28-05-2014, 04:49 PM
PROJECT ON: Problems of Judicial Defence to Expert Testimony in India
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Introduction
S. 45 of the Indian Evidence Act, 1872 starts under a new heading ‘opinion of third persons, when relevant.’ Thus, the opinions of third persons are deemed to be relevant in certain conditions, when the court is satisfied so. One of such opinions of third persons is ‘opinion of experts’ u/s. 45. The importance of expert opinion has been recognized in the Evidence Act of 1872. So much so, S. 46 proclaims that if any fact which is otherwise irrelevant becomes relevant if it is supports or even is inconsistent with the expert opinion, provided that the expert opinion itself must be relevant.
Basically a witness is to be examined for what he has seen, or directly perceived in relation to the fact in issue, or relevant fact in the case before court. Generally, opinions or beliefs of a third person are inadmissible in evidence. However, there may be certain issues before the court which needs expertise, in relation to science, art, etc., to form an opinion, in relation to the subject matter of the suit. These are outside the judicial and legal fields. A judge, therefore cannot be expected to possess the expert knowledge in such fields. It is for this reason that law of evidence provides for expert opinion, to be adduced as evidence, subject to certain conditions, in the fields like foreign law, science, art or identity of handwriting. Under S. 45 of the Indian Evidence Act, 1872, the opinions rendered by such experts are treated as relevant.1
Scope of S. 45
The plain meaning of S. 45 is that the court in order to form an opinion about a point of law, or science, or art, or as to identify handwriting, or finger impressions can treat opinion upon that point of a person skilled as relevant facts.1 In other words, opinions of such experts are relevant facts, and are admissible in evidence as relevant facts by virtue of s. 45.2
Qualifications of Expert
S. 45 by itself does not lay down criteria for determining that who can be called an expert. Thus, in order to bring the evidence of a witness as that of an expert, it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.1 The opinion of the experts may be accepted only when an expert follows well accepted guidelines. An expert is only an expert when he follows the well accepted guidelines to arrive at a conclusion and supports the same with logical reasoning which is a requirement of law.2
When calling expert evidence, the prosecution must first establish the expertise of the witness.3 Then, it is the duty of the judge to decide that whether the skill of the person in the matter on which the evidence of his opinion is offered is sufficient to entitle him to be considered an expert. It is the judge who has to decide the question of competency and fitness of the expert.4
An expert, in order to be competent as a witness, need not have acquired his knowledge professionally; it is sufficient, so far as the admissibility of evidence goes, if he has made special study of the subject, or acquired a special experience therein.5 Thus, hospital students, dressers, and unqualified practitioners may be permitted to testify as medical experts; and accountants who are conversant with the business of life insurance as actuaries.6 So, foreign law has frequently been proved by witnesses who, though not professional lawyers, followed some occupation which gave them experience of law in question.7
Science or Art
The words science or art as used in S. 45 of the Indian Evidence Act, 1872 should be broadly construed, the term ‘science’ not limiting to higher sciences and the term ‘art’ not being limited to fine arts but having its original sense of handicrafts, trade, profession and skill in works, which, with advancement of culture has been carried on beyond the sphere of common pursuits of life into that of artistic and scientific action.1
To determine whether a particular question is one of scientific nature or not, the following test may be applied:
“Is the subject matter of enquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without the assistance of experts?”2
If the court is of the opinion that the answer to this question is yes, then the question in consideration is of scientific nature, otherwise not.
Further, it the words science and art includes all subjects on which a course of special study or experience is necessary to the formation of an opinion.
Medical Evidence
The medical evidence also comes under the term ‘science’ in S. 45. It may be defined as professional men testifying to a matter of general scientific truth. But, regarding the question that whether a person is competent to be a medical witness or not, the judge’s discretion is paramount and there is no specific authority on this.3
Handwriting or Finger Impressions
Section 45 includes opinions on identification of handwriting by a person skilled as a handwriting expert as an expert opinion. But, it is section 47 which specifically states that when such an opinion will be relevant. It will be relevant when the court has to form an opinion as to the person by whom any document that was written or signed. In such cases, the opinion of persons who are acquainted with the handwriting of such a person will be relevant, even if he is not a handwriting expert. Thus, identification of handwriting can be done by experts as well as by the persons acquainted with the handwriting of the person.
Expert Testimony – Not Conclusive
In a plethora of cases it has been held that to convict the accused solely on the basis of expert testimony, without substantial corroboration from other evidences.1 Expert opinions, even when proved in accordance with law, at best constitute material for the court to arrive at a proper conclusion. The ultimate discretion to pronounce on a concerned issue rests with the court.2 It is notable that expert evidence is opinion evidence and that whenever an application for sending a disputed document to an expert is filed, it does not mean that necessarily and automatically the said application may have to be allowed. It would depend on all the facts and circumstances of the case, and no doubt the discretion may have to be exercised by the concerned Court in a judicious manner.3
Conclusion
The law existing on the expert testimony in India at present is pretty much in place. Sure, it is a weak form of evidence and there has been a debate on whether it should be given more weight, and with the advent of technology expert’s opinion must be given important consideration. But, the fact remains unchanged that expert opinion in itself is never conclusive, as far as the human error is concerned.
Two experts in the same field may have different opinion about the same question. This indicated that an element of doubt always remains with the expert opinion. Hence, the accused can never be convicted on the basis of an expert’s opinion as it has to be proved beyond doubt that only the accused has committed the offence.