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(Expert’s Opinion)
Prof. S. D. Bhosale
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(..10..)
Opinions of Third Persons when Relevant
(Ss. 45 to 51)
(Expert’s Opinion)
QUESTION BANK
1.
2.
What is the expert's opinion and explain the admissibility of the expert's
opinion?
Who is an expert? What are the types of expert evidence? Discuss.
SHORT NOTES
1.
Expert’s opinion.
SYNOPSIS
Introduction: -
I.
Opinions of experts (Ss.45 and 46): -
A) Opinions of experts (S.45): -
a) Types of an expert’s evidence: -
1)Foreign Law: -
2)Science or Art: -
i) Handwriting: -
iii) Footprints: -
ii) Typewriting: -
iv) Fingerprints: -
v) Dog tracking: -
vi) Ballistic expert: -
b) Value of expert evidence: -
c) Difference between ‘an expert’ and ‘an ordinary’ witness: -
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1. Fact / Opinion: -
2. Experiment: -
3. Reasons / Pursuance: -
B. Facts bearing upon the opinion of experts (S.46): -
Non-expert’s opinion when relevant.
II.
A)
Opinion as to handwriting when relevant (S.47): -
Differ modes of proving to handwrite: -
B) Opinion as to digital signature (S.47-A): -
C) Opinion as to the existence of right or custom (S.48): -
D) As to wages, tenets, etc. (S.49)
E) Opinion on the relationship (S.50): -
III.
Grounds of opinions, when relevant (S.51):
Introduction: -
The general rule is that the opinion or belief of a witness is irrelevant; he
must depose to facts which are within his knowledge. It means a witness who
appears before the court is entitled to tell the court only the facts of which he has
personal knowledge and not his opinion. He should speak what he knows and not
what he believes. However, this topic is an exception to the above general rule. Ss.
45 to 51 provide circumstances in which a third person's opinion is relevant. Ss.45
and 46 deal with the ‘expert’s opinion’. Ss.47 to 50 deal with the non-expert’s
opinion, whereas S.51 provides grounds of opinion when relevant. We will discuss
them one by one.
Opinions of experts (Ss. 45 and 46): -
A)
Opinions of experts (S. 45): -
a. When the court has to form an opinion –
i)
upon a point of foreign law or science or art; or
ii)
as to the identity of handwriting or finger impressions.
b. The opinion upon that point of persons specially skilled in such Foreign Law,
science or art, or in question as to the identity of handwriting or finger
impressions are relevant facts.
Such persons are called 'experts'.
Illustrations
(a) The question is whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which
A is supposed to have died are relevant.
(b) The question is whether A, at the time of doing a certain act, was, by
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reason of unsoundness of mind, incapable of knowing the nature of the act or that
he was doing what was either wrong or contrary to law.
The opinions of experts upon the question of whether the symptoms
exhibited by A common show unsoundness of mind and whether such unsoundness
of mind usually renders persons incapable of knowing the nature of the acts which
they do or of knowing that what they do is either wrong or contrary to law are
relevant.
(c) The question is whether a certain document was written by A. Another
document is produced, which is proved or admitted to have been written by A.
Expert opinions on whether the two documents were written by the same
person or by different persons are relevant.
The expression ‘expert’ covers ‘person especially skilled'. An expert may be
defined as a person who, by practice and observation, has become experienced in
any science or trade. To be a competent witness under section 45, an expert must
acquire special knowledge or skills professionally. It is sufficient if he has made a
special study of the subject or acquired special experience therein.
a) Types of expert evidence: -
Under S.45, expert evidence on the following matters may be relevant –
1)
Foreign Law: -
Any law that is not in force in India is Foreign Law.
Courts of the country may not be able to appreciate that principle of foreign
law. Therefore, whenever a court has to decide a question of foreign law, the court
can seek the help of experts on the particular foreign law. A foreign law must be
proved as a fact
.
In India, such a Law may be proved under section 38 by producing a book
printed under the authority of the foreign government. The judgment of the highest
tribunal of that country is the best evidence.
An expert was defined as ‘a person who, by his training and experience, has
acquired the ability to express an opinion’.
The court held that the Shia Law on Marriage is the law of the land and is in
force in India. It can by no means be called a ‘foreign law’.
2) Science or Art: -
1 [AIR 702 ALL 133]
2 (1925)
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Here, the terms ‘science’ and ‘art’ have to be understood in a broader sense,
not a narrower one. The word ‘science’ is not confined to physical or biological
sciences.
Similarly, the word 'Art' is not just confined to fine arts, which have their
original sense of handicraft, trade, profession, and skill in works. Any matter that
requires some special skill, special training, or special study to form an opinion is
regarded as science.
Many times, expert opinion is made admissible in the sciences of –
1. Medical
2. Handwriting
3. Fingerprints
4. Firearms
5. Poroscopy
6. D.N.A.
7. Nautical accessories, and so on.
i) Handwriting: -
When the court has to form an opinion as to writing, the opinion as to writing
expert is admissible. However, it should be borne in mind that an expert's opinion
in writing is the weakest and the least reliable evidence. Therefore, it is not safe to
base a conviction upon the opinion of a handwriting expert alone.
ii) Typewriting: -
The opinion of an expert that a particular letter was typed on a particular
iii) Footprints: -
This section does not include footprints as evidence. However, the evidence
of footprint experts is generally admitted. However, the evidence from foot experts
must be corroborated by other evidence to convict the accused.
iv) Fingerprints: -
The evidence of a footprint expert is more valuable and reliable. This is
because the ridges in the fingers of two persons are invariable in different patterns.
v) Dog tracking: -
Supreme Court has held that in the present state of scientific knowledge,
vi) Ballistic expert: -
3 Hanmant V. State of Madhya Pradesh [AIR 1952 SC 363]
4 Abdul Razak V. State of Maharashtra [AIR 1970 SC 283]
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The opinion of a ballistic expert can conclusively prove that a particular
cartridge is fired from a particular pistol.
b) Value of an expert’s evidence: -
An expert is a person who has devoted time and study to a special branch of
learning and is thus especially skilled in science, art, foreign law, and questions
about the identity of the handwriting or figure impressions he is asked to state his
opinion. Sometimes, the matter to be proved before the court is such that it requires
special skill proving. In such a case, ordinary witnesses cannot establish the truth
for establishing truth; it requires special skill or knowledge in that field. E.g. The
doctor’s opinion (who has performed a postmortem of a body) as to whether a
person committed suicide or murdered is relevant. Suppose the circumstance of
death is in question.
Even though the expert's evidence is admissible under S.45. The question
comes as to the weight/value to be given to such a witness. The Evidence Act does
not provide the weight or value to be given to such exports' evidence. However, it
is a settled principle that whatever may be the evidence of an expert, it should not
be made the ground of conviction unless some other evidence corroborates it. It is
the court's duty to ascertain expert evidence's reliability. The evidence of an expert
should be tested like any other witness. The fact that the witness was not in a fit
state of mind or health to form a proper opinion was interested, corrupt, or had
expressed different opinions at different times discredits his witness.
Supreme Court held that an expert's evidence is a weak type of evidence. The
court does not consider it conclusive; therefore, relying upon it without seeking
independent and reliable corroboration is not safe.
c) Difference between ‘expert’ and ‘ordinary’ witnesses: -
1. Fact / Opinion: -
An expert witness gives evidence of his opinion, whereas an ordinary witness
is a witness of a fact and gives evidence about facts.
2. Experiment: -
The expert witness supports his evidence with the experiments.
The ordinary witness states the facts of what he has perceived by his senses.
3. Reasons / Pursuance: -
The expert witness gives the rules and reasons which support his opinion.
Ordinary witnesses give evidence of what they perceived through their
5 [AIR 1996 SC 2184]
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senses.
B.
Facts bearing upon the opinion of experts (S.46): -
Facts not otherwise relevant are relevant if they support or are inconsistent
with an expert's opinion when such opinions are relevant.
This section provides that when an expert's opinion is relevant and has cited
any fact that will either support his opinion or contradict it, it will also become
relevant.
Illustrations
(a) The question is whether A was poisoned by a certain poison.
The fact that other persons who were poisoned by that poison exhibited
certain symptoms that experts affirm or deny to be the symptoms of that poison is
relevant.
(b) The question is whether an obstruction to a harbour is caused by a certain
sea wall.
It is relevant that other harbours similarly situated in other respects but
where there were no such sea walls began to be obstructed at about the same time.
Facts: In this case, the credibility of the doctor's opinion on the postmortem and
the statement found in a textbook on postmortem were compared. The doctor
disagreed with the statement of the authoritative textbook without giving any
reasons. No other authority was produced in support of the opinion.
Supreme Court held: - That the evidence of the doctor is self-contradictory
regarding the cause of death of the victim and, therefore, cannot be a relief.
II.
A)
i)
Non-expert’s opinion when relevant.
Opinion as to handwriting when relevant (S.47): -
when the court has to form an opinion about the person to whom any
document was written or signed.
ii)
the opinion of any person acquainted with the handwriting of the person by
whom it is supposed to be –
a. written or signed, or
b. not written or signed
iii)
by that person is relevant.
Explanation: - A person is said to be acquainted with the handwriting of another
person when –
6
[AIR 2000 SC 1691]
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i)
ii)
he has seen that person write or
has received documents purporting to be written by that person in answer
(to documents written by himself or under his authority and addressed to that
person), or
iii) In the ordinary course of a business, documents purporting to be written by
that person have been habitually submitted to him.
Illustration: -
The question is whether a given letter is in the handwriting of A, a merchant
in London.
B is a merchant in Calcutta who has written letters addressed to A and
received letters purporting to be written by him. C is B's clerk, whose duty it was
to examine and file B's correspondence. D is B's broker, to whom B habitually
submitted the letters purporting to be written by A for the purpose of advising him
thereon.
The opinions of B, C, and D on the question of whether the letter is in the
handwriting of A are relevant, though neither B, C, nor D ever saw A write.
Under this section, the authorship of writing may be proved by the opinion
of a witness who is familiar with the writing of a person who is said to have written
a particular document. But before such evidence is to be admitted, the witness must
prove that he is acquainted with the writing of the person concerned.
S.45 and 47 of the Act prescribe a method for proving signatures. Under
S.45, the opinion of the handwriting experts is relevant. In contrast, under S.47,
the opinion of any person acquainted with the handwriting of the person who is
alleged to have signed the document is admissible. Thus, S.45 deals with
handwriting expert evidence, whereas S.47 deals with an ‘ordinary witness’.
Different modes of proving to handwrite: -
The handwriting or signature of the executant may be proved by the
following methods: -
1. By the evidence of the writer himself.
2. By the opinion of an expert (S.45).
3. By the evidence of the person who is acquainted with the handwriting of the
person in question. (S.47)
4. By the court itself comparing the handwriting in question with the proven
handwriting (S.73).
B) Opinion as to digital signature (S.47-A): -
When the court has to form an opinion as to a person's digital signature, the
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opinion of the Certifying Authority that issued the digital signature certificate is
relevant.
C) Opinion as to the existence of right or custom (S.48): -
When the court has to form an opinion as to the existence of any general
custom or right, the opinions of the existence of such custom or right of persons
who would be likely to know of its existence if it existed are relevant.
Explanation: - The expression general custom or right includes customs or rights
common to only a large class of persons.
Illustrations
The right of the villagers of a particular village to use the water or a particular well
is a general right within the meaning of this section.
D) Opinion as to wages, tenets, etc. (S.49)
When the court has to form an opinion as to:
- The usage and tenets of any body of men or family.
- The constitution and Government of any religious or charitable foundation, or
- the meaning of words and terms used in a particular district or by particular
classes of people.
- the opinions of persons with special knowledge are relevant facts.
E) Opinion on the relationship (S.50): -
When the court has to form an opinion as to the relationship of one person
to another, the opinion, expressed by conduct, as to the existence of such
relationship of any person who, as a member of the family or otherwise, has special
means of knowledge on the subject, is a relevant fact.
Provided that such opinion shall not be sufficient to prove a marriage in
proceedings under the Indian Divorce Act or in prosecutions under S.494, 495,
497, or 498 of the Indian Penal Code.
Illustration
(a) The question is whether A and B were married?
The fact that they were usually received and treated by their friends as husband
and wife is relevant.
(b) The question is whether A was the legitimate son of B. The fact that A was
always treated as such by family members is relevant.
III. Grounds of opinions, when relevant (S.51): -
Whether the opinion of any living person is relevant, the grounds on which
such opinion is based are also relevant.
Illustrations
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An expert may give an account of experiments performed by him for the
purpose of forming his opinion.
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