JUDGMENT : Lok Pal Singh, J. Criminal law was set into motion at the instance of PW1 Sheespal, who lodged a report on 23.04.2015 against unknown truck driver of truck no. HR 58/7246 with Police Outpost I.D.P.L., P.S. Rishikesh, stating therein that on 23.04.2015, Suraj, brother of the complainant and his friend Raju were going on a motorcycle bearing registration no. UA 07 R/2303 and complainant and his brother-in-law Hira Lal were on another motorcycle bearing registration no. UK 07 AC/0791 towards Rishikesh from Sarwaranagar. One motorcycle was being driven by Raju in which complainant’s brother Suraj was a pillion rider. The other motorcycle was being driven by complainant’s brother-in-law Hira Lal and complainant was on the back seat. No sooner they took a turn towards Rishikesh, at about 08:00 P.M., a truck bearing registration no. HR 58/7246, being driven was unknown driver, came from behind at a high speed and hit the motorcycle driven by Raju and fled away along with the truck. As a result, Raju and Suraj got injured and their motorcycle also got badly damaged. Both the injured were taken to the Govt. hospital, where Suraj was declared dead. The dead body of Suraj was lying in Govt. hospital, Rishikesh. 2. On the basis of chik FIR, FIR was lodged against the accused for the offences punishable under Sections 304, 337 and 427 IPC. After investigation, a charge sheet was submitted against the accused 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, 337, 427 IPC against the accused-appellant, to which he pleaded not guilty and claimed to be tried. 3. Prosecution got examined PW1 Seeshpal; PW2 Raju Sharma; PW3 Hira Lal; PW4 Constable Vipin Rathi; PW5 Dr. Rohit Upadhyaya; PW6 Dr. Harish Diwedi; PW7 H.C.M.T. Hayat Singh; PW8 S.I. Rajesh Singh and PW9 S.I. Prakash Pokhariyal. 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. 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, 337 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 six months rigorous imprisonment under Section 337 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 Suraj, recorded by PW6 Dr. Harish Diwedi, who prepared the postmortem examination report (Ext A –8). The same are reproduced as under: “1. Frontal bone exposed just above the left eyeball. 2. Fracture in frontal bone left side seen. 3. Merringes congested and torn. Brain matter lacerated. 4. Brain matter coming out through fracture area, clotted blood seen over the brain tissue in left frontal area.” On external examination, abrasion 10 inches over left forearm, abrasion 10 inches over right arm, abrasion over B/L chut and left half of face and right arm were found. Blood mark on right ear. A 3 cm x 1 cm laceration seen just above the left eyeball in frontal area of scalp. Fracture seen in frontal area (left). In the opinion of the Medical Officer, the cause of death was comma as a result of ante mortem head injury. 6. Raju Sharma, friend of brother of the complainant, 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 received abrasion 5 cm x 3 cm over left foot. In the opinion of the Medical Officer, the injury is simple, fresh and caused by blunt object. 7. Accused Rishiram Yadav, driver of the truck, was also medically examined at Govt. hospital Rishikesh by PW5 Dr. A-5). As per injury report, injured received abrasion 5 cm x 3 cm over left foot. In the opinion of the Medical Officer, the injury is simple, fresh and caused by blunt object. 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 Sheespal is the real brother of victim, who was going along with the victim on a separate 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 FIR was got registered at 10:00 P.M. In his cross examination, he denied the fact that he is giving false evidence in the court because the deceased was his brother. 9. PW2 Raju Sharma is friend of the deceased. In his examination-in-chief PW2 stated that on 23.04.2013, he was driving his motorcycle UA 07R/2303 and Suraj was sitting behind him. They were proceeding towards Rishikesh. No sooner they reached Sarvahara Nagar, a truck bearing registration no. HR 58/7246, came from behind at the speed of 60, hit his motorcycle. PW2 fell down on the side of the road and Suraj fell on the road. The truck driver fled away along with the truck after hitting the motorcycle. According to PW2, due to said accident, both of them sustained injuries. PW2 got injury on his leg. Thereafter, PW1 and PW3 took them to Govt. hospital, where doctors declared Suraj ‘dead on arrival’. PW2 was medically treated and discharged from the hospital. Motorcycle of PW2 got damaged due to the said accident. Accident took place at about 08:00 P.M. In his cross-examination, PW2 denied the fact that he was not present on the place of incident and did not receive any injury. 10. PW3 Hira Lal is the brother-in-law of the deceased. PW3 stated in his examination-in-chief that on 23.04.2015, he was in his in-laws house, from where he along with his brother-in-law Sheespal proceeded towards Rishikesh on a motorcycle. 10. PW3 Hira Lal is the brother-in-law of the deceased. PW3 stated in his examination-in-chief that on 23.04.2015, he was in his in-laws house, from where he along with his brother-in-law Sheespal proceeded towards Rishikesh on a motorcycle. As soon as they reached the main road, Raju and Suraj were seen coming from I.D.P.L. on a motorcycle being driven by Raju. Raju and Suraj were driving ahead. As they barely drove some distance, a truck came from behind and hit the motorcycle of Raju. The number of the truck was HR 58/7246. The truck was speeding away at high speed and the driver sped away with the truck after hitting the motorcycle. The truck was being driven very recklessly and negligently. According to PW3, they took Raju and Suraj to Govt. hospital, Rishikesh, where Suraj was declared dead. PW2 Raju was given medical treatment. PW3 returned to his in-laws house. Thereafter, they proceeded towards police outpost I.D.P.L. and lodged the report there. PW3 stated that he scribed the FIR on the dictation of his brother-in-law Sheespal. The accident took place at about 08:00 P.M. PW3 proved his signatures on the inquest report (Ext. A-2). In his cross-examination, PW3 deposed that whatever is written in the report is correct. PW3 denied the fact that he is giving false evidence in the court because the deceased was his relative. 11. PW4 Constable Vipin Bhati is a formal witness. He stated in his examination-in-chief that he was posted in I.D.P.L. outpost since 2014. On 23.04.2015, he was posted there as Constable/clerk. PW4 prepared the chik FIR (Ext. A-3) on the basis of report lodged by Sheespal, at 10:10 P.M, against unknown truck driver of truck no. HR 58/7246 under Sections 304, 337, 427 IPC. PW4 proved the entry (Ext. A-4) made in the General Diary. Nothing has come in his cross-examination which could be of some help to the defence. 12. PW5 Dr. Rohit Upadhyaya was the Medical Officer in the Govt. Hospital, Rishikesh, who examined injured PW2 Raju. 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. 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. In his cross-examination, PW6 deposed that the injuries sustained by the deceased were not possible to have occurred during fall. 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 Hero Honda motorcycle no. UA 07R/2303, involved in the accident. On inspection, front headlight and back headlight 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 somehow managed to intercept the truck near Bhadrakali temple. The driver of said truck was also nabbed. PW9 proved arresting memo (Ext. A-11) of the accused. This witness also proved inquest report (Ext. A-2) of deceased Suraj, which was under his signatures and handwriting. 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. 16. PW9 S.I. Prakash Pokhariyal was the Investigating Officer of the case crime no. 113/15, under Sections 304, 337, 427 IPC. PW9 after receiving copy of chik FIR, took statements of the witnesses as also of the accused. 16. PW9 S.I. Prakash Pokhariyal was the Investigating Officer of the case crime no. 113/15, under Sections 304, 337, 427 IPC. PW9 after receiving copy of chik FIR, took statements of the witnesses as also of the accused. PW9 also got the accused medically examined. This witness prepared site plan (Ext. A-13). The fact regarding registration of another case crime no. 112/15, under Sections 338, 324, 427 IPC against the accused has also came to light during investigation. PW9 submitted charge sheet (Ext. A-14) against the accused in the court. Nothing adverse has come in his cross-examination which creates doubt over his testimony. 17. Heard learned counsel for the parties and perused the entire evidence on record. 18. 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 brother 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 real brother of the deceased and PW3 is his relative. In such circumstances, testimony of only close relative could have been suspected, but the factum which is established on record, that PW1 and PW3 (eyewitnesses to the incident) took both the injured to the hospital immediately after the accident, removes any doubt as to their presence at the place of incident. As such, in the opinion of this Court, the testimony of these two eyewitnesses, one friend and other relative of the deceased, cannot be disbelieved. PW2, another eyewitness, was infact driving the motorcycle himself and also sustained injuries in the accident. PW2 is also a reliable and trustworthy witness. 19. 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 Suraj, 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. 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. 20. 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. 21. It has come on record that the samples of blood and urine of the accused 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. 22. 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 the influence of intoxication. 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 the influence of 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. 23. 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. 24. 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. 25. Let a copy of this judgment along with the lower court records be sent to the Court below for compliance.