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BY
DEVASHISH DHARIWAL
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DECLARATION
I, Devashish Dhariwal, do hereby declare that, this project work titled “Critically Analysis
The Provision Of "Opinions Of Third Persons & Its Relavancy"” is an outcome of the
research conducted by me under the guidance of MS. Tanushree Rao (Asst. Prof., Law of
Evidence) at S.S Jain Subodh Law College in fulfilment for the award of the degree of B.A.
LL.B at the University of Rajasthan.
I also declare that, this work is original, except where assistance from other sources has been
taken and necessary acknowledgements for the same have been made at appropriate places. I
further declare that, this work hasn’t been submitted either in whole or in part, for any degree
or equivalent in any other institution.
Place: Jaipur
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CERTIFICATE
This is to certify that the project work titled “Critically Analysis The Provision Of "Opinions
Of Third Persons & Its Relavancy"” submitted by Devashish Dhariwal in fulfilment for the
award of the degree of B.A. LL.B at S.S Jain Subodh Law College is the product of research
carried out under my guidance and supervision.
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ACKNOWLEDGEMENT
I acknowledge with profundity, my obligation to Almighty God and my parents for giving me
the grace to accomplish my work, without which this project would not have been possible
I express my heartfelt gratitude to my respected faculty, MS. Tanushree Rao (Asst. Prof. of
Law of Crimes) for providing me with valuable suggestions to complete this project work.
I am especially grateful to all my faculty members at S.S Jain Subodh Law College who have
helped me imbibe the basic research and writing skills.
Lastly, I take upon myself, the drawbacks and limitations of this study, if any.
Devashish Dhariwal
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TABLE OF CONTENTS
1. Statement of Problem vi
2. Research methodology vii
Hypothesis
Objectives
Research Design
Locale of Study
Sources of Data Collection
3. Introduction
4. Who is an expert?
6. Conclusion
7. Bibliography
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STATEMENT OF RESEARCH PROBLEM
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RESEARCH METHODOLOGY
OBJECTIVES:
To understand the concept of Third Person Opinion.
To understand the importance of Expert.
To Critically Analysis The Provision Of "Opinions Of Third Persons & Its
Relavancy".
HYPOTHESIS: Critically Analysis The Provision Of "Opinions Of Third Persons & Its
Relavancy" under Evidence Act suggests presumption as to genuineness and is integral part
of evidence law.
RESEARCH DESIGN: The study of this topic is based on doctrinal method and its
explanation. The researcher has followed a descriptive approach for the purpose of
explanation. This study is non-empirical.
LOCALE OF STUDY:
This project works discusses The Provision Of "Opinions Of Third Persons & Its Relavancy"
under Evidence law. The project focuses on types of opinions and its relevance in
administration of justice.
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Introduction
Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion
of third persons, which is commonly called in our day to day practice as expert’s opinion.
These provisions are exceptional in nature to the general rule that evidence is to be given of
the facts only which are within the knowledge of a witness. The exception is based on the
principle that the court can’t form opinion on the matters, which are technically complicated
and professionally sophisticated, without assistance of the persons who have acquired special
knowledge and skill on those matters. Conditions for admitting an expert opinion are
following:-
Who is an expert?
The definition of an expert may be referred from the provision of Sec.45 of Indian Evidence
Act that an ‘Expert’ means a person who has special knowledge, skill or experience in any of
the following----
1) foreign law,
2) science
3) art
4) handwriting or
5) finger impression
For example, medical officer, chemical analyst, explosive expert, ballistic expert, fingerprint
expert etc.
According to Sec.45, the definition of an expert is confined only to the five subjects or fields
as mentioned above. But practically there are some more subjects or fields on which court
may seek opinion an expert.
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An expert witness is one who has devoted time and study to a special branch of learning and
thus he is specially skilled on those points on which he is asked to state his opinion. His
evidence on such points is admissible to enable the court to come to a satisfactory conclusion.
M. Monir
:-
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.
b) Opinion evidence [it is only an inference drawn from the data and it would not get
precedence over the direct eye-witness testimony unless the inconsistency between the two is
so great as to falsify the oral evidence] --[Arshad v. State of A.P. 1996 CrLJ 2893 (para34)
(AP)]
Expert evidence is opinion evidence and it can’t take the place of substantive evidence. It is a
rule of procedure that expert evidence must be corroborated either by clear direct evidence or
by circumstantial evidence.
It is not safe to rely upon this type of evidence without seeking independent and reliable
corroboration -- [S.Gopal Reddy v. State of A.P. AIR 1996 SC2184 (Para27)]
1. Expert gives his opinion regarding 1. An ordinary witness states the fact relating
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handwriting, finger impression, nature of to the incident.
injury etc.
2. Witness states the facts. Opinion of a
2. It is advisory in character.
witness is not admissible.
3. Court can’t pass an order of conviction 3. Court may pass an order of conviction on
on the basis of expert opinion, as because it is the basis of evidence of ocular witness (eye
not conclusive. witness).
4. Expert gives his opinion on the basis of 4. A witness gives actual facts connected
his experience, special knowledge or skill in with the incident what he had seen or heard or
the field. perceived.
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document is not sufficient. relevant.
Considering the provisions of Indian Evidence Act, judicial precedents and our day to day
practice it may be submitted that the following kinds of expert opinion may be relevant:-
1) Foreign law:-
Foreign law can be proved –
a) by the evidence of a person specially skilled in it and
b) by direct reference to the books printed or published under the authority of the foreign
government.
2) Science or art:-
The Science or art includes all subjects on which a course of special study or experience is
necessary to the formation of an opinion. “Science” or “art” is not limited to higher science or
fine art, but it has its original sense of handicraft, trade, profession and skill in work which
has been carried beyond the sphere of the common pursuits of life into that of the artistic and
scientific action.
The following matters are included in the ‘science’ and art and the expert opinion of these
matters are relevant:-
Medical opinion:-
The value of Medical evidence is only corroborative. A doctor acquires special knowledge of
medicine and surgery and as such he is an expert. Opinions of a medical officer, physician or
surgeon may be admitted in evidence to show--
a) Physical condition of the a person,
b) Age of a person
c) Cause of death of a person
d) Nature and effect of the disease or injuries on body or mind
e) Manner or instrument by which such injuries was caused
f) Time at which the injury or wounds have been caused.
g) Whether the injury or wounds are fatal in nature
h) Cause, symptoms and peculiarities of the disease and whether it is likely to cause death
i) Probable future consequences of an injury etc.
When there is a conflict between the medical evidence and ocular evidence, oral evidence of
an eye witness has to get primacy as medical evidence is basically opinionative. Where the
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direct evidence is not supported by the expert evidence, the evidence is wanting in the most
material part of the prosecution case and therefore, it would be difficult to convict the
accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally
inconsistent with medical evidence, it is the most fundamental defect in the prosecution case
and unless this inconsistency is reasonably explained, it is sufficient to discredit the evidence
as well as the entire case. [Mani Ram v. State of U.P. 1994 Supp (2) SCC 289,292; 1994
SCC (Cri) 1242]
Where the opinion of one medical witness is contradicted by another and both experts are
equally competent to form an opinion, the court will accept the opinion of that expert which
supports the direct evidence in the case. [Piara Singh v. State of Punjab AIR 1977 SC
2274]
3) Handwriting:-
· Like other expert opinion, the opinion of handwriting expert is advisory in nature. The
expert can compare disputed handwriting with the admitted handwriting and give his opinion
whether one person is the author of both the handwriting.
· The court shall exercise great care and caution at the time of determining the genuineness of
handwriting. A handwriting expert can certify only probability and 100% certainty. On the
question of the handwriting of a person, the opinion of a handwriting expert is relevant, but it
is not conclusive and handwriting of a person can be proved by other means also.
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4) Fingerprint expert:-
Expert opinion on fingerprints has the same value as the opinion of any other expert. The
court will not take opinion of fingerprint expert as conclusive proof but must examine his
evidence in the light of surrounding circumstances in order to satisfy itself about the guilt of
the accused in a criminal case.
5) Ballistic expert:-
A ballistic expert may trace a bullet or cartridge to a particular weapon from which it was
discharged. Forensic ballistics may also furnish opinion about the distance from which a shot
was fired and the time when the weapon was last used.
The Supreme Court held that evidence of the trainer of tracking dog is relevant and
admissible in evidence, but the evidence can’t be treated at par with the evidence of scientific
experts analyzing blood or chemicals. The reactions of blood and chemicals can’t be equated
with the behavior of dog which is an intelligent animal with many thought processes similar
to the thought processes of human beings. Whenever thought process is involved there is risk
of error and deception. The law is made clear by the Supreme Court by enunciating the
principle thatthe evidence of dog tracking is admissible, but not ordinarily of much weight
and not at par with the evidence of scientific experts.
Apart from the above fields, there are chemical analyst, explosive experts, mechanical
experts, interpreter, patent expert, hair expert etc. whose opinion is admissible in evidence.
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Admissibility of expert opinion:-
Expert opinion becomes admissible only when the expert is examined as a witness in the
court. The report of an expert is not admissible unless the expert gives reasons for forming
the opinion and his evidence is tested by cross-examination by the adverse party. But in order
to curtail the delay and expenses involved in securing assistance of experts, the law has
dispensed with examination of some scientific experts.
For example, Sec.293 Cr.P.C. provides a list of some Govt. Scientific Experts as following:-
a) Any Chemical Examiner / Asstt. Chemical examiner to the Govt.
b) The Chief Controller of explosives
c) The Director of Fingerprint Bureau
d) The Director of Haffkein Institute, Bombay
e) The Director, Dy. Director or Asstt. Director of Central and State Forensic Science
Laboratory.
f) The Serologist to the Govt.
g) Any other Govt. Scientific Experts specified by notification of the Central Govt.
The report of any of the above Govt. Scientific Experts is admissible in evidence in any
inquiry, trial or other proceeding and the court may, if it thinks fit, summon and examine any
of these experts. But his personal appearance in the court for examination as witnesses may
be exempted unless the court expressly directs him to appear personally. He may depute any
responsible officer to attend the court who is working with him and conversant with the facts
of the case and can depose in the court satisfactorily on his behalf.
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shall seek the assistance of an expert whenever he feels necessary for establishing any fact
related to the fact in issue.
The discussion or analysis as to the admissibility and relevancy of opinion of an expert under
the law of evidence can’t be complete without analyzing or interpreting the statutory
provisions (Sec.45 to Sec.51) of Indian Evidence Act. Hence the said provisions are
discussed herein below.
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exhibited similar symptoms to A’s.
On the contrary, some other experts opine
that A had died from ordinary tetanus, they
may prove that other persons who
admittedly died from the ordinary tetanus
had exhibited the same symptoms like A’s.
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said person have been
habitually submitted to him
(person acquainted).
Conclusion:-
From the above analysis it may be submitted that evidence of an expert is not a substantive
piece of evidence. The courts do not consider it conclusive. Without independent and reliable
corroboration it may have no value in the eye of law. Once the court accepts an opinion of an
expert, it ceases to be the opinion of the expert and becomes the opinion of the court.
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BIBLIOGRAPHY
Books referred:
Upkar Prakashan
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