SEMINAR PRESENTATION

S.N. HEAD BRIEF P.N.

1. Outline Opinions not considered by the courts in general. 4
Facts, not inferences.
Exception – opinion of the expert.
Superior knowledge or experience.
2. Principle ‘Cuilibet Insua Arte Perito Est Credendum’ 4
Person skilled in his art or profession is to be believed.
Subject matter of the study
5
3. Definition Special skill (professional or self acquired), Special study, 5
experience
4. Competency Admissibility of the testimony.
Repeated contact with course of one’s work.
Logical inferences. 6
Want of qualification at the time of cross.
5. Admissibility Under exceptional circumstances, shall not determine the
very issue, guilt or innocence cannot be determined, biased
in the favor of the side that calls them. 7
Recognized field of expert
Reliable principle
Qualified.
6. Expert Witness & Opinion, cite books, reports and case laws, detailed
Ordinary Witness experiments. 8
7. Value & Duty of the Court to scrutinize the evidence.
Evaluation Not a conclusive proof. 8
Evaluated like any other evidence.
Reasonableness and scientific quality not at the length of 9
practice of the expert.
8. Expert Opinion Direct testimony over the testimony of the expert. 9
& other evidence
9. Conflict b/w two Superior knowledge to be considered 10
Experts
10. Non – availability Administrative textbook, own knowledge and experience. 10
11. S.293 CrPC Prevails over S.45, IEA – Special provision pertain to 10
Government Scientific experts.
12. Aspects Data evidence and Opinion evidence 10
13. Flawed Opinion Expert bereft of factual details of the case. 11
Legal and personal liability of the expert.
14. Authors Not conclusive and final, persuasive value. 12
15. Ballistic Expert Direct evidence to be considered qua the nature of injuries. 12

1
16. Workability of Mere recover of the guns do not connect the accused with
the Weapon the crime. 13

17. Expert Allegation of mala fide, otherwise court should refrain

Committee from interfering. 13
Report
18. Prosecuting Not relevant, only duty to collect and examine the evidence
Authorities – and submit the charge sheet. 13
Invest.
19. Dog Tracking Generally, not linked to the expert opinion. 14
Thought process, vulnerable to error, deception.
THREE OBJECTIONS – witness box, canine inference.
20. Mode of Making Any other witness, refresh his memory, refer books. 14
21. Failure to Cross Would not detract from the weight of his evidence.
Examine 15
22. Court as an No legal bar on the judge to use his own eyes to compare
Expert the evidence. 15
Not advisable though, extreme caution.
23. Cross Exam. b/w Can be allowed under special power of attorney. 16
Experts
24. Impeaching Like any other witness. 16
Credit
25. Conclusion Strictly professional opinion, outside the purview of a 17
layman or the Court of Law

2
Table of Contents
TABLE OF CONTENTS…………………………………………………………..….…………..3
A BRIEF OUTLINE…………………………………………………………………………... ..4
THE PRINCIPLE……………………………………………………………………………... ..4
DEFINITION OF EXPERT…………………………………………………………………….. ..5
COMPETENCY OF AN EXPERT………………………………………………………... …..…..5
DIFFERENCE IN EVIDENCE RENDERED BY AN EXPERT WITNESS AND AN ORDINARY WITNESS... 7
VALUE AND EVALUATION OF THE EXPERT EVIDENCE………………………......................... 8
CONFLICT BETWEEN EXPERT AND OTHER EVIDENCE………………………………..…….... 8
CONFLICT BETWEEN TWO EXPERTS……………………….................................................... 9
NON-AVAILABILITY OF EXPERT OPINION………………………............................................ 9
SECTION 45 OF THE EVIDENCE ACT, 1872 VIS-À-VIS SECTION 293 OF CODE OF CRIMINAL
PROCEDURE, 1973. ………………………............................................................................ 10
EXPERTS’ EVIDENCE……………………….......................................................................... 10
FLAWED EXPERT EVIDENCE………………………............................................................... 10
OPINIONS OF AUTHORS………………………....................................................................... 11
BALLISTIC EXPERT………………………............................................................................. 12
WORKABILITY OF WEAPON………………………................................................................ 12
EXPERT COMMITTEE REPORT………………………............................................................. 12
OPINION OF PROSECUTING AUTHORITIES IN THE COURSE OF INVESTIGATION……................ 13
DOG TRACKING EVIDENCE – ADMISSIBILITY.. ………………………................................... 13
MODE OF MAKING EXPERT OPINION EVIDENCE………………………................................. 14
FAILURE TO CROSS EXAMINE AN EXPERT………………………........................................... 14
COURT ACTING AS AN EXPERT………………………............................................................ 14
CROSS EXAMINATION OF AN EXPERT BY ANOTHER EXPERT……………............................... 15
MODE OF IMPEACHING THE CREDIT OF AN EXPERT……………………………….………… 15
CONCLUSION………………………....................................................................................... 15
BIBLIOGRAPHY……………………………………………………………………………….18

3
 OPINION OF EXPERTS VIS-À-VIS LAW OF EVIDENCE
*GURNOOR SINGH SANDHU

“An expert is one who knows more and more about less and less.”
– Nicholas M. Butler

A BRIEF OUTLINE
The use of witnesses being to inform the Court with respect to the facts, their opinions are
not in general receivable as evidence. Facts should be stated and not inferences. The rule,
however, is not without exceptions. Being based on the presumption that the Court is as capable
of forming a judgment on the facts as the witness, when circumstances rebut this presumption,
the rule naturally gives way, and the opinions of specially skilled persons are receivable as
evidence.1
The foundation, on which the expert testimony rests, is the supposed superior knowledge
or experience of the expert in relation to the subject matter upon which he is permitted to give an
opinion as evidence.2 Expert witnesses have the advantages of a particular skill or training. This
not only enables them to form opinions and to draw inference form observed facts, but also to
identify facts which may be obscure or invisible to lay witness.3

THE PRINCIPLE
While discussing the relevance of opinion of an expert under the Law of Evidence, it becomes
imperative to discuss the maxim ‘Cuilibet Insua Arte Perito Est Credendum’ which means that
any person skilled in his peculiar art or profession is to be believed i.e when he speaks of matters
connected with such art or profession. Credence shall be given to one skilled in his peculiar
profession.4
More over the weight of such evidence depends on the aforementioned maxim and the grounds
of its admissibility are contained in the general rule:
“…that the opinion on witnesses possessing peculiar skill is admissible,
whenever the subject-matter of inquiry is such that inexperienced person
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 science or art, as to require a course of previous habit or
study in order to obtain a competent knowledge of its nature.”5

1
*IVth Year Student, Army Institute of Law, Sector 68, Mohali, Punjab
WM. Best, A Treatise on the Principle of Evidence, fourth edn., 1866, Londoin H Sweet, ss 511, 513, Introduction
ante and notes, post
2
Rogers on Expert Testimony, P.21
3
Phipson on Evidence, 14th Ed., p 805, para 32-08
4
Blacks Law Dictionary, 2nd Ed
5
Taylor on Evidence, s 1418; as to meaning of the term ‘expert’, see Lawson Expert and Opinion Evidence, 1905

4
On the other hand, it is equally clear that the opinions of skilled witnesses cannot be received,
when the inquiry relates to a subject matter, which does not require any peculiar understanding,
or course of study in order understand it.6
Therefore witnesses are not required to state their views on the construction of documents 7 or on
matters of moral legal obligation8 or on the manner in which other person would probably have
been influenced had the parties acted in one way rather than another, because on such points the
court is as capable of forming an opinion as the witnesses themselves.9
Thus where the subject is one upon which the judge is capable of forming an opinion as the
witnesses, the reason for the admission of such evidence fails, and it will be rejected.10

DEFINITION OF EXPERT
An expert is one who is skilled in any particular art, trade or profession, being possessed of
peculiar knowledge concerning the same.11 The expert witness must have made a special study of
the subject or acquired a special experience therein. The expert witness need not have acquired
his knowledge professionally, it is sufficient, if he has made a special study of the subject or has
acquired experience in it.12

COMPETENCY OF AN EXPERT
The competency of an expert should be shown before his testimony is admissible. 13 The experts
should bring their technical and scientific knowledge to bear upon the matter which is referred to
them for their opinion, it is not sufficient for them to give some indications which can be
observed even by a layman. 14 In order to bring the evidence of a 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 that he is skilled and has adequate knowledge of the subject. 15 Though
the expert must be skilled by special study or experience, the fact that he has not acquired his
knowledge in the course of professional experience, goes merely to weight and not the
admissibility. Equally, one can acquire expert knowledge in a particular sphere through repeated
contact with in the course of one’s work, notwithstanding that the expertise is derived experience
and not form formal training.16 Thus, unqualified practitioners, hospital students and addressers
have been permitted to testify as medical experts and on questions of handwriting, not only
specialists, but post-office officials, lithographers and bank clerks and a solicitor who had for
6
Pranjivandas v. Mayaram (1863) 1 Bom HCR 148, p.155
7
Marquis of Camden v. Inland Revenue Commissioner (1914) 1 KB 641 pp 647-650 (CA)
8
Campbell v. Richard (1933) 5 B & Ad 840
9
Taylor on Evidence, s.1419
10
Ramadge v. Ryan (1832) 9 Bing 333
11
Punjab Singh v. State 1974 Kash LJ 404
12
Halsbury Law of England, 4th Ed. 1976 vol. 17 p. 17 para 83
13
Jarat v. Bissessur (1991) ILR 39 Cal 245
14
Ram Prasad v. State of Rajasthan 1982 WLN (UC) 69
15
Ramesh Chandra Agarwal v. Regency Hospital Ltd. AIR 2010 SC 806
16
Phipson on Evidence, 14th ed., p.827 para 32-37

5
some years given considerable attention and study to the subject and had several times compared
handwriting for purpose of evidence though never before testified as expert, 17 have been
permitted to testify as experts.18 If the examination in chief clearly shows no competency, the
opinion evidence of the witness will be excluded. It is not easy for an incompetent person to
sustain himself in the character of an expert witness. The want of qualification may be shown by
cross-examination or otherwise. An expert is fallible like all other witnesses, and the real value
of his evidence consists in the logical inferences, which he draws from what he has himself
observed and not from what he merely surmises or has been told by others. Thus in case of a
testimony by the firearm expert, it is necessary that the data collected by him with respect to the
firearms should be supplied along with the enlarged photographs taken by him, with a view to
enabling the court to verify that his opinion is correct. This becomes necessary in the cases
where the identity of the gun that has been used to commit the offence has got to be adjudged.19

ADMISSIBILITY OF OPINION OF AN EXPERT

The opinion of an expert, however eminent in his field he may be, must not be read as conclusive
of the fact, which the court has to try.20 Such opinion may invited in exceptional circumstances,
where there is no dispute as to facts or their interpretation, but it must be considered by the court
as nothing more than relevant. Any opinion, which tries to determine the very issue, which the
court has to try, must be disallowed, though the court may consider it, if there is no dispute as to
facts whatever.21 The guilt or innocence of the accused has to be determined by the Court
appointed by law and not according to the test of anyone else. 22 The evidence of an expert is to
be received with caution, because they may often come with bias in their minds to support the
cause in which they are embarked that their judgments become warped, and they themselves
become even when conscientiously disposed, incapable of expressing a correct opinion.23 It is
proverbial that the experts are, perhaps unwittingly, biased in favor of the side, which calls
them.24 For instance, the evidence of a handwriting expert is not ordinarily sufficient ground for
conviction of a forgery charge without corroboration.25
Therefore the requirements for the admissibility of expert evidence are:
i. That the expert must be within a recognized field of expertise;
ii. That the evidenced must be based on reliable principle;
iii. That the expert must be qualified in that discipline.26

17
R v. Silverlock (1894) 2 QB 766
18
Phipson on Evidence, 14th ed. p.834, para 32-42
19
Re, Kodar Thimma Reddi AIR 1957 AP 758
20
Kamala Kuer v. Ratan Lal AIR 1971 All 304
21
Baswantarao Baijirao v. Emperor AIR 1949 Nag 66
22
State of Mysore v. Sampangiranmiah AIR 1953 Mys 80
23
WM Best, A Treatise on the Principles of Evidence, 4th Ed., 1866
24
Phipson on Evidence, 14th Ed. p.831, para 32.40
25
Dalagobinda Das v. State (1983) Cr LJ (NOC) 116 (Ori)
26
Ramesh Chandra Agarwal v. Regency Hospital Limited (2009) 9 SCC 709 (para 16)

6
DIFFERENCE IN EVIDENCE RENDERED BY AN EXPERT WITNESS AND AN
ORDINARY WITNESS
The evidence of an expert witness differs from that of an ordinary witness in the following
respects:
1. He can give his opinion, not merely state what took place;
2. He van detail experiments he made even behind the back of the other party;
3. He can cite books of admitted authority:
4. He can cite other cases and reports of other transactions throwing light on the fact in issue
i.e., for the purpose of showing similarity in symptoms or in the result from certain
causes.
For anyone else, other than an expert witness, such statements would be inadmissible. 27 It has
however been held that a photographer with 25 years experience on the line could very well give
expert evidence, even though he had not obtained a degree or diploma in the subject28

VALUE AND EVALUATION OF THE EXPERT EVIDENCE

It is the duty of the Courts to scrutinize the expert opinion tendered in evidence very closely, and
to find out the basis upon which it was made. After all, it is only opinion evidence and cannot be
safely relied upon, unless the basis of opinion is found to be firm. 29 Where the court permits the
evidence of one expert to be brought on record, on technical matter, it does not abdicate its
function to judge for itself whether the opinion of the expert is correct or not on the matter in
issue.30 For instance, the accused in the rash driving case was, in the opinion of the doctor under
the influence of drink because his breath smelt of alcohol and his gait was unsteady, but urine or
blood tests were not taken, the data was insufficient for any firm basis of such opinion.31
The report of an expert is not the conclusive proof. Evidence of the expert is after all opinion
evidence. The Court has to evaluate the same like any other evidence. It is for the Court to judge
whether the opinion has been correctly reached on the data available and for reasons stated. 32
The opinion of the expert is not a substantive piece of evidence in the case, and it is not
conclusive.33 The weight attached to the opinion of the experts depends on reasonableness and
scientific quality and not on the length of practice of the expert.34
An expert is not the witness of fact and his evidence is really of an advisory character. The duty
of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the
accuracy of the conclusions so as to enable the judge to form his independent judgment by the
application of these criteria to the facts proved by the evidence of the case.
27
Powell, Richard R, Constitution of Written Instruments, vol. 9 9th Ed. 1940, Little Brown & Co. Boston, pp. 41-42
28
Re, Govinda Reddy AIR 1958 Mys 150, ILR 1957 Mys 177
29
Lachhmi Ram v. State of Himachal Pradesh 1971 Sim LJ (HP) 329
30
Srichand v. Ramarati Devi AIR 1980 All 294
31
Bacchubhai Hassanalli v. State of Maharashtra (1971) 1 SCWR 99
32
State v. Kanhu Chand Barik 1983 Cr.LJ 133
33
Khyadi v. State 1980 All LJ 230
34
Ram Swaroop v. State of Karnataka (1978) 1 Kar LJ 453 (Kant.)

7
CONFLICT BETWEEN EXPERT AND OTHER EVIDENCE
There are plethora of cases wherein the Courts have preferred to consider the direct testimony of
a witness over the testimony of the Expert witness, due the fact that the direct testimony gives
out a more a accurate detail about the facts of the case. Some of such instances have mentioned
as follows:
i. Experts suggesting that a particular thing could not have been done, whereas the whole of
the direct evidence for the prosecution points to the act having been done by the
respondent.35
ii. Medical evidence given with reference to the symptoms deposed by the witness, as to the
general condition and state of health of a person, will be preferred to the isolated extracts
from medical works.36 For instance, there was a dispute over the age of a girl. Whereas
the medical evidence showed her to be between 17 and 18 years, documentary evidence
showed her to be above 18 years. Conflict between medical evidence and documentary
evidence arose. Medical evidence was not taken to be conclusive proof of age. Held the
benefit of doubt is to be given to the accused.37
iii. As to the soundness of mind while making the Will, the evidence of the witness present
at the time of making the Will is to be preferred to the evidence of a doctor.38
CONFLICT BETWEEN TWO EXPERTS
The Court should not have matters undecided merely because two experts differ. Where they
differ, the court should rely on the evidence of the one who had superior qualifications and
experience in the particular branch of medicine science.39 Where the opinion of the doctor who
examined the deceased immediately after the incident, and also conducted the post mortem, was
the injury was caused by a sharp cutting weapon, there was no evidence that the doctor had
reason to act in an unfair manner, and where the Board of Doctors constituted subsequently were
unable to give unable opinion about the nature of the weapon, it was held that the negative
evidence of the Medical Board cannot efface the positive evidence of Doctor.40

NON-AVAILABILITY OF EXPERT OPINION

When no expert opinion is available to assist the Court, the court should seek guidance from
some administrative textbook and use its own experience and knowledge. The court should
discharge its duty with or without any other evidence.41

35
Queens-Express v. Wazir Ali (1889) All WN 74
36
Rawat Sheo Bahadur Singh v. Beni Bahadur Singh AIR 1919 Oudh 136
37
SK Belal v. State of Orissa 1994 Cr.LJ 467 (Ori) 45
38
Perara v. Perara 1901 App Cas 354; Saradindunath Rai Chaudhuri v. Sudhir Chandra Das AIR 1923 Cal 116
39
Mahendra Manilal v. Sushila Mahendra AIR 1956 SC 450
40
Munir Ahmad v. State of Rajasthan, AIR 1989 SC 705
41
Ajay Kumar Parmar v. State of Rajasthan, (2012) 12 SCC 406 (para25)

8
SECTION 45 OF THE EVIDENCE ACT, 1872 VIS-À-VIS SECTION 293 OF CODE OF
CRIMINAL PROCEDURE, 1973.
Section 293 of the Code of Criminal Procedure, 1973, being a special provision, prevails over the
general provisions of Section 45 of the Evidence Act, 1872.42

EXPERTS’ EVIDENCE
The expert evidence has two aspects, the data evidence and the opinion evidence. While it is
undoubtedly true that data cannot be rejected if it is inconsistent to oral evidence but the opinion
evidence is only an inference drawn from the data and would not get precedence over the direct
eye witness testimony unless of course the inconsistency between the two is so great as to
obviously falsify the oral evidence. 43 The expert evidence is a weak type of evidence and the
Courts do not consider it to be conclusive. It is therefore, not safe to rely upon it without seeking
independent and reliable corroboration.44 Once the report of the expert is proved and admitted in
evidence, the same can be read as part of the statement of the author of the report. It is not
necessary that his statement before the Court, before taking the same into consideration, should
corroborate the report of the expert.45 Once the expert’s opinion is a accepted by the Court, it
ceased to be the opinion of the expert and becomes opinion of the Court.46

FLAWED EXPERT EVIDENCE

The experts generally, do not have first hand information about certain essential details
pertaining to the case with respect to which their expert opinion is sought. Therefore a situation
may arise where the opinion advanced by the expert is flawed on account of being bereft of
factual details about the matter.
In such circumstances a question arises as to the legal and professional liability of the expert
witness tendering flawed evidence. For instance, in a criminal trial a medical practitioner gave
flawed evidence in respect of which a complaint was made to the General Medical Council. The
respective High Court held that immunity from suit of an expert witness in respect of the
evidence he gave in a court of law extended to provide immunity from disciplinary proceedings
based on a complaint made in relation to the evidence given. On appeal the Court of Appeal held
that the said immunity should not be extended to immunity from disciplinary, regulatory or
fitness to practice proceedings. The purpose of fitness to practice proceedings was to protect the
public and it would be wrong in principle for the court to limit the powers of the panel by the
said immunity from civil suit to practice proceedings and the mistake of the expert, in the instant
case was held not to amount to serious professional misconduct as he had not intended to mislead
the Court.47
42
Bhagwan Dass v. State of Punjab 1982 Cr.LJ 2138 FAC 60 (P&H) (DB)
43
Arshad v. State of AP 1996 CrLJ 2893 (para 34) (AP)
44
S. Gopal Reddy v. State of AP AIR 1996 SC 2184 (para 27)
45
Raj Kumar v. State 2005 Cr.LJ 1322, 1327 (para 36) (J&K)
46
Manorama Devi v. Suresh 1999 AIHC 3433 (para 36) (MP)
47
Meadow v. General Medical Council (2007) 1 All ER 1.

9
OPINIONS OF AUTHORS
It is often witnessed in the Court that the lawyers cite the works of various authors in the
respective fields of law. For instance, in a criminal trial, which revolves around the medico legal
aspects of a particular injury caused to the victim by the accused, the lawyers often refer to
Modi’s book on Medical Jurisprudence and Toxicology.
From the aforementioned example two issues arise, firstly whether such opinion of authors is to
be considered as an expert evidence and secondly, to what an extent such opinion would be
binding on the Court.
It is to be noted that the opinion expressed in the text books by specialist authors may be of
considerable assistance and importance for the Court in arriving at the truth, yet they cannot be
treated or viewed to be either conclusive or final as to what such author says to deprive even a
Court of Law to come to an appropriate conclusion of its own on the peculiar facts of a given
case. In substance, though such views may have persuasive value yet they cannot be considered
to be authoritatively binding, even to dispense with the actual proof otherwise reasonably
required of the guilt of the accused in a given case. Such opinions cannot be elevated to or placed
on a higher pedestal than the opinion of an expert examined in a Court and the weight ordinarily
to which it may be entitled to deserve to be given.48
Interesting, the Apex Court disapproved of the Judges drawing conclusions adverse to the
accused by relying upon the passages of books of specialist authors in absence of their being put
to the expert witness examined.49 Further the Supreme Court observed that it cannot be said that
the opinions of these authors are given in regard to circumstances exactly similar to those which
arise in a given case nor giving more weight to such opinions than that of the experts, examined
in the Court is a satisfactory way of dealing with or disposing of the evidence of an expert in a
case unless the passages, which are sought to be relied to discredit his opinion, are put to him.50

BALLISTIC EXPERT
It cannot be laid down as a general proposition that in every case where a firearm is allegedly
used by an accused person, the prosecution must lead the evidence of a Ballistic Expert to prove
the charge, irrespective of the quality of the direct evidence available on record. Where direct
evidence is of such an unimpeachable character, the nature of injuries, disclosed by the post
mortem notes is consistent with direct evidence, the examination of the ballistic expert may not
be regarded as essential. However, where the direct evidence is not available or that there is
some doubt as to whether the injuries could or could not have been caused by a particular
weapon, examination of an expert would be desirable to cure an apparent inconsistency or for the
purpose of corroboration of oral evidence.

48
State of M.P. v. Sanjay Rai, AIR 2004 SC 2174
49
Sunderlal v. State of M.P. AIR 1954 SC 28
50
State of M.P. v. Sanjay Rai, AIR 2004 SC 2174

10
WORKABILITY OF WEAPON
Mere recovery of guns from the accused does not connect them with crime. Report from the
ballistic expert as to the gun being in working condition is the condition precedent. 51 Where the
Double Barrel Gun, found in the possession of accused without a license to possess the same,
was of a type that it could be fired by first filling it with gun powder, no evidence of expert or
armorer was necessary to find out whether it was in working condition. Evidence of a Police
Officer who is trained in handling of guns would be sufficient to prove that its mechanism was in
order.52

EXPERT COMMITTEE REPORT

In a matter of appointment/selection by an Expert Committee/Board consisting of qualified
persons in the particular field, normally, the Court should be slow to interfere with the opinion
expressed by the experts, unless there is any allegation of malafide against the experts who had
constituted the Expert Committee. It would be normally wise and safe for the court to leave the
decision of the selection to the experts who are familiar with the technicalities/nature of the
work.53

OPINION OF PROSECUTING AUTHORITIES IN THE COURSE OF

INVESTIGATION
The primary task of the prosecuting authorities, such as a police investigation team is to collect
and examine the relevant witness statements and evidences pertaining to the case that they have
been appointed to investigate upon. On basis of such material they are suppose to submit the
charge sheet before the Court. Therefore, it is for the Court to examine and tender an opinion
over the case and the prosecuting authority is not expected to give any opinion of its own as to
the guilt of the accused as the same has aano relevance at all.
An opinion of prosecuting authorities during the course of investigation in a murder case that the
murder in that case was to be attributed to the other one and not to the accused as the evidence
against him was not sufficient to put him on trial, had no relevancy in the case.54

DOG TRACKING EVIDENCE – ADMISSIBILITY

The tracker dog’s evidence cannot be linked to the type of evidence accepted from scientific
experts describing chemical reactions, blood tests etc. Dogs are intelligent animals with many
thought processes similar to the though processed of the human beings and with many thought
process there is always the risk of error, deception and even self-deception. In the present state of
scientific knowledge evidence of dog tracking even if admissible is not ordinarily of much
weight.55
51
Lakha Singh v. State 1994 Cr.LJ 2952 (para 26)
52
Jarnail Singh v. State of Punjab AIR 1999 SC 321 (para 3)
53
Sajeesh Babu k. v. N.K. Santosh (2012) 12 SCC 106
54
Suraj Pal v. State of U.P. AIR 1955 SC 419, 425 (para 5)
55
Abdul Rajak Murtaja Dafedar v. State of Maharashtra (1969) 2 SCC 234

11
So far as the evidence relating to the reaction of sniffer dog is concerned, the Supreme Court in
Abdul Rajak Murtaja Dafedar v. State of Maharashtra stated that law, thus:
“There are thee objections which are usually advanced against reception of the evidence of dog
tracking. First, since it is manifest that the dog cannot go into the box and give his evidence on
oath and consequently submit himself to cross examination, the dog’s human companion must go
into the box and report the dog’s evidence and thus is clearly hearsay. Secondly, there is a
feeling that in criminal cases the life and liberty of a human being should not be dependent on
canine inference...”
The law on this behalf, therefore, is settled that while the services of a sniffer dog may be taken
for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of
establishing the guilt of the accused.56

MODE OF MAKING EXPERT OPINION EVIDENCE

Under section 45, an expert has to state his opinion in Court and must be examined and cross-
examined like any other witness.57 While giving evidence, the expert may refer to any
professional treatise or any memorandum which he may have prepared at a time when the facts
on which his opinion is based were fresh in his memory,58 though the memorandum itself is not
evidence and no facts can be taken from it. 59 If the expert whose opinion is intended to be proved
is dead, or cannot be produced without an unreasonable amount of delay or expense, his opinion
may be proved by the production of any treatise commonly offered for sale.60

FAILURE TO CROSS EXAMINE AN EXPERT

Mere failure to cross-examine an expert would not detract from the weight of his evidence by
applying to it considerations to which his attention was not directed.61

COURT ACTING AS AN EXPERT

The opinion of the Court, itself untrained in medicine and without trained assistance, on
questions of medicine is valueless.62 On question s of handwriting also the practice of the Court
itself acting as an expert has been disapproved.63 But there is nothing in the so-called science of
fingerprints, which need deter a Court from applying its own magnifying glass or its eyes and
mind to the evidence and verifying the results submitted to it by the witness.64
While there is no legal bar on the judge to use his own eyes to compare the disputed handwriting
with the admitted writing, even without the aid of evidence of any handwriting expert, the judge
56
Dinesh Borthakur v. State of Assam AIR 2008 SC 2205
57
Balkrishna Das v. Radha Devi AIR 1989 ALL 133
58
Section 159
59
Roghuni Singh v. E 9 C 455
60
Section 60
61
Sarwar Khan v. E 55 IC 273: 21 CrLJ 257
62
E. Purna Chnadra Ghose, 83 IC 631
63
Asmat Ullah Khan v. M. Shian Lal 1947 A 411
64
Public Prosecutor v. Virammal 46 M 715

12
should, as a matter of prudence and caution, hesitate to base his finding with regard to the
identity of a handwriting which forms the sheet anchor of the prosecution case against a person
accused of an offence, solely on comparison made by himself. It is, therefore, not advisable that
a judge should take upon himself the task of comparing the admitted writing with the disputed
one to find out whether the two agree with each other, and the prudent course is to obtain the
opinion and assistance of an expert.65
As a matter of extreme caution and judicial sobriety, the court should not normally take upon
itself the responsibility of comparing the dispute signature with that of the admitted signature or
handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But
this does not mean that the court has not got the power to compare the disputed signature with
the admitted signature, as this power is clearly available under section 73 of the Act.66

CROSS EXAMINATION OF AN EXPERT BY ANOTHER EXPERT

In specific cases an expert can be allowed under a special power of attorney to cross-examine an
expert in the same line of business coming as a witness for the other side.67

MODE OF IMPEACHING THE CREDIT OF AN EXPERT

The credit of an expert may be impeached like that of any other witness under section 143, 153
and 155. He may be asked if he had given a contrary opinion on the same matter at some other
time and whether his evidence has been disbelieved on a former occasion, 68 but technical works
cannot be used to refute his opinion, unless his attention has been drawn in cross examination to
passages intended to be relied on.69 The weight of the evidence of an expert cannot be diminished
by applying to it considerations to which his attention was never directed.70 The Act makes no
provision allowing evidence of the opinion of one expert upon the qualifications of another’,
through such evidence can be given in other system of evidence.71

CONCLUSION
Thus, the opinion of the witness on a question whether of fact or of law is irrelevant. A witness
has to state the facts, which he has seen, heard or perceived. It is not his function to draw
inferences from the facts observed or perceived by him. That is the providence and the sole
prerogative of the judge.
Accordingly, the evidence act provided for some exceptions to the aforementioned rule, which
are categorized in section 45 to 55 of the Act.
It often happens that the subject matter if the inquiry so partakes of the character of science or art
as to require the course of previous habit or study and in regard to which inexperienced persons
65
State (Delhi Administration) v. Pali Ram (1979) 2 SCC 158
66
O. Bharathan v. K. Sudhakaran (1996) 2 SCC 704
67
Thunnudeo v. Baladeo 1944 NLJ 449
68
Section 155 and 146(1)
69
Grande Venkataram v. Corporation of Calcutta 46 IC 593
70
Sarwar Khan v. E. 55 IC 273
71
Lawson Expert Testimony, 2nd Edn. 275

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are unlikely to prove capable of firm or correct judgment. Therefore, an important exception is,
that the opinions of the persons having special knowledge of the subject matter of the inquiry and
described as experts are made relevant. Secondly there are matters on which it is naturally
impossible for any witness to give positive evidence of facts, which he has observed. He must if
he says anything at all, speak as to his opinion or belief on matters which are essentially matters
of opinion or are so complex or indefinite that he can only form a general opinion upon them. It
can only be so in matters of common or general knowledge.
There are, however essential distinctions between the evidence given by experts and the opinion
evidence of the non-expert witnesses. In case of an expert, his opinion is not confined to what
actually took place, but he can give his evidence opinion on facts. Secondly, the expert can speak
of evidence made by him at the back of the parties. Thirdly, he may cite textbooks of accredited
authority in support of his opinion and may refresh his memory by reference to them. The Expert
fourthly may state facts relating to other cases bearing similarity to cases under inquiry, in order
to support his opinion. Therefore it would be safe to conclude that the expert evidence is merely
‘opinion’ evidence based on special skill or experience.
The rule upon evidence of in the matter of opinion of a witness, thus can be summarized by
mentioning the following statements:
i. On question of identification, a witness is allowed to speak as to his opinion or belief;
ii. A witness’s opinion is receivable in evidence to prove the apparent condition or a state of
a person or thing;
iii. The opinion of skilled or scientific witnesses is admissible in evidence to elucidate which
are of a strictly professional or scientific character. Section 45, 46 and 51 of the IEA,
1872 deal with the last exception, and S.47 and 51 with the first, in so far as it bears on
the question of handwriting, section 48-50 add further exceptions relating to opinions or
general customs and rights, to usages, tenets and the like to the opinion on relationship
provided such opinions are expressed by conduct

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