Criminal Procedure Code, 1973 S. 340  - Expert evidence and Witness of Fact - 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. (2016)3 PLRSC 41

Criminal Procedure Code, 1973 S. 340  Expert - 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. Held, 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.  We fail to understand how the stand taken by the appellant, as above, attracts the offence of perjury.Held further,  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. (2016)3 PLRSC 41


Criminal Procedure Code, 1973 S. 340 -  Section 340 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 - Impugned order is not liable to be quashed on the only ground that there is no finding recorded by the court on the commission of the offence.  (2016)3 PLRSC 41

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