RASOOL GANIE Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction and order of sentence dtd. 8/2/2008 passed by the Court of the Special Judge (Anti- Corruption), Srinagar (hereinafter referred to as "the Trial Court") in case titled State v. Gh. Rasool Ganie, File No. 1/B of 1/5/2002, whereby the appellant was convicted for the offence punishable under Sec. 5(2) of the Jammu and Kashmir Prevention of Corruption Act, 2006, and sentenced to undergo rigorous imprisonment for three years with a fine of 20,000/-. He was further convicted for the offence under Sec. 468 RPC and sentenced to rigorous imprisonment for three years with a fine of 20,000/-, and for the offence under Sec. 471 RPC to undergo rigorous imprisonment for two years, besides a direction for recovery of pecuniary advantage of 2,19,757/- from him.

(2.) The impugned judgment is assailed, inter alia, on the ground that the Trial Court has erred in law and on facts by failing to appreciate the evidence in its proper perspective. The findings recorded are contrary to the material on record and are based on misapplication of law. The evidence led by the prosecution is shaky, unreliable, and insufficient to sustain conviction. The appellant's promotion was effected by a duly constituted Selection Committee, and admittedly none of the members of the said Committee were examined as witnesses, though they alone could have deposed regarding the genuineness and legality of the selection process. The prosecution case further suffers from serious defects as the alleged forged documents were neither recovered nor was any evidence led to establish that the appellant had prepared or caused preparation of such documents or had used the same to obtain undue benefit. During trial, none of the witnesses deposed that the appellant abused his official position to secure the promotions in question.

(3.) Briefly stated, the prosecution case is that the appellant, a public servant employed at Sher-i-Kashmir Institute of Medical Sciences (SKIMS), Soura, Srinagar, abused his official position and illegally secured two promotions by producing a fake matriculation certificate and by tampering with his Army Discharge Certificate to falsely show his rank as Naik instead of Rifleman in JAKLI. On the basis of a preliminary enquiry, FIR No. 80/1999 was registered at Police Station VOK for offences under Sec. 5(2) P.C. Act read with Ss. 468 and 471 RPC.