Opinion of Third Persons When Relevant

Introduction

• As stated by the Delhi High Court in VLS Finance Ltd. v. CIT (2000), the term “opinion” means something more than merely relating to gossip or hearsay; it means judgment or belief, that is a belief or conviction resulting from what one thinks on a particular question.
• The opinions or beliefs of third persons are, as a general rule, irrelevant, and therefore, inadmissible. Witnesses are to state those facts only which they themselves saw or heard, etc.
• It is the function of the judge or jury to form their own conclusion or opinion on the facts stated.
• The Opinions of third person are provided under Sections 45 –51 of the Indian Evidence Act, 1872.

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.
• Who is an Expert?
  • An ‘expert’ witness is one who has devoted time and study to a special branch of learning and thus is specially skilled on those points on which he is asked to state his opinion. His evidence on such points is admissible to enable the tribunal to come to a satisfactory conclusion.
  • In Bal Krishna Das Agrawal v. Radha Devi and others (1989), SC held that Expert is a person who by his training and experience has acquired the ability to express an opinion.
  • In Awadesh v. State of M.P. (1988), it was held that expert evidence can be used to corroborate other evidence.
• Illustrations
  • (a) The question is, whether the death of A was caused by poison.
    • The opinion of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
  • (b) The questions 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 relevant.
• Ingredients of the Provision
  • When the Court has to form an opinion on technical matters, extraneous assistance may become necessary.
  • This section allows such assistance in the following cases:
    • (a) Foreign law
    • (b) Science
    • (c) Art
    • (d) Handwriting and
    • (e) Finger Impressions.
  • In Forest Range Officer v. P. Mohammed Ali (1994), Supreme Court (SC) held that expert opinion is only an ‘opinion evidence’ and is not helpful to the Court in interpretation of law.

Section 45A - Opinion of Examiner of Electronic Evidence

• When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000 (21 of 2000), is a relevant fact.
• Explanation appended to the section - For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.

Section 46: Facts bearing upon opinions of experts

• Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
• Illustrations
  • (a) The question is whether A was poisoned by a certain poison.
    • The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny being the symptoms of that poison, is relevant.
  • (b) The question is whether an obstruction to a harbour is caused by a certain sea-wall.
    • The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant.
• The opinion of an expert is open to corroboration or rebuttal. All the evidence which supports or rebuts the opinion of experts is admissible and relevant.

Section 47: Opinion as to handwriting, when relevant

• When the Court has 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 handwriting.
• The explanation attached to the Section gives guidance as to who is considered to be acquainted with another’s handwriting. It includes a person:
  • Who has seen that person write, or
  • 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
  • Who has in the ordinary course of business, received documents written by that person or such documents are habitually submitted to him.
• Illustration:
  • 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 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.
  • The opinion 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.
• In Fakruddin v. State of MP (1967), SC held that handwriting may be proved by evidence of a witness in whose presence the writing was made, and this would be direct evidence and if it is available the evidence of any other kind is rendered unnecessary.

Modes of proving Handwriting

The IEA recognizes the following modes of proving handwriting:

1. By the evidence of the writer himself.
2. By the opinion of an expert (Section 45).
3. By the evidence of a person who is acquainted with the handwriting of the person in question (Section 47).
4. By the court itself comparing the handwriting (Section 73).

Section 47-A: Opinion as to electronic signature when relevant

• When the Court has to form an 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.

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 of its existence if it existed, are relevant.
• Illustration:
  • The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this Section.
• The provision provides that only those persons who are likely aware about the custom in question are competent to give opinion as evidence under this section.
• In Brijlal v. V.M. Chandra Prabha (1971), Gujarat High Court held that a person giving opinion under Section 48 of the IEA should have personal knowledge about the facts to be proved. Such an opinion must be based upon some information.

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.

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, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.
• Illustrations
  • (a) The question is whether A and B 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.
• Relationship includes relations by blood, marriage or adoption. It may be noted that under Section 32 of IEA, which also contains a provision for proving relationships, the statements of dead persons are relevant; while, under Section 50 the opinion of a person alive is relevant.
• Proviso - Such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869, or in prosecutions under Section 494, 495, 497 or 498 of the Indian Penal Code.

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.
• The opinion of an expert by itself may be relevant but would carry little weightage unless supported by a clear statement.