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ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely fortunate to have got this all along the completion of my project
work. Whatever I have done is only due to such guidance and assistance and I would not forget
to thank them.

I respect and thank my professor Ms. KAJORI BHATNAGAR, for giving me an opportunity to
do the project on the topic EXPERT EVIDENCE and providing all support and guidance which
made me complete the project on time. I am extremely grateful to her for providing such a nice
support and guidance.

Also, I am thankful to and fortunate enough to get constant encouragement, support and
guidance from my friends and family.

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INTRODUCTION

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?

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—

 by practice,
 observation or
 proper studies.

For example, medical officer, chemical analyst, explosive expert, ballistic expert, fingerprint
expert etc.

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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.

Section 45 defines an expert as a person who is especially skilled in a given field. The test of
judging the competency of a person is this: “Is it peritus1?” Is he skilled? Has he adequate
knowledge2?

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.

An expert is a person who has special knowledge and skill in a particular calling to which the
inquiry relates3. An expert witness is one who has devoted time and study to a special branch of
learning, thus is especially skilled on those points on which he is asked to state his opinion. His
evidence on such points is admissible to enable the tribunal to come to a satisfactory conclusion4.

In Bal Krishna Das Aggarwal v. Radh Devi and others5, an expert was defined as a person who
by his training and experience has acquired the ability to express an opinion but an ordinary
witness does not possess this quality. The evidence of expert is such evidence which is based on
expertise and experience. The section does not refer to any particular attainment, standard of
study or experience, which would qualify a person to give evidence as an expert. All persons
who practice a business or profession which requires them to possess certain knowledge of the
matter in hand are experts, so far as expertness is required. It is the duty of the judge to decide
whether the skill of any person in the matter on which evidence of his opinion is offered is
sufficient to entitle him to be an expert.

1
“Peritus virtute official” i.e. the holder of some official position which requires and, therefore, presumes a
knowledge of that law.
2
U.S. Shipping Board v. Ship “St. Albans” 1931 PC 189
3
Lawson on Expert Testimony, 2nd Edn, 229.
4
Powell, 10th Edn, p. 39.
5
Bal Krishna Das Aggarwal v. Radh Devi and others AIR 1989 All. 133

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Opinion is estimation, a belief or assessment, a view held as probable, what one thinks about a
particular question or topic, an assessment short of grounds of proofs, a formal statement of
reasons for the judgment, a formal statement of professional advice6.

DUTY OF AN 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.

PREREQUISITES OF EXPERT EVIDENCE:

Before expert testimony can be admitted two things must be proved, namely, (1) the subject is
such that expert testimony is necessary; and “(2) that the witness in question is really expert,7
and that he is a truthful witness.8

1. Expert (Testimony) Opinion was necessary-Where the court was able to form its own
opinion from facts and circumstances of the case it can be said that expert opinion was
not necessary. But wherein some technical question is involved which can be answered
by a person specially skilled it can be said that expert opinion was necessary.

In L.C. Goyal v. Mrs. Suresh Joshi,9it was held by Supreme Court that when the circumstantial
evidence was so potent that it led to only one conclusion that the signature on cheque was not
forged, there was no need for an opinion of handwriting expert.

6
www.legalserviceindia.com/article/l45-Law-of-Evidence.html
7
Parat v. Bissessar, 39 Cal 245
8
Kanchan Singh v. State of Gujrat, 1979 SC 1011

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2. The witness in question is really an expert- In order to bring the evidence of a witness
as that of an expert it has to be shown that he 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. An expert is not witness of fact, his evidence is only of
advisory character. The duty of an expert witness is to furnish the judge with necessary
scientific criteria for testing the accuracy of circumstances so as to enable the Judge to
form his independent judgement by the application of the facts proved by the evidence of
the case. The credibility of such witness depends on reasons stated in support of his
conclusions and the data and material furnished which form this basis of his conclusion.10

TYPES OF EXPERT OPINION

Considering the provisions of Indian Evidence Act, judicial precedents and our day to day
practice it may be submitted that the following kinds of expert opinion may be relevant:-

1) Foreign law:
Foreign law can be proved –
a) by the evidence of a person specially skilled in it and
b) by direct reference to the books printed or published under the authority of the foreign
government.
Foreign Law means any law which is not applicable in India. The courts of a country are not
supposed to be conversant with it. It is question of fact to be decided with the help of an expert.
Opinion of an expert in a case is to be obtained with the leave of the court. However, opinions on
point of foreign law, art or science if already available before institution of suit, such opinion
being relevant can be relied upon by a party to the suit. When the court has to form an opinion as
regards Foreign Law an expert opinion may be allowed. Foreign Law may be proved under
section 38 by the production of book printed under authority of the foreign country. An expert
may be called to state the law of the foreign court in this country on a subject is but where it is
laid down in a Code of that country it is the duty of a court in this country to interpret as best as

9
L.C. Goyal v. Mrs. Suresh Joshi AIR 1999 SC 2222.
10
State of Himachal Pradesh v. Jai Lal and others, AIR 1999 SC 3318.

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it can. The judgment of the highest tribunal of that country is the best evidence. 11 Expert
evidence as to Jewish Personal Law is admissible as it being Foreign Law here.

2) Science or art:-

The Science or art includes all subjects on which a course of special study or experience is
necessary to the formation of an opinion. “Science” or “art” is not limited to higher science or
fine art, but it has its original sense of handicraft, trade, profession and skill in work which has
been carried beyond the sphere of the common pursuits of life into that of the artistic and
scientific action.

The following matters are included in the ‘science’ and art and the expert opinion of these
matters are relevant:-

Medical opinion:-

The value of Medical evidence is only corroborative. A doctor acquires special knowledge of
medicine and surgery and as such he is an expert. Opinions of a medical officer, physician or
surgeon may be admitted in evidence to show—

a) Physical condition of the a person,


b) Age of a person
c) Cause of death of a person
d) Nature and effect of the disease or injuries on body or mind
e) Manner or instrument by which such injuries was caused
f) Time at which the injury or wounds have been caused.
g) Whether the injury or wounds are fatal in nature
h) Cause, symptoms and peculiarities of the disease and whether it is likely to cause
death
i) Probable future consequences of an injury etc.

11
Suganchand Bhikham Chand v. Margo Bai, AIR 1942 Bom. 145.

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When there is a conflict between the medical evidence and ocular evidence, oral evidence of an
eye witness has to get primacy as medical evidence is basically opinionative. Where the direct
evidence is not supported by the expert evidence, the evidence is wanting in the most material
part of the prosecution case and therefore, it would be difficult to convict the accused on the
basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with
medical evidence, it is the most fundamental defect in the prosecution case and unless this
inconsistency is reasonably explained, it is sufficient to discredit the evidence as well as the
entire case.12

Where the opinion of one medical witness is contradicted by another and both experts are
equally competent to form an opinion, the court will accept the opinion of that expert which
supports the direct evidence in the case.13

D.N.A. Report – In Pantangi Balarama Venkata Ganesh v. State of A.P., which was a case of
murder, the expert in D.N.A. report suggested that the blood group of the appellant and the one
found in the pink shirt worn by him was similar. The expert did not use the term identical. It was
held to be of not much consequence in this case when the Court had not taken into consideration
the evidence of D.N.A. experts alone for recording the conviction. D.N.A. report was considered
with other evidence.

3) Handwriting:-

When there is a question before the court as to whether a document is in handwriting of a person,
the court may either take the opinion of a handwriting expert or of another person acquainted
with the handwriting of the person in question or it may itself compare the disputed handwriting
with admitted handwriting.14

Like other expert opinion, the opinion of handwriting expert is advisory in nature. The expert
can compare disputed handwriting with the admitted handwriting and give his opinion whether
one person is the author of both the handwriting.

12
Mani Ram v. State of U.P. 1994 Supp (2) SCC 289,292; 1994 SCC (Cri) 1242
13
Piara Singh v. State of Punjab AIR 1977 SC 2274
14
Magan Bihari Lal vs State Of Punjab AIR 1967 SC 1356

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The court shall exercise great care and caution at the time of determining the genuineness of
handwriting. A handwriting expert can certify only probability and 100% certainty. On the
question of the handwriting of a person, the opinion of a handwriting expert is relevant, but it is
not conclusive and handwriting of a person can be proved by other means also.
The following are the different modes of proving handwriting:-

i. A person who wrote the document can prove it. (Sec.47)

ii. A person who saw someone writing or signing a document can prove it (Sec.47)
iii. A person who is acquainted with the handwriting by receiving the documents
purported to have been written by the party in reply to his communication or in
ordinary course of business, can prove the documents (Sec.47)
iv. The court can form opinion by comparing disputed handwriting with the admitted
handwriting. (Sec.73)
v. The person against whom the document is tendered can admit the handwriting.
(Sec.21)
vi. The expert can compare disputed handwriting with admitted handwriting and
thereby prove or disprove whether the documents were written by the same or
different persons. (Sec.45)

The opinion of a handwriting expert about the genuineness of handwriting is relevant under
section 45, but it is not conclusive proof. The opinion of an expert is not binding upon the judge.
An expert can certify only probability and not hundred percent certainty. An application for
appointment of handwriting expert was made after ten years and it was rejected. The opinion of a
handwriting expert has to be corroborated by clear, direct or by circumstantial evidence. If the
probabilities are against the experts, opinion it is of no value. In a suit for specific performance
of sale agreement the defendant filed an application to get sale agreement examined by
handwriting expert under section 45. It was not allowed due to lack of bona fide.

The opinion of handwriting experts is also applicable in criminal cases. Recovery of two slips of
paper by the police as to cause of death of a woman in a guest house was examined by
handwriting expert. According to the opinion of the expert the handwriting was that of her

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husband. The Supreme Court held that the opinion could be relied upon when supported by the
evidence which corroborated the circumstantial evidence.

In order to rely on the evidence of an expert the court must be satisfied that he is truthful witness
and also reliable witness fully adopt in the art of identification of handwriting. In order to opine
whether the alleged handwriting has been made by a particular person or not, the Court will have
to go by the evidence which inspire more confidence.

When the court has to form opinion as to writing, the opinion of a writing expert is admissible. It
should be borne in mind that the opinion of an expert in writing is the weakest and the least
reliable evidence. So it has been held that it is not safe to base conviction upon the opinion of
writing expert alone.15

Evidence of handwriting expert is not substantive evidence; it only corroborates. Expert opinion
on comparison of handwriting is a piece of evidence. It is not binding on the court.

The Supreme Court in State of Maharashtra v Sukhdeo Singh16 has laid down the principles of
judging opinion of handwriting expert, namely;

i. “The science of identification of handwriting is perfect and frail as compared to


the science of identification of finger prints.
ii. The courts have, as a rule of prudence, looked for corroboration before acting on
such evidence.
iii. The genuineness of the specimen handwriting as that of the suspect must be
established.
iv. The court must be satisfied that the expert is competent, reliable and dependable.
v. The reasons on which the opinion is based must be convincing.
vi. The court should be slow in reaching its own conclusion by its comparing the
disputed handwriting with the specimen handwriting.”

15
Godavarthy, In re, AIR 1960 AP 164; Kanchan Singh v. State of Gujarat, AIR 1979 SC 101.
16
State of Maharashtra v Sukhdeo Singh (SC) 1992 Crl. LJ 3454

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In Suresh Kumar alias Suresh Chandra and others v. Mewa Ram,17there was a difference of
opinion amongst two handwriting experts. In such case, the court itself can compare the disputed
handwriting with the admitted handwriting.

4) Fingerprint expert:-

The identification of finger prints has become most important branch of criminal investigation.
In civil law also to prove the identity of a person the finger-impression plays an important role.

Expert opinion on fingerprints has the same value as the opinion of any other expert. The court
will not take opinion of fingerprint expert as conclusive proof but must examine his evidence in
the light of surrounding circumstances in order to satisfy itself about the guilt of the accused in a
criminal case.

Examination of finger impressions is a science. A person having skill and knowledge can
compare finger impressions with the help of magnifying glass. The evidence given by a finger-
print expert need not necessarily be corroborated and is admissible. “It is quite possible to
compare the impression taken from finger-points of individuals with the disputed impression
provided they are sufficiently clear and enlarged photographs are available.” The expert opinion
is admissible when finger print of an accused was found in crime scenes or on crime articles.
Report of Director, Finger Print Bureau, can be treated as evidence without examining him, but
in case of any doubt the court may examine it.

In some cases the opinion of a fingerprint expert has been considered to be superior to
handwriting expert opinion.18

5) Ballistic expert:-

A ballistic expert may trace a bullet or cartridge to a particular weapon from which it was
discharged. Forensic ballistics may also furnish opinion about the distance from which a shot
was fired and the time when the weapon was last used.

17
Suresh Kumar alias Suresh Chandra and others v. Mewa Ram AIR 1991 Punj. 254.
18
Golam Rahman v. King, AIR 1950 Cal 66.

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The ballistic experts may trace out a bullet or cartridge to the particular weapon from which it
was discharged. The science of ballistics may be helpful to ascertain the actual distance from
which a shot was fired. The report of the ballistic expert is admissible in evidence without calling
him as witness. When the weapon has not been seized, the question of examination of ballistic
expert would not arise.

If a shot is fired from a mauser gun of .315 bore from a distance of 15 & 20 paces, bullet must go
out of body and the wound of entry must have been followed by a wound of exit unless the gun
was fired from a long distance. In such facts of the case the prosecution was held doubtful.19

Where convincing reasons were given by the ballistic expert to support his opinion about
identification marks coming from pellets, the production of micro-photographs of pellets is not
necessary. Failure to produce expert opinion before the trial court affects the creditworthiness of
prosecution case.

6) Typewriter

Sometimes the question arises that whether the evidence of typewriting expert is admissible as
expert opinion under Section 45. In State through CBI New Delhi v. S.J. Chaudhary,20 the
Supreme Court said that the word “science” occurring independently and in addition to word
“handwriting” in Section 45 is sufficient to include that the opinion of a person specially skilled
in the use of typewriter and having scientific knowledge of typewriter would be an expert in this
science and his opinion about the identity of typewriting for the purpose of identifying particular
typewriter on which writing is typed is relevant under Section 45 of the Act. Further, the type-
writing is to be read within the meaning of handwriting in the Act. Since type has become more
common than handwriting on account of availability of typewriters.

7) Evidence of tracking dogs:-

Trained dogs are used for detection of crime. The trainer of tracking dogs can give evidence
about the behavior of the dog. The evidence of the tracker dog is also relevant U/s-45.

19
Baldev Singh And Another v. State Of M.P AIR 2003 SC 2098
20
State through CBI New Delhi v. S.J. Chaudhary, AIR 1996 SC 1491.

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In Abdul Razak v. State of Maharashtra21 question arises before the Supreme Court whether the
evidence of dog tracking is admissible in evidence and if so, whether this evidence will be
treated at par with the evidence of scientific experts. In this case, Pune Express was derailed near
Miraj Railway Station on 10th Oct.1966. Sabotage was suspected. The removal of fishplates was
found to be the cause of derailment and accident. The police dog was brought into service, taken
to the scene of crime. After smelling the articles near the affected joint, the dog ran towards
embankment where one fishplate was lying, and then the dog smelt it and went to a nearby
shanty and pounced upon the accused who was a gang man at Miraj Railway station.

The Supreme Court held that evidence of the trainer of tracking dog is relevant and admissible in
evidence, but the evidence can’t be treated at par with the evidence of scientific experts
analyzing blood or chemicals. The reactions of blood and chemicals can’t be equated with the
behavior of dog which is an intelligent animal with many thought processes similar to the
thought processes of human beings. Whenever thought process is involved there is risk of error
and deception. The law is made clear by the Supreme Court by enunciating the principle that the
evidence of dog tracking is admissible, but not ordinarily of much weight and not at par with the
evidence of scientific experts.

Apart from the above fields, there are chemical analyst, explosive experts, mechanical experts,
interpreter, patent expert, hair expert etc. whose opinion is admissible in evidence.

NOT ADMISSIBLE AS EVIDENCE:

1) Foot prints: The foot prints do not carry the same weight age as that of finger-prints.
The science of identification is still in rudimentary form and much reliance cannot be
placed on it.
2) Thumb impression: The thumb impression on document cannot be examined by the
court. Such comparison should be made by the experts.

21
Abdul Razak V. State of Maharashtra (AIR 1970 SC 283)

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NARCO ANALYSIS

In the Narco-Analysis Test, the subject's imagination is neutralized by making him semi-
conscious. In this state, it becomes difficult for him to lie and his answers would be restricted to
facts he is already aware of.

Experts inject the subject with Sodium Pentothal or Sodium Amytal. The dose is dependent on
the person's sex, age, health and physical condition.

The subject is not in a position to speak up on his own but can answer specific but simple
questions. The answers are believed to be spontaneous as a semi-conscious person is unable to
manipulate the answers.

The Bombay22, Madras23, Kerala24, Gujarat25, Andhra Pradesh26, and Allahabad27 High Court
held that the Narco- analysis and use of P300 or brain-finger printing, lie-detector tests and use
of mouth serum to be valid under Article 20(3) of the Constitution. The Karnataka High Court 28
held it to be unconstitutional.

Admissibility of scientific evidence has attracted a serious debate in India especially post Selvi v.
State of Karnataka 29 wherein Supreme Court has expressed that Nacro-analysis, Brain-mapping
and Lie- Detector tests cannot be conducted on accused without accused’s consent, else it would
violate Article 21.

In People’s Union for Civil Liberties v. Union of India 30Supreme Court held that a person
becomes witness only when he makes oral or written statements in or out of court relating to any
person who is accused of an offence. The giving of any sort of identification as for instance
impression of thumb or foot or palm or fingers or giving of specimen of hand-writing is not at all

22
Ram Chandra Reddy v. State of Maharashtra, 2004 All MR (Cr) 1704.
23
Dinesh Dalmia v. State, 2006 Cr LJ 2401 Mad.
24
Rajo George v. Dy. Supdt. Of Police, 2006 (2) KLT 197.
25
Santokhben Sharmnbhai Ladeja v. State of Gujrat, 2007 Cr LJ 4566
26
State of A.P. v. Inapuri Padma, 2008 CrLJ 3992 (AP)
27
Abhay Singh v. State of U.P., 2009 Cr LJ 2189 (All) (Lko Bench)
28
Selvi v. State,20040(7) Kar LJ 501.
29
Selvi v. State of Karnataka AIR 2010 SC 1974, Per K.G. Balkrishnan C.J.I., R.V. Raveendran and J.M. Panchal
JJ.
30
People’s Union for Civil Liberties v. Union of India,AIR 2004 SC 456.

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covered under Article 20(3). For testimonial compulsion it is essential that a person forwards his
personal knowledge about happening or non-happening of an event. The perfunctory practice of
producing documents which may throw light on any of the controversial points does not amount
to self-incrimination.31 Considering Brain-mapping and Polygraph test, in these tests no
statement is made, neither oral nor written. In polygraph test physiological changes are gauged
and in brain-mapping, brain impressions are measured, so, these tests are not violative of Article
20(3).

No individual should be forcibly subjected to narco- analysis, polygraph examination and the
Brain Electrical Activation Profile (BEAP) tests, whether in context of investigation in criminal
cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.
However, voluntary administration of the impugned techniques provided that certain safeguards
are in place. Any information or material that is subsequently discovered with the help of
voluntary administered tests results can be admitted, in accordance with Section 27 of the
Evidence Act, 1872.

The Supreme Court referred to the guidelines published by the “The National Human Right
Commission for the Administration of Polygraph Test (Lie Detector Test) on an Accused” in
2000 which should be strictly adhered to and similar safeguards should be adopted for
conducting the “Narco-Analysis technique” and “Brain Electrical Activation Profile ” test.

HOW AN EXPERT’S TESTIMONY DIFFERS FROM THAT OF AN ORDINARY


WITNESS:

1) An expert’s evidence is not confined to what actually took place, but covers his opinions
on facts, e.g., although a doctor may not have attended the victim, he can still give his
opinion as to the cause of the victim’s death or the effect of a certain poison.

2) An expert can refer to and rely upon experiments conducted by him in the absence of the
other party. Thus, on a charge of arson, evidence of an experiment conducted by an
expert subsequent to the fire is admissible to show how the fire may have originated.

31
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808.

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3) An expert may quote passages from well-known text books on the subject and may refer
to them to refresh his memory.

4) An expert may state facts relating to other cases in pari materia similar to the case under
investigation.

CAN AN EXPERT SUO MOTO EXAMINE AND FURNISH HIS OPINION?

No, an expert can’t initiate examination or analysis and furnish his opinion unless the
Investigating Officer has sought his opinion in compliance with the formal procedure. An expert
can’t do anything suo moto in regard to analysis or examination and formation of his opinion.

ADMISSIBILITY OF EXPERT OPINION:

Expert opinion becomes admissible only when the expert is examined as a witness in the court.
The report of an expert is not admissible unless the expert gives reasons for forming the opinion
and his evidence is tested by cross-examination by the adverse party. But in order to curtail the
delay and expenses involved in securing assistance of experts, the law has dispensed with
examination of some scientific experts.

For example, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as following:-

a) Any Chemical Examiner / Asstt. Chemical examiner to the Govt.


b) The Chief Controller of explosives
c) The Director of Fingerprint Bureau
d) The Director of Haffkein Institute, Bombay
e) The Director, Dy. Director or Asstt. Director of Central and State Forensic Science
Laboratory.
f) The Serologist to the Govt.
g) Any other Govt. Scientific Experts specified by notification of the Central Govt.

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The report of any of the above Govt. Scientific Experts is admissible in evidence in any inquiry,
trial or other proceeding and the court may, if it thinks fit, summon and examine any of these
experts. But his personal appearance in the court for examination as witnesses may be exempted
unless the court expressly directs him to appear personally. He may depute any responsible
officer to attend the court who is working with him and conversant with the facts of the case and
can depose in the court satisfactorily on his behalf.

WHETHER THE OPINION OF EXPERT BINDING ON COURT

In the case titled as Malay Kumar Ganguly v. Dr. Sukumar Mukherjee32, the Hon’ble Supreme
Court has answered the question in negative. 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. 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. It has been further emphasized that in the cases involving Medical Science
complex questions are involved and therefore expert evidence is very assisting. However, the
court for the purpose of arriving at a decision on the basis of the opinions of experts must take
into consideration the difference between an ‘expert witness’ and an ‘ordinary witness’. The
opinion must be based on a person having special skill or knowledge in medical science. The
opinion could be admitted or denied. Whether such an evidence could be admitted or how much
weight should be given thereto, lies within the domain of the Court. The evidence of an expert
should, however, be interpreted like any other evidence.

EVIDENTIARY 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]

32
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee AIR 2010 SC 1162

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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]33

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.

As the expert opinion is a weak type of evidence it is usually considered to be of light value. The
evidence of expert is not conclusive. The opinion of the expert is not binding upon a judge and
that is why the court can refuse to rely on the evidence of an expert if it is not supported by
circumstantial evidences.

Perhaps the testimony which least deserves credit with a jury is that of skilled witnesses. These
witnesses are usually required to speak not facts, but to give opinions; and when this is the case,
it is often quite surprising to see with what facility, and to what extent, their views can be made
to correspond with the wishes or the interests of the parties who call them.

Testimony of experts is usually considered to be of slight value, since they are proverbially,
though perhaps unwittingly, biased in favour of the side which calls them. The Supreme Court
once observed that there is natural tendency on the part of expert witness to support the view of
the party who called him could not be downgraded. Many so-called experts have been shown to
be remunerated witnesses making themselves available to hire to pledge their oath in favor of
party paying them.

It is not safe to rely upon this type of evidence without seeking independent and reliable
corroboration34

No opinion of an expert is admissible unless he has been examined as witness. The adverse party
has a right and opportunity of cross-examining the expert. Before expert testimony can be
admitted, “two things must be proved, viz.:

33
Arshad v. State of A.P. 1996 CrLJ 2893 (para34) (AP)
34
S.Gopal Reddy v. State of A.P. AIR 1996 SC2184 (Para27)

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i. The subject is such that expert testimony is necessary;
ii. That the witness in question is really an expert.”

“It is the duty of the judge to decide whether the skill of any person in the matter on which
evidence of his opinion is offered, is sufficient to entitle him to be considered as an expert.
Credibility and competence of an expert are material question.” The evidence of an expert is only
an opinion. It is not the province of the expert to act as a judge or jury. Without examining the
expert as a witness in the court no reliance can be placed on his opinion.

As the Privy Council once observed: “There cannot be any more unsatisfactory evidence than
that of an interested party called as an expert.”

In Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat,35 the Supreme Court observed
that the conclusions based on mere comparison of handwriting must, at best, be indecisive, and
therefore, should yield to the positive evidence in the case.

Similarly, in Emperor, v. Ramrao Mangesh36, it was held that expert evidence, as a mode of
proof, though permissible, is hazardous and inconclusive, and as a method of proving disputed
handwriting, it is accepted by the Courts with great caution. It is indeed unsafe to base a
conviction on the uncorroborated opinion of a handwriting expert.

As observed in an American case (Peoples v. Patrick)37— “Expert witnesses are affected by that
pride of opinion and that kind of mental fascination with which men are affected when engaged
in the pursuit of what they call scientific enquiries.”

35
Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat, A.I.R. 1954 S.C. 316
36
Emperor, v. Ramrao Mangesh, (1932)ILR56BOM304
37
Peoples v. Patrick, 182 N.Y. 131

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CONCLUSION:

Thus, it may be concluded that this provision is based on the principle that as judges are not
properly equipped to draw proper inferences from the facts stated by witnesses, it is appropriate
that the opinion of an expert must be taken into consideration. But evidence of an expert is not a
substantive piece of evidence, The courts do not consider it conclusive. the expert’s opinion is a
weak form of evidence, especially in the cases where the sufficiency of knowledge is doubtful.
Without independent and reliable corroboration it may have no value in the eye of law.

An opinion or belief may be of an expert or a non-expert. A witness, in order to give an opinion,


must be competent and the subject matter must be one in respect of which an opinion is allowed.
The subject matters of opinion involves skill in a particular trade or profession or a special
knowledge of a particular science or art. However, in matters of age, identity or the condition of
a person or thing, the belief of the witness is sometimes accepted when it is based on facts within
his own knowledge. A jury, however, is entitled to accept or reject the belief or opinion of any
witness. Once the court accepts an opinion of an expert, it ceases to be the opinion of the expert
and becomes the opinion of the court.

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BIBLIOGRAPHY

Websites Referred:

 http://www.legalservicesindia.com/article/article/experts-opinion-and-its-admissibility-
and-relevancy-law-of-evidence-1583-

 htmlhttp://shodhganga.inflibnet.ac.in/bitstream/10603/6648/9/09_chapter%201.pdf

 https://blog.ipleaders.in/overview-law-expert-evidence-india/

 http://www.shareyouressays.com/120434/section-45-of-the-indian-evidence-act-1872

 http://www.vakilno1.com/legalviews/role-of-experts-in-litigations.html

Books Referred :

 Rattan Lal, Dhiraj Lal, Law of Evidence (1994) Wadhwa, Nagpur

 Avtar Singh, Principles of the Law of Evidence (2008), Central Law Agency, New Delhi

 BatukLal, Law of Evidence in India, Central Law Agency, Allahabad, 21st edn.,2015.

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