1

CHAPTER 5 OPINIONS OF THIRD PERSONS WHEN RELEVANT Content 5.1 Opinions of Experts 2 6 7 7 8 16 17 18 25 26 26

5.1.1 Handwriting Expert 5.1.2 Opinions of Arms Expert 5.1.3 Opinions of Finger print Expert 5.1.4 Opinions of Medical Officers 5.1.5 Report of Chemical Examiner 5.1.6 Foreign Law 5.2 Persons acquainted with handwriting

Key Terms Assignment Questions Short Questions

CHAPTER 5 () OPINIONS OF THIRD PERSONS WHEN RELEVANT

5.1 ( )

Opinions of Experts ( )

In criminal trial an opinion of a common witness relating to the matter of facts in criminal proceeding is not admissible in evidence. The oral evidence of an witness must be direct, that is to say if it refers to a fact which could be heard, it must be the evidence of witness who saw it, if it refers to a fact which could be heard , it must be the evidence of a witness says he heard it . Therefore the opinion of an ordinary witness is irrelevant in a criminal proceeding.

Under section (45) of evidence Act, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger impressions, the opinion upon that point of persons specially skilled in such

foreign law, science or art, or in question as to identity of handwriting or finger impressions are relevant facts. ( )

Such person is called experts. An "expert" witness is one who had devoted time and study to a special branch of learning and thus is especially skilled on that point on which he is asked to state his opinion. His evidence on such points is admissible to enable the tribunal come to a satisfactory conclusion. All persons who practice a business or profession which requires them to possess ascertain knowledge of the matter in hand are experts, so far as expertness is required.

Experis

Illustrations (i)The question is whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by when A is supposed to have died are relevant. ()

(ii) The question is whether A at the time of doing a certain act was by of reason of unsound of mind incapable of knowing the nature of act or that he was doing what was either wrong or contrary to law. The opinion of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind and whether such unsoundness of mind usually renders persons incapable of knowing the nature or acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant. ()

(iii)The question is whether a certain document was written by A.

Another

document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person, or different person, are relevant. ()

Under section (46) of Evidence Act, facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. ( )

For example: The question is, whether A was poisoned by a certain poison. The fact that other persons, were poisoned by that poison, exhibited certain symptoms which experts affirm or deny being the symptoms of that poison is relevant.

5.1.1 Handwriting Expert

The opinion of handwriting expert is relevant and admissible in evidence under section (45) of Evidence Act. The opinions of hand writing experts on the question whether the two documents were written by the same person or by different persons, are relevant and admissible in evidence. ( )

The evidence value of the handwriting expert is as follows: - In the case of "Tin Shwe V. the Union of Myanmar",1 It was held "comparison of hand writing with a view to discover the identity of writer, regarded as a science, is much less developed than the comparison of finger- print as a reliable form of identification of a person the same can hardly be said of handwriting. The correct approach is to regard the opinion of handwriting experts as strong corroboration generally.
*

1 *

1954, B. L .R. 358 - (

5.1.2 Opinions of Arms Expert

Opinions of arms expert are opinions on scientific question. Therefore, opinions of an arms expert are relevant and admissible in evidence under section (45) of Evidence Act. ( )

5.1.3 Opinions of Fingerprint Expert

The reason as well as opinion given by a fingerprint expert as to the identity of a palm impression is admissible in evidence. The evidence given by a fingerprint expert need not necessarily be corroborate but the court must satisfy itself as to the value of the evidence of expert in the same way as it must satisfy of the value of other evidence.

-( )

5.1.4 Opinions of Medical Officers

Offences affection human body life, such as culpable homicide, murder, hurt and grievous hurt cause a breach of the peace of human society. In order to decide such kind of cased the court need medical certificates or Opinions of medical officers.

In criminal trials, medical reports, medical certificates and an opinion of medical officers attached to the proceeding of the case fits, as evidence. Such kinds of evidence are evidences of opinions of expert under section (45) of Evidence Act.

-( )

Evidence of opinions of medical officer is of two kinds such as-

(1) documentary evidence and () (2) oral evidence ()

Documentary Evidence Oral Evidence

10

1. ()

Document Evidence

Document evidence can be classified as follows;

(i) (ii) (iii)

Medical Certificate Medico-legal reports and Dying declaration.

( ) ( ) ( )

Medical Certificate Medical certificate shows the physical condition of a person, the nature of a disease whether temporary or permanent the effect of disease or of physical injuries upon the body or mind. Death certificate is also included. Such kind of medical certificates are ordinary certificates. Such medical certificates are issued by medical officers resisted under Medical Council Act. Such certificates are not admissible in evidence.

Medical Certificate Medicolegal Reports Dying Declaration

11

Medico-Legal Reports

These are the formal reports of an examination made by a medical man under a warrant from a Magistrate or authorized police officer in case of assault, murder, etc. These reports should always be prepared with the utmost care. The first part of the report should gave

(1) Date place of examination and name of the witness.

(2) External examination

(3) Internal examination in fatal case.

12

(4) Reasoned Opinion giving the inference drawn.

(5) Signature of reporter

Second part of medico-legal report has the opinion of medical officer the opinion based on the facts noted should be stated briefly and clearly and given with the utmost caution. For the apparent or alleged cause of injury or death is not always the real one. It is a common practice to hang up the dead body of person who has been murdered so as to create a suspicion of suicide. Both of the above classes of documents require to be sworn to orally as true by the person who drew them up, in the accepted without oral evidence in Court.

13

(iii)Dying Declaration ( )

2. ()

Oral Evidence

The medical officer gives oral evidence in court before he produces document. The evidence must is all case be direct i.e. if it refers to a fact which could be seen, heard, or perceived in any other manner, it must be the evidence of a witness who says he saw, he heard or so perceived it. So oral evidence must be direct, according to the section (60) of Evidence Act.

-( ) Under Section (509) of Criminal Procedure Code, the deposition of a civil surgeon or other Medical Witness, taken and attested by a Magistrate in the presence of the accused or taken on commission, may be given in evidence in any inquiry trial or other proceeding under this code, although the deponent is not called as witness. The Court may it think fit summon and examine such deponent as to the subject-matter of his deposition.

14

( )

15

( ( )

) ( )

()

16

5.1.5 Report of Chemical Examiner

Under section (510) Criminal Procedure Code: "Any document purporting to be a report under the aid of any chemical examiner or assistant chemical examine to Government. Upon any matter or thing duty summited to him for examination or analysis and report in the course any proceeding under this code, may be used as evidence is any inquiry trial or other proceeding under this code". Chemical report does not require being sworn to orally as true by the who drew them up. Under section (45) chemical examiner is a person who especially skilled science. Therefore an opinion of chemical examiner is admissible in evidence.

( )

17

( )

The report of chemical examiner is essential in some case, send up for trial. Narcotic drugs and Psychotropic substance law, section (15), (16), (19), (20) and section (376) the Penal Code.

5.1.6 Foreign Law

Under Section (45) of "Evidence Act, the statement by a person who specially skilled in foreign law is admissible in evidence. Foreign law is law which is not in force in Union of Myanmar. The Shiah law on marriage is now in force in India. The Shiah law cannot be called as foreign law in India. The statement of a person who special skilled in the Shiah Law in India cannot be admitted in evidence under Section (45). The foreign law may be proved by the evidence of person especially skilled in it. Also the foreign law may be proved by direct reference to books printed or publish under the authority of the foreign Government. It is the duty of Courts.

18

( )

( )

5.2

Persons acquainted with handwriting

Just as the opinion of experts admissible in evidence opinions of persons mention in section (47.to 51) in Evidence Act are admissible.

()

When the Court has to form an opinion to the handwriting of any person the opinion of person acquainted with handwriting of such person is admissible in

Shiah Law

19

evidence under section (47) of Evidence Act. A person is said to be acquainted with the handwriting of another person.

( (1) when he had seen that person write, or, ()

(2) when he had received document purporting to be written by that person in answer to document written by himself or under his authority and addressed to that person, or () (3) when the ordinary course of business, documents purporting to be written by that person have been habitually sumitted to him. () ( )

Illustration The question is, whether a given letter is in the hand writing of A, a merchant in London. B is a marchant in Yangon who has written letters addressed to A and received letters purporting to be written by him.

20

C is Bs clerk whose duty it was to examine and file Bs correspondence, D is Bs broker whom B habitually submitted the letters purporting to be written by A for the purpose of advising with his thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant though neither B, C nor D ever saw A write.

So an opinion of a person acquainted with such handwriting is admissible in evidence. A person acquainted with handwriting can be given his opinion handwriting expert. A handwriting expert specially skilled in knowledge of handwriting can give his opinion though he never has seen that person write. A person acquainted with handwriting can give his opinions because he has seen that person write or when he has received document purporting written by that person.

21

Under Section (48) of Evidence Act, opinions of person who are in a position to know the existence of a general custom or right in their locality are admissible.

Explanation The expression general custom or right includes customs or rights common to any considerable class of person.

Illustration The question is, whether a well can be used common to all class of person or not. Under this section, the question is concerned with general custom or right.

Under Section (49) of Evidence Act, the opinions of person who have special means of knowledge as to (a) usages (b) tenets, of anybody or men or

22

family (c) constitution of any religious foundation, (d) meaning of words or terms used in a district, are admissible in evidence."

Under section (50) of Evidence Act, - when the Court has to form an opinion as to the usages and tents of any body of men or family, the opinions of persons having special means of knowledge thereon are relevant facts. Such opinion shall not be sufficient to prove a marriage in proceeding under the Divorce Act or in prosecutions under section (494), (495,497) or (498) of the Penal Code.

-( )

Illustrations (1) The question is whether Maung Phyu and Ma Ni were married.

23

The fact that they were usually received and treated by their friends as husband and wife is relevant. ()

(2)

The question is whether Maung Phyu was the legitimate son of U Nyo. The

fact that Maung Phyu was always treated as such by members of the family is relevant. ()

Under Section (51) of Evidence Act, whenever the opinion of any living person is relevant, the ground on which such opinion is based is also relevant. ()

Studying the facts which had shown above as a whole, though the opinion of expert is admissible in evidence, but that is not an only basis to prove. To decide a case, the opinion of expert must be corroborated with the evidence of eyedwitness. The opinion of expert and the evidence of eyed-witness must be depended on each other. Just as the opinion of expert, the opinion of a person acquainted with handwriting and a person having special means of knowledge can be regarded as an evidence to decide the case.

24

25

Key Terms Hand writing expert Finger print Symptoms Temporary Permanent Assault Fatal case Perceived Attested Copy Deponent Sworn Corroboration Footprint Culpable homicide Medical certificate Dying declaration

26

Assignment Questions 1. Explain the followings: (a) (b) (c) Hand writing expert. Fingerprint expert. Medicial officer.

2. Is the opinion of fingerprint expert admissible as an evidence, if he made a statement before Court that the fingerprint on a dagger which was found where the offence was occurred and the fingerprint of Maung Maung just exactly alike by compared the two fingerprint? Answer with reference. 3. How do you prove if the letter of threatening and demanding for some money from U Ba to U Mya the handwriting expert cannot given his opinions that the handwriting in the letter handwriting? is not same as U Bas

Short Questions 1. Write short notes (a) (b) (c) Handwriting expert Fingerprint expert Doctor

2. How many kinds of opinions of Medical Officer are there? Discuss the document evidence. 3. Describe the medical certificate.

27

4. Explain the foreign law. 5. Discuss the medico-legal reports. 6. What is the report of chemical examiner?