JUDGMENT :

SANJAY PARIHAR, J.

1. This appeal is directed against the judgment of conviction and order of sentence dated 08.02.2008 passed by the Court of the Special Judge (Anti- Corruption), Srinagar (hereinafter referred to as “the Trial Court”) in case titled State vs. Gh. Rasool Ganie, File No. 1/B of 01.05.2002, whereby the appellant was convicted for the offence punishable under Section 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 Rs. 20,000/-. He was further convicted for the offence under Section 468 RPC and sentenced to rigorous imprisonment for three years with a fine of Rs. 20,000/-, and for the offence under Section 471 RPC to undergo rigorous imprisonment for two years, besides a direction for recovery of pecuniary advantage of Rs. 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 Section 5(2) P.C. Act read with Sections 468 and 471 RPC.

4. The appellant was initially appointed as a Security Attendant in SKIMS in the year 1983 after having served as an Ex-Rifleman in JAKLI. He was promoted as Security Monitor vide order dated 22.08.1991, and thereafter as Security Supervisor Grade-II on 12.02.1998. The investigation revealed that in the year 1991, the appellant allegedly produced a tampered Army Discharge Certificate showing himself as Naik instead of Rifleman, thereby securing promotion by deceitful means. It was further alleged that in the year 1998, he produced a fake matriculation certificate dated 31.10.1992, bearing Roll No. 829298 (Session Oct–Nov 1991), purportedly issued by the Chairman, J&K Board of School Education (BOSE). Both documents were alleged to be forged. On the basis thereof, the prosecution alleged that the appellant secured undue promotions and drew excess emoluments amounting to Rs. 2,19,757/- during the period 02.08.1991 to 30.09.2000. After investigation, the appellant was challaned before the Trial Court, where he pleaded not guilty.

5. During trial, the prosecution examined sixteen witnesses, including PW-1 Mohammad Shafi Qadri, PW-16 Nazir Ahmad Shah. After closure of prosecution evidence, the appellant was examined under Section 342 Cr.P.C., wherein he categorically stated that he had never appeared in the matriculation examination and, therefore, the question of producing any fake matriculation certificate did not arise. He further asserted that his promotions were granted on the basis of seniority and