LatestLaws.

com

Expert Opinion under the Indian Evidence Act

The Indian Evidence Act under Section 45 enumerates the law relating to Opinion of Experts or
commonly known as Expert Opinion/Expert evidence. This statutory provision is adhered to
when the Court has to form opinion pertaining to:
• -foreign law
• -science
• -identity of handwriting

• -finger impressions

Under Section 45, opinions of experts are relevant on questions of foreign law, science, art,
identity, handwriting or finger impressions. Expert testimony is admissible on the principle of
necessity. The help of experts is necessary when the question involved is beyond the range of
common experience or common knowledge or where the special study of a subject or special
training or skill or special experience is called for. No man is omniscient; in fact, perfection is an
attribute of divinity only.
As a general rule, the opinion of a judge only plays a part and is thus relevant in the decision of a
case, and thus, the opinion of any person other than the judge about any issue or relevant fact is
irrelevant in deciding the case. The reason behind such a rule is that if such opinion is made
relevant, then that person would be invested with the character of a judge. Thus, Section 45 is
thus an exception to this general rule, as it permits the experts opinion to be relevant in deciding
the case. The reason behind this is that the Judge cannot be expected to be an expert in all the
fields-especially where the subject matters involves technical knowledge as he is not capable of
drawing an inference from the facts which are highly technical. In these circumstances, he needs
the help of an expert- who is supposed to have superior knowledge or experience in relation to
the subject matter.
 LatestLaws.com

Section 45, Indian Evidence Act, 1872:

“When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as
to identity handwriting or finger impressions, the opinions upon these points of persons
especially 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.”
A fact is something cognizable by the senses such as sight or hearing, whereas opinion involves
a mental operation. Under Section 3, the opinion of a person will be a fact too. U/s 60 oral
evidence in all cases must be direct if inter alia it refers to an opinion or to grounds on which that
opinion is held. It must be the evidence of the persons who hold the opinion on those grounds. A
distinction must be drawn, however, between the cases where an opinion may be admissible u/s
6 to 11 as forming a link in the chain of relevant facts to be proved and between cases where
opinions are admissible under sections 45-51. The former evidence is given by the non-expert or
the unskilled witness while the latter is given by the expert witness. Thus, in matters of calling
for special knowledge or experience or skill, opinions of expert witnesses is relevant u/s 45-51.

Prerequisites of an expert evidence

For the sake of consideration of an expert testimony, there are two important conditions that are
necessary to be shown:
1. That the subject is such that expert testimony is necessary.
2. That the witness in question is really an expert. must be proved that the witness is
competent enough to give the evidence and that the fact to be proved is a point of science
or art of which the witness is an expert in, before the opinion of a person can be admitted
in evidence
If a witness is not proved to be an expert, his opinion will become irrelevant. It must be proved
that the witness is an expert. He must be examined as a witness in the Court and be subject to
cross-examination
 LatestLaws.com

Who is an expert?

Section 45 defines an expert as a person who is especially skilled in a given field. The test of
judging the competency of a person is this: “Is it peritus?” Is he skilled? Has he adequate
knowledge?
An expert is a person who has special knowledge and skill in a particular calling to which the
inquiry relates. An expert witness is one who has devoted time and study to a special branch of
learning, thus is especially skilled on those points on which he is asked to state his opinion. His
evidence on such points is admissible to enable the tribunal to come to a satisfactory conclusion[.
The section does not refer to any particular attainment, standard of study or experience, which
would qualify a person to give evidence as an expert. All persons who practice a business or
profession which requires them to possess certain knowledge of the matter in hand are experts,
so far as expertness is required. It is the duty of the judge to decide whether the skill of any
person in the matter on which evidence of his opinion is offered is sufficient to entitle him to be
an expert.
Opinion is estimation, a belief or assessment, a view held as probable, what one thinks about a
particular question or topic, an assessment short of grounds of proofs, a formal statement of
reasons for the judgment, a formal statement of professional advice.

The Supreme Court in the case of State of Himachal Pradesh Vs. Jai Lal and others in the
following words explained who an expert is and what his functions are.
• An expert witness, is one who has made the subject upon which he speaks a matter of
particular study, practice; or observations; and the must have a special knowledge of the
subject.
• 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.
• 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
 LatestLaws.com

judgment by the application of this criteria to the facts proved by the evidence of the
case.
• 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 materials furnished which form the basis of his conclusions.
One of the earliest cases which enumerated on the function of expert was Titli v. Jones, wherein
it was stated that the real function of the expert is to put before the court all the materials,
together with reasons which induce him to come to the conclusion, so that the court, although not
an expert, may form its own judgment by its own observation of those materials.’

Difference between an expert and non-expert witness

Like a non expert witness the testimony of an expert witness need not be confined to actual facts
and he may give evidence on facts as stated by other witnesses, e.g. a doctor who might not have
seen the patient personally can opine as to the cause of his death on facts deposed. He may cite
textbooks in support of his opinion or to refresh his memory (S.159); he may speak about
experiments made by him in the absence of parties.

The opinion of an expert witness, however, eminent in his field he may be, must not be read as
conclusively of the fact which the Court has to try. However, evidence of eminent literary
persons as experts can be relied upon.

Expert opinion– evidentiary value

The opinion of an expert must be of corroborative nature to the facts and circumstances of the
given case. If the opinion contradicts an unimpeachable eyewitness or documentary evidence,
then it will not have an upper hand over direct evidences. The Section does not provide for any
specific attainment of knowledge or study or experience for being called an expert. Experts are
admissible as witness but, they are not to make conclusion as it is a judicial function.

In Forest Range Officer v. P.Mohammad Ali it was held that expert opinion is only the opinion
evidence. It does not help the Court in interpretation. The mere opinion of an expert cannot
 LatestLaws.com

override the positive evidence of the attesting witness. Expert opinion is not necessarily binding
on the Court

In Murali Lal v. State of Madhya Pradesh, it was held by the Supreme Court that here is no
justification for condemning the opinion evidence of an expert to the same class of evidence
as that of an accomplice and insist upon corroboration. The court also stated that it would be a
grave injustice to base a conviction solely on the opinion of handwriting expert or any other kind
of expert, without substantial corroboration. An expert deposes and not decides. His duty is to
furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion
so as to enable the judge to form his own independent judgment by the
application of these criteria to the facts proved in evidence

Opinion of Handwriting Expert

U/s 45 of the Indian Evidence Act an expert can depose to the identity of handwriting between
the questioned document and the document admitted or proved. A disputed handwriting may be
proved either by calling an expert (S.45) or by examining a person acquainted with the
handwriting of the person by whom the questioned document is alleged to have been written (S.
47) or a comparison of the two u/s 73.

Finger-impression

A man’s signature is called an unforgettable signature. This head was added to expert evidence’s
scope in 1899. The study of fingerprints is generally admitted to constitute a science. Its two
basic hypotheses are that:

Firstly, fingerprints of a person remain the same from birth to death;

Secondly, there has never yet been found any case where pattern made by one finger exactly
resembled the pattern made by any other finger of the same or any other hand.

The opinion of thumb impression expert is entitled to greater weight-age than that of a
handwriting expert.
 LatestLaws.com

Hon'ble Supreme Court in the case titled as Ramesh Chandra Agarwal v/s Regency Hospital
Ltd. has broadly dealt and interpreted the scenario and held that, an expert is a person who
devotes his time and study to a special branch of learning. However, he might have acquired
such knowledge by practice, observation or careful study. The expert is not acting as a judge or
jury. It was further held that 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. The real
function of the expert is to put before the Court all the materials, together with reasons which
induce him to come to the conclusion, so that the Court, although not an expert, may form its
own judgment by its own observation of those materials. An expert is not a witness of fact (like
other witnesses) and his evidence is really of an advisory character. The duty of the 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. No expert can claim that he could be absolutely sure that his opinion was correct.

Hon'ble Supreme Court has further laid down in the case titled as State of Maharashtra v/s
Damus/o Gopinath Shinde and others, AIR 2000 SC 1691, that mere assertion without
mentioning the data or basis in support of his opinion is not evidence, even if it comes from an
expert. It is held that such evidence though admissible, may be excluded from consideration as
affording no assistance in arriving at the correct value without examining the expert as a witness
in Court. Therefore, no reliance can be placed on an opinion alone.

In the case titled as Kabul Singh v/s Gurinder Singh, opinion of the expert was sought
regarding signatures put on a document. However, the expert also gave opinion that certain digits
were changed which opinion was not sought for. The Hon'ble High Court of Punjab and Haryana
held that such an opinion should be ignored and that expert should have confined himself to the
relevant facts.

However, there is a probability to lean the opinion of private experts in favour of the party
calling them. In such like cases, when there is a conflict of opinion between the experts, then the
Court is competent to form its own opinion with regard to signatures on a document or such like
matters.
 LatestLaws.com

Another important issue under consideration is that whether the Courts are bound by the opinion
given by an expert on a particular fact in a case. Hon'ble Supreme Court has answered this
question in the case titled as Malay Kumar Ganguly v/s Dr. Sukumar Mukherjee, wherein it
has been held that, a Court is not bound by the evidence of the experts which is to a large extent
advisory in nature.

The Courts have full powers to derive its own conclusion upon considering the opinion of the
experts which may be adduced by both sides, cautiously, and upon taking into consideration the
authorities on the point on which he deposes. The opinion could be admitted or denied. Whether
such evidence could be admitted or how much weightage should be given thereto, lies within the
domain and discretion of the Court. The evidence of an expert should, however, be interpreted
like any other evidence. Thus, it can be concluded that the expert opinion in numerous matters
relating to identification of thumb impression, handwriting, footprints, fixing paternity, time of
death, age of the parties, cause of death, possibility of the weapons used, disease, injury, sanity
and insanity of the parties and other question of science or trade has become the need of hour and
the person having required skill on that subject (called experts), are allowed to give their
opinions in evidence as well as testify to facts/details leading to their opinion. The opinion of an
expert having special skill in that particular field is relevant for the point of admissibility before
the Court of law. There may be exceptions to this rule, in spite of it when there direct evidence is
lacking, then to corroborate the existing evidence, expert opinion is sought

Conclusion:-
From the above analysis it may be submitted that evidence of an expert is not a substantive piece
of evidence. The courts do not consider it conclusive. Without independent and reliable
corroboration it may have no value in the eye of law. Once the court accepts an opinion of an
expert, it ceases to be the opinion of the expert and becomes the opinion of the court.

References
[1] http://symlaw.ac.in/doc/syed.pdf

[2] works.bepress.com/krishnaareti/5/

[3] Parat v. Bissessar, ILR 39 Cal 245

[4] Raj Kishore v. State, AIR 1969 Cal 321

[5] Balkrishna Das Agarwal v. Radha Devi, AIR 1989 All 133

[6]“Peritus virtute official” i.e. the holder of some official position which requires and, therefore,
presumes a knowledge of that law.

[7] U.S. Shipping Board v. Ship “St. Albans” 1931 PC 189

[8] Lawson on Expert Testimony, 2nd Edn, 229.

[9] Powell, 10th Edn, p. 39.

[10] www.legalserviceindia.com/article/l45-Law-of-Evidence.html

[11] Kamala Kuer v. Ratanlal AIR 1971 All 304

[12] Samaresh Basu v. Amal Mitra 1985 SCC (Cr) 523

[13] Gopeswar v. Biseswar 16 CWN 265 (285)