JAIPUR NATIONAL UNIVERSITY

SEEDLING SCHOOL OF LAW AND GOVERNANCE

SUBJECT – LAW OF EVIDENCE

TOPIC: EXPERT OPINION

Submitted to: Submitted by:

Ms. Surbhi Dubey Sakshi Trivedi

Assistant Professor B.A., LL.B. (Hons.)

Seedling School of Law and Governance V semester

Jaipur National University

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 Table of Content

Contents
Table of Content ..................................................................................................................................... 2
Table of Cases ......................................................................................................................................... 3
Acknowlegment ...................................................................................................................................... 4
Declaration .............................................................................................................................................. 5
Expert Opinion ........................................................................................................................................ 6
Introduction ............................................................................................................................................. 6
Bibliography ....................................................................................................................................... 222

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 Table of Cases

 Balkrishna Das Agarwal vs Smt. Radha Devi And Ors., AIR 1989 All 133
 Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors, 2009 INSC 1569
 Gopal Reddy v. State of A.P AIR 1996 SC2184 (Para27)
 National Justice Compania Naviera v. Prudential Assurance Co. ltd, [1993] 2
 Mani Ram v. State of U.P, 1994 Supp (2) SCC 289,292; 1994 SCC (Cri) 1242
 Piara Singh v. State of Punjab, AIR 1977 SC 2274
 Abdul Razak V. State of Maharashtra, AIR 1970 SC 283
 State of Haryana v Bagirath, 1974 (1) SCR 489
 State of Maharashtra v. Sukhdeo Singh, 1992 AIR 2100
 Rahim Khan v. Khurshid Ad, AIR 1975 SC 290
 Milkhi Ram v. Milkhi Ram AIR 1996 HP 116

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 Acknowlegment

I express my deep sense of gratitude to Ms. Surbhi Dubey, Assistant Professor, Seedling
School of Law and Governance, Jaipur National University, for her able guidance and
constant support in completion of my project in limited time frame.

I am highly indebted to HOD Sir, for giving me this opportunity to make this assignment,
which also helped me in doing lots of research work.

Sakshi Trivedi

B.A., LL.B. (Hons.)

V semester

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 Declaration

I hereby declare that the project entitled “Expert Opinion” submitted in Seedling School of
Law and Governance, is a record of an original work, done under the esteemed guidance of
Ms Surbhi Dubey, Assistant Professor, S.S.L.G., JNU. I have given due reference of the
sources from where I have collected the information. This assignment is never been published
in any other university.

Date: Sakshi Trivedi

17/10/19 B.A., LL.B. (Hons.)

V semester

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 Expert Opinion

Introduction

Generally, when a person is summoned to court as a witness, it was expected to him to state
only facts and not to present any opinion. It is the work of the court to form an opinion in the
case and decide it further on some grounds. Moreover, if a person who is summoned by the
court or in any other way is asked to give his statement then it is expected that the person
must be factually related to the case not merely a third party.

There is an exception to this rule that thought a person who is not actually related to the case
are considered as a witness and those person are to be known as experts. The court requires
these experts to give an opinion related to the case to aid the court in having a larger
perspective to provide justice. The underlying principle behind the same is that it is not
practical to expect the Judges to have adequate knowledge of medical issues1. The statutes
regarding the experts’ opinion are discussed in The Indian Evidence Act, 1872.

Under chapter II from Section 45-51 deals with:-

The opinion of the third person, when relevant this is what we call the ‘expert opinion’. As
section 45 of the act states opinion of the expert, which deal that when it is to be required and
who can be considered as an expert as well as different types of experts another provision of
the act that is section 46, 47, 47A deals with the Facts bearing upon opinions of experts,
Opinion as to handwriting, when relevant Opinion as to digital signature and where relevant.

Further section 48 of the Indian Evidence Act 1872, explained the relevancy of the opinion as
to existence or custom, which elaborated that When there is a question of existence of any
general custom and right and on which the court has to form an opinion, the opinion of
persons who are aware of the existence of such general custom or right is relevant.

As well as this chapter also describe about ‘ Opinions as to usages, tenets, etc., when
relevant’2 which explains that The section admits the opinion of person who has special
means of knowledge of any word or vocabulary used in any locality, language, religion,

1
Expert’s Opinion and its admissibility & relevancy: An Analysis in view of Law of Evidence. Legal service
India.com.
2
Section 49 of the Indian Evidence Act, 1872.

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custom etc. Further, in another section of the Act deals with ‘the opinion on relationship,
when relevant’3 and ‘the relevancy of the grounds of the opinion’4. As the opinion of an
expert and other persons who are eligible to give opinion under sections 47, 48 and 49 cannot
be considered as an relevant evidence unless it was supported by a valid ground or a reason.
So it is very important for a expert that his opinion must be supported by facts and reasons.

History of Expert Evidence

It was a notion which is very ancient that an offence could be proved by scientific evidence.
Heropelus and Eracis were the two physicians who demeanoured a postmortem in 300 BC in
Alexandria.A European collector William Hershal is the person who had discovered the fact
that persons could be specifically recognized with the help of fingerprints. The courts have
been acting on the opinions of the experts since from very ancient times, other than the
procedure they used to perform to carry out the justice was different. Before the 16th Century,
the trial was merely a acquiescence to a mechanical process of proof. At that time there was
no term was their like ‘expert’ no person will be addressed as expert at that time. Cases were
tried by a group of reasonably prudent ad fare person using rational process upon the
information before them. Jury system was there and witnesses who were acquainted with the
facts of the case were included in the jury panel. For the first time, it was in 1562, that a
process was issued to compel witnesses to attend and testify in the Common law courts. At
that time courts used two types of methods for obtaining the specialised knowledge. One was
to empanel a jury of persons specially qualified to pass judgements in a particular case. The
second was for the court to summon skilled persons to inform it about matters beyond its
knowledge. By the middle of the 17th century, the office of jury had become clearly distinct
from that of a witness. The party system of experts had started by the middle of 18th century5.

Who is an expert?

An expert is a person who has through the subject matter upon whom he speaks a matter of
study, practice or he had also observed and must have a special knowledge of the same
subject. Expert in the present case simply means a person who has special knowledge and
skill in any particular subject matter to which the case relates,“One who has studies a subject
carefully falls within the definition, though he has never practiced it”. The witness must have

3
Section 50 of the Indian Evidence Act, 1872.
4
Section 51 of the Indian Evidence Act, 1872.
5
Lloyd L Rosenthai 'The Development of the use of Expert Test~mony", 2 L 8 Contemp Probs 401 (1 935)

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made a particular learning of the subject or required special knowledge and experience
therein. Thus, an expert is one who has obtained special knowledge, skill or experience in any
science, art, trade or profession, and such knowledge have been attained by practice,
observation or careful studies6. Even a person having has no academic qualification, who is a
witness but has professional skill and experience can also be treated as an expert. An ‘expert’
witness is one who has committed 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.” The opinion of
such experts is admissible in evidence as relevant facts by virtue of Section 45 7 of the
Evidence Act.

Specifically according to section 45 of the Indian Evidence Act ‘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.

Only in the above mentioned cases the opinion of the third person can be considered relevant
but if the field is not mentioned in the above list when the opinion is required then it will not
be considered as an expert opinion .

The court of law, before acknowledging or admitting any of the opinion made by an expert,
needs be assure itself that the person is a expert in the same subject matter of the case under
the law. If it is found that the person is not an expert, his opinion is discarded by the court.
For checking that the witness is an expert, he must be examined and cross-examined8. A
person becomes an expert by :

6
Section 45 of the Indian evidence act 1872
7
Opinions of experts :section 45 of the Indian evidence act 1872
8
Balkrishna Das Agarwal vs Smt. Radha Devi And Ors., AIR 1989 All 133

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 Practice,
 Observation, or
 Experience

In the case of Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors 9., the court stated
that the first and foremost requirement for expert evidence to be admissible is that it is
necessary to hear the expert evidence. The test is that the matter is outside the knowledge and
experience of the layman. People who can be termed as an expert are explained in detail
below in another case.

In the above mentioned case court had described the requirement for the admissibility of an
expert evidence that fist of all it must be hear the person who is an expert as well as he must
be have the special skill knowledge in the subject matter of the case as well as their is also
some test laid down in another case to examine the admissibility of an expert opinion.

Another thing is the relevancy of the expert opinion is being discussed in the case of S.
Gopal Reddy v. State of A.P.10 in which it was stated that It is not safe to rely upon this type
of evidence without seeking independent and reliable corroboration. Expert evidence is
opinion evidence and it can’t take the place of substantive evidence. It is a rule of procedure
that expert evidence must be corroborated either by clear direct evidence or by circumstantial
evidence.

In this case the relevancy was discussed of the expert opinion as well as also discussed that
one cannot only rely upon the expert opinion as it is not safe to provide justice it must be
corroborated with the other evidences also it is an opinion evidence and do not have any
comparison with substantive evidence and substantive evidence always prevail over expert
evidence.

Duties of an expert

In the case of National Justice Compania Naviera v. Prudential Assurance Co. ltd,11 the
duties of expert witnesses were summarised by Cresswell J., as follows:

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

9
Ramesh Chandra Agrawal vs Regency Hospital Ltd. & Ors 2009 INSC 1569
10
Gopal Reddy v. State of A.P AIR 1996 SC2184 (Para27)]
11
National Justice Compania Naviera v. Prudential Assurance Co. ltd [1993] 2 Llojd's Rep 68 at 81 as c~tecl in
Edward Phlllps Bnef Case, Law of Ev~dence (2" ed Cavendlsh Publ~shlng Ltd 2000) p 85

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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 rnind, 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.

In this case the court had describe the duties of the person giving an expert opinion and held
that the person who is an expert must not be arbitrary, he must be unbiased as well as should
not be influenced by any of the fact or any other source which can hamper the justice. This
case also clarifies that the opinion or the assumptions expressed by the expert should be
corroborated with the other facts as well as if there is any insufficient data or he have
changed his mind to give his has to inform to the other side about that also if their is any
document is their regarding his opinion he must have to present it before the court to support
his statement and to make it more reliable.

TYPES OF EXPERT

Expert opinion can be can be given on the following subject matter and these are considered
as the type of the expert.

1) Foreign law:-

Foreign law can be proved –

a) by the evidence of a person specially skilled in it and

b) by direct reference to the books printed or published under the authority of the foreign
government.

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2) Science or art:-

The Science or art includes all subjects on which a course of special study or experience is
necessary to the formation of an opinion. “Science” or “art” is not limited to higher science or
fine art, but it has its original sense of handicraft, trade, profession and skill in work which
has been carried beyond the sphere of the common pursuits of life into that of the artistic and
scientific action.

The following matters are included in the ‘science’ and art and the expert opinion of these
matters are relevant:-

Medical opinion:-

The value of Medical evidence is only corroborative. A doctor acquires special knowledge of
medicine and surgery and as such he is an expert. Opinions of a medical officer, physician or
surgeon may be admitted in evidence to show—

 Physical condition of the a person.

 Age of a person.
 Cause of death of a person.
 Nature and effect of the disease or injuries on body or mind.
 Manner or instrument by which such injuries was caused.
 Time at which the injury or wounds have been caused..
 Whether the injury or wounds are fatal in nature.
 Cause, symptoms and peculiarities of the disease & whether it is likely to cause death.
 Probable future consequences of an injury etc.

When there is a conflict between the medical evidence and ocular evidence, oral evidence of
an eye witness has to get primacy as medical evidence is basically opinionative. Where the
direct evidence is not supported by the expert evidence, the evidence is wanting in the most
material part of the prosecution case and therefore, it would be difficult to convict the
accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally
inconsistent with medical evidence, it is the most fundamental defect in the prosecution case
and unless this inconsistency is reasonably explained, it is sufficient to discredit the evidence
as well as the entire case. Mani Ram v. State of U.P.12 Where the opinion of one medical

12
Mani Ram v. State of U.P 1994 Supp (2) SCC 289,292; 1994 SCC (Cri) 1242]

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witness is contradicted by another and both experts are equally competent to form an opinion,
the court will accept the opinion of that expert which supports the direct evidence in the case.
Of Piara Singh v. State of Punjab13.

3) Handwriting:-
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.

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. Futher the
different modes of proving the handwriting have been explained further below.

4) Fingerprint expert:-

Expert opinion on fingerprints has the same value as the opinion of any other expert. The
court will not take opinion of fingerprint expert as conclusive proof but must examine his
evidence in the light of surrounding circumstances in order to satisfy itself about the guilt of
the accused in a criminal case.

5) Ballistic expert:-

A ballistic expert may trace a bullet or cartridge to a particular weapon from which it was
discharged. Forensic ballistics may also furnish opinion about the distance from which a shot
was fired and the time when the weapon was last used.

6) Evidence of tracking dogs:-

Trained dogs are used for detection of crime. The trainer of tracking dogs can give evidence
about the behavior of the dog. The evidence of the tracker dog is also relevant U/s-45.
In Abdul Razak V. State of Maharashtra14 (AIR 1970 SC 283) question arises before the
Supreme Court whether the evidence of dog tracking is admissible in evidence and if so,
whether this evidence will be treated at par with the evidence of scientific experts. In this
case, Pune Express was derailed near Miraj Railway Station on 10th Oct.,1966. Sabotage was

13
Piara Singh v. State of Punjab AIR 1977 SC 2274
14
Abdul Razak V. State of Maharashtra (AIR 1970 SC 283)

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suspected. The removal of fishplates was found to be the cause of derailment and accident.
The police dog was brought into service, taken to the scene of crime. After smelling the
articles near the affected joint, the dog ran towards embankment where one fishplate was
lying, then the dog smelt it and went to a nearby shanty and pounced upon the accused who
was a gang man at Miraj Railway station.

The Supreme Court held that evidence of the trainer of tracking dog is relevant and
admissible in evidence, but the evidence can’t be treated at par with the evidence of scientific
experts analyzing blood or chemicals. The reactions of blood and chemicals can’t be equated
with the behavior of dog which is an intelligent animal with many thought processes similar
to the thought processes of human beings. Whenever thought process is involved there is risk
of error and deception. The law is made clear by the Supreme Court by enunciating the
principle that the evidence of dog tracking is admissible, but not ordinarily of much weight
and not at par with the evidence of scientific experts.

Apart from the above fields, there are chemical analyst, explosive experts, mechanical
experts, interpreter, patent expert, hair expert etc. whose opinion is admissible in evidence.

Facts Bearing Upon Opinions Of Expert

Section 4615 lays down the principles that when the opinion of experts is relevant, any fact
which is otherwise irrelevant will become relevant if it either supports or contradicts the
opinion of experts. When an opinion of the experts is cited and declared to be relevant the
parties have right to produce additional evidences to support or rebut the opinion of the
experts. For example— ‘A’ was poisoned by a certain poison. A medical expert established
that the certain type of poison resulted in death of ‘A’.

Evidence may be given to that effect that other persons were also administered poison by that
person, exhibited symptoms which the medical expert affirms or denies to the symptom of
that person, is relevant.

Thus, where the opinion of an expert is contradicted the evidences of outstanding qualities
may be allowed to be produced. In State of Haryana v Bagirath16 it was held that the court
is not bound by the opinion of the medical expert, but has to form its own opinion. In this

15
Section 46 of the Indian Evidence Act, 1872:- Facts not otherwise relevant are relevant if they support or are
inconsistent with the opinions of experts, when such opinions are relevant.
16
State of Haryana v Bagirath 1974 (1) SCR 489

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case, the medical witness ruled out the possibility of two successive blows by a sharp weapon
falling at the same time. The court rejected this opinion and accepted the prosecution version.
Where there is some variance between the medical evidence and the evidence of an eye
witness, the court should not take the easy way of giving benefit of doubt to the accused. It is
treated that where the eye-witnesses account is found credible and trustworthy medical
opinion pointing to alternative possibilities is not accepted as conclusive.

Opinion As To Handwriting, When Relevant:

Section 47 deals with the opinion of persons who are not experts but the opinion of such
person is made admissible. When the court has to determine the question as to particular
handwriting of any person, it can admit the opinion of an expert, but at the same time it may
also admit the opinion of a person who is acquainted with the handwriting of that person. The
opinion evidence of non-expert is relevant only if the condition laid down in Section 47 is
proved. In what manner a person may be acquainted with handwriting of other person has
been given in the explanation appended to the section.

Proof of handwriting:

When a document is written or signed by a certain person the court may follow any one of the
methods for proving handwriting as mentioned in the explanation. The explanation gives a
list of persons who may be said to be acquainted with the handwriting of another. The person
is he:

1. Who has seen the person write, or

2. Who has received documents purporting to have been written by that person in answer to
document written by the witness, or

3. Who has in ordinary course of business received documents purporting to have been
written by that person or such documents have been habitually submitted to him.

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According to Section 4717 the opinion of person who is acquainted with the handwriting of
another is relevant. Thus the statement of person in whose presence the writing was made or
the person who is habitually receiving letters from that person is relevant. If a person is
familiar with this writing is also relevant. But, the conviction cannot be based on the opinion
of handwriting expert. The opinion of handwriting expert can be relied upon when supported
by other interest of evidence and corroborates the circumstance evidence.

Sections 45, 47, 67 and 73 jointly prescribe the following methods of proving handwriting,
viz.:

1. By evidence of the writer himself (Section 67).

2. By expert opinion (Section 45).

3. By evidence of person who is acquainted with handwriting (Section 47).

4. By comparison of the handwriting in question with the handwriting of an alleged writer

(Section 73).

The following are the different modes of proving handwriting:-

 A person who saw someone writing or signing a document can prove it.
 A person who wrote the document can prove it.
 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.
 The court can form opinion by comparing disputed handwriting with the admitted
handwriting.
 The person against whom the document is tendered can admit the handwriting.
 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.

17
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.

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Person acquainted with handwriting:

Under the section any person acquainted with one’s handwriting means that he has seen the
person write or he has knowledge by means of correspondence or has habitual submission of
documents purporting to be the handwriting of that person. “Therefore, before a witness
qualifies himself to state about the authorship of a writing he must depose as to how he has
been acquainted with writing of that person whose writing he tries to prove.” 18 It must be
proved that the witness is acquainted with the handwriting of a person. It has been held that
the evidence under this section is much more valuable than that a handwriting expert. When
the evidence of the pharmacist was not questioned and he stated that he was acquainted with
the handwriting of the Doctor who issued the injury report, that evidence is sufficient. When
the signature on cheque is disputed the court should be assisted by expert opinion or by any
other circumstances to prove the execution of document.

In the case of State of Maharashtra v. Sukhdeo Singh19, the Apex Court opined that
before a Court can act on the opinion evidence of a handwriting expert two things must be
proved beyond any manner of doubt, namely, (i) the genuineness of the specimen/admitted
handwriting of the concerned accused and (ii) the handwriting expert is a competent, reliable
and dependable witness whose evidence inspires confidence.

Ex visu scrimptions and Ex scripts olium visis:

The witness either has seen that the person write or he is acquainted with handwriting without
seeing a person write. In case of ex visu scriptions “the rule with respect of proof is clear and
settled, namely that a person who has even seen the supposed writer of a document write, so
as to have thereby acquired a standard in his own mind of the general character of the
handwriting of that party, is a competent witness.”

In ex scriptis olium “the document has come to the observation of the witness without seeing
any person in the art of writing.” When a person has received letters or documents of the
writer whose handwriting the witness is acquainted the presumption is that the letter or
document is genuine. “But the decisions generally establish the proposition that the rule is not
changed by the mere fact that the one receiving the letters has acted upon them, although

18
Rahim Khan v. Khurshid Ad, AIR 1975 SC 290
19
State of Maharashtra v. Sukhdeo Singh 1992 AIR 2100

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such acts may be a part of a chain of evidence from which the acknowledgement or approval
of the supposed another may be inferred.”

47A. Opinion as to digital signature when relevant:

When the Court has to form an opinion as to the digital signature of any person, the opinion
of the Certifying Authority which has issued the Digital Signature Certificate is a relevant
fact..

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 relevant20.

This section deals with general custom and general right unlike Section 13 which is confined
to all kinds of custom or right whether public or private. The general custom means custom
prevailing in a locality followed by considerable number of people, on the other hand, the
general rights are those rights enjoyed by all people of a locality.

The section says about general opinion of persons. The weight of his evidence would
naturally depend on the position and character of the witness and of the persons on whose
statements he has formed his opinion but he cannot confine to instances in which he had
personally foreseen the usage or custom exercised as a matter of fact.

Whereas under section 32(4) of this Act the opinion of dead person or a person who cannot
be called is admissible. Section 48 concerns with the opinion of a living person only, who
would have known the existence of any general custom or right and the opinion of that person
is relevant. The person who holds such opinion has to appear in person before the court as per
Section 60 which requires that oral evidence must always be direct. Section 48 does not apply
where a special right claimed by a particular person is in question.

The explanation appended to this section has further clarified the nature of custom or right. It
includes only general custom and general right common to and observed by a considerable
number of persons of a locality or class. Private custom or right is totally excluded from
operation of this section.

20
Section 48 of the Indian Evidence Act, 1872

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Opinions As To Usages, Tenets, Etc., When Relevant:

When the Court has to form an opinion as to—he 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.21

The section admits the opinion of person who has special means of knowledge of any word or
vocabulary used in any locality, language, religion, custom etc. Section 49 lays down that
when the court has to form an opinion as to:

(i) Usages and tenets of any body of men or family;

(ii) The constitution and government of any religious or charitable foundation, or

(iii) Meaning of words or terms used in particular district or by particular classes of people,
the opinion of person who has special means of knowledge is relevant.

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.”

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 fact22.

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).

21
Section 49 of the Indian Evidence Act 1872
22
Section 50 of the Indian Evidence Act 1872

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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 behaviour which indicates the existence of the belief or opinion
what the section says that such conduct or outward behaviour 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 behaviour 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.

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.

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Proof of Relationship:
The sections 50 of the Indian Evidence Act 187223 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 act24. 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.

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.

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

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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.
24
Milkhi Ram v. Milkhi Ram AIR 1996 HP 116

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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.

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 Bibliography

Websites Referred:

 https://indiankanoon.org/doc/1610765/
 https://www.advocatekhoj.com
 http://www.shareyouressays.com
 http://www.legalservicesindia.com

Books Referred:

 Indian evidence act 1872, Bare Act, 2019

 The Law Of Evidence–As Amended By The Criminal Law (Amendment) Act, 2013, By
Ratanlal & Dhirajlal, 25th Edtion.

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