Question: During trial of the criminal case against me, the Investigating Officer is being examined by court and his evidence is being recorded. What is seen is that the I.O. is not able to tell anything from his memory and at every stage he is being allowed to refer to the papers of his investigation records. Is it permissible under law? What then is the sanctity of his oral evidence in court, if he is free to refer to the case records as and when he wants? The Court said that he is allowed to refresh his memory. What is that and is it permissible?
Answer: Please note that Section 159 of the Evidence Act allows a witness to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned in court. In view of this the Investigating Officer of a criminal case can refer to his writings made during investigation. This section is reproduced below:
“159. Refreshing memory.—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.
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.
When witness may use copy of document to refresh memory.—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 the Court be satisfied that there is sufficient reason for the non-production of the original.
An expert may refresh his memory by reference to professional treatises.”
Moreover, Section 160 of the Evidence also allows such witness to testify to facts mentioned in any such document which he is allowed to refer to under Section 159, even though he has no specific recollection of those facts, provided that such witness is sure that the facts were correctly recorded in the document. This section is as under:
“160. Testimony to facts stated in document mentioned in Section 159.—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.
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.”
While these rights are given to a witness to refresh his memory as above, Section 161 of the Evidence Act gives a right to the adverse party to see such writing (which is used for refreshing memory under Sections 159 and 160), and such adverse party can also cross-examine such witness on the basis of such writing. Section 161 is as under:
“161. Right of adverse party as to writing used to refresh memory.—Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.”
In view of the above, if the Investigating Officer is referring to his investigation papers for refreshing his memory, you get right to see such investigation papers and you also a right to cross-examine the I.O. on the basis of such papers.
It is pertinent to point out that, in this regard, in the case of State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715 : AIR 2000 SC 185, the Supreme Court held as under:
“PW 15 (Sub-Inspector) was asked during the examination-in-chief about what happened on 30-1-1982, and he wanted to check up his records as he could not remember without refreshing his memory. But then the defence counsel seriously objected and wanted the Court to disallow him from looking into such records. It is not clear whether the said objection was upheld or whether PW 15 was allowed to check up with the records of investigation.”
“The trial court cannot overlook the reality that an investigating officer comes to the Court for giving evidence after conducting investigation in many other cases also in the meanwhile. Evidence-giving process should not bog down to memory tests of witnesses. An investigating officer must answer the questions in court, as far as possible, only with reference to what he had recorded during investigation. Such records are the contemporaneous entries made by him and hence for refreshing his memory it is always advisable that he looks into those records before answering any question.”
“Section 159 of the Evidence Act is couched in a language recognising the aforesaid necessity. … The objection of the defence counsel when the investigating officer wanted to reply by referring to the records of investigation is, therefore, untenable and unjustified. The trial court should repel such objections.”
Accordingly, there is nothing wrong if the trial court has permitted the investigating officer from the police department to refresh his memory by referring to his investigation records while recording his evidence. But, at the same time, you will also get a right to see such investigation papers and a right to cross-examine the I.O. on the basis of such papers.