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Judgment
Fazl Ali, J.—The facts found in this case are that on the 20th March at about 9-30 p. M, the petitioner out of malice threw a human skull into the house of the complainant and that this skull was in a highly offensive condition. On these facts the petitioner has been convicted u/s 278 of the Indian Penal Code and sentenced to pay a fine of Rs. 60.
It is contended before me that even on the facts found no offence u/s 278 has been made out against the petitioner. Section 278 of the Indian Penal Code runs as follows:
Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood, or passing along a public way, shall be punished with fine which may extend to Rs. 500.
It is thus clear that the section is directed against a public nuisance and not a private nuisance. It is clearly provided that the atmosphere must be so vitiated as to make it noxious to the health of the persons in general dwelling or carrying on business in the neighbourhood or passing along a public way. In this particular case the skull was thrown into a private dwelling house, and there is ne finding to show that the effect of it was to make the atmosphere noxious to the other persons dwelling in the locality. There is no doubt that the conduct of the petitioner was most reprehensible and offensive; but I am unable to maintain his conviction u/s 278 of the Indian Penal Code, which I find does not apply to the facts of the present case.
I would, therefore, acquit the petitioner, set aside his conviction and sentence and direct that the fine, if paid by him, be refunded.