Opinion of Third Persons when Relevant under the Indian Evidence Act

1. Abstract

• What a person thinks with respect to the existence or non-existence of a fact is an opinion, and whatever is presented to the sense of a witness and of which he receives direct knowledge without any process of thinking and reasoning is not an opinion. When the court has to form an opinion on upon the point of foreign law over science or art or any other. The opinion upon that point of person specially skilled in such domain are called experts. In this article, we will navigate the types of third-person opinions that are relevant.

2. Introduction

• It was first stated by the Delhi high court in VLS Finance Ltd. V. CIT[1] about the term “opinion” which means something more than merely relating to gossip or hearsay. It could be said that it is closely related to judgment or beliefs. Generally, the opinions of the third person are irrelevant and therefore inadmissible.[2]
• Section 45 acts as an exception to this rule by defining who is an expert. The primary obligation of an expert is to assist the court which falls under the ambit of their expertise. Although this cannot be replaced with substantive evidence, it could collaborate by either direct or circumstantial evidence.
• It could be enumerated that the expert witness is purely of advisory form whilst compared to witnesses who state facts in the court. The former is always considered less than the latter.[3]

3. Characteristics of an Expert

• Experience
• Specialized knowledge
• Qualifications
• Research skills
• Problem-solving
• Professionalism
• Recognition by the parties
• Critical thinking

4. Relevancy of Experts opinion

• Sections 45 to 51 deal with the general principles about opinions of third persons when relevant, this could be enumerated down below:

I. Opinion of Expert [ Section 45]

• This section states that when the court has to form an opinion on the following below:

a. Foreign Law- when the court has to form an opinion in regard to the law of a foreign country, an expert in that particular law may be called upon. This must be proved as a fact; this was stated in the case of Kode Gangasar v. Swaminanda Madali.[4]

b. Science or art- when the court has to form an opinion based on this field, a person who is specialized in this knowledge can be appointed. A few examples of this field would be:

• Medical Evidence
• Opinion of doctor as to age
• Medical report to determine juvenility not conclusively.
• Medical expert
• Ballistic expert
• Architect

c. Handwriting- when there is a question before the court as to determine whether a particular document belongs to a person in opinion or not, the court could either take the opinion of a person who is closely associated with that person’s handwriting in question or the court could itself compare the two. It should be borne in mind that the opinion of the expert is of the weakest and the least reliable evidence.

d. Finger impression- this is considered to be the most crucial branch of criminal investigation; it also plays a vital role in civil law. It was held in the case of Golam Rahman v. King[5], that in some cases the opinion of fingerprint weighs more than handwriting.

e. Fire-arms expert- the opinion of a fire-arm expert can prove whether a particular cartridge has been used by a particular person or not.[6]

II. Opinion of Examiner of Electronic Device [ Section 45 A]

• Electronic evidence means any crucial piece of the case that is contained in the digital form. Hence, a person who has acquired specialized knowledge is considered an examiner for electronic evidence through Section 79A.[7]
• It was held in the case of Murari v. State of Madhya Prasdesh[8], that the evidence must be corroborated to increase the understanding of the technical information.

III. Fact bearing upon the opinion of experts [ Section 46]

• This acts as a supplement to section 45 by allowing facts that are not relevant but if they support the opinions of experts, then it shall be taken into consideration. [9]This was from the case of Folkes v. Chad [10][11]

IV. Opinion as to handwriting. [ Section 47]

• When the court must figure out by whom a particular document was written or signed, any person who was acquainted with that person who signed the document or wrote, shall have his opinion be considered.[12]
• The main part of this section applies to those cases where the disputed signatures or writing is not written in the presence of the persons appearing to prove them, who are competent to recognize due to acquaintance, this was held in the case of Girja Prasad v. Sardar Labh Singh.[13]

V. Opinion as to digital signature [Section 47-A]

• Whenever the court has to form an opinion about a digital signature, the opinion of the certifying authority which has issued the electronic signature is a relevant fact.

VI. Opinion as to Existence of Right or Customs [ Section 48]

• When the court has to form an opinion as to the relation with customs or rights, the persons who are likely to know the existence of such customs shall be considered relevant.
• The general customs refer to the customs which prevail in a locality which is followed by a considerable amount of people which has to be declared as customs. [14]This was held in the case of Radha Krishna Kandolkar v/s. Tukaram.[15]

VII. Opinion as to usages, tenets, etc. [Section 49]

• As the principle states when the court wants to form an opinion based on the usage of tenets of any body of men or family, the opinion of persons who have specialized knowledge is to be considered relevant to this case.

VIII. Opinion on the relationship [ Section 50]

• When the court has to form an opinion based upon a relationship of one person, the opinion which has been expressed by any person who is a member of the family or has a special knowledge of that particular subject can be admitted as relevant.
• Such opinion shall not be considered to be sufficient to prove a marriage in proceedings under the Indian Divorce Act or Sections 492, 495, 497, and 498 of IPC.[16]

IX. Grounds of Opinion [ Section 51]

• This section provides when the grounds of opinion are to be considered relevant. When there are various tests that have been conducted in order to get to that particular conclusion, those various tests shall also be taken into consideration.[17]

5. Value of expert opinion

• The real value of this consists of rightful inferences that they draw and observe and not merely a surmise. This must be judged by other evidence since it’s not conclusive in nature. Therefore, such evidence cannot be taken into consideration unless it is corroborated with other evidence.
• It is to be noted that the evidence of the expert is to be approached with a considerable amount of caution since it outlines the outcome of the case.[18]

6. Conclusion

• The opinions play a crucial role in everyday life in assisting the court with matters which require special knowledge about the particular circumstances which is beyond the common understanding of juniors or judges which has been expressively outlined in sections 45-51 under the Indian Evidence Act. These provisions include the fields of science, art, finger impression, and handwriting. This act empowers the court to admit a third person whenever they find it necessary to do so. However, while these opinions are to be admissible, their actual value and weight are subject to court scrutiny to ensure that there is no foul play being involved.

Reference(s):

[1] AIR 2016 (12) SCC 32.

[2] Expert opinion in Evidence Act, Section 45 to 51 of Evidence Act. (n.d.). Drishti Judiciary. https://www.drishtijudiciary.com/to-the-point/ttp-indian-evidence-act/opinion-of-third-persons-when-relevant#:~:text=The%20opinions%20or%20beliefs%20of,opinion%20on%20the%20facts%20stated.

[3] Rai, D. (2020, March 26). Opinion of Third Person under the Indian Evidence Act – iPleaders. iPleaders. https://blog.ipleaders.in/opinion-of-third-person-under-the-indian-evidence-act/

[4] AIR 1926 Mad 218.

[5] AIR 1950 Cal 66.

[6] The Law of Evidence, Batuk Lal.

[7] Information Technology Act, 2000

[8] 1979 MPRN 493.

[9] LawBhoomi (2024). Expert Opinion under Indian Evidence Act, 1872. [online] LawBhoomi. Available at: https://lawbhoomi.com/expert-opinion-under-indian-evidence-act-1872/#:~:text=Section%2046%20of%20the%20Act [Accessed 16 Jul. 2024].

[10] 1782, 3 Doug KB, 157.

[12] kanoongpt. in. (n.d.). Section 47: Opinion As To Handwriting, When Relevant | The Indian Evidence Act, 1872 Old Version. [online] Available at: https://kanoongpt.in/bare-acts/the-indian-evidence-act-1872-old/part-i-opinions-of-third-persons-when-relevant-section-47-9d851ff459eac6f6 [Accessed 16 Jul. 2024].

[13] AIR 1977 Patna 241.

[14] (legalserviceindia.com. (n.d.). Expert Opinion And Its Relevancy Under Indian Evidence Act,1872. [online] Available at: https://www.legalserviceindia.com/legal/article-7011-expert-opinion-and-it-s-relevancy-under-indian-evidence-act-1872.html [Accessed 16 Jul. 2024].

[15] (1991) 1 BOM CR 315

[16] LawBhoomi (2024). Expert Opinion under Indian Evidence Act, 1872. [online] LawBhoomi. Available at: https://lawbhoomi.com/expert-opinion-under-indian-evidence-act-1872/#Section_49_Opinion_as_to_Usages_Tenets_Etc_when_Relevant [Accessed 17 Jul. 2024].

[17] Sehgal, D.R. (2020). Various Provisions relating to Opinions in the Indian Evidence Act. [online] iPleaders. Available at: https://blog.ipleaders.in/various-provisions-relating-opinions-indian-evidence-act/ [Accessed 17 Jul. 2024].

[18] legalserviceindia.com. (n.d.). Evidentiary Importance of Expert Witness and Opinion. [online] Available at: https://www.legalserviceindia.com/legal/article-13246-evidentiary-importance-of-expert-witness-and-opinion.html#google_vignette [Accessed 17 Jul. 2024].