​KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Opinions of Experts (Section 39)
1. Basic Principle of Section 39Under Section 39 of the Bharatiya Sakshya Adhiniyam, the law provides that:
When the court has to form an opinion on matters such as foreign law, science, art, any specialized field, or identity of handwriting or fingerprints, the opinions of persons specially skilled in such areas are relevant facts.
Such persons are known as experts, and their opinions assist the court in understanding technical or specialized issues beyond ordinary knowledge.

2. Scope and Importance of Expert OpinionCourts regularly rely on expert opinions because:

• Judges are experts in law, not in all fields of knowledge
• Many cases involve technical, scientific, medical, or digital issues
• Expert assistance helps the court reach a fair and informed decision

Thus, expert opinion acts as an advisory tool, enabling the court to interpret complex matters accurately.

3. Meaning of “Opinion”An opinion refers to a person’s belief or inference about the existence or non-existence of a fact.

• It involves thinking, reasoning, and judgment
• It is different from direct perception (what is seen, heard, or felt)

👉 Important:

• The fact that a person holds an opinion is itself a fact
• But the opinion itself is not a fact in issue, only a relevant consideration

4. Meaning of “Expert”An expert is a person who possesses:

• Special skill, knowledge, or experience in a particular field
• Acquired through:
  • Study
  • Training
  • Professional practice
  • Practical experience

Experts may include:

• Doctors
• Scientists
• Handwriting or fingerprint analysts
• Digital forensic specialists

The law also recognizes an Examiner of Electronic Evidence as an expert in digital matters.

5. Essential Ingredients of Section 39For expert opinion to be relevant:

1. The court must need to form an opinion
2. The issue must relate to:
   • Foreign law
   • Science or art
   • Any specialized field
   • Identity of handwriting or fingerprints
3. The opinion must be given by a person specially skilled in that field

6. Subjects on Which Experts Can Testify(i) Foreign Law

• Experts who have studied foreign legal systems may assist the court
• Alternatively, foreign law may be proved through authoritative publications

(ii) Science, Art, or Other Specialized Fields

• “Science” includes organized and systematic knowledge
• “Art” includes skilled applications of human intelligence
• “Any other field” (newly added) broadens the scope to include modern disciplines

👉 Test:
If the matter is such that an ordinary person cannot form a correct judgment without assistance, expert opinion is required.

(iii) Identity of Handwriting or FingerprintsThe court may rely on:

• Expert comparison (scientific analysis)
• Familiarity-based opinion under Section 41
• Court’s own comparison with admitted writings

In Manorama Naik v State of Odisha, the Court held that:

• Expert opinion is not the only method of proving handwriting
• Other methods, including court comparison, are also permissible

Similarly, in Ajay Kumar Parmar v State of Rajasthan, it was observed that:

• Expert opinion is fallible and must be used cautiously
• Courts should not rely solely on their own comparison without supporting evidence

7. Evidentiary Value of Expert OpinionExpert evidence is:

• Relevant but not conclusive
• Advisory in nature

Its value depends on:

• The expert’s qualifications and experience
• The reasoning and data supporting the opinion
• Consistency with other evidence

In Muralilal v State of M.P., the Court stated:

• There is no strict rule requiring corroboration
• However, due to the imperfect nature of certain sciences (e.g., handwriting), courts should act with caution

In State of H.P. v Jai Lal, the Court clarified:

• Expert evidence is advisory, not binding
• The judge must form an independent judgment
• The credibility depends on:
  • Reasons given
  • Data and materials relied upon

8. Expert Evidence vs Direct Evidence

• Direct (ocular) evidence usually has greater value
• However, if expert evidence makes direct evidence improbable, it becomes significant

Thus, both types of evidence must be carefully balanced.

9. Examination and Admissibility of Expert Evidence

• Expert reports do not automatically become evidence
• The expert must:
  • Appear in court
  • Be examined
  • Face cross-examination

Exceptions exist under procedural laws where reports may be admitted without requiring the expert’s presence unless the court directs otherwise.

10. Constitutional and Forensic AspectsIn State of Bombay v Kathi Kalu Oghad, the Court held that:

• Giving fingerprints, handwriting samples, or bodily impressions does not violate Article 20(3)

In Mukesh v Government of NCT Delhi, the Court emphasized:

• DNA evidence is highly reliable if:
  • Proper procedures are followed
  • There is no tampering

Such scientific evidence can conclusively link accused persons to the crime.

11. Electronic Evidence and Digital Experts (Section 39(2))Section 39 also recognizes modern technological developments:
When the court has to form an opinion on matters relating to electronic or digital data, the opinion of an Examiner of Electronic Evidence (under the Information Technology Act, 2000) is relevant.
ExampleA digital hash certificate issued by a forensic expert to verify electronic records is admissible as expert evidence.

12. Key Takeaways

• Section 39 makes expert opinion relevant in technical and specialized matters
• Experts assist the court but do not replace judicial decision-making
• Their opinion is:
  • Advisory, not binding
  • To be evaluated with caution
• Courts must assess:
  • Expertise
  • Reasoning
  • Supporting evidence
• The law also recognizes digital and forensic experts in modern contexts

In One Line👉 Expert opinion guides the court in technical matters, but the final judgment always rests with judicial evaluation.