​Indian Evidence Law – Bharatiya Sakshya Adhiniyam 2023-Proof When Attesting Witness Denies or Does Not Recollect Execution [Section 70]

1. IntroductionIn certain cases, the law requires a document to be attested for its validity, and ordinarily such documents must be proved by examining at least one attesting witness. However, practical difficulties may arise when an attesting witness, though available, either denies the execution of the document or fails to remember whether the document was executed. Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 addresses this difficulty by providing an alternative mode of proof.

2. Statutory Provision under Section 70
Section 70 provides that:

• If an attesting witness, when examined, denies the execution of the document, or
• If the attesting witness does not recollect the execution of the document,

then the execution of the document may be proved by other evidence.
Thus, the law does not allow the validity of an attested document to fail merely because the attesting witness becomes hostile or forgetful.

3. Scope and Applicability

• This provision applies only to documents which are required by law to be attested.
• At least one attesting witness must first be called in compliance with the mandatory requirement (Section 67 of BSA, corresponding to Section 68 of the old Act).
• Section 70 comes into operation only after the attesting witness has been examined and:
  • denies execution, or
  • claims inability to recollect execution.

The section does not dispense with calling an attesting witness; it only provides a safeguard after that requirement is fulfilled.

4. Legislative Intention
The object behind Section 70 is to prevent miscarriage of justice due to the conduct of attesting witnesses. Attesting witnesses may:

• Turn hostile,
• Be influenced by the opposite party, or
• Genuinely forget the execution due to lapse of time.

The legislature therefore ensures that the fate of an otherwise valid document is not left entirely at the mercy of attesting witnesses.

5. Mode of Proof
When Execution Is DeniedWhen the attesting witness fails to prove execution, the document may still be proved by:

• Evidence of the scribe who drafted the document,
• Testimony of any person who witnessed the execution,
• Proof of handwriting or signature of the executant,
• Circumstantial or other legally admissible evidence.

Such evidence must establish that:

• The executant signed the document, and
• The attestation was done in the manner required by law.

6. Illustration
A mortgage deed is executed by A.
B and C are attesting witnesses, and D is the scribe.

• B is examined in court but denies that he witnessed the execution.
• D, the scribe, gives evidence that:
  • A signed the document in the presence of B and C, and
  • B and C signed as attesting witnesses in the presence of A.

In such a case, the execution of the mortgage deed can be validly proved under Section 70 through D’s evidence.

7. Judicial Interpretation
In Janki Narayan Bhoir v. Narayan Namdeo Kadam, the Supreme Court explained that:

• Section 70 acts as a protective provision to the mandatory rule under Section 68 (now Section 67 of BSA).
• Where attesting witnesses are examined but fail to support execution due to denial or loss of memory, proof by other evidence is permissible.
• The provision ensures that genuine documents are not defeated due to technical or intentional non-cooperation of witnesses.

8. Conclusion
Section 70 of the Bharatiya Sakshya Adhiniyam, 2023 provides an important exception to the strict rules of proof relating to attested documents. While the law insists on examining attesting witnesses, it also recognizes practical realities and allows alternative evidence where such witnesses deny or forget execution. This provision strikes a balance between procedural rigor and substantive justice.