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In the middle of 19th century natural science began to develop by leaps and
bounds. The mystic theories theretofore advanced to explain the scheme of things
began to lose ground as the clear, cold logic of scientific experiment gradually shed
a new light on the mysteries of universe. The change in point of view from the
mystic to the scientific soon became apparent not only in criminal investigation but
in the different facets of the legal system. Now there emerged two facets of a single
case. The facet stated and the facet proved from scientific view point. The era of
forensic science had arrived.
Before venturing in the fascinating and intriguing world of Medical Science and DNA
testing let us try to seek the link between evidence and forensic science.

Definition of Evidence:
Strictly in legal context, evidence can be defined as various things presented in
court for the purpose of proving or disproving a question under inquiry. It includes
testimony, documents, photographs, maps and video tapes. These are termed as
evidence of the case.
Trial evidence consists of:
1. The sworn testimony of witnesses, on both direct and cross-examination,
regardless of who called the witness.
2. The exhibits which have been received into evidence.
3. Any facts to which all the lawyers have agreed or stipulated.
Arguments and statements by lawyers are not evidence. The lawyers are not
witnesses. What they say in their opening statements, closing arguments, and at
other times is intended to help you interpret the evidence, but it is not evidence.
Cultivating this definition further brings us to the door step of the Laws of
Evidence" ,which significantly is not a branch but altogether a different segment of
legal system. So we can conclude that the term 'Laws of Evidence' as a body of law.
The subject-matter of that body of law, however, is not properly defined. It is a
critical task to define as it determines the rules of law to be reviewed and critically
examined and the scope of any proposals.

Attempts at Definition:

The Law of Evidence can be defined as


Those rules which directly or indirectly:
1. Control what evidence may be received;
2. Control the manner in which evidence is presented and received;
3. Control how evidence is to be handled and considered once it is received and
what conclusions, if any, are to be drawn from particular classes of evidence;
4. Specify the degree of satisfaction that the tribunal of fact must attain in
determining whether a fact in issue is established and the consequences if such a
level of satisfaction is not reached.
This is the approach of several writers. It has been found, however, that this
formulation is unsatisfactory as it includes both substantive and procedural rules.
While the definition of the 'laws of evidence' has been considered by the courts,
they have not attempted an exhaustive definition.
After attempts to define law of evidence lets define forensic evidence and the way it
can be related with law of evidence.

Definition of forensic science:


Forensic science is the use of science in the service of the law. Sciences used in
forensics include any discipline that can aid in the collection, preservation and
analysis of evidence such as chemistry (for the identification of explosives),
engineering (for examination of structural design) or biology (for DNA identification
or matching).A forensic scientist is expert in any technical field and can provide an
analysis of the evidence, witness testimony on examination results, technical
support and even training in his or her specialized area.
Analysis of forensic evidence is used in the investigation and prosecution of civil and
criminal proceedings. Often, it can help to establish the guilt or innocence of
possible suspects. Forensic evidence is also used to link crimes that are thought to
be related to one another. For example, DNA evidence can link one offender to
several different crimes or crime scenes (or exonerate the accuse d).Linking crimes
help law enforcement authorities to narrow the range of possible suspects and to
establish patterns of for crimes, which are useful in identifying and prosecuting
suspects. Forensic scientists also work on developing new techniques and
procedures for the collection and analysis of evidence. In this manner, new
technology can be used and refined not only to keep forensic scientist on the
cutting edge of science, but to maintain the highest standards of quality and
accuracy.
Forensic analysis is usually carried out by experts working individually or in teams.
Advanced techniques often require laboratories where the investigative conditions

can be carefully controlled and monitored. Private laboratories and government


agencies support small and large forensic labs. Analysis of forensic evidence is used
in the investigation and prosecution of civil and criminal proceedings. Often, it can
help to establish the guilt or innocence of possible suspects. Forensic evidence is
also used to link crimes that are thought to be related to one another. For example,
DNA evidence can link one offender to several different crimes or crime scenes (or
exonerate the accused). Linking crimes helps law enforcement authorities to narrow
the range of possible suspects and to establish patterns of for crimes, which are
useful in identifying and prosecuting suspects.
Forensic scientists also work on developing new techniques and procedures for the
collection and analysis of evidence. In this manner, new technology can be used
and refined not only to keep forensic scientist on the cutting edge of science, but to
maintain the highest standards of quality and accuracy. The in depth analysis of
forensic evidence brings us to the main course of our topic. The different types of
methods that can be used in forensic science and their acceptability in the legal
system.
The Indian Scenario:
Let us first cultivate the legal aspect of forensic and medical evidence in the India.
As per Section 45 of Indian evidence Act 1872- When the Court has to form and
opinion upon a point of foreign law or of science or art, 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 in questions as to identity of
handwriting or finger impressions are relevant facts. Such persons are called
experts.
Further as per Section 46 of Indian evidence Act 1872- it is stated that facts, not
otherwise relevant, are relevant if they support or are inconsistent with the opinions
of experts, when such opinions are relevant.
Thus the ingredients of section 45 and section 46 are highlights that:
1) The court when necessary will place its faith on skills of persons who have
technical knowledge of the facts concerned.
2) The court will rely the bona fide statement of proof given by the expert concluded
on the basis of scientific techniques.
3) The evidence considered irrelevant would be given relevance in eyes of law if
they are consistent with the opinion of experts.
Thus we see that expert evidence helps the courts to draw logical conclusions from
the facts presented by experts, which are based on their opinions derived by their
specialized skills acquired by study and experience. Hence, experts are routinely
involved in the administration of justice particularly in criminal courts.

Highlighting the situation in the most commonly sought after experts:


The Medical Experts:
In India, we have adversarial system of justice administration and ordinarily medical
evidence is admitted only when the expert gives an oral evidence under oath in the
courts of law expect under special circumstances like:
a) When evidence has already been admitted in a lower court;
b) Expert opinions expressed in a treatise;
c) Evidence given in a previous judicial proceeding;
d) Expert can not be called as witness;
e) Hospital records like admission/discharge register, birth/death certificates etc.
In, India, it is a common perception that lot of time and effort is required to record
evidence and therefore by enlarge members of the medical profession does not like
to involve in medico legal cases. Some of the possible reasons put forward for this
perception are:
a) Undue time consumption;
b) Repeated adjournments;
c) Lack of work culture in the courts
Hardly, any scientific data is available to support or refute this perception in relation
to medical evidence. Therefore, it was planned to undertake a pilot study to analyze
the quantum of time and effort put in by medical experts to get the evidence
recorded in criminal courts and other issues related to it.
Conclusion
There is a unanimity that medical and forensic evidence plays a crucial role in
helping the courts of law to arrive at logical conclusions. Therefore, the expert
medical professionals should be encouraged to undertake medico legal work and
simultaneously the atmosphere in courts should be congenial to the medical
witness. This attains utmost importance looking at the outcome of the case, since if
good experts avoid court attendance, less objective professional will fill the gap,
ultimately affecting the justice. The need to involve more and more professionals in
expert testimony has been felt by different organizations. The American College of
physician's guidelines for the physician expert witness emphasizes on broad
physician participation in providing this much-needed assistance to the legal
system. The college believes that more doctors should serve as experts as a
component of their professional activities in order to meet the need for medical
testimony.
This objective of greater expert participation can only be achieved by addressing to
the apprehensions that ponder the mind of medical professionals. In the light of new
developments in the forensic science, the home ministry, Govt. of India constituted
a committee under the chairmanship of Dr. Justice V.S Malimath to suggest reforms

in the criminal justice system. This committee suggested comprehensive use of


forensic science in crime investigation. According to the committee DNA experts
should be included in the list of experts given in section 293(4) of Cr.P.C, 1973.

https://www.researchgate.net/publication/236624445_Med
ical_Witness_and_Indian_Courts
in our practice it has been seen that the doctors are generally afraid to
testify in the courts. This is mainly because of two reasons: one that they are not
familiar of the legal procedures and two because they are afraid to be grilled in
the court by the lawyers. As a result many a times the attitude of the
doctor while testifying in the court is to finish the testimony and go back,
irrespective of the outcome. The beneficiaries in such cases are the culprits who
have to be acquitted because of lack of evidence. As a result the knowledge, skill,
education, experience and training of the doctors are necessary to make
them more competent while testifying in the court.
Keywords:Medical Witness, Court,Legal System
Introduction
Medical evidence is routinely required for administration of justice all over
the world. As an expert witness, the doctor can be thrust, often unwillingly,
into a foreign environment where the flow of information is tightly
controlled by complex rules of evidence which have been shaped by various
laws with which the expert witness cannot expect to be familiar. It is a common
perception among Indian medical professionals that lot of time and effort is
required for expert testimony in the court of law in our country. Thereby,
large numbers of professionals avoid sharing medicolegal responsibilities.
The legal system
The two dominant legal systems in the world are often referred to as the
adversarial and inquisitorial systems. The objective is just resolution of
disputes and maintenance of social order. In the inquisitorial system the
court and the judiciary plays a proactive part and is involved in the
examination and questioning of witnesses. The adversarial system being
followed in India is based on the philosophy that the true facts of a
given situation, and hence justice, will emerge if the parties to a court
action act as adversaries rather than cooperative participants. Each side

vigorously advances its own version of the facts, an impartial third person or
group of persons (judges) will sift out the truth. Since the jury were thought to be
influenced by media and public support for the parties and is also open to
being misled, the Indian government abolished jury trials after the case
K.M.Nanavati vs. State of Maharashtra in 1959.
The presiding officer or the judge sits in his chair at a higher platform;
besides him on his sides at a lower level were the reader and the clerk. The
court staff includes head clerk (mukhya sahik), administrative clerk
(nazir), readers (peshkars), stenographers (stenos), record keepers (almads)
and orderlies (peons). Clients (muakkils) are present with their lawyer (vakil)
accompanied by his scribe (munshi) in the courts (kacheri). [1]
The Supreme Court of India is the highest judicial tribunal of the country.
It has power of supervision over all courts and the law declared by it, is binding on
all courts. [2] The High Courts are the highest judicial tribunal for the states.
These are the courts of appeal. Sessions Courts are the highest judicial
tribunal of the districts. These can pass any sentence. The lower courts are
the Magistrate Courts. There are also special courts like Juvenile Courts and
Fast Track Courts.

Presentation of evidence
After receiving summons or subpoena [3] the expert witness must appear before
the court at the appointed time with the relevant documents. The evidence is
probed for areas of uncertainty, inconsistency or any factors which may make
the evidence appear unreliable. Evidence is presented in a systematic order.
1.Oath (s. 51 Indian Penal Code)
2.Examination-in-chief (direct examination, no leading questions allowed, s.
137 Indian Evidence Act)
3.Cross-examination (leading questions permitted, s. 141-146 Indian Evidence Act)
4.Re-examination (Re-direct examination, s. 138 Indian Evidence Act)5.Court
questions (questions by judge, s. 165 Indian Evidence Act, s. 311
Criminal Procedure Code)The recorded deposition of witness is handed over to
him, which he carefully goes through, and signs at the bottom of each page,
and on the last page immediately below the last paragraph; and initials
any corrections (s. 278 Criminal Procedure Code). The witness shall not leave the
court without the permission of the judge.
Expert Witness

An expert witness is defined as a person especially skilled in foreign law,


science or art, etc. who helps the court in forming opinion on that point.
(Indian Evidence Act 1872 section 45). An expert witness, by virtue of
education, profession,
publication
or
experience,
is believed to have
special knowledge of his subject beyond that of the average person,
sufficient that others may officially and legally rely upon his opinion. In general,
witnesses may only give evidence of fact and not an opinion. An expert
however, is permitted to offer his opinion as evidence.Typically, experts are
relied on by both sides to a dispute for opinions.
The objective of the expert witness is to support the proper
administration
of
justice
and
the
early resolution of dispute through
fair and unbiased expert evidence. Government Scientific Experts as per Code
of Criminal Procedure 1973 Section 293 (4) area)Chemical Examiner or Assistant
Chemical Examinerb)Chief Controller of Explosivesc)Director of Finger Print Bureau
d)Director Haffkeine Institute Bombaye)Director, Deputy Director, Assistant
Director of central or state FSLf)Serologist to Govt.g)any other Government
scientific expert specified by notification, by the Central Government
Expert medical evidence
The term evidence has different meanings in law and medicine. In law,
evidence is material or testimony which is admissible to the court. In medicine, it
refers to data obtained through scientific investigation. The quality of such
evidence is defined by the scientific methodology employed in the
investigation. [4,5,6] In law, complex rules restrict the type of evidence that may
be presented to the court. [7] These rules aim to exclude evidence which may
be unreliable, irrelevant or misleading and include evidence which has the
maximum probability of being the truth. Medical evidence helps the courts to
draw logical conclusions from the facts presented. The evidence presented by
medical experts is based on their opinions derived by their specialized
skills acquired by study and experience. [8]
Medical experts are routinely involved in the administration of justice
particularly
in
criminal
courts.
In
India, ordinarily medical evidence in
admitted only when the expert gives oral evidence under oath in the courts of
law expect under special circumstances like:
i.When evidence has already been admitted in a lower court;
ii.Expert opinions expressed in a treatise;
iii.Evidence

given in a previous judicial proceeding;

iv.Expert cannot be called as witness; and


v.Hospital records like admission/discharge register, birth/death certificates etc.

Judges are assumed to possess knowledge and experience


of
general
fields
of
human endeavour and experience. Experts may not provide
evidence regarding matters of common knowledge. There are several areas of
medicine which intersect with day to day life and therefore invoke the
common knowledge rule. An expert need not be asked to number the fingers
on the hand.The expert witness may only testify within his or her area of expertise.
It is left to the judiciary to rule on whether an area of scientific or medical
knowledge represents an area of expertise. [9]
Critics point out that judges with limited medical knowledge may not
be the most appropriate gate keepers of scientific evidence in relation to the
court. [10] The Frye test [11] rules that in order to be classified as an area of
expertise, the area must be sufficiently established to have gained
general acceptance in the particular field to which it belongs. [12] The
Daubert ruling has further specified the criteria to determine the
admissibility of scientific evidence. [13]The expert must be able to clearly
justify his opinion on the basis of facts using his expertise, describing how he was
able to reach at the opinion using any documents, books, photos etc.
Limitations and problems of evidence from the expert witness
There are many instances where court decisions contrary to popular expert opinion
on issues like bone cut, rape, burns, age, consent, dying declaration,
compos mentis, etc. have been delivered.The expert witness is often expected
to provide clear yes or no unambiguous answers to questions where there is
profound uncertainty within the field of inquiry. The medical witness may find
the process an intensely frustrating, confusing and unrewarding experience.This
approach to problem solving is alien to most medical practitioners. Expert
witnesses may only be permitted to present part of their evidence and this
may result in an incomplete or distorted version of the truth as they see it.
This system is not based on a concept of absolute truth in a scientific
sense but rather on satisfaction beyond reasonable doubt that the legal
elements of a crime have been established.Opposing medical expert
witnesses may have minor points of disagreement, which may be construed as
major differences of opinion when this is not the case.
Cross-examination by its nature usually involves direct challenge of the witness and
may at times be quite an aggressive process with direct personal attack
not uncommon. This sort of combative approach to problem solving is
obviously foreign to most doctors, some of whom would be rarely
challenged, let alone attacked, in the course of their professional lives. An
expert witness may be confronted with seemingly simple terms which are
defined by various laws of which the majority of expert witnesses will be
unaware. The rules of evidence limit what the expert witness may say. [14]

Expert witnesses are often chosen and retained on the basis of what they will say
and how they will say it rather than on any scientific or professional
merit. Partisan selection of expert witnesses maximizes potential for bias
and inaccurate expert testimony. There is a natural bias to do something
serviceable for those who employ you and adequately remunerate you; with
the consequence of being paid agents. [15
] The pressure of the adversary system often forces the experts to the limits of
his expertise. Often the litigants case becomes the experts cause. Experts may
feel like they themselves are on trial.Especially for medical expert witnesses
there is always a difference between the expertise of undergraduates and
the postgraduates in a specific subject; and the courts should be
sensitive to these issues, and the opinion should be given due weight-age and
respect.In India, it is a common perception that lot of time and effort is
required to record evidence and therefore by and large members of
themedical profession do not like to be involved in medicolegal cases. [16]
Some of the possible reasons put forward for this perception are undue
time consumption; repeated adjournments; and lack of work culture. Some of
the reasons for delays in evidence are non-availability of presiding officer
in the court; issue of summon by mistake; work suspended by lawyers; nonavailability of some documents; adjournment of the case before arrival of
medical witness, etc. It has been observed that overall more time istaken in
waiting in courts and receiving payment than in actual recording of evidence.
The mean lag period between registration of first information report and time
to appear before court of law to give evidence by a medical witness has
been found to be more than two years. [17]
Initiatives required on resolving the issues
There is ongoing judicial anxiety about the partisanship of forensic
witnesses.
1.Several medical organizations and courts worldwide have issued professional
guidelines for medical expert witnesses. [18]
2.Expert evidence should be subjected to peer review.
3.Medical evidence should be supported by substantial documentary evidence
including photos, videos and radiographs.
4.Even in cases of re-examination and referred opinion cases, in case
of any difference of opinion from the initial report, a definite opinion with
a supporting basis should be provided. Further the courts may believe and
rely on that opinion which is tallying with the eyewitness account and
discard the opinion of other expert on this ground alone.

5.Expert opinion should be considered in the same light as clinical medicine and
as such subject to same rules of negligence. [19] Statutes need to be
amended so that breaches of the experts duty of objectivity would constitute
professional misconduct.
6.Expert witnesses should be required to read and sign a witness code of
conduct [20] outlining general principles with regard
to
impartiality
and
minimum requirements for medicolegal reports. [21]
7.There is a need for the accreditation of expert
witnesses
them accountable for their conduct during court appearance.

and

making

8.An expert's report and the further evidence must give


a.details of
accreditation;

the

expert's

qualifications, relevant experience and

b.details of literature or other information which the expert has relied on;
c.statement of all facts upon which those opinions are based;
d.statement that the facts stated in the report
own knowledge;

are

within

the

expert's

e.name and qualifications of the person who carried out any examination or
tests used;
f.summary of the range of opinion, and reasons for the opinion;
g.reasons if no definite opinion has been reached; h.summary of the
conclusions;
i.statement that the expert understands and complies to his duty to the court;
and
j.declaration of truth.
9.The medical expert witness must understand that cross-examination is a
method for testing the quality of their evidence and aggressive challenge should
be expected. If the witness becomes angry or argumentative it can
only decrease the quality of the evidence in the eyes of the judges.
10.Prior education and training of the expert witnesses assists in
understanding the whys, hows and the procedures of the court.
11.With the emergence of private sector the focus of the laws on government
expertsshould be shifted to accommodate and accept the others.

12.The presence of trainees in the court should be acceptable to the


judiciary.
13.An adequate and just compensation of the expert monetarily will be highly
instrumental in reducing some natural bias due to this issue.
14.The experts are the guests of the court and should be treated with due respect.
Conclusion
Medical expert opinion is commonly required by the courts. A medical witness
called in as an expert to assist the court is not a witness of fact and the evidence
given by the doctor is really of an advisory character given on the basis of the
signs and symptoms found on examination. The expert witness is expected to
put before the court all materials inclusive of the data which induced him to
come to the conclusion and enlighten the court on the technical aspects of
the case by explaining the terms of science so that the court although not
expert may form its own judgment on those materials after giving due regard to
the experts opinion because once experts opinion is accepted, it is not the opinion
of the doctor but of the court.
Doctors will continue to find themselves in this often alien and unfamiliar
arena. Members of the medical profession, wary of interaction with the legal
system, may think that the risk to reputation is too great and may be reluctant
to help. Those willing to help may also be unnecessarily circumspect
in their evidence. The current practice of soliciting expert medical testimony
within
the
adversarial
system appears flawed and contains inherent
pressures conspiring to maximize bias. The conditions for the expert medical
witness in courts is satisfactory which is quite in contrast to the apprehensions
prevalent in the minds of medical professionals.
However, this important aspect of the justice administration can be further
improved by the following measures:
a.Discouraging

routine

summoning

of doctors; [22]

b.Calling expert witness at pre-scheduled time;


c.Recording experts testimony by alternative judicial officer in case of nonavailability of the presiding officer the court that summoned him.
d.Amending provision of criminal procedures to have admissibility of the medical
recordse.Recording of experts testimony through video-conferencing. [23]
The medical expert witness should be aware that what they may say in
court is tightly controlled by complex rules of evidence. An understanding of
the systems fundamental flaws may enable the expert witness to

recognize when evidence is distorted and appeal to the judiciary


accordingly. [24] There is a unanimity that medical evidence plays a crucial
role in helping the courts of law to arrive at logical conclusions.
Therefore, the expert medical professionals should be encouraged to undertake
medicolegal work and simultaneously the atmosphere in courts should be congenial
to the medical witness. This attains utmost importance looking at the outcome
ofthe case, since if good experts avoid court attendance, less objective
professional will fill the gap, ultimately affecting the justice. [25] Thus, there
is a need to address the apprehensions that ponder the mind of medical
professionals.

References1.Morrison C. Munshis and Their Masters: The Organization of an


Occupational Relationship in the Indian Legal System. The Journal of Asian
Studies, 1972;31(2):309-328.2.Constitution of India. Article 134.3.Criminal
Procedure Code of India 1973. Sections 61 69.4.Hitchcock T. Evidence,
expertise and the emergency
physician:
doctors
should anticipate legal
reform in their expert evidence. Emerg. Med. 2001;13:1045.Samuels G.
Medical truth and legal proof. Med. J. Aust. 1998;168:846.Weintraub MI. Expert
Witness Testimony: An Update. Neurol. Clin. 1999;17:3637.Palmer A. Principles of
Evidence. Avalon Sydney: Cavendish Publishing, 1998
JPAFMAT 2007; 7(1). ISSN 0972-5687268.Cri L J 2002 118-1219.Miller DL. Courtroom
science and standards of proof. Lancet 1987;128310.Weintraub MI. Expert
witness under scrutiny. Lancet 1997;349:117611.Daubert v. Merrell. (1993) Dow
Pharmaceuticals 113 Sct 2786 USA12.Frye v. United States. (1923) 293 F 1013. at
1014 USA13.Phillips JH, Bowen JK. Forensic Science & the Expert Witness.
Sydney: Law Book Company, 198914.Freckelton I. The Trial of the Expert. A
Study of Expert Evidence and Forensic Experts. Melbourne: Oxford
University press, 198715.Brent RB. The irresponsible expert witness: a failure of
biomedical graduate education and professional accountability. Pediatrics
1982;70:75416.Verma
SK.
Legal
Medicine
in
Post Independent India.
Anil Aggrawal's Internet Journal of Forensic Medicine & Toxicology, Jan
2000;1(1): http://www.geradts.com/anil/ij/vol_001_no_001/paper002.html17.Verma
SK. Medical Evidence and Criminal Courts in Delhi, India. Indian Internet
Journal Of Forensic Medicine & Toxicology 2004;2(2):218.American Academy of
Pediatrics. Guidelines for expert witness testimony. Pediatrics
1989;83:31219.Brahams
D.
Expert
witnesses
under scrutiny. Lancet
1997;349:89620.Expert Witness Code of Conduct. Part 28, Rule 9C and Part
28A, Rule 2 NSW. Attorney Generals Department lawlink. Available from:
http://www.agd.nsw.gov.au/dc.nsf/pages/witcode#top/.21.Boyarsky JD. Practical
measures to reduce medical expert witness bias. J Forensic Sci
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204523.Sen K. Virtual reality becomes virtual legality. The Indian Express.


June 17, 200324.Ryan M. The adversarial court system and the expert medical
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witnesses. J Emerg Med 1990; 8(5): 659-63

http://admis.hp.nic.in/himachal/home/Forensics/ActsandRu
les.htm
Mode of making expert opinion evidence.Under this section, an expert has to state
his opinion in Court and must be examined and cross-examined like any other witness.
While giving evidence, the expert may refer to any professional treatise or any
memorandum which he may have prepared at a time when the facts on which his opinion is
based were fresh in his memory,3 though the memorandum itself is not evidence and no
facts can be taken from it.4 If the expert whose opinion is intended to be proved is dead or
cannot be produced without an unreasonable amount of delay or expense, his opinion may
be proved by the production of any treatise commonly offered for sale.5The Court itself may,
on all matters of science or art, resort for its aid to appropriate books or documents of
reference, and well-known scientific works may be read during trial as evidence of
experts.6 An expert may be examined on commission under Chap. XL of the Criminal
Procedure Code, or Order
XXVI of the Civil Procedure Code ; and under 0. XXXIX, r. 7 of the latter Code, the Court
may authorize an expert to take samples or to make any observation or experiments for the
detention, preservation or inspection of any property which is the subject-matter of the suit.
The Court may, for its own guidance and information, order independent inquiries and
reports to be made, or experiments to be tried by experts of its own selection. 7 The
deposition of a medical expert taken and attested by a Magistrate in the presence of the
accused or taken on commission, and the report of a Chemical Examiner may be treated as
evidence without calling the medical expert or the Chemical Examiner as a witness.8 Apart
front these special statutory provisions, however, a report, certificate or letter of an expert
cannot be considered as evidence, if its author
1.
Section 49.
2.
Bachraj Factories, Ltd. v. Bambay Telephone Co. Ltd., 1930 S 245.
3.
Section 159.
4.
Roghuni Singh v. E., 9.C 455.
5.
Section 60 ; as to the mode of using a text book, see Grand Venkata Ratnam v.
Corporation
of Calcutta 46 IC 593 : 19 Cr LI 753.
6.
Section 57 ; Hurry Churn Chuckerbutty v. E., 10 C 140. In the matter of the
Steamship
Drachenfels, 27 C 860 the Court referred to the Imperial
Gazetteer and a well-known work
on Topography, and in Martand Rao v. tvfalhar
Rao, 55 C 403 : 55 IA 45: 107 IC 7:1928 PC
10, the Privy Council referred to
official reports regarding some historical matters.
7
Marconi v. British Co., Times Dec, 15 1910, cited in Phipson Lv., 7th Ed., 314 ; see
Sita Nath
Basak v. Mohini Mo Sing 81 IC 754 1924 C 595, where it has been
remarked that in
infringement of copy right cases experts should be
appointed Commissioners.
8.
Sections 509 & 510, Cr P Code, but see i Bibi v. E., 15 L 310:152 IC 206:1934
L150:36 Cr LJ
;Happuv.E., 1461C 1089: 1933 A 837 35 Cr U 280 ; Tulsiratn Kanu v.
State, 1954 Sc 1: 1953
SCJ 612 1954 Cr LJ 225.

has not been produced in Court to prove it.1 But if a party has accepted the report of
an expert as evidence without the expert being examined in Court, he cannot object to the
admissibility of the report in appeal.2 Where the lower Court has based its decision on the
opinion of an expert contained iii a report, though he has not given sworn testimony in
support of the report, the objection to such evidence will not he permitted to be taken for
the first time in revision.3
Expert should be examined in the presence of the accused and not on
commission It is not satisfactory to examine an expert on commission in criminal cases.
The evidence of an expert has always to he carefully weighed and much more so when the
expert has been examined on commission and not in the presence of the accused. The value
of expert evidence, when given on commission, is considerably reduced.4
ADMISSIBILITY OF EVIDENCE OF THE EXPERTS UNDER SECTION 293 OF Cr. PC:
293. Reports of certain Government scientific experts.
(1) Any document purporting to be a report under the hand of a Government
scientific expert to whom this section applies, upon any matter or thing duly submitted to
him for examination or analysis and report in the course of any proceeding under this Code,
may be used as evidence in inquiry, trial or other proceeding under thi Code.
(2) The Court may, if it thinks fit, summon and exa mine any such expert as to
subject-matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend per
he may, unless the Court has expressly direted him to appear personally, depute any
responsible officer working with him to attend the Court, if such oflicer is conversant with
the facts of the case and can satisfactorily depose in Court in his behalf.
(4) This section applies to the following Government scientific experts, namely:
(a) any Chemical Examiner or Assistant Chemical Examiners to Government;
(b) the Chief Inspector of Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director Haffkeine Institute, Bombay;
(e)

the Director, 19-1[Director or Assistant Director] of a Central


Forensic Science Laboratory or a State Forensic Science Laboratory;

(f) the Serologist to the Government.


------------------------19-1 Ins by Act 45 of 1978, Section 21 (w.e.f. 18-12-1978).
Cr. P. C.62

Abstract
The forensic expert acts as an aid/tool in order to help the courts to arrive to justice.
reports to the courts. This paper deals with the role of experts and the law relating
to the admissibility of reports/opinion forensic experts and other experts in the
Indian courts. The reference has been given court has considered and placed
reliance upon the reports of various experts. The relevant discussion is regarding
the relevancy and evidentiary value of the expert reports/opinions vis
Keywords: Forensic Science, Expert, Evidence, Relevancy, Medical, Ballistic, DNA,
Foot
Introduction
Forensic Science plays a very significant role in the detection of any crime; it acts
as an aid/tool to the investigation process. Its a science through which all physical
evidences are collected and tested by forensic experts. It has been viewed as a las
many of the cases and the reports of forensic reports plays a very important role not
only in terms of criminal justice system but also in terms of civil lis and other
matters. Physical evidences should be collected from the scene of crime in a proper
manner, so that experts should be able to conduct the tests of physical relevant
evidences in the laboratories with proper reports. There are many categories of
forensic science which includes Forensic medicine, Ballistics, Fingerprints, Question
Documents, Voice Analysis, Narco-analysis, etc. There are various forensic
laboratories wherein, all the tests are conducted. A year back in New Delhi, a former
ministers wife was found dead in a hotel in an unstable condition. In this case,
forensic experts have played a very vital role; they have tested all the physical
evidences, mainly, toxicology and pathology Thereby, it can be said that forensic
science plays an important role as an aid to the courts to arrive to justice. This
paper deals with the important question of the evidentiary value (relevancy) of
forensic reports or opinion of experts or opinion of third party, in Indian Courts. It
further deals with how the courts look into, while considering a forensic report of an
expert and what grounds/criteria in cases are considered, where the courts ask for a
forensic report.

Law of Evidence
All the forensic reports or opinion of experts or opinion of third party when relevant,
are admissible under Section 45 of the Evidence Act, 1872 (hereinafter referred to
as theAct), which reads as follows: Section 45. Opinions of experts. : to form
an opinion upon a point of foreign law or of science or art, or as to identity of
handwriting opinions upon that point of persons specially skilled in such foreign law,

science or art, [or in questions as to identity of handwriting [or finger impressions]


are relevant facts. Such persons are called experts. Section 45 to Section 51 of the
Act deals with the expert evidence.
Who is an Expert
An expert is a person who has special knowledge related to some specific field,
where he has devoted his time and has experience of the same. The Courts in India
in plethora of cases, have described that an expert is someone who has such
special knowledge which need not be imparted by any University. He is or
experience in any art, trade or profession, which has been acquired by practice,
observation or careful study and which is beyond the range of common knowledg As
per the law of Indian Evidence, the Court has to form an opinion on the following:
foreign law, science, art and identity of handwriting (or finger impressions). The
opinions given on the aforesaid aspects are all relevant these opinions are known as
experts. In nutshell, an expert is someone who is skilled in any particular field and
having special knowledge2 .
Subject Matters of Expert Evidence
The subject matters of expert testimony as mentioned by the Act are foreign law,
science, art and the identity of handwriting or finger impressions. Other subject
matters of expert evidence can be finger prints, brain-mapping, polygraph, DNA,
ballistic, tracker dog and many more. The medical opinions are admissible upon
questions such as insanity, nature of the injuries, usage of the weapons to injure the
decease or victim; etc. As far as field of art is concerned, the testimony of artists is
admissible with respect the originality or value of a work of art and the opinion of a
photographer is admissible with respect to its execution, etc. The above list of
expert testimony is only illustrative and not exhaustive.
i. Section 473 of the Act deals with the opinion as to the handwriting. The
explanation to Section 47 elaborates the circumstances under which a person is
said to have known the disputed handwriting. A person who deposes the evidence is
not necessary to be a handwriting expert. The knowledge and general character of
any persons handwriting which a witness has acquired incidentally and
unintentionally, under no circumstance of suspicion will be considered far more
satisfactory than the most elaborate comparison of an expert. This Section
envisages that one can get acquainted with others handwriting in many ways. For
example: The former might have seen a particular handwriting or he might be
receiving letter from a particular person regularly.
i. Section 484 of the Act refers to the opinions of persons who know the existence
of a general right or custom and when it is relevant. ii. Section 495 of the Act refers
to opinions as to usages; tenets etc. The opinions of persons having special means
of knowledge thereon are relevant.

iii. Section 506 of the Act envisages that when the court has to form an opinion as
to the relationship one person with another, opinion expressed by conduct as to
such relationship by any family member or person having special means of
knowledge on that subject is relevant. For example: Whether P and Q were/are
married. The opinion regarding the same is relevant.
Section 517 of the Act states that whenever the opinion of a person is relevant, the
grounds are also relevant on which such opinion has been based. The grounds are
the ones on which the expert opinion has been formed; it may be called as
reasoning.
ii. Section 45-A of the Act states that when the court has to form an opinion with
regard to any computer resource or any other electronic or digital form, the opinion
of Examiner of Electronic Evidence referred under Section 79-A of the Information
Technology Act, 2008 is admissible under section 45-A of the Act, being a relevant
fact.
Judicial Approach
It has been seen in the past that the expert opinions have only been limited to
medical opinions. But now with the development of forensic science and technology,
it has certainly reached to such heights that the expert evidence is not limited to
the medical opinions but also extends to experts in other relevant fields. As far as,
criminal law is concerned: ballistic experts, forensic experts, scientists, chemical
examiners, psychiatrists, radiologists and even track-dogs are playing a very vital
role in investigation of crimes and their evidence is admissible in the court of law.
In plethora of cases, the Courts have asked for expert opinions. Let us see the
approach of the Courts towards the expert opinions: Handwriting Expert:
In the case of Devi Prasad v. State8 , the Court held that evidence given by a person
who has insufficient familiarity should be discarded. Indian Evidence Act insists that
documents either be proved by primary evidence or by secondary evidence. Section
67 of the Indian Evidence Act prescribes the mode of proving the signature in a
document. As far as, the opinion as to handwriting is admissible only if the condition
laid down in Section 47 is fulfilled, that is the witness is established to have been
acquainted with the writing of the particular person in one of the modes
enumerated in this section.
The opinion of an expert in handwriting should be received with great care and
caution and should not be relied upon unless corroborated as it has been held in the
case of Punjab National Bank Ltd. v. Mercantile Bank of India Ltd.9
Scientific Evidence:
The scientific evidence which is referred in Courts should be based either on some
scientific theorem or hypothesis and such evidence is expected to be empirical and

properly documented in accordance with scientific method such as is applicable to


the particular field of inquiry. The norms and standards for evidence may vary
according to whether the field of inquiry is among the natural sciences or social
sciences. It is a fact that scientific evidence is demonstrative evidence unlike oral
testimony, which depends on the deposition of a witness.
Various scientific methods are used to obtain scientific evidence, which should be
relevant and at the same time, trustworthy to become admissible in the courts. An
expert witness is called to testify about the reliability of the scientific evidence
sought to be introduced at trial.
The validity of the scientific method used for fingerprinting and foot printing is
accepted by the Courts. In Pritam Singh v. State of Punjab10; disputed footprints in
blood near a dead body and going towards the bathroom, were compared with
those of the accused taken in printers ink. The expert gave evidence giving points
of nine similarities in respect of the right foot and ten in respect of the left foot and
three dissimilarities only in each case and explained the dissimilarities with
reference to the different densities of blood and ink. It was held that the comparison
stood the test well and under the circumstances these foot impressions in blood
near the place of the incident, were proved to be those of the accused.
The Footprint identification is reliable as the bare feet contain friction ridge patterns
which are unique to each individual. Hence, the finger prints and footprints found at
the scene of offence can be used to help identify the offender and also the victim.
As far as science of identification of foot prints are concerned, the court has held
that it is not a well-established fully developed science, if in any given case
evidence is found satisfactory, it may be used only to reinforce the conclusions as to
identify the culprit already arrived on the basis of other evidence. Reference may be
given to the case of Mohd. Aman v. State of Rajasthan11 .
Medical Evidence:
The courts have treated medical evidence as an important piece of evidence. DNA is
one of the important medical blood test, where the paternity is a disputed question,
the court has ample power to direct parties to undergo medical tests or give sample
of blood for DNA to decide the paternity.
Deoxyribonucleic Analysis (DNA):
Each person's genetic makeup contains DNA. This differs from individual to
individual. DNA can be obtained through blood, saliva, semen, or hair. This helps in
identifying a person. If a drop of blood or a strand of hair is found at a crime scene,
it can be compared to a person's known DNA to see if there is a match, thereby
linking the person to the crime. An expert witness can give an opinion about the
likelihood that the blood that was found at the crime scene came from the individual
whose sample was compared. DNA analysis is also used to establish paternity.

Experts believe that the ability to link the culprit to the crime scene through his DNA
prints is unquestionable as unlike conventional fingerprints that can be surgically
altered, DNA is found in every tissue and no known chemical intervention can
change it
. As far as paternity is concerned, now it has become very usual to direct the use of
blood tests. Blood groups according to the scientists have a causative relation
between the trait of the progenitor and that of the progeny. In other words the blood
compositor of child may be of some evidence as to the childs paternity. The blood
group tests are useful only to exclude the possibility that a man is the father.
Sophisticated blood tests are now being adopted which are so advanced as capable
of providing a very high or low probability of paternity. Tests made of the DNA can
provide what can practically be regarded as certainty in paternity cases.
See the case-laws below:
The Supreme Court in Goutam Kundu v. State of West Bengal12 laid down
guidelines governing the power of courts to order blood tests.
The court held that:
i.
ii.

courts in India cannot order blood test as matter of course;


ii. wherever applications are made for such prayers in order to have roving
inquiry, the prayer for blood test cannot be entertained.
iii. There must be a strong prima facie case in that the husband must
establish nonaccess in order to dispel the presumption arising under section
112 of the Evidence Act.
iv. The court must carefully examine as to what would be the consequence
of ordering the blood test; whether it will have the effect of branding a child
as a bastard and the mother as an unchaste woman.
No one can be compelled to give sample of blood for analysis.

iii.

iv.

v.

But, the Supreme Court had advised against conduct of scientific tests of the
nature of giving blood samples for the purpose of DNA testing in a routine manner
but did not altogether ban their conduct upon third party.
In the case of Rohit Shekhar v. Narayan Dutt Tiwari & Anr13 , wherein, the issue of
paternity was concerned and the Delhi High Court ordered the respondent to
undergo a DNA test, as the petitioner was able to produce DNA evidence which
excluded the possibility that his legal father was his biological father and the
judgment of the High Court was upheld in the Apex Court.
i.

Now, if in case of any conflict between eyeevidence and the medical


evidence, the court will have to go by the evidence which inspires more
confidence. In case of contradiction between medical evidence and ocular
evidence, medical evidence is not to be given primacy14.

ii.

ii. The evidence of an eye-witness not to be discarded on strength of a


medical opinion15 .

Tracker Dog Evidence:


In Abdul Razak Murtaza Dafadar v. State of Maharashtra16: It has been observed
that in India we have yet to accept the evidence of tracker dog as a substantive
piece of evidence. The Honble Supreme Court of India opined that even the
evidence of dog-tracking, if admissible also does not have much weight in the
present state of scientific knowledge. The same was reiterated in another case
Ramla v. State17 where it was held that evidence of tracker dog was of little
importance.
The Court also observed that no adverse inference could be drawn against the
prosecution on the ground tracker was not examined by the prosecutor. It was
further observed that in construing the words science or art a static view can no
longer be tenable since expert testimony on subjects like telephony, psychiatry,
identification of foot marks and tracker evidence is now admitted, as the same has
been discussed above.
Typewriter Evidence:
In State v. S.J. Choudhary18, the Honble Supreme Court held that the word 'science'
iswide enough to meet the requirement of treating the opinion of a typewriter
expert as admissible evidence, coming within the ambit of Section 45 of the
Evidence Act. The opinion of a typewriter was considered as relevant by the Court
as an expert opinion and was relied upon as admissible to decide the case.
Polygraph, Brain-Mapping and Lie Detection:
Generally stating, the Courts may refuse to admit the results of a polygraph test as
evidence. Polygraph test measures a person's unconscious physiological responses
which can be breathing, heart rate, and galvanic skin response, while the person is
being questioned. It basically means that stress occurs when a person lies and that
this stress is measured by changes in the person's physiological responses. These
tests are considered as unreliable because it is not possible to convey whether the
stress measured during the test is caused by the test itself or not.
The Supreme Court of India with regard to these tests has held in Selvi v. State of
Karnataka19, that it expressly invoked the right of privacy to hold these
technologies unconstitutional. The court held that such techniques invaded the
accuseds mental privacy which was an integral aspect of their personal liberty. The
Supreme Court after a thorough examination of the issue, directed that - no
individual should be forcibly subjected to any of the techniques in question, whether
in the context of investigation in a criminal case or otherwise. Doing so would
amount to an unwarranted intrusion into personal liberty.

However, the court, left the option open for voluntary submission to such
techniques and held that the following Guidelines framed for the Administration of
Polygraph Test (Lie Detector Test) on an Accused by the National Human Rights
Commission should be strictly followed and the same guidelines should be adopted
for Narcoanalysis Technique and Brain Electrical Activation Profile Test, which are
as it is reproduced herein below: i. No Lie Detector Tests should be administered
except on the basis of consent of the accused. An option should be given to the
accused whether he wishes to avail such test. ii. If the accused volunteers for a Lie
Detector Test, he should be given access to a lawyer and the physical, emotional
and legal implication of such a test should be explained to him by the police and his
lawyer. iii. The consent should be recorded before a judicial magistrate. iv. During
the hearing before the magistrate, the person alleged to have agreed should be
duly represented by a lawyer. v. At the hearing, the person in question should also
be told in clear terms that the statement that is made shall not be a `confessional'
statement to the magistrate but will have the status of a statement made to the
police. vi. The magistrate shall consider all factors relating to the detention
including the length of detention and the nature of the interrogation. vii. The actual
recording of the lie detector test shall be done by an independent agency (such as a
hospital) and conducted in the presence of a lawyer. viii. A full medical and factual
narration of the manner of the information received must be taken on record.
Therefore, these tests can be done with following the aforesaid guidelines
Ballistic Evidence:
In case of Ballistic experts (Bullet marks), their opinion cannot be rejected merely
on the basis, that expert has not taken the photographs of the cartridges. In S.G.
Gundegowda v. State20, the report of the ballistic expert was considered as
admissible without calling him as a witness. In Rchhpal Singh v. State of Punjab21, it
was held that in cases where injuries are caused by fire arms, the opinion of ballistic
experts play a lot of importance and failure to produce the expert opinion before the
trial court effects the credit worthiness.
Important Observations
In Mahmood v. State of U.P. 22, the court held that it is highly unsafe to convict a
person on the sole testimony of an expert. Substantial corroboration is required23.
Thereby, it is very evident that conviction cannot be granted only on the basis of
forensic report of an expert.
In State of Maharashtra v. Damu Gopinath Shinde24 , the Supreme Court has held
that without examining the expert as a witness in the court, no reliance can be
placed on expert evidence.

In Malappa Sidappa Alakumar v. State of Karnataka25 , if there is a conflict between


medical and ocular evidence, than ocular evidence shall be preferred over the
medical evidence, in case ocular evidence is acceptable, trustworthy and reliable.
In this regard, it is worthwhile to remember the observations of Dr. Arijit Pasayat J.,
His Lordship very rightly observed, in the case of Ram Swaroop v. State of
Rajasthan26 that, A doctor is usually confronted with such questions regarding
different possibilities or probabilities of causing injuries or post-mortem features
which he noticed in the medical report may express his views one way or the other
depending upon the manner the question was asked. But the answers given by
witness to such questions need not become the last word on such possibilities. After
all, he gives only his opinion regarding such questions. But to discard the testimony
of an eye-witness simply on the strength of such opinion expressed by the medical
witness is not conducive to the administration of criminal justice.
By keeping in view the above observations and in view of the potential risk
involved to an accusers fair trial, the reference is given to a leading case of the
Supreme Court of Canada, namely, R.V. Mohan27 wherein, the Honble Supreme
Court of Canada drawn a criteria which must be considered before a witness may
give expert opinion/evidence at the stage of trial; which in my understanding should
be followed universally throughout the world.
Admission of expert evidence depends upon the following criteria28:
i.
ii.
iii.
iv.

Relevance of the evidence;


ii. Necessity of the evidence;
iii. The absence of any exclusionary rule; and
iv. A properly qualified expert.

Relevance:
The evidence can only be admitted at trial if it is relevant and it can only be
relevant when it makes the fact in issue more probable. But even it might be still
excluded if the judge finds that the admission of the evidence would cause more
prejudice than its ultimate benefit. (The same principle can be seen in the Indian
Evidence Act, 1872, as the Sections dealing with the expert evidence falls under
Chapter II of the Act, starts from Section 5 to Section 55, which has to pass the test
of relevancy)
. Necessity:
In this case, the Canadian Apex Court clarified that in determining the necessity
that why the expert/opinion evidence is required, the Court explained, What is
required is that the opinion be necessary in the sense that it provide information
which is likely to be outside the experience and knowledge of a judge or jury.

Initially there used to be a general rule of evidence which used to known as the
ultimate issue rule.The Court held that now the ultimate issue rule no longer
generally applies but the dangers contemplated by the rule are still relevant.
Thereby, an experts opinion that approaches the ultimate issue in the case must be
carefully considered to make sure that it is truly necessary for the jury to hear.
Lastly, if the judge or jury can consider the evidence in hand with their knowledge
and experience than in that case, expert testimony may not be required.
Absence of Any Exclusionary Rule:
Now if the above two stages exist in a particular expert evidence which is logically
relevant to the issue at trial, then also in that case the evidence may not be
admitted if its reception is prohibited by another exclusionary rule; e.g: hearsay
evidence.
Properly Qualified Expert
: As I have discussed above that the expert evidence must be knowledge. Proper
qualification means that the expert must have acquired some special knowledge
through study or some other experience in respect of matters on which he is
proposed to give his opinion.
Conclusion
The above research envisages that the discretion lies solely with the court to admit
the forensic report of an expert. The reference may be given to the case of Krishan
Chand v Sita Ram29 , wherein there was a conflict of expert opinions, it was held
that it is the Court which is competent to form its own opinion with regard to
signatures on a document. It totally depends upon the facts and circumstances, and
the opinion of the courts, which varies accordingly. As such, there is no provision in
the Indian Evidence Act, 1872, which expressly states that expert evidence requires
corroboration, but, practically stating as per my own experience; courts generally do
not rely only on expert evidence, unless it is supported by other evidence. That is
the reason, it has been observed by the Supreme Court of India in plethora of cases
that it is highly unsafe to convict a person on the basis of sole testimony of an
expert. It is generally seen that in most of the cases, courts ask for the medical
expert opinions. But practically stating, it is well settled that medical jurisprudence
is not an exact science and it is indeed difficult for any medical expert to say with
precision and exactitude as to when a particular injury was caused, so it is merely
the duty of the expert to give his opinion. Thereby, it can be said as a general rule,
the opinions of medical experts and other experts who has special skill in a
particular field shall be admissible in the Court of law.
Recommendations and Suggestions:

It can be suggested and recommended that the expert from the medical field
should be encouraged to undertake medico-legal work. It has been seen above that
the medical experts have played a very vital role as an aid to help the Courts to
arrive at a logical and well-defined conclusion. And now, scientific experts/forensic
scientists are also playing a crucial role especially in criminal matters and the
testimonies of expert evidence have been relied upon by the Courts. The concern
regarding the need to involve more professionals in expert opinion/testimony has
been felt by various organizations30. This objective of greater expert participation
can only be achieved by addressing the apprehensions of various experts and I
suggest and believe that the government of the day should come up with more
institutes specialising in various fields of Forensic Science.
It is pertinent to refer to the report of Dr. Justice V.S Malimath Committee31, which
suggested various reforms in the criminal justice system. The committee suggested
that forensic science should be used comprehensively in the investigation of crime.
According to the Malimath Committee, the DNA experts should be considered and
included in the list of experts as given under section 293(4)32 of the Indian Code of
Criminal Procedure (CrP.C), 1973.
Suggestions as per Malimath Committee Report: A DNA database at national level
should be formed in order to help in fighting terrorism, various efforts must be taken
to create awareness among prosecutors, judges, police machinery and general
public; establishment of well-equipped laboratories are required to handle DNA
samples and evidence and lastly, an enactment of specific law in the light of
framing and giving guidelines to the police machinery and to set up uniform
standards for obtaining genetic information and also the creation of adequate
safeguards to prevent misuse of the same.
In view of the above, I would conclude this paper by citing the relevant
observations of the Honble Supreme Court of India, wherein the Honble Court has
opined the necessity to strengthen the Forensic Science for detection of crimes; in
the case of Dharam Deo Yadav v. State of U.P.33, which is reproduced herein below:
Para 30:Criminal Judicial System in this country is at cross-roads, many a times,
reliable, trustworthy, credible witnesses to the crime seldom come forward to
depose before the court and even the hardened criminals get away from the
clutches of law. Even the reliable witnesses for the prosecution turn hostile due to
intimidation, fear and host of other reasons. Investigating agency has, therefore, to
look for other ways and means to improve the quality of investigation, which can
only be through the collection of scientific evidence. In this age of science, we have
to build legal foundations that are sound in science as well as in law. Practices and
principles that served in the past, now people think, must give way to innovative
and creative methods, if we want to save our criminal justice system. Emerging new
types of crimes and their level of sophistication, the traditional methods and tools
have become outdated, hence the necessity to strengthen the forensic science for
crime detection. Oral evidence depends on several facts, like power of observation,

humiliation, external influence, forgetfulness etc., whereas forensic evidence is free


from those infirmities. Judiciary should also be equipped to understand and deal
with such scientific materials. Constant interaction of Judges with scientists,
engineers would promote and widen their knowledge to deal with such scientific
evidence and to effectively deal with criminal cases based on scientific evidence.
We are not advocating that, in all cases, the scientific evidence is the sure test, but
only emphasizing the necessity of promoting scientific evidence also to detect and
prove crimes over and above the other evidence. Lastly, it can also be concluded
that: Science is not an encyclopaedic body of knowledge about the universe.
Instead, it represents a process for proposing and refining theoretical explanations
about the world that are subject to further testing and refinement34 .

Section 291 - Deposition of medical witness


The deposition of a civil surgeon or other medical witness, taken and attested by a
Magistrate in the presence of the accused, or taken on commission under this
Chapter, may be given in, evidence in any inquiry, trial or other proceeding under
this Code, although the deponent is not called as a witness.
The Court may, if it thinks fit, and shall, on the application of the prosecution or the
accused, summon and examine any such deponent as to the subject-matter of his
deposition.

Section 291 in CRPC / Code of Criminal Procedure: :


Deposition of medical witness.
(1) The deposition of a civil surgeon or other medical witness, taken and attested by a
Magistrate in the presence of the accused, or taken on commission under this Chapter,
may be given in evidence in any inquiry, trial or other proceeding under this Code,
although the deponent is not called as a witness.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the
accused, summon and examine any such deponent as to the subject- matter of his
deposition.

Legal Provisions of Section 291 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.

Deposition of medical witness:


This section provides a special rule of evidence and departs from the ordinary rule that
the statement of a person, who is alive and is not called, is not evidence.
The deposition of a medical witness taken and attested by a Magistrate in the presence
of the accused can be given in evidence at the trial without calling him as a witness. The
provisions of this section are, however, confined to expert evidence given by a medical
practitioner as a witness.
A medical professional, while giving evidence, may refresh his memory by referring to a
report which he had made of the postmortem examination, but the report itself cannot
be treated as evidence and no facts can be admitted there from as a piece of evidence.
However, if the doctor is dead or not available for examination in Court under
circumstances stated in Section 32 of the Evidence Act, then in that situation, his
postmortem report or injury report may be admissible in evidence.
Sub-section (2) gives discretion to the Court to summon and examine a medical
witness, if it deems it necessary but makes it obligatory upon the Court to summon and
examine such witness if the prosecution or the accused makes a request for such
examination.
It must be stated that the provisions contained in Section 291 are limited to expert
evidence, i.e., the medical opinion tendered by a medical professional who appears as
a witness. The evidence must be in medical matters only and the section has no
application to evidence relating to facts tendered by a witness who incidentally happens
to be a doctor or medical practitioner.

Sessions Court (Sessions Judge): Highest judicial tribunal of


the District, usually situated at the district headquarters
Can pass any sentence. However, death sentence has to be
confirmed by the High Court

Additional Sessions Judge: High Court may appoint


Additional Session Judges to exercise jurisdiction in a Court
of Session
Same as Sessions Court
Assistant Session Judge: High Court may also appoint Assistant
Session Judges depending upon the demands. Such court may
be situated at district headquarters or any other place considered
suitable
Can pass any sentence except death sentence, life
imprisonment or imprisonment exceeding 10 years
Chief Judicial Magistrate/Chief Metropolitan Magistrate:
In every district, High Court shall appoint a Judicial Magistrate
of first class having sufficient experience to be the Chief Judicial
Magistrate (in the Metropolitan area, it is called as Chief
Metropolitan Magistrate)
Can pass any sentence except a sentence of death or of
imprisonment for life or of imprisonment exceeding 7 years.
Fine without limit. However, Section 63 IPC lays down that
where no sum is expressed to which the fine may extend, the
amount of fine to which the offender is liable is unlimited, but
shall not be excessive; that is to say that the amount of fine
imposed should be within the means of the accused to pay
though he must be made to feel the pinch of it. Imprisonment
in default of fine should also be long enough to induce the
accused to pay the fine rather than suffer the imprisonment
Judicial Magistrate (First Class)/Metropolitan Magistrate Can pass sentence of
imprisonment for a term not exceeding

3 years or of fine not exceeding | 10,000, or both


Judicial Magistrate (Second Class)
(In every district, as many courts of Judicial Magistrates of first
class and of the second class may be established as the state
government may, after consultation with the High Court, specify
by notification)
Can pass sentence of imprisonment for a term not exceeding
1 year or of fine not exceeding | 5000, or both
Special Judicial Magistrates: Government may, after
consultation with the High Court, establish one or more special
Courts of Judicial Magistrate of first class or the second class
to try any particular case or particular class of cases. Such
magistrates may be appointed for any term, not exceeding
1 year at a time
High Court may empower such Special Judicial Magistrates to
exercise the powers of a Metropolitan Magistrate in relation to
any metropolitan area outside its local jurisdiction