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Expert evidence in India

Watch Devina Malaviya and Shreya Rastogi from Project 39A discuss the law on expert evidence in India and its limitations.
An important and recurring theme in our course has been the intersection of law and science. Apart from learning about the scientific foundations of the four disciplines covered in this course, we have also explored several crucial questions that legal professionals often ask. In this lesson, we will discuss how Indian law deals with expert evidence, especially expert forensic evidence. My colleague Shreya Rastogi and I will explain the interaction between law and forensic science at different stages of a criminal case. Let’s go to the beginning of a criminal case. A complaint has been lodged and the police conducts the investigation and collects evidence. How is forensic evidence collected? What are the legal provisions that deal with the collection of such evidence?
Section 53 of the Code of Criminal Procedure, or CrPC deals with medical examination of the accused by a medical practitioner at the request of a police official. This examination is conducted where there are reasonable grounds for believing that this examination will provide evidence as to the commission of offence. Section 53A is specifically deals with examination of a person accused of rape. As you remember, we also discussed this provision in the module on medical examination in sexual offences. Considering the crucial nature of such biological evidence, it is important that only a registered medical practitioner collects such evidence from the accused. This will ensure the integrity of such evidence and that it is properly collected and packaged.
Section 54 provides that when any person is arrested, he shall be examined by a medical officer. Such an examination is important to record all injuries and marks of violence on the person who has been arrested. This provision is an important check on any form of torture or coercion that the arrested person may have suffered in police custody. These provisions pertain to collection of evidence from the accused. What about collection of evidence from the victim? As we discussed earlier, section 164A of CrPC provides for medical examination of a victim of rape. The report of the medical examination will include, among other things, the description of injuries, as well as material taken from the victim for DNA profiling.
Next, we have section 174, which allows the police to conduct inquest proceedings in cases where a person’s death is suspected to be caused by suicide, homicide, accident or death under circumstances which raise a reasonable suspicion that an offence has been committed. An inquest report must be made immediately after the deceased body is discovered or reported. Similarly, section 176 allows the magistrate to conduct such an inquiry in the specific circumstances provided in the section. Once evidence has been collected, it must be sent for forensic examination without delay. After the laboratory prepares the forensic report, it is submitted to the court as part of the final report submitted by the police upon completion of its investigation.
During trial, what are the legal provisions that pertain to examination of forensic evidence by the court? Section 45 of the Indian Evidence Act deals with expert evidence. It provides that when the court has to form an opinion on the point of foreign law, science, art, handwriting or finger impression, the opinion of persons specially skilled in such areas are relevant facts. It is important to note that the opinion of an expert is advisory in nature and it is not binding on courts. As per section 57 courts may also take judicial notice of books and reference materials in all matters relating to scientific evidence.
As we have outlined the important provisions which deal with expert evidence, we will now discuss the related judicial practice in India and some of the gaps in the existing framework for examination of forensic evidence. As discussed by my colleague Devina, Section 45 of the Evidence Act deals with expert evidence. It tells us that the opinions of the persons specially skilled in the areas mentioned in the section are relevant. While examining the credentials of the experts, Courts have considered whether the witness qualifies as an expert on the basis of special skill, knowledge or experience in the particular area of expertise that is outside the knowledge of laypersons.
Remember, expert evidence is an exception to the rule against opening evidence because it is believed that the court can be guided by the special skills or knowledge of the expert to arrive at its decision. Therefore, it is important to examine the qualifications and expertise of a witness who is testifying as an expert. Apart from laying down who qualifies as an expert, the judicial decisions have also held that the expert opinion should be intelligible, reasoned and convincing. Courts have also emphasized that the expert opinion must be based on reliable principles, and the credibility of the expert witness would depend on the reasons provided by them in support of their conclusions.
Yet the current framework on expert evidence in India is insufficient in keeping unreliable forensic evidence out of court. There are two major issues with the present framework. First, the court does not inquire into the scientific validity of forensic evidence at the stage of admissibility. In India, the examination of admissibility of evidence is often conflated with relevance. Currently, there are no clear standards beyond relevance with respect to admissibility of forensic evidence. Also, courts do not conduct a preliminary inquiry on admissibility of expert evidence before the commencement of trial. Therefore, this may lead to either arguments on admissibility not being raised or being raised after the court has already heard the testimony of the expert witness and read the forensic report.
In such a situation, the admissibility challenge may be conflated with arguments on the weight of evidence. It is also important to note that arguments on admissibility of different types of forensic evidence may vary. By now, you have learned that forensic science comprises multiple disciplines. Each of these disciplines have different scientific foundations. Therefore, the limitations of each of these disciplines varies since the level of uncertainty, error and confidence operating within each discipline is different. Research into the scientific foundations of forensic disciplines has either revealed that certain assumptions underlying the evidence are scientifically invalid or that sufficient research in that area has not been conducted.
These aspects not only impact the scientific validity of the discipline, but also the admissibility of such evidence. Consequently, and admissibility inquiry into, say, bite mark evidence must be different from DNA evidence. The second issue with the present framework on expert evidence is that there are no clear standards guiding courts on examining the scientific validity of forensic evidence being used. While the courts have used terms such as intelligible or convincing or supported by reasons as criteria to rely on expert evidence. There are no standards to determine what constitutes intelligible or convincing. These terms do not provide sufficient guidance to trial courts on specific aspects that must be considered when expert scientific evidence is being submitted during trial.
There is a need to create non-exhaustive standards which can guide judges in determining the scientific validity of evidence, as we have discussed the rules of evidence governing the examination of forensic evidence. We must now consider the procedure that governs the admission of such evidence in trial. An important aspect that would enable the examination of scientific validity of forensic evidence is the cross examination of the expert who conducted the forensic examination. However, as per the current procedure in section 293 of the CrPC, the report of specific government scientific experts may be admitted as evidence without the examination of such an expert.
While this provision gives the court discretion to summon and examine such experts if it deems necessary, in actual practice, this is dependent on the views of the concerned judge and an application to summon the expert by the defence lawyer. Providing such an exemption to a category of government experts from court appearance prevents a rigorous examination into forensic evidence. It does not allow the court to scrutinise important aspects such as, firstly, the qualifications of the expert and their experience in that particular forensic discipline. Secondly, the inherent limitations of the technique used and the expert’s views on the scientific validity of the technique. Thirdly, the process followed by the export while examining the forensic evidence in that case.
This would enable the court to examine in case there are any major deviations from the established protocols or working procedure manual governing that laboratory’s work. And finally, the method of interpretation adopted by the expert and the basis of their final conclusions. Given these challenges, it is important to revisit the need for Section 293 CrPC and its impact on the examination of forensic evidence in court. Despite the presence of such a Section, courts and lawyers must continue to call the expert witnesses for examination.

Watch Devina Malaviya and Shreya Rastogi from Project 39A delve into the law on expert evidence in India and the challenges associated with examining forensic evidence. In doing so, they draw on from Project 39A’s experience with criminal litigation work.

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