KALLAN KHAN AND ANR Vs. EMPEROR

JUDGEMENT

(1.) Kallan Khan and Muhammad Hanif, two brothers have been convicted by a Magistrate under Section 332, Penal Code, Kalian Khan has been sentenced to two months rigorous imprisonment and to pay a fine of Rs. 25 and Muhammad Hanif to pay a fine of Rs. 25 only. Their conviction and sentence were confirmed in appeal by the learned Sessions Judge.

(2.) The prosecution case, as borne out by the statement of Miss Vancell, a nurse, has been believed by the Courts below. It is to the effect that during the prevalence of small-pox in the Cantonment Area at Benares, an order was passed by the Civil Surgeon and communicated to Miss Vancell that she should go and vaccinate ladies and children in the Cantonment Area. It is said that she on 2nd April 1934, went to the house of Kalian Khan and knocked at the front door. On not getting any reply, she went to the door behind the house and knocked at it. Somebody asked from inside the house as to who was knocking and Miss Vancell s identity was announced.

(3.) After this nobody either opened the door or objected to the entry of Miss Vancell who thought that, as about 5 minutes had elapsed, there was no objection to her getting inside the house. She opened the door which was not chained from inside and the entered the house when it is said she was roughly handled by the two accused and her frock was torn. She received some hurt at the hands of the two accused. She remonstrated and said that she had come to vaccinate and that the accused should behave politely; but they instead of desisting inflicted some injuries on her. The story has been believed by the Courts below. The case for the defence however was that Kalian was very anxious to get his family vaccinated and had been trying for the last month or so to obtain vaccination and that a day or two before 2nd April, he had actually gone to the hospital and spoken to Miss Vancell about it when Miss Vancell behaved rudely towards him. He on 2nd April also sent a letter to Dr. Bala Prasad through his brother, Hanif, which was, according to the accused, actually delivered to Dr. Bala Prasad and in this letter Kalian Khan had said that he would not like to be vaccinated by Miss Vancell with whom he had a slight unpleasantness and that lie would get himself vaccinated by some other compounder. The sending of this letter on the date of the incident and the unpleasantness with Miss Vancell a day or two before have not been believed by the Courts below. The position therefore is that Miss Vancell knocked at the front, door and the door behind the house. It became known to the inmates of the house as to who was seeking admission. She waited for 5 minutes, during which time admission was not refused. The, door was not closed from inside and she entered. Under these circumstances the person seeking admittance should assume that he or she had the implied consent of the house owner to enter and if the person making the entrance happens to be a public servant who has entered the premises in order to discharge his or her public duties, and if he or she is obstructed or assaulted, as Miss Vancell was as suited in the present case, an offence, under Section 332, Penal Code, is made out.