A Project on

Opinions of Expert and Its Relevancy

Subject: - Law of Evidence

Submitted to Submitted by
Mr. Deshraj Singh Harshal Parashar
Faculty of Law Semester 7th
Roll No.- 4
 Declaration

I, Harshal Parashar hereby declare that this project titled “Opinions of Expert and Its
Relevancy” is based on the original research work carried out by me under the guidance
and supervision of Mr. Deshraj Singh (Faculty of Law). The interpretations put forth are
based on my reading and understanding of the original texts. The books, articles and
websites etc. which have been relied upon by me have been duly acknowledged at the
respective places in the text.

Harshal Parashar
Semester 7th

Date-
 Acknowledgement

I have written this project titled “Opinions of Expert and Its Relevancy” under the
supervision of Mr. Deshraj Singh, Faculty of Law at MSB Global Law Institute, MSBU
Bharatpur. His valuable suggestions herein have not only helped me immensely in
making this work but also in developing an analytical approach to this work. His constant
encouragement at every step helped me to complete my project. I am extremely
grateful to librarian and library staff of the college for the support and cooperation
extended by them from time to time.

Harshal Parashar
Semester 7th

Date-
Table of Contents
Introduction................................................................................................................................2
Expert: Definition.......................................................................................................................2
Competency and Credit of an Expert.........................................................................................2
Types of legal evidence..............................................................................................................2
Expert Evidence.........................................................................................................................2
Principles of Expert Evidence....................................................................................................2
Evidentiary Standards in Civil Cases.........................................................................................2
Evidentiary Standards in Criminal Cases...................................................................................2
Other Subject Matters of Expert Opinion..................................................................................2
What is the Evidentiary Value of an Expert Opinion................................................................2
Various Rules for Expert Opinion..............................................................................................2
Recent Case on Expert Evidence...............................................................................................2
Conclusion..................................................................................................................................2
References..................................................................................................................................2
Introduction
As a general rule, the opinions, inferences, beliefs and mere speculations of witnesses
are inadmissible before a Court of law. It means that such types of evidence do not merit
consideration. Hence, they are excluded as inadmissible in the law of Evidence.
Witnesses are considered as fact reporting agents of the legal machinery and their role
in the adjudicating process is to inform the court of facts. 'Facts' means and contains
only facts and not opinions or inferences. Witness must testify only what he had
perceived with one of his five senses.

Therefore, it is worthwhile to know the meaning of opinion and its distinction from fact.
In the law of evidence, 'opinion' means any inference from observed facts. However, in
some situations it will be difficult to distinguish between fact and opinion because there
are borderline cases in which the evidence of fact is mingled with evidence of opinion.
For example, statements relating to the speed of a particular thing, identity of persons
etc. are mingled with fact and inference. In such cases, the law permits witnesses to
state their opinion, without which the fact finder cannot come to a correct conclusion. In
some other cases, the line, which differentiates facts from opinion, may be delicate.
Ordinary lay witness cannot identify certain facts with his prudence. Such facts may be
obscure or invisible to him. But a witness having a particular skill or training may be able
to perceive such fact.

Law of evidence allows a person -who is a witness- to state the facts related to either to
a fact in issue or to relevant fact, but not his inference. It applies to both criminal law
and civil law. The opinion of any person other than the judge by whom the fact has to be
decided as to the existence of the facts in issue or relevant facts are as a rule, irrelevant
to the decision of the cases to which they relate for the most obvious reasons- for this
would invest the person whose opinion was proved with the character of a judge.

The rule however, is not without its exceptions. “If matters arise in our law which
concern other sciences or faculties, we commonly apply for the aid of that science or
faculty which it concerns”. The expert witness is, thus, an exception to the exclusionary
rule and is permitted to give opinion evidence. The Judge is not expected to be an expert
in all the fields-especially where the subject matters involve technical knowledge. He is
not capable of drawing inference from the facts which are highly technical. In these
circumstances he needs the help of an expert- who is supposed to have superior
knowledge or experience in relation to the subject matter. This qualification makes the
latter’s evidence admissible in that particular case though he is no way related to the
case.

The research project deals basically with the study the evidentiary value of expert
opinion under the Indian Evidence Act analyze it in light of various judicial
pronouncements on the point.

Expert: Definition
Every learned man, however, high his claims to learning and knowledge may be, is not
deemed to be an expert within the meaning of section 45 of the Indian Evidence Act.

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: foreign law, science, art, hand writing or finger
impression. Thus, the only definition of an expert available in the Act is that he is a
person especially skilled in the subject on which he testifies. But 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. Generally, a witness is considered as an expert if
he is skilled in any particular art, trade or profession, and possessed of peculiar

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knowledge concerning the same. He must have made a special study of the subject or
acquired a special experience therein. In such a case the question is: Is he peritus? Is he
skilled? Has he adequate knowledge? The question of competency or fitness of a witness
as an expert is to be decided by the judge.

Therefore, as such the Indian Evidence Act provides for no formal qualifications that may
be regarded as essential to qualify a witness as an expert. In the case of Abdul Rahman
v. State of Mysore1, where the opinion of a professional goldsmith as to the purity of the
gold in question was held to be relevant as the opinion of an expert, though he had no
formal qualifications, his only qualification being his experience. There must be
something to show that the expert is skilled and has an adequate knowledge of the
subject.

Allowing expert opinion on the effect of delay on the cost of construction, the court said
that an expert could be qualified by skill and experience as well as by professional
qualifications. The report of a chemical examiner has been held to be usable in
evidence.

Expert as a witness: The phrase expert testimony is not applicable to all species of
opinion evidence. A witness is not giving expert testimony who without any special
knowledge simply testifies as to the impressions produced in his mind. Question of
common knowledge such as whether the hammering of the steel plates with hammers
weighing 10 kg cause noise or not does not need an expert. Expert evidence is often
sought in the matters of handwriting, age, on weather, general conduct of a business
etc. A person having special knowledge of the value of land by experience though not by
any profession can be treated as an expert. All these years the Courts in India have
been accepting the testimony of a goldsmith about the metal being gold and the extent
of its purity though the test is very crude carried out by rubbing the metal on the touch
stone. Now as the technology has been invented to test the purity of gold- the evidence
by goldsmiths might become redundant.

Competency and Credit of an Expert

Under Section 45 of the Indian Evidence Act, the evidence of an expert can be led on a
question of foreign law, etc., to enable the tribunal to come to a satisfactory conclusion.
It is for the Court to decide the competency or fitness of a witness.

The test is to see if the witness is sufficiently qualified by experience. His credit can be
challenged by cross-examination, or by the contrary evidence of another expert or by
showing that he had expressed a different opinion on the same question previously or in
any of the modes allowed u/s 146 to 153 and S. 155 to impeach the credit of a witness
generally.

The Questions put to an expert are generally hypothetical as they assume something for
the time being. An expert witness must himself come and give evidence in court. His
certificate cannot go in automatically without proof unless permitted by statutory
exceptions like. 509 (medical certificate), or section 510 or the CrPC (report of the
chemical analyst).

When the expert evidence is presented by the prosecution particularly, the expert Must
not assume the role of an advocate. The expert is not supposed to ask or to give his
opinion regarding an issue in the case and he should not become a Part in the
functioning of the Court.

Because even though the expert may state his opinion, the prosecution presents his
opinion in relation to the guilt of the accused when the judge accepts it as it is and
1
ILR 1956 KAR 266, 1957 8 STC 205 Kar

2
delivers the judgment accordingly such as judgment is not the result of interpretation of
available Evidence, but it violates the mandate of S. 45 of Indian Evidence Act. An
expert opinion according to S.45 is not conclusive proof of the guilt of the accused but
merely a relevant fact for deciding the fact in issue.

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. The opinion could be
admitted or denied. Whether such evidence could be accepted or how much weight
should be given thereto, lies within the domain and discretion of the Court. The evidence
of an expert should, however, be interpreted as any other evidence.

Thus, it can be concluded that the expert opinion in numerous matters relating to
identification of thumb impression, handwriting, footprints, fixing paternity, time of
death, age of the parties, cause of death, possibility of the weapons used, disease,
injury, sanity and insanity of the parties and other question of science or trade has
become the need of hour and the person having required skill on that subject (called
experts), are allowed to give their opinions in evidence as well as testify to facts/details
leading to their opinion.

The opinion of an expert having a special skill in that particular field is relevant to the
point of admissibility before the Court of law. There may be exceptions to this rule; in
spite of it, when their direct evidence is lacking, then to corroborate the existing
evidence, expert opinion is sought.

Types of legal evidence

Testimony evidence – The word testimony has been derived from Latin word testis
referred to disinterested third party witness. In law, testimony is one of the forms of
evidence which is obtained when the witness makes any statement or declares any fact.
Testimony may be in any form, written or oral. When written testimony is witnessed by
one or more persons who swear or affirm its authenticity that testimony is admissible in
court and is of more reliability and validity. Whenever court asks questions to witness,
the answers given by witness to the court is called testimony. It is a serious crime if
witness gives false information because before giving any statement witness sworn
under oath. After this if witness gives false answers, witness commit the crime of
perjury. According to section 118 of Indian Evidence Act, 1872 any person may be called
to testify unless that person is prevented from understanding the question of the court
due to old age, any disease and disease can be of body or mind, or insanity of any
person or any other cause of the same kind. Person called to testify by court if refuses to
answer a question asked by court can be sent to jail for short duration of period on
ground find in contempt of court.

Documentary evidence – Documentary is another form of evidence. This is different from

oral testimony. Documentary evidence is in written form. It is any document which is or
can be introduced at a trial. Documentary evidence may be an invoice, a contract, a will,
a photograph, a tape recording or film or an email, spreadsheets, etc. for documentary
evidence to be admissible in court the witness must prove by other evidence that it is
genuine. Documents can be primary evidence or secondary evidence. Primary evidence
is the original documents produced in the court whereas secondary evidence is the
copies of the documents of the primary evidence. Example: When the handwriting on
document needs to be identified then forensic experts match the handwriting on
document with the sample handwriting of certain person and give their opinion as to the
handwriting of both the documents.

Physical evidence – Physical evidence is also called real evidence or material evidence.
Any material object in the matter which gives rise to the litigation, given as evidence in

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any trial to prove a fact in issue based on object’s physical characteristics is called
physical evidence. Explanation: Experts working or investigating in forensic labs do study
on material objects. When these experts give their opinion about any fact relevant to
case in court, court may admit or deny the expert’s opinion. Whenever a doubt is
created or an expert is required with his physical presence, the expert is called for its
testimony in the court of law. An expert starts studying a legal court case only after an
expert has been appointed by the court if it feels any necessity of expert evidence. An
expert witness when gives the expert evidence has to be a written report. The report
must further be given according to the rules provided in provisions of the Act. Unless the
interest of justice requires an expert to be present in court, the court will not ask expert
to attend the trial.

Expert Evidence
According to Steven H. Gifis-Dictionary of Legal Terms–Testimony given by an expert
witness, in his capacity as such constitutes ‘expert evidence’. Oxford Dictionary of Law
defines ‘opinion evidence’ as “Evidence of the opinions or beliefs of a witness, as
opposed to evidence of facts about which he can give admissible evidence”. Thus, the
evidence of an expert is in the nature of opinion evidence which is different from that of
fact. ‘Expert evidence’ can be used to assist the court in determining the issues in a case
where it is relevant and where the opinion of an expert is needed to give the court a
greater understanding of those issues. This guidance is intended to give prosecutors
practical guidance on issues relating to the prosecution and defense as they arise during
the life of a case. In Sitaraman Nai Puranmal Sonar, the term “opinion” was explained. It
was stated that "the term “opinion” means something more than mere relating of gossip
or hearsay; it means judgment or belief, that is, a belief or conviction resulting from
what one thinks on a particular question".

In Arshad v. State of A.P2., it was opined that “The expert evidence has two aspects, the
‘data evidence’ and the ‘opinion evidence’. The data evidence cannot be rejected if it is
inconsistent to oral evidence but the opinion evidence is only an inference drawn from
the data and would not get precedence over the direct eye witness testimony unless of
course, the inconsistency between the two is so great as to obviously falsify the oral
evidence”. Here the data can be understood as facts.

Principles of Expert Evidence

According to Phipson, the cardinal principle of the law of evidence states that the best
evidence should be adduced before a court of law. This rule is known as Best-Evidence
rule. Best-Evidence means the evidence collected through the direct source. Derivative
and second-hand evidence shall be excluded. As a general rule, the opinions, inferences,
beliefs and mere speculations of witnesses are inadmissible before a court of law. The
exception of the above-mentioned rule is the ‘expert evidence’. Expert testimony is
admissible on the principle of necessity. The help of experts is necessary when the
question involved is beyond the range of common experience or common knowledge or
where the special study of a subject or a special training or skill or special experience is
called for. In Khushboo Enterprises v. Forest Range Officer 3, it was held that "under
Indian evidence ‘expert evidence’ is ‘opinion evidence’ and as a general rule, the opinion
of a witness on a question of fact or law is irrelevant. The opinion of witnesses
possessing peculiar skills (as of experts) is an exception to this rule".

Evidentiary Standards in Civil Cases

Preponderance of the Evidence: Here the litigant must satisfy the burden of
persuasion. This burden ensures which standard of proof the litigant must follow while
presenting evidence to the judge or jury. A standard of proof determines the amount of
2
1996 (3) ALD 410, 1996 (2) ALD Cri 264, 1996 (2) ALT Cri 433, 1996 CriLJ 2893
3
1993 CriLJ 1100

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evidence the litigant or defendant is responsible to provide for the jury to reach to a
particular decision. In most civil cases, the burden of certainty, which applies, is called a
“preponderance of the evidence.” This standard requires the jury to pass a judgment in
favor of the litigant if he is able to show that the fact or event, which he is claiming for,
was more likely than not to have occurred.

Clear and Convincing Evidence: In some of the civil cases, the burden of proof is
uplifted to a higher standard called “clear and convincing evidence.” This burden of proof
requires the complainant to prove that a particular fact is more likely to be false. Some
courts have also described this standard is useful for the complainant to prove that there
is a high possibility of the particular fact being true. This standard sets a higher approach
than the preponderance of the evidence standard, but it does not rise to the widely
recognized standard that are in use in criminal cases, known as “beyond a reasonable
doubt.”

Substantial Evidence: In case of administrative law proceedings, the standard of proof

mostly applies the substantial evidence standard. This standard requires the plaintiff or
moving party to provide sufficient evidences that any reasonable mind could accept
easily as adequate to support a particular conclusion.

Evidentiary Standards in Criminal Cases

Beyond a Reasonable Doubt: The “beyond a reasonable doubt” standard is the
highest standard of proof that can be forced upon any party at a trial, and it is usually
the standard often used in criminal cases. This standard needs the prosecution to show
only logical explanation that derive from the facts which proves that the defendant is
responsible for the alleged crime committed, and any other logical explanation cannot be
strictly inferred or deduced from the evidence. In the Supreme Court of the United
States the case of Victor v. Nebraska, 511 U.S. 1 (1994), described this standard as
such doubt would give rise to a grave uncertainty, which raised in your mind by reasons
of the undesirable character of the evidence. Therefore, what is required is a moral
certainty rather than an absolute mathematical certainty.

Probable Cause: In criminal law context, a few additional standards are applied in
specific circumstances. In some cases, another well-known standard is the probable
cause standard. This standard concentrates on balancing some of the effective law
enforcement practices against the fourth amendment, which guarantee against the
unreasonable invasions of the citizens’ privacy. In Illinois v. Gates, 462 U.S. 213 (1983),
the Supreme Court mentioned the totality of the circumstances test that apply to
determine whether a police officer had probable cause to conduct a search and seizure,
which can be useful for magistrate or judges when issuing warrants.

Reasonable Belief and Reasonable Suspicion: Other standards used to assess

evidence in the criminal context includes reasonable belief and reasonable suspicion.
According to which any police actions that are subject to these standards of proof should
be based on grounds that are reasonable in light of the circumstances. In other words, a
reasonable suspicion occurs when a police officer observes any unusual conduct which
leads him reasonably to conclude according to his experience that criminal activity may
occur and that the persons with whom he is dealing may be occupied with arms can be
and dangerous. For example, the case of Terry v. Ohio, 392 U.S. 1 (1968) can be
referred.

Credible Evidence: One more common standard used in some criminal law proceedings
is known as the credible evidence standard. Credible evidence is evidence that can be
worthy of belief but is not necessarily and can even be worthy of the jury’s
consideration. This standard is also defined as essential for the jury to conclude that the
evidence is all reasonable, natural and probable in order for it to be credible. The Indian

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Evidence Act under Section 45 specifies the law relating to Opinion of Experts also
known as Expert Opinion/Expert evidence. This statutory provision is adhered to when
the Court has to form opinion regarding the following:

 Foreign law
 Science & Art
 Identity of handwriting
 Finger impressions
 Electronic evidences

In such cases, the Court takes opinion of skilled persons i.e. experts in their particular
specialized fields. Cases, which includes such evidence, include causes of insanity, death,
effects of poison, value of articles, genuineness of works of art, genuineness of
handwriting, meaning of trade terms and foreign law and proper navigation of vessels. A
witness whoever is believed to be qualified to speak on these matters is called an expert.
There have been cases such as:
 The disposition or temper of animals
 Colour, weight or scale of similar facts
 Age of a person
 If a man or women were intimate
 If a person was intoxicated or not

In the court of law, before accepting any opinion delivered by an expert, first needs to
be ensured that the person is an authenticate expert as described under the law. If it
reveals that the person is not an expert, then his opinion gets discarded by the court.
For ensuring whether the witness is an expert, he must be thoroughly examined and
cross-examined.

Subject Matters of Expert Evidence under Section 45

The S. 45 is an exception to the rule the general rules regarding the exclusion of opinion
evidence. The relevancy of opinion of experts, generally, as per section 45, with several
judgements of courts are reflected hereunder. These are the general kinds of expert
opinion specifically stated in the phraseology of the section itself.

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 the same way under
section 45 or by producing of official books and reports on foreign law under section 38.
Foreign law is a question of fact.

Foreign law, except on appeals to the House of Lords and Privy Council, must, unless
ascertained under the statutory procedure, be proved as a fact by skilled witness, and
not, as at one time held by production of books in which it is contained for the Court is
not competent to interpret such statutes. Foreign law is a question of fact with which
Courts in India are not supposed to be conversant. Thus, opinion of experts on foreign
law is admissible. In foreign law, the expert may be either a professional lawyer or a
person peritus virtue official, i.e., holder of official situation which requires and therefore
implies legal knowledge or perhaps some other person who from his profession or
business has had peculiar means of becoming acquainted with the law in question.

A foreign judge, barrister or solicitor practicing in the courts is competent but not a mere
resident of the foreign country, not especially conversant with the law. It is not enough
to show that the witness in fact knows the foreign law: he must be one who, from his
position or training, is supposed to know the law. It must be noticed that no foreign law
becomes a part of the law of Indian Territory merely on the grounds that it is to be
applied by the Courts of this country. Such foreign law remains a foreign law and
consequently under section 45, Evidence Act, expert evidence is admissible in respect of

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such foreign law. Moreover, the law of the land, e.g., the Shia Law on Marriage is the
law of the land and is in force in India. It can by no means be called foreign law, nor is
such law a science or an art within the meaning section 45 of the Evidence Act. It is the
duty of the Courts themselves to interpret the law of the land and apply it and not to
depend upon the opinion of the witnesses, howsoever learned they may be. It would be
dangerous to delegate their duty to witnesses produced by either party. Foreign law, on
the other hand, is a question of fact with which the

Science or Art The expression “science or art” should receive a liberal construction and
must be taken to include all subjects on which a course of special study or experience is
necessary to the formation of opinion. The section 45 speaks of persons especially
skilled in science or art as experts. The words ‘science or art’ are broad terms, and it is
by no means easy to determine what is, or is not a point of science or art. Whatever it is
by no means easy to determine what is, or is not a point of science or art.

With reference to experts in science, art, or handwriting, Mr. Taylor says: “it is in short a
general rule, that the opinion of witnesses possessing peculiar skill is admissible
whenever the subject-matter of inquiry is such that inexperienced persons are unlikely
to prove capable of forming a correct judgment upon it without such assistance; in other
words, when it so far partakes of the character of a science or art as to require a course
of previous habit or study in order to obtain a competent knowledge of its nature…” the
opinions of the scientific witnesses are admissible in evidence not only where they rest
on the personal observations of the witness himself and on facts within his knowledge,
but even where they are merely founded on the case as proved by other witnesses at
the trial. But a witness cannot be asked his opinion respecting the very point which the
jury is to determine.

The word ‘science’ has been defined in the Universal Dictionary of English Language,
referred to by the learned Judge, as great proficiency, dexterity, skill bases on long
experience and practice, is sufficiently wide to include the evidence of an expert. An
expert has to be skillful and has to show that he has adequate knowledge of the subject.
In a case, the Government had to acquire on payment from the growers diseased apples
and to destroy them. There was a complaint that the growers had submitted false claims
as to quantity. The expert, who was appointed to report on the fruit bearing capacity of
the orchards, visited the orchards, in the subsequent year when the apple season was
over. He had not made any scientific study on research on the subject nor was he
offered any such job earlier. He prepared his report on the basis of surmises and
conjectures. His report was not relied upon. The word ‘science’ occurring in section 45
includes experts in type-writers and type-writing has to be read within the meaning of
the word ‘handwriting’. The word ‘science’ is comprehensive enough to include the
opinion of an expert in footprint. Telephony is a science or art and the witnesses’
knowledge of the telephone and of engineering generally places them in special position
and makes them competent to express an opinion upon articles and matters which are
largely in use in the department of the telephone and of engineering generally.

The only thing which court can do in connection with this matter is to interpret the words
'science' and 'art' liberally and thereby update the law in tune with the developments. In
State v. S.J. Choudhary4, Supreme Court made an attempt to state the scope and ambit
of Section 45, while deciding the important question of law, whether opinion of
typewriter expert is admissible under Section 45 of the Indian Evidence Act. In this case
the prosecution wanted to adduce certain incriminating facts against the respondent with
the help of a typewriter expert. J. S. Verma J., held, the words science and art provided
in Section 45 of the Indian this case was that, court imported the terms 'skill' or
'technique' with the word science, but court was silent about its application in future
cases.

4
1996 AIR 1491, 1996 SCC (2) 428

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Identity of handwriting or impression Where the court has to decide upon the
identity of the handwriting of a certain person or the identity of a certain person or the
identity of a certain person’s finger impression, the court may receive the evidence of a
person who has acquired an expertise on the matter.

S.47 of the Indian Evidence Act exclusively deals with the opinion as to the handwriting.
The explanation further elaborates the circumstances under which a person is said to
have known the disputed handwriting. Under this section a person who is deposing the
evidence need not be a handwriting expert. Indeed, the knowledge the general character
of any person’s writing which a witness has acquired incidentally and unintentionally,
under no circumstance of bias or suspicion, is far more satisfactory than the most
elaborate comparison of even an experienced person. One can get acquainted with
others handwriting in many ways. The former might have seen the latter writing a
particular handwriting. He might be receiving letter from the latter regularly. A superior
officer might have seen his subordinate’s writing on several occasions and vice versa.
But, the evidence given by a person who has insufficient familiarity should be discarded.
Indian Evidence Act insists that documents either be proved by primary evidence or by
secondary evidence.
S.67 of the Indian Evidence Act prescribes the mode of proving the signature in a
document. However, the opinion as to handwriting is admissible only if the condition laid
down in S. 47 is fulfilled, that is the witness is established to have been acquainted with
the writing of the particular person in one of the modes enumerated in this section.
However, the opinion of an expert is relevant when the Court has to form an opinion on
a point of science or art. At times expert opinion differs on proven or admitted facts. But
when the facts are not admitted the Court will have first to come to a conclusion on the
evidence as to what facts have been proved and then to apply to such facts the various
expert opinions which have been offered. The opinion of an expert in handwriting should
be received with great caution and should not be relied on unless corroborated.

But no such corroboration is need in the case of finger prints. The evidence of finger
print expert is not substantive evidence. It can only be used to corroborate some other
evidence of substantive nature which is already there on record. The killing was by
shooting while the victim was in his car. There was no evidence that the accused had
any need to touch the car.

Of course, an expert can always refresh his memory by referring to the text books. A
doctor can refer to medical books, a value to the price lists, a foreign lawyer to legal
codes, texts and other journals. At one-time expert evidence is limited to medical
doctors, engineers, architects, stockbrokers etc.

Now the science and technology have reached to such heights no more the expert
evidence is confined to the above mentioned but also to the scientists in each field. As
far as criminal law is concerned ballistic experts, forensic experts, scientists who decide
the legitimacy by DNA tests, chemical examiners, psychiatrists, radiologists and even
track-dogs are playing a vital role in investigation of crimes and their evidence is
admissible in the court of law.

The expert opinion is not confined to handwriting alone. The opinions in relation to
customs are also admissible according to S. 48 of Indian Evidence Act. Section 13 and
S.32 (4) also mentions about custom. S.13 deals with all rights and customs, public,
general and private and refers to specific facts which may be given in evidence. The
latter is a hearsay evidence where a second hand opinion can be admissible in the Court
of law where the person who opined cannot be brought before the Court (because of
death or inability) upon the question of the existence of any public right or custom or
matter of public or general interest made ante litem motam. But S.48 deals with the

8
evidence of a living witness, who stood before the Court sworn to depose and subject to
cross examination.

Not only custom under this section opinion regarding usage is also admissible. The only
condition Courts insist is that while deposing about custom it is to be established by
unambiguous evidence. S.49 is about the opinions regarding tenets and S.50 is about
the opinion on relationships. S.32 (5) of Indian Evidence Act also is about the
admissibility of opinions in relation to relationships.

The opinion of an expert witness is admissible in evidence not only when it rests on the
personal observation and inquiry but also when it is founded on the cases as proved by
other witness at the trial.

Other Subject Matters of Expert Opinion

Opinion of the medical expert: In Parhlad v. State of Haryana5, it was held that “The
opinion of the Medical Officer is to assist the court as he is not a witness of fact and the
evidence given by the Medical Officer is really of an advisory character and not binding
on the witness of fact". In State of Haryana v. Bhagirath 6, it was held that “the court is
not bound by the opinion of the medical expert, but has to form its own opinion". In Anil
Rai v. State of Bihar7, it was held that “where medical evidence shows that there are two
possibilities, the one consistent with direct evidence should be accepted".

Opinion of handwriting expert: In Ram Narain v. State of U.P 8., it was held that “if
after comparison of disputed and admitted writings by the court itself, it is considered
safe to accept the opinion of the expert, then the conclusion so arrived at cannot be
attacked on special leave merely on the ground that comparison of handwriting is
generally considered hazardous and inconclusive. It should be noted that the evidence of
experts is not final or conclusive. The court may satisfy itself before relying on the expert
opinion". In Murari Lal v. State of M.P 9., it was held that “there is no any rule of
prudence which has crystallized into a rule of law that opinion evidence of a handwriting
expert must never be acted upon unless substantially corroborated. But having due
regard to the imperfect nature of the science of identification of handwriting, the
approach should be one of caution. Reasons for the opinion must be carefully probed and
examined". In Magan Bihari Lal v. State of Punjab 10, it was held that “Expert’s evidence
as to handwriting being opinion evidence can rarely if ever, take the place of substantive
evidence and before acting on such evidence, it would be desirable to consider whether
it is corroborated either by ‘direct evidence’ or by ‘circumstantial evidence’. “The
evidence of a handwriting expert like any other evidence is to be appreciated, scrutinized
in accordance with the law and accepted only if it is found trustworthy".

Opinion of authors: In State of M.P. v. Sanjay Rai11, it was held that “in substance,
though such views may have a persuasive value yet they cannot always be considered to
be authoritatively binding, even to dispense with the actual proof otherwise reasonably
required of the guilt of the accused in a given case. Such opinions cannot be elevated to
or placed on a higher pedestal than the opinion of an expert examined in a court and the
weight ordinarily to which it may be entitled to or deserves to be given".

Ballistic expert: "'Ballistics' is that part of forensic science which deals with the study
of the motion of projectiles. A projectile is known as a body projected by force mostly
5
CRIMINAL APPEAL NO. 983 OF 2015
6
Crl.A. No.-000234-000234 / 1992
7
CASE NO.: Appeal (crl.) 389 of 1998
8
1973 AIR 2200
9
1980 AIR 531, 1980 SCR (2) 249
10
1965 AIR 444, 1964 SCR (7) 676
11
Appeal (crl.) 641 of 1998

9
from firearms, especially through the air. The science of projectile thus involves the
study of firearms". 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.
As far as evidentiary value is concerned, in Arava Nagreddi v. State 12, it was held that
“the services of a ballistics expert is necessary and valuable in cases where firearms are
recovered either at the scene of the crime or from the accused".

In Ghurey Lal v.State of U.P 13., where the question arose about the complicity of the
accused in the murder of the deceased, the Supreme Court relied on the ballistic report
to hold that the two shots allegedly fired causing the death of one and injuries to
another were not from a single firearm, as alleged by the prosecution. The Court opined,
"the medical evidence coupled with the ‘Ballistic Expert’ report revealed the existence of
two fires from two weapons and as such was inconsistent with the prosecution story. The
Ballistic Expert is a disinterested, independent witness who has technical knowledge and
experience. It follows that the trial judge was fully justified in placing reliance on his
report".

Evidence of tracking/sniffer dogs: Trained dogs are used for the 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 under section 45 of the Indian Evidence Act,
1872. In Abdul Razak v. State of Maharashtra 14, 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
the dog which is an intelligent animal with many thought processes similar to the
thought processes of human beings. Whenever the thought process is involved there is
the 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.
Footprints: Footprint Identification is reliable. Our bare feet contain friction ridge
patterns that are unique to each individual. Hence, the fingerprints and footprints found
at the scene of offense can be used to help identify the offender. They can be used for
identifying the victim as well. The validity of the scientific method used for fingerprinting
and the Courts accept foot printing. In Pritam Singh vs. State of Punjab 15, disputed
footprints in blood near a dead body and going towards the bathroom were compared
with those of the accused taken in printer’s ink.

The expert gave evidence giving points of nine similarities in respect of the right foot and
ten in respect of the left foot: And three dissimilarities only in each case and explained
the dissimilarities with reference to the different densities of blood and ink. It was held
that the comparison stood the test well, and under the circumstances, these foot
impressions in blood near the place of the incident were proved to be those of the
accused.

Deoxyribonucleic Analysis (DNA): Each A person's genetic makeup contains DNA.

This differs from individual to individual. DNA can be obtained through blood, saliva,
semen, or hair. This helps in identifying a person. If a drop of blood or a strand of hair is
found at a crime scene, it can be compared to a person's known DNA to see if there is a
match, thereby linking the person to the crime.

12
1960 AIR 862, 1960 SCR (3) 311
13
CRIMINAL APPEAL NO.155 OF 2006
14
1970 AIR 283, 1970 SCR (1) 551
15
1950 AIR 169, 1950 SCR 453

10
An expert witness can give an opinion about the likelihood that the blood that was found
at the crime scene came from the individual whose sample was compared. The DNA
analysis is also used to establish paternity. Experts believe that the ability to link the
culprit to the crime scene through his DNA prints is unquestionable as unlike
conventional fingerprints that can be surgically altered, DNA is found in every tissue, and
no known chemical intervention can change it.

Lie Detector: Generally, Courts refuse to admit the results of a polygraph test as
evidence. The polygraph measures a person's unconscious physiological responses, such
as breathing, heart rate, and galvanic skin response while the person is being
questioned.

The underlying theory is that stress occurs when a person lies and that this stress is
measured by changes in the person's physiological responses. There is a concern that an
individual can conceal stress when he or she is lying. Polygraph tests are also considered
unreliable because it is not possible to tell whether the test itself or causes the stress
that is measured during the test by a lie

What is the Evidentiary Value of an Expert Opinion?

The data given by the expert are relevant and admissible. If any oral evidence
contradicts the data/ report; it will not make the data evidence obsolete. But, as per
section 46, in case any fact is in contradiction to the opinion of the expert, that fact
becomes relevant. If the opinion of the expert is relevant, the contradictory fact
becomes relevant even though it was not relevant as such. The value of expert opinion
depends upon the facts on which he is based and the competency of such expert in
forming a reliable opinion.

However, the personal appearance of the expert in the court can be excused unless the
court expressly asks him to appear in person. In such a case, where the expert is
excused, he can send any responsible officer who is well versed with the facts of the
case and the report and can address the court with the same.

If a judge relies upon the opinion of the expert only and not on the facts and the
testimony of ordinary witnesses to give judgement, then is the weakness of the case.
This is because even if a person is an expert in his field, he cannot be termed as a direct
witness and cannot give a statement on the facts of the case. He is just giving an
opinion as per the evidences given to him and cannot draw a conclusion regarding the
guilt of the accused in all the cases.
The evidence given by the expert is just an opinion and is not a fact-based testimony
and thus are given slight value. This is the reason that eye-witnesses or other factual
witnesses are given a priority over the expert’s opinion. This is because opinion evidence
cannot supersede substantive evidence. 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 the question put to him.

However, the evidentiary value of an expert’s opinion depends upon the facts and
circumstances. For example, if there is a dispute as to who is the biological parent of a
child, the DNA report of the Medical expert is of great importance. If the expert says that
the DNA of the child or parents’ matches, then it is a relevant fact in deciding the case.

But in case if a handwriting expert says that the signatures matches or not matches with
the person; this fact does not hold much value because there can be a possibility that
the person has practiced a lot to copy the signature. But on the other hand, DNA cannot
be copied or changed.

11
Privy council once observed that ‘there cannot be any more unsatisfactory evidence than
that of an expert.” In the case of Emperor v. Kudrat 16, the court held that when the
expert is giving an opinion upon the age by observing only the height, weight and tooth;
it cannot be relied upon.

The court must be satisfied that the accused is guilty. The court cannot hold him guilty
mere because an expert has said that in his opinion, the person is guilty. The court
needs to look into the evidence along with the opinion of the expert before giving any
judgement or order.

Test of Reliability: The Act only provides about the relevancy of expert opinion but
gives no guidance as to its value. The value of expert opinion has to be viewed in the
light of many adverse factors. Firstly, there is the danger of error or deliberate
falsehood. “These privileged persons might be half blind, incompetent or even corrupt.”

Secondly, his evidence is after all opinion and “human judgment is fallible. Human
knowledge is limited and imperfect.” No man ever mastered all the knowledge on any of
the sciences. Thirdly, it must be borne in mind that an expert witness, however impartial
he may wish to be, is likely to be unconsciously prejudiced in favour of the side which
calls him.”

The reliability of such evidence has, therefore, to be tested in the same way in which any
other piece of evidence is tested. The court should, therefore, call upon the expert to
explain the reasons for his opinion and then form its own opinion as to whether or not
the expert opinion is satisfactory.

The opinion of an expert is not decisive of the matter. The story alleged by the eye-
witness can be verified by medical evidence. But even medical evidence is not decisive of
any matter. In case of conflict between eye-evidence and medical evidence, the court
will have to go by the evidence which inspires more confidence. The test is whether the
eye witness account can be considered trustworthy when the so-called eye witness had
not seen the incident. The opinion of the medical officer is to assist the court as he is
not a witness of fact and the evidence given by him is really of an advisory character and
not generally, annihilates of the witness of fact.

The value of technical evidence, like that of medical evidence, also depends upon the
circumstances of the case. There is no rule of law that it is unsafe to base a conviction
on the uncorroborated testimony of a finger-print expert but even so the court should
not take his opinion for granted. Where expert opinion is relevant expert has to be heard
as a first and foremost requirement. The expert should be competent in his field. He is
not to act as a judge or jury. He is not a witness of fact. His evidence is of advisory
character. His credibility depends on reasons stated in support of his conclusions and
data and material furnished which formed the basis for the same.

Corroboration not Necessary: Corroboration may not be invariably insisted upon. But,
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.

The Apex Court, after reviewing earlier decisions on the point, has held that: “We are
firmly of the opinion that there is no rule of law, nor any rule of prudence which has
crystallized into a rule of law, that the opinion evidence of a handwriting expert must

16
AIR 1939 All 708

12
never be acted upon, unless substantially corroborated. But, having due regard to the
imperfect nature of the science of identification of handwriting, the approach should be
one of caution. Reasons for the opinion must be carefully probed and examined. All other
relevant evidence must be considered. In appropriate cases, corroboration must be
sought. In cases where the reasons for the opinion are convincing and there is no
reliable evidence throwing a doubt, an uncorroborated testimony of a handwriting expert
may be accepted.”

Various Rules for Expert Opinion

 The first rule is of expert educational background. That means even the doctor is
examined and is subjected to scrutiny and cross-examination. And if his opinion
and observations contained in his statement are supported, then the report can
be looked at otherwise not. So, even the examination of a doctor becomes
essential.

 The second test is of the exhibits and the illustrations that the expert brings with
him or makes. He should not base his opinion on the basis of memory and
abbreviated notes. But he should have the opinion of such a level that even if
there is expert evidence of the opposite party, then also, he is able to defend his
stand.

 The third test is of readiness to detail his techniques and procedures. An expert
should not be of skillful nature to outlining the procedures that he has followed.
And he should be so confident that no qualms can say that he has skipped
procedures in reaching his own conclusions.

 And the conclusive test is that an Expert is conservative and is cautious. It is a

well-settled principle that the opinion of an Expert should be taken with great
caution, and moreover, the decision should not be based simply on the basis of
the opinion of an Expert, without a substantial corroboration, as it is unsafe
otherwise. The opinion of an Expert by its very nature, weak, and infirm and in
itself cannot of itself form the basis for a conviction and should be taken with
great caution.

It is their duty of court not to occupy the role of an expert by themselves and S.C. has
always deprecated the courts to take the role of an expert. But before applying the
opinion of an expert, the court has to see to apply its own admitted or proved things and
compare them with the disputed ones. And they have to verify the premises of the
expert in one case and value the opinion in the other case.

When the direct evidence is well corroborated by the circumstantial evidence and
conforms to probabilities, and there is no reason why it should not be accepted. The
mere fact that the expert has come to a different conclusion on a particular point would
not render that part of his story open to doubt, especially when the data on which the
expert has come to that conclusion is insufficient. The data on which the expert weighs
must weigh with the Court, and the opinion of the expert must be judged in the light
thereof.

Recent Case on Expert Evidence

Pattu Rajan Vs State of Tamil Nadu
Facts:

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  The appellant/accused was convicted by the Madras High Court for abduction and
murder of Santhkumar, husband of the complainant/PW1.
 The accused showed keen intent of marrying PW1 even though she was married.
 On 01/10/2001 the accused abducted the victim and his wife and was addressed
in another case which the current bench did not delve into.
 On 18/10/2001 the victim and PW1 were abducted by the henchmen of the
accused and PW1 was taken to Tiruchirappalli by the accused while the henchmen
retained her husband.
 On 24/10/2001 the victim and his wife were taken to DCP’s office to withdraw the
complaint regarding abduction earlier that month and made them sign a few
blank papers.
 On 26/10/2001 the victim and complainant were taken to accused 1 and there
the accused ordered his henchmen to kill Santhkumar.
 On 31/10/2001 a dead body of male was found near the tiger-chola forest area.
 PW1 lodged the first FIR on 20/11/2001.

Issues Involved:
If the conviction of the accused (appellant) by the High Court of T.N. legally valid?

Contentions by Appellant: 
The counsel for appellants contended that:
 The High Court and the trial court have merely proceeded on assumptions and
conjectures, and the motive for commission of the offence has not been proved.
 The proceedings should stand vitiated since the first statement of current case is
just an extension of the complaint filed on 01/10/2001.
 The body had been identified in absence of a DNA test and only on the basis of a
superimposition test which was improper.
 The last seen circumstance evidence by the complainant was never put to the
accused while examining them.
 The abduction on 01/10/2001 and murder on 26/10/2001 were different cases
altogether and with a quick overview of the unfolding of the incidents one can
easily understand that the current complaint is not just a statement of the one
dealing with abduction.
 No continuity of action can be gathered from the sequence of events.

Judgement:
 The Supreme Court held that even though both the cases had the same motive of
getting PW1 to marry the accused but were different altogether and were to be
treated differently.
 The court rejected the appellants claim that the High court and trial court had
proceeded merely on assumptions and said that proper evaluation of records had
been done by both of them.
 The court held that the evidence on record fully proved the case of the
prosecution.

Ratio Decidendi:
 The conclusion reached by the courts was based on proper examination of facts
and testimonies provided by the witnesses on both sides.
 The belongings of the deceased recovered from accused no 6 after his confession
was identified positively by PW1 and her family as belonging to the deceased.
 The doctrine of last seen shifts the burden of proof onto the accused, placing on
him the onus to explain how the incident occurred and what happened to the
victim who was last seen with him and thus the appellant had the burden to
prove innocence.

14
Conclusion
To sum up it is chiefly on question of science or trade (where there often is a difficulty,
and occasionally, an impossibility, of obtaining more direct and positive evidence) that
person of peculiar skill on the subject (sometimes called experts), are allowed to give
their opinions in evidence as well as testify to facts. Thus the opinions of medical men
are constantly admitted in matters related to time of death, age of the parties, cause of
death, possibility of the weapons used, disease, injury, sanity and insanity of the parties
so on and so forth.

Now-a-days, the DNA test is often used in fixing the paternity of the child in family law
related cases such as maintenance and legitimacy of the child. It is in short, a general
rule the opinion of a person who has special skill in that particular field shall be
admissible in the Court of law. There may be exceptions to this rule, in spite of it when
there is dearth of direct evidence and in certain cases, to corroborate the already
existing evidence, the expert opinion is sought.

It is now a well-settled law that expert opinion must always be received with caution.
There is an abundance of precedential authority which holds that it is unsafe to base a
conviction solely on expert opinion without substantial corroboration. This rule has been
universally acted upon and it has almost become a rule of law. 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.

Where expert opinion is relevant expert has to be heard as a first and foremost
requirement. The expert should be competent in his field. He is not to act as a judge or
jury. He is not a witness of fact. His evidence is of advisory character. His credibility
depends on reasons stated in support of his conclusions and data and material furnished
which formed the basis for the same.

15
References
 http://www.legalservicesindia.com/article/article/experts-opinion-and-its-
admissibility-and-relevancy-law-of-evidence-1583-1.html
 http://www.mondaq.com/india/x/247286/Civil+Law/
Relevancy+Of+Expert+Opinion+Before+Court
 http://shodhganga.inflibnet.ac.in/bitstream/10603/6648/9/09_chapter%201.pdf
 http://www.vakilno1.com/legalviews/role-of-experts-in-litigations.html
 Ratanlal Ranchhoddas, Dhirajlal Keshavlal Thakore, The Law of Evidence,
(LexisNexis Butterworths Wadhwa Nagpur, New Delhi, 21st edn., Reprint 2009).
 Dr. Avtar Singh, Principles of the Law of Evidence, (Central Law Publications,
Allahabad, 21st edn., 2014)

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