Section 45 in The Indian Evidence Act, 1872
S. 45 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.
(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. Comments Conflict of opinion of Experts 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; Kishan Chand v. Sita Ram, AIR 2005 P&H 156. Expert opinion admissibility Requirement of expert evidence about test firing to find out whether double barrel gun is in working condition or not, not necessary; Jarnail Singh v. State of Punjab, AIR 1999 SC 321. The evidence of a doctor conducting post mortem without producing any authority in support of his opinion is insufficient to grant conviction to an accused; Mohd Zahid v. State of Tamil Nadu, 1999 Cr LJ 3699 (SC). Opinion to be received with great caution The opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution; Ram Narain v. State of Uttar Pradesh, AIR 1973 SC 2200.
Expert means one who is skilled in any particular art or trade, profession being professed of particular knowledge, concerning the same. And if a person has acquired any special experience or special training in a particular subject to which Court enquiry relates, such a person can be considered as an expert, An expert is one who has made the subject upon which he speaks a matter of particular study, practice or observation and he must have a special knowledge of subject. Any person who has the experience to give an informed opinion on a matter outside the experience of Court is an Expert.
Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of third persons, which is commonly called in our day to day practice as expert’s opinion. These provisions are exceptional in nature to the general rule that evidence is to be given of the facts only which are within the knowledge of a witness. The exception is based on the principle that the court can’t form opinion on the matters, which are technically complicated and professionally sophisticated, without assistance of the persons who have acquired special knowledge and skill on those matters. Conditions for admitting an expert opinion are following:-
a) That the dispute can’t be resolved without expert opinion and
b) That the witness expressing the opinion is really an expert.
Who is an expert?
The definition of an expert may be referred from the provision of Sec.45 of Indian Evidence Act that an ‘Expert’ means a person who has special knowledge, skill or experience in any of the following—-
1) foreign law,
4) handwriting or
5) finger impression
and such knowledge has been gathered by him—
a) by practice,
b) observation or
c) proper studies.
For example, medical officer, chemical analyst, explosive expert, ballistic expert, fingerprint expert etc.
According to Sec.45, the definition of an expert is confined only to the five subjects or fields as mentioned above. But practically there are some more subjects or fields on which court may seek opinion an expert.
An expert witness is one who has devoted time and study to a special branch of learning and thus he is specially skilled on those points on which he is asked to state his opinion. His evidence on such points is admissible to enable the court to come to a satisfactory conclusion.
Duty of the expert:-
a) An expert is not a witness of fact.
b)His evidence is of advisory character.
c) An expert deposes and does not decide.
d) An expert witness is to furnish the judge necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgment by application of the criteria to the facts proved by the evidence.
Value of expert opinion:-
The Expert evidence has two aspects —
a) Data evidence [it can’t be rejected if it is inconsistent to oral evidence]
b) Opinion evidence [it is only an inference drawn from the data and it would not get precedence over the direct eye-witness testimony unless the inconsistency between the two is so great as to falsify the oral evidence] –[Arshad v. State of A.P. 1996 CrLJ 2893 (para34) (AP)]
Expert evidence is opinion evidence and it can’t take the place of substantive evidence. It is a rule of procedure that expert evidence must be corroborated either by clear direct evidence or by circumstantial evidence.
It is not safe to rely upon this type of evidence without seeking independent and reliable corroboration — [S.Gopal Reddy v. State of A.P. AIR 1996 SC2184 (Para27)]