​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
Refreshing Memory of a Witness (Section 162)

Case Scenario
During a trial, a witness is questioned about events that took place several years ago. He appears unsure about specific dates and details. To answer accurately, he requests permission from the court to look at his diary entries made at the time of the incident. The court must decide whether the witness can lawfully refresh his memory using those writings and under what conditions.
This situation is governed by Section 162 of the Bharatiya Sakshya Adhiniyam, 2023.


Section 162 – Refreshing Memory
Statutory Rule Explained in Simple English
Section 162 permits a witness, while under examination, to refresh his memory by referring to certain writings.
Section 162(1): Refreshing Memory from Writings
A witness may refresh his memory by referring to:

• Any writing made by him:
  • At the time of the transaction, or
  • So soon thereafter that the court considers the facts were still fresh in his memory

Provided that:

• The witness may also refer to a writing made by another person,
• If the witness read it within the same time period, and
• At the time of reading, he knew it to be correct

Section 162(2): Refreshing Memory by Reference to Copies and Treatises

• A witness may, with the permission of the court, refer to a copy of a document
• The court must be satisfied that:
  • There is a sufficient and reasonable reason for non-production of the original

Special Rule for Experts

• An expert witness may refresh memory by referring to:
  • Professional treatises
  • Works of authority in the field

Scope of Section 162

• Normally, a witness testifies from personal recollection
• Human memory is imperfect and fades over time
• Section 162 recognizes this limitation and allows:
  • Written aids to assist recollection
  • Accurate and complete testimony

Important point:

• The document itself need not be admissible as evidence
• The facts sought to be proved must be admissible

Example:

• An insufficiently stamped promissory note may still be used to refresh memory

Rules Regarding Refreshing Memory (Note Form)
A witness may refresh memory using writings falling under the following categories:
(i) Own Writing

• Writing made by the witness himself
• Made:
  • At the time of the transaction, or
  • Soon after, when facts were fresh in memory

(ii) Third-Party Documents

• Writing made by another person
• Conditions:
  • Witness must have read it soon after the transaction
  • At the time of reading, he knew it to be correct

Meaning of “Writing”

• Includes printed matter
• Example:
  • A witness to a speech may refresh memory using a newspaper report,
  • If he read it soon afterwards and knew it was accurate

(iii) Professional Treatises

• Applicable to expert witnesses
• Experts may refresh memory using:
  • Standard textbooks
  • Professional works regarded as authoritative

(iv) Copies of Documents (Secondary Evidence)

• A witness may refer to a copy of a document:
  • Only with court’s permission
• Court must be satisfied that:
  • Original document cannot be produced for valid reasons

If no sufficient reason exists:

• The original document must be produced

Documents That May Be Used for Refreshing Memory
Section 162 does not restrict the type of documents. Any document fulfilling statutory conditions may be used, such as:

• Account books
• Private notebooks
• Diaries
• Registers
• Horoscopes

Documents Not Permissible for Refreshing Memory
Due to restrictions under Section 181 of BNSS:

• Statements recorded during police investigation (e.g., Section 180 BNSS)
• Case diaries

However:

• Statements recorded under Section 183 BNSS may be used for refreshing memory

Purpose of Section 162

• To secure full benefit of witness’s recollection
• To reduce errors caused by lapse of memory
• To assist the court in arriving at the truth
• To balance human fallibility with judicial accuracy

Critical Analysis
Strengths

1. Recognizes natural weakness of human memory
2. Ensures accurate and complete testimony
3. Aids truth-finding process
4. Allows flexibility in evidence handling
5. Supports expert testimony

Limitations

1. Risk of tutoring if not carefully monitored
2. Heavy reliance on judicial discretion
3. Potential misuse of unauthenticated documents

10 Illustrative Case Scenarios

1. Witness refers to diary entries
2. Accountant refreshes memory from ledger
3. Expert doctor refers to medical textbook
4. Witness uses copy due to lost original
5. Newspaper used to recall speech
6. Private notebook used in testimony
7. Court refuses copy for lack of justification
8. Police statement disallowed for refreshing memory
9. Business records used to aid recollection
10. Fair trial ensured through controlled use

Conclusion
Section 162 of the Bharatiya Sakshya Adhiniyam, 2023 provides a practical and realistic mechanism for refreshing the memory of witnesses. By allowing reference to writings, copies, and professional treatises—subject to judicial control—the section ensures that evidence reflects truth rather than the limitations of human memory.
At the same time, safeguards against misuse preserve fairness and integrity in judicial proceedings, making Section 162 a vital component of modern evidence law.