Refreshing Memory

Source: Supreme Court

Why in News?

Recently, the bench of Justices MM Sundresh and S V N Bhatti held that the accused can 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.

• The aforesaid observation was made in the matter of Shailesh Kumar v. State of UP.

What was the Background of Shailesh Kumar v. State of UP Case?

• The case revolves around the tragic death of Gajendra Singh on 21^st June 1992, after being attacked by the appellant over a financial dispute.
  • Gajendra was assaulted with a knife by the appellant, resulting in fatal injuries to his chest and stomach.
• The initial medical treatment and subsequent transfer to another hospital, along with the delay in filing the First Information Report (FIR), raised questions about the investigation's integrity.
• Discrepancies in witness testimonies, manipulation of the case diary, and doubts regarding the motives behind the attack further complicated the trial.
  • Despite reliance on evidence like the recovery of the vehicle and post-mortem reports, the defense highlighted significant flaws in the investigation and witness accounts, advocating for the appellant's acquittal.
• The major contention regarding the case diary revolves around the absence of crucial details like time, date, and adequate particulars, indicating a deficient investigation.
• The appellant argued that the courts overlooked the significance of Section 172 of the Code of Criminal Procedure, 1872 (CrPC), along with refreshing of memory Sections 145, 161, and 165 of the IEA, which emphasize the importance of maintaining accurate records and conducting thorough investigations.

What were the Court’s Observations?

• The Supreme Court observed that when a police officer refers to a case diary to refresh memory, the accused is entitled to a right to peruse relevant portions under Section 145 or Section 161 of the IEA.
• Section 172(3) of CrPC explicitly mentions Sections 145 and 161, extending their benefits to the accused.
• Thus, the accused has the right to cross-examine the police officer regarding the case diary's contents used for memory refreshment.
  • Section 161, while not limited to diary perusal, allows it.
• Similarly, if the court uses the case diary to contradict the police officer, the accused may examine and cross-examine relevant statements.
  • This right aligns Sections 145, 161 of the Evidence Act, and Section 172(3) of CrPC.
• Court referred to Balakaram v. State of Uttarakhand (2017) where SC observed,
  • In case the police officer uses the entries in the diaries to refresh his memory or if the Court uses them for the purpose of contradicting such police officer, then the provisions of Sections 145 and 161, as the case may be, of the IEA would apply.
  • It can, therefore, be seen that, the right of the accused to cross-examine the police officer with reference to the entries in the police diary is very much limited in extent and even that limited scope arises only when the Court uses the entries to contradict the police officer or when the police officer uses it for refreshing his memory.

What are Provisions Related to Refreshing Memory under Law?

• Section 159 of IEA:
  • 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 162 of Bharatiya Skashya Adhiniyam, 2023 (BSA) covers this Section.
• Section 160 of IEA:
  • 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 in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.
  • Section 163 of BSA covers this Section.
• Section 161 of IEA:
  • 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.
  • Section 164 of BSA covers this Section.