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SUPREME COURT OF INDIA
T.S. THAKUR, CJI., KURIAN JOSEPH, J.
PREM SAGAR MANOCHA – APPELLANT
VERSUS
STATE (NCT OF DELHI) – RESPONDENT
CRIMINAL APPEAL NOS. 9-10 OF 2016 (Arising from S.L.P. (Criminal) Nos. 7153-7154/2013)
Decided on : 06-01-2016
non-specific and indefinite opinion – An expert, in such a situation, could not probably have given a different opinion – Expert evidence needs to be given a closer scrutiny and requires a different approach while initiating proceedings under Section 340 of Cr.P.C. – After all, it is an opinion given by an expert and a professional and that too especially when expert himself has lodged a caveat regarding his inability to form a definite opinion without required material – Duty of an expert is to furnish court his opinion and reasons for his opinion along with all materials – It is for court thereafter to see whether basis of opinion is correct and proper and then form its own conclusion – Merely because an expert has tendered an opinion while also furnishing basis of opinion and that too without being conclusive and definite, it cannot be said that he has committed perjury so as to help somebody – Mere rejection of the expert evidence by itself may not also warrant initiation of proceedings under Section 340 of Cr.P.C. – It is unjust to attribute any motive to appellant that there was somersault from his original stand in written opinion – Impugned proceedings initiated against appellant under Section 340 of Cr.P.C. quashed. (Paras 15, 20, 22 and 24)
(2002) 1 SCC 253 ; (2010) 6 SCC 1 ; (1979) 2 SCC 158 ; (2009) 9 SCC 709 – Relied.
(B) Indian Evidence Act, 1872 – Section 45 – Expert opinion – Facts are facts and they remain and have to remain as such forever – Witness of facts does not give his opinion on facts; but presents facts as such – However, expert gives an opinion on what he has tested or on what has been subjected to any process of scrutiny – 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 basis of any expert opinion. (Para 20)
[1995] 1 Lloyd's Rep 455 – Relied.
Facts of Case:
Appellant assails proceedings initiated by High Court of Delhi against him under Section 340 of Code of Criminal Procedure, 1973 which culminated in impugned order whereby High Court directed its Registrar General to file complaint against the respondent.
Findings of Court:
It is significant to note that appellant’s opinion that 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.
Result : Appeals allowed.
Judgment
Kurian, J.
Leave granted.
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.
(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 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
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 fro
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