Ujjal Bhuyan, J.

1. This appeal has been preferred by the two accused appellants against the judgment and order dated 27.04.2004 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 31 (DH)/2002 convicting them u/s 376(2)(g) and 448 of the Indian Penal Code (IPC) and sentencing each of them to suffer rigorous imprisonment (RI) for 10 years and to pay fine of Rs. 10,000/-, in default, further R1 for 6(six) months each for the first offence and to suffer R1 for 6(six) months each for the second offence, both sentences to run concurrently. The facts of the case may be briefly noted.

2. One Shri Dharani Deka lodged a first information before the Officer-in-Charge, Dhemaji Police Station on 03.02.2001 alleging that at around 12 noon of that day while his sister Smt. Beauty Deka was alone in his house, two youths entered into his house and committed rape on her. The said information was treated as FIR and on the basis of the same, Dhemaji P.S. Case No. 10/2001 under Section 448/376/34 IPC was registered. In the course of the investigation, the police arrested some persons including the two accused. The victim identified both the accused in the test identification parade (TIP), which was conducted in the Dhemaji district jail. On completion of the investigation, the police submitted charge-sheet against both the accused persons under Section 448/376(2)(g)/34 IPC. Being exclusively triable by a Court of Session, the case was thereafter committed to the Court of the learned Sessions Judge, Dhemaji, whereupon it was registered as Sessions Case No. 31(DH)/2002.

3. A prima facie case having been found against the two accused, the learned trial Court framed charge against them under the aforesaid sections, to which they pleaded not guilty and claimed to be tried. In the course of the trial, the prosecution examined as many as 12 witnesses. The defence side also examined 5 witnesses. Their plea was that of total denial. On perusal of the evidence adduced and after hearing both the sides, the learned Sessions Judge convicted both the accused under the aforesaid two provisions and sentenced them as indicated above.

4. Heard Dr. Y. K. Phukan, learned Senior Counsel appearing for the appellants as amicus curiae, assisted by Ms. K. Baruah, learned counsel. Also heard Mr. K. Munir, learned Additional Public Prosecutor, Assam for the State.

5. Dr. Phukan, learned senior counsel fairly submits that from the evidence on record, it will be difficult to dislodge the finding of guilt recorded by the learned Court below. He, however, contends that the learned Court below went wrong in treating the offence as a case of gang rape which led to the imposition of the minimum sentence of 10 years. According to him, the appellants are in jail since 27-04-2004 and during the investigation stage also, they were in custody for 23 days. He, therefore, submits that the sentence should be reduced to the period already undergone and the appellants be directed to be released accordingly.

6. Mr. Munir, the learned Additional Public Prosecutor on the other hand submits that there is no infirmity in the findings given by the learned Sessions Judge, who rightly convicted the appellants under Section 376(2)(g) as well as under Section 448 IPC. In so far the sentence is concerned, he submits that even in a case of gang rape, as per the first proviso to sub-section (2) of section 376 IPC, the Court has the discretion to impose a lesser sentence but the same must be for adequate and special reasons.

7. In view of the submissions made by the learned counsels, the scope of this appeal has considerably narrowed down. Since the conviction and sentence under Section 448 IPC has not been questioned, the same has not been gone into by the Court. The moot question which now confronts the Court is whether it was a case of rape or gang rape and whether the sentence imposed should be reduced to the period undergone. To answer this question, a brief survey of the relevant