Report No. 271

E. Expert Opinion as evidence

4.41 In cases where expert opinion is required by the court, it becomes incumbent on the expert to assist the court by putting all the relevant materials together with the exact reasons which led him to come to a conclusion (and not the finding as such) so that the court may draw its own conclusion after going through those materials.

4.42 In Tomaso Bruno v. State of U.P.59, it was observed:

The courts normally would look at expert evidence with greater sense of acceptability but the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory and unsustainable. The purpose of an expert opinion is primarily to assist the court in arriving in a final conclusion but such report is not a conclusive one. The court is expected to analyze the report, read it in conjunction with the other evidence on record and form its final opinion as to whether such a report is worthy of reliance or not.

4.43 In Ramesh Chandra Aggrawala v. Regency Hospitals,60 the court held:

"The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear expert evidence. The test is that the matter is outside the knowledge and experience of the lay person...The scientific question involved is assumed to be not within the court's knowledge. ...... Thus, cases where the science involved, is highly specialized and perhaps even esoteric, the central rule of expert cannot be disputed. The other requirements of the admissibility of expert evidence are;

(i) That the expert must be within a recognized field of expertise

(ii)That the evidence must be based on reliable principles and

(iii) that the expert must be qualified in that discipline ..."

[Emphasis added]

4.44 In Prem Sagar Manocha v. State (NCT of Delhi)61 the court held: The duty of an expert is to furnish the court his opinion and the reason 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. 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 from basis of any opinion.

4.45 While deciding the said case, the Court placed reliance upon a judgment in National Justice Compania Naviera SA v. Prudential Assurance Co. Ltd.62 and stated:

"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" (Derby & Co Ltd and Others v Weldon and Others, The Times, Nov 9, 1990 per Lord Justice Staughton).

4.46 The evidence procured through sophisticated machines must be given due weightage and there can be no justification to reject the opinion of the expert who has examined the case microscopically63. The fingerprint examination is conclusive as it is an exact science.64

4.47 While dealing with the provisions of section 112 of the Indian Evidence Act, 1872, on the issue of determining the paternity of the child, the courts held that DNA testing should be made permissible only on the direction of the court as no person can be forced to give his blood without such direction65. The Supreme Court in paternity cases has rejected the prayer for permitting DNA evidence and has relied solely on the non-access principle66.

4.48 The Sixteenth Law Commission, in its 185th Report submitted in 2003, proposed certain amendments to section 112 which are still pending for consideration. The Commission also dealt with exceptions like

"(1) Impotence or sterility;

(2) blood tests proving a man is not the father and (3) DNA tests proving a man is not the father."

4.49 In the case of Sharda v Dharampal67, the Court observed that if everyone started using Article 21 as a shield to protect themselves from going through the DNA test then it will be impossible to arrive at a decision. The Delhi High Court also held that DNA testing does not amount to violation of any of the rights68.

4.50 There can be no dispute with regard to the settled legal proposition that statutory provisions and binding legal principles cannot constitute "compulsion" as to violate the basic or constitutional rights of any person. Enforcement of such principles is itself a constitutional obligation69.