Opinion of Experts – Section 45 of Indian Evidence Act, 1872

INTRODUCTION:

It is assumed that when a person is called to court for testimony as a witness, he will only state facts and not give any opinion. It is the duty of the court in the case to shape an opinion. In addition, if a person is asked to testify, then it is anticipated that the individual must be factually relevant to the case, not simply a third party. But an exception to this law remains. Even if they are not directly relevant to the case, the experts are known as witnesses. The court needs these experts to give an opinion on the case to assist the court in giving justice from a broader perspective. The reasoning behind the same is that asking the judges to have sufficient knowledge of medical problems is not realistic. The statutes regarding the Experts opinion in Indian evidence act 1872.

WHO IS AN EXPERT?

An expert is one “who is skilled in any particular art or trade, or profession, being possessed’’ of particular knowledge concerning the same. According to Lord Russell, any person who is skilled or has adequate knowledge in a particular calling is an expert. If a person has acquired any special experience or special training in a particular subject to which the court’s enquiry relates, such a person can be considered as an expert.

An expert operates in a field, which is beyond the range of common knowledge. An expert is however not required to be a professional expert who makes a living by giving such evidence, but he must have devoted sufficient time and study of the subject to make his evidence trustworthy. (Krishnamachari, 2017)

MEANING OF EXPERT AND VALUE OF EXPERT EVIDENCE:

MEANING OF EXPERT

According to the Indian Evidence, Act says section 45 enumerates the opinion of an expert or commonly known as expert evidence. This statutory provision adhered to when the court has to form opinion pertaining to foreign law, science, the identity of handwriting, finger impression. The court seeks opinion from the skilled persons they are skilled in the above-mentioned fields, so they are called as experts under the Indian evidence act. Such evidence includes cause of death, insanity, effects of poison, genuineness of works of art, the importance of articles, genuineness of handwriting, proper vessel navigation, the meaning of trade terms and foreign law. A witness who is competent to speak on these matters is called an expert. (vakilno1, 2018)

VALUE OF EXPERT EVIDENCE

The information provided by an expert is valid and admissible. If the data/report is contradicted by any oral testimony, it would not make the data evidence redundant. However, according to section 46, if any evidence is inconsistent with the expert’s opinion, the fact becomes important. If the experts opinion is important, even though it was not relevant as such, the contrary fact becomes relevant. The importance of the opinion of an expert depends on the evidence on which it is based and on the ability of that expert to form a reliable opinion.

However, unless the court specifically requires him to appear in person, the personal presence of the specialist in the court may be excused. In such a case, the expert may submit any responsible officer who is well versed in the facts of the case and the study, if the expert is excused, and may address the court with the same.

If a judge only relies on the experts opinion and not on the evidence and the testimony of ordinary witnesses to give judgement, then the case is weak. This is because, while an individual is an expert in his profession, he can not be considered a direct witness and can not state the facts of the case. He only gives an opinion according to the facts presented to him and does not draw a judgement in all cases concerning the guilt of the accused.

The evidence given by the expert is only an opinion and is not a testimony based on facts and is therefore given light validity. This is the reason why preference is given to eyewitnesses or other factual witnesses over the opinion of the expert. This is because evidence of opinion does not supersede proof of substance. No expert can say that he can be completely certain that his opinion was correct, that the expert relies to a great extend on the materials placed before him and the essence of the question put to him.

The evidentiary value of the opinion of an expert, however, depends on the facts and circumstance. For instance, if there is a dispute as to who the biological parent of a child is, the medical expert’s DNA report is of great importance. If the expert says that the child’s or parents’ DNA matches, then in determining the event, it is a valid fact. But if a handwriting expert claims that the signature match or do not match the individual, this fact does not hold much importance because there might be a risk that the individual has done a lot to copy the signature. But DNA can’t be copied or modified, on the other hand.

The privy council once noted that “there can be no more unsatisfactory evidence than that of an expert.’’ In the case of Emperor v. Kudrat the court held that it can not be relied on when the expert offers an opinion on the age by observing only height, weight, and teeth. The court must be convinced that the defendant is guilty. The court is unable to find him guilty merely because an expert has said that the man is guilt in his view. Before giving any verdict or order, the court needs to look at the facts along with the expert’s opinion. (Dhingra, 2019).

THE PROVISIONS RELATING TO EXPERT’S OPINION:

The court must form an opinion upon a point are foreign law, science, art, the identity of handwriting, fingerprints. Section 45 enables the court to receive the opinions upon that points, of persons specially skilled in such foreign law, science, art or as to the identity of handwriting or finger impressions.

OPINIONS AS TO FOREIGN LAW

When the court has to form an opinion on a point of foreign law, the opinion on a point of foreign law, the opinion of such persons who are well versed or well trained in such foreign law can be taken under section 45. A person is said to be an expert in foreign law if he has practised that foreign law during profession for a considerable time or held any office concerning or dealing with such foreign law. However, the opinions as far as the laws of the land are concerned are not relevant.

OPINION AS TO SCIENCE OR ART

The terms ‘Science’ and ‘Art’ must be understood in a broader sense, and not in a narrower sense. The word ‘science’ is not just confined only to physical science or biological science. Similarly, the word ‘Art’ is not just confined to fine Arts having its original sense of handicraft, trade, profession, and skill in works. Any matter for the purpose of forming an opinion, which requires some special skill, special training, or special study, is regarded as a science.

The expert opinion is made admissible in the sciences of

(a) Medical;

(b) Handwriting;

(c) Finger-prints;

(d) Fire-arms;

(e) Poroscopy;

(f) D.N.A. fingerprinting, so on and so forth.

(a) Medical science

The medical officer’s deposition in court and the reports provided by him are considered as evidence. However, a mere post-mortem report is no evidence because no details could be drawn from it. The value of medical evidence is it is important to treat expert evidence with care and caution. However, an unbiased expert witness is naturally biased in favour of the party that call him. He is also clearly and exclusively called by one side because it has been determined that he holds a view favourable to his benefit. Medical evidence is clear, and thus the importance of those evidence rests only in the degree to which it supports and gives weight to the direct evidence of eye-witnesses or contracts that confirm and excludes the likelihood that the accident might occur in the manner alleged by those witnesses. A doctor’s opinion is entitled to great weight but maybe dismissed on good grounds.

(b) Science of Handwriting

An expert may depose under section 45 of the Indian evidence act on the identity of the handwriting between the document in question and the document accepted or proven. Disputed handwriting may be demonstrated either by calling an expert or by observing a person familiar with the handwriting of the person who is claimed to have written the document in question or by comparing the two under section 73. The opinion of a handwriting expert, however, is only rendered admissible; it is not the only from of handwriting proof. In this case Fakhruddin v. state of M.P, firstly by direct proof, secondly by expert testimony, and thirdly, by contrast, by the court coming to a conclusion.

(c) The Science of Fingerprint

An unforgettable signature is called a mans signature. This head was added in 1899 to the array of expert evidence. In general, fingerprint research is agreed to constitute a science. His two basic assumptions are; firstly a person’s fingerprints remain the same from birth to death. Secondly, no case of a pattern made by one finger exactly matching the pattern produced by any other finger of the same or any other finger hand has yet been identified. The opinion of the expert in thumb impression is entitled to a greater weightage than that of the expert in handwriting.

(d) The Science of Poroscopy

The science of poroscopy is also on the same lines as the science of fingerprints. On the palm and the hand of every person there are certain small sweat pores, which are quite individual from persons to person regarding the number, size, shape etc. This science of poroscopy is also fast developing in other countries.

(e) The science of Firearms

Ballistic exert evidence: Ballistics is the science that deals with the movement, actions, and effect of projectiles, especially bullets, gravity bombs, rocket, or the like; the science or art of designing and hurling projectiles to achieve the desired performance. Where the opinion is provided by the ballistic expert who, after all the tests, deposes them in the court of law it can be certified. That does not mean that, despite proving direct evidence, the experts opinion should be called upon.

In any case where a weapon is believed to have been used by a convicted person, in addition to direct evidence, the prosecutor must bring the evidence of a ballistic expert to the record, however good the direct evidence may be, and there may be no reason to question the direct evidence. Where the ballistic experts have not seen the wound himself but has given his opinion on the basic of the recordings or photograph provided by the doctor who saw or examined the wound, and no emphasis can be put on such an expert opinion. Therefore, based on his own observation and personal observation, the firearms or ballistic experts must have inferred the opinion.

(f) The Science of Footprints

Reliable footprints detection. Our bare feet have patterns of friction ridges that are special to everyone. Therefore, it is possible to use fingerprints and footprints found at the scene of the crime to help locate the suspect. They may also be used for the identification of the victim. The scientific method used for fingerprinting is legitimate and footprinting is recognized by the courts. In Pritam Singh vs. Punjab state, contested blood footprints near a dead body and going to the bathroom were compared with those taken in printer ink by the accused.

The expert provided proof showing nine points of similarity with respect to the right foot and ten points of similarity with respect to the left foot and three variations only in each case, explaining the difference with respect to the different densities of blood and ink. The contrast was held to stand the test well, and under the circumstances, these impressions of the foot in blood near the incident site were proven to be those of the accused.

(g) The Science of Deoxyribonucleic (DNA)

The genetic composition of everyone includes DNA. This varies from person to person. It is possible to acquire DNA. This varies from person to person. It helps in identifying a person. If a drop of blood or a strand of hair is identified at a crime scene, to see if there is a correlation, it can be linked to the established DNA od a victim, thereby connecting the person to the crime. An expert witness will give an opinion about the possibility that the blood that was discovered at the scene of the crime came from the person whose sample was compared. To determine paternity, DNA analysis is also used. Expert agrees that the potential to connect the suspect by his DNA prints to the crime scene is unquestionable, since DNA is present in every tissue, unlike traditional fingerprints that can be surgically changed, and no known chemical intervention can modify it. (Abhiraj_Singh, n.d.) (Krishnamachari, 2017)

CONCLUSION:

This rule is based on the principle that the judge is not sufficiently qualified to draw sufficient inference from the evidence alluded to by the witnesses, and it is necessary to take account of the opinion of the expert. But the opinion of the expert is a poor type of proof, especially in the case where there is doubt as to the adequacy of the information. An expert or a non-expert may have an option or belief. To give an opinion, a witness must be qualified, and the subject matter must be one on which an opinion is permitted. Skill in a specific trade or occupation or special knowledge of a particular science or art is involved in the subject matter of an opinion.

However, in matters of age, identity, or the state of a person or thing, where it is founded on evidence within his own experience, the witness’s opinion is often acknowledged. A jury, however, is entitled to consider or deny any witness’s belief or opinion. The opinion of a judge, as a general rule, only plays a role and is therefore important to the judgement of the case and, as a result, the opinion of any person other than the judge on any matter of fact is irrelevant when determining the case.

The explanation behind such a rule is that if such an opinion is made important, the character of a judge will be invested in that person. Section 45 is, however, an exception to the general rule, as it requires the opinion of experts to be relevant when determining the case. The explanation behind this is that it is not possible to expect the judge to be an expert in all fields, especially where technical expertise is involved in the subject matter, as he is unable to draw a conclusion from highly technical evidence. He requires the aid of a specialist in these cases, who is expected to have superior expertise or experience in relation to the subject matter.

Reference

1. Abhiraj_Singh. (n.d.). legal service india. Retrieved from http://www.legalserviceindia.com/legal/article-1205-admissibility-and-relevancy-of-expert-evidence.html

2. Dhingra, A. (2019, june 2). I pleaders intellegent legal solution. Retrieved from https://blog.ipleaders.in/expert-witnesses-under-the-indian-evidence-act-1872/#:~:text=When%20the%20court%20needs%20an,person%20testifying%20is%20an%20expert.&text=Expert%20is%20defined%20under%20section,The%20Indian%20Evidence%20Act%2C%201872.

3. Krishnamachari, D. v. (2017). law of evidence. NARENDER GOGIA AND COMPANNY.

4. vakilno1. (2018, February 16). Retrieved from https://www.vakilno1.com/legal-news/law-relating-experts-opinion-indian-evidence-act.htm

This article has been written by ISHWARYA S, B.A., LLB(Honours) Student at VELS Institutions of Science, Technology and Advanced Studies(VISTAS).

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