1.

Introduction

Expert evidence plays a pivotal role in judicial proceedings, particularly in cases involving
technical, scientific, or specialized issues beyond the ordinary understanding of a judge or jury.
The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which has replaced the Indian Evidence Act,
1872, continues to recognize the significance of expert testimony in the adjudication process.
This document elaborates on the admissibility, relevance, and evidentiary value of expert
evidence under the BSA, along with comparative insights, judicial interpretations, and
procedural aspects.

2. Concept and Definition of Expert Evidence

Expert evidence refers to the opinion rendered by an expert, who possesses special knowledge,
skill, experience, training, or education in a particular domain. Courts rely on such opinions to
understand matters involving:

• Forensic science
• Medicine
• Ballistics
• Fingerprints and handwriting
• Engineering
• DNA analysis
• Digital forensics

3. Legal Framework under the Bharatiya Sakshya Adhiniyam, 2023

3.1 Section 39: Opinions of Experts

Section 39 of the BSA corresponds with Section 45 of the Indian Evidence Act. It states:

"When the Court has to form an opinion upon a point of foreign law, science, art, 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."

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This provision covers five major areas:

• Foreign law
• Science
• Art
• Handwriting
• Finger impressions

3.2 Scope of Section 39

The section allows the court to admit expert opinion as relevant facts when it requires guidance
on matters falling outside general legal knowledge. The expertise must be demonstrable, and
the opinion must be based on scientific principles.

3.3 Other Relevant Provisions

• Section 40: Deals with facts bearing on opinions of experts.

• Section 45: Pertains to the opinion of examiner of electronic evidence.

These sections collectively establish the framework for accepting and evaluating expert
opinions in court.

4. Who is an Expert?

An expert is not merely someone with academic qualifications but one who has acquired
special knowledge through study or practical experience. Indian courts have consistently held
that an expert must possess:

• Special skill in the field

• The ability to demonstrate and explain scientific methods used
• An impartial and objective approach

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5. Admissibility of Expert Evidence

5.1 General Conditions for Admissibility

• Relevance: The subject matter must be beyond the comprehension of the average
person.
• Qualification: The expert must have demonstrable expertise.
• Foundation: The opinion must be based on established and recognized methods.
• Reliability: The technique used must be tested and generally accepted.
• No substitution of judicial decision-making: Expert opinion is advisory, not conclusive.

5.2 Judicial Guidelines

• In State of Himachal Pradesh v. Jai Lal and Ors., the Supreme Court emphasized that
expert evidence must be scrutinized for reliability and must not be accepted without
adequate corroboration.
• In Ram Narain v. State of U.P., the court held that expert evidence is a weak form of
evidence and must be supported by other material.

6. Evidentiary Value of Expert Evidence

6.1 Nature of Expert Evidence

Expert evidence is considered opinion evidence. It does not have the same probative value as
direct evidence or eyewitness testimony. Courts use it to aid in understanding complex matters,
but it is not binding.

6.2 Corroboration Requirement

• Courts have maintained that expert evidence should be corroborated by:

• Circumstantial evidence
• Direct witness testimony
• Material records or documents

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6.3 Limitations of Expert Testimony

• Subjective bias
• Inconsistent methodologies
• Conflict of interest
• Lack of verification
• Hence, courts exercise caution and often require cross-examination of expert witnesses.

7. Types of Expert Evidence

7.1 Forensic and Scientific Experts

These experts analyze biological samples, chemicals, weaponry, and other physical evidence.
DNA, bloodstains, toxicology, and ballistics are common domains.

7.2 Medical Experts

They provide opinions on cause of death, nature of injuries, psychological assessments, etc.

7.3 Handwriting and Fingerprint Experts

Used frequently in criminal and civil matters, particularly those involving fraud and identity.

7.4 Digital Forensics Experts

In the digital age, experts in cybercrime, data recovery, and digital authentication are crucial.

7.5 Electronic Evidence Examiners (Section 45)

This includes government-recognized forensic examiners of electronic evidence. Their opinion

holds a special place under BSA.

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8. Cross-Examination of Experts

The adversarial system allows parties to test the validity of expert opinions through cross-
examination. The purpose is to:

• Assess credibility
• Expose biases or errors
• Evaluate the consistency of the opinion

Courts consider cross-examination results essential in determining the weight of expert

testimony.

9. Comparison with Indian Evidence Act, 1872

Though largely similar, the BSA modernizes the language and emphasizes digital and
electronic evidence more clearly, especially under Section 45.

• Clearer role for electronic evidence

• Better alignment with scientific standards
• Streamlined procedural integration

10. International Best Practices

Courts across jurisdictions adopt the following standards:

• Daubert Standard (USA): Emphasizes peer review, testing, error rate, and general
acceptance.
• Frye Standard (USA): Focuses on general acceptance within the scientific community.
• UK Approach: Emphasizes reliability and necessity.

The Indian legal system is increasingly aligning with the Daubert approach in evaluating expert
testimony.

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11. Case Law Analysis

11.1 Selvi v. State of Karnataka (2010)

The Supreme Court ruled that narco-analysis and brain-mapping without consent violated
Article 20(3). It also commented on the scientific reliability of such techniques.

11.2 Ramesh Chandra Agrawal v. Regency Hospital Ltd. (2009)

Held that expert evidence should be considered with other evidence and that it cannot override
judicial discretion.

11.3 Mukesh v. State (Nirbhaya case) (2017)

The court placed significant reliance on DNA and forensic evidence, affirming its crucial role
in criminal justice.

12. Challenges in Using Expert Evidence

• Overdependence: Courts may sometimes rely too heavily on expert opinions.

• Manipulation: Parties may attempt to produce favorable experts.
• Inconsistency: Conflicting expert opinions may confuse the court.
• Lack of Standardization: No uniform standards for expert qualifications.

13. Recommendations and Best Practices

1. Court-Appointed Experts: Reduce bias by allowing courts to appoint neutral experts.

2. Certification: Mandate accreditation for forensic and digital experts.
3. Transparency: Require disclosure of methodology and assumptions.
4. Expert Registries: Maintain centralized databases of vetted experts.
5. Training of Judges: Enhance judicial understanding of scientific principles.

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14. Conclusion

Expert evidence under the Bharatiya Sakshya Adhiniyam, 2023 remains a crucial, though
limited, form of evidence. While it aids the judiciary in understanding specialized subjects, its
admissibility and evidentiary value must always be balanced with corroborative evidence and
judicial discretion. A cautious, structured, and standardized approach is necessary to ensure
that justice is not only done but is seen to be done.

15. Bibliography

15.1. Statutes and Government Documents

• Bharatiya Sakshya Adhiniyam, 2023 (Act No. 47 of 2023).

• Indian Evidence Act, 1872.
• Law Commission of India, 185th Report on the Indian Evidence Act, 2003.
• Department of Legal Affairs, Ministry of Law and Justice – Notes on Clauses:
Bharatiya Sakshya Adhiniyam, 2023.

15.2. Case Law

• State of Himachal Pradesh v. Jai Lal and Ors., (1999) 7 SCC 280.
• Ram Narain v. State of Uttar Pradesh, AIR 1973 SC 2200.
• Selvi v. State of Karnataka, (2010) 7 SCC 263.
• Ramesh Chandra Agrawal v. Regency Hospital Ltd., (2009) 9 SCC 709.
• Mukesh & Anr. v. State for NCT of Delhi & Ors., (2017) 6 SCC 1.

15.3. Books

• Ratanlal & Dhirajlal, The Law of Evidence, LexisNexis, 25th Edition, 2023.
• Batuk Lal, Law of Evidence, Central Law Agency, 20th Edition, 2022.
• Vepa P. Sarathi, Law of Evidence, Eastern Book Company, 7th Edition, 2021.
• Sarkar, Sarkar’s Law of Evidence, LexisNexis, 19th Edition.

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15.4. Articles and Journals

• Singh, A. (2021). “Revisiting Expert Evidence in Indian Courts.” Journal of Indian Law
and Society, Vol. 12, No. 2.
• Rao, M. (2022). “Admissibility and Reliability of Expert Opinion under Indian Law.”
Indian Bar Review, Vol. 49(1), Bar Council of India.
• Sharma, P. (2020). “Scientific Evidence and Judicial Interpretation: A Study.” National
Law School Journal, Vol. 14(3).

15.5. International References

1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

2. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3. UK Criminal Practice Directions 2015 (revised 2019) – Part 19: Expert Evidence.

15.6. Web Resources

1. Ministry of Law and Justice, India – https://legalaffairs.gov.in/

2. Supreme Court of India Judgments – https://main.sci.gov.in
3. Indian Kanoon – https://indiankanoon.org
4. SCC Online – https://www.scconline.com