UNIT 2

CONFESSION means
 According to Black's Law Dictionary, confession is defined as "A voluntary statement
made by a person charged with the commission of a crime or misdemeanour,
communicated to another person, wherein he acknowledges himself to be guilty of
the offense charged, and discloses the circumstances of the act or the share and
participation which he had in it."
 According to Police and Evidence Act 1984, confession is defined as," as any
statement who is wholly or partly adverse to the person who made it."
 According to Britannica, it is defined as," in criminal law, a statement in which a
person acknowledges that he is guilty of committing one or more crimes."
 In simpler words, when the statements of a person indicates about his guilt of a
crime that would amount to confession.
 The term confession no where defined in the Indian Evidence Act 1872, But the
definition of admission under section 17 of Indian evidence Act becomes applicable
to confession also. Section 17 provides " A statement, oral or documentary which
suggests any inference as to any fact in issue or relevant fact."
The expression confession means a statement made by an accused admitting his guilt. It is
an admission as to the commission of an offence. If a person accused of an offence makes a
statement against himself, it is called confession or confessional statement. Confessions are
the special form of admissions.
Thus it is popularly said that "All Confessions are admissions, but all Admissions are not
confessions."
Confessions are received in Evidence in criminal cases upon the same principle on which
admissions are received in civil cases, namely the presumption that a person will not make
an untrue statement against his own interest.

There are four kinds of Confession, are as follows:

1) Judicial confession
A Judicial Confession is that which is made before Magistrate or in a court due course of judicial
proceeding.
2) Extra-Judicial Confession
Extra-Judicial Confession is made not before a Magistrate or any Court in due course of judicial
proceeding but is made either to police during the investigation or into police custody or made
otherwise than to the police.
3) Retracted Confession
The Accused person who confessed earlier and later denied such confession does not destroy the
evidentiary value of the confession as originally recorded.
4) Confession by co-accused
When more persons than one are being tried jointly for the same offense, and a confession made by
one of such persons affecting himself and some other of such persons is proved, the Court may take
into consideration such confession as against such other person as well as against the person who
makes such confession.
UNIT 2

What is Dying Declaration? What are the conditions for its admissibility as Evidence?

Section32(1) of Indian Evidence Act, 1872, defines dying declaration as a statement written
or verbal of relevant facts made by a person, who is dead.

Such statement is relevant when the statement is made by the person as to:
- The cause of his death.
- Any circumstance of the transaction that resulted in his death.
Such statements are relevant:
- Whether the person who made them was or was not at the time when they were
made under the expectation of death.
- Whatever may be the nature of the proceeding in which the cause of death comes
into question.

Such statements are relevant whether the person who made them was or was not at the
time when they were made , under expectation of death and whatever may be the nature of
the proceeding in which the cause of his death comes into question.

It is also pertinent to note that in the case of Mallella Shyamsunder v. State of Andhra
Pradesh the apex court made two additions to the essentials of a dying declaration which
are as follows:
i. The declarant shouldn’t make the statement on tutoring or prompting.
ii. The court has full authority to check the authenticity of the statement made by
the declarant for checking whether it was tutored or was there any motive of
revenge.
GUIDING PRINCIPLES
“nemo moriturus proesumitus mentiri”
- A man will not meet his creator with a lie in his mouth
It happens and has validity because victim is sole eye witness and not trusting him might
defeat the end of justice as he is not scared of anyone and his conscience level will be very
high.
How is it made
- Oral
- Written
- Gestures ( even gestures can be dying declarations, when victim can’t speak)
To whom ?
- The Magistrate ( highest weightage)
- The police
- The doctor
- Anyone (lowest weightage )
UNIT 2

Admission of Dying Declaration:

In the case Uka Ram v. State of Rajasthan, the court talked about the admissibility of a Dying
Declaration and held that the dying declaration is admitted upon consideration is made in
extremity; when the maker of the statement is at his bed end, every hope of this world is
gone; and every motive of falsehood is silenced and mind induced to speak only truth.
Indian law recognises the fact that “a dying man seldom lies”.

Ingredients of dying declaration to be admissible in court-

a. The person who is giving the dying declaration must die.

b. The dying declaration must not be incomplete.
c. It must be done without any extra compulsion and freedom.
d. The cause of death must be explained which leads to the death of the deceased or at
least the circumstances which lead to his death must be explained.
e. The declarant who is making a dying declaration must be conscious of what is
happening near him.
f. The person must be of sound mind.
g. The cause of death of a person should be in question.

Evidence of dying declaration is admissible not only against the person causing the death but
also against other persons participating in causing death.

Recording Dying Declaration:

Anyone can record the dying declaration of the deceased as per law. However, a dying
declaration recorded by a Judicial or Executive Magistrate will add an additional strength to
the prosecution case.A dying declaration may in several cases be the “primary piece of
evidence to prove the genesis of occurrence”.The only requirement for such a declaration to
be held perfectly accountable in court is for the victim to volunteer the statement and be of
conscious mind.The person who records the dying declaration must be satisfied that the
victim is in a fit state of mind.

Recently, a special Central Bureau of Investigation (CBI) court awarded two policemen life
sentences for the custodial death of a murder accused on the basis of the ‘Dying
Declaration’ made by the victim prior to his death.

RAM SINGH VS DELHI ADMIN

Held by Delhi HC that a clear and corroborated dying declaration cannot be rejected just
only because it was recorded by a police officer.
UNIT 2

Supreme Court guidelines on DD emerged from various case laws:

1. There is neither rule of law nor of prudence that dying declaration cannot be acted
upon w/o corroboration.
2. If the court is satisfied that the dying declaration is true and voluntary it can base
conviction on it, w/o corroboration.
3. This court has to scrutinize the d.d carefully and must ensure that the dd is not the
result of tutoring or imagination
4. Where d.d is suspicious , it should not be acted upon w/o corroboration evidence
5. Where the deceased was unconscious and could never make any dying dee the
evidence with regards to it is to be rejected.
6. A d.d which suffers from infirmity cannot form the basis of conviction
7. The short d.d are also ship as they guarantee truth.
8. Normally court to satisfy if decreased was mentally fit to make a d.d and take medical
opinion. but where the eye witness has said that the decreased was is a fit state to
make dd , medical opinion cannot prevail
9. Where the prosecution version differs from as given in dd ,the said dd cannot be
acted upon.
10. Where there is more than one statement, one first in point of time must be
preferred.

CONCLUSION
D.D is one of the most important evidence that is admissible in court as d.d can be a
sole purpose for conviction of an accused. Hence it should be recorded carefully with all
the procedure that the court has mentioned. it should not be tampered by anyone . if
the d.d is incomplete , then it is likely to be rejected by the court .
 UNIT 2

1. Admissions

Section 17-23 of the Indian Evidence Act, 1872 deals with the concept of Admission. As per
Section 17, an admission is a statement, oral or documentary or contained in electronic
form, which suggest an inference as to any fact in issue or relevant fact, and which is made
by any of the persons, and underthe circumstances, herein after mentioned
It can be understood as anything a party has ever communicated either in speech, writingor
in any other wayin reference to the party at the trial is an admission.It is a positive act of
acknowledgement of a fact or is a confession. It is not mere inference which is drawn by the
any other act such as silence or implied consent. It must be conscious and deliberate act. It
must be made any of the persons mentioned in the Act (Ss. 18 to 20);

Who Can Make Admission?

Sections 18 to 20 of the Act lays down the provisions relating to persons to make
admissions. An admission is relevant. if it is made by
i. A party to the proceeding (Civil or Criminal) (S. 18); or

ii. An agent authorized by such party (S. 18); or

iii. A Party suing or being sued in a representative character making admission while
holding such character (S. 18); -(such as trustees, administrators, executors, etc.,)or

iv. A person who has a proprietary interest in the subject matter of the suit during the
continuance of such interest (S. 18); - For Example- Where a joint interest is exist,
admission of the one is the admission of the other, if it is made during the continuance of
such interest; or

v. A person from whom the parties to the suit have derived their interest in the subject-
matter of the suit during the continuance of such interest (S. 18); -For Ex- A is anowner
of the house and possession of it. He makes a statement that he has mortgaged the
house to B for rupees 1000/-. Afterwards A sells the house to C. B files a suit to recover
the rs 1000/-form the sale of the house. C, contended that house was
neverhypothecated to B. Here B can prove the statement of A as admission against C,
because C derive his interest form the Aand such statement was madeagainst his own
interest; or

vi. A person whose position is it necessary to prove in a suit, if such statements would be
relevant in a suit brought by or against himself (S. 19); or- A undertakes to collect rents
for B. B sues A for not collecting rent due from C to B. A denies that rent was due from C
to B. A statement made by C that he owed B rent is an admission, and is a relevant fact
against A, if A denies that C did not owe rent to B.
UNIT 2

vii. A person to whom a party to the suit has expressly referred for information in reference
to a matter in dispute (S. 20).

Section 21 deals with the proof of admissions against persons making them, and by or on
their behalf. This section brings forth general principles of admission that admissions made
are relevant and may be proved against the person who makes the admission and his
representative in interest. Admission should be clear if they are used against the person
making them. What a party himself admits to be true may reasonably be presumed be to so
and until that presumption is rebutted the fact admitted should be taken to be established.

As a general rule man is not allowed to give evidence in his own favour. Anadmission cannot
be proved on behalf of the person who make it.Any self-serving statement made under this
section would be considered irrelevant unless it falls under the ambit of general exception as
provided:

i. When the admission is of such a nature that, if the person making it were dead, it
would be relevant as between third persons under section 32.
ii. When the admission consists of a statement of the existence of any state of mind
or body (relevant or in issue) made at or about the time when such a state of
mind or body existed, and is accompanied by conduct rendering its falsehood
improbable.
iii. If the admission is relevant otherwise than as an admission.

In one case, Defendants Nos. 2 and 4 sold a piece of property to Defendant No. 1,
which they obtained under a partition, and subsequently colluded with the
Plaintiff and denied the partition as well as the sale. In the circumstances,
statement made by Defendants Nos. 2 and 4 in a Petition and a written statement
filed by them in other previous suits, which showed that there had been a
partition, were held to be admissible against them under Exception 3. (Gyannessa
v. Mobarakannessa, 1897 25 Cal. 210)

Section 22 lays down that the contents of the documents can be proved by the documents
itself and not by oral evidence. The contents of a document capable of being produced must
be proved by the instrument and not by parole evidence.

Under the provisions of the Evidence Act the contents of the documents are proved either
by primary evidence or by secondary evidence. According to Section 64, the document must
be proved by primary evidence, i.e., by producing the document itself. In absence of primary
evidence it can be proved by secondary evidence under section 65. Section 22, accordingly,
states that oral evidence as to the contents of a document will be relevant only when the
UNIT 2

secondary evidence of the document can be given under this section. -The contents of the
documents like certified copy, Xerox or photocopy, attested or duplicate copies can be
produced to support oral evidence.

In case the document is registered then except in the case of a will it is not necessary to call
an attesting witness, unless the execution has been specifically denied by the person by
whom it purports to have been executed. Where the original contract is available to
ascertain the quantum of damages there is no question of letting in secondary evidence.

Section 23- The section expressly provides that in civil cases an admission is not relevant
when it is made: (i) upon an express condition that evidence of it is not to be given. It means
that when a person admits the liability upon express condition that evidence of such
admission should not be given, or (ii) under circumstances from which the court can infer
that the litigating parties agreed together that evidence of it should not be given.

That is, where there is agreement between parties that the admission will not be proved in
evidence such admission will not be allowed and is not relevant.

It is very often found that the litigating parties, by negotiations, want to settle their disputes
amicably, and the negotiations usually takes place out of the Court. “Very often for the
purpose of buying peace and settling disputes by a compromise people made so many
settlements, if such settlements are allowed to be proved in court,” it will become
impossible for people to reach any compromise. Section 23 provides protection for
negotiation.
 UNIT 2

2. Confession

Sec 24-26 lays down when confessions are not relevant and sec 27-29 provided the
limitation of the operation of the principle of sec 24-26.

Section 24 of the Evidence Act prohibits all faiths. This notes that if a confession seems to
have come about as a result of the threat by any person in authority, promise or incitement
this is meaningless and cannot be proven against an accused. Although in sections 24 to 30
the substantive law of the faith has been created. The basic rule of law is that the confession
is admissible only if it is voluntary. The circumstances were defined in Section 24, 25 and 26.

Sec 24 provides that if a confession appears to be caused by the inducement threat or

promise it becomes involuntary and is irrelevant as evidence.Confessions made only to
Magistrate is admissible. To apply the sec 24 following conditions must satisfied
i. The confession made by an accused to a person in authority
ii. It must appear to the Court that confession has been caused or obtained by
reason of any inducement, threat or promiseproceeding from a person in
authority.
iii. The inducement, threat or promise must have reference to the charge against the
accused person
iv. The inducement, threator promise must be such that it would appear to the
Court that the accused, in making the confession, believed or supposed that he
would, by making it, gain any advantage or avoid any evil of a temporal nature in
reference to the proceedings against him.

Sec 25 provides“No confession made to a Police officer shall be proved againsta person
accused of any offence”. The purpose of the sec 25 is to prevent the extraction of confession
from the accused by the police officersby usingmalpractice such asforce, fear ortorture.
Confessions made to the Police Officerany time eitherbefore or after investigationare
inadmissibleexcept so far as provided under sec 27. The person accused of any offence here
means‘against whom evidence is sought to be led in criminal proceeding, whether or not he
was so when he made the statement’.

Sec 26provides that confessions made in the custody of the Police officer cannot be proved
against him unless it is made before a Magistrate.
UNIT 2

Confessions under following circumstances are relevant and admissible:

i. When any fact is disposed to as discovered in consequence of information received from
the accused person in the custody of the Police officer (sec 27)
ii. Confession made after removal of threat, inducement or promise(sec 28)
iii. Confession otherwise relevant not to become irrelevant because of promise of secrecy
(sec 29)
If a confession is otherwise relevant does not become irrelevant merely because it was
made
a. Under a promise of secrecy; or
b. Inconsequence of a deception practiced on the accused person for the purpose of
obtaining it; or
c. When the accused was drunk; or
d. In answer to questions, he needs to have answered, or
e. When the accused was not warned, he was not bound to make such confession and
that evidence of it be given against him(except judicial confession under sec 164).

Confession of Co-accused (sec30)

Consideration of proved confession affecting person making it and others jointly under
trial for same offence - When more persons than one are being tried jointly for the same
offence, and a confession made by one of such persons affecting himself and some other
of such persons is proved, the Court may take into consideration such confession as
against such other person as well as against the person who makes such confession.

Sec 30 of the IndianEvidence Act provides an exception to the general rule of the confession
as evidence that it can be used against only the person making it not the others. It provides
that where more persons than one are tried jointly for the same offence, the confession
made by one of them is admissible against all of them.

Sec 30 will apply when

a. The person confessing and the others are tried jointly.
b. They are tried for the same offence.
c. The confession must affect all.

Offence includes the abetment of, or attempt to attempt to commit, the offence.
Joint trial can be understood, where A, B and C commit a murder of D. Only A was arrested,
B and C absconded. A makes a confession, tried and convicted. Afterwards, B and C was
arrested and tried. At their trial confession of A is not admissible, because they are not tried
jointly. Same Offence means ‘identical offence’ not the ‘offence of same kind’. It means an
offence having same definition and arising out of same transaction.
UNIT 2

For example, where the trial is not for the same offence such as one is charged for the theft
and other is for receiving stolen property, the confession is not admissible against other.
(BishnuBanwar v Emperor)
Confession of the co accused must implicate himself as well assome others. The confession
of the maker implicates him substantially to the same extent as others.(Balbir Singh v State
of Panjab).

Distinction between Admission and Confession

i. A confession is a statement of a person which is sought to be proved against him in
criminal proceeding to establish the commission of an offence, while an admission is
a statement which is defined under sec 17 and made by the persons mentioned in
sec 18, 19 and 20 of the Indian Evidence Act 1872, respectively.
ii. Confession is a conclusive piece of evidence if made voluntarily and recorded as per
the procedure provided (judicial confession), on the other hand admission is not
conclusive proof but operate as estopple under sec 31 of the Indian Evidence Act.
iii. Confession is always used against the person who make it, while an admission is used
on behalf of the person who make under the exception provided in sec 21 of the
Indian Evidence Act
iv. Confession of an accused can be taken in to consideration against others co accused
if they are tried jointly for the same offence, while admission by one of the several
defendants in suit is no evidence against other defendants.
v. In Ram Singh v Stateit was held that the acid test is where conviction can be based on
the statement alone, it is a confession and where some supplementary evidence is
for the conviction, it is admission.(For detail see Batuk Lal, Law of Evidence, page no
144-145)

Table for this

UNIT 2

Evidentiary value of a confession U/S 30 of IEA

The Supreme Court in the case of Pancho v. State of Haryana held that confessions of a co-
accused aren’t the substantive piece of evidence and that it can only be used to confirm the
conclusion drawn from other evidence in a criminal trial.

The court further stated that the trial court cannot begin on the basis of the confession of
the co-accused to form its opinion in a case. Rather, the courts must analyse all the evidence
which are being adduced, and on being satisfied with the guilt of accused, might turn to the
confession in order to receive assurance to the conclusion of guilt which the court has
reached on the said evidence. Referring to previous apex court verdicts, the court said it is
not obligatory to take the confession into account and that it is the discretion of the court.
Conclusion

On the whole, Section 30 has introduced an innovation of a serious nature and is capable of
causing a miscarriage of justice, unless it is properly understood and applied. The Apex
Court has in various cases held that this provision must be very strictly construed so as to
avoid doing injustice. Justice Reilly once said, that the discretion which the courts have been
empowered with by this provision must be exercised very cautiously and with the greatest
caution and with care, so as to make sure that its real intent is observed, and the probability
of doing injustice can be removed.

The object of this section is that where an accused person unreservedly confesses his own
guilt and at the same time implicates another person who is jointly tried with him for the
same offence, his confession may be taken into consideration against such other person as
well as against himself because the admission of his own guilt operates as a sort of sanction
and thus affords some guarantee that the whole statement is a true one.

SC observed in Kashmiri Singh Vs State of MP, that, the confession may be considered by the
court but the section does not say that the confession is to amount to proof clearly there
must be other evidence. The confession is only one element in the consideration of all the
facts proved in the case, it can be put into the scale and weighed with the other evidence.

Such a confession only be used to lend assurance to other evidence against an accused. It
can be treated as an additional reason for believing that evidence.
UNIT 2

General principles regarding relevancy of judgements (Sec 40-44)

Section 40– The existing judgment will be relevant even in a second suit trial.

Section 41– The certain judgments in probate, matrimonial, admilarity, and

insolvency jurisdiction are relevant.

Section 42– The effect of judgement, order, or decree is relevant, other than
those which are given in section 41.

Section 43– Judgment, order or decree are irrelevant, other than those
mentioned in section 40-42.

Section 44– If the previous judgment may proved fraud, collusion or

incompetency of a court then such judgment does not have the effect of res
judicata.

Section 40- Previous judgments relevant to bar a second suit or trail

Under the Indian Evidence Act, 1872, Section 40 defines that, the existence of any
judgment, will be relevant even in a second trial. Here the rule of ‘res judicata’ applies. It
simply means that if any judgement which prevents the court from giving attention to such
a suit or petition then it will be a relevant fact.
“Res” means “subject matter” and “judicate” means “already decided”. So, it says that the
matter is already decided. The Criminal Procedure Code bars a second trial of a person once
tried or convicted. Thus, the judgment by which he was convicted will be relevant to every
case or proceeding in which he is charged with the same offence.

Section 41- Relevancy of certain judgment in probate, etc, jurisdiction

The Indian Evidence Act, 1872 says that a final judgment, order, decree or ruling of a court
exercising probate (relating to will), matrimonial (marriage, divorce), admiralty (war claims)
or insolvency jurisdiction is relevant.
This section consist of two parts:

1. It deals with judgement in rem i.e. a kind of declaration about the status of a
person and is effective to the entire world whether he was a party or not.
2. A judgement in personam is when a judgment is given to the parties (e.g. a tort or
a contract action) which binds only the parties and is not relevant in any
subsequent case.
Such judgment is conclusive proof. It refers to a presumption of a particular set of facts
which cannot be overruled or changed by additional evidence or argument.
UNIT 2

Kinds of jurisdiction

1. Probate Jurisdiction
It exercises the power of probate, surrogate, or orphan’s court. It includes the
establishment of wills; settlement of decedent’s estate; supervision of guardianship
of infants.
2. Matrimonial Jurisdiction
It exercises the power of marriage, divorce, et thoro, the nullity suit.
3. Admiralty Jurisdiction
It exercises the power of law over cases concerning ships or the sea and other
navigable waters.
4. Insolvency Jurisdiction
It exercises the power of the Member State within the territory of which the center
of the debtor’s main interests is situated shall have jurisdiction to open insolvency
proceedings.

Section 42- Relevancy and effect of judgments, orders, decrees, other than those
mentioned in Section 41 of the Indian Evidence Act

The effect of judgment or order will be relevant, except those which are mentioned
in section 42.
 Judgements are relevant if they are related to matters of public nature.

 But such judgment, order or proclamation is not conclusive proof of which they
state.

Section 43- Judgment, order etc, other than those mentioned in Section 40 to 42, when
relevant
Judgment, order or decree are irrelevant other than those mentioned in section 40, 41 and
42. In this, the previous judgments are not relevant with concern with the subsequent
proceeding.
Let us understand with an illustration. ‘X’ prosecutes ‘Y’ for stealing his horse from him. ‘Y’ is
convicted. Afterwards ‘X’ sues to ‘Z’ for the horse which ‘Y’ had sold to ‘Z’ before his
conviction. As between ‘X’ and ‘Z’, the judgment which was against ‘Y’ is irrelevant.

Admissibility of judgments in civil and criminal matters

Admissibility of judgments means that the quality of being acceptable or valid, especially as
evidence in a court of law. So here is some admissibility of judgment in civil and criminal
matters: –
 The principle of ‘Res Judicata’ may apply between the parties in civil suits.
 If the proceedings of civil and criminal cases are for the same cause or reason, then
the judgment of the civil court would be relevant if the conditions of any sections
regarding 40 to 43 are satisfied, but it cannot be said that the same would be
conclusive except as provided in section 41.
 In a criminal case, section 300 of C.r.P.C, it is said that once a person is convicted, he
may not be examined again for the same offence if the conditions which are
mentioned there are satisfied.
UNIT 2

Section 44- Fraud or collusion in obtaining judgment, or incompetency of court, may be

proved
Section 44 of Indian Evidence Act says that if the previous judgment is proved fraud,
collusion (secret or illegal cooperation) or incompetency of court then such judgement does
not have the effect of res judicata.

There are at least 2 parties to a suit or proceeding.

 If any party may show a judgment, order, or decree which is relevant under section
40, 41, or 42.
 The act only provides that the value of a judgment may be ineffective if these three
things are present in that case that are: –
1. Incompetency of the court
2. If there is fraud
3. If there is collusion

Emperor vs Bhagwandas Tulsidas on 20 August, 1945

In this case, it was held that the accused murdered Dharamsey and Mr. Haji, and he says
that the matter will come under Section 42 of the Indian Evidence Act under matters related
to public policy. But it was held that the matter related to such an unnatural death will not
come under public concern. Hence, the examination of certain facts is not relevant under
any provision related to the Indian Evidence Act and therefore unacceptable in evidence.

Conclusion
According to me, judgment should totally be on the basis of the facts and the issues raised
in the court. The court is also required to determine what principles of law should control
the case. But there is also a criticism regarding this that there is always a scope for
improvement. The judges said that the system which is developed and applicable in one
jurisdiction is not necessary to be applicable in the jurisdiction of other countries. After all,
no system is fool-proof.
UNIT 2

Matters upon which expert opinion may become relevant

Who is an expert?

Introduction
Generally, when a person is summoned to court for giving testimony as a witness, he is expected to
state only facts and not to give any opinion. It is the job of the court to form an opinion in the case.
Moreover, if a person is asked to give his testimony then it is expected that the person must be
factually related to the case not merely a third party.

But there is an exception to this rule. The experts are considered as witnesses although they are not
actually related to the case. The court requires these experts to give an opinion regarding the case to
help the court in having a wider perspective to give justice. The rationale behind the same is that it is
not practical to expect the Judges to have adequate knowledge of medical issues.

Section 45 to 51 of Indian Evidence Act 1872 lays down the provisions relating to "opinion of
experts/ third person when relevant. Section 45 deals with facts bearing upon opinions of experts,
Section 47 deals with opinion as to handwriting when relevant. Section 47A provides for opinion as
to digital signature , when relevant. (It is inserted by IT Act 2000) Section 48 deals with opinion as to
existence of right or custom when relevant. Section 49 deals with opinions as to usages , tenets etc.,
when relevant Section 50 deals with opinion on relationship, when relevant. and Section 50
provides for grounds of opinion, when relevant.

Who is an expert?
The court cannot form a correct judgement without the help of a person with special skills or
experience in a particular subject. When the court needs an opinion in a subject which requires
special assistance, the court calls an expert, a specially skilled person. The opinion given by a
third person is considered as relevant facts if the person testifying is an expert.
For example, the court was confused that a letter has been written by person ‘X’ or not. The court
calls a handwriting expert to find out the same. This person will be known as an expert and the
opinion which he gives in the case is relevant.
Expert is defined under section 45 of The Indian Evidence Act, 1872.
The court needs an expert to form an opinion upon:

 Foreign law
 Science & Art
 Identity of Handwriting
 Identity of finger impression
 Electronic evidence

Only in the expertise in the above-said fields, a person’s opinion is considered to be an expert
opinion. If a field not mentioned above requires an opinion, it is not considered as an expert
opinion. There have been cases such as:

 The disposition or temper of animals

UNIT 2

 Colour, weight or scale of similar facts

 Age of a person
 If a man or women were intimate
 If a person was intoxicated or not

The expert witnesses are the persons who have not seen a commission of a particular act and
they are not personally interested in the suit or proceeding but they are called upon to help the
Court of law. According to Section 45 of the Indian Evidence Act, the Court refers to the
opinions of the persons specially skilled in foreign law, Science, Art or as to the Identity of
handwriting or finger impressions, and the opinions are relevant and admissible. Thus the opinion
of expert witness plays an important role in the matter of evidence and enables the Court to arrive
at proper conclusion. The experts opinion is only a piece of evidence and cannot be taken as
substantive piece of evidence since it is to be judged along with other evidence.

Relevancy of Opinion:

i) Opinion of examiner of Electronic Evidence (Section 45A)

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.

ii) Facts bearing upon opinions of experts (Section 46) :

Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of
experts when such opinions are relevant.
Illustrations :
The question is, whether A was poisoned by a certain poison. The fact that other persons who were
poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the
symptoms of that poison, is relevant.

iii) Opinions as to handwriting, when relevant (Section 47)

When the Court has to form an opinion as to the person by whom 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 document purporting to be written by that person in
answer to documents written by himself to under his authority and addressed to that person, or
when in the ordinary course of business document purporting to be written by that person have
been habitually submitted to him.

Illustrations :
The question is whether a given letter is in the handwriting 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. G 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 thee letters purporting to be written by A for the purpose
advising with 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 or D ever saw A, write.
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iv) Opinion as to digital signature when relevant (Section 47A)

When the Court has to form an opinion as to the "digital signature" of any person, the opinion of the
Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.

v) Opinion as to existence of right or custom when relevant (Section 48)

When the Court has to form an opinion as to existence of any general custom or right, the opinions
as to the existence of such custom or rights, of persons who would be likely to know of its existence
if it existed, are relevant.
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.

vi) Opinion as to usage’s, tenants, etc., when relevant (Section 49)

When the Court has to form an opinion as to - the usage’s and tenants 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.

vii) Opinion on relationship, when relevant (Section 50)

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
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.

viii) Grounds of opinion when relevant (Section 51) :

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

Evidentiary Value of Expert Opinion/ Admissibility of Expert :

According to Section 45 of Indian Evidence Act, 1872 before a person characterized as an expert, it is
necessary that there must be some material on record to show that he is skilled in particular science
and is possessed of a particular knowledge concerning the same. He must have special study of the
subject or acquired special experience therein. Thus testimony of witness becomes admissible, his
competency of an expert must be shown, may be, by showing that he was possessed of necessary
qualification or that he has acquired special skilled therein by experience, It is for judge his
expertisation of the particular subject.

Case Law :
a) In S. Gopala Reddy v. State of A.P , it was held that the evidence of an Expert is a weak type of
evidence and court consider it is unsafe to relay on it without independent and reliable
corroboration.
b) In Anwar Vs.State of Haryana, 1997) SCC 766, it was held by the Court If the medical evidenceis
totally inconsistent with the occular evidence it would be permissible for the court to reject the oral
evidence though medical evidence is opinion evidence.
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