Expert Opinions under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) in several specific circumstances, particularly when the Court needs specialised knowledge to form an opinion on certain facts.
Opinions of third persons when relevant
Here’s when expert opinions are relevant:
Section 39 : Opinions of experts.
Opinions of experts. 39. (1) When the Court has to form an opinion upon a point of foreign law or of science or art, or any other field, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or any other field, or in questions as to identity of handwriting or finger impressions are relevant facts and such persons are called experts
Illustrations.
The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
- The Court considers the opinions of experts to be relevant when it needs to form an opinion on points of foreign law, science, art, or any other field. The inclusion of “any other field” in the BSA expands the scope of expert opinion beyond what was explicitly stated in the Indian Evidence Act, 1872 [39(1), 319].
- Opinions on the identity of handwriting or finger impressions are also relevant.
- Individuals with special skills in these areas are referred to as “experts”.
- For example, experts’ opinions are relevant regarding the symptoms caused by poison, the presence of unsoundness of mind affecting a person’s knowledge of an act’s nature, or whether two documents were written by the same person based on handwriting analysis.
Electronic and Digital Evidence (Section 39(2) BSA):
(2) When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000, is a relevant fact.
Explanation.—For the purposes of this sub-section, an Examiner of Electronic Evidence shall be an expert.
- When the Court needs to form an opinion on any matter related to information transmitted or stored in a computer resource or any other electronic or digital form, the opinion of an Examiner of Electronic Evidence (as defined in Section 79A of the Information Technology Act, 2000) is a relevant fact.
- For the purposes of this subsection, an Examiner of Electronic Evidence is considered an expert.
Section 41: Opinion as to handwriting and signature, when relevant.
Opinion as to handwriting and signature, when relevant.
41. (1) When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.
Explanation.—A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.
Illustration.
The question is, whether a given letter is in the handwriting of A, a merchant in Itanagar. B is a merchant in Bengaluru, who has written letters addressed to A and received letters purporting to be written by him. C, is B’s clerk whose duty it was to examine and file B’s correspondence. D is B’s broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising him thereon. The opinions of B, C and D on the question whether the letter is in the handwriting of A are relevant, though neither B, C nor D ever saw A write.
- The opinion of any person acquainted with the handwriting or signature of another person is relevant when the Court needs to determine who wrote or signed a document.
- A person is deemed “acquainted” if they have observed the person writing, or have received documents purporting to be written by that person in response to their own, or have habitually received such documents in the ordinary course of business.
Opinion as to Electronic Signature (Section 41(2) BSA):
(2) When the Court has to form an opinion as to the electronic signature of any person, the opinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact.
- When the Court needs to form an opinion on the electronic signature of any person, the opinion of the Certifying Authority that issued the Electronic Signature Certificate is a relevant fact.
Section 40: Facts bearing upon opinions of experts
40. Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
Illustrations.
(a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.
(b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant.
- Facts that either support or contradict the opinions of experts are relevant when those opinions themselves are relevant. For instance, if experts claim certain symptoms are indicative of a specific poison, the fact that other poisoned individuals exhibited those symptoms would be relevant.
Section 45: Grounds of opinion, when relevant.
45. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.
Illustration.
An expert may give an account of experiments performed by him for the purpose of forming his opinion.
- Whenever a living person’s opinion is relevant (including an expert’s), the grounds upon which that opinion is based are also relevant. An expert, for example, may detail experiments conducted to form their opinion.
Section 55 : Oral evidence to be direct.
55. Oral evidence shall, in all cases whatever, be direct; if it refers to,—
(i) a fact which could be seen, it must be the evidence of a witness who says he saw it; (ii) a fact which could be heard, it must be the evidence of a witness who says he heard it;
(iii) a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; (iv) an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:
Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.
- As an exception to the rule that oral evidence must be direct, the opinions of experts, along with their grounds, may be proved by producing treatises commonly offered for sale. This is permissible if the author is deceased, cannot be found, is incapable of giving evidence, or cannot be called as a witness without unreasonable delay or expense.
Practical Illustrations of Expert Opinion Relevance
| Scenario | Expert Needed |
| Cause of death | Forensic pathologist |
| Mental condition of an accused | Psychiatrist |
| Matching fingerprints | Fingerprint expert |
| Tampering with digital records | Cyber forensic analyst |
| Disputed signature | Handwriting expert |
| Determination of poison | Toxicologist |
Landmark Case Laws on Expert Opinion Relevance
1. State of Himachal Pradesh vs. Jai Lal (1999)
The Supreme Court held that expert opinion is advisory and not binding on the Court. The Court must evaluate it critically.
2. Murari Lal v. State of Madhya Pradesh (1980)
The Supreme Court ruled that expert opinion cannot replace direct evidence and should only be used as corroborative.
3. Sundarlal v. State of Madhya Pradesh (2013)
The Court observed that medical expert opinion should be considered carefully but not blindly followed.
4. Ravindra Kumar Dutta vs. Union of India (2023)
Involving electronic evidence, the Delhi High Court held that certification from the Examiner of Electronic Evidence under Section 79A IT Act holds significant evidentiary value.
5. Recent Case: Supreme Court (May 2024) – DNA Test in Paternity Dispute
In a child custody and paternity dispute, the Supreme Court relied heavily on DNA expert opinion, underlining that such expert evidence plays a decisive role in determining facts in issue.
Read More: What are the Presumptions under the Bharatiya Sakshya Adhiniyam, 2023 (BSA)?
Who is a Competent Witness under the Bharatiya Sakshya Adhiniyam, 2023?
Significant Points to Consider as per Court Interpretation:
- Expert opinion is not conclusive proof: Courts treat it as advisory evidence.
- Cross-examination of experts is important to test the reliability of their opinion.
- The court must corroborate expert opinion with other evidence.
- Electronic and digital expert opinions now carry more legal weight post-BSA 2023.
FAQs: When are Expert Opinions Relevant?
1. What is meant by expert opinion in BSA?
Expert opinion under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) refers to the opinion given by a person who possesses special knowledge, skill, experience, or training in a particular field, which is beyond the ordinary knowledge of the Court. This expert opinion becomes relevant evidence when the Court needs to form an opinion on specific matters like science, art, handwriting, fingerprints, foreign law, or electronic and digital evidence as mentioned in Section 39 of the BSA.
2. What is the section of expert witness in BSA?
The main provision dealing with expert witnesses in the BSA is Section 39 of the Bharatiya Sakshya Adhiniyam, 2023. It covers general expert opinion (Section 39(1)) and opinions related to electronic and digital evidence (Section 39(2)). Additionally, Sections 40, 41, 45, and Section 55 Proviso also relate to the admissibility and use of expert opinions.
3. What is an example of an expert opinion?
An example of expert opinion in court could be:
- A forensic doctor’s opinion on the cause of death in a murder case.
- A cyber forensic expert’s opinion on whether an email has been tampered with.
- A handwriting expert’s analysis determining if two signatures match.
- An Examiner of Electronic Evidence’s opinion on whether digital data has been manipulated.
These are classic examples of expert opinions admissible under Section 39 BSA.
4. Is expert opinion admissible in court?
Yes. Expert opinion is admissible in court under the Bharatiya Sakshya Adhiniyam, 2023, provided it meets the conditions specified in Section 39 and related sections. However, the Court does not treat expert opinion as conclusive proof. It acts as advisory evidence and must be evaluated carefully along with other evidence.
5. What is the judgment of expert opinion?
The judgment of expert opinion refers to how Indian courts have interpreted the admissibility and weight of expert evidence. Courts have consistently held that expert opinions are not binding and must be corroborated with other evidence. Key judgments include:
- State of Himachal Pradesh vs. Jai Lal (1999): Expert opinion is only advisory.
- Murari Lal vs. State of Madhya Pradesh (1980): Expert opinion should be evaluated critically.
- Supreme Court DNA Test Case (2024): Expert scientific evidence like DNA reports can play a decisive role in factual determination.
6. What is the difference between expert opinion and direct witness?
| Expert Opinion | Direct Witness |
| Given by a person with specialized knowledge (expert). | Given by a person who directly witnessed the incident. |
| Based on training, analysis, experiments, or observations in their field. | Based on personal observation, hearing, or perception of the fact in issue. |
| Admissible under Sections 39-45 BSA. | Covered under general oral evidence rules (Section 55 BSA). |
| Example: Forensic scientist, Cyber expert. | Example: Eyewitness to an accident. |
7. Who can give an expert opinion?
Any person who has acquired specialized knowledge, skill, training, education, or experience in a particular field can give an expert opinion. Under Section 39 BSA, the Court can rely on experts in:
- Science
- Art
- Foreign Law
- Handwriting
- Finger Impressions
- Digital and Electronic Evidence
For digital matters, only an Examiner of Electronic Evidence (as per Section 79A IT Act) is considered an expert.
8. Is expert opinion good evidence?
Expert opinion is considered relevant and valuable evidence, but it is not conclusive proof. As per Supreme Court judgments, expert opinion must be:
- Reliable
- Well-supported by reasons
- Subject to cross-examination
- Corroborated with other facts
Courts treat expert opinion as assisting material, not as the sole basis for judgment.
9. What is the evidentiary value of expert opinion?
The evidentiary value of expert opinion under BSA is advisory and corroborative, not absolute. Courts can:
- Accept it with caution.
- Compare it with other evidence on record.
- Reject it if found untrustworthy or based on insufficient reasoning.
Expert opinion gains higher evidentiary weight when it is:
- Based on scientific analysis
- Corroborated by other independent evidence
- Free from bias
10. What is Section 39 of the BSA?
Section 39 of the Bharatiya Sakshya Adhiniyam, 2023, deals with the Relevancy of Expert Opinions. It is divided into two parts:
- Section 39(1): Covers expert opinion on foreign law, science, art, handwriting, fingerprints, and other specialized fields.
- Section 39(2): Covers expert opinions on electronic and digital evidence, relying on Examiners of Electronic Evidence as defined under the IT Act, 2000.
This section is the foundation for expert evidence in Indian courts post-BSA 2023.
11. What is the burden of proof in BSA?
The concept of burden of proof under the BSA is governed by Sections 101 to 111 of the Bharatiya Sakshya Adhiniyam, 2023 (formerly Sections 101-114A of the Indian Evidence Act, 1872).
In simple words:
- The party who asserts a fact bears the burden to prove it.
- In cases where expert opinion is used, the party relying on expert evidence must prove both the qualifications of the expert and the reliability of their opinion.
Example:
If the defense submits a medical expert report, the burden lies on the defense to prove its credibility.
Q12: What is the legal provision for expert opinion relevance in India?
Expert opinions are governed by Sections 39 to 45 and 55 Proviso of the Bharatiya Sakshya Adhiniyam, 2023.
Q13: Is expert opinion binding on the Court?
No. As per Supreme Court rulings (Jai Lal case, 1999), expert opinion is only advisory and not binding.
Q14: When are electronic expert opinions relevant?
When the matter involves electronic or digital evidence, opinions from an Examiner of Electronic Evidence (Section 39(2) BSA) become relevant.
Q15: Can expert opinion alone decide a case?
Generally, no. Courts require corroborative evidence along with expert opinions, except in highly technical matters like DNA testing.
Q16: Who can be an expert?
Any person with specialized knowledge, skill, experience, training, or education in the concerned field. Examples: Forensic experts, Cyber experts, Handwriting experts.
Q17: Are books written by experts admissible in court?
Yes, under Section 55 Proviso BSA, especially when the author is unavailable for testimony.
Q18: Is expert opinion mandatory in all cases?
No. Courts seek expert opinion only when specialized knowledge is necessary to arrive at a conclusion on a fact in issue.
Conclusion
The Bharatiya Sakshya Adhiniyam, 2023, has broadened the scope and clarified the evidentiary value of expert opinions in Indian courts. From forensic medicine to digital forensics, expert opinions have become indispensable in ensuring the delivery of justice, provided they are carefully scrutinized and corroborated.
For law students and litigants alike, understanding “When are expert opinions relevant?” is crucial in preparing and presenting effective cases before the Court.