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THEORY:

Burden of Proof[sections 101-113

‘Burden of proof’ may be defined as the obligation to offer evidence that the court or jury could reasonably believe, in support of a contention, failing which the case will be lost. Burden of proof is the obligation on a party to establish such facts in issue or relevant facts in a case to the required degree of certainty in order to prove its case.

The pleadings predominantly contain the facts of the case. Pleadings of each party contain the relevant party’s version of the facts of the case. Thus, the plaint contains plaintiff’s version of the facts of the case. This is called the plaintiff’s case Similarly, written statement contains the defendant’s version of the case. This is called defendant’s case.

In majority of cases, cases of both sides will not be entirely different. There may be facts pleaded by one party and admitted by the other party. These facts are called admitted facts. In respect of some other facts, the parties may differ. Facts pleaded by one party may be denied by the opposite party. These facts are called disputed facts. The function of the Court is to find out which of the two versions is true. To discharge this function, Court needs evidence.

Under the adversarial procedure followed by the Indian Courts, evidence has to be presented by the parties to the Court. By presenting the evidence, each party attempts to prove its case and disprove the case of the opposite party.

Both the parties need not prove every fact or disprove every fact. Only one party has to prove a fact. The other party will have to disprove the fact if the first party is able to p r o v e the fact. But it may have to prove some other fact which the first party will have to disprove if former is able to prove it.

This requirement of proving or disproving a fact is called burden of proof. The requirement of proving a fact is called the initial burden of proof and when the party on whom the initial burden lies is able to prove the fact and therefore when the opposite party is required to disprove the fact we say that the burden of proof has shifted – is called onus of proof.

Burden of Proof and Onus of Proof

“burden of proof” and “onus of proof”, though literal meaning of these expressions may be the same. Yet they differ

The ‘Burden of Proof’ is the burden to prove the main contention of party requesting the action of the court, while the ‘Onus of Proof’ is the burden to produce actual evidence.

The Burden of Proof is constant and is always upon the claimant but the Onus of Proof shifts to the other party as and when one party successfully produces evidence supporting its case.

Thus, burden of proof indicates the initial burden of proof. If the party who has the burden of proof of a fact proves that fact, the onus of disproving the same shifts on the other side. This is a continuous process.

Rules of Burden of Proof [Sections 101-106]

Section 101 explains the concept of Burden of Proof which states that when a person is bound to prove the existence of a fact, the burden to provide evidence for the same lies upon him. Burden of proof is not defined in the Act. But it is based on the principle that in criminal cases the burden of proving the charges lies on the prosecution not on the accused. Evidence Act lays down some principle of burden of proof of general nature.

The concept of Burden of Proof is based on two concepts:

Burden of Proof (onus probandi)

Onus of Proof (factum probandum)

Burden of proof is constant always remains on one person. Whereas the onus of proof is like pendulum in the clock shifts from one person to another toll the final inference is drawn by the court.

S.101 defines Burden of Proof as :

Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Illustration

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies to be true. A must prove the existence of those facts.

In short, the burden of proof means the obligation to prove a fact. Every party has to establish fact which goes in his favour or against his opponent and this is the burden of proof.

Section 102: On whom Burden of Proof lies

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Illustration

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B’s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.

(b) A sues B for money due on a bond.

The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.

This section tries to locate the party on home burden of lies. The burden of proof lies upon the party whose case would fail, if no evidence is given on either side.

In Triro vs Dev raj in this case when there was a delay in filing the suit, the defendant had taken a plea of limitation period. The burden of proving that the case was within prescribed limit was on the plaintiff.

Section 103. Burden of proof as to particular fact

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

Illustration

A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.

The principle of section 103 is that whenever a party wishes is the court to believe and act upon the existence of the fact, burden lies upon him to prove that fact .If party wishes ti the Court to believe that his opponent has admitted a fact burden lies upon him to prove that the fact of admission.

Section 104.Burden of proving fact to be proved to make evidence admissible

The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.

Illustrations

A wishes to prove a dying declaration by B .A must prove B’s death.

B wishes to prove, by secondary evidence, the contents of a lost document.

A must prove that the document has been lost.

This section provides that the proof of fact on which evidence become admissible. Where the admissibility of evidence of any fact depends upon the proof of a fact, burden of proof of such fact depends upon the person who wants to prove the fact.

Section 105.Burden of proving that case of accused comes within exceptions

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

Illustrations

(a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act.

The burden of proof is on A.

(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.

(c) Section 325 of the Indian Penal Code, (45 of 1860), provides that whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325.The burden of proving the circumstances bringing the case under section 335 lies on A.

This section provides that provide if the accused claims that his case comes within any of the recognized exceptions of Indian Penal Code, the burden of proving that the case comes within the exceptions lies on him.

Section 106. Burden of proving fact specially within knowledge

When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had ticket is on him

According to this section, whenever the existence or non existence of any fact lies within the special knowledge of a person alone, the burden of proving such fact lies on him.

Special Rules of Burden of Proof

Presumption of Life and Death of A Person

Sec. 107 and 108 deal with burden of proof death of a person. Sec. 107 provides that when it is shown that a person was alive within 30 years, the burden of proving his death is on the person who affirms his death.

But if it is shown that the persons close to him have not heard of a person for seven years, the burden of proving that he is alive is on the person who affirms that he is alive, under sec. 108.

Sec. 108, which is a proviso to sec. 107, provides the presumption of the fact of death. It does not provide for the presumption of the time of death. However the probability of the time of death may be taken into account when it is necessary to meet the ends of justice.

Continuance of Relationship

Sec. 109 provides that when the relationship between two person is proved, the burden of proving that such relationship has ceased is on the party alleging that the relationship has ceased.

Sec. 110 The burden of proving that a person in possession of a thing as owner is not the owner is on the person denying the ownership of the possessor.

The rationale behind these sections as well as under sec. 107 is that a presumption should be positive and not negative. The presumption is that state of things continue rather than end.

Genuineness of Transaction Between Parties Having Fiduciary Relationship

Sec. 111 deals with the burden of proof of good faith of any transaction between the persons standing in fiduciary relationship with each other. The burden of proof is on the person who is in active confidence.

Illustrations

(a)The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.

(b)The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father

Presumption of Legitimacy of a Child [section 112]

Sec. 112 deals with the presumption of legitimacy of a child who is born during the valid marriage if his mother and any man or within 280 days from the dissolution of the marriage.

This presumption is conclusive, and therefore, cannot be rebutted. But sec. 112 itself provides for one ground to rebut the presumption of legitimacy under it. Thus, it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

Thus, there are two requirements for the application of sec. 112.

1. The child should have born

(a) during valid marriage between its parents; or

(b) if the marriage was dissolved, within 280 days from dissolution of marriage

2. There should be no evidence to show non access between the parents at the time when the child could have been begotten.

The burden of proof is therefore, entirely on the party challenging the legitimacy of the child and not on the party asserting its legitimacy. As such, the party asserting legitimacy need not prove access, the opposite side should prove non- access.

Cessation of Territory [section 113]

Sec. 113 provides that a notification in the official gazette of a cession of a British territory before the commencement of Part III of the Government of India Act, 1935 to any Indian State is conclusive proof that the cession took place on the d a t e mentioned in the notification.

Doctrine of Estoppel

Estoppel is a rule of evidence that bars a party from denying or alleging a certain fact owing to that party's previous conduct, allegation, or denial The rationale behind estoppel is to prevent injustice owing to inconsistency or Fraud.

Types of Estoppel

There are two general types of estoppels

1. Equitable Estoppel

a. Promissory Estoppel and

b. Estoppel by laches

2. Legal Estoppel

a. Estoppel by Record

b. Estoppel by Deed

Equitable Estoppel

Equotable Estoppel sometimes known as estoppel in pais, protects one party from being harmed by another party’s voluntary conduct. Voluntary conduct may be an action, silence, acquiescence, or concealment of material facts.

There are several specific types of equitable estoppel:

Promissory Estoppel

It is a contract law doctrine. It occurs when a party reasonably relies on the promise of another party, and because of the reliance is injured or damaged.

Estoppel by Laches

Estoppel by laches precludes a party from bringing an action when the party knowingly failed to claim or enforce a legal right at the proper time.

This doctrine is closely related to the concept of statutes of limitations, except that statutes of limitations set specific time limits for legal actions, whereas under Laches, generally there is no prescribed time that courts consider “proper.”

Legal Estoppel

Legal estoppels onsists of estoppel by deed and estoppel by record.

Estoppel by Deed

Under the doctrine of estoppel by deed, a party to a property deed is precluded from asserting, as against another party to the deed, any right or title in derogation of the deed, or from denying the truth of any material fact asserted in the deed.

Estoppel by Record

Estoppel by record, also known as “collateral estoppel”, or as “estoppel by judgment”, prevents the re-argument of a factual or legal issue that has already been determined by a valid judgment in a prior case involving the same parties.

Estoppel by record is frequently confused with the related doctrine of res judicata, which bars re-litigation of the same cause of action between the same parties o n c e there has been a judgment.

Estoppel under Indian Evidence Act, 1872

The doctrine of Estoppel is based on the principal of equity. Secs. 115, 116 and 117 of Indian Evidence Act deal with the doctrine Estoppel.

It would be most inequitable and unjust if one person is allowed to speak contrary to his earlier statement, as it would cause loss and injury to the person who has acted on such statement.

Sec. 115 of the Indian Evidence Act defines Estoppel as under:

“When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.”

Illustration

A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.

The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title.

Conditions for the application of Doctrine of Estoppel

1. There must be a representation made by one person to another person. The representation must have been made as to fact and not as to law. The representation must be false.

2. The person to whom the representation is made must have believed the same to be true.

3. The person to whom the representation is made must have acted upon it.

4. By so acting, the person to whom the representation is made must have suffered some detriment.

Estoppel of Tenant and of Licensee of Person In Possession [sec 116]

Under sec. 116, a tenant of an immovable property is estopped from contending that his landlord did not have title to such property at the time of creation of the tenancy. In other words, he cannot say that the property which he is occupying as a tenant was taken by him on lease from an unauthorised person. This bar is applicable against the tenant only during the continuance of the tenancy. Thus,

1. After terminating the tenancy the tenant may say that his landlord did not have title at the time of creation of the tenancy;

2. Even during the continuance of the tenancy he may say

(a) that subsequent to the creation of the tenancy, the landlord ceased to have title to the property, or

(b) that at any time before the creation of the tenancy he was not having title to the property.

The same rule is applicable, mutatis mutandis, to person who came upon any immovable property by the license of the person in possession thereto.

Estoppel of Acceptor of Bill of Exchange, Bailee or Licensee[sec 117]

Sec. 117 prohibits an acceptor of bill of exchange from denying that the drawer had authority to draw such bill or to endorse it;

However, explanation 1 to sec. 117 permits acceptor of a bill of exchange to deny that the bill was really drawn by the person by whom it purports to have been drawn.

a bailee from denying that his bailor had authority to make such bailment at the time of making the bailment;

Explanation 2 sec. 117 provides that if a bailee delivers the goods bailed to a person other than the bailor, he may prove that such person had a right to them as against the bailor.

a licensee from denying that his licensor had authority to grant such licence at the time when such licence was granted.

Privileged Communications[sections 121-126]

Certain communications cannot be revealed in evidence. The bar is to protect the someone whose interest, other than the interest involved in the suit or proceeding, may be affected.

In most of the cases, the interest likely to be affected is a private interest of an individual. In such cases, it is his discretion to reveal or to give consent to reveal the communication.

In other cases, the interest likely to be affected is not a private interest, but is some public interest. In such cases, the discretion to reveal the communication or to give consent to its revealing is vested in the person whose responsibility it is to protect that interest.

It is the privilege of the person, at whose discretion the communication may be revealed, to withhold the communication. Therefore, these communications are called privileged communications. In relation to documents it means privilege to withhold documents.

Provisions concerning privileged communications use two different expressions:

the witness shall not be ‘compelled’; the witness shall not be ‘permitted’.

The witness shall not be ‘compelled’ means if the witness is willing to reveal the communication, he may be permitted to do so. If he is not willing, he cannot be compelled to reveal it.

The witness shall not be ‘permitted’ means even if the witness is willing to reveal the communication, he cannot be permitted to do so.

This means that it is not the discretion and privilege witness but some other person to disclose or to withhold the revealing of the communication. This further means that revealing the communication is likely to affect the interest not of the witness, but of some other person.

The following are the privileged communications:

Marital Communication [Sec. 122]

Evidence as to Affairs of State [Sec. 123]; and

Official Communication [Sec. 124]

Information About Commission of Offence [Sec. 125]

Professional Communication [Secs. 126-129]

Communications During Marriage [S. 122]

No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married;

Nor shall he be permitted to disclose any such communication, unless the person who made it or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

Evidence as to Affairs of State [Sec. 123]

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except a with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

Official Communication [Sec. 124]

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

Information as to Commission of Offence [sec. 125]

No Magistrate or police-officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenueofficer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue. Explanation.–– “Revenue-officer” in this section means any officer employed in or about the business of any branch of the public revenue.

Professional Communication [sec. 126-129]

Sec. 126 of Indian Evidence Act deals with the professional communications. Here Professional Communication means, the communication made by the client to his advocate or the advocate to the client for the purpose of or in the course of employment of his advocate. Accordingly no facts disclosed by the client to his advocate and no advice given by the advocate to the client during the pendency of employment of the advocate may be permitted to be disclosed without the client’s express consent. A person is said to be a client of an advocate if he approaches the advocate with a case, whether or not the advocate is employed by him.

Sec. 126 has been enacted to enable free communication of facts between the advocate and his client. The purpose of this section is not to enable the people to take legal advice to commit crimes or illegal activities in a full proof manner.

Illustration

A, a client, says to B, an attorney, “I have committed forgery and I wish you to defend me.”

As the defence of a man known to be guilty, is not a criminal purpose, this communication is protected from disclosure.

Therefore, the first proviso to Sec. 126 excludes the communications made in furtherance of any illegal purpose from the purview of the protection given under sec. 126. Hence, where the client says to his attorney that he has committed forgery and that he wishes the attorney to defend his case the communication is not being in furtherance of any criminal purpose the communication is protected, under sec. 126.

Defence of a person known to be guilty is not a criminal purpose. On the other hand, if the client asks the advocate as to how to commit forgery in such a way that the client can escape punishment, the client is seeking advice to commit a crime and therefore, this communication is hit by the first proviso to sec. 126 and therefore, is not a privileged communication.

Illustrations

A, a client, says to B, an attorney, “I wish to obtain possession of property by the use of a forged deed on which I request you to sue.”

This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.

A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A’s account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.

This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

By virtue of sec. 127, the provisions of s. 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.

Sec. 128 further clarifies that it cannot be presumed that privilege is waived by volunteering evidence.

Sec. 129 provides that if any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in sec. 126.

Accomplice Evidence[sec 133]

An “accomplice” is a person who helps someone else to commit a crime. If he is tried jointly with the accused, he becomes a “co-accused”. An accomplice who is granted pardon under sec. 306 of the Criminal Procedure Code, 1973 to give evidence for the prosecution is called an “approver”.

Sec. 133 provides that an accomplice shall be a competent witness against an accused person. Sec. 133 further clarifies that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

But it has now become almost a universal rule of practice not to base a conviction on the testimony of an accomplice unless it is corroborated in material particulars. As to the amount of corroboration which is necessary, no hard and fast rule can be laid down. It will depend upon various factors, such as the nature of the crime, the nature of the accomplice’s evidence, the extent of his complicity and so forth.

Examination of Witnesses[sections135-137]

Examination of witnesses refers to the process of adducing oral evidence in the Court.

Order of Examination

1. Examination-in-chief
2. Cross-examination and

3. Re-examination

Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross- examined, then (if the party calling him so desires) re-examined. Examination in Chief

Examination in chief is the first stage wherein the questions are asked to the witness by the advocate representing the party on whose side the witness is giving evidence. The purpose of examination in chief is to disclose the case of the party and to prove it, and also to disprove the case of the opposite side. Evidence given through affidavit is equivalent to the examination in chief of the deponent.

Cross Examination

After the examination in chief the next stage is to cross examination wherein the witness will be asked question by the advocate of the opposite party. The purpose of cross examination is to disclose the case of the opposite party conducting cross examination, to prove the case of that opposite party and more important is to disprove the case of the party on whose side the witness is giving evidence.

Cross examination is the best guarantee of truth. The advocate conducting the cross examination can skillfully reveals the falsity or error in the evidence given by the witness in his examination in chief. Therefore, cross examination is the most valuable right of the opposite party. If the evidence is given through affidavit, the deponent has to be appear for cross examination if demanded by the opposite party, except in the cases in which his identity is sought to be concealed. Where the opposite party is a notorious person such as a criminal or terrorist, or a powerful person such as a politician, the identity of the witness is to be concealed. This is necessary not only for the protection of the witness and his family members against risk to their lives and properties, but is also necessary in the public interest. If the witnesses are not protected, no one w i l l be forthcoming to give evidence against notorious or powerful persons, and as a result they will find themselves free to commit offences.

Cross examination is also necessary in view of audi alteram partem rule. Therefore, if opportunity of cross examination is not available evidence of the witness cannot be considered. Thus, if after the examination in chief, the cross examination is deferred to some other day, and on the adjourned date, if the witness does not present himself for cross examination and therefore, if cross examination is not possible the evidence of the witness given in the examination in chief will have to be struck off the record and same cannot be considered for deciding the case

Re Examination

Re examination is directed to the explanation of matter referred to in cross examination and mainly it is be confined to the resolving of ambiguity between examination in chief and cross examination. If such matter is to be introduced in re-examination, permission of the court is necessary. If such matter is introduced with the permission of the court, the opposite party will get a right of cross- examination on those points.

Leading Questions[Sections 141-143]

Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

They may be asked in cross-examination.

Generally, they cannot be asked in examination-in-chief and in re-examination.

Exception to the above general rule are:

1. When they are not objected to by the opposite party [Sec. 142]

2. When they are permitted by the Court [Sec. 142]

(a) When they are introductory facts;

(b) When they are undisputed facts; or

(c) When they are, in the opinion of the Court sufficiently proved.

3. When the witness is declared hostile.

Leading questions may be asked by the Court exercising its power to examine the witness under sec. 165

Impeaching credit of witness[Sec.155]

The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:-

1. by the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;

2. by proof that the witness has been bribed, or has 1*[accepted] the offer of a bride, or has received any other corrupt inducement to give his evidence;

3. by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

4. When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

Explanation – A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in crossexamination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

Illustrations

1. A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B. Evidence is offered to show that, on a previous occasion, he said that he had delivered goods to B. The Evidence is admissible

2. A is indicated for the murder of B.C says that B, when dying, declared that A had given B the wound of which he died.Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence. The evidence admissible.

Question by party to his own witness Hostile Witness [Sec.154]

A witness who readily gives answers desired by the advocate examining him is called a ‘favourable witness’, because his answers are favourable to the party calling him to give evidence.

A witness who is reluctant or refuses to give such answers is called a ‘hostile witness’, because of his hostile attitude towards the advocate examining him.

Normally the same witness is favourable and hostile: favourable during examinationin-chief and re-examination, and hostile during cross-examination. However, at times, especially in criminal case, a witness may turn hostile during examination-in-chief itself.

In such cases, the advocate for the party calling him, may, with the permission of Court under sec. 154, ask questions which are permissible in cross-examination.

Refreshing Memory[Sec.159]

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.

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.

Proviso to sec. 159 permits an expert to refresh his memory by reference to professional treatises.

Sec. 160 provides that a witness may also testify to facts mentioned in any such document as is mentioned in sec. 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.

Illustration

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.

Right of Adverse Party

Where a party uses any writing to refresh its memory while giving evidence, sec. 161 gives a right to the adverse party to inspect that writing. Any writing referred to under the provisions secs. 159 and 150 must be produced and shown to the adverse party as if he requires it. Such party may, if he pleases, cross-examine the witness thereupon.