evidence ch 5(evidence)new

7/28/2019 Evidence Ch 5(Evidence)New

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CHAPTER 5OPINIONS OF THIRD PERSONS WHEN RELEVANT

Content5.1 Opinions of Experts 2

5.1.1 Handwriting Expert 6

5.1.2 Opinions of Arms Expert 75.1.3 Opinions of Finger print Expert 7

5.1.4 Opinions of Medical Officers 8

5.1.5 Report of Chemical Examiner 16

5.1.6 Foreign Law 17

5.2 Persons acquainted with handwriting 18

Key Terms 25

Assignment Questions 26

Short Questions 26


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CHAPTER 5 ()

OPINIONS OF THIRD PERSONS WHEN RELEVANT

5.1 Opinions of Experts() ()

In criminal trial an opinion of a common witness relating to the matter of

facts in criminal proceeding is not admissible in evidence. The oral evidence of an

witness must be direct, that is to say if it refers to a fact which could be heard, it

must be the evidence of witness who saw it, if it refers to a fact which could be

heard , it must be the evidence of a witness says he heard it . Therefore the opinion

of an ordinary witness is irrelevant in a criminal proceeding.

Under section (45) of evidence Act, when the court has to form an opinion

upon a point of foreign law, or of science, or art, or as to identity of hand writing or

finger impressions, the opinion upon that point of persons specially skilled in such


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foreign law, science or art, or in question as to identity of handwriting or finger

impressions are relevant facts.

()

Such person is called experts. An "expert" witness is one who had devoted

time and study to a special branch of learning and thus is especially skilled on that

point on which he is asked to state his opinion. His evidence on such points is

admissible to enable the tribunal come to a satisfactory conclusion. All persons

who practice a business or profession which requires them to possess ascertain

knowledge of the matter in hand are experts, so far as expertness is required.

Experis


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Illustrations (i)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 when A is

supposed to have died are relevant.

()

(ii) The question is whether A at the time of doing a certain act was by

of reason of unsound of mind incapable of knowing the nature of act or that

he was doing what was either wrong or contrary to law. The opinion 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 or acts which they do, or of

knowing that what they do is either wrong or contrary to law, are relevant.

()


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(iii)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 different person, are relevant.

()

Under section (46) of Evidence Act, facts, not otherwise relevant, are

relevant if they support or are inconsistent with the opinions of experts, when such

opinions are relevant.

()

For example: -

The question is, whether A was poisoned by a certain poison. The fact that

other persons, were poisoned by that poison, exhibited certain symptoms which

experts affirm or deny being the symptoms of that poison is relevant.


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5.1.1 Handwriting Expert

The opinion of handwriting expert is relevant and admissible in evidence

under section (45) of Evidence Act. The opinions of hand writing experts on the

question whether the two documents were written by the same person or by

different persons, are relevant and admissible in evidence. ()

The evidence value of the handwriting expert is as follows: - In the case of

"Tin Shwe V. the Union of Myanmar",1 It was held "comparison of hand writing

with a view to discover the identity of writer, regarded as a science, is much less

developed than the comparison of fingerprint as a reliable form of identification

of a person the same can hardly be said of handwriting. The correct approach is to

regard the opinion of handwriting experts as strong corroboration generally.*

1 1954, B. L .R. 358* -- ()


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5.1.2 Opinions of Arms Expert Opinions of arms expert are opinions on scientific question. Therefore,

opinions of an arms expert are relevant and admissible in evidence under section

(45) of Evidence Act.

()

5.1.3 Opinions of Fingerprint ExpertThe reason as well as opinion given by a fingerprint expert as to the identity

of a palm impression is admissible in evidence. The evidence given by a

fingerprint expert need not necessarily be corroborate but the court must satisfy

itself as to the value of the evidence of expert in the same way as it must satisfy of

the value of other evidence.


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-()

5.1.4 Opinions of Medical Officers Offences affection human body life, such as culpable homicide, murder, hurt

and grievous hurt cause a breach of the peace of human society. In order to decide

such kind of cased the court need medical certificates or Opinions of medical

officers.


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In criminal trials, medical reports, medical certificates and an opinion of

medical officers attached to the proceeding of the case fits, as evidence. Such kinds

of evidence are evidences of opinions of expert under section (45) of Evidence

Act.

-()

Evidence of opinions of medical officer is of two kinds such as-

-

(1) documentary evidence and

()

(2) oral evidence

()

Documentary Evidence

Oral Evidence


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1. Document Evidence() Document evidence can be classified as follows;

(i) Medical Certificate () (ii) Medico-legal reports and () (iii) Dying declaration. ()

Medical Certificate Medical certificate shows the physical condition of a person, the nature of a

disease whether temporary or permanent the effect of disease or of physical

injuries upon the body or mind. Death certificate is also included. Such kind of

medical certificates are ordinary certificates. Such medical certificates are issued

by medical officers resisted under Medical Council Act. Such certificates are not

admissible in evidence.

Medical Certificate

Medicolegal Reports Dying Declaration


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Medico-Legal Reports

These are the formal reports of an examination made by a medical man

under a warrant from a Magistrate or authorized police officer in case of assault,

murder, etc.

These reports should always be prepared with the utmost care.

The first part of the report should gave

(1) Date place of examination and name of the witness.

(2) External examination

(3) Internal examination in fatal case.


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(4) Reasoned Opinion giving the inference drawn.

(5) Signature of reporter

Second part of medico-legal report has the opinion of medical officer theopinion based on the facts noted should be stated briefly and clearly and given with

the utmost caution. For the apparent or alleged cause of injury or death is not

always the real one. It is a common practice to hang up the dead body of person

who has been murdered so as to create a suspicion of suicide. Both of the above

classes of documents require to be sworn to orally as true by the person who drew

them up, in the accepted without oral evidence in Court.


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(iii)Dying Declaration () 2. Oral Evidence()

The medical officer gives oral evidence in court before he produces

document. The evidence must is all case be direct i.e. if it refers to a fact which

could be seen, heard, or perceived in any other manner, it must be the evidence of a

witness who says he saw, he heard or so perceived it. So oral evidence must be

direct, according to the section (60) of Evidence Act.

-() Under Section (509) of Criminal Procedure Code, the deposition of a civil

surgeon or other Medical Witness, taken and attested by a Magistrate in the

presence of the accused or taken on commission, may be given in evidence in any

inquiry trial or other proceeding under this code, although the deponent is not

called as witness. The Court may it think fit summon and examine such deponent

as to the subject-matter of his deposition.

()


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(-)

(-)

()

()


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() ()

() ()


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5.1.5 Report of Chemical Examiner Under section (510) Criminal Procedure Code: "Any document purporting to

be a report under the aid of any chemical examiner or assistant chemical examine

to Government. Upon any matter or thing duty summited to him for examination or

analysis and report in the course any proceeding under this code, may be used as

evidence is any inquiry trial or other proceeding under this code". Chemical report

does not require being sworn to orally as true by the who drew them up. Under

section (45) chemical examiner is a person who especially skilled science.

Therefore an opinion of chemical examiner is admissible in evidence.

()


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()

The report of chemical examiner is essential in some case, send up for trial.

Narcotic drugs and Psychotropic substance law, section (15), (16), (19), (20) and

section (376) the Penal Code.

- -

5.1.6 Foreign Law Under Section (45) of "Evidence Act, the statement by a person who

specially skilled in foreign law is admissible in evidence. Foreign law is law which

is not in force in Union of Myanmar. The Shiah law on marriage is now in force in

India. The Shiah law cannot be called as foreign law in India. The statement of a

person who special skilled in the Shiah Law in India cannot be admitted in

evidence under Section (45). The foreign law may be proved by the evidence of

person especially skilled in it. Also the foreign law may be proved by direct

reference to books printed or publish under the authority of the foreign

Government. It is the duty of Courts.


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()

()

5.2 Persons acquainted with handwriting

Just as the opinion of experts admissible in evidence opinions of persons

mention in section (47.to 51) in Evidence Act are admissible.

() ()

When the Court has to form an opinion to the handwriting of any person the

opinion of person acquainted with handwriting of such person is admissible in

Shiah Law


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evidence under section (47) of Evidence Act. A person is said to be acquainted

with the handwriting of another person.

()

-

(1) when he had seen that person write, or,()

(2) when he had received document purporting to be written by that person in

answer to document written by himself or under his authority and addressed to

that person, or

()

(3) when the ordinary course of business, documents purporting to be written by

that person have been habitually sumitted to him.

()

()

Illustration The question is, whether a given letter is in the hand writing of A, a

merchant in London. B is a marchant in Yangon who has written letters addressed

to A and received letters purporting to be written by him.


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C is Bs clerk whose duty it was to examine and file Bs correspondence, D

is Bs broker whom B habitually submitted the letters purporting to be written by A

for the purpose of advising with his thereon.

The opinions of B, C and D on the question whether the letter is in the handwriting

of A are relevant though neither B, C nor D ever saw A write.

So an opinion of a person acquainted with such handwriting is admissible in

evidence. A person acquainted with handwriting can be given his opinion

handwriting expert. A handwriting expert specially skilled in knowledge of

handwriting can give his opinion though he never has seen that person write. A

person acquainted with handwriting can give his opinions because he has seen that

person write or when he has received document purporting written by that person.


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Under Section (48) of Evidence Act, opinions of person who are in a

position to know the existence of a general custom or right in their locality are

admissible.

()

Explanation The expression general custom or right includes customs or rights

common to any considerable class of person.

IllustrationThe question is, whether a well can be used common to all class of person or

not. Under this section, the question is concerned with general custom or right.

Under Section (49) of Evidence Act, the opinions of person who have

special means of knowledge as to (a) usages (b) tenets, of anybody or men or


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family (c) constitution of any religious foundation, (d) meaning of words or terms

used in a district, are admissible in evidence."

()

Under section (50) of Evidence Act, - when the Court has to form an opinion

as to the usages and tents of any body of men or family, the opinions of persons

having special means of knowledge thereon are relevant facts. Such opinion shall

not be sufficient to prove a marriage in proceeding under the Divorce Act or in

prosecutions under section (494), (495,497) or (498) of the Penal Code.

() () () ()

-()

Illustrations (1) The question is whether Maung Phyu and Ma Ni were married.


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The fact that they were usually received and treated by their friends as husband and

wife is relevant.

()

(2) The question is whether Maung Phyu was the legitimate son of U Nyo. The

fact that Maung Phyu was always treated as such by members of the family is

relevant.

()

Under Section (51) of Evidence Act, whenever the opinion of any living

person is relevant, the ground on which such opinion is based is also relevant.

()

Studying the facts which had shown above as a whole, though the opinion of

expert is admissible in evidence, but that is not an only basis to prove. To decide a

case, the opinion of expert must be corroborated with the evidence of eyed-

witness. The opinion of expert and the evidence of eyed-witness must be depended

on each other. Just as the opinion of expert, the opinion of a person acquainted

with handwriting and a person having special means of knowledge can be regarded

as an evidence to decide the case.


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Key TermsHand writing expert

Finger print

Symptoms

Temporary

Permanent

Assault

Fatal case

Perceived Attested Copy

Deponent

Sworn

Corroboration

Footprint

Culpable homicide

Medical certificate

Dying declaration


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Assignment Questions1. Explain the followings:

(a) Hand writing expert.(b) Fingerprint expert.(c) Medicial officer.

2. Is the opinion of fingerprint expert admissible as an evidence, if he madea statement before Court that the fingerprint on a dagger which was

found where the offence was occurred and the fingerprint of Maung

Maung just exactly alike by compared the two fingerprint? Answer with

reference.

3. How do you prove if the letter of threatening and demanding for somemoney from U Ba to U Mya the handwriting expert cannot given his

opinions that the handwriting in the letter is not same as U Bas

handwriting?

Short Questions1. Write short notes

(a) Handwriting expert(b) Fingerprint expert(c)

Doctor

2. How many kinds of opinions of Medical Officer are there? Discuss thedocument evidence.

3. Describe the medical certificate.


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4. Explain the foreign law.5. Discuss the medico-legal reports.6. What is the report of chemical examiner?

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