The admissibility of dying declarations and the application of the principle of res gestae were central to the court's decision in establishing the appellant's guilt for the murder.

SANJIV KHANNA, J.

1. Shabbir @ Neha impugns his conviction under Section 302 of the Indian Penal Code, 1860 („IPC?, for short) for murder of Atiq, vide judgment dated 19th February, 2009. By order of sentence dated 21st February, 2009 the appellant has been sentenced to Rigorous Imprisonment for life, to pay fine of Rs.5,000/-and, in default of payment of fine, to undergo further Simple Imprisonment for six months.

2. The case of the prosecution is that on the night intervening 26/27th April, 2004, the deceased Atiq and Babbu at about 10.30 PM had gone for a walk and had met two eunuchs at the gate of Woodland Park. Atiq went inside the park with the smaller eunuch and the taller eunuch followed them. Thereafter there was a quarrel. Babbu saw the quarrel and called others. Atiq was stabbed. The two eunuchs were apprehended by the public and Atiq was taken to the hospital where he was declared brought dead. The names of the said two eunuchs were disclosed as Shabbir @ Neha, the appellant who has been convicted and Om Prakash @ Helan who has been acquitted.

3. Death of Atiq, by way of injury caused due to a sharp weapon like knife, stands proved and established by the MLC of Deen Dayal Upadhaya Hospital, Harinagar (Ex. BW13/A). As per the MLC, Atiq was brought to the casualty of the said hospital at 1.20 AM on 27th April, 2004. He was unconscious and not responding. His pulse and blood pressure were not palpable and recordable. He was declared brought dead. The MLC records CIW present over abdomen. The body was packed and sent to the mortuary for post-mortem. The post mortem report of Atiq Ex. PW13/B records that the deceased had one stab wound over mid part of left hypochondrium region just below last rib. It measured 1.8 cm x 1 cm and deep to peritoneal (sic. peritoneum). The edges were regular. The cause of death was due to hemorrhagic shock consequent upon rupture of spleen and abdomen followed by stab injury inflicted by sharp edged weapon (knife). Thus, the homicidal death of Atiq is established and proved by the said documents i.e. MLC and post-mortem report, PW13/A and PW13/B respectively.

4. The next question relates to involvement and whether the appellant had committed the said murder and had caused the stab injury. Babbu (PW7), in his testimony in court, had stated that he and Atiq had gone for a walk after meal at about 10.30 PM. Two eunuchs, in female clothes, were standing near the gate of Woodland Park. Atiq went to them stating „let us have fun?. The two eunuchs demanded Rs.100/-but the amount was finally settled at Rs.80/-. The taller eunuch proposed that Atiq should take the shorter eunuch. Atiq and the shorter eunuch went inside the park. The taller eunuch followed them. PW7 remained outside the gate and did not go inside. Quarrel took place between Atiq and the eunuchs and they started grappling with each other. The shorter eunuch ran towards PW7, on which the said witness ran away and met Feroz Ahmed (PW2), Shahid (PW6) and Anis (PW4) at some distance. He told them about the quarrel. PW7 Babbu went to call other colleagues and when he returned, he saw that crowd had gathered at the gate of the park. The eunuchs had been apprehended by the public. Atiq had been stabbed and was taken to the hospital where he died. PW7 Babbu recognized the two eunuchs as Shabbir and Om Prakash. Shabbir being the present appellant and the taller eunuch.

1. 5. PW-2 – Firoz Ahmed in his statement has stated that on 26th April, 2004, at about

10.30 PM, he along with Anis and Shahid were walking towards Woodland Park and they reached near taxi stand, when Babbu came running to them. Babbu informed them that some persons were assaulting Atiq in Woodland Park, and on their way there, they stumbled across a tall person near the gate of Woodland Park. The said tall person was identified by the said witness as Shabbir. There were blood stains on his clothes. They could hear faint sounds of groaning coming from Atiq. PW-2 Feroz