B. N. DASH, J. ( 1 ) THIS revision is directed against the judgment of the learned Sessions Judge, Phulbani whereby he has uphold the judgment and order of the learned Chief Judicial Magistrate, Phulbani convicting the petitioner under section 326, I. P. C. and sentencing him to undergo rigorous imprisonment for two years and to pay fine of Rs. 500/- in default to undergo rigorous imprisonment for a further period of three months. ( 2 ) THE prosecution case, briefly stated, is that on 9-8-1985 at about 11 a. m. while the injured Dirju Digal (P. W. 4) was returning to his village Dadigonda from village Karadi, the petitioner stopped him on the way and dealt axe blows causing incised injuries on his right arm and chest and, thereafter, forcibly removed away from the possession Rs. 790/ -. After receiving the injuries, P. W. 4 could manage to go to his village with difficult where he disclosed the incident to his son Jibardhan (P. W. 5), his wife (P. W. 7) and one Lankeshwar Digal (P. W. 10), who took them to Phulbani Sadar Police Station, where P. W. 5 lodged the F. I. R. , Ext. 3. In course of investigation the injured was examined by Dr. Arjuna Panda of Sadar Headquarters Hospital, Phulbani (P. W. 9) who submitted his report, Ext. 4, indicating that out of three injuries sustained by the injured one was grievous in nature and the other two were simple. After completion of investigation, charge sheet under section 394, I. P. C. was submitted against the petitioner and charge was accordingly framed thereunder. ( 3 ) THE defence of the petitioner was one of complete denial and according to him the case had been falsely foisted out of previous enmity. ( 4 ) AT the trial, 12 witnesses were examined and relying on the evidence of the injured (P. W. 4) which was indirectly corroborated by P. Ws. 5, 7 and 10 and also the Medical evidence of P. W. 9, the learned Chief Judicial Magistrate convicted and sentenced the petitioner as stated above and the appeal against such conviction and sentenced failed. ( 5 ) SHRI N. P. Patnaik, the learned counsel for the petitioner first took me through the evidence of P. Ws. 5, 7 and 10 and also the Medical evidence of P. W. 9, the learned Chief Judicial Magistrate convicted and sentenced the petitioner as stated above and the appeal against such conviction and sentenced failed. ( 5 ) SHRI N. P. Patnaik, the learned counsel for the petitioner first took me through the evidence of P. Ws. 4, 5, 7 and 10 at some length in his bid to satisfy me as to how the evidence of the injured (P. W. 4) is not believable. After going through the evidence of the said witnesses, I am unable to persuade myself that the evidence of P. W. 4 is unworthy of credit. On the otherhand, I find that although he had no axe to grind against the petitioner he had clearly implicated him in the commission of the offence and his evidence has been duly corroborated by P. Ws. 5, 7 and 10. The F. I. R. , Ext. 3, which has been lodged about 4 hours after the alleged occurrence and also the medical evidence lend indirect corroboration to the evidence of P. W. 4. Under these circumstances, the submission of Shri Patnaik for the petitioner that the evidence of P. W. 4 is not believed cannot be accepted. ( 6 ) THE substantial contentions of Shri Patnaik for the petitioner are two fold:- His first contention is that the petitioner having not been charged under section 326, I. P. C. could not be convicted thereunder. His second contention is that on the basis of the medical report it cannot be said that the petitioner caused grievous hurt to P. W. 4. Let us examine the soundness of these contentions. The first contention ignores the provision contained in section 222 (1) of the Code of Criminal Procedure, 1973 (for short, the Code) which is as under: 222 (1) Where 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, he may be convicted of the minor offence, though he was not charged with it. The above provision applies to cases where the charge is of an offence consisting of several particulars, some of which when combined and proved form a complete minor offence, when that is the case the accused may be convicted of the minor offence though not charged. The principle is that the graver charge gives notice to the accused of all the circumstances going to constitute the minor one of which he may be convicted. But when the circumstances constituting the major offence do not necessarily and according to the definition of the offence imputed by that charge constitute the minor offence also, the principle no longer applies because notice of the former does not involve notice of all that constitute the latter. The major and the minor offences must be cognate offence which have the main ingredients in common and a man charged with one offence cannot be convicted of an offence of an entirely different, type merely because the facts proved constituted a minor offence as he had no notice of the offence of which he was going to be convicted. Applying these principles, it is to be found out whether conviction of the petitioner under section 326, I. P. C. was justified although charge under section 394, I. P. C. had been framed against him. An accused can be convicted under section 394, I. P. C. , if it would be found that he committed or attempted to commit robbery and in committing or attempting to commit robbery he voluntarily caused hurt to the victim. THurt has been defined in section 319, I. P. C. Grievous hurtt in section 320, I. P. C. On a reading of both the sections there can be no manner of doubt that Thurt includes grievous hurt. If a person by voluntarily causing hurt in committing or in attempting to commit robbery can be convicted under section 394, I. P. C. , it becomes incomprehensible that he will escape from the mischief of that section if he commits robbery and voluntarily causes grievous hurt to the victim while committing or attempting to commit robbery. If a person by voluntarily causing hurt in committing or in attempting to commit robbery can be convicted under section 394, I. P. C. , it becomes incomprehensible that he will escape from the mischief of that section if he commits robbery and voluntarily causes grievous hurt to the victim while committing or attempting to commit robbery. So it has to be held that the offence of grievous hurt under section 326, I. P. C. is included in section 394, I. P. C. I, therefore, hold that by application of section 222 (1) of the Code the petitioner was justifiably convicted of the offence under section 326, I. P. C. , even though he had been charged under section 394, I. P. C. The view I have taken finds support from the case In re Raman Ambalam and others1. ( 7 ) SO far as the second contention is concerned it is necessary to refer to the injury report, Ext. 4, and the evidence of the medical officer (P. W. 9 ). According to the Medical report, P. W. 4 sustained the following injuries: (1) Tlncised wound 4 x 2-1/2 bone deep, over enterior and lateral part of deltoid about 6 away from right shoulder, Direction of wound-forwards and downwards, till humerus where the perioutium and superficial curtex of bone over 1/2 x 1/2 depth was found out. (2) Incised wound-2t x itt x 2-1/2, obliquely placed near post border and part of deltoid about 8tt away from shoulder. Both wounds having sharp and clean cut margin and communicate with each other with intact 2tt of skin and superficial tenders on surface. There was active art bleeding and blood clots. (3) Incised wound-1-1/2t x 1/2 x skin deep, over latoral chest wall (Right) about 4 away from Right arm pit. According to the medical officer, the injury No. 1 was grievous in nature and injury Nos. 2 and 3 were simple and all of them were caused by a sharp cutting weapon. It is the submission of Shri Patnaik for the petitioner that the injury No. 1 which, according to the medical officer, was grievous in nature having not disclosed that there was a fracture or dislocation of any bone the same may at best be called as a cut wound which does not amount to a fracture. It is the submission of Shri Patnaik for the petitioner that the injury No. 1 which, according to the medical officer, was grievous in nature having not disclosed that there was a fracture or dislocation of any bone the same may at best be called as a cut wound which does not amount to a fracture. It is true that fracture has not been defined in the Penal Code. But according to the Dorlands Pocket Medical Dictionary, 21st Edition, at page 257, fracturet means a break in the continuity of a bone. The medical report (Ext. 4) clearly shows that the depth of injury No. 1 on the humerus was 1/2 x 1/4. Regard being had to the nature and depth of this wound, there is absolutely no doubt in my mind that the same is grievous hurt within the meaning of Clause 7 of section 320, I. P. C. which defines grievous hurt. The view taken by me has been set at rest by the Supreme Court in Hon Lal and another v. The State of U. P. 2, where it hall been observed at page 1971 as follows: It is not nessary that a born should shoud be cut through and through or that the cract must extend fro the outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a break by cutting or splintering of the bone or there is a rupture or fissure in it, it would amount to a fracture within the meaning of clause 7 of section 320. What we have to see is whether the cuts in the bones noticed in the injury report are only superficial or do they effect a break in them. ( 8 ) A reference has been made by Shri Patnaik for the petitioner to the decision in Sarat Chandra Naik and others v. State of Orissa3. In that case, there was medical evidence to show that by screening, a particular wound was opined to be a fracture but since no X-Ray photo had been produced regarding any fracture as alleged by the doctor, this Court came to hold that in the absence of X-Ray examination the medical evidence that the wound was grievous cannot be said to have been established. This decision is not applicable to the facts of the present case inasmuch as there was no question of X-Ray and the medical evidence clearly goes to show that the humerus was cut to a depth 1/2 x 1/4. Thus, rejecting the contentions raised on behalf of the petitioner, I hold that one of the wounds oustained by P. W. 4 was a grievous hurt and since the said grievous hurt was inflicted by means a sharp cutting weapon like an axe the petitioner has been rightly convicted under section 326, I. P. C. by the trial Court and his conviction has been rightly upheld by the learned Sessions Judge. ( 9 ) IT is lastly contended by Shri Patnaik for the petitioner that the petitioner being a first offender, the benefit of the Probation of Offenders Act should be extended to him. The purpose of such enactment is to see that the first offenders having good conduct involved in offences punishable with fine or imprisonment upto a period of 7years are not sent to jail because by sending them to jail they will come in contact with hardened criminals and will turn out to be anti-social after their release. Since the offence under section 326, I. P. C. under which the petitioner has been convicted in punishable with imprisonment for life, or imprisonment for 10 years and fine, the benefit under the Probation of Offenders Act cannot be legally extended to him. A reference has been made to the decision in Hanan v. State of Punjab41but the said decision has no application inasmuch as in that case the benefit of the Probation of Offenders Act was extended to the appellant who had been convicted under section 325, I. P. C. , which is punishable with imprisonment for 7 years. ( 10 ) IN view of the foregoing discussions, I hold that the revision is without merit and the same is accordingly dismissed. Petition dismissed.