i

CODE OF CIVIL PROCEDURE PROJECT

ON

EXAMINATION OF EXPERT WITNESS BY COURT: RECENT

JUDICIAL TRENDS

SUBMITTED TO:

Mr. Shreyas Vyas

Faculty of Code of Civil Procedure

SUBMITTED BY:

Sidharath Bhardwaj
Roll no. 151

SECTION B

SEMESTER IX,

B.A. LLB (HONS.)

SUBMITTED ON:
August 21st, 2017
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Acknowledgements
I feel highly elated to work on the project “Examination of expert witness by court: recent
judicial trends”. Firstly I express my deepest gratitude towards Mr. Shreyas Vyas, Faculty of
Civil Procedure Code, to provide me with the opportunity to work on this project. His able
guidance ship and supervision in terms of his lectures were of extreme help in understanding and
carrying out the nuances of this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some typography or printing errors might have crept in, which are deeply regretted. I would be
grateful to receive comments and suggestions to further improve this project.

Sidharath Bhardwaj

Semester IX

Section B
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Table of Contents
Acknowledgements ii

Introduction 1

Research Methodology 2

 Objectives 2
 Methodology 2
 Mode of Citation 2
 Chapterisation 3
 Statue Used 3

Examination of witness under CPC 4

Pre requisites of expert evidence 7

Competency and credit of an expert 8

Expert opinion-evidentiary value 8

Recent judicial trends 10

Conclusion 11

References 12
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Introduction
Order XVIII of CPC talks about hearing of suit and examination of witness. Expert witness is
not defined under CPC. Thus this project deals with examination of expert witness as per the
provisions of Indian Evidence Act and also deals with rules regarding examination of witness
under CPC. Relevancy of expert opinion as also the definition of Experts has been expressly
provided for in Section 45 of the Indian Evidence Act wherein it has been laid down that when
the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity
of handwriting or finger impressions, the opinions upon that point of persons specifically skilled
in such foreign law, science or art, or in questions as to identity of handwriting or finger
impressions are relevant facts. Such persons are called experts. Further vide Section 46 of the
Evidence Act such other facts which are otherwise not relevant have been expressly made
relevant if they either support or are inconsistent with the opinions of experts, when such
opinions are relevant. Some critical points which are very essential as well encompassing the
role of the experts in the field of law are given herein-below.
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Research Methodology
OBJECTIVES

 To introduce the concept of Expert witness.

 To discuss the provision related to examination of witness under Order XVIII of
CPC,1908.

METHODOLOGY
This project is theoretical, descriptive and analytical in nature. The type of the data used is
secondary. Accumulation of the information on the topic includes wide use of primary sources
such as cases as well as secondary sources like books, e-articles etc. The matter from these
sources have been compiled and analysed to understand the concept.

Websites, dictionaries and articles have also been referred.

The structure of the project, as instructed by the Faculty of Code of Civil Procedure,1908 has
been adhered to and same has been helpful.

MODE OF CITATION

All the citations in the project follow the mode prescribed in the 19th Edition of Bluebook.
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CHAPTERISATION

Chapter 1 starts with the introduction of the Examination of witness and divides the research
project into categories. Chapter 2 has elucidated more on Expert evidence and has talked
*explicitly about expert opinion. Chapter 3 has given recent judicial trends related to expert
witness.

STATUTE USED
 Code of Civil Procedure, 1908.
 Indian Evidence Act, 1872
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Examination of Witness under CPC, 1908

Here are some rules of Order XVIII of CPC regarding Examination of witness:

Rule 1 Right to begin The plaintiff has the right to begin unless the defendant admits the
facts alleged by the plaintiff and contends that either in point of law or on some additional
facts alleged by the defendant the plaintiff is not entitled to any part of th e relief which he
seeks, in which case the defendant has the right to begin.

Rule 2 Statement and production of evidence

(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is
adjourned, the party having the right to begin shall state his case and produce his evidence
in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then
address the Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.

(4) Notwithstanding anything contained in this rule, the Court may, for reasons to be
recorded, direct or permit any party to examine any witness at any stage.

Rule 3A Party to appear before other witnesses Where a party himself wishes to appear as a
witness, he shall so appear before any other witness on his behalf has been examined, unless
the Court, for reasons to be recorded, permits him to appear as his own witness at a later
stage.

Rule 4 Witnesses to be examined in open Court The evidence of the witnesses in attendance
shall be taken orally in open Court in the presence and under the personal direction and
superintendence of the Judge.

Rule 5 How evidence shall be taken in appealable cases In cases in which an appeal is
allowed, the evidence of each witness shall be,- (a) taken down in the language of the
Court,- (i) in writing by, or in the presence and under the personal direction and
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superintendence of, the Judge, or (ii) from the dictation of the Judge directly on a
typewriter; or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically
in the language of the Court in the presence of the Judge.

Rule 6 When deposition to be interpreted Where the evidence is taken down in language
different from that in which it is given, and the witness does not understand the language in
which it is taken down, the evidence as taken down in writing shall be interpreted to him in
the language in which it is given.

Rule 8 Memorandum when evidence not taken down by Judge Where the evidence is not
taken down in writing by the Judge, 87[or from his dictation in the open Court, or recorde d
mechanically in his presence, he shall be bound, as the examination of each witness
proceeds, to make a memorandum of the substance of what each witness deposes, and such
memorandum shall be written and signed by the Judge and shall form part of the record,

Rule 9 When evidence may be taken in English (1) Where English is not the language of the
Court, but all the parties to the suit who appear in person, and the pleaders of such of the
parties as appear by pleaders, do not object to having such evidence as is given in English,
being taken down in English, the Judge may so take it down or cause it to be taken down.
(2) Where evidence is not given in English but all the parties who appear in person, and the
pleaders of such of the parties as appear by pleaders, do not object to having such evidence
being taken down in English, the Judge may take down, or cause to be taken down, such
evidence in English.

Rule 10 Any particular question and answer way he taken down The Court may, of its own
motion or on the application of any party or his pleader, take down any particular question
and answer, or any objection to any question, if there appears to be any special reason for so
doing.

Rule 11 Questions objected to and allowed by Court Where any question put to a witness is
objected to by a party or his pleader, and the Court allows the same to be put, the Judge
shall take down the question, the answer, the objection and the name of the person making
it, together with the decision of the Court thereon.
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Rule 12 Remarks on demeanour of witnesses The Court may record such remarks as it
thinks material respecting the demeanour of any witness while under examinat ion.

Rule 15 Power to deal with evidence taken before another Judge (1) Where a Judge is
prevented by death, transfer or other cause from concluding the trial of a suit, his successor
may deal with any evidence or memorandum taken down or made under the foregoing rules
as if such evidence or memorandum had been taken down or made by him or under his
direction under the said rules and may proceed with the suit from the stage at which his
predecessor left it. (2) The provisions of sub-rule (1) shall, so far as they are applicable, be
deemed to apply to evidence taken in a suit transferred under section 24.

Rule 16 Power to examine witness immediately (1) Where a witness is about to leave the
jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court
why his evidence should be taken immediately, the Court may, upon the application of any
party or of the witness, at any time after the institution of the suit, take the evidence of such
witness in manner hereinbefore provided. (2) Where such evidence is not taken forthwith
and in the presence of the parties, such notice as the Court thinks sufficient, of the day fixed
for the examination, shall be given to the parties. (3) The evidence so taken shall be read
over to the witness, and, if he admits it to be correct, shall be. signed by him, and the Judge
shall, if necessary, correct the same, and shall sign it, and it may then be read at an y hearing
of the suit.

Rule 17 Court may recall and examine witness The Court may at any stage of a suit recall
any witness who has been examined and may (subject to the law of evidence for the time
being in force) put such questions to him as the Court thinks fit. 92[

Rule 17A Production of evidence not previously known or which could not be produced
despite due diligence Where a party satisfies the Court that after the exercise of due
diligence, any evidence was not within his knowledge or could not be produced by him at
the time when that party was leading his evidence, the Court may permit that party to
produce that evidence at a later stage on such terms as may appear to it to be just.

Rule 18 Power of Court to inspect The Court may at any stage of a suit inspect any property
or thing concerning which any question may arise 92[and where the Court inspects any
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property or thing it shall, as soon as may be practicable, make a memorandum of any

relevant facts observed at such inspection and such memorandum shall form a part of the
record of the suit.

Prerequisites of expert evidence

For the sake of consideration of an expert testimony, there are two important conditions that
are necessary to be shown: That the subject is such that expert testimony is necessary. That
the witness in question is really an expert. 1 It must be proved that the witness is competent
enough to give the evidence and that the fact to be proved is a point of science or art of
which the witness is an expert in, before the opinion of a person can be admitted in
evidence.2 If a witness is not proved to be an expert, his opinion will become irrelevant. It
must be proved that the witness is an expert. He must be examined as a witness in the Court
and be subject to cross-examination.3

Who is an expert?
Section 45 defines an expert as a person who is especially skilled in a given field. The test of
judging the competency of a person is this: “Is it peritus4?” Is he skilled? Has he adequate
knowledge5? An expert is a person who has special knowledge and skill in a particular calling to
which the inquiry relates6. An expert witness is one who has devoted time and study to a special
branch of learning, thus is especially skilled on those points on which he is asked to state his
opinion. His evidence on such points is admissible to enable the tribunal to come to a satisfactory
conclusion. The section does not refer to any particular attainment, standard of study or
experience, which would qualify a person to give evidence as an expert. All persons who
practice a business or profession which requires them to possess certain knowledge of the matter
in hand are experts, so far as expertness is required. It is the duty of the judge to decide whether

1
Parat v. Bissessar, ILR 39 Cal 245
2
Raj Kishore v. State, AIR 1969 Cal 321
3
Balkrishna Das Agarwal v. Radha Devi, AIR 1989 All 133
4
“Peritus virtute official” i.e. the holder of some official position which requires and, therefore, presumes a
knowledge of that law.
5
U.S. Shipping Board v. Ship “St. Albans” 1931 PC 189
6
Lawson on Expert Testimony, 2nd Edn, 229.
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the skill of any person in the matter on which evidence of his opinion is offered is sufficient to
entitle him to be an expert. Opinion is estimation, a belief or assessment, a view held as
probable, what one thinks about a particular question or topic, an assessment short of grounds of
proofs, a formal statement of reasons for the judgment, a formal statement of professional
advice7.

Competency and credit of an expert

Under section 45 of Indian Evidence Act, the evidence of an expert can be led on a question of
foreign law etc., to enable the tribunal to come to a satisfactory conclusion. It is for the Court to
decide the competency or fitness of a witness. The test is to see if the witness is sufficiently
qualified by experience.8His credit can be challenged by cross-examination, or by the contrary
evidence of another expert or by showing that he had expressed a different opinion on the same
question previously or in any of the modes allowed u/s 146 to 153 and S. 155 to impeach the
credit of a witness generally.

Expert opinion– evidentiary value

The opinion of an expert must be of corroborative nature to the facts and circumstances of the
given case. If the opinion contradicts an unimpeachable eyewitness or documentary evidence,
then it will not have an upper hand over direct evidences9. The Section does not provide for any
specific attainment of knowledge or study or experience for being called an expert. Experts are
admissible as witness but, they are not to make conclusion as it is a judicial function. In Forest
Range Officer v. P.Mohammad Ali,10 it was held that expert opinion is only the opinion
evidence. It does not help the Court in interpretation. The mere opinion of an expert cannot
override the positive evidence of the attesting witness.11 Expert opinion is not necessarily

7
www.legalserviceindia.com/article/l45-Law-of-Evidence.html
8
Gopeswar v. Biseswar 16 CWN 265 (285)
9
http://www.legalserviceindia.com/article/l45-Law-of-Evidence.html
10
AIR 1994 SC 120
11
U.Jhansi Lakshmi Bai v. P.Mohammad Ali, AIR 1994 SC 120
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binding on the Court.12 In Murali Lal v. State of Madhya Pradesh,13 it was held by the Supreme
Court that here is no justification for condemning the opinion evidence of an expert to the same
class of evidence as that of an accomplice and insist upon corroboration. The court also stated
that it would be a grave injustice to base a conviction solely on the opinion of handwriting expert
or any other kind of expert, without substantial corroboration. An expert deposes and not
decides. His duty is to furnish the judge with the necessary scientific criteria for testing the
accuracy of his conclusion so as to enable the judge to form his own independent judgment by
the application of these criteria to the facts proved in evidence14.

The questions put to an expert are generally hypothetical as they assume something for the time
being. An expert witness must himself come and give evidence in court. His certificate cannot go
in automatically without proof unless permitted by statutory exceptions like s. 509 (medical
certificate), or section 510 or the CrPC (report of the chemical analyst).

Order 16 Rule 14 of the Code of Civil Procedure empowers the Court to summon on its own any
person to give evidence or to produce any document in his possession if the Court is satisfied
that the evidence of such witness is necessary to arrive at a just conclusion.

12
Las Society of India v. Fertilizers and Chemicals Travancore Ltd. AIR 1994 Ler. 308
13
1980 SCR (2) 249
14
www.indiankanoon.org/…/813088/?formInput=handwriting
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Recent judicial trends

Sri Dhwajendra c. Roy v. State of Assam & ors15 Decided On: 06.06.2012

Judgment- The court finalized that it was not solely relying on the opinion of the handwriting
experts. The documents seized from the accused’s house when taken into consideration hinted
towards the same conclusion which was similar to the one given by the handwriting expert.
Further, the act of abscondance of the accused-petitioner furnishes evidence against him of his
being responsible for committing forgery on the said two documents. one typed authorization
letter, partially legible, in the name of Mangalu Roy, was also found in the said search, Mangalu
Roy being, interestingly, the name of the person, in whose name, letter of authorization, in the
present case, was shown to have been issued in order to enable withdrawing of the said sum of
Rs. 1,65,000/-. This was yet another circumstantial evidence pointing to the guilt of the accused.

In the most recent judgment rendered by the Hon’ble Supreme Court in the case titled as Ramesh
Chandra Agarwal v/s Regency Hospital Ltd 11 September, 2009., scope of the opinion of expert
has been explained. In order 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. An expert is a person
who devotes his time and study to a special branch of learning. However, he might have acquired
such knowledge by practice, observation or careful study. The expert is not acting as a judge or
jury. The real function of the expert is to put before the Court all the materials, together with
reasons which induce him to come to the conclusion, so that the Court, although not an expert,
may form its own judgment by its own observation of those materials. Another important thing
to remember is that an expert is not a witness of fact (like other witnesses) and his evidence is
really of an advisory character. The duty of the expert witness is to furnish the Judge with the
necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge
to form his independent judgment by the application of these criteria. No expert can claim that he
could be absolutely sure that his opinion was correct.

In the case titled as State of Maharashtra v/s Damu s/o Gopinath Shinde and others, AIR 2000
SC 1691, it has been laid down by the Hon’ble Supreme Court that without examining the expert
15
MANU/GH/0327/2012
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as a witness in Court, no reliance can be placed on an opinion alone. Mere assertion without
mentioning the data or basis is not evidence, even if it comes from an expert. Where the experts
gives no real data in support of their opinion, the evidence even though admissible, may be
excluded from consideration as affording no assistance in arriving at the correct value.

Conclusion
Thus, we may conclude that this provision is based on the principle that as judges are not
properly equipped to draw proper inferences from the facts stated by witnesses, it is appropriate
that the opinion of an expert must be taken into consideration. But the expert’s opinion is a weak
form of evidence, especially in the cases where the sufficiency of knowledge is doubtful. An
opinion or belief may be of an expert or a non-expert. A witness, in order to give an opinion,
must be competent and the subject matter must be one in respect of which an opinion is allowed.
The subject matters of opinion involves skill in a particular trade or profession or a special
knowledge of a particular science or art. However, in matters of age, identity or the condition of
a person or thing, the belief of the witness is sometimes accepted when it is based on facts within
his own knowledge. A jury, however, is entitled to accept or reject the belief or opinion of any
witness.
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References
Book:

 Takwani, C.K., Civil Procedure, 4th Edition, Eastern Book Company, Kolkata, 1999
 Avtar Singh, Code of Civil Procedure, 4th ed. Central Law Publications, 2008.
 Lal, Batuk. The Law of Evidence. Allahabad: Central Law Agency, 2007