Refreshing memory, production of documents and improper admission or rejection of evidence

1. Refreshing memory: section 162

Section 162(1) (old s.159): a witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction about which he is questioned, or so soon afterwards that the Court considers it likely the transaction was then fresh in his memory. The proviso allows him also to refer to a writing made by another person and read by him within that time, if he knew it to be correct when he read it.

• The writing need not be admissible itself. It is used only to revive memory; the evidence is what the witness then says.
• Section 162(2): with the Court’s permission the witness may refer to a copy, if the Court is satisfied there is sufficient reason for not producing the original.
• An expert may refresh his memory by reference to professional treatises (second proviso).
• Typical uses: a police officer referring to his case diary or seizure memo, a doctor to his post-mortem notes, a clerk to his entries. (Under section 192 BNSS, old s.172 CrPC, the investigating officer may use his case diary to refresh memory, and the accused may then see and use those entries.)

2. Testimony to facts in the document: section 163

Section 163 (old s.160): a witness may also testify to facts mentioned in such a document even though he has no specific recollection of the facts themselves, if he is sure the facts were correctly recorded. Illustration: a book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows the books were correctly kept, though he has forgotten the particular transactions. Section 162 revives memory; section 163 covers the case where memory cannot be revived but the record is trusted.

3. Right of the adverse party: section 164

Section 164 (old s.161): any writing used under sections 162 and 163 must be produced and shown to the adverse party if he requires it, and he may cross-examine the witness on it. This is the safeguard against a witness reading out a prepared script.

4. Production of documents: section 165

Section 165(1) (old s.162): a witness summoned to produce a document must, if it is in his possession or power, bring it to Court, notwithstanding any objection to its production or admissibility. The validity of the objection is decided by the Court. Under section 165(2) the Court may inspect the document, unless it refers to matters of State, or take other evidence to decide admissibility. Under section 165(3) it may have the document translated and direct the translator to keep its contents secret; disobedience is an offence under section 198 BNS. The final proviso bars any Court from requiring production of communications between the Ministers and the President of India (compare Article 74(2) of the Constitution). Section 165 is the procedural partner of the privileges in sections 129 to 136.

5. Notice to produce: sections 166 and 167

• Section 166 (old s.163): when a party calls for a document he has given the other party notice to produce, and it is produced and he inspects it, he is bound to give it as evidence if the producing party requires him to. A party cannot inspect his opponent’s papers and then keep them out because they turn out to be unhelpful.
• Section 167 (old s.164): when a party refuses to produce a document after notice, he cannot afterwards use it as evidence without the other party’s consent or the Court’s order. Illustration: A sues B on an agreement and gives notice to produce it; B refuses; A gives secondary evidence; B cannot then produce the original to contradict the secondary evidence or to show it is unstamped.

Notice to produce is also the foundation for secondary evidence where the original is in the opponent’s possession (Unit III), and failure to produce invites the presumption in illustration (g) to section 119.

6. Improper admission and rejection of evidence: section 169

Section 169 (old s.167): the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision, if the Court before which the objection is raised finds that

• independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision; or
• if the rejected evidence had been received, it ought not to have varied the decision.

The appellate court therefore excludes the wrongly admitted evidence, or adds the wrongly rejected evidence, and asks whether the result would have been the same. If yes, the decision stands; if no, it may order a retrial or decide afresh. The section applies to civil and criminal cases alike. In criminal appeals it works alongside section 511 BNSS (old s.465 CrPC), under which a finding is not reversed for an error or irregularity unless it has in fact occasioned a failure of justice; in civil appeals, alongside section 99 CPC and Order XLI.

When objections must be taken. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, 2003 INSC 532, (2003) 8 SCC 752, the Court divided objections into two kinds. An objection that the document is inadmissible in itself can be raised at any stage, even in appeal, because consent cannot make inadmissible evidence admissible. An objection to the mode of proof (for instance, that a photocopy was marked without foundation for secondary evidence) must be raised when the document is tendered; if the party lets it be marked without objection, he cannot raise it later, because the other side lost the chance to prove it properly.

7. Problem

A is convicted of theft on the evidence of three eyewitnesses, the recovery of the stolen watch from his house, and a confession made to a police inspector. On appeal it is argued that the confession was inadmissible. Should the conviction be set aside?

Issue. Effect of improper admission of the confession.

Law. Section 23(1) BSA (confession to a police officer not to be proved, Unit II); section 169 BSA; section 511 BNSS.

Application. The confession to the inspector was inadmissible and must be excluded. But section 169 asks whether the remaining evidence justifies the decision. Three eyewitnesses and the recovery of the stolen watch, if believed, prove the theft independently of the confession. The error did not cause a failure of justice.

Conclusion. The appellate court excludes the confession and, if it finds the eyewitnesses reliable, upholds the conviction. If the case had rested mainly on the confession, the conviction would be set aside.

How this is examined

Improper admission and rejection of evidence is named at the end of the Unit V syllabus and is set as a short note; write section 169, the two tests, its link with section 511 BNSS, and Venkatachala Gounder. Refreshing memory is a regular short note: give sections 162 to 164 and the book-keeper illustration. Production of documents fits into answers on privilege (section 165 and the Ministers-President bar).