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SVKM’S

NMIMS SCHOOL OF LAW

A PROJECT SUBMISSION ON;

STATE OF HIMACHAL PRADESH VS. JAI LAL AND ORS. 1999 SUPP(2)
SCR 318

IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE MARKING


SCHEME, FOR TRIMESTER VII OF 2017-2018, IN THE SUBJECT OF LAW
OF EVIDENCE

SUBMITTED TO FACULTY:

Prof. RAHUL NIGAM

SUBMITTED BY:

ABHILASHA PANT (A032)

TY BA LLB (HON’S)

RECEIVED BY: ___________________________

DATE: ___________________________________
STATEMENT OF PROBLEM

It was alleged inter alia that the accused persons entered into a criminal conspiracy with a view
to cheat the State Government by preparing false records showing inflated quantities of scabbed
apple brought by the growers and thereby caused loss to the Government exchequer. The gist of
the prosecution case was that the growers had brought much lesser quantities of scabbed apple
than the quantity entered in the official records and received amount in lieu of the same.

Here, even though the person called in had studied in detail about the apples, he had not worked
with them personally. Can his statement be considered for expert evidence?

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.

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.

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.
OBJECTIVE

The objective of this research on the case is to ascertain the understanding of the judicial
principle laid down in the given case. To find till what extent will the expert witness’s statement
be considered as evidence and to find and understand the Principle involved.

PRINCIPLE:

Under section 45, opinions of experts are relevant on questions of foreign law, science, art,
identity, handwriting or finger impressions. Expert testimony is admissible on the principle of
necessity. The help of experts is necessary when the question involved is beyond the range of
common experience or common knowledge or where the special study of a subject or special
training or skill or special experience is called for. No man is omniscient; in fact, perfection is an
attribute of divinity only.

As a general rule, the opinion of a judge only plays a part and is thus relevant in the decision of a
case, and thus, the opinion of any person other than the judge about any issue or relevant fact is
irrelevant in deciding the case. The reason behind such a rule is that if such opinion is made
relevant, then that person would be invested with the character of a judge. Thus, Section 45 is
thus an exception to this general rule, as it permits the experts opinion to be relevant in deciding
the case.

The reason behind this is that the Judge cannot be expected to be an expert in all the fields-
especially where the subject matters involves technical knowledge as he is not capable of
drawing an inference from the facts which are highly technical. In these circumstances, he needs
the help of an expert- who is supposed to have superior knowledge or experience in relation to
the subject matter.
PRINCIPLE APPLIED

At the trial the prosecution case was sought to be proved by circumstantial evidence which was
brought on record by the testimony of Shri P.C. Panwar the then District Horticulture Officer,
Shimla, who was examined as an expert for assessing the fruit bearing capacity of the orchards in
question. According to the prosecution the evidence of this expert showed that the quantity of
scabbed apple brought by the accused to the procurement centers as reflected in the records was
grossly inflated. From the evidence the prosecution sought to establish the case that the whole
transaction was an outcome of a criminal conspiracy to cheat the State Government, and to
misappropriate public funds and the public servants concerned having been parties to the
conspiracy, the purpose could be easily achieved.

It is relevant to note here that no direct evidence was produced for showing the apple crop of the
orchards in question during the year 1983. It is on record that Shri P.C. Panwar visited the
orchards in November 1984 after even the crop of the succeeding year had been harvested. On
behalf of the defence Shri D.R. Thakur a retired professor of Horticulture and Shri Shamsher
Singh a grower, were examined to counter the evidence of Shri Panwar.

The learned trial Judge accepted the evidence of Shri P.C. Panwar and held that the prosecution
was able to bring home the charge under Sections 120-B and 420 IPC against all the accused
persons and in addition, Section 5(2) of the Prevention of Corruption Act read with 120-
B IPC against the public servants concerned. The trial court further found that the change
under Section 468 IPC was not established.

Learned Counsel appearing for the respondents strongly urged that the prosecution has utterly
failed to bring home any of the charges against the accused persons and the High Court has
rightly acquitted them. Referring to the evidence of Shri P.C. Panwar, the learned Counsel
contended that he can neither be taken as an expert for assessment of maximum productive
capacity of apple trees nor does his evidence reveal that inflated stock was entered in the official
records.

According to the learned Counsel the quantities of scabbed apple were correctly entered in the
official records. It was the further contention of the learned Counsel for the respondents that
under the modalities of the scheme the public officials in the team were not responsible for
ascertaining whether the quantity of diseased apples brought by the grower was out of the crop
grown in his orchard or it was procured from some other source.

DIFFERENCE BETWEEN AN EXPERT AND NON-EXPERT WITNESS

Like a non expert witness the testimony of an expert witness need not be confined to actual facts
and he may give evidence on facts as stated by other witnesses, e.g. a doctor who might not have
seen the patient personally can opine as to the cause of his death on facts deposed. He may cite
textbooks in support of his opinion or to refresh his memory (S.159); he may speak about
experiments made by him in the absence of parties.

The opinion of an expert witness, however, eminent in his field he may be, must not be read as
conclusively of the fact which the Court has to try. However, evidence of eminent literary
persons as experts can be relied upon.

Competency and credit of an expert

Under section 45 of Indian Evidence Act, the evidence of an expert can be led on a question of
foreign law etc., to enable the tribunal to come to a satisfactory conclusion. It is for the Court to
decide the competency or fitness of a witness. The test is to see if the witness is sufficiently
qualified by experience. His credit can be challenged by cross-examination, or by the contrary
evidence of another expert or by showing that he had expressed a different opinion on the same
question previously or in any of the modes allowed u/s 146 to 153 and S. 155 to impeach the
credit of a witness generally.

The questions put to an expert are generally hypothetical as they assume something for the time
being. An expert witness must himself come and give evidence in court. His certificate cannot go
in automatically without proof unless permitted by statutory exceptions like s. 509 (medical
certificate), or section 510 or the CrPC (report of the chemical analyst).

Expert opinion– evidentiary value

The opinion of an expert must be of corroborative nature to the facts and circumstances of the
given case. If the opinion contradicts an unimpeachable eyewitness or documentary evidence,
then it will not have an upper hand over direct evidences. The Section does not provide for any
specific attainment of knowledge or study or experience for being called an expert. Experts are
admissible as witness but, they are not to make conclusion as it is a judicial function.

In Forest Range Officer v. P.Mohammad Ali, it was held that expert opinion is only the opinion
evidence. It does not help the Court in interpretation. The mere opinion of an expert cannot
override the positive evidence of the attesting witness. Expert opinion is not necessarily binding
on the Court.

In Murali Lal v. State of Madhya Pradesh, it was held by the Supreme Court that here is no
justification for condemning the opinion evidence of an expert to the same class of evidence
as that of an accomplice and insist upon corroboration. The court also stated that it would be a
grave injustice to base a conviction solely on the opinion of handwriting expert or any other kind
of expert, without substantial corroboration. An expert deposes and not decides. His duty is to
furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion
so as to enable the judge to form his own independent judgment by the
application of these criteria to the facts proved in evidence.

REVIEW OF LITERATURE

In Sri Chand Batra V. State Of U.P. AIR 1974 SC 639 an Excise Inspector Shri C.D. Misra had
raided a liquor shop and discovered drums of liquor. On performing smell test on the samples of
liquor procured from the drums kept inside the shop, the Excise Inspector found out that the
liquid was illicit liquor. He had further tested the contents of the drums with the aid of litmus
paper, hydrometer, and thermometer to determine the strength and composition of the liquid
under composition. After such observations, he gave testimony where he opined that the liquor
shop had been involved in trading illicit liquor and submitted a detailed report regarding the
same.

The Court held that he Excise Inspector, who had deposed, at the very outset of his evidence, that
he had put in 21 years service as Excise Inspector and had tested lacks of samples of liquor and
illicit liquor. Further, he had employed all possible ways to test the samples of the liquor present
that time, which were clear tests of his reasonability and prudence.

Thus, the Excise Inspector would be an Expert and the testimony and evidence laid by him
regarding the discovery of illicit liquor in the liquor shop would be relevant and admissible
before the Court of law.

In Govinda Reddy & ORS. AIR 1958 Mys 150, the science of comparison of fingerprints has
developed to a stage of exactitude. It is quite possible to compare the impressions taken from the
fingerprints of the individuals with the disputed impressions, provided they are sufficiently clear,
and enlarged photographs are available. The identification of finger impressions with the aid of a
good magnifying glass is not difficult, particularly, when the photos of latent and patent
impressions are pasted side by side.

It was held that though the witness did not possess any technical qualification in as much as he
had neither obtained a degree nor a diploma in photography, his experience of over 25 years in
photography was sufficient enough to call him an expert

RESEARCH METHODOLOGY

The judges concluded the case by relying upon precedents which established principles of
burden of proof and presumptions of law.
CONCLUSION
Thus, we may conclude that this provision is based on the principle that as judges are not
properly equipped to draw proper inferences from the facts stated by witnesses, it is appropriate
that the opinion of an expert must be taken into consideration. But the expert’s opinion is a weak
form of evidence, especially in the cases where the sufficiency of knowledge is doubtful.

An opinion or belief may be of an expert or a non-expert. A witness, in order to give an opinion,


must be competent and the subject matter must be one in respect of which an opinion is allowed.
The subject matters of opinion involves skill in a particular trade or profession or a special
knowledge of a particular science or art. However, in matters of age, identity or the condition of
a person or thing, the belief of the witness is sometimes accepted when it is based on facts within
his own knowledge. A jury, however, is entitled to accept or reject the belief or opinion of any
witness.

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