The notes or writing a witness reads from become evidence themselves.

Courts have clarified that the writing is only a memory aid; the witness's spoken testimony after reading it is what counts as evidence.

A witness can use any document, written any time, to refresh memory.

The writing must have been made at the time of the event or soon after, while it was still fresh in the witness's memory, or read by the witness around that time and known to be correct.

A witness can freely substitute a copy for the original document without asking the court.

A copy can only be used with the court's permission, and only if the court is satisfied there's a valid reason the original isn't available.

Bharatiya Sakshya Adhiniyam, 2023

Section 162

Refreshing memory

(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.§

Why this exists

Human memory fades, especially in court cases that are heard months or years after the events they describe. This provision recognizes that people commonly write things down to record facts accurately, and that it is fairer and more accurate to let a witness consult a contemporaneous note than to force them to testify purely from unaided recollection. It traces back to Section 159 of the old Indian Evidence Act, 1872, and the Bharatiya Sakshya Adhiniyam largely carries forward the same principle, ensuring reliable testimony without turning the private notes themselves into automatic evidence.

How courts read it

Under the predecessor provision in the Evidence Act, 1872, courts consistently held that the writing used to refresh memory is not itself evidence of the facts it contains — it is only an aid to the witness's memory. The actual evidence is the witness's oral testimony given after consulting the writing. Courts have allowed police officers to refresh memory from case diaries or investigation notes, and doctors from contemporaneous medical records, so long as the writing was made at or near the time of the event. Courts have also emphasized that the opposing party is entitled to see the writing and cross-examine the witness on it, linking this provision closely to the following one on cross-examination regarding such writings.

Common misconceptions

Myth: The notes or writing a witness reads from become evidence themselves.
Fact: Courts have clarified that the writing is only a memory aid; the witness's spoken testimony after reading it is what counts as evidence.
Myth: A witness can use any document, written any time, to refresh memory.
Fact: The writing must have been made at the time of the event or soon after, while it was still fresh in the witness's memory, or read by the witness around that time and known to be correct.
Myth: A witness can freely substitute a copy for the original document without asking the court.
Fact: A copy can only be used with the court's permission, and only if the court is satisfied there's a valid reason the original isn't available.