ASSIGNMENT

LAW OF EVIDENCE

FACULTY OF LAW, BHU

A Project On

eXPERT OPINIONS

SUBMITTED TO: SUBMITTED BY:

Prof. KSHEMENDRA TRIPATHI Name:- ABHISHEK KUMAR

FACULTY OF LAW, BHU Class:- LLB 2nd sem. (Sec-B)

Exam roll:-19225LLB018

Enroll. No.-416620
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 CONTENT

1. Acknowledgement............................................................. 3
2. Introduction....................................................................... 4
3. Definition…………………………………………………………………………5
4. Who is an Expert?.............................................................7
5. Function of Expert…………………………………………………………8
6. Expert opinion when required?.....................................8
7. Admissibility and credibility…………………………………..….10
8. Section 45 - 51………………………………………………….…………..…12
9. Bibliography………………………………………………………………….15
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 ACKNOWLEDGEMENT
Writing a project is one of the most significant academic challenges I have ever faced.
Though this project has been presented by me but there are many people who remained in
veil, who gave their support and helped me to complete this project.

First of all I would like to express my gratitude towards my subject teacher Prof.
Kshemendra Tripathi sir who gave me the golden opportunity to do this wonderful project
on the topic “Expert opinions.”

I acknowledge my friends who gave their valuable and meticulous advice which proved to be
very useful and could not be ignored in writing this project. I want to convey a most sincere
thanks to my parents for helping throughout the project.

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----------- Thanking you

ABHISHEK KUMAR

B.HU. (LAWSCHOOL)
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 INTRODUCTION
The law of evidence allows an opinion of any person other than the judges as to the
existence of the facts that are relevant to a matter. The judge is not expected to be an expert
in all fields especially where the subject matters involve technical or specialized
knowledge.

The term ‘opinion’ means something more than mere relating of gossip or of heresay;it
means judgement or belief, that is a belief or conviction resulting from one thinks on a
particularquestion. What a person thinks in respect to the existence or non-existence of a
fact is called his/her opinion; whatever is presented to the senses of a witness and of which
he receives direct knowledge without any process of thinking and reasoning is not an
opinion.

The question is whether a certain injury was caused by a spear, a state that he saw the
accused causing the injury by a spear. This is not an opinion. But, if a doctor, who did not
see the injury being caused, says that he thinks that injury was caused by a spear, it is his
opinion.

What one sees, hears, feels or touches is not his opinion, however, what is the conclusion
of a person-is his opinion.

As a general rule, opinion evidence is not admissible; witness testifies as to the facts which
they perceived, not as to the inference that is opinion-which they drew from the
perceptions. This was held in Graat V The Queen, 1982 can. L1133(SCC).

Section 45-51 of IEA, 1872 lays down the provisions relating to the “opinion of experts/
third person when relevant. The provisions under these sections are exceptional to the
natural rule of law of evidence. This exception states that court cannot draw its opinion on
the technical matter, which requires the special knowledge of a person having acquired
expertise on the relevant field.

The condition for demand of the expertise includes the situation where the case cannot be
solved without the help of any expert.
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 DEFINITION:-
Section 45:- defines expert and also when the expert opinion is relevant.

When the court has to form an opinion upon:-

a) A point of foreign law

b) of science
c) Act
d) As to identify handwriting or
e) finger impression
And such knowledge has been gathered by him-
a) By practice
b) Observation or,
c) Proper studies
Then the opinion upon the point of person specially skilled in that filed are relevant and
such person are called experts.

 According to Dictionary Meaning, "Expert is a person who is skilled in any art or

science”.

 According to Black Law Dictionary "Men of science educated in the art

Or person possessing special or peculiar knowledge, acquired from practical expertance.
"In simple words, the person who is skilled or a specialist in any subject is known as an
expert of the said subject.

 According to Powell, "An Expert witness is one who has devoted time and study to a
special Branch of Learning and this, is especially skilled on the points on which he is asked
to state his opinion. His evidence on such point is admissible to enable the tribunal to
arrive at a satisfactory conclusion.

 The US Supreme Court has defined an Expert as, "The term is generally used to designate
a person who possesses knowledge and experience not possessed by mankind of General.

 The Madhya Pradesh High Court has described an Expert as

"An expert is one who has acquired special knowledge, skill or experience in any science,
art, trade or profession; such knowledge may have been acquired by practice, observation
or careful studies."

.
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 Foreign law :-
 In R v. Abbey,
Justice Dickson of the Supreme Court of Canada wrote,
"An expert opinion is admissible to furnish the court with scientific information which
is likely to be outside the experience and knowledge of a judge or jury."
 In R v. Mohan,
Justice Sopinka of the Supreme Court of Canada wrote."Admission of expert
evidence depends on relevance; necessity in assisting the Trier of fact; the absence of
any exclusionary rule; (and) a properly qualified expert

 Indian Law:-
The court seeks the opinion of an expert. When the court has to form an
opinion, upon a point of foreign Law, or of science, or art, or as to identify handwriting or
finger impression, the opinions upon that point, of persons, specially skilled in such foreign
law; science or act, or in questions as to identity of handwriting or finger impressions are
relevant facts". Such persons are called experts.

The opinions of experts upon the question:-

(a) Whether the symptoms exhibited by A commonly show unsoundness of mind, and

(b)whether such unsoundness of mind usually renders ,person 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.

(d)The question whether the two documents were written by the same person or by
different persons, is relevant.

An expert is anyone with special knowledge, skill, experience, training or education in a

particular field or discipline that permits them to testify to an opinion that will aid a judge
or jury in resolving a question that is beyond the understanding or competence of lay
persons. An expert witness is an expert who makes his or her knowledge available in a
court to help it understand the issues of a case and reach a sound and just decision.

There is natural tendency on part of expert witness to support the view of the person who
called him. Experts usually are shown to be remunerated witness, who makes making
themselves available on hire, to pledge their own favour, of the party paying them.
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 Who is an Expert?
 It is very difficult to give a precise definition for the term ‘expert opinion’. Simply one
can say that ‘expert opinion’ means opinion given by expert.
 In Abdul Rehman V State of mysore,1972, Any person, may be an expert. According to
section 45, if he has experience, knowledge or specially skilled. It is not necessary that he
has a degree or diploma.
A goldsmith was considered as an expert in this case

 In Bal Krishna das agrawal V Radha devi & others, AIR 1989, An expert was defined
as a person who by training and experience has acquired the ability to express an opinion
but an ordinary witness does not posses this quality.

 Supreme Court in Ramesh Chandra Agrawal V Regency hospital ltd& ors Held that an
expert is not acting as a judge or jury. The real function of the expert is to put before the
court all the material together with reasons which induce him to come to the conclusion.
So that the court, although not an expert may form its own judgement by its own
observation.

 Function of the Expert

a) An expert is not a witness of fact
b) His evidence is of advisory character
c) An expert deposes and does not decide
d) An expert witness is to furnish the judge necessary scientific criteria for testing the
accuracy of the conclusion so as to enable the judge to form his independent judgement by
application of the criteria to the facts proved by the evidence.

The Function of expert witness was clearly laid by Lawton L.J in Regina V. Turner as
follows:
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“….. Their function is to provide the court with information about a point at issue or to
help the tribunal of fact to interpret information about a point at issue, which is out with
the knowledge and experience of that tribunal”.
Their role is thus an educator to assists the lawyer in the preparation of the case and as an
advisor, if the court goes to the case to assist the judge to reach a fair decision.

 Expert Opinion when required?

The Supreme court in Ramesh Chandra agrawal Vs Regency hospital Ltd.& ors,
delineated the requirements of an expert evidence.
The court stated that first and foremost requirement is that the matter is outside the
knowledge and experience of the lay person.
The other requirement for admissibility of expert evidence are:-
a) Expert must be within a recognised field of expertise.
b) That the evidence must be based on reliable principle.
c) Expert must be qualified in that discipline.

 IMPORTANCE OF EXPERT OPINION

The use of expert testimony in the courtroom has become a common practice. Experts, in
the form of Medical doctors, appears to have been first called upon to advice Judges at the
old bailey. Some Six hundred years ago, but it was not until around 1620, that a jury was
furnished with the expert testimony for the first time. It was a first challenge to an expert
witness, testifying on behalf of the defendant.

Virtually, all the cases require scientific expertise or technical knowledge need expert
witnesses and their testimony. Areas of the expert evidence are generally set out in the
three forms as required:
(1) Pure opinion of expert evidence.
(2) Scientific expert.
(3) Non scientific evidence.
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An expert is not a witness of fact. The reliability of expert opinion should be tested in the
same way in which any other piece of evidence is tested. The court shall therefore call
upon the expert to explain the reasons for his opinion. His evidence is really of an
advisory
Character. It is the duty of an expert witness is to furnish scientific criteria for testing.

 Gajendragadake J. In Ishwari Prasad mishra Vs. Md. Isa(1963) 3SCR 227 observed that
evidence given by expert can never be conclusive because after all it is opinion evidence.

 In Mushir Khan Vs State of M.P, it was held that expert opinion is merely corroborative
and not conclusive.

 Time and again, the need for collaboration has been raised by justice in Magan bihari Lal
Vs State of Punjab AIR 1977 SC 1091, the court said that expert opinion must be taken
with the utmost care and caution.

 In Sri Chand v. Smt. Ram Rati Devi ,when the court permits the evidence of an expert to
be brought on record, on a technical matter, it does not abdicate its function to judge for
itself, whether the opinion of expert is correct or not on a matter in issue. The question of
whether a witness is an expert is a question of fact for the judge. A particular or special
knowledge of a subject that has been acquired through a Scientific study or experience can
qualify a witness as a expert.

 In Ranjit Singh Brahmajeet Singh Sharma v. State of Maharasthra

, the Apex Court held that, "the admissibility of a result of scientific test , will depend upon
its authenticity." Therefore, importance of expert witness is to aiding a Judge to
determining the extent of liability, which may vary due to such testimony that imposed on
an offender. Expert witness have an advantage of a particular skill or training since Judges
are not properly equipped to draw inferences from facts in certain technical matters. Expert
evident is sought most obviously in disputes regarding detailed scientific or technical
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knowledge. The purpose of an expert opinion is primarily to assist the court in arriving at a
final conclusion. Such report is not binding upon the court where the eye witnesses and
other prosecution evidence are trustworthy, have credence and are consistent with the eye
version given by the eye witnesses, the court will be well within its jurisdiction to discard
the expert opinion. In such case, court has to critically examine the basis, reasoning,
approach and experience of the expert, to come to a conclusion as to which of the two
reports can be safely relied upon

 Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee, it was held that court is not bound by
the evidence of expert, it is to a large extent advisory in nature.

 ADMISSIBILITY AND CREDIBILITY OF AN EXPERT OPINION

An expert is not a witness of fact. The Court, normally looks at an experts evidence given
by him with a greater sense of acceptability, but it is equally true that the courts are not
absolutely guided by the report of the experts, especially if such reports are perfunctory
and unsustainable. The purpose of an expert opinion is primarily to assist the court in
arriving at a final conclusion but such report is not an conclusive one. This court is
expected to analyze the report, read it in conjunction
with the other evidence on record and then form its final opinion as to whether such report
is worthy of reliance or not.

 In State (Delhi Administration) v. Pali Ram , where the Court held that no expert would
claim that he could be absolutely sure that his opinion was correct, experts depend to a
great extent upon the materials as put before him and the nature of question put to him."
It was held that the value of expert opinion rest on the facts on which it is based and its
competency for forming a reliable opinion. The importance of an opinion is decided on the
basis of the credibility of the expert and the relevant facts supporting the opinion so that its
accuracy can be cross checked.

 In Musheer Khan Vs Badshah Khan & Anr. v. State of Madhya Pradesh it was held that the
word 'admissibility' has very rarely been used." The infirmity of expert evidence consists in
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this that it is mostly matters of opinion and is based on facts detailed by others or assumed
facts or opinion against opinion and experts are selected by parties calling them. Expert
evidence is however, of value in case where the courts have to deal with matters beyond
the range of common knowledge and they could not get along without it, in matter
of scientific knowledge or the facts have come within the personal observation of experts."

 In Ratnabai v. Belarmine Joseph 2014, It was held that Section 243 of Cr.P.C provides a
valuable right to the petitioner / accused to examine defence witnesses. If the Petitioner /
Accused desires to examine an expert and to obtain his opinion in a given matter in issue,
then the opinion of such an expert is admissible in evidence as 'relevant facts' under
Section 45 of Indian Evidence Act.

 Purshottam Lal v. State of M.P AIR 1980 SC 1873 , there was a clear contradiction
between medical testimony and the alleged eye witness on this vital fact. The High Court
brushed aside the evidence "the opinion of the doctor on this aspect of the matter is merely
an opinion and not a fact found by him".
 Further, Smt. Manorama Servastava v. Saroj Srivasta , the Allahabad high court held that
the positive assertion by one expert that signature on will is that of testator. No positive
inference by him that signature is not genuine opinion of first expert accepted. An expert
opinion become admissible in evidence, as it furnishes the court with scientific information
which is likely to be outside the experience and knowledge of a Judge. Therefore, if on the
proven facts available on record of the case, if a judge can form his own opinion of such
facts and can draw reasonable conclusions based thereon without the help of an expert, the,
the opinion of an expert is unnecessary. The fact that an expert witness has impressive
qualification or achievements does not by itself make his own expertise of matters of
human nature and behaviour, within the limits of normality, any more helpful to a Judge
without the facts in controversy are otherwise proved in the matter. It is, therefore, all
the more important to note that the exercise for securing the expert opinions should
be permitted, for clearing the doubts, if any that the evidence leaves behind.

 Section 45(A):- Opinion of Examiner of Electronic evidence.

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The opinion of the examiner of electronic evidence in section 79A of IT Act,2000 is

relevant when in proceeding, the court has to form an opinion on any matter relating to any
info. Transmitted or stored in any computer resource or any other digital form- examiner of
electronic evidence shall be an expert.

 Section 46:- Facts bearing upon opinions of experts

When the opinion of an expert is relevant, any fact either supporting or contradicting his
opinion will become relevant. The effect of the provision is that when the opinion of an
expert is relevant and has been cited, any fact which will either support his opinion or
contradict, it will also become relevant.
In Mohd Jahid Vs State of Tamil nadu, AIR1999 the court opined, sufficient weightage
should be given to the doctor who conducted post-mortem as compared to statement found
in book. But it does not ipso facto mean that each& every statement made by him should
be expected on its face value where it is self contradictory.

 Section 47 opinion as to handwriting, when relevant

The court may call upon handwriting Expert or someone who has seen the person writing
or who has secured document written by that person or who has in ordinary course of
business received written document by that person.
In the case Fakhruddin Vs State of M.P AIR1967, SC 1326, it was held that handwriting
may be proved by evidence of a witness in whose presence it was written-this would be
direct evidence and if it is available the evidence of any other kind is rendered unnecessary.
Under Section47 (A) An expert opinion of certifying authority which issue electronic
signature certificate, is relevant fact.
 Modes of proving Handwriting:-
a) A person who wrote the document can prove it
b) A person who saw something writing or signing a document can prove it.
c) A person who is acquainted with the handwriting by receiving the documents
purported to have been written by the party in reply of his communication or in
ordinary course of business can prove the documents.
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d) The court can form opinion by comparing disputed handwriting with the admitted
handwriting.

 Section 48:- Opinion as to existence of right or custom, when relevant

When the court has to form an opinion as to the existence of any general custom or right,
the opinions as to the existence of any general custom or right, of person who would be
likely to know its existence if it existed, are relevant. In Brijlal Vs V.M Chandra prabha
AIR1971 it was held that the person who are likely to know about the custom in question
are competent to give opinion evidence but it must be proved that his opinion is based on
some information.

 Section49:-Opinions as to usage, tenets, etc, when relevant

When the court has to form opinion to the matter as referred to the section, the opinion of
person having special means of knowledge thereon is relevant. These matters can only be
proved by persons having special knowledge.
In the case of Kanubhai Prabhudas & Anr. Vs State of Gujarat, two petitioners were
convicted under section 12 of the Bombay prevention of gambling Act. It was contended
by the learned counsel that the witness who give evidence under section 49 of the Evidence
act must himself say in chief-examination that he has special means of knowledge as to the
meaning of words or terms used in particular class of people.

 Section50:- Opinion on relationship, when relevant

When the court has to form opinion as to relationship of one person to another, the person
whose opinion is sought to be given under this section the witness must show he has some
special means of knowledge of relationship, the opinion conduct alone can be given in
evidence as the court is to judge about relationship.
It can be a family member or outsider.
ILLUSTRATION:- The Question is whether A and B, were married. The fact that they
were usually received and treated by their friends as husband and wife is relevant.
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 Section 51:-Grounds of opinion, when relevant

The opinion of an expert would be relevant butt of little weight unless supported by a clear
statement of what he noticed and upon what his opinion is based. The court will not be
satisfied only on the opinion of expert.

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 BIBLIOGRAPHY:-

 BOOKS:-
1. Batuk Lal, The law of evidence 22nd Edition 2018
2. The Indian evidence Act,1872
3. Ratan Lal & dhiraj Lal, “The Law of evidence” 27th edition
4. Singh,Avtar, “Principles of Law of Evidenc”

 WEBLIOGRAPHY:-
1 .http://www.indiankanoon.com
2. http://www.judis.nic.in/
3 .https://www.lawstudenthelpline.com