Evcidence Act,1872

1. EXPERT OPINION
U/S- 45-51
Presented by Shah Arafat Ayatullah
ID:2014220300068;batch:34th
Southeast university

2. Question is that are they expert
?

3. 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. A trial involves the calling of witnesses to
adduce evidence. Witnesses can be divided into
two categories,

4. Types of Witnesses
witness
witness
es of
opinion
Witness
es of
fact

5. Expert Witnesses
 Both civil and criminal trials may use expert
witnesses. These witnesses are professionals
in their fields who may not be directly related
to the case, but have in-depth knowledge
about the legal matter in question.
 For example, in a medical malpractice case,
an experienced surgeon might testify on
appropriate procedures used in surgery

6. Principle
 Under section 45, opinions of experts are
relevant on questions of foreign law,
science, art, identity, handwriting or
finger impressions. Expert testimony is
admissible on the principle of necessity.
The help of experts is necessary when the
question involved is beyond the range of
common experience or common knowledge
or where the special study of a subject or
special training or skill or special
experience is called for.

7. Prerequisites of an expert
evidence
 For the sake of consideration of an expert testimony,
there are two important conditions that are
necessary to be shown:
 That the subject is such that expert testimony is
necessary.
 That the witness in question is really an expert.

8. Who is an expert?
 Section 45 defines an expert as a person who is
especially skilled in a given field. The test of judging the
competency of a person is this:
 “Is it peritus?”
A theological adviser or consultant= peritus
 Is he skilled?
 Has he adequate knowledge?

9. Sec.45
The definition of an expert
may be referred from the
provision of Sec.45 of
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

10. Sec.45(Cont.)
4) handwriting or
5) finger impression
and such knowledge has
been gathered by him—
a) by practice,
b) observation or
c) For example, medical
officer, chemical analyst,
explosive expert, ballistic
expert, fingerprint expert
etc.proper studies.

11. Difference between evidence of an expert and
evidence of an ordinary witness:-
1. Expert gives his opinion
regarding handwriting, finger
impression, nature of injury
etc.
2. It is advisory in character.
3. Court can’t pass an order
of conviction on the basis of
expert opinion, as because it
is not conclusive.
4. Expert gives his opinion
on the basis of his
experience, special
knowledge or skill in the field.
1. An ordinary witness states
the fact relating to the incident.
2. Witness states the facts.
Opinion of a witness is not
admissible.
3. Court may pass an order of
conviction on the basis of
evidence of ocular witness (eye
witness).
4. A witness gives actual facts
connected with the incident what
he had seen or heard or
perceived.
Evidence of an expert
Evidence of an ordinary
witness

12. Duty of the expert
 An expert is not a witness of fact.
 His evidence is of advisory character.
 An expert deposes and does not decide.
 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.

13. Can an Expert suo
moto examine and furnish his
opinion?
No,
An expert can’t initiate examination or analysis
and furnish his opinion unless the Investigating
Officer has sought his opinion in compliance
with the formal procedure.

14. Sec 46
 Facts bearing upon opinions of experts.—
Facts not otherwise relevant are relevant if
they-
 support or
 inconsistent
with the opinions of experts, when such opinions
are relevant

15. Section 47
 When the Court has to form an opinion as to
the person by whom any document was
written or signed, the opinion of any person
acquainted with the handwriting of the person
by whom it is supposed to be written or signed
that it was or was not written or signed by that
person, is a relevant fact.

16. Section 48
 Opinion regarding existence of right or
custom, when relevant.—When the Court
has to form an opinion as to the existence of -
 any general custom or right,
 the opinions, regarding
existence of such custom or right, of persons
who would be likely to know of its existence if
it existed, are relevant

17. Section 49.
 Opinions as to usages, tenets, etc., when
relevant.—When the Court has to form an opinion
as to—
 the usages and tenets of any body of men or
family,
 the constitution and government of any religious
or
 charitable foundation, or
 the meaning of words or
 terms used in particular districts or by particular
classes of people,
the opinions of persons having special means of

18. Section 50
 Opinion on relationship, when relevant.—When the Court has to
form an opinion as to
 the relationship of one person to another,
 the opinion, expressed by conduct,
 as to the existence of such relationship, or
 any person who, as a member of the family or
 otherwise, has special means of knowledge on the subject,
is a relevant fact:
 It is not sufficient to prove a marriage in proceedings under the
Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494,
495, 497 or 498 of the Penal Code (45 of 1860)
 Grounds of opinion, when relevant.—whenever the opinion of
any living person is relevant, the grounds on which such opinion is
based are also relevant(Section 51)

19. Investigating officer and expert
opinion
The investigation officer should seek opinion
from experts or specially skilled person to form
his own opinion whether the materials
collected during the course of investigation is
actually establishes the link between the
crime, the victim and the criminals. The
investigating officer shall seek the assistance
of an expert whenever he feels necessary for
establishing any fact related to the fact in
issue.

20. WHETHER THE OPINION OF EXPERT
BINDING ON COURT ?
 In the case titled as Malay Kumar Ganguly v/s
Dr. Sukumar Mukherjee,
the Hon’ble Supreme Court has answered the
question in negative. It has been held that a Court
is not bound by the evidence of the experts which
is to a large extent advisory in nature. The Courts
have full powers to derive its own conclusion upon
considering the opinion of the experts which may
be adduced by both sides, cautiously, and upon
taking into consideration the authorities on the
point on which he deposes.

21. EXAMINATION OF
WITNESS
U/S –(140-143,151-155,159 )

22. Meaning of witness
"The term witness ... ordinarily
means one who gives
evidence under oath or
affirmation, in person or by
affidavit or deposition,
in any proceeding in any
court of justice
which an oath or affirmation is or
may be required or
authorized by law.

23. Types of witness
Expert
Witness
Prosecution
Witness
Eye Witness
Hostile Witness
Defense
Witness
Circumstanti
al Witness

24. Process of adducing evidence
from witnesses

25. How to Examine & Cross-Examine Witnesses
Evidence Act is not strictly applicable to
departmental inquiries, but its provisions have
significant relevance, as examination/cross
examination of witnesses in substance is
materially for the same purpose both in a law
court and in a departmental inquiry.

26. Relevant Provisions of Evidence Act,1872-
Questions lawful in Cross-examination
Witness to character can be cross-
examined and re-examined
(Sec.140).
a. Cross-Examination means- the
examination of witness by the
adverse party shall be called his
cross-examination. The main
object of Cross-Examination is to
find out the truth and detection of
falsehood in human testimony.
b. Re-Examination means - the
examination of a witness,
subsequent to the cross-
examination by the party who
called him, shall be called his re-
examination.

27. Definition of leading question –
In witness examination, leading
questions are those that try to
stack the deck of evidence one
way or the other by putting
words in the witness' mouth.
Such questions are usually not
allowed in the direct
examination of the witness,
but are generally permissible in
cross examination or where the
subject matter has already been
put in evidence by the other
side.
Any question suggesting the answer
which the person putting it wishes or
expects to receive is called a leading
question. (Sec.141)

28.  Leading questions must not, if objected to by the adverse party be asked in
an examination-in-chief, or in a re-examination, except with the permission
of the Court.
Explanation –without permission of the Court ,
Leading question must not be asked by the adverse party in examination-in-
chief or in a re-examination .
Grounds where court may permits-
The Court shall permit leading questions as to matters which are –
1. introductory or undisputed, or
2. which have, in its opinion, been already sufficiently proved. (Sec.142)
 Leading Questions may be asked in cross-examination (Sec.143)
 Other Lawful Questions-
 Questions to test the veracity of the witness
 to discover who he is and what his position in life, or
 to shake his credit, by injuring his character

29. Questions, which are not to be Asked in
Cross-Examination
 Questions not be asked without reasonable grounds. In other
words one cannot embark on a 'fishing
expedition'(Sec.149)
 Indecent and Scandalous questions cannot be asked
(Sec.151)
 Questions intended to insult or annoy, or questions
needlessly offensive in form cannot be asked (Sec.152)
 Refreshing Memory (Sec. 159 )
While under examination, a witness may refresh his memory
by referring to any writing made by himself at the time of the
transaction concerning which he is questioned. The writing
could also relate to those made soon after the transaction.
When the original of such document is not produced, but a
copy has been produced, the witness may refresh his
memory by referring to the copy.

30.  To end my submission,
I conclude that an expert opinion is admissible in
the court of law. However, the person who is
testifying as an expert witness must first
establish to the court that he is an expert as
defined under Section 45 of the Evidence Act
1872.