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 unavailable
to 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 of
opinion 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 or
acquired 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 the
expert 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., It
has 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 necessary
to 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 of
each 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 to
determine 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 nature
as 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 for
examination 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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