JUDGMENT K.S. Garewal. J.:- On February 3, 2002 a taxi-driver named Naresh Kumar disappeared from Gurgaon with his vehicle never to be seen again. 2. Ram Niwas, a government contractor of Patel Nagar, Gurgaon, filed a report at Police Station City, Gurgaon on February 11, 2002 regarding. the disappearance of his brother Naresh Kumar. The complainant’s brother was a taxi driver on the complainant’s Tata Sumo HR 55-T 8983. According to the complainant, on February 3, 2002 his vehicle had been hired by someone for Bareli (Uttar Pradesh) on payment of Rs.1200/- for the trip. When the complainant’s brother did not turn up till February 5, the complainant lodged a missing person report with the Police Station. The complainant had searched for his brother at Delhi, Ghaziabad, Noida, Meerut, Bareli, Shahjahanpur and Badaun but found no clue about the whereabouts of his brother or the vehicle. The complainant suspected that someone had hired the vehicle with a view to kill his brother after inducing him with payment of hire charges. The complainant also suspected that his brother was either confined somewhere or killed. Lastly, the complainant stated that the man who had hired the vehicle was of stout built, medium height, fair colour and aged about 40-45 years. He had thick moustaches and reverse hair. He wore spectacles. He had been clearly seen by complainant’s son Sanju. The police registered F.I.R. No. 122 on February 11, 2002 under Section 364 LP.C. 3. Naresh Kumar was never found, but on March 28, 2002 the vehicle was recovered by the police of Police Station Shoro, District Etah (Uttar Pradesh) in F.I.R. No. 96 registered under Section 41/102 Cr.P.C. and 411 I.P.C. This case had been registered by the police against Devinder Kumar Sharma son of Deviki Nandan Sharma, Pureni, District Aligarh (Uttar Pradesh) and three others namely Fateh Singh, Vedvir and Krishan Lal. The Investigator had stopped Fateh Singh driving a stolen Marshall Jeep UP 25P774, when an informer had conveyed to him that a gang of four car thieves consisting of the above four persons were coming towards Kasganj in a stolen Marshall Jeep and going to Badaun for selling it. The Jeep was carrying a fake registration number. The police party waited near the gate of the Polytechnic College. After sometime, the jeep was spotted coming from Kasganj. The Jeep was stopped and Fateh Singh was arrested. The Jeep was carrying a fake registration number. The police party waited near the gate of the Polytechnic College. After sometime, the jeep was spotted coming from Kasganj. The Jeep was stopped and Fateh Singh was arrested. On interrogation Fateh Singh revealed that his three companions who had managed to escape, were Devinder Kumar Sharma, Vedvir and Krishan Lal. Fateh Singh was further interrogated and he disclosed that he also had two Tata Sumos lying parked behind a Block in Shoro and could get them also recovered. The Investigator was led to the place where the two vehicles were parked. One of them bore No. DL 4C-1107. The other had no number plate but its chassis No. was 418011 GYZ 907008 and engine No. DL-51­ GYZ 7707490. This number matched with the Tata Sumo which Naresh Kumar was driving on February 3, 2002. Naresh Kumar had never been seen again. The above is the connection between the disappearance of Naresh Kumar from Gurgaon on February 3,2002 and the recovery of his vehicle from Shoro (Etah) on March 28, 2002. 4. Devinder (Kumar) Sharma above mentioned was tried for Naresh Kumar’s murder. He was found guilty and convicted by the learned Additional Sessions Judge under Section 302,364,201 and 120-B I.P.C. on May 14, 2008. The learned Trial Judge reviewed the law on death penalty and came to the conclusion that Devinder Kumar’s was the rarest of rare cases and awarded death penalty, subject to the confirmation by the High Court under Section 366 of the Code of Criminal Procedure. Devinder Kumar was also awarded rigorous imprisonment for 10 years and to pay fine of Rs.20,000/- under Section 364 I.P.C. , in default of payment of fine to further undergo rigorous imprisonment for 2½ years. He was also awarded the death sentence for offence under Section 302 I.P.C. read with Section I20-B IPC. Lastly, he was awarded rigorous imprisonment for 4 years under Section 201 I.P.C. and to pay a fine of Rs.10,000/-, in default of payment of fine to further undergo rigorous imprisonment for 1 year. All sentences of imprisonment were directed to run concurrently. We have before us Murder Reference No.04 of 2008 referred by learned Additional Sessions Judge, Gurgaon for confirmation of death sentence awarded vide his judgment dated May 14, 2008. All sentences of imprisonment were directed to run concurrently. We have before us Murder Reference No.04 of 2008 referred by learned Additional Sessions Judge, Gurgaon for confirmation of death sentence awarded vide his judgment dated May 14, 2008. Devinder Kumar has also filed Criminal Appeal No. 406 DB of 2008 to challenge his conviction and sentence. 5. In the above introduction some of sailent features of the case have been narrated. We shall now proceed to describe in detail the investigation conducted by the police, the circumstances in which Devinder Kumar was arrested and sent up for trial. 6. From February 11, 2002 till October 2, 2004 the police investigators of Police Station City, Gurgaon made no progress in the case, no arrests, no interrogation of the witnesses, no recovery of any property, nothing whatsoever had moved during this period in the direction of finding the missing person or locating the Tata Sumo, which was all the while lying parked at P.S. Shoro. 7. Apparently, Ram Niwas (PW-1) came to know through some newspaper report that a person, who snatched vehicles after hiring them, had been apprehended by the police. So Ram Niwas reached Police Station City, Gurgaon where he found Devinder Kumar in the custody of the police. The accused had earlier been arrested by S.I. Ram Phool, C.I.A. Staff, Palwal (PW-4) on August 8, 2004 in F.LR. No. 1274 dated October 23, 2003 under Section 302 etc. 1PC. The accused had been interrogated by SI Ram Phool in F.I.R. 1274 and he had made a detailed confession which connected him with the disappearance of Naresh Kumar and the missing Tata Sumo. 8. The accused’ was arrested in the present case by SI Mohd. Hussain (PW-9) on October 2, 2004. The accused was interrogated in the presence of Ram Niwas (PW-1). He disclosed that he had kept concealed clothes, passbook and driving licence of the deceased near the banks of the Hazara river. His statement was recorded and the Investigator was led to the stated place of concealment from where shirt and pants were recovered. From the pocket of the shirt, driving licence and bank passbook of the deceased were recovered. These items were taken into possession. Furthermore, the accused made a second disclosure on the basis of which the missing Tata Sumo was taken into possession from P.S. Shoro. 9. According to S.l. Mohd. From the pocket of the shirt, driving licence and bank passbook of the deceased were recovered. These items were taken into possession. Furthermore, the accused made a second disclosure on the basis of which the missing Tata Sumo was taken into possession from P.S. Shoro. 9. According to S.l. Mohd. Hussain (PW-9) the accused had pointed out the place near the river where Naresh Kumar had been murdered and his dead body thrown in the river. The Investigator prepared a site plan of the spot. After completion of the investigation Devinder Kumar was sent up to face trial. 10. At the trial, charges were framed against the accused for having entered into a conspiracy with the three absconding co-accused, Fateh Singh, Vedvir and Krishan Kumar to murder Naresh Kumar (120-B IPC), to abduct him so that he may be murdered (364/34 IPC), actually committed the murder (302/34 IPC) and caused disappearance of the body (201/34 IPC). 11. The accused pleaded not guilty and claimed trial. The prosecution examined nine witnesses. Ram Niwas (PW-l) testified regarding the circumstances in which his brother had disappeared from Gurgaon on February 3, 2002. He also testified about the registration of the case, interrogation of the accused after his arrest, the recovery of clothes, licence and passport of the deceased and the missing vehicle. Inspector Siridev (PW-2) testified as regards preparation of the final report under Section 173 Cr.P.C. Inspector Balbir Singh (PW-3) testified regarding the recording of the statement of Sanjay alias Sanju on February 12, 2002 SI Ram Phool (PW-4) testified regarding the arrest of the accused in FIR No. 1274 of 2003 of Police Station City, Palwal and the interrogation of the accused in that case. C. Ashok Kumar PW-5 prepared the site plan of the spot in Gurgaon from where the accused had hired Naresh Kumar’s vehicle and the place where the dead body was thrown in the river. The distance between the two locations was recorded as 300 Kms. 12. Sanjay alias Sanju (PW-6) testified that in February 2002 he was student of 10+2 Senior Secondary School, Gurgaon. February 3, 2002 was Sunday and he was at home. At about 10.00 A.M. his uncle Naresh (Kumar) Verma came to the house in his white Tata Sumo HR 58 D-8983. The other person sitting in the vehicle was wearing a navy blue suit, white shirt and a red tie. February 3, 2002 was Sunday and he was at home. At about 10.00 A.M. his uncle Naresh (Kumar) Verma came to the house in his white Tata Sumo HR 58 D-8983. The other person sitting in the vehicle was wearing a navy blue suit, white shirt and a red tie. He was wearing a black goggles. He had combed his hair on the reverse side. He had good health, thick moustaches and wheatish complexion. According to Sanjay his uncle took the papers of the vehicle, the tools and left the house. Sanjay was called upon to identify the accused in the court on September 1, 2007 and testified that the accused was the same person whom he had seen sitting in his uncle’s vehicle on February 3, 2002. 13. Retired Inspector Attar Singh (PW-7) testified that he had recorded the statement of Ram Niwas which formed the basis of the F.I.R. He had also visited the place from where vehicle had been hired. SI Ganga Singh (PW-8) testified that on October 4, 2004 he was posted as MHC in Police Station Shoro District Etah (Uttar Pradesh). On that day S.I. Mohd. Hussain (PW-9) and Ram Niwas had come to the Police Station and Ram Niwas had identified Tata Sumo HR 55 T 8983. The vehicle was not in running condition. The vehicle was parked in the Police Station in F.I.R. No. 96 of 2002. Tata Sumo was handed over to SI Mohd. Hussain. Lastly Mohd. Hussain (PW-9) gave a detailed account of the investigation conducted by him after he had arrested the accused in the present case, recorded his disclosure statements and recovered the clothes, passbook and driving licence of the deceased and the vehicle. 14. Accused was examined without oath under Section 313 Cr.P.C. He denied the entire prosecution case, pleaded innocence and false implication. When called upon to enter defence, the accused tendered into evidence three judgments. Ex. D-l was judgment of Additional Sessions Judge, Gurgaon dated September 1, 2007 in State Vs. Devinder Kumar and another under Section 302 etc. IPC FIR No. 237 dated September 5, 2004, Police Station Sohna in which the accused had been acquitted. The accused further relied upon the judgment of Additional Sessions Judge, Fast Track Court, Gurgaon dated October 14, 2006 (Ex.D-2) in a case arising out of F.I.R. No. 423 dated August 8, 2004 under Section 302 etc. IPC FIR No. 237 dated September 5, 2004, Police Station Sohna in which the accused had been acquitted. The accused further relied upon the judgment of Additional Sessions Judge, Fast Track Court, Gurgaon dated October 14, 2006 (Ex.D-2) in a case arising out of F.I.R. No. 423 dated August 8, 2004 under Section 302 etc. IPC, P.S. Sadar, Gurgaon in which also he had been acquitted. Lastly, the accused relied on judgment Ex.D-3 of Additional Sessions Judge, Aligarh in case F.I.R. No. 101 of 1994 under Section 302 etc. IPC of Police Station Sasni, District Aligarh decided on December 23, 2006 in which too the accused was acquitted. The accused has a remarkable record of three acquittals but we are concerned with the case in which he stands condemned to be hanged. 15. The learned Trial Judge accepted the evidence of both Ram Niwas and his son Sanjay @ Sanju that they saw the deceased for the last on February 3, 2002 at 10 a.m. The Trial Judge also accepted the disclosures made by the accused with regard to the various recoveries and also with regard to the manner in which the deceased was killed and body thrown in the river. The learned Judge was rather swayed by the submissions of the prosecutor that it was a very serious crime, the accused had been involved in murdering’ of 21 persons to satisfy his lust for money, had been arrested in 21 cases at different places, most of them in National Capital Region (NCR). The 21 cases were regarding murder of taxi drivers. 16. Learned counsel for the accused has argued that the case against the accused was one entirely of circumstantial evidence. The deceased had been last seen in the company of the accused on February 3, 2002 at 10.00 a.m. Thereafter the deceased disappeared alongwith his vehicle. The vehicle was recovered in some other case by the police of Shoro on March 28, 2002 but nothing was known about the fate of the deceased. The accused was arrested on October 4, 2004 in this case and his disclosure statement led to the recovery of the clothes etc. of the deceased and the stolen vehicle. According to the learned counsel there was a flaw in the manner in which the Trial Court had appreciated the evidence. 17. The accused was arrested on October 4, 2004 in this case and his disclosure statement led to the recovery of the clothes etc. of the deceased and the stolen vehicle. According to the learned counsel there was a flaw in the manner in which the Trial Court had appreciated the evidence. 17. Ram Niwas (PW-1) testified at the trial that he and his son Sanjay had seen the accused sitting in the vehicle of the deceased on February 3, 2002 at 10.00 a.m. but this fact was conspicuously absent from the F.I.R. (Ex.P.A) and the Daily Diary Report (Ex.PF). 18. At this stage it may be appropriate to mention that on February 5, 2002 at 8.10 a.m. Ram Niwas had filed a missing person report with Police Station City, Gurgaon in which he had mentioned that his vehicle HR 55T 8983 operated as taxi from Taxi Stand Gurgaon. It was hired on payment of Rs.1200/- on February 3, 2002 from the Taxi Stand for Bareli and had not returned. He did not know about the whereabout of its driver who was Naresh Kumar Verma. The police had recorded this statement in the Daily Diary Register but had not registered a case as cognizable offence was closed. 19. Therefore, we have to scrutinize the statement of Ram Niwas in depth as it contains glaring omissions. There were two occasions for the witness to disclose to the police that his brother had come to the house on February 3, 2002 to pick up some documents and he was accompanied by the person who had hired the vehicle. When cross-examined on this aspect Ram Niwas said that when he had filed the application to the police regarding his brother being missing, the description of the person who had hired the vehicle was disclosed. We have seen the above gist in Ex.PF that this is not so. Furthermore, Ram Niwas in cross-examination admitted that he had recorded in F.I.R. that some unknown person had kidnapped his brother and then murdered him whereas Ex.P A contains the description of the person who had hired the vehicle as disclosed to Ram Niwas by his son. It is surprising why this description is missing from the earlier statement Ex.PF. 20. Sanjay alias Sanju (PW-6) certainly gave an account of the deceased coming to the house with someone to collect the papers of the vehicle. It is surprising why this description is missing from the earlier statement Ex.PF. 20. Sanjay alias Sanju (PW-6) certainly gave an account of the deceased coming to the house with someone to collect the papers of the vehicle. However, in cross-examination he admitted that he did not tell this to his father. It is a strange father and son relationship, father’s brother is missing, the son has last seen his uncle with a stranger whose features he has clearly observed but the son does not tell this to his father. On the other hand, the father reports the disappearance of his brother to the police, first on February 5 and again on February 11 when case of abduction is registered by the police but does not say that he saw the hirer. 21. The prosecution would like this court to accept that the features of the accused had been closely observed by Sanjay alias Sanju (PW-6) and that identification of the accused in the court should be accepted. Even Ram Niwas has testified in court that accused was the same person who had accompanied his brother to their house when his brother had come to pick up the documents of the vehicle. Until his examination in Court, Ram Niwas did not reveal to the police that he had seen the person who had hired the vehicle. Ram Niwas had two occasions to do so. He could have done so in DDR (Ex.PF) and also in FIR (Ex.PA). In neither of these documents is there a mention of the fact that Ram Niwas had seen hirer of the vehicle. Therefore, it is difficult to accept the identification of the accused in court by Ram Niwas who had never seen him earlier. Likewise it is difficult to accept identification of the accused in court by Sanjay alias Sanju because he did not tell his father that his uncle alongwith the hirer had come to the house on February 3 to collect the papers of the vehicle. What Ram Narain had told the police in F.I.R. Ex.PA was that the hirer had a certain description and that he had been seen by his son Sanju. In D.D.R. Ex.PF Ram Niwas had not said that his son had seen the hirer when the deceased and the hirer had come to their house on February 3, 2002. What Ram Narain had told the police in F.I.R. Ex.PA was that the hirer had a certain description and that he had been seen by his son Sanju. In D.D.R. Ex.PF Ram Niwas had not said that his son had seen the hirer when the deceased and the hirer had come to their house on February 3, 2002. From this we conclude that either Sanjay nor Ram Niwas had seen hirer of the vehicle. Therefore, they would not be in a position to identify him in the Court. 22. The question then is whether the deceased and the hirer had been seen together at all. Police investigation in this respect has been totally lackluster. Inspector Attar Singh (PW-7) was the S.H.O. Police Station Gurgaon on the day F.I.R. Ex.PA was registered. In cross-examination he admitted that after recording of the DDR on February 5, messages were flashed to all Police Stations and S.S.Ps in Haryana and the control room in Delhi with regard to the disappearance of Naresh Kumar. He was, however, unable to produce any record of those messages in court. After the registration of the case, Inspector Attar Singh visited the place from where vehicle was hired. In cross-examination he admitted that he reached the taxi stand at 5.00 p.m. He made enquiries from some other drivers present there namely, Naresh, Anil and Mange Ram. Mange Ram had disclosed that the accused had met him and wanted to hire his taxi. Mange Ram demanded Rs.5/- per km as fare. Since Naresh had agreed for less fare the accused hired his taxi. The prosecution did not produce Mange Ram as a witness. The Investigator did not even record Mange Ram’s statement under Section 161 Cr.P.C. We cannot believe that the taxi of the deceased was hired by anyone from the taxi stand because of complete lack of evidence in this regard. 23. As regards the recoveries on the basis of disclosure statements made by the accused, suffice it to say that a person who commits a murder and throws the dead body in a flowing river would hardly likely to keep the clothes of the deceased, his driving licence and passbook in a pit on the banks of the same river. It defies imagination to accept that this was what the accused had done. Body in the river but clothes in a pit. It defies imagination to accept that this was what the accused had done. Body in the river but clothes in a pit. Wouldn’t the appellant also throw the clothes in the river to make them disappear, alongwith the body. We cannot accept the evidence of recovery of these items as a piece of substantive circumstantial evidence against the accused. 24. The learned Trial Judge displayed a mind set which showed his concern at rising crime but in the process he overlooked principles of criminal law. The following excerpt from the judgment of the learned Judge reveals his mind:­ “Main problem in this case is that neither any eye witness of this occurrence is available nor the dead body of Naresh Kumar Verma was recovered nor the post mortem examination of the dead body was possible. In these circumstances the exact cause of death of the deceased is not available with the investigating agency as well as the court. xx xx xx xx xx xx I feel in such a situation in such type of cases court also is not supposed to give findings in each and every case in favour of the accused merely because the dead body could not be recovered and post mortem examination could not be conducted. If this straight jacket formula is used it will be very easy for the accused in such type of offences to escape punishment. In my view if the circumstantial evidence and other evidence on the file indicates that the dead body was destroyed by the assailant so that it may be easier for him to escape from punishment. I feel in such circumstances court is required to pass judgment as the situation demands. I feel if circumstantial evidence and other evidence on the file is enough to believe that the victim was murdered by the accused, the court should not hesitate to pass the judgment of conviction against the accused even if dead body was not recovered……..” The manner in which the learned Judge dealt with the case is unacceptable. The rising trend in crime and new ways adopted by the hard core criminals must be checked. This can best be done by adopting new methods of investigation and collection of evidence. The rising trend in crime and new ways adopted by the hard core criminals must be checked. This can best be done by adopting new methods of investigation and collection of evidence. In the present case the police went off to sleep and made no attempt to locate the vehicle when it was parked at Police Station in a neighbouring State for two and a half years. There seems to have been no exchange of information regarding stolen vehicles between the States of Haryana and Uttar Pradesh. Criminal record of crimes which show inter state pattern must be shared by the States. For criminal investigation there are no boundaries. In fact if Haryana Police refuses to enter Uttar Pradesh territory, it is a signal for the criminals of Haryana to escape to Uttar Pradesh with the secure knowledge they would not be chased. It also signals the criminals of Uttar Pradesh to enter Haryana and rob vehicles with ease before returning to their State. This case reveals abject failure of the police in the initial investigation and also failure of the police in the actual investigation after the accused was arrested. This has led to the failure of the prosecution. All this was understood by the learned Judge but overzealousness overtook him and he not only convicted the accused but also passed death sentence. 25. We are convicted that the evidence against the accused was insufficient for conviction. Criminal Appeal No.406 DB of 2008 is allowed and the accused is hereby acquitted. Consequently Murder Reference No.04 of 2008 is also declined. ----------------------