Whispers of the Wise and Mirrors of the Mind
The enactment of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) marks a pivotal moment in India’s evidentiary jurisprudence replacing the colonial era Indian Evidence Act, 1872 and aligning the law of evidence with contemporary demands of fairness, technology and justice. Among its many innovations, the BSA dedicates specific attention to the relevance of third person opinions and character evidence, two crucial but often nuanced areas of proof.
When is the opinion of experts considered relevant?
When the Court has to form an opinion upon a point of foreign law, science, art, or any other field, or as to the identity of handwriting or finger impressions, the opinions of persons specially skilled in such foreign law, science, art, or field, or in questions as to handwriting or finger impressions, are relevant facts. Such persons are called experts.
If the question is whether the death of A was caused by poison, what expert opinion is relevant?
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.
If the question is whether A, at the time of doing a certain act, was incapable of knowing the nature of the act due to unsoundness of mind, what expert opinion is relevant?
The opinions of experts on whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness usually renders persons incapable of knowing the nature of their acts or knowing that their acts are wrong or contrary to law, are relevant.
If the question is whether a certain document was written by A, and another document admitted to have been written by A is produced, what expert opinion is relevant?
The opinions of experts on whether the two documents were written by the same or different persons are relevant.
When is the opinion of the Examiner of Electronic Evidence relevant?
When the Court has to form an opinion on any matter relating to information transmitted or stored in any computer resource or electronic or digital form, the opinion of the Examiner of Electronic Evidence, referred to in the Information Technology Act, is a relevant fact.
What authority does the Central Government have in relation to Examiners of Electronic Evidence?
The Central Government may, by notification in the Official Gazette, specify any Department, body, or agency of the Central or State Government as an Examiner of Electronic Evidence for providing expert opinion on electronic evidence before any court or authority.
What is the nature and duty of an expert witness?
An expert is not a witness of fact but of advisory character. His duty is to furnish the Court with scientific criteria to test conclusions. The Court must independently judge such evidence and not subjugate its own judgment to that of the expert. (State of Karnataka v. J. Jayalalitha; Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy; Prem Sagar Manocha v. State NCT of Delhi)
Is expert evidence conclusive?
No. Expert evidence is not always conclusive because human judgment is fallible. For example, fingerprint identification is highly reliable, but handwriting identification is less perfect. (Basheera Begam v. Mohd. Ibrahim)
What should a court do when no expert opinion is available?
The court may refer to authoritative textbooks and use its own experience and knowledge. (Ajay Kumar Parmar v. State of Rajasthan; Goel Ganga Developers India (P) Ltd. v. Union of India; Tomaso Bruno v. State of U.P.)
How should the opinion of a handwriting expert be treated?
It should be received with caution, as such evidence is fallible. It may be accepted if supported by internal or external evidence relating to the writing in question. (Ram Narain v. State of U.P.; Baru Ram v. Prasanni; S.P.S. Rathore v. CBI; Padum Kumar v. State of U.P.; Basheera Begam v. Mohd. Ibrahim)
What is the duty of an expert witness in court?
An expert must furnish the court with a reasoned report based on expertise so the court can form its own independent judgment. Opinion evidence is advisory and not binding. (Pattu Rajan v. State of T.N.)
How is medical evidence treated vis-à-vis ocular (eye-witness) evidence?
Cogent and credible ocular evidence prevails over contrary medical evidence. (Ravi Kumar v. State of Punjab, 2005.)
Who is competent to opine about injuries and cause of death?
The doctor who examined the deceased and conducted the post-mortem. (Sahebro Mohan Berad v. State of Maharashtra)
How is expert opinion different from factual testimony?
Expert opinion is based on specialized knowledge and may change with new material, while factual testimony is based on direct observation. The expert must give reasons and materials for his opinion, and the court must assess its correctness. (Prem Sagar Manocha v. State NCT of Delhi)
What is the standard of care expected from a medical professional in cases of alleged medical negligence?
The standard is that of a reasonably competent practitioner in the field. Liability arises only when conduct falls below that standard. (Arun Kumar Manglik v. Chirayu Health and Medicare (P) Ltd.; Maharaja Agrasen Hospital v. Rishabh Sharma)
What is the value of medical opinion evidence compared to eye-witness testimony?
Medical opinion is corroborative and not conclusive. Unless medical evidence rules out the prosecution version, eye-witness testimony cannot be doubted solely due to inconsistency with medical opinion. (Mallikarjun v. State of Karnataka, 2019.)
When are facts that support or contradict expert opinions relevant?
Facts that are otherwise irrelevant become relevant if they support or are inconsistent with expert opinions.
If the question is whether A was poisoned by a certain poison, what fact is relevant?
The fact that other persons poisoned by the same substance showed similar or dissimilar symptoms as affirmed or denied by experts is relevant.
If the question is whether obstruction to a harbour was caused by a sea-wall, what fact is relevant?
The fact that other similar harbours without such seawalls were obstructed at the same time is relevant.
When is the opinion of a person acquainted with handwriting relevant?
When the court must determine who wrote or signed a document, the opinion of anyone acquainted with that person’s handwriting is relevant.
When is a person said to be acquainted with another’s handwriting?
When he has seen that person write, or received documents written by that person in reply to his own, or in the course of business, habitually dealt with documents written by that person.
If the question is whether a letter is in A’s handwriting, who may give relevant opinions?
B, a merchant who has corresponded with A; C, B’s clerk who handled A’s letters; and D, B’s broker who advised on A’s letters, all may give relevant opinions even if none have seen A write.
When is the opinion of a Certifying Authority relevant?
When the court must form an opinion as to a person’s electronic signature, the opinion of the Certifying Authority that issued the Electronic Signature Certificate is relevant.
When is the opinion of persons on general custom or right relevant?
When the court must form an opinion on the existence of any general custom or right, the opinions of persons likely to know of its existence are relevant.
What does “general custom or right” include?
Customs or rights common to any considerable class of persons.
Is the right of villagers to use the water of a village well a general right?
Yes, it is a general right.
In what matters are the opinions of persons with special knowledge relevant?
When the court must form an opinion regarding:
(a) the usages and tenets of any body or family,
(b) the constitution or governance of a religious or charitable foundation, or
(c) the meaning of words or terms used in particular districts or classes,
the opinions of persons having special means of knowledge thereon, are relevant facts.
When is opinion on the relationship between persons relevant?
When the court must form an opinion about the relationship between two persons, the opinion expressed by conduct of a person with special means of knowledge (like a family member) is relevant.
Can such opinion prove a marriage in divorce or criminal proceedings?
No. Such opinion alone cannot prove marriage in proceedings under the Divorce Act or prosecutions for offences relating to marriage.
Is the fact that A and B were treated as husband and wife relevant to the question of their marriage?
Yes, it is relevant.
Is the fact that A was treated as B’s legitimate son relevant to that question?
Yes, it is relevant.
Are the grounds on which an opinion is based relevant?
Yes, whenever a person’s opinion is relevant, the grounds for it are also relevant.
May an expert describe experiments performed to form his opinion?
Yes, an expert may give an account of such experiments.
Is character relevant in civil cases to prove conduct?
No, in civil cases, character is irrelevant to prove conduct imputed, except when it appears from otherwise relevant facts.
Is good character relevant in criminal cases?
Yes, the fact that an accused is of good character is relevant.
Is evidence of the victim’s previous sexual experience relevant in certain offences?
No, in prosecutions for sexual offences where consent is in issue, the character or previous sexual experience of the victim is not relevant to the issue of consent or its quality.
Is bad character of the accused relevant?
Generally, no. However, if the accused has given evidence of good character, his bad character then becomes relevant.
When is character relevant to affect damages?
In civil cases, character may be relevant to determine the amount of damages the person should receive.
Therefore, the BSA clearly defines when the opinions of third persons and the character of individuals can be considered by the court. It allows expert opinions, opinions of persons familiar with handwriting or customs and certain character evidence only when they genuinely help in finding the truth. At the same time, it restricts the use of such opinions and character evidence to prevent unfair prejudice. Overall, these provisions aim to make the process of proving facts in court more fair, logical and reliable.
Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.
