March 24, 2021 1:13:25 am
A Special MP/MLA court upheld a two-year prison sentence handed to Aam Aadmi Party MLA Somnath Bharti for leading a mob which tried to break the boundary wall of AIIMS and pelted stones at the hospital’s security staff when they intervened.
On January 23, Additional Chief Metropolitan Magistrate Ravindra Pandey had sentenced Bharti to two years’ imprisonment, observing that “the mindset to cause damage to public property and infrastructure is an attack on the common man”.
Bharti was convicted for offences under sections 323 (punishment for voluntarily causing hurt) and 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) of IPC. He was also convicted for offences under section 3 of The Prevention of Damage to Public Property Act, 1984 and IPC section 147 (punishment for rioting) read with section 149.
Bharti had challenged the trial court’s order before Special Judge Vikas Dhull. However, the court dismissed his appeal and ordered that he be taken into custody and sent to Tihar Jail for serving the sentence.
Bharti had contended that no offence under section 147 read with section 149 was made out against him “due to acquittal of four co-accused persons out of five charged for the offence of rioting under section 147”.
The court however stated: “The Supreme Court of India has laid down the law that in case charge for the offence of rioting is against five or more persons, out of which if only two or three persons are acquitted, then also it will not affect the validity of Section 149 IPC, if the evidence coming on record shows that the persons composing the unlawful assembly were five or more than five.”
Relying on eyewitness statements, the court said that “the evidence which has come on record of the eyewitnesses shows that unlawful assembly was comprising 200-300 persons, of which appellant was the member”.
The court said “it is true that only five accused persons were charged for the offence”, out of which “four have been acquitted, but still I do not find any illegality in the conviction of appellant”.
This observation was made on the back of Bharati’s submission in court during cross-examination of a prosecution witness, inspector Anand Swarup, wherein Bharti “had himself suggested that there were 100 persons on the spot but IO had deliberately selected hardcore Aam Aadmi Party volunteers as accused to instill fear in AAP volunteers”.
“Therefore, by way of this suggestion, appellant himself had admitted that unlawful assembly was comprising more than five members. Therefore, no prejudice was caused to the appellant in his defence as he very well knew what was the number of members of the unlawful assembly,” the court said.
The court agreed that “it is true that there is no evidence” that Bharti had participated in the causing of damage to the fence or in causing injuries to the staffers, but since he “shared a common object with the members of the unlawful assembly to cause damage to the wall and fence of the AIIMS, therefore, he is vicariously liable…”
The court, however, acquitted Bharti for offences under section 323 after it noted that the opinion regarding the injuries was collected two years after the incident and that the “evidence led by the prosecution was full of contradictions”.
Bharti was also acquitted on charges of section 353, noting that the trial court wrongly arrived at a finding that they (AIIMS staffers) were public servants after it was found that they belonged to a private security company.
The prosecution had argued that on September 9, 2016, Bharti along with the other accused had broken the fence on the boundary wall of AIIMS with a JCB machine to create an access to the institute.
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