Introduction
Within the framework of the Indian Evidence Act of 1872, the term "Expert" lacks
a precise or explicit definition. However, an expert is essentially someone who
holds an elevated level of specialized expertise, knowledge, training, skills,
or experience within a specific domain or subject area. Their expertise extends
beyond the general understanding of the average person, enabling them to provide
informed opinions, interpretations, analyses, or solutions in their area of
specialization. Experts are often sought after for their ability to provide
insights, advice, and assessments that aid decision-making, problem-solving, or
understanding complex matters.
Key characteristics of an Expert
Specialized Knowledge: Experts have in-depth knowledge and understanding of a
specific subject area, often acquired through formal education, training,
research, and practical experience. Their knowledge is significantly more
comprehensive than that of a layperson.
Experience: Experts typically have substantial practical experience in their
field. This experience allows them to apply theoretical knowledge to real-world
situations, recognize patterns, and provide nuanced perspectives.
Qualifications: Experts often hold advanced degrees, certifications, or
professional qualifications relevant to their field. These credentials serve as
indicators of their expertise and competence.
Critical Thinking: Experts possess the ability to critically analyse complex
information, identify relevant details, and draw well-founded conclusions. They
can assess the validity and reliability of evidence and information within their
field.
Problem-Solving: Experts excel at solving intricate problems within their
domain. They can navigate challenges, devise strategies, and propose solutions
based on their deep understanding of the subject matter.
Research Skills: Experts are skilled researchers who stay up-to-date with the
latest developments, advancements, and trends in their field. They engage with
academic literature, attend conferences, and contribute to the knowledge base of
their discipline.
Communication: Effective communication is crucial for experts. They can convey
complex concepts and ideas in a clear and understandable manner to non-experts,
such as judges, jurors, or clients.
Objectivity: Experts are expected to provide unbiased and impartial opinions.
While they may be hired by one party in a legal case or consultation, their duty
is to provide an objective assessment based on their expertise and the available
evidence.
Ethics and Professionalism: Experts adhere to ethical standards relevant to
their field. They maintain the integrity of their work and ensure that their
opinions are grounded in accurate information and honest analysis.
Recognition by Peers: Experts are often recognized by their peers, colleagues,
and the professional community for their contributions to their field. Their
reputation and standing are built on their expertise and contributions.
Section 45, Indian Evidence Act, 1872 - Opinion of Experts
Section 45 says that when a court needs to understand a foreign law or a
difficult science or art matter, or to know if handwriting or finger impressions
match, the court can ask people who are really good at these things. These
people are called "experts." They can give their opinions to help the court
understand better. But remember, an expert's opinion is not like a strong proof;
it's just their best guess based on what they know.
Section 46, Indian Evidence Act, 1872 - Facts Bearing on Opinion of Experts
Sometimes, experts need to know the whole picture before giving an opinion.
Section 46 explains that experts can consider all the facts they need to give a
good opinion. This means they can look at everything that's relevant to the case
and then share their expert opinion.
Section 51, Indian Evidence Act, 1872– When are Grounds of Opinion Relevant?
When an expert gives an opinion, they should explain how they came to that
conclusion. Section 51 says that experts should tell the court what facts,
information, or things they used to form their opinion. This helps the court and
everyone else understand why the expert thinks that way.
In simple terms, these sections of the Indian Evidence Act talk about how
experts can share their opinions to help the court understand complicated
things. But even though an expert's opinion is important, it's not like a strong
proof. Experts need to explain how they reached their opinion and consider all
the facts that matter.
When an Expert is Called Upon?
In legal proceedings, an expert can be called upon to provide their opinion on
various matters, such as:
- Scientific Evidence: Experts in fields like medicine, forensics, ballistics, or DNA analysis might be called to provide their opinion on technical matters relevant to the case.
- Document Examination: Handwriting experts can help determine the authenticity of signatures or handwriting.
- Digital Forensics: Experts in computer science and technology can analyze digital evidence, such as emails, data recovery, and cybercrimes.
- Forensic Psychology: Experts in this field can provide insights into the mental state of individuals, such as determining the competence of a defendant to stand trial.
- Financial Analysis: In cases involving financial matters, experts in accounting or finance might be called to provide their opinions.
- Engineering: Engineers might be called to testify in cases involving structural failures, accidents, or other technical issues.
- Art Authentication: Experts in art and art history can help authenticate artworks and assess their value.
Who can call on Expert Opinion?
Both the prosecution and the defence can call on forensic scientists to provide
testimony to support their case, and many trials have expert witnesses who
present conflicting facts and interpretations. Despite this, a forensic expert
is expected to be impartial and assist the court in the administration of
justice.
Forensic scientists will state their names, qualifications and experience on the
stand before being examined by the party requesting their testimony. The expert
will answer questions based on the test protocols he has prepared.
Cross-examining the opposing party will attempt to discredit any fact or
interpretation that is prejudicial to their case. Juries are often influenced by
the clarity and confidence demonstrated by the expert during this
cross-examination.
How to present Scientific Evidence?
Dr Henry C. Lee, an American who is one of the most famous forensic scientists
in the world, has investigated more than 6000 cases and testified in many
trials. In an interview with Courtroom Television's Crime Library, he gave this
advice to a jury on how to present scientific evidence:
You cannot use long words. The jury is intelligent. I approach them in a logical
way to present the scientific facts—just the facts. I'm not speculating. Let the
jury decide for themselves. I use simple examples from life. Instead of naming
the chemical test, I'll just say "chemical test". I'm not trying to impress
them. If the bullet is found in the upper body, I will just say "upper body"
instead of "superior" or "front".
Evidentiary value of an Expert Opinion
Expert opinion is a type of evidence where people with special knowledge and
experience in a certain field share their insights and analysis in a court case.
Even though expert opinions can help understand complex matters, they're not
considered very strong evidence. Let's look at some reasons why:
Not Absolute Proof: Unlike clear facts or direct evidence, expert opinions don't
give a definite answer. They're more like educated guesses based on an expert's
experience. These opinions can be discussed and questioned, and they might not
always prove something is true.
Less Important: Among different types of evidence, expert opinions are usually
seen as less important. This is because they depend on what one person thinks,
instead of solid proof like physical objects. Different experts might have
different views, making their opinions less convincing.
Judge's Choice: An expert's opinion doesn't force a judge or jury to agree. The
court can choose to accept or reject it. The judge decides how much to trust the
expert's words and makes his own decision.
Need Other Proof: An expert's opinion becomes stronger when it's supported by
other evidence. If other things in the case match what the expert says, the
court might find the opinion more believable.
Examination and Cross-Examination: Before an expert's opinion can be used as
evidence, the expert has to be questioned in court. They talk about their
knowledge and how they came to their opinion. The other side also gets to
question the expert, which helps check if the opinion is reliable.
Must-Have Conditions:
Before expert opinions can be used, two things need to be
true:
The topic should need specialized knowledge that most people don't have. In
other words, only an expert can explain it well.
The expert should truly be an expert. The court checks if they have the right
qualifications and experience.
Personal View: Expert opinions can be a bit personal. They're often based on
what experts think after looking at all the information. Different experts might
have different ideas, which can make their opinions less dependable.
To sum up, expert opinions give important insights in complex cases, but they're
not as strong as clear facts. Courts look at how much an expert knows, how
relevant their opinion is, and if it fits with other evidence. In the end, it's
up to the judge or jury to decide how much weight to give to an expert opinion
when making their decision.
Court Judgments on Expert Opinion
An expert is a witness to a fact. His evidence is indeed advisory in nature. It
is the expert's duty to provide the judge with the necessary scientific criteria
for testing the correctness of the conclusions so that the judge can form his
independent judgment by applying those criteria to the factual evidence of the
case.
Evidence of scientific opinion, if it is comprehensible, convincing and
testable, becomes a factor and often an important factor to be considered along
with the other evidence of the case. The credibility of such a witness depends
on the reasons given in support of his conclusions and on the data and materials
provided which form the basis of his conclusions.
State of HP v. Jai Lal, 1999
Cr LJ 4294 (paras 17, 18 & 20) (SC): AIR 1999 SC 3318
The objective of expert evidence is to assist the court in forming its own
opinions. One of two ways to test an expert's honesty is to consider the number
of times he has issued opinions contrary to those who consult him.
Devi Prasad
v. State, AIR 1967 All 64
The competency of the expert witness should be determined and he should be
cross-examined. The expert opinion is not immediately admissible without its
review.
Balakrishna Das Agarwal v. Radhadevi Smt., AIR 1989 All 133
It is illegal for the High Court to replace an expert's opinion with his own
conclusions.
State of UP v. Shanker, AIR 1981 SC 897
The court is not obliged to accept the testimony of an expert in every case.
Madanlal v. Amarchand AIR 1950 Ajmer 68
The court may refuse to rely on an expert opinion that is not supported by any
reason.
Haji Md. Ekramullah v. State of West Bengal, AIR 1959 SC 488
An expert report is not conclusive evidence. After all, expert evidence is
opinion evidence. The opinion must be supported by reasons. The court must
evaluate it in the same way as any other evidence. The opinion becomes
acceptable if reasons in support of the opinion are convincing. There is no
place for the ipse dixit of an expert. It is for the Court to assess whether the
opinion was correctly reached on the facts available and for the reasons given.
In this case, it is worth noting that the expert does not claim that the prints
of the samples were identical to the tracks. In contrast, he contends that there
existed "certain resemblances". He admits that there were no ridges, so the
consideration of ridges did not arise.
State v. Kanhu Charan Barik, 1983 Cri LJ
133 at pp. 143, 144 (Ori)
Section 45 of the Indian Evidence Act covers writing on a typewriter - The
examination of a typewriter and the identification of the typewriter on which
the document in question was written is based on a scientific study of certain
salient features of the typewriter which are peculiar to a particular typewriter
and its individuality, which may have been studied by an expert qualified in the
field and therefore his opinion on this point relates to an aspect in the field
of science which falls within the ambit of Section 45 of the Indian Evidence
Act.
In the present case, even without the use of the word "handwriting" in Section
45 to include typing, the word "science" is sufficiently broad to meet the
requirement of treating the opinion of a typewriter expert as falling within the
scope of Section 45 of the Act about records.
The opinion of an expert on typewriters is admissible in the present case under
Section 45 of the Evidence Act, and the contrary opinion of the trial court and
the High Court is erroneous. State (
Through C.B.I. / New Delhi) v. S.J.
Choudhary, 1996 Cri LJ 1713 at p 1718 (SC)
It is not safe to believe the unsupported testimony of a fingerprint expert.
Caution seems to be the real rule. The court cannot delegate its authority to an
expert but must ascertain the value to be given to the expert's evidence in the
same way as the value to be given to any other evidence. If enlarged photo
prints are left side by side and their markings compared, it is much easier to
follow the fingerprint expert's reasoning about the points of similarity and
difference and assess the correctness of his conclusion. In the instant case,
the fingerprint expert contradicted his report in cross-examination on several
points. In these circumstances, the prosecution has failed to prove beyond
reasonable doubt that the thumb prints on the muster rolls are forged.
There is no denying the fact that most fingerprints found at crime scenes or
criminal objects are partially blurred and it is up to a skilled and experienced
fingerprint expert to say whether the mark is usable as fingerprint evidence.
Similarly, it is for the competent technician to examine and express his opinion
as to whether identity can be established and, if so, whether it can be done on
eight or even fewer identical characteristics, as appropriate.
As pointed out,
the view of the Director of Finger Print Bureau in this case is clear and
categorical and is supported by sufficient reasons. Therefore, there is no need
to hesitate and accept it as correct. Mohan Lal v. Ajit Singh, 1978 Cri LJ 1107
at p 1119 (SC): AIR 1978 SC 1183.
The expert's report was used as evidence by the prosecution without questioning
him in court. The court did not consider it appropriate, neither the prosecution
nor the accused filed a motion to summon and question the expert regarding the
subject of his opinion. The court was obliged to summon an expert if the accused
submitted such a request for questioning. Since it was not made, the appellant's
complaint authorized the use of the expert report without its judicial review
conducted in the High Court and overturned by the Supreme Court, was moot.
Phool
Kumar v. Delhi Administration, 1975 Cri LJ 778 at p 780 (SC): AIR 1975 SC 905
It is now well established that expert opinion must always be taken with great
caution and perhaps more cautiously than the opinion of a handwriting expert.
There is a wealth of precedential authority which holds that it is unsafe to
base a conviction solely on expert opinion without substantial corroboration.
Magan Bihari Lal v. State of Punjab, 1977 Cri LJ 711 at p 714 (SC)
In order for the Court to rely on the opinion of an expert, it must be shown
that he was not tainted by any bias and that the grounds on which he based his
opinion are convincing and satisfactory. For this reason, courts are cautious to
act only on the evidence of a handwriting expert. This does not mean, however,
that although there are numerous notable peculiarities and mannerisms which
stand out for the identification of the writer, the Court will not act on the
basis of expert evidence. In the end, everything depends on the nature of the
expert's evidence and the facts and circumstances of each case.
State of Maharashtra v. Sukhadeo Singh, 1992 Cri LJ 3454 at pp. 3468, 3469 (SC): AIR 1992
SC 2100: (1992) 3 Crimes 5: (1992) 2 CCR 195
Thumb print identification - The comparison of the ridge characteristics, if
they are large in number are sufficient for identification of the thumb
impression.
Mandrup Madho v. State of Rajasthan, 1975 Cri LJ 1277 at p 1278 (Raj)
The science of thumbprint identification is an exact science and admits of no
error or doubt. Jaspal Singh v. State of Punjab, 1979 Cri LJ 1386 at p 1388
The investigating officer also admitted in his evidence that he had mistakenly
omitted to mention the crime numbers in the inquest report. It appears that the
investigating officer was not diligent enough, but for this reason, the courts
do not think that the reliable and convincing evidence produced in this case by
the eye-witness, especially the doctor, should be discarded.
Dr. Krishna Pal and
others v. State of U.P., 1996 Cri LJ 1134 at pp. 1136, 1137 (SC)
The mere absence of sperm could not call into question the correctness of the
prosecution. As the girl was of tender age, the possibility of her unauthorized
involvement with the complainant cannot be ruled out and this possibility is
enhanced by the previous enmity. This court has already examined the argument of
hostility and also so-called disability in medical evidence. The mere absence of
sperm could not challenge the correctness of the prosecution. Prithi Chand v.
State of Himachal Pradesh, 1989 Cri LJ 841: AIR 1989 SC 702
Absence of sufficient evidence to prove a case of rape, but the presence of
essential elements of section 354 cannot be ruled out - In the given case, the
prosecutrix was over 18 years old at the relevant time. Penetration is an
essential element of the crime of rape, and therefore there must be proof of
actual penetration. However, the word penetration is not necessarily used.
The
only witness who can prove this is the prosecutrix. A rape conviction depends
almost entirely on the prosecutrix's evidence as to the essential ingredients,
other evidence being merely corroborative. It is always desirable that the
accused and the prosecutrix in the case of rape be medically examined as soon as
possible.
If this is not done as quickly as possible, valuable evidence of the accused's guilt may be lost. From the overview of the plaintiff's evidence, as
far as the penetration aspect is concerned, it appears that the same is not
apparent from her statement.
Although the word "penetration" is not required, it
must be inferred from the evidence that it was so intended. The plaintiff's
evidence was lacking in this regard. Therefore, the crime of rape was not
applied against the petitioner. But the materials on record clearly showed the
case under Section 354 I.P.C.
Rafi Uddin Khan @ Rafik Uddin Khan v. State of
Orissa on 22 July, 1991
The possibility of an error in the time factor could not be ruled out. The time
of death cannot be determined with mathematical precision. Courts do not
consider medical evidence to be conclusive on this point.
Harish J. Mal v.
State, 1982 Cri LJ 2123 at p 2128
The medical evidence shows that the plaintiff was not raped on August 19, 1980.
According to the medico-legal certificate, a swab was taken from the plaintiff's
vagina. This swab was sent to a chemical examiner for analysis. Reports from the
Central Forensic Laboratory did not show that any seminal stain was found on
them. Plaintiff's underwear also did not contain any blood or semen. But that
could be because the allegations are that the underwear was removed and thrown
on the ground.
However, the prosecution should have seized the clothes the
plaintiff was wearing at the time of the alleged rape because it might have
shown some seminal stains. The appellant's underwear seized at the hospital also
did not show any semen stains. Thus, the medical evidence falsified the evidence
of the eyewitnesses and the plaintiff. Mohd. Habib v. State, 1989 Cri LJ 137 at
p. 142
Admittedly, medical jurisprudence is not an exact science and it is indeed
difficult for any medical practitioner to say with precision and exactness when
a particular injury was caused and in the present case the exact time the
appellants may have had sexual intercourse with the plaintiff. The period of 24
hours before the examination was determined by the doctor only roughly and would
also include 20 or 18 hours before the examination. It was evident that the
doctor who examined the victims was in the best position to comment on the
medico-legal aspects of the crime committed against the victims. Partap Misra v.
State of Orissa, 1977 Cri LJ 817 at pp. 821, 822 (SC)
Errors in Forensic Tests
US researchers found that errors in forensic tests and false or misleading
testimony by forensic scientists were the main cause of wrongful convictions in
88 cases where DNA exonerated the convicted. The study was conducted by Jonathan
Koehler, professor of behavioural decision making at the University of Texas,
and Michael Saks, professor of law at Arizona State University. Koehler told
National Geographic magazine in August 2005 that 63 percent of wrongful
convictions were due to errors in forensic testing and 27 percent came from
incorrect expert testimony. He believes that perjury is the result of a close
relationship between police, prosecutors and forensics.
Conclusion
It's important to note that while experts can provide their opinions based on
their expertise, the weight given to their opinions by the court can vary. The
court evaluates the qualifications and credibility of the expert before
considering their opinion as evidence. The Indian Evidence Act, 1872 allows for
the admissibility of expert opinions under certain conditions, and the testimony
of experts can significantly influence the outcome of a case by providing
insights that laypersons might not possess. Expert opinions act as bridges built
with the materials of specialized knowledge. Their value as evidence isn't
absolute, yet it's immensely precious for untangling intricate cases.
References
- https://www.indiclegal.com/post/a-bird-s-eye-view-on-opinion-of-expert
- https://www.scribd.com/document/636756640/Untitled
- https://delhimedicalcouncil.org/pdf/validinformedconsent.pdf
- https://academyofexperts.org/users-of-experts/what-is-an-expert-witness/
- https://www.studyiq.com/articles/section-4546-51-indian-evidence-act1872-expert-opinion-indian-judiciary-free-pdf-download/
- https://indiankanoon.org/doc/304941/
Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email:
[email protected], Ph no: 9836576565
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