INTRODUCTION
The Courts have been accustomed to act on the opinion of experts from early time. The reason is obvious, there are many matters which require professional or specialized knowledge which the court may not possess and may therefore, rely on the opinion of those who possess it. For example, when the court has to determine the cause of a ship-wreck or air-crash, there may be many technical causes behind it and therefore, the court will need the assistance of technicians, they being better acquainted with such causes. Folokes v. Chadd,1 is an early authority. A bank was erected for the purpose of preventing the sea overflowing certain meadows and the question arose whether it contributed to the choking and decay of a harbour. Mr. Smeaton, a celebrated engineer was allowed to express his opinion on the matter. Similarly, in the case of a ship-wreck, a shipwright was allowed to speak on the seaworthiness of the ship.2 Matters commonly made the subject of such evidence include causes of death, insanity effect of poison, genuineness of works of art, value of articles, genuineness of handwriting, proper navigation of vessels, meaning of trade terms and foreign law.3
OPINIONS OF EXPERTS: SECTION 39/BSA, 2023
(1) When the Court has to form an opinion upon a point of foreign law or science or art, or any other field, 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 any other field or in questions as to identity of handwriting or finger impressions are relevant facts and search persons are called experts.
(2) 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.4
Illustrations:
(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 which 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.
WHO IS AN EXPERT?
Section 39 permits only the opinion of an expert to be cited in evidence.5 This requires determination of the question as to who is an ‘expert’. The only guidance in the section is that he should be a person ‘specially skilled’ on the matter. Thus, the only definition of an expert available in the Act is that he is a person specially skilled in the subject on which he testifies.
In Collector of Jabalpur v. A.R. Jahangir6 it was held that, an expert is one who has acquired special knowledge, skill or experience in any science, art, trade or profession: such knowledge, may have been acquired by practice, observation or careful studies. In Balkrishna Das Agarwal v. Radha Devi and Others,7 an expert was defined as a person who by his training and experience has acquired the ability to express an opinion but an ordinary witness does not possess this quality.
Thus, no formal qualifications are necessary to qualify a witness as an expert. An illustration can be found in Abdul Rahman v. State of Mysore,8 where the opinion of a professional goldsmith as to the purity of gold in question was held to be relevant as an opinion of an expert, though he had no formal qualifications, his only qualification is being experience. In State of H.P. v. Jai Lal,9 as to the identification of handwriting, it was held by the Supreme Court that, there must be something to show that the expert is skilled and has an adequate knowledge of the subject.
Similarly, it has been held that an experienced police officer may be permitted to give ‘expert’ evidence as to how an accident may have occurred.10 In Brij Pal v. State (Delhi Administration),11 police personnel having certificate of technical competency and of technical course for armour and long experience of inspection, examination and testing of fire-arms ammunition was held to be an expert. In Kishan Singh v. N. Singh,12 the Principal of a school of deaf and dumb has been held to be an expert for the purpose of certifying the disability.
CONDITIONS OF ADMISSIBILITY
Before a court allows expert opinion two conditions must be satisfied, namely,
1. The subject is such that expert opinion is necessary; and
2. That the witness is really an expert.
A. Necessity of Expert Opinion
Sometimes the matter to be proved is such that it requires special skill or knowledge and the court is unable to form its opinion from the facts and circumstances of the case. The case involves some technical question which can be answered by a person specially skilled in it. For example, in a criminal case involving physical injuries caused by a weapon, it is the duty of the prosecution and no less than of the court to show the weapon so used, if available, and injuries to medical expert.13 But where no help from expert is necessary and the court can form its own opinion from the facts and circumstances of the case, expert testimony can be dispensed with. In L.C. Goyel v. Mrs. Suresh Joshi,14 it was held by the Supreme Court that when the circumstantial evidence was so potent that it led to only one conclusion that the signature on the cheque was not forged, there was no need for an opinion of handwriting expert.
B. The witness is really an expert
In order to make an opinion admissible as an expert opinion it must be shown that the witness has devoted time and study to a particular branch of learning and thereby has acquired special knowledge and experience therein or in other words, he is skilled and has adequate knowledge of the subject. The opinion of an expert is only of advisory character. The credibility of his opinion depends on reasons stated in support of his conclusions and the data and material furnished which for the basis of his conclusion.15
MATTERS ON WHICH EXPERT OPINION IS RELEVANT
Under Section 39 of the Bharatiya Sakshya Adhiniyam, 2023 opinions of experts may be relevant on the following matters: –
A. Foreign Law: Foreign law means a law which is not in force in India. The courts in India may not be in a position to appreciate the principles of a foreign law, and therefore, whenever a court has to decide a question of foreign law or form an opinion as the correct position of a foreign law, it can take help of the people who are experts on that particular foreign law. In Khode Gangasagar v. Swaminanda Madali,16 it was held that the foreign law must be proved like a fact.
Under Section 52 of the Bharatiya Sakshya Adhiniyam, a court in India is bound to take judicial notice of all laws in force in India and, therefore, need not be proved. But, a court in India is not bound to take judicial notice of what a foreign law is on a particular point, as the foreign law is a fact with which courts in a country are not supposed to be conversant.17 Opinions of experts of foreign law are, therefore, allowed to be admitted. In Sugancahnd v. Mangibai,18 it was observed that a foreign law must be proved by the parties setting it up. A judgment of the highest court of that country is the best evidence of what the foreign law is.
The expert on the foreign law need not be a professional lawyer. He may be a professional lawyer, or a person holding official position which requires and implies the knowledge, or a teacher of law.19 In India such law may be proved under Section 38 of the Evidence Act, by the production of book printed under the authority of the foreign government.
A law which is in force in India is not a foreign law even if it is of foreign origin. In Aziz Bano v. Mohamad Ibrahim Hussain20 the Allahabad High Court observed that the Shia law on marriage is the law of the land and in force in India. It can by no means be called foreign law within the meaning of Section 45. It is the duty of the courts themselves to interpret the law of the land and apply it and not to depend on the opinion of witness howsoever learned they may be. It would be dangerous to delegate their duty to witness produced by either party.
B. Science or Art: When the court has to form an opinion upon point of science or art, the opinion of persons specially skilled in such science or art is admissible. The expression ‘science or art’ should not be narrowly interpreted. They should be interpreted liberally and widely as including anything that requires specialized knowledge, skill, study or experience or otherwise beyond the comprehension of a layman. The words “science or art” should be interpreted liberally so as to include medical evidence, evidence as to literary works, evidence of artists, evidence of fire-arms experts21, evidence of foot prints22, finger prints23 and palm impressions24. Field says: “the words ‘science’ or ‘art’ are to be broadly construed, the term ‘science’ not being limited to higher sciences, and the term ‘art’ not being limited to fine arts but having its original sense of handicraft, trade, profession and skill in work which, with the advance of culture has been carried beyond the sphere of the common pursuits of life into that of artistic and scientific action.”25
1. Technical Matter: The matter in question must be of a technical nature and not an ordinary one with which the judge may be supposed to be equally well acquainted. A Canadian case is illustrative on this point as to the distinction between a technical and an ordinary matter.26 The accused was prosecuted for murder by cutting the victim’s throat. In his defence he said that she had a knife in her hand when he hit her arm, with the that the knife flew off striking her throat. Thus, the question was whether she was injured deliberately of accidentally. She had some wounds on her hands also. The doctor who was called to express his opinion on the cause of death told the court that the wounds on her hands might have been caused when she was struggling to protect her throat from the attack. The court held this evidence to be wrongly admitted and ordered a fresh trial. Porter, J., observed that “the subject on which the witness is testifying must be one upon which competency to form an opinion can be only acquired by a course of special study or experience. It is upon such a subject only the testimony is admissible.” The court was equally competent to form an opinion as to how the wounds on the hands might have arisen. That did not require any medical skill and, therefore, was outside the area on which expert opinion was relevant. However, in R. v. Smith,27 a person was prosecuted for stabbing his wife to death and he claimed to have done so in sleep. The medical evidence of psychiatrist on the question of automatism was allowed. The expert or scientific evidence was admissible to assist the jury in distinguishing between genuine and fraudulent automatism.
2. Typewriting: Typewriting could have been regarded as a matter of “science or art”. Type-written matter is commonly used nowadays in place of handwritten one. This may create difficulty in detecting the person who is the author of the material. However, it is not impossible task. Every type-writer has some peculiarities in its impressions. In Hanumant v. State of M.P. 28 evidence of an expert was tendered to show that a letter of a particular date was typed on a particular type-writer. The SC held that the evidence does not come within the ambit of Section 45 and was inadmissible. But, in State (Through C.B.I.) v. S.J. Choudhary, 29 the Supreme Court overruling Hanumant’s case, held that the opinion of type-writer expert is admissible under Section 45. The word ‘handwriting’ must be construed to comprehend type-writing having regard to the fact that type-writer was not invented when the Act was enacted.
3. Opinion of Ballistic Expert: The Supreme Court in a number of cases held that a ballistic expert can give evidence to assist the court to establish so many technical issues like:
a) the kind of weapon used;
b) the distance from which the shot was fired;
c) the direction of the fire and the position of the victim and the assailant;
d) whether it was a case of accident, suicide or murder, and
e) the identification of the weapon used.30
4. Dog-tracking evidence: Evidence of dog-tracking should also be admissible as scientific evidence. In Lalit Kumar Yadav alias Kuri v. State of Uttar Pradesh,31 the Supreme Court speaking through Justice AK Patnaik said FIR lodged without mentioning name of the accused that victim was murdered Investigating Officer took help of dog squad and sniffer dog tracked the accused and he was formally arrested followed by identification of accused by sniffer dog along with other evidence can be relied upon to prove guilt of accused.
5. DNA Report: Relevancy and Role of an Expert- The importance and evidentiary value of DNA Reports were highlighted by the Supreme Court in a number of cases, some of which can be summarized as under-32
In Santosh Kumar Singh v. State Through CBI,33 which was a case of a young girl who was raped and murdered, the DNA reports were relied upon by the High Court which were approved by the Supreme Court and it was held thus:
“We feel that the trial court was not justified in rejecting the DNA report, as nothing adverse could be pointed out against the two experts who had submitted it. We must, therefore, accept the DNA report as being scientifically accurate and an exact science as held by this Court in Kamti Devi v. Poshi Ram34”
In Inspector of Police, Tamil Nadu v. John David,35 a young boy studying in MBBS Course was brutally murdered by his senior. The torso and head were recovered from different places which were identified by the father of the deceased. For confirming the said facts, the blood samples of the father and mother of the deceased were taken which were subject to DNA test. From the DNA, the identification of the deceased was proved. In Krishan Kumar Malik v. State of Haryana,36 in a gang rape case when the prosecution did not conduct DNA test or analysis and matching of semen of the appellant-accused with that found on the undergarments of the prosecutrix, the Court held that after the incorporation of Section 53- A in CrPC, it has become necessary for the prosecution to go in for DNA test in such type of cases. In Surendra Koli v. State of Uttar Pradesh and others,37 the appellant, a serial killer, was awarded death sentence which was confirmed by the High Court. While confirming the death sentence, this Court relied on the result of the DNA test conducted on the part of the body of the deceased girl.
In Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharashtra,38 the accused was awarded death sentence on charges of killing large number of innocent persons on 26th November, 2008 at Bombay. The accused with others had come from Pakistan using a boat ‘Kuber’ and several articles were recovered from ‘Kuber’. The stains of sweat, saliva and other bodily secretions and certain other articles, those articles were subjected to DNA test and the DNA test matched with several accused. The Court observed:
“It is seen above that among the articles recovered from Kuber were a number of blankets, shawls and many other items of clothing. The stains of sweat, saliva and other bodily secretions on those articles were subjected to DNA profiling and, excepting Imran Babar (deceased Accused 2), Abdul Rahman Bada (deceased Accused 5), Fahadullah (deceased Accused 7) and Shoaib (deceased Accused 9), the rest of six accused were connected with various articles found and recovered from the Kuber. The appellant’s DNA matched the DNA profile from a sweat stain detected on one of the jackets. A chart showing the matching of the DNA of the different accused with DNA profiles from stains on different articles found and recovered from the Kuber is annexed at the end of the judgment as Schedule III.”
In Sandeep v. State of Uttar Pradesh,39 the facts related to the murder of pregnant paramour/girlfriend and unborn child of the accused. The DNA report confirmed that the appellant was the father of the unborn child. In Rajkumar v. State of Madhya Pradesh,40 the Court was dealing with a case of rape and murder of a 14 year old girl. The DNA report established the presence of semen of the appellant in the vaginal swab of the prosecutrix. The conviction was recorded relying on the DNA report. In Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik,41 the appellant, father of the child born to his wife, questioned the paternity of the child on the ground that she did not stay with him for the last two years. The Court directed for DNA test. The DNA result opined that the appellant was not the biological father of the child. The Court also had the occasion to consider Section 112 of the Evidence Act which raises a presumption that birth during marriage is conclusive proof of legitimacy. The Court relied on the DNA test holding the DNA test to be scientifically accurate.
Role of Expert Witness and DNA Test:42 The role of an expert witness rendering opinion evidence before the Court may be explained by referring to the following observations of this Court in Ramesh Chandra Agrawal v. Regency Hospital Limited & Ors.,43
“The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court’s knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of an expert cannot be disputed.”
Recently, in the matter of Manoj and others vs. State of Madhya Pradesh44 their Lordships of the Supreme Court while highlighting the need to ensure quality testing and lesser possibility of tempering of evidence has elaborately discussed the evidentiary value of the DNA report and laid down the law with regard to DNA Profiling Methodology, Statistical Analysis and Collection & Preservation of Evidence.
The Law Commission of India in its 185th Report on Review of the Evidence Act Evidence Act, 2003, observed as follows:
“DNA evidence involves comparison between genetic material thought to come from the person whose identity is in issue and a sample of genetic material from a known person. If the samples do not ‘match’, then this will prove a lack of identity between the known person and the person from whom the unknown sample originated. If the samples match, that does not mean the identity is conclusively proved. Rather, an expert will be able to derive from a database of DNA samples, an approximate number reflecting how often a similar DNA “profile” or “fingerprint” is found. It maybe, for example, that the relevant profile is found in 1 person in every 100,000: This is described as the ‘random occurrence ratio’ (Phipson 1999). Thus, DNA may be more useful for purposes of investigation but not for raising any presumption of identity in a court of law.”
In Dharam Deo Yadav v. State of UP,45 this Court discussed the reliability of DNA evidence in a criminal trial, and held as follows:
“The DNA stands for deoxyribonucleic acid, which is the biological blueprint of e very life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines. DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc. The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory.” 185th Report, on Review of the Indian Evidence Act, 2003”
The US Supreme Court, in District Attorney’s Office for the Third Judicial District v. Osborne46 dealt with a post- conviction claim to access evidence, on behalf of the convict, who wished to prove his innocence, through new DNA techniques.
It was observed, in the context of the facts, that “Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others.”
Several decisions of this Court – Pantangi Balarama Venkata Ganesh v. State of Andhra Pradesh,47; Santosh Kumar Singh v. State48; State of Tamil Nadu v. John David 49; Krishan Kumar Malik v. State of Haryana50; Surendra Koli v. State of Uttar Pradesh51; Sandeep v. State of Uttar Pradesh,52; Rajkumar v. State of Madhya Pradesh, 53; and Mukesh & Anr vs State for NCT of Delhi & Ors,54 have dealt with the increasing importance of DNA evidence.
The Supreme Court has also emphasized the need for assuring quality control, about the samples, as well as the technique for testing- in Anil v. State of Maharashtra,55
“Deoxyribonucleic acid, or DNA, is a molecule that encodes the genetic information in all living organisms. DNA genotype can be obtained from any biological material such as bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also shown a tremendous impact on forensic investigation. Generally, when DNA profile of a sample found at the scene of crime matches with DNA profile of the suspect, it can generally be concluded that both samples have the same biological origin. DNA profile is valid and reliable, but variance in a particular result depends on the CRA-565- 2022 quality control and quality procedure in the laboratory.”
This court, in one of its recent decisions- Pattu Rajan v. The State of Tamil Nadu,56 considered the value and weight to be attached to a DNA report:
“Like all other opinion evidence, the probative value accorded to DNA evidence also varies from case to case, depending on facts and circumstances and the weight accorded to other evidence on record, whether contrary or corroborative. This is all the more important to remember, given that even though the accuracy of DNA evidence may be increasing with the advancement of science and technology with every passing day, thereby making it more and more reliable, we have not yet reached a juncture where it may be said to be infallible. Thus, it cannot be said that the absence of DNA evidence would lead to an adverse inference against a party, especially in the presence of other cogent and reliable evidence on record in favour of such party.” “This court, therefore, has relied on DNA reports, in the past, where the guilt of an accused was sought to be established. Notably, the reliance, was to corroborate. This court highlighted the need to ensure quality in the testing and eliminate the possibility of contamination of evidence; it also held that being an opinion, the probative value of such evidence has to vary from case to case.”
Very recently and finally, in the matter of Rahul v. State of Delhi, Ministry of Home Affairs57, their Lordships of the Supreme Court, while considering the evidentiary value of DNA evidence and taking note of decision of Manoj and others vs. State of Madhya Pradesh 58 held that the DNA evidence is in the nature of opinion evidence like any other opinion evidence, its probative value varies from case to case and held that:
“It is true that PW 23 Dr B.K. Mohapatra, Senior Scientific Officer (Biology) of CFSL, New Delhi had stepped into the winess box and his report regarding DNA profiling was exhibited as Ext. PW 23/A, however mere exhibiting a document, would not prove its contents. The record shows that all the samples relating to the accused and relating to the deceased were seized by the investigating officer on 14.02.2012 and 16.02.2012; and they were sent to CFSL for examination on 27.02.2012. During the period, they remained in the malkhana of the police station. Under the circumstances, the possibility of tampering with the samples collected also could not be ruled out. Neither the trial Court nor the High Court has examined the underlying basis of the findings in the DNA reports nor have they examined the fact whether the techniques were reliably applied by the expert. In the absence of such evidence on record, all the reports with regard to DNA profiling become highly vulnerable, more particularly when the collection and sealing of the samples sent for examination were also not free from suspicion.”
C. Handwriting:
When there is a question before the court as to whether a particular document is in the handwriting of a person, the court may receive the opinion of a handwriting expert. In Velaga Sriramma Krishna v. Velaga Veerbhadra Rao,59 on the dispute regarding the execution of promissory note by the denial of the defendant and his signature thereon, the court held that it is essential that such document should be sent to expert for comparison of signatures.
Apart from persons having professional qualification on the subject, the court may also receive the opinion of a person who is otherwise acquainted with the handwriting. In R. v. Silverlock,60 the question was whether an advertisement was in the handwriting of the accused. A solicitor was called as an expert to compare it with admittedly genuine letters written by the accused. The solicitor had no professional qualification on the subject, but testified that he devoted 10 years’ time and attention to the matter. His opinion was accepted and the accused was convicted on the basis of it. Lord Russell observed that, “there is no decision that requires that the evidence of a man who is skilled in comparing handwriting and has formed a reliable opinion from past experience, should be excluded because his experience has not been gained in the way of his business.”
Reliability of the opinion of handwriting expert: As to the reliability of such evidence the Supreme Court has laid down that the evidence of an expert as to handwriting is only in the nature of an opinion and it can rarely, if ever, take the place of substantive evidence. It should be corroborated either by clear and direct evidence or by circumstantial evidence. Such evidence cannot be conclusive by itself. The evidence of handwriting expert is generally of a frail character and the court should be very wary to give too much weight to it.61 Identification of handwriting is an imperfect science. An expert can certify only probability and not 100% certainty.62
D. Finger Impression: The identification of finger prints has become the most important branch of criminal investigation. The evidence is most valuable because ridges in fingers of two persons are invariably of different pattern. Impressions of fingers, palms, foot etc. may be both visible and invisible. Invisible prints are developed with the help of certain chemicals. The evidence of handwriting expert has been found to be faulty but finger prints are most reliable evidence.63 In Munna Kumar Upadhya v. State of Andhra Pradesh,64 finger print evidence was held to be reliable in a murder case where the accused alleged to have killed entire family of the deceased and stolen valuables kept in almirah. Finger print taken from almirah was found matching with that of the accused.
VALUE OF EXPERT OPINION
The weightage that ought to be attached to the opinion of an expert is a different matter from its relevancy. The Act only provides for the relevancy of expert opinion but gives no guidance as to its value. The value of expert opinion is to be viewed in the light of many adverse factors. Firstly, there is the danger of error or deliberate falsehood. “These privileged persons might be half blind, incompetent or even corrupt.65 Secondly, the evidence of an expert is after all an opinion and “human judgment is fallible. Human knowledge is limited and imperfect”.66 Thirdly, it must be borne in mind that an expert witness, however impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him.67 These factors seriously reduce the probative value of expert evidence. Judges are entitled to attach little or no importance to expert’s opinion if explanations given are not satisfactory.68
The reliability of expert opinion has to be tested in the same way as some other evidences are tested. The court will have to call upon the expert to explain the reasons for his opinion and then form its own opinion as to whether or not the expert opinion is satisfactory.69
Conflict between expert evidence and direct or ocular evidence/eye-witness: Where there is a conflict between expert opinion and other evidence, the expert opinion is not necessarily entitled to greater weight.70 It is the duty of the court to examine both the evidences carefully and decide which one is to be preferred and accepted. In a number of cases direct testimony has been preferred. It is a settled position that direct oral evidence has to get primacy over medical evidence as medical evidence is basically opinionative.71 The medical evidence should be consistent with oral evidence. If oral evidence is totally inconsistent with medical evidence, the medical evidence is to be discarded.72
In Manguli Devi v. State of Orissa,73 the appellant along with the brother of her husband assaulted her husband who succumbed to injuries. On her information the dead body was found buried in one room of the house. She stated that she snatched the axe from her husband while he was chasing to kill her and gave four blows on his head and later on buried the dead body in the house. The post-mortem report stated that there was only one simple cut mark. The court upheld her conviction for murder and rejected post-mortem report on the ground that the judicial confession was made before a First-Class Magistrate and the dead body was so decomposed that marks of injuries could not be seen.
Highlighting the importance and credibility of eye-witnesses, the Supreme Court, in Krishnan v. State,74 held that- it is trite that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. In Malappa Siddappa Alakamur v. State of Karnataka,75 the Supreme Court held that in case of conflict between ocular evidence and the medical evidence, ocular evidence shall be preferred. Once again in Gangabhavani v. Rajapati Venkat Reddy,76 SC held that, where the eye-witness is found to be credible and trustworthy, the medical opinion pointing to alternative possibilities will not prevail.
COMPARATIVE ANALYSIS: SECTION 45 /IEA, 1872 AND SECTION 39/BSA, 2023
Expert opinion plays an important role in helping the Court form opinions on matters requiring specialized knowledge. The law recognizes that judges are not experts in certain fields and hence expert testimony or expert opinion becomes necessary and relevant in those special cases. Under the Indian Evidence Act, 1872, this was governed by Section 45, while the Bharatiya Sakshya Adhiniyam, 2023 now replaces it with Section 39, updating and expanding the scope to keep pace with the requirements of time and match modern developments.
As per the Indian Evidence Act, 1872, expert evidence under section 45, was admissible only in a limited set of fields like foreign law, science, art, handwriting and finger impressions. In Bharatiya Sakshya Adhiniyam, 2023, section 39 combines both Section 45 and Section 45A of the old Act. It recognizes expertise in any field and expressly integrates digital and electronic evidence under one unified provision. Earlier, the scope of expert opinion was confined to five specific areas but now it has been widened with the inclusion of the phrase “any other field” to keep it open ended so that it can have a broader recognition of all recognized expert areas or domains.
CONCLUSION
Indian Evidence Act was enacted long back in 1872 and was drafted in a pre-industrial era when the only recognized expert areas were foreign law, science, art, handwriting and finger impressions. It could not contemplate or foresee modern domains like cyber forensics, DNA analysis, data analytics, AI, etc. To make the law technologically relevant and scientifically inclusive and to allow courts to rely on experts from emerging fields, Section 39 of BSA has inserted the words “or any other field”, giving the judiciary more flexibility to accept expert opinion from any specialized area relevant to justice.
The words “or any other field” were deliberately and intentionally added to make the law open ended. The main rationale behind it was to make the new law of evidence future-ready and future-proof so that it can adapt itself to navigate and excel in the dynamic future. When new fields arise, the judiciary is not handicapped by statutory rigidity. It is a holistic approach on the part of the legislature to encompass various future aspects pertaining to the relevancy of expert opinion. The object of the legislature was to avoid the perennial problem of recurrent or frequent legislative amendments giving the judiciary discretion to determine whether someone qualifies as an expert, even in unconventional fields.
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Footnotes
1. (1782) 3 Doug K.B. 157: 99 F.R. 589, 686
2. Beckwith v. Sydebotham, (1807) 1 Camp. 116
3. Ernest Cockle, Cases and Statutes on Evidence, Sweet & Maxwell (6th Edn. 1970), p.88
4. * Corresponds to Section 45A of the Indian Evidence Act, 1872 Inserted by the Information Technology (Amendment) Act, 2008, Sec. 52(b)
5. Rajinder Bajaj v. Indian Tanning Industries, AIR 2008 Del. 62
6. AIR 1971 MP 32; See also: K. Krishna Chettiar v. Ambal & Co., AIR 1970 SC 146; Mahmood v. State of U.P., AIR 1976 SC 69
7. AIR 1989 All 133
8. (1972) Cr.L.J. 407
9. 1999 Cr.L.J. 4294 (SC)
10. R. v. Oakley (1979) K.T.R. 417
11. (1996) 2 SCC 676
12. AIR 1953 P & H 373
13. Iswar Singh v. State of U.P., AIR 1976 SC 2423
14. AIR 1999 SC 2222 [Quoted by Batuk Lal, The Law of Evidence, 21st Edn. 2015, CLA, Allahabad, p.363]
15. State of Himachal Pradesh v. Jai Lal and Others, AIR 1999 SC 3318
16. AIR 1926 Mad. 218
17. Shahid Ganj v. S.G.P. Committee, AIR 1940 PC 116
18. AIR 1942 Bom 185
19. Sussex Peerage Case, 11 C & F 85, 124. Brailey v. Rhodesian Consolidated Ltd., (1910) 2 Ch 95, 102-103; Wilson v. Wilson (1903) p.157 [Quoted by Prof. G.S. Pandey, The Law of Evidence, University Book House Pvt. Ltd. Jaipur, (9th Edn. 2019) p. 239]
20. I.L.R. (1975) 47 All 823
21. In re K. Thimma Reddi, AIR 1957 AP 758
22. Basudeo v. State, AIR 1950 Pat. 534
23. Fakir Mohammad v. Emperor, I.L.R. 60 Bom. 187; Harendra Nath v. Emperor, AIR 1931 Cal 441
24. Emperor v. Babu Lal, I.L.R. 52 Bom. 223
25. Field, Evidence, 9th Edn. 2442
26. R v. Kusmack, (1955) 2 C.R. 365
27. (1979) Crim. L.R. 592 (C.A.)
28. AIR 1952 SC 343
29. AIR 1996 SC 1491
30. Relying upon Mohinder Singh v. State, AIR 1953 SC 416; followed in State of M.P. v. Supra, AIR 2001 SC 2408 [Quoted by Dr Avtar Singh, Principles of the Law of Evidence, Central Law Publications, Allahabad, 21st Edn. 2014, p. 252]
31. AIR 2014 SC (Supp) 1282
32. https://indiankanoon.org/doc/95619872/accessed on 31.03.2023
33. (2010) 9 SCC 747
34. AIR 2001 SC 2226
35. (2011) 5 SCC 509
36. (2011) 7 SCC 130
37. (2011) 4 SCC 80
38. (2012) 9 SCC 1
39. (2012) 6 SCC 107
40. (2014) 5 SCC 353
41. AIR 2014 SC 932
42. https://indiankanoon.org/doc/95619872/accessed on 31.03.2023
43. AIR 2010 SC 806; (2009) 9 SCC 709
44. Criminal Appeal Nos. 248-250 of 2015, Decided by the Supreme Court on 20th May, 2022 (Bench: Hon’ble Justice UU LALIT, Hon’ble Justice S. RAVINDRA BHAT and Hon’ble Justice BELA. M. TRIVEDI)
45. (2014) 5 SCC 509
46. 557 U.S. 52 (2009)
47. (2009) 14 SCC 607
48. (2010) 9 SCC 747
49. (2011) 5 SCC 509
50. (2011) 7 SCC 130
51. (2011) 4 SCC 80
52. (2012) 6 SCC 107
53. (2014) 5 SCC 353
54. (2017) 6 SCC 1
55. (2014) 4 SCC 69
56. AIR 2009 SC 1674
57. Criminal Appeal No. 611 of 2022, Decided by the Supreme Court on 7th November, 2022
58. Criminal Appeal Nos. 248-250 of 2015, Decided by the Supreme Court on 20th May, 2022 (Bench: Hon’ble Justice UU LALIT, Hon’ble Justice S. RAVINDRA BHAT and Hon’ble Justice BELA. M. TRIVEDI)
59. AIR 2009 AP 47
60. (1984) 2 Q.B. 766 [Quoted by Dr Avtar Singh, Principles of the Law of Evidence, 21st Edn. 2014, CLP, Allahabad, p.250]
61. Sashi Kumar v. Subodh Kumar, AIR 1964 SC 529
62. M.K. Usman Koya v. C.S. Santha, AIR 2003 Ker. 191
63. Public Prosecutor v. Kandasami Thevan, I.L.R. 50 Mad. 462; Fakir Chand v. Emperor, I.L.R. 60 Bom. 187; Harendra Nath v. Emperor, AIR 1931 Cal 441 [Quoted by Prof. G.S. Pandey, Law of Evidence, 9th Edn. 2019, University Book House Pvt. Ltd., Jaipur, p. 240]
64. AIR 2012 SC 2470
65. Happu v. Emperor, AIR 1933 All. 837; Haryana Seeds Development Corpn. Ltd. v. Sadhni, AIR 2005 SC 2023
66. Mohd Zahid v. State of T.N., 1997 Cri.L.J. 3699 (SC)
67. Ryan on Criminal Evidence in British India, 127 (1912), cited with approval in Hari Singh v. Sardarni Lachmi Devi, AIR 1921 Lah. 126 at p. 127
68. In re Sattar Khan, AIR 1939 Mad. 283
69. Crown Prosecutor v. Gopal, AIR 1941 Mad 551
70. State of M.P. v. Dharkole, AIR 2005 SC 44
71. Ram Swaroop v. State of Raj. 2008 (2) Supreme Court 643
72. Wilayat Khan v. State of U.P., AIR 1953 SC 122
73. AIR 1989 SC 483
74. AIR 2003 SC 2978
75. AIR 2009 SC 2959 at p. 2963
76. AIR 2013 SC 3681 at p. 3686