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Rule as to Refreshing Memory

We the humans sometimes tend to forget things and it is extremely important to keep remembering the entirety of the facts if we have been called as a witness. Someone’s life could be at the line and our statements may help the Court serve justice to someone. A witness may be under a lot of pressure and due to all the stress he might need to refresh his memory. Sections 159-161 deal with the extent to which and the mode in which a witness may refer to a writing in order to refresh his memory while giving evidence.

Refreshing Memory

Section 159 of the Indian Evidence Act, 1872 speaks about, “Refreshing memory”. This section says that a witness can refresh his memory while under examination. He may do so by referring to any writing made by himself at the time of the transaction taking place regarding which he has been questioned, or so soon afterwards as long as the Court considers it to be fresh in his memory. The witness can also refer to any such writing made by any other within the aforementioned time frame, and decide whether it is correct or not. This section further says that the witness may use a copy or photocopy of a document with the permission of the Court in order to refresh his memory. For example: - Memorandum kept by the witness of some transactions through the accounts were not on a regular basis kept, were permitted to be used for refreshing memory; Witness can refresh his memory from Reports, Diaries, Certificates, Account books. Dying declaration, Notes of a speech, Panchnamas, Deposition, Notes of a Police Officer, Notes of a brief of a Barrister, and, even a Horoscope.

Writing: - The word ‘writing’ has been defined in the General Clauses Act as ‘Aspect referring to ‘writing’ shall be made as including references to printing, lithography, photography and other modes of representing or multiplying words in a visible form’ from this, it is clear that if the status of Section 159 are satisfied a witness can refresh his memory by writing, photography, lithography, printing or other modes of representing or multiplying words in a visible from. It is to be noted that a witness who heard a speech may refer to his memory by referring to a newspaper account of it if he read it soon afterwards, and if, at the time he read it, he knew it to be correct. However, the tape-recording, not being a writing cannot be used for reviewing memory by witness.

At the time of transaction or soon afterwards: - Before a witness is permitted to review his memory from any writing made by him, the demands of Section 159, Evidence Act should be followed with. It must be shown that the writing was made by the testifier at the time of the transaction or so soon after that the Court regards it likely that the transaction was at the time good in his memory. A doctor, when he comes into the witness-box was given a slide of paper by a pleader. After looking at the slide the doctor deposed that he examined the complainant and found injuries on his person. He did not depose as to what the slide of paper was when it was made. It was held that the proof was not admissible. A witness can review memory about the facts stated by him if the writing was made either at the time of the transaction or presently after the transaction.

Writing made by other: - A writing made by another person may be used for reviewing his memory by a witness if he read it soon after the preparation of writing and when he read it he knew it to be correct. From this, it cannot be deduced that the witness can review his memory by any writing made by a third person. In order that the writing of a third person may be used for reviewing his memory, the witness must have the first hand knowledge of the facts decreased in writing. It is essential that the document should be prepared in the presence of the witness. If the document be prepared by another person and in the absence of the witness then it is necessary that the witness should have read it soon after the transaction and knew it to be correct.

This section does not require that the writing which is used to review the memory of a witness should itself be admissible in evidence. While a Panchnama was written by a police officer during an investigation, if it was directly read to the Panches and admitted by them to be correct, then Panches witness could review his memory by reading it. A statement recorded in writing by a police officer in the course of an investigation cannot be used in proof yet the police officer might use to review his memory.

Testimony to facts stated in documents mentioned in Sec 159

Section 160 of the Indian Evidence Act, 1872 speaks about, “Testimony to facts stated in document mentioned in Section 159”. Unlike Section 159 which deals with cases where a reference to the writing revives in the mind of the witness a recollection of the facts. But it may be that even a perusal of a document does not refresh his memory i.e. it does not revive in his mind a recollection of facts. In Section 160, it is not necessary that the witness looking at the written instrument should have an independent or specific recollection of the matters stated therein. He may testify to the facts referred to in it, if he recognizes the writing or signature and feels sure that the contents of the document were correctly recorded’.

The difference between the Section 159 & 160 is that under Section 159, the document is not in itself evidence nor is it tendered. But under Section 160, the document itself is tendered and is evidence.

Right of adverse party as to writing used to refresh memory

Section 161 of the Indian Evidence Act, 1872 speaks about, “Right of adverse party as to writing used to refresh memory”. This section says that any writing or document mentioned in Section 159 & 160 must be produced and provided to the opposite party if they require it. The opposite party may cross-examine the witness over the document if the need be. When a document is produced under Section 161, it becomes subject to a general inspection and cross-examination by the opposite party. But the cross-examination on the portion referred to by the witness does not make the document evidence against the cross-examiner.

About the Author

  • Adv. Abhishek Gupta (Natraj Legal Solutions)
  • Delhi High Court
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