JUDGMENT : B.K. Behera, J. - The Petitioner assails the order of conviction recorded against him u/s 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 10 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 patty 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 u/s 506 of the Code. 3. Mr. Pradeep Mohanty, the learned Counsel for the Petitioner, has submitted that on the case of the prosecution itself, the Petitioner had no intention to cause loss and therefor, he had not committed mischief within the meaning of Section 425 of the Code. He has also submitted that the finding recorded by the learned Magistrate basing on the evidence of P.Ws. 1 to 3 is unreasonable calling for interference by this Court and due notice had not been taken of two important features, viz., (a) the non-examination of the wife of the opposite party and (b) the unexplained delay in making the complaint. The opposite party has not entered appearance in spite of service of notice. 4. 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 about 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 had testified that the Petitioner dealt a blow with his lathi on the window of the house. 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 had testified that the Petitioner dealt a blow with his lathi on the window of the house. P.W. 3 had stated that the Petitioner went to assault the wife of the opposite party with a lathi 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. 5. As has rightly been submitted by Mr. Mohanty, the most material witness would be the wite of the opposite party. She had not been examined and no reasonable explanation had been offered by P.W. 1. The non examination of such a material witness would cast a serious reflection on the fairness of the trial. 6. There had been a delay of eighteen days in making the complaint. P.W. 1 had sought to explain by saying that he had made a report at the police station and he was waiting for police action. Such an explanation should not have been accepted by the trial court, especially when the police report allegedly made had not been produced and proved. There had thus been unexplained delay in making the complaint of which due notice had not been taken by the trial court. 7. The intention of the Petitioner, as alleged, was, to assault the wife of the opposite party and his intention was not to cause damage to the window of the house. Mischief has been defined in Section 425 of the Code. Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits 'mischief'. A person commits mischief if he causes destruction of property knowing that he is likely to cause wrongful loss or damage to any person even if an intention to cause that damage is not made out. The offence of mischief imports an act done wilfully and not merely negligently. A person commits mischief if he causes destruction of property knowing that he is likely to cause wrongful loss or damage to any person even if an intention to cause that damage is not made out. The offence of mischief imports an act done wilfully and not merely negligently. Mere carelessness on the part of the accused person is not sufficient to constitute the offence of mischief. Mens rea is an essential ingredient of the offence of mischief and in its absence, a civil liability may arise, but a person would not be liable for criminal prosecution. As the prosecution sought to establish, the Petitioner intended to assault the wife of P.W. 1, hut accidentally the lathi hit the window of the house. It could not be said that the Petitioner knew that by his act, he was likely to cause damage to the window of the house of P.W. 1. On these facts, it cannot be said that the Petitioner had committed mischief within the meaning of Section 425 of the Code punishable u/s 426 thereof. 8. I thus find that the order of conviction recorded by the learned Magistrate was factually unfounded and legally misconceived. 9. I would allow the revision and set aside the order of conviction and sentence passed against the Petitioner. Final Result : Allowed