|
Opinions
of experts:
When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identify of hand writing 2[or finger impressions], the opinions upon that point of persons specially skilled in such foreign Jaw, science or art, 3[ or in questions] as to identity of handwriting 2 [ or finger impressions] are relevant facts.
Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of’ the acts which they do, or at knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by different per sons, are relevant.
1. Tribeni Mishra V. Rampujan Mis AIR 1970 Pat 13.
2. Ins, by Act 5 of 1899, S. 3.
3. Ins. by Act 18 of 1872, S. 4.
EXPERT
TESTIMONY:
COMMENTARY
Opinion evidence in general; expert testimony.—As a general rule, the opinion of a witness on a question whether of fact or of law, is irrelevant. A witness has to state the facts which he has seen, heard or perceived, and not the conclusions which he has formed on observing or perceiving them. The function of drawing inferences from facts is a judicial function and must be performed by the Court. If a witness is permitted to state not only the facts which he has perceived but also the opinion which he has formed on perceiving them, it would amount to delegation of judicial functions to him and investing him with the artr1 butes of a judge 1.
To this general rule, however, there are some important exceptions, which are enacted in this set of sections2. When “the subject-matter of inquiry is such that inexperienced persons arc unlikely to prove capable of forming a correct judgment upon it”, or when “it so far partakes of the character of a science or art as to require a course of previous habit or study”, the opinions of persons having special knowledge of the subject-matter of inquiry become relevant ; for it is very difficult for the Court to form a correct opinion on a matter of this kind, without the assistance of such persons3.
It should be noted that all language necessarily involves inferences of one kind or another, and it is not every inference of a witness which is excluded as “opinion” under the Act.. “In all supposed statements of fact, the witness really testifies to the opinion formed by the judgment upon the presentment of the senses4 “There have been many cases in which ordinary witnesses have been allowed to give their opinions in evidence and they must frequently be allowed to do so. There are matters on which it is naturally impossible for any witness to give positive evidence of facts which’ observed. He must, if he says any thing at all, speak as to his opinion Or belief, on matters which are essentially matters of opinion or are so complex or indefinite that he can only form a general opinion upon them. Thus, on questions of identity, condition, age, appearance or resemblance of persons or things, on the general character of the weather or the general conduct of a business or of persons during a certain period, or the general character of a meeting alleged to be seditious, clearly only evidence of opinion can be given, and would in most cases be received.” Similarly, a witness can testify to the value of a house,’6 or to a person being in possession of certain property ;7 but it is doubtful if the witness will be per mitted to say that a person is the “owner” of a property, since “ownership” is a question of legal inference to be drawn from the facts proved in the case.8
1. Baswantrap Bajirao v. E., 1949 N 66: 50 Cr U 181 : ILR 1948 N711; Slate of iJysore v. Sampangiramiah, 1953 Mys 80: 1953 Cr U 1071.
2. Sections 45—51.
3. Taylor, § 1418.
4. Woodroffe, Ev., 9th Ed., 410.
5. Cockle’s cases and Statutes, 4th Ed., 121, 122.
6. Woodroffe, Ev., 9th Ed., 442—443. footnote (1), 443 the evidence of a broker or surveyor can be admitted as expert testimony on a ques don of market value, Secretary of State v. Sarla Devi chaudhrant S L 227 : 79 IC 74:1924 L 548 ; Government of Bombay v. Karim Tar Mohomed, 33 B 325: 3 IC 273.
7. 4 BLR 97 (FB) ; contra Ishan chunder v. Ram Lochan, 9 WR 70,
8. 22 CJ 534,
Mere opinion of a witness as to condition of certain goods based on guesswork and not on personal knowledge is not acceptable. Where certain witnesses testified that certain sluice valves lying in rows must have been in good condition though they were lying enclosed in packets, which they did not open, their opinion as to condition of valves was liable to be rejected. Similarly the statement of a Government Auctioneer made 3 years after the auction that the goods sold looked new, which was base on a superficial examination of the goods and not on record, could not be accepted.’1 A witness proving an innuendo in a libel case is merely deposing to the impression caused in his mind by the publication ; such evidence is not “opinion evidence” at all2. The opinion or impression of a witness that it appeared to him from the conduct of the mob that they had appeared there for an unlawful purpose is inadmissible to prove the object of the assembly, though statements as to what lie actually saw and heard are admissible3. Expert evidence is a weak type of evidence.4 As to evidence of character, see notes to Section55 .
Matters for expert testimony ; competency to depose as an expert.— Opinions of experts become relevant only when the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions. This section is, therefore, exhaustive of the matters on which expert testimony can be given, though the expression “science or art” would include almost all branches of human knowledge requiring special study, experience or training. So that a witness may be competent to depose as an expert, he must be shown to have made a special study of the subject or acquired a special experience therein. In such cases, the question is —“Is he peritus ? Is he skilled? Has he adequate knowledge ?“ An expert is a person who has special knowledge and skill in the particular calling to which the inquiry relates,’6 In law, and as applied to a witness, the term “expert” has a special significance ; and no witness is pcrmittë4 to express his opinion, unless he is an expert within the terms of Section’ 45,7 The fact that the evidence of an expert was accepted in one case is no ground for accepting his evidence in every other case.8
FOREIGN LAW:
Foreign law.— In England, the ordinary mode of proving a point of foreign law is to call a witness specially skilled in that law ; but in India it may either be proved under this section by expert testimony, or in the manner laid down in Section 38 of the Act, viz., by the production of official books, or ,reports of the rulings of the Courts of the particular country or by foreign judgments.9 Foreign Jaw is a question of fact,’10 with which Courts in India are not supposed
I. Sita Ram v. Daulati Dci’!, 1979 SC 1225 (para 12 and 13).
2. See Woodrolfe, Ev, 9th Ed., 442.
3. Jogi Rayt v. E. 105 IC 234: 1928 P98 28 Cr U 906.
4. Mdappa v, Gura 1956 8 129.
United Slates S/zipping Board v. F/ic S/up “St. Albans”,13l IC 771 1931 PC 189.
6. Lawson on Expert Testimony, 2nd Ed.. 229.
7. Ram D v. Secretary of Slate, 128 IC 441 : 1930 A 587.
8. Baswantrao Bajirao V. E., 1949 N 66 50 Cr U 181 ILR. 1948 N 711.
9. Suganc/rand Bhikamc/iand v. Mangiba! Gulabchand. 1942 13185.
10. K/today ‘Gangadara Sal V. Swam jnadha Mundali, 92 IC 112 : 1926 M 218 ; Aziz Bano V. Moha.’nmad Ibra/ Ilussa!n. 47 A 823 89 IC 690:1925 A 720.
to be conversant ; opinions of experts in foreign law are, therefore, allowed to be admitted.’1 But where the foreign law is laid down in a particularly elaborate Code which is available, it is unnecessary to call expert evidence on the point of foreign law Involved.2 Hindu Law or Mohaminadan Law as administered by the Courts of India, is neither “foreign law” nor “science or art”, but is the law of the land ; and the opinions of witnesses, however learned they may be in that law, are irrelevant.’3 But Jewish law is foreign law.4 As to the mode of proof of foreign customs and usages, see Sections 48 and 49.
Competency of a foreign law expert.—A person whose knowledge of foreign law is derived solely from study without actual practice, is incompetent5. The witness who is called to prove a point of foreign law must be either a practising lawyer or a person peritus virtute officii. i.e., the holder of some official position which requires and therefore presumes a knowledge of that law. A foreign Judge, barrister, or solicitor practising in the Courts of his country is competent6 , but not a mere resident of the foreign country, not specially conversant with the law7. It is no; enough to show that the witness in fact knows the foreign law lie must be one who, from his position or training, is supposed to know the law8.
SCIENCE OR
ART:
Science art, —The expression “science or art” should receive a liberal construction and must be taken to include all subjects on which a course of special study or experience is necessary to the formation of an opinion.9 Thus construed the section would permit a person having sp knowledge or experience of a ‘trade”, ‘handicraft”, “profession” or other pursuit to depose to matters concerning his particular vocation ; and thus ma artisans and other workmen would be competent expert witnesses in matters relating to their trades. To determine whether a particular matter is of a scientific nature or not, the test to be applied is whether the subject-matter of inquiry is such that in experienced persons are unlikely to prove capable of forming a correct judgment upon it without the assistance of experts, and whether it so far partakes of the character of a science, or art as to require a course of previous habit or study in order to obtain a competent knowledge of its nature.10 Thus, the Assistant
1. Aziz Bano v. Moha,nmad Ibrahi,n I 47 A 823: 89 IC 690: 1925
A 720.
2. Paluniappa Chetty v. [ Chettiar, 123 IC 600: 1930 M 146
but see The Sussex Peerage Case, 11 C & F 85, 114.
3. Aziz Bano V. A ohammad !brahini Husain, 47 A 823 : 89 IC 690: 1925
A 720 ; Masfid Sha/ild Gun] v. Shiromani Gurdwara Prahandhak Committee, 1940 Pc 116:21 L 493 : 67 IA 25 : 139 IC I ; Amar Nat/
Mrs. Amar Nat/i, 1948 L 126; Moula Bux v. charuk, PLO 1952 Sind 54. =
4. EzekIlJacOb v. Joseph Jacob. 1946 C 90 :48 CWN 513. —
5. &istow v. Sequev (1850) 19 LI Lx 289 ; but see Brailey v. Rhodesia.
(1910) 2 Ch. 95 ; Wilosn v. Wilson, (1903 P 157.
6. Phipson Ev., 7th Ed., 377.
7. R v Naguib. (1917) 1 KB 359 CCA. but see Vander Donckt v. Thellu
son, 8 C & B 812, where a foreign stockbroker was allowed to depose to a point of foreign law relating to bills of exchange.
8. per/ak Petroleum v. Deen, 1924 1 KB Ill.
9 Steph. Dig., Art. 49 Sidik V. E., 1942 S 11.
10 Taylor § 1418 ; Woodroffe, Ev., 9th Ed., 447 ; Mahadeo Dewanna v.
Vyankammabai 1948 N 287 : ILR 1947 N 781 : 1947 NLJ 478,
Mint Master of the Calcutta Mint is a competent expert witness in questions relating to coins and instruments of coinage1. A surveyor or broker will be allowed to depose as an expert, when the Court has to form an opinion as to the value of a property ;2 though, when such expert gives no data in support of his opinion, his evidence will be of no value.3 An excise officer who is able to distinguish liquors is an expert in his own department.’4 Evidence of a partner in firm of licensed gold dealers about purity of gold based on touchstone method and of an officer of the Customs Department who was an M.Sc., in Chemistry with 23 years experience in the customs department as an analyst of gold and other articles, was admissible and could be relied upon though the latter did not state the tests which he had applied. 5 “It is well known that goldsmiths by profession are able to find out whether a piece of metal is gold or not by the colour of the streak produced by rubbing it on a touchstone used by them even though their assessment of its purity may not be exact. It way not be a scientific way of proving that the metalled bars were gold bars.” But the Supreme Court did not rule out the goldsmiths evidence as inadmissible.6 - In cases arising out of the infringement of copyright, the Court, in ordinary circumstances, would get the opinion of experts by appointing them Commissioners to investigate and report on the matters in issue ;7 but it is not permissible in such cases to admit as evidence the opinion of literary gentlemen that the defendant copied from the plaintiff, as it is not a matter for expert testimony at all. 8 If the subject-matter of the inquiry does not require any special study or experience, opinion evidence will be inadmissible.9 Thus, the opinion of a businessman that goods bearing certain trade marks alleged to be imitations are likely to deceive the purchasers does not amount to expert opinion on any question of science or art, 10and is therefore inadmissible. A haulage contractor who owns several lorries and has been in business for 16 years, and also fits a large quantity of tyres every month for other companies, is an expert on the quality, wear and usage of tyres11 . Gambling cannot be considered •to be either ad art or a science so as to entitle a Police Officer to go into the witness-box and speak as an expert that in his view, based on experience in other cases, certain documents are instruments of gaming. Such opinion may, however, become relevant under Section 49,12 Generally speaking it is not permissible to call a witness to explain to the Court what a document means unless the witness is an expert,13 or the document contains.
1. Gil EL, 88 IC 818 : 19250616:26 Cr Li 1232.
2. Secretary of State v. Sarla Devi Chaudhrani, 5 L 227 : 79 IC 74 : 1924 L 548 ; Government of Bombay v. Karim Tar Ma/iomed, 33 B 325 3 IC 273.
3. Pribhu Diya/ v. Secretary of State, 135 IC 183 : 1931 I 36! ; Secretary of State v. Sarla Devi Chaudhrani, 5 L 227 : 79 IC 74 : 1924 L 548.
4. Ram Karan Sing v. E. 154 IC 341 :1935 N 13:36 Cr Li 511.
5. M. G. Venugopalan v. B V Govindan, 1976 Cr U 165 (Para 4).
6. .Asst. Collector v. V. P. Sayed Mohamed. 1983 SC 168 (Para 4).
7. Sita Nath Basak v. Mo Mo/ian Sing/i, 81 IC 754 1924 C 595.
8. Deeks v. We/Is, 142 JC 815 1933 PC 26.
9 I Born. HCR 148.
10 Macdonald & Co, v. [ & Moss, 4 (IC 539.
11. Globe Automobile Co. v, K. A. K. Master, (1935) 157 IC 12.
12. E. v. Harila/ Gord/jan, ILR 1937 B 670 : 1917 I 385 171 IC 282 : 38 Cr Li 1047.
13. E. v. Nat Vanmali, 41 Born. LR 518.
words or terms used in particular districts or by particular classes of people and the Witness has special means of knowledge of them. 1 Telephone is a science or art and the witnesses’ knowledge of the telephone and of engineering generally places them in a special position and makes them competent to express an opinion upon articles and matters which are largely in use in the department of the telephone and of engineering generally”.2
Mode of making expert opinion evidence.—Under this section, an expert has to state his opinion in Court and must be examined and cross-examined like any other witness. While giving evidence, the expert may refer to any professional treatise or any memorandum which he may have prepared at a time when the facts on which his opinion is based were fresh in his memory,3 though the memorandum itself is not evidence and no facts can be taken from it.’4 If the expert whose opinion is intended to be proved is dead or cannot be produced without an unreasonable amount of delay or expense, his opinion may be proved by the production of any treatise commonly offered for sale.5 The Court itself may, on all matters of science or art, resort for its aid to appropriate books or documents of reference, and well-known scientific works may be read during trial as evidence of experts.6 An expert may be examined on commission under Chap. XL of the Criminal Procedure Code, or Order
XXVI of the Civil Procedure Code ; and under 0. XXXIX, r. 7 of the latter Code, the Court may authorize an expert to take samples or to make any observation or experiments for the detention, preservation or inspection of any property which is the subject-matter of the suit. The Court may, for its own guidance and information, order independent inquiries and reports to be made, or experiments to be tried by experts of its own selection.7 The deposition of a medical expert taken and attested by a Magistrate in the presence of the accused or taken on commission, and the report of a Chemical Examiner may be treated as evidence without calling the medical expert or the Chemical Examiner as a witness.8 Apart front these special statutory provisions, however, a report, certificate or letter of an expert cannot be considered as evidence, if its author
1. Section 49.
2. Bachraj Factories, Ltd. v. Bambay Telephone Co. Ltd., 1930 S 245.
3. Section 159.
4. Roghuni Singh v. E., 9.C 455.
5. Section 60 ; as to the mode of using a text book, see Grandé Venkata Ratnam v. Corporation of Calcutta 46 IC 593 : 19 Cr LI 753.
6. Section 57 ; Hurry Churn Chuckerbutty v. E., 10 C 140. In the matter of the Steamship “Drachenfels”, 27 C 860 the Court referred to the Imperial Gazetteer and a well-known work on Topography, and in Martand Rao v. tvfalhar Rao, 55 C 403 : 55 IA 45: 107 IC 7:1928 PC 10, the Privy Council referred to official reports regarding some historical matters.
7 Marconi v. British Co., Times Dec, 15 1910, cited in Phipson Lv., 7th Ed., 314 ; see Sita Nath Basak v. Mohini Mo Sing 81 IC 754 1924 C 595, where it has been remarked that in infringement of copy right cases experts should be appointed Commissioners.
8. Sections 509 & 510, Cr P Code, but see i Bibi v. E., 15 L ‘310:152 IC 206:1934 L150:36 Cr LJ ;Happuv.E., 1461C 1089: 1933 A 837 35 Cr U 280 ; Tulsiratn Kanu v. State, 1954 Sc 1: 1953 SCJ 612 1954 Cr LJ 225.
has not been produced in Court to prove it.1 But if a party has accepted the report of an expert as evidence without the expert being examined in Court, he cannot object to the admissibility of the report in appeal.2 Where the lower Court has based its decision on the opinion of an expert contained iii a report, though he has not given sworn testimony in support of the report, the objection to such evidence will not he permitted to be taken for the first time in revision.3
Expert should be examined in the presence of the accused and not on commission —It is not satisfactory to examine an expert on commission in criminal cases. The evidence of an expert has always to he carefully weighed and much more so when the expert has been examined on commission and not in the presence of the accused. The value of expert evidence, when given on commission, is considerably reduced.4
ADMISSIBILITY
OF EVIDENCE OF THE EXPERTS UNDER SECTION 293 OF Cr. PC:
293.
Reports of certain Government scientific experts.
(1) Any document
purporting to be a report under the hand of a Government
scientific expert to whom this section applies, upon any matter
or thing duly submitted to him for examination or analysis and
report in the course of any proceeding under this Code, may be
used as evidence in inquiry, trial or other proceeding under thi
Code.
(2) The Court may, if
it thinks fit, summon and exa mine any such expert as to
subject-matter of his report.
(3) Where any such
expert is summoned by a Court and he is unable to attend per he
may, unless the Court has expressly direëted him to appear
personally, depute any responsible officer working with him to
attend the Court, if such oflicer is conversant with the facts
of the case and can satisfactorily depose in Court in his
behalf.
(4) This section
applies to the following Government scientific experts, namely:
(a) any Chemical Examiner or Assistant Chemical
Examiners to Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director Haffkeine Institute, Bombay;
(e)
the Director, 19-1[Director
or Assistant Director] of a Central Forensic
Science Laboratory or a State Forensic Science
Laboratory;
(f) the Serologist to the Government.
-------------------------
19-1 Ins by Act 45 of 1978, Section 21 (w.e.f. 18-12-1978).
Cr. P. C.—62
CODE OF CRIMINAL
PROCEDURE Sec. 293—Syp. I:
SYNOPSIS
1. Legislative changes.
2. Scope of the section.
3. ‘Any Chemical Examiner or Assis tant Chemical
Examiner’ [ tion (4), Clause (a)].
4. “A report under the hand of a Gov ernment Scientific
expert’’.
5. “Duly submitted”.
6. “Proceeding under this Code”.
7. Report submitted to police ‘Ricer not inadmissible in
evidence.
8. Expert report must be tendered in evidence.
9. The contents of report of a Chemi Examiner.
I0. Public analyst.
11 “May be used in evidence [ tion (I)
12. Evidentiary value of the report.
13. Sub-section (2).
14. Sub section (3).
1.
Legislative changes-
See discussion under Synopsis No. I. Legislative changes under
Section 292 ante. The Law Commission in its 41st Report
observed:
“41.6.
Section 510 will deal with other expert reports where security
is not a
consideration.
We propose to add two more experts in that list,
namely
(i) the Director of the
HalTkeine Institute,
Bombay
, and
(ii) the Director of
the Central Forensic Laboratory.
We
are not convinced that handwriting experts employed by
Government should be treated in the same way. Their evidence is
almost always subject to controversy and no special value can be
attached to their reports merely because the expert is employed
by Government. Nor can we justify the extension of this
provision to cover ordinary medecal or veterinary experts. The
procedure here is very special and must be confined to special
experts.
“In an earlier Report
(14th Report, Vol. 2, pages 848, 849, para 26), the Commission
noted that Section 510 (2), as amended in 1955, makes it
obligatory for the Court to summon the Chemical Examiner or
other officer mentioned in sub Section (I), if either party so
desires. The Commission regarded this provision is
unsatisfactory and recommended that it should be left to the
discretion of the Court i.e. summon such officers. We agree with
this recommendation and are suggesting an amendment to implement
it.’’20
Cr. P. C. Amending
Act, 1978
– Sub-section(4) has been amended to include Deputy Director
and Assistant Directors of Central and State Forensic Science
Laboratories in the List of Government scientific experts.
2. Scope of the section.—This
section provides an exception to the rule of law laid down by
Section 273 of the Code that all evidence taken in the course of
a trial shall he taken in the presence of the accused.21
This section further makes departure from the elementary
principle of law that evidence which is not stated on oath and
is tested by cross—examination by the party against whom it is
sought to he used cannot he admitted in evidence.22
Under this section the reports of the experts mentioned in this
section are admissible in evidence without calling them us
witness in the case.23 The reason for the enactment
of this rule is the expense
20. Vide Law Co 41st Report, Vol. 1, pp. 327, 328, para 4i
.6.
21. Ram Singh v. Crown, ( 951) 5. : U 99 (Simla).
22. Sulernan V. Stale of Gujarat, ( I961) 2 Cr LJ 78, 81 (Gu).
23. Rup Devi v. State of H.P., 1955
See. 293—-Syp. 4
REPORTS OF CERTAIN, ETC.
and
delay and inconvenience which would he entailed if the experts
have to travel mound the province giving evidence in every case
in which they have given opinion. ‘ provisions of Section 239
being special provisions must be strictly adhered to. The report
of an expert not mentioned in this section is not admissible in
evidence without calling him as witness.25 Section
293 being special provision prevails over the general provisions
of Section 45, Evidence Act.’1 Section (293) (4)
(e) covers the report by the Director, Forensic Science
Laboratory in respect of the bullet sent to urn or opinion as to
whether it had been fired by a particular revolver or not, and
the examination of the Director is not required.2
3. “Am Chemical
Exatniner or Assistant Chemical Examiner” [ Sub section(4),
Clause (a)].—The
report of Public Analyst,3 report of the Professor of
Anatomy, Grant Medical College, Bombay,4 report of
Excise Analyst to Government,5 report of the Chemist
of the State Laboratory unless the State Government appoints him
as the Chemical Examiner of the State, 6 report of a
Municipal Analyst,7 report of Currency Officer
regarding the genuineness of
the currency notes,8 are not governed by
Section 293. The provisions of this section do not apply to the
report of a public analyst under •the Prevention of Food
Adulteration Act, but the accused has right to call him as a
witness under Section 247.9 Report of Central
Forensic Laboratory that the examination of the site of
explosion and that of the contents indicate that the deceased
was in the process of manufacturing country made bombs cannot he
admitted in evidence as the concerned officer could only report
as to what the chemicals were10. Assistant Director
of the Chemical Section of Forensic Laboratory, Rajasthan,
Jaipur, is a chemical examiner of the Government and his report
can be received in evidence without proof of his appointment as
a chemical examiner is not necessary.”11
4. “A report under
the hand of a Government scientific expert”.—Any document purporting to be a report under the
hand of an expert under the section must bear the signatures of
the expert concerned. Where the report is of a Chemical
Examiner, the signature should purport to be that of a Chemical
Examiner or Assistant
Chemical Examiner appointed by the Government.’12 A
paper on which it is written in somebody’s handwriting that
Chemical Examiner’s report goes like this is not a legal
evidence and cannot be a substitute for the original certificate
or of copy thereof.13 The report of a chemical
examiner or assistant chemical examiner
24. Piarey v. Emperor, 1938 L 496 (1938) 39 Cr LJ 714.
25. Champak Lal v. Natwar La1, 1970 Cr LJ 128, 130 (Gu).
1. Bhagwan v. State of Punjab, 1983 FAC 60 (P & H)
(DB).
2. Naseem v. State of U. P., (1984) 1 Crimes 1004 (A);
3. Municipal Corporation of Delhi v. Ram Dayal, 1970 Cr J
22 I (D); Chainpak Lal v. Natwar Lal, (1983) 2 FAC 250 (Gu)
Municipal Corporation of Delhi v. Ram Dayal,
(1981) 2 FAC 255 (D).
4. Imperator v. Mahila, 1923 B 183 (1925) 26 Cr LJ 537.
5. Bansi v. Emperor, 1928 B 241: 29 Cr LJ 990.
6. Ram Prasad v. State, l953. Bhop 17
7. Suleman v. Emperor, 1943 B 445, 446 contra see Mohari
Lal v. Corporation of Calcutta, 1953 Cr LJ 1347: 1953 C 561.
8. Hamid Ali v. State, 1961 Tri 46:(1961) 2 Cr LJ 801.
9. Ram Dayal v. Municipal Corporation, 1970 SC 366: 1970 Cr
LJ 515.
10. Mohd. Yasmin v. State, 1983 DLT 464.
11. Manaram v. State of Rajasthan, 1982 Cr LJ 696 (R).
12. Muhammad Shafi v. Crown, 1949 L 240: (1949) 50 Cr LJ
101; (DB) Ranchhod Mula v. State, (1961) 2 Cr LJ 472, 473 (Gu)
(DB) (the report must be excluded).
13. Pearey Lal v. Emperor, 1938 L 496: (1938)39 Cr LJ 714.
CODE OF CRIMINAL PROCEDURE
[sec. 293- Syp 5]
may
be signed by his Secretary.14 If the chemical
examiner appends his signature to the report of his Assistant
Chemical Examiner, it does not detract from the value or
legality of the report and the report is admissible in evidence
without formal proof.’15 The report of ballistic
Expert not signed by the Director or Deputy Director of State
Forensic Science Laboratory cannot be read in evidence without
the examination of the Ballistic Expert.’ 15-1.
5. “Duly
Submitted” – The
prosecution must establish that the articles examined by
Chemical Examiner are those which were sent to him. In the
absence of such proof, the report of the Chemical Examiner is of
no worth.’16 The defect is not a technical defect
and the whole trial is vitiated.’17 The
prosecution, there fore, must lead evidence to show that the
officer recovering the matter or thing sent for examination,
immediately sealed them after recovery and further that the
seals were not tampered with till the articles were sent to the
Chemical Examiner for analysis. In the absence of such
precautions it would always be open to the accused to say that
the police later put human blood on the articles in order to
implicate the accused.’18 Where all the sample
bottles contain the same stuff, it is not necessary to send all
of them to the expert for analysis.19 Where no doubt
or suspicion is raised about the genuineness or authenticity of
the samples, it is not necessary to examine any or every
concerned official of the Chemical Examiner with regard to the
safe custody of the sample.20
6. “Proceeding
under this Code”.—The
expression “proceeding under this Code’ in Section 293 is
not tantamount to a judicial proceeding. The report of a
Chemical Examiner received prior to the initiation of
prosecution is admissible in evidence in any proceeding in the
Court.”21 Proceedings held by a Customs Officer
prior to the filling of a complaint are not proceedings under
the Code and the provisions of Section 293 would not apply to
certificate issued by the Mint Master in respect of gold taken
from the possession of the accused.22
7. Report submitted
to police officer is not inadmissible in evidence.—
A report of a blood test submitted to police officer during the
course of investigation is admissible in evidence and is not hit
by Section 162 (1) of the Code.23
14 Dule Singh Gopal Sing v. S 1954 MBLJ 1190, 1192.
15. Public Prosecutor v. Venkatachalamaiah, 1957 AP 286:
1957 Cr LJ 830, 831.
15 1. Jai Mal Singh v. State, (1987) 1 Crimes 760, 765
(All).
16. State of Orissa v. Kaushalya Devi, 1965 Oudh 38; In re
Chukkapailli Ramayya, 11 Cr LJ 222, 229 (M) (1966) I Mys LJ 911.
17. Muhammad Din v. Emperor, (1925) 26 Cr LJ 1420, 1421 (L)
Queen Empress v. Mutal Muchi, 10 C 1026 (C) Ofel Molla v.
Emperor, (1914) 15 Cr LJ 147 (C) In re Chukkapalli Ramayaya, 11
Cr LJ 222 (M) Tan Kyilin v. Emperor, (1926) 27 Cr LJ 1281
(Rang).
I8. State v. Motia, 1955 R 82 see also javitri v. State,
1957 Raj LW 132; Kala v. Emperor, 1944 L 206 (evidence tendered
should establish beyond doubt the origin anti owner ship of each
exhibit sent for examination); see also Radhey Shyam v. State,
(1961) 2 Cr LJ 430 (K) Panna Ram v. State of Rajasthan 1983 Cr
LR 685 (R) (when tampering ruled out, report can be relied upon)
Somwaria v. State of Rajasthan, 1984 Cr LR 429 (R) (infirmity of
consequence where tampering is ruled out) ; State of Rajasthan
v. Banshilal, 1984 Raj Cr C4.
19. Virendrajit v. State, 1953 SC 247: 1953 Cr LJ 1097:
1953 SCJ 328.
20. Bhagwan v. State of Punjab, 1983 FAC 60 (P & H)
(DB).
21. Public Prosecutor v. Venkatachaltmaiah, 1957 Cr LJ 830:
1957 AP 286 (1931) A 269 relied on ; 1919 Pat 139 (2) dissented
from
22. Abdul Rahiman v. State of Mysor 1972 Cr LJ 406 (Mys).
23. Usha Lolhe v. State of Maharashtra, 1963 SC 1531(l963 2
Cr LJ 418 : Pandian In re., 1970
2 Mad LJ 26.
Sec. 293 Syp 9]
REPORTS OF CERTAIN, ETC.
8. Expert report
must be tendered In evidence.—The report of the expert though is a piece of evidence
which does not require any formal proof, but at the same time,
it must be tendered in evidence so that the accused may have a
chance of questioning it.24 It must be tendered in
evidence before the close of the trial and a copy of it must be
furnished to the accused.25 It cannot be tendered in
evidence for the first time in appeal.1The original
report must be tendered in evidence, and not a copy of such
report.2 When the copy of the report is filed, it is
not admissible in evidence without formal proof. When the Court
comes to know that original report has been received from the
Chemical Examiner, it should insist upon the production of the
original report and should not remain satisfied with the copy of
the report filed by the prosecution.3 A report of the
State Forensic Science Laboratory is not admissible in evidence
unless it is tendered in evidence and exhibited.4
9. The contents of
report of a Chemical Examiner.—The report of the Chemical Examiner must contain reasons
for arriving at a particular conclusion, disclose the tests of
experiments performed by the Chemical Examiner, the factual data
revealed by such tests or experiments and the reasons which led
the Chemical Examiner to form his opinion, so as to enable the
Court to arrive at its own independent conclusion.5
The report must contain all the information which the Chemical
examiner would have furnished, had he been called and examined
as a witness in the case.6 Where the matter to be
reported on is the presence of certain substance in the article
submitted for examination, much would turn on the quantity of
the incriminating substance found in the article and that must
be mentioned in the report.7 In cases of
blood-stained articles submitted for report, the Chemical
Examiner must indicate in his report the number of blood-stains
found by him on each exhibit and the extent of each blood-stain
unless they are too minute and too numerous to be described in
detail.’ Merely to say that blood was detected on each exhibit
is not sufficient.8 When the report is meagre or
cryptic, the Court should call for a detailed report or examine
the Chemical Examiner. 9
The Chemical Examiner,
however, need not indicate the method adopted by him in the
analysis or examination of the material or article.10
24. Wali Muhammad v. Emperor, 1924 A 193: (1925) 26 Cr LJ
200, 201Tej Singh v. State of Rajasthan, 1984 Raj LW 210: (1984)
1 Cr.LC 523 (R).
25. In re Rangaswami, 1957 M 508.
I. Wali Muhammad v. Emperor, 1924 A 193 : 26 Cr LJ 200,
201.
2. State v. Karu Cope, 1954 Pat 131 1954 Cr LJ 201 (DB) ;
State of Orissa v. P. Parvatisam, (l963 I Cr LJ 310: 1963 Oudh
58; Ratan Jaipur Municipality, 1967 Cr LJ 1372 : 1967 R 231.
3. State of Orissa v. P. Parvatisam, 1963 Oudh 58: (1963) I
Cr LJ 310.
4. Tej Singh v. State of Rajasthan, 1984 LW 210: (1984) I
Cr LC 523 (R).
5. Dhian Singh v. Saharanpur Municipality, 1970 SC 318:
1970 Cr LJ 492 State of Kerala v. Shaju, 1985 KLT 33 ; State of
Gujarat v. Lasanmal, (1963) 1 Cr LJ 533, 535 (Gu) ; see also
Gaya Kunwar v. Emperor, 1934 Oudh 62 Gairani v. Emperor, 1933 A
394 Ram Prasad v. State of Bhopal, 1953 Cr LJ 702, 703 (Bhop) ;
State v. Bhusa, 1962 B 229; Mahadevayya v. State of Mysore, 1966
Mys 75 Ajit Rai v. Vasumati, 1969 Gu 48 Srinivasa, in re, 1970 M
512.
6. Behram Sheriav v. Emperor, 1944 B 321.
7. Behram Sheriav v. Emperor, 1944 B 321 : (1945) 46 Cr LJ
162, 164.
8. Prabhu Bahaji v. State of Bombay, 1956 SC 51.
9. Gaya Kunwar v. Emperor, 1934 Oudh 62; State of Kerala v.
Shoju. 1985 KLT 33.
10. Bhaskaran v. State, 1967 Ker LT 165
CODE OF CRIMINAL PROCEDURE [Sec 293—Syp. I0)
The
report of the Chemical Examiner as a whole, including the
averments with regard to the condition of the sample and the
seals thereon and the manner of its receipt are admissible under
Section 293 (1)11.”
10. Public analyst.—The
certificate of the Public Analyst should contain the factual
data which the analysis should reveal and not merely the opinion
of the Public Analyst as to what that data indicates about the
nature of the article of food. L the certificate merely gives
the final opinion of the Public Analyst and if such an opinion
be held to be conclusive evidence about the nature of the
article of food, the merit of the case against the accused is
really decided by the Public Analyst and not by the Court and
the Court just gives its authority to the conclusion of the
Public Analyst and this cannot be the position in law.’12
When the report of the Public Analyst does not give any data of
the quantitative analysis, the report cannot be adequately
tested and must be rejected.13 In cases of milk sent
for opinion. the Public Analyst should state what was the actual
percentage of water in the sample and unless that is specified,
it is not possible for the Court to test accuracy of his opinion
since standards vary for various reasons.”14 The
Analyst should also mention in his report date and time of the
examination by him. When the time and date of the examination
are not given, it leaves for the argument that by the time they
were analysed, the articles of food undergone a change.15
11. “May be used in evidence”
[ Sub-section (1)].—It is not obligatory upon a Court
to use the report of the experts mentioned in Section 293 as
evidence in every case.’16
12. Evidentiary
value of the report.—The
words “may be used in evidence have been used in Section 293.
A Court is not bound to accept and act on a report as conclusive
evidence of its contents.17
13. Sub-section (2).—The
words “may, if it thinks fit” have been used in the
sub-section (2). The Court may, if it thinks fit, summon and
examine any such expert a to the subject-matter of his report.
An expert covered by this section is not to he summoned for oral
evidence as a matter of routine at the instance of a party the
Court has discretion in this matter and may summon the witness
only if it is satisfied that it is expedient to do so for the
ends of justice. The matter entirely lies in the discretion of
the Court. 18 Nit when there is difference of opinion
in the two reports in which case duty lies on the prosecution to
explain difference19 or when the prosecution of the
accused apply for summoning the
11
Bhagwan v. State of Punjab, 1983 FAC 60 (P & H) (DB) State
of Punjab v. Nachhattar, 1982 Cr LJ 1187 (P & H) (DB)
(opinion and all that is stated in the report is admissible
without formal proof [(1970) 72 Punj LR 618 overruled].
12. State v. Sahati Ram, 1958 A ’34 State v.
Nathi Lal, 1956 All LJ 340 Din Dayal v. State, 1956 A 520.
13. Din Dayal v. State, 1956 Cr LJ1031 1956 A 520
(the ipse Dixit of the Public Analyst that a certain sample of
ghee is adulterated “or grossly adulterated” and does not
confirm to the standards, ought not to be accepted by a Court
unless and until the Public Analyst gives the data from which it
can be ascertained in what respects the sample is different from
the standard) Happu
v. Emperor 1933 A 837; State v. Shanti Prakash 1957 PU 56.
14.
Municipal Board, Kanpur v. Badloo, 1980 A 504, (It is the Court
and not the Public Analyst, who is the ultimate Judge of the
opinion.); fortune v. Hansu (1886) I QB 202, 205 Newby v. Sims,
(1894) 1 QB 478
I5. Sohan v. State, 1963 R 17.
I6. Public Prosecutor . Venkatachaltmaiah, 1957 AP 286 1957
Cr. LJ 830. 30.
17.Bhaskaran v. State, 1967 KLT 165
18. Happu v. Emperor, 1933 A 837, 841
19. Tulsi Ram v. State 1954 Sc I; See also Satnam v. State,
(1967) 69 Punj LR 645, 647.
Sec 294]
NO FORMAL PROOF ETC
Expert20
or when the guilt or innocence of the accused turns entirely on
the result of the chemical analysis,21 or when the
report of the Chemical Examiner is meagre or cryptic22
.The Court must summon the expert. When the report of the
Chemical Examiner is filed before the institution of the
proceedings, the Chemical Examiner must be examined.23
As long as the report of Director of Finger Prints Bureau shows
that the opinion was based on observations which lead to a
conclusion, that opinion can be accepted, but should there be
any doubt it can always be decided by calling the person making
the report24. Report of Assistant Chemical Analyser,
see the under mentioned case.25The Court may in a fit
Case summon and examine the Chemical Examiner in the interests
or justice.’1 Where the report of the Chemical
Examiner is not shown to be deficient, nor requires any further
elucidation before admitting in evidence, the report can he
admitted and used in evidence, and the examination of the
Chemical Examiner is not necessary.2
I 4. Sub-section (3).—When
an expert is summoned, it is not incumbent that he himself
should appear. Any officer who is working with him, conversant
with the facts of the case and can satisfactorily depose in
Court can be deputed on his behalf.3
294. No formal proof of
certain documents.—( 1) Where any document is filed before any
Court by the prosecution or the accused, the particulars of
every such document shall be included in a list and the
prosecution or the accused, as the case may be, or the pleader
for the prosecution or the accused, if any, shall be called upon
to admit or deny the genuineness of each such document.
(2) The list of
documents shall be in such form as may be prescribed by the
State Government.
(3) Where the
genuineness of any disputed, such document may be read in
evidence in any inquiry, trial of other proceeding under this
Court without proof of the signature of the person to whom it
purports to be signed.
Provided
that the Court may, in its discretion, require such signature to
be proved.
SYNOPSIS
1.
Scope.
section (3)1.
2.
Postmortem Injury Reports [Sub-
3.
Proviso.
20. Suleman v. State of Gujarat, 1961 JUJ 120;
Madan Lal v. State 1961 C 240
21. Behrain Sherin v. Emperor, 1944 B 321.
22
Gaya
Kunwar v. Einperr, 1934 audh 62.
23
Chauth
Mall v. Emperor, (1919) 20 Cr. LJ 266 267 (Pat).
24 Himachal
Pradesh Administration v. Qm
Prakash, 1972 Cr LJ 605: 1972 SC 975.
25. State
of Maharastra v. Sadhu Singh, 1973 Mah LJ 263.
1.
State
v. Sadhu Ram , 1963 Punj 142; Madan Lal v. State 1961 C 240.
2.
Dasu
v. State of Maharastra, 1985, Cr. LJ 1933 (B) (DB)
3.
State
of Kerela v. Antony, 1977, Ker LT 382.
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