As a general rule, opinion is not admissible. Witnesses are to place facts on the record before the court and it is for the court to form its opinion. Further, witnesses are generally interested parties in litigation and if their opinion is admissible, then there is a possibility of injustice. The opinion or belief of a third person is, as a general rule, irrelevant and therefore inadmissible as it is for the judge to form his own conclusion or opinion on the facts stated. There are certain exceptions to this general rule when the court is unable to form a correct opinion due to the question before the court requiring special knowledge and thus expert opinion on the same is sought. Science, art, trade, handwriting, fingerprints, foreign law etc. are some matters which require special study or special experience in the field. Sections 45 to 51 of the Indian Evidence Act deals with the expert evidence. In this article, we shall siscuss opinions of third person, when relevant.
It the past the expert opinions have only been limited to medical opinions. But now with the development of forensic science and technology the scope of expert opinion is increased. As far as, criminal law is concerned: ballistic experts, forensic experts, scientists, chemical examiners, psychiatrists, radiologists and even track-dogs are playing a very vital role in investigation of crimes and their evidence is admissible in the court of law.
Section 45 IEA:
Opinions of Experts:
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 impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. 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.
Section 45 of the Act enables the opinion of persons especially skilled in some science, art, foreign law, identity of handwriting and finger impressions relevant.
Defining an Expert:
The Courts in India in plethora of cases, have described that an expert is someone who has such special knowledge which need not be imparted by any University. He is a person having skill or experience in any art, trade or profession, which has been acquired by practice, observation or careful study and which is beyond the range of common knowledge.
Such evidence cannot be considered as substantial evidence unless corroborated by other evidence. Further, the opinion of an expert is not binding on the judge. The evidence provided by him is purely advisory in nature and he shall be subject to crossexamination as well.
In Ramesh Chandra Agarwal v. Regency Hospital Ltd., 11 September, 2009 case, the Supreme Court has broadly dealt and interrupted the term Expert.
The evidence given by an expert is generally required to be given orally and a mere report or certificate by him is not evidence 5. Before an expert’s testimony can be admitted, 2 things need to be proved:
The opinion of an expert is never binding on a court. It is admitted in evidence only to help the court in arriving at a correct decision. In other words, evidence of expert cannot be taken as conclusive of fact in considering the value of the evidence of an expert it must be borne in mind that an expert witness, however impartial he may wish to be unconsciously prejudiced in favour of the side which calls him.
In State of Maharashtra v. Damu S/o. Gopinath Shinde, 1 May, 2000 case, the Supreme Court further laid down that mere assertion without mentioning the data or basis in support of his opinion is not Evidence, even if it come from an expert.
In State of Haryana v. Bhagirath, 1999 CrLJ 2898 (SC) case, the Supreme Court has held that the opinion given by expert witness need not be the last word on the subject, such opinion shall be tested by court and if opinion is not of logic or objectivity, the court is not obliged to go by that opinion.
Section 45A IEA:
Opinion of Examiner of Electronic Evidence:
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 (21 of 2000) is a relevant fact.
Explanation:
For the purposes of this section, an Examiner of Electronic Evidence shall be an expert;]
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.
Under this Section any opinion on a 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 u/s 79A of the IT Act, will be relevant.
Section 46 IEA:
Facts Bearing Upon Opinions of Experts:
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 person, 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.
Section 47 IEA:
Opinion as to Handwriting, When Relevant:
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:
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:
The question is, whether a given letter is in the underwriting 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 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 48 IEA:
Opinion as to Existence of Right or Custom, When Relevant:
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.
Only persons who are likely to know about such customs in question are competent to give an opinion on them. The expert must have personal knowledge on the facts to be proved.
Section 49 IEA:
Opinions as to Usages, Tenets, etc., When Relevant:
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 50 IEA:
Opinion on Relationship, When Relevant:
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, or 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 Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
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.
Section 51 IEA:
Grounds of Opinion, When Relevant:
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.