FORENSIC SCIENCE PAPER No.2: Criminology & Law MODULE No.25: Expert evidence & Decisions of Courts and Cross-examination & Re-examination of Witnesses

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1 SUBJECT FORENSIC SCIENCE Paper No. and Title Module No. and Title Module Tag Paper No.2: Criminology and Law Module No. 25: Expert evidence & Decisions of Courts and Cross-examination & Re-examination of Witnesses FSC_P2_M25

2 TABLE OF CONTENTS 1. Learning Outcomes 2. Introduction 3. Expert Opinion 4. Opinions of Persons other than experts 5. Ballistic Experts 6. Some authorities for illustration 7. Blood Grouping 8. Chemical Examination and detective dyes 9. Case study Cross examination and Re-examination of witnesses 11. Summary

3 1. Learning Outcomes After studying this module, you will be able to: Understand Expert opinion and Competency of expert Learn about opinions of persons other than experts Learn about cross-examination of witnesses Learn about Re-examination of witnesses 2. Introduction Opinions are not generally admissible in evidence unless they come from persons who are considered experts as per Law or from other persons especially mentioned in the law as chemical examiners. Powell has defined the term expert as one who has devoted time and study to a special branch of learning and is specially skilled on the points on which he is asked to state his opinion. Lawson defines an expert as a person who has special knowledge and skill in the particular field to which the enquiry relates. Section 45, Indian Evidence Act, 1872, states that when the court has to form an opinion upon a point of foreign law, science or art or to identify handwriting or finger impression the opinion upon that point of person specially skilled in such foreign law, science, art or identity of handwriting or finger impressions are relevant facts and such persons arc experts. Even an illiterate mason or plumber may be accepted us an expert by the court on the basis of his special knowledge and long experience.

4 3. Expert Opinion An expert witness may observe certain things based on his experience but he would be cross-examined by the opposite party and has to prove to the satisfaction of the court regarding his achieved expertise. His opinion in the court is admissible but not in his absence. The chemical examiner is a Govt. Expert, witness and can observe things, analyze the data, draw conclusions and form an opinion, which can be admitted by the court even in his absence. However the court may call a chemical Examiner to the court for tendering opinion and cross-examination. The retired chemical examiner loses his status of being chemical examiner on retirement and is no more a Govt. Expert. He is treated as an ordinary expert witness under see 45 of IEA who is allowed to give an opinion under Sec.45 of IEA which the court may/ may not accept after his cross-examination. Expert Opinion Evidentiary Value:- Expert evidence is not conclusive but only an opinion. Expert evidence is to be received with caution. Court insists on corroboration of expert evidence in general. Infirmities of expert evidence are due to Limited knowledge. Inaccuracy of expression. Partisanship. Availability of limited facilities for examination. Competency of Expert The value of an expert s testimony rests on the competency of the expert for forming a reliable opinion. For this the court may determine the fitness of the expert first. The rules of guidance are:

5 (i) The subject relevant on which the expert evidence can he received. (ii) Qualification/experience entitling him to testify, us an expert. (iii)the witness has got necessary qualification, experience and knowledge. (iv)whether or not the expert had carried out extensive research work on the relevant subject. 4. Opinions of persons other than experts Opinion of persons who are not skilled but are supposed to have all intimate knowledge of the matter may be given in as evidence. This evidence is also admissible in the following cases: o Acquainted with one s handwriting Sec. 47 Indian Evidence Act. o General custom and right-sec. 48 Indian Evidence Act. o Usages and tenets - Sec. 49 Indian Evidence Act. o Relationship-Sec. 50 Indian Evidence Act. o Constitution and Government of any religious charitable foundation - Sec. 49 Indian Evidence Act. o Meaning of words or terms used peculiarly - Sec. 49 Indian Evidence Act. o Sec. 73 Indian Evidence Act.

6 5. Ballistic Experts Ballistic fingerprinting refers to a set of forensic techniques that rely on marks that firearms leave on bullets to match a bullet to the gun it was fired with. It is a subset of forensic ballistics (the application of ballistics to legal questions) and internal ballistics (the study of events between the firing of a gun and the bullet leaving the barrel The Ballistic experts normally carry examination of fire arms and thus their opinion is admissible in courts under section 45 of IEA which implies that evidence of the ballistic experts is admissible after he is examined in the court. In some forensic science laboratories like CFSL, CBI New Delhi, all scientific officers have been declared as chemical examiners to the Government of India, In such a case their opinions can be admitted to courts without their attending the same under section 293 of Cr PC. In actual practice, however these experts are generally asked to tender evidence in person and face cross examination. Some of the experts may not have carried out any chemical test or possess my degree in chemistry. As such they need to be cross examined in courts to prove, their expertise to get benefit of an expert under section 45 of IEA and not under section 293 of Cr.P.C. Many officers who do not have any knowledge of chemical analysis and do not possess any degree in chemistry need to be examined in courts before admissibility of their opinion gets affected in courts.

7 Tool marks or striations on bullets are very characteristic and individualization an important part. Brief reasons need to be mentioned in the report, when it is required to connect a fire arm with a bullet in case of firing. This is not normally being done. Tool marks provide a definite type of evidence. Even a single characteristic nark may provide a solid base to reveal the truth of identity of a particular tool; The presence or absence of certain striations (marks) in the crime and test exhibits is often discussed but they do not form any basis of non-identity and may not be mistaken in view of course. Opinion on the injury based on the photograph by a ballistic expert is not proper and need to be rejected. The Supreme Court observed that the evidence of ballistic expert who had not seen the injuries and had given his opinion after seeing the injury in the Photograph cannot be accepted. 6. Some Authorities for Illustrations (a) (b) (c) It cannot be said with confidence that opinion expressed by the author of a book matches exactly with the case under trial in a particular court. For example the state of Madhya Pradesh AIR 1954 SC 28 disapproved of the judges drawing conclusion adverse to the accused by relying upon such passages in the absence of their being put to medical Witnesses. Similar view had been expressed in Bhagwan Das v/s State of Rajasthan AIR 1957 SC 589.

8 (d) (e) No doubt, opinions expressed in books by forensic scientists or other experts may prove in general of considerable assistance or importance to courts in arriving.at the truth they cannot and should not be treated conclusive but final. In any given case the court may come to an appropriate decision of its own keeping the relevant proved facts pertaining to a given case. 7. Blood Grouping (a) (b) (c) (d) Blood is available at most of the crime scenes and is a very important physical clue, especially in determining paternity problems. Blood grouping is a perfect test to determine paternity. In the case of Hargovind Soni v/s Ramdulari AIR 1986 M P S7, it was withheld that the blood grouping is a perfect test to determine questions of disputed paternity of a child. It may however be kept in mind that no one can be compelled to give a sample of blood for blood grouping test against, his will. Blood can be used for DNA analysis and evidence of DNA expert is admissible in evidence as it is a perfect science. The probability of two persons (except identical twins) having the same DNA fingerprint is about 1 in 30 billion keeping the population of the entire world in view it is correct to conclude by that it gives perfect identity. A word of caution is however added that unless it is carried out, properly an element of error nay happen as had happened in USA where many erroneous were arrived at, because of improper experiments.

9 8. Chemical Examination and detective dyes a) Chemical examination offer their opinions under the section 93 of Cr.P.C. b) Their opinions are admissible in courts without their presence in the court. c) The Court, however has the authority to call any chemical examiner for clarification or cross examination d) The honorable Supreme Court had observed that chemical examiners need to be called in the cases of trap laying, especially where detective dyes (Phenol) are used. The author was involved in a large number of cases in several states in the country, he was a chemical examiner to the Government of India and his opinion got admitted without his attending courts but on one of the occasions he had to attend the by court to defend his opinion when summoned court for tendering evidence. The court can summon any chemical examiner in any case. e) In the case of Varada Rama Mohan Rao, State of Andhra Pradesh, 2003, two courts after considering the material on record produced by prosecution and defence came to the conclusion that the prosecution has established its case. The Honorable Supreme court noticed that it was an admitted fact by the appellant himself that PW-1 did conceal the currency notes worth Rs.1500 along with the said case papers he had come in contact with the said currency without knowing of his placement. The explanation had been considered and rejected, by the two lower courts and there was no reason for its acceptance.

10 From the evidence of PW- 1 coupled with the facts proved the way of trap, satisfied that the accused did receive the money and that inner lining of the hand of the accused also showed, the presence of phenolphthalein which could not have possible by the accused by merely touching the pocket. 9. Case Study Bhopal Gas Tragedy A case where knowledge met ignorance In the early morning hours of December 3, 1984, a poisonous grey cloud (forty tons of toxic gases) from Union Carbide India Limited (UCIL's) pesticide plant at Bhopal spread throughout the city. Water carrying catalytic material had entered Methyl Isocyanides (MIC) storage tank No What followed was a nightmare. The killer gas spread through the city, sending residents scurrying through the dark streets. No alarm ever sounded a warning and no evacuation plan was prepared. When victims arrived at hospitals breathless and blind, doctors did not know how to treat them, as UCIL had not provided emergency information. Around 10,000 people lost their lives. The catastrophe raised some serious ethical issues. The pesticide factory was built in the midst of densely populated settlements. UCIL chose to store and produce MIC, one of the most deadly chemicals (permitted exposure levels in USA and Britain are 0.02 parts per million), in an area where nearly 120,000 people lived. The MIC plant was not designed to handle a runaway reaction. When the uncontrolled reaction started, MIC was flowing through the scrubber (meant to neutralize MIC emissions) at more than 200 times its designed capacity. MIC in the tank was filled to 87% of its capacity while the maximum permissible was 50%.

11 MIC was not stored at zero degree centigrade as prescribed and the refrigeration and cooling systems had been shut down five months before the disaster, as part of UCC's global economy drive. Vital gauges and indicators in the MIC tank were defective. The flare tower meant to burn off MIC emissions was under repair at the time of the disaster and the scrubber contained no caustic soda. As part of UCC's drive to cut costs, the work force in the Bhopal factory was brought down by half from 1980 to This had serious consequences on safety and maintenance. The size of the work crew for the MIC plant was cut in half from twelve to six workers. The maintenance supervisor position had been eliminated and there was no maintenance supervisor. The period of safety-training to workers in the MIC plant was brought down from 6 months to 15 days. 10. Cross - Examination and Re - Examination The Indian Evidence Act is not strictly applicable to departmental inquiries, but its provisions have significant relevance, as examination/cross examination of witnesses in substance is materially for the same purpose both in a law court and in a departmental inquiry. It is therefore pertinent to study the provisions of the Act, with reference to examination witness. Provisions Covering Examination of Witnesses in The Court (Sections 137 to 140 of Indian Evidence Act) Examination-in-chief is the examination of a witness by the party who calls him Cross-examination is the examination of the witness by the adverse party. Re-examination is the examination of the witness subsequent to the cross-examination by the party who called him. The evidence of witnesses shall be taken in open Court in the presence and under the personal direction and superintendence of the Judge.

12 The examination of a witness by the party who calls him shall be called his Examination-in- Chief. It must relate to relevant facts. No leading questions can be asked. The object of this examination is to get from the witness all material facts within his knowledge relating to the party's case. It is the duty of the counsel to bring out clearly and in proper chronological order every relevant fact in support of his client's case to which the witness can depose. The statements made in examination-in-chief lose much credibility and weight unless they are put into the crucible of cross-examination and emerge unscathed from the rest. The examination of a witness by the adverse party shall be called his cross-examination. The purpose of the cross-examination is to test the veracity of the witness. No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination. The object of cross-examination is to impeach the accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts, which will support the case of the cross-examining party. Cross-examination, though a very powerful, is also a very dangerous engine. It is a double-edged weapon, and as often wounds him who wields it, as him at whom it is aimed. To wield it to advantage requires a great practice and natural tact. It should be keep in mind that the essence of cross-examination is, that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favorable to his cause, or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood. But if the adverse party has had liberty to crossexamine and has not chosen to exercise it, the case is then the same in effect as if he had crossexamined. When witness not to be Cross Examined: - i. A witness summoned merely to produce a document; ii. A witness sworn by mistake iii. A witness whose examination has been stopped by the judge before any material question has been put is not liable to cross-examination; iv. A witness giving replies in answer to questions by the Court can only be cross-examined as to credit;

13 v. A witness, who has given no evidence in chief, may not be cross-examined as to credit; vi. >The Court may disallow cross-examination used simply to oppress and not for the purpose of justice; vii. Witnesses to character, though liable to be, are in fact rarely cross-examined. Witnesses shall be first Examined-in-Chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his Examination-in-Chief. The re-examination shall be directed to the explanation of matters referred to in crossexamination; and, if new matters, by permission of the Court, introduced in re-examination, the adverse party may further cross-examination upon that matter. The right to re-examination a witness arises only after the conclusion of cross-examination and it shall be directed to the explanation of any part of his evidence given during cross-examination, which is capable of being construed unfavorably to his own side. The object is to give an opportunity to reconcile the discrepancies, if any, between the statements in examination-in-chief and cross-examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination. The examination of witnesses is viva voce. It is always in the form of questions and answers. Where a question is objected to and yet allowed by the Court to be put, the question and it answers are taken down verbatim. At the end of the deposition, it is read out to the witness and signed by the Presiding Officer. The procedure followed in departmental inquiries is almost identical. Here in the place of the judge, the Inquiry officer moderates on the examination/cross-examination of witness by both parties. It is also relevant to study what CVC has provided by way of guidelines, as it is an expert body in respect of conducting departmental inquiries.

14 Cross-Examination of Witnesses In departmental proceedings the rules of evidence laid down in the Evidence Act are, strictly speaking, not applicable and the Inquiry Officer, the Presenting Officer and the charged public servant are not expected to act like judges or lawyers. The right of the Government servant to cross-examine a witness who has given evidence against him in a departmental proceeding is, however, a safeguard implicit in the reasonable opportunity to be given to him under Article 311 (2). The scope or mode of cross-examination in relation to the departmental enquiries have not been clearly set out anywhere. But there is no other variety of cross-examination except that envisaged under the Evidence Act. It follows, therefore, that the cross-examination in departmental enquiries should, as far as possible, conform to the accepted principles of cross-examination under the Evidence Act. Cross-examination of a witness is the most efficacious method of discovering the truth and exposing false-hood. During the examination-in-chief the witness may say things favorable to the party on whose behalf he tenders evidence and may deliberately conceal facts which may constitute part of the opponent's case. The art of cross-examination lies in interrogating witness in a manner which would bring out the concealed truth. Usually considerable latitude is allowed in cross-examination. i. It is not limited to matters upon which the witness has already been examined-in-chief, but may extend to the whole case. ii. The Inquiry Officer may not ordinarily interfere with the discretion of the cross-examiner in putting questions to the witness. However, a witness summoned merely to produce a document or a witness whose examination has been stopped by the Inquiry Officer before any material question has been put is not liable to cross-examination iii. It is also not permissible to put a question on the assumption that a fact was already proved. iv. A question about any matter which the witness had no opportunity to know or on which he is not competent to speak may be disallowed.

15 v. The Inquiry Officer may also disallow question if the cross-examination is of inordinate length or oppressive or if a question is irrelevant. vi. It is the duty of the Inquiry Officer to see that the witness understands the question properly before giving an answer and of protecting him against any unfair treatment. Re-examination of witness After cross-examination of witness by or on behalf of the Government servant, the Presenting Officer will be entitled to re-examine the witness on any points on which he has been crossexamined but not on any new matter without the leave of the Inquiring Authority. If the Presenting Officer has been allowed to re-examine a witness on any new matter not already covered by the earlier examiner/cross-examination, cross-examination on such new matter covered by the re-examination, may be allowed. Record of evidence A typist will be deputed by the Inquiry Officer to type the depositions of the witnesses to the dictation of the Inquiry Officer. The depositions of each witness will be taken down on a separate sheet of paper at the head of which will be entered the number of the case, the name of the witness and sufficient information as to his age, parentage and calling, etc., to identify him. The depositions will generally be recorded as narration but on certain points it may be necessary to record the questions and answers in verbatim. As evidence of each witness is completed, the Inquiry Officer will read the depositions, as typed, to the witness in the presence of the Government servant and/or legal practitioner or the Government servant assisting the delinquent officer in his defence. Verbal mistakes in the typed depositions, if any, will be corrected in their presence. However, if the witness denies the correctness of any part of the record, the Inquiry Officer may, instead of correcting the evidence, record the objection of the witness. The Inquiry Officer will record and sign the following certificate at the end of the depositions of each witness:-"read over the witness in the presence of the charged officer and admitted correct/objection of witness recorded."

16 The witness will be asked to sign every page of the deposition. The charged officer, when he examines himself as the defence witness, should also be required to sign his depositions. If a witness refuses to sign the deposition, the Inquiry Officer will record this fact and append his signature. The documents exhibited and the depositions of witness will be kept in separate folders. If a witness deposes in a language other than English but the depositions are recorded in English, a translation in the language in which the witness deposed should be read to the witness by the Inquiry Officer. The Inquiry Officer will also record a certificate that the depositions were translated and explained to the witness in the language in which the witness deposed. Copies of the depositions will be made available at the close of the inquiry each day to the Presenting Officer as well as to the delinquent officer. How to Moderate Questioning by either Side while Examining/Cross-Examining Witnesses What if vulgar questions are asked, or questions impeaching the personal character of the witness, which are not relevant to the inquiry asked? The Indian Evidence Act, gives clear guidance. This section is covered in Chapters 5 and 6 of the Project Literature on Evidence Act, included as a subject in the Legal Supplement. A link is provided to the subject in Chapter-5. You may visit chapter-5 and peruse the contents to the extent desired and once you know the law, the implementation will be easier in a commonsense-backed departmental inquiry. Avoid the technicalities of the law, but accept the spirit thereof. Questions are intended to be asked to bring material facts and to establish the veracity or otherwise of witnesses. Though not directly applicable, The Indian Evidence Act under Sections 135 to 166 covers this topic. This part of the Act (also its last part) deals with the Examination of witness and covers - the manner in which a witness is to be examined by the party who calls him, What kind of question can be put to him? and What kind of questions cannot be put to him? and How the opposite party can test the veracity of deposition? and How his creditworthiness be impeached?

17 While the technicalities of the Act need not be brought in an inquiry conducted departmentally, those parallel provisions, which are relevant and appealing to the commonsense of the Inquiry Officer may be used as guidance material. Source: Summary: So far in this module we have learnt about how the evidence documentation is done. We have discussed about the expert opinion and its importance in the court of law. The importance of chemical examination of evidences We have also studied about the necessary details related to actual practice and witnessing how experts are generally asked to tender evidence in person and face cross examination.