NOTE NO.

6 II SHRI SAI II

INDIAN EVIDENCE ACT, 1872

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Q. Who is an Expert? When the opinion given by an Expert is

relevant? Give some suitable illustration.

OR

Who is an Expert? Mention the circumstances in which Expert

opinion is admissible.

A Meaning of an Expert-

Expert = Person Specially Skilled and Possessed

Knowledge.

 INTRODUCTION -

Expert Evidence is covered under Section 45 to 51 of Indian

Evidence Act, 1872.

The GENERAL RULE is that “the Opinion of the Third Parties are
Irrelevant”. The Court is not interested in anyone’s Opinion, however
Expert or Eminent he may be. The Court relies on facts and forms its
own opinion based on such facts.

In other words, generally, "Opinion given by a Third Person is

Irrelevant and Inadmissible in Evidence". It is because they have not
Seen the Commission of any Particular act. They are not Interested in
the Suit or Criminal Proceeding.

But, in some instances, the Court’s knowledge is insufficient to

form an opinion from the proved facts. There are Some Cases wherein
the Court is not in the Position to Form a Correct Opinion because the
Question involved may be Beyond the Range of Court's Knowledge. In
such cases, Help of an Expert is Required.
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  WHO IS AN EXPERT?

He is One who has Devoted Time and Study to a Special Branch or

Learning and is thus especially Skilled in the Field. The term 'Expert'
includes both the Superior Knowledge and Practical Experience in the
Particular Field.

In other words, an Expert is that person who is having Special

Training, Experience and Study with reference to any Particular Fact. He
is a person especially Skilled in the subject in case of which he Testifies.

With the vast development in Science and Technology, the need of

Expert Opinion/ Evidence has now become very common as well as
helpful to the Courts to reach upon a fair conclusion of the Case.

Today, the Role of Expert has been widened and the Courts take
their assistance in various aspects just like Ballistic Experts, Forensic
Experts, Scientists who decide the Legitimacy by DNA tests, Chemical
Examiners, Psychiatrists, Radiologists and even track-dogs are playing a
vital role in investigation of Crimes and their Evidence is admissible in
the Court of Law.

 FOR EXAMPLE -

1. A Goldsmith possessing Technical Work of Gold and having

more Years Experience, is an 'Expert'. He can tell how much
Percentage of Gold and Copper are in an Ornament. No
Academic Qualification is Required for this.

2. A Doctor, having Qualifications and Experience, is an 'Expert'.

When a person Died with the Poison, the Doctor can give
Report after Post Mortem. He can Estimate how much
Quantity of Poison and what type of Poison Consumed by the
Deceased and when Consumed by the Deceased? Such type of
Analysis can be done only by an Expert.

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  DEFINITION OF "OPINION OF EXPERT" (SECTION 45) -

"When/ the Court/ has to Form/ an Opinion/ upon/ a Point of/

Foreign Law/ or of Science or Art or as to be Identify/ of Handwriting
or Finger Impression,/ the Opinions upon/ that Point/ of Persons/
Specially Skilled/ in such/ Foreign Law, Science or Art or in questions
to Identity/ of Handwriting or Finger Impression, are Relevant Facts.
Such Persons are called as Expert".

 RELEVANCY OF OPINION OF AN EXPERT -

A General Rule is that, the Opinion of Third Person is Irrelevant

and Inadmissible in the Courts. The Witness is allowed to state the
Facts only. It is the Duty of the Witness to tell in the Court what he Saw
or Heard or Perceived through the Senses. It is the Duty of the Judge
to form an Opinion and to come to a Conclusion. Hence, Opinions of
Third Persons are not taken into Consideration.

Section 45 is an Exception to this General Rule. That means

Opinion of Some Third Person is Relevant. These are the Parties not
Directly or Indirectly Connected in any manner to the Proceeding which
is Pending before the Court but they are called by the Court to Assist to
the Court, when the Court cannot Form the Opinion.

In other words, as a General Rule the Opinion of Third Persons are

not Allowed in the Courts. But there are Some Exceptions to this Rule.
The Judge is also a Human Being. He is an Expert in the Legal Field. But
he may not Expert in Photography, Medicine, Architecture, Art,
Science, other Languages etc. When the Particular Case requires the
Assistance of an Expert in that Field to come to a Conclusion, in those
Cases, the General Rule, "the Opinion of Third Person is not Relevant' is
Relaxed and Expert Evidence is Admitted to enable the Court to come to
a Proper Decision.

The Expert Witness is a Person who has not Seen a Commission of

Particular act and they are not Personally Interested in the Proceedings
but they are called upon to Help the Court of law.

Expert's witness is not a Witness of any Party to the Case, but he is a

Witness of a Court. Thus, he Posses Special Character. Expert Witness is
Supporting to the Judge.
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Q. Explain the Cases when Opinions of third person are relevant?

OR

"Opinions of third person is irrelevant and inadmissible"-

Explain.

A INTRODUCTION-

The General Rule is that, "the Opinions of Third Person are

Generally Irrelevant and therefore Inadmissible". But there are some
Cases in which the Court is not in a Position to Form a Correct Opinion
that Means when the Question involved is beyond the Range of Common
Experience or Knowledge and when Special Study of Subject and
Experience therein is Necessary in such Cases then the General Rule is
Relaxed and Evidence of Third Person is Admitted to enable the Court
to Come to a Proper Decision.

 Opinion of third person i.e. exceptions to the general rule-

1. OPINION OF AN EXPERT (SECTION 45)

When the Court has to Form an Opinion upon a Point of Foreign

Law or of Science or Art or to be Identify of Handwriting or Finger
Impression, the Opinions upon that Point of Persons Specially Skilled in
such Foreign Law, Science or Art or in questions to Identify of Hand
Writing or Finger Impression, are Relevant Facts. Such Persons are
called as Experts".

2. OPINION AS TO HANDWRITING WHEN RELEVANT (SECTION

47) –

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.

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  FOR EXAMPLE –

A Question is Whether the Writing is of Mohan or not?

Mohan is a Merchant in Delhi. Sahil is a Merchant in Mumbai.

Mohan used to write replies to Sahil. Deepika is Sahil’s Secretary. She
used to examine and file letters of Mohan. Dinanath is an agent of
Sahil to whom Sahil used to send the letters of Mohan, which are
written by Mohan.

Now, the Opinion of Sahil, Deepika and Dinanath on the

Question whether a Particular Document is in the handwriting of
Mohan or not, is RELEVANT, though none of them have seen Mohan
actually writing.

 THE HANDWRITING OF A PERSON MAY BE PROVED IN THE

FOOLOWING WAYS )Section 67 and 67A) –

1. Evidence given by the person who writes.

2. Evidence given by the person who sees the person writing (whose
handwriting is in question).

3. Evidence given by a person acquainted with the handwriting of

the person by way of receiving letters either in business or
otherwise. In this context, a Wife can be regarded as being
acquainted with the handwriting of the Husband.

3. OPINION AS TO EXISTENCE OF RIGHT OR CUSTOM WHEN

RELEVANT (SECTION 48) –

When the Court has to Form an Opinion as to the Existence of

General Rights or Customs, the Opinion as to the Existence of such
Right or Custom, of Person who would be likely to Know of its
Existence, if it Existed, are Relevant.

 FOR EXAMPLE –

The Right of Villagers of a Particular Village to Use the Water of

a Particular Well, the OPINION of an aged Man living in the Village for
a long time, is Relevant.

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 Thus, the Witness should Possess the Qualification of Knowledge
and if his Opinion is not based on Reliable Information, it would not
carry weight.

Generally, a Custom may be proved by general Evidence given by

Members of the Family or Tribe. When a Custom brought to the notice
of the Court and is recognised by the Court regularly, it gets the force of
law.

4. OPINION AS TO USAGES, TENETS ETC. WHEN RELEVANT

(SECTION 49)

When the Court has to Form an Opinion as to –

a. The Constitution and Government of any Religious or

Charitable Foundation / Trust.

b. The Usages and Tenets of any Body of Men or Family or

c. The Meaning of Words or Terms used in Particular

District or Particular Classed of People,

the Opinions of Person having Special Means of Knowledge

about such Endowment, Usages, Words, are Relevant Facts.

5. THE OPINIONS OF RELATIONSHIP WHEN RELEVANT (SECTION

50)

When the Court has to Form an Opinion about the Relationship

between Certain Persons, the Opinion Expressed by Person having
Special Means of Knowledge, whether a Person is a Member of the
Family or Not, is a Relevant Fact.

 FOR EXAMPLE –

Virat and Anushka were married. The Fact that they were treated
together as guests by their Friends in the Relation of Husband and
Wife, is an Admissible Evidence to prove the Marriage of Virat and
Anushka.

Now, the OPINION given by the Friends about their Relationship, is

Relevant.

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  GROUNDS OF OPINION – WHEN RELEVANT (SECTION 51) –

When the Opinion of any living person is Relevant, then the

GROUNDS on which such opinion is based are also Relevant.

 FOR EXAMPLE –

An Expert giving on account of Experiments performed by him for

the purpose of Forming Opinion.

 PROBATIVE VALUE –

Opinion is Judgment or Belief and not merely gossip or hearsay. The

Opinion is not blindly accepted. The Expert gives an account of the
Experiments performed by him for giving any opinion.

The Value of Non Expert Witness depends upon Creditability of

the Witness i.e. Capacity of Telling the Truth, but the Value of Opinion
of an Expert depends largely on the Cogency on the Reason on which it
is based and the Competency of the Expert to Form a Reliable Opinion.

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Q. What are the RULES with regard to the reception of evidence of

CHARACTER of a Party?

A. INTRODUCTION –

Generally, a Man’s Character is not relevant to prove or disprove a

fact. The Court tries the Case and not the Man.

A Bad Character Man may have a good name and there is No Rule
to decide the Character of a person in relation to a particular case. But in
some cases, the Character of Witness or the Offender is Examined.

Regarding Character of a Party, the Relevancy depends upon two

facts whether the Character is an Issue or not an Issue and whether the
case is Civil or Criminal.

If the Fact in Issue is the Character of the party, Proof is required

then, whether it is a Civil or Criminal Case. But when the Character is not
in issue, but in support of some other issue, Character of a party is not
Relevant.

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  CIVIL SUITS/ CASES (SECTION 52) –]

In Civil Suits or Cases, CHARACTER is not at all considered and it is

Irrelevant. But only in Defamation Cases, the Character of the Defamed
Person is Considered for awarding damages.

 CRIMINAL CASES (SECTION 53 AND 54) –

The Good Character of an accused is always Relevant and Admissible

in Criminal Cases -

1. The Bad Character of the accused is not considered. There is an

Exception. If the accused gives Evidence of his good character,
then the Prosecution (Police) can disprove it by giving Evidence of
his bad character.

2. When the fact in issue is the Bad Character of the Offender, then
the Character of the person is Admissible. A Previous Conviction
of the accused is an Evidence of his bad character.

3. By way of Defense, one can prove the bad character of the

Complainant.

 FOR EXAMPLE –

When a man is accused of Rape, then he can show evidence

for the Immoral Character of the woman.

4. In Criminal Cases, the Good Character of the accused is Relevant,

as it gives the Opinion that the accused may not have committed
the Crime.

 THE VALUE OF CHARACTER EVIDENCE –

The word “CHARACTER” includes both Reputation and Disposition;

the inherent Qualities of a person. Reputation means what is thought
of a person by others or otherwise called “Public Opinion”. Disposition
refers to the whole Personality.

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 i. The Good Character of a person is always Relevant.

ii. The Bad Character of a person is Irrelevant and not

Admissible.

iii. Only to disprove the good character of the offender, Evidence

of Bad Character is allowed.

iv. Character evidence is weak evidence. When other evidences

are available and are opposed to the person’s Character, then
such other evidence will prevail over the Character Evidence
of the offender.

v. In doubtful cases, the good character of the offender plays

an important role to decide the case in his favour.

 CHARACTER AS AFFECTING DAMAGES (SECTION 55) –

In Civil Suits, the Character of any person which would affect the
Amount of Damages which he ought to receive, is Relevant.

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