MACHINDRA V.

SAJJAN GALPHA RANKHAMB, 2018

ROUGH DRAFT MADE BY :

PRASENJIT TRIPATHI
ROLL NO. 1748, 4TH SEMESTER, B.A.LL.B.(HONS.)

SUBMITTED TO :
DR. MEETA MOHINI

RESEARCH PROJECT SUBMITTED ON PART AND FULFILMENT FOR THE COURSE

INDIAN EVIDENCE ACT

FOR ATTAINING THE DEGREEE

B.A.LLB (HONS.)

FEBRUARY, 2019

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR, MITHAPUR

PATNA, 800001
 INTRODUCTION

This section has given enough discretionary power to the court to draw certain inference from the
facts. The presumption under the section is discretionary and not mandatory. Presumption can be
drawn only from certain set of facts and not from other presumptions. A presumption can be drawn
only from facts, and not from after presumption by a process of probable and logical reasoning.
The presumptions are ‘may presume’ in nature and “rebuttable.” This is the final conclusion to be
drawn from the facts.

The court, taking into consideration of the circumstances of a case may or may not presume the
existence of certain fact. Where permission to intercept phone of the accused was obtained by the
investigating officer, but no evidence was led regarding details of the investigation of calls made
or received from that number, no adverse inference can be drawn from the fact that details of afore
mentioned number was not given. n the present case, the accused had killed his close relative in a
field allegedly over a land dispute, the High Court of Bombay had acquitted the accused as the
prosecution had failed to prove the guilt of the accused beyond reasonable doubt. Upholding the
decision of the High Court, the Court said that apart from contradictory testimonies of the
witnesses, non-examination of the material witness on whose field the crime was committed,
unexplained 6 days delay in lodging FIR; no opinion given by doctor in the post-mortem report or
his deposition about the cause of death raise substantial doubt in the prosecution story. The Court
said that the unfortunate man succumbed to injuries but the substantial doubts, mentioned above,
confer a right upon the accused-respondents to be held not guilty.

Emphasising upon the importance of expert opinion, the Court said that expert’s opinion should
be demonstrative and should be supported by convincing reasons. Court cannot be expected to
surrender its own judgment and delegate its authority to a third person, however great.

This legal aspect has been considered by the Judiciary in several cases and there has been a
dichotomy of opinion. However, the Supreme Court in the case of Murari Lal v. State of
M.P.[11] appears to have settled the issue by stating that on the facts of a particular case, a court
may require corroboration of a varying degree. There can be no hard and fast rule, but nothing
will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole
ground that it is not corroborated. The approach of a court while dealing with the opinion of a
handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider
all other relevant evidence and decide finally to accept or reject it.

AIMS AND OBJECTIVES:

The main aims and objectives of the researcher is to thoroughly study and analyse the judgement
of 2012 of India and to sudy the Sec-114 of IEA in the light of the landmark case.

RESEARCH METHOD USED:

This is the project work which requires exhaustive and careful reading of the various texts and
journals; particuraly of the modern concepts based on books, and journals. So for this project the
researcher will rely upon the doctrinal sources.

HYPOTHESIS:
The researcher tends to presume that the sec 112 of the Indian Evidence Act gives the court a
discretionary power to presume certain facts based on the circumstances of the case.
 EXPERT OPINION INDIAN EVIDENCE ACT

Section 45 of the Indian Evidence Act makes the opinion of the expert relevant. Section 45 of the
Act follows as under: "When the court has to form an opinion upon a point of foreign law or of
science or art or as to the identity of (handwriting or finger impressions), the opinion upon that
point of person specially skilled in such foreign law, science or art or (jn question as to the identity
of handwrjtjng) or (finger impressions) are relevant facts. Such persons are called experts".

1. Foreign Law
Law which is not in force in India is foreign law. In England it can be proved by leading expert
evidence. In India it may be proved in the same manner under section 45 or by production of
official books and reports on foreign law under section 381 According to English rule, foreign
law must be proved as a fact by skilled witness and not by the production of the books in which
it is contained. It must in general be proved on oath either orally or in some cases by affidavit
and not by mere certificate of expert. Although this rule has occasionally been relaxed.

Neither the coufts nor litigants are expected to be conversant with foreign law therefore foreign
law is always required to be proved according to the law of evidence. There are two modes of
providing foreign law, firstly with the help of books relating to foreign law and secondly by
examining an expert of foreign law. 41 The existence or non existence of foreign custom is also
42
a rnatter of fact, therefore it can be proved by a witness who is acquainted with such facts.
Before admitting opinion evidence in respect of foreign law, the Court has to be satisfied prima
facie that it js really necessary to examine the foreign law. The law which is not enforceable
within the territory of India is a question of fact, the burden of proof lies on the party setting it
up.

The Hindu Law and Muslim Law are parts of the law of the land which the Courts in India
administer as being within their own knowledge and competence. It is the duty of the court
themselves to interpret the law of the land and to apply it and not to depend on the opinion of

1
M. Monir, Law ofEvidence, (2002), p.294.
 witness, however learned he rnay be. Foreign law on the other hand, is a question of fact with
which courts in India are not supposed to be conversant. Opinions of experts on foreign law,
are therefore allowed to be admitted. 43 In many circumstances a court in India has to apply the
laws of other countries e.g.: the law of the country where the land in dispute is situated. This is
done pursuant to the rules of private international law adopted by the courts of all civilized
countries. This circumstance, however, does not make the laws of these countries, part of the
law of India and it cannot be urged that no expert evidence is admissible in respect of those
foreign laws. Foreign law does not become part of the law of the country merely by the
circumstances that it is to be applied by the courts in this country. Such foreign law remains a
foreign law and consequently under this section expert evidence is admissible in respect of such
foreign law.44

2. Science or Art
The term science and art has neither been defined nor any clear-cut demarcation has been drawn
between them. Under Indian Evidence Act, the word 'Science' has been defined as great,
proficiency, dexterity and skill based on long experience and practice. 2 According to Oxford
dictionary, Science means a systematic study of the structure and behaviour of the physical and
natural world through observation and experiment. 3 So we cannot confine the meaning of the
term 'Science' only to higher or educated sciences. Similarly, the term 'art' is not limited to fine
arts but it also applies to handicraft, trade, profession and skill in works, with which the
advancement of culture have been carried beyond the sphere of the common pursuits of life
that of 'artistic and scientific action. In many cases, it may become difficult for the court to
determine whether the particular question is of a scientific nature or not and consequently
skilled persons may be invited to express their opinion. In such cases the court has to take due
care and should keep in mind two considerations. Firstly, does the involved question require a
course of previous habit and study for its proper understanding and secondly, will it be possible
for the court to form a correct judgment in absence of expert assistance.4 The term science and
art are dynamic terms and their meaning varies from time to time as common knowledge

2
Basudeo Gir v. state, AIR 1959 Pat. 534, at 536.
3
See Oxford Dictionary. Indian Edition, Oxford University Press, 2006, p.802.
4
Maneesh Jacob v. Shakunji, 10 Bom., L.R. 1004.
improves with the advancement in the field of science and art. Their scope is enlarged and many
new matters have been covered under the meaning of these terms, e.g., architectural technical
terms, problems of tool marks, ballistics, blood tests, economic comments, production for
restrictive trade practices market value etc. were the disputed matters but now they have been
settled with the judicial pronouncements.5
The words 'Science or Art' if interpreted in a narrow sense would exclude matters upon which
expert testimony is admissible, both in England and America, such as questions relating to trade
and handicrafts. On questions of science or skill or relating to some art or trade, persons
instructed therein by study or experience may give their opinions, such persons are called
experts. Every business or employment which has a particular class devoted to its pursuit is an
'art' or 'trade'. But it js apprehended that these words are to be broadly construed, the term
'science' not being limited to the higher sciences and the term 'art' not being limited to fine arts,
but having its original sense of handicraft, trade profession and skill in work, which with the
advance of culture has been carried beyond the sphere of the common pursuits of life into that
of artistic and scientific action. 6 So the word science or art are to be broadly construed as to
include all the subjects on which a course of special study or experience is necessary to the
formation of an opinion of expert in footprints. 7 On a question of value in a land acquisition
cases, the opinion of experts like brokers and suryarers are admissible although such evidences
are of little evidentiary value unless it is supplemented or supported by other evidence and
unless the data in support of the opjnjon js also given.

In cases of murder by shooting with pistol the evidence of the firearms expert could be
admissible and even decisive to prove the fact that a cartridge found near the deceased could
52
have been fired by the Pistol produced by accused . In cases of infringement of trademarks,
however evidence of businessman as to whether or not one mark is calculated to deceive
purchasers into the belief that they are buying the goods of one manufacturer, when they are
not, his opinions are not admissible, as it does not really amount to expert opinion upon any
question of science or art within the meaning of the section. 53

5
Supra note 45, p. 160.
6
Supra note 2, p.2365.
7
Basudeo Gir v. state, AIR 1959, Pat. 534.
The opinion of medical men are admissible upon questions within their own province e.g.:
insanity, causes of disease or death or inquiries, the effect of injuries, medicines, poisons, the
consequences of wounds, the conditions of wounds in question, the likelihood of recovery, the
effect of a particular poison, fermentation of liquor, those of geologists as to the existence of
coal seams; those of persons of especially skilled in insurance matters, such as opinion of
insurance agent and examiner that a partition in a room increased the risk in a fire-policy and
so with other branches of science.
The opinion of artists are admissible as to the genuineness and value of a work of art, the
opinion of a photographer as to the good execution of a photograph, though a non-expert might
speak to its being good likeness; the opinion of an examiner or professional examiner of writing
as to erasure in a document; those of shipbuilders, marine surveyors and engineers as to the
strength and construction of a ship and those of a nautical men as to the proper navigation of a
versal will be relevant hence admissible under section under the head 'Science or Art'.

3. Handwriting
The making of any mark upon any surface by direct human agency as a means of
communicating information to a fallow man is in a broad sense handwriting; this may include
engrossing and drawing and even painting.54 Section 45 of Indian Evidence Act 1872,
specifically includes handwriting as a field along with science or arts, where the opinion of
experts is admitted. Writing is a thing that is tangible and almost every man who can write has
a character that those who are acquainted with it can readily recognize; and though it may be
imitated by expert penmen, as a general rule its individuality is easily established by the experts.
The opinion of handwriting expert is of one who is familiar with the writing of a person who is
said to have written a particular writing. The comparison of the disputed handwriting with
proved or admitted handwriting may be made by the court, but the comparison by the court
without guidance of an expert is hazardous and inconclusive. There is need for care and caution
in judging and utilizing the testimony of handwriting experts. The worth and opinion of an
expert can be tested by the reasons given by him in support of his opinion and not by bare
conclusions of the experts. 55 An expert who has acquired special skill in the art of handwriting
identification will be the most reliable witness in establishing a handwriting.
The word 'handwriting' in section 45 to include typewriting, the word science' occurring
independently and in addition to the word 'handwriting' in section 45 is sufficient to indicate
that the opinion of a person sufficiently skilled in the use of typewriters and having scientific
knowledge of typewriters would be an expert in this science, and his opinion about the identity
of typewriting for the purpose of identifying the particular typewriter on which the writing is
typed is a relevant fact under section 45 of the Evidence Act. 8
The word 'science' is wide enough to include the opinion of a typewriter expert as an opinion
evidence coming within the ambit of section 45 of the Evidence Act. The Court may however
add that the long accepted practice of judicial construction which enabled the reading of the
word 'telegraph' to include 'telephone' within the meaning of that word in the Act of 1863 and
1869 when telephone was not invented, would also be available in the present case to read
'typewriting within the meaning of 'handwriting' in the Act of 1872. Now typing has become
more common than handwriting and this change is on account of the availability of typewriters
and their common reason for the court to hold that the opinion of the typewriter expert in this
context is admissible under section 45 of the Indian Evidence Act. 9

4. Identification of Finger Prints

A man's finger print is called an unforgettable signature. This head was added to the scope of
expert evidence in 1899. The study of finger impression is now generally admitted to constitute
a science. Its two basic hypothesis are, firstly, that between birth and death there is absolutely
no change in 699 out of 700 numerous characteristics of the making of the fingers of the same
person. Secondly, that there has never yet been found any case in which the pattern made by
one finger exactly resembled the pattern made by any other finger of the same or any other
hand.
In order to ascertain that a finger-impression is that of the person of whom it is said to be, any
finger impression admitted or proved to the satisfaction of the coult to be the finger impression
of that person may be compared with the former impression, although that impression has not
been produced or proved for any other purpose. The court may also direct any person present in

8
Supra note 27, p.2563.
9
Supra note 2 p.2475
court to make a finger-impression for the purpose of enabling the court to compare the
impression so made with any impression alleged to be the finger-impression of such person.
Though, special mention is made of finger prints, the principles which hold true for them
apply also to palms, soles and toes. Dermatoglyphics of these areas are equally permanent and
individually variable. The evidence of an expert as to the identity of palm impression is
therefore admissible under this section.10 Impressions made by friction of papillary ridges of
the palms and the bulbous joints of toes are useful in identifying a person. Such ridges are
unchanging from approximately three months prior to birth until decomposition set in after
death.

5. Electronic Records
The invention of computer has revolutionized the electronic commerce and communication
technologies. The growth of electronic media has also created new fields of criminality. The
law of evidence traditionally relied upon the existence of records or documents. However, the
oral testimony and other kind of physical objects have always been the part of our court rooms
too. But as now more and more activities are carried out by electronic means, the electronic
record has been included within the definition of documentary evidence. However its mode of
proof in the court is different from as laid down for documents.
Electronic records like other documentary evidence may be primary or secondary evidence and
are admissible. In order to regulate laws relating to
electronic records. The Information Technology Act 2000 was passed by the Parliament, which
necessitated changes in the Indian Evidence Act also. Now, in section 3 of the Indian Evidence
11
Act, word evidence means and includes, all the documents including electronic record
produced for the inspection of the court and such documents are called secondary evidence.
Electronic Record, specifically has not been mentioned under section 45 along with other
fields. However, 'Electronic Records' as evidence are covered under the term 'Science'. The

11
Section 3 of Indian Evidence Act 1872; Evidence means & includes
(1) All statements which the court permits or requires to be made before it by witness in relation to
matters of fact under inquiry; such statements are called oral evidence.
(2) All documents including electronic records produced for the inspection of the Court.
 term 'Science' is wide enough to include every such field which involves science or systematic
study. Wnenever the question arises to have or obtain in relation of electronic record or
computer as a whole. Then it can be proved with the help of expert opinion. Though this section
has not been amended in information technology Act, however, it was wide enough to make
relevant the opinion of expert in those issues under the term 'science'. Under section 45,
electronic records, which are subject matter of an offence can be examined by the expert e.g.:
In Anara Gupta's case, the help of expert was taken for the purpose of detection of forgery of
the vedío compact disk. The evidentiary value of the opinion of expert examining electronic
record would be same as by other experts coming within the preview of section 4 of the
Information Technology Act.

The Indian Evidence Act under Section 45 enumerates the law relating to Opinion of Experts or
commonly known as Expert Opinion/Expert evidence. This statutory provision is adhered to when
the Court has to form opinion pertaining to:

 -foreign law
 -science
 -identity of handwriting
 -finger impressions

In such cases, the Court seeks opinion of skilled persons i.e. experts in the aforementioned fields.
Matters commonly made the subject of such evidence include causes of death, insanity, effects of
poison, genuineness of works of art, value of articles, genuineness of handwriting, proper
navigation of vessels, meaning of trade terms and foreign law. A witness who is qualified to speak
on these matters is called an expert.

The Supreme Court in the case of State of H.P. v. Jai Lal and Ors.12 explained the substance of
expert opinion by stating that Section 45 of the Evidence Act13 which makes opinion of experts

12
State of H.P. v. Jai Lal and Ors
13
Section 45 of the Evidence Act
admissible lays down, that, 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, the opinions upon that
point of persons specially skilled in such foreign law, science or art, or in questions as to identity
of handwriting, or finger impressions are relevant facts. Therefore, 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 Supreme Court in the case of Ramesh Chandra Agrawal vs Regency Hospital Ltd. &
Ors.14 delineated the requirements of an expert evidence under Section 45 of the Evidence Act.
The Court stated that the first and foremost requirement for an expert evidence to be admissible is
that it is necessary to hear the expert evidence. The test is that the matter is outside the
knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion
where there is a medical issue to be settled.

The scientific question involved is assumed to be not within the court’s knowledge. Thus cases
where the science involved, is highly specialized and perhaps even esoteric, the central role of
expert cannot be disputed. The other requirements for the admissibility of expert evidence are:

 that the expert must be within a recognized field of expertise

 that the evidence must be based on reliable principles, and
 that the expert must be qualified in that discipline.

WHO IS AN “EXPERT”?

The Act does not enumerate any qualification or standard for being categorized as an expert
under Section 45 of the Evidence Act15. The term used by the provision is “persons specially
skilled”. In order to have a broader understanding of the term it would be preferable to illustrate
the same through precedents.

14
Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors. [2009] INSC 1569
15
Section 45 of the Evidence Act
The Supreme Court in the case of State of Himachal Pradesh Vs. Jai Lal and others16 in the
following words explained who an expert is and what his functions are.

 An expert witness, is one who has made the subject upon which he speaks a matter of
particular study, practice; or observations; and the must have a special knowledge of
the subject.
 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.
 An expert is not a witness of fact. His evidence is really of an advisory character. The
duty of an 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 this criteria to the facts proved by the
evidence of the case.
 The scientific opinion evidence, if intelligible, convincing and tested becomes a factor
and often an important factor for consideration along with the other evidence of the
case. The credibility of such a witness depends on the reasons stated in support of his
conclusions and the data and materials furnished which form the basis of his
conclusions.

One of the earliest cases which enumerated on the function of expert was Titli v. Jones17, wherein
it was stated that 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.’

16
State of Himachal Pradesh Vs. Jai Lal and others AIR 1999 SC 3318
17
Titli v. Jones AIR 1934 All 237
 FACTS OF THE CASE AND JUDGEMENT

Parties herein are close relatives as respondent No.1 is the brother-in-law of the appellant herein
(his sister having married to the appellant) and respondent No.2 is the son of respondent No.1. It
appears that appellant had purchased 3 acres of land from his father-in-law (father of respondent
No.1) about 20 years before the date of occurrence. On account of the said transaction, respondent
No.1 was not happy, which is stated to be the alleged enmity between the parties. Appellant had
two sons, namely, Gorakh and Dattatreya.

On 21.04.2007, a complaint was lodged by the appellant at Osmanabad Rural Police Station stating
that the complainant, his wife and other relatives had gone to attend the marriage of his
granddaughter Rupabai, while his younger son Dattatreya remained at home. After attending the
marriage, when they came back, one Balu Shekha Solawar told the complainant that accused Sajjan
and his son Kakasaheb had killed Dattatreya in the field of Sanjay Sambhaji Jethithor. The
complainant immediately rushed towards the spot and found the dead body of Dattatreya lying on
the field.

The villagers who were present on the spot told the complainant that accused killed Dattatreya. On
the basis of the complaint, Osmanabad Rural Police Station registered the case as Crime No.36 of
2007 under Section 302 read with Section 34 of IPC against respondent Nos.1 & 2 herein, who are
none other than maternal uncle of deceased and his son for causing death of the deceased with
stick and Khil (yoke pin). After completion of the investigation by the Police Inspector of
Osmanabad Police Station (PW-19), final report was submitted before the Court of Chief Judicial
Magistrate, Osmanabad.

Since the offence was exclusively triable by the Court of Sessions, the case was committed to the
Court of learned Sessions Judge, Osmanabad. Twenty witnesses were examined on prosecution
side and five witnesses were examined on defence side. The learned Sessions Judge vide his
judgment and order dated 24.08.2010, convicted respondent Nos.1 and 2 herein for offence
punishable under Section 302 read with Section 34 of IPC and sentenced them to suffer
imprisonment for life and to pay a fine of Rs.1,000/- each, in default to make payment of fine, to
suffer further imprisonment for two months.
Being aggrieved by the judgment and order of conviction and sentence passed by the learned
Sessions Judge, Osmanabad, the accused respondents preferred Criminal Appeal No.333 of 2010
before the High Court of Judicature of Bombay, Bench at Aurangabad. The High Court allowed
the said appeal, set- aside the judgment and order of conviction and sentence dated 24.08.2010
passed by learned Sessions Judge, Osmanabad, and acquitted respondent Nos.1 & 2 of the offence
punishable under Section 302 read with Section 34 of IPC.

JUDGEMENT

This Court has in a recent judgment in the case of Yogesh Singh Vs. Mahabeer Singh & Ors., AIR
2016 SC 5160, 2016 (10) JT 33218, reiterated the said principle in the following words: "It is a
cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond
all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond
all reasonable doubt and not all doubts.

Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J., in State of U.P.
Vs. Krishna Gopal and Anr., (1988) 4 SCC 30219: . ... Doubts would be called reasonable if they
are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To
constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual
and substantial doubts as to the guilt of the accused person arising from the evidence, or from the
lack of it, as opposed to mere vague apprehensions.

A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based
upon reason and common sense. It must grow out of the evidence in the case.

The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units
to be mathematically enumerated as to how many of such units constitute proof beyond reasonable

18
Yogesh Singh Vs. Mahabeer Singh & Ors., AIR 2016 SC 5160, 2016 (10) JT 332
19
State of U.P. Vs. Krishna Gopal and Anr., (1988) 4 SCC 302
doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability
and the quantum of proof.

Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on
the trained intuitions of the judge. While the protection given by the criminal process to the accused
persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make
a mockery of administration of criminal justice."

Keeping in mind the aforesaid position of law, we shall now examine the arguments advanced and
materials on record to see whether the findings of the High Court call for interference in the facts
and circumstances of the present case. We have noticed that there are contradictions in the
depositions of PW-4 and PW-10 and none of them is eye-witness to the alleged incident.
Furthermore, PW-20 has proved in his deposition that he medically examined respondent Nos.1 &
2 herein on 21.04.2007 and not on 22.04.2007 when they were arrested.

It is a matter of surprise to us that prosecution had not examined one Sanjay Jetithor in whose field
the alleged incident occurred. Non-examination of this material witness, who could have unfolded
the relevant facts of the case necessary for adjudication, makes the prosecution version doubtful.
It is also pertinent to mention here that PW- 3, who is an alleged eye-witness to the incident, had
in his deposition admitted that he passed the information on phone to one Chandrakant Pandurang
Gophane who was never examined by the Trial Court. After perusing the deposition of PW-3, we
have noticed that this witness and the respondent accused were not in cordial terms as their cattle
used to enter the fields of one another and chapter case was filed against the wife of accused on
that count.

On perusal of the record, it has further been noticed by us that there was six days' delay in lodging
the FIR which remained unexplained throughout the trial and in the appeal before the High Court.
One last fact which is imperative and crucial to be mentioned here is that opinion on the cause of
injuries was neither mentioned by doctor PW-6 in his deposition, nor in post-mortem report. In
criminal cases pertaining to offences against human body, medical evidence has decisive role to
play. A medical witness who performs a post-mortem examination is a witness of fact though he
also gives an opinion on certain aspects of the case.
This proposition of law has been stated by this Court in Smt. Nagindra Bala Mitraand Vs. Sunil
Chandra Roy & Anr., 1960 SCR (3)20, as follows: "The value of a medical witness is not merely a
check upon the testimony of eye witnesses; it is also independent testimony because it may
establish certain facts quite apart from the other oral evidence. If a person is shot at a close range,
the mark of tattooing found by the medical witness would draw that the range was small, quite
apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds
would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is
often direct evidence of the facts found upon the victim's person." Further it was observed in the
case of State of U.P. Vs. Krishna Gopal & Anr., (1988) 4 SCC 30221, in the following words : It
is trite that where the eye-witnesses' account is found credible and trustworthy, medical-opinion
pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are
the eyes and ears of justice. Hence the importance and primacy of the orality of the trial-process.
Eye-witnesses' account would require a careful independent assessment and evaluation for their
credibility which should not be adversely prejudged making any other evidence, including
medical-evidence, as the sole touch-stone for the test of such credibility. The evidence must be
tested for its inherent consistency and the inherent probability of the story; consistency with the
account of other witnesses held to be credit- worthy; consistency with the undisputed facts; the
'credit' of the witnesses; their performance in the witness-box; their power of observation etc.

Then the probative value of such evidence becomes eligible to be put into the scales for a
cumulative evaluation." But looking at the post-mortem report, cause of injuries was not stated nor
was any opinion formed to create independent testimony. We would like to emphasize on the vital
role played by opinion of the expert which is simply a conclusion drawn from a set of facts coming
to his knowledge and observation. Expert's opinion should be demonstrative and should be
supported by convincing reasons. Court cannot be expected to surrender its own judgment and
delegate its authority to a third person, however great.

If the report of an expert is slipshod, inadequate or cryptic and information on similarities or

dissimilarities is not available in the report of an expert then his opinion is of no value. Such
opinions are often of no use to the court and often lead to the breaking of very important links of

20
Smt. Nagindra Bala Mitraand Vs. Sunil Chandra Roy & Anr., 1960 SCR (3),
21
State of U.P. Vs. Krishna Gopal & Anr., (1988) 4 SCC 302
prosecution evidence which are led for the purpose of prosecution. Therefore, we are of the
considered opinion that the prosecution has failed to prove that death was caused due to the injuries
inflicted by the recovered weapons.

Furthermore, looking at the facts and circumstances of this case, we have noticed that PW-3 the
eye-witness to the incident has neither stated as to when the accused came with alleged weapons
nor he extended any help to the deceased. Rather he fled away from the spot as per his deposition,
and came to know about the death of the deceased in the evening. This peculiar fact of the case
completely over-rides the direct evidence rule, because ultimately probabilities creating doubts
with respect to the cause and modus-operandi of offence increases when alleged eye-witness flee
away from the place of occurrence.

Where the medical evidence is such that it does not give any clear opinion with respect to the
injuries inflicted on the body of victim or deceased, as the case may be, the possibilities that the
injuries might have been caused by the accused are also ruled out. Such medical evidence is also
very important in assessing the testimony of eye- witnesses and in determining whether the
testimony of eye-witnesses can be safely accepted. Moreover, it is settled law of criminal
jurisprudence as has been recognized by this Court in State of U.P. Vs. Krishna Gopal22, that "A
person has, no doubt, a profound right not to be convicted of an offence which is not established
by the evidential standard of proof beyond reasonable doubt."

The unfortunate man succumbed to injuries but the substantial doubts, mentioned above, confer a
right upon the accused-respondents to be held not guilty. Thus, we see no reason to interfere with
the findings of the High Court as, in our opinion, the High Court after correct appreciation of
evidence has rightly acquitted the accused-respondents, giving them benefit of doubt. This appeal
is devoid of any merit which is, accordingly, dismissed.

22
State of U.P. Vs. Krishna Gopal; (1988) 4 SCC 302
 CONCLUSION
A Court is not bound by the evidence of the experts which is to a large extent advisory in nature.
The Court must 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.23

The value of expert opinion rest on the facts on which it is based and his competency for forming
a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which
it is based and also the validity of the process by which the conclusion is reached. Where the
experts give no real data in support of their opinion, the evidence even though admissible, may be
excluded from consideration as affording no assistance in arriving at the correct value.

The Allahabad Court in one of the earliest cases pertaining to the issue in question stated that the
value of expert evidence depends largely on the congency of the reasons on which it is based. In
general it cannot be the base of conviction unless it is corroborated by other evidence.24

Evidence of experts after all is opinion evidence. The opinion is to be supported by reasons. The
Court has to evaluate the same like any other evidence. The reasons in support of the opinion, if
convincing, make the opinion acceptable. There is no place for ipse dixit of the expert. It is for the
court to judge whether the opinion has been correctly reached on the data available and for the
reasons stated25. Hence, from the judicial pronouncements it can be inferred that expert evidence
or opinion is not a cogent or conclusive evidence and to make it a stronger evidence in a case it
has to be supported by reasons and relevant data.26

Thus, no expert can claim that he could be absolutely sure that his opinion was correct, expert
depends to a great extent upon the materials put before him and the nature of question put to him.

23
Malay Kumar Ganguly v. Sukumar Mukherjee
24
Saqlain Ahmad v. Emperor AIR 1936 Alld. 165
25
State Vs. Kanhu Charan Barik 1983 Cr.L.J. 133
26
The State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14
 BIBILIOGRAPHY:
Books:
1. Dinkar, V. R. Scientific Expert Evidence: Determining Probative Value and Admissibility
in the Courtroom. 2013.
2. Gawali, Bhagwan and Dube, Dipa. Admissibility and Appreciation of Expert Evidence with
Special Reference to Ballistics. International Journal of Research in Computer Application
and Management, Vol. 2(10), 2012.
3. Rao, Y. H., and Y. R. Rao. Expert Evidence, Medical & Non-Medical. 1967.
4. Reece, Helen. Law and Science. Oxford University Press on Demand, 1998.
5. Tapper, Colin. Cross and Tapper on Evidence. Butterworths, 8th Ed., 1995.

Case laws:

1. Malay Kumar Ganguly v. Sukumar Mukherjee

2. Saqlain Ahmad v. Emperor AIR 1936 Alld. 165
3. State Vs. Kanhu Charan Barik 1983 Cr.L.J. 133
4. The State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14
5. State of U.P. Vs. Krishna Gopal; (1988) 4 SCC 302
6. State of Himachal Pradesh Vs. Jai Lal and others AIR 1999 SC 3318
7. Titli v. Jones AIR 1934 All 237
8. Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors. [2009] INSC 1569

Acts:

1. Indian Evidence Act, 1872