What are the provisions for refreshing the memory of a witness? Give illustrations.

Question: What are the provisions for refreshing the memory of a witness? Give illustrations.

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Answer

Rule as to refreshing memory is given under Section 159 to section 161 of the Indian Evidence Act. Sections 159-161 deal with the extent to which and the mode in which a witness may refer to writing in order to refresh his memory while giving evidence.

Section 159 of the act specifically talks about the manner of Refreshing the Memory of the witnesses. Section 159 enables a witness to look at the following writings for the purpose of refreshing his memory:

1. writing made by him either at the time of the transaction (happening concerning which he is questioned) or so soon afterwards that the court considers that the transaction must have been still fresh in his mind when he was recording it;
2. any writing made by any other person about the transaction which was read by the witness within the time aforesaid and he knew it to be correct;
3. any professional treatises (books) where the witness is an experience

This section also lays down that ‘when a witness wants to refresh his memory by referring to any document he may, with the court’s permission refer to a copy of it. Provided the court be satisfied that there is sufficient reason for the non-production of the original’.

Although a witness should always state what he himself remembers he may nevertheless, when giving evidence, refresh his memory as t details. The reason for the rule of refreshing is that the witness should not suffer from a mistake and may explain an inconsistency. Any writing can be made use of for the purpose of refreshing the memory of a witness.

This includes: 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.

The grounds upon which the opposite party is permitted to inspect writing used to refresh the memory of a witness are threefold;

1. to secure the full benefit of the witness’s recollection as to the whole of the facts;
2. to check the use of improper documents; and
3. to compare his oral testimony with his written statement.

A witness was allowed to look at the dying declaration which was noted by him. A police officer may use his special diary for refreshing his memory [State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715].

A medical man was allowed to refresh his memory by referring to a report prepared by him in his post-mortem examination.

It is not necessary that the document or writing used for refreshing the memory should be relevant or admissible in evidence, but facts tried to be proved must be admissible under Section 159. A document that was not produced within die time permitted for its production and, therefore, rejected by the court, may be used for refreshing memory if it otherwise satisfies the spontaneity requirement of the section.

Even where Panchanama is not admissible in evidence, it may be used by a witness to refresh his memory where, after having been made by the police, it was read over to the punch who admitted it to be correct [Emperor v. Mahadeo Dewoo (1945) 47 Bom LR 992].

The section says a witness may refresh his memory as stated. He is not bound to do so, and the accused cannot compel him to do it. Nor the accused can prevent from doing so. In the case of R. v. Sutton (1992) Cr App Rep (CA) a person was charged with unlawfully possessing a controlled drug.

The witness for the prosecution did not give at the trial as detailed a statement as he gave to the police when he was initially interviewed in relation to the offence. He was invited to refresh his memory from the record of his interview. The accused objected.

The court said that there is no reason why a witness should not be allowed to supplement his testimony with certain essential details which are eluding him in oral testimony from his own earlier recorded statements. This is allowed in all cases where his testimony otherwise lays a proper foundation for his testimony.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X