JUDGMENT : Lok Pal Singh, J. PW1 Vimal Kishor Bhatt set the criminal law into motion by lodging a report on 23.04.2015 with Police Outpost I.D.P.L., P.S. Rishikesh against unknown truck driver of truck no. HR 58/7246, stating therein that on 23.04.2015, his nephew Sachin Rayal was going on a motorcycle bearing registration no. UK 07 C/7078 along with his friend Ankit towards Khadri Khadakmauf from Rishikesh. The other motorcycle was being driven by complainant himself along with his relative Mohan Lal. At 07:52 P.M., when they reached in front of Sunrise hotel, Haridwar road, a truck bearing registration no. HR 58/7246, being driven by unknown driver, came from the side of Shyampur at a high speed and hit the motorcycle of Sachin Rayal, due to which, Sachin Rayal and Ankit got seriously injured and the motorcycle also got badly damaged. Truck driver speeded away towards Rishikesh after hitting the motorcycle. Complainant told Mohan Lal to take the injured persons to the hospital and chased the truck on his motorcycle. The truck driver appeared to be in the state of intoxication. Information was being given to the police. The same truck driver also hit two persons riding a motorcycle at Kale ki dhal. The police somehow managed to intercept the truck near Bhadrakali in the presence of the complainant. The driver was identified. Driver disclosed his name as Rishiram Yadav to the police. Sachin Rayal was declared dead by the doctors of Govt. hospital, Rishikesh. 2. On the basis of chik FIR, FIR was lodged against the accused for the offences punishable under Sections 304, 338 and 427 IPC. After investigation, charge sheet was submitted against the accused-appellant for the selfsame offences. The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of the Cr.P.C., committed the case to the court of Sessions, for trial. Learned I Addl. Sessions Judge, Rishikesh, took cognizance and framed charge for the offences punishable under Sections 304 Part II, 338, 427 IPC against the accused, to which he pleaded not guilty and claimed to be tried. 3. Prosecution got examined PW1 Vimal Kishor (complainant); PW2 Mohan Lal; PW3 Constable Arvind Singh Pundir; PW4 Ankit Rawat; PW5 Dr. Rohit Upadhyaya; PW6 Dr. Harish Diwedi; PW7 H.C.M.T. Hayat Singh; PW8 S.I. Rajesh Singh, PW9 Dr. U.P. Gupta and PW10 S.I. Yogesh Kumar. 3. Prosecution got examined PW1 Vimal Kishor (complainant); PW2 Mohan Lal; PW3 Constable Arvind Singh Pundir; PW4 Ankit Rawat; PW5 Dr. Rohit Upadhyaya; PW6 Dr. Harish Diwedi; PW7 H.C.M.T. Hayat Singh; PW8 S.I. Rajesh Singh, PW9 Dr. U.P. Gupta and PW10 S.I. Yogesh Kumar. The oral and documentary evidence was put to the accused, under Section 313 of Cr.P.C., in reply to which he stated himself to be innocent and alleged that the evidence against him is false. However, no evidence was adduced in defence. 4. After considering the evidence on record, learned I Addl. Sessions Judge, Rishikesh, Dehradun, vide judgment and order dated 28.01.2016, convicted accused-appellant Rishiram Yadav under Sections 304 Part II, 338 and 427 IPC. The convict was sentenced to undergo rigorous imprisonment for a period of ten years under Section 304 Part II IPC. He was also sentenced to undergo two years rigorous imprisonment under Section 338 IPC and rigorous imprisonment for a period of two years under Section 427 IPC. All the sentences were directed to run concurrently. Aggrieved against the same, present criminal appeal has been preferred by the convict, from District Jail, Dehradun. 5. Before further discussion, it is pertinent to mention here, the ante mortem injuries found on the person of the deceased Sachin Rayal, recorded by PW6 Dr. Harish Diwedi, who prepared the postmortem examination report (Ext A –8). The same are reproduced as under: “1. Laceration over left parieto occipital region, 3 cm X 1 cm present. 2. Laceration 2 cm X 1 cm present and 2 cm X 1 cm over right forearm. Blood mark over left ear. 3. 7 cm long laceration present over right leg (Antero Lateral aspect.) Muscle nerves, veins exposed. Foreign body in the form of dirt/ grease present. On internal examination, following ante mortem injuries were found on the person of deceased Sachin Rayal: 1. Haematoma seen on the undersurface of scalp in left parieto-occipital region. 2. Fracture seen in left parieto-occipital region. 3. Laceration seen in left parieto-occipital region. 4. Sub-dural collection of blood seen in parieto-occipital region (left).” In the opinion of the Medical Officer, the cause of death of victim was comma as a result of ante mortem head injury. 6. PW4 Ankit Rawat, friend of the victim, was medically examined at Govt. hospital Rishikesh by PW5 Dr. Rohit Upadhyaya, who prepared the medical examination report (Ext. A-5). Sub-dural collection of blood seen in parieto-occipital region (left).” In the opinion of the Medical Officer, the cause of death of victim was comma as a result of ante mortem head injury. 6. PW4 Ankit Rawat, friend of the victim, was medically examined at Govt. hospital Rishikesh by PW5 Dr. Rohit Upadhyaya, who prepared the medical examination report (Ext. A-5). As per injury report, injured sustained lacerated wound 4 cm x 3 cm on frontal bone on right side; multiple abrasions on face around neck and lips. In the opinion of the Medical Officer, all the injuries are fresh, caused by blunt object. Injury no. 1 and 2 could be assessed after x-ray and radiological opinion. 7. Accused Rishiram Yadav, driver of the truck, was also medically examined at Govt. hospital Rishikesh by PW5 Dr. Rohit Upadhyaya, who prepared the medical examination report (Ext. A-6). As per medical examination report Rishiram has consumed alcoholic preparation and he is under its toxic effect. Samples of blood and urine were taken, sealed and handed over to the police constable concerned for estimating quantity of alcohol. 8. PW1 Vimal Kishor Bhatt is the maternal uncle of victim, who was accompanying the victim on another motorcycle on the fateful day. PW1 lodged the FIR of the incident. In his examination-in-chief he has reiterated what was stated by him in the FIR. He proved the FIR (Ext. A-1). According to PW1, the incident took place 07:52 P.M. In his cross examination, he denied the fact that he is giving false evidence in the court because the deceased was his nephew. 9. PW2 Mohan Lal is the relative of the complainant and victim, who was a pillion rider on the motorcycle on the fateful day. In his examination-in-chief PW2 stated that on 23.04.2015, he was sitting behind his brother-in-law (complainant) who was riding the motorcycle. Sachin Rayal and his fried Ankit were on another motorcycle at some distance. When they reached near City gate I.D.P.L., a truck bearing no. HR 58/7246, coming towards Rishikesh from Haridwar, being driven negligently and carelessly came from behind at high speed and hit the motorcycle and sped away. Sachin and Ankit sustained injuries in the accident. PW2 took the injured persons to Govt. hospital, Rishikesh. PW1 Vimal chased the driver of the truck on his motorcycle. Sachin was given medical treatment in the hospital, who later succumbed to his injuries. Sachin and Ankit sustained injuries in the accident. PW2 took the injured persons to Govt. hospital, Rishikesh. PW1 Vimal chased the driver of the truck on his motorcycle. Sachin was given medical treatment in the hospital, who later succumbed to his injuries. PW2 corroborated the evidence adduced by PW1 that FIR was lodged about 07:50 or 07:52 P.M. In his cross-examination, PW2 denied the fact that he had not witnessed the incident. 10. PW3 Constable Arvind Singh Pundir is a formal witness. He deposed that he was posted at P.S. Rishikesh since 2011. On 23.04.2015, he was posted there as Constable/clerk. PW3 prepared the chik FIR (Ext. A-3) on the basis of report lodged by complainant Vimal Kishor against unknown truck driver of truck no. HR 58/7246 under Sections 304, 338, 427 IPC. PW3 proved the entry (Ext. A-4) made in the General Diary. 11. PW4 Ankit Rawat is the friend of the deceased. PW4 stated in his examination-in-chief that on 23.04.2015, he along with Sachin went to Rishikesh on a motorcycle for purchasing the medicine of Sachin’s grandmother. Sachin was driving the motorcycle. While returning back, they met complainant Vimal Kishor, who was on his bike. Complainant was following them at some distance. When PW4 and Sachin reached near City Gate Sunshine Hotel on Haridwar Road, a truck which was being driven rashly and negligently, came from Haridwar Road side and hit the motorcycle with great force, as a result of which, the motorcycle fell down. PW4 sustained injuries on his head, face, shoulders and right leg. The accident took place at 07:50 or 07:52 P.M. Sachin died in the accident. According to PW4, he was medically treated first at Govt. hospital, Rishikesh and thereafter at C.M.I. Dehradun and finally at Nirmal Ashram hospital, Rishikesh. PW4 identified the accused as the driver of the truck in the open court. In his cross-examination, PW4 deposed that he become unconscious after the incident. PW4 denied the fact that he is giving false evidence. 12. PW5 Dr. Rohit Upadhyaya was the Medical Officer in the Govt. Hospital, Rishikesh, who examined injured PW4 Ankit Rawat. PW5 proved the medical report (Ext. A-5), as mentioned in para 6 above. PW5 also medically examined the accused Rishiram and proved the medical report (Ext. A-6) thereof. In his medical report (Ext. A-6), this witness opined that pulse of accused was 78/min. His blood pressure was 130/74. Hospital, Rishikesh, who examined injured PW4 Ankit Rawat. PW5 proved the medical report (Ext. A-5), as mentioned in para 6 above. PW5 also medically examined the accused Rishiram and proved the medical report (Ext. A-6) thereof. In his medical report (Ext. A-6), this witness opined that pulse of accused was 78/min. His blood pressure was 130/74. Eyes of the accused were congested, pupils dilated, face flushed. Lips and tongue of the accused were dry. His speech was slurred and abusive. Limping was present in his gait. Alcoholic smell was present on respiration. Accused was not fully oriented to time, place and person. The accused had consumed alcoholic preparation and was under its toxic effect. 13. PW6 Dr. Harish Diwedi conducted postmortem examination on the dead body of the victim and proved the postmortem report (Ext. Ka-8), as mentioned in para 5 above. PW6 opined that the injuries sustained by the victim could have been possible due to accident and the injury sustained on the head was sufficient to cause death. 14. PW7 H.C.M.T. Hayat Singh made inspection of truck no. HR 58/7246, involved in the accident, in I.D.P.L. police outpost campus. On inspection, front right bumper, mudguard, left bumper and left mudguard were found damaged. The front right headlight was also found damaged. PW7 proved the accidental report (Ext. A-9). This witness also inspected Bajaj Discover motorcycle no. UK 07 AC/7078, involved in the accident. On inspection, chesis, fuel tank, break, transmission, rear rim silencer, suspension and front and rear indicator were found damaged. PW7 proved the accidental report (Ext. A-10) in this regard. PW7 opined that said damage could have been caused due to accident. 15. PW8 S.I. Rajesh Singh was posted as Sub Inspector in P.S. Rishikesh on 23.04.2015. PW8 received information that a truck bearing registration no. HR 58/7246 is coming at high speed from Bypass road Haridwar, after hitting a motorcycle. The police party indicated the driver of the truck to stop, but he did not relent. Complainant Vimal Kishor, who was chasing the truck, told the police party that it is the same truck, which has also hit motorcycle no. UK 07 C/7078. The police party somehow managed to intercept the truck near Bhadrakali temple. The driver of said truck was also nabbed. PW8 proved arresting memo (Ext.A-11) of the accused. This witness also proved information memo (Ext.A-12), which was under his signatures and handwriting. UK 07 C/7078. The police party somehow managed to intercept the truck near Bhadrakali temple. The driver of said truck was also nabbed. PW8 proved arresting memo (Ext.A-11) of the accused. This witness also proved information memo (Ext.A-12), which was under his signatures and handwriting. PW8 stated that the accused was in a high state of intoxication. In his cross-examination PW8 deposed that the accused was arrested at about 09:30 P.M. and nobody was present at that secluded place during night time. PW8 denied the fact that he had not arrested the accused near Bhadrakali. 16. PW9 Dr. U.P. Gupta, is the visiting doctor in Nirmal Hospital, Rishikesh, who operated upon injured PW4 Ankit Rawat and fixed a rod in his thigh. PW9 proved the corresponding document (Ext. A-13) thereof. This witness opined that the injuries received by the patient could have been possible due to accident. 17. PW10 S.I. Yogesh Kumar was the Investigating Officer of the case. PW10 after receiving copy of chik FIR, took statements of the witnesses as also of the accused. PW10 also got the accused medically examined and obtained the medical report thereof. PW10 sent the blood and urine samples of the accused to F.S.L., Dehradun to ascertain the quantity of alcohol. The fact regarding registration of another case crime no. 113/15, under Sections 337, 304, 427 IPC against the accused has also come to light during investigation. This witness prepared site plan (Ext. A-14). PW10 submitted charge sheet (Ext. A-15) against the accused in the court. Nothing adverse has come in his cross-examination which creates doubt over his testimony. 18. Heard learned counsel for the parties and perused the entire evidence on record. 19. Mr. Sachin Panwar, Amicus Curiae appearing on behalf of the accused-appellant argued that the incident has taken place on open road and two eyewitnesses who corroborated the prosecution story, are the maternal uncle and relative respectively of the deceased, as such, their testimony should not be believed. In the case in hand, the place where the incident took place is a public road and the incident occurred right in front of the eyewitnesses. It is true that PW1 is maternal uncle of the deceased and PW2 is his relative. In the case in hand, the place where the incident took place is a public road and the incident occurred right in front of the eyewitnesses. It is true that PW1 is maternal uncle of the deceased and PW2 is his relative. In such circumstances, testimony of only close relative could have been suspected, but the factum which is established on record, that PW2 (eyewitness to the incident) took both the injured to the hospital immediately after the accident, removes any doubt as to his presence at the place of incident. As such, in the opinion of this Court, the testimony of these two eyewitnesses, one maternal uncle and other relative of the deceased, cannot be disbelieved. PW4, another eyewitness, was infact a pillion rider in the motorcycle being driven by the deceased and also sustained injuries in the accident. PW4 is also a reliable and trustworthy witness. 20. On behalf of the accused-appellant it is also argued, that the accused-appellant had no intention to commit culpable homicide of the deceased, as it was just an accident and accused had no enmity with the deceased, therefore at the most, the act on the part of the accused-appellant can be stretched to be covered by the offence punishable under Section 304A of IPC. This Court is unable to accept the submission advanced on behalf of the accused-appellant for the reason that, though, accused-appellant might not had intention to kill Sachin Rayal, but while driving the truck under the influence of liquor, rashly and negligently, at a high speed when he hit the motorcycle from behind, he knew that the deceased would suffer injuries, which may be fatal to him. Exception Four to Section 300 provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without offender’s having taking undue advantage or acted in a cruel and unusual manner. Such offence is punishable under Section 304 of IPC. This Court agrees with the learned A.G.A. for the State, who pointed out that in both the cases the mens rea in the form of intention or knowledge is required, while there is no such requirement of mens rea being with the act of the accused-appellant in case of causing death by negligence punishable under Section 304A of IPC. This Court agrees with the learned A.G.A. for the State, who pointed out that in both the cases the mens rea in the form of intention or knowledge is required, while there is no such requirement of mens rea being with the act of the accused-appellant in case of causing death by negligence punishable under Section 304A of IPC. The act on the part of accused-appellant is covered under Exception Four of Section 300 IPC and not the one punishable under Section 304A of IPC. 21. Statement of PW5 Dr. Rohit Upadhyaya, who conducted medical of the accused and prepared the medical examination report (Ext. A-6) thereof, corroborates the fact that accused Rishiram has consumed alcohol and he was under its toxic effect at the time of occurrence. Samples of blood and urine of the accused were taken, sealed and handed over to the police constable for estimating quantity of alcohol. 22. It has come on record that the samples of blood and urine of the accused-appellant were examined in the Forensic Science Laboratory. A true copy of said report is paper no. 45Ka/2 to 45Ka/3 in the record of the case. As per FSL report, the quantity of Ethyl Alcohol found in the blood sample of accused was 261.6 mg/100 m.l. and the quantity of Ethyl Alcohol found in the urine sample of accused was 287.5 mg/100 m.l. 23. Learned A.G.A. drew attention of this Court towards Section 185 of the Motor Vehicles Act, which stipulates that if quantity of 30 mg/100 m.l. is found in the blood of a person, then said person will be considered to be under intoxication. In the present case, the quantity of Ethyl Alcohol found in the blood sample of the accused-appellant was 261.6 mg./100 m.l., meaning thereby, that the accused-appellant was in a high state of intoxication at the time of occurrence of incident. 24. Having gone through the entire evidence on record and after hearing the submissions of learned counsel for the parties, this Court is in agreement with the trial court that the offences for which the accused-appellant was charged were fully proved against him. The punishment awarded against the accused-appellant by the trial court is most proper, just and reasonable, in the facts and circumstances of the case. Impugned judgment and order does not require interference by this Court. 25. The criminal jail appeal is hereby dismissed. The punishment awarded against the accused-appellant by the trial court is most proper, just and reasonable, in the facts and circumstances of the case. Impugned judgment and order does not require interference by this Court. 25. The criminal jail appeal is hereby dismissed. The Registry of this Court is directed to send the information to the Superintendent of jail, concerned where the convict is presently serving out his sentence. 26. Let a copy of this judgment along with the lower court records be sent to the Court below for compliance.