Relevancy of opinions of third parties

This article on ‘Relevancy of opinions of third parties’ is written by Aritra Sarkar and discusses the relevancy of the opinions of the third parties.

I. Introduction

As a general rule, the opinions of a third person’s are irrelevant in evidence law. They form a part of “res inter alios acta” which means any act done between two persons does not harm or benefit others. But Sections 45 to 51 deal with the cases when the opinions of third parties become relevant.

II. Section 45

According to section 45, there are 5 situations when the opinion of third parties can become relevant. They are matters regarding: –

1. Foreign law- Many times there are foreign laws that come into question
2. Science- All the tests that are performed on the basis of scientifically established principles.
3. Arts- For example, expert evidence of historians is to be taken to show a work of art belongs to Hindus or Muslims or any other religion.
4. Handwriting- In cases of forgery. Handwriting evidence comes into question. Under section 73 court itself can check handwriting. Under section 47 expert evidence with regard to handwriting can be taken.
5. Finger impressions- The science of fingerprints were first developed in Kolkata. In 1897 the first fingerprints bureau of the world was first set up. Since then there has been tremendous improvement in the science of finger impressions in the world.

In these scenarios, the opinions of experts in the relevant matter will be relevant in the case and the court can form an opinion based on the opinion of those experts.

For example-

1. If the question in the court is that if ‘A’ was killed by poison or not then the evidence was given by a specialist or expert of the symptoms will be relevant. [Illustration- (a)]
2. If the question before the court is whether a certain document is written by ‘A’ or not and another document is produced before the court and is proved or admitted to be written by ‘A’ then the opinion of experts on whether the two documents are written by the same person or not will be relevant. [Illustration- (c)]

III. When expert opinion is not consistent with a direct witness (eye witness)

However, in practice, the value of an expert opinion is not more than the value of the eyewitness account.

In case the eyewitness account is inconsistent with that of the expert opinion, direct evidence (i.e. eye witness account) is to be given priority. In case the eyewitness account is totally contradictory to that of the expert opinion then the credibility of the eyewitness account is to be seen. If the eye witness account is believed to be credible then the eye witness account is to be taken and conviction can be done on its basis even though expert evidence is going against it.

Therefore, the expert opinion is just an opinion and the court can form its own opinion even if it is totally contradictory to the expert’s opinion. So, the courts have to give due regard to the expert’s opinion but they are not bound by it.

The evidence of expert is not a very strong evidence rather it is very weak evidence and the court find it very unsafe to use those types of evidence without any kind of legitimate corroboration.

IV. Can an expert be tried for perjury?

This question was discussed in the case of Prem Sagar Manocha v. NCT of Delhi[1]. This case was in relation to the ballistic expert in the Jessica Lal murder case[2]. In this case, the defence said that there was another man in the crime scene other than the accused who fired and due to which Jessica Lal was killed.

The ballistic expert said that two bullets have been fired by two different guns. But he also said that he is not saying anything conclusively and all this is just his opinion. Later when the accused was convicted and it was proved that the accused was the one who fired the gun the ballistic expert was convicted of perjury. On appeal to the supreme court, the apex court quashed the order for perjury saying that an expert is not a witness we only take his opinion.

Police personnel who are having certificates of technical knowledge and also are having long experiences of inspection examination and testing of arms and ammunition must be held to experts in firearms examination.

The expression “Science and Arts” in section 45 of the Indian evidence act should have a very wide meaning. Based on this principle the court in the case of State v. S.J. Choudhary[3] stated that even though nothing is written as to typewritten words, handwriting would still be included with that of typewriter.

V. Scientific and expert evidence

Modern science has made a huge impact on the law of evidence. In several cases such as

1. Bloodstains,
2. Blood groups,
3. Alcohol and breath tests,
4. Tape recording,
5. Automatic photographs,
6. Computers,
7. Identification of fibres including human hairs,
8. Arson investigation,
9. Truth drugs and lie detectors,
10. Fingerprints and foot-prints,
11. Hypnotism science has helped in improving the evidence and make it more reliable and thus helped in finding the truth.

The duty of experts is to give the courts with the necessary scientific criteria for deciding the accuracy of their conclusion so as to enable the court to form their own opinion based on the scientific reports. It was said in the case of Davie v. Edinborough Magistrates[4]. This judgement signifies the attitude of the courts towards scientific evidence even today.

1. Ascertaining age– It has been held in the case of Shah Nawaz v. State of U.P.[5] that medical evidence for ascertaining age ignoring the date of birth given in the mark sheets and school certificates will not hold good. Medical evidence as to determining the age is to be taken only in cases where the prescribed methods of ascertaining the age are not available.
2. Brain mapping– The admissibility of such tests depends on the credibility and authenticity of those tests. It still requires consideration to ascertain whether such tests should be given a probative value or not. However, in the case of Ranjitsingh Brahmajeet Singh Sharma v. State of Maharashtra[6] the high court, as well as the supreme court, did not give reliance to such tests.
3. Medical examination of potency– medical evidence can be taken in cases relating to the potency of the spouse. In the case of Amol Chauhan v. Jyoti Chauhan[7], the wife filed a divorce petition on the grounds of impotency of the husband, the court ordered a medical examination of the husband’s potency.
4. Opinion on any other matters– At first the supreme court was of the view that opinion on any other matters can not be taken as an expert opinion but subsequently this view changed and now the rule is that opinion with regards to other technical matters can be regarded as expert evidence but not on matters that are already covered under this section. For example, it is not necessary to use the latest technology for determining anything when using earlier technology, we can already assess the thing accurately.

VI. Section 45A

Section 45A of the evidence act says that the opinion of the examiner of electronic evidence, as given in section 79A of the Information Technology Act, 2000, is to be taken in cases when the court has to form an opinion about any information stored in any computer or in any other digital form. But section 45A will come into play only when the electronic evidence is produced duly complying with the terms of section 65B.

VII. Section 46

Section 46 of the Indian evidence act says that the facts which are not relevant as such but which can be used to support or contradict the expert opinion will become relevant.

For example, in a case where the handwriting of a person is in question and the court has to determine as to if the accused has written a certain document or not and the handwriting expert has already given his opinion and said that the document in question is actually written by the accused, then, in this case, a letter proved to be written by the accused will be relevant if it can support or contradict the expert opinion, even if it has got no connection with the case.

VIII. Section 47

Section 47 of the Indian evidence act says that when the court has to ascertain whether a certain document is written or signed by a particular person or not then the opinions of persons, who are acquainted with the handwriting of that person, as to whether the document in question is written or signed by that person or not will be relevant. According to this section the a person is said to be acquainted with the handwriting of another person if he has seen that person write or he has received documents from that person or when in the regular course of business he receives the documents that are supposed to be written by that person have been habitually submitted to him.

For example, if we suppose ‘A’ is the secretary of ‘B’, the owner of a firm and thus ‘A’ has to submit to ‘B’ a written report written by ‘A’ himself about the daily business carried out by the firm. When the case before the court is if a document is written by ‘A’ or not then the opinion of ‘B’ is relevant in that matter since ‘B’ used to be acquainted with the writings of ‘A’ in the daily course of business.

IX. State of Gujarat v. Vinaya Chandra Chhota Lal Pathi[8]

In this case, the accused was charged with misappropriating and cashing three cheques. The handwriting evidence of the accused was found in 4 documents which were:

1. A statement by the accused in another criminal case
2. An application by the accused in another criminal case
3. Two documents containing admissions handed by the accused to his employer when he was said that his doings were found out.

The supreme court held in this case it was proved by the complainant that various entries in cheques and signatures were in the handwriting of the accused. The complainant (i.e. the employer) was held to be competent to be able to give evidence about the handwriting of the accused because the accused has worked for many years and the employer had many occasions to see the accused write or sign.

The court further held in this case that it may not be safe to find a person’s handwriting merely on the basis of comparison so a court can itself compare the handwritings of the persons in question in order to appreciate the evidence forwarded before the court.

The apex court also said in this case that the opinions of handwriting experts are relevant according to section 45 but they are not conclusive evidence. The sole evidence of a handwriting expert is not normally sufficient to record a finding of any writing.

X. Section 47A

Section 47A talks about the Opinion of the as to electronic signature when relevant.

It says that when the question before the court is about the authenticity of electronic evidence of any person then the opinion of the certifying authority who issued the electronic certificate will be relevant.

XI. Section 48

Section 48 of the Indian evidence act says that when the court has to see whether a general custom or right exits or not then the court can take the opinions of people who are likely to know about the existence of such customs or rights. For the purpose of this section general custom means a custom that is applicable to a considerable class of people.

XII. Section 13

Section 13 relates to facts relevant when right or custom is in question it says three aspects which are:

1. A transaction that creates the customs or modifies the customs
2. Particular instances when the customs were claimed
3. Opinion of dead people

In case of a custom which is related to one family only then the senior member of the family is to be questioned to look for the authenticity of such customs and if it is a custom followed by the entire community then the senior member of the community is to question.

Section 32(4) and section 48 of the Indian evidence act deals with general customs.

XIII. Section 49

Section 49 speaks about the opinions about the usage tenets etc. when relevant. It says that when the Court has to form an opinion as to

1. The usages and tenets of any body of men or family, or
2. The constitution and government of any religious or charitable foundation, or
3. The meaning of words or terms used in particular districts or by particular classes of people,

then the opinions of persons having special means of knowledge thereon are relevant facts.

XIV. Section 50

Section 50 talks about the opinion on a relationship when relevant.

This section says that whenever the court has to form an opinion as to the relation between two persons then the opinion of any other person who is having the special means of knowledge regarding that by being a member of the family or by any other means is a relevant fact. However, it is provided that such opinion will not be sufficient in proving a marriage under the Indian Divorce Act, 1869 and also in prosecution under sections 494, 495, 497 or 498 the Indian Penal Code, 1860.

For example, if the question before the court is to determine whether ‘A’ and ‘B’ are married then the fact that they are treated and received as married couples by their relatives and friends is relevant. [Illustration]

The supreme court in the case of Dolgobinda Paricha said that opinion in section 50 does not mean gossip or hearsay. It actually means conviction or belief of a particular person. Now the belief may manifest itself in conduct or behaviour. Section 50 says that this conduct or outward behaviour may be given as evidence of the opinion held.

1. Marriage– It has been held that the burden of proving that a marriage is valid or not is on the person who asserts that there was no valid marriage.
2. Adoption– In the case of Bami Bewa v. Krushna Chandra Swain[9] where there was a question of the validity of adoption, the evidence of the cousin of the adoptive father, the family priest and the family barber were questioned they were held to have special means of knowledge of the family.
3. Knowledge about the property as a family member– When there was a property dispute in a family and the plaintiff contended that the defendant’s mother was actually his sister then an 80 years old witness was produced who was the brother-in-law of the defendant’s mother. He had all the knowledge about family affairs and also attended the marriage of the defendant’s mother. He was supposed to have a special means of knowledge. This was held in the case of Bant Singh v. Niranjan Singh[10].

XV. Section 51

Section 51 of the Indian evidence act talks about grounds of opinion when relevant.

It says that whenever the opinion of a living person becomes relevant then the grounds on which his opinion is based also becomes relevant. For example, if an expert is giving his opinion on something then all those experiments performed by him because of which he reached that opinion also becomes relevant. [Illustration]

So, as we saw that the opinions of third persons are actually very weak evidence and the court has the liberty to decide whether to follow their opinion or not as explained earlier the opinion of third persons are generally not applicable these are special circumstances so we can say that sections 45 to 51 gives us exceptions in cases when the opinion of third persons can be taken into consideration.

Edited by- Akriti

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References

[1] AIR 2016 SC 290

[2] 2007 (93) DRJ 145

[3] 1996 (2) SCC 428

[4] 1953 SC 34

[5] (2011) 13 SCC 751

[6] (2005) 5 SCC 294

[7] AIR 2012 MP 61

[8] AIR 1967 SC 778

[9] AIR 2004 Ori 14

[10] (2008) 4 SCC 75

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