Report No. 185

Section 159

This Section deals with 'Refreshing Memory'. It reads as follows:

"159. 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 is 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 the time aforesaid, if when he read it he knew it to be correct.

The witness may use copy of document to refresh memor.- 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."

(In Ceylon, paras 1, 2, 3 and 5 have been numbered as sub-Sections (1), (2), (3) and (4) respectively).

The word 'writing' has been held to include printed matter (Ram Ch v. R: AIR 1930 Lah. 371). In order that the document or memorandum allowed to be looked at for the purpose of refreshing memory, may be reliable, certain conditions have been laid down in Section 15.- (1) 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, or (2) if the writing is made by some one 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 recognized its .

Section 159 has reference to 'present recollection' and Section 160 to 'past recollection'. Section 160 says that a witness may also testify to facts mentioned in any such document as is mentioned in Section 159, although he has no specific recollection of facts themselves, if he is sure that the facts were correctly recorded in the document.

Sarkar quotes (15th Ed., 1999, p 2293-94) Green Leaf Section 439(a) on past and present recollection as follows:

"There are two sorts of recollection which are properly available for a witnes.- post recollection and present recollection. In the latter and usual sort (present) the witness has either a sufficient clear recollection or can summon it and make it distinct and actual if he can stimulate and refresh it, and the chief question is as to the propriety of certain means of stimulating i.- in particular, of using written or printed notes, memoranda, or other things as representing it.

In the former sort (past) the witness is totally lacking in present recollection and cannot revive it by stimulation, but there was a time when he did have a sufficient recollection and when it was recorded, so that he can adopt this record of his then existing recollection and use it as sufficiently representing the extent of his knowledge on the subject."

Para 40.6 of the 69th Report says that under Section 159, the document is resorted to in order 'to revive a faded memory' and the witness swears to his actual recollection of the facts which the document evokes. In the sub- Section under Section 160, there is no reference to memory not revived.

It is also the English law that so far as present recollection is concerned, the document must be 'contemporaneous'.

There is a long list of admissible documents based on case law (para 90.8). A solicitor may refer to his diary, or an ordinary witness may refer to a newspaper report read by him when the facts were fresh in his mind. An 510 official shorthand writer may refer to his notes at trial, even though copies of these may be privileged from production to a non-party who has sub-ponoed him. A workman's time book may be used to refresh the memory of the cashier, who read in every fortnight, when paying wages in accordance therewith, etc.

A document inadmissible for want of stamp or registration can also be allowed to be read. This is so in England. In Jiwanlal v. Neelmani, AIR 1928 PC 80 it was held that a document rejected by reason of a rule of procedure Order 13 Rule 2 of the Code of Civil Procedure, 190.- can still be used under Section 159. In Jhaku Mahton, ILR 8 Cal 793, it was held that a witness cannot be compelled to refresh his memory.

The 69th Report refers (see para 90.13) to a case from British Columbia R v. Pitt (1968) 68 DLR (2d) 513 (Canada) where the wife of the accused who was accused of murdering her husband was, at the instance of her counsel, allowed to be hypnotized and give evidence from memor.- refreshed by a hypnotic trance. The evidence was used.

In para 90.14, a suggestion for mild restructuring the Section was made (para 90.14), and also to include printed matter as excluded in 'writing' or use the word 'document' instead. It can also be a photograph. As regards experts, it may be useful to allow reference to periodical literature which may not otherwise fall within 'treatises'.

We shall refer to a few cases. A writing can be used by the witness to refresh his memory regarding the facts deposed by him if the writing be made either at the time of the transaction or shortly after the transaction, namely, the occurrence (Indira Mohan Brahma v. State of Assam, 1982 Crl LJ NOC, 127 (Gaur)).

A document not included among the documents produced with the plaint may be used (Ramji v. Ramgayya 1 MHC R 168) (one 07 v 18(2)). It cannot be rejected because it was not in the last (case of horoscope) under Order 7 v 14 (Banwari v. Mahesh, AIR 1918 PC 118). Account books not produced in time were not admitted in evidence but court may, under Section 159, allow a witness to refresh his memory by reference to such account books (Jewan Lal v. Nilmani, AIR 1928 PC 80). A horoscope can be used to help in proving the date of birth stated in i.- under Section 159 or 160 (Savitri Bai v. Sitaram, AIR 1986 MP 218).

The principles as to refreshing memory have also been recently referred in R v. Da Silva, 1990 (1) All ER 29 (CA) and it was observed that a witness can refresh his memory, even after he started the evidence.

A statement otherwise falling under Section 162 CrPC would not become admissible because it can be brought under Section 158 or 159 (Bhondu v. R, AIR 1949 All 364. A memorandum of facts prepared after the occurrence, by a witness and handed over to the investigating officer is a statement under Section 162 CrPC and cannot be used under Section 159 (Supdt. & Rem v. Sahiruddin, AIR 1946 Cal 483.

In Simion v. State of Kerala, 1996 CrLJ 3368 (Ker) it was held that a witness cannot be allowed to refresh his memory by referring to his earlier statement given to the police under Section 161 CrPC. On this aspect, we do not propose to make any provision for permitting such statements to be included because of the general principles applicable to criminal law. In England (see para 11.50 of Phipson 1999, 15th Ed) witnesses are allowed to look into their prior statement out of Court:

"It is not usual practice for witnesses to see before trial the statements they made. This was recognized in a Home Office Circular in 1969, issued with the approval of Lord Parker CJ and the judges of the Queen's Bench Division. The practice was approved in R v. Richardson (referred to in circular 82/1969) although obviously it would be wrong if several witnesses were handed statements in circumstances which enabled one to compare with another what each said (R v. Skinner, (1994) 99 Cr Ap Rep 212).

It has been said that if prosecution witnesses are allowed to see their statement out of court, it is desirable but not essential that the defence should be informed, (Worley v. Bentley (1976) 62 Cr Ap R 239) but the practice is now so usual that the defence will assume that they are likely to have seen them. If a witness has made a statement, it is permissible to show him a video recording of the events he describes and for him to make a further statement correcting any errors he wishes: (1990) 90 Cr Ap R 233; R v. Cheng (1976) 63 Cr ap Rep 20 (CA)."

We agree (see para 90.15 of 69th Report) that Section 159 be revised as follows:

"159. Refreshing memory.- (1) A witness may, while under examination, refresh his memory by referrin.-

(a) to any document made by the witness himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory;

(b) to any such document made by any other person, and read or seen by the witness within the time aforesaid, if, when he read or saw it, he knew it to be correct;

(c) to a copy of such document, with the permission of the Court, provided the Court is satisfied that there is sufficient reason for the non-production of the original.

(2) An expert may refresh his memory by reference to professional treatises or articles published in professional journals."