EXPERT EVIDENCE (section 39 to 45 of BSA)

by | Aug 20, 2024

As a general rule,the opinion of a third person is irrelevant and considered inadmissible.But, there are certain cases in which the court is not in a position to form a correct opinion,like when the question involved is beyond the range of common experience or common knowledge or when special knowledge of a subject or experience is necessary.In these cases,the general rule is relaxed and put on hold and an expert evidence is admitted to enable the court to come to a proper decision.

What is an Expert Opinion?

An expert opinion means a specialized opinion provided by a person who is expertise in a particular field like foreign law, science, art, handwriting,or any other technical area. These opinions are deemed relevant in legal cases when the matter requires a knowledge that goes beyond the understanding of an average person.

Section 39 to 45 of Bharatiya Sakshya Adhiniyam,2023 (BSA) deals with the opinion of third persons and makes them a Relevant Fact,which are discussed as under:-

Opinion of Experts -Section 39(1)
Opinion of Examiner of Electronic Evidence- Section 39(2)
Opinion as to handwriting-Section 41(1)
Opinion as to electronic signature -Section 41(2)
Opinion as to existence of right or custom-Section 42
Opinion as to usages,tenets,etc -Section 43
Opinion on relationship -Section 44

EXPERT OPINION MAY BE GIVEN Of –
Foreign law
Science or art
Hand writing
Finger impressions
Section 40 Bharatiya Sakshya Adhiniyam,2023 (BSA) provides that facts,which are not otherwise relevant, are relevant if they support or are inconsistent with Expert Opinion under Section 39(1) of BSA.Section 45 Bharatiya Sakshya Adhiniyam,2023 (BSA),provides that the ground on which such opinion’s of experts is based is also relevant.

EVIDENTIARY VALUE OF EXPERT OPINION

It is only a weak piece of evidence and cannot be taken as a substantial piece of evidence and bind the court unless corroborated by other evidence.
In conclusion, Expert Opinion plays a vital role in ensuring a comprehensive and informed evaluation of evidence, contributing to the fair and effective administration of justice within the Indian legal system.
Key Components

1.Expert Opinions Relevance (Section 39)

The opinions of experts in these fields are considered relevant when the court needs to form an opinion on matters like foreign law, science, art, handwriting, fingerprints etc. For example, if the court is trying to find out whether the death of a person was due to poison,the opinion of a medical expert on the symptoms of that poison will be considered relevant.The opinion under this section is supportive and corroborative in nature.(Earlier Section 45 of IEA).

2.Digital and Electronic Evidence (Section 39)

In cases, like information stored on a computer, the opinion of an Examiner of Electronic Evidence,provided in the Information Technology Act will be considered relevant.(Earlier Section 45-A of IEA)
It also includes matters related to electronic signatures and the integrity of digital documents.

3.Supporting or Contradicting Opinion of Experts (Section 40)

Facts that either support or contradict the expert’s opinions are also considered relevant. For example , if experts claim a certain poison causes specific symptoms, any evidence showing these kinds of similar symptoms in any other cases involving the same poison would support the opinion of that expert.It is based on a maxim, ‘Res Inter Alia Acter’. (Earlier Section 46 of IEA).

4.Verification of Handwriting and Signature (Section 41)

The court may rely on the opinions of a person who is familiar with a handwriting to find out whether a particular document was written or signed by that particular person or not.(Earlier Section 47 of IEA)
If the verification of an electronic signature is needed the opinion of the Certifying Authority that issued that electronic signature certificate will be considered relevant.(Earlier Section 47-A of IEA)

5. Customs and Rights (Section 42)

When determining the existence of a general custom or right, the opinions of people who know about those customs or rights will be relevant.(Earlier Section 48 of IEA)
Like, the villagers opinion about the customary right to use a community well is considered relevant.
This section is confined only to public rights and customs.

6.Usages, Tenets, and Meanings (Section 43)

Opinions on the usages, tenets, or governance of specific groups or organizations are considered relevant.This means understanding the particular terms used in certain districts or among specific classes of people.(Earlier Section 49 of IEA)

7.Relationships (Section 44)

The opinions of those persons who are familiar with a family’s internal matters may be considered relevant in determining relationships between individuals.(Earlier Section 50 of IEA)
But,such opinions alone are insufficient to prove a marriage in legal proceedings under the Divorce Act or in certain criminal cases.

8.Grounds for Expert Opinions (Section 45)

The grounds on which an expert bases their opinion are also considered relevant. This includes the methods, experiments, or observations which they have used to reach their conclusions..(Earlier Section 51 of IEA)

Exceptions

Insufficiency of Opinions to Prove Marriage

While opinions about relationships are relevant but they cannot, by themselves, prove a marriage under Divorce Act, 1869 or in prosecution under sections 82 and 84 of the Bharatiya Nyaya Sanhita,2023.Concrete and solid evidence more than mere opinions is required.

Examples

1.Poisoning Case

If determining whether a person was poisoned, the court will consider the opinions of toxicologists on the symptoms and effects of the suspected poison.

2.Mental Health Evaluation

In cases where the mental state of a person is questioned, psychiatrists may provide opinions that the person is capable of understanding their actions or not.

Why is this Important?

Expert opinions as provided under Section 39 to 45 of Bharatiya Sakshya Adhiniyam,2023 (BSA) are critical in proceedings of the court because they bring specialized knowledge to the courtroom, helping the court to make informed decisions on complex issues. As technology and science continue to advance, the inclination over expert opinion is becoming increasingly important to ensure that justice is accurately served.

Source:

India Code
Relevant

 

 

Written By Archana Singh

I am Archana Singh, a recent law master's graduate with a strong aspiration for the judicial service. My passion lies in elucidating complex legal concepts, disseminating legal news, and enhancing legal awareness. I take immense pride in introducing my new legal website - The LawGist. Through my meticulously crafted blogs and articles, I aim to empower individuals with comprehensive legal insights. My unwavering dedication is to facilitate a profound comprehension of the law, enabling people to execute judicious and well-informed choices.

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