Saturday, 25 June 2016

What is difference between expert opinion and testimony of facts?

 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
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 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,
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.

21. In National Justice Compania Naviera SA v.
Prudential Assurance Co Ltd (The "Ikarian Reefer")

[1995] 1 Lloyd's Rep 455, theQueen’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 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”.
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 CrPC.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 9-10 OF 2016
(Arising from S.L.P. (Criminal) Nos. 7153-7154/2013)
PREM SAGAR MANOCHA … APPELLANT (S)
VERSUS
STATE (NCT OF DELHI) … RESPONDENT (S)
Citation; 2016 CRLJ1090 SC,(2016) 4 SCC 571


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.

SHORT FACTS:
3. In connection with the investigation of F.I.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 was in respect of the following three questions:
“1. 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.
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 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/1 and
C/2) is .22.
(ii) These two cartridge cases (C/1 and C/2)
appear to have been fired from pistol.
2Page 3
(iii) No definite opinion could be given on two .22
cartridge cases (C/1 and C/2) in order to link
firearm unless the suspected firearm is
available for examination.”
(Emphasis supplied)
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, by judgment dated 20th
December 2006, the High Court convicted all of them. The
conviction was upheld by this Court in 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 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
3Page 4
accused, and hence, Section 193 of the Indian Penal Code (45 of
1860) (hereinafter 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 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.1, in Ex-PW-95/1B
regarding the bore of two empty cartridges I
came to the conclusion that the caliber of two
cartridge cases (marked C/1 and C/2)
examined by me is .22 bore.
(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”.
(iii) Query 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/1 and C/2) in order to link with the
firearm unless the suspected fire arm is
available for examination.
Court question
4Page 5
Q. For reply to query no. 3 the presence of the
fire arm was not necessary. The question was
whether the two empty 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 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/1 and C/2 appeared to
have been fired from two different fire arms.”
(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 as to
whether the fired cases C1 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 appeared to have been fired from two
different firearms. Definite opinion would
5Page 6
have been given once the weapon is given to
me for examination.”
(Emphasis supplied)
9. Shri K. V. Viswanathan, learned Senior Counsel appearing
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 IPC “Of False
Evidence and Offences Against Public Justice”. As per Section 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
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……” .
6Page 7
11. Section 340 of CrPC falls under Chapter XXVI of the Code-
“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 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-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, and that too, opinion on an
7Page 8
offence ‘which appears to have been 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 placed on Har Gobind v.
State of Haryana1
 is of no assistance 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 Maharashtra2
 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 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 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
1
(1979) 4 SCC 482
2
( 2002) 1 SCC 253
8Page 9
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 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 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 inquiry 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 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 that, the purpose of preliminary 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
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 Sharma off the hooks. It was
9Page 10
submitted that the witness had stated that no
definite opinion could 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 “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
justified in forming the opinion on commission of the offence
under Section 193 of IPC. 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 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
10Page 11
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. 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 C/1 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
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”.
15. We fail to understand how the stand taken by the
appellant, as above, attracts the offence of perjury. As we have
already observed 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
11Page 12
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.
16. In fact, this Court, in the decision rendered on the appeal
filed by the accused and reported in Sidhartha Vashisht @
Manu Sharma v. State (NCT of Delhi)3
, 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
opinion to oblige the prosecution. On the 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 conclusive opinion can be given.”
(Emphasis supplied)
3
(2010) 6 SCC 1
12Page 13
17. This Court in State (Delhi) v. Pali Ram4
 held that:
“51. ….the real function of the expert is to put
before the court 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 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 Aggrawala v. Regency
Hospitals5
, this Court has dealt with the difference between an
‘expert’ and ‘a 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 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 and material furnished which form
the basis of his conclusions.”
4
(1979) 2 SCC 158
5
(2009) 9 SCC 709
13Page 14
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. (R) Umeed Ali Khan v.
Dr. (Mrs.) Sultana Ibrahim and Others6
. While dealing with
the issue of perjury 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 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 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 1976 Kar.
762. It is always risky to base the findings of
genuineness of writing on Expert's opinion. In this
behalf we are fortified by the dictum as laid down
in case of Ali Nawaz 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
6 LEX/SCPK/0483/2006
14Page 15
unconsciously prejudiced in favour of the side
which calls him. 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 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 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 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 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
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 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,
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.
21. In National Justice Compania Naviera SA v.
Prudential Assurance Co Ltd (The "Ikarian Reefer")7
, the
7
[1995] 1 Lloyd's Rep 455
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 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”.
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 CrPC.
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 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 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.
.…….…..…………CJI.
 (T. S. THAKUR)

....……………………J.
 (KURIAN JOSEPH)
New Delhi;
January 6, 2016.


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