DR. RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY, LUCKNOW

Session: 2015-16

FINAL DRAFTLAW OF EVIDENCE

OnVALUE OF EXPERT ANALYSIS IN INIDAN EVIDENCE ACT

SUBMITTED TO – Mr. Vipul Vinod

ASSISTANT PROFESSOR (LAW)

SUBMITTED BY :-  SHIVAM KUMARROLL NO.123 SECTION- BBA.LLB. (Hons.) SEMESTER V

ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the writing of this project.

I would like to express my special thanks and gratitude to my teacher Dr. Aparna Singh who gave me the golden opportunity to do this project which

also helped me in doing a lot of research work and I came to know about a lot of new things.

I am really thankful to them.

Secondly I would also like to thank my friends who helped me a lot in finishing this project within the limited time. I am making this project not only for marks

but also to increase my knowledge. Thanks again to all who helped me.

Table of Contents INTRODUCTION............................................................................................................3

1. OBJECTS AND REASONS...............................................................................................3

2. LITERATURE REVIEW:...................................................................................................4

3. OBJECTIVE:.................................................................................................................... 5

4. HYPOTHESIS-..................................................................................................................5

IMPACT OF EXPERT OPINION ON EVIDENCE.....................................................................5

NATURE AND SCOPE OF EXPERT OPINION IN EVIDENCE ACT...........................................6

WHO IS AN EXPERT?.........................................................................................................6

VALUE OF EXPERT OPINION..............................................................................................7

a) Data evidence.......................................................................................................................7

b) Opinion evidence.................................................................................................................7

Difference between evidence of an expert and evidence of an ordinary witness:-....................8

EXPERT EVIDENCE IN INDIAN EVIDENCE ACT....................................................................8

POSITION IN COURT........................................................................................................11

CASE LAW (Expert Opinion in Indian Evidence Act)........................................................11

SUGGESTION ON EXPERT ADVICE...................................................................................13

CONCLUSION...................................................................................................................14

INTRODUCTION

1. OBJECTS AND REASONSOpinion evidence refers to evidence of what the witness thinks, believes, or infers in regard

to facts, as distinguished from personal knowledge of the facts themselves. In common law

jurisdictions the general rule is that a witness is supposed to testify as to what was observed

and not to give an opinion on what was observed. However, there are two exceptions to this

rule: expert evidence and non-expert opinion given by laymen which people in their daily

lives reach without conscious ratiocination.

Law of evidence allows a person - who is a witness to state the facts related to either to a fact

in issue or to relevant fact, but not his inference. It applies to both criminal law and civil law.

The opinion of any person other than the judge by whom the fact has to be decided as to the

existence of the facts in issue or relevant facts are as a rule, irrelevant to the decision of the

cases to which they relate for the most obvious reasons - for this would invest the person

whose opinion was proved with the character of a judge. The rule however, is not without its

exceptions. "If matters arise in our law which concern other sciences or faculties, we

commonly apply for the aid of that science or faculty which it concerns." The expert witness

is, thus, an exception to the exclusionary rule and is permitted to give opinion evidence. The

Judge is not expected to be an expert in all the fields - especially where the subject matters

involves technical knowledge. He is not capable of drawing inference from the facts which

are highly technical. In these circumstances he needs the help of an expert - who is supposed

to have superior knowledge or experience in relation to the subject matter. This qualification

makes the latter's evidence admissible in that particular case though he is no way related to

the case. Because an expert has an advantage of a particular knowledge vis-à-vis a judge who

is not equipped with the technical knowledge and hence not capable of drawing an inference

from the facts presented before him.

The expert witness is, thus, an exception to the exclusionary rule and is permitted to give

opinion evidence. The Judge is not expected to be an expert in all the fields-especially where

the subject matters involves technical knowledge. He is not capable of drawing inference

from the facts which are highly technical. In these circumstances he needs the help of an

expert- who is supposed to have superior knowledge or experience in relation to the subject

matter. This qualification makes the latter’s evidence admissible in that particular case

though he is no way related to the case. Because an expert has an advantage of a particular

knowledge vis-à-vis a judge who is not equipped with the technical knowledge and hence not

capable of drawing an inference from the facts presented before him.

2. LITERATURE REVIEW:In this project work I have referred to a lot of writers and authors expressing their views upon

this very topic. They have basically paid more emphasis upon the functioning of the Section-

41 to 51 of Indian Evidence Act and its relevant provisions. However, Avtar Singh in his

book “Principle of Evidence” has very clearly noted all the provisions of the present Act and

also what are the problems present in this Act. The other author’s book which I referred was

Munir`s “Indian Evidence Act” which has provided a detailed commentary on the procedure

involved in the Act.

3. OBJECTIVE:According to Sec.45, the definition of an expert is confined only to the five subjects or fields

as mentioned above. But practically there are some more subjects or fields on which court

may seek opinion an expert.

An expert witness is one who has devoted time and study to a special branch of learning and

thus he is specially skilled on those points on which he is asked to state his opinion. His

evidence on such points is admissible to enable the court to come to a satisfactory conclusion.

Duty of the expert:-

a) An expert is not a witness of fact.

b) His evidence is of advisory character.

c) An expert deposes and does not decide.

d) An expert witness is to furnish the judge necessary scientific criteria for testing the

accuracy of the conclusion so as to enable the judge to form his independent judgment by

application of the criteria to the facts proved by the evidence.

4. HYPOTHESIS-An expert witness is to furnish the judge necessary scientific criteria for testing the accuracy

of the conclusion so as to enable the judge to form his independent judgment by application

of the criteria to the facts proved by the evidence.

IMPACT OF EXPERT OPINION ON EVIDENCE.

An expert opinion is a opinion, who by virtue of education, training, skill, or experience, is

believed to have expertise and specialised knowledge in a particular subject beyond that of

the average person, sufficient that others may officially and legally rely upon the witness's

specialized (scientific, technical or other) opinion about an evidence or fact issue within the

scope of his expertise, referred to as the expert opinion, as an assistance to the fact-

finder. Expert witnesses may also deliver expert evidence about facts from the domain of

their expertise. The facts upon which an expert opinion is based must be proved by

admissible evidence. The duty of experts is to furnish the judge with the necessary scientific

criteria for testing the accuracy of their conclusions, so that the judge or jury can form their

own independent judgment by the application of these criteria to the facts proved.

NATURE AND SCOPE OF EXPERT OPINION IN EVIDENCE ACT.

Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion

of third persons, which is commonly called in our day to day practice as expert’s opinion.

These provisions are exceptional in nature to the general rule that evidence is to be given of

the facts only which are within the knowledge of a witness. The exception is based on the

principle that the court can’t form opinion on the matters, which are technically complicated

and professionally sophisticated, without assistance of the persons who have acquired special

knowledge and skill on those matters. Conditions for admitting an expert opinion are

following:-

a)      That the dispute can’t be resolved without expert opinion and

b)      That the witness expressing the opinion is really an expert.

WHO IS AN EXPERT? An expert is a person who devotes his time and study to a special branch of learning. The

Supreme Court of United State of America defined an expert as a person who possesses

knowledge and experience not possessed by mankind in general. The Courts in India in their

judgments described an expert as a person who has acquired special knowledge, skill or

experience in any art, trade or profession. Such knowledge need not be imparted by any

University. He might have acquired such knowledge by practice, observation or careful

study. The expert operates in a field beyond the range of common knowledge. When the

Court has to form an opinion ?

The opinions upon that point of persons especially skilled in such foreign law, science or art

(or in questions as to identity of handwriting) (or finger impressions) are relevant facts. Such

persons are called experts. To sum up an expert is one who is skilled in any particular art,

trade or profession being possessed of peculiar knowledge concerning the same.

The definition of an expert may be referred from the provision of Sec.45 of Indian Evidence

Act that an ‘Expert’ means a person who has special knowledge, skill or experience in any of

the following----

1)      foreign law,

2)      science

3)      art

4)      handwriting or

5)      finger impression

and such knowledge has been gathered by him—

a)      by practice,

b)      observation or

c)      proper studies.

VALUE OF EXPERT OPINION The Expert evidence has two aspects -

a) Data evidence - It can’t be rejected if it is inconsistent to oral evidence.

b) Opinion evidence - It is only an inference drawn from the data and it would not get

precedence over the direct eye-witness testimony unless the inconsistency between the two is

so great as to falsify the oral evidence 1

Expert evidence is opinion evidence and it can’t take the place of substantive evidence. It is a

rule of procedure that expert evidence must be corroborated either by clear direct evidence or

by circumstantial evidence.

It is not safe to rely upon this type of evidence without seeking independent and reliable

corroboration 2

Difference between evidence of an expert and evidence of an ordinary witness:-

Evidence of an expert Evidence of an ordinary witness

1.   Expert gives his opinion regarding handwriting, finger impression, nature of injury etc.2.   It is advisory in character. 3.   Court can’t pass an order of conviction on the basis of expert opinion, as because it is not conclusive. 4.   Expert gives his opinion on the basis of his experience, special knowledge or skill in the field.

1.   An ordinary witness states the fact relating to the incident. 2.   Witness states the facts. Opinion of a witness is not admissible.3.   Court may pass an order of conviction on the basis of evidence of ocular witness (eye witness). 4.   A witness gives actual facts connected with the incident what he had seen or heard or perceived.

 

EXPERT EVIDENCE IN INDIAN EVIDENCE ACT Expert evidence is covered under Ss.45-51 of Indian Evidence Act. S.45 of the Act allows

that when the subject matter of enquiry partakes of science or art as to require the course of

1 Arshad v. State of A.P. 1996 CrLJ 2893 (para34) (AP).

2 S.Gopal Reddy v. State of A.P. AIR 1996 SC2184 (Para27)

previous habit or study and in regard to which inexperienced persons are unlikely to form

correct judgment.

Therefore the opinion of persons having special knowledge of the subject – matter of the

enquiry and described as experts is made relevant. However, whether a particular person is a

competent witness or not is to be proved in the Court of Law before his testimony is

admitted. The competency of an expert is a preliminary question before the Judge. An expert

need not be a paid professional expert who makes living by giving such evidence, but he

must have devoted sufficient time and study to the subject so that he can make his evidence

trustworthy.

Subject Matters of Expert Evidence: The subjects of expert testimony mentioned by the

section are foreign law, science, art and the identity of handwriting or finger –impressions.

Expert on any other subject is not admissible.11 This was the position in 1954. No more it is

the law. Law related to expert evidence has developed in a piece meal method growing hand

by hand with the development of technology in every field. The word science or art if

interpreted in a narrow sense, would exclude matters upon which expert testimony is

admissible such as matters related to trade, handicrafts, ballistics and many more. Every

business or employment which has a particular class devoted to its pursuit is an art or trade.

When the question of foreign law is raised the evidence of professional lawyer or the holder

of an official situation which requires and therefore implies legal knowledge or a teacher of

law is admissible. As far as science and art concerned they are to be broadly construed so as

to include all subjects on which a course of special study or experience is necessary to the

formation of an opinion and embrace also the opinion of an expert in footprint as well. The

opinion of the medical men are admissible upon questions within their own province such as

insanity, the causes of diseases the nature of the injuries, the weapons which might have been

used to cause such injuries the cause of death, the weapons might have been used in causing

the death, medicines, poisons, the conditions of gestation, effects of hospitals upon the health

of the neighborhood etc., Other expert evidence includes those of naturalists as to the ability

of fish to overcome obstacles in a river: those of chemists as to the value of a particular kind

of guano as a fertilizer: the safety of a non-explosive camphene and fluid lamp: the

constituent part of a certain chemical compound; the effects of a particular poison:

fermentation of a liquor; those of geologists as to the existence of a coal seams: those of

botanists as to the effects of working coke ovens upon trees in the neighborhood: those of

persons of specially skilled in insurance matters, such as the opinion of an insurance agent

and examiner that a partition in a room increased the risk in a fire policy: an so with other

branches of science. In the field of art the opinion of artists are admissible as to the

genuineness or value of a work of art: the opinion of a photographer as to the good execution

of a photograph, the opinions of engineers regarding constructions, erection of dams etc., are

admissible. The list is only illustrative.

It is not exhaustive. However, it depends on the discretion of the judge to accept or reject

such evidence. S.47 of the Indian Evidence Act exclusively deals with the opinion as to the

handwriting. The explanation further elaborates the circumstances under which a person is

said to have known the disputed handwriting. Under this section a person who is deposing the

evidence need not be a handwriting expert. Indeed the knowledge the general character of

any person’s writing which a witness has acquired incidentally and unintentionally, under no

circumstance of bias or suspicion, is far more satisfactory than the most elaborate comparison

of even an experienced person. One can get acquainted with others handwriting in many

ways. The former might have seen the latter writing a particular handwriting. He might be

receiving letter from the latter regularly. A superior officer might have seen his subordinate’s

writing on several occasions and vice versa. But, the evidence given by a person who has

insufficient familiarity should be discarded. Indian Evidence Act insists that documents either

be proved by primary evidence or by secondary evidence. S.67 of the Indian Evidence Act

prescribes the mode of proving the signature in a document. However, the opinion as to

handwriting is admissible only if the condition laid down in S. 47 is fulfilled, that is the

witness is established to have been acquainted with the writing of the particular person in one

of the modes enumerated in this section. However, the opinion of an expert is relevant when

the Court has to form an opinion on a point of science or art. At times expert opinion differs

on proven or admitted facts. But when the facts are not admitted the Court will have first to

come to a conclusion on the evidence as to what facts have been proved and then to apply to

such facts the various expert opinions which have been offered. The opinion of an expert in

handwriting should be received with great caution and should not be relied on unless

corroborated. But no such corroboration is need in the case of finger prints. Of course, an

expert can always refresh him memory by referring to the text books. A doctor can refer to

medical books, a value to the price lists, a foreign lawyer to legal codes, texts and other

journals. At one time expert evidence is limited to medical doctors, engineers, architects,

stockbrokers etc. Now the science and technology have reached to such heights no more the

expert evidence is confined to the above mentioned but also to the scientists in each field. As

far as criminal law is concerned ballistic experts, forensic experts, scientists who decide the

legitimacy by DNA tests, chemical examiners, psychiatrists, radiologists and even track-dogs

are playing a vital role in investigation of crimes and their evidence is admissible in the court

of law. Scientific evidence is evidence which serves to either support or counter a scientific

theorem or hypothesis. Such evidence is expected to be empirical and properly documented

in accordance with scientific method such as is applicable to the particular field of inquiry.

Standards for evidence may vary according to whether the field of inquiry is among the

natural sciences or social sciences. Scientific evidence is demonstrative evidence. Unlike oral

testimony which depends on the deposition of a witness, scientific evidence is obtained by

using the scientific method. Scientific evidence which is admitted in the trial must not only be

relevant but also trustworthy.

POSITION IN COURT

Earlier, the Courts required expert evidence to some limited field i.e. medical doctors,

engineers, architects, stockbrokers etc. With the vast development in science and technology,

the need of expert opinion/evidence has now become very common as well as helpful to the

Courts to reach upon a fair conclusion regarding commission of an offence. Today the role of

experts has been widened and the Courts take their assistance in various aspects viz. ballistic

experts, forensic experts, scientists who decide the legitimacy by DNA tests, chemical

examiners, psychiatrists, radiologists and even track-dogs are playing a vital role in

investigation of crimes and their evidence is admissible in the court of law.

When there is some technical issue or such issue which relates to foreign law or of science or

art, or as to identity of handwriting or finger impressions and the Court has to form an

opinion upon that point, then the opinion of skilled/experienced persons in their respective

areas may be taken into consideration.

CASE LAW (Expert Opinion in Indian Evidence Act)

Expert evidence is covered under Ss.45-51 of Indian Evidence Act. S.45 of the Act allows

that when the subject matter of enquiry related with science or art, as to require the course of

previous habit or study and in regard to which inexperienced persons are unlikely to form

correct judgment. It allows an expert to tender evidence on a particular fact in question and to

show to the court that his findings are unbiased and scientific.S.46 of the Act states that facts,

not otherwise relevant, are relevant if they support or are inconsistent with the opinion of

experts when such opinions are relevant. S.47 of the Indian Evidence Act exclusively deals

with the opinion as to the handwriting. The explanation further elaborates the circumstances

under which a person is said to have known the disputed handwriting. The expert opinion is

not confined to handwriting alone. The opinions in relation to customs are also admissible

according to S. 48 of Indian Evidence Act.

The next question that arises is who can be called an Expert, what is the function of opinion

given by expert in a matter before Court and further what is the character of opinion/advice

adduced by an expert in forming opinion by the Court?

Hon'ble Supreme Court in the case titled as Ramesh Chandra Agarwal v/s Regency

Hospital Ltd. has broadly dealt and interpreted the scenario and held that, an expert is a

person who devotes his time and study to a special branch of learning. However, he might

have acquired such knowledge by practice, observation or careful study. The expert is not

acting as a judge or jury. It was further held that in order to bring the evidence of a witness,

as that of an expert, it has to be shown that he has made a special study of the subject or

acquired a special experience therein or in other words that he is skilled and has adequate

knowledge of the subject. 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. An expert is not a witness of fact (like other witnesses) and his evidence is really of

an advisory character. The duty of the 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. No expert can

claim that he could be absolutely sure that his opinion was correct.

Hon'ble Supreme Court has further laid down in the case titled as State of Maharashtra v/s

Damu s/o Gopinath Shinde and others3, that mere assertion without mentioning the data or

basis in support of his opinion is not evidence, even if it comes from an expert. It is held that

such evidence though admissible, may be excluded from consideration as affording no

assistance in arriving at the correct value without examining the expert as a witness in Court.

Therefore, no reliance can be placed on an opinion alone.

In the case titled as Kabul Singh v/s Gurinder Singh4, opinion of the expert was sought

regarding signatures put on a document. However, the expert also gave opinion that certain

digits were changed which opinion was not sought for. The Hon'ble High Court of Punjab

and Haryana held that such an opinion should be ignored and that expert should have

confined himself to the relevant facts.

Fakruddin v. State of M.P5 Both under this section and S47 the evidence is of opinion, in

the former by the scientific comparison and in the latter on the basis of familiarity resulting

from the observation and experience.

However, there is a probability to lean the opinion of private experts in favour of the party

calling them. In such like cases, when there is a conflict of opinion between the experts, then

the Court is competent to form its own opinion with regard to signatures on a document or

such like matters.

Another important issue under consideration is that whether the Courts are bound by the

opinion given by an expert on a particular fact in a case. Hon'ble Supreme Court has

answered this question in the case titled as Malay Kumar Ganguly v/s Dr. Sukumar

Mukherjee6, wherein it has been held that, a Court is not bound by the evidence of the

experts which is to a large extent advisory in nature.

3 AIR 2000 SC 16914 (1999)121(1)PLR8165 AIR 1967 SC 13266 AIR2010SC1162

SUGGESTION ON EXPERT ADVICE

This project addressed the admissibility of expert evidence in criminal proceedings in England and Wales. In a criminal trial, a jury or magistrates' court is required to determine disputed factual issues. Experts in a relevant field are often called as witnesses to help the fact-finding body understand and interpret evidence with which that body is unfamiliar.

The current judicial approach to the admissibility of expert evidence is too complex. Too

much expert opinion evidence is admitted without adequate scrutiny because no clear test is

being applied to determine whether the evidence is sufficiently reliable to be admitted. This

problem is exacerbated in two ways:

First, because expert evidence (particularly scientific evidence) will often be technical and

complex, jurors will understandably lack the experience to be able to assess the reliability

of such evidence. There is a danger that they may simply defer to the opinion of the

specialist who has been called to provide expert evidence.

Secondly, in the absence of a clear legal test to ensure the reliability of expert evidence,

advocates do not always cross-examine experts effectively to reveal potential flaws in the

experts' methodology, data and reasoning. Juries may therefore be reaching conclusions

on the basis of unreliable evidence. This conclusion is confirmed by a number of

miscarriages of justice in recent years.

CONCLUSION

The Courts have full powers to derive its own conclusion upon considering the opinion of the

experts which may be adduced by both sides, cautiously, and upon taking into consideration

the authorities on the point on which he deposes. The opinion could be admitted or denied.

Whether such evidence could be admitted or how much weightage should be given thereto,

lies within the domain and discretion of the Court. The evidence of an expert should,

however, be interpreted like any other evidence. Thus, it can be concluded that the expert

opinion in numerous matters relating to identification of thumb impression, handwriting,

footprints, fixing paternity, time of death, age of the parties, cause of death, possibility of the

weapons used, disease, injury, sanity and insanity of the parties and other question of science

or trade has become the need of hour and the person having required skill on that subject

(called experts), are allowed to give their opinions in evidence as well as testify to

facts/details leading to their opinion. The opinion of an expert having special skill in that

particular field is relevant for the point of admissibility before the Court of law. There may be

exceptions to this rule, in spite of it when there direct evidence is lacking, then to corroborate

the existing evidence, expert opinion is sought.

BIBLIOGRAPHY-

Books-

The Law of Evidence, Ratanlal & Dhirajlal, 21st Edition. Principle Of Evidence- Munir,7th Edition.

Acts:

Indian Evidence Act, 1872.