This article has been written by Peuli Chakraborty, from AMEX Law College, University of Burdwan, West Bengal

Table of Contents

Introduction

Whenever a person is summoned before the court of law, it’s anticipated, that he’ll be delivering his testimony. However, the testimony shall be permissible, only when it’s been substantiated, that the person is somehow related to the case. Otherwise, an opinion of a third party, who’s actually not familiar with the case, is inadmissible.

However, there is an exception in this regard. The experts’ are considered to opine, even if they’re not related to the case. The court requires these experts, in order to determine something, of which the court doesn’t even possesses that much of knowledge.

The provisions pertaining to experts’ opinion, have been interpreted in Indian Evidence Act, 1872.

Who are Experts?

Persons, who are highly skilled and experienced, as well as erudite, in a particular field of study. Basically, persons, who possess an adequate amount of knowledge and experience, in a particular field of study.

Bal Krishna Das Agrawal v. Radha Devi and others (1989), SC

It was held that, expert is a person, who, due to his experience and knowledge, has acquired the authority or capability, to place his opinion.

Abdul Rehman v/s State of Mysore

This is one of the renowned case laws, with regard to experts’ opinion. In this case, the issue arose, that, whether a goldsmith shall be considered to be an expert. The court held, that, a degree or an attainment is not inevitable, to be an expert. The experience and knowledge of person, in a particular field/fields, shall be adequate to opine on any matter.

Illustration

If it is to prove, that, whether X has died, due to slow poisoning, then the experts, who are quite experienced regarding the symptoms of slow poisoning, may opine, that whether these symptoms appeared in the body of the deceased person.

When the opinions of the experts are sought by the Court?

Experts opinions are usually sought by the Court, during framing of an opinion, by the court. The opinions are usually sought, in the field of –

• Foreign Law,

• Arts,

• Science,

• Identity of Handwriting,

• Finger Impressions.

The Court is empowered to take an expert opinion, when it comes to any tenacious issue and especially when the Court does not have the idea of dealing with such complicated case.

When is the opinion of the third party becomes relevant?

This concept, related to the opinion of third person, has been elaborated in between sec 45 – 51 of the Indian Evidence Act. Let us dig into the concept –

1) Sec 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, codified under section 79A of the Information Technology Act, is a relevant fact.

Illustration – If it is to prove, that whether the death of X took place, due to injecting a deadly poison. The opinion of experts, related to the poison and the symptoms of the consumption of the poison, on account of which the death took place, shall be relevant.

2) Sec 46 – Facts, bearing upon the opinion of the experts

When the Opinion of an expert is relevant, any statement or any fact, as delivered by him, if contradicts or supports his opinion, immediately becomes relevant.

3) Sec 47 – Opinion as to handwriting, when relevant :

Whenever, the Court is about to form an opinion, regarding the handwriting, of a person, by whom a document was signed or written, then, the opinion of the person –

• Who is acquainted of familiar with that handwriting, or,

• Who has received or secured the document, as written by that person,

• The Court even can proofread the handwriting under sec 73 of the IEA.

Illustration 1 – A had signed a document. B is already familiar with the signature of A. If, B informs the court, that this signature belongs to A, then it becomes relevant.

Illustration 2 – The issue arose that whether the letter, as dispatched, was written by A ( whether the handwriting is A’s handwriting). Now, B is one of A’s friends and he sends letter to A as well as receives letters, written by A. C is B’s best friend and he often came across the letters, written by A to B. Apart from this, D is also another bosom friend of B and came across the letters, written by A to B.

It must be included, that both C and B is familiar with the handwriting of A and if they provide their testimony, with regard to the handwriting, that shall be relevant, even though they didn’t see A to write the letter.

Fakhruddin vs State of MP, 1967 SC

It was held that, handwriting may be proved by the evidence of a witness in whose presence the writing was done, and this would be direct evidence. If such evidence is in existence, then no other evidence is required.

4) Sec 47 – A – Opinion as to Digital Signature, when relevant

If the case, is, with reference to the Electronic or Digital Signature, then the opinion, of the Certifying Authority ( in order to prove that whether the Certifying Authority issued the Digital Signature) becomes relevant.

5) Sec 48 – Opinion as to the existence of right or custom, when relevant :

If there is an existence of a general rule or custom, then the person, who’s quite experienced and erudite, in this regard, may opine.

This sec expounds that the testimony of such person shall be taken into account, who is actually having sufficient amount of knowledge, about the custom in question. This sort of opinion shall be relevant.

Brijlal v. V.M. Chandra Prabha

The court held that, person who is opining under this section, must be having an adequate amount of knowledge regarding the opinion he is providing. There must be some genuineness behind his words, as rendered by him.

6) Sec 49 – Opinion as to usage, tenets etc, when becomes relevant

When the court has to form an opinion as to-

a) Usages and tenets of any body of men or family, or

b) Constitution and Government of any religious or charitable foundation,

c) Opinion of person having special means of knowledge.

7) Sec 50 – Opinion on relationships, when becomes relevant

When an opinion is required to be formed, with respect to a relationship, to one another, and the opinion, as expressed (by conduct), regarding the relationship, either

• by a family member, or

• other people

Who possess a special knowledge, regarding the existence of that relationship, shall be relevant.

Illustration 1 – The issue arose, whether P and A are married. It was informed in the court, that are addressed as husband and wife, each and everytime, by their relatives as well as friends. Hence, this information shall also be relevant.

Illustration 2 – The tiff was about the legitimacy of the relationship between A and B. It was to prove that, whether A is the legitimate son of B. The information, with regard to it, provided by their family members shall be admissible and relevant at the same time.

However, such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code.

8) Sec 51 – Grounds of opinion when relevant

The grounds or basis, based on which, an expert makes his opinion, shall also be relevant.

When the Opinion of a third person, becomes relevant?

The opinion of a third person, shall be relevant, only when it is related to the case, filed in the court of law.

Illustration – Suppose, Mrs. Priyanka died in 2020 and an expert clarifies that she died, due to slow poisoning. Here the piece of information, as given by the expert, becomes relevant.

The Evidentiary Value of the opinion of third person

As we have already bumped into the fact, that experts’ opinions, are those opinions, where the experienced and erudite people ( i.e the experts), efficient on a specific subject matter, deliver their opinions and entire analysis. In accordance with sec 46, experts’ opinions, if contradict, still these become relevant, since these opinions have it’s own magnitude to be honest.

On top of that, the experts have been provided with a privilege, which is that, if it is not getting mandated on the part of the Court, then the experts are not required to attend the court proceedings, rather they may designate any other person ( as per their choice), in terms of attending the court proceedings, for the purpose of providing the testimonies.

Persons, who are quite well aware of the fact of the the case, are supposed to be designated, for providing testimony.

Despite their experience and consciousness, their opinions may not be strong evidence all the time. Basically, if the court completely relies upon the fact, as specified by the experts and doesn’t even concentrate on the case itself, then it might weaken the entire case. The rationale behind this, is that the expert himself doesn’t even know the entire fact of the case, as he’s supposed to confer his opinion, on the concept, he was specifically asked by the court and nothing more than that. The expert is definitely not an eye witnesses of the incident, whichever took place.

One more thing is to be included, that, the expert himself is a human being. As we bumped into the fact that “ to err is human ”. Therefore, being a human being, he might not know each and every single, with reference to the subject matter, he was asked and a blunder might take place, by means of him too.

The rationale behind this is, if the judge totally relies upon the experts’ opinions, then it may lead to miscarriage of justice. This is just in the form of a help or a piece of advice, which the court is not obliged to abide by.

Ram Narain v/s State of Uttar Pradesh

The expert opinion, related to hand-writing, is definitely relevant but it cannot be treated to be a substantive evidence, and therefore, before proceeding with it, the courts usually look for corroboration, either by direct or circumstantial evidence.

Emperor v/s Kudrat

The Court held that, it cannot be relied upon, when the expert opine on someone’s age, by looking at his teeth, appearance, height and physique. The court must not rely upon the statement of the experts, if they opine that they find that person to be guilty, by looking at his appearance. The court, before delivering any verdict, is supposed to look into the fact of the case as well as the experts’ opinion.

State of Haryana v. Bhagirath, 1999

Supreme Court held that, the opinion, provided by an expert witness need not be taken into account nor should be the last object to look at. This opinion shall be verified by the court and if it is irrational, then it shall not be admissible.

Conclusion

To conclude, the experts’ opinions are appeared to be pivotal in nature, as this particular concept has it’s own magnitude. Whenever the court is unable to contemplate on the statements delivered by the witnesses, the Court prefers a piece of advice from an expert. These opinions cannot be questioned, even though they’re not a party to the case. The rationale behind this adoption is to prohibit the miscarriage of justice.

However this kind of opinion may also be ailing in nature, since the experts’ are not the eye witnesses and may not provide an accurate piece of evidence all the time. Therefore, before proceeding with the opinions, the Court needs to examine the opinion entirely. The court may terminate the opinion at the same time.