Prem Sagar Manocha v. (State NCT of Delhi)

Facts.

The present case has a unique connection with the Jessica Lall murder case (FIR No. 287 of 1999), in the Lall case the accuse was held guilty, where the accuse opened fire at Lall on April 30, 1999, when she refused to serve him alcohol at a restaurant in south Delhi because the bar was closed.[1]The police sought an expert opinion from the State Forensic Science Laboratory, Rajasthan through a letter, regarding the following matters.

  1. To examine and give opinion regarding the bore of the two empty cartridges present in the sealed parcel,
  2. To give opinion regarding whether these two empty cartridges have been fired from the pistol or a revolver,
  3. Whether both the empty cartridges have been fired from the same firearm or otherwise.

The Deputy Director of the Laboratory, who was the PW 95 and the appellant in the present case examined the above matters and submitted as follow.

Issues.

  • Regarding the bore of two empty cartridges.
    • The conclusion drawn by the said expert was that the caliber of two cartridge cases (marked C/1 and C/2) which was examined by him is the 22 bore.
  • Whether these two empty cartridges have been fired from pistol or revolver,
    • The expert concluded his opinion for this query that these two cartridges appear to have been fired from the pistol.
  • Whether both the empty cartridges have been fired from the same firearm or otherwise (which had not been sent to examination in order to link the cartridges case with that)
    • The expert opined that no definite opinion could be given on two. 22 bore cartridges cases(C/1 and C/2) in order to link with the firearm unless the suspected firearm is available for examination.

The above are the remarks which were made by the expert for the questions which are send forth.

But the Session court insisted to answer the query iii. 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 for examination to the expert. At this juncture the court arose a question that to answer query iii. The presence of firearm was not necessary. The question was whether both the empty cartridges have been fired from the one instrument or from different instrument. To this question the appellant responded that “after comparison my opinion is that these two-cartridge appeared to have been fired from two different firearms”.  This opinion of the expert was not clear, conclusive, specific and definite since there was an absence of firearm for the examination. He further stated that “definite opinion would have been given once the weapon is available for the examination”.

Further proceedings.

  • The trial court acquitted all the 10 accuse of all the charges, of the present case.
  • Then there was an appeal in the High Court for the conduct of the witnesses who have turned hostile.[2] then the Hon’ble High Court initiated the Suo moto proceeding against the 32-witness including the appellant, the proceeding against few of them were dropped after considering their replies. However, the appellant and few others were directed to be proceeded against. Because the Hon’ble court was of the opinion that the oral evidence which is tendered by the appellant reflected a shift in stand from that of the written opinion, and the said act was done to apparently help the accuse. Therefore Section 193 of Indian penal code (IPC)[3]was attracted.
  • The conviction was upheld by the Hon’ble Supreme Court which was made by the High Court.

In order to arrive at the Factual position of the case, a detailed study was held by the Hon’ble court for the relevant portion of deposition.

  • Beginning from the letter which was sent by the Police to the State Forensic Science Laboratory, Rajasthan. For the clarification of the above query, the Court observed that nothing conflicts with the case, but the issue arises when the trail court puts a Court question about Query 3. Where it insisted to answer the said Query by saying that “For reply to Query 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 instrument”. The appellant contained that after the microscopic study, observe, physically comparison and characteristic marks present on them he was of the opinion that these two-cartridge appeared to have been fired from two different firearms.
  • But the appellant was declared to be hostile during cross-examination where he contained that these two-cartridge appeared to have been fired from two different firearm, and again he was of the opinion that Definite opinion would be given once the weapon is given for the examination.
  • Further the Hon’ble Court observed the Suo moto proceedings which is initiated by the High court. And said that Section 340 of code of Criminal Procedure falls under Chapter XXVI of the Code. Where either on an application or otherwise where any court forms an opinion that it is expedient in the interest of justice that an inquiry should be made in respect of an offence which is referred to under Section 195 of CrPC which appears to have been committed in relation to the proceeding in that court, then the court after making such preliminary inquiry, enter a finding and make a complaint before the Magistrate of competent jurisdiction. It is this jurisdiction which has bee invoked Suo motu by the High Court in the criminal appeal, leading to impugned order.

Difference between an “expert” and a “witness of fact”.

The Hon’ble Court in Ramesh Chandra Agrawal v. Regency Hospital Ltd.[4] Has drawn the difference between an “expert” and “a witness of fact”.

It said that 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 necessary scientific criteria for testing the accuracy of the conclusions 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. 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. However, the expert gives an opinion on what he has tested or on what has been subjected to any process of scrutiny.  

Appellant’s argument.

The learned Senior Counsel contended that being an expert and a professional, the appellant only tendered his opinion in response to the specific question put by court and that does not amount to even a borderline case of perjury.

Further the learned Senior Counsel submitted that the impugned order is liable to be quashed on the ground that there is no finding recorded by the court on the commission of the offence.

Respondents’ argument

It was argued on behalf of the State by the learned Standing Counsel that the ballistic expert’s deposition 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 contrary opinion in the Court saying that they appear to have been fired from different weapons.

Further 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 this theory. That the High Court and the Supreme Court rejected the theory and did not in anyway undermine the fact that PW 95 gave the false evidence.

The learned Senior Counsel for the Appellant drawn the attention of the Hon’ble Supreme Court to the judgment of the Supreme Court of Pakistan and has placed heavy reliance, while dealing with the issue of perjury by the expert witnesses. In the case of Umeed Ali Khan v. Sultan Ibrahim[5]

He contained that in Pakistan the expert is often called by a party after ascertaining that the expert holds a view in favor of that party. That is not the situation or scheme under the Evidence Act, 1872. And in any case, a government scientific expert certainly stands on a different footing.[6]

Judgement.

The Hon’ble Supreme Court after analyzing the above facts and the submission of both the parties held that; “we fail to understand how the stand taken by the appellant, has attracted the offence of perjury”.[7]  Because as the Court has observed that, the appellant has all through been consistent, 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.

The Hon’ble Court observed that, 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.

Further it held that, Expert evidence needs to be given a closer scrutiny and requires a different approach while initiating proceedings under Section 340 CrPC. After all, it is an opinion given by a 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. “An expert has freedom to change his view”.[8] it is held by Queen’s Bench (Commercial Division). Therefore, it cannot be said that the appellant had somersault or shift in the stand taken by him during the oral examination before the court. And further the impugned proceedings initiated against the appellant under Section 340 CrPc was quashed.

Analysis.

In my opinion, the Hon’ble Supreme Court has rightly opinionated in the above case. Merely because an expert has tendered an opinion which is not conclusive and definite, then it cannot be said that he has committed perjury so as to help somebody. In simple words, merely because the appellant gave a non-specific and non-definite, different opinion regarding cartridges, he cannot be regarded to have been committed somersault or shift in stand of statement, which is made by him during the oral examination.  Further the Court has observed that the opinion which is given by the appellant was not his voluntary statement, but a deliberate deposition of the findings before the court. Therefore mere rejection of an expert evidence will not initiate the warrant proceedings under Section 340 of CrPC.


[1] I have no objection to the release of Jessica Lall’s killer, says sister Sabrina Lall, Support Scroll.in(Apr,23 2018, 11:22am) https://amp-scroll-in.cdn.ampproject.org/v/s/amp.scroll.in/article/876584/i-have-no-objection-to-the-release-of-jessica-lalls-killer-says-sister-sabrina-lall?smpp_js_v=a6&amp_gsa=1&usqp=mq331AQHKAFQArSBIA%3D%3D#aoh=16184962318227&referrer=https%3A%2F%2Fwww.google.com&amp_tf=.

[2] State (Govt. of NCT of Delhi) v. Sidhartha Vashisht, 2013 SCC OnLine Del 2118: (2013) 201 DLT 657.

[3] Section 193, Indian Penal Code,1860, no.45, Acts of Parliament 1860 (India).

[4] (2009) 9 SCC 709: (2009) 3 SCC (Civ) 840 pp. 715-16, para 20.

[5] LEX/SCPK/0483/2006.

[6] Yaqoob Shah v. State, PLD 1976 SC 53 (Pak),

Abdul Majeed v. State, PLD 1976 Karachi 762,

Syed Ali Nawaz gardezi v. Lt. Col. Mohd. Yousuf, PLD 1963 SC 51 (Pak).

[7]  State (Govt. of NCT of Delhi) v. Sidhartha Vashisht, 2013 SCC OnLine Del 2118: (2013) 201 DLT 657.

[8] National Justice Campania Naviera S.A v. Prudential Assurance Co. Ltd. (the Ikarian Reefer), 1995,1 Lloyd’s Rep 455(CA).


Authored By:

Facts.

   The present case has a unique connection with the Jessica Lall murder case (FIR No. 287 of 1999), in the Lall case the accuse was held guilty, where the accuse opened fire at Lall on April 30, 1999, when she refused to serve him alcohol at a restaurant in south Delhi because the bar was closed.[1]

     The police sought an expert opinion from the State Forensic Science Laboratory, Rajasthan through a letter, regarding the following matters.

  1. To examine and give opinion regarding the bore of the two empty cartridges present in the sealed parcel,
  2. To give opinion regarding whether these two empty cartridges have been fired from the pistol or a revolver,
  3. Whether both the empty cartridges have been fired from the same firearm or otherwise.

The Deputy Director of the Laboratory, who was the PW 95 and the appellant in the present case examined the above matters and submitted as follow.

Issues.

  • Regarding the bore of two empty cartridges.
    • The conclusion drawn by the said expert was that the caliber of two cartridge cases (marked C/1 and C/2) which was examined by him is the 22 bore.
  • Whether these two empty cartridges have been fired from pistol or revolver,
    • The expert concluded his opinion for this query that these two cartridges appear to have been fired from the pistol.
  • Whether both the empty cartridges have been fired from the same firearm or otherwise (which had not been sent to examination in order to link the cartridges case with that)
    • The expert opined that no definite opinion could be given on two. 22 bore cartridges cases(C/1 and C/2) in order to link with the firearm unless the suspected firearm is available for examination.

The above are the remarks which were made by the expert for the questions which are send forth.

But the Session court insisted to answer the query iii. 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 for examination to the expert. At this juncture the court arose a question that to answer query iii. The presence of firearm was not necessary. The question was whether both the empty cartridges have been fired from the one instrument or from different instrument. To this question the appellant responded that “after comparison my opinion is that these two-cartridge appeared to have been fired from two different firearms”.  This opinion of the expert was not clear, conclusive, specific and definite since there was an absence of firearm for the examination. He further stated that “definite opinion would have been given once the weapon is available for the examination”.

Further proceedings.

  • The trial court acquitted all the 10 accuse of all the charges, of the present case.
  • Then there was an appeal in the High Court for the conduct of the witnesses who have turned hostile.[2] then the Hon’ble High Court initiated the Suo moto proceeding against the 32-witness including the appellant, the proceeding against few of them were dropped after considering their replies. However, the appellant and few others were directed to be proceeded against. Because the Hon’ble court was of the opinion that the oral evidence which is tendered by the appellant reflected a shift in stand from that of the written opinion, and the said act was done to apparently help the accuse. Therefore Section 193 of Indian penal code (IPC)[3]was attracted.
  • The conviction was upheld by the Hon’ble Supreme Court which was made by the High Court.

In order to arrive at the Factual position of the case, a detailed study was held by the Hon’ble court for the relevant portion of deposition.

  • Beginning from the letter which was sent by the Police to the State Forensic Science Laboratory, Rajasthan. For the clarification of the above query, the Court observed that nothing conflicts with the case, but the issue arises when the trail court puts a Court question about Query 3. Where it insisted to answer the said Query by saying that “For reply to Query 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 instrument”. The appellant contained that after the microscopic study, observe, physically comparison and characteristic marks present on them he was of the opinion that these two-cartridge appeared to have been fired from two different firearms.
  • But the appellant was declared to be hostile during cross-examination where he contained that these two-cartridge appeared to have been fired from two different firearm, and again he was of the opinion that Definite opinion would be given once the weapon is given for the examination.
  • Further the Hon’ble Court observed the Suo moto proceedings which is initiated by the High court. And said that Section 340 of code of Criminal Procedure falls under Chapter XXVI of the Code. Where either on an application or otherwise where any court forms an opinion that it is expedient in the interest of justice that an inquiry should be made in respect of an offence which is referred to under Section 195 of CrPC which appears to have been committed in relation to the proceeding in that court, then the court after making such preliminary inquiry, enter a finding and make a complaint before the Magistrate of competent jurisdiction. It is this jurisdiction which has bee invoked Suo motu by the High Court in the criminal appeal, leading to impugned order.

Difference between an “expert” and a “witness of fact”.

The Hon’ble Court in Ramesh Chandra Agrawal v. Regency Hospital Ltd.[4] Has drawn the difference between an “expert” and “a witness of fact”.

It said that 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 necessary scientific criteria for testing the accuracy of the conclusions 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. 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. However, the expert gives an opinion on what he has tested or on what has been subjected to any process of scrutiny.  

Appellant’s argument.

The learned Senior Counsel contended that being an expert and a professional, the appellant only tendered his opinion in response to the specific question put by court and that does not amount to even a borderline case of perjury.

Further the learned Senior Counsel submitted that the impugned order is liable to be quashed on the ground that there is no finding recorded by the court on the commission of the offence.

Respondents’ argument

It was argued on behalf of the State by the learned Standing Counsel that the ballistic expert’s deposition 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 contrary opinion in the Court saying that they appear to have been fired from different weapons.

Further 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 this theory. That the High Court and the Supreme Court rejected the theory and did not in anyway undermine the fact that PW 95 gave the false evidence.

The learned Senior Counsel for the Appellant drawn the attention of the Hon’ble Supreme Court to the judgment of the Supreme Court of Pakistan and has placed heavy reliance, while dealing with the issue of perjury by the expert witnesses. In the case of Umeed Ali Khan v. Sultan Ibrahim[5]

He contained that in Pakistan the expert is often called by a party after ascertaining that the expert holds a view in favor of that party. That is not the situation or scheme under the Evidence Act, 1872. And in any case, a government scientific expert certainly stands on a different footing.[6]

Judgement.

The Hon’ble Supreme Court after analyzing the above facts and the submission of both the parties held that; “we fail to understand how the stand taken by the appellant, has attracted the offence of perjury”.[7]  Because as the Court has observed that, the appellant has all through been consistent, 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.

The Hon’ble Court observed that, 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.

Further it held that, Expert evidence needs to be given a closer scrutiny and requires a different approach while initiating proceedings under Section 340 CrPC. After all, it is an opinion given by a 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. “An expert has freedom to change his view”.[8] it is held by Queen’s Bench (Commercial Division). Therefore, it cannot be said that the appellant had somersault or shift in the stand taken by him during the oral examination before the court. And further the impugned proceedings initiated against the appellant under Section 340 CrPc was quashed.

Analysis.

In my opinion, the Hon’ble Supreme Court has rightly opinionated in the above case. Merely because an expert has tendered an opinion which is not conclusive and definite, then it cannot be said that he has committed perjury so as to help somebody. In simple words, merely because the appellant gave a non-specific and non-definite, different opinion regarding cartridges, he cannot be regarded to have been committed somersault or shift in stand of statement, which is made by him during the oral examination.  Further the Court has observed that the opinion which is given by the appellant was not his voluntary statement, but a deliberate deposition of the findings before the court. Therefore mere rejection of an expert evidence will not initiate the warrant proceedings under Section 340 of CrPC.


[1] I have no objection to the release of Jessica Lall’s killer, says sister Sabrina Lall, Support Scroll.in(Apr,23 2018, 11:22am) https://amp-scroll-in.cdn.ampproject.org/v/s/amp.scroll.in/article/876584/i-have-no-objection-to-the-release-of-jessica-lalls-killer-says-sister-sabrina-lall?smpp_js_v=a6&amp_gsa=1&usqp=mq331AQHKAFQArSBIA%3D%3D#aoh=16184962318227&referrer=https%3A%2F%2Fwww.google.com&amp_tf=.

[2] State (Govt. of NCT of Delhi) v. Sidhartha Vashisht, 2013 SCC OnLine Del 2118: (2013) 201 DLT 657.

[3] Section 193, Indian Penal Code,1860, no.45, Acts of Parliament 1860 (India).

[4] (2009) 9 SCC 709: (2009) 3 SCC (Civ) 840 pp. 715-16, para 20.

[5] LEX/SCPK/0483/2006.

[6] Yaqoob Shah v. State, PLD 1976 SC 53 (Pak),

Abdul Majeed v. State, PLD 1976 Karachi 762,

Syed Ali Nawaz gardezi v. Lt. Col. Mohd. Yousuf, PLD 1963 SC 51 (Pak).

[7]  State (Govt. of NCT of Delhi) v. Sidhartha Vashisht, 2013 SCC OnLine Del 2118: (2013) 201 DLT 657.

[8] National Justice Campania Naviera S.A v. Prudential Assurance Co. Ltd. (the Ikarian Reefer), 1995,1 Lloyd’s Rep 455(CA).


Authored by: Kubra Khanum, 4th Year, SDM Law College, Managalore.

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