Difference between revisions of "Facts bearing upon opinions of experts"

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A witness who is summoned to court for giving testimony is typically expected to state only facts. He/she does not give any opinion as it is the job of the court to form an opinion in the case. Furthermore, if a person is asked to give his testimony then it is expected that the person must be factually related to the case and not merely a third party. But there is an exception to this rule just like there are exceptions to many other rules. The experts are considered as witnesses even though they are not actually related to the case. The courts summon these experts to give an opinion regarding the case to aid the court in having a wider perspective to provide justice. The rationale behind giving the experts an exception is that it is not practical to expected judges to have adequate knowledge concerning certain topic, say for example medical issues[1] . In such cases, the court cannot form a correct judgement without the help of a person with special experience or skills in that particular subject. The court calls for an expert, a specially skilled person when it needs an opinion in a subject which requires special assistance. This opinion given by a third person is considered as relevant facts if that person testifying is an expert in that field. 'Section 46 of the Indian Evidence Act, 1872 Facts bearing upon opinions of experts.—Facts not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. Illustrations (a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that person, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant. (b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant. COMMENTS tc "COMMENTS" Admissibility The science of identification of footprints is not a fully developed science and therefore if in a given case, evidence relating to the same is found satisfactory it may be used only to reinforce the conclusions as to the identity of a culprit already arrived at on the basis of other evidence; Mohd. Aman v. State of Rajasthan, (1997) 4 Supreme 635.' Section 46 lays down the principles that when the opinion of experts is relevant, any fact which is otherwise irrelevant will become relevant if it either supports or contradicts the opinion of experts. When an opinion of the experts is cited and declared to be relevant the parties have right to produce additional evidences to support or rebut the opinion of the experts. For example— ‘A’ was poisoned by a certain poison. A medical expert established that the certain type of poison resulted in death of ‘A’. Evidence may be given to that effect that other persons were also administered poison by that person, exhibited symptoms which the medical expert affirms or denies to the symptom of that person, is relevant. Thus, where the opinion of an expert is contradicted the evidences of outstanding qualities may be allowed to be produced. In State of Haryana v Bagirath it was held that the court is not bound by the opinion of the medical expert, but has to form its own opinion. In this case, the medical witness ruled out the possibility of two successive blows by a sharp weapon falling at the same time. The court rejected this opinion and accepted the prosecution version. Where there is some variance between the medical evidence and the evidence of an eye witness, the court should not take the easy way of giving benefit of doubt to the accused. It is treated that where the eye-witnesses account is found credible and trustworthy medical opinion pointing to alternative possibilities is not accepted as conclusive

Who is an Expert? In Bal Krishna Das Agrawal v. Radha Devi and Ors. AIR 1989 All. 133 the court defined expert 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. According to section 45, the court refers to the opinion of experts or person specially skilled in science, art, foreign law are admissible. Thus the opinion of experts plays an important role in the matter of evidence and enables the court to arrive at a proper conclusion.

If an expert is giving an opinion, it is considered as a relevant fact for the case. An expert has devoted his time in learning a special branch of expertise and thus is specially skilled in the subject. It can include: • Superior knowledge, and • Practical experience The court of law, before admitting any of the opinion made by an expert, needs to ensure that the person is an expert under the law. If it is found that the person is not an expert, his opinion is discarded by the court. For checking that the witness is an expert, he must be examined and cross-examined (Balkrishna Das Agarwal v. Radha Devi, AIR 1989 All 133). A person becomes an expert by: • Practice, • Observation, or • Experience In the case of Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors., (Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors., [2009] INSC 1569) the court stated that the first and foremost requirement for 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 layman. People who can be termed as an expert are explained in detail below. In the case of Jarnail Singh v. State of Punjab ,1999 it was held that requirement of expert evidence about test firing to find out whether double barrel gun is in working condition or not, not necessary Whereas in the case of Mohd Zahid v. State of Tamil Nadu,199 it was stated that 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.


Duty of 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.

The Relevance of an Expert’s Opinion : The data given by the expert are relevant and admissible. If any oral evidence contradicts the data/ report; it will not make the data evidence obsolete. But, as per section 46, in case any fact is in contradiction to the opinion of the expert, that fact becomes relevant. If the opinion of the expert is relevant, the contradictory fact becomes relevant even though it was not relevant as such. The value of expert opinion depends upon the facts on which he is based and the competency of such expert in forming a reliable opinion.

If a judge relies upon the opinion of the expert only and not on the facts and the testimony of ordinary witnesses to give judgement then is the weakness of the case. This is because even if a person is an expert in his field, he cannot be termed as a direct witness and cannot give a statement on the facts of the case. He is just giving an opinion as per the evidences given to him and cannot draw a conclusion regarding the guilt of the accused in all the cases. The evidence given by the expert is just an opinion and is not a fact-based testimony and thus are given slight value. This is the reason that eye-witnesses or other factual witnesses are given a priority over the expert’s opinion. This is because opinion evidence cannot supersede substantive evidence. No expert can claim that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of the question put to him.[2]

It is interesting to note that an expert’s report cannot be questioned in the court. The report is questioned when the ability and knowledge of the expert to make that report is in question. The experts are judged with a different eye by the court since they are just giving an opinion and are not aware of the facts of the case. But still, an expert’s opinion matters as the court has no knowledge of that particular field of expertise and they will not be able to impart justice without seeing the other side of the coin.

  1. Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence. Legal service India.com
  2. he State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14