Refreshing of memory by a Witness
Ordinarily a witness deposes to facts from the recollection but memory fades and it is therefore very necessary that he should be allowed to assist his memory by looking at documents containing an account of them if there be any. This is known as refreshing memory. A reference to the written memoranda has the effect of reviving in his mind a recollection of the facts recorded therein. He is allowed to refresh his memory because a witness should not suffer from a mistake, and may explain an inconsistency. (Halliday v. Holgate, 17 LT 18)
Under Article 155 a witness may refresh his memory by referring to any writing made by him if he actually recollects the circumstances to which he is deposing by reference to that writing. He can, with the help of writing swear to the facts. Even where the writing brings to the mind of the witness neither any recollection of the facts mentioned in it or recollection of the writing itself but his mind on seeing a writing which he knows to be genuine, the witness may refresh his memory by referring to the writing. Thus where a witness has to depose to a large number of transactions and those transactions are referred to or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him in his examination. He cannot be expected to remember every transaction in all its detail and Art. 156 specifically permits a witness to testify the facts mentioned in the documents referred to in Art. 155 although he has no recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. Therefore, where an approver was allowed to refresh his memory while giving evidence, by referring extensively to the account books and documents produced in the case, the procedure adopted was held to be neither in violation of law nor an abuse of the powers of court.
Conditions for the Applicability of Article
Two conditions must be satisfied before a witness may be allowed to refresh his memory.
- The writing must have been made by the witness himself contemporaneously with the transaction to which he testifies or so soon afterwards that the facts were fresh in his memory.
- If the writing is made by someone else, it must have been read by the witness within the aforesaid time and known by him to be correct, i.e. he must have read it when the facts were fresh in his memory and recognised its accuracy.
Time of preparation of Document
It is plain that no precise time limit is possible. The law does not require that the writing must have been made the moment the transaction took place. If it is not possible to make it contemporaneously with the transaction, it must be made so soon afterwards, that it may be reasonably inferred that the facts were fresh in the mind. Whether the interval between the two, is such as to justify the presumption that memory became impaired, is a matter depending on the circumstances of each case and the retentive faculty of each witness.
Refreshing memory by inadmissible document
Documents which are independently inadmissible may be used under this section for refreshing memory, and such use does not make it part of evidence in the case.
Statement given to police officer u/s. 161 CrPC
A witness cannot be allowed to refresh his memory by referring to his earlier statement given to the police u/s. 161 CrPC.
It is the doctor’s statement in court, and not his post mortem report, which is substantive evidence, and the report can only be used by the doctor under Article. 155 for refreshing his memory.
Testimony to facts stated in document mentioned in Article 155
Law facilitates a witness testifying facts without specific recollection, if he is sure that the facts deposed were correctly recorded by him in the document. A witness may refresh his memory by a document even though he has no specific recollection of the facts themselves; but he must be sure that the facts were correctly recorded in the document. If the witness had not correctly recorded the words used by speaker but only his impression, then the notes made by him would be inadmissible to prove the words used.
A witness proposing to prove something spoken by another can merely refer to a document and say that it contains a correct statement of what happened in his presence, but in such a case he must depose that he is unable to state from memory as to what happened owing to lapse of time and that he correctly recorded in the document what he had witnessed.
Difference between Article 155 and 156
Under Article 155 a witness may refresh his memory by looking at the document and giving his evidence in the ordinary way. The document is not itself evidence nor is it tendered. But under Article 156 his memory is not refreshed and although he has no specific recollection, he guarantees that the paper contains a true record of facts.
Right of adverse party as to writing used to refresh memory
Article 157 provides that “any writing referred to under the provisions of the two last proceeding Articles must be produced and shown to the adverse party if he requires it, such party may, if he pleases, cross-examines the witness thereon.
This Article deals with the adverse party right as to production, inspection and cross-examination when a document is used to refresh a witness’s memory. This Article says that the writings which are used under Articles 155 and 156 for the purpose of refreshing the memory of a witness must be produced for inspection and shown to the adverse party he requires it. The rules applies to both an original or its copy. The adverse party also has the right to cross-examine the witness thereon.
In Re Jhubbo Mahton, 8 C 739 FIELD J observed “the opposite party may look at the writing to see what kind of writing it is, in order to check the use of improper documents; but I doubt whether he is entitled, except for this particular purpose, to question the witness as to other and independent matters contained in the same series of writings. As the Article refers to “any writing” and does not appear to impose any restriction, it is conceived that the adverse party may, inspect and cross examine on the document generally. But the court in the exercise of its discretion may and should restrict the inspection and cross examination to mattes relevant to the issue or to so much as is necessary for understanding the facts testified to.
Time When Inspection may be claimed
The opposite party has a right to look at any particular writing, before or at the moment when the witness uses it to refresh his memory in order to answer a particular question, but if neglects to exercise his rights, he cannot continue to retain the right throughout the whole of the subsequent examination of the witness. Any such claim will not be entertained at a later stage.
Right of inspection and cross examination
The grounds upon which the opposite party is permitted to inspect a writing used to refresh the memory of a witness are
- to secure the full benefit of the witness’s recollection as to the facts,
- To check the use of improper documents
- To compare his oral testimony within his written statement.
It is always usual and very reasonable, when a witness speaks from memoranda, that the counsel should have an opportunity of looking at those memoranda, when he is cross examining the witness.
The inspection is necessary as a protection against the imposition, and cross examination further enables the opponent to discover circumstances indicating that the document is not genuine. In Tibbets vs. Sterbery, MULLIN J, said, “if a witness cannot be compelled to produce it, he might use documents made for him by the party calling him, or the accuracy of which he knows nothing… the right of a party to protection against the false, forged or manufactured evidence, which is not permitted to inspect, must not be invaded a hair’s breadth”.