JUDGMENT T.C. Raghavan, J. 1. Quite recently we have had occasion to consider a similar question, viz., whether a calendar revision is competent in a case like this. In Chellappan v. State (Crl. Appeal No. 289 of 1969 & Calendar Revision No. 28 of 1969 notice having been issued in calendar revision by the same learned Judge, Krishnamoorthy Iyer J.) we have made the position clear referring to the earlier decisions on the question. We have referred to the decisions in State of Andhra Pradesh v. Thadi Narayana AIR 1962 SC 240 , Gopalan v. State of Kerala 1961 KLT 1088 , Kishan Singh v. Emperor AIR 1928 PC 254 and State of Kerala v. Venkita Rao Cal. Rev. No. 15 of 1969. If an accused was charged under S.302 (a higher offence) but has been convicted under S.304 or S.326 (a lesser offence), he is acquitted of the more serious offence, so that in revision such acquittal cannot be altered into one of conviction because S.439(4) of the Code of Criminal Procedure is a bar to such alteration. What we can do in revision is only to enhance the sentence on the same conviction or to order a retrial: but we cannot convict the accused under S.302 as suggested by Krishnamoorthy Iyer J. in the revision notice. And our powers of retrial can be exercised only in cases of failure of justice, miscarriage of justice, glaring defect in procedure, manifest error of law, etc. Even in such cases this Court should be very careful in not making any observation on merits which may have the effect of loading the dice against the accused. 2. In the case before us the accused was charged under S.302 of the Penal Code but was convicted and sentenced only under S.326. The learned Judge who perused the calendar issued notice to the accused to show cause why the conviction should not be under S.302 of the Penal Code. As we have already indicated, since the accused was convicted only under S.326 and acquitted under S.302, the said acquittal under S.302 cannot be altered in revision into one of conviction under the same section. That can be done only if there is an appeal by the State against the acquittal under S.302. Therefore, the calendar revision has only to be dismissed. 3. Now about the merits of the appeal by the accused. Pws. That can be done only if there is an appeal by the State against the acquittal under S.302. Therefore, the calendar revision has only to be dismissed. 3. Now about the merits of the appeal by the accused. Pws. 1 and 2 are the son in-law and, the daughter respectively of the deceased, Swaminatha Pillai. The appellant, a near relation of Swaminatha Pillai, was living with Pws. 1 and 2 and working under them more or less as their domestic servant. There was a litigation between Pw.2 and her sister inlaw, the sister of Pw. 1, and Swaminatha Pillai was attending to the litigation. Pws. 1 and 2 wanted the matter to be compromised; and they told the appellant to tell the other side and bring them round for a compromise. The appellant attempted this too; and this Swaminatha Pillai did not like. On the fateful night (17th May 1969), Pw. 1 and Swaminatha Pillai returned home late, when Pw.2 was sleeping inside the house and the appellant was sleeping on a cot on the verandah. Pw.1 came to the verandah, switched on the light and called his wife, when Swaminatha Pillai also came to the verandah and asked the appellant why he was interfering with the litigation when it was actually pending. The appellant replied that, after all, his attempt was to bring about peace. Swaminatha Pillai did not like this; and he beat the appellant with his umbrella. The appellant got up, went to the courtyard and took a stick with which he beat Swaminatha Pillai. The blow somehow did not hit Swaminatha Pillai, but hit the wall breaking the stick. Pws.1 and 2 intervened, separated the parties and pushed Swaminatha Pillai into the house. The appellant also entered the room with the broken stick and tried again to beat Swaminatha Pillai, when Swaminatha Pillai took a knife from his loins, opened it and attempted to stab the appellant. Pws. 1 and 2 again intervened, and they sustained some small injuries. They pushed Swaminatha Pillai into the southern room and bolted both the doors. The knife fell down from the hands of Swaminatha Pillai and the appellant took it and went out of the room. Then he tried to break open one of the doors, wherein he succeeded. The latch behind the door broke; and the appellant entered the room and stabbed Swaminatha Pillai once. The knife fell down from the hands of Swaminatha Pillai and the appellant took it and went out of the room. Then he tried to break open one of the doors, wherein he succeeded. The latch behind the door broke; and the appellant entered the room and stabbed Swaminatha Pillai once. When he stabbed Swaminatha Pillai, Pws. 1 and 2 again intervened and Pw.2 caught hold of Swaminatha Pillai. In spite of that, he stabbed Swaminatha Pillai once and ran away. Pws. 3 and 6 were at the gate of the house; and they also saw the incident. The appellant also told them that Swaminatha Pillai stabbed him and he stabbed Swaminatha Pillai too. The appellant then proceeded to the house of Pw.7. to whom also he said that Swaminatha Pillai stabbed him and he stabbed Swaminatha Pillai. 4. Pw.1 went to the police station and gave the first information. The appellant also went to the police station and gave a statement. He was arrested and the knife produced by him was also taken into custody. Swaminatha Pillai died instantaneously; and the inquest, the post mortem examination, etc. followed. On the basis of the statement given by the appellant the police registered another crime which was later on referred. The investigation, the Preliminary Enquiry and trial also followed ending in the conviction of the appellant under S.326 of the Penal Code and sentence of rigorous imprisonment for three years. 5. The appellant had slightly different versions when he was questioned under S.342 of the Code of Criminal Procedure in the committal court and in the Sessions Court. On the whole, his plea can be taken as one of private defence. 6. The counsel of the appellant argues that the alleged eyewitnesses, Pws. 1, 2, 3 and 6, cannot be believed. The evidence of these witnesses has been read out to us. Though Pws. 1 and 2 are near relations of Swaminatha Pillai, for that reason alone their evidence cannot be rejected. Admittedly, they were present at the scene; and they were trying to prevent the clash between Swaminatha Pillai and the appellant. Pw.3 and 6 were neighbours; and on hearing the hubbub, they came out of their houses and stood at the gate of the house of Pw. 1 and witnessed the incident. There is no reason to disbelieve the evidence of these witnesses either. Pw.3 and 6 were neighbours; and on hearing the hubbub, they came out of their houses and stood at the gate of the house of Pw. 1 and witnessed the incident. There is no reason to disbelieve the evidence of these witnesses either. Pw.7 also says that the appellant told him that he stabbed Swaminatha Pillai when Swaminatha Pillai stabbed him. The evidence of these witnesses clearly proves the prosecution case that theappellant stabbed Swaminatha Pillai. We add that there is no substance in the plea of private defence either raised by the appellant in his statement. 7. Swaminatha Pillai had one injury which is shown in Ex. P2, the post mortem certificate. The injury was 7.6 cm. by 3.6 cm. by 3.6 cm. on the left side of the neck 4 cm. below the left ear lobe, cutting the carotid artery, jugular veins, muscles and pacia, and the trachea and oesophagus. The trachea was obliquely cut at the level of the fourth and fifth rings on the left side of its circumference. The Sessions Judge has found that the offence was only one under S.326 of the Penal Code. He has stated in Para.18 of his judgment: "In this connection, it may be pointed out that though the injury had been inflicted on a vital part of the body, the accused probably did so only because he was being prevented by Pw. 2 from stabbing Swaminatha Pillai on any other part of his body. The evidence of Pw. 2 is that when the accused attempted to stab Swaminatha Pillai, Pw.2 caught hold of Swaminatha Pillai". 8. The Sessions Judge appears to be right when he says that the appellant had no intention to inflict any injury on any vital part of Swaminatha Pillai. His attempt was only to give one stab to Swaminatha Pillai, because the latter beat him once and attempted to stab him too. Pws. 1 and 2 were trying their best to prevent a clash; and as the Sessions Judge has rightly pointed out, Pw.2 actually caught hold of Swaminatha Pillai. In an attempt to avoid Pw.2 and to give a "stab for stab", the appellant hit the neck of Swaminatha Pillai. Evidently, he could not have had the intention to stab Swaminatha Pillai on any vital part: hitting the neck was more an accident than intentional. In an attempt to avoid Pw.2 and to give a "stab for stab", the appellant hit the neck of Swaminatha Pillai. Evidently, he could not have had the intention to stab Swaminatha Pillai on any vital part: hitting the neck was more an accident than intentional. And the knife itself was a small one which the appellant got from Swaminatha Pillai himself. In these circumstances, the Sessions Judge is right in his conclusion that the offence comes under S.326 and not under S.302 or even under S.304 of the Penal Code. The appeal and the calendar revision are both dismissed.