Wednesday, 25 May 2016

When Expert witness should not be treated as hostile witness?

The question whether, on the inconsistent statements made by an expert witness, who was called upon to act as an expert witness and to furnish his opinion on any particular aspect, he could be treated as a hostile witness, has come in for consideration, as pointed out by the learned counsel for the' respondent, in a case before the Supreme Court in Prem Sagar Manocha v. State (NCT of Delhi), MANU/SC/0029/2016 : AIR 2016 SC 290 and the Supreme Court has expressed as follows:--
"Expert evidence needs to be given a closer scrutiny and requires a different approach while initiating proceedings under' Section 340 of Cr PC. 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 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 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 had 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, 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."
IN THE HIGH COURT OF KARNATAKA
Writ Petition No. 29772 of 2015 (GM-FC)
Decided On: 12.02.2016
Appellants: D.R. Lakshmi Narayana Guptha 
Vs.
Respondent: K.R. Archana
Hon'ble Judges/Coram:Anand Byrareddy, J.
Citation;AIR 2016 karnat67

1. Heard the learned counsel for the petitioner and the learned counsel for the respondent. The petitioner has filed a petition under Section 12(1)(c) and 12 (b)(1) of the Hindu Marriage Act, 1955, seeking a declaration that the marriage of the petitioner with the respondent is null and void, on the ground that the respondent had suppressed the material evidence as to his ailment from which she was suffering.
2. The Court of the V. Additional Principal Judge, Family Court at Bangalore had allowed the petition by a judgment and decree dated 28-11-2013. The respondent thereafter had preferred an appeal before this Court in appellate jurisdiction in MFA 829/2014, since there was no medical expert examined on either side. This Court, by its judgment dated 19-8-2014, had set aside the impugned judgment and remanded the matter to the Court below and permitted the petitioner and the respondent to lead additional evidence in regard to the medical condition of the respondent herein and directed both the parties to appear before the Court below and also directed that the case be disposed of within six months.
The petitioner is said to have made an application under Order XVI, Rules 1 and 2 of the Code of Civil Procedure, 1908, to issue witness summons to one Dr. B.C. Srinivas, Professor, Shri Jayadeva Institute of Cardio-Vascular Sciences and Research, Bengaluru, as he had treated the respondent herein from the year 2009, that is even before the marriage of the petitioner and the respondent and since he was also an expert in the medical field.
On 12-11-2014, the application having been allowed, the doctor was summoned. The doctor was present in Court and he was examined-in-chief partly and in the meanwhile, the advocate appearing for the respondent sought to protract the proceedings. According to the petitioner, the respondents had made allegations even against the Presiding Officer. On account of such interference, the Court was compelled to adjourn the case to a. further date. The said witness was examined on 13-7-2015. And in me course of his deposition before the Court below, he had deposed contrary to the earlier evidence and has made inconsistent statements. In that, he had pleaded ignorance of having treated the respondent herein and also as regards her health condition. It is at this juncture, that the petitioner requested me Court below to permit him to cross-examine the witness. Such permission having been rejected, the present petition is filed.
3. This Court, in the first instance, had granted an interim order of stay which has been continued till date. The learned counsel for the respondent has now filed an application seeking to vacate the interim order of stay.
4. The question whether, on the inconsistent statements made by an expert witness, who was called upon to act as an expert witness and to furnish his opinion on any particular aspect, he could be treated as a hostile witness, has come in for consideration, as pointed out by the learned counsel for the' respondent, in a case before the Supreme Court in Prem Sagar Manocha v. State (NCT of Delhi), MANU/SC/0029/2016 : AIR 2016 SC 290 and the Supreme Court has expressed as follows:--
"Expert evidence needs to be given a closer scrutiny and requires a different approach while initiating proceedings under' Section 340 of Cr PC. 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 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 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 had 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, 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."
The said decision applies to the present case on hand.
In the present case, the petitioner had called the witness in order to depose as to the medical condition of the respondent herein. The said expert witness having stated that he was not aware of any such illness nor had he treated the respondent at relevant point of time, is a statement made as to facts. If this is inconsistent with the actual record, it is for the petitioner to raise this as a contention in the course of the arguments. Therefore, the court below having rejected the application to treat the witness as a hostile witness as if it was a criminal case cannot be countenanced. Therefore, there is no illegality committed by the Court below. The petition is dismissed. The order of stay granted earlier stands vacated.
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