. UNIT-ID (fae) PoRENSIC Science CHAPTER—1 i ACPI peace Y, 186 INTRODUCTION TO EXPERT EVIDENCE bavya, 191 x 147, 118 ds, 116, 117, 118 Zz 2 20 ga lemma versal phenomenon ion the This_impedes the course. of justice. as oe eR a WA i ‘ken: It takes many years for the SPREE poe! agvcnent ar te point that this four of evidence has the potential for causing miscarriage of justice. Besides, Though to remove these shortcomings of a traditional system a number of measures hi ‘ ‘ g foth these types of measures are, though, successful to reduce the risk x of miscarriage of justice to some extent. But it is over optimistic to think that they resolved all these problems. Scanned with CamScannerTECHNO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE nal evidence such as 01 traditior mentary evidence w: But this type of pos if istioe. Sci DNA test has helped prosecutors to obtain convictions and also helped to individual who otherwise have ‘become establish the innocence of an suspects. In case of proving innocence of accused th evidence is sufficient evidence to create a reas he presence of scientific onable doubt_about his Ss Tn other words, any doubt about his guilt shall be Tosolved in favour of the accused. Therefore, if doubt arises certainly, he will be entitled for acquittal. But i Besides it, the advanced scientific technique has become much useful in the identity of any person. This universally accepted and recently developed technique is playing a vital role in the criminal justice system as well as in civil matters especially in cases involving paternity disputes. e believes. ‘idence allows a. person who is witness to slate the facts relates (prt eet noc o to evant fagPhu nt hi een. Ths jere is a general principle of inclusion of opinion of witnesses. Scanned with CamScanneras oral and > destroyed or e of scientific \t the present stage and it is dence such as also helped to have become 2 of scientific abt about his ice system is used beyond ruilt shall be certainly, he nviction, the ut also the ecome much sccepied and the criminal ‘es involving ting, Narco pful to. the se in crime. detection of can present INTRODUCTION TO EXPERT EVIDENCE 3 that evidence of such type is not;helpful for court rather it: may:mislead and waste the cou ss have to draw their overr conclusions from the facts narrated to them by witnesses. Instead of facts, if opinion of witness on the subject is received the judges are prone to rely on Tather on their over evaluation of the facts. Goddard L.J. said, in English case of Hallington v. hod and Co. Ltd.,' the admission of the inion of eminent experts upon the issues may lead to the balance of may tend to shift responsibility from the bench to the In this case action arose due to collusion between two motor-cars on the highway. Plaintiff alleged negligence on the part of the defendant. For that he gave evidence of a conviction of the defendant driver for careless driving. One of the main issues in this case within a conviction of the defendant of careless driving was admission at common law court. It was held inadmissible. ‘Another justification for exclusion of opinion is that it may lens . delegation of judicial function of court to_a_non judicial ae Sara Co i alr al Aad Pe rato BoB has given reason for exclusion of evidence of opinion that if a witness were permitted to express his opinion’ It would amount to delegation of judicial function: Supreme Court further held that ey Indian Evidence Act, 1872 witness has to state the facts which he has seen, heard or perceived and not the conclusion whieh he has formed on Sheerving”or perceiving thent THe Wanctionvofderivinguinference is a Judicial function and must be performed by the’ Courts Exception to the al rules of exclusion of opinion Whe Judge is not. be an expert in all the fields especially where the subject matter involves technical knowledge. Heis not capable Urea ainferencqa hum ciiicheoranhigiiyedschnieg? In addition, there are many matters which require professional_or specialized knowledge which the court_may not possessy In” these ~ circumstances p of an expert Who is supposed to have relatic to ‘the ‘subject mattér. superior knowledge or experience in relation ‘Therefore, for this) reason the general rule’of exclusion of evidence of opinion’ iberalized ‘and exception to this rule will be created. The exceptions can be classified under two heads.— Scanned with CamScannerF SCE DENCE 4 TECHNO-LEGAL ASPECTS OF SCIENTIFIC EV DENCE pinion testimony: : i imony is ble, eg., lay person inion testimony is admissible, 8. ssc Certain none per cali, Heat, weight, regardine identity ofa testify their feclings Ii ae te. speed of a moving object colour, taste Be seca of lists movies can be considered s opinion li her_than fac oak They are admitted because such facts could not otherwise be ade fs ly presented or explained to the judge. Otherwise will cause difficulty the judges to from an opinion or to reach an intelligent conclusion it may a evsit ar impoceitle to make ovt actual or accurate meaning & © Te collected by lay witness because they do not be readily, properly an ecurately describe, In such situation, he may be permitted to give his knowledge about the collective facts. 1. Non-expert © Law relating to the Admissibility of Non-expert opinion (a) In United States of America Section 701 of the Federal Rules of Evidence 1 relating to the non-expert opinion or opinion by lay witness provides as follows. If the witness is not listifying as an expert the witness testimony in the form of opinion or interference is limited to those opinion or inferences which are— 1. Rationally based on the perception of the witness and, % 2. Helpful to a clear understanding of witness testimony or the determination of a fact in issue 1975 deals the law Section 701 Rule 701 does not directly lays down rule about non-expert witness testimony but it provides a restriction under which only non-expert opinion can be admitted. It provides, two reflection on admissibility on | non-expert testimony. First restriction is that non-expert witness opinion must te rationally based on his own perception. That is, such witness must have first hand knowledge of the factual perception. That is such witness must have first hand knowledge of the factual predicates that four the basis of opinion. For this it is nears any that witness must have opportunity to observe and he must have actually observed the fact on who's his opinion is based. In Government of Virgin Islands v. Knight,! Case the Henry Knight was charged for the voluntary manslaughter of Andreas Miller : The prosecution version was that knight repeatedly Struck Andreas Miller's head with a pistol and gun discharged and killed miller The knight defence was that the gun-shot was accidental. In support of his defence, he produced an eye-witness who testified that knight never pointed the T 989 F 2d G19 (Grd Cir. 1993), Scanned with CamScanner6 TECHNO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE (d) In India Unlike U.S.A. England, Australia, there is no separate provision in the Indian Evidence Act regarding the admissibility of Non-expert opinion. For admissibility of opinion the requirement of Section 45 is essential and Section 45 allows only expert opinion to be admitted. Section 47 of Act to certain extent deals with non-expert opinion. Under section 47 opinion of the person to whom acquainted with hand-writing of the person in question is relevant for the court to form on opinion as n by whom document was written or signed. In, Section 47, it is only requirement is to perso not required that the person must be an expert. The that he must be acquainted with the hand-writing of the person concerned. ‘According to Explanation of Section 47, a person is said to be acquainted with hand-writing of another person— (i) When he has seen that person write; or (ii) When he has received documents to be written by that person in answer to documents written by himself or under his authority and addressed to that person; or (ii) When in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. Therefore, in India like U.S.A. there is no necessity to have direct, knowledge. It is not necessary that the person in question must have written the impugned document the condition "acquainted" is fulfilled if the witness had an opportunity to receive the document, written by person habitually, even though he had not seen the person write. Like hand-writing and signature, Non-expert opinion can be ‘admitted under regarding the existence of any eight, custom, usages, tenants and relationship etc. Section 48 supplements the provision of Section 13 which is the main provision relating to proof of custom or rights, Section 18 deals with all kinds of custom whether public or private. But Section 48 is confined only to expression, general customs or rights. Explanation of Section 48 provides that the expression "general custom or rights includes customs or rights common to any considerable class of persons. Under Section 49, Non-expert opinion are relevant when it relates to usages, tenants ete. According to Section 49, when the Court has to form an opinion as to— (i) Usages and tenats of any body of men or family; Scanned with CamScannerrate provision in y of Non-expert of Section 45 is to be admitted. t opinion. Under ith hand-writing ™m on opinion as Section 47, it is y requirement is of the person a is said to be by that person "or under his ents purporting ly submitted to to have direct ion must have 1" is fulfilled if nt, written by n write. inion can be istom, usages, e provision of "of custom or her public or neral customs sion "general ‘ considerable nen it relates Court has to INTRODUCTION TO EXPERT EVIDENCE + Gi) the constitution and government of any religion or charitable - foundation; Fae ces (iii) the meaning of words or times used in particular district or by particular class or classes of people. The opinion of the person having special means of knowledge thereon, are relevant facts ¥ Section 49 admits the opinion of only that person who has special means of knowledge on the subject. Section 50 deals with non-expert opinion when the court has to four an opinion as relationship of one person to another person. Section 50 provides that when the Court has to four an opinion as relationship of one person to another person, the opinion expressed by conduct, as to existence of such relationship of any person who as a member of the family or otherwise has a special means of knowledge on the subject is relevant fact. The provision of same section says that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecution under the Sections 494, 495, 497 or 498 of the IPC, 1860 (45 of 1960). For applicability of 5.50 two conditions must be fulfilled— 1. Opinion must have been expressed by conduct, not merely by words or statements, 2. The opinion must be expressed either by conduct of family member or of any person who has been dealing with the family. eg. a doctor, teacher ete. Section 51 of Indian Evidence Act, 1872 provides that "where ever the opinion of any living person is relevant the grounds on which such opinion is based on is also relevant." Opinion is no evidence without assigning the reasons for such opinion. The correctness of the opinion can better be estimated in many instances when the reasons upon which it is based is known. The difference between Indian law and U.S.A. law regarding admissibility of non-expert opinion is that under Indian law subject of non-expert opinion are specifically mentioned in sections 47 to 50. While in US. law it is only provided in general learns. Therefore, U.S.A. Court have more discretion than Indian Court. U.S.A. Court may admit any piece of non-expert opinion of that is helpful in determining a fact in owe Indian court has no discreation. ‘The expert opinion testimony is second exception to the general rule Scanned with CamScanner8 TECHNO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE | clusion of opinion evidence. Due to advance in Science_and technology, there has been an increasing necessity for the courts of law to ‘allow expert testimony. There are many matters which require professional or specialized knowledge. The judge is not expected to be an | expert in all the fields specially where the subject matter involves technical knowledge. This will compel the court to admit expert opinion evidence because an expert has a superior and special knowledge in scientific filed. f gai Arraisel Rilieaaa? ‘fie (a) In United States of America Rule 702 of Federal Rules of Evidence, 1975 deals with expert testimony. According to this rule, if scientific, technical or other specialized knowledge will assist the trees of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill experience tracing, or education may testify that in the form of an opinion or otherwise, if— 1. The testimony is based upon sufficient facts or data. 2. The testimony is the product of reliable principle and method, and 3. The witness has applied the princip the facts of the case. (b) In England In England, Section 3 of the Civil Evidence Act, 1972, clauses (1) and (2) of Section 3 declare that the opinion evidence by lay witness and expert witness are admissible on any relevant matter. Clause (3) specifically states that, relevant matter includes on issue in the | proceeding in question. But this provision is exclusively for civil proceeding. For criminal proceedings no such step has yet been taken for Criminal proceedings since 1967, English Courts have showed their reluctance in continuing the rule for example in D.PP. v. A, B & C. Cheling Gum Ltd.,' Court of Appeal by allowing psychiatrists to testify the effect of obscence battle cards on the hinds of children shows that the courts are ready to accept testimonies on ultimate issue, if such testimony may assist the trees of fact. In this case the defendants here Charged for contravening the obscene publications Act, 1959 and 1964 by publishing obscene battle cards which are sold with the packets of thewing gum. The prosecution sought to introduce the opinions of child ple and methods ratably to i C1976) @ AM! ER. 504, Scanned with CamScannerence and rts of law require ito be an * involves e because led. scientific th expert, or other itand the an expert y that in method, atably to auses (1) ness and ause (3) in the for civil aken for ad their BE&C. » testify INTRODUCTION TO EXPERT EVIDENCE > psychiatrists as to the likely effect of those cards on the minds of © children. Defendant raised objection. However court said if the question regarding the effect of the eards in the minds of the children was outside the competence of an ordinary court, they could obtain opinion of an expert in such field. Nevertheless, the courts are of opinion that no witness should be permitted to give his opinion directly that a person is guilty or innocent responsible or irresponsible, negligent or not ete. Philips. J. Observed in R. v. Doheney, and R. v. Adams,! "it was important that a scientist in giving evidence should not go into matters which are for the fury it should explain the nature of the DNA match and give the random ‘occurrence ratio. He may be able to say how many people with matching characterists are likely to be found in the United Kingdom or in more limited sub group. This will often be the limit of the evidence, which he can properly and usually give. He should not be asked his opi likelihood that it was the defendant who left the crime stain. However, in R. v. Dallaghu, (2003), Court allowed an experts conclusion that "In my opinion the unknown points found in this woods home are from donor 1061 union is the defendant in this case," this liberalized tend that has been criticized by the commentator. Such persons are called experts. iys down the circumstances “lantaion of expen opinion of expert are relevant only in cases mentioned in ion 45 and it is in admissible on other cases. The opinion of expert are relevant on Subject : Scanned with CamScannerTECHNO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE 10 The opinion of expert is open to ry value of expert opinion on identity isa question of fact. ‘The evidentiar Inf red the hand-writing 1 himself DVA. J. himself compat -writing of the accused and satisfied in this casey question with person han further corroboration necessary: S. Santha,” and held that no However, in 2003, in the ease of M.S. Usman Koya v. CS. Supreme Court rightly observed that an expert Cit certify only probability and not with 100% certainty: It ‘should be corroborated either by direct evidence or by cirewms(auliul evidence. e sxpert opinion". In layman's concept, expert in Jurist. Wigmore It is not easy to define on means opinion by an expert. An America opini dofines "expert opinion" as can be drawn by the Wherever inferences and conclusion: fury as itness, the witness is superfluous and thus an expert infer that expertssopinion. Lawson® gives special Knowledge as sciences, art, and trade ‘sis regarding the special | ‘Thus an expert is a person who devotes his time and study to a special ch he branch oF learning and is especially skilled in those points on \ FAIR 1975 SO 2200. eye eos 2 AIK 2003 SC Ker 191, G. Lawson, Evidence Rule 2, Section 440 quoted in hitp : 7 www. mgutheses ongipng/T%201534% 201333-pg_ 053. Scanned with CamScanner€ INTRODUCHION TO EXPERT EVIDENCE n ich points is admissible xpert is open to 4 3 not otherwise is asked to, his opinion. His evidence on su istent with the toenable the tribunal to come to satisfactory conclusion. ~ For above, it can be concluded that for proper’ understanding the but also facts meaning of expert opinign, the first requirement is to understand the ant when expert. meaning of the term‘ caper) on 45 of Indian the court has to sion, it can take inion on identity t theld that there (a) Under Common Law pression if it is etre on eh Ca aetee ‘The traditional common law _approa satisfied himself z ‘adjudicating the matter in dispute, it shall not be v. GS. Santha,” received as evidence howsoever expert eminent and qualified on his field. ~ an_ certify only In B. v. Turner,! case, the facts was that one Terence Stuart Turner -roborated either Killed his girlfriend by hitting her with a hammer. He admitted the killing but pleaded provocation as a defence. He said that he had been provoked by the victim's statement that she had affairs with other men eo and that he was not the father of her expected child. For that he sought 's concept, expert e to call a Psychiatrist to give his opinion based on information from Jurist Wigmore medical records. ae ‘The defense of provocation based on psychiatric evidence was held 1 by the fury as in admissible because the jury found that they did not need the | thus an expert assistance of expert testimony to explain normal human emotions and reactions which are deemed to be well within the common experience ‘and understanding of the jury. Howton LJ. observed : An cxpert’s opinion is admissible to furnish the court with scientific information's which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts, @ judge or jury confine their own conclusion without help, then the opinion of an expert in unnecessary. In Rv. Smith, a on was prosecul and he claimed to ave done so in sleep. The medical evidence of Psychiatrist on the question of automatism was allowed. The expert medical or scientific TOTS) 1 QB. BS 2% (1979) Crim, LR, 592 (C.A), Scanned with CamScanner12 TECHNO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE evidence was admissible to artist the jury in distinguishing between xenuine and fraudulent automatism, (b) In Australia In Australia, it is necessary that an expert must be skilled in some recognised branch of study or organised body of knowledge in H.G, v. R..) Australian Court summarised the rules to identify an expert as follows : 1, The witness must identify the field of specialized knowledge, 2. ‘The witness must have expertise on the aspect of that field, 3. The proffered opinion must be substantially based on the expertise of the witness. 4, The witness must explain how the knowledge on which the witness is an expert applies to facts assumed or observation made so as to produce the opinion pronounced. (o) In USA. In U.S.A. Rule 702 of Federal Rules of Evidence, 1975 and judicial pronouncement has made it clear that for a person being an expert his proper qualification is not enough but also his practical familiarity with | the subject and his aptitude for presentation is required. Though, the law regarding expert qualification is liberal but court interpreted it in narrow and strict sense. In Smith v. Hobart Mfg. Co.,’ Howard smith instituted a suit against the manufactures of a meat grinding machine for injuries | sustained when his hand and arm got entangled in the machine. The : plaintiff alleged that the accident was caused due to defendant's negligence in designing the machine. In order to prove the nogligence of the defendant, an expert was invited by the plaintiff to testify in the particular field of safety designing electrically powered warm-driven grinders. The defendant contended that he is not an expert. The expert testified that he received a science degree and he had filed approximately 50 applications for patent disclosures and had written approximately 150 articles on various subjects and worked for various companies. The court found that there was no evidence that he had pursued scientific studies of any nature. In cross-examination, he admitted that he did not write on meat grinders or about safety food ) machines. ‘The Court observed as : ‘An expert witness has been defined as a man of science, educated and acquired practical experience. He need not be E99) 197 CLR aa. 2. 185 F. cited on http “dvwvr, mgutheses. orp/pne/T/% 201338/T/201389-page 064. ee ee Scanned with CamScannerishing between 2e skilled in some ige in H.G, v, R.,) xpert as follows zed knowledge, 2t of that field, ¥ based on the ge on which the ‘dor observation 1 L975 and judicial ng an expert his familiarity with ed. Though, the nterpreted it -in stituted a suit ne for injuries » machine, The to defendant's © negligence of testify in the | warm-driven rt. The expert ne had filed I had written ed for various that he had mination, he t safety food | of science, eed not be 1333-page O64. vl INTRODUCTION TO EXPERT EVIDENCE \ infallible or show the highest degree of skill and particularly noe ie ba ater of hold ‘degroel or cart heat eal nore become qualified. ‘ In United States, the trial Court has complete disereation to determine a particular person as an expert. Normally the appellate Court will not interfere in the trial Court's determination exeept in case of Serious abuse. (€) In India n )\(sciéncey or farty\identis or finger fabression. ‘TRUS Section 45 limits the expert testimony only-upon these four disciplines, In India Section 45 of Indian Evidence Act, 1872 does not specifically mention trade or skill, But the words, "Science or art* expanded by the courts so as to entertain novel evidence in the light of Scientific or technological advancement. In 197: , defined in the Universal Dictionary of English language as proficiency, Dexterity, Skill based on long experience and practice and came to the conclusion that it was sufficiently wide enough to include the evidence of (972) GHEY 407, 2 AIR 1959 Pat 534. Scanned with CamScanner14 TECHNO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE footprint expert.’ Analyzing Section 45 he said that the very amendment made out in Section 45 to include finger impressions showed that it was the policy of legislative to take the merit of developments of Science. 1 SRS CHBUARP ine ueton bore Spree Court wa whether opinion of type-writer expert is admissible uncter-section 45 of the Indian Evidence Act, JS. Verma J{held What the word science and art provided in Sectio je Indian Evidence Act is of wide impor to include each branch of fine subjects. 'S. Ratnavel Pandian J.,° has observed that ......by the march of time, there is rapid development in the field of forensic science and, therefore, it has become imperative to note the said march of modern vistas of scientific knowledge, before the question whether the opinion of an expert in regard to type script would fall within the ambit of Section 45 is decided. ‘Therefore, opinion of type-writer expert is admissible under section 45 of the Indian Evidence Act. Thus the court has imported the time Skill or technique with the word seienge” ‘The law commission of India has recommended a sweeping change to section 45. The amended provision reads as When the Court has to four an opinion upon a point of foreign law or of science, or art or as to identity of hand-writing or finger impressions or footprints or palm impressions or type writing or Usaye ‘of trade or technical times or identity of persons or animals , the opinions, upon that point, of persons specially skilled in such forefgn law, science or art, or as to the identity of hand-writing, finger impressions footprints, palm impressions, typewriting usage of trade, technical terms or identity of persons or animals as the case may be are relevant facts. ‘Such persons are called experts. ‘The proposed amendment contains new words and put the Indian law on the line of evidence law of united States and England. This change could be considered as inevitable in Section 45 of the Indian Evidence Act. However, one of the important short comings in the proposal is that the commissioner has left the word "Skill". Therefore, it, is Submitted tharl/an amendment should be made so as to incorporate the changes recommended by the commission and also incorporate the Scanned with CamScanner\cE INTRODUCTION TO EXPERT EVIDENCE +18 © very amendment am howed that it was in K “ee TF evidence of expert is outside the purview of Section 4 pe LS indian Evidence Act, it is not admissible. In Ramdas v. Secretary of nder section 45 of _ ‘State! Allahabad High Court explaining the term expert in the light of wonliecenes aa Section 45 said that there is a difference in defining the term expert is of wide import within and outside the legal system, Outside the court, a man may be ‘an expert in his field of study but in law the term, expert has a special significance and no witness is permitted to express his opinion unless he is an expert within the term of Section 45 of the Indian Evidence Act or under some special law. by the march of ‘ie science and, march of modern her the opinion of © ambit of Section | ‘An exper witness testimony will also be allowed if he has sufficient experience in ible under section | his field, although he Tacks an apparent qualification. mported the time Burden ‘on an expert to prove his competence, if the examination-in-chief clearly shows no competency the opinion given by the witness will be excluded. The regular practice is that the expert will ‘be allowed to give his evidence and his competency can be challenged in dint of foreign law i the cross-examination, writing or finger The analysis of these judicial pronouncements would not only give writing or usage \ an acceptable definition of an expert but would also help to identify the or animals , the role and scope of his evidence. Taking into account an expert can be 1 such foreign law, defined as : ‘inger impressions e, technical terms are relevant facts. sweeping change ad put the Indian ad England. This 45 of the Indian 2 comings in the | Kail". Therefore, it as to incorporate } ‘0 incorporate the as to remove the Scanned with CamScannerCHAPTER—2 RELEVANCY AND ADMISSIBILITY OF SCIENTIFIC EVIDENCE Ne ee eee suashailatienorsmeiical seadenee as & In other words, generally accepted scientific evidence ‘which is to acceptance to court of law and scientific community is known ‘as scientific evidence. Soa ae ‘A variety of development in s the use of scientific evidence in judicial system. The reliability and admissibility of it has also a question and debatable. A number of ‘written to explore the subject and offered support for itsadmissibility. However, in number of articles its admissibility was doubted. 2. General Principles of Relevance and Admissibility (i) What is "Relevance"? According to "West's Legal Thesaurus Dict esta Taal Theonurs Diconary!, Now York, west publishing company St. Paul a = Scanned with CamScannerSILITY OF IE rrived at by scientific 1 evidence is called ed scientific evidence community is known ts greatly influenced The reliability and table. A number of 4 offered support for 's admissibility was \dmissibility s before it. When a it must have some must be relevant to ant will be rejected ' Relevance means tionary the word ove or disprove a ristence of a fact be, the term releyant | New York, west IENTIFIC EVIDENC 7 aid to belFelevant to her inane of the ays 1e relevancy a ‘another if by itself or in of a fact in issue fact. Only) ‘the provision Tn general, a fact is said connection with other facts it rendi either probable or improbable ope ‘The Chamberlayne’s Modern Law of Evidence — ‘Relevant’ as applied to evidence must upon the issue which the parties have made by assist in getting at the truth of the disputed fac will withstand this test should not be objected to. »s not tend to establish or create ial facts which are lers the existence be understood as touching by their pleading, so-as to s. Whatever evidence Evidence is irrelevant when it doe a belief as to the existence or non-existence of materi in issue. Evidence is material when it has an effective influence or bearing on the question in issue, Would the evidence, if introduced tend to If not, it is establish some controversial fact? If so, it is material immaterial From the above di 0 not easy to define completely. It is for the judg: Jogic and experience he must evaluate the probabiliti relevancy will be ascertained (ii) Logical and legal relevancy— According to English Jurist, Relevantymeans “what is" logicallyy it from logical relevanc} because the former demands a close connection between the facts sought to_be proved. Under legal relevancy court may reject many things as irrelevant though it is probable and highly connected with a fact in issue, on the ground of convenience or policy. SET Relevancy and Admissibility— jon it is concluded that the term relevant is to application of his on which Heck mgt is Section (and of no others) clearly preclude a litigant from proving any fact not in issue, i.e., any fact which are not the principle matter in dispute, or which are not declared to be relevant ‘in any of the remaining sections S. 6-55 of Chapter II of the IBA. ES of Indian Evidence Act, 1872 2 Vol. 1 §, 26, Scanned with CamScanner18 TECHINO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE Thereforé, the last four words exclude the evidence of collateral fact which is incapable of affording any reasonable presumption as to fact in issue. ‘The term "relevancy" and admissibility is not the same thing. The rules of relevancy declares certain facts relevant, rules ofvadmissibility lay down as to whether a certain form of evidence about relevant fact, may be| pe oeTeRE ed? The adi lity is the means and method way ballon the relevant facts," ae In RGRATAANALTSAMOPBMAF case Motd. Quadasi, J. said that, more than often the expression rélevancy and admissibility are used as synonym but their legal implications are different because more often than not facts which are relevant may not be admissible for ‘example, the-communication- made by spouse during marriage, the ‘communication’ between the advocate/and hhis'client, though relevant are not admissible. So, also the facts which are admissible may not be felevant, for example, questions permitted to be cross examined to test the veracity or to impeach credit of witness though not relevant are admissible. ‘The distinction between Relevancy and admissibility are following = 1. Relevaney is to be determined by logic and human experience while Admissibility is not based on Togie but on strict rules ed on logic but on striet rules of Jaw. Thus, y facts having no logical bearing on the issue are admissible, e.g. the proofs of some preliminary facts which are necessary for the admissibility of other evidences are also admissible. The admissibility of these facts is mainly based on rule of law. For instance, the admissibility of all circumstances showing that a confession is voluntary or facts or incidents whether they are part of the ‘Res gestae’. On the other hand, the fact which is logically Probative, ic., relevant may not be evidence as been too remotely connected. Thus, the moral disposition of a person may be of much value in determining the probability of doing or not doing a particular act but it is generally excluded on the ground of its tendency to create considerable prejudice against the accused. 2. In case of proving a case-of theft, other instances of theft by the accused are logically relevant and of high probative value but issible on the ground of policy and Afairness, ‘they are not ad since they would raise a number of collateral issue and create prejudice and surprise with the result that main fact in issue Tr Prof Rakesh Khanna, "Batuk Lal the law of Evidence," Allahabad, Central Law : 2008 P. 27-28. Scanned with CamScannerae fee RELEVANCY AND ADMISSIBILITY OF SCIENTIFIC EVIDENCE a 2 of collateral fact would be lost sight of, if other logically relevant facts are aption as to fact in excluded by positive rule of law, eg, the rule in Sigg | prohibiting the disclosure of communication made to a lega) te same thing. The adviser in eonfidence or rule in’$.122 prohibiting disclosure of les of admissibility communication between husband and wife during marriage bout relevant fact, what is legally receivable is admissible whether it is logically means and method i probative or not. | 3, The rule of relevancy is described from S.5-55, where as the 4. Quadasi, J., said 1 admissibility are arent because more be admissible for ing marriage, the hough relevant are ssible may not be 'S examined to test ) not relevant are rules of admissibility are described after 5.56 of Evidence Act, 1872.! 4. The Rules of relevancy declar int, while the rule “type of relevant 0 be excluded. 5. Admissibility is determined first by relevancy and affair of logic and not of law. But only indirectly by law of evidence which is stickness only declares whether matter which is logically probative is excluded. In R. V. Sakharam, the statement of a = witness for the defense that the witness for the prosecution lity are following : was at a particular place, at a particular time and human experience consequently could not have been at another place, where the enleteeraies'e¢ latter states that he saw the accused person, is properly - . admissible in evidence. 3. Admissibility of Scientific Evidence ‘Scientific evidence or: Forensicevidence is an_ evidence which is i at by scientific or technical means: When it is produces fore. € iene ye first question arises about its admissibility. Forensic evidence is based on application of scientific theory oF concerning "branches along with the laboratory technique which invtarn involves 5 variety of other ‘natural sciences. ‘The reason for using the forensié science is ei forensic evidence to produce in the court lence Belay OF BOTETTET of Taw, The carefully gathored scientific information and forensic test result establishes a fact or truth at or before trial. {he purpose is to help” the-courtfor arriving at a correct decision and not. to demonstrate The scientific evidence or Forensic evidence is generally of two types, viz.— 1. Which/associates a suspect omd@cused to the erime andy 2. ar nature” and” does’ not” associaterwith? a Scanned with CamScanner20 TECHNO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE. For example, jut, the exculpatory aspect of this there is absence of scientific evidence, jechnique is equally important. If ific ¢ the suspect or accused may be released. SR ‘Admissibility of Scientific Evidence in U.S.A. Court 1. General Ensuring the scientific validity of scientific evidence always posed On the problems for judges and lawyers largely untrained in science, tther hand, law looks to science for answers to factual questions that lie beyond the understanding and knowledge of non-scientists, but at the same time judges without scientific training must determine whether those answers are reliable enough to warrant their use at trial. In USA, courts were struggling to determine the standard of ibility of scientific evidence. For this, these are some major admi issues 1. Whether the subject matter of expert opinion is appropriate to the case, 2. Whether scientific principles on which it is based are recognized. 3. Whether expert is sufficiently qualified to render the opinion. 4, The kind of information on which the expert bases his opinion. 5. The role of general consensus in the scientific community in evaluating the admissibility of expert testimony and, 6. Limitations pertaining to the type of opinion an expert can express? In short, it is clear that it is ultimately for the court of law to decide as to how much weight should be given to the scientific evidence and to the expert opinion. St te at mit ee ee ees eel eon mts uw a a er Scanned with CamScanner‘VIDENCE 3s a RELEVANCY AND ADMISSIBILTY OF SCIENTIFIC E : ed it in sand. The 5 : es of evaluation of the expert * Court enumerated the general principles srereren tie evidence in Australia, The principle was explained by Heydon, J. Pcemtatanees “If evidence tendered as expert opinion evidence is 0 be x admissible. It must be agreed or demonstrated that there is a field baby’s clothes were a field in which the witness demonstrates that by reason specialized training. Study or experience of the witness who has become an expert; the opinion proffered must be wholly or substantially based on the witness's expert knowledge. jCramissl lity of Scientific Evidence in India 1. In India, scientiy sed cut the baby’s ad placed it in pile. scientific evidence Uso confirmed the Wild dog). But the fi eae ae | of specialized knowledge’, there must be an identified aspect of that aunity in Australia ‘od evidence, The speaks against the {Glontilehexperts:/Scientiie evidence and the court are empowered to ised for settlement summon such an expert Ss E. S crisis was settled fence cocle 1975 by ssibility of expert on the person's apply to evidence ally based on that ‘opinion evidence eld of expertise. “the Court may is substantially Unlike U.S.A., Indian courts iff"THda/@Fe"still not" clearregarding fs : i ‘or DNA evidence, the underlying technique i ‘que is not und ispute throughout the world but the objection is with regard to the method of collection, preservation, forwarding and authentication of collected samples. It has also been seen that different laboratories have there must not their own set of standards. There are no rec i ast E nized national a: the specialized international guidelines for control and Panes 4 ape \ such level that ‘ : ily based on the f ifie Evidence in India T. Supra a nt OAT Scanned with CamScanneroe 36 TECHNO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE a eect ehh must be satisifed by the judges before admitting The evidence. The general practice is that the judges, will receive the opinion of an expert after checking his patency in chief-examination, feserving the inquiry as to the grounds of opinion on cross CATE fon, ‘hile cross examining the witness, if any suspicion arises regarding the wl grounds or reasons on whieh an opinion is based privilege is given considering their qualifications, 9 loads in their field. cng iy invoking Section 293 courts can inder the hand of tor ‘The courts are expressed ‘Thus, in Parwat v. TR 1956 Bom. 617. Scanned with CamScannerIDENCE jinary person cannot edge and skill. What 8 that he must be a If he had then his an expert opinion is rts were considering ssibility rather than ‘used for arriving at Widence Act provides vant the grounds on But this is not a in chief-examination, on eross examination, arises regarding the ourt will inquire into »* RELEVANCY AND ADMISSIBIUTY OF SCIENTIFIC EVIDENCE 7 Bombay High Court after pursuing the evidence of the Lower Court tek the view that it was essential that the expert should have stepped into the witness box and then perhaps for convenience he might have been permitted to put his opinion on the record so as to enable the opponent to cross examine him in reference to that opinion. The court further said unless the expert stepped into the witness box the opinion expressed by him in a communication to one of the parties could not be treated as evidence under the Evidence Act. However, wus, the question of summoning the expert 1s-bas nature and circumstances of the ease. Judicial practice shows that: Rormally courts will insist that the report of a scientific expert. must contain all relevant information required, including the reasons for {rriving at a particular conclusion, the tests of experiments performed by hhim, the factual data obtained by such tests or experiments and the ultimate reasons which led him to fu form his conclusion so as to enable the court to arrive at its independent decision. Supreme Court established the” spectfie~proposttton”that-xctentific-expert’s opinion not 5 any reasons will not be relied upon, DT Thomas, 3. Slgprata oe ont sevice ee ee th of the scientific evidence of a Horticulture officer. He observed as 7 “_An export is not a witness of fact, His evidence is really of an advisory character. The duty of an expert witness is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment. by the application of these criteria to the facts proved by the evidence of the case. The credibility of su ich a witness depends on the reasons s\ in support of his conclusions and the data and materials furnis Hons and the data and materials furnished y ie data and materials furnished which form the basis of his conclusions, the reports submitted by an expert Ko in evidence automatically. He is to be examined as a witness in court and has to face cross-examinatio From the above decision féllowing "principles are deduced WP” ‘entirely on the Scanned with CamScanner» 28 TECHNO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE jetails_ the ‘necessary | i La-The!aiityof expert to. furnish with d scientific criteria on which mnclusion is based. basis of materials in support of bis 3, The credibility of an expert is tested on th supplied by him and the reason gi hi jefusion. ‘oxpert credibility is tested himaswitnes. 5 This for the court to form opinion on the | information supplied gbyexpert Caer ie _6.-The expert opinion is not - automatically admitted in evidence, & Corroboration—An Additional Requirement for ‘Admitting Scientific Experts Evidence in India precedent generally followed by the scientific evidence is fe court may normally of the admissibility of scien! @ court may norma mile oF caution’ Courts were reluctant to adinit er f the admissibility of Scie poe ee a particular piece of scientific evidence jindependently-with and supporting piece of other evidence. In | uGopal. v. State of AP.» ‘idence of an is a weak. type of ,preme Court said that the evidence “fa courts do not generally consider it_as_oflering ‘proof and therefore, not safe to rely ‘upon the same without Seeking independent and reliable corroboration: In order to corroborate scientific evidence, the evidence used for the corbin must ave some eapacty Wo ‘prove the fact in issue ot ‘scientific evidence in the, case. TheCmain asking corroboration is that courts considered expert evidence ope Biharilal v. State of Punjab.’ Supreme Court set aside the Punjab and Haryana High Court on the “of the evidence given by hand writing expert. In this case the facensed was charged for the offence of forgery under Section 468, 411 and 498 of the Indian Penal Code. The allegation against the appellant twas that he used a forged railway receipt for transferring the goods | Gbtained in the wagon of a goods train. In order to prove the handwriting in forged railway receipt the prosceution called handwriting export. He in -oss-examination by calling In Magan the conviction confirmed by testified that the handwriting in the forged receipt was of the same person (accused) who wrote the specimen handwriting. The Supreme observed as follows : ‘It is well settled that expert opinion must always be received with great caution. There is a profusion of presidential authority which holds Scanned with CamScannerDENCE tails the necessary 5 based. ve basis of materials im in support of his amination by calling formation supplied mitted in evidence, nt for Admitting ve courts in the ease court may normally ‘e reluctant to admit ly without a proper al wi State of AP! tis a weak type of ‘der it as offering 1 the same without vidence used for the the fact in issue the case. The main sred expert evidence me Court set aside \ High Court on the +t. In this case the er Section 468, 411 sainst the appellant nsferring the goods ove the handwriting dwriting expert. He t was of the same ting. The Supreme {ys be received with thority which holds RELEVANCY AND ADMISSIBILITY OF SCIENTIFIC EVIDENCE » that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. Thus, in this case Supreme Court has opined that there is a universal rule of law that iis unsafe to base a conviction solely on expert opinion without substantial corroboration. However, there is a difference of opinion among courts regarding the insisting of substantial corroboration as a requirement for admitting scientific expert’s evidence { The principle of the law of evidence is that th le irding the number of witnesses necessary_fo ‘a_criminal charge. The testimony of a single witness or the availability of a single | piece Of evidence is enough for proving criminal charge, if it had the quality to prove the fact in issue. Thus, it is the quality of the evidence adduced and not the quantity of the evidence, which counts. used! The police sent this writing along with the specimen writings of the accused to the handwriting expert who opined that the same rr ‘This evidence indicated the presence of the accu deceased, which indicated him to the charge und Indian Penal Code. The ‘Trial Court convieted th conviction was also confirmed by the High Court, ‘Before’ the Supremé Court, 1) . The court justified the reasoning as follows True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert, But the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert is not. because experts in general are unreliable witness, the quality of eredibility or incredibility being one which an expert shares with all of the witnesses. ‘Thus, TAR 980 SC aT Scanned with CamScanner0 TECHNO-LEGAL ASPECTS OF SCIENTIFIC EVIDENCE witness in the same footing: regarding credibility oF ineredibility of the things which they testify before the courts. Courts held that there is né rule of law or any rule of prudence which has erystallized into a rule of {aw that the opinion of an expert must never be acted upon unless it is substantially corroborated. In order to substantiate this argument courts referred Section 45, 114 and 3 of the Indian Evidence Act. After referring i Section 114 of the Evidence Act, court held that there is nothing in the i Evidence Act as provided in the illustration to Section 114 of the same Act whieh entitles the court to presume that an accomplice is unworthy ar eredit unless he is corroborated in material particulars, which justified he court in assuming that an expert’ opinion is unworthy of credit Unlese corroborated. What court found in Section 45 of the Evidence Act Withat an expert testimony is admissible. If is based on the opinion of a person who is specially skilled and not any thing more than that This a ees clear that in India the law is silent regarding the standards to be adopted for evaluating an expert's evidence. ‘After having regard to the imperfect nature of science as a rule of caution court can insist corroboration in appropriate case but if the easons for the opinion are eonvincing and if there is no reliable evidence Ehrowing a doubt, the uncorroborated testimony of an expert may be admitted, In State of Maharashtra v. Sukhdeo Singh,’ thus, a careful peer into the Indian rules regulating the admissibility of scientific Pridence reveal that Indian courts will normally ask corroboration if there is any doubt in the reliability of such evidence. From the above analysis it is submitted that the standard of ‘corroboration in India can be considered as an effective check against the ‘acting on scientific evidence into the Trial System. ‘The following principle should be taken as evidence ion—as—therute—of corroboration in admitting wred as evidence against the ‘or innocence only if Sea astonuty “the inference je must be adopted in the inc evidence. However, the jependent evidence is, Le een corroboration need not be sufficient of itself to establish beyo oubt, the facts provided by scientiie evidence aa Scanned with CamScanner