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"