JUDGMENT :- The petitioner is convicted of the offence punishable under Section 326 of the Indian Penal Code and is sentenced to suffer R.I. for three months and to pay fine of Rs.500/ -, in default, to suffer S.I. for three weeks by Chief Judicial Magistrate, Nanded. The matter was carried in appeal. The order of conviction and sentence was confirmed by 4th Additional Sessions Judge, Nanded, by his order dated 8.9.1998. These orders are impugned in the present petition.

2. The facts, in nutshell are that: petitioner and complainant Mohammed Yunus were partners in the Ice factory. There were some disputes between them. On the day of occurrence, i.e. on 6.9.1990, at about 10 to 10.30 in the morning, near the hotel situated by the side of Hatai Masjid, there was a quarrel between the petitioner and Mohammed Yunus (PW-l). The quarrelled to a scuffle between the two. After the quarrel, petitioner went back to his house, returned with penknife and dealt a knife blow on the scapular region of Mohammed Yunus while he was unlocking his bicycle, in the presence of his father Mohd. Bagar (PW -2) and Sayeed Abdul Rahman (PW-3). Mohd. Yunus was then taken to the police station, where he lodged a report (Exh.15) and was thereafter sent for medical treatment. During the treatment, Dr. Mhaiskar (PW-5) found that the thorax rib beneath the injury was cut. The petitioner was, however, charged for having committed offences punishable under Sections 324 and 323 of the Indian Penal Code. At the commencement of the trial learned Chief Judicial Magistrate framed charge for, offences punishable under Sections 326, 324 and 323 of the Indian Penal Code.

3. At the conclusion of the trial, learned Chief Judicial Magistrate found that the injury, sustained by the victim is a grievous injury. He further found that the evidence of PW-2 Mohammed Bagar and PW-3 Sayeed Abdul Rahman is corroborated by the medical evidence and deserves credence. In this view of the matter, he convicted the petitioner of the offence punishable under Section 326 of the Indian Penal Code and sentenced him as stated earlier. The matter was carried in appeal. Learned 4th Additional Sessions Judge, Nanded dismissed the appeal by his order dated 8.9.1998, confirming the order of conviction and sentence passed by the Trial Court. These orders are impugned in the present revision petition.

4. Learned Counsel for the petitioner contends that the injuries suffered by Mohd. Yunus (PW-1) cannot be termed as grievous injury as it is not covered by any of the clauses mentioned in Section 320 of the Indian Penal Code. Therefore, the courts below have erred in convicting the petitioner of the offence punishable under Section 326 of the Indian Penal Code.

5. Per contra, learned APP Shri. Daund submits that cutting of a bone is tantamount to a fracture. Therefore, the Trial Court has rightly convicted the petitioner of the offence punishable under Section 326 of the Penal Code.

6. To appreciate the contention, it is necessary to refer to Section 320 of the Penal Code which defines grievous hurt. Section 320 reads as under:

"320. The following kinds of hurt only are designated as "grievous" :

First- Emasculation.

Secondly,- Permanent privation of the sight of either eye;

Thirdly, - Permanent privation of hearing of either ear,

Fourthly - Privation of any member or joint. Fifthly - Destruction of permanent impairing of the powers of any member or joint.

Sixthly - Permanent disfiguration of the head or face.

Seventhly - Fracture or dislocation of a bone or tooth.

Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in servere bodily pain, or unable to follow his ordinary pursuits. "

7. Clause seventhly includes fracture in the category of grievous hurt. Fracture includes cutting of the bone through and through, partial cutting of the bone, cracking, splintering or rupture of a bone. For causing fracture, it is not necessary that the crack should

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