JUDGMENT David Annoussamy, J. : These two appeals are by the accused. The first appeal is by the second accused and the second appeal is by the first accused. 2. The case of the prosecution was briefly as follows: The deceased Ganesan is the brother-in-law of P.Ws.1 and 2 and the husband of P.W.3. They are the residents of Korattur at Gangaiammankoil Street. On 2.2.1983 at about 6.30 P.M., the deceased Ganesan was sitting and talking with his nephew, P.W.1 near Radha Rice Mill, Korattur. At that time, the first accused accompanied by the second accused accosted him. The first accused questioned Ganesan about his report to the police against him. Then all of them moved towards Metro Barber shop. The first accused all of a sudden caught hold of the neck of the deceased. The second accused instigated at that time the first accused to finish Ganesan. Immediately the first accused took out from his pocket a button knife and stabbed the deceased on the left buttock and left flank. The deceased moved a few yards and fell down. The accused ran away. 3. The injured Ganesan was taken to a private hospital and on the advice of the hospital authorities, he was then taken to the Kilpauk Medical College Hospital, where P.W.8 Casualty Medical Officer pronounced Ganesan dead. P.W.8 sent intimation of death to the Kilpauk Medical College Hospital Outpost Police Station and it was received by P.W.9 who in turn sent the intimation to the Ambattur Estate Police Station. P.W.1 went to Ambattur Estate Police Station at about 7.30 P.M., on the same day and gave an oral complaint disclosing in detail the course of events, Ex.P1. That complaint was reduced to writing by P.W.14. He registered a case in Crl.No.62 of 1983 under Sec.307, Indian Penal Code. At about 7.45 P.M., upon receiving the death intimation from the Outpost Police Station of Kilpauk Medical College Hospital, he altered the section of offence from Sec.307, I.P.C. to Sec.302, I.P.C. He sent express first information report to higher officials and to Court. 4. P.W.15 Inspector received the express first information report at 8 P.M., and took up investigation. He proceeded to the scene of occurrence and prepared the rough sketch. He recovered bloodstained earth M.O.8 and sample earth M.O.9 from the scene of occurrence under mahazar, Ex.18 attested by witnesses. He examined P.W.1 and others. 4. P.W.15 Inspector received the express first information report at 8 P.M., and took up investigation. He proceeded to the scene of occurrence and prepared the rough sketch. He recovered bloodstained earth M.O.8 and sample earth M.O.9 from the scene of occurrence under mahazar, Ex.18 attested by witnesses. He examined P.W.1 and others. At about 10.30 P.M., he proceeded to the Kilpauk Medical College Hospital and examined P.W.2. 5. Further investigation in this case was taken by P.W.16, Inspector of Police, Ambattur Estate. After perusing and scrutinizing the investigation so far recorded, he proceeded to the Kilpuak Medical College Hospital, at about 9 A.M. on the next day, that is to say, on 3.2.1983, he held inquest over the dead body of Ganesan, in the course of which he examined P.Ws.1 to 3 and others. He arranged for the dead body being taken for autopsy. The autopsy was conducted by P.W.12 on the same day at 12.30 P.M. The report of the autopsy is Ex.P8. 6. The first accused was arrested on 27.2.1983 at Korattur. He voluntarily gave a statement, the admissible portion of which is Ex.P2. In pursuance of that statement, M.O.1 knife used by the first accused was recovered. The second accused surrendered before Court on 20.2.1983. 7. P.W.16 on completion of the investigation filed the report under Sec.173, Crl.P.C. stating that an offence under Sec.302, I.P.C. and an offence under Sec.302 read with Sec.109, I.P.C, appeared to have been committed respectively by accused 1 and 2. 8. Upon committal of the case, the learned Sessions Judge of Chingleput framed charges accordingly. Upon the accused pleading not guilty, the prosecution produced evidence committing of 16 witnesses, 20 exhibits and 9 M.Os. When examined under Sec.313, Crl.P.C, both the accused denied any complicity with the acts imputed to them and did not produce any evidence. Upon the evidence produced by the prosecution and after hearing the arguments advanced on both sides, the Sessions Judge came to the conclusion that both the charges were proved and hence he convicted the accused accordingly and sentenced them to life imprisonment by judgment dated 3rd March, 1984. The present appeals are directed against those convictions and sentences. 9. Learned counsel for the first accused attempted first to say that the first accused was not at all connected with the case. The present appeals are directed against those convictions and sentences. 9. Learned counsel for the first accused attempted first to say that the first accused was not at all connected with the case. But after taking us through the entire evidence and after hearing the arguments of the learned Additional Public Prosecutor, he confined his argument to say that the evidence on record did not disclose an offence under Sec.302, I.P.C, but only an offence under Sec.304, I.P.C. The learned counsel for the second accused maintained that no offence has been made out as against the second accused. 10. Both the counsel and the Additional Public Prosecutor have taken us elaborately and exhaustively through the evidence on record. That evidence consists of the ocular testimony of P.Ws.1 and 2, both the brothers-in-law of the deceased Ganesan. Their evidence is cogent, convincing and concording and the same was not shatered by the searching cross-examination to which they were subjected. P. W.3 is the wife of the deceased who deposed about the previous enmity between the deceased and the accused on account of some police complaint which would have been filed by Ganesan against the accused, P.W.4 is the owner of the shop before which Ganesan fell down after sustaining the injury. P.W.5 is a private doctor who first saw Ganesan after he sustained injuries and who declined to treat him since he suspected foul-play and attempt to murder. P. W.6 is the auto driver who took Ganesan to the Kilpauk Medical College Hospital. P.W.8 is the doctor working in the Casualty Department on the day of occurrence and he examined Ganesan and found him dead. He sent the death intimation to the police. P.W.12 is the doctor who conducted postmortem upon the requisition given by police. He commenced autopsy on 3.2.1983 and found the following two external injuries apart from the two old injuries: 1. A transversely oblique stab wound with clean cut edges on the left second intercostal space along the anterior axillary line and extending laterally to it. It has measured 2.5 × 1.2 cm. The medial end is obtuse and lateral pointed. 2. Transversely oblique incised wound measuring 3.5 × 0.5 cm. and fascia deep on the crease of the left buttock in its middle part. The lateral end is tapering. It has measured 2.5 × 1.2 cm. The medial end is obtuse and lateral pointed. 2. Transversely oblique incised wound measuring 3.5 × 0.5 cm. and fascia deep on the crease of the left buttock in its middle part. The lateral end is tapering. On dis section of external wound No.1, he found the following injuries: It has cut the underlying muscles, pleura and entered into the left pleural cavity through the 3rd intercostal space in the anterior axillary line. It has caused corresponding through and through transversely oblique cut wounds-one on the lateral costal surface and the other on the media-stinal surface of the upper lobe of left lung just above the inter lobar fissure and entered into the left media stinal space. In the left mediastinal space it has caused a corresponding transversely oblique cut wounds in the left border and anterior to it of the pericardian sac, with corresponding transversely, oblique cut wound on the anterior surface of the left ventricle 3 cm. below antero ventricular groove and entered into the left ventricular cavity. The measurements of the above cut wounds in the respective organs were as follows: Lateral costal surface of upper, lobe of left lung 1.05 × 0.9 cm. Mediastinal surface of the upper lobe of left lung 1.3 × 0.9 c.m. Pericardial sac 1.8 × 0.5 cm. left ventricle 1.8 × 0.3 cm. The left lung was collapsed. The left pleural cavity contained 1200 ml. of fluid blood and large amount of clotted blood. The pericardial sac contained 100 ml. of fluid blood and few blood clots. The direction of the tract was obliquely downwards, forwards and to the right. The whole tract approximately measured 14 cm., in length. He deposed that the above injuries were antemortem injuries. There was no smell of alcohol and opined that the deceased would appear to have died of shock and haemorrhage due to external injury No.1 and the corresponding internal injuries. He deposed also that external injuries 1 and 2 could have been caused by a weapon like knife M.O.1, that external injury No.1 and the corresponding internal injuries were necessarily fatal and death would have occurred about 12 to 24 hours prior to post-mortem examination. 11. In addition, there is the evidence of the investigating agency which we have referred to at the beginning. 11. In addition, there is the evidence of the investigating agency which we have referred to at the beginning. This body of evidence is certainly sufficient, if believed, to hold that the first accused his caused the death of Ganesan and that the second accused has instigated him for the same purpose. 12. Learned counsel for the second accused stated that there was no motive for the second accused to instigate the first accused to murder the deceased and that the evidence tendered against him should not be accepted. This contention is not acceptable. P.Ws.1 and 2, who have been along with the deceased Ganesan before accused 1 and 2 accosted him and who were with him (Ganesan) till he fell down have un equivocally stated that the first accused came accompanied by the second accused and accosted Ganesan. After the first accused has first caught hold of the neck of Ganesan, when P.Ws.1 and 2 questioned the first accused about his men handling Ganesan, the second accused intervened and exhorted the first accused to finish Ganesan and said the following words: The witnesses -were only 8 feet away when these words were uttered and they were very specific in respect of they deposition in this regard. After perusing carefully their evidence, we do not find any reason to disbelieve it. It is seen that after accosting and questioning Ganesan, the first accused resorted only to catch hold of Ganesan by neck and that it is upon the words uttered by the second accused, that he took his button knife from his pocket and inflicted two cuts, one of which fell on the left flank. Therefore, we find unacceptable the plea of the second accused that he is not in any manner involved in the case and we are in agreement with the trial Court in respect of the finding that he is also guilty. 13. Therefore, we find unacceptable the plea of the second accused that he is not in any manner involved in the case and we are in agreement with the trial Court in respect of the finding that he is also guilty. 13. We shall now deal with the contentions of both the counsel, that the motive and genesis are not clear and that therefore the offences imputed to them could not amount to offences punishable under Sec.302, I.P.C. For bringing an offences under Sec.302, I.P.C, the prosecution should prove that it comes under any one of the four clauses appearing in the beginning portion of Sec.300, I.P.C., and that it does not come under any of the five exceptions embodied at the end of the same section. The weapon used, the number of injuries inflicted, the place of one of the injuries being the intercostal region, the depth of the injury and the words uttered by the second accused would show that the intention was present in the minds of both the accused at the time when the injuries were caused. As far as the exceptions are concerned, it is the duty of the prosecution to show that the case does not come under any of such exceptions. This is not something to be proved to the hilt but the case of the prosecution should be such as it excludes necessarily any of those exceptions. 14. In the present case, as far as the motive is concerned, though as per the prosecution the first accused came to question Ganesan about the latter's filing a report to the police, no endeavour was made by the investigating agency to find out whether such report was made and what was the nature of the report in order to ascertain the importance that the matter may have in the case. So far as the genesis of the case is concerned, it is seen from the evidence of P.Ws.1 and 2 that when the accused accosted Ganesan, they were not animated by the intention of putting an end to his life, because the words uttered at the beginning are only: If they come already with that intention to kill, have they would have started the quarrel in a different way and both Ganesan and the accused might not have walked for some distance without Ganesan being attacked by the first accused till they reached the barber shop. Even then the first accused first caught hold of Ganesan by neck. Then P.W.2 intervened and questioned the accused about unnecessarily dragging Ganesan in a dispute. Thereafter only the fatal injury would have been inflicted. Thus, the genesis of the case as disclosed by the prosecution would show that the accused did not come to the place with the intention to murder; but with the intention to teach a lesson to Ganesan and that only in the course of quarrel that ensued the first accused was led to administer the fatal blow. As regards to what exactly happened between their coming and giving the fatal blow, the prosecution has not given a clear and detailed picture. Once the genesis of the case is not clear the possibility of excluding the exception is absent, and therefore the accused should get the benefit thereof. For that reason, we are led to conclude that the offence committed by the accused would be one punishable under Sec.304, Part I, I.P.C, as far as the first accused is concerned and Sec.304, Part I, I.P.C, read with Sec.109, I.P.C., as far as the second accused is concerned. 15. In the result, the appeal is allowed in part, the conviction and sentence are set aside and instead the accused are found guilty as follows: The first accused is guilty under Sec.304, Part I, I.P.C. and convicted thereunder, and the second accused under Sec.304, Part I read with Sec.109, I.P.C., and convicted thereunder. The first accused is sentenced to imprisonment for a period of seven years and the second accused to imprisonment for a period of three years. B.S. ----- Appeal allowed in part.