RABBU @ SARVESH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Heard Shri N. Hariharan, learned Senior Counsel for the appellant and Shri Bhupendra Pratap Singh, learned Deputy Advocate General appearing on behalf of the State of Madhya Pradesh.

(2.) These appeals arise out of the judgment and order dtd. 17/1/2019 passed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur, dismissing the appeal of the appellant and confirming the judgment and order dtd. 20/8/2018 passed by the First Additional Sessions Judge, Bina, District Sagar (hereinafter referred to as the "Trial Judge"), thereby convicting the appellant for offences punishable under Ss. 450, 376(2)(i), 376D, 376A and 302 read with 34 of the Indian Penal Code, 1860 (for short, 'IPC') and Sec. 5(g)/6 of the Protection of Children from Sexual Offenses Act, 2012 (for short, 'POCSO') awarding death penalty under Ss. 376A and 302 IPC and life imprisonment under Sec. 376D of the IPC and rigorous imprisonment for 10 years under Sec. 450 of the IPC.

(3.) Shri Hariharan submits that the present case basically rests on the three dying declarations and the DNA report. He submits that the dying declarations are inconsistent. He further submits that as the time progressed there were improvements in the dying declaration. He therefore submits that in the present case the truthfulness of the dying declarations itself is doubtful and therefore the conviction could not be based on the said dying declarations. He further submits that the DNA report also points out towards the presence of a third person. In such an eventuality, the learned Senior Counsel submits that the order of conviction could not be sustained.