JUDGMENT : Sandeep Sharma, J. Being aggrieved and dissatisfied with judgment dated 15.10.2008 passed by learned Judicial Magistrate 1st Class, Court No.1, Amb, District Una, Himachal Pradesh in Police Challan No. 13-III-2006, whereby respondent-accused (hereinafter, 'accused') came to be acquitted of the offences punishable under S. 61(1)(a) of Punjab Excise Act (as applicable to the State of Himachal Pradesh) (hereinafter, 'Act'), appellant-State has approached this Court in the instant proceedings, praying therein for conviction of the accused after setting aside judgment of acquittal recorded by learned Court below. 2. In nutshell, case of the prosecution, as emerges from the record is that on 3.1.2006, police party, which was on patrolling duty, after having received secret information that the accused deals in illegal sale of liquor in his Flour Mill at Khuwarian, conducted raid. During search, Police allegedly recovered 30 cartons of "Bagpiper" whisky. Police took one bottle each from six cartons and prepared sample nips and sealed them with seal impression, "N". Since accused failed to produce valid permit, if any, to possess liquor in excess of the permissible limit, Police, after completion of codal formalities, registered FIR No. 4, dated 3.1.2006 under S.61(1)(a) of the Act ibid at Police Station Amb, District Una, Himachal Pradesh against the accused. 3. Prosecution, with a view to prove its case, examined as many as five witnesses, whereas, accused in his statement recorded under S.313 CrPC, denied the case of the prosecution in toto and claimed himself to be innocent. However, accused did not lead any evidence despite opportunity having been afforded for the purpose. 4. Learned trial Court, on the basis of evidence collected on record by the prosecution, vide judgment dated 15.10.2008, held accused not guilty of having committed offences punishable under S.61(1)(a) of the Act and acquitted him. In the aforesaid background, appellant-State has approached this Court, praying therein for setting aside judgment of acquittal and convicting the accused. 5. Having heard learned counsel for the parties and perused the material available on record, vis-a-vis reasoning assigned by learned Court below in the impugned judgment of acquittal, this court finds no illegality or infirmity in the judgment of acquittal passed by learned Court below and as such is not persuaded to agree with Mr. 5. Having heard learned counsel for the parties and perused the material available on record, vis-a-vis reasoning assigned by learned Court below in the impugned judgment of acquittal, this court finds no illegality or infirmity in the judgment of acquittal passed by learned Court below and as such is not persuaded to agree with Mr. Sanjeev Sood, learned Additional Advocate General that the impugned judgment of acquittal is not based upon proper appreciation of the evidence, rather, this court finds from the statements made by independent witnesses associated by investigating agency, while effecting search, if any, in the premises of the accused that the prosecution failed to prove beyond reasonable doubt that on the date of alleged incident, 30 cartons of "Bagpiper" whisky were recovered from the premises of the accused. None of the prosecution witnesses supported the case of the prosecution and as such, they were declared hostile but even cross-examination conducted on these witnesses nowhere compels this court to agree with the contention of Mr. Sanjeev Sood, learned Additional Advocate General that the court below erred while discarding version put forth by these witnesses because, prosecution during cross-examination of these witnesses was unable to extract anything advantageous to its case, rather version put forth by these witnesses in their cross-examination creates serious doubt with regard to correctness and genuineness of the story put forth by prosecution. 6. Independent witness Parvinder Kumar (PW-1) denied that he had participated in the police investigation. He also denied that search of Flour Mill of the accused was ever conducted, which allegedly led to recovery of liquor. He disowned portions "A" to "A" and "B" to "B" of his statement Mark P, recorded by the police. He further denied that memo Ext. PW-1/A was prepared in his presence, however, he stated that his signatures on the memo were obtained by the Police in the Police Station. 7. Similarly, PW-2 Gopal Krishan also did not support prosecution case. He denied that on 3.1.2006 police conducted search of Flour Mill of accused in his presence, which led to recovery of liquor. He also disowned the portions "A" to "A" and "B" to "B" of his statement mark G, allegedly recorded by the police. Though this witness admitted his signatures on the memo, Ext. PW-1/A, but voluntarily stated that signatures were put in the Police Station. 8. He also disowned the portions "A" to "A" and "B" to "B" of his statement mark G, allegedly recorded by the police. Though this witness admitted his signatures on the memo, Ext. PW-1/A, but voluntarily stated that signatures were put in the Police Station. 8. Pw-3 ASI Davinder Kumar though in his examination-in-chief supported the prosecution story and stated that on 3.1.2006, he alongwith HC Karanjit No. 63, LHC Pawan Kumar No. 189 was at Repoh, when at around 6.30 pm, a secret information was received that accused deals in illegal sale liquor at his Flour Mill, but in his cross-examination, he feigned ignorance with regard to owner of Flour Mill, from where liquor allegedly came to be recovered. In his cross-examination, this witness though admitted that search of flour mill of accused was conducted, which led to recovery of liquor but in cross-examination but stated that shop from where liquor was recovered, was open and not locked. He did not enquire about ownership of the shop from revenue authorities or the Pradhan. He also admitted that he did not associate the Pradhan or Lambardar during investigation. He admitted that PW-2 Gopal Krishan met them near the shop of accused. 9. Hc Pawan Kumar PW-4, deposed that on 13.2.2006, MHC Police Station Amb had handed over him 6 nips for depositing at CTL Kandaghat vide RC No. 21/06, which he deposited on 14.2.2006 at CTL Kandaghat. He stated that the sample nips were not tampered. 10. Asi Karanjit (PW-5) deposed that on 3.1.2006, he alongwith ASI Davinder and LHC Pawan Kumar had gone to Repoh in a private vehicle being driven by Parvinder Kumar. He stated that having received secret information that accused deals in illegal sale of liquor at his Flour Mill, they associated independent witness Gopal Krishan and thereafter searched the Flour Mill of the accused. They recovered 30 cartons of "Bagpiper" liquor. However, in his cross-examination, he feigned ignorance that who was owner of shop, from where liquor was allegedly recovered. He denied that he is deposing falsely in favour of the Police being police official. 11. They recovered 30 cartons of "Bagpiper" liquor. However, in his cross-examination, he feigned ignorance that who was owner of shop, from where liquor was allegedly recovered. He denied that he is deposing falsely in favour of the Police being police official. 11. Careful perusal of record reveals that alleged recovery of liquor from the premises of Flour Mill of accused came to be effected in the presence of independent witnesses namely Parvinder Kumar and Gopal Krishan, who miserably failed to support the case of prosecution, rather, cross-examination conducted on these witnesses creates serious doubt with regard to story put for by the prosecution. 12. Interestingly, both these witnesses have specifically denied their presence on the spot and they have stated that their signatures were obtained on the memo in the Police Station, meaning thereby story of search being put forth by the police is itself highly doubtful, especially when no cogent and convincing evidence except so called independent witnesses, ever came to be led on record by the prosecution. 13. As per prosecution story, Parvinder Kumar was driver of the private vehicle, in which police party went to Repoh. It is not in dispute that neither Parvinder Kumar nor Gopal Krishan (PW-1 and PW-2 respectively) are residents of locality where search was conducted. S. 100(4) CrPC clearly casts duty upon police to call two or more independent witnesses, especially inhabitants of the locality where place to be searched is situate, or from another locality, in case they are not available or not willing to be associated. 14. In the case at hand, no attempt ever came to be made by police to associate two or more respectable persons of area. Otherwise also, if statements of prosecution witnesses are read in their entirety, there appear to be lot of contradictions and inconsistencies in their statements with regard to location, area and number of rooms in the premises in question. Allegedly, in the site plan, Ext. PW-3/F, shop of accused has been shown to be consisting of two rooms whereas PW-5 in his statement deposed that shop consists of three rooms. Similarly, shop has been show to be tin-roofed in the site plan, whereas, PW-5 deposed it to be of RCC roof. Leaving it aside, there is nothing on record to suggest that accused is/was real owner of Flour Mill. Similarly, shop has been show to be tin-roofed in the site plan, whereas, PW-5 deposed it to be of RCC roof. Leaving it aside, there is nothing on record to suggest that accused is/was real owner of Flour Mill. Omission on the part of the investigating agency to prove the name of owner of the Flour Mill is fatal to the case of prosecution, especially in view of the stand taken by the accused that he does not own any Flour Mill. 15. Leaving everything aside, it is an admitted case of the prosecution that only six bottles out of total 30 cartons allegedly recovered from the Flour Mill of accused, were drawn as sample and sent for examination, as such, content is only proved qua those bottles in all, meaning thereby, recovery, of six bottles only is proved against the accused, whereas all the 30 cartons of liquor allegedly recovered from the house of the accused, were required to be sent for chemical examination, but in the instant case, whole bulk was not sent for chemical examination as such the whole of the recovery is vitiated. 16. In this regard reliance is placed upon the judgment passed by our own High Court in Surender Singh. V. State of H.P., (2013) 2 LatestHLJ 865, which reads as under:- "26. In the instant case, it be also noticed that there is yet another major flaw in the investigation by the police. Assuming that the contraband was actually recovered by the police party, police did not take samples from all the boxes. Samples only from few bottles out of some of the boxes, which they had opened, were taken. None of these witnesses have deposed that the remaining boxes were sealed; from outside appeared to be of the same make or brand; bearing serial numbers; the date of manufacture; or the place and the name of the manufacturer. All that these witnesses have deposed is that boxes of alcohol, as described above, were found in the vehicle. Inside the boxes could be anything. Police could not prove that the remaining boxes actually contained liquor. The samples cannot be said to be representative in character. 27. All that these witnesses have deposed is that boxes of alcohol, as described above, were found in the vehicle. Inside the boxes could be anything. Police could not prove that the remaining boxes actually contained liquor. The samples cannot be said to be representative in character. 27. In similar circumstances, this Court in Mahajan versus State of Himachal Pradesh, (2003) CriLJ 1346; State of H.P. versus Ramesh Chand, (2007) 2 LatestHLJ 1017; Dharam Pal and another versus State of Himachal Pradesh, (2009) 2 ShimLC 208 ; and State of Himachal Pradesh versus Kuldeep Singh and others, (2010) 2 HimLR 825, acquitted the accused, as prosecution could not prove, beyond reasonable doubt, as to what was actually there in the remaining boxes. 28. As per version of PW-1, outside the boxes 'Sirmour No.1' was printed which version stands denied by PW-7. In the instant case, there is nothing on record to show that the remaining boxes were in fact containing liquor. Quantity of the remaining bottles of the boxes from which samples were drawn has also not been proved to be liquor. These aspects have not been considered by the Courts below. The cumulative effect is that the prosecution has failed to prove the charge against the accused, beyond reasonable doubt and as such judgments of the Courts below are not sustainable in law." 17. Reliance is also placed on the judgment passed by this Court State of H.P. v. Jagjit Singh, 2008 LatestHLJ 919 (HP), wherein this Court has observed in paras 6 and 7 as under:- "6. At the very outset, I would like to say that neither the non-compliance of sub-section (6) of Section 100 of the Code of Criminal Procedure will render the search illegally nor the respondent can be acquitted on this sole ground. However, in the instant case the regrettable feature is that as per the case of the prosecution 72 pouches of country liquor of "Gulab" brand country liquor containing 180 ml. each were recovered from the possession of the respondent. Admittedly, one pouch of 180 ml. out of the recovered quantity was retained as a sample, which was of licit origin as opined by the Chemical Analyst. 7. There is nothing on record to show that the remaining 71 pouches alleged to have been recovered from the respondent also contain the country liquor more than the permissible quantity without the permit or licence. out of the recovered quantity was retained as a sample, which was of licit origin as opined by the Chemical Analyst. 7. There is nothing on record to show that the remaining 71 pouches alleged to have been recovered from the respondent also contain the country liquor more than the permissible quantity without the permit or licence. Before the respondent could be convicted for the offence charged, it was incumbent upon the prosecution to prove that the respondent was in actual and conscious possession of the licit liquor in excess of the prescribed limit." 2. By now it is well settled that in a criminal trial evidence of eye-witness requires careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since fundamental aspect of criminal jurisprudence rests upon well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon'ble Apex Court has held that there must be a string that should join the evidence of all the witnesses thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on the touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in C. Magesh and others versus State of Karnataka, (2010) 5 SCC 645 , wherein it has been held as under:- "45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U.P., (2008) 16 SCC 686 : 2008 (11) SCR 286 has held:-( SCC p.704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy; ..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is guilty until proven so," hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses." 18. In view of the aforesaid discussion and law laid down by the Hon'ble Apex Court as well as this Court, there are major flaws in the investigation of the prosecution and prosecution story does not appear to be believable. 19. Consequently, in view of detailed discussion made herein above, this Court sees no reason to differ with the judgment of acquittal recorded by the learned Court below, which otherwise appears to be based upon correct appreciation of evidence adduced on record. 20. Accordingly, the present appeal is dismissed. Judgment passed by the learned trial Court is upheld. Bail bonds, if any, furnished by the accused are discharged. 21. Case property, if not destroyed, be destroyed forthwith.