Refreshing Memory under Sections 162 to 164 of the Bharatiya Sakshya Adhiniyam, 2023

Human memory is the weakest link in the law of evidence. A witness deposing years after the event cannot be expected to recall a registration number, a sequence of entries or the details of a medical examination, and a system insisting on unaided recollection would prefer a confident guess to an accurate record. Three sections permit a witness to consult a contemporaneous writing — and they distinguish, with some precision, between a witness whose memory is revived and one who has no memory at all.

1. Section 162 — Refreshing Memory

Section 162 corresponds to Section 159 of the Indian Evidence Act and is carried forward unchanged.

The section has four limbs and each governs a different situation.

2. Section 163 — Testimony Without Present Recollection

Section 163 corresponds to Section 160 of the Indian Evidence Act, and it deals with a situation different in kind from Section 162.

The distinction between the two sections is the most useful thing in this topic, and it is worth stating in the terms the common law uses.

Section 163 permits a witness with no memory whatever to give evidence. A clerk who made hundreds of identical entries cannot possibly recall any of them, and a rule confining him to unaided recollection would make the entries unprovable through him. What the section requires instead is that he be sure the facts were correctly recorded — which he can be, from his knowledge of his own practice, without recalling the particular transaction.

3. Section 164 — The Adverse Party's Right

Section 164 corresponds to Section 161 of the Indian Evidence Act, and it is the provision that makes the other two acceptable.

Refreshing memory is not a private exercise. A witness who consults a document in the box exposes it, and the adverse party may require it to be produced and shown to him and may cross-examine upon it. Three consequences follow and each is of real practical importance.

1. The document must be produced on demand. The right is unqualified and does not depend on the court's permission.
2. The adverse party may cross-examine upon it. He may question the witness about its making, its accuracy, its completeness, and anything in it — including matters the witness did not use.
3. A privileged or damaging document may thereby be opened up. A witness who refreshes his memory from a file exposes what is in the file to inspection, and the tactical cost may exceed the benefit.

4. Who Uses These Sections

Four classes of witness rely on them constantly, and the practice differs in each.

4.1 The investigating officer and the case diary

The commonest application in criminal trials. An investigating officer deposing about steps taken over months refreshes his memory from the case diary.

The case diary is separately governed. The provision of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponding to Section 172 of the Code of Criminal Procedure, 1973 provides that neither the accused nor his agents are entitled to call for the diaries, nor to see them merely because the court refers to them — but that if they are used by the police officer who made them to refresh his memory, or if the court uses them to contradict him, the provisions of Sections 162 and 148 of the Adhiniyam apply.

The consequence is direct. The diary is protected while it is merely on the court's file; the protection is lost the moment the officer consults it to refresh his memory, and the defence may then require it and cross-examine upon it under Section 164.

4.2 The medical witness

A doctor deposing about a post-mortem examination conducted long before refreshes his memory from his report. The report was made at or about the time, by himself, and is squarely within the first limb of Section 162. Where he has no recollection of the particular examination at all — which is common — he gives evidence under Section 163, being sure that his findings were correctly recorded.

4.3 The expert

The fourth limb of Section 162 permits an expert to refresh his memory by reference to professional treatises, and this is a wider facility than the section gives anybody else. It is not confined by the contemporaneity requirement, for the obvious reason that a treatise is not a record of the transaction at all.

The provision should be read with Section 45, which makes relevant the grounds on which an expert opinion is held, and with the general requirement that an expert furnish reasons and data rather than a bare conclusion.

4.4 The keeper of records

A bank officer, a clerk, a registrar or a storekeeper deposing to entries. He ordinarily has no recollection and proceeds under Section 163, vouching for the correctness of the record. The evidence operates alongside Section 28, which makes relevant entries in books of account regularly kept in the course of business, including those maintained in electronic form.

5. Refreshing Memory Distinguished

Three neighbouring situations are frequently confused with refreshing memory and are governed differently.

The second row of that table is the point. A document used to refresh memory is not evidence in the case and does not need to be proved. It is an aid to the witness, and what goes on the record is what he says. A party who wants the document in evidence must prove it in the ordinary way, and consulting it in the witness box does not achieve that.

The distinction from leading questions is also worth noting. Where a witness has forgotten, the instinct is to suggest the answer — which Section 146 forbids in examination-in-chief if objected to. Refreshing memory from a contemporaneous writing is the proper route and is cleaner than an application for leave to lead, because the witness's recollection is revived rather than supplied.

6. Objecting to the Use of a Document

Five grounds of objection arise, and they should be distinguished.

1. The document was not made at the right time. The first limb requires it to have been made at the time of the transaction or so soon afterwards that it was then fresh in memory.
2. It was made by somebody else and the conditions of the second limb are not met — the witness did not read it within the time, or did not know it to be correct when he read it.
3. It is a copy and no permission has been obtained, or no sufficient reason for the non-production of the original has been shown.
4. The witness is in substance being led rather than refreshing his memory — where the document is being read to him rather than consulted by him.
5. The witness cannot vouch for the record where Section 163 is relied upon, not being sure the facts were correctly recorded.

And where the document has been used, the adverse party should require its production under Section 164 as a matter of course. The right is unqualified, the material is frequently more informative than the passage relied upon, and a failure to ask forfeits the opportunity.

7. Practical Points

1. Establish when the document was made before the witness consults it, since that is where the objection lies.
2. Let the witness consult it himself; do not read it to him, which is leading in another form.
3. Where he has no recollection at all, proceed under Section 163 and have him state that he is sure the facts were correctly recorded.
4. Consider what else is in the document before using it, because Section 164 opens the whole of it.
5. Where a copy is used, apply for permission and establish the reason for the non-production of the original.
6. As the adverse party, always require production under Section 164 and cross-examine upon it.
7. With an investigating officer, note that consulting the case diary lifts its protection, and the defence may then see it.
8. Remember the document is not evidence. If you need it in evidence, prove it separately.

8. The Position Stated Shortly

1. Section 162 permits a witness to refresh his memory from a writing made by himself, or read and verified by him, at the time of the transaction or so soon afterwards that it was then fresh.
2. A copy may be used with the permission of the Court, on sufficient reason for the non-production of the original.
3. An expert may refresh his memory from professional treatises, a wider facility not confined by contemporaneity.
4. Section 163 permits testimony where there is no recollection at all, provided the witness is sure the facts were correctly recorded.
5. The distinction is between present recollection revived and past recollection recorded.
6. Section 164 gives the adverse party an unqualified right to require the writing and to cross-examine upon it.
7. A document used to refresh memory is not evidence in the case and need not be proved; the testimony is the evidence.
8. Consulting the case diary lifts its statutory protection, and Sections 162 and 148 then apply.

9. Related Topics and Provisions