[Koodathayi Murder] Kerala High Court Refuses Interference With Order Allowing Examination Of Notary Who Attested Will Forged By Jolly Joseph

The Kerala High Court on Tuesday dismissed the petition filed by Jolly Joseph, prime accused in the Koodathyi Murder case, challenging an order of the Sessions Court that allowed the notary who had attested the Will forged by her, to be examined as a witness.

Jolly had filed the petition contending that the notary was earlier arrayed as the 5th accused in the case and hence could not be examined as a witness, even though the proceedings against him were later quashed by the High Court.

A Single Bench of Justice Raja Vijayaraghavan V held that since the notary is no longer an accused, there is no embargo in the prosecution summoning and examining him. The Court relied on the decision of the Apex Court in Varsha Garg v. State of Madhya Pradesh [2022 SCC OnLine SC 986] to observe,

“the scope and ambit of the powers under Section 311 of the Cr.P.C. has held that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person, even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by the exigency of the situation. Fair play and good sense appear to be the only safe guides, and only the requirements of justice command the examination of any person, which would depend on the facts and circumstances of each case.”

Jolly is accused of murdering six of her family members, including her first husband Roy Thomas, using cyanide, with the motive to take control of the family property .

The Prosecution case is that before administering poison to Tom Thomas, her father-in-law, Jolly forged a Will in his name, falsely bequeathing the ‘Tharavad’ house and 38 ¾ cents of land to herself and her husband.

In the final report, the prosecution cited the notary as witness no. 156, to prove that he had attested a photocopy of the forged Will. He was examined to prove the offences under Sections 465, 468, and 471 of the IPC.

However, the notary was later arrayed as accused No 5 in the case. The proceedings against him were quashed by the High Court after concluding that though the act of the Notary in attesting a document without seeing the original is reprehensible, he should not be prosecuted along with the rest of the accused who have been charged for murder.

After the proceedings were quashed and he ceased to be an accused, a summons was issued to the notary for his examination, based on the request of the public prosecutor. Jolly then filed an application to discharge the witness and this was rejected by the Sessions Court. This prompted her to approach the High Court.

Adv. B.A. Aloor appearing for Jolly argued that as the notary was once arrayed as an accused, the prosecution cannot examine him as a witness against the other accused persons in the trial.

Rejecting the argument of the Petitioner, the Court observed:

“There is an inherent fallacy in the argument advanced by the learned counsel. The argument is advanced, forgetting the fact that CW 156 is not an accused anymore nor an approver. The prohibition against the examination of a co-accused would, therefore, not be applicable to CW156.”

The Court said while quashing the proceedings against the notary it was noted that there was no allegation that the notary was a party to the criminal conspiracy hatched by the prime accused and others. The Court had also made it clear in the said case that quashing the proceedings will not stand in the way of the investigating officer filing a complaint against the notary under Section 13(1) of the Notaries Act, 1952.

The Court observed that under Section 118 of the Indian Evidence Act, 1872 all persons are competent to testify, unless the court considers that for reasons prescribed in the section the witness is unable to understand the questions posed to him/her.

Explaining how a witness is protected from self incrimination while being examined, the Court observed that:

“Under Section 132 [of Indian Evidence Act, 1872], a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. The safeguard to this compulsion is that no such answer that the witness is compelled to give exposes him to any arrest or prosecution or can it be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. In India, the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided, but it was necessary to give this protection. The protection is further fortified by Article 20(3), which says that no person accused of any offense shall be compelled to be a witness against himself. This article protects a person who is accused of an offense and not those questioned as witnesses. A person who voluntarily enters the dock by filing an application under Section 315 of the Code and answers questions from the witness box waives the privilege, which is against being compelled to be a witness against himself because he is then not a witness against himself but against others.”

The Court therefore refused to interfere with the order of the Sessions Court and dismissed Jolly's petition.

Case Title: Jollyamma Joseph @ Jolly V. State Of Kerala

Citation: 2023 LiveLaw (Ker) 285

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