Expert Witnesses under the Indian Evidence Act

Ashwin Pandey is a third-year student pursuing his BA. LLB from the West Bengal National University of Juridical Sciences, Kolkata.

Introduction

As a general rule, when a witness is produced before a court of law, the only job of the witness is to provide the court with the concrete facts that are known to them, they are not supposed to provide any of their own opinions since it is the job of the court to build its own opinion based solely on the facts, there does however exist an exception to this rule and it comes in the form of the testimonies of expert witnesses.

Sometimes, on certain matters such as fingerprints or medical evidence, the court may not possess the required knowledge to be able to correctly analyze the same. In situations such as these, the court calls upon certain experts in these fields to come and provide their opinions on the evidence in order to aid the court in clearly understanding the matter and be able to provide the best judgment possible.

The relevant sections on expert’s opinion can be found in the Indian Evidence Act and it is defined under Section 45 of the Act.[i]

Section 45 of the Indian Evidence Act defines an expert as one who possesses special knowledge and skills and helps the court in forming an opinion about points that relate to science, an art, a foreign law, or the identity of one’s handwriting, and their opinion will be considered as a relevant fact to the case.[ii]

There are other sections in the act as well that are more specific in dealing with expert’s opinions such as Section 47 which deals with handwriting experts, or Section 45A which deals with expert’s opinions on electronic evidence. These will be looked at in greater detail later.

In order for the court to be able to consider an expert witnesses’ testimony, there are two prerequisites that were laid down in the case of Parat V. Bissessar and these are that the subject matter of the case needs to be such that an expert’s opinion is necessary, and the witness who has been called really ought to be an expert on the subject matter.[iii]

Who can be classified as an expert?

While discussing this question, the Supreme Court held in the case Ramesh Chandra Agarwal V. Regency Hospital Ltd.[iv] that an expert is one who has devoted their time to learn about a special branch of learning. This knowledge could have been acquired by them through “careful study” or simply years of practice. The main thing that needs to be shown with regards to an expert opinion is that the person has adequate knowledge and skills in the particular subject even if he might not have any educational background as such and it lies at the discretion of the judge.[v]

Can the competence of an expert witness be questioned?

The main job of an expert is to put his opinions before the court and back it up with adequate reasoning to show why and how he was able to reach his conclusion (if the expert is not able to show adequate reasoning, then their opinion, while admissible, may not be considered)[vi] and with the help of this, even though the court itself might not be an expert on the matter, they will be equipped to be able to come to their own conclusion. The opinion of an expert is merely advisory in nature and is not binding upon the court.

Since an expert is not a witness of fact, they should be examined by the court and can also be subjected to cross-examinations.[vii] In the cross-examination, the credit-worthiness of the expert or his opinion can be challenged by providing evidence contrary to his opinion, or by showing that the expert gave a contradicting opinion on the same question before him before, or by any of the other methods that can be found in the Evidence Act under sections such as Section 146[viii] or Section 155.[ix]

What are the kinds of experts?

The courts have called upon experts from various fields from time to time, some of them have been listed below:

Handwriting Expert:

When the court requires an opinion as to who has written or signed on a particular document, they can call upon the opinion of an expert under Section 45 who compares the handwriting in question with a sample that has been submitted before the court, ask for the opinion of someone who was acquainted with the handwriting of the person purported to have signed the document under Section 47,[x] or do a comparative examination of the handwriting themselves.[xi]

When Section 47 talks about a person who is acquainted with the handwriting of the person who has been purported to have signed the document, it refers to a few different scenarios in which a person can be brought under its ambit. It can refer to a person who saw the accused writing or signing a particular document, or someone who has been acquainted with the handwriting when he received any documents written by the accused either as a reply to documents written by him or in the ordinary course of business when documents written by the accused were received by him.

In the case of State of Maharashtra v. Sukhdeo Singh, the court laid down that before they could act on the evidence of a handwriting expert, they needed to take certain precautions. They held that “two things must be proved beyond any manner of doubt, namely, (i) the genuineness of the specimen/admitted handwriting of the concerned accused and (ii) the handwriting expert is a competent, reliable and dependable witness whose evidence inspires confidence.”[xii]

The court went on to hold that when it comes to handwriting analysis, it is a “frail and imperfect” science and it places a heavy responsibility on the courts to take all precautions before they act on them.

Electronic Evidence Experts:

When the court requires an opinion on electronic evidence, it may do so under Section 45A of the Indian Evidence Act. The courts call upon experts on electronic evidence when they require an assessment of information that has been stored or transmitted in any electronic or digital form.[xiii] The electronic expert in such cases will be one as laid down in Section 79A of the Information Technology Act.[xiv]

Fingerprints Expert:

When the court needs to form its opinion on the question of a fingerprint, they call upon an expert for the same and the evidence provided by the expert becomes a relevant fact to the case.

As a general rule of prudence, the courts have held that the opinion of an expert on fingerprints should be given greater value. This is down to the fact that the courts work on the assumption that the fingerprints of a person remain unchanged from the day they are born to the day they die, and no two people can be found to have the same fingerprints.[xv]

The opinion of the fingerprint expert has only corroborative value and if it is found by the courts that the evidence provided is vague, then the non-examination of such an expert would end up rendering his evidence unreliable.[xvi]

Experts on Science and Art

Experts on science and art include all those topics on which, in order to be able to form an opinion, it is necessary for the expert to have undertaken a special course of study, or possess the requisite experience about the same.[xvii] Here, the terms science and art are not restricted to just higher sciences or fine arts, but have to be construed in a liberal manner. In order for someone to be adjudged an expert on these matters of science and art, it first needs to be seen by the court that the matter is not one which could have been easily understood by a layman who did not have any special knowledge.[xviii]

Under sciences, the main kind of expert that is called upon by the court is the medical expert.

The opinions of medical experts are mainly required by the court in criminal cases when a medical examination needs to be conducted on the victim and accused in order for the court to be able to proceed. The medical opinion so given is only corroborative in nature.

The opinions of a medical expert can be used to show a number of things before the court such as:

- The cause of death of a victim.

- Manner in which the injuries were caused to the victim

- The time at which injuries had been caused to the victim

- The nature of the injuries caused, were they fatal or not.

- The physical condition of a person.[xix]

It has been noted by the court that when it comes to medical experts, their evidence is to be approached with caution, this is because the expert will always have a natural tendency to favor the party that has called upon him.[xx] Because of this, it was held in the case of Mani Ram that if there is a conflict that arises between the evidence given by an expert and an eyewitness, assuming that the eyewitness has been properly cross-examined, his evidence will prevail over the opinion of the expert because of the fact that the evidence of the witness was based on a first-hand account and not an opinion.[xxi] It was further held by the court that if there ever arises a situation where the opinion of a medical expert is contradicted by another expert, the court will follow the opinion that is supported by direct evidence from the case.[xxii]

What are the differences between the testimonies given by an expert and any ordinary witnesses?

The testimonies provided by an expert and an ordinary witness have a number of differences, some of them are discussed in this section.

First and foremost, the evidence provided by an expert is an opinion whereas the evidence of an ordinary witness is based on facts. An ordinary witness is not permitted to give any opinions of their own, this is also why while an expert may be called on to answer hypothetical scenarios, the same cannot be done for ordinary witnesses.[xxiii]

Furthermore, while an ordinary witness does not require any special qualifications in order to be a witness, the same is not true for experts’ opinions. In order to qualify as an expert before the court, one needs to be able to show that they possess some special knowledge on a subject that the court may not be well versed in. The expert needs to show that he got his knowledge on the subject either through a higher level of study or through prior years of experience.

An expert is required to provide the other party with a report of the testimony that they are about to give before the court. It needs to be detailed and have all of the opinions that the expert is about to provide before the court and the reasoning behind the same. No such obligation rests on an ordinary witness.[xxiv]

As we have already seen above, if there is a clash between the opinion of an expert and the testimony of a witness, the latter will prevail since the former is simply an opinion whereas the latter is fact-based.

Conclusion

As we have seen, experts’ evidence is opinion based due to which the courts tend to give eye-witnesses an edge over them. If any oral evidence contradicts the evidence of an expert, it does not automatically render it inadmissible, but it can be used under Section 46 of the Evidence Act[xxv] to counter the same.

Some expert witness testimonies are given greater importance by the courts than others. For example, as we have seen, handwriting analysis has been said to be a frail science by the courts, so when there is some evidence-based upon handwriting analysis vs. DNA evidence that is provided by a medical expert, the courts will obviously provide greater value to the latter since DNA analysis has a greater probability of being accurate.

At the end of the day, an experts’ opinion plays only a corroborative role before the courts, their job is to help the courts gain a better understanding of a subject that they might not have been able to understand on their own.

REFERENCES

[i] Singh, A., 2021. Admissibility And Relevancy of Expert Evidence. [online] Legalserviceindia.com. Available at: <https://www.legalserviceindia.com/legal/article-1205-admissibility-and-relevancy-of-expert-evidence.html> [Accessed 8 December 2021].

[ii] The Indian Evidence Act, No. 1 of 1872, §45.

[iii] Parat v. Bissessar, ILR 39 Cal 245 (India).

[iv] Ramesh Chandra Agarwal V. Regency Hospital Ltd (2009) 9 SCC 789 (India).

[v] Gupta, R., 2021. Relevancy Of Expert Opinion Before Court - Litigation, Mediation & Arbitration - India. [online] Mondaq.com. Available at: <https://www.mondaq.com/india/civil-law/247286/relevancy-of-expert-opinion-before-court> [Accessed 8 December 2021].

[vi] State of Maharashtra v/s Damu s/o Gopinath Shinde and others, AIR 2000 SC 1691(India).

[vii] Balkrishna Das Agarwal v. Radha Devi, AIR l989 All 133 (India).

[viii] States that when a witness is being questioned, they can be asked questions that test their veracity, to discover their position in life, or to shake their creditworthiness.

[ix] The credit of a witness can be impeached by the adverse party or the party calling upon him in the following ways:

- Through the evidence of a person who testifies that they believe the person is unworthy of credit

- Showing proof that the witness has received a bribe or some other such inducement to give the statement

- The witness contradicted himself in a former statement.

[x] The Indian Evidence Act, No. 1 of 1872, §47.

[xi] The Indian Evidence Act, No. 1 of 1872, §73.

[xii] State of Maharashtra v. Sukhdeo Singh, 1992 AIR 2100 (India).

[xiii] The Indian Evidence Act, No. 1 of 1872, §45A.

[xiv] The Information Technology Act, No. 21 of 2000, §79A.

[xv] Dhingra, A., 2021. Expert witnesses under the Indian Evidence Act, 1872 - iPleaders. [online] iPleaders. Available at: <https://blog.ipleaders.in/expert-witnesses-under-the-indian-evidence-act-1872/> [Accessed 8 December 2021].

[xvi] Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 (India).

[xvii] Roy, D., 2021. Experts Opinion and its admissibility and relevancy - Law of Evidence. [online] Legalservicesindia.com. Available at: <http://www.legalservicesindia.com/article/1583/Experts-Opinion-and-its-admissibility-and-relevancy---Law-of-Evidence.html> [Accessed 9 December 2021].

[xviii] Gupta, supra note v.

[xix] Roy, supra note xvii.

[xx] Divan Singh v. Emperor, 43 Cr. LJ 565.

[xxi] Mani Ram v. State of U.P, 1994 SCC (Cri) 1242 (India).

[xxii] Piara Singh v. State of Punjab, AIR 1977 SC 2274 (India).

[xxiii] Dhingra, supra note xv.

[xxiv] Dhingra, supra note xv.

[xxv] The Indian Evidence Act, No. 1 of 1872, §46.

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