Code: Section 162 BSA
(1) 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:
Provided that 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.
(2) 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 that the Court be satisfied that there is sufficient reason for the
non-production of the original:
Provided further that an expert may refresh his memory by reference to professional
treatises.
Explanation of Section 162 BSA
Section 162 of the Bharatiya Sakshya Adhiniyam addresses the concept of “refreshing memory” by a witness during court proceedings. This section provides the legal framework allowing a witness, while under examination, to refer to written material in order to recall events more accurately.
Key takeaways from this provision:
- A witness may refer to a document they personally wrote at the time of the event or shortly after, provided the court believes the memory would still be fresh.
- A witness may also refer to writings made by someone else, if the witness read it during that time and knew it to be accurate.
- With the court’s permission, a witness can refer to a copy of a document if the original is unavailable for valid reasons.
- An expert witness may refresh their memory using professional literature or treatises.
This section ensures that memory lapses do not unfairly affect the accuracy of a witness’s testimony, especially in complex or delayed legal proceedings.
Illustration
Example 1: Recalling a Transaction
A bank employee is testifying about a financial transaction that occurred eight months ago. During the examination, they refer to a note they wrote in their ledger at the time of the transaction. The court permits this under Section 162 as it helps the witness accurately recall the details.
Example 2: Referring to Another’s Notes
An investigator reads a field report prepared by a colleague shortly after a crime scene investigation. Since the investigator read the report shortly after the event and knew it to be accurate, they may use it to refresh their memory while testifying.
Example 3: Use by Experts
A forensic expert may refer to a medical journal or diagnostic manual while giving expert testimony in a complicated criminal case. Section 162 permits this if it helps the expert recall technical details.
Common Questions and Answers on Section 162 BSA
- When can a witness refer to written documents in court?
- A witness may do so while under examination if the document was made at the time of the event or shortly after, provided the court is satisfied the memory was likely fresh then.
- Can a witness refer to a document made by someone else?
- Yes, if the witness read it soon after the event and knew it to be accurate at that time.
- Can a witness use a copy of a document instead of the original?
- Yes, with the court’s permission, and only if there is a valid reason for not producing the original.
- Are expert witnesses treated differently under this section?
- Yes. Experts may refresh their memory by referring to professional treatises or specialized publications without the need for the material to have been prepared during the transaction time.
- What if the witness’s refreshed memory contradicts earlier statements?
- The opposing party may cross-examine the witness or introduce evidence to challenge or clarify the refreshed testimony, maintaining fairness in the trial.
Conclusion
Section 162 of the Bharatiya Sakshya Adhiniyam plays an important role in ensuring that witnesses can provide accurate and complete testimony. By allowing them to refer to contemporary records or relevant documents, the provision protects against the natural decay of memory over time. This is particularly valuable in cases involving complex transactions or events that occurred long ago. It also upholds procedural fairness by giving courts discretion to determine when and how such documents may be used.
For more in-depth explanations of the Bharatiya Sakshya Adhiniyam or other criminal law provisions, visit ApniLaw’s legal database.
