witness and evidence in the words of apex court

 witness and evidence in the words of apex court put a witness means to furnish evidence a person can be a witness not merely by giving oral evidence but also by producing documents for making intelligible C section 119 of evidence act like to be a witness is nothing more than to furnish evidence and search evidence can be furnished throw the lips for by production of a thing of a document for another modes so far as production of document is concerned no doubt Section 139 of the evidence act says that a person producing a document on someone's is not a witness but that section is meant to regulate the right of cross examination it is not a guide to the quotati C section 119 of evidence act like to be a witness is nothing more than to furnish evidence and search evidence can be furnished through the lips for by production of a thing of a document for another modes so far as production of document is concerned no doubt Section 139 of the evidence act says that a person producing a document on someone's is not a witness but that section is meant to regulate the right of cross examination it is not a guide to the word witness on of the word witness guesture as in the case of a dumb MP Sharma vs Satish Chandra Delhi AIR  Delhi 1954 Supreme Court 300

Defination of Criminal Breach of trust under section 405 IPC

Section 405: Criminal breach of trust

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.

Explanations

A person, being an employer of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952) or not who deducts the employees' contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
A person, being an employer, who deducts the employees contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Illustrations

A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriates them to his own use. A has committed criminal breach of trust.
A is a warehouse-keeper, Z, going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse-room. A dishonestly sells the goods. A has committed criminal breach of trust.
A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z’ direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company’ paper. A dishonestly disobeys the directions and employs the money in his own business. A has committed criminal breach of trust.
But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z’ advantage to hold shares in the Bank of Bengal, disobeys Z’ directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company’ paper, here, thought Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.
A, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.
A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.

Relevancy of Expert Opinion under Indian Law”

“Relevancy of Expert Opinion under Indian Law”

Expert evidence is covered under Sections 45-51 of Indian Evidence Act. In simple language if we look at the phrase Expert Opinion and try to analyse it then it means that an opinion which is given by a person who is expert in a particular field, may it be science, art, law or any other technical field. And, this concept is envisaged by S.45 of Indian Evidence Act, 1872.

Section 45, Indian Evidence Act, 1872:

“When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity handwriting or finger impressions, the opinions upon these points of persons especially skilled in such foreign law, science or art or in questions as to identity of handwriting or finger impressions, are relevant facts. Such persons are called experts.”

On a bare reading of section, we find that scheme of section has stressed on different types of experts like foreign law, science, art, fingerprints, handwriting etc. But, section does not have comprehensive approach because at the time of framing of Act these other branches of Science were not possibly known. So, the important point is the very meaning of the words “Expert” and “Opinion”.

“Expert” means one who is skilled in any particular art or trade, profession being professed of particular knowledge, concerning the same. And if a person has acquired any special experience or special training in a particular subject to which Court enquiry relates, such a person can be considered as an expert, An expert is one who has made the subject upon which he speaks a matter of particular study, practice or observation and he must have a special knowledge of subject. Any person who has the experience to give an informed opinion on a matter outside the experience of Court is an Expert.

An “Opinion” is estimation, a belief or assessment, a view held as probable, what one thinks about a particular question or topic, an assessment short of grounds of proofs, a formal statement of reasons for the judgment, a formal statement of professional advice.

Hon'ble Supreme Court in the case titled as Ramesh Chandra Agarwal v/s Regency Hospital Ltd. 2009 (9) SCC 709 has broadly dealt and interpreted the scenario and held that, an expert is a person who devotes his time and study to a special branch of learning. However, he might have acquired such knowledge by practice, observation or careful study. The expert is not acting as a judge or jury. It was further held that in order to bring the evidence of a witness, as that of an expert, it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. An expert is not a witness of fact (like other witnesses) and his evidence is really of an advisory character. The duty of the expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria. No expert can claim that he could be absolutely sure that his opinion was correct.

Hon'ble Supreme Court has further laid down in the case titled as State of Maharashtra v/s Damus/o Gopinath Shinde and others, AIR 2000 SC 1691, that mere assertion without mentioning the data or basis in support of his opinion is not evidence, even if it comes from an expert. It is held that such evidence though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value without examining the expert as a witness in Court. Therefore, no reliance can be placed on an opinion alone.

In the case titled as Kabul Singh v/s Gurinder Singh (1999) 121 PLR 816, opinion of the expert was sought regarding signatures put on a document. However, the expert also gave opinion that certain digits were changed which opinion was not sought for. The Hon'ble High Court of Punjab and Haryana held that such an opinion should be ignored and that expert should have confined himself to the relevant facts.

However, there is a probability to lean the opinion of private experts in favour of the party calling them. In such like cases, when there is a conflict of opinion between the experts, then the Court is competent to form its own opinion with regard to signatures on a document or such like matters.

Another important issue under consideration is that whether the Courts are bound by the opinion given by an expert on a particular fact in a case. Hon'ble Supreme Court has answered this question in the case titled as Malay Kumar Ganguly v/s Dr. Sukumar Mukherjee, 2009 (9) SCC 221 wherein it has been held that, a Court is not bound by the evidence of the experts which is to a large extent advisory in nature.

Conclusion

Thus, we may conclude that this provision is based on the principle that as judges are not properly equipped to draw proper inferences from the facts stated by witnesses, it is appropriate that the opinion of an expert must be taken into consideration. But the expert’s opinion is a weak form of evidence, especially in the cases where the sufficiency of knowledge is doubtful and therefore there should be stress on professional qualification of experts and not exclusively on experience. Some guidelines should be made to ensure the reliability of expert’s opinion, his knowledge, experience, qualification in that field in order to be termed as an expert. Section should be amended by Parliament in order to expand its meaning, explanation, comprehensiveness, and relevance.

Presentation by Piyush Sharma, C.J.M. , DLSA Palwal