This appeal is filed by the appellants/accused Nos.1 to 3

under Section 374 (2) of Cr.P.C for setting aside the order of

conviction and sentence passed by the Additional Sessions

Judge, Chikmagalur in S.C.No.86/2011 dated 27.8.2012 for

having found guilty and convicted and sentenced to undergo

imprisonment for 5 years for the offence punishable under

Section 306 read with section 34 of IPC and to pay fine of

Rs.25,000/-

each

and

in

default

to

undergo

simple

- 3 -

imprisonment for a period of 2 months. And also, sentenced to

undergo simple imprisonment for a period of 2 years for the

offence punishable under Sections 354 and 506 read with 34 of

IPC.

2. Heard the arguments of learned counsel for appellants

and learned HCGP.

3. For the sake of convenience, the rank of the parties

before the trial court is retained.

4. The case of the prosecution is that on the complaint of

PW1/Kumari H.C.Archana and the deceased Ashwini used to

stay in a house belonging to PW2/Smt.Asha, their mother and

it is submitted that their father had deserted her mother.

PW2/Smt.Asha, mother was working in a school hostel as a

cook at Balehonnur, Chikkamagalur and on 5.3.2011 the

deceased came from the college who was studying in B.A., 1st

year. Later at 5 p.m., the PW1, who is the sister of the

deceased asked her to come along with her for fetching the

water, but the deceased asked her to go ahead and she will

come join her later but when the PW1 came back to the house

- 4 -

at 5.15 p.m. the deceased was found hanging and had died in

her house. Initially a UDR was registered on the information

given by the PW1 and later after 11th day ceremony

PW2/Mother of the deceased filed a complaint to the police

station, stating that the PW1 had informed her that the

deceased had told her, that on 28.02.2011 at 7.30 pm the

accused Nos.3/Shaheena who said to be neighbour took the

deceased to the house of accused No.1-Abdul Razaq at

Devarmane and stayed. During the night the accused had

pressurised her for having sexual intercourse with accused

Nos.1 and 2 but she has refused the same. Later, it is

submitted that the accused Nos.1 and 2 said to have

committed sexual assault on the victim girl and in the morning

she came back and stayed and the accused also said to have

threatened not to disclose as they had recorded the sexual

incident by video. Due to fear she has not disclosed the same

to anybody and after receipt of the complaint, the police

registered the FIR for the offence punishable under Sections

376, 306, 506, 304 read with 34 of IPC and the accused were

arrested, charge sheet filed and the case was committed to the

court of session. Later charges were framed for the above said

- 5 -

offences. The accused pleased not guilty and claimed to be

tried. In order to prove its case, the prosecution examined 22

witnesses from PW1 to PW22 and got marked 30 documents

and 12 material objects. The statement of the accused under

Section 313 Cr.P.C was recorded, the case of the accused was

one of the total denial but not chosen to enter into defense.

After hearing the arguments, the trial court passed the

judgment by acquitting the accused Nos.1 to 3 for the offence

punishable under Section 376 of IPC but found guilty for the

offence punishable under Section 354, 506 and 306 read with

34 of IPC and sentenced to undergo imprisonment as stated

above.

5. During the pendency of the appeal, the accused No.2

died and the accused filed separate appeal. Learned counsel

for appellants has contended the PW1 being sister of the

deceased stayed together and she has given first information

for registering UDR as per Ex.P1, she has never disclosed about

the dying oral declaration which is said to be made by the

deceased to the PW1 on 5.3.2011 at 5 p.m, but had only stated

that within span of 5 to 15 minutes she has committed suicide.

At first point of time PW1 has not disclosed anything in the UDR

- 6 -

or made any attempt to disclose to the mother o