Abstract
The law of evidence is a library of rules and exceptions that helps the judge and jury visualise what happened in a case.
Inferences from “evidence” can prove a disputed fact’s veracity or untruth. Expert evidence is a useful tool in the criminal justice system, and in my conclusion, I noted that how far it may assist the system. In the middle of 19th century natural science began to develop by leaps and bounds. The mystic theories theretofore advanced to explain the scheme of things began to lose ground as the clear, cold logic of scientific experiment gradually shed a new light on the mysteries of universe. “Expert Opinion” is when a topic expert is consulted to offer his opinion on the relevant subject and it is important to the case, even though he or she is unfamiliar with the case and its facts and circumstances. Indian Evidence Act Ss.45–51 covers expert evidence.
Introduction
The law of evidence is often described as a library or set of rules and exceptions that come together to help the judge and jury, recreate in their mind what allegedly happened within a given situation.
“Evidence” is the material from which inferences may be drawn as the basis for proof of truth or falsity of a disputed fact.
Law of evidence allows a person –who is a witness to state the facts related to either to a fact in issue or to relevant fact, but not his inference. It applies to both criminal law and civil law. The opinion of any person other than the judge by whom the fact has to be decided as to the existence of the facts in issue or relevant facts are as a rule, irrelevant to the decision of the cases to which they relate for the most obvious reasons- for this would invest the person whose opinion was proved with the character of a judge. The rule, however, is not without its exceptions. “If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns”. The expert witness is, thus, an exception to the exclusionary rule and is permitted to give opinion evidence. The Judge is not expected to be an expert in all the fields-especially where the subject matter involves technical knowledge. He is not capable of drawing inference from the facts which are highly technical. In these circumstances he needs the help of an expert- who is supposed to have superior knowledge or experience in relation to the subject matter. This qualification makes the latter’s evidence admissible in that particular case though he is no way related to the case. Because an expert has an advantage of a particular knowledge vis-à-vis a judge who is not equipped with the technical knowledge and hence not capable of drawing an inference from the facts presented before him.
Historical background of Forensic Evidence
In the middle of 19th century natural science began to develop by leaps and bounds. The mystic theories theretofore advanced to explain the scheme of things began to lose ground as the clear, cold logic of scientific experiment gradually shed a new light on the mysteries of universe. The change in point of view from the mystic to the scientific soon became apparent not only in criminal investigation but in the different facets of the legal system. Now there emerged two facets of a single case. The facet stated and the facet proved from scientific view point. The era of forensic science had arrived. Analysis of forensic evidence is used in the investigation and prosecution of civil and criminal proceedings.
Often “Expert Opinion”,is where an expert of a particular subject is consulted to give his opinion on the relevant subject and it is relevant in deciding the case, even though he or she is a stranger to the case and is unacquainted with the facts and circumstances of the case.
Forensic Science
Forensic science is the use of science in the service of the law. Sciences used in forensics include any discipline that can aid in the collection, preservation and analysis of evidence such as chemistry (for the identification of explosives), engineering (for examination of structural design) or biology (for DNA identification or matching).A forensic scientist is expert in any technical field and can provide an analysis of the evidence, witness testimony on examination results, technical support and even training in his or her specialized area.
Who is an expert
An expert is a person who devotes his time and study to a special branch of learning. The Supreme Court of United State of America defined an expert as a person who possesses knowledge and experience not possessed by mankind in general. The Courts in India in their judgments described an expert as a person who has acquired special knowledge, skill or experience in science, art, trade or profession. Such knowledge need not be imparted by any University. He might have acquired such knowledge by practice, observation or careful study. The expert operates in a field beyond the range of common knowledge. 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 especially 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. To sum up an expert is one who is skilled in any particular art, trade or profession being possessed of peculiar knowledge concerning the same.
TYPES: There are various types of expert evidence, and many more new methods and mechanisms are being developed and applied everyday with the continuous advancement in science and technology. The currently available expert evidences are divided into the following types:
- Medical Evidence- This type of expert evidence is given by a medical practitioner and it is conducted in a medical laboratory. These are further subdivided into the following types-
- i) Cause of Death in cases alleged to be due to physical violence;
- ii) Cause of Death in cases alleged to be due to causes other than physical violence;
iii) Whether Death was accidental, suicidal or homicidal;
- iv) To prove Legal Insanity;
- v) In cases of Sexual Offences;
- vi) To determine age;
vii) In disputed Paternity cases; and Miscellaneous matters.
- Non-Medical Evidence- These are the expert evidences other than medical in nature. These are further sub-divided into-
- i) Fingerprints;
- ii) Footprints;
iii) Handwriting;
- iv) Typewriting;
- v) Forensic Ballistics;
- vi) Narco-analysis;
vii) Polygraph Test; and
viii)Brain Mapping.
These are just some of the methods that are currently practiced in the investigation process in India. Many new methods and techniques are being developed and will soon be in use for the purpose of investigation, but in each method it must be ensured that the rights of the individual are not hampered. In cases where the rights of the accused are affected, the constitutionality of the evidence comes into question, which is further discussed in the next section of this research paper.
Expert Evidence In Indian Evidence Act
Expert evidence is covered under Ss.45-51 of Indian Evidence Act. S.45 of the Act allows that when the subject matter of enquiry partakes of science or art as to require the course of previous habit or study and in regard to which Experienced persons are unlikely to form correct judgment. Therefore the opinion of persons having special knowledge of the subject – matter of the enquiry and described as experts is made relevant. However, whether a particular person is a competent witness or not is to be proved in the Court of Law before his testimony is admitted. The competency of an expert is a preliminary question before the Judge. An expert need not be a paid professional expert who makes living by giving such evidence, but he must have devoted sufficient time and study to the subject so that he can make his evidence trustworthy.
The subjects of expert testimony mentioned by the section are foreign law, science, art and the identity of handwriting or finger –impressions. Expert on any other subject is not admissible. This was the position in 1954. No more it is the law. Law related to expert evidence has developed in a piece meal method growing hand by hand with the development of technology in every field. The word science or art if interpreted in a narrow sense, would exclude matters upon which expert testimony is admissible such as matters related to trade, handicrafts, ballistics and many more. Every business or employment which has a particular class devoted to its pursuit is an art or trade. When the question of foreign law is raised the evidence of professional lawyer or the holder of an official situation which requires and therefore implies legal knowledge or a teacher of law is admissible. As far as science and art concerned they are to be broadly construed so as to include all subjects on which a course of special study or experience is necessary to the formation of an opinion and embrace also the opinion of an expert in footprint as well. The opinion of the medical men are admissible upon questions within their own province such as insanity, the causes of diseases the nature of the injuries, the weapons which might have been used to cause such injuries the cause of death, the weapons might have been used in causing the death, medicines, poisons, the conditions of gestation, effects of hospitals upon the health of the neighborhood etc., Other expert evidence includes those of naturalists as to the ability of fish to overcome obstacles in a river: those of chemists as to the value of a particular kind of guano as a fertilizer: the safety of a non-explosive camphene and fluid lamp: the constituent part of a certain chemical compound; the effects of a particular poison: fermentation of a liquor; those of geologists as to the existence of a coal seams: those of botanists as to the effects of working coke ovens upon trees in the neighborhood: those of persons of specially skilled in insurance matters, such as the opinion of an insurance agent and examiner that a partition in a room increased the risk in a fire policy: an so with other branches of science.
In the field of art, the opinion of artists are admissible as to the genuineness or value of a work of art: the opinion of a photographer as to the good execution of a photograph, the opinions of engineers regarding constructions, erection of dams etc., are admissible. The list is only illustrative. It is not exhaustive. However, it depends on the discretion of the judge to accept or reject such evidence.
Section 46 lays down that, Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
Section 48 lays down that, the opinions in relation to customs are also admissible according to S. 48 of Indian Evidence Act. Section 13 and S.32 (4) also mentions about custom. S.13 deals with all rights and customs, public, general and private and refers to specific facts which may be given in evidence. The latter is hearsay evidence where a secondhand opinion can be admissible in the Court of law where the person who opined cannot be brought before the Court ( because of death or inability) upon the question of the existence of any public right or custom or matter of public or general interest made ante litem motan. But S.48 deals with the evidence of a living witness, who stood before the Court sworn to depose and subject to cross examination. Not only custom under this section opinion regarding usage is also admissible. The only condition Courts insist is that while deposing about custom it is to be established by unambiguous evidence. Rights or custom includes all kind of right, or custom, eg, right to pathway, pasturage, water-course, tanks, local custom, usage of transferability of a holding, trade custom, &c. opinion of living persons likely to know about the existence of such and other rights or customs are relevant.
Case Laws
1)In State v. S.J.Choudhry ,SC oserved that, the opinion of persons specially skilled in such foreign law, science, or art, or questions as to the identity of handwriting or finger impression, called experts therein, are relevant facts. The opinion of such experts is admissible in evidence as relevant facts by virtue of section 45 of Evidence Act.
2)In Bowden v. Bowden, The court accepted the evidence of a wife as to the paternity of a ten months old child, in spite the unanimous opinion of several doctors.
3)In Octovious Steel & Co. v. Endogram Tea Co.Ltd, it has laid down that although a medical certificate unsupported by a doctor’s affidavit is admissible in every case the court can not act on it unless contains the relevant particulars on which the court seeks to arrive at a finding
4)In Jugmohan v.Mangaldas, on the matters relating to the existence of any general custom or right, opinion of persons who would be likely to know of its existence, are relevant, as such evidence is the best possible under the circumstances. The persons contemplated by the section 48 are, so to speak, the depositaries of customary law, just as the text-books depositaries of general law. General reputation is admissible to prove public rights under the same limitations.
5) Nitish Kumar murder case
In this case, it was very difficult to find the person guilty because only a small portion of the palm with the finger was left unburned. But with the help of forensic science DNA test was conducted and it helped in identifying and recognizing the body by matching the DNA with the parents. This also helped the High Court of Delhi to identify the accused.
6) Sushil Mandal v. The State
In this case the father of a deceased boy is the petitioner who challenged the findings of the DNA. The boy who died fell on the adolescent cusp of mutual infatuation with a girl of his school. Hence, the parents of both the families were requested by the principal of the school for having a check on the children. After a few days, the boy was found missing, and after a week, a body was found in a lake that was totally decomposed and hence unidentifiable. The petitioner was not able to identify the body, the clothes were also not there to identify that he is his own son. He filed a habeas corpus petition in the High Court alleging the girl’s father and requesting the High Court to direct the investigation through CBI(Central Bureau of Investigation)
Then the DNA test was conducted by the experts and the DNA of the deceased person matched with the petitioner and his wife also. There was also a skull superimposition test. This test also found a link between the deceased and the recovered body. But the petitioner was not able to accept the truth. The truth came only when the scientific tests were conducted. The apex court relied on the scientific tests that were conducted and hence with the matter got closed.
7)Folks v. Chadd
In this was whether a sea-wall had caused the choking up of a harbours , and engineers ware called to give their opinions as to the effect of the wall, and proof, that other harbours on the same coast , where there were no embankments had begun to be choked about the same time as the harbour in question, was admitted, as such evidence serves to elucidate the reasoning of the skilled witnesses.
8)Field v. Leeds City Council
In this case, the court held that the evidence which is produced by the experts, highly skilled persons must be unbiased in nature and should be relevant evidence with reference to the issue concerned. It also satisfied that the evidence could not have been brought by any lawyer. They provide information that is outside the limit of the judge and that’s why this helps them to come to a correct decision. Though the judge has the power to accept or reject the evidence produced by the experts by doing various examinations. These experts only have the right to give opinions not the final decision of the proceedings taking place.
9)Magan Bihari Lal v. the State of Punjab
In the case, it is a famous case where the Supreme Court struck down and set aside the conviction on the basis of the experts identifying the handwriting. The Supreme Court said that the opinion of an expert must be received with caution.
10) Smt. Radha Krishna Kandolkar v. Tukaram Pundalik Homkhandi,
In this case the mere statement by a witness that saw the plaintiff using the defendants pond for watering his own crop on his own land does not amount to evidence of custom recognized by community.
11) Mohd Isa Khan v. state of UP, in this case the court says that, it is unsafe to base a conviction wholly on expert opinion without substantial corroboration.
12) Similarly in the case of Law society of India v. Fertilizer and Chemicals Travancore ltd. mentioned, the court is not bound to follow blindly the opinion of experts.
Conclusion
Based on the aforementioned discourse, it is evident that in matters pertaining to science or trade, wherein the acquisition of direct and conclusive evidence may pose challenges, individuals possessing the necessary expertise in said field (referred to as experts) are permitted to present their opinions as evidence, in addition to testifying about factual information and details that support said opinions. In the realm of medical inquiries, it is customary to solicit the aid and perspectives of experts. Such expertise is often sought in matters pertaining to the determination of time of death, the age of the involved parties, the causation of death, the probable instruments employed, the presence of any ailments or injuries, the mental capacity of the parties involved, and other related factors. In contemporary times, the utilisation of DNA testing has become increasingly prevalent in the realm of family law, particularly in cases involving disputes pertaining to child support and the establishment of legitimacy. In summary, it is generally recognised that the opinion of an individual possessing exceptional expertise in a specific subject matter is accorded deference within the confines of a court of law. In specific instances, it is customary to solicit expert opinion in order to corroborate preexisting evidence. However, it is important to note that we cannot definitively state that the expert opinion holds the utmost significance and is an irreplaceable element in the process of reaching a decision. Notwithstanding its significant role within the framework of the Indian Evidence Act, it is pertinent to note that this particular piece of evidence is properly classified within the category of supporting evidence. The court is not obligated to unquestioningly adhere to the perspective of the expert.
Bibliography
Forensic Evidence Management from the crime to court room, Edited by Mazayani Ashraf , Fisher casie Parish, CRC Press, Taylor & Group, London New York.
Forensic Evidence in court evaluation and scientific opinion, Adam Craig, Wiley.
The Judicial Assessment of Expert Evidence, Dwyer Deirdra, Cambridge University Press.
Text Book on Indian penal Code ( sixth Edition ), Gaur K D, Universal Law Publication.