Report No. 69
IV. Questions for Consideration
Coming back to the provisions of section 45, we first note that several questions arise for consideration with reference to expert evidence.
(a) What matters are appropriate for expert evidence?
(b) Who is an expert, and what are his qualifications?
(c) Who summons the expert party or the court?
(d) What questions should be put to the expert?
(e) Supply of copies of opinion.
17.14. All these are of practical value. But the major problem concerns the nature of the evidence of the witness in court, and the manner in which his evidence can best be presented so as to furnish the maximum assistance to the court.
17.15. Need for review.-
These questions show the scope for review of the law relating to expert evidence. The reasons for justifying a review of the law are two-fold. First, the ever widening range of scientific and technical knowledge provides the courts of law with new or improved means for the investigation of truth. The question is, whether, the law has kept pace with this development in the field of science, and makes the fullest use of this knowledge. This is a question relating to the matter of expert evidence.
Secondly, even apart from developments in particular fields of science, the rules of procedure and evidence should be such that the evidence of experts which reaches the court is of a quality that would assist the court in the best possible manner in the ascertainment of truth. The question is, whether the rules on the subject, particularly in so far as they relate to the conditions under which expert evidence is recorded, are best suited to achieve this end. This pertains to the manner of utilising expert evidence.
17.16. To make matters concrete, one may refer to some features of expert evidence, such as, distrust of the evidence of experts resulting from a suspicion of partisanship, effect of lengthy and provocative cross-examination of experts, conflicting testimony of experts on both sides, and the consequential need for providing for appointment of an independent expert by the Court. The last mentioned question has received considerable attention in recent times, in foreign countries.
V. Matters Appropriate for Expert Evidence
17.17. Coming to the matters on which expert evidence can be given, one would have thought that the words "science or art" are wide enough to cover all branches of specialised knowledge. However, occasionally, doubts have arisen in this regard.
17.18. Thus, a doubt has been raised whether, under section 45. evidence of experts about palm impressions or foot-prints can be admitted. The section does not expressly include foot-prints or palm impressions. Some courts have, in practice, admitted in evidence, the opinion of such experts.1-2
A view has. however, been expressed3 that it is the farts which the experts observed which are important, and not the opinion.
1. a) Sidik v. Emperor, AIR 1942 Sind 11 (13);
(b) Ganesh v. State, AIR 1955 Assam 51 (54), para. 18 (DB).
2. Emperor v. Babu Lal, ILR 52 Born 323: AIR 1928 Born 58.
3. Myla Swami v. Emperor, AIR 1937 Mad 951: ILR 1938 Mad 262 (Case about palr. impression).
17.20. The science of foot-prints has progressed considerably since the time when the Indian Evidence Act was enacted. The words "foot prints" refer not only to size, shave 'and other characteristics. hat also to impressions of the nanillary ridges of the foot and toes. Footprints are identified on the same principles as finger prints are identified (i.e. on the basis of digit and ridge characterists). Therefore. footprints should he treated on the same footing as finger prints. In an unreported Madras case1 Govinda Menon and Mack B. admitted expert evidence as to footprints.
1. Velayudha (in re:), Referred Trial No. 14 of 1954. [Referred to in Rao & Rao Expel Evidence, (1955), Chapter 1, Topic 4, p. 81 dissenting from Paramban (in re:), AIR 195 Mad 737 (740) (DB) (Horwill & Rajagopalan, JJ.) and Ooineinvan (in re:), AIR Mad 45 (Horwill, J.)
17.21. The fact that foot-marks corresponding to that of the accused were found near the spot of occurrence is relevant. Evidence of skilled persons, who are in a position to identify foot-marks is admissible in England and in America. hough foot-prints are not mentioned in the section, evidence of footprints experts has been admitted,-with the caution that there should be other evidence to bring home the offence to the accused.1 The Madras view, however, is that if it is to be used, the court must satisfy itself by a comparison.2.
1. Ganesh Gogoi v. State, AIR 1955 Assam 151.
2. Parmhan v. R., AIR 1951 Mad 737.
17.22. Recommendation as to footprints.-
We are of the view that it is desirable to clarify the position by an express provision.
17.23. Palm impression.-
The next question pertains to palm impressions. The position as to palm impressions is substantially the same as the position regards footprints. In a Bombay case,1 the palm impressions and the opinion of the expert as to similarity or dissimilarity of photographs of palm impressions, were held to be admissible.
1. R. v. Babu La!, ILR 52 Born 223.
17.24. The value of such evidence, of course, depends on the circumstances of the case. It has, for example, been held by the Supreme Court1, that evidence about footprints is only one circumstance to be considered with others. It is desirable to clarify the position on both the matters, namely, palm impressions and footprints.
1. Pritam Singh v. State of Punjab, AIR 1956 SC 415.
17.25. Section 45-Evidence of typewriting.-
Apart from these two matters, there is one important matter in regard to which some amendment appears to be needed. A controversy has arisen under section 45, whether opinions of experts about typed documents are admissible under this section. One high Court1has taken the view that while a witness may be asked to explain points in favour of the view whether two documents have or have not been typed on the same machine, the court cannot treat the opinion of the witness as an independent testimony. The supreme Court had occasion to consider the question in Hanumanth Nargundkar v. State of Madhya Pradesh, AIR 1952 SC 342: 1952 SCR 1091, where the following observations were made:-
Next, it was argued that the matter was not typed on the office type-writer that was in use in those days, namely, article B, and that it had been typed on the typewriter Article A on this point, evidence of certain experts was led. The High Court rightly held that opinion of such expert was not admissible under the Indian Evidence Act2 and as they did not fall within the ambit of section 45 of the Act, this view of the High Court was not contested before us. It is curious that the learned Judge in the High Court, though he held that the evidence of the expert was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it."
1. (a) Bachha Babu v. Emperor, AIR 1933 All 162 (169);
(b) Jhabwala v. Emperor, AIR 1933 All 690 (705).
2. Emphasis supplied.
17.26. One could regard these observations as not laying down a definite view on the subject. But the words "rightly held" could be construed as approving the negative view.
17.27. It is for this reason that the point requires consideration. It has been contended that no matter typed on two typewriters gives the same impressions, and that, while a laymen may not be able to make out the difference between the matter typed on two typewriters, an expert would be able to notice it. It has, therefore, been suggested that such evidence should be admitted. A typewriter, it is stated, is now commonly used in making false documents, documents are type-written, instead of being written by hand. The evidence of an expert regarding typed documents is therefore of importance, and needs to be considered at par with evidence of an expert on hand written document1.
1. Suggestion of the C.B.I.
17.28. We may state that section 45 admits expert evidence as to "matters of science or art". The expression "science or art" has received liberal construction, and must be taken to include all subjects in which special study is necessary for the formation of an opinion.1 In general, the test to be applied is whether previous habit or study is necessary for obtaining competent knowledge of the nature of the subject matter.
1. Stephen's Digest, Article 49, (supra).
17.29. It would appear that it is possible for an expert to identify the typed matter as typed or not typed by a particular machine. Machines manufactured by manufacturer A have types different from those manufactured by manufacturer B, and even as between machines manufactured by the same company, differences remain in the typewriter characters, which can be discerned by experts. The differences, It is stated, increase with the working of the machine, because the machine develops individual characteristics on use1 From the information officially made available, it would appear that there are experts as to typewriters and typewriting in several countries.
1. Mahadev v. Vyankamma Bai, ILR 1947 Nag 781: AIR 1948 Nag 287.
17.30. Position in other countries.-
The U.K., the United States of America, France, Japan, Spain, Switzerland, Federal Republic of Germany and Brazil are amongst them. Evidence of identity or otherwise of typewriters is also allowed in law courts in America.1
1. M.K. Mehta Expert Testimony on Typewriting, AIR 1953 Journal section76.
We, therefore, recommend that section 45 should be amended so as to include identity of typewriting.
VI. Qualifications of Experts1
1. See cases cited in Osborn Questioned Documents, 2nd Edn., pp. 754 to 756, particular Kerr v. United States, (1926) II Federal (2nd) 227, relating to expert evidence on matter type on a packages containing poisoned candy.
17.32. The next aspect which may be briefly mentioned, pertains to the qualifications of experts. On this point, the section is wisely elastic. The section does not lay down that the expert must hold an academic degree or belong to a particular profession. Specialised knowledge or experience, howsoever acquired, will suffice1. The section seeds no change on this point.
1. As to foreign law, see infra.