Bhandari, J.—This is an appeal on behalf of Parma appellant who has been convicted by the Additional Sessions Judge Gangapur under sec. 326 of the Indian Penal Code and sentenced to two years rigorous imprisonment and to pay a fine of Rs. 100/- and in default to undergo three months further rigorous imprisonment. 2. The facts giving rise to this appeal are very simple. In the village Maunch, there is a house of Muril Mahajan with a shop underneath it and in front of the shop there is a Chabootra. On the 25th of October, 1952,at about 8 P.M.several persons were sitting on that chabootra and were settling the rate of chillies which Fakira P.W. 4 had come to purchase from Karauli. Ratanlal, P. W. 1, was also sitting on the chabootra and on his back the appellant was standing. It is alleged by the prosecution that the appellant aimed a blow of the sword, which he carried wrapped in a dhoti, on the neck of Ratanlal, but the blow struck Ratanlal on his right shoulder. This blow of the sword caused two injuries detailed below— (1) One incised wound 4" X 1/2"X 1-1/2" on the top of the right shoulder. (2) Cutting of the acromion process of the right scapula, the bone being cut through 1/6"X 1/3." 2. The blow of the sword which struck Rattanlal on his shoulder had penetrated several layers of the dhoti Ex. P-4 which he had on his shoulder and had also cut through the shirt Ex.3. It is further alleged by the prosecution that after inflicting the blow Parma said that he had cut Ratanlal and all those who are his kith and kin should run away. There after he ran away with his naked sword in his hand leaving behind the sheath, Ex. 2, of the sword. A report of this incident was lodged at the Police Station, Karauli, at about 8 A.M. on the 26th of October, 1952. Parma appellant is also said to have produced the sword, Ex.1, before the Sub-Inspector Incharge of Police Station, Karauli, at about 10.15 A.M. 3. The appellant was arrested and was challaned before the Sub-Divisional Magistrate Karauli and the Sub-Divisional Magistrate, Karauli, committed the appellant to the court of Additional Sessions Judge, Gangapur, to stand his trial for the offence under sec. 307 of the Indian Penal Code. 4. The appellant was arrested and was challaned before the Sub-Divisional Magistrate Karauli and the Sub-Divisional Magistrate, Karauli, committed the appellant to the court of Additional Sessions Judge, Gangapur, to stand his trial for the offence under sec. 307 of the Indian Penal Code. 4. The appellant in his defence pleaded that he was not guilty and that on the date of occurrence 30 or 40 persons were on the chabootra of Murli Mahajan and several of them were conspiring to murder his father Mukanda. Ratanlal had also a sword covered in his dhoti, but the appellant saw the sword and wanted to snatch away the sword from Ratanlal. At this Ram Ratan, one of the persons sitting there, who is P. W. 2 in this case, gave a lathi blow. Thereupon, the appellant ran away. The learned Additional Sessions Judge disbelieved the defence and held the appellant guilty of having committed the offence under sec. 326 of the Indian Penal Code. 5. The prosecution has examined several eye witnesses of which the learned Additional Sessions Judge has believed Fakira P. W. 4, Gende P.W.5, Ram Ratan P. W., 2, Kalua P. W. 3 and the complainant Ratanlal, Ratan Lal P. W. 1, Ram Ratan P. W. 2 and Kalua P.W. 3 have stated that the blow was aimed at the neck of Ratanlal, but it eventually struck the shoulder. The learned Additional Sessions Judge disbelieved this part of the case, that the blow was aimed at the neck, as none of the witnesses Ratanlal, P. W. 1, Ram Ratan P. W. 2 and Kalua P. W. 3, were facing the appellant and they could not have seen the appellant striking the blow. The learned Judge places great confidence in the statement of Fakira.P.W. 4, who is a Mahajan of Karauli and who had come to purchase chilles from the residents of Maunch. Genda P. W. 5 who was also present was also relied upon by the learned Additional Sessions Judge. The learned Judge places great confidence in the statement of Fakira.P.W. 4, who is a Mahajan of Karauli and who had come to purchase chilles from the residents of Maunch. Genda P. W. 5 who was also present was also relied upon by the learned Additional Sessions Judge. Taking the evidence of these two witnesses as independent evidence and after carefully scrutinizing the evidence of Ratan Lal P. W. l,Ram Ratan P. W. 2, Kalua P. W. 3, Fakira P. W. 4, and also of the defence witnesses D. W. 4 Lohrey and Raghunandan D. W. 2, the learned Additional Sessions Judge came to the conclusion that Parma struck the blow of the sword on the right side of the shoulder of Ratanlal who cried that he had been hit and that thereupon the appellant moved a little further off and uttered that he had cut Ratanlal and persons of his kith and should run away. 6. The learned advocate for the appellant argued that the evidence of these prosecution witnesses was not properly appreciated by the learned Additional Sessions Judge. His criticism is that Ram Ratan P.W. 2 and Kalua P. W. 3 are distantly related to Ratanlal P. W. 1 and, therefore, are to be disbelieved and that Ratanlal P. W., 1 had enmity with Mukanea, father of the appellant. With regard to Fakira P. W. 4, the criticism is that he had stated in cross-examination that the witness did not see the appellant giving the blow of the sword. He saw the appellant standing before the blow was inflicted and then saw him when the appellant told that he had cut Ratanlal. Genda has similarly stated that he did not see the appellant hitting Ratanlal. According to him Ratanlal cried that he had been hit and the appellant ran away. The appellant had told in his presence that he had cut Ratanlal and those who are his kith and kin should run away, and a witness saw a naked sword in the hand of the appellant when he told this. According to him Ratanlal cried that he had been hit and the appellant ran away. The appellant had told in his presence that he had cut Ratanlal and those who are his kith and kin should run away, and a witness saw a naked sword in the hand of the appellant when he told this. It might be true that these witnesses might not have seen the appellant striking at Ratanlal, but all of them are so definite regarding the fact that the appellant was standing behind Ratanlal, that as soon as Ratanlal cried, the appellant told the people to run away as he had struck Ratanlal and that he had a naked sword in his hand at that moment and Ratanlal was bleeding of the wound inflicted on his shoulder. All these factors lead to the conclusion that it was the appellant who had inflicted a blow of the sword on the right shoulder of Ratanlal and there is no room to doubt as to the identity of the person who inflicted the injury. In my opinion, the finding of the learned Additional Session Judge on this point cannot be seriously challenged. 7. It is next argued by the learned counsel for the appellant that granting, that the blow was inflicted by the appellant, the injury caused is not of such a nature that would be designated as grievous hurt under sec 326 of the Indian Penal Code. He has urged that in order that a hurt may be designated as a grievous hurt there must be a fracture or dislocation of tooth or bone. Dr. B. P. Singh, District Medical and Health Officer, Karauli who is P. W. 9 in this case has designated injury No. 2 as grievous court. He has stated that the acromion process was cut through by 1/6" x 1/3", though there was no displacement of bone. He has further stated that injury No. 2 was grievous because the bone was cut. The learned advocate has cited before me the cases of Maung Po Yi vs. Ma E Tin (1) and Mrkutdhari Singh vs. Emperor (2) to support his contention. He has further stated that injury No. 2 was grievous because the bone was cut. The learned advocate has cited before me the cases of Maung Po Yi vs. Ma E Tin (1) and Mrkutdhari Singh vs. Emperor (2) to support his contention. In the case of Maung Po Yi (1), the learned Judge held on the evidence of Medical Officer that though the skin and membranes outside the skull bone were cut through and that the knife then touched the skull bone and perhaps caused some injury to its surface, yet it did not cut it through and did not crack it. On this finding, the Honble Judge rightly held that no grievous hurt was caused. In the course of the judgment, the Honble Judge remarked as follows— The primary meaning of the word "fracture" is "breaking" though it is conceded that it is not necessary in the case of a fracture of the skull bone that it be divided into two separate parts because it may consist merely of a crack; but the point is that if it is a crack it must be a crack which extends from the outer surface of the skull to the inner surface." With these remarks the Honble Mr. Justice Ranawat has disagreed as being too wide, in the case of Kalya vs. The State (3). I also share the same view. The case of Mukutdhari (2) only indicates that— When the evidence is merely that a bone had been cut and there was nothing whatever to indicate the extent of the cut, whether deep or a mere scratch upon the surface, it is impossible to infer from that evidence alone that grievous hurt had been caused. This case is distinguishable from the case before me. Here it has been definitely stated by the doctor that there has been a cut through 1/6" X 1/3" of the acromion process. According to the medical authorities, acromion is a flattened piece of bone It is continuous with the spine at the angle between its two unattached borders. It extends in a lateral direction and overhangs the shoulder joint above and behind. It may be that when the dimension of a cut of bone are not known, it may be difficult to say whether it is a grievous hurt. It extends in a lateral direction and overhangs the shoulder joint above and behind. It may be that when the dimension of a cut of bone are not known, it may be difficult to say whether it is a grievous hurt. But in this case a vital part of the shoulder has been cut through 1/6" x 1/3" and I have no doubt that this is a grievous hurt within the meaning of sec. 320. 8. The next point argued before me is that the charge that had been framed against the appellant was that under sec. 307 of the Indian Penal Code and the appellant cannot be convicted under sec 326 of the Indian Penal Code, as this was not a minor offence in respect of sec. 307 of the Indian Penal Code. This takes me to the discussion whether the offence proved was included in the offence charged, as laid down under sec. 238 of the Criminal Procedure Code. Sec. 238 of the Criminal Procedure Code lays down the limit under which a person who has been charged with a particular offence, can be convicted of any other offerce. It is an exception to the general rule that a person cannot be convicted of an offence with which he is not charged. In order that the conditions prescribed under sec. 238 of the Criminal Procedure Code may be fulfilled, it is necessary that under clauses 1 and 2 of the section, the offence for which the accused is sought to be convicted must be minor in relation to the offence with which he is charged which may be called the major offence. The first requisite that an offence may be minor in relation to the offence charged is that the punishment proved for committing minor offence must be in all cases less than that provided by law for committing the major offence. The expression minor offence is not defined anywhere, but taking the common sense view of the matter, this condition is but evident. This is further implied in the very definition of the word offence under sec. 4.o of the Criminal Procedure Code. The offence "means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under sec. 20 of the Cattle-Trespass Act, 1871. This is further implied in the very definition of the word offence under sec. 4.o of the Criminal Procedure Code. The offence "means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under sec. 20 of the Cattle-Trespass Act, 1871. Unless any act or omission is made punishable, it is not an offence. The same, with necessary variation, is the definition of the word offence in the Indian Penal Code. This shows that the element of puish-ment is essentially associated with the offence. In order that an offence may be minor offence, it is necessary, therefore, that it must be punishable with minor punishment I with all respects do not agree with the observations made in the case of Emperor vs. Abdul Rahi-man Akramdin (4) that "it is an unwarranted assumption that the test by which an offence is deemed in sec.238(1) to be major or minor is the gravity of the punishment incurred." Of course punishment is not the sole test but the gravity of punishment is a primary consideration to judge whether the offence is a minor offence in relation to another offence which may be an ordinary offence. The Honble Judge in that case has himself taken, the element of punishment into consideration when he has observed at a later stage that it was also a minor offence in the sense that the punishment to which the accused became liable is less grievous than to which they would have been liable if all the particulars alleged in the charge had been proved. 9. In the case of Makhhan vs. Emperor (5) it has been observed that "the gravity of the offence must depend upon the severity of the punishment that can be inflicted." "To my mind the severity of punishment is the first test in judging whether the offence is a minor offence in relation to the major offence. But this is not the only test and other conditions laid down in sec. 238 sub-sec. 1 and 2 must be fulfiled. These two sub-clauses lay down the conditions which must be fulfilled before it may be called a minor offence. Sub sec. 1 to sec. But this is not the only test and other conditions laid down in sec. 238 sub-sec. 1 and 2 must be fulfiled. These two sub-clauses lay down the conditions which must be fulfilled before it may be called a minor offence. Sub sec. 1 to sec. 238 of the Criminal Procedure Code lays down as follows: — "When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, the may be convicted of the minor offence, though he was not charged with it," Under this sub-sec. all the particulars which complete a minor offence must be present in major offence. They may be in aggravated form. If is further clear from the reading of this section that there might be many other particulars which might be present in the major offence and which are not present in the minor offence. It is not necessary to prove the offerce charged in the indictment to the whole extent provided the facts proved, constitute a complete offence. Similarly, it is not necessary to prove the offence charged in the same aggravated form provided what is provided constitutes a complete offence. 10. Judged from this test, the offence under sec. 326 is not a minor offence in respect of an offence under sec. 307. Under sec. 326. it is necessary that "there must be voluntarily causing grievous hurt by means of any instrument for shooting, stabbing, or any instrument which, used as a weapon of offence is likely to cause death........" Under sec. 307 it is not necessary that any hurt may be caused, It is only in second paragraph of sec. 307 I.P.C. that causing of grievous hurt is mentioned in connection with providing heavier punishment of death. The ingredient of causing hurt is absent in first para of sec. 307 I.P C. Even under the second paragraph the distinction between the simple and grievous hurt is not drawn and the kind of instrument that may cause hurt is not considered relevant. Strictly speaking, it cannot be said that any person charged with an offence under sec.307 I.P.C. can be convicted under sec. 326 by virtue of sec. 238(1) of the Cr. P.C. The additional fact that causing of grievous hurt is to be proved under sec. Strictly speaking, it cannot be said that any person charged with an offence under sec.307 I.P.C. can be convicted under sec. 326 by virtue of sec. 238(1) of the Cr. P.C. The additional fact that causing of grievous hurt is to be proved under sec. 326 takes it out from being a minor offence under sec. 307. 11. The question remains, can it be a minor offence under sub sec. 2 of the same section. Sub-sec.2 to sec.328 runs as follows— "When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not "charged with it. In the case of Emperor vs. Abdul Rahim Akramdin referred to above, the Honble Judge has observed that— "sec. 238 sub clause 2 speaks of the proof of additional facts reducing an offence to a minor offence, and this does not accord with the view that the minor offence must always consist of fewer particulars than the major offence. But this is only a new form that the situation takes." In that case it was not necessary for the learned Judge to decide what should be the nature of the additional facts proved. But this clause clearly points out that the additional facts must be such as reduced the offence charged to a minor offence. To my mind the interpretation of this clause is that there are all the particulars present in the case which make it a major offence, But certain additional facts are brought before the court either by the prosecution or by the defence to reduce the offence to a minor offence. There may be various circumstances which, when proved, may make an offence less serious even though all the elements constituting that offence as major offence are present. Various sections of the Indian Penal Code lay down various illustrations of this type. Illustration (b) of sec. 238 is as follows:— "A is charged, under sec. 325 of the Indian Penal Code, with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under sec. 335 of that Code." This illustration may serve as a guide to interpret sec. 238(1) of the Criminal Procedure Code. Illustration (b) of sec. 238 is as follows:— "A is charged, under sec. 325 of the Indian Penal Code, with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under sec. 335 of that Code." This illustration may serve as a guide to interpret sec. 238(1) of the Criminal Procedure Code. I do not mean to say that the illustrations restrict the main provisions, "but these illustrations greatly facilitate the understanding of the law," as observed by the Indian Law Commission" and the illustrations will lead the mind of the student through same steps by which the nind of those who framed the law proceeded (6). All the ingredients present in sec. 325 may become an offence under sec. 335 of the Indian Penal Code because certain additional facts are brought on record which make the offence less serious and punishable with less severity. When "A is charged, under sec. 326 of the Indian Penal Code, with voluntarily causing grievous hurt to B by means of an instrument for shooting, this is equivalent to a statement that the case was not provided for by sec. 335 of the Indian Penal Code, and that the general exceptions did not apply to it. "(see illustration B to sec. 221 of the Criminal Procedure Code). But the additional facts may be proved which may make it a case provided under sec. 335 of the Indian Penal Code. General exceptions or exceptions to a particular section may make an offence less serious or minor even though all the particulars of the major offence may be present. I need not multiply the illustrations on this point. It is a matter of every day occurrence. 12. Just judging from this point of view, an offence under sec. 316 of the Indian Penal Code does not necessarily become a minor offence with respect to an offence under sec. 307 of the Indian Penal Code. The other clauses 2(A) and 3 of sec. 238 of the Criminal Procedure Code do not obviously apply to the case and need not be discussed here. 13. The appellant therefore, may not be legally convicted of an offence under sec. 326 of the Indian Penal Code by virtue of sec. 238 of the Criminal Procedure Code, but in my opinion, he cannot escape his liability to conviction under sec. 326 by virtue of sec. 13. The appellant therefore, may not be legally convicted of an offence under sec. 326 of the Indian Penal Code by virtue of sec. 238 of the Criminal Procedure Code, but in my opinion, he cannot escape his liability to conviction under sec. 326 by virtue of sec. 237 of the Criminal Procedure Code. Secs. 236 and 237 are to be read together. Under sec. 236, if an act committed by the accused is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences. In this case Parma appellant struck Ratanlal with a sword blow. The prosecution had evidence with them that the blow was aimed at the neck and further that the blow was of such a serious nature that it was likely to cause death. Under the circumstances the appellant could have been charged at the stage from the framing of the charge both under secs. 326 and 307 of the Indian Penal Code. But the charge under sec. 326 was not framed Sec. 237 of the Criminal Procedure Code lays down that in such circumstances, even if the accused is charged with one offence and it appears in evidence that he has committed a different offence for which he might have been charged under sec. 236, he may be convicted of the offence which he is shown to have committed, although he was not charged with it. To my mind this provision of law is clearly applicable to the facts of the present case. 14. The charge that has been framed in this case runs as follows:— "That you on or about 25th October, 1952 at about 8 P. M. in village Maunch struck at Ratanlal with sword with the intention of causing his death, thereby causing grievous and simple injuries on the right shoulder of Ratanlal, thus committing an offence punishable under sec. 307 of the Indian Penal Code. It clearly specifies the fact that the appellant had struck at Ratanlal with a sword. It was a charge of which the accused had sufficient notice, and even if sec. 326 is not mentioned it does not in any way prejudice the accused. Under sec. 307 of the Indian Penal Code. It clearly specifies the fact that the appellant had struck at Ratanlal with a sword. It was a charge of which the accused had sufficient notice, and even if sec. 326 is not mentioned it does not in any way prejudice the accused. Under sec. 225 of Criminal Procedure Code even if there is an error or omission in stating the offence it is not treated as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice. In this connection reference may be made to the case of Sk. Idris vs. The Emperor, (7). The defence of the accused shows that the appellant was never misled and there is no injustice occasioned to the appellant in this case. 15. I, therefore, hold that the appellant has been rightly convicted under sec. 326 of the Indian Penal Code. 16. Lastly, it was argued that the statement of the accused under sec. 342 Cr.P.C. was not properly recorded. I find that there is no such substance in the argument and it was also given up by the learned counsel for the appellant. 17. I dismiss the appeal, and maintain the conviction and sentence. The appellant is on bail and he must surrender himself to the Additional Sessions Judge, Gangapur to undergo the remaining period of imprisonment.