Law: Penal Code (XLV of 1860)

Section: S. 300

Penal Code (XLV of 1860), S. 300, Exception `fourthly"-All ingredients to be satisfied to invoke Exception.   It is not enough to establish that the attack was unpreme ditated and the act was committed in the heat of passion. It has to be proved further that it was the result of sudden `fight' without the offender's `having taken undue advantage' over the victim. Besides it must also appear that the offender `did not act in a cruel or unusual manner.' All ingredients must be satisfied to invoke the aid of the exception.   The victim was unarmed, and when a person with a deadly instrument attacks an unarmed person who was running away, it cannot be said that the armed aggressor did not take any undue advantage of the latter. So Exception does not apply in the circumstances.   JUDGMENT   MURSHED, J.-Appellants Ekram Hossain and Suruj Ali alias Jamu were tried with the aid of Assessors by Mr. N. M. Khan, Sessions Judge, Mymensingh, along with another accused by the name of Momin Hossain. Appellant Ekram Hossain was charged under sections 302 and 324 of the Pakistan Penal Code. Appellant Suruj Ali alias Jamu was charged under section 302/109 of the said Code. Their co-accused Momin Hossain was charged under section 324 of the Code.   The prosecution case, in substance, is as follows:   Prior to the occurrence, narrated hereafter, the Ail dividing the lands belonging toone Isab Ali (P. W. 1) and appellant Ekram Hossain was removed in such a manner that according to Isab Ali (P. W. 1) it encroached upon his land and extended the boundary of the land in which the appellant Ekram Hossain was interested. Isab Ali noticed the shifting of the ail and did not protest then and there as appellant Ekram Hossain was considered by him to be a dangerous man. There after Isab Ali went back to the village and reported the matter to a member of village elders, called Matbars. He brought along with him several Matbars who inspected the ails and although appellant Ekram Hossain and others interested in the land were informed of the same, they did not turn up at the dime when the Matbars inspected the ail in question. While they were…