Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence

Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act 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. Conditions for admitting an expert opinion are following:-

a)      That the dispute can’t be resolved without expert opinion and

b)      That the witness expressing the opinion is really an expert.
 
Who is an expert?
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----
1)      foreign law,
2)      science
3)      art
4)      handwriting or
5)      finger impression

and such knowledge has been gathered by him—

a)      by practice,
b)      observation or
c)      proper studies.

For example, medical officer, chemical analyst, explosive expert, ballistic expert, fingerprint
expert etc.

According to Sec.45, the definition of an expert is confined only to the five subjects or fields as
mentioned above. But practically there are some more subjects or fields on which court may
seek opinion an expert.

An expert witness is one who has devoted time and study to a special branch of learning and
thus he is specially skilled on those points on which he is asked to state his opinion. His evidence
on such points is admissible to enable the court to come to a satisfactory conclusion.

Duty of the expert:-

a) An expert is not a witness of fact.
b)His evidence is of advisory character.
c) An expert deposes and does not decide.
d) An expert witness is to furnish the judge necessary scientific criteria for testing the accuracy of
the conclusion so as to enable the judge to form his independent judgment by application of the
criteria to the facts proved by the evidence.

Value of expert opinion:-

The Expert evidence has two aspects ---
a) Data evidence  [it can’t be rejected if it is inconsistent to oral evidence]
 
b) Opinion evidence  [it is only an inference drawn from the data and it would not get precedence
over the direct eye-witness testimony unless the inconsistency between the two is so great as to
falsify the oral evidence] --[Arshad v. State of A.P. 1996 CrLJ 2893 (para34) (AP)]

Expert evidence is opinion evidence and it can’t take the place of substantive evidence. It is a
rule of procedure that expert evidence must be corroborated either by clear direct evidence or by
 circumstantial evidence.

It is not safe to rely upon this type of evidence without seeking independent and reliable
corroboration -- [[Link] Reddy v. State of A.P. AIR 1996 SC2184 (Para27)]

Difference between evidence of an expert and evidence of an ordinary witness:-

Evidence of an expert Evidence of an ordinary witness

1.   An ordinary witness states the fact relating to the
1.   Expert gives his opinion regarding handwriting,
incident.
finger impression, nature of injury etc.
 
2.   It is advisory in character.
2.   Witness states the facts. Opinion of a witness is not
 
admissible.
3.   Court can’t pass an order of conviction on the basis
3.   Court may pass an order of conviction on the basis
of expert opinion, as because it is not conclusive.
of evidence of ocular witness (eye witness).
 
 
4.   Expert gives his opinion on the basis of his
4.   A witness gives actual facts connected with the
experience, special knowledge or skill in the field.
incident what he had seen or heard or perceived.
 

ection/Title Provision Illustration/Example

1) Question arises whether A, at the tim
of committing the offence, was incapa
to know the nature of his act or that he
If the court has to form an opinion upon-
was doing what was wrong or contrary
a) Foreign law,
law because of unsoundness of mind. T
b) Science,
opinion of the experts upon the points
c) Art,
relevant---
d) Identity of handwriting or
a)    Whether the symptom exhibited b
e) Finger impression
commonly show unsoundness of mind
the opinion of the persons who are
and
specially skilled in the above subject or
b)    Whether such unsoundness of min
fields are relevant.
ec.45:- Relevancy of opinion of experts usually renders the person incapable to
 
know the nature of his act or to know
The expert opinion is only corroborative
what he does is wrong or contrary to la
evidence. It must not be the sole basis for
 
conclusive proof.
2)    The question is whether a certain
The expert witness must be subjected to
document was written by A. Another
cross-examination in the court. Mere
document is produced which is proved
submission of opinion by an expert
admitted to have been written by A.
through any certificate or any other
Opinion of experts on the question
document is not sufficient.
whether the two documents were writt
by the same person or by different
persons, are relevant.
Considering the provisions of Indian Evidence Act, judicial precedents and our day to day
practice it may be submitted that the following kinds of expert opinion may be relevant:-
1)      Foreign law:- 
Foreign law can be proved –
a)      by the evidence of a person specially skilled in it and
b)      by direct reference to the books printed or published under the authority of the foreign
government.
 
2) Science or art:-
The Science or art includes all subjects on which a course of special study or experience is
necessary to the formation of an opinion. “Science” or “art” is not limited to higher science or fine
art, but it has its original sense of handicraft, trade, profession and skill in work which has been
carried beyond the sphere of the common pursuits of life into that of the artistic and scientific
action.
The following matters are included in the ‘science’ and art and the expert opinion of these
matters are relevant:- 
 
Medical opinion:-
The value of Medical evidence is only corroborative. A doctor acquires special knowledge of
medicine and surgery and as such he is an expert. Opinions of a medical officer, physician or
surgeon may be admitted in evidence to show--
a)      Physical condition of the a person,
b)      Age of a person
c)      Cause of death of a person
d)     Nature and effect of the disease or injuries on body or mind
e)      Manner or instrument by which such injuries was caused
f)       Time at which the injury or wounds have been caused.
g)      Whether the injury or wounds are fatal in nature
h)      Cause, symptoms and peculiarities of the disease and whether it is likely to cause death
i)        Probable future consequences of an injury etc.

When there is a conflict between the medical evidence and ocular evidence, oral evidence of an
eye witness has to get primacy as medical evidence is basically opinionative. Where the direct
evidence is not supported by the expert evidence, the evidence is wanting in the most material
part of the prosecution case and therefore, it would be difficult to convict the accused on the
basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with
medical evidence, it is the most fundamental defect in the prosecution case and unless this
inconsistency is reasonably explained, it is sufficient to discredit the evidence as well as the
entire case. [Mani Ram v. State of U.P. 1994 Supp (2) SCC 289,292; 1994 SCC (Cri) 1242]
 
Where the opinion of one medical witness is contradicted by another and both experts are
equally competent to form an opinion, the court will accept the opinion of that expert which
supports the direct evidence in the case.   [Piara Singh v. State of Punjab AIR 1977 SC 2274]
 
3)      Handwriting:-
· Like other expert opinion, the opinion of handwriting expert is advisory in nature. The expert can
compare disputed handwriting with the admitted handwriting and give his opinion whether one
person is the author of both the handwriting.

· The court shall exercise great care and caution at the time of determining the genuineness of
handwriting. A handwriting expert can certify only probability and 100% certainty. On the
question of the handwriting of a person, the opinion of a handwriting expert is relevant, but it is
not conclusive and handwriting of a person can be proved by other means also.

· The following are the different modes of proving handwriting:-

i) A person who wrote the document can prove it.  (Sec.47)
ii) A person who saw someone writing or signing a document can prove it (Sec.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  (Sec.47) 
iv) The court can form opinion by comparing disputed handwriting with the admitted
handwriting.   (Sec.73)
v) The person against whom the document is tendered can admit the handwriting. (Sec.21)
vi) The expert can compare disputed handwriting with admitted handwriting and thereby prove or
disprove whether the documents were written by the same or different persons.  (Sec.45)
 
 4)      Fingerprint expert:-
Expert opinion on fingerprints has the same value as the opinion of any other expert. 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.

5)      Ballistic expert:-
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.

6)      Evidence of tracking dogs:-

Trained dogs are used for 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 U/s-45.
In Abdul Razak V. State of Maharashtra (AIR 1970 SC 283) 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. In this case, Pune
Express was derailed near Miraj Railway Station on 10th Oct.,1966. Sabotage was suspected.
The removal of fishplates was found to be the cause of derailment and accident. The police dog
was brought into service, taken to the scene of crime. After smelling the articles near the affected
joint, the dog ran towards embankment where one fishplate was lying, then the dog smelt it and
went to a nearby shanty and pounced upon the accused who was a gang man at Miraj Railway
station.

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 dog which is an intelligent animal with many thought processes similar to the thought
processes of human beings. Whenever thought process is involved there is risk of error and
deception. The law is made clear by the Supreme Court by enunciating the principle thatthe
evidence of dog tracking is admissible, but not ordinarily of much weight and not at par with the
evidence of scientific experts.

Apart from the above fields, there are chemical analyst, explosive experts, mechanical experts,
interpreter, patent expert, hair expert etc. whose opinion is admissible in evidence.

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.

For example, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as following:-
a)      Any Chemical Examiner / Asstt. Chemical examiner to the Govt.
b)      The Chief Controller of explosives
c)      The Director of Fingerprint Bureau
d)     The Director of Haffkein Institute, Bombay
e)      The Director, Dy. Director or Asstt. Director of Central and State Forensic Science
Laboratory.
f)       The Serologist to the Govt.
g)      Any other Govt. Scientific Experts specified by notification of the Central Govt.
The report of any of the above Govt. Scientific Experts is admissible in evidence in any inquiry,
trial or other proceeding and the court may, if it thinks fit, summon and examine any of these
experts. But his personal appearance in the court for examination as witnesses may be
exempted unless the court expressly directs him to appear personally. He may depute any
responsible officer to attend the court who is working with him and conversant with the facts of
the case and can depose in the court satisfactorily on his behalf.
 
Can an Expert suo moto examine and furnish his opinion?
No, an expert can’t initiate examination or analysis and furnish his opinion unless the
Investigating Officer has sought his opinion in compliance with the formal procedure. An expert
can’t do anything suo moto in regard to analysis or examination and formation of his opinion.
 
Investigating officer and expert opinion:-
The investigation officer should seek opinion from experts or specially skilled person to form his
own opinion whether the materials collected during the course of investigation is actually
establishes the link between the crime, the victim and the criminals. The investigating officer shall
seek the assistance of an expert whenever he feels necessary for establishing any fact related to
the fact in issue.
 
Procedure of forwarding exhibits to experts:-
When forwarding the exhibits to the experts certain procedure and formalities must be followed
by the I.O. to dispatch packed exhibits or physical evidence to experts. It ensures identity and
continuity and above all question of integrity of such exhibits. The I.O. shall follow the following
procedure for forwarding the exhibits to the experts:-
 
1)      Exhibits are sent to experts through the concerned court. A forwarding report shall be
prepared by the I.O. in the prescribed format where available.
 
2)      A certificate from the competent authority concern (C.M.M./C.J.M./A.C.J.M. as the case
may be) has to be received in the line that “Certified that the Director, Forensic Science
Laboratory, has the authority to examine the exhibits sent to him in connection with the case of
State vs. …………..(name of the accused) U/s-………(provision of I.P.C. or any other law) and if
necessary, to make them to pieces or remove portions for the purpose of the said examination.”
 
3)      The same seal (wax) shall be used by the I.O. on the forwarding report as affixed on the
forwarding exhibits.
4)      The specimen seal shall be on sealing wax and not in the ink.
5)      A copy of label (carbon copy) of each exhibit shall accompany the report.
6)      The forwarding report shall be prepared in quadruplicate (two for expert, one for case diary
and one for the court’s record) and shall be sent to the expert separately in a sealed cover.
7)      The exhibit should always be sent to the expert through police messenger.
8)    The IO. should make specific question that may establish the links between crime, victim
and criminals. The questions should be formulated with some objectivity towards establishing
such links between one another.
Format for forwarding the physical evidence to C.F.S.L/F.S.L.:-
 
Forwarding note
 
Case No.:-
State vs. …………….(name of the accused)
Under section—
 
Nature of crime:--
……………………………………………………………………….
(this should cover nature of the charge, brief history and relevant details)
 
List of exhibits sent for examination:--
………………………………………………………………………….
(exact place from where the exhibits were collected)
  
Nature of examination required:--
…………………………………………………………………………..
(including any information which will assist the examination)
 
Particulars of person in custody, if any :--
………………………………………………………………………….
 
 
……………………………………….
Signature of the Investigating Officer
Specimen seal impression
Memo No………………
 
Forwarded to the Director, Central Forensic Science Laboratory/State Forensic Science
Laboratory at……………….
 
 
                                                                        ………………………………………………..
                                                                        Signature & designation of the forwarding officer
CERTIFICATE
CERTIFIED that the Director, Central/State Forensic Science Laboratory at ……………….. has
the authority to examine the exhibits sent to him in connection with Case
No………..dated…..U/s-………… and if necessary, to take them to pieces or remove portions for
the purpose of the said examination.
 
Date…………………..
Place………………….                                              …….…………………………
Signature & Designation of Forwarding Authority
 (CJM/CMM/ACJM)
 
 
The discussion or analysis as to the admissibility and relevancy of opinion of an expert under the
law of evidence can’t be complete without analyzing or interpreting the statutory provisions
(Sec.45 to Sec.51) of Indian Evidence Act. Hence the said provisions are discussed herein
below.

Section/Title Provision Illustration/Example

Sec.45A:-Opinion of Examiner In a proceeding when the court has a)   Expert opinion in respect of a
of Electronic Evidence to form an opinion on any matter particular hardware or software in issue are
relating to any information relevant.
transmitted or stored in any  
computer resource or any other b)   The copyright of a computer
electronic or digital form, the programme of the plaintiff is infringed.
opinion of the Examiner or The plaintiff shows that there is chain of
Electronic Evidence referred to in similarities between his programme and
Sec.79A of [Link], 2000 is a defendant’s programme. The defendant
relevant fact. replied that the area of the alleged
  similarity are mere coincidence and
The examiner of electronic record is generally this path is used by many
also treated as an expert. programmers in such circumstances. Here
an appropriately qualified expert can give
evidence about the nature of the routine
and code in question and how they are
 derived by the programmers.
 

Section/Title Provision Illustration/Example

The question arises whether A died of
strychnine poisoning. Experts gives
their opinion as to the symptoms of
such poisoning and the A’s death was
caused thereby. The experts may
support such opinion by proof that
Facts not otherwise relevant, are
other persons who were admittedly
Sec.46:- Facts bearing upon the opinion relevant if they support or are
poisoned by strychnine had exhibited
of experts inconsistent with the opinion of experts,
similar symptoms to A’s.
when such opinions are relevant.
On the contrary, some other experts
opine that A had died from ordinary
tetanus, they may prove that other
persons who admittedly died from the
ordinary tetanus had exhibited the same
symptoms like A’s.
Ø This provision recognizes the opinion
a)                   The question is whether a
of non-handwriting expert.
letter is in the handwriting of A, a
Ø When the court has to form an
merchant in London.
opinion as to handwriting of a person,
B is a merchant at Calcutta. B has
the opinion of a person who is
written letters to A and in response he
acquainted with the handwriting of the
received some letters from A
former person is admissible in
purporting to be written by A.
evidence.
C is the clerk of B. His duty is to
Ø A person can be acquainted with the
examine and keep all correspondence in
handwriting of any person in the
files on behalf of B. Accordingly all the
following cases:-
letters purporting to be written and sent
Sec.47:- Relevancy of Opinion as to a)       When he has seen the person
by A to B has been examined by 
handwriting whose handwriting is in question, write.
C and kept by C in the files.
b)       When in answer to the document
Opinion of B or C on the question
written by himself (the person
whether the letter is in the handwriting
acquainted) or under his authority and
of A, are relevant. Here it is immaterial
addressed to the said person, he has
that B or C has never seen A write.
received any document purporting to be
 
written by the said person.
b)A, a record keeper, has to file papers
c)       When in ordinary course of
sent to him in the course of his official
business documents purporting to be
duty. He is competent to testify to the
written by the said person have been
handwriting of a person whose papers
habitually submitted to him (person
are so filed.
acquainted).
Difference between Sec.45 & Sec.47:-

Sec.45 Sec.47

a)      Only opinion of handwriting expert is relevant. a)   Opinion of non-handwriting expert is relevant

 b)      The experts are obviously not acquainted with the b)   The person who gives his opinion must be acquainted
handwriting of the maker.  with the handwriting of the person in question.
c)      Expert is not present at the time of writing the c)   The witness may be present and may see the person
document. write.
 

Section/Title Provision Illustration/Example

Sec.47A:- Relevancy of Opinion as to When the court has to form an opinion as The question arises whether an electron
electronic signature to the electronic signature of any person, signature is of A. The certifying
the opinion of the Certifying authority authority which has issued the electron
which has issued the Electronic signature opines that A is not the perso
Signature Certificate, is relevant. who has applied or approached for
getting an electronic signature. Thus A
not the owner of the electronic signatur
in question. It belongs to someone else
The opinion of Certifying authority ma
be accepted by the court.
Sec.48:- Relevancy of opinion as to When the court has to form an opinion as A tribal or family custom excluding a
existence of right or custom to the existence of any general custom or son or brother from inheritance may be
right, the opinion of the persons who are proved by general evidence of the
in a position to know about its existence, members of the tribe or family who
are relevant. would naturally be cognizant of its
  existence and its exercise without
Explanation:- controversy.
The expression ‘general custom or right’
includes customs or rights common to
any considerable class of persons.
Private rights are excluded from the
operation of this Section. Here the word
“general” is equivalent to the term
‘public’.
Sec.49:- Relevancy of opinion as to 1)When the court has to form an opinion A, the sister of B, claims to inherit the
usages, tenets etc. as to ---- self-acquired property of B under a
a)      Usages of any body of men of special custom. General evidence as to
family existence of such custom by the
[usages includes any practice, tradition members of the family who would
or custom of trade, business, agriculture, naturally be cognizant of its existence
family etc.] and exercise without controversy is
b)      Tenets of any body of men or admissible.
family
[opinion, principle or doctrine held or
maintained by a body of men, it applies
to religion, politics science etc.]
c)       Constitution and government of
religious or charitable foundation
d)      Meaning of words or terms used in
a particular district or by a particular
 classes of people
2)Opinion of persons who have special
means of knowledge as to the above
matters, are relevant.
 

Section/Title Provision Illustration/Example

Sec.50:- Relevancy of 1)When the court has to form an opinion as to   i)   The question is whether A and B were
opinion as to relationship between two persons, married. The fact that they were usually
relationship 2)The opinion of a person on such relationship is received and treated by their friends as
relevant on the following conditions:- husband and wife, is relevant.
a)       He may be a member of the family of such  
persons whose relationship is in dispute or he may be  
an outsider.  ii)   The question is whether A was the
b)       He must have special means of knowledge as to legitimate son of B. The fact that A was
such relationship. always treated as the legitimate son of B by
c)       His opinion must be expressed by conduct. the member of the family, is relevant.
 
The opinion or belief of a person specially competent
in this respect as expressed by his conduct in outward
behavior, is relevant. Here the word ‘conduct’ is not
necessarily limited to the conduct of the relation of the
persons in dispute, but it includes the conduct of the
witness who gave his opinion about the existence of
such relationship.
 
Proviso:- The proviso to Sec.50 provides that the
opinion on relationship can’t be sufficient to prove a
marriage
1)      in the proceedings under Indian Divorce Act or
2)      in the prosecutions for -----
a)       bigamy (Sec.494 IPC),
b)       bigamy with concealment of former marriage
from the person with whom subsequent marriage is
contracted (Sec.495 IPC),
c)       adultery (Sec.497 IPC) and
d)       enticing or taking away or detaining a married
woman with criminal intent (Sec.498 IPC).
In these cases the fact of marriage must be strictly
proved in regular way.
Sec.51:- Relevancy of Whenever the opinion of any living person is relevant, i)   An expert may give an account of
grounds of opinion the grounds on which such opinion is based, are also experiments performed by him for the
relevant. purpose of forming his opinion.
   
Opinion is no evidence without assigning reasons for ii)   An Excise Inspector is an expert on the
such opinion. The correctness of the opinion can be question whether a certain liquid is illicit
better estimated if the reasons upon which it is based liquor or not. Before he gives his opinion a
are known. If the reasons are frivolous or inconclusive an expert he has to examine it and has also
 the opinion is worth nothing. furnish the data on which his opinion is
based. His bald statement that the contents
the bottles are illicit liquor is not sufficient
prove that fact.[Gobardhan v. State AIR
1959 All 53]
Conclusion:-
From the above analysis it may be submitted that 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.