Report No. 69
Evidence with Reference to Past Memoranda
We have, in our discussion of section 159, drawn attention to the two kinds of use of previous memoranda. First, there is the process of refreshing one's memory which is dealt with in section 159, and secondly there is the use of a past memorandum even where there is no present recollection of the facts recorded in the memorandum. The distinction between the two has been already discussed. It is now time to deal in detail with the section relating to the second situation, which reads as follows:-
"160. 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 the facts themselves, if he is sure that the facts were correctly recorded in the document."
The illustration takes the familiar case of a book-keeper. A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.
91.2. Witness when permitted to look to books.-
According to Markby1, section 160 deals with a case of the following kinds.
"A, a grocer, sues B for the price of goods sold some time previously, in small quantities, on a great many different occasions in fact, on an ordinary running account. The shopman is called, who says that, though he knows B to be a customer, he has no recollection of the particular transactions, but they are all contained in a book which he holds in his hand. The book is not admissible in evidence, but if the conditions as to the writing and so forth of the entries in the book as stated in section 159 be satisfied, then under section 160 the witness may look at the book, and if he is prepared to state upon oath that the entries are correct, he may read them out of the book."2
1. Markby Evidence, p. 111, cited in Field.
2. State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850 (1868).
91.3. Substitution of memory under section 160.-
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 details, and section 160 specifically permits a witness to testify to the facts mentioned in the documents referred to in section 159 although he has no recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
Although this section refers to section 159, the situations were quite different, as already pointed out. The memory of a witness under section 160 is not revived at all. Having no specific recollection of the facts, he can only testify to the effect that he recorded correctly the events.
91.4. Whether document is evidence.-
Considerable discussion seems to have taken place in some of the judicial decisions as to whether the document referred to under section 160 itself becomes evidence. High Courts have discussed the matter inconclusively.1-4 There is also a view that the document used in section 160 will not itself become evidence. The point is of not much practical importance for the purpose of the law of evidence, because whatever view is taken, the document must be produced and shown to the opposite party, if he requires it.5
If the document is to be effectively utilised, witness will have to read out and dictate every word. Section 159 deals with the case in which the witness really refreshes his memory. "He is sure not only that the facts were correctly recorded, but of the facts themselves, and (is) prepared to swear that they existed and this explains why in section 159, reference to a copy is allowed, but not in section 160."6
1. AIR 1932 Lah 7 (8).
2. Jagan Nath v. R., AIR 1943 Mad 542 (543). 3 R. v. Venkataran, ILR 32 Mad 384.
4. AIR 1938 Rang 42 (43).
5 Section 161.
6. Markby Evidence, p. 112, cited by Field.
91.5. Witness to refresh memory when asked by Court.-
In Harkhu v. Emperor, AIR 1921 All 86 (Piggott & Walsh, JJ.), a Sub-Inspector of Police was unable to remember the precise nature of the injuries on the persons of the accused when they were brought before him. When asked to consult any memorandum on the point he might have made at the time of his investigation, he refused to do so. It was held that if a witness suffers from a lapse of memory, which can be remedied by reference to any memorandum prepared by him at the time and the Court invites him to refresh his memory with reference to the writing, the witness is under an obvious obligation to do so, this being part of the duty under which is lies to lay the whole truth before the Court to the best of his ability.
A similar view was taken in Mohiuddin Khan v. Emperor, AIR 1924 Pat 829 (Adam, J.), where it was held that the Court in such circumstances should require a witness to refresh his memory. On the other hand, there are two earlier cases, both of the Calcutta High Court1-2 in both of which it was held that witness was not bound to refresh his memory.
In our view, having regard to the word "may" which is used in section 160, it is not reasonable to read into the section any obligation on the part of the witness to refresh his memory. It is true that a witness takes an oath to tell the whole truth. But it is to be borne in mind that his oath does not require him to enrich his recollection or to improve his information or knowledge or capacity to narrate the past before the court. While a witness ought to be encouraged to assist the court in its search for truth, that does not mean that one can read into section 160 an obligation which is not contained there in express words.
1. Empress v. Kalicharan, 1881 ILR 8 Cal 154, (Prinsep & Wilson, JJ.).
2. Empress v. Jhabboo Mahton, 1881 ILR 8 Cal 759. (McDonnell & Field, JJ.).
91.6. Whether party bound to put in evidence.-
There is an old general rule1 inadequately explored in the modern authorities, that, if a party calls for and inspects a document held by the other party he is bound to put it in evidence if required to do so.2 But, "where a document is used to refresh a witness's memory, cross-examining counsel may inspect that document in order to check it, without making it evidence. Moreover, he may cross-examine upon it without making it evidence provided that his cross-examination does not go further than the parts which are used for refreshing the memory of the witness."3
If, therefore, a witness refreshes his memory concerning a date or an address by referring to a diary, he may be cross-examined about the form or terms of the entries used to refresh his memory without there being any question of the right of the party calling him to insist that the diary should become evidence in the case. On the other hand, if the witness is cross-examined about other parts of the diary the party calling him may insist on its being treated as evidence in the case.4
We may note that section 160 uses the expression "document"-an expression which, according to our recommendation, would be substituted in section 159 also.
No further comments are necessary as to section 160.
1. Cross Evidence, (1974), p. 206.
2. Warshaw v. Routledes, (1805) 5 Egp 233; Calvert v. Flower, (1836) 7 C&P 386; Palmer v. Meslear and M' Grath, (1858) 1 Sw & Tr 159; Stroud v. Stroud, (1963) 3 All ER 859.
3. Serest v. Senat, 1965 Probate 172 (177): (1965) 2 All ER 505 (512).
4. Cross Evidence, (1974), p. 207.