MUNIR MOHAMMED Vs. MD. ABDUL HAMID

JUDGEMENT

(1.) THE petitioner assails the order of conviction recorded against him under section 426 of the Indian Penal Code (for short, the Code) with a sentence of fine of Rs. 25/ - and in default of payment thereof, to suffer simple imprisonment for three days for having caused damage to the window of the house of the complainant. Md. Abdul Hamid (P.W. 1) on January 22, 1979.

(2.) THE case of the prosecution was that after a quarrel between the wives of the complainant -opposite party and the accused -petitioner, the petitioner aimed a blow by means of a lathi to assault the wife of P.W. 1 which, instead of hitting her, hit the window of his house for which there was damage and P. W. 1 sustained loss. To substantiate his case, besides examining himself as P. W.1, the complainant had examined two witnesses. The petitioner's case was one of denial. He had not examined any witness in his defence. The learned Subordinate Judge -cum -Judicial Magistrate, accepted the prosecution case with regard to the offence of mischief. The petitioner was acquitted in respect of the offence punishable under section 506 of the Code.

(3.) A reading of the evidence of P.W. 1 would show that he was not present on the scene and he had been informed by his wife without what had happened. While according to the case of the prosecution as presented by P.W. 1, the petitioner intended to assault his wife which missed her and hit the window of his house. P.W. 2 bad testified that the petitioner dealt a blow with his lathi on the window of the house. P.W. 3 bad stated that the petitioner went to assault the wife of the opposite party with a latl1i and 'he assaulted the window' thereby damaging it. No person "assaults" a window and the learned Magistrate ought to have recorded the evidence carefully and correctly. The evidence of the witnesses as to the occurrence was not consistent.