IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Government Appeal No. 280 of 2002 State of Uttarakhand. ………. Appellant Versus Raj Kumar & others. ..………. Respondents Mr. Prabhakar Joshi, Advocate for the State / appellant. None for the respondents. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C. J. (Oral) In the instant case, leave to prefer an appeal has been granted. Such leave was accorded on 2nd November, 2002. Thereafter, no effort was made to have the matter listed for admission. The matter has been listed for admission today, inasmuch as, the Court is disposing of old matters. In the meantime, pursuant to the orders passed by the Court, respondent Nos. 2, 3 & 4 have been served and it has been reported that respondent No. 1 has died. Ms. Menaka Tripathi, Advocate, has been engaged by respondent No. 2 to contest the appeal on behalf of the said respondent. However, Ms. Menaka Tripathi is not present in Court. 2. Let it be recorded that the appeal stands abated as against respondent No. 1, since he is dead. 3. A young married lady died an unnatural death within 7 years from the date of her marriage and, accordingly, a case under Section 304-B of the Indian Penal Code was made out against the respondents. In the First Information Report, which was lodged by the brother of the deceased, there was no mention of dowry, harassment for non-furnishing of dowry and the person responsible for making such harassment. In the chick FIR, which was not counter-signed by the brother of the victim, it was recorded that the dowry was in the nature of a demand for Rs. 50,000/- and that, in 2 connection therewith, respondents were harassing the victim. At the trial, the person, who recorded the chick FIR, was not called to depose. 4. The brother and the mother of the victim narrated, in course of evidence, the demand that was made on account of dowry and the harassment that was meted out to the victim for non-fulfillment of the demand for dowry. It was stated that, before she died, the victim wrote a letter, where she indicated that, unless Rs. 50,000/- is arranged immediately, there is a possibility that she may be killed. According to the mother and the brother of the deceased, original of this letter was handed over to the Investigating Officer after retaining a xerox copy thereof. The Investigating Officer, in course of his evidence, denied having received any such letter from the mother and the brother of the victim. Accordingly, the original of the purported letter was not produced in course of trial. The mother and the brother of the victim, however, purported to produce xerox copy of the said letter. Xerox copy is nothing, but positive of a photograph. A photograph, in order to be tendered in evidence, is required to be tendered with the positive as well as the negative thereof. The negative of the photograph was not produced in the instant case. In the circumstances, the xerox copy of the letter, as was produced, could not be regarded as a secondary evidence and, as such, no reliance thereon could be placed. 5. The mother and the brother of the victim deposed that the victim, before her death, having collected an information that attempts are being made to kill her by burning, left the matrimonial home, came to her parental home and narrated the story to the mother and the brother of the victim. In that connection, the mother and the brother of the victim did not act positively. They neither approached the police station nor the panchayat. They did not even keep the victim at their house to protect her from being burnt. The question is, why should court believe such statements, though made under oath? The prosecution failed to bring on record anything, which could inspire the court to accept such statements 3 made by the mother and the brother of the victim in course of giving evidence. 6. Principally for these reasons, the court below has refused to accept the prosecution story. We have not been able to persuade ourselves to take a contrary view on the basis of the evidence on record. We, accordingly, refuse to admit the appeal and, accordingly, dismiss the same. (U.C. Dhyani, J.) (Barin Ghosh, C. J.) 26.12.2011 26.12.2011 G