Introduction

• Chapter X of Bhartiya Sakshya Adhiniyam, 2023 (BSA). states the provisions regarding examination of witness. 
• The main objective of the judicial system is to ensure justice regardless of any procedural limitations. 
• Refreshing memory is a concept which allows the witness to refresh his memory by referring to any writing or document made by him. 
• It helps to reach a better conclusion and corroboration of facts. 

Who is a Witness? 

About:

• A witness is a person who has personally seen an event happen. The event could be a crime or an accident or anything. Sections 124-139 of BSA talk about who can testify as a witness, how one can testify, what statements will be considered as testimony, and so on. 
• As per Section 124 of BSA a competent witness is one who has the capacity and ability to understand the questions put to him by the court. If he has the understanding of questions and the ability to give rational answers, then he is a competent witness. 
• Any person can be a witness. There’s no restriction as to who a witness can be. 
• A person, either male or female, a child or aged, can be a witness. The only restriction is that if a person does not understand the questions and is not able to answer rationally, then he is not a competent witness. 

Provisions for Refreshing Memory under BNS 

• Section 162: Refreshing Memory 
  • A witness can refresh their memory during examination by referring to writings made by themselves or others at the time of the transaction or shortly afterward. 
  • If a witness read another person's writing within that timeframe and knew it to be correct, they can also refer to it. 
  • The witness can use a copy of the document to refresh memory if permitted by the Court, provided there is a valid reason for not producing the original. 
  • Additionally, an expert witness can refresh their memory using professional treatises.
• Section 163: Testimony to Facts stated in Document Mentioned in Section 162 
  • Section 160 specifies 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 the facts themselves, if he is sure that the facts were correctly recorded in the document. 
  • For example, A book-keeper may testify to facts recorded by him in books regularly kept during business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.
• Section 164: Right of Adverse Party as to Writing used to Refresh Memory 
  • This section deals with the right of the adverse party to cross-examine a witness about the document used for refreshing memory. 
  • It allows the opposing party to question the witness about the contents of the document and to produce any other evidence to contradict the witness's testimony.

Landmark Judgements 

• Shailesh Kumar v. State of UP (2024): 
  • The Bench of Justices MM Sundresh and S V N Bhatti held that the accused could cross-examine a police officer of case diary if the police officer has used that case diary to refresh his memory under Indian Evidence Act, 1872.
• Meena Tuyekar v. State of Goa Thr the Public Prosecutor (2024): 
  • In this case the court held that nothing wrong in the witness refreshing his memory but ought to have been done before the Court and not outside the Court. 

Conclusion  

Refreshing memory is an important concept in the Criminal Justice system. It allows better understanding of the case and genuine examination of the witness. It is the right of a witness as well as of the adverse party. The process must be conducted under strict judicial supervision, with both prosecution and defense counsel present, maintaining the integrity of testimony while protecting witness rights.