STATE OF HIMACHAL PRADESHversusJAI LAL AND ORS.

 A                        STATE OF HIMACHAL PRADESH
                                       v.
                               JAi LAL AND ORS.

                                  SEPTEMBER 13, 1999

 B                  [K.T. THOMAS AND D.P. MOHAPATRA, JJ.]


             Criminal Law:

             Evidence Act, 187.,,: Section 45.
c
           District Horticultural Officer-Examined as expert witness-For
     assessing the fruit- bearing capacity of apple orchards-Such expert witness
     made no scientific study or research in assessing the productivity of apple
     trees -Credibility of such expert evidences-Held: Testimony of such an
     expert witness cannot be given the label of expert evidence -Criminal Trial.
D
             Penal Code, 1860: Sections 120-B and 420.

        Criminal conspiracy-State Government took policy decision to
   purchase diseased fruits and destroy the same-Allegations that accused
  persons prepared false records showing inflated quantities of scabbed apple
E and thereby caused loss to the State exchequer-No proof of conspiracy-
  Allegations sought to be established by expert evidence-Such evidence
  found unreliable and inadequate-Held :In the circumstances of the case,
  High Court rightly acquitted the accused persons-Prevention of Corruption
  Act, 1988, S.5(2).
F            Words and Phrases:

             "Experts"-Meaning of-Jn the context of S.45 of the Evidence Act
     1872.

             The respondents-accused were convicted by the trial court under
G Sections 120-B and 420 of the Penal Code, 1860 and Section 5(2) of the
     Prevention of Corruption Act, 1988 read with Section 120-B IPC. However,
     the High Court acquitted the accused persons .Hence this appeal.

            According to the prosecution, a disease called 'Scab' rendering the
H    fruits unfit for human co._sumption afflicted the apple orchards in different
                                           318
                 ST ATE OF HIMACHAL PRADESH v. JAi LAL                      319

areas of the State. The State Government, therefore, took a policy decision        A
to purchase the diseased fruits and destroy the same. It was decided that
procurement and destruction of diseased apples would be done at different
centres throughout the State by teams comprising of officials and non-
officials.

      It was alleged that the accused persons had brought much lesser              B
quantities of scabbed apple than the quantity entered in the official records
and received amount in lieu of the same and thus entered into a criminal
conspiracy with a view to cheat the State Government .

      At the trial the prosecution case was sought to be proved by
circumstantial evidence which was brought on record by the testimony of the        C
District Horticulture Officer who was examined as an expert for assessing
the fruit bearing capacity of the orchards in question. According to the
prosecution, the evidence of this expert showed that the quantity of scabbed
apple brought by the accused to the procurement centres as reflected in the
records was grossly inflated. From the evidence the prosecution sought to          D
establish the case that the whole transaction was an outcome of a criminal
conspiracy to cheat the State Government and to misappropriate public funds
and the public servants concerned having been parties to the conspiracy, the
purpose could be easily achieved.

      Dismissing the appeal, the Court                                             E

     HELD: 1. An expert witness is one who has made the subject upon
which he speaks a matter of particular study, practice or observation; and
he must have a special knowledge of the subject. (324-B]

       2.1. An expert is not a witness of fact. His evidence is really of an       F
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 his independent judgment by the application
of this criteria to the facts proved by the evidence of the case. The scientific
opinion evidence, if intelligible, convincing and tested becomes a factor and      G
often an important factor for consideration along with the other evidence of
the case. The credibility of such a witness depends on the reasons stated in
support of his conclusions and the data and materials furnished which form
the basis of his conclusions. (325-E-F]

      2.2. The report submitted by an expert does not go in as evidence            H
     320                     SUPREME COURT REPORTS [1999] SUPP: 2 S.C.R.

A automatically. He is to be examined as a witness in Court and has to faee
     cross-examination. [325-G)


     on.
           Hazi Mohammed Jkramul Haque v. State of WB, (1959) SCR 488, relied         -
B          3.1. In the present case, the expert witness has not stated anything in
    his testimony to show that he had made any scientific study or research in
    assessing the productivity of apple trees in the State. He does not even state
    whether he had undertaken any such work prior to the present case. No
    doubt as an officer of the Horticulture Department of the State Government
C   he might have acquired some experience in the matter but that is not sufficient
    to make him an expert in the field and to give the label of "expert evidence"
    to his testimony. [326-A-B]

           3.2. Further, there is no evidence, direct or circumstantial, in support
    of the charge of conspiracy amongst the accused persons to cheat the State
D   exchequer and with that object having entered inflated quantities of scabbed
    apple brought by the growers. [326-F]

         4. The evidence of the District Horticulture Officer is beset with many
    unsatisfactory features which renders it clearly unreliable and in any case
    inadequate to establish the charges levelled against the accused persons.
E   Hence, the High Court rightly acquitted the accused persons. [327-C]

         CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    530 of 1997 Etc.

         From the Judgment and Order dated 2.5.96 of the Himachal Pradesh
F   High Court in Crl. A. No. 353 of 1990.

           Ms. Meenakshi Arora for the Appellant.

           Dr. K.S. Chauhan for the Respondents.

G          The Judgment of the Court was delivered by

          D.P. MOHAPATRA, J .. Though the cases from which these appeals
    arise were disposed of by judgments rendered by the High Court of Himachal
    Pradesh on different dates the questions of fact and law involved in all the
    cases are similar. With the consent of learned counsel for the parties all the
H   cases were heard together and they are being disposed of by this common
            STATEOFHIMACHALPRADESHv.JAILAL[D.P.MOHAPATRA,J.)                   321
     judgment.                                                                       A
            The State of Himachal Pradesh is well known throughout the country
     for its apples. In the State there are large tracts of apple orchard and a good
     number of persons are engaged in growing apples. The apple season in the
     State is between the months of July to October. In the year 1983 the apple
     orchards in different areas of the State like Jubbal and Rohru were afflicted B
     by a disease called "scab" rendering the fruits unfit for human consumption.
     Feeling concerned about the heavy financial loss which apple growers in the
     State were facing and keeping in view the danger to public health if the scab
     affected apples are sold in markets, the State Government took a policy
     decision to purchase the diseased fruits and destroy the same. For C
     implementation of the policy a set of modalities were formulated in which it
     was provided inter alia that procurement and destruction of diseased apples
     will be done at different centres throughout the State by comprising of teams
     of officials and non-officials. Each team was headed by a Gazetted Officer of
     the State Government and Pradhans, Up~Pradhans of the local Panchayats
     were included in the team. Arrangements were made for weighing the Scab D
..   affected apples at the Centres and for its destruction. The growers were asked
     to bring the diseased apples from their orchards to the Centre for procurement
     and destruction. Precaution was taken to ensure that the procured apples
     were not re-cycled. The underlying idea was that the growers are to bring the
     apples produced in their orchards and not to bring fruits purchased or collected E
.·   from others. This was in keeping with the purpose of rendering assistance to
     the growers facing heavy financial loss. In this operation about 30000 tons
     of Scab affected apple were procured and destroyed at 195 centres set up for
     the purpose and compensation @ 50 paise per kilogram was paid to the
     concerned growers.
                                                                                     F
            Complaints of large scale bungling and misappropriation of Government
     money were received from different quarters. The State Government appointed
     Shri Roop Singh Thaku~. the then District and Sessions Judge, Shimla as one-
     man enquiry Commission to examine the matter. The Commission came to the
     conclusion that some persons had obtained false payments by showing             G
     inflated quantities of scabbed apple and had, thereby cheated the State
     Government. The Commission had also come to the conclusion that the
     bungling had been done in connivance with the members of the team engaged
     in the procurement and destruction of the fruits. On the basis of the said
     enquiry report a number of criminal complaints were lodged against the public
     servants who were members of the team and also the concerned growers. The       H
     322                      SUPREME COURT REPORTS (1999) SUPP. 2 S.C.R.

A cases were sent to the court of the special Judge, Shimla for trial .
           In these cases it was alleged inter alia that the accused persons
     entered into a criminal conspiracy with a view to cheat the State Government
    by preparing false records showing inflated quantities of scabbed apple
    brought by the growers and thereby caused loss to the Government exchequer.
B   The gist of the prosecution case was that the growers had brought much
    lesser quantities of scabbed apple than the quantity entered in the official
    records and received amount in lieu of the same. On these allegations all the
    accused persons were charged for offences punishable u/s 468, 420, 120-B of
    the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act,
c   1988.

          The accused persons denied the charges. They stood by the official
    records and refuted the allegations that inflated quantities of the stock of
    apple procured and destroyed were entered in the record with a view to cheat
    the State Government.
D
          · At the trial the prosecution case was sought to be proved by
     circumstantial evidence which was brought on record by the testimony of Shri
    P. C. Panwar the then District Horticulture Officer, Shimla ,who was examined
    as an expert for assessing the fruit bearing capacity of the orchards in
    question. According to the prosecution the evidence of this expert. showed
E   that the quantity of scabbed apple brought by the accused to the procurement
    centres as reflected in the records was grossly inflated. From the evidence the
    prosecution sought to establish the case that the whole transaction was an
    outcome of a criminal conspiracy to cheat the State Government, and to
    misappropriate public funds and the public servants concerned having been
F   parties to the conspiracy, the purpose could be easily achieved. It is relevant
    to note here that no direct evidence was produced for showing the apple crop
    of the orchards in question during the year l 983. It is on record !hat Shri P.
    C. Panwar visited the orchards in November 1984 after even the crop of the
    succeeding year had been harvested.

G         On behalf of the defence Shri D.R. Thakur a retired professor of
    Horticulture and Shri Shamsher Singh a grower, were examined to counter the
    evidence of Shri Panwar.

          The learned trial Judge accepted the evidence of Shri P. C. Panwar and
    held that the prosecution was able to bring home the charge under Sections
H   120-B and 420 IPC against all the accused persons and in addition, Section
            STATE OF HIMACHAL PRADESH v. JAi LAL [D.P. MOHAPATRA, J.]            323
     5 (2) of the Prevention of Corruption Act read with 120-8 IPC against the          A
     public servants concerned . The trial court further found that the change
     under Section 468 IPC was not established.

            On appeal, the High Court of Himachal Pradesh differed from the trial
     court and took the view that the prosecution had failed to establish any of
     the charges against the accused persons. The High Court was of the view            B
     that the evidence of Shri P .C. Pan war fell very much short of the requirement
     of law and therefore could not be relied upon. Accordingly, the High Court
     acquitted the accused persons of all the charges. Hence these appeals filed
     by the State of Himachal Pradesh.

            The main contention of Shri Altaf Ahmad, learned Senior Counsel             C
     appearing for the appellant was that the learned trial judge had thoroughly
     discussed the evidence and given cogent reasons for accepting the prosecution
     case while the High Court without closely examining the reasons stated in the
     trial court judgment, on a superficial approach has rejected the prosecution
     case and acquitted the accused persons.                                            D
           Learned counsel appearing for the respondents strongly urged that the
.•
     prosecution has utterly failed to bring home any of the charges against the
     accused persons and the High Court has rightly acquitted them. Referring to
     the evidence of Shri P.C. Panwar, the learned counsel contended that he can
     neither be taken as an expert for assessment of maximum productive capacity        E
     of apple trees nor does his evidence reveal that inflated stock was entered
     in the official records. According to the learned counsel the quantities of
     scabbed apple were correctly entered in the official records. It was the further
     contention of the learned counsel for the respondents that under the modalities
     of the scheme the public officials in the team were not responsible for
     ascertaining whether the quantity of diseased apples brought by the grower         F
     was out of the crop grown in his orchard or it was procured from some other
     source. The non-official members of the team i.e. Pradhan, Up-Pradhan and
     Panchas were to identify the grower and also certify that the stock brought
     by him was from his orchard. On such certification the public officials were
     to weigh and enter the quantity in the official records. After destroying the      G
     stock an entry to that effect was also to be made in the record.

           From the case of the parties, the findings recorded by the courts below
     and the contentions raised at the hearing before us the core question that
     arises for determination is whether the evidence of Shri P.C. Panwar has
     examined by the prosecution as an expert to prove the optimum productive           H
     324                     SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A capacity of the orchards in question could be believed or not. Indeed the
     entire prosecution case rests on his evidence.

           An expert witness, is one who has made the subject upon which he
     speaks a matter of particular study, practice, or observation; and he must have
     a special knowledge of the subject. Shri P.C. Panwar in his evidence has
B    stated that he passed B.Sc. (Agriculture) Hons. from University of Delhi in
     1959; thereafter he did his M.Sc. (Hort.) in 1967 from Punjab University. He
    joined the Agricultural Department in the year 1969 as a Research Assistant;
    he was promoted as Horticulture Development officer in the year 1973 and at
    the time of the assessment he was working as District Horticulture Officer,
C   Shimla. He has also stated ·that in the year 1986 he attended a 3 months
    training course on apple technology in the University of Tasmania Australia.
    The assessment in the Orchards in question were made on different dates in
    November 1984. He has fairly accepted the suggestion that he had not
    received any training with respect to assessment of apple crop but that has
    been a part of his job. The witness could not state the number of scab cases
D   in which he had been called upon to make assessment. He has specifically           1




    stated in the case against Jai Lal and others that was his first and last
    assignment till date as a commission for assessing productivity of an apple
    orchard.

           Coming to the assessment made by Shri Panwar he has said that he
E   based it on the number of spurs which were existing on each of the apple
    trees in the Orchard. He accepted the suggestion that in his report he did not
    mention the number of spurs which were existing on each tree nor did he
    mention the total number of spurs which were existing on all the trees in an
    orchard. According to this witness the productivity of an apple tree depends
F   upon various factors; but he had not referred to any such factor in his report.
    The witness admitted that sometime the crop is lean and sometimes it is a
    bumper crop and that a bumper crop can yield twice the average crop expected.

           On a perusal it is clear that many entries in the report need to be
    explained. Many of the trees of the orchards; their expected production of the
G   tree is shown as nil. No reason whatsoever is stated in the report why the
                                                                                           .. '
    witness felt that the tree had no productive capacity. The assessment made
    by this witness appears to have been made on some sort of calculation the
    basis of which is not stated in the report; nor does the report disclose the
    reason for the end-result arrived at by the ;,sessor. While judging the
    acceptability and reliability of the report it is to he borne in mind that Shri
H   Panwar visited the Orchards only in the succeed1i1g year and that too after
       STATEOFHIMACHALPRADESHv.JAILAL[D.P.MOHAPATRA,J.]                          325

the apple season of that year was over. Judged in this background the High              A
Court cannot be faulted for having held that the report of the assessor is
based more on surmises and conjunctures than actual observations or on
scientific reasons.

      The High Court also expressed doubt whether Shri Panwar can at all be
accepted as an expert on this subject of assessment of productive capacity              B
of apple orchards. Here too the finding of the High Court cannot be said to
be erroneous.

      Section 45 of the Evidence Act which makes opinion of experts admissible
Jays down that when the Court has to form an opinion upon a point of foreign            C
Jaw, or of science, or art, or as to identity of handwriting or finger impressions,
the opinions upon that point of persons specially skilled in such foreign law,
science or art, or, in questions as to identify of handwriting, or finger impressions
are relevant !acts. Therefore, in order to bring the evidence of a witness as
that of an expert it has to be shown that he has made a special study of the
subject or acquired a special experience therein or in other words that he is           D
skilled and has adequate knowledge of the subject.

      An expert is not a witness of fact. 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 his independent judgment by the application of              E
this 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 the other evidence of
the case. The credibility of such a witness depends on the reasons stated in
support of his conclusions and the data and materials furnished which form              F
the basis of his conclusions.

      The report submitted by an expert does not go in evidence automatically.
He is to be examined as a witness in Court and has to face cross-examination.
This Court in the case of Hazi Mohammed Ikramul Haque v. State of West
Bengal, AIR [1959] SCR488 concurred with the finding of the High Court in               G
not placing any reliance upon the evidence of an expert witness on the
ground that his evidence was merely an opinion unsupported by any reasons.

      The question for consideration is whether the evidence of Shri P.C.
Panwar who was examined as an expert witness measures up to the well
accepted principles for judging the credibility of such an evidence. As noted           H
     326                       SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A     earlier, Shri Panwar has not stated anything in his testimony to show that he
     had made any scientific study or research in assessing the productivity of
     appeal trees in the State of Himachal Pradesh. He does not even state whether
     he had undertaken any such work prior to the present case. No doubt as an
     officer of the Horticulture Department of the State Government he might have
B    acquired some experience in the matter but that is not sufficient to make him
     an expert in the field and to give the label of 'expert evidence' to his testimony.
     A perusal of the report submitted by Shri Panwar glaring omissions and
     inadequacies come to light. From the report it appears that against several
     trees in the orchards in question the productive capacity is shown as nil. It
     is neither explained in the report nor in the evidence of the expert in what
C   circumstance some trees in the orchard were branded by him as non-productive.
    The entire basis for the assessment of productivity as evident from his
    deposition is counting of spurs on the trees the details of which are wanting
    in many of the data sheets attached to the report. Even taking his evidence
    on its face value, in some of the cases the maximum yield of the orchard works
    out at quantities much more than the stock purchased from .the grower which
D   prima facie goes to show that there has been no inflation of the stock brought
    by the grower to the procurement centre which was purchased from him. At
    the cost of repetition it may be stated here that the defence has adduced the
    evidence of Shri Thakur, a retired professor of Horticulture of the University
    of Shimla and Shri Shamsher Singh a grower of apple fruits whose opinion
E   run counter to the evidence by Shri Panwar. Comparing the evidence of the
    experts brought on record by the parties, it is difficult to come to a definite
    conclusion that the accused persons have deliberately entered inflated
    quantities of scabbed apple produced in the orchard in question which were
    purchased by the State Government.

F          Further there is no evidence, direct or circumstantial, in support of the
    charge of conspiracy amongst the accused persons to cheat the State exchequer
    and with that object having entered inflated quantities of scabbed apple
    brought by the growers as already stated. It was the duty of the non-official
    members of the team to certify about the genuineness of the growers and the
G   stock of scabbed apple brought by them having been grown in their orchards.
    There is no stipulation· in the modalities to show that the public servants who
    are strangers to the area had no role to play in this matter. Therefore, the
    prosecution case, as contended by the learned Additional Solicitor General,
    was that the quantity of scabbed apple stated to have been purchased from
    the accused growers could not have been produced in their orchards and the
H   inflated quantity of stock leads to an inference that while the exercise was a
         STA TE OF HIMACHAL PRADESH v. JAI LAL [D.P. MOHAPATRA, J.]       327

part of criminal conspiracy to cheat the State Government particularly when       A
the accused growers accepted the position that they have sold quantities of
appeals as entered in the records and received the amount as price thereof.
But the crucial factor is that they denied allegation that the stock brought by
them to the procurement and destruction centre was not grown in their
orchard. This crucial factor is sought to be proved by drawing an inference       B
from the evidence of Shri Panwar. As noted above Shri Panwar's evidence is
beset with many unsatisfactory features which renders it clearly unreliable
and in any case inadequate to establish the charges levelled against the
accused persons.

       On a close scrutiny of the entire case we have no hesitation to hold       C
that the High Court was right in taking the view that the prosecution has
failed to establish the charges against t)le accused persons and rightly
acquitted them of the same. In the result, the appeals being devoid of merits
are dismissed.

v.s.s.                                                    Appeals dismissed.