Expert Opinion | Section 45-Indian Evidence Act

Author: Mrudula Mohan

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Introduction

In the language of a common man, an Expert Opinion implies such opinion the court may seek from any external sources who is an expert in the particular field. Where the general rule implies that in the matter of ratio decidendi or Obiter dictum or any such other statement which plays an important role in decision of a case, the opinion of a judge is what only matters and is relevant in the decision of a case, and the opinion of any other person is irrelevant in any issue or relevant fact. Therefore, Section 45 is a proviso to this rule, as it permits the experts opinion to be relevant. The reason being, that the Judge cannot be an expert in all the fields but the court has to deal with a different field including such field which may be too complex or technical compared to his knowledge. In such cases, he may require assistance or advice from an expert in the field. Section 45 of Indian Evidence Act, 1872 envisages the following

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 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.

Bare reading of the section, enumerates that it specifically talks about different types of experts, may it be in the field of foreign law, science, art, fingerprints, handwriting etc. And an expert can be called to such persons who has acquired special knowledge or is skilled or has gained special training or experience in a particular art or trade, profession or any such particular field the court may be concerned or requires advice. Thus, any such person who has adequate experience and knowledge to give an opinion on such matter where the court lacks experience is an Expert.Thus, to be appointed as an expert one must attain a professional qualification or experience or special study in the subject. He must prove himself as an expert before Court.[1]

Expert Opinion

Opinion in general language can be any estimation or belief or view or an assessment, held as probable and such statements one thinks may matter on a particular question or topic. A normal opinion is thus only an assessment which mostly lacks any grounds of proofs eg: in the matter of family customs in Kerala, the elder of the family may be approached for confirmation.

An Expert Opinion, on the other hand, assists the Court in the matter of scientific, artistic, technical or foreign law nature. An Expert gives the opinion for such matters the court may be wanting an assessment. Though such opinions are merely advisory and not binding in nature, they are still relevant and play a vital role in deciding any case. An Expert is only supposed to give an opinion and not a conclusion of a matter. The sole purpose of expert opinion is to corroborate the facts and help the judge to make an independent opinion upon it. If such opinion contradicts an unimpeachable eyewitness or documentary evidence in such case they will not have an upper hand over direct evidence. Section of the Act does not provide for any specific attainment, study of experience for an expert. They are not helpful to the Court in the interpretation of law[2].

It is the Court’s decision to decide if any case partakes the character of science or art and if possessing such high knowledge of that specific subject is must for the adjudication of the case by complying with the natural justice. If court is of such opinion then expert opinion is to be sought. Once the opinion is admitted by the Court there can be no further Expert’s opinion. In Bachraj Factories Ltd v. Bombay Telephone Co. Ltd.[3], it was held by the court that any opinion may it be expert opinion or mere opinions, which are generally irrelevant but may become relevant upon circumstance, are not authoritative in value but they are persuasive[4]

In the case Thakurs and others v. State[5], where there was a conflict between the opinion evidence and oral testimony of the evidence, it was held that the SC that in such circumstances evidence can be assessed in two ways.

1. In such cases where the oral evidence is above reproach and creates confidence and there is no false no appreciable reason for the false application of any accused the opinion will possess upper hand
2. In such cases the evidence is not of that character and the opinion evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing method will have upper hand over opinion.

Rules for expert opinion are:

1. The educational background of Experts, that is even a doctor will be examined and be subjected to scrutiny and cross-examination. And if his opinion and observations contained in his statement are supported then the report can be looked at otherwise not. So even the examination of Doctor becomes essential[6]. An expert witness must himself come and testify in court. His certificate cannot be conclusive unless permitted by statutory exceptions like Section 509 (medical certificate), or section 510 or the CrPC (report of the chemical analyst).

2. The exhibits and the illustrations test that is the expert should not base his opinion on the basis of memory and abbreviated notes rather should have the opinion of such a level that even if in cross-examination by the opposite party he must be capable of defending his stand.
3. The readiness to detail his techniques and procedures, the expert should not be of skipful in nature as to outlining the procedures he followed. And should be confident enough to defend and prove that he has not skipped any procedures in his conclusions.[7]
4. The Expert must be conservative and is cautious, it is a well-settled principle that the opinion of an Expert should be taken with a great caution and moreover, the decision should not be based on a mere basis of the opinion of an Expert, without a substantial corroboration. The Opinion of an Expert by its very nature, infirm and in itself cannot form the basis for a conviction[8].

When the direct evidence is well corroborated with the circumstantial evidence and other evidences proved and admitted in the court and conforms to probabilities, the opinion would be accepted. The mere fact that the expert has come to a different conclusion on a particular point would not render that part of his story open to doubt especially when the data on which the expert has come to that conclusion is insufficient[9].

SRI CHAND BATRA V. STATE OF U.P[10]

In this case an Excise Inspector named Shri C.D. Misra, raided a liquor shop and discovered drums of liquor. On performing smell test on the samples of liquor procured from the drums kept inside the shop, the Excise Inspector found out that the liquid was illicit liquor. He had further tested the contents of the drums with the aid of litmus paper, hydrometer, and thermometer to determine the strength and composition of the liquid under composition. After which he ceased the liquior and arrested the owner of the liquor shop and the manager as well. He gave a testimony in the court where he opined based on his observations on the tests contested by himself that the liquor shop had been involved in trading illicit liquor and submitted a detailed report regarding the same.

The court was asked to decide on the issue Whether the Excise Inspector could be considered as a competent expert whose opinion about the nature of the liquid found was admissible under Section 45 or not?

The Court held that he Excise Inspector, who had deposed, that he has an experience of 21 years in service as Excise Inspector had adequate expertise to test the lacks of samples of liquor and illicit liquor. Further, he had followed all the adequate procedure and possible ways to test the samples of the liquor present that time and has followed full caution while perusing the test which were clear tests of his reasonability and prudence.Thus, the Excise Inspector would be an Expert and the testimony and evidence laid by him regarding the discovery of illicit liquor in the liquor shop would be relevant and admissible before the Court of law.

Re: Govinda Reddy & ORS[11].

In this case the science of comparison of fingerprints has developed to a stage of exactitude. It was held that though the witness did not possess any technical qualification his experience of over 25 years in photography would suffice enough to call him an expert[12]

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[1]Ratanlal and Dhirajlal, The Law of Evidence, Wadhwa&Wadhwa Company, 21st Edition, Lawyers Edition

[2] Field’s, Commentary, Law of Evidence, Delhi Law House, 12th Edition, Volume 3

[3]AIR 1939 Sind 245

[4]Bachraj Factories Ltd v. Bombay Telephone Co. Ltd., AIR 1939 Sind 245

[5] Thakurs and others v. State AIR 1955 all 189

[6] Dhobi Yadav v. State of Bihar AIR 1989 (2) , Cr. L.C., 629

[7] Evidence to proof, by Marshall Honts, pp.130, 131

[8]MaganBihariLal v. State of Punjab AIR 1977 SC 1091

[9]BrijBasi v. Moti Ram AIR 1982 All 323 at p 321

[10] Sri Chand Batra V. State Of U.P, Air 1974 SC 639

[11]Govinda Reddy & ORS. AIR 1958 Mys 150

[12] Evidence: Cases and Materials, by SV Joga Rao, LexisNexis- Butterworths Publication, (2003) at p. 351.

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About the Author: Mrudula is a fourth-year law student at Amity Law School, Noida.

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