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Opinion of third persons BSA| Expert opinion BSA| Bharatiya Sakshya Adhiniyam Bare Act

Updated: Feb 8

Section 39 BSA | Bharatiya Sakshya Adhiniyam, 2023


Opinions of third persons when relevant


(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, is a relevant fact.


Explanation.—For the purposes of this sub-section, an Examiner of Electronic Evidence shall be an expert.


Section 40 BSA | Bharatiya Sakshya Adhiniyam, 2023


Facts bearing upon opinions of experts.


Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.


Illustrations.


(a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.


(b) The question is, whether an obstruction to a harbour is caused by a certain sea-wall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time, is relevant.


Section 41 BSA | Bharatiya Sakshya Adhiniyam, 2023


Opinion as to handwriting and signature, when relevant.


(1) When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.


Explanation.—A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him.


Illustration.


The question is, whether a given letter is in the handwriting of A, a merchant in Itanagar. B is a merchant in Bengaluru, who has written letters addressed to A and received letters purporting to be written by him. C, is B's clerk whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted the letters purporting to be written by A for the purpose of advising him 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.


(2) When the Court has to form an opinion as to the electronic signature of any person, the opinion of the Certifying Authority which has issued the Electronic Signature Certificate is a relevant fact.


Section 42 BSA | Bharatiya Sakshya Adhiniyam, 2023


Opinion as to existence of general custom or right, when relevant.


When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant.


Explanation.—The expression "general custom or right" includes customs or rights common to any considerable class of persons.


Illustration.


The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.


Section 43 BSA | Bharatiya Sakshya Adhiniyam, 2023


Opinion as to usages, tenets, etc., when relevant.


When the Court has to form an opinion as to—

(i) the usages and tenets of any body of men or family;

(ii) the constitution and governance of any religious or charitable foundation; or

(iii) the meaning of words or terms used in particular districts or by particular classes of people,

the opinions of persons having special means of knowledge thereon, are relevant facts.


Section 44 BSA | Bharatiya Sakshya Adhiniyam, 2023


Opinion on relationship, when relevant.


When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:


Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act, 1869, or in prosecution under sections 82 and 84 of the Bharatiya Nyaya Sanhita, 2023.


Illustrations.


(a) The question is, whether A and B were married. The fact that they were usually

received and treated by their friends as husband and wife, is relevant.


(b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant.


Section 45 BSA | Bharatiya Sakshya Adhiniyam, 2023


Grounds of opinion, when relevant.


Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.


Illustration.


An expert may give an account of experiments performed by him for the purpose of forming his opinion.


Opinion of third persons BSA| Expert opinion BSA| Bharatiya Sakshya Adhiniyam Bare Act



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