Section 159 of the Indian Evidence Act, 1872

Section 159 of the Indian Evidence Act, 1872: A Scholarly Analysis of Refreshing Memory

Introduction

The Indian Evidence Act, 1872 (hereinafter "the Act"), provides a comprehensive framework governing the admissibility and relevance of evidence in judicial proceedings in India. Among its provisions, Section 159 plays a crucial role in the examination of witnesses by permitting them to refresh their memory. Human memory, being fallible, may not always recall events with perfect accuracy, especially after a lapse of time. Section 159 addresses this practical challenge by allowing a witness to refer to writings to aid their recollection, thereby facilitating the adduction of more accurate and complete testimony. This article undertakes a scholarly analysis of Section 159, exploring its statutory contours, judicial interpretations through landmark case law, and its practical application in the Indian legal system, drawing heavily from the provided reference materials.

The Statutory Framework: Section 159 Explained

Section 159 of the Indian Evidence Act, 1872, is designed to assist a witness in giving accurate testimony by allowing them to refer to certain documents. The Supreme Court in Standard Chartered Bank v. Andhra Bank Financial Services Limited And Others (2015 SCC OnLine SC 1048) quoted the section as follows:

“159. Refreshing memory.—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.

When witness may use copy of document to refresh memory.—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.”

Conditions for Refreshing Memory

The section lays down specific conditions under which a witness can refresh their memory:

  • Writing made by the witness: The witness can refer to a writing made by himself, either at the time of the transaction or so soon afterwards that the court considers the transaction was then fresh in his memory.
  • Writing made by another, read by the witness: The witness can also refer to a writing made by another person, provided it was read by the witness at the time of the transaction or soon afterwards, and the witness knew it to be correct when he read it (Emperor v. Mahadeo Dewoo And Others Accused, 1945 SCC OnLine Bom 98).
  • Contemporaneity: The core principle is that the writing must be contemporaneous or near-contemporaneous with the event to ensure reliability.

Use of Copies

Section 159 permits the use of a copy of the document to refresh memory, with the Court's permission, if sufficient reason for the non-production of the original is established. This was affirmed in cases like M. Manohar And Another v. T.R Mills And Others (Karnataka High Court, 1992, citing AIR 1969 Tripura 27) and Aswini Kumar v. Union Territory Of Tripura (Gauhati High Court, 1967), where refreshing memory using a certified copy was held permissible.

Expert Witness Proviso

The section includes a specific provision allowing an expert witness to refresh their memory by referring to professional treatises.

Judicial Precedents and Core Principles

The judiciary has, through various pronouncements, clarified and elaborated upon the principles underpinning Section 159.

The Imperative of Aiding Fallible Memory

The Supreme Court in Standard Chartered Bank v. Andhra Bank Financial Services Limited And Others (2015) acknowledged that "the Evidence Act recognises that human memory is fallible and after some time, it may become totally blank about a transaction of long ago." Section 159 (along with Section 160) is thus a statutory recognition of this human limitation and provides a mechanism to overcome it in the pursuit of truth. The Privy Council in Jewan Lal Daga And Another v. Nilmani Chaudhuri (1928 AIR PC 80) observed that "refusal to permit a man to refresh his memory by proper relevant contemporaneous documents might lead to a grave injustice."

Admissibility of the Refreshing Document: A Non-Requisite

A crucial principle, consistently upheld by courts, is that the document used to refresh memory under Section 159 need not itself be admissible in evidence. The testimony of the witness, after refreshing memory, is the substantive evidence, not the document itself. The Privy Council in Jewan Lal Daga v. Nilmani Chaudhuri (1928) upheld the trial court's decision to permit a plaintiff to refresh his memory from account books even though the books themselves were not allowed to be put into evidence due to delayed production. Similarly, in Emperor v. Mahadeo Dewoo (1945), the Bombay High Court explicitly stated, "The section does not require that the writing which is used to refresh his memory should itself be admissible in evidence." This principle was applied to a panchanama of identification. The Supreme Court in State Of Uttar Pradesh v. Singhara Sinh And Others (1964 AIR SC 358) permitted a Magistrate, who had recorded a confession but was not empowered to do so under Section 164 CrPC (making the recorded confession inadmissible as a document), to give oral evidence of the confession, using the improperly recorded document only to refresh his memory under Section 159 of the Act. The Karnataka High Court in M. Manohar And Another v. T.R Mills And Others (1992), relying on Emperor v. Mahadeo Dewoo, reiterated this principle. The Supreme Court in State Of Karnataka v. K. Yarappa Reddy (1999 SCC 8 715) also highlighted the witness's right to refer to records, reinforcing the practical application of Section 159.

Contemporaneity and Reliability of the Writing

The phrase "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" is central to Section 159. This requirement ensures that the writing is a reliable record of the witness's past recollection. The court exercises discretion in determining whether the "soon afterwards" condition is met, based on the facts and circumstances of each case.

Scope of Documents Permissible for Refreshing Memory

Judicial decisions illustrate that a wide variety of documents can be used for refreshing memory under Section 159, provided they meet the statutory criteria. Examples include:

  • Police Diaries/Case Diaries: In VILASH JALINDER PAKHARE v. THE STATE REP.BY (Madras High Court, 2024), the issue arose whether a witness (PW59) was referring to a prepared note or the Case Diary. The counsel argued that while referring to a Case Diary is permissible, using a "prepared note" might not align with the spirit of Section 159. This highlights the importance of the nature of the document and how it is used.
  • Injury Reports and Post-Mortem Reports: Doctors are frequently permitted to refresh their memory from injury reports or post-mortem reports they prepared contemporaneously (Saddiq And Others v. State, 1980 SCC OnLine All 614; Jagdeo Singh And Others… v. State…, Allahabad High Court, 1978, citing Teja Singh v. State, AIR 1951 Pepsu 1).
  • Memoranda of Discovery: Statements leading to discovery recorded under Section 27 of the Act, often in the form of memoranda, can be used by the attesting witness to refresh memory (Ramlal v. State of M.P., Madhya Pradesh High Court, 2004).
  • Panchnamas: As seen in Emperor v. Mahadeo Dewoo (1945), a panch witness can use a panchnama (e.g., of identification) to refresh memory, even if written by a police officer but read over and confirmed by the panch at the time.
  • Records of Statements/Confessions: Even if a recorded confession is inadmissible as a document (e.g., due to procedural irregularities), the person who recorded it may use it to refresh their memory while deposing about the statement (State Of Uttar Pradesh v. Singhara Sinh, 1964).
  • Business Records/Account Books: As affirmed in Jewan Lal Daga v. Nilmani Chaudhuri (1928).
  • Personal Notes/Records: The Supreme Court in State Of Karnataka v. K. Yarappa Reddy (1999) upheld the right of a witness (PW15) to refer to his records during examination, dismissing objections from the defense.

The Modalities of Refreshing Memory: Practice and Caution

The process of refreshing memory is not a mere mechanical reproduction of the contents of the document. The witness is expected to look at the writing to revive their memory and then testify based on this revived recollection. The concern raised in VILASH JALINDER PAKHARE v. THE STATE REP.BY (2024) regarding a witness potentially reading from a "prepared note" rather than genuinely refreshing memory from a contemporaneous record like a Case Diary underscores the need for courts to be vigilant. The objective is to aid memory, not to substitute the document for oral testimony. As noted in State Of Karnataka v. K. Yarappa Reddy (1999), the court emphasized that objections to a witness referring to records to refresh memory are generally unfounded, as this ensures accurate and reliable testimonies.

Interplay with Section 160 of the Evidence Act

Section 159 is closely related to Section 160 of the Act, which deals with "Testimony to facts stated in document mentioned in section 159." Section 160 allows a witness to testify to facts mentioned in any such document as is referred to 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 Supreme Court in Standard Chartered Bank v. Andhra Bank Financial Services Limited And Others (2015) referred to both Sections 159 and 160 in the context of fallible memory, indicating their complementary nature in ensuring that relevant facts are brought before the court.

It is also pertinent to note Section 161 of the Act, which grants the adverse party the right to inspect any writing used by a witness to refresh memory and to cross-examine the witness upon it. This provides a crucial safeguard against potential misuse of Section 159.

Conclusion

Section 159 of the Indian Evidence Act, 1872, serves as an indispensable tool in the administration of justice. It acknowledges the practical realities of human memory and provides a structured mechanism for witnesses to offer more accurate and reliable testimony. The judiciary, through consistent interpretation, has affirmed that the primary aim is to elicit truth, allowing reference to a wide array of contemporaneous documents even if such documents are not independently admissible. The provision, coupled with the safeguards available to the adverse party under Section 161, strikes a balance between facilitating complete testimony and ensuring fairness in the trial process. The careful application of Section 159 by the courts continues to be vital for the integrity of witness depositions and the overall pursuit of justice in India.

Key Reference Materials Discussed