Prof.

Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Study Material
Law of Evidence- I
B.A.LL. B (HONS) V SEMESTER
Unit- 5
EXPERT TESTIMONY AND CHARACTER EVIDENCE
1. General principles relating to Expert Testimony.
2. Who is an Expert? Types of Experts Evidence.
Section 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 [or finger 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.
Illustrations:
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to
have died are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness
of mind, incapable of knowing the nature of the Act, or that he was doing what was either
wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly
show unsoundness of mind, and whether such unsoundness of mind usually renders persons
incapable of knowing the nature of the acts which they do, or of knowing that what they do is
either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is
produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same
person or by different persons, are relevant.
Principle
Under section 45, opinions of experts are relevant on questions of foreign law, science, art,
identity, handwriting or finger impressions. Expert testimony is admissible on the principle of
necessity. The help of experts is necessary when the question involved is beyond the range of
common experience or common knowledge or where the special study of a subject or special
training or skill or special experience is called for. No man is omniscient; in fact, perfection is
an attribute of divinity only.
As a general rule, the opinion of a judge only plays a part and is thus relevant in the decision
of a case, and thus, the opinion of any person other than the judge about any issue or relevant
fact is irrelevant in deciding the case. The reason behind such a rule is that if such opinion is
made relevant, then that person would be invested with the character of a judge. Thus, Section

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
45 is thus an exception to this general rule, as it permits the experts opinion to be relevant in
deciding the case. The reason behind this is that the Judge cannot be expected to be an expert
in all the fields-especially where the subject matters involves technical knowledge as he is not
capable of drawing an inference from the facts which are highly technical. In these
circumstances, he needs the help of an expert- who is supposed to have superior knowledge or
experience in relation to the subject matter.
Scope
A fact is something cognizable by the senses such as sight or hearing, whereas opinion involves
a mental operation. Under Section 3, the opinion of a person will be a fact too. U/s 60 oral
evidence in all cases must be direct if inter alia it refers to an opinion or to grounds on which
that opinion is held. It must be the evidence of the persons who hold the opinion on those
grounds. A distinction must be drawn, however, between the cases where an opinion may be
admissible u/s 6 to 11 as forming a link in the chain of relevant facts to be proved and between
cases where opinions are admissible under sections 45-51. The former evidence is given by the
non-expert or the unskilled witness while the latter is given by the expert witness. Thus, in
matters of calling for special knowledge or experience or skill, opinions of expert witnesses is
relevant u/s 45-51.
Prerequisites of an expert evidence
For the sake of consideration of an expert testimony, there are two important conditions that
are necessary to be shown:
1. That the subject is such that expert testimony is necessary.
2. That the witness in question is really an expert.
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.
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.
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 peritus?” Is he skilled? Has he adequate
knowledge?
An expert is a person who has special knowledge and skill in a particular calling to which the
inquiry relates. 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

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
whether 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 advice.
Difference between an expert and non-expert witness
Like a non-expert witness the testimony of an expert witness 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 opine as to the cause of his death on facts deposed. He
may cite textbooks in support of his opinion or to refresh his memory (S.159); he may speak
about experiments made by him in the absence of parties.
The opinion of an expert witness, however, eminent in his field he may be, must not be read as
conclusively of the fact which the Court has to try. However, evidence of eminent literary
persons as experts can be relied upon.
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. His 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.
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).
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 evidence. 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, 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. Expert opinion is not necessarily
binding on the Court.
In Murali Lal v. State of Madhya Pradesh, 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

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
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 evidence.
Foreign Law
Law which is not in force in India is foreign law. In England it can be proved by leading expert
evidence. In India it may be proved the same way under section 45 or by producing of official
books and reports on foreign law u/s 38. Foreign law is, therefore, a question of fact. Hindu
Law and Muslim Law are laws of the land and it is the duty of the court to interpret the law of
the land and hence the opinions of experts however learned will be irrelevant.
Science or Art
The expression Science or Art includes all subjects on which a course of special study or
experience is necessary to the formation of an opinion. The words science and art are therefore
to be broadly construed; the term ‘science’ not being limited to higher sciences and ‘art’ not
being limited to fine arts. To determine whether a particular matter is of a scientific nature or
not, the test to be applied is whether the subject matter of inquiry is such that inexperienced
persons are unlikely to prove capable of forming a correct judgment without the assistance of
experts.
Medical Experts
The deposition of a medical officer in the court and the reports produced by him are considered
as evidence. A mere post-mortem report, however, is no evidence since no facts could be taken
from it.
Value of Medical Evidence
Expert evidence should be approached with care and caution. An expert witness, however,
impartial is naturally biased in favour of the party who calls him. He is often called by one side
simply and solely because it has been ascertained that he holds view favourable to his
interest. Medical evidence isn’t direct, and, therefore, value of such an evidence lies only on
the extent to which it supports and lends weight to the direct evidence of eye-witnesses or
contracts that evidence and removes the possibility that the injury could take place in the
manner alleged by those witnesses. The opinion of a doctor is entitled to great weight but may
be discarded on good grounds.
Opinion of Handwriting Expert
U/s 45 of the Indian Evidence Act an expert can depose to the identity of handwriting between
the questioned document and the document admitted or proved. A disputed handwriting may
be proved either by calling an expert (S.45) or by examining a person acquainted with the
handwriting of the person by whom the questioned document is alleged to have been written
(S. 47) or a comparison of the two u/s 73.
However, the opinion of handwriting expert is only made admissible; it is not the only method
of proving handwriting. In Fakhruddin v. State of M.P., the SC suggested three modes of proof
of document: firstly, by Direct evidence, secondly by expert’s evidence and thirdly, by the
court coming to the conclusion by comparison.

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Finger-impression
A man’s signature is called an unforgettable signature. This head was added to expert
evidence’s scope in 1899. The study of fingerprints is generally admitted to constitute a
science. Its two basic hypotheses are that:
Firstly, fingerprints of a person remain the same from birth to death;
Secondly, there has never yet been found any case where pattern made by one finger exactly
resembled the pattern made by any other finger of the same or any other hand.
The opinion of thumb impression expert is entitled to greater weight-age than that of a
handwriting expert.
Firearms Experts
The opinion of a ballistic expert can conclusively prove that a particular cartridge has been
fired by a particular pistol.
Where the ballistic expert has not seen the wound himself but has given his opinion based upon
the recordings or photo produced by the doctor who saw or inspected the wound, no reliance
can be placed on such an expert opinion. Therefore, the firearms or ballistic expert must have
concluded the opinion based on his own findings and personal observation.
Case laws
SRI CHAND BATRA V. STATE OF U.P.
AIR 1974 SC 639
Facts
In this case an Excise Inspector Shri C.D. Misra had raided a liquor shop and discovered drums
of liquor. On performing smell test on the samples of liquor procured from the drums kept
inside the shop, the Excise Inspector found out that the liquid was illicit liquor. He had further
tested the contents of the drums with the aid of litmus paper, hydrometer, and thermometer to
determine the strength and composition of the liquid under composition. After such
observations, he gave testimony where he opined that the liquor shop had been involved in
trading illicit liquor and submitted a detailed report regarding the same.
Issue
Whether the Excise Inspector could be considered an expert whose opinion about the nature of
the liquid found was opinion evidence admissible under Section 45 of the Evidence Act?
Judgement
The Court held that he Excise Inspector, who had deposed, at the very outset of his evidence,
that he had put in 21 years’ service as Excise Inspector and had tested lacks of samples of liquor
and illicit liquor. Further, he had employed all possible ways to test the samples of the liquor
present that time, which were clear tests of his reasonability and prudence.

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Thus, the Excise Inspector would be an Expert and the testimony and evidence laid by him
regarding the discovery of illicit liquor in the liquor shop would be relevant and admissible
before the Court of law.
IN Re: Govinda Reddy & ORS.
AIR 1958 Mys 150
The science of comparison of fingerprints has developed to a stage of exactitude. It is quite
possible to compare the impressions taken from the fingerprints of the individuals with the
disputed impressions, provided they are sufficiently clear, and enlarged photographs are
available. The identification of finger impressions with the aid of a good magnifying glass is
not difficult, particularly, when the photos of latent and patent impressions are pasted side by
side.
It was held that though the witness did not possess any technical qualification in as much as he
had neither obtained a degree nor a diploma in photography, his experience of over 25 years in
photography was sufficient enough to call him an expert.
SRI DHWAJENDRA C. ROY V. STATE OF ASSAM & ORS
Decided On: 06.06.2012
Judgement
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 abscondence 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.
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 involve 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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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Opinion as to digital signature, when relevant (Sec.47-A)
Section 45A, Opinion of Examiner of Electronic Evidence.-When in a proceeding, the court
has to form an opinion on any matter relating to any information transmitted or stored in any
computer resource or any other electronic or digital form, the opinion of the Examiner of
Electronic Evidence referred to in section 79A of the Information Technology Act, 2000(21 of
2000)., is a relevant fact.
Explanation: For the purposes of this section, an Examiner of Electronic Evidence shall be an
expert.]
When a piece of information is transmitted or stored in a computer system and the court needs
assistance or opinion for the same in any case; they refer an examiner of electronic evidence.
This examiner of electronic evidence is known as the expert in such cases.
For this section, electronic evidence includes any information transmitted or stored in any
computer resource or any other electronic or digital form for which the opinion of electronic
evidence examiner is required as per section 79A of the Information Technology Act, 2000.
Evidence of character in civil and criminal cases (Sec.52-55)
Character of a person in civil and criminal cases when relevant and when irrelevant
Character when relevant (Ss. 52-55):
In civil cases, a party’s character cannot be proved for the purpose of showing that any conduct
attributed to him is probable or improbable. (S. 52)
A party’s character is relevant whenever it affects the amount of damages which he ought to
receive. (S. 55)
In criminal proceedings, the fact that the accused is of a good character is relevant. (S. 53)
A previous conviction is relevant as evidence of bad character. (S. 54)
Evidence of the accused’s bad character is relevant
(i) to rebut evidence of good character, or
(ii) where his bad character is itself a fact in issue. (S. 54)
Character when irrelevant (Ss. 52, 54 & 55):
The fact that the character of any person concerned is such as to render probable or improbable
any conduct imputed to him is irrelevant. (S. 52)
In criminal proceedings, the bad character of the accused is irrelevant, except-
(i) in reply to evidence given of his good character, or
(ii) where the bad character itself is a fact in issue. (S. 54)
The word “character” includes both reputation and disposition; but (except as provided in S.
54, above), evidence may be given only of general reputation and general disposition, and not
of particular acts by which reputation or disposition were shown. (S. 55, Explanation)

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Character as Affecting Damages:
In civil cases, good character of a person is presumed. So, good character of a person cannot
be proved in aggravation of damages, but proof of bad character can be admitted in mitigation
of damages. For instance, in cases of defamation, the general bad reputation of the plaintiff can
be proved.
Similarly, in the case of a breach of promise to marry, the plaintiff’s generally immoral
character is relevant. Likewise, in cases of seduction, evidence of the generally immoral
character of the person seduced will be relevant.
Evidence Should Relate to Specific Traits:
Needless to mention, any evidence of reputation must be confined to the particular traits which
the charge involves. Thus, if a person is charged for cruelty, evidence of his honesty would be
of no value. However, if he is charged for theft, his reputation for honesty would be relevant.
Character of Witness:
Witnesses are the media through which the Court is to come to its conclusion on the matters
submitted to it, and it has to be ascertained whether such media are trustworthy. Therefore, the
character of a witness, whether party or not, is always material as affecting his credit. A witness
may be asked any question which tends (1) to test his veracity, (2) to discover who he is, and
what is his position in life, or (3) to shake his credit by injuring his character.
General principles concerning oral Evidence (Sec.59-60)
Section 59, Proof of facts by oral evidence:
All facts, except the contents of documents or electronic records, may be proved by oral
evidence.
Oral evidence means the statements of witnesses before the court. According to Section 59 all
facts except the contents of document including electronic records may be proved by oral
evidence. It is cardinal principle that where documentary evidence is available it shall be
produced as being it is the best evidence. Oral evidence includes “all statements which the
court permits or requires to be made before it by witnesses in relation to matters of facts under
inquiry.”
Proof of facts by-oral evidence:
Oral evidence does not always mean that the words spoken must come out from lips of the
witness. There are other methods of communicating thought provided the courts permit. A
statement may be made by signs when the witness is unable to speak, “a deaf-mute may testify
by signs, by writing or through interpreter.” In an election petition it was alleged that the votes
were solicited on caste basis, it was held that the statement of the petition was not correct
without substantive evidence. When the entire case is based on construction of insurance policy
the question of adduction of any oral evidence would be irrelevant.
Section 60, Oral evidence must be direct: Oral evidence must, in all cases whatever, be
direct; that is to say—

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw
it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he
heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it
must be the evidence of a witness who says he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence
of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and
the grounds on which such opinions are held, may be proved by the production of such treatises
if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot
be called as a witness without an amount of delay or expense which the Court regards as
unreasonable:
Provided also that, if oral evidence refers to the existence or condition of any material thing
other than a document, the Court may, if it thinks fit, require the production of such material
thing for its inspection.
Principle:
Section 60 lays down few conditions to be fulfilled before oral evidence is made admissible.
According to this section oral evidence must be direct or positive. This simply means that the
witness tells the court of facts of which he has personal knowledge and experience. The word
“must” in the section indicates the exclusion of indirect evidences including “hearsay” or
derivative evidence. The cardinal principle is that the best evidence must be given before the
court.
Guideline for proving oral evidence:
Section 60 lays down that oral evidence must in all cases be direct. “The word ‘direct’ to this
section is used as opposed to mediate or derivatives or what is technically called hearsay.”
Where a witness gives evidence that he received information from other person and that person
does not say about it, such evidence would be inadmissible being hearsay evidence. If evidence
is not based on personal knowledge but on what has been heard from other as hearsay evidence
it is inadmissible. The section has specifically mentioned what is direct evidence. It is meant
to say that:
1. If the evidence is to be given about fact which could be seen, it must be the evidence of a
witness who must say that he himself saw it;
2. If the evidence is to be given about fact which could be heard, it must be the evidence of
witness who must say that he heard it;
3. If the evidence is to be given about fact which could be perceived by any other sense or by
in any other manner if witness produced must say that he perceived it senses or in that manner;
4. If the evident is to be given about an opinion or as to the ground on which opinion is to be
held, the witness must say that he holds that opinion on those ground.

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
The section, therefore, provides four methods for proving oral evidence. The evidence must be
of that person who himself witnessed the happening of facts to whom he testifies. This must be
left to the parties but in weighing the evidence the court can take note of the fact that the best
available witness has not been given, and can draw an adverse inference. In a murder case
neither oral report was made to the investigating officer by the informant nor written report
said to have been sent to the police, it was not admissible evidence as being hit by rule against
hearsay. However, fact of encroachment in the absence of documentary evidence can be proved
by oral evidence.
It is one of the cardinal rules of the law of evidence that “in determining the admissibility of
evidence the production of the best evidence should be exacted.” Sections 60, 64 and 91 are
founded on this rule. Since witness is called an ‘eye-witness’ or ‘a witness of fact’ who has the
first-hand knowledge in the sense that he perceived the fact by any of his five sources.”
TADA Case:
Section 60 cannot be invoked on ground that oral direction given by the authority to register
case against accused under TADA amounted to prior approval in view of Section 60 of the
Evidence Act where he did not state that he had given any such direction.
Exceptions:
Two provisos to Section 60 provide exception to the general rule that oral evidence must always
be direct. These exceptions are technically known as “hearsay evidence.” Hearsay, therefore,
strictly speaking is secondary evidence of any oral statement.
Hearsay Evidence:
Hearsay evidence “denotes that kind of evidence which does not derive its value solely from
the credit given to the witness himself, but which rests also, in part, on the veracity and
competence of some other person.” The evidence is such that the witness has no personal
knowledge about the fact in question, rather it is derivative based on the second-hand
knowledge, “Sometimes it means whatever a person is heard to say; sometimes it means
whatever a person declares on information given by someone else; sometimes it is treated as
nearly synonymous with ‘irrelevant’ ’’—STEPHEN.
In every case the credit goes to someone else. It is that kind of evidence which comes indirectly.
An informant is alleged to have given information to the D.S.P. that the accused will be
following the truck which carried the prohibited liquor, when this informant is not examined
the evidence of D.S.P. received by him is not admissible. Where it is alleged that the boy was
adopted on the date of his birth, the oral evidence of the boy in proof of adoption is hearsay. In
a murder case the evidence of witness who came to the scene of occurrence immediately after
the occurrence though he did not see the accused persons attacking the deceased but he learnt
about the same from eye-witness.
He sent information to the police. It was held that his evidence about such information though
was hearsay but corroborated by substantive evidence of eye-witness and therefore was
admissible. Thus, it comes not from the knowledge of person who deposes it, but through some
other person.

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Exclusion of hearsay evidence:
Hearsay evidence is excluded owing to its infirmity as compared with it original source. It is
always desirable in the interest of justice to get a person whose statement can be relied upon.
When the father of a kidnapped boy gave evidence that his son was kidnapped by a named
kidnapper in a car whose registration member was given, but the witness in evidence only
stated that the boy was kidnapped but nothing about the kidnapper or the vehicle, the evidence
of the father was only hearsay except to the extent that it was corroborated about the kidnapping
under section 157.
The site map prepared by the investigating officer could be hearsay unless the person who is
alleged to have furnished the information is examined as witness. The witness told the court
that the officers who were present in the spot, told him that one T was driving the bus, held to
be not direct.
In hearsay evidence the deposition given by the witness is a statement of information given to
him by some other person. “It is totally irrelevant to be admissible and any possible source of
inaccuracy and untrustworthiness can be best brought to light and exposed by the test of cross-
examination.” Its admission tends to prolong trials unduly and open the door for practicing
frauds. “The truthfulness and accuracy of the person whose words are spoken to by another
witness cannot be tested by cross-examination and the light which his demeanour would throw
upon his testimony is lost.” The circumstances that accused gave wrong information to the
informant that deceased died due to poisoning which was contrary to medical evidence and
indicated assault on victim was not admissible in evidence being hit by rule against hearsay.
Exception to hearsay rule:
There are number of exceptions to the rule of hearsay. All exceptions have been imported in
the Evidence Act. Primarily, the exceptions are to be found in Sections 17 to 39 of the Act as
well as in Proviso to Section 60. These include admission, confession, statement of persons
who are dead, or cannot be found etc., entries in books of account, statement in public
document, maps and charts, reputation, expert opinion and statement of experts in treaties
(Proviso to Section 60). The exception is also extended to the rule of res gestae (Section 6).
It is therefore, said that under certain circumstances the hearsay evidence is held admissible,
particularly when it “relates to the question of the credibility of witness.” The evidence of
witness who heard the calling her name when her father was assaulting her mother is
admissible.
Proviso 1:
First proviso provides for production of treatise containing expert’s opinion offered for sale, if
the author of the treatise is dead or cannot found etc. (Section 32). The treatise required to be
admissible must be offered for sale and the burden of proving the particular treatise is on the
person who desires to give such treatise in evidence. The opinion by a living authority in a
treatise as to usages and tenets of a body of men or family is not admissible under this section.
Similarly, opinion of experts as expressed in treatises of person who is dead can be treated as
evidence in proper case. But, using of such treatise as evidence should be made with caution
when the Supreme Court explained that “every article published or a book written cannot ipso
facto be regarded as conclusive or worthy of acceptance.

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Prof. Javaid Talib
Prof. Md. Ashraf
Dept. of Law, AMU
Proviso 2:
Second proviso requires the production of material thing (Section 45) for inspection if oral
evidence refers to the existence on condition of any material thing. Secondary evidence of the
contents of written document is permitted under this proviso when production of original is
impracticable.

Suggested Readings:
1. Indian Evidence Act, 1872 (Relevant Statutory Provisions)
2. Monir: Law of Evidence
3. Batuk Lal: Law of Evidence
4. Ratan Lal & Dhiraj Lal: Law of Evidence
5. Avtar Singh: Principles of Law of Evidence
6. Tandon: Indian Evidence Act
7. R. Dayal: Indian Evidence Act
8. Dr. Satish Chandra: Indian Evidence Act

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