JUDGMENT - A.S. BAGGA, J.:---These appeals arise out of the judgment and order dated 6-12-1994 delivered by the Additional Sessions Judge, Nanded in Sessions Case No. 132 of 1993, thereby convicting the accused No. 2 Mangalsingh for the offence punishable under section 302 I.P.C. and sentencing him to suffer R.I. for life and to pay a fine of Rs. 500/-, in default, to suffer further R.I. for two months and acquitting the accused No. 1 Sonusingh of the offence for which he was charged and tried. 2. The convicted accused No. 2 Mangalsingh has filed appeal challenging his conviction and award of sentence while the State has filed appeal against the acquittal of the accused No. 1 Sonusingh. 3. The facts, briefly stated, are as follows : The accused No. 2 Mangal singh is son of the accused No. 1 Sonusingh. They are cart owners and earn their livelihood by transporting grains from different shops in the market at Nanded. The deceased Kishor Yadav and his friends Ram Jhampalwad (P.W. 5), Ganesh Pingalwad (P.W. 7) and one Ashok Waghmare also were the owners of carts and used to transport grains from shops in the same area. 4. On 5-2-1993, the accused Nos. 1 and 2 were loading Jawar in their carts from the shop of one Suresh Nathani. At this point of time, deceased Kishor with companion cart owners also reached there and told the accused persons that all of them should lift Jawar for carting purposes. The accused perhaps, were not inclined to allow the deceased and his companions to lift Jawar. Quarrel took place between the accused and deceased and companion cart owners. The deceased Kishor and his companions were not allowed to undertake the work. During the quarrel that took place the accused No. 2 Mangalsingh allegedly challenged the deceased Kishor to meet him at 8 p.m. and that, he (Mangalsingh) would see him (deceased Kishor) then. Thereafter, the deceased left the spot with his companion cart owners. This incident took place during the day near the shop of one Suresh Nathani. 5. After the day's work was over, Ram Jhampalwad (P.W. 5) and Ashok Waghmare left their respective carts at their houses and went to Mondha where P.W. 7 Ganesh Pingalwad met them. Trio drank liquor and they sat on the platform of Rajiv Gandhi Complex. This incident took place during the day near the shop of one Suresh Nathani. 5. After the day's work was over, Ram Jhampalwad (P.W. 5) and Ashok Waghmare left their respective carts at their houses and went to Mondha where P.W. 7 Ganesh Pingalwad met them. Trio drank liquor and they sat on the platform of Rajiv Gandhi Complex. After some time, deceased Kishor also arrived and sat there with the aforesaid persons. It was 9 or 9.30 p.m. 6. The accused Nos. 1 and 2 were seen coming by their respective carts passing from in front of Rajiv Gandhi Complex, going to their house. At this point of time, deceased Kishor told his friends that he would ask the accused as to why he was asked to meet after 8 p.m. By saying so, the deceased Kishor went towards the accused persons. Thereafter, Ram Jhampalwad (P.W. 5) and Ganesh (P.W. 7) heard certain exchange of abuses between the deceased Kishor and the accused persons. The accused No. 2 Mangalsingh stabbed Kishor by means of a knife on his chest and stomach. The deceased Kishor shouted as "Bachao". Ram Jhampalwad (P.W. 5) and Ganesh (P.W. 7) tried to nab the accused No. 2 Mangalsingh but, he fled. Ganesh (P.W. 7) however, was successful in catching the accused No. 1 Sonusingh. The accused No. 1 Sonusingh was handed over to a Policeman who had arrived on the spot. The deceased Kishor who had suffered bleeding injuries, was taken to hospital in a rickshaw. Kishor was however, declared dead on arrival in the hospital. Report of the incident came to be lodged by Ubanlal Yadav (P.W. 8) father of the deceased Kishor. 7. During the investigation, a knife was seized at the instance of the accused No. 2 Mangalsingh. A blood stained Lungi was recovered from the person of the accused No. 2 Mangalsingh. Blood stained banian of Ram Jhampalwad (P.W. 5) was also seized by Police under a panchanama and post-mortem report was obtained. As many as nine injuries were found on the body of the deceased including eight stab injuries. A blood stained Lungi was recovered from the person of the accused No. 2 Mangalsingh. Blood stained banian of Ram Jhampalwad (P.W. 5) was also seized by Police under a panchanama and post-mortem report was obtained. As many as nine injuries were found on the body of the deceased including eight stab injuries. The Medical officer who came to be examined, opined that injuries were possible by means of a knife which was seized and the instantaneous death was possible on account of Injury No. 4 which was stab injury on the parasternal region at level 4th intercosis space, 1" x ½" right interim cavity deep. 8. Both the accused adjured the guilt. The accused No. 2 however, took a special plea of self defence. In his examination under section 313 Cri.P.C., he stated that he and his father were proceeding home in their respective carts. That, Ram Jhampalwad (P.W. 5), Ashok Waghmare (not examined) and Ganesh (P.W. 7) were sitting on the platform of Rajiv Gandhi Complex. It was the deceased who came and pulled him down from his cart and scuffle took place and he gave blow by Suri (a small knife). 9. Rejecting the special plea of self-defence taken by the accused No. 2 Mangalsingh, the learned Judge, on the basis of the evidence, particularly, that of the eye-witnesses Ram Jhampalwad (P.W. 5) and Ganesh (P.W. 7), proceeded to convict the accused No. 2 Mangalsingh of the offence and sentenced him as stated earlier. The learned Judge however, found the accused No. 1 not guilty and acquitted him. 10. In view of the fact that the deceased had as many as nine injuries on his person, out of which 8 were stab wounds, the learned Judge refused to accept the special plea of self-defence set up by the accused No. 2 Mangalsingh. Observing that there were several blows including the blows on vital part of the body of the deceased, the learned Judge proceeded to convict the accused No. 2 Mangalsingh for the offence punishable under section 302 I.P.C. 11. The learned Judge rejected the plea of self-defence taken by the accused No. 2 Mangalsingh observing that the stab taken by the accused No. 2 that deceased Kishor was pressing his neck and therefore, he gave knife blow, is not acceptable as it is not established by the accused beyond reasonable doubt. The learned Judge rejected the plea of self-defence taken by the accused No. 2 Mangalsingh observing that the stab taken by the accused No. 2 that deceased Kishor was pressing his neck and therefore, he gave knife blow, is not acceptable as it is not established by the accused beyond reasonable doubt. The learned Judge further observed that the evidence does not at all to show that at any point of time there was a scuffle when deceased Kishor pressed the neck of accused No. 2. On the contrary, the evidence shows that the Accused No. 2 Mangalsingh was aggressor and he caused stab injuries on the deceased. The learned Judge further observed while discussing the case law cited that it was not shown that the accused had not exceeded his right of private defence. 12. Mrs. Ansari, learned Counsel for the convict-appellant has taken us through the evidence on record. There is no doubt, from the tenor of the cross-examination and answers to the questions by accused No. 2 Mangalsingh in his examination under section 313 of Cri.P.C. that the special plea of self-defence had been taken. The learned Counsel rightly contended that when the accused takes up a special plea of self-defence, he need not prove it beyond all reasonable doubt. The Court has to examine the probabilities in appreciating such a plea. Where the right of private defence, or any other general exception is pleaded by the accused and evidence is adduced in support of such plea, but such evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the general exception pleaded, the accused person is entitled to be acquitted if, upon a consideration of the evidence as a whole a reasonable doubt is created in the mind of the Court. 13. The learned Counsel for the convict appellant also has rightly contended that though it was the accused No. 2 who had challenged the deceased Kishor to see him in the evening at 8 p.m., it has come on record however, that the accused Nos. 1 and 2 were proceeding to their home by their respective carts. When they were passing through the road in front of Rajiv Gandhi Complex, it was the deceased Kishor, who was sitting there with Ram Jhampalwad (P.W. 5), Ganesh (P.W. 7) and Ashok Waghmare, approached the accused persons. 1 and 2 were proceeding to their home by their respective carts. When they were passing through the road in front of Rajiv Gandhi Complex, it was the deceased Kishor, who was sitting there with Ram Jhampalwad (P.W. 5), Ganesh (P.W. 7) and Ashok Waghmare, approached the accused persons. The defence of the accused, therefore, is probable that it was the deceased Kishor who had pulled down the accused No. 2 Mangalsingh from the cart. The oral evidence of Ram Jhampalwad (P.W. 5) and Ganesh (P.W. 7) also corroborates the version that there was some altercation or heated exchange of abuses between the deceased and the accused No. 2 Mangalsingh. 14. The right of private defence is available to one who is suddenly confronted with immediate necessity of averting an impending danger not of his creation. Accrual of right of private defence and the extent to which right of private defence extends are two different things. Section 97 of the I.P.C. recognises the right of private defence of the body. Section 99 declares that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 of I.P.C. enumerates the circumstances in which right of private defence of the body extends to causing death. The learned Judge, in the present case, held that the right of private defence did not extend to causing of death of the deceased. The learned Judge, in view of the multiple stab injuries on the person of the deceased, proceeded to find the accused No. 2 Mangalsingh guilty of culpable homicide amounting to murder punishable under section 302 of I.P.C. 15. The accused No. 2 Mangalsingh while taking up special plea of right of personal defence, admitted to have caused stab injuries to the deceased. The learned Judge, on the basis of the post-mortem report, found many stab injuries. It was for this reason that the learned Judge seems to have rejected the plea of self-defence. 16. On scrutiny of the evidence, it is found that it was the deceased who approached the accused persons and it is probable that there was scuffle and it is also probable that the accused No. 2 Mangalsingh was pulled down by the deceased from his cart. Ram Jhampalwad (P.W. 5) and Ganesh (P.W. 7) who have been examined, admittedly were deceased's friends. Ram Jhampalwad (P.W. 5) and Ganesh (P.W. 7) who have been examined, admittedly were deceased's friends. They were also with the deceased in the morning when the exchange of abuses took place. It was for this reason they were not unlikely to support the plea taken by the accused No. 2 Mangalsingh. The plea of self-defence, under these circumstances, is probable. It will have to be held that the right of private defence had accrued to the accused No. 2. Since there were many injuries caused by the accused No. 2, and the deceased died of such injuries, it is certainly a case in which accused No. 2 has exceeded the right of private defence. 17. Exception 2 of section 300 I.P.C. provides for the cases of a person who exceeds right of private defence. A separation has been made between murder and what is designated as voluntary culpable homicide in defence. In (Satish Sangma)1, 1952 A.S.S. 301 the Apex Court held: "The law itself encouraged the slayer to inflict on the assailant any harm short of death which may be necessary for the purpose of repelling outrage.......In a case in which the law itself empowers an individual to inflict any harm short of death, it ought hardly, we think, to visit him with the highest punishment if he inflicts death." In (Hira Rai)2, A.I.R. 1972 S.C. 244 and (Sher Singh)3, 1953(2) Patiala 428, it has been held- "If a person in exercising the right of defending his own person or the body of another person against any offence affecting his body, in fact does no more than exercise such right he commits no offence, but if he exceeds that right and kills the offender when in fact it was unnecessary to kill, then under this exception it is still a lesser offence then murder if the intention of the accused was to do no more harm than he believed necessary in the exercise of his right. Even though there was a reckless criminality in the act the case would fall within this exception of the right of private defence." 18. On careful scrutiny of the evidence, the law and the contentions raised by the learned Counsel for the convict appellant, we hold that the right of personal defence had accrued to the accused No. 2 Mangalsingh. He however, exceeded the right of private defence. On careful scrutiny of the evidence, the law and the contentions raised by the learned Counsel for the convict appellant, we hold that the right of personal defence had accrued to the accused No. 2 Mangalsingh. He however, exceeded the right of private defence. This case would, therefore, be covered by exception 2 of section 300 I.P.C. The accused No. 2 Mangalsingh, under these circumstances, would be found guilty of culpable homicide not amounting to murder punishable under section 304, Part I of I.P.C. The appeal filed by the accused No. 2 Mangalsingh, therefore, will have to be partly allowed. 19. The State has filed appeal against the acquittal of accused No. 1 Sonusingh. On perusal of evidence, it is seen that it was the accused No. 2 Mangalsingh only who had challenged the deceased Kishor to see him in the evening. It was the deceased who had approached the accused persons. The accused persons were proceeding to their home in their respective carts and the accused No. 2 was behind the accused No. 1 and there was considerable distance between the two carts. Though, it was stated by eye-witnesses that the accused No. 1 had given blows by whip to the deceased, the medical evidence did not support it. No marks were found on the body of the deceased. It was impossible to hold, under these circumstances, that there was predetermination or pre-planning between the accused Nos. 1 and 2 to commit the offence. The general principle of criminal liability is that it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty and convicted in accordance with the law. The accused No. 1 was charged with the accused No. 2 under section 302 read with section 34 I.P.C. Section 34 contemplates doing of an act by several persons in furtherance of their common intention. In the present case, it is impossible to hold that the act done by accused No. 2 in causing several injuries to the deceased, was in furtherance of the common intention of accused Nos. 1 and 2. No fault can be found with the observations of the learned Judge below. The accused No. 1 Sonusingh was rightly acquitted. Under these circumstances, the appeal filed by the State. 20. 1 and 2. No fault can be found with the observations of the learned Judge below. The accused No. 1 Sonusingh was rightly acquitted. Under these circumstances, the appeal filed by the State. 20. For the reasons stated in the foregoing paragraphs, Criminal Appeal No. 106 of 1995 filed by the State is dismissed. Criminal Appeal No. 56 of 1995 is partly allowed. The conviction and sentence of accused No. 2 Mangalsingh s/o Sonusingh Thakur under section 302 I.P.C. is set aside. Instead, the accused No. 2 is convicted for the offence punishable under section 304, Part I of I.P.C. and is sentenced to suffer R.I. for ten years and to pay a fine of Rs. 500/-, in default to suffer further R.I. for two months. Appeal Partly allowed. ----