Expert Evidence**

When the Court has to form an Opinion as to Foreign Law, Science or Art, Identity of Handwriting or Finger Impressions, the opinion of experts is relevant (Section 45 BSA)

Section 45 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) establishes the relevancy of expert opinions in cases where the court needs specialized knowledge beyond the ordinary understanding of a judge.

Who is an Expert?

• Definition in BSA: Section 45(1) BSA defines an expert as "a person specially skilled in foreign law, or in science, or in art, or in handwriting, or in finger impression.

• Examples of Expertise:

  • Foreign Law: A person learned in the law of a foreign country.

  • Science: Doctors, forensic scientists, chemists, engineers, ballistic experts, DNA analysts.

  • Art: Experts in art forgery, valuation of art, medical examiners.

  • Handwriting: Forensic document examiners specializing in handwriting analysis.

  • Finger Impressions: Fingerprint experts.

• Basis of Skill: The skill can be acquired through study, practice, or experience.

• Court's Determination: It is ultimately for the court to decide whether a witness possesses the necessary special skill to be considered an expert.

The opinion of such an expert is relevant to the court in forming its opinion on these matters.

Facts bearing upon opinion of experts (Section 46 BSA)

Section 46 of the BSA deals with facts that are relevant to help the court assess the opinion of an expert.

• Relevancy: Facts so intimately connected with a fact in issue or relevant fact as to form part of the same transaction, or facts which support or contradict the opinion of an expert, are relevant.

• Explanation: This means that not only the expert's opinion itself is relevant, but also any facts that explain why the expert gave that opinion, or facts that either support or contradict that opinion, are also relevant.

• Examples:

  • If a handwriting expert testifies that a signature is forged, evidence showing how the forgery was done or evidence from another expert contradicting this opinion would be relevant.

  • The circumstances under which an expert conducted their examination or the materials they relied upon can also be relevant.

• Purpose: This section allows the court to have a comprehensive understanding of the expert testimony by presenting all related facts that might influence the court's acceptance or rejection of the opinion.

Identification of Handwriting

The identification and comparison of handwriting are common applications of expert evidence.

Comparison of disputed handwriting with admitted handwriting

• Section 67 BSA: This section deals with proving handwriting. It states that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in that person's handwriting.

• Expert Opinion: An expert in handwriting can compare the disputed handwriting with admitted handwriting samples of the person.

• Admitted Handwriting: Admitted handwriting means handwriting that is admitted by the person against whom it is used to be in his handwriting, or which has been proved to have been written or signed by him. (Section 67 BSA).

• Methods of Comparison:

  • The expert uses specialized knowledge of calligraphy and graphology to analyze similarities and differences in letter formation, stroke patterns, spacing, slant, pressure, etc.

  • The court may also compare the disputed writing with admitted writing itself, without the aid of an expert (Section 73 BSA).

• Purpose: To establish the authenticity of a document or to link a document to a particular individual.

Weight to be given to expert evidence

Expert evidence is advisory and not binding on the court.

• Advisory Opinion: The opinion of an expert is relevant, but it is not conclusive proof of any fact. The court must evaluate the expert's opinion in conjunction with other evidence presented in the case.

• Court's Duty: The court is the ultimate judge of facts. It must apply its own mind to the evidence, including the expert opinion, and arrive at its own conclusion.

• Factors Considered: When assessing the weight of expert evidence, courts consider:

  • The expert's qualifications and experience.

  • The basis of the opinion (e.g., thoroughness of examination, scientific methodology used).

  • Consistency of the opinion with other evidence.

  • The expert's demeanor in court and their performance during cross-examination.

  • Potential bias.

• Not a Substitute for Court's Judgment: Expert evidence can assist the court, but it cannot replace the court's own judgment.

Statements of experts

The BSA also addresses how the opinions of experts are presented and proven in court.

Section 49 BSA

• Relevancy: When the Court has to form an opinion as to the identity of handwriting or finger impressions, the opinions of persons especially skilled in that art are relevant.

• Proof of Expert's Opinion: The opinion of an expert is typically given in court orally as testimony. If the expert is dead or cannot be called as a witness, their written report or statement may be relevant under Section 30 or Section 31 BSA if it meets the conditions for those sections (e.g., statement made in course of business, dying declaration). However, for general expert opinions under Section 45, the expert usually needs to depose in court.

• Written Reports: While the expert gives testimony, their written report forms the basis of their opinion and is usually submitted to the court and provided to the opposing party.

• Cross-Examination: The opposing party has the right to cross-examine the expert witness to test the validity of their opinion.