Introduction

The use of records that provides information about the activities, functions, and origin of their creators and this value that attaches to the records because of the evidences they contain are called as evidential values. An expert always deposes and not decides over any condition. His duty is to provide the judge with all the necessary scientific criteria for testing the accuracy of his conclusion so that the judge can form his own independent judgment by the application of these criteria and facts proved with the help of evidences. According to Section 45 of the Indian Evidence Act, an expert means one who is specially skilled in a particular area of specialization. In other words a person who has completely devoted his/her time and study towards a special branch of learning, and thus is skilled especially on  those points on which he is asked to state his opinion. It allows an expert to form relevant opinion on evidences on a particular fact, which are in question, in order to show to the court that his/her findings are scientific and unbiased.

Supreme Court in the case of the State of H. P. v. Jai Lal and Others stated the importance of expert opinion that the substance of expert opinion by stating that Section 45 of the Evidence Act. Which makes opinions of experts acceptable in the court of law where the court has to form sustainable opinion upon a point of art, or science, or foreign law, or as to identity of finger impressions or handwriting. The opinions upon that point of person specially skilled in such, science, foreign law or art, or in questions regarding the identity of finger impressions or handwriting are relevant facts. Therefore, to show that the evidence of a witness as that of an expert has to be proved that he has acquired a special experience or made a specialized study of the subject or  therein or in other words that he is skilled and has adequate knowledge of the subject. One of the earliest cases, which emphasized on the function of expert, was Titli v. Jones. Where it was stated that the real function of the expert is to put before the court all the materials, together with reasons, which induce him to conclude. So that the court, and not an expert, may form its own judgment by its own relevance, understanding and observation of the materials provided.

Burden of proof

Burden of proof is a legal term that makes the parties to explain or prove that a claim is either valid or invalid based on the provided evidences and facts that are presented in the court of law. It regulates which party is responsible to put forth the evidence and the level of evidence that must be provided in order prove and to prevail on their claim. In most of the cases, generally the plaintiff i.e., the party bringing the claim has the burden of proof. The principle of Burden of proof is simply based on the two concepts of factum probans (proving a fact) and onus probandi (burden of proof). Where the burden of proof remains stable, only what changes is onus, it changes for the same shifts from one party to another and the facts that are required to be proven are those, which are totally not self-evident in nature. In the case of Jarnail Sen v. State of Punjab, if the prosecution fails to adduce the adequate evidence to discharge the burden, they cannot depend upon evidences adduced by the accused person in support for their defense. Under the Indian law, unless and until a law creates an exception, the burden of proof lies on the particular person who is making any claim or asserting any fact. Burden of proof is explained under some provisions of the Indian Evidence Act, along with some illustrations of better understanding, which are as follows:

Section 101 – Burden of proof

Any person whoever desires any Court of law to give a judgment regarding any liability or legal right, which is purely dependent on the existence of facts and evidences, which he himself asserts and must prove that those facts actually exist in reality. When a person has to prove the existence of any such facts, it is said that the burden of proof lies on that particular person. In criminal cases, the principle remains the same that the initial burden is on the prosecution to demonstrate that the accused has committed a crime and if the prosecution fails to establish beyond the reasonable doubt then the accused is found guilty, due to which accused is entitled to an acquittal. If burden of proof is put on the wrong party, in this case the Supreme Court states that this would vitiate the entire judicial system. Wherein, a property owner seeks eviction of the tenants on the grounds of bona fide personal need, here the onus to establish the same is on him. In the case of Banwari Lal v. Road transport, where the carrier lost the goods, the burden lies upon him to establish that there was no negligence from his side. The defense version may even be false; nevertheless, the prosecution cannot make any advantage from the falsity or other infirmities of the defense, so as long as it do not discharge its initial burden of proving the case beyond the reasonable doubt.  In the case of Triro v. Dev Raj, there was some obstruction which caused delay in filing the case which was going quite beyond the limitation period; here by default the onus to justify the delay was on the prosecution. In matrimonial cases such as of Dharam Dev Malik vs Raj Rani, the principle of burden of proof relating to civil cases is applicable. The party whosever, seeking divorce will have to prove the grounds for divorce such as infidelity, desertion or cruelty.

Illustrations:

a.       D wants the Court to give the judgment that C should be punished for a crime, which D says C has committed. In this case D must prove that C has committed the crime.

b.      D wants the Court to give judgment that he is entitled to certain land which is in the possession of C, the facts which D asserts, are denied by C to be true. In this case D must prove the existence of facts asserted by him.

Sec. 102 – On whom burden of proof lies.

Under this section the burden of proof lies on the person who shall fail if none of the evidence at all were given on either side. This section focuses on the party, upon whom the burden of proof lays; the burden of proof often lies upon the party who will fail if either of the parties produce no evidence. The burden of proof lies on the party who confirms a fact rather than the party who denies it.  In the case of unsoundness of mind or insanity, the law presumes sanity until proven. Ram Raja Ram v. Dhruba Charan Jena in this case, under Section 118 of Negotiable Instruments Act, the party claiming no consideration must provide proof for the same.

Illustrations:

a.       C sues D for land whose possession is with D, which as C claims is meant to be given to C by the will of E, who is D’s father. Here in this case if no evidence were given from the either side, then D would be entitled to retain his possession over the land. Therefore, the burden of proof is on C.

b.      C sues D for money due on a bond whose execution is admitted, but D says that it was obtained by fraud, which is denied by C. In this case if no evidence are given from the either side, then C would succeed, as the bond is not meant to be disputed and the fraud is not proved, so here the burden of proof is on D.

Section 103

This section imposes the responsibility of burden of proof on the party that desires the Court to believe and act upon the actual existence of a fact, where this principle generally stays unaffected by the fact that a particular fact, which is being asserted, is affirmative or negative.

Illustration: C sues D for theft, and wants the Court to believe that D has admitted the theft to E. Here C should prove the admission. Wherein D wishes the Court to believe that, at the time of theft, he was elsewhere. So here he must prove it.

Section 104

This section states that when acceptability of any fact depends upon the acceptability and existence of another fact, the party who wants to prove it will purely depend upon the fact that makes the ensuing fact admissible.

Illustration: C wants to prove the dying declaration of D, and so here C must prove that D is dead.

Section 105

This section refers to the exceptions that are provided to the accused. The general principle enables the Court to presume innocence of the accused until proven otherwise and it is upon the prosecution to show the guilt of the accused. Once the guilt is established, the onus then by default shifts to the accused. Who can take the defense of general exceptions given in I.P.C. Pratap v Stare of U.P. in this case where the possibility was that the accused has caused death in self-defense was considered, to be sufficient even though he had not taken his defense in the committal proceedings. The Supreme Court said that the burden of proving that this case comes within any of the general exceptions given in the IPC could be immediately discharged by showing a preponderance of probability. Here the burden of proof is on the accused, who sets up the appeal of self-defense, and in the absence of proof, it is impossible for the court to accept the truth of the appeal of self-defense. In this case the standard of proof which is upon the accused whose whilst is claiming an exception under section 105 is comparably lower than that on the prosecuting party in the similar circumstances. So the accused may not have to bring forth evidences to prove his innocence beyond a reasonable doubt. Whereas an accused when claiming that his particular circumstances fall within an exception under provisions, then he alone has the onus of proving the same.

Section 106

When a certain fact is specially within the knowledge of any person, then the burden of proving that particular fact is upon that person. Under the given provision, any person who is said to be aware or familiar of a particular fact then the onus of proving such a fact is upon him. This section denotes that the possession of such knowledge can also shift the burden of proof upon the proprietor. For example the case of Eshwarai v. Karnataka where a man and a woman were found in the bedroom of a person who was killed due to boundless injuries, the burden to prove their presence was upon them. It was assumed that as they were present at the crime scene, they would have special knowledge regarding the circumstances under which the death of the person occurred.

Illustrations

a.       When a person performs any act with some intention other than that which the character and circumstances of the act suggest, then in this case the burden of proving that intention was clear is upon him.

b.      B is charged with fine for travelling on a railway without a ticket. Here the burden of proving that is upon him that he had the ticket.

Evidentiary Standards in Civil Cases

Preponderance of the Evidence:

Here the litigant must satisfy the burden of persuasion. This burden ensures which standard of proof the litigant must follow while presenting evidence to the judge or jury. A standard of proof determines the amount of evidence the litigant or defendant is responsible to provide for the jury to reach to a particular decision. In most civil cases, the burden of certainty, which applies, is called a “preponderance of the evidence.” This standard requires the jury to pass a judgment in favor of the litigant if he is able to show that the fact or event, which he is claiming for, was more likely than not to have occurred.

Clear and Convincing Evidence:

In some of the civil cases, the burden of proof is uplifted to a higher standard called “clear and convincing evidence.” This burden of proof requires the complainant to prove that a particular fact is more likely to be false. Some courts have also described this standard is useful for the complainant to prove that there is a high possibility of the particular fact being true. This standard sets a higher approach than the preponderance of the evidence standard, but it does not rise to the widely recognized standard that are in use in criminal cases, known as “beyond a reasonable doubt.”

Substantial Evidence:

In case of administrative law proceedings, the standard of proof mostly applies the substantial evidence standard. This standard requires the plaintiff or moving party to provide sufficient evidences that any reasonable mind could accept easily as adequate to support a particular conclusion.

Evidentiary Standards in Criminal Cases

Beyond a Reasonable Doubt:

The “beyond a reasonable doubt” standard is the highest standard of proof that can be forced upon any party at a trial, and it is usually the standard often used in criminal cases. This standard needs the prosecution to show only logical explanation that derive from the facts which proves that the defendant is responsible for the alleged crime committed, and any other logical explanation cannot be strictly inferred or deduced from the evidence. In the Supreme Court of The United States the case of Victor v. Nebraska, 511 U.S. 1 (1994), described this standard as such doubt would give rise to a grave uncertainty, which raised in your mind by reasons of the undesirable character of the evidence. Therefore, what is required is a moral certainty rather than an absolute mathematical certainty.

Probable Cause:

In criminal law context, a few additional standards are applied in specific circumstances. In some cases, another well-known standard is the probable cause standard. This standard concentrates on balancing some of the effective law enforcement practices against the fourth amendment, which guarantee against the unreasonable invasions of the citizens’ privacy. In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court mentioned the totality of the circumstances test that apply to determine whether a police officer had probable cause to conduct a search and seizure, which can be useful for magistrate or judges when issuing warrants.

Reasonable Belief and Reasonable Suspicion:

Other standards used to assess evidence in the criminal context includes reasonable belief and reasonable suspicion. According to which any police actions that are subject to these standards of proof should be based on grounds that are reasonable in light of the circumstances. In other words a reasonable suspicion occurs when a police officer observes any unusual conduct which leads him reasonably to conclude according to his experience that criminal activity may occur and that the persons with whom he is dealing may be occupied with arms can be and dangerous. For example the case of Terry v. Ohio, 392 U.S. 1 (1968) can be referred.

Credible Evidence:

One more common standard used in some criminal law proceedings is known as the credible evidence standard. Credible evidence is evidence that can be worthy of belief but is not necessarily and can even be worthy of the jury’s consideration. This standard is also defined as essential for the jury to conclude that the evidence is all reasonable, natural and probable in order for it to be credible. The Indian Evidence Act under Section 45 specifies the law relating to Opinion of Experts also known as Expert Opinion/Expert evidence. This statutory provision is adhered to when the Court has to form opinion regarding the following:

Ø  Foreign law

Ø  Science & Art

Ø  Identity of handwriting

Ø  Finger impressions

Ø  Electronic evidences

In such cases, the Court takes opinion of skilled persons i.e. experts in their particular specialized fields. Cases, which includes such evidence, include causes of insanity, death, effects of poison, value of articles, genuineness of works of art, genuineness of handwriting, meaning of trade terms and foreign law and proper navigation of vessels. A witness whoever is believed to be qualified to speak on these matters is called an expert. There have been cases such as:

•                     The disposition or temper of animals

•                     Colour, weight or scale of similar facts

•                     Age of a person

•                     If a man or women were intimate

•                     If a person was intoxicated or not

In the court of law, before accepting any opinion delivered by an expert, first needs to be ensured that the person is an authenticate expert as described under the law. If it reveals that the person is not an expert then his opinion gets discarded by the court. For ensuring whether the witness is an expert, he must be thoroughly examined and cross-examined.

Foreign law:

The law, which is not in force within India, is the foreign law. In England, this law can be proved by leading expert evidence. In India, it can be proved in the same way under the section 45 or even by producing official boos and reports on foreign law. It is therefore still in question.

Opinion for foreign law:

When there is a law of induced in any foreign country, which needs to be considered for giving judgement in any of the case, the court needs an expert who is well versed with that particular law. Otherwise, the court is free to take opinion from a law-book if required, which contains the following answer regarding any foreign law. On one condition that these books should be published or printed under the government authority of that particular country. Other reports of the ruling of the courts can also be considered as relevant which are given in such books of foreign law. There are cases where the court has simplified personal laws as Indian laws and thus are the laws of the land. Therefore, the court generally doesn’t require a person to interpret the law because the courts can do that on their own.

Science or Art:

This includes the entire subjects upon which the course of special study or experience is necessary in formation of the opinion. Hence these words science and art are broadly constructed and not being limited to only higher sciences and fine arts.

Opinion for Science or Art

The words ‘Science and Art’ are to be widely constructed where the term ‘science’ is not limited to higher sciences and the term ‘art’ is not limited to fine arts, but having its original senses of trade, handicrafts, profession and skills in the work. If any expertise comes under the category of ‘art’ or ‘science’.

Science and Art signify the activities, which include the fields that require special knowledge or expertise, form an opinion. Before considering that a person is an expert, it is needed to be checked thoroughly that the field or the matter of fact on which we are acquiring the opinion from the expert should not be something that could be easily understood by any nonprofessional or court without any special knowledge or skill. The scientific question that is involved is assumed to be not in accordance with the knowledge of the court. Thus in cases where science is involved, is highly specialized and even esoteric where the central role of an expert cannot be questioned. There can be different categories that could be treated under art and science.

Opinion of Medical Expert

The opinion of medical experts is required in many cases. Specially in criminal cases, where the medical examination of accused and victim is necessary and a must for further proceedings. When in a case, the court requires some opinion that involves medical technicalities they ask medical officers. Opinions of an expert medical officer can be used to determine and prove:

1.                  The Physical condition of the person,

2.                  Age of a person

3.                  Cause of death of a person

4.                  Nature and effect of the disease or injuries on body or mind

5.                  Manner or instrument by which such injuries were caused

6.                  Time at which the injury or wounds have been caused.

7.                  Whether the injury or wounds are fatal in nature

8.                  Cause, symptoms and peculiarities of the disease and whether it is likely to cause death

9.                  Probable future consequences of an injury etc.

In a rape case, the medical report of the accused and victim are meant to be of great importance. If the medical officer mentions that according to him   the act was not consensual due to the injuries on the body of the victim and the scratches of nail on the body of the accused, this opinion alone carries a lot of importance. However, the problem with these kind experts is that one party only who has evidences in their favor always calls them. This is the reason that the court is not ready to rely completely on the opinions and views of the expert though they consider the same while conveying their judgement. If the court finds that the expert’s opinion is in contradiction with the opinion of any eyewitness then, the normal witness’s opinion is given preference and importance over the expert’s opinion. This is because the other witness’s statement is based upon the actual facts of the cases whereas expert’s statement is just opinionative.

Opinion of Ballistic Expert

Ballistic experts are also known as firearms experts. These are the people who have specialized in the study of firearms and projectile. Their help and opinion is taken is cases where firearms, bullets and guns are involved. A ballistics expert can trace the weapon from which the bullet or cartridge is discharged. Forensic ballistics can also give opinion regarding the distance from which a gunshot was fired and also the time when the weapon was last used. It must be noted that the opinion of the ballistics expert is counted and taken into consideration only when he himself gives a full detailed report. The court denied relying upon such opinion where the expert gives opinion simply by looking at the picture of the wound.

Handwriting expert’s opinion (Section 47)

When the court has an question that who has written or signed a document, here the court will consider the opinion of a person who has expertise and is skilled with handwriting. That person will give an opinion that whether a particular handwriting is written or not written by that particular person. However, there have been several cases where the courts have been not been encouraged to decide cases of matching of signatures without evidence and purely on inspection. The court definitely needs to work with utmost care in determining the authenticity of the documents.

Opinion for fingerprint

Fingerprint impression expert’s opinion is given more value because generally the fingerprints of an individual remains the same from their birth till death, and no two persons are ever found to be consisting of same finger impressions

Footprint studies are also gaining wide importance nowadays but the courts are hesitating to accept that as a piece of evidence. A fingerprint expert, is often called to match two or more fingerprints, than the opinion of such an expert is relevant and admissible in the court.

Opinion for Electronic evidence (Section 45A):

When even a small piece of information is transmitted, received, transferred or stored in a computer system and the court needs any opinion or assistance for the same in any case; they refer an electronic evidence examiner. The examiner of electronic evidence is known as the expert in such cases, for this section, electronic evidence can include any information stored or transmitted any computer or in any computer resource or any other digital or electronic form for which the opinion of such electronic evidence examiner is required as per section 79A of the Information Technology Act, 2000.

Conclusion

Unlike an ordinary witness, expert witnesses have a different base, skill and separate standing as a witness in a court. It is interesting to know that an expert’s report cannot be questioned in the court of law. The report can only be questioned when the ability and knowledge of the expert to make any such report is in question. The experts are judged and looked upon with a different vision by the court since; they are just giving an opinion and are not completely aware of the facts of the case. Still, an expert’s opinion matters a lot as the court has less or no knowledge of that particular field of expertise as compared to the knowledge of the expert person, which will not be able to impart justice without seeing the other side of the coin.

Reference:

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