A BIRD’S EYE VIEW ON OPINION OF EXPERT

Article submitted by Anachal tiwary.

INTRODUCTION

The object of every judicial investigation is the imposition of some right or liability which invariably depends upon certain facts. Any case which comes for settlement before the judiciary will be decided based on principles of evidence. Law of evidence is “a system of rules for ascertaining the controverted questions of facts in judicial inquiries”.

The word evidence is derived from the latin word evident or evidere which means “to show clearly, to discover clearly, to ascertain to prove.” The object of the rule of evidence is to help the courts to ascertain the truth to prevent protracted inquires and to avoid confusion in the minds of judges, which may result from the admission of evidence in the excess. Thus the Indian Evidence Act 1872 was passed with the object of preventing indiscipline in the admission of evidence by enacting a correct and uniform rule of practice.

However, mentioning specifically about India the enactment of the Indian Evidence Act has changed our judicial systems completely as there were no codified laws relating to the evidence before the British era and it was always based on the religious scriptures like Hindu Dharmashastras, Manusmriti, Yajnavalkya Smriti were used by King in ancient Hindu period to pronounce judgements as these books were the lawgivers of the time to trial the Hindus. According to Hindu Dharmashahstras, the purpose of any trial is the desire to find out the truth. On the similar lines, Muslim rules of evidence can be gathered from Sir Abdur Rahim’s “Muslim Jurisprudence” and their religious scriptures as Shariyat must be followed to trial the parties and pronounce the judgements.

Hence, with the advent of the British in India, any definite rules were absent regarding the law of Evidence as it was in chaos. So, there was a dire necessity for the codification of rules of law and first, such an attempt was made in 1835. Though the period between 1835 to 1853 eleven enactments was passed dealing with the law of evidence they are found to be inadequate. In the year 1868, a commission was set up under the chairmanship of Sir Henry Mayne who submitted the draft but was unsuitable for Indian conditions. Hence, later in the year 1870, the task was entrusted to Sir James Fitz James Stephen who submitted draft and subsequently enacted by the legislature and came into force on 1st September 1872 as Indian Evidence Act.

Experts opinion:

Indian Evidence Act 1872 is a procedural law and not substantive law. Procedural laws are the machinery through which substantive laws are brought into practice. Section 3 of the Indian Evidence Act defines the meaning of evidence.

Section 45 is one of the exceptions to the general rule that the evidence is to be given of the facts which are supposed to be within the knowledge of the witness only. The principle behind this exception is that the court cannot form an opinion on certain matters, which require the persons who have acquired the special skill and knowledge in that field. The matters on which the court cannot form any opinion are the ones which are technically complicated and professionally sophisticated.

Section 45 says that experts are to be appointed to form opinions on matters which require special skill and knowledge on. And such opinions are considered to be the relevant facts. The opinion of the experts is limited only to a few matters which are:

a. Foreign law

b. Science

c. Art

d. Handwriting

e. Finger impressions.

An expert is a skilled professional who has got some special knowledge In any particular field which a layman cannot possess. An expert has been 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]

The Supreme Court in the case of State of H.P. v. Jai Lal and Ors[2] said that “ Therefore, to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.”

Illustration- Question arises whether R, at the time of committing the offence, was incapable to know the nature of his act or that he was doing what was wrong or contrary to law because of unsoundness of mind. The opinion of the experts upon the points are relevant-

a. Whether the symptom exhibited by R commonly show unsoundness of mind and

b. Whether such unsoundness of mind usually renders the person incapable to know the nature of his act or to know what he does is wrong or contrary to law.

The characteristics of an expert:[3]

a. There must be some material on record to show that he is one who is skilled in that particular science and is possessed of peculiar knowledge concerning the same.

b. He must have made a special study of the subject or acquired experience therein.

The real function of the expert is to put before the court all the materials, together with reasons which induce him to conclude, so that the court, although not an expert, may form its judgement by its observation of those materials.[4]

The expert opinion is only corroborative evidence and not the sole basis of conclusive proof. In the court, the expert witness must be subjected to cross-examination. 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. Mere submission through any certificate or any other document is not sufficient.

The expert's evidence is only a piece of evidence and the weigh to be given to it has to be judged along with the other evidence as evidence of this nature is ordinarily not conclusive. Such evidence, therefore, cannot be taken as a substantive piece of evidence but is there to corroborate the other evidence.[5]

Evidence of experts after all is opinion evidence. The opinion has to be supported by reasons. The court has to evaluate the same as any other evidence. The reasons in support of the opinion, if convincing, make the opinion acceptable. There is no place for the ipse dixit of the expert. It is for the court to judge whether the opinion has been correctly reached on the data available and for the reasons stated.[6]

The apex court held that where the expert had given no reason in support of his opinion, nor was it shown that he possesses special skill, knowledge, and experience in the science of identification of fingerprints, it is unsafe to rely on such reasoned opinion, even if it is a developed science and the report otherwise admissible and relevant u/s 45.[7]

The evidence of the expert is not conclusive. The court has to examine the entire evidence on record, probabilities of the case including the evidence of the handwriting expert and on critical analysis, it should conclude.[8]

CONCLUSION

Despite the Indian Evidence Act is not fully comprehensive it is a ‘Lex Fori’ law which means laws of the land where court proceedings are taken and is a significant part of any branch of the judicial system. However, u/s 45 the Evidence act only provides about the relevancy of expert opinion but gives no guidance as to its value as it is considered sometimes that human judgement is fallible.

[1] Bal Krishna Das Agarwal v.s.Radha Devi and Ors AIR 1989 All. 133 [2] Appeal (crl.) 530 of 1997 [3] Bal Krishna Das Agarwal v.s.Radha Devi and Ors AIR 1989 All. 133 [4] Titli v. Jones AIR 1934 All 237 [5] Balkrishna Das Agarwal v. Smt. Radha Devi And Ors. AIR 1989 All 133 [6] State v. Kanhu Charan Barik 1983 Cr.L.J. 133 [7] Mohd v. State of U.P. [8] Jalagadugula Eswara Rao v. Davala Surya Rao civil revision petition no.359 of 2007