Evidentiary Value of Expert Opinion under the Indian Evidence Act

 The Indian Evidence Act, 1872, provides a structured framework for the admissibility and relevance of expert opinions in legal proceedings. This framework is primarily outlined in Sections 45 to 51, which detail the circumstances under which expert opinions can be considered as evidence.

Definition and Role of an Expert

An expert is defined under Section 45 of the Indian Evidence Act as an individual possessing specialized knowledge, skill, or experience in specific areas such as:

- Foreign law

- Science

- Art

- Handwriting

- Finger impressions

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Whether Court should Refer The Parties To Arbitration if There Is A Duality Of Expert Opinion As To The Genuineness Of the arbitration Agreement?

 Whereas, as regards the execution of the Joint Venture Agreement by Mr. Rajendra Parekh, by putting the signatures thereon, there is a duality of opinion. The State Examiner of Documents has opined that the disputed signatures appear to have been written by the person who wrote the specimen signatures. Ms. Nisha Menon, private expert, opined to the contrary.

49. The non-arbitrability of the dispute, in the backdrop of the allegations of fraud, has also been subjected to two tests. First, whether the alleged fraud affects the underlying contract, rendering it void. Two, whether the fraud is restricted to the affairs of the parties, inter se, without any implication in the public domain. To put it in other words, the civil aspect of fraud may legitimately form a subject matter of arbitration. However, the criminal aspect of fraud, which entails penal consequences, can only be adjudicated by a court of law. In contemporary arbitration, the broad proposition that the allegations of fraud are non-arbitrable is not favoured. If an allegation of fraud can be adjudicated upon before a civil court, there is no justifiable reason to exclude such disputes from being resolved through arbitration.

64. In such circumstances, the course adopted by the Supreme Court in the case of Pravin Electricals (Supra) by directing the Arbitrator to first determine as to whether the arbitration agreement exists between the parties in the light of the defence rooted in the fraud and forgery, as a preliminary issue, appears expedient. 

 IN THE HIGH COURT OF BOMBAY

Arbitration Application No. 72 of 2013

Decided On: 06.05.2022

Atul & Arkade Realty (Previously known as Atul Real Estate Holding)  Vs. I.A. & I.C. Private Limited and Ors.

Hon'ble Judges/Coram:

N.J. Jamadar, J.

Citation: MANU/MH/1607/2022

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Important Judgments on Preliminary assessment of juvenile by JJB or Childrens court as per Juvenile justice Act

  Credits:-https://pixabay.com/

1) Whether preliminary assessment done by JJB or children's court is vitiated if not completed within the prescribed period?

https://www.lawweb.in/2022/03/whether-preliminary-assessment-done-by_27.html

2) Whether preliminary assessment done by JJB or children's court is vitiated if it has failed to take assistance psychologist or other experts?

https://www.lawweb.in/2022/03/whether-preliminary-assessment-done-by.html

3) Should JJB or Children's court allow the juvenile to participate in his preliminary assessment?

https://www.lawweb.in/2022/03/should-jjb-or-childrens-court-allow.html

4) Will the trial before Children's court be vitiated if the Children's court fails to conduct a preliminary assessment?

https://www.lawweb.in/2022/03/will-trial-before-childrens-court-be.html

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Whether preliminary assessment done by JJB or children's court is vitiated if it has failed to take assistance psychologist or other experts?

 As per sub-section (3) of Section 14 of the J.J. Act, a preliminary assessment in case of heinous offence under Section 15, shall be disposed of by the Board within a period of three months from the date of first production of the child, who is above age of 16 years. The Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit the offence with ability to understand consequences thereof and the circumstances in which, he, allegedly, committed the offence and may pass an order as per sub-section (3) of Section 18 of the J.J. Act, provided that for such an assessment, the Board may take the assistance of experienced psychologists or psycho-social workers or other experts. It is explained that for the purposes of this Section, preliminary assessment is not a trial, but is to assess the capacity of such child to commit and understand the consequences of the alleged offence. From the proviso referred to above, it is clear that the Board may or may not take assistance of an expert for such an assessment. Therefore, contention of the learned Counsel for the applicant that for want of assistance from expert, the  preliminary assessment made by the Board in respect of the applicant, is not justifiable, cannot be accepted. {Para 5}

Bombay High Court

Ajay S/O. Ramesh Bansode Through ... vs The State Of Maharashtra And Anr on 12 September, 2018

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Whether habitual offender can be given of benefit of juvenility?

 

24. The further contention of Ld. counsel for the appellant that CCL (R) is involved into other FIRs, therefore, he is a habitual offender and cannot be given benefit of juvenility. This contention has no substance because while considering the circumstances in which the alleged offence was committed, the JJ Board has to consider the circumstances of the case in hand and not the involvement of the CCL in other cases. If the circumstances, in which the offence was committed are such that the CCL cannot be considered as an adult, therefore, his involvement in other criminal cases is quite immaterial.

25. In view of the above discussions, I do not find any infirmity or illegality in the impugned order dated 14.05.2018, passed by JJ-B II. According the order dated 14.05.2018 off JJ-B II is upheld and the appeal is dismissed"

Delhi High Court

Pradeep Kumar Vs The State Nct Of Delhi & Etc on 15 April, 2019

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Whether Juvenile justice board doing preliminary assessment is bound by expert opinion?

   There is no doubt that the JJ Board may seek the opinion of an expert regarding the mental and physical capacity of a CCL to commit an offence and it is not necessary that if an expert opined that the mental and physical capacity of a CCL and his ability to understand the consequence of the offence are positive, then the JJ Board is bound by the expert opinion. It is well within the jurisdiction of the JJ Board to agree or disagree with the preliminary assessment report of the CCL submitted by such a psychologist to the JJ Board. But the circumstances, in which the alleged offence was committed has to be considered by the JJ Board independently, in which the alleged offence was committed and the JJ Board has to apply a judicial mind.{Para 10}

Delhi High Court

Pradeep Kumar Vs The State Nct Of Delhi & Etc on 15 April, 2019

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Whether revision is maintainable against order rejecting petition to send the cheque for an expert opinion in cheque bounce case?

1. This Criminal Original Petition has been filed challenging the order passed by the Court below dismissing the revision petition filed by the petitioner, challenging the order passed by the learned Judicial Magistrate-III, Dindigul dismissing the application filed by the petitioner under Section 45 of the Evidence Act.

8. This Court does not find any illegality or perversity in the order passed by the Court below and there is absolutely no ground to interfere with the same. That apart, the criminal revision is not maintainable as against the order passed by the Court below under Section 45 of the Evidence Act.

IN THE HIGH COURT OF MADRAS (MADURAI BENCH)

Crl. O.P. (MD) No. 17441 of 2017 and Crl. M.P. (MD) No. 11447 of 2017

Decided On: 25.09.2019

 P. Pattabiraman  Vs.  S.R. Eswar

Hon'ble Judges/Coram:

N. Anand Venkatesh, J.

Citation: MANU/TN/6170/2019

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Whether court should permit production of expert report during pendancy of proceeding?

 Even if assumingly, the original building plan hence stands appended with rent petition, yet when it may not disclose with, the, utmost precision, and, with ultra specificity, as may, hence stand disclosed in the report, of, the expert, the utmost necessity, of, the landlord/respondent herein, hence, bona fidely requiring it, for personally using it, upon, its being vacated, under, order(s), of, eviction being rendered by the learned Rent Controller, (i) thereupon also when, the expert's report, upon, its adduction, may also hence support the utmost necessity of the landlord, and, further may enable, the, emergence, of, best evidence, vis-à-vis, his bona fide(s), in, seeking, the, eviction of the tenant/petitioner herein, therefrom, (ii) whereupon, the apt leave is granted, for its being tendered into evidence, given its affording, being concomitantly both just and essential, for resting the apt controversy.

5. Be that as it may, even otherwise, the courts of law, are, expected to lean towards granting the apt leave, dehors any afore stricto sensu, construction being meted to the afore coinage hence occurring in the aforesaid statutory provisions, (i) unless demonstrable prejudice would ensue, to the petitioner/tenant or unless the discretion exercised, by the courts, in, permitting its/theirs being tendered into evidence, is, visibly rather grossly flawed, (ii) given courts, upon, discerning, from, the pleadings, the, necessity of its/their adduction, hence, for resting a clear clinching finding, upon the apt issue, thereupon, may being constrained, to validly conclude qua the apt leave being rather accordable. Significantly, hereat when for reasons aforestated, the afore report of the expert, is both, just and essential, for enabling the applicant/landlord, to, prove the apt ground, and, when the petitioner herein/tenant, would also hold the right, to cross-examine him, and, when hence no palpable prejudice would stand encumbered, upon, the non-applicant/petitioner/tenant, thereupon, this Court is constrained, to affirm the impugned order.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 251 of 2018

Decided On: 28.09.2018

 Suman Bala Vs. Rakesh Sood

Hon'ble Judges/Coram:

Sureshwar Thakur, J.

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Whether expert in foreign law can apply foreign law to facts of case before court?

What he would not be entitled to do,
however, is apply what he believes to be the foreign law in question to the facts of
the case before him and to recommend a solution. That has always been within
the exclusive province of the Court deciding the matter. This is to my mind is a
point of distinction between foreign law as a body of learning and other scientific
disciplines. A court, given its legal training, would be perfectly capable of applying
foreign law, once it is ascertained, to the facts before it. However, in respect of
other fields of inquiry, such as medicine, odontology or psychiatry, an expert
witness may legitimately bring his learning to bear upon the facts of the case in
expressing his opinion, which the Court would then proceed to weigh in the
balance along with other factors in deciding the ultimate issue. Indeed, expert
evidence of this nature would not be meaningful unless it bore upon the facts in
question. Even here, however, the role of the expert is not, as the Hon’ble
Supreme Court observes in Ramesh Chandra Agrawal v. Regency Hospital Ltd. &
Ors.(supra), that of a judge or jury and the task of adjudication falls upon the
court alone.

22. If one were to test the evidence of Mr. Keel against this touchstone viz., an
expert in foreign law would be entitled to express an opinion as to what the law is,
but not apply that law to the facts before the Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1428 OF 2015
IN
SUIT NO. 536 OF 2011

DHIRAJLAL ALIAS DHIRUBHAI BABARIA AND ANR. … 
V
NAVINBHAI C. DAVE & ANR.
 CORAM: S. J. KATHAWALLA, J.
 Dated : 29th August, 2017

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Whether it is mandatory for judge to consider expert opinion at time of framing of charge?

Submission of learned Advocate appearing on

behalf of revisionist that as per forensic science report original

cheques bearing Nos. 396001, 396002, 396003 were not

signed by revisionist and on this ground primafacie case

against the revisionist is not made out under Section 420 IPC

is rejected being devoid of any force for the reasons

hereinafter mentioned. It is well settled law that at the time of

framing charge meticulous consideration of evidence is not

required. See AIR 1981 SC 1548 title Mohammad Akbar Dar and

others vs. State of J&K and others. See AIR 1977 SC 2433 title Yash

Pal Mital vs. The State of Punjab. It is well settled law that opinion

of expert under Section 45 of Indian Evidence Act 1872 is only

advisory in nature. It is well settled law that facts of cheating

as defined under Section 420 IPC can be proved by way of oral

evidence also. It is well settled law that when there is conflict

between the oral evidence and expert evidence then

testimony of eye version given by eye witness get preference.

See AIR 2012 SC 3046 title Dayal Singh and others vs. State of

Uttaranchal. It is the case of prosecution that accused had

given three cheques of ` 90 lacs each to the complainant

through his employee namely Sunil Kumar @ Manu. Court has

carefully perused the testimony of Sunil Kumar @ Manu

recorded by investigating officer during investigation process.

Sunil Kumar @ Manu has specifically stated in his statement

recorded under Section 161 Cr.P.C. that he joined Tara

Business Group Private Limited in the month of September

2001. Sunil Kumar @ Manu has stated in his statement

recorded under Section 161 Cr.P.C. that accused Rajeshwar

Sabarwal was the owner of Tara Business Group Private

Limited Company. Sunil Kumar @ Manu has also stated in

positive manner that his elder brother Naresh Kumar was also

employed in the company. Sunil Kumar @ Manu has stated

that accused was MD of company and he used to look after

the security work. Sunil @ Manu has stated in his statement

recorded under Section 161 Cr.P.C. that accused Rajeshwar

Sabarwal was owner of two vehicles i.e. Swift and Etioes. Sunil

Kumar has further stated that there were stickers of army

upon both vehicles. Sunil Kumar @ Manu has stated that on

11.3.2012 accused had handed over to him one envelope and

directed him to hand over the envelope to complainant Chuni

Lal Chauhan at his hotel at Parwanoo. Sunil Kumar @ Manu

has further stated in his statement recorded under Section

161 Cr.P.C. that on the same day he came to hotel of

complainant Chuni Lal Chauhan at Parwanoo and handed over

the envelope to complainant Chuni Lal Chauhan on behalf of

accused. Sunil Kumar @ Manu has further stated in his

statement recorded under Section 161 Cr.P.C. that

complainant Chuni Lal Chauhan opened the envelope and in

the envelope there were cash of ` 140000/- (Rupees one lac

forty thousand only) and there were three cheques of ` 90 lacs

each. Sunil Kumar @ Manu has further stated in his statement

recorded under Section 161 Cr.P.C. that accused Rajeshwar

Sabarwal was not retired as Colonel from army. Sunil Kumar @

Manu has further stated that accused informed the people

that he was retired from army from the post of Colonel just to

cheat the people. Sunil Kumar @ Manu has further stated that

after registration of criminal case under Section 420 IPC

accused removed the stickers of Colonel from vehicles and

also sold both vehicles. Court is of the opinion that above

stated statement of Sunil Kumar @ Manu eye witness is

sufficient to frame charge against revisionist under Section

420 IPC. Court is of the opinion that for the purpose of framing

charge Courts are legally competent to peruse police report

and documents sent along with report under Section 173 of

Code of Criminal Procedure 1973 as per Section 239 and

Chapter XIX of Code of Criminal Procedure 1973. 

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

 Cr.Revision No. 170 of 2015

 Date of Order 13th April 2016

Rajeshwar Sabarwal son of Shri O.P. Sabarwal 

V

State of H.P.

Coram

The Hon’ble Mr. Justice P.S. Rana, J.

Citation: 2017 CRLJ1222

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Whether expert opinion requires corroboration?

An expert’s opinion does not always need corroboration, but
it must be complete, i.e., based on a completeness of factualmaterial, and must reflect sound reasoning. Mr. Narula relies on the
decision of the Supreme Court in Murari Lal s/o Ram Singh v State of
Madhya Pradesh49 for the proposition that corroboration is not
invariably required. This is true. However, the Court in Murari Lal
also held that on the facts of a particular case, a court may require
corroboration; the degree of corroboration might vary from case to
case. A court should be cautious, not suspicious.50 It should

48 Dr. Khatri’s report, p. 394.
49 (1980) 1 SCC 704.
50 H. Venkatachala Iyengar v. B. N. Thimmajamma and Ors., 1959 Supp (1)
SCR 426.
consider all other relevant evidence and then decide whether to
accept or reject it. Handwriting analysis is an imperfect science.
Experts’ opinions are error-prone. They are not to be brushed aside,
but they are also not to be accepted as the unvarnished truth merely
because they say a particular thing. Nothing prevents the court from
comparing the disputed writing with the admitted writing and then
coming to a conclusion of its own. If there is an opinion of an expert,
or of any witness, the court may apply its own observation by
comparing the signatures, or handwriting for providing a decisive
weight or influence to its decision. In Ajay K. Parmar v State of
Rajasthan,51 the Supreme Court held that the evidence of an expert
witness, though inconclusive on its own, was not to be discarded

entirely. The final decision is always that of the Court.52

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 20 OF 2005
IN
TESTAMENTARY PETITION NO. 753 OF 2004
SHIRISH POPATLAL SHAH,
v
ARUN POPATLAL SHAH,
CORAM : G.S.Patel, J.
Dated : 8th July 2016
Citation: 2016(6) MHLJ 257

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When possession and sell of obscene CD is not proved?

 On a perusal of the oral and documentary

evidence, it is clear that the revision petitioner had no

control over the alleged shop when PW1 was conducting

search and seizure.           If the revision petitioner was


conducting any sale of prohibited and obscene materials,

it is the primary responsibility of the prosecution to prove

the possession of the shop.          When petitioner is in

possession of the room, the connected aspects such as

physical control and custody is to be proved by the

prosecution.        While explaining the various situation

relating to the possession, the functional and relative

concepts have to be examined in a wider sense.          The

degree of physical control exercised by the revision

petitioner is very relevant and knowledge of the person

claiming such possessory right over the thing has to be

proved.

     The probative information stored in digital form in

a compact disc can be used before court as digital

evidence or electronic evidence. The digital evidence is

highly fragile and can be easily altered, damaged or

destroyed and also time sensitive.        Therefore special

precaution should be taken to this document to collect

preserve and examine this evidence. No analysis of the

compact disc (hereinafter referred as CD) was made by


the investigating officer to discover the files in it. This

includes normal files, deleted files and encrypted files.

Therefore, for identification of the files in the CD digital

evidence is necessary.      Identification of the type of

information stored in the disc is necessary, for this

appropriate technology can be used to extract it. Without

examining the digital data in a scientific manner, viewing

of the CD by the Magistrate, Assistant Public Prosecutor

and the Sub Inspector is unsustainable in law and their

satisfaction is not an appreciation of electronics evidence

in law. An electronic record by way of secondary evidence

shall not be admitted in evidence unless the requirements

under Section 65B are satisfied. Thus, in the case of CD,

the same shall be accompanied by a certificate in terms of

Section 65B obtained at the time of taking the documents,

without which, the secondary evidence pertaining to that

electronic record, is inadmissible.   Moreover the expert

opinion under Section 45A of the Evidence Act was not

obtained relating to the stored data in electronic form. In

the absence of such a certificate and opinion, the oral



evidence to prove existence of such electronic evidence is

not sufficient to prove authenticity thereof.

     However, while considering the offence under

Section 292(2)(a), the prosecution has to prove that the

accused sold, distributed and publically exhibited the

obscene materials. Simply certain CDs were seized from a

shop on the basis of information, it cannot be taken for

granted that the revision petitioner was guilty of such

crime. It is the primary responsibility of the prosecution to

prove that the accused was in possession of the shop and

the seized articles are obscene articles.      In a case for

offence under Section 292 of the IPC, prosecution has to

prove that the accused sells, let to hire, distribute,

publicly exhibits or in any manner puts into circulation, or

for purposes of sale, hire, distribution, public exhibition or

circulation, makes, produces or has in his possession any

obscene    book,    pamphlet,   paper    drawing,   painting,

presentation or figure or any other obscene object

whatsoever as alleged by the prosecution. There must be

direct evidence with regard to the possession or sale of


the obscene books or articles. There is no presumption

with regard to possession, mere fact that some books

were seized from a particular shop by a police officer.

There may be exceptional cases, where the rule of

presumption applies. In such cases, the proved facts and

circumstances may speak for themselves and court may

be justified in reaching a conclusion in the light of

available evidence.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                           MR. JUSTICE P.D.RAJAN

           15TH DAY OF DECEMBER 2015

               Crl.Rev.Pet.No. 3780 of 2006 ( )
                                           
            KONNADAN ABDUL GAFOOR
        Vs
            THE STATE OF KERALA
           Citation: 2016 CRLJ 2647

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Whether court is barred from seeking expert opinion if there is long gap between disputed and admitted writing?

    We accordingly answer the reference as under:
      It is essentially within the judicious discretion of the Court,
depending on the individual facts and circumstances of the case
before it, to seek or not to seek expert opinion as to the comparison of
the disputed handwriting/signature with the admitted handwriting/
signature under Section 45 of the Indian Evidence Act, 1872. The
Court is however not barred from sending the disputed handwriting/
signature for comparison to an expert merely because the time gap
between the admitted handwriting/signature and the disputed
handwriting/signature is long.  The Court must however endeavour
to impress upon the petitioning party that comparison of disputed
handwritings/signatures with admitted handwritings/signatures,
separated by a time lag of 2 to 3 years, would be desirable so as to
facilitate expert comparison in accordance with satisfactory
standards.  That being said, there can be no hard and fast rule about
this aspect and it would ultimately be for the expert concerned to
voice his conclusion as to whether the disputed handwriting/
signature and the admitted handwriting/signature are capable of
comparison for a viable expert opinion.  The view expressed by the
Division Bench in JANACHAITANYA HOUSING LIMITED V/s. DIVYA        
FINANCIERS1, as to the stage of the proceedings when an application 
can be moved by a party under Section 45 of the Indian Evidence Act,
1872, continues to hold the field and there is no necessity for this
Full Bench to address that issue.
HYDERABAD HIGH COURT
CIVIL REVISION PETITION NOS.1500 of 2010     

Dated:18-12-2015 

Bande Siva Shankara Srinivasa Prasad .. Petitioner

Ravi Surya Prakash Babu and others Respondents    



THE HONBLE SRI JUSTICE R. SUBHASH REDDY          

THE HONBLE SRI JUSTICE RAMESH RANGANATHAN             

THE HONBLE SRI JUSTICE SANJAY KUMAR         

Citation:AIR 2016 HYD 118(FB)

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What is difference between expert opinion and testimony of facts?

 Expert evidence needs to be given a closer scrutiny and
requires a different approach while initiating proceedings under
Section 340 of CrPC. After all, it is an opinion given by an expert
and a professional and that too especially when the expert

himself has lodged a caveat regarding his inability to form a
definite opinion without the required material. The duty of an
expert is to furnish the court his opinion and the reasons for his
opinion along with all the materials. It is for the court thereafter to
see whether the basis of the opinion is correct and proper and
then form its own conclusion. But, that is not the case in respect
of a witness of facts. Facts are facts and they remain and have to
remain as such forever. The witness of facts does not give his
opinion on facts; but presents the facts as such. However, the
expert gives an opinion on what he has tested or on what has
been subjected to any process of scrutiny. The inference drawn
thereafter is still an opinion based on his knowledge. In case,
subsequently, he comes across some authentic material which
may suggest a different opinion, he must address the same, lest
he should be branded as intellectually dishonest. Objective
approach and openness to truth actually form the basis of any
expert opinion.
21. In National Justice Compania Naviera SA v.
Prudential Assurance Co Ltd (The "Ikarian Reefer")
[1995] 1 Lloyd's Rep 455, theQueen’s Bench (Commercial Division) even went to the extent of

holding that the expert has the freedom in such a situation to
change his views. It was stated that “if an expert's opinion is not
properly researched because he considers that insufficient data is
available, then this must be stated with an indication that the
opinion is no more than a provisional one. In cases where an
expert witness who has prepared a report could not assert that
the report contained the truth, the whole truth and nothing but
the truth without some qualification, that qualification should be
stated in the report”.
22. Hence, merely because an expert has tendered an opinion
while also furnishing the basis of the opinion and that too without
being conclusive and definite, it cannot be said that he has
committed perjury so as to help somebody. And, mere rejection of
the expert evidence by itself may not also warrant initiation of

proceedings under Section 340 of CrPC.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 9-10 OF 2016
(Arising from S.L.P. (Criminal) Nos. 7153-7154/2013)

PREM SAGAR MANOCHA  V STATE (NCT OF DELHI) 

Citation; 2016 CRLJ1090 SC,(2016) 4 SCC 571

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Precaution to be taken by court when defendant is an illiterate farmer of rural area

Whenever a dispute regarding execution of a document is raised and defendant is an illiterate farmer of rural area, Court(s) has/have to consider the matter with great caution and care so that an innocent illiterate person may not suffer for something he was not able to understand. 

Equivalent Citation: 2013(8)ADJ617, 2013 (100) ALR 621, 2013 121 RD228

IN THE HIGH COURT OF ALLAHABAD

Second Appeal No. 772 of 1979

Decided On: 04.04.2013

Tika Ram and Another

Vs.

Daulat Ram and Others

Hon'ble Judges/Coram:Sudhir Agarwal, J.

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