‘Hostile forensic expert’ in Jessica murder case acquitted by SC of perjury charges

download-judgmentSupreme Court of India has quashed a perjury case against a forensic expert in the 1999 Jessica Lal murder case. The Delhi High Court had initiated suo motu perjury proceedings against 32 of a total 101 witnesses who turned hostile in the trial. The trial court had acquitted all the accused in the murder case and High Court had overturned the acquittal and had convicted all the accused in December 2006.

Delhi High Court had observed that the oral evidence tendered by the expert 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 was attracted.

Quashing the perjury charges, bench of Chief Justice of India TS Thakur and Justice Kurian Joseph observed:

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.


Read the judgment here:

                        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)


                              J U D G M E N T

KURIAN, J.:

Leave granted.

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:

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)

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)

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].

 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.

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 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”.

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 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)

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  have  been
given once the weapon is given to me for examination.”

                                                         (Emphasis supplied)

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.

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……” .

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 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 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
Haryana[1] 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  Maharashtra[2]  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  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.”


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. 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.”

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 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”.

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
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)[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)

This Court in State (Delhi) v. Pali Ram[4] 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”.

In Ramesh Chandra Aggrawala v. Regency Hospitals[5], 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.”

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  Others[6].
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
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.

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.

In National Justice Compania Naviera SA v. Prudential Assurance Co Ltd  (The
"Ikarian Reefer")[7], the 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”.

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
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.

The impugned proceedings initiated against the appellant under  Section  340
of CrPC are hence quashed. The appeals are allowed.
                                                      CJI TS Thakur
                                                      Justice Kurian Joseph

New Delhi;
January 6, 2016.
-----------------------
[1]    (1979) 4 SCC 482

[2]    ( 2002) 1 SCC 253

[3]    (2010) 6 SCC 1

[4]    (1979) 2 SCC 158

[5]    (2009) 9 SCC 709

[6]    LEX/SCPK/0483/2006

[7]    [1995] 1 Lloyd's Rep 455



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