There are certain matters which cannot be perceived by the senses. Their existence or non-existence is ascertained by inferences to be drawn by persons specially trained in the science, art or business with which the subject is connected. The general principle is that only those witnesses may appear before the Court who have been well acquainted with the facts because every witness is a witness of facts. But under sections 45 to 51, a third person, who is unknown to the facts, may appear before the Court when Court invites him to give his opinion on a particular point. For example: whether a certain injury was caused by a spear or knife. A states that he saw the accused causing the injury by a spear. This is not A's opinion. But if a doctor, who did not see the injury being caused, says that he thinks that the injury was caused by a spear. It is his opinion, what one sees, hears or perceived by any of the senses is not opinion and on the other hand what is the conclusion of an individual is his opinion. A claims that he has a right to take water from a particular well. B has been seeing A taking water from the well. If B states the same, his seeing A taking water is not opinion. He does not give his opinion rather he states a fact of which he received direct knowledge through his eyes. But if he says that in his opinion A has right to take water from the well he gives an inference at which he had arrived by thinking and reasoning. That a man has acquired a certain right cannot be perceived by any of the senses. It can be only the subject of thinking and reasoning.
The opinion of the third person is admissible as an expert's opinion under the provisions. For the purpose, "opinion" means 'something more than gossip or hearsay'. It must be based on some belief, reasoning or result. However, the expert opinion is only an opinion evidence on either side and does not aid Court in interpretation; Forest Range Officer v. P. Mohammed Ali, MANU/SC/0037/1994 : AIR 1994 SC 120: 1993 AIR SCW 3754: 1993 (2) Crimes 415: JT 1993 (3) SC 222: (1993) 3 SCR 497: 1993 SCC (Cri) 1070: (1993) Supp 3 SCC 627.
Section 45 of the Evidence Act, provides for the 'expert opinion' in the following words:
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.
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.
The Courts have been accustomed to act on the opinion of experts from early times.1 Matters commonly made the subject of such evidence includes causes of death, insanity, effects of poison, genuineness of works of or, value of articles, genuineness of handwriting, proper navigation of vessels, meaning of trade terms, foreign laws, and finger impressions etc.2 A witness who is qualified to speak on these matters is called an "expert". Section 45 makes the opinion of persons specially skilled in some science, art, foreign law, identity of handwriting and finger impressions is relevant.
The subject on which the witness is testifying must be one, upon which competency to form an opinion can only be acquired by a course of special study or experience. Thus:
(a) the subject-matter must require specialized skill or knowledge, and
(b) the subject must not be one an inference of which can conveniently be drawn.
Only such subject-matter shall be referred to an expert on the subject.
The evidence of finger print expert is not substantive evidence. Such evidence can only be used to corroborate some items of substantive evidence which are otherwise on record; Musheer Khan @ Badshah Khan v. State of Madhya Pradesh, MANU/SC/0065/2010 : AIR 2010 SC 762.
For the admissibility of expert evidence, it requires to hear an expert opinion as first and foremost; Ramesh Chandra Agrawal v. Regency Hospital Ltd., MANU/SC/1641/2009 : AIR 2010 SC 806.
The section also provides a definition of an expert witness. An expert is one who has acquired special knowledge, skill or experience in any science, art, trade or commerce: such knowledge, may have been acquired by practice, observation or careful studies. In Bal Krishna Das Agrawal v. Radha Devi, MANU/SC/0173/1989 : AIR 1989 SC 1966; an 'expert' was defined as "a person who by his training and experience has acquired the ability to express an opinion" but an ordinary witness does not possess this quality.
(1) An ordinary witness must depose to what actually took place. An expert's evidence on the other hand is not confined to what actually took place but he can give his opinion on facts, e.g., a medical practitioner may give his opinion as to the cause of a person's death.
(2) An expert witness can speak about experiments made by him behind the other party.
(3) He may cite textbooks of accredited authority in favour of his opinion and may refresh his memory by reference to them.
(4) He may state facts relating to other cases bearing similarities to the case under inquiry in order to supplement his opinion.
The Evidence 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:
(a) firstly, there is the danger of error or deliberate falsehood. Privileged persons might be half-blind, incompetent or even corrupt; Haryana Seeds Development Corporation Ltd. v. Sadhu, MANU/SC/0123/2005 : AIR 2005 SC 2023: 2005 AIR SCW 1208: JT 2005 (2) SC 592: MANU/SC/0123/2005 : (2005) 3 SCC 198: 2005 (2) SCJ 267: 2005 (2) SLT 569: 2005 (4) SRJ 112: (2005) 2 SCALE 270: 2005 (2) Supreme 169.
(b) secondly, his evidence is after all opinion of human being and human judgment is fallible. Human knowledge is limited and imperfect; Mohd. Zahid v. State of Tamil Nadu, MANU/SC/0407/1999 : AIR 1999 SC 2416: 1999 Cr LJ 3699: 1999 AIR SCW 2556: 1999 (3) Crimes 137: JT 1999 (5) SC 5: (1999) 6 SCC 120: 2000 (2) SCJ 226: (1999) 4 SCALE 173: 1999 SCC (Cri) 1066: 1999 (6) Supreme 145: 1999 (2) UJ (SC) 1294 (SC).
(c) 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 Gulzar Ali v. State of Himachal Pradesh, MANU/SC/0911/1998 : (1998) 2 SCC 192.
Evidence of Expert cannot be taken as substantial piece of evidence unless corroborated by other evidence. Expert evidence is only piece of evidence and weight to be given to it has to be judged along with other evidence of this nature is ordinarily not conclusive. The opinions of experts are not binding upon the judges. It is weak type of evidence and Court considers it unsafe to rely on it without independent and reliable corroboration.
Ganesh K. Gulve v. State of Maharashtra, MANU/SC/0694/2002 : AIR 2002 SC 3068: 2002 AIR SCW 3528: 2002 (4) Crimes 92: JT 2002 (6) SC 337: (2002) 7 SCC 71: 2002 (5) SLT 24: 2002 (8) SRJ 386: (2002) 6 SCALE 422: 2002 SCC (Cri) 1589: 2002 (6) Supreme 45: 2002 (2) UJ (SC) 1318; the present case is related with the murder. There was no mention of certain injuries in post-mortem report that the dead body was dragged by accused person. Post-mortem report was not speaking of injuries on back of deceased. Injuries on back of deceased were, however, mentioned in inquest Panchanama. It was held by Supreme Court that theory of dragging of the bodies could not be discarded only on account of non-mention of injuries on back of bodies in the post-mortem report.
In Murari Lal v. State of Andhra Pradesh, AIR 1980 SC 531: 1980 Cr LJ 396: (1980) 1 SCC 704: 1980 SCC (Cri) 330: 1980 Cr LR (SC) 168: 1980 Mad LW (Cri) 88: (1980) 2 SCR 249; the Supreme Court has laid down the following rules on which the reliability of such opinion has to be tested:
(i) There is no rule of law, not any rule of discreet which has crystallised into a rule of law, that the opinion evidence of an expert must never be acted upon, unless substantially corroborated.
(ii) 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.
(iii) 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.
(iv) 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.
(v) The opinion of expert is not decisive of the matter. The Court should not surrender its opinion to that of the expert. An expert deposes and not decides. His duty is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of those criteria to the facts proved in evidence.
(vi) An expert opinion is not to be believed upon when it is in conflict with direct evidence; Wilayat Khan v. State, MANU/SC/0068/1951 : AIR 1953 SC 122: 1953 Cr LJ 662: ILR (1953) 1 All 189.
The expert opinion is a rather weak type of evidence and the Courts do not generally consider it as offering conclusive proof and, therefore, safe to rely upon the same without seeking independent and reliable corroboration; Magan Bihari Lal v. State of Punjab, MANU/SC/0105/1977 : AIR 1977 SC 1091: 1977 Cr LJ 711: 1977 UJ (SC) 235: 1977 Pun LJ (Cri) 87: MANU/SC/0105/1977 : (1977) 2 SCC 210: 1977 SCC (Cri) 313: 1977 SC Cr R 203: (1977) 2 SCR 1007; Shashi Kumar Banerjee v. Subodh Kumar Banerjee, MANU/SC/0278/1963 : AIR 1964 SC 529.
In Ram Narain v. State of Uttar Pradesh, MANU/SC/0153/1973 : AIR 1973 SC 2200: 1973 Cr LJ 1187: 1973 SCD 479: (1973) 2 SCC 86: 1973 SCC (Cri) 752: (1973) 1 SCWR 675: 1973 MPLJ 674; a child was kidnapped. The parent of the child received a handwritten post-card followed by an inland letter demanding Rs. 1,000 and Rs. 5,000, respectively as ransom for the child. The author of the letters was traced and a handwriting expert testified the letters to be in the handwriting of the accused. Solely on the basis of this evidence the accused was convicted by the lower courts. The Supreme Court upheld the conviction.
The Supreme Court observed that:
"Both under section 45 and section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means is to apply its own observation verify the opinion of the witness. This is not to say that the Court may play the role of an expert, but to say that Court may accept the fact only when it has satisfied itself on its own observation that it is safe to accept the opinion of the expert or the other witness."
In this case, Dua J. himself compared the handwriting in question with a proven handwriting of the accused and satisfied himself and held that no further corroboration was necessary.
The Court held that if after comparison of disputed and admitted writings by 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 comparison of handwriting is generally considered hazardous and inconclusive. It should be noted that the evidence of experts is not final or conclusive.
The opinion of an expert examiner of Electronic Evidence can be taken as a relevant fact if the concerned Court forms an opinion on a matter of issue relating to computerised information or the information in electronic or in digital form.
The electronic evidence or the electronic form of evidence means any information of probative value, either stored or transmitted in electronic form and includes the computer evidence, digital audio, digital video, cell phones and the digital fax machines.
Further the Central Government, for providing expert opinion on electronic form evidence before any court or any other authority is to specify any department, body or agency of the Central Government or a State Government, as an Examiner of Electronic Evidence.
The provision for opinion of expert examiner of electronic evidence is provided under section 45A which was inserted by the Information Technology (Amendment) Act, 2008 (10 of 2009) reads as follows:
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.
According to section 46 of the Act, when the opinion of an expert is relevant that any fact which will either support his opinion or contradict it, will also become relevant. In other words, facts otherwise not relevant, became relevant to support or rebut the expert opinion section 46 reads:
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 person, 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.
Mohd. Zahid v. State of Tamil Nadu, MANU/SC/0407/1999 : AIR 1999 SC 2416: 1999 Cr LJ 3699: 1999 AIR SCW 2556: 1999 (3) Crimes 137: JT 1999 (5) SC 5: (1999) 6 SCC 120: 2000 (2) SCJ 226: (1999) 4 SCALE 173: 1999 SCC (Cri) 1066: 1999 (6) Supreme 145: 1999 (2) UJ (SC) 1294 (SC). In this case the credibility of doctors 'opinion' concluding post-mortem vis-a-vis statement found in textbook was compared. The prosecution made suggestion to the doctor on basis of statement found in authoritative textbook. The book disagreed with the statement of authoritative textbook without giving any reasons. No other authority was produced in support of opinion. The Evidence of the doctor was self contradictory regarding her opinion about cause of death of victim, cannot be relied.
The evidence of experts may not be conclusive regarding the handwriting or mark. No doubt that the opinion of an expert has great weight but in addition to that, section 47 of the Act, permits the court to admit the opinion of non-experts. Section 47 reads:
47. Opinion as to handwriting, 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.
Illustration
The question is, whether a given letter is in the handwriting of A, a merchant in London.
B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising him thereon.
The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.
This section provides that the genuineness of a handwriting or mark may be proved by the opinions not only of experts, but also of non-experts.
A statement of the non-expert witness who was acquainted with the handwriting, is sufficient. Such acquaintance or knowledge might have been acquired:
(i) by having at any time seen the person write, or
(ii) by the receipt of written communication purporting to be in his handwriting, or
(iii) by having observed in the ordinary course of business, received documents written by that person or such documents are habitually submitted to him.
In reference to the first point it was held by the Supreme Court in Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326: (1967) 1 SCWR 449: 1967 All LJ 303: 1967 Jab LJ 441: 1967 Cr LJ 38: (1967) 2 SCA 135: 1967 (2) SCJ 885: 1967 MPWR 38; it was held that handwriting may be proved by evidence of a witness in whose presence the writing was done and this would be direct evidence and if it is available the evidence of any other kind is rendered unnecessary.
The following are the ordinary methods of proving handwriting under the Evidence Act:
(i) by the evidence of the writer himself.1
(ii) by the opinion of an expert.2
(iii) by the evidence of a person who is acquainted with the handwriting of the person in question.3
(iv) by the evidence of a person who saw the document being written i.e., attestation witness.
(v) by the comparison of the disputed writing with the writing of the alleged writer by the Court.4
(vi) by other circumstantial evidence; Kanya Ram Vira Singh v. Manipur Drivers Association, AIR 1957 Manipur 9.
Section 47A has been added in the Evidence Act, by the Information Technology Act, 2000, and as amended by the Information Technology (Amendment) Act, 2008 (10 of 2009) provides for the relevancy of expert opinion on the genuineness of a electronic signature. Section 47A reads:
47A. Opinion as to electronic 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.
Section 48 of the Act, deals with the evidence of a living person as to the existence of a general right or custom in question. This section provides:
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.
From the section it is clear that, this is the supplement to section 13 of the Act, which deals with all kinds of customs are rights whether public or private. But section 48 confines to only public right or custom. If opinion is recorded in a book that is also admissible under section 48 provided that the author is alive; Samar v. Budhu, MANU/BH/0294/1937 : AIR 1937 Pat 463.
India is a multilinguistic, multireligious country having different customs, castes, languages, usages and dialects. Thus, there are terms, customs, tenets which prevail in a particular area, community, caste or trade. Therefore, when the court has to form an opinion as to usages and tenets of any body of men or family or as to the Constitution any Government of religious or charitable foundation; or as to the meaning of certain words or terms as used in a particular area or by any class of people, the opinion of any person who has the special means of knowledge on the matter in question is relevant. Section 49 of the Act helps to interpret a particular term in its true meaning. Section 49 reads:
49. Opinions 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 opinions of persons having special means of knowledge thereon, are relevant facts.
'Opinion' means 'something more than mere gossip or hearsay. Under section 50 of the Act, when the Court has to determine the relationships of one person to another, the opinion expressed by conduct as to such relationship by a person who has special knowledge shall be relevant. Section 50 provides:
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, or 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 section 494, 495, 497 or 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.
The evidence under section 50 is a sort of circumstantial evidence. According to this, the opinion under this section should be expressed by conduct, not merely by words or statements. Where the question was of the fact of a valid adoption of the plaintiff, the deposition of the cousin of the adoptive father, the family priest and family barber that the ceremony had taken place at the residence of the natural father was held relevant. They had the special means of knowledge of the fact whether the plaintiff was an adopted son; Bami Bewa v. Krushna Chandra Swain @ Gochhayat, MANU/OR/0246/2003 : AIR 2004 Ori 14: 2004 (1) CLR 105: 2004 (1) Civil Court C 543.
It is a general principle of law that evidence of character is not admissible as a relevant fact. This rule provides a protection to the accused. However, there are some exceptions to this general rule and in the following cases, the evidence of character may be admitted:
(A) Relevancy of character in civil cases, (sections 52 & 55).
(B) Relevancy of character in criminal cases, (sections 53 & 54).
(A) Relevancy of character in Civil Cases
Section 52 of the Act, lays down the general principle that evidence of character in civil cases is irrelevant unless the character is in issue; Jagannath v. Ram Chandra, MANU/UP/0154/1952 : AIR 1952 All 408. This section reads:
52. In civil cases character to prove conduct imputed, irrelevant.-
In civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him, is irrelevant, except in so far as such character appears from facts otherwise relevant.
It may be laid down as a general rule that in civil action evidence of character of any person concerned (a party to a suit) is not admissible for the purpose of raising an inference as to his conduct. In other words, that a party did or did not or may not be established in civil actions. By showing that his character is such as to pre-dispose him to one course or to the other. So the exclusion of evidence of character of a party as a basis of inference drawn as to his conduct is practically absolute in civil cases. If a man is sued for breaking his promise or wrongfully detaining of another's goods or selling an article inferior to the sample, evidence cannot be given that it was likely for him to do from his disposition and reputation. X files a suit against Y for possession
of a house alleging that he (Y) has taken forcible possession of it. In this X cannot lead evidence about Y's character to show that it was likely to him for trespass.
Admissible character in civil cases:-
There are certainly cases in which character is a fact in issue or a relevant fact, e.g., in a suit for libel, if the libel consisted in attributing that quality, to the plaintiff and the defendant justifies the existence of this quality, this would be a fact in issue and evidence of character may be led. The character of female chastity has been received in evidence in action for breach of promise for marriage.
There are some exceptions to the general principle laid in section 52:
(1) Section 55 says "in civil cases the fact that the character of any person is such as to affect the amount of damages which he ought to receive, is relevant". The evidence of good or bad character of the defendant is irrelevant to damages. But the character of the plaintiff is relevant. In an action for damages, for seduction or rape, evidence of that character of the plaintiff is allowed as it is likely to affect the damages that the plaintiff ought to receive.
(2) Evidence can be given of a party's character when his character is itself a fact in issue. Where, for example, an action is brought for divorce on the ground of cruelty, the cruel character of the defendant, being a fact in issue, the plaintiff can lead evidence of it.
(3) A fact which is otherwise relevant cannot be excluded from evidence only because it incidentally exposes or throws light upon a party's character (section 52).
(B) Relevancy of Character in Criminal Cases
Section 53 says that "in criminal cases, the fact that the person accused is of a good character is relevant". Normally, we presume that a person of
good character and reputation will not generally respond to any criminal act. Thus, goodness is proved, leads to presumption against the commission of a crime.
According to section 54, evidence may not be received regarding the badness of party's character in criminal proceedings, unless evidence has been given that he has a good character in which case it becomes relevant. In other words, the prosecution cannot lead evidence of the bad character of accused as a part of his original case. They can produce evidence of bad character only in reply to the accused showing his good character.
There are certain cases in which evidence of a prisoner's bad character can be given:
(1) To rebut prior evidence of good character (section 54).
(2) The character is itself a fact in issue (Explanation 1 to section 54). For example, in a prosecution for rape, the bad character of prosecution (raped woman) may be a fact in issue for it may afford a defence to the accused.
(3) A previous conviction is relevant as evidence of bad character in criminal cases (Explanation 2 to section 54).
In Prithvi Singh v. State of Uttar Pradesh, 2001 Cr LJ 4424: 2001 All LJ 1993: 2001 (43) All Cr C 457: 2002 (1) All Cr LR 182: 2001 (2) All Cr R 1572: 2002 (1) Rec Cr R 477 (All); the prosecution was not allowed to adduce evidence tending to show that accused was a person of bad character.
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