THE INDIAN EVIDENCE ACT, 1872

Opinions of third persons when relevant

 45. Opinions of experts. –– When the Court has to form an opinion upon a
point of foreign law or of science, or art, or as to identity of handwriting, [or
finger impressions], the opinions upon that point of persons specially skilled in
such foreign law, science or art, [or in questions as to 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.
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Opinions of third persons when relevant

The opinions of experts upon the question whether the symptoms exhibited by A
commonly 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.
The opinions of experts on the question whether the two documents were
written by the same person or by different persons, are relevant.
 Opinions of third persons when relevant

 An expert is a person who has acquired special knowledge, skill, or experience

in any Foreign Law, Science, Art, Trade or Profession," he may have acquired
such knowledge by practice, observation or careful studies'. His opinion is
known as Expert opinion.
 When the Court has to decide the matter of any Foreign Law Science, Art,
Identity of handwriting or finger impressions, the Court has to take opinion of
expert on particular subject. Reason for taking opinion of third person is that
the Court may not have the knowledge of all these matters.
 Illustration: 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'. The Opinions of Expert on the question whether the two
documents were written by the same person or by different persons are
relevant under Section 45 of LEA.
 Opinions of third persons when relevant

 Whether a person is expert or not, competent or not to give expert opinion

will be decided by the Court by taking into consideration his qualifications,
experience, training etc., it is not necessary that he must hold a degree or
diploma.
 The opinion given by expert is not a conclusive proof, it can be disproved by
taking the opinion of another expert. Before taking expert opinion the Court
must satisfy that expert opinion is required or not in a particular case.
 The Paternity or Maternity can be established by DNA Test and this is
relevant evidence in Sec. 45.
 Opinions of third persons when relevant

Opinion for foreign law (Section 38 r/w Section 45)

 When there is a law prevailing in any foreign country which needs to be
considered for giving judgement in any case, the court needs an expert who is
well versed with that law.
 Otherwise, the court can take opinion from a law-book which contains the
answer regarding any foreign law. These books must be printed or published
under the authority of the government of that country. Other reports of the
ruling of the courts can also be taken as relevant which are given in such
books of foreign law.
 Foreign law in India is always considered as a question of fact . There have
been cases where the court has interpreted personal laws as Indian laws and
thus are the laws of the land. Therefore, the court does not require a person
to interpret the law as the courts can do that task on their own.
 Opinions of third persons when relevant

Opinion for fingerprint

 Generally, finger impression expert’s opinion is given more value because:
The fingerprints of any person remain the same from their birth till death, and
No two individuals are ever found to have the same finger impression. A
person, who is a fingerprint expert, is called to match two or more
fingerprints, than the opinion of such an expert is relevant and admissible in
the court.

 Footprint studies are gaining importance nowadays but the courts have been
reluctant to accept that as a piece of evidence.
 Opinions of third persons when relevant

Opinion for Science or Art

 The words ‘Science and Art’ are to be broadly constructed. The term ‘science’ is not limited
to higher sciences and the term ‘art’ is not limited to fine arts, but having its original senses
of handicraft, trade, profession and skill in work. To construe that if any expertise comes
under the head of ‘art’ or ‘science’; the following tests can be applied
 Is the subject matter of the injury such that inexperienced people are not capable of
forming a correct judgement without the assistance of experts?
 Is the character of a science or art as such that it requires a course or a study to obtain a
competent knowledge or skill.
 Science and Art signify the activities which include the fields which require special
knowledge or expertise form an opinion. Before designating that a person is an expert, it
needs to be checked that the field or the matter on which we are seeking the opinion
should not be something which can be easily understood by layman or court without any
special knowledge or skill. The scientific question involved is assumed to be not within the
court’s knowledge. Thus cases, where the science involved, is highly specialized and
perhaps even esoteric, the central role of an expert cannot be disputed.
 Opinions of third persons when relevant

Opinion of Medical Expert

 In many cases, the opinion of medical experts is required. Especially in
criminal cases, the medical examination of accused and victim is necessary.
When in a case, the court requires some opinion which involves medical
technicalities, they ask medical officers.
 Opinions of a medical officer can be used to prove:
• The Physical condition of the person, Age of a person, Cause of death of a
person
• Nature and effect of the disease or injuries on body or mind
• Manner or instrument by which such injuries were caused
• Time at which the injury or wounds have been caused.
• Whether the injury or wounds are fatal in nature
• Cause, symptoms and peculiarities of the disease and whether it is likely
to cause death
• Probable future consequences of an injury etc. Ex rape
 Opinions of third persons when relevant

Opinion of Ballistic Expert

 Ballistic experts, also known as firearms expert are people who are experts in
the study of projectiles and firearms. Their help is taken is cases say where
guns are involved. A ballistics 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.
 It must be noted that the opinion of the ballistics expert can be taken into
consideration only when he himself has given the report. In the case where
the expert gives opinion only by looking at the picture of the wound, the
court denied relying upon such opinion.
 Opinions of third persons when relevant

Evidentary Value of Expert Opinion

 Law Society of India V Fertilizers & Chemicals Travancore Ltd., AIR, 1994 KER,
308, Kerala High Court said if the Court finds that the conclusions reached by
the experts are un-satisfactory, the Court is not bound to act on the experts
opinion. The Court need not to follow blindly the opinion of the experts.
 Mahmood V State of U.P., AIR, 1976 S.C., 69. In this case Supreme Court said
that 'it would be highly unsafe to convict a person on the basis of expert
opinion' alone.
 Ram Narain V State of Uttar Pradesh, AIR, 1973 S.C. 2000, in this case
Supreme Court upheld the conviction of the accused on a charge of
kidnapping on the basis of the evidence of an handwriting expert states that
the handwriting of ransom demand letter is the handwriting of accused.
 Opinions of third persons when relevant

 In S.K.Bala Vs. State of Orissa, 1994 Cr.L.J. Orissa 46, the allegation against
the accused is that he had kidnapped a minor girl and married her. Medical
evidence showed that the age of girl is between 17 and 18 and her school
certificate disclosed her to be above 18. It was held that the medical evidence
cannot be regarded as conclusive proof of age and accused is entitled for
benefit of doubt.
 THE INDIAN EVIDENCE ACT, 1872
Opinions of third persons when relevant

45A. Opinion of Examiner of Electronic Evidence.— When in a proceeding, the

court has to form an opinion on any matter relating to any information
transmitted or stored in any computer resource or any other electronic or
digital form, the opinion of the Examiner of Electronic Evidence referred to in
section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant
fact.
Explanation.—For the purposes of this section, an Examiner of Electronic
Evidence shall be an expert.]
 THE INDIAN EVIDENCE ACT, 1872
Opinions of third persons when relevant

46. Facts bearing upon opinions of experts. –– Facts, not otherwise relevant,
are relevant if they support or are inconsistent with the opinions of experts,
when such opinions are 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
which 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.
The fact 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, is
relevant.
 THE INDIAN EVIDENCE ACT, 1872
Opinions of third persons when relevant

47. Opinion as to hand-writing, when relevant. –– When the Court has to

form an opinion as to the person by whom any document was written or
signed, the opinion of any person acquainted with the handwriting of the
person by whom it is supposed to be written or signed that it was or was not
written or signed by that person, is a relevant fact.
Explanation. ––A person is said to be acquainted with the handwriting of
another person when he has seen that person write, or when he 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 when,
in the ordinary course of business, documents purporting to be written by that
person have been habitually submitted to him.
 THE INDIAN EVIDENCE ACT, 1872
Opinions of third persons when relevant

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 to
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 with him thereon.
The opinions of B, C and D on the question whether the letter is in the
handwriting of A are relevant, though neither B, C nor D ever saw A write.
47A. Opinion as to digital signature, when relevant. –– When the Court has to
form an opinion as to the [electronic signature] of any person, the opinion of the
Certifying Authority which has issued the [electronic Signature Certificate] is a
relevant fact.]
 THE INDIAN EVIDENCE ACT, 1872
Opinions of third persons when relevant

When the court has an opinion that who has written or signed a document the
court will consider the opinion of a person who is acquainted with the
handwriting. That person will give an opinion that particular handwriting is
written or not written by that particular person or not. The handwriting of a
person may be proved in the following ways:
• A person who is an expert in this field
• A person who has actually seen someone writing, or
• A person who has received any document which is written by the person
whose handwriting is in question or under the authority of such person
and is addressed to that person
• A person who regularly receives letters or papers which are written by
that person
 THE INDIAN EVIDENCE ACT, 1872
Opinions of third persons when relevant

• A person who is acquainted with the signatures or writing of that person

• A certifying authority who has issued a digital signature certificate when the
court has formed an opinion as to the digital signature of a person. This is
mentioned under section 47-A of the act.
• The evidence of the writer himself. This is mentioned in section 60 of the act.
• If another person admits that the documents were written by him. This is
mentioned in section 21 of the act.
• A person who has seen the person writing or signing. This is mentioned
under section 60 of the act.
• When the court himself compares the document in question with any other
document which is proved genuine in the court. This is mentioned in section
73.
• The court may ask the person to write something for the court to compare it
with the document in question.
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Opinions of third persons when relevant

 48. Opinion as to existence of right or custom, when relevant. –– When the

Court has to form an opinion as to the existence of any general custom or
right, the opinions, as to 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 any considerable class of persons.
Illustration: The right of the villagers of a particular village to use the water of a
particular well is a general right within the meaning of this section.
Principle: When there is a question of existence of any general custom and right
and on which the court has to form an opinion, the opinion of persons who are
aware of the existence of such general custom or right is relevant. The general
custom means custom prevailing in a locality followed by considerable number
of people, on the other hand, the general rights are those rights enjoyed by all
 THE INDIAN EVIDENCE ACT, 1872
Opinions of third persons when relevant

 49. Opinion as to usages, tenets, etc., when relevant. –– When the Court has
to form an opinion as to––
the usages and tenets of any body of men or family,
the constitution and government of any religious or charitable foundation, or
the meaning of words or terms used in particular districts or by particular
classes of people,
the opinion of persons having special means of knowledge thereon are, relevant
facts.

The section admits the opinion of person who has special means of knowledge
of any word or vocabulary used in any locality, language, religion, custom etc.
 THE INDIAN EVIDENCE ACT, 1872
Opinions of third persons when relevant

 50. Opinion on relationship, when relevant. –– 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, 1869 (4 of 1869), or in prosecutions
under sections 494, 495, 497 and 498 of the Indian Penal Code (45 of 1860).
Illustrations
(a) The question is, whether A and B, were married. The fact that they were
usually received and treated by their friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The fact that A was
always treated as such by members of the family, is relevant.
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Opinions of third persons when relevant

Principle: Under section 50 when the court has to form an opinion as to the
relationship of one person to another the opinion of any person expressed by
conduct is relevant. The opinion expressed by conduct of the person who may
be a member of the family or outsider, but he must have special means of
knowledge on the subject is only relevant. The following conditions are to be
fulfilled for application of the section:

There must be a dispute on existence of relationship between one and

another pending before the court and the court will have to determine their
relationship.
The opinion sought to be taken must be expressed by conduct.
Opinion expressed by conduct must relate to the existence of relationship.
The witness must either be a member of the family or outsider who has
special means of knowledge or particular relationship.
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Opinions of third persons when relevant

 51. Grounds of opinion, when relevant. –– Whenever the opinion of any living
person is relevant, the grounds on which such opinion is based are also
relevant.
Illustration An expert may give an account of experiments performed by him for
the purpose of forming his opinion.

According to Section 51 the opinion of an expert is not relevant unless it is

supported by reasons and materials. The court will not be satisfied only on the
opinion of an expert. The opinion will be accepted if he states the ground on
which he arrived at that opinion. The opinion of an expert and other persons
who are competent to give opinion under sections 47, 48 and 49 is of no value
unless the ground on which opinion is based are disclosed. The opinion must be
supported by facts and reasons.