, within two weeks for compliance. Appeal partly allowed. .