During a trial process, a witness might struggle to recollect certain details about the events they are testifying about. In such situations,the law permits them to refresh their memory using documents. Sections 162 and 163 of the Bharatiya Sakshya Adhiniyam,2023 (BSA) explain how a witness can refresh their memory and provide testimony based on written records.
What is Refreshing Memory?
Witness testimony plays a significant role in legal proceedings, and to be an effective witness, one must accurately remember and communicate facts.Section 162 and 163 of the Bharatiya Sakshya Adhiniyam,2023 (BSA) address the concept of Refreshing a Witness’s Memory to ensure the accuracy and correctness of their testimony. This process involves-
- Present recollection (Section 162 of BSA)
- Past recollection (Section 163 of BSA)
Section 162 of BSA : Present Recollection
– A witness can either vividly recall the fact they need to state or refresh their memory by a written document.
The Witness’s Own Writing :- Section 162 of BSA permits a witness under examination, to refresh their memory by indicating to a document they have made at the time of the event or shortly thereafter. This makes sure that the event was fresh in their memory.
Third-party Documents :-Even documents prepared by others are acceptable for refreshing a memory if the witness read them soon after their creation and knew them to be correct.
Copy of Documents :– Witnesses can also refresh their memory by looking at a copy of a document, with the court’s authorisation,if the original document cannot be produced. Experts can also depend on professional treatises.
Documents used for Refreshing Memory
Broad Range of Documents :-Section 162 of BSA does not state the type of documents that can be used for refreshing a memory. Any document meeting the conditions of this particular section can serve this purpose,like it also includes account books, private notebooks, horoscopes, and more.
Exclusion of Certain Statements:-Statements made at the time of investigations and reduced to writing, like those under Section 180 of the Criminal Procedure Code (CrPC) or case diaries, are not permissible for refreshing memory due to Section 181 of the CrPC.
Section 163 of BSA : Past Recollection
Recollecting Past Events :- When the witness cannot presently recall the observed fact but had a enough recollection at an earlier time when it was recorded accurately.
Testifying from Recorded Facts :- Witnesses can testify to facts referred in documents in Section 162 of BSA, provided they believe the contents of the document were correctly recorded. For example, a bookkeeper can testify about transactions recorded in business books if they are certain of the authenticity of the record, even if they have forgotten specific transactions.
Key Components
Using Written Records: A witness can refer to a document they created during or shortly after the event for refreshing their memory while being examined in court.If the document was made by some other person but read by the witness at the time, and the witness knew it to be correct, they can use that as well.
Permission to Use Copies: If the original document is unattainable for a valid reason, the court may permit the witness to use a copy, provided the court is satisfied with the explanation for the original’s absence.
Experts: Professionals like experts can refresh their memory by referring to specialized texts or treatises relating to their field.
Exceptions
The witness must have either made the document themselves or have read and verified it shortly after the event.
Copies of the document can only be used with the permission of the court and if a valid explanation is given for the absence of the original.
Experts have additional freedom in using professional texts for refreshing their memory.
Examples
Refreshing Memory: A witness in a business dispute refers to an invoice they have made immediately after a sale to remember details of the transaction. This is allowed as it was made when the memory was fresh.
Testifying Based on Documents: A bookkeeper, who no longer remembers transactions, testifies based on records they made in the accounting books. If they believe the books were properly kept, they can testify to those facts.
Why is This Important?
Permitting witnesses to refresh their memory makes sure that the court gets accurate and authentic information. It stops testimony based solely on faulty or incomplete recollections, especially when essential details might otherwise be forgotten.
Sections 162 and 163 of the Bharatiya Sakshya Adhiniyam,2023 ( BSA) serve as invaluable tools in the legal system to help witnesses remember and give accurate testimony. Section 162 of BSA allows witnesses to refer to documents, whether self-created or from others, for refreshing their memory while testifying in court. These sections make sure that witnesses can offer more authentic,precise and reliable evidence, ultimately contributing to the pursuit of truth and justice within the Indian legal framework. However, it is imperative to uphold transparency and follow the procedural guidelines showcased in the Act to ensure the just, fair and proper use of this mechanism in the courtroom.
Source:
India Code
Legal Glossary-witness ( The LawGist )
