Critical Analysis of Concept of Expert Witness under the Indian Evidence Act,1872

Written by Kaushal B. Shah of Lords Universal College of Law.

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Introduction

Now-a-days there is a heavy backlog of pending cases in the Indian courts and in order to dispose of the cases quickly and effectively, the courts require all the mechanisms so that they can fulfill their responsibilities and obligations. There has been a constant advancement in modern technology and it is not necessary that the judges have the knowledge of all the issues pertaining to it. So to form an accurate judgment and give a wider perspective of justice to the netizens, the experts as a witness are appointed, whenever needed to help the judges in a specific case.

Aim of the Study:

  • To make a study on the importance of material and substantive evidence in India.
  • To understand the value of evidence given by an expert.
  • To find out the development aspects of expert evidence through judicial decisions.
  • To interlink the role of evidence, expert witness and judicial decisions, particularly offenses against women and children in India.

Analysis

The provisions elucidated under Section 45 to 51 of the Indian Evidence Act,1872 provides for the relevancy of experts. In other words, he must be able to identify and form an unbiased opinion upon each and every material evidence placed before him. Before the expert’s testimony is put under consideration, it is imperative to establish, that there is a requirement for an expert’s opinion and the subject matter is of relevance to the case. Further, it is required to establish that the expert is indeed an ‘expert’ of his field of choice. For example medical officer, explosive expert, fingerprint expert, ballistics expert, etc. After the competence and relevance of the expert’s opinion are established, the evidence put forth is admissible under the Court of law. However, the discretion to accept or reject the opinion lies with the Court.

Mostly the experts are appointed in criminal cases, wherein the evidence recovered by the judges and the general investigation team cannot handle or interpret it. Judges usually summon the expert as a witness in the court when there arise any objections by either of the counsels in the material or substantive evidence gathered by it, also it is upon the expert to prove before the council and the bench of judges that the opinion formed and the documentary evidence submitted before the court are not baseless, false or malicious in nature. Whenever there is a question outside the scope of the expert’s knowledge, it should be brought in front of the court/parties. If at any circumstance, the expert thinks that there is insufficient material on record to give an opinion that should be communicated to the concerned and there should be no concluding statement made because there should not be any contradiction between the opinion given by the expert with that of the documentary evidence submitted by him. If such things happen then the very faith of the judges on the expert witness will be diminished and the victim has to suffer the anguish. The expert witness should not involve himself in the cases wherein he has to accept a bribe from any accused and should not be influenced socially, economically or politically by any political leaders, activists, etc involved in such cases. If he does so then he may pose a flight risk and has to pay a fine or undergo imprisonment. If the verdict to be passed by the bench of justice is critical in nature that it will not only have a serious impact on the victim but also on his family members, NGO, etc filing the petition’s behalf on him. In such circumstances of passing the verdict, there are very heavy chances that the expert’s opinion may be influenced, so the court or the investigating officer sees to it that he is being provided with the witness protection cell (a type of security). The police officials or the investigating officers must make the inquiry with the expert witness effectively so as to gain the necessary information concerning the health condition of the deceased. Also if need be then the police personnel or the prosecutor can keep the expert witness under judicial custody. Nowadays the passage of information through the digital means of communication has gained much of the momentum, so the experts should be aware of their fundamental rights as enshrined under the constitution of India while expressing their opinions in front of social media, as to which information is to be disclosed. The expert witness should follow strictly all the laws, rules and procedures as prescribed under the Indian Evidence Act, CrPc manual, other journals and periodicals prescribed for the experts. The expert reports should be submitted in the seal cover in front of the bench of justice so that it does not get leaked.

All the documentary evidence gathered and submitted by the higher officials before the judges should be duly authorized by the experts should that it does not create an impression of forgery. If an expert witness does not appear on the day of the hearing, then the court may adjourn the hearing or refer to the next date by giving reasonable notice to the concerned parties. If any unforeseen incident happens (injury, accident, etc.) and he could not appear then there are provisions that have been enacted wherein the judge may shift his bench at a place where the taking upon the statements of the witness is possible.

It is upon the judges for the efficient and effective implementation of laws after hearing the arguments of both the parties so as not to cause any delay in granting justice because it is said that “Justice delayed is justice denied”.

Cases:

  • It is stated in Titli v. Jones (AIR 1934 All 237) that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.
  • In the case of State of Himachal Pradesh v/s. Jai Lal and others [(1999) 7 SCC 280], Section 45 of the Evidence Act which makes 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 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 identify 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.
  • In the case of Sri Chand Batra v/s. State of U.P [AIR 1974 SC 639] an Excise Inspector Shri C.D. Misra had raided a liquor shop and discovered drums of liquor. On performing a smell test on the samples of liquor procured from the drums kept inside the shop, the Excise Inspector found out that the liquid was illicit liquor. He had further tested the contents of the drums with the aid of litmus paper, hydrometer, and thermometer to determine the strength and composition of the liquid under composition. After such observations, he gave testimony where he opined that the liquor shop had been involved in trading illicit liquor and submitted a detailed report regarding the same.

Issue: Whether the Excise Inspector doing such a test of the samples can be considered as an expert under the Indian Evidence Act, 1872?

The Court held that the Excise Inspector, who had deposed, at the very outset of his evidence, that he had put in 21 years service as Excise Inspector and had tested lacks of samples of liquor and illicit liquor. Further, he had employed all possible ways to test the samples of the liquor present at that time, which were clear tests of his reasonability and prudence.

Thus, the Excise Inspector would be an Expert and the testimony and evidence laid by him regarding the discovery of illicit liquor in the liquor shop would be relevant and admissible before the Court of law.

  • In Kathua’s rape and murder case (2018), an 8-year-old girl was raped murdered allegedly kept captive in a small village temple in Kathua district for a week. There is no direct evidence to find out the guilt of the accused and she was brutally raped. So the court immediately issued a forensic test of the victim’s body. The post-mortem revealed the presence of clonazepam in the body of the dead girl. The examination by the doctors found that the girl had been drugged with a sedative before she was raped and murdered. Forensic evidence suggested that she had been held for several days by Sanji Ram, one of the individuals accused of the crime. Strands of hair recovered from the temple matched those taken from the girl. The forensic examination stated that Bano had been raped multiple times by different men and that she had been strangled to death, as well as hit in the head with a heavy stone. Delhi Forensic Science Laboratory analyzed 14 packets of evidence containing vaginal swabs, hair strands, blood samples of four accused, viscera of the deceased girl, the girl’s frock and salwar, simple clay, and blood-stained clay. Vaginal swabs matched with the DNA of the accused as did some other samples. Hair strands found in the temple where Asifa was raped matched that of the girl and the accused. Based on medical evidence 8 people were arrested and charged for the crime. So in case of certain offenses against women especially rape, the medical evidence plays a corroborative value.
  • In Makhan v. State of Gujarat (1971), that the court said, Where the opinion of a medical witness is contradicted by another medical witness both of whom are equally competent to form an opinion, the court should normally accept the evidence of the medical witness whose evidence is corroborated by direct evidence. and whose testimony accords with the prosecution version. Where there is a glaring inconsistency between the direct evidence and the medical evidence in respect of the entire prosecution case, that is a manifest 3 defect in the prosecution case.
  • In Ram Narain Singh v. State of Punjab (1975) Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution’s case and unless reasonably explained it is sufficient to discredit the entire case.
  • In State of Haryana v. Bhagirath & Ors.,(1999) , it was held as follows:, “The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. Similarly, if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”
  • In Mohd. Aman, Babu Khan and Another Vs State of Rajasthan(1997) High Court upheld the conviction of Mohd. Aman is that his fingerprints were found on a brass jug in the house of the deceased.
  • In State of U.P. v. Hari Chand, (2009), that the Court reiterated the aforementioned position of law and stated that, “In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.”
  • In State vs azam @ rihan(2016), in order to establish conflict between the ocular evidence and medical evidence, there has to be a specific and material contradictions” were the eyewitnesses is found credible and trustworthy, medical opinion pointing to alternative possibilities may not be accepted as conclusive.
  • In Piara Singh vs state of Punjab (1969), opinion of one medical witness is contradicted to another, then both experts are equally competent to form an opinion. The court will accept the opinion of expert, which supported the direct evidence of the case.

Conclusion:

Thus, we may conclude that the expert’s opinion is a weak form of evidence, especially in the cases where the sufficiency of knowledge is doubtful. An opinion or belief may be of an expert or a non-expert. Sometimes the cases are delayed due to examining of the expert upon having such insufficient knowledge of the expert which involves spending of hugh such of money either by both the parties as agreed between them or by the court from the state exchequer. Various critics believe that lack of reviewing and oversight of the experts in some cases during the trial allows many non-merits cases to proceed and carry on hearings whereas they could have been scrapped the very moment. The role of an expert witness has gone through a lot of progress in the last few years with the advent, acceptance and reliance on technology. But there is way more that can be done and it seems to be a gradual process.

Reference:

(1) Titli v/s. Jones [AIR 1934 All 237]

(2) State of Himachal Pradesh v/s. Jai Lal and others [(1999) 7 SCC 280]

(3) Sri Chand Batra v/s. State of U.P [AIR 1974 SC 639]

(4) Kathua rape and murder case, 2018

(5) Makhan v. State of Gujarat, 1971

(6) Ram Narain Singh v. State of Punjab, 1975

(7) State of Haryana v. Bhagirath & Ors., 1999

(8) Mohd. Aman, Babu Khan And Another vs State Of Rajasthan, 1997

(9) State of U.P. v. Hari Chand, 2009

(10) State vs azam @ rihan, 2016

(11) Piara Singh vs state of Punjab, 1969

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