A Delhi Court on Tuesday upheld the two-year imprisonment imposed on Aam Aadmi Party legislator, Somnath Bharti in the AIIMS assault case of 2016. (State vs Somnath Bharti).
The order was passed by Special Judge (MPs/MLAs Cases) Vikas Dhull in Bharti’s appeal against his conviction and sentence.
The appellate court, however, only partly upheld the conviction in the case.
“Part of the impugned judgment convicting and sentencing the appellant for the offence under Section 323/353 IPC read with Section 149 IPC are, accordingly, set aside. Appeal is dismissed qua the conviction and sentence of appellant u/s 147 IPC read with Section 149 IPC and under Section 3(1) of PDPP Act,” it ordered.
Bharti was sentenced to simple imprisonment for a period of two years for the offence punishable under Section 3 (1) of the Prevention of Damage to Public Property Act (PDPP Act) along with a fine of Rs.1,00,000.
A Magisterial court had found Bharti guilty under U/s 323(Punishment for voluntarily causing hurt)/353 (Assault or criminal force to deter public servant from discharge of his duty) read with Section 149(Every member of unlawful assembly guilty of offence committed in prosecution of common object) IPC and charge of offence punishable U/s 3 (Mischief causing damage to public property) of The Prevention of Damage to Public Property Act, 1984 and charge of offence punishable U/s 147 (Punishment for rioting) IPC read with Section 149 IPC.
While deciding the appeal, the Court did not find any illegality in the conviction under Section 147/149 IPC as the evidence showed that unlawful assembly comprised 200- 300 persons and therefore, acquittal of four out of five accused persons would have no bearing.
The Court nonetheless stated that the AIIMS security personnel did not come within the definition of “public servant” to attract Section 353 IPC.
“To attract clause 12 of Section 21 IPC, a person can be a “public servant” if he is in the service of the Government or getting pay or remuneration from the Government for performance of his public duty.
In the present case, it has come in the evidence of PW2 Sh. Ajay Kumar, PW3 Sh. Santosh Kumar, PW4 Sh. Dinkar Kumar Chaudhary and PW5 Sh. Ved Prakash that they were working as security guards in BIS security company, and they were employed as security guards in AIIMS through their contractor/employer i.e. BIS security company and even the salary was being paid by their contractor,” the Court said.
Even for conviction under Section 323 IPC, the Court held that the evidence was “not reliable and trustworthy”.
With respect to the offence under the Prevention of Damage to Public Property Act, the Court held that the Prosecution had proved beyond reasonable doubt that wall and the fence in question was a public property and the same was damaged using JCB machine by the unlawful assembly.
As per the Prosecution case and the charge sheet in the matter in September 2016, a mob constituting approximately 300 persons led by accused Som Nath Bharti, the MLA of the area concerned, had gathered near the boundary wall of AIIMS.
The common object of the mob was to break the wall of AIIMS and to get access. In the process of demolishing the wall, the mob led by Bharti used a JCB machine and also manually damaged the fence on the boundary wall of the AIIMS.
The mob also used criminal force by pelting stones upon the security personnels of the AIIMS, it was alleged.