Opinion of Third Person When Relevant means Expert Opinion

Introduction:

The opinions or beliefs of third persons are, as a general rule, irrelevant, and therefore, inadmissible. Witnesses are to state the facts only i.e. what they themselves saw or heard, etc. It is the function of the judge or jury to form their own conclusion or opinion on the facts stated.

Exceptions:

To above general Rule, there are some important exceptions. In cases in which court is not in a position to form a opinion especially in those cases in which questions involved is beyond the range of common experience or common knowledge. Therefore, expert opinion is sought in such cases.

Science, art, trade, handwriting, fingerprints, foreign law etc. are some matters which require special study or special experience in the field.

Sections 45 to 51 of the Indian Evidence Act deals with the expert evidence. In this article, we shall discuss opinions of third person, when relevant.

In the past the expert opinions have only been limited to medical opinions. But now with the development of forensic science and technology the scope of expert opinion is increased.  As far as, criminal law is concerned: ballistic experts, forensic experts, scientists, chemical examiners, psychiatrists, radiologists and even track-dogs are playing a very vital role in investigation of crimes and their evidence is admissible in the court of law.

Sometimes, it is very difficult for the court to form a correct opinion on a matter which requires specialized knowledge. Under such circumstances Courts take assistance from person who is an expert. When the subject matter of inquiry is such that, inexperienced persons are unlikely of forming a correct judgment upon it, the opinions of persons having special knowledge of the subject matter of inquiry become relevant.

Opinion of Experts (Section 45):

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 especially 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:

1. 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.
2. 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.
3. 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.

Section 45 of the Act enables the opinion of persons especially skilled in some science, art, foreign law, identity of handwriting and finger impressions relevant.

Who is expert ?

• Who has acquired special knowledge, skill or experience in any science, art trade or profession;
• Practice, observation or careful studies may have acquired such knowledge.

The opinion of an expert is never binding on a court. It is admitted in evidence only to help the court in arriving at a correct decision.

In other words, evidence of expert cannot be taken as conclusive of fact. In considering the value of the evidence of an expert it must be borne in mind that an expert witness, however impartial he may wish to be, unconsciously prejudiced in favour of the side which calls him.

An expert is not a witness of fact. His evidence is really of an ‘advisory’ character. An expert opinion will not be read into evidence unless he is examined before the court as a witness and is subjected to cross-examination. Thus, the report submitted by an expert does not go in evidence automatically.

Difference between experts’ testimony and that of ordinary witness

1. An ordinary witness must depose to what actually took place. An expert’s evidence is not confined to what actually took place, but covers his opinions on’ facts (e.g. a medical man may give his opinion as to the cause of a person’s death.
2. An expert can refer to and rely upon experiments conducted by him in the absence of the other party. Thus, on a charge of arson, evidence of an experiment conducted by an expert subsequent to the fire is admissible to show how the fire may have originated.
3. An expert may quote passages from well-known text books on the subject and may refer to them to refresh his memory.
4. An expert may state facts relating to other cases in pari materia similar to the case under investigation.

On what matters expert opinion can be given

The subjects on which an expert is competent to testify are: foreign law, matters of science, questions of art, identity of handwriting, or of finger impressions. The words ‘science’ or ‘art’ include all subjects on which the course of special study or experience is necessary to the formation of opinion. The matter in question must be of technical nature, for no expert can be permitted to speak on a -matter with which the judge may be supposed to be equally well acquainted.

Case Laws

Ram Swaroop v State, 1989 CrLJ 2435

A doctor’s opinion as to age of a person based on his or her height, weight and teeth does not amount to legal proof of age of that person. But such evidence is relevant. An opinion based un the X-ray plate examination has been held to be admissible.

Anita v Atal Bihari, 1993 CrLJ 549 (M.P.)

 held that in ascertaining date of birth, opinion of radiologist cannot be preferred over the entry in the register of births and deaths maintained under the provisions of an Act.

S.K. Belal v State, 1994 CrLJ 467 (Ori):

In a case of kidnapping of a girl, the medical evidence showed her age between 17 and 18 years and the documentary evidence showed her to be above 18 years, Held that the medical evidence was not a conclusive proof of age.

Evidentiary Value of Expert:

The Evidence Act only provides about the relevancy of expert opinion but gives no guidance as to its value. It is often said that there cannot be any more unsatisfactory evidence than that of an expert. The value of expert opinion suffers from various drawbacks:

1. There is the danger of error or deliberate falsehood. “These privileged persons might be half blind, incompetent or even corrupt.”
2. His evidence is after all opinion and “human judgment is fallible.Human knowledge is limited and imperfect”
3. An expert witness, howsoever impartial he may be, is likely to be unconsciously prejudiced in favour of the side which calls him.

Thus, expert witnesses are called witnesses “retained and paid” to support by their evidence a certain view on a scientific or technical question.

Case Laws:

Murari Lal v State, of M.P. AIR 1980 SC 531): In this case Supreme Court has laid down following principles:-

1. There is no rule of law, nor any rule of prudence which has crystallised 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 one of caution. Reasons for the opinion must be carefully probed and examined.All other relevant evidence must be considered.
3. 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, the uncorroborated testimony of an expert may be accepted.
4. The hazard in accepting the expert opinion is because all the human judgement is fallible and an expert may go wrong because of some defect of observation or honest mistake of conclusion.
5. The opinion of expert is not decisive or conclusive 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.

Medical opinion –

Punjab Singh v State of Haryana AIR 1984 SC 1223: Opinion of medical officer cannot be taken as contradicting the positive evidence of the witness of the facts. Where the direct evidence about assault by a particular person is satisfactory and reliable, medical evidence cannot override that because the latter is hypothetical.

Amar Singh v State of Punjab AIR 1987 SC 726

 It was held that  where the medical report differed from injuries described by the witnesses, medical evidence should prevail.

Piara Singh v State of Punjab AIR 1977 SC 2274

It was held in this case that if the opinion of two doctors is different, the opinion which supports direct evidence should be accepted.

Mafabhai N. Raval v State of Gujarat AIR 1992 SC 2186:

In respect of nature of injuries and causes of death, most competent witness is the doctor examining the deceased and conducting post-mortem. Unless there is something inherently defective, the court cannot substitute its opinion in place of the doctor’s.

Ram Narain vs. State Of U.P (AIR 1973 SC 2200)

This is leading case regarding the conclusiveness of Handwriting. In this case, 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 Court said: “Both under Sec. 45 and Sec. 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 observation.

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 to the admitted or proved writings, not become a handwriting expert but to 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 the 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”.

(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 court may satisfy itself before relying on the expert opinion.

State of Haryana v. Bhagirath, 1999 CrLJ 2898 (SC) case, the Supreme Court has held that the opinion given by expert witness need not be the last word on the subject, such opinion shall be tested by court and if opinion is not of logic or objectivity, the court is not obliged to go by that opinion.

Rajiv Thapar and another vs. Madan Lal Kapoor (2013) 3 SCC 33036:

The appellant was married to the daughter of the respondent on 30/11/1991. The appellant is the member of the Indian Revenue Services at Ahmedabad and the wife of the appellant was a doctor and doing diploma course in gynaecology in Surat. So, the appellant transferred from Ahmedabad to Surat.  On 16/09/1992 while both the appellant and the wife were living together, the wife fell ill. She was admitted to the Mahavir Hospital, Surat. She was suffering from Malaria, she was discharged on 20/ 09 /1992, but again after two days, she again fell ill on 22/09/1992 and was diagnosed with a large hole in her heart.

She was shifted to Urmil Heart and Lung Centre, Surat on 24/09/1992, when she was at Urmil Heart and lung Centre Surat; she allegedly suffered a heart attack and died on 26/09/1992. The news was conveyed to the family member to the deceased wife and the body was transported to Delhi in rail. When the family of the deceased received the dead body, the face of the body was blue so the father/respondent suspected that she has been administered with poison show So, Madan Lal Kapoor made a complaint against the appellant that he was demanding dowry from the deceased wife and tortured her mentally and physically leading to her illness and also conspired against her with his mother and was given some poisonous substance that is why the face of the dead body was blue. The accused were charged under section 304-B, 120-B, 498-A, 406 and 109 of the Indian Penal Code, 1860.

But according to the medical report, it was clearly stated that the death of the deceased was due to the cardiac decomposition (the heart’s incapability to deliver oxygenated blood to meet the body’s metabolic needs). So appellant appealed to the Supreme Court that the chargesheet should be quashed which was not quashed by the High Court.

Supreme Court quashed the chargesheet as the medical opinion was in consonance with the statement of witnesses and other evidences in hand.

Section 45 and Section 73 of Evidence Act:

Section 73 of Evidence Act Comparison of signature, writing or seal with others admitted or proved.––In order to ascertain whether a signature, writing, or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.

 The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

 [This section applies also, with any necessary modifications, to finger-impressions.]

Case Laws:

Lalit Popli vs Canara Bank 2003 [3 SCC 583]

It was held that section 45 and section 73 is complimentary to each other. As comparison under section 73 is permissible and opinion after such comparison will be given under section 45 of the act.

Section 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;]

Illustrations:

1. 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.
2. 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.
3. 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.

Under this Section any opinion on a 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 u/s 79A of the IT Act, will be relevant.

Sec. 46:Facts bearing upon opinion of experts

“Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant”.

The effect of the provision is that when the opinion of an expert is relevant and has been cited, any fact which will either support his opinion or contradict it will also become relevant (Res inter alia acta).

Illustration: 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.

Section 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: Who is considered to be acquainted with another’s handwriting.A

person is said to be acquainted with the handwriting of another person:

• Who has seen that person write,
• Who 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
• Who has 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 underwriting 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.

Case Laws:

Fakhruddin v State of M. P. (AIR 1967 SC 1326)

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.

Modes of proving handwriting

Secs. 45 and 47 recognise the following modes of proving handwriting:

1. By the evidence of the writer himself.
2. By the opinion of an expert (Sec. 45).
3. By the evidence of a person who is acquainted with the handwriting of the person in question (Sec. 47).
4. Under Sec. 73 by the court itself comparing the handwriting.

Sec. 47A :Opinion as to digital signature when relevant

When the court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.

Section 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.

Only persons who are likely to know about such customs in question are competent to give an opinion on them. The expert must have personal knowledge on the facts to be proved.

Section 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.

Section 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). Hence evidence of marriage cannot be given by opinion of expert. In these cases, strict proof of marriage is necessary i.e. witness in whose presence the marriage was celebrated or record of Panchayat. However, statement under section 161 CrPC may be recorded of the person from whom record regarding marriage has been procured.

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.

Section 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.

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