Bharatiya Sakshya Adhiniyam, 2023
Section 39
Opinions of experts
(1) When the Court has to form an opinion upon a point of foreign law or of science or art, or any other field, 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 any other field, or in questions as to identity of handwriting or finger impressions are relevant facts and such persons are called experts. Illustrations.
(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law. The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.
(2) When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000
(21 of 2000), is a relevant fact. Explanation.—For the purposes of this sub-section, an Examiner of Electronic Evidence shall be an expert.
Why this exists
Courts are staffed by judges trained in law, not in medicine, chemistry, handwriting analysis, or computer forensics. Yet many disputes—poisoning deaths, insanity defences, forged documents, hacked accounts—turn on technical facts judges cannot assess alone. Since the Indian Evidence Act, 1872 (this section's predecessor, Section 45), Indian law has allowed specially skilled persons to assist courts by giving their professional opinion, while leaving the final decision to the judge. The addition on electronic evidence experts reflects the digital age, aligning with amendments to the Information Technology Act, 2000 that created a formal cadre of certified electronic evidence examiners.
How courts read it
Under the predecessor provision (Section 45 of the Evidence Act, 1872), the Supreme Court repeatedly held that expert opinion is only advisory, not binding—the judge must independently evaluate the reasons behind the opinion (State of Himachal Pradesh v. Jai Lal, 1999). In Ramesh Chandra Agrawal v. Regency Hospital (2009), the Court stressed that an expert must have specialised skill acquired through study or experience, and their opinion must be backed by sound reasoning. On handwriting evidence specifically, courts have cautioned that expert opinion alone is weak evidence and is safer when corroborated (Murari Lal v. State of M.P., 1980). For electronic evidence, courts have linked such expert opinions to the certification and authentication requirements for digital records recognised in cases like Anvar P.V. v. P.K. Basheer (2014), ensuring computer-based evidence is reliable before an expert opinion on it is even considered.
Common misconceptions
- Myth: An expert's opinion automatically decides the case.
Fact: Courts have held that expert opinion is only advisory; the judge must weigh the reasoning behind it and can disagree with it. - Myth: Handwriting expert testimony alone is enough to prove forgery.
Fact: Courts, including the Supreme Court in Murari Lal v. State of M.P., have cautioned that handwriting opinions are best relied upon when corroborated by other evidence. - Myth: Any computer-savvy person can give 'expert' testimony on electronic evidence under this section.
Fact: Sub-section (2) specifically refers to the Examiner of Electronic Evidence notified under Section 79A of the IT Act, 2000, not just anyone with technical knowledge.