Definition

Generally an expert means a person who has special knowledge and skill in a special field either by the
study or by the experience. Some experts are being expert through their study and some are being
expert through their experience. In the western or developed country ,these people are recognized as
an expert. Who did special courses like Doctor, Engineer and other specialized people. But in context of
Nepal those people are recognized as an expert who have long time experience about such matter of
handwriting, a person who observed someone handwriting from long time before. Section 23 of
Evidence Act 2031, states “An expert as a person who has gained special knowledge through special
studies , training and experience”.

According to Black’s Law Dictionary, “An expert is a person who through education or experience has
developed skill or knowledge in a particular subject , so that she/he may opinions that will assist the
fact finders.

Similarly, according to Ballentine’s Dictionary, “An expert means , one who is qualified either by actual
experience or by careful study , as to enable him/her to form a definite opinion of his/her own
respecting a division of science, branch of art or department of trade about which persons having no
particular training or special study are incapable of forming accurate opinions or deducing correct
conclusions.

Quality of an Expert Witness

An expert is a specialist in the respective field and called as a witness in the court at that capacity. The
qualities which possesses by expert witness are different from ordinary witness because generally
witness can not give their opinion, but the expert generally make their opinion. Therefore , there are
some important qualities of an expert witness as ,

a.Expertise

An expert must have expertise or specialization in subject he/she testifies in court.That is main reason
of summoning him/her.The question of expertise may be decided upon the basis of an inquiry into
academic achievements, professional training, experience in trade, means at the command and the
application of those for coming to conclusion.

b.Clarity:

The language used by an expert must be simple, clear and comprehensive even to ordinary people.The
subject should be able to present his/her evidence in clear words and if possible , through charts,
photography, sketch and phomicrographs and make his/her opinion demonstrative so that same could
be appreciated by a lay person.
c.Relevancy:

An expert opinion must be relevant to both , the issue in question as well as to the established and
recognized principles and findings of his/her subject. The findings must not be based on assumptions
but on relevant data either from own experience or from the published works of accredited authors.

d.Reliability:

The court seeks for expert opinion in the presumption that such opinion will be more authoritative or
more reliable due to his/her special knowledge on the subject. Another side of the basis of reliability is
non –commitment of the expert to interests of either disputing party. They should not only be reliable
but appear to be so, and that he/she should satisfy himself/herself against bias arising out of certain
cases.

Section 45 of Indian Evidence Act 1872 states that “when the court has to form an opinion upon a point
of foreign law, or science, or art or as to identify of handwriting or finger print expression , the opinion
upon that point of persons specially skilled in such foreign law, science or art , or in question as to
identify of handwriting or fingerprint impression are relevant facts. Such person is called an expert.In
short, we can say an expert is that person who has knowledge on particular field by the study training or
by the experience.

Evidentiary value of Expert Witness

Normally witnesses are not entitled to give their opinion in any proceedings. They should tell whatever
they see or observe but Section 23 of Evidence Act 2031 provides for admission of opinions of different
types of Experts in court, and the value to be given on such opinions as follows;

If court has to form an opinion of foreign law, science, art, handwriting or finer impressions, it may take
the opinions of experts of such subject as evidence.

If court has form an opinion on handwriting of a person, it may take opinion of a person who has had
opportunity to see handwriting and is in a situation to identify handwriting as evidence.

If court has to form an opinion as to relationship between persons, it may take as evidence the opinions
of people who have special knowledge of relationship.

If court has to form an opinion as to meaning of certain words placed in certain places , it may take the
opinion of person having special knowledge of same as evidence.

Such opinions are however to be admitted as evidence only if an expert comes and testifies in the
court.The expert’s opinion is only piece of evidence and cannot be taken as substantive piece of
evidence since it is to be judged along with other evidence. In other words, expert’s opinion must be
corroborating with the other evidence. As for instance, report of handwriting expert is not admissible in
evidence in the absence of formal proof. In the case of Mubark Ali vs.State of Bombay, the Indian
Supreme Court laid down that a witness must confine himself to the facts and not to state of his
opinion. But according to Section 23(7) of Evidence Act 2031, author of an article or book need not be
present in the court in person for the article or book to be admitted as evidence. And also , if the Post
Mortem Report does not contradict with other facts collected during the course of investigation or if
the opponent does not challenge matter in court, the Expert need not come to the court.

Examination of Expert Witness

Any expert who has provided their opinion , should come to the court and he/she has to face various
type of examinations as follows;

a. Direct examination:

The Evidence Act 2031,Section 50(1) provides for the direct examination or examination in –chief. It is
the first stage of examination where the party or attorney of the party as usually is the case in modern
litigation , who calls upon the Expert Witness , examines him/her. So in cases , where the State is party ,
the Public Prosecutor first examines the Expert Witness.

Further , the reason for any party to call an Expert Witness is to furnish support for his/her arguments.
But the asking of questions by any party or the lawyer of the party to his/her witness that will lead to
the answer desired by him/her.

b. Cross – examination of Expert Witness:

According to Oxford Dictionary of Law, ”When the first examination is finished , the first Advocate sits
down and the Advocate of other side , be it defense or prosecution, rises to cross-examine the witness.
This examination of witness by the Advocate for adverse party is popularly known as cross –
examination.

Cross- examination helps the judge to determine the evidentiary value of an opinion. The main
objective is to test the accuracy of the statement made by an expert. Dr. Reddy observed that,” In
doing this , the lawyer may try to weaken the evidence by showing that the evidence given is
inconsistent , in accurate, ill- founded, contradictory and untrustworthy. The cross-examination need
not be confined to the facts to which the witness testified in his examination- in-chief.

In cross-examination , an expert giving opinion must appear before court as witness. The opponent
party subjects him/her cross-examination .The court must be convinced with the reliability of such
opinion. The court does not follow all types of opinion blindly.
c. Re-examination:

Re-examination is the third stage of examination. The Evidence Act 2031,Section 50(2) states about re-
examination of witness. First party of case or who asked questions first with the expert can ask or clarify
certain question under the permission of Bench.

Case law relating to Expert Opinion:

The Supreme Court of Nepal , generally gives preferences to the opinion of expert. It is only sometimes
that the court does not consider the Expert Opinion as evidence

In the case of HMG vs. Rajesh K.C. and others,”Semen was found on the clothes of the victim and the
person accused of rape. The forensic report was positive during the examination of vaginal swab of the
victim; the Supreme Court in this case convicted the accused on the ground of Doctor’s medical report.
2.Similarly in the case of Sideni Sah Kanu vs.Prabhu Sah Kanu,”the dispute was whether the number ‘0’
had been altered into ‘7’ or not? The expert opined that ‘7’ in the disputed writing and ‘7’in the writing
in other places were different .The writing of the disputed number ‘7’was written by different ink,
contained plenty of hesitation marks and tremors, and the pen pressure was very thick. The Supreme
Court observed that the number ‘7’ was made by altering number ‘o’.

3.Similarly in the case of Prem Bahdur vs. Ganesh Das,the Supreme Court has observed that the written
signature deserves greater importance rather than finger prints impressions if the party executing it
seems to be an educated person.

4.However in the case of Hanif vs.HMG, the Supreme Court rightly held that expert opinion given
merely on the ground of inference and not on reliable grounds cannot be relied upon.
[NKP,2025(1968),p.94]

5.Similarly in the case of Milki Ram vs. HMG,the Supreme Court decided that where the doctor is
supposed to be , limited to corpse, if doctor gives an opinion on such things that does not conform
the condition of dead body , such opinion cannot be relied upon.