EXPERT EVIDENCE

EXPERT OPINION OR EXPERT EVIDENCE [SECTION 45 TO 51]:

 Section 45 to 51 provide relevancy of opinion of third persons, which is commonly
called in our day-to-day practice as expert’s opinion.
 These provisions are exceptional in nature to the general rule that evidence is to be
given of the facts only which are within the knowledge of a witness.
 The exception is based on the principle that the court can’t form opinion on the
matters, which are technically complicated and professionally sophisticated, without
assistance of the persons who have acquired special knowledge and skill on those
matters.
 Evidence of an expert is not a substantive piece of evidence.
 The courts do not consider it conclusive.
 Without independent and reliable corroboration it may have no value in the eye of
law.
 Once the court accepts an opinion of an expert, it ceases to be the opinion of the expert
and becomes the opinion of the court.
 In the case of S. Gopal Reddy v. State of AP (1996), it was stated that it is not safe to
rely upon this type of evidence without seeking independent and reliable
corroboration.

The provisions that deal with expert opinion are

Sections 45 to 51 and Section 73 of the Indian
Evidence Act, 1872.

Section 45 provides that the opinions of third persons

are relevant if such third person is an expert who is
consulted by the Court on a point of such expertise.
Section 45A, which was inserted by the Information
Technology (Amendment) Act, 2008, regards an
Examiner of Electronic Evidence as an expert and
makes his opinion relevant. Section 46 makes such
facts relevant which either support or reject the
opinion of the expert.

Sections 47 and 47A pertain to opinions regarding the

handwriting or signature and electronic signature of a
person. Section 47A was inserted by the Information
 Technology Act, 2000. Also, Section 73 empowers
the Court to compel a person to furnish a sample
handwriting or signature, and also fingerprints for the
purpose of comparison and ascertainment.

Sections 48 and 49 provide that the opinions as to the

existence of any right or custom and of any usages or
tenets are relevant when such opinion is given by a
person who would likely be aware of its existence or
have special knowledge about the same. The opinion
of a person as to the relationship between two other
persons is also relevant, if he has special means of
gaining such knowledge, under Section 50.

Section 51 makes the grounds on which such opinion is given as

relevant.
 Section 45 – Definition of Expert -
 ‘Expert’ means a person who has special knowledge, skill or experience in any
of the following –
a. Foreign law
b. Science
c. Art
d. Handwriting –
 The expert can compare disputed handwriting with the admitted
handwriting and give his opinion whether one person is the
author of both the handwriting.
  Different modes of proving handwriting –
i. A person who wrote the document can prove it (Section
47);
ii. A person who saw someone writing or signing a
document can prove it (Section 47);
iii. A person who is acquainted with the handwriting by
receiving the documents purported to have been written
by the party in reply to his communication or in ordinary
course of business, can prove the documents (Section
47);
iv. The court can form opinion by comparing disputed
handwriting with the admitted handwriting (Section 73);
v. The person against whom the document is tendered can
admit the handwriting (Section 21).
e. Finger impression - The court will not take opinion of fingerprint expert
as conclusive proof but must examine his evidence in the light of
surrounding circumstances in order to satisfy itself about the guilt of the
accused in a criminal case.

Abdul Razak v. State of Maharashtra (1970)

Question arises before the Supreme Court whether the evidence of dog tracking is admissible
in evidence and if so, whether this evidence will be treated at par with the evidence of
scientific experts?
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 expert opinion is only corroborative evidence.

 It must not be the sole basis for conclusive proof.
 The expert witness must be subjected to cross-examination in the court.
 Mere submission of opinion by an expert through any certificate or any other
document is not sufficient.

 Admissibility of Expert Opinion –

  Expert opinion becomes admissible only when the expert is examined as a
witness in the court.
 The report of an expert is not admissible unless the expert gives reasons for
forming the opinion and his evidence is tested by cross-examination by the
adverse party.
 But in order to curtail the delay and expenses involved in securing assistance
of experts, the law has dispensed with examination of some scientific experts.

 Section 48 - Relevancy of opinion as to existence of custom or right - When the court

has to form an opinion as to the existence of any general custom or right, the opinion
of the persons who are in a position to know about its existence, are relevant.
 Section 49 - Relevance of opinion as to usages, tenets, etc. - usages include any
practice, tradition or custom of trade, business, agriculture, family etc. Tenets include
opinion, principle or doctrine held or maintained by a body of men, it applies to
religion, politics science etc.
 Section 50 - Relevancy of opinions as to relationship -The opinion of an expert in
relevant in case when he is a member of the family or has special means of knowledge
as to such relationship. The opinion or belief of a person especially competent in this
respect as expressed by his conduct in outward behavior is relevant.
 Section 51 - Relevancy of grounds of opinion - Whenever the opinion of any living
person is relevant, the grounds on which such opinion is based, are also relevant.
Opinion is no evidence without assigning reasons for such opinion. The correctness of
the opinion can be better estimated if the reasons upon which it is based are known. If
the reasons are frivolous or inconclusive the opinion is worth nothing.

 Narco Analysis Test –

 In the Narco Analysis Test, the subject's inhibitions are lowered by interfering
with his nervous system at the molecular level.
 In India the narco analysis test was done by a team comprising of an
anesthesiologist, a psychiatrist, a clinical or forensic psychologist, an audio-
videographer, and supporting nursing staff.
  On May 5, 2010 the Supreme Court of India held that narco, polygraph
and brain mapping test violate article 20(3) of the Constitution – Smt. Selvi
v. State of Karnataka (2010)

 Polygraph Test –
 It is an examination, which is based on an assumption that there is an
interaction between the mind and body and is conducted by various
components or the sensors of a polygraph machine, which are attached to the
body of the person who is interrogated by the expert.
 The subject is questioned and the reactions are measured.
 A baseline is established by asking questions whose answers the investigators
know. Deviation from the baseline is taken as a sign of lie.

Constitutionality

The constitutionality of expert evidence was challenged as against Article

20(3) and Article 21 of the Constitution of India, 1950. The basic contention
was that by compelling (which could go to the degree of application of physical
force) a person to give sample of his handwriting or signature, or forcing him to
go through Narco-analysis, Polygraph Test and Brain Mapping, the Court was
compelling a person to self incriminate, which is in violation of Article 20(3) of
the Constitution. This whole process was also in violation of a person’s right to
life and liberty under Article 21 of the Constitution. Hence, the constitutional
validity of the whole process was challenged time and again in the Court.

These questions were addressed by an eleven-judge bench of the Supreme

Court in the case of State of Bombay v. Kathi Kalu Oghad[5], where the
question was regarding fingerprints and handwriting samples. The Court upheld
that compelling the accused to provide fingerprint and handwriting samples
under Section 73 for the purpose of expert opinion was not hit Article 20(3),
and hence was constitutional. It was discussed in this case that giving samples
was not equivalent to being a witness against themselves, as the samples were
not evidences per se. Rather, the report made by the expert would be the
evidence in this case, and the expert would act as a witness against the
accused. Moreover, this case narrowed down the scope of protection
under Article 20(3) by stating that the clause “to be a witness” means imparting
knowledge about facts of which the person has personal knowledge through oral
or written statements, whereas giving specimens of fingerprints or handwriting
do not fall under this, as these have an intrinsic and unchangeable nature that
is verifiable. So, here, the distinction between “physical” and “testimonial”
evidence was maintained.

In another case of Goutam Kundu v. State of West Bengal [6], where there was
a question as to paternity, the Supreme Court held that no person can be
compelled to give blood sample and any refusal cannot be interpreted
adversely.

Then, in the case of Selvi v. State of Karnataka[7], the Supreme Court was

again faced with the validity of three specific and extensively used investigation
methods of Narco-analysis, Polygraph Tests and Brain Mapping. In Narco-
analysis, a truth serum is administered to the subject to ensure that he speaks
the truth, whether he is willing or not. In the Polygraph Test and the Brain
Mapping methods, the physiological responses to various questions are
analyzed to decide whether the subject is speaking the truth or not. In this
case, the Supreme Court declared all three of these methods as
unconstitutional. The Apex Court emphasized on the distinction between
physical privacy and mental privacy. Through these methods, the mental
privacy of an accused was encroached upon, hence infringing not only Article
20(3) of the Constitution, but also Article 21. Hence these methods were
declared unconstitutional.
Through the daily advancement in science and technology, there are no ends to
the methods that are and can be employed in any criminal investigation. With
the emergence of new methods, a question is casted upon the sanctity of a
person’s privacy and on the principle against self incrimination. Every new
method poses a question as to what can and what cannot be permitted to be
practiced by the legal investigators so as to achieve the end of justice, while
also preserving the fundamental rights of the individual. It seems that the
Supreme Court must analyze every new method on the basic guidelines
provided in the above judgments.

Once the Court concludes that the expert opinion is admissible, as the expert is
qualified enough to be legally considered as an expert, the method used was
constitutional, and the procedure through which it was administered was not
flawed, then it becomes admissible and the Court can rely on it. Now, the next
question before the Court of law is regarding its evidentiary value, that is, till
what extent can the Court rely on the opinion of the expert. This question is
elaborated upon in the next part of this research paper.

Evidentiary Value

Expert opinion is a rather weak type of evidence and the Courts do not
generally consider it as offering conclusive proof, and therefore do not rely
solely upon it without seeking independent and reliable corroboration.[8] It is
well settled law that the opinion of a handwriting expert cannot be considered
as conclusive proof unless substantiated by corroborating evidence.[9]

In the case of Ram Chandra v.  State of U.P.[10], it was held by the Supreme

Court that it would be unsafe to treat the opinion of the handwriting expert as
sufficient basis for conviction, but it can be relied upon when supported by other
items of internal and external evidence. This was again reiterated in Ishwari
Prasad Misra  v. Mohd. Isa[11], because expert evidence is, after all, only
opinion evidence. Hence, it was time and again upheld by the Apex Court that
expert evidence, being only opinion evidence, cannot be substantive and
conclusive evidence, and cannot be the sole basis of conviction, but it can be
relied upon if it is corroborated by other evidence, whether direct or
circumstantial.[12] Further, in the case of Alamgir v. NCT of Delhi[13], it was
held that though there was no rule of law or prudence that states that opinion
evidence must never be acted upon unless substantially corroborated, due
caution and care must be exercised and it must be accepted after probe and
examination.

In Ram Narain v. State of Uttar Pradesh[14], the kidnapper was convicted solely

on the basis of handwriting expert’s opinion by the lower courts and the
Supreme Court upheld the conviction while stating that if after comparison of
the disputed and admitted writings by the Court itself, it is considered safe to
accept the opinion of expert, then the conclusion so arrived at cannot be
attacked on special leave merely on the ground that expert opinion is generally
considered inconclusive.

In the case of Baso Prasad and Others v. State of Bihar[15], it was held that
even though expert opinion is relevant, appreciation of evidence is the Court’s
job and hence, it is for the Court to decide which expert opinion to take into
consideration in cases of contradicting medical and ballistic opinion.

In Murari Lal v. State of Madhya Pradesh[16], the Supreme Court has laid down
the following rules on which the reliability of such opinion has to be tested:

1. There is no rule of law, not any rule of discreet which has crystallized
into a rule of law, that the opinion evidence of an expert must never be
acted upon, unless substantially corroborated.
2. But, having due regard to the various adverse factors operating in case
of expert opinion, the approach should be on caution. Reasons for the
opinion must be carefully probed and examined thereto. All other
relevant evidence must be considered.
 3. In appropriate cases where corroboration must be sought. In cases
where the reasons for the opinion are convincing and there is no
reliable evidence throwing a doubt, the uncorroborated testimony of an
expert may be accepted.
4. The hazard in accepting the expert opinion, is not because experts, in
general, are unreliable witnesses, the quality of credibility or
incredibility being one which an expert may go wrong because of some
defect of perception, or honest mistake conclusion. The more
developed and more perfect a science, less is the chance of an
incorrect opinion.

The opinion of an expert witness is not considered to be conclusive in nature

because there is the danger of error or deliberate falsehood[17]; human
judgment is fallible and human knowledge is limited and imperfect[18]; and
also because an expert witness, however impartial he may wish to be, is likely
to be unconsciously prejudiced in favour of the side which calls him[19].

Evidence of an expert is merely of an advisory character.[20] So, usually expert

opinion cannot be the sole basis for conviction and other corroborating evidence
must be relied upon, but a conviction cannot be set aside solely on the basis
that generally expert evidence is not considered as a conclusive proof. Thus, the
Courts must analyze the circumstances of each case, and take decisions from a
case to case basis.