SCIENTIFIC EVIDENCE-EXPERT WITNESSES

M.R. Zafer*

THE TOPIC under discussion is very wide and much has been written on it.
The criminologists have written a lot about 'scientific evidence', which
bears the same relation to a judicial investigation as logic to reasoning.
The experts on the law of Evidence have produced treatises on 'expert
witnesses', whose opinions, are utilized for ascertaining disputed questions
in a judicial inquiry. Indeed, these works have provided a basis for this
study, which on account of brevity, has to be selective in its treatment.
The inquiries are confined mainly to matters common to expert testimony
in general. The writing is devoted to show how expert evidence, with its
limitations, can be harnessed to "enlarging and precisioning of data of
judicial proof."
The scheme of the study is as follows :
A. Scientific evidence
B. Expert witnesses
I. Nature and scope
II. Infirmities
III. Probative value
(1) Medical evidence
(2) Technical evidence
IV. Procedure
C. Privilege against self-incrimination.
A, Scientific evidence
During the last few decades the face of crime and its detection has
changed considerably throughout the world. There has not only been an
increase in the volume of crime, but the records show that serious crimes
are now being more carefully organized than they have ever been before.
Moreover, the conditions of modern life—its mobility, its complexity and
the congestion of population—have all increased the difficulty of getting the
criminal convicted by methods which were normally successful. A skilled
criminal ensures, that he is not detected while committing the crime, and is
able to reach and leave the scene of crime so rapidly that his presence at
the scene is temporary and unnoticed, while his outward life continues un-
interrupted many miles away.
The very conditions which have produced this situation have fortuna-
tely also produced methods seeking to untangle it. With the development
*LL.M. (Alig.); LL.M., J.S.D. (Yale); Reader, Faculty of Law, AHsrarh Muslim
University, Aligarh.
 54 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

of modern life, there has been a tremendous advance in scientific knowledge

and devices. This knowledge and these devices are being applied for the
purpose of obtaining circumstantial evidence to assist the prosecution to
secure the conviction of the criminal. The eye witness of a crime, no doubt,
supplies the most important evidence, which deserves utmost consideration
by the court, but it is subject to scrutiny, because it may be erroneous either
as a result of human error or of malice or misplaced loyalty. In view of
this, circumstantial evidence, which tests the accuracy of direct evidence of
eye witnesses is always welcome by the courts; and with the application of
scientific methods, greater reliance is placed on objective tests to trace or
prove the guilt of the accused, than on direct evidence.
When science is applied to crime investigation, it

does not fall neatly within defined channels, nor can its precise
contribution always be appreciated. It can range from a minor
confirmation made within a police organization to a highly
elaborate pooling of several techniques, as in the Christie or
Ruxton's cases.1

Generally the more skilled the criminal, the more scientific is the
investigation; and the rapidity with which the criminals use the scientific
devices for their own purposes demands constant vigilance, and the
application of new methods to counter those in use.
The progress of scientific criminology has had as great impact on
police work as on other spheres of life. Third degree methods which were
used to extort confession or other relevant information, have been con-
demned in almost all the countries. They are no longer practised, or if
practised, they are not tolerated.
In India, in spite of the safeguards, for the accused making a con-
fession under sections 24, 25 and 26 of the Indian Evidence Act, police
resort to various means to circumvent the law. Magistrates though charged
with the duty of recording confession under section 164 Cr. P.C., only if
they find it voluntary, often fail to administer the statutory warning before
recording the confession. But for some time forces have been at work to
liquidate the employment of such methods.
The courts have strongly condemned the reprehensible methods
employed by the police to secure confession of the accused. As far back as
1884, in Queen Empress v. Babul,2 the court pointed out that "instead of
working up to the confession, they work down from it." Then as late as
1956, in Amin v. State* Mulla, J., while passing strictures, observed :

But it is a sad commentary on the existing conditions that

1. Morland, Science in Crime Detection 145 (1958).
2. (1884) I.L.R. 6 Ail. 509.
3. A.I.R. 1958 All. 293.
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 55

even the most glaring misbehaviour of the investigating agency

in criminal cases quite frequently goes unnoticed by the trial
courts and instead of severly condemning these practices, they
go to the length of accepting spurious explanations offered by
the prosecution. They do not seem to realize that by this
attitude they not only encourage but contribute to the non-
observance of the rule of law.4

There is also great awakening everywhere to the need for the employ-
ment of scientific methods in the detection of crime. In Britain, the
Metropolitan Police Laboratory at New Scotland Yard exemplifies the
highly equipped expert system working in conjunction with the police
force. Similarly, the City of Glasgow Police Identification Bureau deals
with all the various scientific aids including chemistry, physics, spectoraphic
analysis, as well as ballsitics, hairs, fibres, and the like. These
laboratories in Britain are staffed by scientists appointed essentially
by the Home Office as civil servants with the express intention that they
should be independent experts who can make their scientific examination
and draw conclusions freely, impartially and independent of the police
authority. In U.S.A. the practical use of scientific criminology has reached
an advanced stage and one of the important centres is the Crime Laboratory
of the National Bureau of Standards. This laboratory was pressed into
service in the notorious Linderbergh kidnapping case, in which some very
elaborate investigations were made. The most important investigating
agency is the Federal Bureau of Investigation with its head quarters in
Washington where every possible scientific device for investigation is
available. The American police officers are quick to utilize every new
advance in science, including one of the up-to-date devices—lie-detector.
In India also, there is a growing realization that the scientific method
pays and promises good success. The police laboratories have proved
indispensable in bringing to light and presenting evidence which would
not have been available to the policemen of earlier generation. The
Central Bureau of Investigation, with its headquarters in New Delhi, is the
counter part of Federal Bureau of Investigation in U.S.A.
With the use of scientific evidence, questions of technical or scientific
nature come up before the court for determination. But the judges are
not expected to be sufficiently conversant with such matters as to form an
opinion or to arrive at the right conclusion regarding them, without the
aid of persons skilled in such matters. In such cases, the necessity of
expert evidence arises, and the investigator plays the role of a link between
'scientific evidence' and 'expert witnesses'. He must know when he ought
to resort to experts, which experts should be chosen and what questions
must be submitted to them.

4. Id. at 299.
56 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

B. Expert witnesses
I* Nature and scope
The relevant provisions relating to expert witnesses in the Indian
Evidence Act are as follows:

S. 45 Opinions of Experts. 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 orfinger-impressions,the opinions
upon that point of persons specially 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.
S. 46 Facts bearing upon opinions of experts. Facts, not other-
wise relevant, are relevant if they support or are inconsistant
with the opinions of experts, when such opinions are relevant.
S. 159 Refreshing memory. An expert may refresh his memory
by reference to professional treatises.

The term 'expert' as applied to a witness has a special significance

and no witness is permitted to express his opinion unless he is an expert
within the terms of section 45 of the Evidence Act5. But the section
does not refer to any particular attainment, standard of study or experi-
ence, which would qualify a person to give evidence as an expert.
Generally, a witness is considered as an expert if he is skilled in any parti-
cular art, trade or profession, and possessed of peculiar knowledge con-
cerning the same. He must have made a special study of the subject or
acquired a special experience therein. In such cases "the question is :
Is heperitus ? Is he skilled ? Has he adequate knowledge ?"6 This ques-
tion of competency or fitness of a witness as an expert is to be decided by
the judge.
When a witness is appearing as an expert, it is essential that, before
his evidence is recorded, he must prove himself to be an expert in the
particular science, art or trade he represents.
In each case therefore it must be asked : Is the matter one
upon which the witness is sufficiently qualified by experience;
and if he is, is it a matter upon which the witness is permitted
to assist the Court with his opinion ?7

In U.S.A., when a witness is produced as an expert, it is a prelimi-

5. Ram Dass v. Secretary of State, A.I R. 1930 All. 587.
6. R.v. Siherhck (1874) 2 Q. B. 766,771, per Lord Russell of Killowen, cited with
approval in United States Shipping Board v. The Ship "St. Albans", (1931) P.C. 189,
7. Jarat Kumari Dassi v. Bissessur Dutt (1912) I L.R. 39 Cal. 245 at 262, per
woodroff, J.
 SPECIAL ISSUE : LAWS Of EVIDENCE AND CONTRACT 57

nary question for the court to determine whether he has the requisite
qualifications. The court may also examine other witnesses to determine
whether the witness produced is qualified to depose as an expert.
In India, the practice prevalent in courts is different. If during the
examination-in-chief, which relates to opportunities and means of know-
ledge, it is shown that the witness is competent as an expert, his opinion
is admissible. But if during cross-examination it appears that he is not
competent as an expert, his evidence is weakened or entirely destroyed.
It is not at all possible to lay down any hard and fast rules to test
the reliability of experts. Some important considerations for deciding on
the credibility of a witness are :
(1) Whether the witness has the means of gaining correct infor-
mation. (2) Whether the witness has any interest in, concealing
the truth. (3) Whether the facts agree with the testimony.
The first two tests are applicable to the witnesses individually
and the third to the totality of the testimony tendered. The
question is: "Is the evidence consistent with the usual and
known principles of human conduct and with the common
experience of mankind ?"8
The subjects on which an expert can give his evidence are mentioned
in section 45 of the Indian Evidence Act. But sometimes, it may be
difficult to determine whether or not a particular question should be
referred to expert witnesses. For such issues, the court in Bachraj
Factories Ltd. v. Bombay Telephone Co. Ltd? suggested the following test:
Is the subject matter of inquiry such that inexperienced persons
are unlikely to prove capable of forming a correct judgment
upon it without the assistance of experts ? Does it so far
partake of the character of a science or art as to require a cause
of previous habit or study in order to obtain a competent
knowledge of its nature or is it one which does not require such
habit or study ?10
Where an expert states his opinion, as well as the facts, which he
noticed and upon which his opinion is based, his statement as to his opinion
is expert testimony, but his statement as to the facts on which his opinion is
based is simply the testimony of an ordinary witness. The evidence of an
expert differs from that of an ordinary witness in the following respects : (a)
His testimony need not be confined to actual facts, and he may give evidence
on facts as stated by other witnesses, e.g., a doctor who might not have
seen the patient personally can give his opinion as to the cause of the death
8. Ill Field's Law of Evidence 2865 (1971).
9. A.I.R. 1939 Sind. 245.
10. Amir AH, Evidence Act 447 (9th ed.) cited in the Bachranj case supra note 8 at
248.
58 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

on facts deposed, (b) He can speak about experiments made by him in

absence of parties (Illustration to section 51). (c) He can cite text books
of admitted authority relating to other cases of similar nature, for the pur-
pose of showing similarity in symptoms or in results from certain cases.
The help given by the experts in investigation of a case varies
widely in character. Expert evidence
may constitute the keystone of the case, it may provide corro-
borative detail, or it may assist by resolving doubts upon points
of minor importance or in sorting out the essential from the
non-essential.11
The expert can be of service, in the following ways12 :
(1) By supplying one or more missing links in a chain of evidence.
(2) By strengthening a weak link, or links in a chain of evidence.
(3) By checking the accuracy or otherwise of statements made
(a) by the suspect, or (b) by material witnesses.
(4) By clearing up doubtful points in the preliminary stages of an
investigatiorl which may or may not be significant at a later
stage.
(5) By assisting in the rapid clearing of routine inquiries.

The evidence of expert must be given orally in the ordinary way,

subject to certain exceptions, viz., the certificate of imperial serologist as
to the nature of blood stains and of the chemical examiner, which are made
admissible by themselves as such.

II. Infirmities
Far from being sacrosanct, expert evidence is subject to many
infirmities. It has to be scrutinized, sifted and tested like that of any other
witness. There are various considerations which have weighed with the
courts in treating the expert evidence with caution.
First, there is a possible danger of error or deliberate falsehood. As
stated in Happu v. Emperor™ "these privileged persons might be half-blind,
incompetent or even corrupt."14
Secondly, as observed by Norman, J., in Queen Empress v. Ahmad
Alleys the evidence of an expert:

[H]owever confidently he may speak, is ordinarily a mere matter

of opinion. Human judgment is fallible. Human knowledge
is limited and imperfect. New and previously unobserved
phenomena which, till they have been recorded, are supposed
11. Gross, Criminal Investigation 95 (1962).
12. Ibid.
13. A.I.R. 1933 All. 837.
14. Mat840.
15. U W.R. Cr, 25 at 26.
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 59

to be impossible, are constantly being noticed.

This weakness of expert witnesses was highlighted in State v. Walter™ in
these words :

Some so called experts will not hesitate to go upon the stand

and* testify upon matters of the greatest concern with little or
no preparation.... They wish to impress observer with their
omniscience and would never admit a lack of knowledge of any
thing suggested or enquired about as they feel that it will be
destructive of their reputation and of the standing of scientific
men generally. In fact a learned writer has stated, 'I don't
know' is the hardest thing for some experts to say and yet they
don't know—in many cases they don't know. No man ever
mastered all the knowledge on any of the sciences.
Thirdly, there is a chance of partisanship. As pointed out by Ryan:
It must be borne in mind that an expert witness, however
impartial he may wish to be, is likely to be unconsciously
prejudiced in favour of the side which calls him. The mere
fact of opposition on the part of the other side is apt to create
a spirit of partisanship and rivalry so that an expert witness is
unconsciously impelled to support the view taken by his own
side. Besides, it must be remembered that an expert is often
called by one side simply and solely because it has been ascer-
tained that he holds views favourable to its interests.17
Another observation to the same effect is:
The witnesses now in worst repute are what are called expert
witnesses—that is, witnesses retained and paid to support by
their evidence a certain view on a scientific or technical question.
We have heard about the old jeer about the three kinds of liars
—white liars, black liars, and expert witnesses. Yet the expert
witness is often not really a witness at all. He is a trained
man, who, like Counsel, comes forward to maintain for a fee a
certain view on an uncertain point, and to give his reasons for
that view.18
16. 65 Me. 74.
17. Ryan on Criminal Evidence inBritish India 127 (1912 ed.), quoted with approval
in Hari Singh v. Saniarni Lachhmi Devi, A.I.R. 1921 Lah. 126 at 127.
18. Strahan, Bench the Bar 65, cited in re Srinivasalu Naicker, 68 Law Weekly 61,
per Ramaswami J. See Boisgomoffv. Nahapiet Jute Company (1902) I.L.R. 29 Cal. 587
at 595 :
There exists in the case of expert witnesses a tendency to support the view
which is favourable to the party who employs them, so that it is difficult to get
from them an independent opinion. A high authority once said : "Skilled
60 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

Fourthly, instead of simplicity and clarity of expression, there is a

tendency of expert witnesses generally to cloud a simple issue in a deluge
of scientific terms. This tendency has been deprecated by the courts. In
Amalesh Chandra v. State™ it was observed :

On this medical aspect of the case both Counsel and the Judge
dwelt at inordinate length and the charge contains repeated
quotations from text books on Medical Jurisprudence. The
learned Judge also refers to the evidence and in his charge as
submitted to this Court, no attempt is made in many places to
explain the scientific terms used by the witnesses or to explain
the scientific terms used by those text books writers. .. In fact
portions of the charge dealing with the medical aspect were
quite unintelligible to [this Bench composed of] laymen with no
knowledge of anatomy and particularly anatomy of the brain
and heart.20

These considerations to a great extent detract from the weight to be

attached to expert's opinion. The courts have a tendency not to place
implicit faith in expert evidence. Like other witnesses, experts may be
cross examined as to their credit. The expert's attention may be drawn
to passages in treatises inconsistent with his opinion, with a view to con-
tradict him.

Ill* Probative value

The acceptability of the evidence depends on the grounds and cogency
of reasoning on which his opinion is based, as well as on his unequivocal
character. In Crown Prosecutor v. Gopal alias Malayathan,21 it was stated:
Wherever the Court has to deal with the evidence of an expert
witness in future, he will take the pains to have? the expert
explain in Court the reasons for his opinion. It is only after
hearing those reasons in detail that the.... [court] would be in a
position to express a sound opinion whether or not the expert's
opinion is satisfactory.22

At the same time

[lit must always be remembered that the Court is not to surren-
der its own opinion to that of experts who are called before it,
but with such help as the experts can afford the Court must
witnesses come with such a bias on their minds to support the cause in which
they are embarked that hardly any weight should be given to their evidence."
19. A.I.R. 1952 Cal. 481.
20. Id. at 484-85
21. A.I.R. 1941 Mad. 551
22. Id. at 552
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 61

form its own opinion on the subject in hand.23

The trend of judicial decisions leads to two generalizations regarding
the probative value of expert evidence. First, the expert evidence is viewed
not as a place of substantive evidence of a conclusive nature, but as a
piece of corroborative evidence to support other evidence of the case.
Secondly, though:
[T]here is nothing in the Evidence Act to require the evidence
given by an expert in any particular case to be corroborated
before it could be acted upon as sufficient proof of what the
expert stated....The Court should satisfy itself as to the value
of the evidence of the expert in the same way as it must satisfy
itself of the value of other evidence.24
In practice the courts do not ordinarily base their decision on expert
evidence alone unless it is supported by other evidence.
The expert evidence can broadly be divided under two heads: Medi-
cal and Technical. It is proposed to discuss the probative value of each
separately.
(1) Medical evidence
The ground covered by medical jurisprudence is very well described
by Taylor25 that it is
the application of every branch of medical knowledge to the
purposes of the law; hence its limits are, on the one hand, the
requirements of the law, and on the other, the whole range of
medicine.
He further observes :
[A]natomy, physiology, pathology pharmacology, medicine,
surgery, midwifery, gynaecology and the science ancillary there-
to, viz., chemistry, physics, botany etc., all lend their aid as
necessity arises; and in some cases all these branches of science
are required in the same case to enable a court of law to arrive
at a proper conclusion on a contested question affecting life or
property.
Medical evidence, according to Lyon, is used for determining ques-
tions relating to the following:
I. Identification of persons: (1) living, (2) dead;
II. General examination of persons: (1) living, (2) dead;
23. In the matter ofU, An Advocate, A.I.R. 1935 Rang. 178, per Page, CJ„ at 180
24. Ladharam Narsinghdas v. Emperor, A.I.R. 1945 Sind. 4.
25. Taylor, On Evidence
62 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

III. Death: (1) natural, (2) unnatural:

A. Homicidal
B. Suicidal
C. Accidental
IV. Assaults, wounds and injuries:
A. Homicidal
B. Self-inflicted
C. Accidental
V. Sexual matters—such as virginity, impotence, ^defloration, preg-
nancy, birth, delivery, rape, unnatural sexual offences.
VI. Insanity
VII. Toxicology or poisoning

The probative value of the medical evidence was stated in Sunil

Chandra v. State2* in these words:
Where there are alleged eye-witnesses of physical violence
which is said to have caused a person's death, the value of
medical evidence adduced by the prosecution in support of its
case is only corroborative. It proves that the injuries could
have been caused in the manner alleged and that death could
have been caused by the injuries so that the prosecution case
being consistant with matters verifiable by the medical science,
there is no reason why the eye-witnesses should not be believed.
The medical evidence does not itself prove the prosecution case.

A similar view was also expressed by the Supreme Court in Nagindra

Bala v. Sunil Chandra21, in the judgment delivered by S.K. Das, J., on
behalf of himself and A.K. Sarkar, J. The other point they made out
was, "...when a medical witness is called in as an expert he is not a wit-
ness pf fact. Medical evidence of an expert is evidence of opinion, not
of fact". It was further held:
[Y]ou must remember this particular point of view that if you
believe the eye-witnesses, then there is no question of having
it supported by medical evidence; unless the medical evidence
again in its turn goes so far that it completely rules out all
possibility that such injuries could take place in the manner
alleged by the prosecution and that is a point which you should
bear in mind, because if you accept the evidence of the eye-
witnesses, no question of further considering the medical evi-
dence arises at all. The only question in that case when you
consider the medical evidence is to test the eye-witnesses' version
as to whether any of the particular injuries shown in the report
26. AIR. 1954 Cal. 305 at 318
27. A.I.R, 1960 S.C. 706 at 714.
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 63

can be caused in the manner alleged by the prosecution. But

if you don't believe the eye-witnesses, then consideration of
the medical evidence in any manner becomes unnecessary".28

In this case Hidayatullah, J., who gave a dissenting opinion,

observed:
[A] medical witness who performs a post-mortem examina-
tion is a witness of fact, though he also gives an opinion on
certain aspects of the case. Further, the value of a medical
witness is not merely a check upon the testimony of eye-wit-
nesses; it is also independent testimony, because it may estab-
lish certain facts, quite apart from the other oral evidence. If
a person is shot at close range, the marks of tatooing found by
the medical witness would show that the range was small,
quite apart from any other opinion of his. Similarly, fractures
of bones, depth and size of the wounds would show the nature
of the weapon used. It is wrong to say that it is only opinion
evidence; it is often direct evidence of the facts found upon the
victim's person29.

In another case, Anant Chintaman Lagu v. State of Bombay™ the

Supreme Court held that the medical evidence was hardly conclusive and
decisive, because it was primarily an evidence of opinion and not of fact.
It was stated:

To rely upon thefindingsof the medical man who conducted

the post-mortem and of the chemical analyser as decisive of
the matter is to render the other evidence entirely fruitless.
While the circumstances often speak with unerring certainty,
the autopsy and the chemical analysis taken by themselves may
be most misleading31.

Sometimes there is a conflict between the statements of the eye-wit-

nesses and medical evidence. This question was discussed at length in
Thakur v. State*2, which was relied on in Bhagaban Barik v. State™. In
the latter, it was laid down:

Where there is a conflict between the medical evidence and

the oral testimony of witnesses the evidence can be assessed
only in two ways: a court can either believe the prosecution
28. Ibid.
29. A*, at 721.
30. A.I.R. 1960 S.C. 500.
31. Id. at 523.
32. A.I.R, 1955 All. 189.
33. (1961) 27 CUT. 116 at 122,
64 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

witness unreservedly and explain away the conflict by holding

that the witnesses have merely exaggerated the incident or
rely upon the medical evidence and approach the oral testi-
mony with caution testing it in the light of the medical evi-
dence; the first method can be applied only in those cases
where the oral evidence is above reproach and creates confi-
dence and there is no appreciable reason for the false implica-
tion of any accused; where the evidence is not of that character
and the medical evidence is not open to any doubt or suspicion,
the only safe and judicial method of assessing is the second
method.

Tn Golappa Avana Naik v. Stateu all the eye-witnesses unanimously

stated that the accused had given only blow with a batton on the head of
one Ramchandra, the deceased. This evidence was in conflict with the
medical evidence on record which showed four external injuries on the
person of the deceased. It was held, that the conflict between the state-
ment of the eye-witnesses and the medical evidence persisted and the
conclusion that could be drawn from it was that the alleged eye-witnesses
had not seen the occurrence.
In Surjan v. State ofRajasthan35, the Supreme Court laid down that
when medical evidence is in conflict with the oral testimony of eye-wit-
nesses, it gets better of the evidence of the eye-witnesses and discredits
the eye-witnesses. In Wilayat Khan v. State™> the Supreme Court summed
up the position by holding:

In dealing with the injuries found on (the deceased) the learn-

ed Judges (of the High Court) say.... "We do not think that the
evidence of witnesses of such a character as to be inconsistent
with the medical evidence." The test rather is whether it is
consistent with the medical evidence and, if not, whether the
accused should not get the benefit.87

Along with the medical evidence should be discussed the important

role played by the chemical examiner in the investigation of crime. In
every case of suspected poisoning, the doctor holding the post-mortem
examination must send the contents form inside the body for chemical
analysis for determining the poison, acids and the like used in the case.
In case of murder, the clothes* with blood stains; and in case of sexual
offences, the clothes with seminal stains, are sent for chemical analysis.
The4 authorities are clear that though a court is not bound to accept
and act on a report by a chemical examiner under section 510 Cr. P.C. as
34. A X R - s l ^ G o a . 72 at 75.
35. ALR. 1956 S.C. 425.
35. A.I.R. 1962 S.C. 122.
37. Id. at 125.
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 65

conclusive evidence of its contents, the reports may be used as evidence

with chemical examiner being examined in the court.
(2) Technical evidence
An expert may use scientific aids to give evidence in matters arising
out of the following:
(a) Finger-prints
(b) Foot-prints
(c) Handwriting
(d) Typewriting
(e) Ballistics
The probative value of evidence given by an expert in each of the aforesaid
matters would be discussed separately.
(a) Finger-prints
Finger-prints have apty been called the burglar's visiting card and
"being based on the reasonable assumption that nature never duplicates
herself, stand as the first direct weapon in the investigator's armoury."38
The primary use of finger-prints in criminology is to establish :
(0 the identity of a person either by comparison with existing records,
or as a check on an arrest that has been made as a result of collateral
inquiries;^ (ii) the identity of the instrument of crime. Once they were
even used to identify a highly intelligent Rhesus monkey, belonging to a
street musician, who had trained him to steel, particularly from open
windows and bring the results to him.89
As pointed out by Morland :
The world wide adoption of the finger-print system is due to
a varity of causes....Its infallibility is chief among these; but
hardly less important is the fact that certainty is attained by
methods „ basically simple and direct. Unlike certain other
sciences, finger-print experts do not dispute one another in
open court, for the finger-print is not a debatable object like a
forged signature, nor does it contain the differences which might
exist in photographs of the same person taken under different
circumstances and different ages.40
As to the probative value of the opinion of an expert on finger-prints
it has been laid down that it must have the same value as opinion of any
other expert, such as a medical officer, etc. In each case the evidence is
only a guide to the court to direct its attention to judge its value. The
court is at liberty to use its own discretion either in affirmative or differing
38. Morland, Science in Crime Detection 15 (1958).
39. Id. at 146.
40. Morland, Outline of Scientific Criminology 49 (1971).
66 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

from the view taken by the expert.41

The trend of the judicial decision is that the court is not bound to
accept the opinion of the expert without itself being satisfied as to the
reasons which led to the opinion of the expert. In the VirammaVs case it
was stated:
There is nothing in the so called science of finger-prints or the
qualifications of an expert in it, which need to have deterred
the lower Court from applying its own magnifying glass or its
own eyes and its own mind to the evidence and verifying the
results submitted to it by the witnesses... For if the finger-prints
are clear enough to sustain an argument, there is no reason
why an argument by way of deduction should not be as sure
foundation for a conclusion and it may be a better one than
any based on direct evidence.42
The question often arises as to whether a conviction can be based
upon the uncorroborated testimony of a finger-print expert. Gross states :
It may be observed here that the identification by a compe-
tent expert of one imprint, whether from a finger or thumb, or
a fragment of a print of either, is sufficient grounds for estab-
lishing the identity of the author of a crime and securing his
conviction, even when no other material evidence is avail-
able.43
In India, the position is different. In Harendra Nath Sen v. Emperor1*
the court enunciated the principle :
I do not think that it can be laid down as a rule of law, that it
is unsafe to base a conviction on the uncorroborated testimony
of a finger-print expert. The true rule seems to be one of
caution, that is to say, the Court must not take the expert's
opinion for granted, but it must examine his evidence in order
to satisfy itself that there can be no mistake, and the responsi-
bility is all the greater when there is no other evidence to corro-
borate the expert.46
(b) Foot-prints
Footprints have long been recognised as providing evidence of
identity and often lead to the arrest of the criminals. There is a developed
technique for taking their accurate records for purposes of study, compar-
ison and permanent reference.
41. See Public Prosecutor v. VirammaU A.I.R. 1923 Mad. 178.
42. Id. at 179.
43. Supra note 9 at 169.
44. A.I.R. 1931 Cal. 441.
45. Id. per S.K. Ghose, J., at 442.
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 67

But the evidence of foot-print expert is of no great value. Gross

points out:
As a rule, footprints are but seldom found where they are
wanted. Moreover, when they exist, they are rarely entire and
complete, and for that reason are considered of no value. As
regards really clean footprints, it seldom happens that they are
preserved so as to remain intact, or to inspire certainty that
they have some connection with the case. People who have
come upon the scene of a crime after it has taken place also
leave traces of their feet, fouling the important print, so that
one can no longer tell which is the significant footprint and
which the useless one.46
The courts are, therefore, reluctant to treat foot-print evidence as
conclusive, in the absence of confirmatory details. In Pritam Singh v.
State of Punjab*1 the Supreme Court held :
The science of identification of footprints is no doubt a rudi-
mentary science and not much reliance can be placed on the
result of such identification. The track evidence, however, can
be relied upon as a circumstance which, along with other
circumstances, would point to the identity of the culprit though
by itself it would not be enough to carry conviction in the
minds of the Court.48
The probative value of the evidence of foot-prints was discussed at
length by the Madras High Court in Re Paramban Mammadu*9 in these words:
If the Court is to make any use at all of foot-print impressions,
it must be satisfied from a comparison of the various foot-
prints that they are those of the persons whom the expert says
they are. The value of evidence with regard to foot-prints is
obviously very much less trustworthy than evidence with regard
to finger-prints. In a fairly good impression of a finger or even
in an impression where only a portion of the finger is shown,
there is a wealth of detail available to the expert and to the
Court for comparison. . With regard to foot-prints, on the other
hand, it would seem from the evidence and from what we have
able to read from Dr. Hans Grosse's book on Criminal Investi-
gation that one can only compare the general shape of foot-
prints found with the shape of impressions taken from the feet
of the person suspected. Even in this limited comparison, one
46. Supra note 9 at 263.
47. A.I.R. 1956 S.C. 415.
48. Mat423
49. A.I.R. 1951 Mad. 737.
 68 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

has not the same certainty as one would have in comparing the
finger-prints; because foot impressions vary considerably
according to the circumstances under which they are made.60
(c) Handwriting
The problems that generally arise in eases of disputed handwritings
in the court are51 :
(1) Whether the writing or the signature in dispute is genuine or
forged;
(2) Whether the writing or signature is written or signed by the
persons whose admitted or proved writing or signatures are on
the file of the court;
(3) Whether the writing or signature is in the handwriting of a
person other than the alleged writer;
(4) Whether an anonymous letter is written by a particular suspect
writer.
According to the Indian Evidence Act, the three methods of proving
a disputed handwriting are : (a) under section 45, by calling an expert
qualified to express an opinion on the disputed handwriting; (b) under
section 47, by calling a person or persons acquainted with the handwriting
of the person by whom the disputed document is alleged to have been
written or signed; and (c) under section 73, by comparison by the court
with a writing made in the presence of the court or admitted or proved to
be the writing of the person.
Both under sections 45 and 47, the evidence is an opinion, in the
former by a scientific comparison by an expert, and in the latter on the
basis of familiarity resulting from frequent observations and experiences
of any person. But in either case the court must satisfy itself, by such
means as are open, that the opinion may be acted upon.
"As to the value to be placed upon the appreciation of manuscripts",
states Gross :
[T]he most divergent opinions exist; some have made a science
of it and yet do not know how to appreciate sufficiently the
results of their examination, while others consider the know-
ledge so many persons pretend to possess as the mere product of
the imagination or at least of gross exaggeration.62
In Lalta Prasad v. Emperor*3 the court cited with approval the
following passage from Lawson's work on the Law of Expert and Opinion
Evidence :
50. Id. at 740.
51. Mehta, M.K., The Identification of Handwriting and the Cross Examination of
Experts 52 (1966).
52. Supra note 9 at 132.
53. (1910) 11 Cr. L.J, 114.
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 69

The evidence of the genuineness of the signature based upon

the comparison of handwriting and of the opinion of experts
is entitled to proper consideration and weight. It must ce
confessed however that it is of the lowest order of evidence or
of the most unsatisfactory character. We believe that in this
opinion experienced laymen unite with the members of the legal
profession. Of all kinds of evidence admitted in a Court this
is the most unsatisfactory. It is so weak and decrepit as
scarcely to deserve a place on our system of jurisprudence.54

Commenting upon this, Ayyar, J., in re Vankata Row, stated :

This passage possibly states in too depreciatory terms the
value of expert evidence. I am quite prepared to concede
that there may be cases in which the peculiarities in the hand-
writing of a person are so numerous and striking and there are
so many mannerisms of the forger that he has been unable to
avoid in committing his forgery that the Court might well come
to the safe conclusion on expert evidence alone that the writing
is that of a particular person.
However, the trend of judicial decision is to the effect that the
evidence of handwriting expert must always be received with great caution.
In Durga Prasad v. The State?* it was held :
It is not open however to the Court to accept blindly the state-
ment of the handwriting expert. The correct principle of law
is that the testimony of the handwriting expert should be
taken as a guide and with its assistance the Court should apply
its own observation to the disputed writing and reach the con-
clusion whether the signature which is denied, is or is not the
signature of the person denying it.5*
In this case, the court had actually discarded the opinion of the
handwriting expert. In Kishore Chandra v. Ganesh Prasad?* the Supreme
Court laid down that "conclusions based on mere comparison of hand-
writing must, at best, be indecisive, and yield to the positive evidence in
the case."
Enunciating the principle in Ram Chandra v. State of CAP,58 the
Supreme Court stated that: "normally it is not safe to treat expert
evidence as to handwriting as sufficient basis for conviction. But it may,
however, be relied upon along with other various items of external and
54. (1913)I.L.R. 36 Mad. 159 at 165,
55. A.I.R. 1952 Nag. 289.
56. Id. at 294.
57. A.I.R. 1954 S.C. 316.
58. A.I.R, 1957 S.C. 381.
70 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

internal evidence relating to the document in question." In a subsequent

case59 on the point, the Supreme Court again pointed out that "generally
expert's opinion must always be received with great caution but perhaps
none so with more caution than the opinion of handwriting expert and
it is unsafe to base a judgment purely on an expert's opinion without
substantial corroboration."
Next to the evidence of handwriting expert is the question of com-
parison by the court under section 73. Although it is permissible for a
court to compare the handwriting, the practice of a judge declaring whether
a disputed signature agrees with the other signatures of a certain person,
without the aid of experts but merely on his own inspection, has been
deprecated by experienced judges in many cases. In Barindra Kumar v.
Emperor?0 this practice was condemned thus :
I cannot think this was a proper course to pursue : a com-
parison of handwriting is at all times as a mode of proof hazar-
dous and inconclusive, and specially when it is made by one
not conversant with the subject and without such guidance as
might be derived from the arguments of counsel and the
evidence of experts.61
A similar view was also expressed in Rudragouda Patil v. Basangouda
Danappagouda.*2,
(d) Typewriting
As to the value of expert evidence on typewritten documents, prior
to the decision of the Supreme Court in 1952, there were inconsistant
judicial decisions.
In Manabendra Nath Roy v. Emperor** it was held :
It is true that Section 45 makes no reference to type-writers
but evidence as to the fact that the type-writers used in the
typing of the various Exhibits have certain defects which are
clear from the typing of these Exhibits is evidence of the fact
which can be competently given by an expert who had an
opportunity of examining the documents. The Court is entitled
to draw its own conclusion as to the source and authorship of
the documents from the whole evidence in the case and is
entitled to take into consideration the fact spoken to by an
expert witness tnat there are certain peculiarities in the typing
of the documents resulting from defects of the machines by
59. Ishwari Prasad Misra v. Mohammad Isa, A.I.R. 1963 S.C. 1728.
60. I.L.R. 37 Cal. 467.
61. Id. at 503.
62. A.I.R. 1938 Bom. 257.
63. A.LR. 1933 AIL 498.
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 71

which the documents were typed.64

But in a subsequent case, S.H. Jhabwala v. Emperor?5 of the same

High Court, it was laid down :

The opinion of an expert to the effect that one document has

been type-written on the same machine as another document
is not admissible under Section 45, Evidence Act. It is for
the Legislature to consider whether the section should not be
amended; but as it stands, it does not include such expert
opinion. The Court may ask the witness to explain points in
favour of the view whether the two documents have or have not
been type-written on the same machine, but mut come to its
own conclusion and not treat such assistance as an expert
opinion—a relevant fact in itself. The identity of the machine
on which two letters have been type-written would not by
itself show that the writer of the two is one and the same
person. But such a conclusion may be drawn from additional
evidence, i.e., internal evidence afforded by the document, or
external circumstancs, or the continuity of the correspondence
passing between the sender and the addressee.

The matter wasfinallydecideded by the Supreme Court in Hanumant

v. State of Madhya Pradesh™ where evidence of certain experts was led to
show that a letter of a particular date was not typed on the office type-
writer that was in use in those days but that it had been typed on another
typewriter which did not reach the office till a later date. It was held
that the opinion of the experts was not admissible under Evidence Act as it
did not fall within the ambit of section 45.
It may be pointed out that in view of the increasing use of type-
writers in the present age, forensic necessity demands the admission of
expert evidence on typing peculiarities. The claim of experts that the
identity of the machine may be established by proving the identity of the
defects or peculiarities which it impresses on paper, should be looked
into. Lucas points out :

Typewriting machines have all a distinct individuality and

the documents made, not only with different makes of machines
but with different machines of the same make, can generally
be recognized and the approximate age of a document can
sometimes be determined.67
64. Id. at 501.
65. A.I.R. 1933 All. 690 at 705; followed in Bachcha Babu v. Emperor, A.I.R.
1935 All. 162.
66. A.I.R. 1952 S.C. 343,
67. Lucas's Forensic Chemistry 115.
72 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

Such claim deserves consideration, and it is for the legislature to

take up the matter in the light of enlightened opinion on the subject and
to make the necessary amendment in section 45, so as to make expert
evidence on typewritten documents admissible.

(e) Ballistics
In case of offences by firearms, the firearm used together with the
bullets, cartridge cases, wads and the like found at the scene of the crime,
or bullets extracted from the body of the victim, are sent to the ballistic
expert for examination and his opinion. The ballistic expert can give
evidence to assist the court and establish : (1) the kind of weapon used;
(2) the distance from which the shot was fired; (3) the direction of fire
and the relative positions of the victim and the assailant; (4) whether it
was a case of accident, suicide or murder; and (5) the identification of the
weapon used.
But as pointed out in Mir Abbas v. Emperor :88
[T]he science of forensic ballistics can only bring home the guilt
to the weapon but not to the individual, for it can never be
said with certainty that the gun with which the crime is said by
the expert to have been committed, though found in the posses-
sion of the accused person, was in his possession when the
offence was committed.
The opinion of the ballistic expert, therefore, is of corroborative
value only and can only be useful for ascertaining whether the direct
evidence is true or not.
There are two decisions of the Supreme Court which serve to illustrate
the necessity of the evidence of ballistic expert and its probative value. In
Mohinder Singh v. State?9 it was held:
In a case where death is due to injuries or wounds caused by
a lethal weapon, it has always been considered to be the duty
of the prosecution to prove by expert evidence that it was likely
or atleast possible for the injuries to have been caused with the
weapon with which and in the manner in which they are alleged
to have been caused,. It is only by the evidence of a duly quali-
fied expert that it could have been ascertained whether the in-
juries attributed to the appellant were caused by a gun or by a
rifle and such evidence alone could settle the controversy as to
whether they could possibly have been caused by a fire-arm
being used at such a close range as is suggested in the
evidence.70
68. A.I.R. 1937 Pesh. 99
69. A.I.R. 1953 S.C. 416
70. Id. at 417
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 73

This case was considered in a subsequent case Gurucharan Singh v.

State of Punjab.11 It laid down:

These observations do not purport to lay down an inflexible

rule that in every case where an accused person is charged with
murder caused by a lethal weapon, the prosecution case can
succeed in proving the charge only if an expert is examined.
It is possible to imagine cases where the direct evidence is of
such an unimpeachable character and the nature of the injuries
disclosed by post-mortem notes is so clearly consistent with the
direct evidence that the examination of a ballistic expert may
not be regarded as essential. Where the direct evidence is not
satisfactory or disinterested or where the injuries are alleged to
have been caused with a gun and they prima facie appear to
have been inflicted by a rifle, undoubtedly the apparent incon-
sistancy can be cured or the oral evidence can be corroborated
by leading the evidence of ballistic expert. In what cases the
examination of a ballistic expert is essential for the proof of
the prosecution case, must naturally depend upon the circum-
stances of each case. Therefore, . (it cannot be laid down) as a
general proposition that in every case where a fire-arm is alleg-
ed to have been used by an accused person, in addition to the
direct evidence, prosecution must lead the evidence of a ballis-
tic expert, however good the direct evidence may be, and though
on the record there may be no reason to doubt that the said
direct evidence.72

IV. Procedure
The procedure with regard to the production of expert witnesses at
present poses three questions for consideration.
The first question is whether the expert should be called by a party
to serve that party's cause or appointed by the court to serve impartially.
Since the expert has a tendency to be biased in favour of the person who
calls him, and as pointed out by Justice Humphreys in R v, Nowelly that
"the expert is not a witness for the prosecution nor for the defence, but it
is witness of the Court", the appointment of an expert by the court merits
consideration.
In U.S.A., under rule 28 of the Federal Rules of Procedure obtaining
in American Federal Courts, the court may order the defendant or the
government or both to show cause why expert witnesses should not be
appointed and may request the parties to submit nominations. The court
may appoint any expert witness agreed upon by the parties and may
appoint witnesses of its own selection. He shall be subject to cross-ex-
71. AIR 1963 S.C. 340
72. Mat 346-47
74 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

amination by each party. The court may also fix reasonable compensa-
tion for the experts and provide for a method of payment. In the Model
Code of Evidence also, rules 402 to 410 provide about expert witnesses.
The experts are appointed by the courts.
There is a similar practice in some European countries also. In
France, in criminal proceedings, the investigating magistrate appoints the
expert, although a party may call his own expert at the hearing. In
Holland, the court appoints an expert if it is considered necessary. If
the parties agree about the persons to be nominated, their nominees are
appointed. In Germany, the parties merely request that the expert evi-
dence may be taken. Thereupon the court decides whether expert evi-
dence should be heard, and if so, selects the expert. The parties may
help the court by proposing suitable names of experts, but the court
will never consult an expert who is in any way connected with the parties.
In Switzerland, experts are not even termed "witnesses". The court
appoints the expert, whose task is to judge the facts objectively and not to
help the case of any party in particular. The parties are also at times
allowed to seek expert opinion and call experts.
The second question facing a lay tribunal is how to decide between
conflicting expert evidence. In such cases, generally speaking, in all sys-
tems, the court has to make up its own mind as to which evidence to
prefer. But in Austria, the court may call a third expert or can obtain an
opinion through a university faculty. In Germany, normally only one
expert is ordered to give his opinion, but where the issue is unusually
complicated, the court may consult several experts representing different
thoughts and then the decision of the court depends entirely upon the
onus of proof. In Switzerland, the court prefers the opinion expressed by
the expert appointed by the court. If the opinion of the privately appoint-
ed expert is more convincing, the court may also order a second expert to
give his opinion.
The third question is whether the experts should normally submit a
report in.writing to the lawyers before appearing in the case a witness and,
if so, whether such reports should be made available to the court and the
other side. This procedure, if adopted, would enable the experts on both
sides to consider the data supplied to them, discuss their reports and
reconcile the differences and thereby save the time of the court. But in
such cases where the court would order disclosure to the other side, it
would involve a change in the basic law of privilege, and the parties to
the litigation would have to wave their professional privileges. In the
countries aforesaid where the expert is appointed by the court, there is no
difficulty and the report as such can be made available to the court and
also to both parties.
Our present law of expert witnesses should also be, therefore,
examined in the light of the practice and procedure in various other
countries.
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 75

C. Privilege against self-incrimination

The overall effect of sections 4 and 5 of the Identification of Prisoners
Act, 1920, and section 73 of the Indian Evidence Act, is that measurements
or photographs of a person may be taken or hisfinger-prints,foot-prints and
handwriting specimens be obtained for the purpose of investigation.
Though "much has been written and discussed in England and
America as regards the historical origin and development of the rules
against 'testimonial compulsion', and "long before our Constitution
came to be framed the wisdom of the policy underlying these rules had
been well recognized", the Supreme Court and the High Courts in India
have been seized of the problem of "testimonial compulsion".
Is a person compelled "to be a witness" against himself within the
meaning of article 20(3) of the Constitution when he is compelled to give
his specimen handwriting or signature, or impressions of his finger, palm
or foot to the investigating officer? Is he compelled "to be a witness"
against himself within the meaning of the same constitutional provisions
when he is compelled to give his specimen handwriting and signature for
the purpose of comparison under the provisions of section 73, Evidence
Act? These are the main questions that have been raised before the courts.
In M.P. Sharma v. Satish Chandra™, the Supreme Court considered
the content of the words "to be a witness" and laid down:
Broadly stated the guarantee in article 20(3) is against "testi-
monial compulsion". It is suggested that this is confined to
the oral evidence of a person standing his trial for an offence
when called to the witness-stand. We can see no reason to con-
fine the content of the constitutional guarantee to this barely
literal import. So to limit it would be to rob the guarantee of
its substantial purpose and to miss the substance for the sound
as stated in certain American decisions. The phrase used in
Article 20(3) is "to be a witness". A person can "be a witness"
not merely by giving oral evidence but also by producing docu-
ments or making intelligible gestures as in the case of a dumb
witness (see S. 119, Evidence Act) or the like. "To be a
witness" is nothing more than "to furnish evidence" and such
evidence can be furnished through the lips or by production of
a thing a document or in other modes or of Indeed, every
positive volitional act which furnishes evidence is testimony, and
testimonial compulsion connotes coercion which procures the
positive volitional evidentiary acts of the person as opposed to
the negative attitude of silence or submission on his part.74

This case was d&feseritly interpreted by the various High Courts

73. A.I.R. 1954 &C: 300.
74. Id. at 304.
76 JOURNAL OF THE INDIAN LAW INSTITUTE [1972]

resulting in a conflict of judicial decision on the point. The scope of

the words "to be a witness" was again considered by the Supreme Court
in its later decision in State of Bombay v. Kathi Kalu Oghad.™ In this case
the question before the court was whether article 20(3) was violated by:
(a) compulsorily obtaining handwriting from the accused by the police
during investigation; (b) directing the accused present in the court to give
his specimen writing and signature under the provision of section 73 of
the Indian Evidence Act; and (c) compulsorily obtaining the impressions
of the palms and fingers of the accused by the investigating police officer
in the presence of a magistrate. The court held that article 20(3) was not
violated in any of the aforesaid case. It stated :

"To be a witness" means imparting knowledge in respect of

relevant facts, by means of oral statements or statement in
writing by a person who has personal knowledge of the facts
to be communicated to a court or to a person holding an
enquiry or investigation. .Self-incrimination must mean con-
veying information based upon the personal knowledge of the
person giving the information and cannot include merely the
mechanical process of producing documents in Court which
may throw light on any of the points in controversy, but
which do not contain any statement of the accused based on his
personal knowledge.... When an accused person is called upon
by the Court or any other authority holding an investigation to
give his finger impression or signature or a specimen of his
handwriting, he is not giving any testimony of the nature of a
'personal testimony.' The giving of 'personal testimony' must
depend upon his volition. He can make any kind of statement
or may refuse to make any statement. But his finger impres-
sion or his handwriting, inspite of efforts at concealing the true
nature of it by dissimulation cannot change their intrinsic
character. Thus, the giving of finger impressions or of speci-
men writing or of signatures by an accused person, though it
may amount to furnishing evidence in the larger sense, it not
included within the expression "to be a witness."76

While discussing the impact of article 20(3) on the investigative

machinery, mention should also be made of section 27 of the Indian
Evidence Act, which is an important tool for investigation by the police.
The question whether section 27 was unconstitutional because it offended
article 14 was considered by the Supreme Court in State of Uttar Pradesh
v. Demon Upadhyaya.77 It was answered in the negative. But the question
75 A.hR. 1V61 S.C. 1808.
76. U at 1814-15.
77. A.I.R. 1960 S.C. 1125.
 SPECIAL ISSUE : LAWS OF EVIDENCE AND CONTRACT 77

whether it was unconstitutional because it contravened article 20(3) was

not considered in that case. The question was, tharefore, treated as an
open one and considered in Kathi Kalu Oghad's case. The court held :

If the self incriminatory information has been given by an

accused person without any threat that... .will not be hit by the
provisions of clause (3) of Art. 20 of the Constitution for the
reason that there has been no compulsion. It must, therefore,
be held that the provisions of S. 27 the Evidence Act are not
within the prohibition aforesaid, unless compulsion has been
used in obtaining the information.78
Nothwithstanding this pronouncement, the question of the propriety
of section 27 is still an open one. It is urged that the said section has
been abused by the police in its operation. While sections 25 and 26 are
intended to afford protection to the accused, that protection is to a large
extent destroyed by the ingenuity of the police officers with the help of
section 27. They deliberately record the information given by the accused
in such a manner so as to make it appear that it has led to the discovery
of some facts incriminating the accused person. Since section 27 is grossly
misused, it should be repealed.
On the other hand, it has been argued that section 27 embodies a
well accepted principle of English criminal justice and there is no reason
why a statement by an accused person which is corroborated by the
discovery of a fact should not be available for use against him. The Law
Commission of India proposed to consider this aspect of the matter later
on when the revision of the Indian Evidence Act would be taken up.79
Although the aforesaid modes of investigation do not violate the
privilege against self-incrimination, the present statutory provisions in this
regard lag behind the modern developments in the detection of crime.
"Self-incrimination'. Physical and Medical Examination of the Accused" ,&
study undertaken by the Indian Law Institute, has suggested that section 4
and 8 of the Identification of Prisoners Act, and section 73 of the Indian
Evidence/ Act should be replaced. This suggestion merits consideration
and it is hoped that with some necessary modifications, the law would be
brought on a proper footing with the modern scientific development in
investigation. It was as far back as 1899, that "finger impression" was
brought within the umbit of section 45 of the Evidence Act. Now it would
be only proper if the expert evidence on typewriting is also made admissible
likewise. Lastly, since the conflict in expert opinions is much more pro-
nounced in India than anywhere else, the procedure for producing the
expert witnesses calls for some modification.

78. Supra note 56 at 1815-16.

79. Law Commission of India, Reform of Judicial Administration (14th Report)
Vol. II, 749-750.