JUDGMENT SUMMARY: Somnath Bharti v. State- AAP MLA’s Conviction Affirmed by Delhi Court for Offence u/s 147, 149 IPC And Section 3 PDPP Act
DATE: 23rd March, 2021
JUDGES: Vikas Dhull
Somnath Bharti (APPELLANT)
SUBJECT: In the following judgement, the court is dealing with matter concerning article 147, 149, 323, 353 of IPC criminalising rioting, unlawful assembly, voluntarily causing hurt, assault on public servant respectively. Apart from this, the case also involves issue regarding section 3 and section 2(b) of PDPP Act criminalising mischief causing damage to public property and the definition of expression “public property” respectively.
1. The present case is an appeal filed against the Trial court’s judgment through which the appellant was convicted u/s 323, 353, and 147 of IPC read with section 149 IPC and section 3 of Prevention of Damage to Public Property, 1984. The appellant was sentenced for a simple imprisonment of 6 months for offence u/s 323 of IPC, simple imprisonment of one year for offence u/s 147 IPC and simple imprisonment of two years and fine Rs. 1 lakh for offence u/s 3 of PDPP Act.
2. Also, all these sentences were to run concurrently. Aggrieved by the conviction, the appellant filed appeal before the present court.
i. It was alleged by the complainant, Chief Security Officer, AIIMS, Ansari Nagar, New Delhi, in his complaint that the appellant along with 300 supporters assembled and started breaking fence of the boundary wall of the concerned building with a JCB to give access to unauthorised persons in AIIMS premises claiming that the road belongs to general public.
ii. However, the appellant failed to produce the orders of the competent authority for the act. Apart from that, the persons misbehaved with the security staff when objections were made by the complainant causing minor injuries to them.
iii. During the investigation, it came to knowledge that the concerned drain belongs to MCD which was given to AIIMS on lease. It was situated between the Ansari Nagar campus and Masjid Moth campus of AIIMS, causing deterrence in shifting half patient activities from one campus to other for the purpose of decongestion.
iv. For the same, the AIIMS sought permission from MCD to cover the drain which was duly granted by MCD.
v. Chargesheet was filed after investigation against appellant and four other persons identified through CCTV recording. All of the accused pleaded not guilty and claimed a trial.
vi. The prosecution examined 19 eye witnesses. On the other hand, the accused examined none. After duly observing the matter, the trial court convicted the appellant u/s 323, 353 and 147 of IPC and section 3 of PDPP Act.
4. Aggrieved by the conviction, the appellant filed the present appeal before the court contending that the conviction is based on absolutely false and fabricated information and the prosecution had failed to provide iota of evidence to prove the guilt of the appellant. It was further stated that the case is full of improvement and contradictions and could not be relied upon. Also, it was stated that the trial court failed to take notice of the said facts.
5. It was contended by the appellant that the amended charges by the trial judge states that the appellant and 4 accused formed unlawful assembly for which 5 or more persons are required. However, other than the appellant, 4 accused persons were acquitted for want of sufficient evidence. Thus, the appellant alone cannot form unlawful assembly.
6. For offence u/s 323, it was contended that simple hurt could not be proved by MLC. Apart from that, it was submitted after two years from the incident that the injuries were simple in nature. Therefore the trial judge wrongly relied on MLC of injured persons.
7. Regarding offence u/s 353 IPC, it was contended thate the security of AIIMS was outsourced to BIS security company, who was the employer of the security guards, therefore, they were not “public servants” as defined in Section 21 of IPC.
8. Further, it was contended that the prosecution could not establish the offence u/s 3 of PDPP Act. It was alleged that construction of wall was unauthorised and thus, does not qualify as public property. Further, it was submitted that there was no proof regarding damage done to the wall. It was further submitted that JCB driver was the best witness, who could have proved the prosecution case regarding the alleged damage caused to the fence on the wall. However, the JCB driver Satpal was not made a prosecution witness, thus, withholding of the best evidence also creates a doubt, benefit of which has to go to the appellant.
9. In response to the appellant’s contention, the respondent submitted that it was nowhere mentiond that five accused had formed an unlawful assembly. The charge specifically states that all the five accused persons charged were the members of the unlawful assembly. Also, as per the statements of eye-witnesses, it was submitted that the appellant was leading the mob of 300 people.
10. Further, it was submitted by respondent that the supreme court in its previous judgments have made it clear that the case where charge was framed against five or more persons as comprising of unlawful assembly and two or three persons are acquitted, then also remaining persons can be convicted for the offence of rioting by the aid of Section 149 IPC, if the evidence coming on record shows that unlawful assembly was comprising of five or more persons.
11. Concerning the appellant’s contention for offence u/s 353, the respondent state submitted that the evidence which has come on record has proved beyond reasonable doubt that AIIMS had incurred the expenditure in the covering of drain and they were in possession of road built on the drain. Since, AIIMS was in possession of the road, it was a public property according to Section 2(b) of the PDPP Act.
• Section 147- Punishment for rioting- Whoever is guilty of rioting shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Section 149- Every member of unlawful assembly guilty of offence committed in prosecution of common object- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
• Section 323- Punishment for voluntarily causing hurt- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
• Section 353- Assault or criminal force to deter public servant from discharge of his duty- Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Section 3- Mischief causing damage to public property.—
(1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub-section (2), shall be punished with imprisonment for a term which may extend to five years and with fine.
(2) Whoever commits mischief by doing any act in respect of any public property being—
(a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installations;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of tele-communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine: Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.
• Section 2(b)- "public property" means any property, whether immovable or movable (including any machinery) which is owned by, or in the possession of, or under the control of-
(i) the Central Government; or
(ii) any State Government; or
(iii) any local authority; or
(iv) any corporation established by, or under, a Central, Provincial or State Act; or
(v) any company as defined in section 617 of the Companies Act, 1956 (1 of 1956); of
(vi) any institution, concern or undertaking which the Central Government may, by notification in the Official Gazette, specify in this behalf.
ISSUES: The key issues before the court were-
• Whether there is some irregularity in framing of charge regarding number of persons forming part of the unlawful assembly?
• Whether the remaining out of five persons after acquittal of four can be convicted upon evidence for being member of unlawful assembly?
• Whether the drain and wall come under the definition of public property or not?
• Whether the appellant was liable for the damage caused by the mob?
• After taking note of the facts and evidences, the court concerning the issue of unlawful assembly observed that as per the records it was very clear that the unlawful assembly consisted of more than five people. The court referred to Mohan Singh and Anr.’s case and held 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.
• The court further noted that the evidence which has come on record shows that unlawful assembly comprised of 200-300 persons alongwith the appellant near the boundary wall of the AIIMS and they were trying to break the wall and the fence of the AIIMS by the use of JCB machine.
• The court further observed that the fact that only five persons were charged for the offence u/s 147 is true and indeed four of them were acquitted, but still the court does not find any illegality in the conviction of appellant for the offence under Section 147 IPC read with Section 149 IPC as the evidence which has come on record shows that unlawful assembly was comprising of 200- 300 persons and the remaining persons could not be identified or apprehended.
• Also, the charge in the present case did not specifically state that unlawful assembly was comprised of only five accused persons. It is clearly stated that the concerned accused persons were members of unlawful assembly.
• Further, the court stated that Supreme Court in its past judgment has made it clear that when the evidence which has come on record shows that apart from accused persons charged, there were other members of the unlawful assembly, then even if less than five accused persons are convicted, then also it will not affect the validity of Section 149 IPC.
• On the contention that there is no proof that the appellant participated in damaging the fence, the court very prudently stated that the appellant 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, under section 149 IPC.
• For the offence u/s 323 of IPC, the court observed that, no explanation was given by the prosecution as to why the nature of injuries were submitted after two years from the incident. Also, the incident of stone pelting was not present in the initial report. Thus, the court held that, regarding the offence u/s 323 of IPC, the trial court is at error. Also, the court observed that no offence has been committed u/s 353 of IPC.
• Lastly, coming to the issue of section 3 PDPP Act, the court after looking into the definition of public property observed the evidence given by R.S Rawat who produced a letter by MCD granting permission to AIIMS for covering the drain upto 600 meters length starting from Ring Road, on long term lease basis on a token annual rent. The court stated that AIIMS was granted permission but was not given ownership.
• It was observed that the evidence on record shows that AIIMS was given a long term lease to cover the drain by its owner. Funding for the same was done by AIIMS. The control and possession over the drain and wall was that of the AIIMS. Therefore, the said drain and outer wall are public property.
• It was noted by the court that even if AIIMS had done any unauthorized covering of drain or building of the wall with fence over the drain, then also it would fall in the definition of “public property” as the entire drain alongwith wall was in possession and control of AIIMS.
• Also, it was observed that the appellant had failed to establish on record that demolition of the fence on the wall on the drain was not done by the unlawful assembly, of which he was the member, but it was the planned demolition action of the PWD.
• Thus, the court partly allowed the appeal by setting aside the conviction u/s 323 and 353 of IPC. The appeal was dismissed regarding section 147 of IPC and section 3 PDPPAct.
• In the present judgement, the approach of the court was in accordance with the precedents set by the courts in the matters of unlawful assembly. It is an established law that when any person in unlawful assembly is acquitted on the ground of insufficiency of evidence, then too, if the evidence reasonably prove that the remaining persons were part of the unlawful assembly, they can be convicted.
• In the present case, it was very clear that the appellant was not only the part of unlawful assembly, but was also leading them to cause nuisance. Therefore, even if he himself did not participate in breaking the fence, mere his presence is enough to make him liable for the act. Thus, the court rightly convicted him for the offence under section 147 of IPC.
• AIIMS was rightfully in possession of the concerned drain. Therefore, any construction done by it was a Public Property. The court has thoroughly discussed the issue the issue of Public Property in the judgement.
• Also, the fact that the nature of injuries was stated after two years makes the MLC report dubious and unreliable. Therefore, in this matter the court rightly allowed the appeal. Thus, the court was correct at partly dismissing and partky allowing the appeal.
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