Section 159 of the Indian Evidence Act, 1872

The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.

When witness may use copy of document to refresh memory:

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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.

Comments:

Meaning of “Refreshing memory”:

“When a witness’s statement is offered as the basis of an evidential reference to the truth of his statement, it is plain that at least three distinct elements are present, or put it another way, these three processes, in the absence of any one of which we cannot conceive of testimony. First, the witness must know something; to this element may be given the generic term ‘observation.’ Secondly, the witness must have a recollection of these impressions, the result of this observation this must be termed ‘recollection.’ Thirdly, he must communicate this recollection to the tribunal, that is, there must be communication, or narration or relation.”—WIGMORE.

Ordinary meaning of refreshing memory means the opportunity is given to the witness to recollect event.

Principle:

Section 159 lays down that when a witness is examined in the witness- box he may be given opportunity to refresh his memory by referring to any writing or document. To permit a witness to refresh his memory is another way of rolling him to corroborate his testimony. For refreshing memory it is always advisable that he looks into records before answering the question.

What can be used for refreshing memory?

Section 159 enables a witness that he may refresh memory during examination by referring to the following documents:

1. Any writing made by himself at the time of transaction concerning which he is questioned or soon afterwards that the court considers it likely that transaction was fresh in his memory;

2. Any such writing made by any other person and read by witness within the time aforesaid;

3. Professional treatise, if the witness is an expert.

According to section there are two kinds of recollection of memory, viz.,

(a) Present recollection, and (b) past recollection. Section 159 deals with present recollection whereas Section 160 refers to past recollection.

In order to avail the opportunity of the section for purpose of refreshing memory it has to be proved that:

(i) The writing must have been made by the witness himself at the time of transaction or soon afterwards that the facts were fresh in his memory. A witness can refresh memory regarding the facts stated by him if the writing was made either at the time of the transaction or shortly after the transaction. The contents of panchanama can be used by the witness for refreshing his memory under section 159 and can be used to corroborate the version of the person prepamig the panchanama. Records made by officers are contemporaneous entries and, therefore, they are always available for refreshing memory. It is also advisable to look at such records before answering questions.

(ii) If the writing was made by someone else, it must have been read by the witness, he will be permitted to refer any such writing within proper time enabling him to know it to be correct. “A document not produced in court within proper time and in consequence, rejected, may be referred to, to refresh memory if it comes within the preview of this section.”

(iii) The expert witnesses are permitted to refresh memory by consulting professional books. An investigating officer was allowed to refresh his memory by looking at the contemporaneous records made by him. An objection to check records or entries by him is not legal and liable to be rejected.