Bhandari, J. - (1.) THE Sessions Judge of Ganganagar by his order dated the 16th of October, 1959, has referred the appeal filed by Gurdip Singh and Hardip Singh in his court against the judgment of the Assistant Sessions Judge, Ganganagar dated the 29th September, 1959, for decision. This has been registered as Cr. Reference No. 310 of 1959. Both the accused have also filed a revision application in this Court which has been registered as Cr. Revision No. 368 of 1959. THE Assistant Sessions Judge, Ganga Nagar has convicted both the accused under sec. 376 read with sec. 511 I. P. C. and each of them has been sentenced to three years' rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine, to undergo simple imprisonment for three months. He held that both the accused attempted rape on Mst. Harkaur, widow of Bagasingh on the 1st of May, 1959, at about 8 P. M. Mst. Harkaur resided at Chak 28-ML and she had gone to the town of Raisinghnagar from her village to make certain purchases on the date of the incident. She returned by the last bus which started from Raisinghnagar to Ganguwalan Jatan where she had to alight in order to go to her village. THE prosecution case is that after she had alighted at Ganguwalan Jatan, Jogendra Singh (P. W. 5) who resided in Chak 14-ML. , got her seated in the trolley of the tractor of the accused which was going towards village Ganguwalan Sikhan from where her village was at a short distance. This he did at the request of Mst. Harkaur so that she may not have to walk over all the distance from village Ganguwalan Jatan to her own village. This happened at about 7 or 7-30 P. M. THE two accused are brothers, Gurdip Singh being the elder, and Hardip Singh being the younger. When the tractor started, Hardip Singh was driving it and Gurdip Singh sat with the lady in the trolley. As soon as the tractor passed the school which was at a little distance from village Ganguwalan Jatan, Gurdip Singh started misbehaving with the lady and in spite of her protests made her naked after pulling out her salwar which he placed in the trolley. He committed rape upon her. THEreafter, the prosecution case is that Gurdip Singh went at the driving post to drive tractor and Hardip Singh come in the trolley and committed rape on her. When the tractor reached a place called Mogha of Ramawali, Swam Singh (P. W. 6) heard the noise in the trolley and he challenged the accused. THE accused slowed the tractor and pushed out the lady so that she fell on the ground. Her salwar and shoes remained in the trolley. THE accused then drove away the tractor. THE lady was naked at that time and Swam Singh gave her his chaddar to cover herself and she was taken to village Ganguwalan Sikhan where he resided. She remained there at his house the whole of the night and she was sent to her own village with his partner. THEre she informed his son Gurdayal Singh how she had been raped by the accused. He took her to Police Station Muklawa ( District Ganganagar) where first information report was lodged at 10. 00 A. M. on the 2nd of May, 1959. In the first information report, the whole of the incident narrated above has been detailed. THE lady was sent for medical examination to the hospital at Ganganagar where she was examined on the 3rd of May, 1959, at 9-00 A. M. She had the following injuries on her person : - (1) Abrasion l" x 1/4" on left shoulder ; (2) Abrasion l" x 1/8" over left buttock upper part ; (3) Scratch 1" long right buttock ; (4) Abrasion 1/2" x 1/2" right thigh middle and outer one-third ; (5) Scratch 1/2" long left thigh inner aspect upper one-third ; In the opinion of the doctor, all the injuries were simple and were of the duration between 24 to 48 hours. Her private parts, were examined. On internal examination, the doctor found genitals painful, labia majora and minor both congested and swollen. Swab was taken for spermatozoa from vagina but no spermatozoa were detected, but there were a fair number of R. B. C. and pus cells. THE Police arrested the accused on the 4th of May, 1959, at their village. On that very day, Prakash Singh (P. W. 8), Head Constable of Muklawa Police Station recovered at the instance of Gurdip Singh one salwar and one pair of shoes from the bushes standing at the boundary of Square No. 51 in village 48 R. B. which belonged to Pala Singh. THE truck with the trolley was also seized by the Police on the 4th of May, 1959.
(2.) THE accused were challaned before the First Class Magistrate, Raisinghnagar. THE learned Magistrate recorded the statement of both the accused. Hardip Singh refused to reply to any of the question put by the Magistrate and so did Gurdip Singh. Gurdip Singh, however, stated that the witnesses of the prosecution had stated against him on account of party feelings. THEy were committed to stand their trial before {he Sessions Judge, Ganganagar. THE learned Assistant Sessions Judge, Ganganagar believed the prosecution evidence, but held that in view of the medical report, it would be safe to convict the accused only for the offence of attempt to commit rape. He, therefore, convicted the accused under sec. 376/511 I. P. C. and sentenced each of them as aforesaid. The accused went in appeal to the court of the Sessions Judge, Ganganagar. The learned Sessions Judge rejected the various arguments adduced on behalf of the accused for their acquittal and held that the accused committed rape on Mst. Harkaur one after the other. He held that the case against both the accused under sec. 376 I. P. C. was not at all doubtful and that the offence was brought home to the accused to the hilt. The learned Sessions Judge was further of the opinion that the learned Asstt. Sessions Judge had not expressly acquitted the accused under sec. 376 I. P. C. He took the view that he had the power to alter the finding of the conviction of the accused under sec. 376/5111 I. P. C. to one under sec. 376 I. P. C. by virtue of sec. 423 (l) (b) Cr P. C. However, he took the view that the accused deserved a severer sentence and has recommended that each of the accused should be sentenced to five years' rigorous imprisonment and a fine of Rs. 100/ -. He thought it necessary to* refer the whole of the case to this Court on account of the fact that he had made a recommendation for enhancement of sentence and also because of the importance of the point whether he could convict the accused under sec. 376 I. P. C. or not. He did not pass any order convicting the accused under sec. 376 I. P. C. or dismissing the appeal. This is how the reference has come before us. The learned Assistant Sessions Judge in his explanation under Rule 80 of the General Rules (Criminal) has adduced reasons for taking the view that the principal offence of rape had not been established against the accused and he was right in convicting and sentencing the accused under sec. 376/511 I. P. C. The accused have also filed a revision application, praying for their acquittal. The accused were served with a notice to show cause why their sentence should not be enhanced. During the course of the arguments it was brought to our notice that the learned Sessions Judge had no power to refer the appeal to this Court for decision. Obviously, this is not a case falling under sec. 432 Cr. P. C. which provides for making a reference to High Court when a question has arisen before a court subordinate to the High Court regarding the validity of any Act, Ordinance or Regulation, or any provision contained in Act, Ordinance or Regulation. The reference is under sec 438 Cr. P. C. , that is, it is a report made to the High Court under sec. 438 Cr. P. C. So far as the recom-mendation for enhancement of sentence is concerned, this report is proper, but the learned Sessions Judge could not send the whole appeal for decision by this Court simply because an important point of law was involved. He had himself the jurisdiction to decide the appeal and if in deciding that appeal any important point of law cropped up, it was his duty to give his own decision on that point of law to the best of his ability and dispose of the appeal. Apart from sec. 432 Cr. P. C. , there is no provision in the Criminal Procedure Code under which a subordinate court is empowered to make any reference to the High Court simply on the ground that an intricate point of law has arisen before it for decision. Reference in this connection may be made to The State vs. Kesarimal (1), Cheranjilal vs. Jabarchand (2), Birju Singh Dhima Singh vs. The State (3), and In re Palani Gowden (4 ). Thus it was the duty of the learned Sessions Judge to decide the appeal by himself. He should have made up his mind finally whether he could or could not convict the accused under sec. 376 I. P. C. by virtue of sec. 423 (l) (b) Cr. P. C. After finally disposing of the appeal if he thought it necessary that the sentence awarded by the trial court was inadequate, he could have made a report for enhancement of sentence to this Court. He could not do so without disposing of the appeal. In this view of the matter, the appeal is to be sent back for decision to him. Learned counsel for the accused has argued that the learned Sessions Judge, Ganganagar has expressed his opinion on practically all points in his judgment and if the appeal is to be remanded, it should be sent to some other Sessions Judge. He is tight in his contention and we think it would be proper to send the appeal for decision to the Sessions Judge, Jodhpur. Cr. Reference No. 310 of 1959 - Gurdip Singh vs. The State and Cr. Revision No. 368 of 1959 - Harelip Singh & Gurdipsingh vs. The State, are dismissed, and Cr. Appeal No. 178 of 1959 - Gurdip Singh & Hardip Singh vs. State is sent to the Sessions Judge, Jodhpur for decision in accordance with law. .;