INDIAN EVIDENCE ACT PROJECT

ON

EXPERT TESTIMONY

(SECTION 45 TO SECTION 51)

INDEX

S.No Topic Page No.

1. Introduction 1

2. Section 45 and 46 1-13

3. Section 47 and 47 A 14-22

4. Section 48 23-24

5. Section 49, 50 and 51 25-34

6. Bibliography and Webiography 35

 TABLE OF CASES

 Fakhruddin V. State of Madhya Pradesh

 Hema V. State
 Kanubhai Prabhudas & Anr. Vs. State of Gujarat
 Kelly v. Richardson
 National Justice Compania Naviera v. Prudential Assurance Co. Ltd
 P.M Das V. Central Bank
 Queon v. Silverlock
 Radha Krishnan Kandolkar V. Tukaram,
 Ram Narain V. State of Uttar Pradesh
 Ramkali & Anr. Vs Mahila Shyamwati & Ors
 Regina v. Turner

Introduction

The law of evidence allows an opinion of any person other than the judge as to the existence of

the facts in issue or facts that are relevant to a matter. The judge is not expected to be an expert in

all fields especially where the subject matters involve technical or specialized knowledge. In
these circumstances he needs the help of an expert- who has superior knowledge or experience in

relation to the subject matter.

Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide relevancy of opinion of

third persons, which is commonly called in our day to day practice as expert’s opinion. These

provisions are exceptional in nature to the general rule that evidence is to be given of the facts

only which are within the knowledge of a witness. The exception is based on the principle that

the court can’t form opinion on the matters, which are technically complicated and professionally

sophisticated, without assistance of the persons who have acquired special knowledge and skill

on those matters. Conditions for admitting an expert opinion are following:-

a) That the dispute can’t be resolved without expert opinion and

b) That the witness expressing the opinion is really an expert.

Section 45. Opinions of experts.—When the Court has to form an opinion upon a point of

foreign law or of science or art, or as to identity of handwriting [or finger impressions], the

opinions upon that point of persons specially skilled in such foreign law, science or art, [or in

questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons

are called experts. Illustrations

(a) The question is, whether the death of A was caused by poison. The opinions of experts as to

the symptoms produced by the poison by which A is supposed to have died are relevant.

(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness

of mind, incapable of knowing the nature of the Act, or that he was doing what was either wrong
or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by

A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders

persons incapable of knowing the nature of the acts which they do, or of knowing that what they

do is either wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another document is produced

which is proved or admitted to have been written by A. The opinions of experts on the question

whether the two documents were written by the same person or by different persons, are

relevant1.

Who is an expert?

It is very difficult to give a precise definition for the term 'expert opinion'. Simply one can say

that 'expert opinion' means opinion given by an expert. This can be taken only as a layman's

explanation. Some more detailed definition is necessary for getting the meaning as it is.

Any writer has given no satisfactory definition. However, an American jurist, Wigmore has

stated that "...whenever inferences and conclusions can be drawn by the jury as well as by the

witness, the witness is superfluous: and that thus an expert’s opinion is received because and

whenever his skill is greater than the jury's...” From this statement one can say that expert

evidence is evidence given by experts who had some special knowledge on matters not within

the common knowledge of the court. But this cannot be considered as satisfactory definition.

In the light of the statement of Wigmore, an attempt to explain the term 'expert' may help to some

extent in getting the meaning of the word expert opinion. Here the line that demarcates expert

from non-expert opinion assumes importance. Lay opinion testimony is excluded because it is

1
Indian Evidence Act, 1872
useless and consumes unnecessary time of the court; at the same time expert’s opinion is

admitted because it will add some additional knowledge, which the judge did not know earlier. It

is a difficult task to draw a line between expert and lay opinion. An U.S. decision will help to an

extent. It was in Kelly v. Richardson, Campbell J, has stated:

The phrase 'expert testimony' is not entirely fortunate as designed to cover all cases where a

witness may give his opinions. [First, as to impressions of cold or heat, and the like] any person

can give such impressions without special experience or special intelligence. Beyond these every

day matters known to all men, are things which most, if not all persons can become qualified to

judge by more or less opportunities of observation, local or habitual, but which require no

peculiar intelligence. [Secondly] then, there are branches of business or occupations' where some

intelligence is requisite for judgement, but opportunities and habits of observation must be

combined with some practical experience. This seems to be the beginning or lower grade of what

may properly be termed 'experts', a word meaning only the acquisition of certain habits of

judgement, based on experience or special observation. And the scale raised as the qualifications

become nicer and require greater capacity of knowledge and experience, until it reaches

scientific observers and practitioners in art and science requiring peculiar and thorough special

training.

From this case it is clear that in the case of lay opinion testimony, court can assume whether a

particular person had capacity to express an opinion from the experience he secured by his

habitual activities. At the same time if a witness transgresses this limit, court may require him to

show his special skill or capacity. This capacity is outside one's general experience attained

through his daily routines. Thus experts are witnesses having experience, which enables them to

give opinions on the facts or in issues within their specialised field.

The definition given by Lawson and Roger seems to be in the said manner of experiential

capacity. Lawson defines expert as a person who has special knowledge and skill in the particular

calling to which the enquiry relates. Roger gives a special emphasis regarding that special

knowledge as science, art and trade. Thus experts are persons who have devoted time and study

to a special branch of learning on which he is asked to state his opinion.

Here the questions formulated by Lord Russell in Queon v. Silverlock, to determine a person as

an expert gains importance. He asked, "Is he Peritus? Is he skilled? Has he had an adequate

knowledge? These questions have its genus in experiential capacity of a person. Hence, here it is

relevant to know about experiential capacity. Experiential capacity is the capacity of a person in

testifying a matter in hand. This capacity must be specific to the topic for which the person is

required to testify. For example, a microbiologist is not enough to testify a matter connected with

D.N.A finger printing but it has to be done by a person specialised in D.N.A technology.

According to Wigmore the term 'experience' means and includes all the processes- the continual

use of the faculties, the habit and practice of an occupation, special study, professional training

and anything, which may contribute to produce a fitness to acquire accurate knowledge upon a

given subject. Thus it is liberal to include each and every area of knowledge on which one speaks

and it is immaterial whether he acquired his fitness through a particular profession. Modern

definition regarding expert is paraphrased on the statement "an expert is what an expert does".

From these words one can say that an expert becomes an expert not only through academic

qualifications but also of the spectrum of activities, which he does in any specialised field.2

The definition of an expert may be referred from the provision of Sec.45 of Indian Evidence Act

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that an ‘Expert’ means a person who has special knowledge, skill or experience in any of the

following-

1) foreign law

2) science

3) art

4) handwriting or

5) finger impression

and such knowledge has been gathered by him—

a) by practice,

b) observation or

c) proper studies.

For example, medical officer, chemical analyst, explosive expert, ballistic expert, fingerprint

expert etc.

According to Sec.45, the definition of an expert is confined only to the five subjects or fields as

mentioned above. But practically there are some more subjects or fields on which court may seek

opinion an expert.

An expert witness is one who has devoted time and study to a special branch of learning and thus

he is especially skilled on those points on which he is asked to state his opinion. His evidence on

such points is admissible to enable the court to come to a satisfactory conclusion.

An expert is a person having special and high level knowledge of a Particular subject. When

such an individual is asked to testify with regard to his specialized knowledge he is confined to

be an expert witness. The role of an expert witness is to assist and determine the issues in dispute
by furnishing the court with information, which is likely to be outside the knowledge and

experience of the judge. The person must gain the acceptance of the court and should testify

about facts rather than the law unless he has been asked to testify with regard to his special

knowledge of law. The judge should ensure that the expert is qualified on the disputed issue and

only relevant and reliable opinions are accepted from him or her. There is no threshold test in

common law for the admissibility of expert evidence which determine its reliability and it is at

the judge’s discretion to accept it or not.

In the modern world, expert evidence has come to play an important role in determining a causal

link between conduct and the harm suffered. An expert witness can be appointed either by either

party or by the court. Their opinion is useful in both civil and criminal cases.

Duty of the expert:-

a) An expert is not a witness of fact.

b) His evidence is of advisory character.

c) An expert deposes and does not decide.

d) An expert witness is to furnish the judge necessary scientific criteria for testing the accuracy

of the conclusion so as to enable the judge to form his independent judgment by application of

the criteria to the facts proved by the evidence.3

The function of an expert witness was clearly laid down by Lawton L J. in Regina v. Turner,

as follows:

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... their function is to provide the court with information about a point at issue or to help the

tribunal of fact to interpret information about a point at issue, which is out with the knowledge

and experience of that tribunal.

In doing so, the expert may express an opinion as to the interpretation of the proven facts. Their

task is to furnish basic scientific or technical data and to present inferences and conclusions.

From the name (experts) itself it is clear that they are different from other witnesses and they are

getting priority over ordinary witnesses. They can speak on a matter of special study, practice or

observation.

Their role is thus an educator to assist the lawyers in the preparation of the case and as an

advisor, if the case goes to the court to assist the judge to reach a fair decision.

In National Justice Compania Naviera v. Prudential Assurance Co. Ltd, the duties of expert

witnesses were summarised by Cresswell J., as follows:

1. Expert evidence should independent and not influenced by the exigencies of litigation;

2. Expert opinion should be unbiased and objective; an expert witness should never assume the

role of an advocate;

3. Facts or assumptions upon which the opinion was based should be stated, together with

material facts which could detract from the concluded opinion;

4. An expert witness should make it clear when a question or issue fell outside his experience;

5. If there was insufficient data upon which to reach an opinion, this had to be stated with an

indication that the opinion was provisional and any doubts had to be stated;

6. If the expert changed his mind, this had to be made known to the other side without delay;
7. There ought to be full disclosure of documents referred to in the expert evidence.

Elements of Expert Evidence - An expert’s testimony can be considered as evidence only if:

 It can be demonstrated that there is a field of “specialized knowledge”.

 There is an identified aspect of that field in which the witness demonstrates that by

reason of special training, study or experience, the witness has become an expert.

 The opinion proffered can be “wholly or substantially based on the witness’s expert

knowledge.

 So far as the opinion is based on facts “observed” by the expert, they can be identified

and admissibly proved by the expert.

 So far as the opinion is based on “assumed” or “accepted” facts, they can be identified

and proved in some other way.

 It can be established that the facts on which the opinion is based form a proper foundation

for it, and the expert’s evidence can explain how the field of “specialized knowledge” in

which the witness is expert, and on which the opinion is “wholly or substantially based”

applies to the facts assumed or observed so as to produce the opinion propounded.

Subject Matters of Expert Evidence -Till 1954 the subject of expert testimony was confined to

foreign law, science, art and the identification of handwriting or finger impressions. At one time

only medical doctors, engineers, architects, stockbrokers etc were called as expert witness. Now

the science and technology have reached such heights expert evidence is no longer confined to a

select few Scientists in many field are called upon to testify in court. As far as criminal law is
concerned ballistic experts, forensic experts, scientists who decide the legitimacy or identity by

DNA tests, chemical examiners, psychiatrists, radiologists and even track-dogs play a vital role

in the investigation of crimes.

Testimony by Experts:

“The evolution of the concept of 'expertise' is one of the path-breaking achievements of the legal

system. “Expertisation involves an interaction between different subjects." Through this

interaction, what law aims is to acquire knowledge, which is outside the ambit of non-expert fact

finders. Courts are expected to hear and determine all the cases that come before them. They

cannot escape from their duty by saying that the case cannot be disposed of due to the non-

existence of judicial techniques Therefore, judges in their everyday life depend on expert's

testimony generally and more specifically. Moreover, as a consequence of advances in science

and technology, there has been an increasing necessity for the courts of law to rely on expert

testimony. Forensic science has become a handmaid of the law enforcement authorities. Criminal

investigation is largely centred in the forensic science laboratories. So scientific proof has

become inevitable in adjudicating criminal issues. It covers a large number of disciplines, with

science at its nucleus. Modern technology and recent advances in scientific area have enlarged

the scope of Forensic Science. The eminent Criminologist Erle Stanley Gardner once said:

The attorney who is going to practise Criminal law must of necessity know something of the

problems of scientific proof. He must understand the extent to which Science has been able to

help the investigator in the Criminal field. Even today, with all of the facilities available to

prosecutors, in probably ninety five percent of the cases prosecuted, scientific evidence which

should have been available has either gone undiscovered, has been so contaminated as to be

useless, or has entirely escaped the attention of the police and the prosecutor. Recent
developments in the field of Science can, when properly applied to the practice of Criminal law,

open up new doors, new channels of thought and entirely new gambits in the field of proof."

It is also a well-accepted fact that the data obtained in a forensic science laboratory have no use

if it is not explained before a court of law. Here experts play an important role in communicating

valuable materials necessary for a just decision. It is the expert witness who will act as a vehicle

in the transmission of knowledge, which is outside the mental faculty of non-expert judges.

Through this process they are conveying scientific terms in an easiest manner understandable to

a layman.4

Section 47 in the Indian Evidence Act, 1872

47. Opinion as to handwriting, when relevant.—When the Court has to form an opinion as to

the person by whom any document was written or signed, the opinion of any person acquainted

with the handwriting of the person by whom it is supposed to be written or signed that it was or

was not written or signed by that person, is a relevant fact.

Explanation.—A person is said to be acquainted with the handwriting of another person when he

has seen that person write, or when he has received documents purporting to be written by that

person in answer to documents written by himself or under his authority and addressed to that

person, or when, in the ordinary course of business, documents purporting to be written by that

person have been habitually submitted to him.

4
Supra 2
Illustration:

The question is, whether a given letter is in the underwriting of A, a merchant in London.

B is a merchant in Calcutta, who has written letters addressed to A and received letters

purporting 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 purporting to be

written by A for the purpose 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, though neither B, C nor D ever saw A write.5

From the construction of the provision itself, it is clear that "any person" may give testimony

regarding the handwriting or signature and it is not restricted to experts. One feature of this

Section distinct from United States law is that it is not necessary to have direct knowledge. It is

not necessary that the witness must have seen the person in question write the impugned

document. The condition "acquainted" is fulfilled if the witness had an opportunity to receive the

documents written by the person in question habitually, even though he had not seen the person

write. Like expert evidence, there is no need to give reasons in support of the lay opinion

testimony, but he must have familiarity with the writing of the person in question. Section 47 of

the Indian Evidence Act is based on the English law. 6

Opinion as to Handwriting

When the Court had to determine the question whether a document is written or signed by a

certain person, the Court can admit the opinion of a person who is acquainted with that person’s

5
Principles of the Law of Evidence by Dr. Avtar Singh, Central Law Publications, Allahabad, 21 st Ed
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handwriting. The explanation attached to this section gives guidance as to who is considered to

be acquainted with another’s handwriting. It includes a person-

1. Who has seen that person write, or

2. Who has received documents written by that person in answer to documents written by

himself or under his authority and addressed to that person, or

3. Who has in ordinary course of business, received documents written by that person or

such documents are habitually submitted to him.

In reference to the first point it has been held by the Supreme Court in Fakhruddin V. State of

Madhya Pradesh7, that handwriting may be proved by the evidence of a witness in whose

presence the writing was done and this would be direct evidence and if it is available the

evidence of any other kind is rendered unnecessary. Following this the Calcutta High Court

held8, that where a witness deposed that the plaintiff had signed the requisition slip for a second

cheque book in his presence, that was sufficient proof of the plaintiff’s signature.

Where the person whose handwriting is in question is a merchant, another merchant who has

been receiving letters from him in reply to his own letters, his opinion will be relevant. The

opinion of a clerk who has to examine and file the merchant’s correspondence is relevant, and so

is the opinion of a professional man, like a broker, who receives the merchant’s documents for

the purpose of advising him. All such persons have repeated opportunities of getting acquainted

with the handwriting in question.

Like other expert opinion, the opinion of handwriting expert is advisory in nature. The expert

can compare disputed handwriting with the admitted handwriting and give his opinion whether

one person is the author of both the handwriting.

7
AIR 1967 S.C 1326
8
P.M Das V. Central Bank, A.I.R 1978 Cal. At p.64.
S.47 of the Indian Evidence Act exclusively deals with the opinion as to the handwriting. The

explanation further elaborates the circumstances under which a person is said to have known the

disputed handwriting. Under this section a person who is deposing the evidence need not be a

handwriting expert. Indeed the knowledge the general character of any person’s writing which a

witness has acquired incidentally and unintentionally, under no circumstance of bias or

suspicion, is far more satisfactory than the most elaborate comparison of even an experienced

person. One can get acquainted with others handwriting in many ways. The former might have

seen the latter writing a particular handwriting. He might be receiving letter from the latter

regularly. A superior officer might have seen his subordinate’s writing on several occasions and

vice versa. But, the evidence given by a person who has insufficient familiarity should be

discarded. Indian Evidence Act insists that documents either be proved by primary evidence or

by secondary evidence. S.67 of the Indian Evidence Act prescribes the mode of proving the

signature in a document. However, the opinion as to handwriting is admissible only if the

condition laid down in S. 47 is fulfilled, that is the witness is established to have been acquainted

with the writing of the particular person in one of the modes enumerated in this section.

However, the opinion of an expert is relevant when the Court has to form an opinion on a point

of science or art. At times expert opinion differs on proven or admitted facts. But when the facts

are not admitted the Court will have first to come to a conclusion on the evidence as to what

facts have been proved and then to apply to such facts the various expert opinions which have

been offered. The opinion of an expert in handwriting should be received with great caution and

should not be relied on unless corroborated. But no such corroboration is need in the case of

finger prints. Of course, an expert can always refresh him memory by referring to the text books.

A doctor can refer to medical books, a value to the price lists, a foreign lawyer to legal codes,
texts and other journals. At one time expert evidence is limited to medical doctors, engineers,

architects, stockbrokers etc. Now the science and technology have reached to such heights no

more the expert evidence is confined to the above mentioned but also to the scientists in each

field. As far as criminal law is concerned ballistic experts, forensic experts, scientists who decide

the legitimacy by DNA tests, chemical examiners, psychiatrists, radiologists and even track-dogs

are playing a vital role in investigation of crimes and their evidence is admissible in the court of

law.

The court shall exercise great care and caution at the time of determining the genuineness of

handwriting. A handwriting expert can certify only probability and 100% certainty. On the

question of the handwriting of a person, the opinion of a handwriting expert is relevant, but it is

not conclusive and handwriting of a person can be proved by other means also.9

The following are the different modes of proving handwriting:-

i) A person who wrote the document can prove it. (Sec.47)

ii) A person who saw someone writing or signing a document can prove it (Sec.47)

iii) A person who is acquainted with the handwriting by receiving the documents purported to

have been written by the party in reply to his communication or in ordinary course of business,

can prove the documents (Sec.47)

iv) The court can form opinion by comparing disputed handwriting with the admitted

9
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handwriting. (Sec.73)

v) The person against whom the document is tendered can admit the handwriting. (Sec.21)

vi) The expert can compare disputed handwriting with admitted handwriting and thereby prove

or disprove whether the documents were written by the same or different persons. (Sec.45)10

Modes of Proving Handwriting explained:

1. By the evidence of the writer himself- The person whose handwriting is in question may

himself enlighten the court on the point. If he denies his signature or handwriting, then

only the question of resorting to other modes of proof arises.

2. By the opinion of an Expert- Handwriting can be proved with the help of the opinion of

an expert. “Handwriting is proved everyday by the opinion; and for false evidence on

such question a man may be indicted for perjury”. The Supreme Court considered the

question of the value of the opinion of an expert in Ram Narain Vs. State of Uttar

Pradesh11. A child was kidnapped. The parent received a handwritten post-card followed

by an in-land letter demanding Rs. 1000 and Rs. 5,000, respectively as ransom for the

child. The author of the letters was traced and a handwriting expert testified the letters to

be in the handwriting of the accused. Solely on the basis of this evidence the three lower

courts.

The conviction was upheld. The Court said: “Both under Section 45 and section 47 the

evidence is an opinion, in the former by a scientific comparison and in the latter on the
10
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11
A.I.R 1973 S.C. 2200
 basis of familiarity resulting from frequent observation. In either case, the court must

satisfy itself by such means as are open that the opinion may be acted upon. One such

means is to apply its own observation to be admitted or proved writings, not become a

handwriting expert but to verify the opinion of the witness. This is not to say that the

Court may play the role of the expert, but to say that the court may accept the fact only

when it has satisfieditself on its own observation that it is safe to accept the opinion of the

expert or other witnesses.

3. By the evidence of the person who is acquainted with the handwriting of the person in

question- A person gets the opportunity to be acquainted with the handwriting of another

person when he has often seen that person writing something or when he has been

receiving papers written by that person in reply to his own drafts or for the purpose of

typing or filing or advising. Naturally the opinion of such a person can be relied upon.

Person with whom the accused had admittedly worked was held competent to prove his

handwriting.12

4. Under Section 73 by the court itself comparing the handwriting in question with the

proven handwriting- Section 73 enables the court to compare the handwriting in question

with any handwriting which is admitted or proved to be the handwriting of the person in

question. The section also empowers the court to direct any person present in the court to

write any words or figures for the purpose of enabling the court to compare them with the

writing in question.

12
Hema V. State, A.I.R 2013 S.C 1000
 “Although this method is open to the courts, but it has been considered to be more

prudent that the court should solicit the opinion of an expert. A comparison of

handwriting is at all times as a mode or proof hazardous and abusive, and especiallywhen

it is made by one not conversant with the subject and without such guidance as might be

derived from the arguments of counsel and the evidence of experts”. But when the

opinion of an expert has been taken the court may verify the opinion or to test its

reliability, proceed under section 73 to make the comparison by itself. A court is

competent to compare the disputed handwriting of a person with others which are

admitted or proved to be his handwritings. It may not be safe for the court to record a

finding about a person’s handwriting in a certain document merely on the basis of

comparison, but a court can itself compare the writings in order to appreciate properly the

other evidence produced before it.

Thus it appears that the emphasis of the courts is that the court should exercise power

under section 73 only for verification of other evidence.

Section 47A- Opinion as to electronic signature when relevant- When the Court has to form

opinion as to the electronic signature of any person, the opinion of the Certifying authority which

has issued the Electronic Signature Certificate is a relevant fact.

This new section has been added so as to provide for relevancy of expert opinion on the

genuineness of a digital signature. The provision says that when the court has to form opinion as

to the digital signature of any person, the opinion of the certifying authority which has issued the

Digital Signature Certificate is relevant fact. A “certifying authority” means any person who has

been granted a license to issue a digital signature certificate under Section 24 of the Information

Technology Act, 2000.

Section 48- Opinion as to existence of right or custom, when relevant- 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 its existence if it

existed, are relevant.

Explanation- The expression “general custom or right” which includes customs or rights

common to any considerable class of persons.

Illustrations

The right of the villagers of a particular village to use the water of a particular well is the general

right within the meaning of his section.

Opinion as to General Customs or rights

This section in a way supplements the provision of section 13 which is the main provision

relating to proof of customs or rights. But section 13 deals with all kinds of customs or rights

whether public or private. This section is confined only to public rights or customs. The

explanation to this section gives the meaning of the expression “general custom or right” and

provides that it includes customs or rights common to any considerable class of persons. The

illustration further makes it clear that the right of the residents of a particular village to draw

water from a particular well is general right for the purposes of this section. The mere fact that a

person has been permitted to draw water from a particular pond for 30 years does not create a

general custom. Recognition of the right by the community is necessary, though only one person

may be drawing the benefit from it. 13

13
Radha Krishnan Kandolkar V. Tukaram, A.I.R 1991 Bom 119
When the court has to determine the existence of any general custom or right, the opinion of any

person who is likely to be aware of the existence of the custom, if it did exist, is relevant.

The opinion admissible is that of a person who is likely to be aware of the existence of the

custom if it did exist. There must be some explanation of the fact or reason for which he has

knowledge of the custom in question, for example, that he is the headman of the village or has

been helping the villagers as a deed writer or in some such capacity and, therefore, the matter

came to his knowledge. If he has no reason to account for his knowledge his opinion will have

very little weight.

The person who holds the opinion has to appear in person before the court. His opinion cannot be

cited in absentia, for that will be a hearsay and will violate the spirit to section 60. But if that

person is dead or is otherwise unavailable as a witness within the meaning of section 32, then his

opinion maybe cited under clause (4) of section 32 provided that he expressed his opinion before

any controversy about the matter had arisen.

Section 49-Opinions as to usages, tenets, etc., when relevant:

When the Court has to form an opinion as to the usages and tenets of any body of men or family,

the constitution and government of any religious or charitable foundation, or the meaning of

words or terms used in particular districts or by particular classes of people, the opinions of

persons having special means of knowledge thereon, are relevant facts.

The section admits the opinion of person who has special means of knowledge on the subject, or

of any word or vocabulary used in any locality, language, religion, custom etc. For example,

where the question is what the meaning of the term “nikhalis” is as it is used in a particular trade.

Literally the word means ‘impure’, but there are places where it is used to connote hundred per

cent purity.14

The section is applicable to the evidence given by a person who is alive. The evidence of a living

person who has special means of knowledge or is very much acquainted with a particular word

may be considered to be relevant. “The weight of opinion evidence, admitted under section 48,

would depend on the position and character of the witness and of the persons on whose statement

he has formed his opinion.”15

In the case of Kanubhai Prabhudas & Anr. Vs. State of Gujarat16, two petitioners were

convicted under Section 12 of the Bombay Prevention of Gambling Act. The prosecution case

was that on 17-10-61 at about 8-30 P.M. one of them gave a two rupee note to the other and gave

a bet of American Futures on the figure of 8. The prosecution led the evidence of the P.S.I. and a

Panch witness but they did not produce any slip. A two rupee note however was found with one

of the applicants. It was not a marked currency note as according to the prosecution one of the
14
Singh Dr. Avtar, Principles of the Law of Evidence, Central Law Publications, 2013
15
http://www.shareyouressays.com/120437/section-49-of-the-indian-evidence-act-1872
16
(1963) 4 GLR 733
accused gave a bet to another accused. The P.S.I. deposed that he heard one of the accused utter

the words Bombay 8 when he gave the two rupee note to the other accused. He was supported by

the Panch. The evidence of these two witnesses was accepted and the two applicants were

convicted under Section 12(a) of the Gambling Act.

A police officer can give evidence under Section 49 of the Evidence Act provided he has special

means of knowledge as to the meaning of words or terms used in a particular district or by a

particular class of people. The P.S.I: has given his profession as P.S.I. Prohibition and Gambling

Ahmedabad City and has deposed as follows:

Figure 8 indicates the last figure of closing rate of American Cotton Future rate. In this case

accused would receive Rs. 16/- for a bet of Rs. 2/- if the figure 8 comes true. The rate i.e. the

closing rate of American Cotton Futures will appear in the paper of the next day. This is the

common mode of giving bet amongst gamblers. The accused No. 2 at that time did not ask rate

of Bombay 8 to accused No. 1. The rate of payment may change by about 1 per cent from

gambler to gambler. It is not true that one never lays bet with- out asking rate. It is not true that

necessarily bet is always recorded and only if bet in recorded in writing payment is made.

Accused No. 1 did not ask name of accused No. 2 because we carried out raid immediately

It was contended by the Learned Counsel for the applicants that the witness who gives evidence

under Section 49 of the Evidence Act must himself say in chief-examination that he has special

means of knowledge as to the meaning of words or terms used in a particular district or by a

particular class of people. The expression special means of knowledge does not necessarily mean

that the person giving evidence should himself engage in a particular business or that he himself

should be a member of a particular class of people. It is sufficient that he has special means of

knowledge regarding the meaning of words or terms used in a particular district or by a particular
class of people. The P.S.I. has stated in cross-examination that this is a common mode of giving a

bet amongst gamblers. For the purpose of Section 49 of the Evidence Act gamblers would be a

class of people. It is true that the P.S.I. has not mentioned that he has special means of knowledge

or how he acquired special means of knowledge. But he is a P.S.I. of Prohibition and Gambling

Ahmedabad City. The very fact that he is a P.S.I. of Prohibition and Gambling would make him

qualified under Section 49 of the Evidence Act unless it is brought out in the cross-examination

that no value should be attached to his evidence.

It is also contended by the Learned Counsel for the applicants that Section 49 of the Evidence

Act does not apply when code words are used and he contends that according to the prosecution

itself the words Bombay 8 are code words to convey certain meaning. This contention cannot be

accepted because when a particular class of people may use a code word the meaning of the code

word is a matter on which the Court has to form an opinion. This contention was therefore

rejected.

It is therefore clear that according to the P.S.I the words Bombay 8 would mean that if the

closing rate figure 8 came to be correct the person betting would receive Rs. 16/- for a bet of Rs.

2/-. He has also stated that the closing rate of American Cotton futures would appear in the

papers of the next day. It is therefore clear that according to the P.S.I. in a particular class of

people namely the gamblers the words Bombay 8 have a special meaning. The contention of the

Learned Counsel for the applicants is therefore rejected and the revision was dismissed.

Section 50-Opinion on relationship, when relevant:

When the Court has to form an opinion as to the relationship of one person to another, the

opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a

member of the family or otherwise, has special means of knowledge on the subject, is a relevant

fact:

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the

Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under sections 494, 495, 497 or 498 of

the Indian Penal Code (45 of 1860).17

Illustrations:

(a) The question is, whether A and В were married.

The fact that they were usually received and treated by their friends as husband and wife, is

relevant.

(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as

such by members of the family is relevant.

Principle:

Under section 50 when the court has to form an opinion as to the relationship of one person to

another the opinion of any person expressed by conduct is relevant. The opinion expressed by

conduct of the person who may be a member of the family or outsider, but he must have special

means of knowledge on the subject is only relevant. The question is whether A was the legitimate

son of В. С appeared before the court and stated “I am uncle of A. I know him since A’s birth. A

is brought up by В as his son.” These statements of С constitute conduct of C, because he has

17
Singh Dr. Avtar, Principles of the Law of Evidence, Central Law Publications, 2013
special knowledge of relationship of В and A as father and son, being admissible. The opinion

expressed by conduct is the only evidence.

Conditions:

The following conditions are to be fulfilled for application of the section:

1. There must be a dispute on existence of relationship between one and another pending before

the court and the court will have to determine their relationship.

2. The opinion sought to be taken must be expressed by conduct.

3. Opinion expressed by conduct must relate to the existence of relationship.

4. The witness must either be a member of the family or outsider who has special means of

knowledge or particular relationship.

Opinion expressed by conduct:

According to this section the opinion must have been expressed by conduct by a member of the

family or by an outsider. The conduct is therefore, used as evidence of opinion which means

belief or judgment. Thus, a witness may testify to his opinion placing his own conduct before the

court, he may also extend it to the conduct of others. The belief or conviction may manifest itself

in conduct or behavior which indicates the existence of the belief or opinion what the section

says that such conduct or outward behavior as evidence of the opinion held is relevant and may,

therefore, be proved. Such opinion can be substantiated by a person holding the opinion by the

evidence of any other person. Where the question of relationship has to be proved, a member of a

family can say what he has been told about his ancestors, provided what he says, is his own
independent opinion not hearsay. “It is the conduct or outward behavior which must be proved in

the manner laid down in Section 60.” When Section 50 is silent about means of proving conduct

for this one has to turn to Section 60 of the Act.

The proviso clarifies that opinion on relationship shall not be sufficient to prove a marriage in

proceeding under the Indian Divorce Act or in prosecution for bigamy, adultery and enticing

away a married woman (Sections 494, 495, 497 or 498 of I.P.C.). The question is whether a man

and woman were treated as husband and wife who have been living for a number of years. In

absence of any contrary opinion, the presumption might have been drawn that they were lawfully

married. Under the proviso the court cannot pass sentence only on the basis of opinion that a

factum of marriage has been proved.

Proof of relationship:

The sections lay importance on evidence of “such relationship.” Although it is difficult to

establish relationship it may be proved by “opinion expressed by conduct” under this section.

“On relationship of husband and wife between the defendant and deceased owner’s finding was

that wife was legally wedded with husband. It was based on order in mutation proceedings. It

was vitiated not being based on any legal evidence.” Neighbors, со-villagers and friends having

frequent intercourse can gather special means of knowledge of such relationship, such opinion is

not relevant unless it is expressed by conduct which means an over act. Where the evidence

clearly established that ‘L’ and ‘R’ were living together for a long time, held there were

presumption of marriage between the two. Evidence of a witness who has no special means of

knowledge about the relationship is not admissible.

Matrimonial facts:

The mere fact that woman lived with man in his house till her death would not confer status of

wife. The finding of second marriage based on preponderance of probability was not illegal.

In a matrimonial offence the admission by an accused in his statement under section 113 of the

Cr. PC that the woman was the legally wedded wife of the complainant will not be of any avail to

the prosecution if it otherwise fails to prove marriage between the complainant and the woman

whose body stands violated. The customary adoption in Kashmir Valley was in question. It was

held that operation of relationship was not applicable. It is a question of fact not burden of proof.

Proviso:

The proviso clarifies that opinion on relationship shall not be sufficient to prove a marriage in

proceeding under the Indian Divorce Act or in prosecution for bigamy, adultery and enticing

away a married woman under sections 494, 495, 497 or 498 of the Indian Penal Code. The

question is whether a man and woman are treated as husband and wife who have been living for

number of years. The presumption might have been drawn that they were legally married. Under

the proviso the court cannot pass sentence only on the basis of opinion that sentence only the

basis of opinion that a factum of marriage has been proved.18

In the case of Ramkali & Anr. Vs Mahila Shyamwati & Ors19, The appellants were aggrieved

by the order passed by the Additional District Judge, Bhind in the proceedings under the Indian

18
http://www.shareyouressays.com/120432/section-50-of-the-indian-evidence-act-1872
19
AIR 2000 MP 288
Succession Act. Whereunder rejecting their objections, the application filed by Shyamwati,

Asharam and Ram Prasad, the present respondents No. 1 to 3 respectively had been granted the

succession certificate prayed for holding them to be the only heirs of Chhote Singh who were

found entitled to get the amount of Rs. 40,000/- from the Electricity Department, District Morena

which stood deposited to the credit of Chhote Singh, the deceased who had died intestate.

The facts in brief are that Chhote Singh who was employed as a Line Man in the Electricity

Department had died. An application under the Indian Succession Act was filed Shyamwati

claiming to be the widow of Chotte Singh, the deceased and Asharam and Ram Prasad claiming

to be the sons of the deceased and asserting that they alone were the heirs of Chhote Singh and

praying for the grant of the succession certificate entitling them to receive an amount of Rs.

40.000/- which was lying in deposit with the Electricity Department. An objection was filed

opposing the aforesaid application by Ramkali, the present appellant No. 1 asserting that she was

the legal heir of Chhote Singh, since deceased in view of her being his wife along with one son

Krishan Chand born to her from Chhote Singh, the deceased. She had also asserted that her

father had married her as well as her real sister Shyamwati to Chhote Singh in accordance with

the social rites and custom. These marriages had been performed at the same time that is to say

on the same day and both the sisters were the wives of the aforesaid Chhote Singh. Chhote Singh

however resided along with her in his last days at Morena. She claimed to be entitled to one half

of the amount in dispute alleging that her sister, Shyamwati was entitled to the remaining half.

She, therefore, claimed that a direction be issued requiring half of the amount in dispute to be

paid to her.

The learned Additional District Judge after considering the evidence brought on the record came

to the conclusion that Ramkali had not been able to establish that she had been married with
Chhote Singh and her status could not be more than that of a Rakhail (concubine). On the

aforesaid findings, Shyamwati and the two sons of Chhote Singh, that is, Asharam and Ram

Prasad alone were found to be the legal heirs entitled to the succession certificate as prayed for.

In the present case, the previous marriage was admittedly subsisting at the time of the appellant,

Ramkali's alleged marriage with Chhote Singh. Such a subsequent marriage is void ab initio. In

any case, it is settled that it is the case which is pleaded that has to be found. Ramkali had come

up with a definite case in her pleadings that she as well as Shyamwati had been married with

Chhote Singh on the same day. No evidence worth the name had been led in support of such

pleading. On the other hand, during the course of evidence, Ramkali came with an entirely new

case that she had been married with Asharam and after his death, she had been taken by Chhote

Singh as his wife. The witness produced by her had stated that it was in the year 1978-79 that on

the request of her parents, Chhote Singh has taken Ramkali as his wife. In such a situation, the

finding of the trial Court that Ramkali had failed to prove her marriage with Chhote Singh and

that her status could not be more than that of a Rakhail (Concubine) does not warrant any

interference especially when no evidence admissible under Section 50 of the Evidence Act had

been led to prove the relationship of wife and husband between Ramkali and Chhote Singh of

such habit and repute which could raise a presumption in respect of the marriage. Even otherwise

where the alleged marriage is void ab initio or originates in concubinage, no such presumption in

regard to the marriage can be available under the law.

It may be noticed that a presumption in favour of marriage does not arise merely on the ground

of co-habitation but it must be co-habitation with 'habit' and 'repute'. Before, applying therefore,

this presumption of marriage the condition of habit and repute necessary for its existence must be

satisfied beyond doubt. Further, the habit and repute which alone is effective should be of that
particular status of lawful marriage. A reputation about marriage can only be established by

means of evidence admissible under Section 50 of the Evidence Act. A mere statement that a

person is or is not married is not admissible under Section 50 of the Evidence Act. What the

Court wants under Section 50 of the said Act is opinion expressed by conduct of any person who

as a member of the family or otherwise has special means of knowledge of the relationship.

In the aforesaid connection it may also be noticed that a "female" whose marriage is void de jure,

which survives the death of her husband could not be covered within the ambit of the expression

"widow" either in Class I of the Schedule to the Hindu Succession Act or any other place where

such reference occurs. The term 'widow' as contemplated under the Hindu Succession Act clearly

means and implies "female" who was united in marriage recognized by law and who survives the

husband without remarriage.

In the aforesaid circumstances, when there is no proof of solemnization of marriage and there is

further no proof that there was a de jure marriage or even a de facto marriage where during long

cohabitation as husband and wife with habit and repute a child is born, there can be no occasion

whatsoever for making available the statutory presumption envisaged under Section 16 of the

Hindu Marriage Act, 1955 securing the status of a legitimate child in favour of such a child born

out of a union which was either void ab initio or declared to be so under a decree passed

under Section 11 or 12 of the Hindu Marriage Act,1955.

In the present case, the findings returned by the Court below noticed hereinabove do not appear

to be suffering from any such legal infirmity which may require any interference and are not

liable to be disturbed. The contention of the learned counsel for the appellants is clearly devoid

of merit and is not at all acceptable which deserves to be and is hereby dismissed.
Section 51-Grounds of opinion, when relevant:

Whenever the opinion of any living person is relevant, the grounds on which such opinion is

based are also relevant.

Illustration-

An expert may give an account of experiments performed by him for the purpose of forming his

opinion.

According to Section 51 the opinion of an expert is not relevant unless it is supported by reasons

and materials. The court will not be satisfied only on the opinion of an expert. The opinion will

be accepted if he states the ground on which he arrived at that opinion. Thus the correctness of

opinion must always be supported by grounds and materials.

The opinion of an expert and other persons who are competent to give opinion under sections 47,

48 and 49 is of no value unless the ground on which opinion is based are disclosed. The opinion

must be supported by facts and reasons.20

Bibliography:

 Principles of the Law of Evidence by Dr. Avtar Singh, Central Law Publications,

Allahabad, 21st Ed, 2013

 Law of Evidence in India by Batuk Lal, 2009

Webiography:

20
http://www.shareyouressays.com/120445/section-51-of-the-indian-evidence-act-1872
 http://www.legalservicesindia.com/article/article/experts-opinion-and-its-admissibility-

and-relevancy-law-of-evidence-1583-1.html
 http://shodhganga.inflibnet.ac.in/bitstream/10603/6648/9/09_chapter%201.pdf
 http://www.vakilno1.com/bareacts/laws/indianevidenceact.html#47A_Opinion_as_to_dig

ital_signature_when_relevant_8211
 http://cis-india.org/internet-governance/blog/anvar-v-basheer-new-old-law-of-electronic-

evidence
 http://works.bepress.com/cgi/viewcontent.cgi?article=1004&context=krishnaareti&sei-

redir=1&referer=http%3A%2F%2Fwww.bing.com%2Fsearch%3Fq%3DExpert

%2520testimony%2520indian%2520evidence%2520act%2520pdf%26pc%3Dcosp

%26ptag%3DACAE9C90E20%26form%3DCONBNT%26conlogo

%3DCT3210127#search=%22Expert%20testimony%20indian%20evidence%20act

%20pdf%22
 http://www.shareyouressays.com/120445/section-51-of-the-indian-evidence-act-1872