JUDGMENT H. Suresh, J.- The accused is the son-in-law of the deceased father-in-law. The allegation is that on 3-1-1985 at about 10-30 a.m., he committed the murder of his step father-in-law Narayan. The case has resulted in his conviction under Section 302 of the Indian Penal Code. This is an appeal against the said conviction. 2. In his statement under Section 313 of the Criminal Procedure Code, the accused has set out in detail as to how the incident took place,. His case is that the deceased was his step father-in-law. His wife had gone to the house of the deceased during Diwali prior to the date of incident (i.e Diwali of 1984). He had also gone to the house of his father-in-law earlier. At that time, he had heard people saying that his wife was having illicit relation with his step father-in-law. Therefore, during the Diwali 1984, after staying at the house of his father-in law for about 2-3 days, he was insisting that his wife should come back With him to his place at Sawangi. It appears that she too was not willing to come with him. According to him, his wife's brother as also his father-in-law were insisting that the accused should also stay with them. The accused was not agreeable to stay. It appears few days before the incident since his Wife was not willing to come with him he had slapped her. When his wife started weeping his brothers-in-law assaulted him and gave him beating, whereby the accused fell ill. "It appears that on the day of the incident, his father-in-law decided to take him to the hospital. While they where going to the hospital, on the road, be again suggested to his father-in-law to send his Wife to Sawangi. On this point, there was a quarrel between the two The quarrel led to the scuffle and in the scuffle his father-in-law lifted one stone in his band and thrashed at his own bead and be also threatened that be would involve the accused in the crime. It appears the accused had also pelted stones at him. When the deceased came close him, he lifted two stones in his both the bands and threw one stone at Narayan, which struck his head. He also threw another stone at Narayan. Narayan fell down thrashing his head against the stone. It appears the accused had also pelted stones at him. When the deceased came close him, he lifted two stones in his both the bands and threw one stone at Narayan, which struck his head. He also threw another stone at Narayan. Narayan fell down thrashing his head against the stone. But at that time according to him he was saying that he would involve the accused falsely. The accused proceeded towards the Police Station. 3. The First Information Report in this case was lodged by one Namdeo Sakha Gaik wad. He was working as Kotwal of Village Dhanki. The First Information Report shows that at about 10.30 in the morning of 3-1-1985 he was informed that a dead body was lying on the road. He went there. Someone informed him the name of the deceased. He was also informed that his son-in-law/accused had killed him by bruising with stone. He there fore started to go the police station for giving the information. On the way, he met the accused. His clothes were stained with blood. According to him, the accused told him that he had killed his step father -in-law, Narayan. 4. There are two eye witnesses to the incident. The first one is Nandu Nagorao Pawar (P.W.5).He was grazing the cattle in the field of his master which is adjacent to the said road where Narayan was found dead. According to him, he had seen the accused thrashing the said person with the stone in his hand till his voice was stopped. His statement was recorded after about 5-6 days of the incident. In his cross-examination, it has been brought on record that he had informed the police that the accused and the deceased were beating each other by stone. This statement considerably supports the statement of the accused. 5. The other eye witness is Vinod Namdeo Gaikwad (P.W.7), who is aged about 10 years, who had seen the accused thrashing the face of deceased with a stone near a neem tree. In his cross-examination, he has admitted that he had seen the accused and the other person quarrelling with each other. They were also abusing each other and they were throwing stones at each other. This version also supports the case of the accused. 6. In his cross-examination, he has admitted that he had seen the accused and the other person quarrelling with each other. They were also abusing each other and they were throwing stones at each other. This version also supports the case of the accused. 6. The medical evidence again shows that there was no external injury on the deceased and all were internal injuries, and in his opinion, the death has occurred due to head injury. 7. Undoubtedly, the deceased died due to injury on his head. But the question is how and under what circumstances, the injuries came to be inflicted on the deceased. The evidence clearly establishes that there was a quarrel between the two Both were throwing stones on each other. The accused has set out as to how and why the quarrel started between him and the deceased. There is no reason why we should not accept the case of the accused. It cannot be said that the accused had any intention to cause the death of the deceased. So also it cannot be said that be bad any intention to cause such injuries, as would cause death in the ordinary course nor can it be said that he had any knowledge of causing such injury. The offence, therefore cannot fall within the scope of Section 302 of the Indian Penal Code but would fall under Section 304 Part - II of the Indian Penal Code. 8. Accordingly we pass the following order. ORDER The appeal is partly allowed. The conviction of the appellant/accused under Section 302 of the Indian Penal Code is set aside, We hold him guilty under Section 304 Part II of the Indian Penal Code. The accused has been in custody from 3-1-1985 till today which means he had suffered imprisonment for more than four years. We accordingly hold that the sentence already undergone is sufficient to meet the ends of justice and no separate sentence is called for. In the result, the appellant/accused is ordered to be released forthwith, unless he is required in any other case. Appeal partly allowed.