Expert Evidence and Relevancy of Character
This article titled ‘Expert evidence and Relevancy of Character’ deals with sections 45 to 55 of the Indian Evidence Act. I. Introduction The courts have been accustomed to acting on the opinion of experts from the early time. The reason is obvious. Many matters require professional or specialised knowledge that the court may not possess, and it, therefore, relies… Read More »
This article titled ‘Expert evidence and Relevancy of Character’ deals with sections 45 to 55 of the Indian Evidence Act. I. Introduction The courts have been accustomed to acting on the opinion of experts from the early time. The reason is obvious. Many matters require professional or specialised knowledge that the court may not possess, and it, therefore, relies on those who possess it. In Folkes v. Chadd, [(1782) 3 Dough KB 157], a bank was erected to prevent the sea...
This article titled ‘Expert evidence and Relevancy of Character’ deals with sections 45 to 55 of the Indian Evidence Act.
I. Introduction
The courts have been accustomed to acting on the opinion of experts from the early time. The reason is obvious. Many matters require professional or specialised knowledge that the court may not possess, and it, therefore, relies on those who possess it. In Folkes v. Chadd, [(1782) 3 Dough KB 157], a bank was erected to prevent the sea from overflowing certain meadows. The question arose whether it contributed to the choking and decay of a harbour. A celebrated engineer was allowed to express his opinion on the matter.
In this case, Lord Mansfield, C.J., on appeal with respect to the evidence of Smeaton, proceeded as follows :
It is objected that Mr. Smeaton is going to speak not to facts, but to opinion. That opinion, however is deduced from facts which are not disputed – the situation of banks, the course of tides and of winds, and the shifting of sands. His opinion, deduced from all the facts is, that mathematically speaking, the bank may contribute to the mischief, but not sensibly. Mr. Smeaton understands the construction of harbours, the causes of their destruction and how remedied. In matters of science no other witnesses can be called.
Chief Justice quoted;
“I cannot believe that where the question is whether a defect arises from natural or an artificial cause, the opinions of men of science are not to be received.. Handwriting is proved every day by opinion, and for false evidence on such questions a man by be indicted for perjury.”
II. Who is an expert?
The section permits only an expert’s opinion to be cited in evidence. 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, especially skilled on the matter. Does the only definition of an expert available in the act is that he is a person especially skilled in the subject on which he testifies?
But the section does not refer to any particular attainment standard of study or experience which would qualify a person to give evidence as an expert. Generally, the witness is considered an expert if he is skilled in any particular art, trade or profession and possessed particular knowledge concerning the same. It is the duty of the judge to decide whether the skill of any person in the matter on which evidence of his opinion is offered is sufficient to entitle him to be an expert.
In Forest Range Officer v. P. Mohammad Ali, [1994, AIR 120], it was held that expert opinion is only the opinion evidence. It does not help the court in interpretation. The main opinion of an expert cannot overwrite the positive evidence of the attesting witness. Expert opinion is not necessarily binding on the court.
III. Section 45 – Opinions of Experts :
When the court has to form an opinion upon a point of foreign law or of science or art or has to identify of the handwriting of finger Impressions, the opinions upon that point of persons specially skilled in such foreign Law, Science or art or in questions as to the identity of handwriting or finger impression are relevant facts. Such persons are called Experts.
IV. Subjects on which experts can testify
The subjects on which an expert is competent to testify are mentioned in the section itself: foreign law, matters of science, questions of art, identification of handwriting or finger Impressions.
1. Foreign law
Foreign law means any law which is not in force in India, the courts of the country may not be in a position to appreciate the principles of foreign law, and therefore, whenever a Court has to decide a question of foreign law, the court can seek the help of those who are experts on the particular foreign law. In England, it can be proved by leading expert evidence.
2. Science or Art
Expert opinion is relevant to all questions on points of science or art. Science or art includes all subjects on which a course of special study or experience is necessary to the formation of an opinion.
Field has quoted
“These words 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 purpose of life into that of artistic and scientific action.”
To determine whether a particular matter is of a scientific nature or not, the test to be applied is whether the subject matter of enquiry is such that experienced persons are unlikely to prove capable of forming a correct judgement without the assistance of experts.
3. Handwriting and Finger Impressions
Under section 45 of the Indian Evidence Act, an expert can depose to the identity of handwriting between the questioned document and the document admitted or proved. Disputed handwriting may be proved either by calling an expert or by examining a person acquainted with the handwriting of the person by whom the questions document is alleged to have been written or a comparison of the two under section 73.
When the court has to decide upon the identity of the handwriting of a certain person or the identity of a certain person’s finger impression, the court may receive the evidence of a person who has acquired expertise on the matter. For persons possessing professional qualifications on the subject, the court may receive the evidence of a person who is otherwise acquainted with the subject.
In R v. Silverlock, 1894 2 QB 766, the court observed that a solicitor might be treated as an expert in handwriting even if he had acquired his knowledge as an amateur. as to the reliability of such evidence, the Supreme Court has laid down and quite a few cases that the evidence of an expert as to handwriting is only in the nature of an opinion and can rarely take the place of substantive evidence. It should be corroborated by clear, direct evidence or circumstantial evidence.
In the case of State of Maharashtra v. Sukhdeo Singh, 1992 AIR 2100, the Apex Court opined that before a Court can act on the opinion evidence of a handwriting expert, two things must be proved beyond any manner of doubt, namely, (i) the genuineness of the specimen/admitted handwriting of the concerned accused and (ii) the handwriting expert is a competent, reliable and dependable witness whose evidence inspires confidence.
The opinion of a thumb impression expert is entitled to greater weightage than that of a handwriting expert.
In R v. Oakley, (1979) Crim LR 657 CA, a police officer who had attended a course, passed an exam as an accident investigator and attended more than 400 accidents was entitled to give expert evidence as to the cause of an accident.
The Supreme Court, in the case of State of H.P. v. Jai Lal and Ors.,(1999) 7 SCC 280, explained the substance of expert opinion by stating that Section 45 of the Evidence Act, which makes the opinion of experts admissible, lays down, that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to the 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 the identity of handwriting, or finger impressions are relevant facts.
Therefore, in order to bring the evidence of a witness as that of an expert, it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words, that he is skilled and has adequate knowledge of the subject.
V. Value of expert opinion
The weight that ought to be attached to an expert’s opinion is a different matter from its relevancy. the act only provides about the relevancy of expert opinion but gives no guidance as to its value, and store the value of Expert Opinion has 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.
Secondly is evidence after your opinion and human judgement is fallible. Human knowledge is limited and imperfect. No man ever mastered all the knowledge on any of the Sciences.
Thirdly it must be borne in mind that an expert witness, however impartial he may wish to be, is likely to be unconsciously predicted in favour of the side which calls him. it is on the basis of these factors that it has been removed of an expert that the witnesses now in worst repute are called expert witnesses that is witnesses retained and page to support by their evidence a certain view on a scientific or technical question.
Single Judge of Allahabad High Court in Saqlain Ahmad v. Emperor, AIR 1936 Allahabad 165 observed as follows:-
“The value of the expert evidence depends largely on the cogency of the reasons on which it is based. In general it cannot be the basis of conviction unless it is corroborated by the other evidence. In the present case the evidence offered in corroboration, namely, the evidence of the witnesses is itself unsatisfactory.”
In Bhavanam Siva Reddy And 2 Others v. Bhavanam Hanumantha Reddy And … on 30 December 2016, the court observed that:
Thus coming to relevancy and evidentiary value of expert opinion and evidence, the Latin general maxim is that-EXPERTO- CREDE to mean an Expert is to be generally believed. It is because the testimony of an expert as to general scientific facts and doctrines- which are unintelligible to the laymen- will elucidate the facts in issue. However, the general rule is that the evidence of an expert has to be tested as any other evidence.
The court quoted the decision of the court in Murarilal v. State of MP, where it was held that:
However, the value of the expert evidence varies with the circumstances of each case and the reasons he gave in support of his opinion. Its value is to be judged with the same yardstick with which the evidence of any other witness is appraised. It is to be seen how far it fits into the surrounding circumstances and the natural probabilities of the case.
VI. Relevancy of Character
1. Civil Cases
Section 52 lays down the broad general principle that the evidence of a party’s character cannot be given for the purpose of showing that it renders the conduct imputed to him as probable or improbable. Thus, the general principle is that a party cannot give evidence of good character to show that it is improbable that he should be guilty of the conduct imputed to him.
Section 52 – In civil cases, character to prove conduct imputed, irrelevant: in civil cases, the character of any person concerned as such as to rental probable improbable any conduct imputed to him is irrelevant except in so far as such character appears from facts otherwise relevant.
2. Exceptions
While this is a general principle, the exception will have to be admitted.
1. Character as affecting damages
The court is entitled to take note of the character of the plaintiff if it affects the amount of compensation which should be awarded to him.
2. Where character is in the issue
The ban imposed by section 54 upon the relevancy of the bad character of the accused is not applicable where his character is itself a fact in the issue
3. In criminal cases
Section 53 – In criminal cases, the fact that the person accused is of good character is relevant in criminal proceedings.
Section 53 makes a categorical declaration that in criminal cases, the fact that the person accused is a good character is relevant. Thus, every accused person is at liberty to prove that he is a man of good character.
the history of the admission of evidence of good character As given in Stephen’s history of the criminal law of England shows that such evidence does not stand on precisely the same plane as that concerning the relevant facts going to prove or disprove the issue.
4. Meaning of the character
The explanation in Section 55 gives the meaning of the expression character for the purposes of all the sections related to the relevancy of character and the type of facts which can be used to prove bad character.
Section 55 – Character as affecting damages: in civil cases, the fact that the character of any person is such as to affect the amount of time it is which you ought to receive is relevant.
To prove good or bad character, evidence can be given both reputation and disposition. it can be given of previous convictions and proof of bad character, and it cannot be given of particular facts but only of general reputation and general disposition. Evidence of a person’s good or bad character can be given only by those who know him and have had dealings with him for his character, whereas others who know him and are in a position to judge his worth.
Evidence cannot be given of particular acts by which reputation and disposition were shown, and circumstances would give rise to indeterminable issues which would have but a very remote bearing on the question in dispute.
The only way the law allows of your getting and the disposition and tendency office mind is by evidence of his general character founded upon the knowledge of those who know anything about him and his general conduct.
Edited by- Akriti
References
- Principles of Law of Evidence, Dr. Avtar Singh, Central Law Publications
- The Law of Evidence, Ratanlal And Dhirajlal, 25th Edition, Lexis Nexis