Refreshing Memory

We 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.

Section 159

That is why Section 159 of the Evidence Act 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

event taking place regarding which he has been questioned, or a while later as
long as the Court considers it to be fresh in his memory.

The witness can also refer to someone else’s notes prepared within the
aforementioned time frame, and decide whether it is correct or not.

The 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.

The word ‘writing’ for the sake of this section includes printed matter. 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.

Refreshing Memory and Rule of Refreshing memory, Can a witness refresh his
memory by referring to notes ?
This question is answered in Section 159 to 161 of Indian Evidence Act 1872
which are as follows...

   Section 159 to 161 of the Indian Evidence Act, lay down the provisions
relating to "Refreshing memory"
   
   According to Section 159 of Indian Evidence Act , A witness may, while
under examination refresh his memory by referring to any writing made by
himself at the time of the transaction concerning which he questioned, or so
soon afterwards that the Court considers it likely that the transaction was at
that time fresh in his memory. The witness may also refer to any such writing
made by any other person and read by the witness within time aforesaid, if
when he read it he knew it to be correct When witness may use copy of
document to refresh his memory - Whenever a witness may refresh his
memory by reference to any document, he may, with the permission of the
Court, refer to a copy of such document. 
         Provided the Court be satisfied that there is sufficient reason for the
non-production of the original. An expert may refresh his memory by reference
to professional treatises. 

      Section 160 provides for testimony to facts stated in document as

mentioned in Section 159. Section 161 deals with "Right of adverse party as to
writing used to refresh memory" 

Section 161 runs... "Any writing referred to under the provisions of the two last
preceding Sections must be produced and shown to the adverse party if he
requires it; such party may, if he pleases, cross-examine the witness
thereupon."

Rule of Refreshing Memory  

  
                 Section 159 to Section 161 of the Indian Evidence Act, provide for
certain rules to enable the witnesses to refresh their memory as follows : 

1) The witness is permitted to refer his own writing at the time of the
transaction. The Court does not prescribe any precise time. It may allow even
few weeks, for the purpose. (Section 159). 

2) The witness is also permitted to refer the writing made by others. He must
read the writing within a prescribed time (Section 159). 
3) The Court permits the witness to refer a copy of the document to refresh his
memory. The witness must prove it as a true copy of the original (Section 159). 

4) An expert may refresh his memory by reference to professional Treaties. 

5) The witness need not have specific recollection of the facts (Section 160). 

6) The adverse party has a right to inspect the writing and to cross examine the
witness (Section 16).

Relevant Case law : 

  State of Andhra Pradesh V. CheemaLapati Ganeshwara Rao AIR 1963 SC

1850: (1963) 2 CRI LJ 671. 

       In this case the accused were charged with offenses of conspiracy,
criminal breach of Trust, falsification of accounts, etc. The approver gave
evidence and refreshed his memory by referring to account books maintained
by him and the absence of entries in certain books was also relied upon against
the accused. The supreme court held :
                    "Section 159 expressly enables a witness while under examination
to refresh his memory by referring to any writing made by himself at the time
of transaction concerning which he is being questioned or soon afterwards, or
to a writing made similarly by another person and read by the witness
immediately or or soon after the writing is made. Section 160 provides that the
witness may also testify to the facts mentioned in any such document as is
mentioned in Section 159.... Where a witness has to depose to a large number
of transactions and those transactions are referred to or are mentioned in
either in the account books or in other documents there is nothing wrong in
allowing the witness to refer to the book and documents while answering the
question put to him in his examination. He cannot be expected to remember
every transaction in all its details and Section 160 specifically permits a witness
to testify to the fact mentioned in the documents referred to in section 159
although he has no recollection of the facts themselves, if she is sure that the
facts were correctly recorded in the document. Therefore, it is not correct to
contend that the approver should have been allowed to refer to the account to
books only when he was in a difficulty and not generally"

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.