A child of tender age is unable to differentiate between good and bad touch, a Delhi court has observed while acquitting a security guard accused of sexually assaulting a minor girl, saying he might have touched her out of "fatherly affection".
Additional Sessions Judge Vinod Yadav absolved the man, who was working as a security guard at the house of seven- year-old girl's friend, observing that as he was alone most of the time, he probably found solace by talking to kids playing around.
"It is quite possible that the accused might have liked the child and out of fatherly affection, he used to speak to her and out of his emotions and not sexual intent, he used to put his hand on her shoulder," the judge said.
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"It is common knowledge that a child of tender age like child in this case, is not able to differentiate between good touch and bad touch," the court observed, while acquitting the man of the charge of sexual assault under the Protection of Children from Sexual Offences (POCSO) Act.
It also said no other child found the talks or touch of the accused to be bad and that could probably be subjective assessment of the alleged victim.
"Duty of accused was to remain at or near the main door and lawn. Most of the time, he probably used to be alone and some kind of interaction or solace was available to him only when the children used to come to play in that house and for breaking monotony of his life, probably he used to feel like talking to the small children," the court said.
According to the prosecution, the girl had informed her parents that whenever she used to go to play at her friend's house, the guard employed there would talk to her and touch her shoulder.
On April 27, 2013, the girl's father lodged a complaint at Ashok Vihar Police Station against the guard for touching her on several occasions.
The accused had pleaded not guilty and claimed he was falsely implicated by the child's father as he had refused to do his personal work including washing of his car.
While acquitting the man, the court said, "The punishment under POCSO Act is very stringent and as such the mode of proof of the offence has to be of a higher degree and accused cannot be held to have committed the offence of sexual assault merely on a subjective assessment of his touch by a child of tender age.
