PRESENTATION OF

EXPERT EVIDENCE
KEY PHASES OF EXPERT TESTIMONY IN COURT CASES
1 2 3

Report Preparation Court Presentation

Evidence Collection
Experts prepare comprehensive Experts present their findings in court,
Experts meticulously gather
reports, including data, charts, either through oral testimony or
evidence, conduct experiments,
photographs, illustrations, and written reports. Reports are submitted
and analyze data in their
conclusions to present their findings to the court through the agency that
laboratories
to the court. requested the expert's services.
 EVIDENCE COLLECTION

Mandatory Collection of Forensic Evidence (Section 176(3) of BNSS):

• Section 176 (Section 157 of the CrPC) introduces a new requirement under Clause (3) for the investigation
process, mandating the collection of forensic evidence from crime scenes by forensic experts.

• It stipulates that, upon receiving information regarding an offense punishable by seven years or more,
the officer in charge of a police station must ensure that a forensic expert visits the crime scene to collect
evidence - which must also be videographed using a mobile phone or other electronic device,

• This process is to be implemented by the State Government within five years of notification. Where
forensic facilities are unavailable, the State Government must arrange for the use of such facilities from
another state until it develops its own.

• The provision also expands the definition of “forensic experts” to include private experts. However, this
expansion raises concerns about the potential for inconsistencies or lack of accountability, as the
involvement of private experts without regulation or oversight could lead to issues in handling crime
scenes.
Expanded Evidence Collection from Individuals (Section 349 of BNSS):

The power of Magistrates to order the collection of forensic samples from individuals, previously outlined in
Section 311A of the CrPC, has been significantly expanded by Section 349 of BNSS in two key ways:

1. Firstly, the types of samples that can be collected have been broadened beyond just signatures and
handwriting to include fingerprints and voice samples.
2. Secondly, while Section 311A restricted sample collection to individuals previously arrested in
connection with the investigation, Section 349 allows Magistrates to order the collection of samples
from any person, provided they offer written reasons for such orders.

• While this broadens the scope of evidence collection, it also raises significant privacy concerns. The
section does not require proof of an individual’s involvement in the crime, which could lead to
disproportionate invasions of privacy and potential misuse of personal data.
 REPORT PREPARATION

The expert must adhere to the following guidelines while preparing the report:
• Thorough Examination: The expert should conduct a comprehensive examination and prepare all necessary notes and
illustrations.
• Objectivity: The expert must stick to the observable facts and should avoid exaggeration, maintain composure, refrain
from jumping to conclusions based on incomplete data, and ensure their work is free from bias or dishonest intentions.
• Clarity in Theory: It is essential that the expert avoids presenting complicated or obscure theories dogmatically. They
should refrain from using jargon and complex language that may confuse the court.
• Consideration of Factors: Sufficient time should be allocated to evaluate all relevant factors and utilize available
information to address the issues at hand.
• Use of Illustrations and Data: Wherever possible, the report should include experimental data, photographs,
illustrations, and sketches.
• Layman's Language: When presenting findings, experts should use language that is accessible to laypersons. Technical
terms should be minimized and clearly explained, supplemented with diagrams, sketches, and photographs as necessary.
• Stay Updated: Experts should remain knowledgeable about the latest advancements and developments in their field to
ensure their findings are current and relevant
• Clear Conclusions: Clear, unambiguous, and concise conclusions are essential in forensic reports, and their degree of
accuracy or probability should be transparently presented. The conclusions of such reports form the crux of their value
and can fall into three categories:
i. Definite conclusions: These conclusions are based on sufficient evidence to establish a clear linkage or de-
linkage.
ii. Indefinite conclusions: These conclusions are based on evidence that suggests a possibility but does not provide
conclusive proof.
iii. No conclusions: In some cases, the evidence may be insufficient to draw any conclusions.
Indefinite or inconclusive reports are often given minimal weight. In Bhullakram Koiri v. State of West Bengal, 1970
Cri LJ 403 (Cal), the Calcutta High Court emphasized the dangers of relying on inconclusive expert opinions, stating:
“Upon an analysis of the said evidence, we agree with the defence counsel. It is passing strange that an expert in his
ultimate opinion would depend upon probabilities and not on firm convictions, in the absence whereof the said evidence
becomes dangerously thin indeed and the court of law would not take that by itself into consideration to fixing the guilt
of the accused. The expert having reached the point of interrogation or of probability cannot be relied upon for the
purpose of conviction in a case under Section 302, IPC.”

• Timely Report: The reports should be sent as soon as possible. The adage "justice delayed is justice denied" is
particularly relevant in cases where delays in forensic examinations can significantly hinder the judicial process. [State of
Bihar v. Bhullaram Koid, 1971 Cri LJ 187 (Pat)].
The Gujarat High Court in Suleman Usman Memon v. State of Gujarat 1961 (2) Cri LJ 78 has pointed out:
“It is difficult to see how any reliance can be placed on the opinion unless it is supported by good reasons
founded on the facts which warrant that opinion. If the reasons are good and convincing and the factual
data, on the basis of which the opinion is formed, warrant the opinion, the court will rely on the opinion.
However, if the factual data is not clear or adequate or the reasons are frivolous or inconclusive, the opinion
will have no probative value. That is the reason why section 51 of the Indian Evidence Act provides that
whenever the opinion of any living person is relevant the grounds on which such opinion is based are also
relevant.”

Further Andhra Pradesh High Court in Thimma Reddi (in re:), 1957 Cri LJ 109 (AP) rejected the evidence,
which was not illustrated:
“With regard to the pin strike and finer striations on the base of the cap of the cartridge, the opinion
expressed is definite and conclusive. But unfortunately, he has not produced the test cartridge for comparison
purposes. The learned counsel (defense) has contended that the record does not furnish the material which
has helped the expert in coming to his conclusions in this case. He has argued that the data be supplied or
the enlarged photos be produced, so that the opinion of the expert may be verified by the court to hold that
the expert was justified in the opinion he has given.”
 EXPERT REPORT

An expert’s report is issued on a standard pattern. The form caters for all the essential details:
1. The laboratory case and the report numbers.
2. The case references (the FIR No. and the Letter No. with date).
3. The date and mode of the receipt.
4. The description of the packages (with their content): their number, identification marks, seals, and the
signatures and whether the seals were intact or not.
5. The description of the exhibits, identification marks, signatures or initials, etc.
6. The Questionnaire (in brief).
7. The dates on which the examination is commenced and completed.
8. The number and nature of the test exhibits prepared.
9. The experiments carried out, the observations made and the conclusions drawn.
10.The name of the examiner, his qualifications and his designation.
11.The mode of the despatch of the report and the exhibits.
 COURT PRESENTATION

• Experts may present their findings in court either through oral testimony or written
reports.

• Generally, these reports are submitted to the court by the agency that requested the
expert’s services.

• In certain cases, the written reports alone, without the expert’s personal attendance, are
accepted as evidence under Section 293 of the Criminal Procedure Code (CrPC), now
Section 329 of the Bharatiya Nyaya Shaksiya Samhita (BNSS).

• Sec 329 of BNSS allows the submission of a report by government-certified scientific

experts as evidence, without requiring their oral testimony in court as a witness.
 Exemption for Forensic Experts from
Judicial Scrutiny

Section 293 of CrPC

(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 any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may unless the Court has expressly directed
him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the
facts of the case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government scientific experts, namely;
a) any Chemical Examiner or Assistant Chemical Examiner to Government;
b) the Chief Inspector of Explosives;
c) the Director of the Finger Print Bureau;
d) the Director, Haffkine Institute, Bombay;
e) the Director or Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State forensic Science
Laboratory;
f) the Serologist to the Government.
g) any other Government scientific Expert specified by notification by the Central Government for this purpose.”
• Section 329 widens the exemption from oral examination for forensic experts
and expands the categories of experts exempted from court deposition by
including any other scientific expert certified by the central or state
governments (which can include private experts).

• Section 329 (4)(g): any other scientific expert specified or certified, by

notification, by the State Government or the Central Government for this
purpose.
 Implication of Section 329

• This exemption to experts from fulfilling their duty to the court is in stark contrast to the law under
Section 39 of the Bharatiya Shaksiya Adhiniyam (BSA) [Earlier sec 45, IEA], which requires the court to
independently assess the reliability of expert testimony.

• Sec 329 impedes any meaningful judicial scrutiny of forensic evidence. Although sub-clause (2) formally
allows judicial discretion to summon and examine experts, in practice this depends upon an application
by the defense explaining why the particular expert ought to be summoned.

• This inhibits meaningful examination of forensic evidence and makes it dependent on the quality of
legal representation. Without an oral examination of experts, courts cannot properly examine issues
regarding the admissibility and weight of forensic evidence.
 Curtailing Judicial Scrutiny of Forensic Evidence

• Section 330, which corresponds to Section 294 CrPC, further restricts the court’s ability to scrutinize forensic evidence by
eliminating the need for formal proof of certain documents unless their authenticity is disputed by the opposing party.
This provision presumes that, if the opposing party does not challenge the genuineness of a document, including
forensic reports, within a given timeframe, the document is accepted without the need for expert testimony.

Section 330:
(1)Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document
shall be included in a list and the prosecution or the accused or the advocate for the prosecution or the accused, if any, shall
be called upon to admit or deny the genuineness of each such document soon after supply of such documents and in no case
later than thirty days after such supply:
Provided that the Court may, in its discretion, relax the time limit with reasons to be recorded in writing:
Provided further that no expert shall be called to appear before the Court unless the report of such expert is disputed by
any of the parties to the trial.
(2) The list of documents shall be in such form as the State Government may, be rules, provide.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in inquiry, trial or other
proceeding under this Sanhita without proof of the signature of the person by whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to by proved.
 Implications of Section 330

• The Proviso to Section 330(1) adds a crucial limitation, stating that no expert shall be called to
testify unless the genuineness of their report is disputed during the pre-trial stage. This means
that unless a party challenges the authenticity of a forensic report, the expert’s oral testimony is not
required.

• This restriction is unreasonable and arbitrary as it assumes that the deposition of experts as
witnesses would be necessary only for the purposes of establishing the genuineness of their
report. This precludes the examination of experts on crucial factors such as the scientific
validity of testing methods, their qualifications, and whether they adhere to proper forensic
procedures, all of which are vital to determining the accuracy and reliability of their opinions.

• Thus, such curtailment of judicial scrutiny raises concerns about the fairness of the process, as it
prevents courts from thoroughly assessing the weight and credibility of forensic evidence,
which is essential for ensuring a just outcome in criminal trials.
 Conflicting Judicial Views on Expert Reports and
Testimony

Different courts have taken varied positions regarding the admissibility of expert reports, such as medical or post-mortem
reports, without the testimony of the expert:

Requirement for Oral Testimony:

In Ram Deo Yadav v. State of Bihar, 1987 SCC OnLine Pat 257 [5], the Patna High Court have held that medical
reports should be used only to corroborate or contradict the expert and cannot substitute their oral testimony.

Similarly, in Nagina Sharma v. State of Bihar, 1990 SCC OnLine Pat 173 [82], the court emphasized that a report
alone cannot be considered as evidence without examining the expert.

A similar view has been taken in Nahadariya v. State of Madhya Pradesh, 1980 JLJ 501 where the court held that
even if the genuineness of a post-mortem report is not disputed under s.294 CrPC, the requirements under s.45 IEA
regarding expert evidence would continue to apply, which necessitates the examination of the expert. Without the
expert’s testimony, their report would be a mere certificate, which cannot be considered as evidence.

The Guwahati High Court in Dhirai v. State of Tripura, 1998 SCC OnLine Gau 233 [7] held that this provision would
only apply to certain documents, like letters, which speak for themselves once they are formally proved.
On the other hand, courts like the Allahabad High Court in Saddiq v.
State, 1980 SCC OnLine All 614 [11] and the Bombay High Court in
Shaikh Farid Hussinsab v. State of Maharashtra, 1981 SCC OnLine
Bom 26 [16] have accepted medical and forensic reports as documents
under Section 294 CrPC, thereby allowing them to be used as evidence
without requiring expert testimony, provided their authenticity is not
disputed.
EXPERT EVIDENCE IN COURT
 PROSECUTION COUNSEL

• Establish the bonafide of the expert: Her qualifications, training, experience, etc to be established for the
record.

• Understand the Evidence: The counsel must understand the evidence - if necessary, she should have a
conference with the expert before putting her in the witness box – It is the counsel who is to co-relate the
expert evidence with the rest of the evidence and present to the court a connected whole case.

• Ensures Induction of Demonstrative Testimony: The counsel should ensure that the expert should
produce the data on which his findings are based. He must illustrate the findings by charts, graphs,
sketches, diagrams, photographs, and physical reconstruction wherever possible and whenever necessary.

• Anticipates the Defence Line

• Handles Inconclusive Report Effectively: An inconclusive report can provide only corroboratory evidence
to the linkage chain. If possible the counsel should get the probative values of the inconclusive reports.

• Listen to the Cross-examination Attentively - for any anomalies created and get the ambiguities clarified
and removed in the re-examination.
 DEFENCE COUNSEL

• Understand the Evidence

• Anticipates the Total Expert Evidence: Often additional evidence and elucidation are sought by the
prosecution or by the court. The defence counsel should be able to anticipate and understand the
additional evidence also.
• Plans His Cross-examination Carefully

Ordinarily cross-examination has one or more of the three aims:

i. To discredit the Bona fide of the expert.
ii. To challenge the correctness of his findings.
iii. To seek elucidation and additional information, which may clarify, confuse or contradict other evidence.
• Did the expert compare the crime exhibits with the test ones?
• Does the Expert Identify the Exhibits?
• Has the Expert Based His Opinion on the Accepted Standards?
• Is the Evidence Produced By the Expert Convincing?
• Has the Expert Carried out Adequate Tests and Experiments?
• Are the Exhibits Authentic?
• Is the Expert Biased?
 THE COURT

The scrutiny of expert evidence by the court is necessary. The court must see:

• The expert, the prosecution and the defence have done their duties properly, if they have not, the court should
intervene at the appropriate time.
• The expert is an honest, properly educated, trained and that he is engaged in the professional work. The court
should not permit an impostor to impose upon the court and perjure.
• The expert does not use meaningless jargons, technical terminology or verbosity to hide the weak points in his
evidence or to mislead the court to non-issues.
• The expert is not forced to answer questions in ‘yes’ or ‘no’ answers. The scientific evidence often needs
elaboration. ‘Yes’ or ‘No’ answers cannot do justice to the truth in some of the questions.
• The expert has not side-tracked the relevant questions put to him by the counsel or the court.
• The counsels do not waste time in asking hypothetical questions.
• The expert evidence produced is relevant, intelligible, properly demonstrated and explained and conforms to the
standards in the speciality.
• The points left ambiguous or incomplete, either by the prosecution or by the defence, are clarified through the
court questions.
• The inconclusive reports are probed to ascertain their probative values and they are given due weightage
accordingly. As already mentioned, some of the reports are inconclusive only technically. They must be given
the due weightage.
 FALLACIES ABOUT EXPERT EVIDENCE

• A court must form its own opinion

• The Expert Must Conform To “Yes” or ‘No’ Technique
• The Expert Must Answer All Questions
• Evidence Testimony is a weak evidence
• Expert Usurps Court’s Functions
• Expert Differ