Section 45 of the Indian Evidence Act, 1872

Such persons are called experts.

Illustrations:

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(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.

Comments:

Principle:

According to the Section 45 the opinions of persons who have special skill in foreign laws, science or art, and on handwriting and finger impressions are relevant. Under certain circumstances the evidence of opinions of persons who are called ‘experts’, “have become relevant. “An opinion evidence of an expert after its acceptance by the court becomes the decision of the court and causes to be a opinion evidence of the expert.” The question is whether A died of poisoning. The opinion of doctor who performed post-mortem is relevant.

An expert:

An expert is one who has made the subject upon which he speaks a matter of study, practice or observation and he must have a special knowledge of the subject. It simply means an expert is a person who has special knowledge and skill in any particular subject to which inquiry relates. “One who has studies a subject carefully falls within the definition, though he has never practiced it”. The witness must have made a special study of the subject or required special experience therein. Thus, an expert is one who has acquired special knowledge, skill or experience in any science, art, trade or profession, and such knowledge have been acquired by practice, observation or careful studies. Even a witness who has no academic qualification but has professional skill and experience is treated to be an expert. “A ‘expert’ witness is one who has devoted time and study to a special branch of learning, and thus is specially skilled on those points on which he is asked to state his opinion.” The opinion of such experts is admissible in evidence as relevant facts by virtue of Section 45 of the Evidence Act. Where the signature on Xerox copies of acknowledgements was disputed it was held that comparison by handwriting expert is not necessary.

Expert opinion:

Section 45 clearly deals with the opinion of persons who are called experts. There are matters mentioned in the section in which help is required from witnesses having experiences and skill and the opinion given by such witness is expert opinion. The evidence of a doctor conducting post mortem without producing any authority in support of his opinion is insufficient to grant conviction to an accused.” But, the opinion of the doctor who actually examined the injured and conducted the post mortem examination must be preferred to the expert opinion of the doctor who gave his opinion on the basis of the injury report, X-ray report, and post mortem report. It was also held that credible ocular testimony was preferable to medical opinion.

The three illustrations appended to this section show the relevancy of the opinion of experts. The report of an official of the Anti-Corruption Bureau as to the course of investigation has been held to be not that of an expert. Where the age of the rape victim was fixed by the doctor only by chemical examination and ossification test or other pathological tests were not performed it was held that the assessment of age so made was on fragile premises. The medical report determining the age of a person held, is never conclusive in nature.

Although Section 45 makes the opinion of experts relevant the court is not always bound to accept the expert opinion, because the evidence of an expert is a weak type of evidence and courts to consider it unsafe to relay on it without independent and reliable corroboration. “Expert evidence can be used to corroborate other evidence. The expert opinion is only advisory and the court has to form its own opinion.” Expert opinions, even when proved in accordance with law, at the best constitute material for the court, to arrive at a proper conclusion, the ultimate discretion to pronounce upon concerned issues rests with the court.

Expert Opinion v Opinions of Ordinary Witness:

It is also well settled that opinion of an expert cannot be more reliable than that the statement of a witness of fact. A court also may compare the disputed writing with admitted writing under section 73 of the Act. But it must be borne in mind that the conclusions based on mere comparison of handwriting, must, at best be indecisive and yield to the positive evidence in the case. When there is conflict of opinion between the experts, then the court is competent to form its own opinion with regard to signatures on a document. Where there is medical evidence and ocular testimony normally ocular testimony should be preferred unless it belies fundamental facts.

In certain classes of cases the opinions of ordinary witnesses are not only of helpful but in case of necessity these are admitted. It is unsafe to base a conviction wholly an expert opinion without substantial corroboration. The court accepted the evidence of a wife as to the paternity of a ten mouths’ old child, in spite of unanimous opinion of several doctors.

Subject matters of inquiry:

The subjects on which expert opinion are required are discussed below:

1. Foreign Law:

Foreign Law means any law which is not applicable in India. The courts of a country are not supposed to be conversant with it. It is question of fact to be decided with the help of an expert. Opinion of an expert in a case is to be obtained with the leave of the court. However, opinions on point of foreign law, art or science if already available before institution of suit, such opinion being relevant can be relied upon by a party to the suit. When the court has to form an opinion as regards Foreign Law an expert opinion may be allowed. Foreign Law may be proved under section 38 by the production of book printed under authority of the foreign country and it is not necessary to call expert evidence on the point. Expert evidence as to Jewish Personal Law is admissible as it being Foreign Law here.

2. Science or Art:

The word ‘science’ or ‘art’ has been used in a wider sense. “These words include all subjects on which a course of special study or experience is necessary to the formation of an opinion”. When the court is confronted with subject matter of ‘science’ or ‘art’ experts are called on to give their opinions. The expression ‘science or art’ in Section 45 is of wide import and cannot have a narrow meaning.

3. Handwriting:

The opinion of a handwriting expert about the genuineness of handwriting is relevant under section 45, but it is not conclusive proof. The opinion of a expert is not binding upon the judge. An expert can certify only probability and not hundred percent certainty. An application for appointment of handwriting expert was made after ten years and it was rejected. The opinion of a handwriting expert has to be corroborated by clear, direct or by circumstantial evidence. If the probabilities are against the experts, opinion it is of no value. In a suit for specific performance of sale agreement the defendant filed an application to get sale agreement examined by handwriting expert under section 45. It was not allowed due to lack of bona fide.

The opinion of handwriting experts is also applicable in criminal cases. Recovery of two slips of paper by the police as to cause of death of a woman in a guest house were examined by handwriting expert. According to the opinion of the expert the handwriting was that of her husband. The Supreme Court held that the opinion could be relied upon when supported by the evidence which corroborated the circumstantial evidence.

In order to rely on the evidence of an expert the court must be satisfied that he is truthful witness and also reliable witness fully adopt in the art of identification of handwriting. In order to opine whether the alleged handwriting has been made by a particular person or not, the Court will have to go by the evidence which inspire more confidence.

Where it was alleged that in the report of expert committee stating the poor germination seeds may not be attributed to the quality of seed, but to other factors the word ‘not’ was added subsequently, the report if read as a whole did not show possibility of subsequent insertion of word ‘not’, the report cannot be said to be manipulated.

Evidence of handwriting expert is not a substantive evidence; it only corroborates. Expert opinion on comparison of handwriting is a piece of evidence. It is not binding on the court.

The Supreme Court in State of Maharashtra v Sukhdev Singh has laid down the principles of judging opinion of handwriting expert, namely;

(i) “The science of identification of handwriting is perfect and frail as compared to the science of identification of finger prints.

(ii) The courts have, as a rule of prudence, looked for corroboration before acting on such evidence.

(iii) The genuineness of the specimen handwriting as that of the suspect must be established.

(iv) The court must be satisfied that the expert is competent, reliable and dependable.

(v) The reasons on which the opinion is based must be convincing.

(vi) The court should be slow in reaching its own conclusion by its comparing the disputed handwriting with the specimen handwriting.”

4. Opinion of finger-print expert:

Examination of finger impressions is a science. A person having skill and knowledge can compare finger impressions with the help of magnifying glass. The evidence given by a finger-print expert need not necessarily be corroborated and is admissible. “It is quite possible to compare the impression taken from finger-points of individuals with the disputed impression provided they are sufficiently clear and enlarged photographs are available.” The expert opinion is admissible when finger print of an accused was found in crime scenes or on crime articles. Report of Director, Finger Print Bureau, can be treated as evidence without examining him, but in case of any doubt the court may examine it. However, it was not proved that thumb impression on sale receipt was that of deceased in a custodial death. Expert took finger print through spoon method. Hence, comparison of finger print of deceased with that of thumb impression on alleged sale receipt is of no consequence.

Foot prints:

On the other hand, foot prints do not carry the same weight age as that of finger-prints. The science of identification is still in rudimentary form and much reliance cannot be placed on it.

Thumb impression:

The thumb impression on document cannot be examined by the court. Such comparison should be made by the experts.

Use of Firearms:

In cases where firearms are used for committing the crimes the opinion of ballistic experts assume importance.

Drugs and Narcotics:

Contraband was seized under the Narcotic Drugs and Psychotropic Substances Act, 1985. The analyst in his chief examination stated that the contraband was “charas.” It was held that the probative value of his evidence could not be destroyed merely because in cross-examination he could not answer whether the contraband contained cow dung also.

Typewriter:

The letter typed on a particular typewriter as opined by an expert was held to be not relevant under section 45 of the Act.

Ballistic experts:

The ballistic experts may trace out a bullet or cartridge to the particular weapon from which it was discharged. The science of ballistics may be helpful to ascertain the actual distance from which a shot was fired. The report of the ballistic expert is admissible in evidence without calling him as witness. When the weapon has not been seized, the question of examination of ballistic expert would not arise.

If a shot is fired from a mouser gun of 315 bore from a distance of 15 & 20 faces, bullet must go out of badly and the wound of entry must have been followed by a wound of exit unless the gun was fired from a long distance. In such facts of the case the prosecution was held doubtful. Where convincing reasons were given by the ballistic expert to support his opinion about identification marks coming from pellets, the production of micro-photographs of pellets is not necessary. Failure to produce expert opinion before the trial court affects the creditworthiness of prosecution case.

DNA Test:

Women seeking declaration that she is legally wedded wife of appellant and her female child is legitimate daughter. DNA test was sought to be done. DNA Test is a proof of legitimacy of child to prove paternity of a child by DN A Test can be directed as a matter of routine, but reasons should be recorded while ordering last. In case of confusion regarding paternity the High Court under inherent powers can compel the parties to undergo DNA test to final truth of the matter to clear misunderstanding between parties.

Brain mapping test:

“The admissibility of a result of scientific test will depend upon its authenticity. Whether the brain mapping is so developed that the report will have a probative value so as to enable court to place reliance thereupon, is a matter which would require further consideration, if and when the materials is support thereof are placed before the court.”

Guidelines for Administration of Polygraph Test (Lie Detector Test) on an accused:

There guidelines published by the National Human Rights Commission and subsequently accepted by the Supreme Court should be strictly adhered to and similar safeguards should be adopted also for conducting the ‘Narcoanalysis technique’ and ‘Brain Electrical Activation Profile’ test. These include:—

(i) No Lie-Detector should be admistered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.

(ii) If the accused volunteers for a Lie-Detector Test he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and the lawyer.

(iii) The consent should be recorded before a judicial magistrate.

(iv) During the hearing before the magistrate, the person alleged to have agreed should be duly represented by a lawyer.

(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.

(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.

(vii) The actual recording of the Lie-Detector Test shall be done by an independent agency (such as hospital) and conducted in the presence of a lawyer.

(viii) A full medical and factual narration of the manner of the information received must be taken on record.

Homicide or suicide:

“Where the opinion in the post mortem report was that the death in question was homicidal and not suicidal and such opinion was accepted by the courts below and the Supreme Court could not take a different view.”

Post mortem report:

A post mortem report is no evidence. Sufficient weightage should be given to the evidence of the doctor who has conducted the post mortem, as compared to the statements found in the text-books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face-value even when it is self-contradictory.

Medical evidence v ocular evidence:

Death was caused by gun shoot injury. Ocular evidence was that the firing took place from a long range, where medical evidence had shown from close range. According to court the tattooing or charring of wound depend upon the constituents of propellant charge and the nature of gun have role to play. Hence, plea as to conflict in ocular and medical evidence regarding distance of firing is not tenable.

Evidentiary value of expert opinion:

As the expert opinion is a weak type of evidence it is usually considered to be of light value. The evidence of expert is not conclusive. The opinion of the expert is not binding upon a judge and that is why the court can refuse to rely on the evidence of an expert if it is not supported by circumstantial evidences.

The Supreme Court once observed that there is natural tendency on the part of expert witness to support the view of the party who called him could not be downgraded. Many so-called expert have been shown to be remunerated witnesses making themselves available to hire to pledge their oath in favor of party paying them.

No opinion of an expert is admissible unless he has been examined as witness. The adverse party has a right and opportunity of cross-examining the expert. Before expert testimony can be admitted, “two things must be proved, viz.:

(i) The subject is such that expert testimony is necessary;

(ii) That the witness in question is really an expert.”

“It is the duty of the judge to decide whether the skill of any person in the matter on which evidence of his opinion is offered, is sufficient to entitle him to be considered as an expert. Credibility and competence of an expert are material question.” The evidence of an expert is only an opinion. It is not the province of the expert to act as a judge or jury. Without examining the expert as a witness in the court no reliance can be placed on his opinion.

45A. Opinion of Examiner of Electronic Evidence:

When 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 79-A 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.