Conviction requires more than motive; evidence must establish guilt beyond reasonable doubt.

JUDGMENT

Koshy, J.

This appeal is filed against acquittal of the respondent, who was charge sheeted for offences under Sections 302 IPC and Section 3 read with 25(1-B)(a), Section 5 read with 27(1) of the Arms Act . The allegation of the prosecution was that the accused and the victim together conducted ginger cultivation, but soon they fell apart over disputes in sharing profits. Therefore, on 30.1.1996, at about 8 PM, while the victim was returning to his house through the pathway in a rubber plantation of his brother, the accused, waiting hidden under a closeby bush, shot him with a fire arm, MO10. The accused fell down. Thereafter the accused inflicted stab injuries by MO9. PW1, the wife of the victim, attracted by the unusual barking and conduct of her dog, rushed out to the pathway, and enroute she saw the accused running away. Reaching the spot of occurrence she found her husband lying soaked in blood. The victim stated to her that he was shot and stabbed by the accused. Her alarm brought PW2 and others to the scene and soon the victim was rushed to hospital where he was declared dead. Elder brother of the victim (CW1) gave FI statement. He accompanied during the hospital. The prosecution relied on the following factors for acquitting the accused for the guilt: (1) Motive; (2) PW1 wife has seen the accused running away from the spot; (3) Dying declaration heard by PW1; (4) Extra judicial confession said to have been given to PW5; and (5) Recovery of the gun as well as the knife on the basis of the disclosed statement of the accused. The trial court found that the evidence shows that there was motive. The accused had long-standing enmity with the victim consequent to disputes arising out of sharing of profits over their joint cultivation of ginger, which is sought to be established by various documents. Even though efforts were made by mediators, the matter was not settled. It is also come out in evidence that he filed Exhibit P8 complaint before the police and thereafter the police investigated and the matter was settled. In any event, there were disputes between them and there may be motive. That fact was accepted by the trial court. The trial court found that mere existence of motive is not sufficient to hold that the accused was the murderer, in the absence of any other circumstances.

2. CW1, who gave the FI statement was not examined for the reason that he was a cancer patient. But no medical evidence was adduced to show that he was unable to be examined in court due to cancer. FI statement, though very important in a criminal case as a first statement regarding the incident, is not a substantial piece of evidence, unless it is proved. PW1 wife of the deceased deposed in terms of the prosecution case. According to her, in view of the barking of the dog, she rushed out to the pathway and found her husband lying and accused running away and she cried aloud and with the help of others, the deceased was taken to the hospital. The trial Judge found that probably at that time he must have been dead and since there was dispute between accused and deceased, she must have assumed that the accused caused the death and there is no likelihood that she actually seen the accused running away. PW2, who is son of the accused, came hearing the cry of PW1. The trial court found as follows: “PW2 would state he too heard the gun shot and the alarm raised by the victim that he was murdered. Soon he heard the cries of PW1 calling his name. He rushed to the rubber plantation and then saw the victim lying injured in the pathway with PW1 closeby weeping aloud. PW1 then told him that the victim, his uncle, had passed away. She directed him to inform her son-in-law and others in the junction and to fetch a jeep. PW1 also admitted that she had stated to PW2 as above. Normally, whatever be the precarious condition of the victim if any semblance of life remained with him PW1 would not have stated that he was already gone. By the time she reached