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TMI Blog2016 (1) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... nability 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 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. 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: 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. Regarding query no. 2 the two cartridge cases in question 1 came to the conclusion that these tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 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. Section 340 of CrPC, prior to amendment in 1973, was Section 479-A in the 1898 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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. 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 submitted that the witness had stated that no definite opinion could be given whether the two empty cartridges were fired from the same weapon. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. An expert, in such a situation, could not probably have given a different opinion. 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)[(2010) 6 SCC 1], 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) This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 . 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. 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 writ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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