(..10..)

Opinions of Third Persons when Relevant

(Ss. 45 to 51)

(Expert’s Opinion)

QUESTION BANK

1. What is the expert's opinion and explain the admissibility of the expert's opinion?

1. Who is an expert? What are the types of expert evidence? Discuss.

SHORT NOTES

1.      Expert’s opinion.

SYNOPSIS

Introduction: -

1. Opinions of experts (Ss.45 and 46): -

A)    Opinions of experts (S.45): -

a) Types of an expert’s evidence: -

1)    Foreign Law: -

1. Science or Art: -

i) Handwriting: -      ii) Typewriting: -

iii) Footprints: -      iv) Fingerprints: -

v) Dog tracking: -      vi) Ballistic expert: -

b) Value of expert evidence: -

c) Difference between ‘an expert’ and ‘an ordinary’ witness: -

1. Fact / Opinion: -

1. Experiment: -    

1. Reasons / Pursuance: -

B.    Facts bearing upon the opinion of experts (S.46): -

II.    Non-expert’s opinion when relevant.

A)    Opinion as to handwriting when relevant (S.47): -

Differ modes of proving to handwrite: -

1. Opinion as to digital signature (S.47-A): -

1. Opinion as to the existence of right or custom (S.48): -

1. As to wages, tenets, etc. (S.49)

1. 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): -

1. When the court has to form an opinion –

1. upon a point of foreign law or science or art; or

1. as to the identity of handwriting or finger impressions.

1. 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 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.

In Balkrishna Das Agarwal V. Radha Devi.

An expert was defined as ‘a person who, by his training and experience, has acquired the ability to express an opinion’.

In Aziz Bano V. Muhammad Ibrahim Hussain.

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: -

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

1. Handwriting

1. Fingerprints

1. Firearms

1. 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 machine is not admissible under this section..

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, evidence of dog tracking, even if admissible, is not ordinarily of much weight.

vi) Ballistic expert: -

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.

In S. Gopala Reddy V. State of Andhra Pradesh.

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 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.

In Mohammad Jahid V. State of Tamil Nadu.

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.    Non-expert’s opinion when relevant.

A)    Opinion as to handwriting when relevant (S.47): -

1. when the court has to form an opinion about the person to whom any document was written or signed.

1. the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be –

1. written or signed, or

1. not written or signed

1. by that person is relevant.

Explanation: - A person is said to be acquainted with the handwriting of another person when –

1. he has seen that person write or

1. 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.

1. By the opinion of an expert (S.45).

1. By the evidence of the person who is acquainted with the handwriting of the person in question. (S.47)

1. 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 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:

1. The usage and tenets of any body of men or family.

1. The constitution and Government of any religious or charitable foundation, or

1. the meaning of words and terms used in a particular district or by particular classes of people.

1. 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

1. 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.

1. 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

An expert may give an account of experiments performed by him for the purpose of forming his opinion.

*****