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Evidentiary Importance of Expert Witness and Opinion

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.

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.

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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