Dr.

Ram Manohar Lohiya National Law

University

2017-2018

EVIDENCE LAW
Final draft

“ANALYSIS OF SECTION 45 OF THE INDIAN EVIDENCE

ACT IN THE LIGHT OF JUDICIAL PRONOUNCEMENTS”

Under the Guidance Of : Submitted By :

Dr. A.P. Singh Jinisha Bhatt

Mr. Vipull Vinod 5TH SEMESTER

Asst. Professor (Faculty of Law) Roll no 61

ACKNOWLEDGMENT

This project venture has been made possible due to the generous cooperation of various
persons. To list them all is not possible, even to pay them in words is beyond the domain of
my lexicon. I would like to express my sincere thanks and gratitude to Dr. A.P.Singh and Mr.
Vipull Vinod without whose thorough and insightful guidance this project work would not
have been a success.

I express my sincere thanks to the library staff of RMLNLU and my friends for their
cooperation in my endeavor.
 OBJECTIVE OF THE PROJECT

The objective of my study on the topic is to gain an in-depth knowledge of section 45 of the
Indian evidence act which deals with opinions of third persons i.e. opinion of experts. The
project will deal with various judicial pronouncements for the better analysis of the section
and to gain better understanding about the changing aspect of section 45.

RESEARCH METHODOLOGY

The research methodology adopted in this project is to collect all relevant data from various
books and internet for the better understanding of the topic. It will be a doctrinal research. The
data and information collected will be from the internet as well as from sources like books
including the course module. The research design of the present study is partially exploratory
and partially descriptive. It is exploratory in the sense that here an attempt has been made to
assess a detailed and in-depth exploratory analysis of section 45 and at the same time it is
partially descriptive.
CONTENTS

1. Introduction
2. Meaning of “expert”
3. Difference between an expert and a non-expert
4. Competency of expert
5. Science and art
6. Foreign law
7. Medical evidence
8. Conclusion
INTRODUCTION

The law of evidence allows an opinion of any person other than the judge as to the existence
of the facts in issue or facts that are relevant to a matter. The judge is not expected to be an
expert in all fields especially where the subject matters involve technical or specialized
knowledge. In these circumstances he needs the help of an expert- who has superior
knowledge or experience in relation to the subject matter. An expert is a person having
special and high level knowledge of a Particular subject. When such an individual is asked to
testify with regard to his specialized knowledge he is confined to be an expert witness. The
role of an expert witness is to assist and determine the issues in dispute by furnishing the
court with information, which is likely to be outside the knowledge and experience of the
judge. The person must gain the acceptance of the court and should testify about facts rather
than the law unless he has been asked to testify with regard to his special knowledge of law.
The judge should ensure that the expert is qualified on the disputed issue and only relevant
and reliable opinions are accepted from him or her. There is no threshold test in common law
for the admissibility of expert evidence which determine its reliability and it is at the judge’s
discretion to accept it or not.

In the modern world, expert evidence has come to play an important role in determining a
causal link between conduct and the harm suffered. An expert witness can be appointed either
by either party or by the court. Their opinion is useful in both civil and criminal cases.

As a general rule, parol evidence is not admissible as to anything not immediately within
the knowledge of the witness; he must speak of facts which happened in his presence, or
within his hearing. This rule excludes hearsay evidence. It also, as a general rule,
excludes the expression of opinion or belief. But to this rule there is a necessary exception
on questions of the identity of things or persons, or the genuineness of handwriting, where
the witness is qualified to express a credible opinion or belief on the subject.1

Till 1954 the subject of expert testimony was confined to foreign law, science, art and the
identification of handwriting or finger impressions. At one time only medical doctors,
engineers, architects, stockbrokers etc were called as expert witness. Now the science and
technology have reached such heights expert evidence is no longer confined to a select
few Scientists in many field are called upon to testify in court. As far as criminal law is
concerned ballistic experts, forensic experts, scientists who decide the legitimacy or
1
R v. Silverlock, (1894) 2 QB 766
 identity by DNA tests, chemical examiners, psychiatrists, radiologists and even track-
dogs play a vital role in the investigation of crimes.

MEANING OF “EXPERT”

Every learned man, however, high his claims to learning and knowledge may be, is not
deemed to be an expert within the meaning of section 45 of the Indian Evidence Act. In a
case, it was decided that in law and as applied to a witness, the term ‘expert’ has a special
significance; and no witness is permitted to express his opinion, unless he is an expert
within the meaning of section 45. It is prominent that under section 45, it is only when the
inquiry relates to a point of foreign law, or of science or art, or as to the identity if
handwriting or finger impressions, the opinions upon that point of persons especially
skilled are relevant. Such persons are known as experts.2 Under section 45 of the Indian
Evidence Act which states that “Opinions of experts.—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  35  [or finger impressions], the opinions upon that point of persons specially
skilled in such foreign law, science or art,  36 [or in questions as to identity of
handwriting]  35 [or finger impressions] are relevant facts. Such persons are called
experts., experts have been clearly defined.

DIFFERENCE BETWEEN AN EXPERT AND A NON-EXPERT

2
Sarkar, Law of Evidence, (Vol. 1, 16th edn., Wadhwa & Nagpur, 2008)
 Section 45 defines an expert as a person specially skilled in foreign law, etc. the test of
judging the competency of an expert as put by Lord Russell is this: “is he peritus3? Is he
skilled? Has he adequate knowledge?”4 An expert is a person who has special knowledge
and skill in a particular calling to which the inquiry relates.

Like a non-expert witness the testimony of an expert need not confine to actual facts and
he may give evidence on facts as stated by other witnesses, e.g., a doctor who might not
have seen the patient personally can opine as to the cause of his death on facts deposed.
He may speak about experiments made by him in absence of parties. The opinion of an
expert witness, however eminent in his field he may be, must not be read as conclusive of
the fact which the Court has to try.5 However, evidence of eminent literary persons as
experts can be relied upon.6

The differences between the testimony of an ordinary witness and an expert, are: (a) An
expert evidence is not confined to what actually took place but he can give his opinion as
to the cause of a person's death or injuries or the effect of a poison, on facts stated by
other witnesses at the trial of the case although he might not have personally attended on
the patient and observed things for himself; (b) he can speak to experiment made by him;
(c) he may state fact? Relating to other cases bearing similarity to the case under enquiry
in order to support his opinion; and (d) he may cite text books of accredited authority in
support of his opinion and may refresh his memories by reference to them. The expert can
give his opinion upon the genuineness of the disputed hand writing after having compared
it with specimens admitted or proved to the satisfaction of the Court to be genuine.7 

COMPETANCY OF EXPERT

3
“Peritus virtute official”, i.e., the holder of some official position which requires and, therefore, presumes a
knowledge of that law
4
U.S. Shipping Board v. Ship “St. Albans”, 1931 PC 189
5
Kamala Kuer v. Ratan Lal AIR 1971 All 304
6
Samaresh Basu v. Amal Mitra, 1985 SCC (Cr) 523
7
R. Manilal, Disputed Writings & Expert Evidence, (30th September, 2014 6:15 PM),
<http://www.scconline.com/Members/SearchResult2014.aspx>
The opinion evidence rules, as they have been applied in the past, have been subject to two
serious criticisms:8

1. First criticism concerns the procedure in the use of expert testimony.

2. The second one is that, in applying the rule barring opinions and conclusions of lay
witnesses, the Courts have been unduly strict in finding reversible error where any
such evidence has been admitted, notwithstanding the fact that common sense would
indicate that no substantial rights of parties are affected.
There is indeed no straight jacket formula to test the reliability of experts. For example,
the identification of the real expert and the impersonating of the Fakir and Charlatan pose
a constant problem in probative work. It is necessary to be on alert for persons with
limited training, questionable experience and no integrity who pose as experts and vend
their opinions to the highest financial bidder.

Though, no test is formulated in order to check the reliability of the experts yet certain
conditions must be kept in mind while testing the reliability of experts.

1. The first test should be one of educational background.

2. The next is careful examination of the exhibits and illustrations the expert makes or
brings with him.
3. The next is readiness to detail his techniques and procedures.
4. The test may be conclusive one; the real expert is conservative. He is cautious. He
phrases his conclusion to say that in all probability the handwriting exemplars were
written by the same person, but on cross-examination he admits that it is within the
realm of possibility that they are not.
In order to bring the evidence of 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

SCIENCE AND ART

8
Gopal S. Chaturvedi, Field’s Commentary On Law Of Evidence, 12th edn., Delhi Law House, vol. 3, 2005
 The section 45 speaks of persons specially skilled in science or art as experts. The words
‘science or art’ are broad terms, and it is by no means easy to determine what is, or is not
a point of science or art. Whatever it is by no means easy to determine what is, or is not a
point of science or art.9

With reference to experts in science, art, or handwriting, Mr. Taylor says: “it is in short a
general rule, that the opinion of witnesses possessing peculiar skill is admissible
whenever the subject-matter of inquiry is such that inexperienced persons are unlikely to
prove capable of forming a correct judgment upon it without such assistance; in other
words, when it so far partakes of the character of a science or art as to require a course
of previous habit or study in order to obtain a competent knowledge of its nature…”10 the
opinions of the scientific witnesses are admissible in evidence not only where they rest on
the personal observations of the witness himself and on facts within his knowledge, but
even where they are merely founded on the case as proved by other witnesses at the trial.
But a witness cannot be asked his opinion respecting the very point which the jury is to
determine.11 the word ‘science’ has been defined in the Universal Dictionary of English
Language, referred to by the learned Judge, as great proficiency, dexterity, skill bases on
long experience and practice, is sufficiently wide to include the evidence of an expert.

An expert has to be skillful and has to show that he has adequate knowledge of the
subject. In this case, the Government had to acquire on payment from the growers
diseased apples and to destroy them. There was a complaint that the growers had
submitted false claims as to quantity. The expert, who was appointed to report on the fruit
bearing capacity of the orchards, visited the orchards, in the subsequent year when the
apple season was over. He had not made any scientific study on research on the subject
nor was he offered any such job earlier. He prepared his report on the basis of surmises
and conjectures. His report was not relied upon.12

The word ‘science’ occurring in section 45 includes experts in type-writers and type-
writing has to be read within the meaning of the word ‘handwriting’. The word ‘science’
is comprehensive enough to include the opinion of an expert in footprint.13
9
Sarkar, Law of Evidence, (Vol. 1, 16th edn., Wadhwa & Nagpur, 2008)
10
Taylor on Evidence, para 1418-19
11
Taylor on Evidence, para. 1421
12
State of H.P. v. Jai Lal, AIR 1999 SC 3318
13
Basudeo Gir, (1959) Pat 69
 FOREIGN LAW

Law which is not in force in India is foreign law. In England, it can be proved by leading
expert evidence. In India, it may be proved the same way under section 45 or by
producing of official books and reports on foreign law under section 38. Foreign law is a
question of fact.14

Foreign law, except on appeals to the House of Lords and Privy Council, must, unless
ascertained under the statutory procedure, be proved as a fact by skilled witness, and not,
as at one time held by production of books in which it is contained for the Court is not
competent to interpret such statutes. Foreign law is a question of fact with which Courts
in India are not supposed to be conversant. Thus, opinion of experts on foreign law is
admissible.15 In foreign law, the expert may be either a professional lawyer or a person
peritus virtuete officii, i.e., holder of official situation which requires and therefore
implies legal knowledge or perhaps some other person who from his profession or
business has had peculiar means of becoming acquainted with the law in question.16

No foreign law becomes a part of the law of Indian Territory merely on the grounds that it
is to be applied by the Courts of this country. Such foreign law remains a foreign law and
consequently under section 45, Evidence Act, expert evidence is admissible in respect of
such foreign law. Moreover, the law of the land, e.g., the Shia Law on Marriage is the law
of the land and is in force in India. It can by no means be called foreign law, nor is such
law a science or an art within the meaning section 45 of the Evidence Act. It is the duty of
the Courts themselves to interpret the law of the land and apply it and not to depend upon
the opinion of the witnesses, howsoever learned they may be. It would be dangerous to
delegate their duty to witnesses produced by either party. Foreign law, on the other hand,
is a question of fact with which the Courts in India are not supposed to the conversant be.
Opinions of the experts on foreign law are therefore, allowed to be admitted.17

14
Khoday Gangadhara Sah v. Swaminathan Mudali, 1926 Mad 218
15
Masjid Shahid Ganj v. Shiromani Gurdwara Parbandhak Committee, Amritsar, AIR 1940 P.C. 116 at p. 120
16
Phipson’s Evidence, sec. 1291
17
Aziz Bano v. Mohammad Ibrahim Hussain, AIR 1925 All. 720 at p. 727
 MEDICAL EVIDENCE

The opinion of a physician or a surgeon may be admitted to show the physical condition
of a man, the nature of a disease, the nature of injuries and the weapons with which they
were caused.

In the case of Ram Swaroop and others v. State of U.P.18 it was held that by the Apex
Court that doctor’s evidence can never be absolutely certain on point of time so far as
duration of injuries are concerned.

Moreover, medical expert not being a ballistic expert is not expected to answer as to
whether the injury would have been caused by bullet alone.19 Furthermore, no conviction
of a person is solely based upon the testimony of the expert as it might be highly unsafe.

The opinion of the doctor who actually examined the injured or conducted the post-
mortem examination must be preferred to the expert opinion of the doctor who gave his
opinion on the basis of the injury report, X-ray report, and post-mortem report.20

Merely because there is some variance between the medical expert and the evidence of an
eyewitness, the court should not take the easy way of giving the benefit of doubt to the
accused. Where, in the case of a death by gunshot wounds, there was a difference of
opinion between doctor and renowned experts regarding the entry wound and exit wound
and there was no basis or reasons for the doctor’s opinion, it was held that the court was
not bound by such prima facie wrong opinion.

CONCLUSION

It is now a well-settled law that expert opinion must always be received with caution.
There is a profusion of precedential authority which holds that it is unsafe to base a
conviction solely on expert opinion without substantial corroboration. This rule has been
universally acted upon and it has almost become a rule of law.21
18
AIR 2000 SC 705
19
Mahmood v. State of U.P., AIR 2000 SC 515 at p. 520
20
Tanviben Pankalkumar Diveta v. State of Gujrat, (1997) 7 SCC 156
21
Magan Bihari Lal v. State of Punjab, AIR 1977 SC 1091
 An expert is one who has made the subject upon which he speaks a matter of particular
study, practice or observation and he must have a special knowledge of the subject. As far
as section 45 of the Indian Evidence Act is concerned, expert opinion is considered by the
Court in the fields of foreign law, science or art, identity of handwriting or finger
impressions. When the Court has any confusion regarding in the field of the aforesaid
criteria, the Court can call for expert opinion in order to impart proper justice. The Court
does not completely rely upon the expert evidence while delivering the judgment; it only
takes external aid which would help the judges to form a proper opinion and which would
eventually lead to justice.

Perhaps, when the court feels the need to examine the witness and finds itself not
competent enough to examine the witness in the field of science or art, or as to the
identity of handwriting or finger impressions or foreign law, the Court itself calls for
expert opinion as an external aid in order to impart complete justice by invoking section
45 of the Indian Evidence Act.

BIBLIOGRAPHY

STATUTES:

The Indian Evidence Act, 1872

BOOKS:

Ratanlal and Dhirajlal, The Law of Evidence. 25th ed. Lexis Nexis, 2013
Sarathi Vepa P., Law of Evidence, 6th edn, Eastern Book Company, 2013

Gopal S. Chaturvedi, Field’s Commentary On Law Of Evidence, 12th edn., Delhi Law House,
vol. 3, 2005
Sudipto Sarkar & V.R. Manohar, Sarkar Law of Evidence, Vol. 1, 16th edn., Wadhwa &
Nagpur, 2008

Lal Batuk, The Law of Evidence, 20th edn., Central Law Agency, 2013

Ram Jethmalani & D.S. Chopra, The Law of Evidence, Vol. 1,1st edn., Thomson Reuters,
2013

WEB SOUURCES:

http://www.scconline.com/

www.manupatrafast.com