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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 ..... 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 Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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[LEX/SCPK/0483/2006]. 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 E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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")[1995] 1 Lloyd's Rep 455], 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 prope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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