ULB Expert Evidence

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EXPERT EVIDENCE

- by Justice U. L. Bhat

Section 45 of Evidence Act states, inter alia, 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 subjects are relevant facts. Such persons are

called experts. According to Section 46, facts not otherwise

relevant, are relevant, if they support or are inconsistent with

opinions of experts, when such opinions are relevant. Section 51

states that whenever the opinion of any living persons is

relevant, the ground on which such opinion is based are also

relevant. Section 57 states, inter alia, that on all matters of

public history, literature, science or art the Court may resort for

its aid to appropriate books or documents of reference. Section

60 states, inter alia, that oral evidence must be direct, that is to

say, if it refers to an opinion or to the grounds on which that

opinion is held, it must be the evidence of the person who holds

that opinion on those grounds; but opinion of expert in any book

commonly offered for sale, and the grounds on which such

opinion is held, may be proved by the production of the book if

the author is dead or cannot be found or is otherwise unavailableto give evidence. Section 159 enables an expert to refresh his

memory by reference to personal treatises.

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2. The general rule regarding oral evidence is the one

contained in Sec.60 i.e., a witness has only to state facts, which

he has seen, heard or perceived i.e., facts immediately within his

knowledge and excludes opinion of a witness. Formation ofopinion or conclusion is the function of the judge. Section 45

dealing with expert evidence is an exception to the general rule.

Opinion of an expert is the statement of an inference by him as to

the existence or otherwise of a fact in issue, based upon other

facts presented directly to his senses. The reason behind the rule

is that judges do not have expertise in technical or scientific

mattes and have to be assisted by skilled persons. Expert is a

person who has special knowledge and skill in the particular

subject to which the enquiry relates. The words science and

art have to be construed broadly. Science or art would

include all branches of human knowledge requiring a course of

special study, skill or experience. Thus study of footprints has

been accepted as a science. See AIR 1959 Patna 534. Supreme

Court held in AIR 1952 S.C. 343 that evidence of expert in

typewriting is not admissible. This view may require

reconsideration. Poroscopy i.e., count of the pores the number

and distribution of these minute orifices being completely

individual. Impossibility of today becomes the common place of

tomorrow.

3. The competency of the expert is a matter of proof. He

must be shown to be an expert. In America voire diare i.e.,

preliminary examination is allowed for ascertaining the

qualifications of the expert. In India, that is not allowed. As

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observed by Lord Russel in AIR 1931 P.C. 189, the question is,

is he peritus, is he skilled? Has he adequate knowledge? But he

need not have acquired his knowledge professionally. It is

sufficient if he has made a special study of the subject oracquired special experience therein (1894) 2 K.B. 766. If there is

no evidence of nature of training received by him and

qualifications, he is no expert. AIR 1977 SC 1694, AIR 1976 SC

69, 1980 I SCC 460, 1979 II KLJ 458, AIR 1979 SC 1890.

Doctor who performs autopsy is a witness of fact also. It is a

check on eye-witnesses. AIR 1960 SC 706. The following

persons have been held to be experts Asst. Mist Master (AIR

1935 Oudh 610), Surveyor or broker regarding value of property

(AIR 1924 Lahore 548, ILR 33 Bombay 325), Excise Officer who is

able to distinguish liquors (AIR 1935 Nag. 13), Excise Officer who

is able to distinguish liquor and illicit liquor (AIR 1959 All. 53

AIR 1974 SC 639). Excise Officer regarding wash (AIR 1959 M

450), Medical Doctors, experienced photographers (AIR 1958

Mysore 150), Chemical Examiner, Serologist etc. Goldsmith who

bases his opinion on test by touchstone is an expert. (AIR 1983

SC 168 1972 Crl.L.J. 406 (Mys.)). His opinion about purity

must be supported by data. (1972 Crl.L.J. 1135). They must

indicate their qualification and experience. (1975 Crl.L.J. 948).

4. Expert has to state his opinion and the facts which he

noticed and on which his opinion is based. His testimony

regarding the facts noticed is the testimony of an ordinary

witness (Doctor describing injuries) while statement of his opinion

is as an expert (opinion as to cause of death, nature of weapon

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used, time of death, whether injuries are ante mortem etc.).

Nevertheless, it has to be recognized that in certain cases, even

the perception of facts may require expertise (compare injuries

described in inquest report and autopsy certificate). When theexpert himself collects the special facts, that part of his

testimony could also be treated as expert testimony. Expert can

also give opinion on the basis of data collected by other experts

or proved by ordinary witnesses (hypothetical questions See AIR

1956 Bombay 424). The facts perceived by him, his opinion, the

grounds for the opinion are relevant. Fact, under Section 3,

includes any mental condition of which any person is conscious.

Illustration (d) says that a person holds a certain opinion is a fact.

That Modi holds a certain opinion can be relied on by the expert

by citing passages from Modi. Expert may rely on facts relating

to other similar cases, in support of his opinion. See illustration

(a) to section 46. Opinion of expert as to the existence of facts

on which his opinion is based is not relevant, unless perceived by

himself. Those facts have to be proved by other evidence. See

ILR 9 Cal. 455, ILR 15 Cal. 589, AIR 1941 Madras 326. Expert

should not be asked his opinion on other evidence in this case.

No hypothetical questions can be asked without foundation in

evidence. Expert cannot determine the very question which is to

be decided by court. If an expert is to be contradicted by an

opinion in a treatise, his attention must be drawn to the relevant

passages. (See AIR 1957 SC 589 19 Cr..L.J. 753 AIR 1980

SC 559 AIR 1977 SC 1307).

5. Necessity for expert evidence:

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Science is becoming increasingly important in criminal

investigation; so much as we have increasing number of forensic

laboratories. Experts are even attached to police organisations

or more and more policemen are being trained as experts. E.g., Ithas been found that individual copper wire has distinctive marks;

nicks on the blade of a knife can match the window forced upon

by a knife; blood stains can be seen through infra red rays, grass

stains, power grains, hair etc., can be removed from clothes and

identified. Identification can be made by superimposition

process, blood can be matched etc. Expert evidence can play an

important role in identification, particularly where the body is

uncognizably decomposed or only bones remain. It can be found

out if the remains are of a male or female, of a young, middle

aged or old person. It can disclose an old but recognizable injury,

missing tooth or deformity. Superimposition process can yield

useful results. Expert evidence can be useful in identification of

living persons. Science relating to blood, handwriting,

fingerprints, foot prints, poroscopy can be helpful. Identification

of weapon can be helped by experts, particularly in the case of

fire arms. (It may be necessary to show that injuries on a body

are likely to have been caused by the weapon with which and the

manner in which they are alleged to have been caused). Medical

jurist can throw a flood of light on intoxication and its degree, the

nature of injuries, manner of infliction of injuries, nature of

weapon used, ante-mortem nature of injuries, degree of force

sued, time of death, cause of death, whether injuries are self-

inflicted, suicidal, homicidal or accidental, age of injuries,

whether a child was born alive or dead, age of a raped girl,

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whether there was rape etc. Chemical examiner can tell us if

viscera contains poison and the particular kind of poison,

presence and percentage of alcohol etc. Hence the importance

of expert assistance cannot be overemphasized.6. Case of suspected homicide:

In case of death by physical violence, medical cause of

death could be syncope, shock, asphyxia or coma. Syncope is

caused by sudden and excessive hemorrhage from wounds of

large blood vessels or internal organs. Shock inhibits action of

heart from sudden freight, blows on the head or on the

epigastrium or from extensive injuries to the spine or other parts

of the body. Asphyxia on account of physical violence is due to

mechanical obstruction of air passages by blocking their lumen

from within as in suffocation and drowning or by their

compression from without as in strangulation or hanging or

stoppage of movements of the chest resulting from mechanical

pressure on the chest or abdomen or collapse of the lungs from

punctuating wounds of the thorax. Coma due to physical

violence is due to compression of the brain from injuries of the

brain or its membranes or effusion of blood on or in the brain

consequent on fracture of the skull.

7. Death by some pathological condition must be ruled out.

A simple injury could have fatal consequence in case of diseased

spleen or other organ. In case of several injuries (perhaps

inflicted by several persons) it is necessary to know which

particular injury was fatal. Where an injured dies after a longer or

shorter period, the expert must all the more be careful. In such a

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case it is important to distinguish between the purely medical

aspect of the immediate cause of death from the medico-legal

question as to whether death could be strictly and clearly

traceable to the injury. Where disease intervenes, it is necessaryto know if the supervening disease was itself the direct and

natural result of the wound. Expert evidence assumes greater

importance where the immediate cause of death is an operation

necessitated by the injury. In such a case necessity for the

operation and skill employed are relevant.

8. Death by asphyxia could be due to drowning, hanging,

strangulation or suffocation. In the case of drowning it is

necessary to know if the person was dead before being thrown

into water. In the case of hanging care must be taken to see if

dead body or living person was hanged. In cases of poisoning,

death could be caused by syncope, asphyxia, syncope or coma,

according to the nature and action of poison (poisoning by

strychnine asphyxia, byopium or alcohol coma). Expert is

expected to have a good general knowledge of various poisons

and their effect and symptoms. The ultimate opinion is the result

of medical as well as chemical examination.

9. In appreciating expert evidence, the first question to be

answered is whether he is an expert. It must be verified whether

any part of his evidence is inadmissible in view of the provisions

of Evidence Act. His opinion and grounds for his opinion must be

tested, as he is liable to err. Bias cannot be assumed; it has to be

proved. Other evidence in the case could be tested with the aid

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of expert evidence. Nevertheless, experts evidence is only a

piece of evidence. It will have to be considered along with other

evidence. Which is the main evidence and which is the

corroborative evidence depends upon facts and circumstances ofeach case. (See AIR 1954 A.P. 39). Generally speaking, expert

evidence has a corroborative value only. Ocular or other

evidence, if cogent and acceptable could be preferred to expert

evidence. (See AIR 1960 S.C. 500). It is a check on other

evidence. It is also independent evidence since it establishes

certain facts. (AIR 1960 S.C. 706).

10. Medical and Chemical examination:

In AIR 1961 S.C. 1805, Supreme Court held that to

furnish evidence is not equivalent to to be compelled to be a

witness against himself within the meaning of Article 20(3) of

the Constitution. It is thus indicated that there is no legal bar to

subjecting an accused to medical examination for purpose of

criminal investigation. It stands on the same footing as taking

specimen handwriting, thumb impressions, foot prints etc. An

accused in custody, suspected to be of unsound could be directed

by the Court to be kept under observation in a hospital. During

investigation, an accused can be medically examined for

detention of intoxicated condition. Injured in an occurrence,

including accused can be sent for medical treatment. In medico-

legal cases, great care must be taken to ensure thorough clinical

and specialised examination (suspected fracture X ray

examination). In the case of victims of indecent assault and rape

or attempted rape, medical (and chemical re: objects)

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examination of the victim and the offender is of the highest

importance. In the case of some contraband goods, chemical

examination will yield good results i.e., liquor, opium, drugs, etc.

Medical examination can be made and tests can be performed todetermine age e.g., X-ray examination, growth of hair on the

pubes, development of organs. Ossification is perhaps the most

reliable test. Blood grouping gives negative indication of

paternity.

11. Importance of a thorough post-mortem examination in

the case of suspected unnatural death cannot be overstressed. If

autopsy is held in location, Doctor should also note condition and

position of body, position of any weapon found on the same, the

condition of the clothing and the beeja. Careful examination of

wounds, to find out nature (incised, incised looking, lacerated

etc.,) direction of the wound (to detect manner of stab or cut)

must be conducted. It is relevant to note if the body is warm or

cold, rigid or plaint, contents of digestive organs and condition of

all internal organs. Other particulars like sex, colour, indications

of age, deformities and abnormalities, colour of hair may be

relevant, particularly in the case of unidentified bodies. All

necessary data to determine time of death have to be collected.

In case of death of infant, all relevant data having a bearing on

the question whether the body was born alive or not have to be

collected. In case of suspected poisoning and in cases without

injuries, viscera must be preserved and sent for chemical

examination. Post mortem findings must be reduced to writing

and correctly interpreted. Injuries must be categorised as simple

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or grievous, likely to cause death, sufficient in the ordinary

course of nature to cause death or necessarily fatal. Internal

injuries msut be carefully describe. Condition of chambers of

heart and other internal organs must be thoroughly examined.Exudation from orifices must be recorded.

12. Ordinarily the medical expert has to be examined in

court subject to Section 291 of Code of Criminal Procedure.

Autopsy report or wound report is admissible under Section 32(2)

of Evidence Act. Post mortem notes and case sheets can be

secured in appropriate cases; so also X-ray photographs and

other relevant records.

13. Importance of medical evidence in homicidal cases.

Case of conflict of evidence. Attempt to reconcile. (1986 Kerala

L.J. 598 AIR 1984 SC 1233 AIR 1983 SC 484). Limitations

of Medical Evidence explained. AIR 1960 SC 706.

14. Regarding cause of death and also mens rea medical

evidence is of crucial significance. Prosecutor has the duty to

place relevant medical evidence before Court. When the Doctor

who performed post-mortem is before Court, it is the duty of the

prosecutor to bring out all necessary particulars regarding the

injuries, their size, nature and effect. Prosecutor should show

alleged weapon to the Doctor and elicit from him whether it

would or would not be possible for such an injury being caused by

such a weapon and the reason for the opinion. (See AIR 1976 SC

2423 1958 Kerala L.J 273 1983 Kerala L.J Sh.No.43 1976

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SCC 788). It is also his duty to elicit from the expert all materials

which would help the Court to arrive at a conclusion regarding

the degree of culpability of the act involved in the case. The

injury may be necessarily fatal or it may be only of such a natureas likely to cause death. Attention of the expert must be drawn

to these differences. Opinion given by the expert must be

supported by reasons which can be tested by the Court (See

1982 Kerala L.T. S.N. 5). Medical jurisprudence is not an exact

science. (See AIR 1977 SC 1309).

15. The Court has a duty to put questions to witnesses when

it is necessary to do so. This is much more so in the case of

expert witnesses. The Court has to be vigilant and see that all

materials are elicited from expert witnesses, to enable the Court

to arrive at a just and correct decision. Where the prosecutor

fails to discharge his duties by putting necessary questions to

expert witnesses it is the duty of the Court to put such questions

and bring the relevant material on record. This must be done

without any hint or partisanship and in a just and fair manner.

(See 1980 Kerala LT S.N. 42 AIR 1981 SC 1036 and 1987(1)

Kerala LT 130). Dynamic role of Court. (1983 Kerala LT S.N. 43).

There is no irrebuttable presumption that a medical witness is

always a witness of truth (See AIR 1983 S.C. 66).

16. Chemical Examination , Explosive Expert , Public

Analyst:

Section 293 of Code of Criminal Procedure states that report

of Chemical Examiner or Asst. Chemical Examiner to

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Government, Chief Inspetor of Explosives or Director of F.B.

Bureau and Haffkeine Institute, Bombay, Director (Deputy &

Assistant) of Central or State Forensic Science Laboratory,

serologist upon any matter or thing submitted to him forexamination or analysis and report in the course of any

proceedings under the Code may be used as evidence. Court

may, if it thinks fit, and shall on application of either party,

summon and examine him as to the subject matter of the report.

According to Section 292, report of any notified gazetted officer

of the Mint or of India Security press (including office of controller

of Stamps and Stationery) may be used as evidence. Expert can

be summoned. (See restrictions in Sub-Section 3). Section 13 of

PFA Act requires Public Analyst to deliver a report of analysis. It

contemplates sending a sample to Director of Central Food

Laboratory. Their reports may be used as evidence. But there

must be proof of identity of articles sent to their experts.

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