​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023Proof Where No Attesting Witness Can Be Found [Section 68]

1. Introduction
​As a general rule, a document which the law requires to be attested must be proved by examining at least one attesting witness. However, situations may arise where no attesting witness is available to testify. To address such practical difficulties, Section 68 of the Bharatiya Sakshya Adhiniyam, 2023 provides an alternative mode of proof for attested documents when attesting witnesses cannot be found.

2. Statutory Provision
Section 68 provides that:

• Where no attesting witness can be found,
• It must be proved that:
  • The attestation of at least one attesting witness is in his handwriting, and
  • The signature of the executant is in the handwriting of the person who executed the document.

Thus, proof shifts from oral testimony of attesting witnesses to proof of handwriting and signatures.

3. Scope and Applicability of Section 68
This section applies only when it is not possible to examine any attesting witness, and the Court is satisfied that such examination is genuinely impossible. The Court cannot compel production of an attesting witness under this provision.
Section 68 can be invoked in the following situations:

• All attesting witnesses are dead;
• Attesting witnesses are alive but incapable of giving evidence due to physical or mental incapacity;
• Attesting witnesses cannot be traced despite reasonable efforts;
• Attesting witnesses are otherwise unavailable for reasons the Court considers sufficient.

4. Meaning of “Can Be Found”
The expression “can be found” is interpreted broadly. It does not merely mean that the witness cannot be physically located. It also includes cases where:

• The witness is alive but no longer competent to testify;
• The witness is incapable of understanding or giving evidence;
• Circumstances exist which make examination of the witness impracticable or impossible.

Thus, the focus is on practical unavailability, not mere absence.

5. Mode of Proof under Section 68When this section is invoked, the following must be proved:

1. The handwriting of at least one attesting witness, and
2. The handwriting or signature of the executant.

This proof may be established through:

• Handwriting experts,
• Persons acquainted with the handwriting,
• Other admissible evidence recognized under the Act.

Both elements are mandatory. Proof of only one is insufficient.

6. Judicial Interpretation
In Babu Singh v. Ram Sahai, the Court held that:

• A Will must ordinarily be proved strictly in accordance with Section 63 of the Indian Succession Act and Section 67 of the BSA.
• However, where attesting witnesses are unavailable, strict proof of execution and attestation is relaxed under Section 68.
• Even then, the handwriting of the attesting witness and the signature of the executant must be proved.

Thus, while oral testimony of attesting witnesses is dispensed with, documentary and handwriting proof remains essential.

7. Relationship with Other Provisions

• Section 67: Requires examination of an attesting witness where possible.
• Section 68: Provides an exception where attesting witnesses cannot be found.
• Section 69: Applies where execution is admitted by the executant.
• Section 70: Applies where attesting witnesses deny or fail to recollect execution.

Together, these provisions ensure that proof of attested documents is not frustrated by technical or practical difficulties.

8. Conclusion
Section 68 of the Bharatiya Sakshya Adhiniyam, 2023 strikes a balance between procedural rigor and practical necessity. It ensures that an attested document does not fail merely because attesting witnesses are unavailable, while still safeguarding authenticity by insisting on proof of handwriting and signatures. The provision reflects a pragmatic approach to evidentiary proof without compromising legal certainty.