Law of Evidence

By Nizam Azeez Sait,

MODULE No. 15

RELEVANCY OF OPINION – OPINION EVIDENCE

This is the 15th Module of the subject ‘Law of Evidence’, covering sections 39 to 45 under the sub title “Opinions of Third Persons When Relevant”, in Part II Chapter II of the Bharatiya Sakshya Adhiniyam dealing with ‘Relevancy of Facts’ (corresponding to Sections 45 to 51 of the Evidence Act).

MODULE INDEX

  1. Introduction
  1. Expert Opinion – Section 39
  1. Meaning of Science and Arts
  1. Who is an Expert; Scrutiny of Competency by the Court
  1. Nature and Evidentiary Value of Expert’s Evidence
  1. Opinion of Medical Expert – Case Law
  1. Conflict in Medical Evidence and Ocular Evidence
  2. Opinion of Forensic Expert on Gunshot injury Rendering Ocular Evidence Unrealiable
  1. Finger Print Expert’s Opinion
  2. Opinion of Handwriting Expert – Evaluation
  1. Examination of Expert Whether Necessary to Accept the Report in Evidence.

Civil Cases

Criminal Cases

  1. Facts Bearing Upon Opinion of Experts
  1. Opinion of Persons acquainted with the Handwriting are Relevant U/s. 41
  2. Opinion as to the Existence of Custom or Right
  1. Opinion as to Usages, Tenets etc.
  1. Opinion by Conduct on Relationships
  1. Strict Proof Required for Proving Offence of Bigamy under section 494, and Offences Under 495, 497 or 498 of the Indian Penal Code
  2. Grounds of Opinion Relevant

1. Introduction

As per the general scheme of the Evidence Act a witness should only give evidence as to the facts he had perceived with his senses and not his opinion. Drawing of inferences and forming opinion on the basis of such evidence for the purpose of just adjudication is a function belonging to the Court and cannot be delegated. But the above proposition is not without exceptions. sections 39 to 45 of the Bharatiya Sakshya Adhiniyam (Sections 45 to 51 of the Evidence Act) make opinion evidence relevant in certain specified instances.

Sections 45 and 45A of the Evidence Act are integrated into one section in the Bharatiya Sakshya Adhiniyam as Section 39, three illustrations are also added to the Section.

Sections 39 (1) deals with and make relevant opinion of experts in the prescribed areas such as foreign law, science, art, identity of handwriting, and finger impression. Section 39(2) makes relevant the opinion of the Examiner of Electronic Evidence.

Section 40 of the Bharatiya Sakshya Adhiniyam (Section 46 of the Evidence Act) states that facts which support or are inconsistent with the opinions of experts are relevant.

Section 41 (1) (Section 47 of the Evidence Act) makes relevant the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written. Whereas, Section 41(2) (47 A of the Evidence Act) makes relevant the opinion as to Electronic Signature Certificate of the Certifying Authority.

Section 42 (Section 48 of the Evidence Act) states that the opinions, as to the existence of custom or right, of persons who would be likely to know of its existence if it existed, are relevant.

Section 43 (Section 49 of the Evidence Act) makes relevant Opinion as to usages, tenets, of persons having special means of knowledge thereon

As per Section 44 (section 50 of the Evidence Act), when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.

Section 45 (Section 51 of the Evidence), specifies that whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

2. Expert Opinion – Section 39

Section 39 of the Bharatiya Sakshya Adhiniyam (Sections 45 and 45 A of the Evidence Act) reads as follows:

  • When the Court has to form an opinion upon a point of foreign law or of science or art, or any other field, 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 any other field, or in questions as to identity of handwriting or finger impressions are relevant facts and 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.

(2) 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, is a relevant fact.

Explanation.—For the purposes of this sub-section, an Examiner of Electronic Evidence shall be an expert.

3. Meaning of Science and Arts

Here in section 39 the terms ‘Science’ and ‘Art’ have to be understood in a broader sense. Any matter for the purpose of forming an opinion, which requires some special skill, special training or special study, is regarded as a science.

Various branches of Science advanced with the passage of time.  Some of the categories experts who are often called upon to give opinion evidence are the following:

Ballistic expert/Fire arm Expert, Medical expert, Forensic Expert, Chemical Examiner expert, Handwriting expert, Typewriting identification expert, Fingerprint expert, Thump impression expert, Footprint expert, D.N.A expert, etc.

4. Who is an Expert; Scrutiny of Competency by the Court

Experts are persons who have special or peculiar skill which is acquired by study of scientific work and practical observations. An expert is one who has made the subject upon which he speaks a matter of particular study, practice or observation; and he must have special knowledge of the subject. He is a person instructed by experience. An expert is one who has devoted time to study a special branch of learning, For example a doctor, forensic expert, specialised engineer, ballistic expert, Handwriting expert etc. His opinion must be based on specialised knowledge. Before accepting the opinion, the Court has to scrutinise the competency of an expert witness by taking into consideration the qualification, experience, training, means etc possessed by him in the particular field to which the court’s enquiry pertains (See State of H.P v. Jai Lal and Others, AIR 1999 SC 3318).

Competency of an Expert is a matter of proof.  Generally if there is no evidence of the nature of training received and his qualification he would not be considered as an expert. It is not always necessary that he should have acquired his knowledge professionally or by pursuing a university course. Expertise may be derived from experience and not merely from formal training (See State of Himachal Pradesh v. Jai Lal. AIR 1999 SC 3318).

In Sri Chand Batra v. State of U.P (1974) 4 SCC 247, An Excise Inspector who has put in 21 years of service and had tasted numerous samples of liquor was considered to be an expert within the meaning of S.45 (sections 39 of the Bharatiya Sakshya Adhiniyam).

But, in State of Andhra Pradesh v. Hadiga Boosenna and others (AIR 1967 S C 1550), the Supreme Court categorically emphasized the need for chemical analysis over the taste and smelling sense of officers and observed:

“In the instant case except for a general statement, contained in the evidence of the witnesses, that there was a strong smell of alcohol, emanating from the tins, which were pierced open, there is no other satisfactory evidence to establish that article is one coming within the definition of the expression liquor. Merely trusting to the smelling sense of the prohibition Officers, and basing a conviction on an opinion expressed by those officers under, the circumstance, cannot justify the conviction of the respondents. In such a case better proof, by a technical person, who has considered the matter from a scientific point of view, is not only desirable but even necessary, to establish that the article seized is one coming within the definition of ‘liquor’.

In Brij Pal v. State, (1996) 2 SCC 676, a police officer having long years of relevant experience and technical qualification was treated as ballistic expert.

(See also Baldev Raj v. Urmila Kumari  AIR 1979 SC 879)

5. Nature and Evidentiary Value of Expert’s Evidence

An expert 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.

An expert opinion would have two parts, data part and opinion part. The opinion part is useless without data part. The opinion should be supported by reasons. The facts perceived by an expert, his opinion the ground for the opinion are relevant. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions (See State of H.P v. Jai Lal and Others, AIR 1999 SC 3318).

Court can reject the evidence of opinion of the expert which is unsupported by any reason (Haji Mohammed v State of West Bengal Air 1959 SC 488) See also Mahmood v State of UP 1976(1) SCC 542

Expert Opinion is not generally conclusive and would only corroborate other evidence (See Ishwari Prasad v Mohd Isa AIR 1963 SC 1728 and Ram Dev v State of UP (1995) Supp (1) SCC 547).

6. Opinion of Medical Expert – Case Law

Medical opinion is often admissible in matters of identification, cause of death, time of death, nature of injuries, proof of rape, virginity, impotency, age of accused or victim etc. In all such contentious matters medical opinion would be relevant under sections 39 of the Bharatiya Sakshya Adhiniyam (section 45 of the Evidence Act).

The medico legal report, if given clearly, can either endorse the incident as given by the eye witnesses or can disprove the incident to a great extent. (Fahad and Others v State of UP and others, 2019 CriLJ 524 and Purushotham v State of M.P)

Medical evidence is generally corroborative only.

Generally, it is the duty of the Prosecution and the Court to see that the alleged weapon of the offence. if available, is shown to the medical witness and his opinion is invited as to whether the injuries on the victim could be caused with the alleged weapon. (See Iswar Singh v State of U.P AIR 1976 SC 2324 and Kartare v State AIR 1976 SC 76)

7. Conflict in Medical Evidence and Ocular Evidence

The Supreme Court in, Solanki Chimanbhai Ukabhai Vs. State of Gujarat 1983 (2) SCC 174 has laid down guidelines for taking appropriate course of action while adjudicating upon the guilt of an accused based on prosecution story where the ocular evidence is in conflict with medical evidence. The relevant observations are as below: –

“Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries: taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”

In Thaman Kumar Vs. State of Union Territoriy of Chandigarh 2003 (6) SCC 380, the Supreme Court court while explaining three different categories and reliability of ocular evidence in such cases has held as under: –

“The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye – witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third category no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.”

The Supreme Court in, Sadhu Saran Singh v. State of Uttar Pradesh 2016 (4) SCC 357: AIR 2016 SC 1160, held that in a case of variance between medical evidence and ocular version, the oral evidence generally has to get primacy as medical evidence is opinionative.

In, Darbara Singh v. State of Punjab, 2012 (10) SCC 476: AIR 2013 SC 840, the Supreme Court held as follows:

“… So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis – a – vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved.”

Yogesh Singh v Mahabir Singh Others, AIR 2016 SC 5160: 2017 CriLJ 291, the Supreme Court observed:

In any event, it has been consistently held by this Court that the evidentiary value of medical evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be preferred unless the medical evidence completely rules out the oral evidence. [See Solanki Chimanbhai Ukabhai Vs. State of Gujarat, 1983 (2) SCC 174; Mani Ram Vs. State of Rajasthan, 1993 Supp (3) SCC 18; State of U.P. Vs. Krishna Gopal & Anr., State of Haryana Vs. Bhagirath, 1999 (5) SCC 96; Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat, 2003 (5) SCC 223; Thaman Kumar Vs. State of U.T. of Chandigarh, 2003 (6) SCC 380; Krishnan Vs. State, 2003 (7) SCC 56; Khambam Raja Reddy & Anr. Vs. Public Prosecutor, High Court of A.P., 2006 (11) SCC 239; State of U.P. Vs. Dinesh, 2009 (11) SCC 566; State of U.P. Vs. Hari Chand, 2009 (13) SCC 542; Abdul Sayeed Vs. State of M.P., 2010 (10) SCC 259 and Bhajan Singh @ Harbhajan Singh & Ors. Vs. State, 2011 (7) SCC 421].

( See also Maghar Singh v State of Punjab 1987 SCC (Crl) 403 and State of UP v Krishna Gopal and another AIR 1988 SC 2154)

There is no presumption that a Medical officer’s evidence is truth full. Evidence has to be appreciated on its intrinsic worth ( Mayur Panabhi Shah v State of Gujarat AIR 1983 SC 66)

See also State of A.P v Dr M. V Ramana Reddy and Others AIR 1991 SC 1938.

It is well settled that Medical jurisprudence is not an exact science and it is difficult for any doctor to say with precision and exactitude as to when a particular injury was caused and also as to the exact time when sexual intercourse took place (Pratap Misra v State of Punjab AIR 1977 SC 1307)

8. Opinion of Forensic Expert on Gunshot injury Rendering Ocular Evidence Unrealiable

In, Harender Pal and others v State of Haryana and another, 2019 CriLJ NOC 85. Punjab and Haryana High Court found the ocular evidence unreliable based on forensic medical evidence.

Doctor examining deceased right after injury, reported presence of lung injury as result of gunshot. Nature of injuries showed that one gunshot of .12 bore was fired from close range.  On the basis of blackening of wound, distance of firing was assessed to be 2-3 feet.  Distance between street and place where deceased was shot was about 17 feet, Forensic opinion was that .12 bore gun fired from distance of 17 feet would not result in blackening of wound. Court found that Variance found in ocular evidence and medical evidence, rendered ocular evidence unreliable. (See also Kunwar Pal Singh v State , 2019 CriLJ 1277 and Karnail Singh v State of Punjab AIR 1977 SC 2119)

Absence of Ballistic Expert’s Evidence is no reason to doubt the credible testimony of the eye witness (Shambhu v State of U.P 1963 (1) SCJ 315)

9. Finger Print Expert’s Opinion

The Supreme Court, in the case of B.A. Umesh v. Registrar General, High Court of Karnataka, 2011 (3) SCC 85, where the finger prints were found on the handle of a steel almirah to which the persons from outside had no access, held as under: –

“75. The aforesaid position is further strengthened by the forensic report and that of the fingerprint expert to establish that the fingerprints which had been lifted by PW 13 from the handle of the steel almirah in the room, matched the fingerprint of the appellant which clearly established his presence inside the house of the deceased. The explanation attempted to be given for the presence of the fingerprints on the handle of the almirah situated inside the room of the deceased does not inspire any confidence whatsoever. In a way, it is the said evidence which scientifically establishes beyond doubt that the appellant was present in the room in which the [pic]deceased was found after her death and had been identified as such not only by PW 2, who actually saw him in the house immediately after Jayashri was murdered, but also by PWs 10 and 11, who saw him coming out of the house at the relevant point of time with the bag in his hand. The fingerprint of the appellant found on the handle of the almirah in the room of the deceased proves his presence in the house of the deceased and that he and no other caused Jayashri’s death after having violent sexual intercourse with her against her will.”

10. Opinion of Handwriting Expert – Evaluation

In many judgments Supreme Court has dealt with the evidentiary value of Handwriting expert’s evidence. Some of the observations are as follows:

Evidence given by experts of handwriting can never be conclusive, because it is, after all, opinion evidence (Iswari Prasad Misra v. Mohammed Isa, AIR 1963 SC 1728).

It is a rule of prudence that unless it is corroborated either by clear direct evidence or by circumstantial evidence the opinion of a handwriting expert cannot be acted upon (Shahshi Kumar Banerji v. Subodh Kumar Banerjee, AIR 1964 SC 529).

In S. Gopal Reddy v. State of A.P., AIR 1996 SC 2184, the Supreme Court has observed that the evidence of a handwriting expert is a rather weak type of evidence and the Courts do not generally consider it as offering conclusive proof and therefore safe to rely on the source without seeking independent and reliable corroboration.

The acceptability of the opinion of handwriting experts was considered by the Supreme Court in Ram Naran v. State of U.P., AIR 1973 SC 2200, The Court has observed:

“The opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion. But such opinion is worthy of acceptance if there is internal or external evidence relating to the writing in question supporting the expert’s view. The question in each case falls for determination on the Court’s appreciation of evidence.”

In Murarilal v. State of M.P, AIR 1980 SC 531, the Supreme Court speaking through Chinnappa Reddy J, sounded a slightly different note and observed:

“…corroboration may not invariably be insisted upon before acting on the opinion of a handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.”

In Ram Narain v. State of Uttar Pradesh (AIR 1973 SC 2200), a Bench of two Judges tad to deal with a conviction for an offence under S.384 of the Indian Penal Code. The question was whether accused bad written two anonymous letters demanding ransom after kidnapping a child. The only evidence against the accused consisted of the evidence of the expert to the effect that the handwriting was that of the accused. The Court considered the earlier decisions and took the view that there is no inconsistency in the ratio of any one of the earlier decisions. The Court observed that:

“Now it is no doubt true that the opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence which is relevant may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. If after comparison of the disputed and admitted writings by the court itself when the presiding officer is familiar with that language it is considered safe to accept the opinion of the expert then the conclusion to arrive at cannot be assailed on special leave on the mere ground that comparison of handwriting is generally considered as hazardous and inclusive and that the opinion of the handwriting expert has to be received with considerable caution. The question in each case falls for determination on the appreciation of the evidence…”                  

In Ramachandra v. State of Uttar Pradesh, AIR 1957 SC 381, the Supreme Court has observed that normally it is not safe to treat expert evidence as to handwriting as a substantive piece of evidence. It is a rule of prudence that unless it is corroborated either by clear direct evidence or by circumstantial evidence the opinion of a handwriting expert cannot be acted upon (Shahshi Kumar Banerji v. Subodh Kumar Banerjee, AIR 1964 SC 529). The acceptability of the opinion of handwriting experts was considered by the Supreme Court in Ram Naran v. State of U.P., AIR 1973 SC 2200, The Court has observed:

“The opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion. But such opinion is worthy of acceptance if there is internal or external evidence relating to the writing in question supporting the expert’s view. The question in each case falls for determination on the Court’s appreciation of evidence.”

(See also Kanchan Singh v State of Gujarat AIR 1979 SC 1011)

(For more on Handwriting evidence See Module 19)

11. Examination of Expert Whether Necessary to Accept the Report in Evidence.

Civil Cases

Order 26 Rule 10A of the Civil Procedure Code reads as under:

Commission for scientific investigation

(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2)     The provisions of Rule 10 of this order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under Rule 9.

Order 26 Rule 10(2) of the Civil Procedure Code reads as under:

Report and depositions to be evidence in suit.- The report of the Commissioner and the evidence taken by him (But not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.

The opinion of an expert is relevant under S.45 of the Evidence Act (sections 39 of the Bharatiya Sakshya Adhiniyam).

Section 75 (e) read with O.26 R.10A of the Code of Civil Procedure empowers the Court to appoint commissioners to hold scientific investigation. By virtue of O.26 R.10A (2) Code of Civil Procedure the provisions of R.10 of O.26 apply to such reports. The report along with the opinion is part of the records of the case. In other words, examination of the expert is not necessary/mandatory to act upon it. (See, Kerala State Housing Board v. Reghunadhan, 1988 KHC 444: 1988 (2) KLT 331 and Satheesh Kumar v. Special Tahsildar, 2000 KHC 75: 2000 (1) KLT 416: 2000 (1) KLJ 87).

But its probative value depends on its intrinsic worth and not on the provisions in the Code of Civil Procedure. (Chandrashekaran Nair v. M/s Olympic Credit Corporation and Another 2014 (2) KLT 242).

Criminal Cases

With respect to trial of criminal cases Section 329 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (S 293 the Criminal Procedure Code) specifically provides that reports of certain Government scientific experts may be used as evidence.

S.293 of the Criminal Procedure Code reads as follows:

“293. Reports of certain Government scientific experts: –

 (1)    Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceedings under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.

(2)     The Court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report.

(3)     Where any such expert is summoned by a court and he is unable to attend personally, he may, unless the court has expressly directed him to appear personally, depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in court on his behalf: –

(4)     This section applies to the following Government scientific experts, namely: –

(a)     any Chemical Examiner or Assistant Chemical Examiner to Government;

(b)     the Chief Inspector of Explosives;

(c)      the Director of the Finger Print Bureau;

(d)     the Director, Haffkeine Institute, Bombay;

(e)     the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;

(f)      the Serologist to the Government”.

(g) any other scientific expert specified or certified , by notification, by the state government or the Central Government for this purpose.

As provided under S.293 (2) on the facts of each case, court has to exercise the discretion whether expert has to be examined. Even under S.293 (3) Court has power to issue express direction for the presence of analyst. Whether an analyst or an official is to be summoned, whether there is serious infirmity in not examining such witness etc. have to be decided on the facts of each case.

Report of the ballistic expert of the Central Forensic Laboratory can be read in and treated as evidence even without examining the said officer (See State of H.P v Mast Ram, AIR 2004 SC 5056)

12. Facts Bearing Upon Opinion of Experts

Sections 40 of the Bharatiya Sakshya Adhiniyam (Section 46 of the Evidence Act) reads as under:

Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.

Illustrations.

(a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.

(b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant.

In Shashi Kumar v. Subodh Kumar (AIR 1964 SC 529) a Bench of five Judges had to consider whether expert opinion regarding the timing of the signature could be acted upon. There was direct evidence to the effect that signatures were affixed on a particular date and contradicting the opinion of expert. It was also found that the expert had not made a chemical test which could have shown definitely whether the signature was of a particular year or period. In this background, the Supreme Court observed:

“Besides it is necessary to observe that expert’s evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence it is usual to see if it is corroborated either by clear direct evidence or by circumstantial evidence. In the present case all the probabilities are against the expert’s opinion and direct testimony of the two attesting witnesses which we accept is wholly inconsistent with it.

…………..In these circumstances the mere opinion of the expert cannot override the positive evidence of the attesting witnesses in a case like this where there are no suspicious circumstances.”

In, Chennadijalapathi Reddy v. Baddam Pratapa Reddy (Dead) Through Legal Representatives and Another 2019 (14) SCC 220, a three judges bench reiterated that:

By now, it is well – settled that the Court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely rely upon such evidence, and the Court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect, reference may be made to a long line of precedents that includes Ram Chandra and Ram Bharosey v. State of Uttar Pradesh, AIR 1957 SC 381, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529, Magan Bihari Lal v. State of Punjab, (1977) 2 SCC 210, and S. Gopal Reddy v. State of Andhra Pradesh, (1996) 4 SCC 596.

The three Judges bench further observed:

 We may particularly refer to the decision of the Constitution Bench of this Court in Shashi Kumar Banerjee (supra), where it was observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said case, the Court chose to disregard the testimony of the handwriting expert as to the disputed signature of the testator of a Will, finding such evidence to be inconclusive. The Court instead relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the Will.

 On the other hand, in Murari Lal v. State of Madhya Pradesh, (1980) 1 SCC 704, this Court emphasised that reliance on expert testimony cannot be precluded merely because it is not corroborated by independent evidence, though the Court must still approach such evidence with caution and determine its creditworthiness after considering all other relevant evidence. After examining the decisions referred to supra, the Court was of the opinion that these decisions merely laid down a rule of caution, and there is no legal rule that mandates corroboration of the opinion evidence of a handwriting expert. At the same time, the Court noted that S.46 of the Indian Evidence Act, 1872 (sections 40 of the Bharatiya Sakshya Adhiniyam) expressly makes opinion evidence open to challenge on facts.

In Alamgir v. State (NCT, Delhi), (2003) 1 SCC 21, without referring to S.46 of the Evidence Act (sections 39 of the Bharatiya Sakshya Adhiniyam) the Supreme Court reiterated the observations in Murari Lal  and stressed that the Court must exercise due care and caution while determining the creditworthiness of expert evidence.

In, Vareed Kunju v Chellappan 1983 KHC 66: 1983 KLT 281 :  ILR 1983 (1) Ker. 400 (Chandrasekhara Menon; *U. L. Bhat, JJ), High Court of Kerala after a survey of various supreme court judgments, observed as under:

Courts must always keep in mind the difference between relevancy of evidence and the testimonial weight of such evidence. Undoubtedly expert evidence in proof or disproof of genuineness of handwriting or signatures is rendered relevant under S.45 of Evidence Act (sections 39 of the Bharatiya Sakshya Adhiniyam); at the same time, other evidence which supports or detracts from expert opinion is also relevant under S.46 of Evidence Act (Sections 40 of the Bharatiya Sakshya Adhiniyam). This is the rule of relevancy. In arriving at a decision whether to act upon expert evidence or not, an important feature of such evidence must be kept in mind. Expert opinion, like other opinion evidence, say for example, under S.47 of Evidence Act (sections 41 of the Bharatiya Sakshya Adhiniyam), is only evidence based on opinion. It should be realised that science of identification of handwriting is science which is imperfect and not exact. It is quite different in nature from direct evidence which could be adduced under S.68 of Evidence Act (section 65/67 of the Bharatiya Sakshya Adhiniyam). Expert opinion regarding identity of handwriting, being only opinion evidence based on an imperfect science, may not be conclusive; normally it may not be safe to base the courts’ finding solely on opinion evidence. This is only a rule of caution. Such expert opinion could be acted upon if supported by internal and external evidence, direct or circumstantial evidence. It is for the court in each case to satisfy itself that the opinion may be acted upon. Court may of its own observation of the admitted or proved writing and comparison with disputed writing, verify the premises of and the reasons given by the expert in support of his opinion, If the reasons given by the expert are unchallenged or are found acceptable, there is no reason to say that the finding of the court cannot rest on such evidence. The only rule is rule of caution. How the court is to apply the rule of caution in a given case depends on the facts and circumstances of each case. Expert opinion is as fallible as any other opinion evidence. Prudence requires that it must be approached with caution; caution is to be exercised by looking for internal or external evidence call it corroboration, if you must supporting the opinion. Corroboration may be forthcoming as a result of court’s own observations and comparison and the testing of reasons given by the expert; or it may be forthcoming in the form of external evidence, direct or circumstantial. The decision of the court must be taken in the light of all relevant evidence and circumstances. Conversely, if the reasons given are not acceptable or are found to be of doubtful validity, or if observations of court do not support expert opinion or if in a given case court is not able to agree or disagree with the reasons given by the expert, or if the other evidence and circumstances are inconsistent with expert opinion, court will certainly be justified in seeking corroboration of the opinion. Whether the court must seek such corroboration depends upon facts and circumstances of each case. If the reasons given by the expert are convincing and if there is no acceptable evidence inconsistent with the expert opinion, court may act upon it.

13. Opinion of Persons acquainted with the Handwriting are Relevant U/s. 41

As per sections 41 of the Bharatiya Sakshya Adhiniyam (S.47 of the Evidence Act), When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.

Explanation to the section reads as:

A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

Illustration to the section reads as:

The question is, whether a given letter is in the handwriting of A, a merchant in London.

B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. C, is B’s clerk, whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising with him thereon.

The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.

Section 41 (2) of the Bharatiya Sakshya Adhiniyam, reads as:

When the Court has to form an opinion as to the electronic signature of any person, the opinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact.

In, Chennadijalapathi Reddy v. Baddam Pratapa Reddy (Dead) Through Legal Representatives and Another 2019 (14) SCC 220, a three judges bench of the Supreme Court observed that:

Undoubtedly, the opinion of a handwriting expert is a relevant fact under S.45 of the Evidence Act (sections 39 of the Bharatiya Sakshya Adhiniyam). Under S.47 of the Evidence Act (sections 41 of the Bharatiya Sakshya Adhiniyam), the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is also a relevant fact.

As Per the explanation to S.47 of the Evidence Act (sections 41 of the Bharatiya Sakshya Adhiniyam), a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purported to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.

 A reading of S.47 of the Evidence Act (sections 41 of the Bharatiya Sakshya Adhiniyam) makes it clear that this provision is concerned with the relevance of the opinion of a person who is acquainted with the handwriting of another person. The Explanation to this Section goes on to enumerate the circumstances in which a person may be said to have such acquaintance.

In the matter at hand, DW – 3, in his cross – examination, has identified the disputed signature of the first defendant (his elder brother) on Ext. A – 1. He also stated that the suit schedule house was constructed when he was 25 years old; a partition was effected in 1980, after which he and the first defendant occupied their respective shares in the house; and that he finally sold his share in 1996 (when he was aged about 58 years). This goes on to show that DW – 3 lived and resided with the first defendant in the same house for over three decades. Moreover, as mentioned earlier, DW – 3 identified the first defendant’s signature on Ext. B –  1 (the partition deed), which has been admitted by the first defendant himself. In light of this, and given that DW – 3 came in to support the case of his brother, the first defendant before the Court, it can be inferred that their relations were cordial even after partition and that DW – 3 would have seen the latter write on multiple occasions in normal course of family affair. Thus, it is clear that, he was acquainted with the handwriting of the first defendant in terms of the Explanation to S.47 of the Evidence Act (sections 41 of the Bharatiya Sakshya Adhiniyam). This makes his opinion as to the disputed handwriting a relevant fact under S.47 (sections 41 of the Bharatiya Sakshya Adhiniyam).

 At this juncture, it would be apposite to observe that the weight to be accorded to such an opinion depends on the extent of familiarity shown by the witness with the disputed handwriting. This, in turn, depends on the frequency with which the witness has had occasion to notice and observe the handwriting, his own power of observation, and how recent such observations were. In light of the facts discussed above, which go on to show the familiarity of DW – 3 with the handwriting of the first defendant, we conclude that the testimony of DW – 3 may safely be relied upon, and must be accorded similar, if not greater, weight than the expert evidence adduced by the defendants to advance their case. This conclusion is further strengthened by the fact that the first defendant neither challenged DW – 3’s admission nor his acquaintance with the disputed handwriting, although it was open for him to do so by way of re – examination.

Section 41 (2) of the Bharatiya Sakshya Adhiniyam (Section 47 A of the Evidence Act), reads as:

When the Court has to form an opinion as to the electronic signature of any person, the opinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact.

14. Opinion as to the Existence of Custom or Right

Section 42 of the Bharatiya Sakshya Adhiniyam (Section 48 of the Evidence Act) reads as under:

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 such custom or right, of persons who would be likely to know of its existence if it existed, are relevant.

Explanation. —The expression “general custom or right” includes customs or rights common to any considerable class of persons.

Illustration. The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.

The section makes opinion as to general custom or right relevant.

Right

The term “right” referred in section is general right which means rights common to any considerable class of persons. The illustration to the section refers to the right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section. The section does not cover private rights.

Custom

Custom is a particular rule, which has existed from time immemorial and has obtained the force of law, in a particular locality or a society.

It is a fundamental proposition that for a custom to be valid it must not be immoral, or opposed to public policy or forbidden by any enacted law.

Custom referred in this section is general/public custom.

Under Section 42 of the Bharatiya Sakshya Adhiniyam (Section 48 of the Evidence Act), opinion evidence of a witness on the existence of a family or community custom is admissible. One of the modes of proving custom is by the opinion of persons likely to know its existence. His personal knowledge is only relevant for determining the weight to be attached to his evidence. The weight of his evidence would naturally depend on the position and character of the witness and of the persons on whose statements he has formed his opinion but he cannot be confined to instances in which he had personally known the usage or custom exercised as a matter of fact.  (Balvinder Singh v Gurpal Kaur AIR 1985 Del. 14)

In Ahmad Khan v. Mst. Channi Bibi, AIR 1925 PC 267, it was held that.

“A tribal or family custom excluding a daughter or sister from inheritance, in favour of collaterals may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence and its exercise without controversy. No specific instances need be proved.”

15. Opinion as to Usages, Tenets etc.

Section 43 of the Bharatiya Sakshya Adhiniyam (Section 49 of the Evidence Act) reads as follows:

When the Court has to form an opinion as to—

(i) the usages and tenets of any body of men or family;

(ii) the constitution and governance of any religious or charitable foundation; or

(iii) the meaning of words or terms used in particular districts or by particular classes of people,

the opinions of persons having special means of knowledge thereon, are relevant facts.

When the Court has to form an opinion as to the usages and tenets of any body of men or family, the constitution and government of any religious or charitable foundation, or the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon, are relevant facts.

Section 43 of the Bharatiya Sakshya Adhiniyam (Section 49 of the Evidence Act) makes relevant opinion evidence in respect of the following matters:

  1. The usages and tenets of any body of men or family,
  2. Constitution and Government of any religious or charitable foundation, and
  3. The meaning of words or terms used in particular districts or by particular classes of people

The opinion must be of the persons having special means of knowledge thereon.

In the Evidence Act 1872, it is specified that:

Usage refers to habitual practice in a particular place or business. If it is followed from time immemorial it could ripe a custom.

Tenets means a principle, belief, dogma or doctrine generally held to be fair and true by a group of people.

This part is omitted in the Bharatiya Sakshya Adhiniyam.

16. Opinion by Conduct on Relationships

Section 44 of the Bharatiya Sakshya Adhiniyam (Corresponding to Section 50 of the Evidence Act) reads as under:

When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act, 1869, or in prosecution under sections 82 and 84 of the Bharatiya Nyaya Sanhita, 2023 (under sections 494, 495, 497 or 498 of the Indian Penal Code).

Illustrations.

(a) 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.

(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.

As per Section 44 of the Bharatiya Sakshya Adhiniyam (Section 50 of the Indian Evidence Act), when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship. What the Section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. The two illustrations to the Section clearly bring out the true scope and effect of the Section.

In the case of A. Dinohamy v. W. L. Balahamy, AIR 1927 PC 185, Privy Council held that where a man and woman are proved to have lived together as husband and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. The Court observed as follows–

“The parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognized, by affectionate provisions, his wife, and children, The evidence’ of the Registrar of the District shows that for a long course of years the parties were recognized as married citizens, and even the family functions and ceremonies, such as, in particular, the reception of the relations and other guests in the family house by Don Andris and Balahamy as host and hostess – all such functions were conducted on the footing alone that they were man and wife. No evidence whatsoever is afforded of repudiation of this relation by husband or wife or anybody.”

In the case of Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, the Supreme Court observed that continuous cohabitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long co – habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.

The Supreme Court in Badri Prasad v. Dy. Director of Consolidation and Others, AIR 1978 SC 1557 : 1978 (3) SCC 527 observed as follows:

“For around 50 years, a man and a woman, as the facts in this case unfold, lived as husband and wife. An adventurist challenge to the factum of marriage between the two, by the petitioner in this special leave petition, has been negatived by the High Court. A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy.”

Dhannulal and others v Ganeshram and Another AIR 2015 SC 2382 : 2015 (12) SCC 301, the Supreme Court observed:

“It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. However, the presumption can be rebutted by leading unimpeachable evidence. A heavy burden lies on a party, who seeks to deprive the relationship of legal origin. In the instant case, instead of adducing unimpeachable evidence by the plaintiff, a plea was taken that the defendant has failed to prove the fact that Phoolbasa Bai was the legally married wife of Chhatrapati. The High Court, therefore, came to a correct conclusion by recording a finding that Phoolbasa Bai was the legally married wife of Chhatrapati.”

17. Strict Proof Required for Proving Offence of Bigamy under section 494, and Offences Under 495, 497 or 498 of the Indian Penal Code

Proviso to Section 50 states that:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (4 of 1869), or in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).

In order to prove the offence of bigamy under S.494, IPC, the prosecution is required to prove the fact of second marriage strictly and unless the prosecution is able to prove the fact of second marriage, as required under the law, the accused, cannot be held guilty for the offence under S.494, IPC.

In Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, 1971 (1) SCC 864 : AIR 1971 SC 1153, the Supreme Court clearly held that it is essential that the second marriage should have been celebrated with proper ceremonies and in due form and the prosecution has to prove that the alleged second marriage has been duly performed in accordance with religious rites available to the form of marriage gone through by the parties and the admission of the accused cannot be in law treated as an evidence of the second marriage having been taken place. It has been held as under:

‘…. it is clear that if the alleged second marriage is not a valid one according to law applicable to the parties,’ it will not be void by reason of its taking place during the life of the husband or the wife of the person marrying so as to attract S.494, IPC. Again in order to hold that the second marriage has been solemnized so as to attract S.17 of the Act, it is essential that the second marriage should have been celebrated with proper ceremonies and in due form.”

Where a spouse contracts a second marriage while the first marriage subsists, the spouse will be held guilty of bigamy under S.494, IPC if it is proved in the sense that the necessary ceremony, required by law or custom, has been actually performed. In Laxmi Devi (Smt) v. Satya Narayan and others, 1994 (5) SCC 545 the Supreme Court reiterated that in the absence of proof of such a ceremony, the factum of second marriage cannot be held to have been made out.

In Bhaurao Shankar Lekhande and Another v. State of Maharashtra and Another, AIR 1965 SC 1564 : 1965 (2) CriLJ 544, the Supreme Court held thus:

“Prima facie, the expression ‘whoever ……  marries’ in Section 494. Penal Code must mean ‘whoever……marries validly’ or ‘whoever…..marries and whose marriage is a valid one’. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally, give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife.”

(See also Bhaurao Shankar case AIR 1965 SC 1564, Kanwal Ram case AIR 1966 SC 614 and Smt. Priya Bala case AIR 1971 SC 1153 in Gopal Lal v. State of Rajasthan, 1979 (2) SCC 170: AIR 1979 SC 713)

18. Grounds of Opinion Relevant

Section 45 of the Bharatiya Sakshya Adhiniyam (Section 51 of the Evidence Act) reads as under:

Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

 Illustration.

An expert may give an account of experiments performed by him for the purpose of forming his opinion.

Generally bald opinion without providing the reasons for arriving at the opinion will not be acted upon by the court.

In State of H.P v. Jai Lal and Others, AIR 1999 SC 3318, the Supreme Court Observed:

“An expert 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. An expert opinion would have two parts, data part and opinion part. The opinion part is useless without data part. The opinion should be supported by reasons. The facts perceived by an expert, his opinion the ground for the opinion are relevant. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.”

Anish Rai v State of Sikkim 2018 CriLJ 4193, the Sikkim High Court observed:

In the instant matter, it was incumbent on PW – 10 to have first demonstrated her expertise in the field by way of evidence and thereafter, to testify as to how she had formed her opinion regarding the age of the victim. Undoubtedly, the X – ray gives the details of the stages of the fusion of the bone but this by itself does not suffice to form her opinion or for the Court to reach a conclusion. The witness ought to have clarified and elaborated on what the various stages of the fusion of the bone signified and how consequently she had reached her finding of the bone age of the victim to enable the Court to reach a decision with clarity and to appreciate her efforts.

In Madan Gopal Kakkad v. Naval Dubey and Anr., 1992 (2) SCR 921: 1992 AIR SCW 1480, the Hon’ble Supreme Court observed as follows;

“A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert’s opinion because once the experts opinion is accepted, it is not the opinion of the medical officer but of the Court.”

This would, therefore, mean that the Court is required to be circumspect when accepting the opinion of the medical officer especially when unsupported by reasons for the opinion.”

In Chandrashekaran Nair v. M/s Olympic Credit Corporation and Another 2014 (2) KLT 242, a division bench of the High Court of Kerala Speaking through Justice Abraham Mathew, rejected the opinion of a Handwriting Expert finding that the reason to reach the conclusion was not expressed in the report nor did the report reveal that the expert used any scientific equipment for the comparison. The Court observed:

Experts are persons who have special or peculiar skill which is acquired by study of scientific work and practical observations. An expert is one who has made the subject upon which he speaks a matter of particular study, practice or observation; and he must have special knowledge of the subject (State of H.P v. Jai Lal and Others, 1999 (7) SCC 280 : AIR 1999 SC 3318 :). He is a person instructed by experience (Narayana Kekunnaya v. Vishnu Derinjathaya, 1961 KHC 265: 1961 KLT 960). His opinion must be based on specialised knowledge. There are certain tests to ascertain the reliability of experts. His educational background, readiness to give the details of his technics and procedures are two of such tests …….. Before a document is sent to a person for scientific examination the Court should at least prima facie satisfy itself about his academic qualifications and competence and that he has a sufficiently equipped laboratory. This was not done in this case. When an expert is appointed to do some scientific work, it is proper that the Court issues a commission warrant as provided in O.26 R.10 of the Code of Civil Procedure Code. The age of handwriting expert also is relevant because he is required to have a ‘photographic eye’ to recognise similarities and differences in the questioned and the admitted or proved signatures.

An expert opinion has two parts, data part and opinion part. The opinion part is useless without data part. The opinion should be supported by reasons.

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in another module with another interesting topic on the ‘Law of Evidence.

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Exercise Questions

  1. Describe Opinion evidence?
  2. Briefly explain the instances where opinion evidence is relevant under the Bharatiya Sakshya Adhiniyam / the Evidence Act? Elucidate the Evidentiary value of such evidence in the light of case laws?
  3. Discuss in the light of case law conflict between ocular evidence and medical evidence
  4. Discuss Evidentiary Value of Handwriting Experts opinion evidence