Section 161 of the Indian Evidence Act, 1872

Comments:

Section 161 lays down that if a witness is given opportunity to use any writing for refreshing memory under sections 159 and 160 of this Act, the adverse party also must have right of inspecting the same document. The document must be produced in the court and must be shown to the adverse party. The adverse party has also right to cross-examine the witness under the section. “The right must be exercised at that very moment because it may not continue throughout the period for which the witness remains under examination”—FIELD.

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This section gives opportunity to the adverse party the right of inspection and cross-examination only with regard to document used under sections 159 and 160. The right to inspection by the opposite party are: (i) to secure full benefit of recollection of the witness as to the whole of the facts, (ii) to prevent improper use of documents and (iii) to compare the oral testimony with the written statement. The defence council cannot be permitted to cross-examine the police officer regarding entries in the case diary unless the police officer uses it to refresh his memory.