Supreme Court of India
PREM SAGAR MANOCHAversusSTATE (NCT OF DELHI)
- Citation
- 2016 INSC 19
- Decided
- 6 January 2016
- Disposal
- Appeal(s) allowed
- Bench
- T S THAKUR
Holding
An expert's consistent, non‑definitive opinion does not amount to perjury, and proceedings under Section 340 CrPC against such an expert are improper and must be quashed.
Summary
In the Jessica Lal murder investigation, the police sought a forensic opinion on two .22 cartridges. The appellant, Deputy Director of the State Forensic Science Laboratory, reported that the cartridges were .22 caliber and likely from a pistol, but could not give a definitive opinion on whether they were fired from the same firearm without the weapon itself. During trial, he testified that the cartridges appeared to have been fired from two different firearms, a view consistent with his written report. The High Court, alleging a shift in his stance, initiated suo motu proceedings under Section 340 of the CrPC and charged him with perjury under Section 193 of the IPC. The Supreme Court examined whether an expert’s non‑definitive, consistent opinion can attract perjury, the scope of Section 340 after its amendment, and the validity of the High Court’s proceedings. It held that the expert’s opinion was consistent, not conclusive, and did not constitute false evidence; consequently, the proceedings under Section 340 were improper and were quashed.
Issues considered
- The expert's non‑definitive opinion, consistent with his report, can be treated as perjury under Section 193 IPC.
- Whether Section 340 CrPC can be invoked against an expert witness when the opinion is inconclusive and the provision is discretionary post‑1973 amendment.
- The validity of the High Court's suo motu initiation of proceedings against the expert.
Legislation cited
- Code of Criminal Procedure, 1973s. 195, s. 340, s. 479-A
- Indian Evidence Act, 1872
- Indian Penal Code, 1860s. 193, s. 195
Subjects
expert evidenceperjurySection 340 CrPCSection 193 IPCpreliminary inquiryforensic analysisJessica Lal murder casesuo motu proceedingscriminal procedure
Judgment
[2016] I S.C.R. 34
A PREM SAGAR MANOCHA
v.
STATE (NCT OF DELHI)
(Criminal Appeal Nos. 9-10 of2016)
B JANUARY06, 2016
[T.S. THAKUR, CJI AND KURIAN JOSEPH, J.]
Code of Criminal Procedure, 1973:
s.340 - Applicability of - Expert evidence - Jn the Jessica
c Lal Murder case, police sought an expert opinion from the State
Forensic Science Laboratory as to whether both the empty cartridges
were fired from the same firearm or otherwise - Appellant working
as the Deputy Director of the Laboratory gave a report to the effect
that the caliber of two cartridge cases was .22 and that no definite
opinion could be given in order to link firearm unless the suspected
0
firearm was made available for examination - In the said case, trial
court acquitted the accused of all charges - High Court set aside
the acquittal and convicted the accused which order was affirmed
by Supreme Court - Disturbed by the conduct of the witnesses turning
hostile, High Court initiated suo motu proceedings against 32
E witnesses including appellant - High Court proceeded against
appellant holding that there was shift of stand by appellant from
that of the written opinion and hence s. 193 !PC was attracted -
Challenge against - Held: Appellant has all through been consistent
that as an expert, a definite opinion in the case could be given only
if the suspected firearm is available for examination - It was
F
nobody's case that scientifically an expert .can give a definite opinion
by only examining the cartridges as to whether they have been fired
from the same firearm - It was the trial court which insisted for an
opinion without the presence of the firearm, and in that context
only, the appellant gave the non-specific and indefinite opinion -
G An expert, in such a situation, could not probably have given a
different opinion - Merely because an expert has tendered an
opinion while also furnishing the basis of the opinion and that too
without being conclusive and definite, it cannot be said that he has
committed perjury so as to help somebody - Moreover, mere
rejection of the expert evidence by itself may not also warrant
H
34
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 35
initiation of proceedings u/s.340 - Proceedings u/s.340 liable to be A
quashed - Penal Code, 1860 - ss.193, 195.
s.340 - amended provision vis-a-vis provision prior to
amendment - Scope of - Held: s.340 prior to amendment in 1973
was s.479-A in the I 898 Code and it was mandatory under the pre-
amended provision to record a finding after the preliminary inquiry B
regarding the commission of offence; whereas in the 1973 Code,
the expression 'shall' is substituted by 'may' meaning thereby that
under 1973 Code, it is not mandatory that the court should record
a finding - What is now required is only recording the finding of
the preliminary inquiry which is meant only to form an opinion of C
the court, and that too, opinion on an offence 'which appears to
have been committed', as to whether the same should be duly
inquired into - Code of Criminal Procedure, I 898 - s.479-A.
Evidence:
Expert evidence - Duty of expert - Held: The duty of an D
expert is to furnish the court his opinion and the reasons for his
opinion along with all the materials - It is for the court thereafter to
see whether the basis of the opinion is correct and proper and then
form its own conclusion.
Expert vis-a-vis Witness of facts - Testimony of. evidentiary E
value - Held: Expert gives an opinion on what he has tested or on
what has been subjected to any process of scrutiny - The inference
drawn thereafter is still an opinion based on his knowledge - But,
that is not the case in respect of a witness of facts - Facts are facts
and they remain and have to remain as such forever - The witness
of facts does not give his opinion on facts but presents the facts as F
such.
Allowing the appeals, the Court
HELD : 1. Perjury falls under Chapter XI of the IPC "Of
False Evidence and Offences Against Public ·Justice". As per G
Sec~ion 193 of IPC, "whoever intentionally gives false evidence in
any stage of a judicial proceeding, or fabricates false evidence for
the purpose of being used in any stage of a judicial proceeding,
shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine,
and whoever intentionally gives or fabricates false evidence in any H
36 SUPREME COURT REPORTS [2016] I S.C.R.
A other case, shall be punished with imprisonment of either description
for a term which may extend to three years, and shall also be liable
to fine ...... " . [Para 10] [42-C-D]
2. Section 340 of CrPC falls under Chapter XXVI of the
Code- "Provisions as to Offences Affecting the Administration
B of Justice". Either on an application or otherwise, if any court
forms an opinion that it is expedient in the interests of justice
that an inquiry should be made in respect of an offence referred
to under Section 195 of CrPC which appears to have been
committed in relation to a proceeding in that court, the court
after such preliminary inquiry, enter a finding and make a
c complaint before the Magistrate of competent jurisdiction. It is
this jurisdiction which has been invoked suo motu by the High
Court in the Criminal Appeal, leading to the impugned order.
Section 340 of CrPC, prior to amendment in 1973, was Section
479-A in the 1898 Code and it was mandatory under the pre-
D amended provision to record a finding after the preliminary
inquiry regarding the commission of offence; whereas in the 1973
Code, the expression 'shall' has been substituted by 'may'
meaning thereby that under 1973 Code, it is not mandatory that
the court should record a finding. What is now required is only
recording the finding of the preliminary inquiry which is meant
E only to form an opinion of the court, and that too, opinion on an
offence 'which appears to have been committed', as to whether
the same should be duly inquired into. The impugned order is
not liable to be quashed on the only ground that there is no finding
recorded by the court on the commission of the offence. In the
F impugned order, the High Court did form an opinion after the
inquiry. Therefore, what is to be seen is whether the High Court
is justified in forming the opinion on commission of the offence
under Section 193 of IPC. The stand of the appellant in llis report
and while deposing before the court at the trial was consistent.
Query No.3 was whether both the empty cartridges were fired
G from the same firearm or otherwise. Since there was no recovery
of the firearm, the same was not sent along with the cartridges
for the examination by the expert. Therefore, the opinion
tendered was that he was unable to give any definite opinion in
answer to Query No.3, "unless the suspected firearm is available
H for examination." It was at that juncture, there was a court
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 37
question. According to the court, "for reply to query no. 3, the A
presence of the firearm was not necessary. The question was whether
the two empty cartridges have been fired from one instrument or
from different instruments". To that question, the appellant
responded that "after comparison, I am of the opinion that these
two cartridge cases Cll and C/2 appeared to have been fired from
B
two different firearms". It is not a clear, conclusive, specific and
definite opinion. In further examination, the appellant has clearly
stated that "I have already stated these two cartridge cases appear
to have been fired from two different fire arms. Definite opinion
would have been given once the weapon is given to me for
examination". There is no reason to state that the stand taken c
by the appellant would attract the offence of perjury. The appellant
has all through been consistent that as an expert, a definite
opinion in the case could be given only if the suspected firearm
is available for examination. It is nobody's case that scientifically
an expert can give a definite opinion by only examining the D
cartridges as to whether they have been fired from the same
firearm. It was the trial court which insisted for an opinion without
the presence of the firearm, and in that context only, the appellant
gave the non-specific and indefinite opinion. An expert, in such a
situation, could not probably have given a different opinion.
[Paras 11 to 15] [42-E-H; 43-A-B; 44-B, E-H; 45-A-C] E
3. Expert evidence needs to be given a closer scrutiny
and requires a different approach while initiating proceedings
under Section 340 of CrPC. After all, it is an opinion given by an
expert and a professional and that too especially when the expert
himself has lodged a caveat regarding his inability to form a F
definite opinion without the required material. The duty of an
expert is to furnish the court his opinion and the reasons for his
opinion along with all the materials. It is for the court thereafter
to see whether the basis of the opinion is correct and proper and
then form its own conclusion. But, that is not the case in respect
of a witness of facts. Facts are facts and they remain and have to G
remain as such forever. The witness of facts does not give his
opinion on facts; but presents the facts as such. However, the
expert gives an opinion on what he has tested or on what has
been subjected to any process of scrutiny. The inference drawn
thereafter is still an opinion based on his knowledge. In case, H
38 SUPREME COURT REPORTS [2016] I S.C.R.
A subsequently, he comes across some authentic material which
may suggest a different opinion, he must address the same, lest
he should be branded as intellectually dishonest. Objective
approach and openness to truth actually form the basis of any
expert opinion. [Para 20] [47-F-H; 48-A-B]
B National Justice Compania Naviera SA v. Prudential
Assurana Co Ltd (The "Ikarian Reefer") [1995] 1
Lloyd's Rep 455 - referred to.
4. The appellant's opinion that the cartridges appeared to
have been fired from different firearms was based on the court's
c insistence to give the opinion without examining the firearm. In
other words, it was not even his voluntary, let alone deliberate
deposition, before the court. Therefore, it is unjust, if not unfair,
to attribute any motive to the appellant that there was a
somersault from his original stand in the written opinion. As a
matter of fact, even in the written opinion, appellant has clearly
D stated that a definite opinion in such a situation could be formed
only with the examination of the suspected firearm. Thus, there
is no somersault or shift in the stand taken by the appellant in
the oral examination before court. The impugned proceedings
initiated against the appellant under Section 340 of CrPC are
E hence quashed. [Paras 23 and 24] [48-F-H]
Har Gobind v. State of Haryana (1979) 4 SCC 482;
Sqn. Ldr. (R) Umeed Ali Khan v. Dr. (Mrs.) Sultana
Ibrahim and Others LEX/SCPK/0483/2006 - held
inapplicable.
F Pritish v. State of Maharashtra 2001 (5) Suppl. SCR
302 : (2002) 1 SCC 253; Sidhartha Vashisht @ Manu
Sharma v. State ( NCT of Delhi) 2010 (4) SCR 103 :
(2010) 6 SCC 1; State (Delhi) v. Pali Ram 1979 (1) SCR
931 : (1979) 2 SCC 158; Ramesh Chandra Aggrawala
G
v. Regency Hospitals 2009 (14) SCR 424 : (2009) 9
sec 709 - referred to.
Case Law Reference
(1979) 4 sec 482 held inapplicable. Para 12
2001 (5) Suppl. SCR 302 referred to. Para 12
H 2010 (4) SCR 103 referred to. Para 16
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 39
1979 (1) SCR 931 referred to. Para 17 A
2009 (14) SCR 424 referred to. Para 18
LEX/SCPK/0483/2006 held inapplicable. Para 19
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 9-10 of2016
B
From the Judgment and Order dated 22.05.2013 of the High Court
of Delhi at New Delhi in Cr!. M.A. No. 1925 of2007 in Cr!. A. No. 193
of2006.
K. V. Viswanathan, Ashish Kumar, Dhananjay B. Ray, Abhishek
Kaushik, Siddhant Buxy, Ravi Raghunath, Abhishek Atrey for the C
Appellant.
K. L. Janjani, S.S. Rawat, D.S. Mabra for the Respondent.
The Judgment of the Court was delivered by
KURIAN, J.: I. Leave granted.
D
2. Appellant is aggrieved by the proceedings initiated by the High
Court of Delhi against him under Section 340 of The Code of Criminal
Procedure, 1973 (hereinafter referred to as 'CrPC') which culminated
in the impugned order dated 22.05.2013 whereby the High Court directed
its Registrar General to file a complaint against the respondent.
E
SHORT FACTS:
3. In connection with the investigation of F.l.R. No. 287 of 1999
registered at Police Station, Mehrauli (Jessica Lal Murder Case), the
Police sought an expert opinion from the State Forensic Science
Laboratory, Rajasthan by letter dated 19.01.2000. The expert opinion
F
was in respect of the following three questions:
"I. Please examine and opine the bore of the two empty
cartridges present in the sealed parcel.
2. Please opine whether these two empty cartridges have
been fired from a pistol or a revolver. G
3. Whether both the empty cartridges have been fired from
the same firearm or otherwise."
(Emphasis supplied)
4. The appellant at the relevant time was working as the Deputy H
40 SUPREME COURT REPORTS [2016] 1 S.C.R.
A Director of the Laboratory. He forwarded a report dated 04.02.2000
with the following result of examination:
"(i) The caliber of two cartridge cases (C/J and C/2) is .22.
(ii) These two cartridge cases (C/I and C/2) appear to have
been fired from pistol.
B
(iii) No definite opinion could be given on two .22 cartridge
cases IC/I and C/2) in order to link firearm unless the
suspected firearm is available for examination."
(Emphasis supplied)
C 5. During the trial before the Sessions Court, New Delhi, 101
witnesses were examined for the prosecution. Appellant was PW-95.
The trial court acquitted all the ten accused of all the charges. In Criminal
Appeal 193 of 2006, hy judgment dated 20'" December 2006, the High
Court convicted all of them. The conviction was upheld by this Court in
D judgment dated 19.04.2010 [The decision is reported in (2010) 6 SCC
1].
6. Disturbed by the conduct of many of the witnesses turning
hostile, the High Court, in the appeal against acquittal, initiated suo motu
proceedings, by notice dated 20.12.2006 against 32 witnesses including
the appellant. After considering their replies, the proceedings against a
E
few of them were dropped. However, the appellant and a few others
were directed to be proceeded against. The Court was of the opinion
that the oral evidence tendered by the appellant reflected a shift in stand
from that of the written opinion which was apparently to help the accused,
and hence, Section 193 of the Indian Penal Code (45 of 1860) (hereinafter
F referred to as 'IPC') was attracted.
7. In order to appreciate the factual position a little more in detail,
which is necessary for the purpose of this appeal, we shall extract the
relevant portion of the deposition:
"And after examination the report was prepared with reference
G to the queries. My report is Ex. PW-95/2 which was typed at
my dictation and bears my sign at point A. On examination I
came to the conclusion as under:
(i) In answer to query no. I, in Ex-PW-95/lB regarding the
bore of two empty cartridges I came to the conclusion that
H the caliber of two cartridge cases (marked C/I and C/2)
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 41
[KURIAN, J.]
examined by me is .22 bore. A
(ii) Regarding query no. 2 the two cartridge cases in question
1 came to the conclusion that these two cartridges appear
to have been fired from pistol. The query at no.2 was "please
opine whether these two empty cartridges have been fired
from pistol or revolver". B
(iii) Ouery No. 3 was 'whether both the empty cartridges have
been fired from the same fire arm which had not been sent
for examination in order to link the cartridge cases with
that. So my conclusion was that no definite opinion could
be.given on two .22 bore cartridge cases (C/l and C/2) in c
order to link with the firearm unless the suspected fire arm
is available for examination.
Court question
Q. For reply to query no. 3 the presence of the fire arm was
not necessary. The question was whether the two empty D
cartridges have been fired from one instrument or from
different instruments?
Ans. The question is now clear to me. I can answer the query
here and now. These two cartridge cases were examined
physically and under sterio and comparison microscope to E
study and observe and compare the evidence and the
characteristic marks present on them which have been
printed during firing. After comparison I am of the opinion
that these two cartridge cases C/l and C/2 appeared to
have been fired from two different fire arms."
F
(Emphasis supplied)
8. The witness was declared hostile, and in cross examination,
the following question and its answer were tendered.
"Q. Is it correct that according to your own notings at pt. C to
C on worksheet you were of the view that definite opinion G
as to whether the fired cases Cl and C2 have been fired
from the same firearm i.e. one firearm or from two different
weapons can be given only if the firearm involved in question
is produced otherwise not.
Ans. I have already stated that these two cartridge cases H
42 SUPREME COURT REPORTS [2016] I S.C.R.
A appeared to have been fired from two different firearms.
Definite opinion would have been given once the weapon
is given to me for examination."
(Emphasis supplied)
9. Shri K. V. Viswanathan, learned Senior Counsel appearing
B for the appellant, contended that being an expert and a professional, the
appellant only tendered his opinion in response to the specific question
by court and that does not amount to even a borderline case of perjury.
10. Perjury falls under Chapter XI of the !PC "Of False Evidence
and Offences Against Public Justice". As per Section 193 of !PC,
c "whoever intentionally gives false evidence in any stage of a judicial
proceeding, or fabri-cates false evidence for the purpose of being
used in any stage of a judicial proceeding, shall be punished with
imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine, and whoever
D intentionally gives or fabricates false evidence in any other case,
shall be punished with imprisonment of either de-scription for a
term which may extend to three years, and shall also be liable to
fi ne...... " .
11. Section 340 of CrPC falls under Chapter XXVI of the Code-
E "Provisions as to Offences Affecting the Administration of Justice".
Either on an application or otherwise, if any court forms an opinion that
it is expedient in the interests of justice that an inquiry should be made in
respect of an offence referred to under Section 195 of CrPC which
appears to have been committed in relation to a proceeding in that court,
the court after such preliminary inquiry, enter a finding and make a
F complaint before the Magistrate of competent jurisdiction. It is this
jurisdiction which has been invoked suo motu by the High Court in the
Criminal Appeal, leading to the impugned order.
12. Section 340 of CrPC, prior to amendment in 1973, was
Section 479-A in the 1898 Code and it was mandatory under the pre-
G amended provision to record a finding after the preliminary inquiry
regarding the commission of offence; whereas in the 1973 Code, the
expression 'shall' has been substituted by 'may' meaning thereby that
under 1973 Code, it is not mandatory that the court should record a
finding. What is now required is only recording the finding of the
preliminary inquiry which is meant only to form an opinion of the court,
H
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 43
[KURIAN, J.]
and that too, opinion on an offence 'which appears to have been A
committed', as to whether the same should be duly inquired into. We are
unable to appreciate the submission made by the learned Senior Counsel
that the impugned order is liable to be quashed on the only ground that
there is no finding recorded by the court on the commission of the offence.
Reliance pla~ed on Har Gobind v. State of Haryana1 is of no assistance
B
to the appellant since it was a case falling on the interpretation of the
pre-amended provision of the CrPC. A three-Judge Bench of this Court
in Pritish v. State of Maharashtra' has even gone to the extent of
holding that the proceedings under Section 340 of CrPC can be
successfully invoked even without a preliminary inquiry since the whole
purpose of the inquiry is only to decide whether it is expedient in the c
interest of justice to inquire into the offence which appears to have been
committed. To quote:
"9. Reading of the sub-section makes it clear that the hub of this
provision is formation of an opinion by the court (before which
proceedings were to be held) that it is expedient in the interest of D
justice that an inquiry should be made into an offence which appears
to have been committed. In order to form such opinion the court
is empowered to hold a preliminary inquiry. It is not peremptory
that such preliminary inquiry should be held. Even without such
preliminary inquiry the court can form such an opinion when it
E
appears to the court that an offence has been committed in relation
to a proceeding in that court. It is important to notice that even
when the court forms such an opinion it is not mandatory that the
court should make a complaint. This sub-section has conferred a
power on the court to do so. It does not mean that the court
should, as a matter of course, make a complaint. But once the F
court decides to do so, then the court should make a finding to the
effect that on the fact situation it is expedient in the interest of
justice that the offence should further be probed into. If the court
finds it necessary to conduct a preliminary i'1Quiry to reach such a
finding it is always open to the court to do so. though absence of
any such preliminary inquiry would not vitiate a finding reached G
by the court regarding its opinion. It should again be remembered
that the preliminary inquiry contemplated in the sub-section is not
for finding whether any particular person is guilty or not. Far from
1 0 979) 4 sec 482
2 ( 2002) 1 sec 253
H
44 SUPREME COURT REPORTS [2016] l S.C.R.
A that. the purpose of preliminar:y inquiry. even if the court opts to
conduct it. is only to decide whether it is expedient in the interest
of justice to inquire into the offence which appears to have been
committed."
13. In the impugned order, the High Court did form an opinion
B after the inquiry. To quote:
"90. It was argued on behalf of the state by the learned standing
counsel that the ballistic expert's deposition, Ex. PW-95 was
calculated to let the accused Manu Shanna off the hooks. It was
submitted that the witness had stated that no definite opinion could
c be given whether the two empty cartridges were fired from the
same weapon. However, on the basis of the same material, he
took a somersault and gave a completely contrary opinion in the
Court saying that they appear to have been fired from different
weapons. It was submitted that by the time this witness stepped
on to the box, the defence had formed its definite plan about a
D "two weapon theory". The deposition of this witness was sought
to support the "two weapon theory". That this court and Supreme
Court rejected the theory did not in any way undermine the fact
that PW-95 gave false evidence."
14. Therefore, what is to be seen is whether the High Court is
E justified in forming the opinion on commission of the offence under Section
193 oflPC. The stand of the appellant in his report (Ex PW-95/2) dated
04.02.2000, and while deposing before the court at the trial, it is to be
noted, was consistent. Query No.3 was whether both the empty cartridges
were fired from the same firearm or otherwise. Since there was no
F recovery of the firearm, the same was not sent along with the cartridges
for the examination by the expert. Therefore, the opinion tendered was
that he was unable to give any definite opinion in answer to Query No.3,
"unless the suspected firearm is available for examination." It was at
that juncture, there was a court question. According to the court, "'for
reply to query no. 3, the presence of the firearm was not necessary.
G The question was whether the two empty cartridges have been fired
from one instrument or from different instruments". To that question,
the appellant responded that "after comparison, I am of the opinion
that these two cartridge cases Cl! and C/2 appeared to have been
fired from two different firearms". It is not a clear, conclusive, specific
and definite opinion. In further examination, the appellant has clearly
H
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 45
[KURIAN, J.]
stated that "/ have already stated these two cartridge cases appear A
to have been fired from two different fire arms. Definite opinion
would have been given once the weapon is given to me for
examination".
15. We fail to understand how the stand taken by the appellant, as
above, attracts the offence of perjury. As we have already observed B
above, the appellant has all through been consistent that as an expert, a
definite opinion in the case could be given only if the suspected firearm
is available for examination. It is nobody's case that scientifically an
expert can give a definite opinion by only examining the cartridges as to
whether they have been fired from the same firearm. It was the trial
court which insisted for an opinion without the presence of the firearm, c
and in that context only, the appellant gave the non-specific and indefinite
opinion. An expert, in such a situation, could not probably have given a
different opinion.
16. Jn fact, this Court, in the decision rendered on the appeal filed
by the accused and reported in Sidhartha Vashisht @ Manu Sharma D
v. State fNCT ofDelhil3, has specifically dealt with the issue explaining,
and in a way, justifying the stand of the appellant. To quote:
"180. Similar is the case with the expert opinion of PW 95 which
is again inconclusive. There is no evidence on record to suggest
that PW 95 gave an oninion to oblige the prosecution. On the E
contrary, his response to the court question reveals that he was
extremely confused as to the issue which had to be addressed by
him in the capacity of an expert. In the concluding part of his
testimony he reaffirms the opinion given by him which is that
without test firing the empties from the weapon of offence no F
conclusive opinion can be given."
(Emphasis supplied)
17. This Court in State (Delhil v. Pali Ram' hekl that:
"51. .. .. the real function of the expert is to put before the court
G
all the materials, together with reasons which induce him to come
to the conclusion, so that the court, although not an expert, may
form its own judgment by its own observation of those materials.
Ordinarily, it is not proper for the court to ask the expert to give
3 (2010) 6 sec 1
4 o 979) 2 sec 158 H
46 SUPREME COURT REPORTS [2016] I S.C.R.
A his finding upon any of the issues, whether of law or fact,
because, strictly speaking, such issues are for the court or jury to
determine".
18. In Ramesh Chandra Ai:grawala v. Regency Hospitals',
this Court has dealt with the difference between an 'expert' and 'a
B witness of fact'.
"20. An expert is not a witness of fact and his evidence is really
of an advisory character. The duty of an expert witness is to
furnish the Judge with the necessary scientific criteria for testing
the accuracy of the conclusions so as to enable the Judge to form
c his independent judgment by the application of these criteria to
the facts proved by the evidence of the case. The scientific opinion
evidence, if intelligible, convincing and tested becomes a factor
and often an important factor for consideration along with other
evidence of the case. The credibility of such a witness depends
on the reasons stated in support of his conclusions and the data
D and material furnished which form the basis of his conclusions."
19. Mr. Vishwanathan, learned Senior Counsel has invited our
attention and has placed heavy reliance on a judgment of the Supreme
Court of Pakistan in Sqn. Ldr. IR) Umeed Ali Khan v. Dr. fMrs.l
Sultana Ibrahim aud Others'. While dealing with the issue of perjury
E by expert witnesses, observed as follows:
"6. We have also dilated upon the import and significance of the
Handwriting Expert report by whom it was opined that the "receipt"
was signed by Dr. Sultana Ibrahim. It is well-settled by now that
Expert's evidence is only confirmatory or explanatory of direct or
circumstantial evidence and the confirmatory evidence cannot be
F
given preference where confidence-inspiring and worthy of
credence evidence is available. In this regard we are fortified by
the dictum as laid down in Yaqoob Shah v. The State PLD 1976
SC 53. There is no doubt that the opinion of Handwriting Expert
is relevant but it does not amount to conclusive proof as pressed
G time and again by the learned Advocate Supreme Court on behalf
of petitioner and can be rebutted by overwhelming independent
evidence. In this regard reference can be made to Abdul Majeed
v. State PLD I 976 Kar. 762. lt is always risky to base the findings
of genuineness of writing on Expert's opinion. In this behalf we
H s (2009) 9 sec 109
6 LEX/SCPK/0483/2006
PREM SAGAR MANOCHA v. STATE (NCT OF DELHI) 47
[KURIAN, J.]
are fortified by the dictum as laid down in case of Ali Nawaz A
Gardezi v. Muhammad Yousuf PLD 1963 SC 51. It hardly needs
any elaboration that expert opinion must always be received with
great caution, especially the opinion of Handwriting Experts. An
expert witness, however, impartial he may wish to be, is likely to
be unconsciously prejudiced in favour of the side which calls him.
B
The mere fact of opposition on the part of the other side is apt to
create a spirit of partisanship and rivalry, so that an Expert witness
is unconsciously impelled to support the view taken by his own
side. Besides it must be remembered that an Expert is often called
by one side simply and solely because it has been ascertained that
he holds views favourable to its interest. Although such evidence c
has to be received with "great caution'', yet such evidence, and
reasons on which it is based. are entitled to careful examination
before rejection and non-acceptance by Court of Expert's evidence
does not mean that the Expert has committed perjury. Of all kinds
of evidence admitted in a Court, this is the most unsatisfactory. It D
is so weak and decrepit as scarcely to deserve a place in our
system of jurisprudence"
We are afraid that the decision is of no assistance to the appellant.
since according to that court, the expert is often called by a party after
ascertaining that the expert holds a view in favour of that party. That is
E
not the situation or scheme under The Indian Evidence Act, 1872. And,
in any case, a Government scientific expert certainly stands on a different
footing.
20. Expert evidence needs to be given a closer scrutiny and
requires a different approach while initiating proceedings under Section
340 ofCrPC.After all, it is an opinion given by an expert and a professional F
and that too especially when the expert himself has lodged a caveat
regarding his inability to form a definite opinion without the required
material. The duty of an expert is to furnish the court his opinion and the
reasons for his opinion along with all the materials. It is for the court
thereafter to see whether the basis of the opinion is correct and proper G
and then fof111 its own conclusion. But, that is not the case in respect of
a witness of facts. Facts are facts and they remain and have to remain
as such forever. The witness of facts does not give his opinion on facts;
but presents the facts as such. However, the expert gives an opinion on
what he has tested or on what has been subjected to any pr0~ess of
scrutiny. The inference drawn thereafter is still an opinion based on h;s H
48 SUPREME COURT REPORTS [2016] 1 S.C.R.
A knowledge. In case, subsequently, he comes across some authentic
material which may suggest a different opinion, he must address the
same, lest he should be branded as intellectually dishonest. Objective
approach and openness to truth actually form the basis of any expert
opinion.
B 21. In National .Justice Compania Naviera SA v. Prudential
Assurance Co Ltd (The "lkarian Reefer")', the Queen's Bench
(Commercial Division) even went to the extent of holding that the expert
has the freedom in such a situation to change his views. It was stated
that "if' an expert's opinion is not properly researched because he
considers that insufficient data is available, then this must be stated
c with an indication that the opinion is no more than a provisional
one. In cases where an expert witness who has prepared a report
could not assert that the report contained the truth, the whole truth
and nothing but the truth without some qualification, that
qualification should be stated in the report".
D 22. Hence, merely because an expert has tendered an opinion
while also furnishing the basis of the opinion and that too without being
conclusive and definite, it cannot be said that he has committed perjury
so as to help somebody. And, mere rejection of the expert evidence by
itself may not also warrant initiation of proceedings under Section 340 of
E Cr PC.
23. It is significant to note that the appellant's opinion that the
cartridges appeared to have been fired from different firearms was based
on the court's insistence to give the opinion without examining the firearm.
In other words, it was not even his voluntary, let alone deliberate
F deposition, before the court. Therefore, it is unjust, if not unfair, to attribute
any motive to the appellant that there was a somersault from his original
stand in the written opinion. As a matter of fact, even in the written
opinion, appellant has clearly stated that a definite opinion in such a
situation could be formed only with the examination of the suspected
firearm, which we have already extracted in the beginning. Thus and
G therefore, there is no somersault or shift in the stand taken by the appellant
in the oral examination before court.
24. The impugned proceedings initiated against the appellant under
Section 340 of CrPC are hence quashed. The appeals are allowed.
Devika Gujral Appeals allowed.
H
7 [199511 Lloyd's Rep 455
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