Law Governing Experts &Scientific Evidence in India
We often hear in our formal and informal conservations that ,he is an expert speaker or he is an expert in a particular subject.The expert 's opinion is sought by many people or organisation or even courts on various issues or subject of importance,the expert help is also sought to solve a complicated problem or an medical condition.
There are many illustration to refer 'who is an expert person'.The expert is an extra- ordinary individual with high qualification in a particular field of study or who has acquired specialised skill and knowlegde in a particular area through rigorous training and scholarly pursuit by devoting considerable amount of time and mental energy.
Who is an Expert ?
"An expert, more generally, is a person with extensive knowledge or ability
based on research, experience, or occupation and in a particular area
of study. Experts are called in for advice on their respective subject,
but they do not always agree on the particulars of a field of study. An
expert can be, by virtue of credential, training, education, profession, publication or experience, believed to have special knowledge of a subject beyond that of the average person, sufficient that others may officially (and legally) rely upon the individual's opinion. Historically, an expert was referred to as a sage (Sophos). The individual was usually a profound thinker distinguished for wisdom and sound judgment."[1]
An Expert opinion can be taken in both Civil as well as Criminal courts.Some of the areas which require expert evidence :
- Foreign Law
- Science
- Art
- Identity of handwriting
- Finger impressions
Legal provision relating to Experts :
The Expert evidence is covered under S.45-51 of Indian Evidence Act ,1872,which deals with an opinion of third person ,where ever relevant and desirable .
According section 45 " When the court has to form an opinion upon a point of foreign law ,or of science ,or art ,or as to identity of handwriting or finger impression ,the opinion upon that point of persons specially skilled in such foreign law or science or art or in a questions as to identify of handwriting or finger impression are relevant facts,such persons are called experts."
Illustrations:
(a) The
questions 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.
Other sections :
- Section 47 :Opinion as to handwriting, when relevant
- Section 48:Opinion as to existence of right or custom, when relevant
- Section 49:Opinion as to usages, tenets, etc., when relevant
- Section 50:Opinion on relationship, when relevant
- Section 51 :Grounds of opinion, when relevant
Law Commission Report -Recommendations :
{THE INDIAN EVIDENCE (AMENDMENT) BILL, 2003}
Amendment section 45 , In section 45 of the principal Act, for the portion beginning with the words “When the court has to form an opinion” and ending with the words “Such persons are called experts” the following shall be substituted, namely:-
“When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to the identity of handwriting, or finger impressions or, footprints or, palm impressions or typewriting or usage of trade or technical terms or identity of persons or animals, the opinions, upon that point, of persons specially skilled in such foreign law, science or art, or as to the identity of handwriting, 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.”
“When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to the identity of handwriting, or finger impressions or, footprints or, palm impressions or typewriting or usage of trade or technical terms or identity of persons or animals, the opinions, upon that point, of persons specially skilled in such foreign law, science or art, or as to the identity of handwriting, 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.”
After section 45 of the principal Act, the following sections shall be inserted, namely:-
Supply of copy of Expert`s Report:
“45A.(1) Except by leave of the Court, a witness shall not testify as an expert unless a copy of his report has, pursuant to subsections (2) and (3), been given to all the parties.
(2) An expert’s report shall be addressed to the Court and not to the party on whose behalf he is examined and he shall owe a duty to help the Court and this duty shall override any obligation to the party on whose behalf he is examined.
(3) An expert’s report must -
(a) give details of the expert’s qualifications;
(b) give details of any literature or other material which the expert has relied on, in making the report;
(c) state who carried out any test or experiment which the expert has used for the report and whether or not the test or experiment has been carried out under the expert’s supervision and the reasons if any, given by the person who conducted the test;
(d) give the qualifications of the person who carried out any such test or experiment;
(e) where there is a range of opinion on the matters dealt with in the report –
(i) summarise the range of opinion, and
(ii) give reasons for his own opinion;
(f) contain a summary of conclusions reached;
(g) contain a statement that the expert understood his duty to the Court and has complied with that duty;
(h) contain a statement setting out the substance of all material instructions (whether written or oral) of the party on whose behalf he is examined.;
(i) be verified by a statement of truth as follows:“I believe that the facts I have stated in the report are true and that the opinion I have expressed are correct ”; and
(j) contain a statement that the expert is conscious that if the report contained any false statement without an honest belief about its truth, proceedings may be brought for prosecution or for contempt of Court, with the permission and under the directions of Court.
Procedure to prove Foreign Law and Court’s power:
45B. (1) A party to a suit or other civil proceeding who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice.
(2) The Court, in determining a question of foreign law, in any particular case may, after notifying the parties, consider any relevant material or source, including evidence, whether or not submitted by a party, and the decision of the Court shall be treated as a decision on a question of law”.
For section 48 of the principal Act, the following section shall be substituted, namely:-
Opinion as to existence of right or custom, when relevant:
“48. When the Court has to form an opinion as to the existence of any general or public right or custom or any matter of general or public interest, the opinions, as to the existence of such right or custom or such matter, of persons who are likely to know of its existence if it existed or of that matter, as the case may be, are relevant.
Explanation: The expression ‘general or public right or custom or any matter of general or public interest` includes rights or customs or matters 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.”
Amendment of section 50, in section 50 of the principal Act, for the proviso, the following proviso shall be substituted, namely:-“Provided that such opinion shall not be sufficient in any civil or criminal proceedings, where a person has to prove that there was a marriage”
Special Provision in the Cr.P.C ,Relating to Attendance of Experts in Courts :
The Code of Criminal Procedure, 1973 , Section 293. Reports of certain Government scientific experts.
(1)Any document purporting to be a report
under the band 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 proceeding 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.
The Power of High Court for Second Report :
Some of the Rulings of Supreme Court&High Courts on Expert Evidences:
- Expert opinion need corroboration-AIR 1957 SC 318,AIR 1963 SC 1940
- Expert opinion must be supported by reasons-AIR 1974 Ker 308
- Expert evidence is weak type of evidence -1996 4 SCC 596 [Gopal Reddy V State of A.P ]
- Expert has to face Cross Examination to establish his creditability -1999 7 SC 280[State of H.P V Jai Lal ]
- The opinion of government experts are reliable in case of two conflicting reports - Cri.LJ 810 Raj Mohamaddan V State of H.P
- The expert opinion on hand writing needs corroboration -AIR 1964 SC 529
- Blood grouping perfect test to determine paternity -AIR 1986 M.P 57
- No one can be compelled to give sample of blood for analysis -AIR 1993 SC 2295 [Goutam Kundu V State of W.B]
- The court can order blood test on respondent but can not compelled to give blood sample-AIR 1993 SC 2295[Sadashiv M Kheradkar V Nandini S . Kheeradkar]
- A medical man is called an expert, he is not a witness of fact,A medical witness ,who performs a post-mortem examination is a witness of fact-1960 CrLJ 1020[ Nagindra Bala Mitra vs Sunil Chandra Roy]
- Medical certificates or reports are worst form of hearsay evidence and the writer who wrote or issued it should be called upon to prove its contents else there will be plenty of chance to create false certificates and reports.
The author of the informative peice of article
is presently practicing Advocate ,Andhra Pradesh High Court ,Hyderabad and also Legal consultant &Freelance Legal Researcher- worked as Legal consultant to A.P Women's Commission for some time .
References :
