JUDGMENT : Vivek Singh Thakur, J. These appeals, arising out a common judgment dated 16.04.2018/18.04.2018, passed by learned Special Judge, Chamba Division, Chamba, H.P., in Sessions Trial No.12 of 2016, titled as State of Himachal Pradesh vs. Ajay Kumar & another, in case FIR No.17 of 2016 dated 11.03.2016, registered under Section 452 and 354-A read with Section 34 of the Indian Penal Code (in short ‘IPC) and Section 8 of the Protection of of Children from Sexual Offences Act, 2012 (hereinafter referred to as the ‘POCSO Act’), in Police Station Kihar, District Chamba, H.P., are being decided together by this judgment as common questions of law and facts are involved therein. 2. Appellants, vide impugned judgment, have been convicted for commission of offences under Sections 452 and 354- A read with Section 34 of IPC and Section 8 of the POCSO Act and sentenced as under :- Under Section Period of Sentence Of Fine In default of payment of fine 452 IPC read with Section 34 of Indian Penal Code. Rigorous imprisonment for three years each. Rs.3000/- each Simple imprisonment for one month each. 354A IPC read with Section 34 of Indian Penal Code. Rigorous imprisonment for one year each. Rs.2000/- each Simple imprisonment for one month each. 8 of the POCSO Act. Rigorous imprisonment for three years each. Rs.3000/- each Simple imprisonment for one month each. 3. Investigating Agency, in present case, was set in motion by PW.2 Manjoor Mohammad through a telephonic information transmitted on mobile of PW.13 SHO/Inspector Jagdish Chand, Police Station Kihar, District Chamba, H.P., through his own mobile at 2.49 a.m. on 11.03.2016 requesting him to come on spot as two stranger boys, who had entered in his house, had been detained, whereupon after entering the said information in daily station diary vide G.D. No.003 dated 11.03.2016 (Ex,PW.11/A), PW.13 SHO/Inspector Jagdish Chand alongwith police officials had rushed to the spot in official vehicle and departure of the police party was also entered in daily station diary vide G.D. No.006 dated 11.03.2016 (Ex.PW.11/B). From the spot, PW.13 SHO/Inspector Jagdish Chand had directed PW.5 HC Tej Singh to reach the spot, who had departed the Police Station after making entry in daily station diary vide G.D. 010 dated 11.03.2016 (Ex.PW.11/C). 4. From the spot, PW.13 SHO/Inspector Jagdish Chand had directed PW.5 HC Tej Singh to reach the spot, who had departed the Police Station after making entry in daily station diary vide G.D. 010 dated 11.03.2016 (Ex.PW.11/C). 4. On the spot, statement (Ex.PW.2/A) of PW.2 Manjoor Mohammad was recorded under Section 154 of the Code of Criminal Procedure (in short ‘Cr.P.C.’), wherein it is stated that he was living and running a shop in village Seru, whereas his parents were residing at village Sarotu and on 10.03.2016, his daughters had visited the place of their grandparents, where-from his youngest daughter had gone alongwith her grandparents to village Chandi, whereas, elder daughters ‘G’ and ‘H’ had slept in the house of paternal uncle Yunas Mohammad and at about 11.30 p.m. his father Husain Mohammad had telephonically informed him that in the room, in which his two daughters were sleeping in village Sarotu, two stranger boys had entered. After receiving the said information, he (PW.2) alongwith his wife reached Sarotu and found that two boys who had trespassed in the room, in which his daughters were sleeping, were detained inside the room and when he, after opening the door, inquired his daughter ‘G’ in this regard, she disclosed that at about 10.30 p.m. two boys had entered from the side of cowshed and after opening the door, which was closed, had entered without telling her anything and when those boys had opened the door, her sleep was disturbed but she had thought that her uncle Yunas Mohammad had come after attending Nawala (a religious function), but when those boys stood near her bed and called her by name, she had identified the boy as Ajay Kumar, who had caught her arm, however, with great difficulty, she had freed her from his clutches, which caused pain in her wrist and she had called her uncle Arif Mohammad (PW.9), whereupon, her uncle Arif Mohammad (PW.9), had come to her room and after seeing those two boys in the room, had bolted the door from outside. It is further stated in the statement that when he (PW.2) alongwith his wife and other family members had assembled and opened the door, then his brother Arif Mohammad (PW.9) had switched on the light and found two stranger boys sitting in one corner of the room and on inquiry about their whereabouts, they disclosed that they had come from village Dandi Telka and their respective names as Ajay Kumar and Om Prakash but both of them did not disclose the purpose, they had entered in the room of the girls stealthily, particularly when there was neither any relation nor any acquaintance. It has also been narrated by PW.2 Manjoor Mohammad in this statement that on inquiry from his daughter ‘G’ about these boys, she had revealed that Ajay Kumar was contacting her on telephone since last many days and despite her refusal, the boy continued to contact her who had met her about 1½ month ago, when she was grazing cattle, and had expressed his desire to marry her but at that time also, she had refused to marry him. It is also stated in this statement that once, one month ago also, when his daughter had complained about repeated continuous telephonic calls by the boy Ajay Kumar, he had advised Ajay Kumar not to tease his daughter by making repeated calls and lastly, it has also been stated that both the appellants-convicts had entered in the room of his daughters with common intention to commit an indecent act with them. 5. The aforesaid statement (Ex.PW.2/A) was sent to the Police Station as a Rukka through HHC Subhash Chand No.424 (not examined), which led to registration of FIR (Ex.PW.12/A) by PW.12 HC Parbhat Nahar and after making endorsement upon Rukka (Ex.PW.2/A) with regard to registration of FIR in Circle ‘A’, case file was sent back to the Investigating Officer. 6. PW.13 SHO/Inspector Jagdish Chand had carried on investigation and prepared site plan (Ex.PW.13/A) and clicked photographs (Ex.PX-1 to Ex.PX-5) with his official digital camera and had sent PW.1 victim ‘G’ for medical examination alongwith Lady Constable Murtu No.675 (not examined) alongwith application (Ex.PW.10/A). After recording statements of witnesses, he had arrested appellants-convicts and prepared memos (Ex.PW.13/B and Ex.PW.13/C) in this regard. During investigation, MLC of victim ‘G’ (Ex.PW.10/B) issued by PW.10 Dr. After recording statements of witnesses, he had arrested appellants-convicts and prepared memos (Ex.PW.13/B and Ex.PW.13/C) in this regard. During investigation, MLC of victim ‘G’ (Ex.PW.10/B) issued by PW.10 Dr. Amit Banyal was obtained and statement (Ex.PW.1/A) of PW.1 victim ‘G’, under Section 164 Cr.P.C., was also recorded before learned Judicial Magistrate 1st Class, Chamba and School Leaving Certificate (Ex.PW.3/B); Date of Birth certificate (Ex.PW.3/C), extract of admission withdrawal Register (Ex.PW.3/D); Date of Birth Certificate (Ex.PW.5/B); Copy of Parivar Register (Ex.PW.5/C); Date of Birth Certificate (Ex.PW.5/F); and Date of Birth Certificate (Ex.PW.6/B) were also taken into possession. 7. On completion of investigation, challan was presented in the Court. On finding prima facie complicity of the appellants-convicts in the commission of offences, mentioned in the challan, charge was framed against appellants accordingly. 8. Prosecution had examined thirteen witnesses in support of its case, whereas, after recording statements of the appellants-convicts, under Section 313 Cr.P.C., no defence witness was examined. On conclusion of trial, they have been convicted and sentenced as detailed supra. 9. From the trend of cross-examination, it is undoubtedly apparent that evidence with respect to date of birth of victim PW.1 ‘G’ and her medical examination by PW.10 Dr. Amit Banyal and veracity of the documents relied upon by the prosecution in this regard, has not been disputed and statements of witnesses who have proved entires made by the police in daily station diary and recording of FIR have also not been disputed as none of them have been cross-examined with regard to the said documents and their deposition in this regard. Therefore, there is no necessity to discuss the evidence on this count. 10. For proving the commission of offence, as alleged, by the appellants-convicts, prosecution has relied upon deposition of victim PW.1 ‘G’, PW.2 Manjoor Mohammad, PW.8 ‘H’ and PW.9 Arif Mohammad. 11. Appellants have been convicted under Sections 452 and 354-A read with Section 34 of IPC and Section 8 of the POCSO Act. Evidence on record, documentary as well as deposition of aforesaid relevant witnesses, is to be evaluated to ascertain as to whether ingredients, necessary for fastening criminal liability for these offences by the appellants-convicts, are existing on record or not 12. Evidence on record, documentary as well as deposition of aforesaid relevant witnesses, is to be evaluated to ascertain as to whether ingredients, necessary for fastening criminal liability for these offences by the appellants-convicts, are existing on record or not 12. From the questions put to these witnesses, in the cross-examination, particularly a suggestion put to PW.1 ‘G’ that appellants-convicts had entered in their house from the side of cowshed, without any doubt, establish the presence of appellants-convicts in the room in which PW.1 ‘G’ and PW.8 ‘H’ were staying. 13. Though statement of PW.1 ‘G’ was also recorded under Section 161 Cr.P.C., but the said statement has neither been exhibited nor put to the said witness during examination-in-chief or cross-examination, therefore, same cannot be taken into consideration. However, her first version has been reproduced by her father PW.2 Manjoor Mohammad in his statement (Ex.PW.2/A), wherein, he has given details disclosed by PW.1 ‘G’, immediately on opening of door, with regard to episode of entry of the appellants-convicts in the room, where ‘G’ and ‘H’ were staying. According to her father, she had disclosed that at about 10.30 p.m., two boys had entered in their room, by opening the closed door, from cowshed side without informing anybody and on opening of door her sleep was disturbed but she thought that her uncle had come back from a religious function, however when Ajay Kumar had called her by name and asked to stand up, she had identified voice of appellant-convict Ajay Kumar, who had caught her arm which was got released by her with great difficulty and she had called her uncle PW.9 Arif Mohammad, who came there and after seeing two boys in the room, had bolted the door from outside. In her deposition (Ex.PW.1/A), PW.1 ‘G’ has stated that when boys had opened door of their room, they ( ‘G’ and ’H’) had stood up and thereupon the boys caught their arm, whereupon, she had cried and called her uncle, who came inside and detained the boys in the room and thereafter, her parents had come. In her deposition (Ex.PW.1/A), PW.1 ‘G’ has stated that when boys had opened door of their room, they ( ‘G’ and ’H’) had stood up and thereupon the boys caught their arm, whereupon, she had cried and called her uncle, who came inside and detained the boys in the room and thereafter, her parents had come. In the Court, also she has deposed almost in the similar fashion, but with addition, as was also reported by PW.2 Manjoor Mohammad in his statement (Ex.PW.2/A), that earlier, appellant-convict Ajay Kumar used to contact her telephonically, regarding which she had complained to her father, whereupon her father had reported the matter to the police. She has further stated that appellant-convict had proposed to marry her, but she had declined the said proposal as she had not attained the age of majority and she was not interested to marry with him. 14. PW.8 ‘H’ has also deposed almost in similar manner and has stated that at about 10-11 p.m., when she and her sister were sleeping, appellants-convicts entered in the house and Ajay Kumar caught her sister from her arm, whereupon both of them (‘G’ and ‘H’) had raised hue and cry and her uncle PW.9 Arif Mohammad had come there and, after bolting the door from outside, had called their grandparents as well as parents on the spot and room was opened when their parents reached on the spot. 15. PW.9 Arif Mohammad, in his examination-in-chief, has stated that on 10.03.2016 he had seen both the accused entering the room of the girls from another door and when they had gone inside the room, he had bolted the door from outside and he had also heard the cries of the girls and informed his father and also called parents of the girls, who had arrived at the spot after about one hour and then they had opened the door at about 12 O’Clock. 16. There is inherent contradiction in the statements of PW.1 ‘G’, PW.8 ‘H’ and PW.9 Arif Mohammad. According to PW.1 ‘G’ and PW.8 ‘H’, they had raised hue and cry and had called their uncle PW.9 Arif Mohammad on the spot, whereas, according to PW.9 Arif Mohammad, he himself had noticed appellants-convicts entering room of the girls from another door whereupon he had bolted the door from outside. According to PW.1 ‘G’ and PW.8 ‘H’, they had raised hue and cry and had called their uncle PW.9 Arif Mohammad on the spot, whereas, according to PW.9 Arif Mohammad, he himself had noticed appellants-convicts entering room of the girls from another door whereupon he had bolted the door from outside. This statement is creating doubt on the genesis of the prosecution case as version of PW.1 ‘G’, PW.8 ‘H’ and PW.9 Arif Mohammad, is converse to each other. 17. It has also come on record that room was bolted by PW.9 Arif Mohammad from outside and at that time the girls as well as boys were inside the room, which smacks something fishy about story propounded by the prosecution. It appears that the girls and the boys were inside the room with their consent and something more, which has not been disclosed, like consensual presence of young children in room, was in the knowledge of family of girls and when young children were noticed by the elders, parents of the girls, who were not on the spot, were called to bring activities of ‘G’ and ‘H’ in their notice and therefore, room was bolted from outside and was opened after arrival of parents of the girls to reveal the conduct of the girls in their notice as otherwise it is unbelievable that the girls were also detained with two stranger boys in the room for about one hour, waiting for arrival of parents of the girls and door was bolted by none else, but paternal uncle of the girls and who immediately had brought it in the notice of grandfather and parents of girls also. According to PW.1 ‘G’ and PW.8 ‘H’, PW.9 Arif Mohammad had come in the room on their call, after hearing their cries, whereas, according to PW.9 Arif Mohammad, he had seen the boys entering the room and then had bolted the door and thereafter heard cries of girls. According to PW.1 ‘G’ and PW.8 ‘H’, PW.9 Arif Mohammad had come in the room on their call, after hearing their cries, whereas, according to PW.9 Arif Mohammad, he had seen the boys entering the room and then had bolted the door and thereafter heard cries of girls. It is also again unnatural conduct on the part of the elders that girls were crying inside the room bolted by them and they were waiting for parents of girls as after bolting door, when PW.9 Arif Mohammad had heard cries of the girls, it would have been natural conduct on his part to open the door to rescue the girls from the room, if they were victims but it is not the case, which indicates that the boys and the girls were meeting with each other but without consent of their parents, which was objectionable to the family members and thus girls were also detained inside the room till their parents arrived on the spot. 18. PW.1 ‘G’ in her cross-examination has denied that she was having mobile phone, however, in later part she has admitted that she was having mobile phone on sharing basis with her friend Anjana. The fact that PW.1 ‘G’ was having mobile phone is also fortified from the statement of PW.8 ‘H’, who in her cross-examination, stating that PW.1 ‘G’ was not having mobile phone at the time of incident with her, but not denying that PW.1 ‘G’ was not having mobile phone. Acquaintance of the appellants-convicts with girls, particularly of appellant-convict Ajay Kumar with PW.1 ‘G’, is an admitted fact and they were in contact since long is also an established fact. Though PW.8 ‘H’ has evaded to answer the question by saying that she did not know that her sister PW.1 ‘G’ was having love affair with appellant-convict Ajay Kumar, however, PW.9 Arif Mohammad, in his cross-examination, has categorically admitted that PW.1 ‘G’ was having love affair with appellant-convict Ajay Kumar. His admission, in this regard, in so many words, is telling actual story of the case. 19. Though it is claimed by PW.1 ‘G’ that she was refusing to remain in contact with appellant-convict Ajay Kumar and to marry him and on her complaint, her father had also reported the matter to the police, but PW.13 SHO/Inspector Jagdish Chand has categorically stated that no such complaint was ever reported to the police. 19. Though it is claimed by PW.1 ‘G’ that she was refusing to remain in contact with appellant-convict Ajay Kumar and to marry him and on her complaint, her father had also reported the matter to the police, but PW.13 SHO/Inspector Jagdish Chand has categorically stated that no such complaint was ever reported to the police. Further, in his statement (Ex.PW.2/A), PW.2 Manjoor Mohamad, has also stated that he had advised appellant-convict Ajay Kumar on telephone not to make calls to his daughter PW.1 ‘G’. Entire evidence as discussed above, is sufficient to establish on record that actual story is not like as prosecution has tried to pose on record. 20. Acquaintance of girls with boys and their consensual meeting is apparent on face of record. Now question arises that keeping in view the minor age of the girls, whether appellants-accused can be convicted for the commission of offences charged with, for want of valid consent to indulge in so called commission of offence. 21. Section 354-A IPC defines sexual harassment and provides punishment for the same. Sexual harassment is defined as under:- “354A(i): Physical contact and advances involving unwelcome and explicit sexual overtures”. 22. There is no allegation of showing any pornography and making any sexual remarks by the appellants-convicts and therefore, Clauses (iii) and (iv) of sub-section (1) of Section 354-A IPC are not attracted. 23. From the entire evidence on record, referred supra, there is neither any document nor deposition of the witnesses that appellants-convicts had committed physical contact and advances involving unwelcome and explicit sexual overtures and there is nothing on record to establish that there was any demand or request for sexual favours. An offer to marry on earlier occasion that too in grazing ground, in itself cannot be considered a demand or request for sexual favour. Staying in one room and to catch the arm of a girl for waking her up can also not be considered as physical contact and advances involving unwelcome and explicit sexual overtures, particularly when happening of the incident as purported, is under cloud and there is doubt that girls themselves had facilitated entry of boys. Therefore, there is no sufficient evidence so as to convict appellants for commission of offence under Section 354-A IPC. 24. Section 452 IPC provides punishment for house trespass after preparation for hurt, assault or wrongful restraint. Therefore, there is no sufficient evidence so as to convict appellants for commission of offence under Section 354-A IPC. 24. Section 452 IPC provides punishment for house trespass after preparation for hurt, assault or wrongful restraint. In present case, it appears that appellants-convicts had entered in the room of the girls with their consent because of acquaintance with them, which cannot be treated as a preparation for hurt, assault or wrongful restraint. It has also come in evidence that appellants-convicts were residents of Dandi Telka, which is situated at a distance of 80 kms. from the place of occurrence. The appellants-convicts were not having any relations in the said village and PW.1 ‘G’ and PW.8 ‘H’ were not residing permanently in the same village, but had come to live with their grandparents in casual visit and in such a situation it is too difficult to imagine that boys were strangers and came after travelling a distance of 80 kms and entered the room and committed criminal trespass with an intent to commit offence or intimidate or insult or annoy the girls. Such a situation, would have been possible only if boys were called by the girls by informing them about not only their location, but also location of the room, wherein they were staying. Further, as appellants-convicts were not well acquainted with the place, it would not have been possible for them to know the point of entry, rather they could have managed secret entry to the room of the girls with the help of girls. Therefore, in my opinion, offence under Section 452 IPC, is also not made out. 25. As discussed supra, there is no sufficient evidence to hold that ingredients for commission of sexual assault, as defined under Section 7 of POCSO Act and punishable under Section 8 of the POCSO Act have been established on record beyond reasonable doubt. 26. Learned Special Judge has failed to appreciate the evidence on record in its right perspective, completely and correctly, but appears to have been swayed by entry of the boys in the room of girls in odd hours, which was not acceptable to the family of the girls. Prosecution story on record is neither cogent nor reliable or convincing, rather depicting the story contrary to the prosecution case. Prosecution story on record is neither cogent nor reliable or convincing, rather depicting the story contrary to the prosecution case. Therefore, prosecution has failed to prove the guilt of the appellants-convicts, beyond reasonable doubt, by leading tangible, reliable and trustworthy evidence on record. Therefore, appellants-convicts are entitled for benefit of doubt. 27. In view of above discussion, appeals are allowed and impugned judgment passed by learned Special Judge, Chamba Division, Chamba, H.P., convicting and sentencing appellants-convicts, is set aside. Accordingly, appellants-convicts are acquitted of the charged offences. Bail bonds furnished by them are discharged. Fine amount, if any, deposited by the appellants shall be refunded to them on filing their application, in accordance with law. Record of the trial Court be sent back.