APPRECIATION OF EXPERT’S EVIDENCE


Introductory:-

A person who is very knowledgeable about or skilful in a particular area is an ‘Expert‘. The question is, whether who to be a witness. The expression to be a witness was held to mean imparting knowledge in respect of the relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a Court or to a person holding an enquiry or investigation. Admissible testimony relating to a professional, scientific, or technical subject is known as ‘expert’s evidence‘. The opinion of an Expert is only intended to enable the Court to form its opinion. It is curious to see that when the defendant is accused of purposefully changing the way of affixing his signature, in the case of Koya Lalitha Kumari’s case (infra), it was observed that no purpose would be achieved by securing his signature by Court now for sending it for comparison with his disputed signature in the suit document.

In fact, Expert evidence is based on formal and/or special study, training, or experience that imparts the competency to form an opinion upon matters associated with that subject. It is the duty of expert to present the necessary scientific or technical criteria to enable a court to test the accuracy of its own conclusions and to form its own independent judgment of the evidence. Expert evidence is used to assist the Court when the case before it involves matters on which it does not have the requisite technical or specialist knowledge. The role of an expert witness is to provide relevant and impartial evidence in their area of expertise. To find out the fact that when opinions of third person are relevant, it requires us to refer to section 45 to 51 of Indian Evidence Act,1872.

Expert Opinion:- What a person thinks in respect of the existence or non-existence of fact is an ‘opinion’. As a general rule the opinion or belief of third person is not relevant and admissible as the witnesses are allowed to state facts alone of what themselves saw or heard. But, an Expert is the person who specifically or specially skilled or practiced on any subject. It was held in Bhavanam Siva Reddy and others Vs. Bhavanam Hanumantha Reddy and another, 2017 (4) ALT 682. B. SIVA SANKARA RAO,j.

Duty of an expert:- Expert shall furnish to the Court necessary scientific criteria for testing the accuracy of his conclusions to enable the Court to form its own independent judgment by application of such criteria to the facts proved in the case. See. Koya Lalitha Kumari and others Vs. Polina Nageswara Rao (Died) per L.Rs., 2016 (1) ALT 42.

When opinions of third persons are relevant?

When an expert opinion is relevant is clearly illustrated in section 45 of Evidence Act. If the death of ‘A’ was caused by poison, the symptoms produced by the poison are relevant factors to form an opinion for expert. In such a case, opinion of experts as to the symptoms produced by the poison by which ‘A’ is supposed to have died, are relevant for the Court for an opinion under section 45 of Evidence Act. Further, whether a certain document is written by ‘A’. Another document is produced, which is admitted to have been written by ‘A’. Now, the opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant under section 45 of Evidence Act.

Under section 46 of Evidence Act, facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. For instance, the question is, whether A was poisoned by a certain poison. The fact that other person, who are poisoned by that poison, exhibited certain symptoms. The symptoms that which experts affirm or deny to be the symptoms of that poison, is relevant under section 46 of Evidence Act.

Under section 47 of Evidence Act explains when the opinion as to handwriting are relevant. The question is, whether a given letter is in the handwriting of A, a merchant in London. B is a merchant in Calcutta, who has written letters, addressed to A and received letters puporting to be written by him. C is B’s clerk whose duty it was to examine and file B’s correspondence. D is B’s broker to whom B habitually submitted the letters purpoerting to be written by A for the purpse of advising him thereon. The opinions of B,C, and D on the question whether the letter is in the handwriting of A are relevant under section 47 of Evidence Act, though neither B,C nor D ever saw A write.

Opinion as to digital signature is relevant under Section 47A of Evidence Act. According to this provision, when the Court has to form an opinion as to the digital signature of any person, the opinion of the Certifying Authority which has issued the Digital Signature Certificate is a relevant fact.

Under section 48 of Evidence Act, when the Court has to form an opinion as to the existence of any general custom or right, the opinions , as to the existence of such custom or right, of persons, who would be likely to know of its existence if it existed, are relevant. Similarly, under Section 49 of Evidence Act, opinions as to usages, tenets, etc are relevant. Section 50 of the Act provides that when the Court has to form an opinion as to relationship of one person to another, the opinion, expressed by conduct, as to theexistence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. the Proviso to section 50 says that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Dovorce Act, 1869 ( 4 of 1869 ), or in prosecutions under sections 494, 495, 497 or 498 of IPC. That too, under section 51 of Evidence Act, whenever the opinion of any living person is relevant, the ground on which such opinion is based are also relevant. An expert may give an account of experiments performed by him for the purpose of forming his opinion.

I have discussed till now the relevant provisions of Indian Evidence Act,1872 as to when opinions of third persons are relevant. A word about latest legal position as to appreciation of Expert’s opinion is not out of place.

Appreciation of expert’s evidence:

Experts opinion should be demonstrative:- Experts opinion should be demonstrative and should be supported by convincing reasons Such opinions are often of no use to the court and often lead to the breaking of very important links of prosecution evidence which are led for the purpose of prosecution. It was further held in this case that In criminal cases pertaining to offences against human body, medical evidence has decisive role to play. See. Machindra Vs. Sajjan Galpha Rankhamb and others, 2018 (1) ALT(CRI.)(SC) 173 ( D.B.). PINAKI CHANDRA GHOSE and ROHINTON FALI NARIMAN,jj.

Age of ink:- In Polana Jawaharlal Nehru Vs. Maddirala Prabhakara Reddy, 2017 (3) ALT 712. His Lordship Hon’ble Sri Justice V.Ramasubramanian, j, observed that it is an admitted fact that the science relating to forensic examination of handwriting, especially in relation to the fixation of the age of the ink, is not perfect. In cases of this nature, any reference of a document to the Handwriting Expert just for the purpose of finding out whether the ink was 5 years old or 3 years old at the time of institution of the suit, is not likely to bring any fruitful result.

Sole evidence of a hand writing expert is not normally sufficient:- The Hon’ble Supreme Court in S.P.S. Rathore Vs. C.B.I. and another, 2016 (3) ALT(CRI.)(SC) 307 ( D.B. ) observed that expert evidence as to hand writing is only opinion evidence and it can never be conclusive. The opinion of a hand writing expert is also relevant, but not conclusive.

Some principles regarding ‘Expert Opinion’ are summed up from the recent ruling in Kati Maheswara Rao Vs. Uppati Lalitha and others, 2018 (2) ALT 594:-

At any stage:- here is no bar for the Court at any stage of the case to obtain opinion of the expert for the purpose of arriving at a decision on the basis of the opinions of experts.

Court can compare signature:- The Court is entitled to make comparision of disputed and admitted signature for just conclusion but as a rule of prudence expert opinion can be obtained and also that the court can instruct a party to submit his writing or signature, enabling the court to compare and decide a case.

Discretion of the Court to sent a document:- It is the discretion of the Court to send a disputed document to an Handwriting expert so as to ascertain whether the signature or the thumb impression is forged one or not.

Procedure for obtaining expert opinion:- Section 45 of the Act does not provide any procedure for obtaining expert opinion.

Second expert opinion:- There is no prohibition under law for obtaining second expert opinion if either of the parties to the suit intends so. It is the duty of the Court to ascertain the truth or otherwise of the opinion submitted by the second handwriting expert at the time of deciding the main suit and not at the stage of trial. But, in 2010, in S.Neelakantam Vs. Maharudraiah Swamy, 2010 (5) ALT 128, it was then observed that when the first expert could not express any opinion on the reference made, sending the disputed document to another Expert for examination and opinion is not impermissible in law.

Sending photographic copies:– Not only original document can be sent for expert examination but photographic copies may also be sent for examination of handwriting expert.

Comparing handwriting by Court:- Even inspite of availability of expert evidence, the Court can also compare the signatures under section 73 of the Indian Evidence Act and opinion of the expert is only a guiding factor and it is for the court to examine the entire evidence on record including the evidence of handwriting expert and come to a just conclusion.

An opinion/report of a private expert:- Unless experts opinion/report is obtained on an application made to a Court in accordance with the procedure established by law and under the orders and supervision of the Court, an opinion/report of a private expert obtained by a party directly cannot be a part of the record of the Court and such an opinion/report privately obtained cannot be received in evidence and the expert who has given the same cannot be permitted to be examined as a witness. See. Virothi Tirupathi Rao Vs. Kota Venu, 2016 (4) ALT 478. M. SEETHARAMA MURTI,j

Private Handwriting Expert:- Whether the private handwriting expert is qualified or not, whther his report can be taken into consideration or not, all these aspects can be elicited during cross-examination by the defendnats.

Two aspects are required for comparision of the dipsuted signatures:- One is of contemporary relevancy to the extent possible. Another is the availability of originals. See. Mekapthula Venkateswarlu Vs. Rachabanti Krishna Murthy and others, 2018 (4) ALT 29.

Contemporaneous signatures or the writings are not available:- Where the contemporaneous signatures or the writings are not available for the expert opinion, the disputed documents where it becomes inevitable can be called for. See. Dintakurthi Narayana Vs. Rachuru Bhaskara Rao, 2017 (5) ALT 411.

Experts opinion Application filed three years after filing of suit:- Experts opinion Application filed three years after filing of suit and after examination of plaintiffs evidence to send suit promissory note to Expert for his opinion Dismissal of application by trial court is held sustainable as the Court itself is empowered to compare the disputed signature with admitted signatures of defendant. See. Papini Ramulu Vs. A. Lavanya – 2012 (6) ALT 471. B.N. RAO NALLA,j.

Quoting wrong provision:- Dismissal of application for expert opinion on the ground of quoting wrong provision is not legal. See. Palle Chakrapani Vs. M.Prathap Reddy, 2017 (5) ALT 292.

Signatures on vakalat and written statement are not contemporaneous:- Interpolations can be found with a naked eye and the Court can examine the document and record its finding subject to raising plea of material alterations in the written statement. But, the Court cannot order for examination of disputed signatures with the admitted signatures on vakalat and wrtiting statement which are contemporaneous. See. Palle Chakrapani Vs. M.Prathap Reddy, 2017 (5) ALT 292.

Genuineness of a document is in serious dispute:- In such a case, it is desirable that such document is examined by an expert and an opinion given thereon to aid the Court to come to a right conclusion. See. Pabolu Prameela Rani Vs. Bogi Prasanthi an another, 2017 (3) ALT 280.

Principles drawn from the case of T.Rajalingam Vs. State of Telangana, See. 2017 (3) ALT (CRL) (AP) 203.

Determination of age ink:- An expert opinion as to determine the age of writing can be possible and to admit is relevant. The expression that there is no scientific method available anywhere in the country or State, more particularly in the Forensic Science Department for scientific assessment of the age of handwriting to offer opinion is far from acceptance.

Time limit to send document to expert:- there is no time limit to file application in seeking to send the document containing a disputed signature or writing etc., to expert. See also. Poluru Sreenivasaulu Vs.Gajulu Sravan kumar, 2017 (2) ALT 414.

Futile exercise:-In the absence of the scientific expert, and on account of the impracticability involved, it would be only a futile exercise for sending scientific expert opinion. See. Takkella Radhakrishna and others, Vs. Gamiaineni Nagaraju, 2017 (2) ALT 9.

Medical evidence:- Medical evidence establishing that the deceased died because of gunshot injury. Evidence of witnesses cannot be disbelieved merely because they have deposed that they heard more than one shot as was held in Jabar Singh Vs. State of Rajasthan, 1995 (1) ALT (CRL) (DN) 16.

Expert’s opinion is not conclusive:- An Expert is capable of arriving at conclusion even by taking note of the undisputed writing irrespective of time gap between the date of said writing and the date on which disputed document was signed – Further, opinion of Expert is not conclusive. Parties may raise objections to it. It was also held that refusal to send a disputed document to Expert’s opinion merely on the ground that a contemporaneous document with admitted signature is not available is not legal.See. Jonnalagadda Ravi Sankar Vs. Jakka Rama Krishna Rao and another, 2013 (3) ALT 798. L. NARASIMHA REDDY,j.

Expert’s opinion can be taken as additional evidence:- Even the experts opinion is not final and conclusive Court can examine the disputed handwritings to come to a conclusion When handwritings are similar and identical and seems to be convincing in its nature even to a naked eye, the other evidence i.e., the expert opinion can be taken as additional evidence. See. Khandavalli Amith Kumar Vs. State of A.P., 2012 (3) ALT(CRI.)(A.P) 263. K.S. APPARAO,j. The rule is that Where there is no independent or direct evidence, presumption must be taken aid by the Court.

When a party denies his signature or thumb on document:- When a party denies his signature or thumb impression on a document, he should not be denied to obtain expert opinion merely on the ground of delay. Court may impose costs or pass any conditional order if Court feels that party’s intention is to protract the litigation. See. Jalagadugula Eswara Rao and others v. Davala Surya Rao, 2011 (1) ALT 652. B. CHANDRA KUMAR,j.

No time be fixed for filing applications seeking expert opinion:- An application can be filed even at the stage of arguments if circumstances of case so demand – Discretion of Court to deal with such applications cannot be controlled by hard and fast rules. See. Janachaitanya Housing Ltd. v. Divya Financiers, 2008 (3) ALT 409 ( D.B.). A. GOPAL REDDY and B. SESHASAYANA REDDY,jj.

When a document need not be sent for expert’s opinion? :- If court can form an opinion on evidence adduced, document need not be sent to Expert for opinion. See. Guru Govindu v. Devarapu Venkataramana, 2006 (5) ALT 17. L. NARASIMHA REDDY,j.

Section 73 of Evidence Act :- Courts to take assistance of experts section 73 of the evidence Act does bar the judge from ultimately deciding whether the signatures are forged or not still as a rule of prudence in disputed cases, it is always desirable that a Court should secure the opinion of quality handwriting expert on the subject After the opinion of the expert, is introduced into the evidence as required by law and the Court can come to a conclusion. See. Sakriya Krishna Bai (died) per LR. Vs. Syed Ismail (died) per LRs., 2018 (1) ALT 772. D.V.S.S.SOMAYAJULU,j.

Section 73 of Evidence Act :- The law is very clear by interpretation of scope of Section 73 of the Indian Evidence Act that the Court has no power to ask for writing or thumb impression of an accused of a crime before commencement of enquiry or trial. See. Amit Khetawat Vs. State of Telangana, 2017 (3) ALT(CRI.)(A.P) 2. B. SIVA SANKARA RAO,j

Section 73 of Evidence Act :- Section 73 of Evidence Act does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the court. See. State of Haryana Vs. Jagbir Singh and another – 2004 (1) ALT(D.N.)(SC) 2.1 ( D.B.). DORAISWAMY RAJU and AJIT PRAKASH SHAH,jj.

Spectrographs test:- There is no provision in the Code or any other law, which empowers the police or a Criminal Court, to subject the accused to the test, either from the provisions of the Act of 1920 or Section 53 Cr.P.C. or Sections 73 and 165 of the Evidence Act to compel the accused to give his voice sample for the purpose of spectrographs test. See. Amit Khetawat Vs. State of Telangana, 2017 (3) ALT(CRI.)(A.P) 2. B. SIVA SANKARA RAO,j.

Court generally being not an expert in comparison of signature and hand writings etc:- Though the court got power under Section 73 of Evidence Act and there is even other remedies to prove, the court generally being not an expert in comparison of signature and hand writings etc., with scientific expertise; take an experts opinion with reasons under Section 45 read with 51 of Evidence Act. See. P. Kusuma Kumari Vs. State of A.P., 2016 (2) ALT(CRI.)(A.P) 476. B. SIVA SANKARA RAO,j.

Expert opinion is an assistance to Court:- Before exercising powers under section 73 of Evidence Act to form an opinion by comparing the handwriting or signature of a party, it would always be proper for the Court to take the assistance of Handwriting Expert to be in a better position to form an appropriate opinion. See. Matta Sriramamurthy Vs. Arepalli Srirama Murthy, 2015 (3) ALT 266. R. KANTHA RAO,j.

Comparison by Court:- There is no legal bar to prevent the Court from comparing the disputed signatures with the admitted signatures under section 73 of Evidence Act. However, the Court, in doing so, must keep in mind the risk involved as the opinion formed by Court is susceptible to error especially when such exercise is being conducted by Court not conversant with the subject. See. Chidara Uma Maheshwar Rao Vs. Methuku Janardhan, 2013 (6) ALT 806. C.V. NAGARJUNA REDDY,j.

Comparison by Court:- In case of necessity, Court takes upon itself task of comparing signatures. Need not invariably send signatures for comparison to a handwriting expert Facts of case relevant to decide when and whether to send to handwriting expert section 73 provides for comparison by Court itself Absolutely, no legal bar preventing Court from comparing signatures or handwriting by its own eyes, however, must refrain from playing role of an expert Opinion of handwriting expert not immune from being fallible/liable to error, like that of any other witness. See. Ajay Kumar Parmar Vs. State of Rajasthan, 2013 (2) SCJ 809 ( D.B. ). DR. B.S. CHAUHAN and FAKKIR MOHAMED IBRAHIM KALIFULLA,jj.

At what stage, application for expert opinion is to be filed?:- If the dispute is as to execution of a document by one of the parties to the suit, the application to send the document to expert must be filed before the evidence of such party is closed. See. Pulaparti Sankuntala Bai v. Mygapula Ramanjaneyulu, 2006 (3) ALT 607.

Slight variation in the signature:- Though there is a slight variation in the signatures, it need not be given much weightage due to gap of eight years – Contention rejected. See. G. Aravind Kumar v. Md. Sadat Ali (died) and another, 2011 (5) ALT 574.

Uncorroborates evidence of a hand writing:- Uncorroborates evidence of a hand writing expert is an extremely weak type of evidence and the same should not be relied upon either conviction or for acquittal. See. S.P.S. Rathore Vs. C.B.I. and another, 2016 (3) ALT(CRI.)(SC) 307 (D.B.). V. GOPALA GOWDA and R.K. AGRAWAL,jj. In another case O. Ravindranath Appellant Vs. State of A.P. rep. by the Inspector of Police, C.B.I., Visakhapatnam Respondent, 1995 (2) ALT(CRI.)(A.P) 157. His Lordship Hon’ble Sri Justice G. RADHAKRISHNA RAO,j. observed that Offence of fraud alleged to have been committed by clerks of a Bank. General notion that opinion of hand-writing expert is a weak type of evidence cannot be applied in such a case where opinion is corroborated by oral evidence.

Scientific investigation:- It is only the Government Security Press that can certify the date or period at which a particular stamp paper was printed.(Para 5). See. Ravaluru Venkata Subbamma v. Ravaluru Somasekhar, 2009 (5) ALT 549.

Expert opinion before trial:- Allowing of application for sending disputed documents for Expert’s opinion before commencement of trial is not legal. See. J.L. Babu v. S.Gowri Shankar and another, 2009 (5) ALT 415.

Expert opinion at appellate stage:- Receiving of an Expert’s opinion at appellate stage would amount to receiving additional evidence under Order 41, Rule 27, CPC. See. V. Chidambara Reddy v. K. Govinda Reddy, 2008 (6) ALT 312. P.S. NARAYANA,j.

Expert’s opinion is important:- Where injuries are caused by firearms, opinion of ballistic expert is important. It was held by the Hon’ble Supreme Court in Sukhwant Singh Vs. State of Punjab, 1995 (2) ALT(CRI.)(SC) 201 ( D.B. ). A.S. ANAND and FAIZAN UDDIN,jj.

Examination of mental condition of a Person:- Expert opinion obtained that appellant was normal – It cannot be said that appellant was deprived of his senses even temporarily. See. Ram Deo Chauhan alias Raj Nath Chauhan Vs. State of Assam, 2000 (2) ALT(CRI.)(SC) 142 ( D.B. ). K.T. THOMAS and R.P. SETHI,jj.

Application seeking issue of commission to make scientific investigation:– Application seeking issue of commission to make scientific investigation of disputed and admitted signatures and send Expert opinion is maintainable even in execution proceedings. See. Theetla Vijayudu v. Gaddam Lakshmidevi and others, 2005 (5) ALT 655. P.S. NARAYANA,j.

Expert opinion in suit on pronote:- Where a defence is taken that signature was taken on a blank pronote and the pronote is fabricated, it would be just and proper exercise of discretion to send the document to Handwriting Expert for his opinion as regards the age of inks in signature and body of pronote. See. Penumastha Ramachandra Raju v. Gaddam Raja Sekhar Reddy, 2005 (6) ALT 49. P.S. NARAYANA,j.

Genuineness of documents. Modes of proof:- Expert evidence regarding handwriting is not the only mode by which genuineness of a document can be established. The requirement in Section 67 of the Act is only that the handwriting must be proved to be that of the person concerned. In order to prove the identity of the handwriting any mode not forbidden by law can be resorted to – Of course, two modes are indicated by law in Sections 45 and 47 of the Act. The former points expert opinion to be regarded as relevant evidence and the latter points opinion of any person acquainted with such handwriting to be regarded as relevant evidence. There can be other modes through which identity of handwriting can be established. See. Gulzar Ali and others Vs. State of Himachal Pradesh, 1997 (6) ALT (DN) 8.2. K.T. THOMAS and M.K. MUKHERJEE,jj

Conclusion:-

The opinion of an Expert is only intended to enable the Court to form its opinion. An Expert merely tenders evidence and does not decide the issue. No Court should mechanically without application of mind surrender its will and independence of judging properly the fact in issue to the judgment of an Expert. As the Court is not technically trained or qualified to indulge in comparison of signatures and thumb impressions and as any comparison with naked eye by Court may be unsafe to arrive at truth. When the opinion of expert will be more helpful to lead evidence by both parties and to come to appropriate conclusion by Court, then it is essential to send the disputed document to expert for opinion. However, as was held in M. Pentaiah Vs. B. Parameshwar, 2012 (6) ALT 650, Court need not refer every document to Expert’s opinion on mere asking unless Court opines that the opinion of Expert is necessary. Further, it is ell-settled law that Courts can refrain from allowing applications made for sending disputed documents for Expert’s opinion if the parties are not diligent enough and if there are no bona fides behind filing of such applications. The reason is such that Section 45 of Evidence Act does not cast an obligation on Courts to send a disputed document for Expert’s opinion as a matter of course. It was laid down in Gowri Shankar Vs. J.L. Babu and another, 2012 (3) ALT 287. In fact, expert opinion is only opinion evidence to be considered in the light of other admissible evidence. It is also well-settled law that opinion of expert can be sought only by sending the signature of a party on a disputed document for comparison with the one on an undisputed document and not with the signature on a document executed subsequent to disputed document. Let me conclude this article highlighting the principle that when a party opts to file an application to send disputed document to Handwriting Expert for comparison, if the expert’s opinnion is essential to reach just conclusion, it is essential to allow such application in the interests of justice as it would not cause any prejudice to either party and as it also helps the Court to make comparison itself. The opinion of an expert is only relevant, but not conclusive.

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4 Comments (+add yours?)

  1. muthevi
    Jul 05, 2018 @ 12:28:03

    Thank u sir..nice article…

    Reply

  2. abburi jitendra
    Jul 05, 2018 @ 12:42:41

    Thank you Sir. Interesting and nice article

    Reply

  3. human
    Jul 06, 2018 @ 04:59:00

    Good work

    Reply

  4. KS
    Jul 07, 2018 @ 04:09:44

    very nice and detailed discussion on expert opinion.

    Reply

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