ORIGINS OF EXPERT EVIDENCE: THE INDIAN EVIDENCE ACT

James Fitzjames Stephen has been given credit for drafting an exhaustive Evidence Act, one that many say was ahead of its time. It is definitely a testament to the drafters that the Act is one of the least amended legislations in India. While many sections were taken from Judge John Pitt Taylor’s ‘A Treatise on Law of Evidence’, what is unique about the Evidence Act is that a lot of Stephen’s own assumptions and novelty seeped through into the Act. Sections 45-47, on admission of expert evidence, while borrowed from Taylor, were modified to fit the Indian context better. Judge Taylor in his ‘A Treatise on Law of Evidence’ understood that the opinion of a skilled person must be viewed with the most amount of caution, given that they are easiest to manipulate into giving a favourable statement.[1] However, nowhere in Sections 45-47 (those covering expert evidence) is the necessity of corroboration mentioned. Their evidence is said to relevant. In fact, Section 60 even provides for published opinion of an expert to be taken at face value and to be admissible as evidence. Section 60 was entirely Stephen’s own making, without any precedent in Indian, English or Common Law.[2]

However we see that Judge Taylor’s legacy is alive even today. Indian Courts, through precedents have established that an expert’s evidence and testimony is not conclusive, and must be corroborated. At times, even an eye witness testimony has been given more sanctity than the expert evidence by Indian Courts. Viewing expert evidence with scepticism is an indirect inheritance of our colonial legacy, and the Courts must move on from this legacy in the interest of justice.

SCOPE AND NECESSITY OF EXPERT EVIDENCE:  

It is widely accepted that the Courts are well equipped to deal with any and every question of law that appears before it. The Evidence Act is designed in such a way that the Courts consider only that evidence that will enable it to reach a reliable conclusion. There are however, cases in which the Court is not in a position to form a just judgement due to the technical nature of assessment that the evidence requires. This is where expert evidence and Section 45 comes into force.

The reason an exception by way of Section 45A is made for expert opinion is due to necessity of the knowledge the expert provides, which is crucial to come upon a decision. This necessity arises since the court with its present knowledge is ill-equipped to decide upon the issue. Necessity generally entails a very high value ascribed to the evidence. However, the Courts in India have been sceptical to trust this opinion solely. They have at the same time expanded and limited the scope of the Section.

In Ramesh Chandra Aggarwal v Regency Hospital Ltd.[3], the Court laid down the tests and guidelines for an expert opinion. The Court first laid down that the expert must be within a recognized field of expertise, the evidence submitted by the expert must be based on reliable principles and the expert must be qualified in the relevant discipline. As for guidelines, the Court declared that the role of the expert does not include that of a jury’s. It is to merely put forth the materials and reasons that induced her to come to a conclusion, and the scientific criteria that tests the accuracy of the same. The expert evidence must only aid in the judge forming their own independent opinion. This evidence is reliable and the evidentiary value is ascribed if the opinion is backed by data, has a proper methodology, the competency of the process is established and the facts that led to the expert’s conclusion are substantiated.

However, there is no congruency between the various judgments of the Supreme Court in establishing how much weightage an expert opinion should be given: should it be binding, advisory or corroborative.

In a single judgement[4], the Supreme Court has held multiple contradictory views. It held that an expert opinion cannot be brushed aside without any justifiable reason, but it is not always binding upon the Court, and must be accepted only if found to be trustworthy. In the same judgement, the Court further held that interpretation by a technical body in purely technical matters deserves acceptance and will not be interfered with unless found to be arbitrary or unreasonable.

The Courts have at times even taken the eyewitness testimony to be above expert evidence. In Laxman v State of Maharashtra[5], a case of dying declaration, the medical officer’s statement merely stated that the victim was conscious. But it did not indicate that the victim was in a fit state of mind. However, eyewitnesses as well as the Magistrate stated that the victim was in a fit state of mind, and the Court gave more evidentiary value to their statement than to the doctor’s medical opinion.

The recent trend of judgements however, seems to be to hold expert evidence as needing corroboration, and in no way to be conclusive in nature.[6] Moreover, the Courts have also held that the expert evidence must be reconciled and correlated with eye-witness testimony, and only when they are absolutely irreconcilable it is that the Court must decide to accept one over the other.[7] In addition to this, Courts also re-iterate that the final decision upon the value and weightage of the expert opinion lies with the judge, and it is upon the judge’s discretion that a conclusive or corroborative decision must come upon.[8] [9]

On the other hand, Courts have also established that there is no hard and fast rule in the law of evidence that the expert evidence must be corroborated in order to be conclusive.[10] Corroboration of expert evidence is thus not a legal requirement, especially since it is not mentioned in the Evidence Act that it must be corroborated.

This is all indicative of an array of contradictions, which give too much authority to the discretion of a judge. This discretion can be severely misused. The contradictory holdings of the Supreme Court also leads to misuse of the law, and sets the stage for a vague, unhelpful precedents that make it difficult to establish the law of the land.

CONCLUSIVITY OF THE EXPERT OPINION v THE CORRUPT EXPERT:
One of the main reasons for holding expert opinion as unreliable is the possibility of the expert giving false or doctored evidence in favour of a party. This usually in exchange for a reward.

However, as B. R Sharma in his book Forensic Science in Criminal Investigation and Trials[11] states, expert evidence is in fact the most reliable form of evidence that can be presented before a Court. This is because first, the subjective factor in expert evidence is very little, and secondly, expert evidence is always verifiable.

An expert carries out experiments and makes observations using the special skills she has acquired over time. The opinion is thus not subjective, but a statement of facts, which are verifiable by any other source.

This of course, when an expert carries out the work of analysing the facts and evidence with utmost care, caution and following a proper methodology. As is seen above, any opinion that does not adhere to these norms is not admissible. Thus, it further seals the validity and reliability of the expert evidence.

According to B.R Sharma, the real honest experts do not differ on the basic findings. They may differ on the minute details or the weightage and adequacy of the data etc, but are never diametrically opposite. A diametrically opposite opinion to one expert’s is not possible from real and honest experts: one of the differing experts would certainly be corrupt or at the very least incompetent. Thus if the judge is unconvinced of the authenticity of an expert’s opinion, she can always request for a second opinion.

This principle that experts should not have differing opinions is true for the law too. Judges who apply the law in a just manner do not differ on their findings. It is why we value the majority opinion and hold it as the law of the land.

The time honoured convention of the judge forming an independent opinion is viable and useful. It is a check on the experts to ensure they do not get complacent or are not incompetent in their findings. However, the evolving of the convention to mean the discretion of the judge is final is a dangerous tool that can very well threaten the realization of justice. The convention does not mean that the judge act as a super expert, but that the judge not accept the ipse dixit of the expert and instead understand the evidence. The judge’s role should be to ensure that the evidence is reliable and trustworthy and hence valid.

The issue is that the ‘Corrupt Expert’ is seen as the rule instead of the exception. As is shown above, the Corrupt Expert is in fact a rarity. Moreover, given that expert opinion is objective and always verifiable, it must be given more weightage and greater evidentiary role. The expert evidence must be given a conclusive value. In doing so, it can aid in resolving a plethora of cases, ranging from government mishaps to domestic abuse.

FEMINIST CRITIQUE: EXPERT EVIDENCE AND BATTERED WOMAN SYNDROME:

India has refused to recognize the Battered Woman Syndrome (BWS) as a psychological defence in criminal trials. It emerged as legal defence in the UK in cases where women who were victims of severe domestic abuse and violence murdered their abusive partners. The psychological theory holds that the commission of murder is in fact an act of self defence caused by grave provocation and not an intentional crime.

Under Section 45, BWS can very much be introduced as a defence in India. The precedents in the US and UK have held that a psychiatrist must corroborate and testify that the defendant was experiencing the battered wife syndrome. It is then seen if the testimony is in alignment with the behaviour of the defendant (thus having corroborative value).

Even if we disregard the findings of this paper, and hold that expert opinion is merely corroborative in nature, according to the Evidence Act, the BWS must indeed be allowed as a defence. An expert (in this case being a psychologist) can verify that the defendant was in fact experiencing the battered women’s syndrome, which would be corroborated with her behaviour and the evidence of the physical abuse that she faced.

We have the legal mechanism in place to admit this. Countries like the UK, USA, Australia, New Zealand and Canada acknowledge and recognize the evidentiary as well as legal value of the defence of the Battered Woman Syndrome. When we are quick to borrow legal concepts and practices in other areas from these countries, there is no valid reason for the Indian legal system to not recognize the Battered Woman Syndrome as a legal defence.

CONCLUSION:

Human error occurs. It is the reason why mere opinion of witnesses is not admissible as evidence. But the Law makes an exception for the opinion of experts. It is held in great esteem. But at the same time, while creating this exception the Courts render the role of an expert opinion redundant. An eye-witness testimony is not to be solely relied upon, must be corroborated. At the same time, judicial precedents in India have held that the expert evidence must be corroborated. The eye-witness describes what she saw and understood. In essence, the expert witness does the same: describes what is seen and understood as a consequence of that. But the distinction is the verifiability of the expert opinion.

As is shown in this paper, the expert opinion is of a highly objective nature. Thus, it should not be rendered as merely corroborative in nature. The discrepancies of the Court in the value ascribed to expert opinion forms for a bad law. The judge is the only party in a trial who is truly in pursuit of justice. In consonance with the same, the judge must acknowledge the conclusive value of evidence that helps in furthering the cause of justice. Expert evidence is that evidence. Thus, expert evidence must be given conclusive value when it is established that it is reliable and valid evidence.

[1] Gross, Samuel R. “Expert Evidence.” Wis. L. Rev. 1991 (1991): 1113-232

[2] J. D. Heydon, The Origins of the Indian Evidence Act, 10 Oxford U. Commw. L.J. 1

(2010).

[3] 2009 AIR SCW 7308

[4] Grid Corporation of Orissa Ltd. v Eastern Metals and Ferro Alloys (2011) 11 SCC 334

[5] 2002 SCC (Cr.) 1491

[6] Dayal Singh v. State of Uttaranchal, AIR 2012 SC 3046 

[7] Rokad Singh v. State of M.P., 1994 Crlj 494, 499 (MP)

[8] Sidhartha Vashisht v. State, AIR 2010 SC 2352

[9] Gandey Sravan Kuamr v. D. Sriniwas, 2004 (5) ALT 827

[10] Murarilal v. State of Madhya Pradesh, AIR 1980 SC 531

[11] B R Sharma: Forensic Science in Criminal Investigation and Trials, 5th ed

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ABOUT THE AUTHOR

Lalantika Arvind

Lalantika is a penultimate year BA.LLB (Hons) student at Jindal Global Law School (O.P Jindal Global University). She has a keen interest in the unique intersection of law, gender and human rights, and how it plays out in inter-state disputes and their resolution.  She has previously been published on platforms like Centre for Women and Law and Social Change.