Kerala High Court Rejects Jolly Joseph's Plea Against Order Allowing Examination Of Expert Who Gave Opinion On Allegedly Forged Will

The Kerala High Court on Thursday (June 4) upheld a trial court order which had allowed State's application to examine an expert witness who had given opinion regarding certain documents, including a Will, which was allegedly forged by the Jolly Joseph accused of murdering her family. 

The trial court had while allowing the prosecution's plea had issued summons to the witness. Against this order, Jolly Joseph had moved the High Court. 

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.

The counsel appearing for Jolly submitted before Justice C.S. Dias that the prosecution filed application under Section 311 of the Code of Criminal Procedure for permission to examine the afore expert, whose name was not on the witness list in the Final Report, as an additional witness.

Though detailed objections were raised, the trial court went on to allow the application and issued summons to the witness. The said order is now under challenge before the High Court.

It was argued that the trial court order was ex-facie erroneous and unsustainable in law, especially since the application was made by the prosecution at the fag end with the intention to fill up the lacunae, which is impermissible in law. Further, it was contended that the details regarding sending the documents to the FSL has not been mentioned in the Final Report and that if the said witness is summoned, it would cause substantial prejudice and hardship to the petitioner.

The trial in the case had started in 2023 and presently, prosecution has examined PWs 1 to 132 and marked Exhibits P1 to P285. 

The public prosecutor, on the other hand, argued that the requisition to send the documents for expert opinion was made as early as on 11/12/2019 to the trial court and it is with the permission of the said court that documents were sent to the FSL. However, the final report had been filed within the statutory time period, before the receipt of the FSL report.

It was pointed out that it is in the above circumstances that the details of sending the documents for expert opinion was not included in the chargesheet. The case diary was produced to substantiate that the documents were sent to the FSL with the permission of the trial court.

After hearing the parties, the Court perused the impugned order and noted that the reasoning of the trial court was it was necessary to examine the expert, who rendered her opinion on the disputed documents that were sent with the permission of the court, especially since the specific allegation of the prosecution was regarding forgery of the will and other documents.

The trial court was of the view that mere non-mentioning of the name of the expert in the witness schedule will not cause any prejudice to the petitioner, who would be given a full opportunity to cross examine the expert witness. 

Agreeing with the trial court, the High Court dismissed the plea:

"Going by the reasons stated in the said impugned order and the fact that the documents were already sent to the expert even before the filing of the final report, that too with the permission of the trial court, I am of the firm view that there is no question of filling up any lacunae because the documents are already on record. Instead, examination of the said witness would prove the documents that have already placed on record. As rightly observed by the trial court, no prejudice would be caused to the petitioner since she would be given the full opportunity to cross examine the witness and discredit the expert opinion that is on record."

The Court also examined Section 311 CrPC that empowers the trial court to summon material witnesses and examine persons present. It then added:

"The said provision permits at “any stage of an enquiry, trial or other proceedings under the Code" to summon any person as a witness or examine any person in attendance though not summoned as an witness or to recall and reexamine any person already examined. Moreover, it is settled that procedural law is the handmaid of justice. It is also trite that a fair trial and equal opportunity are the cornerstone of the criminal justice delivery system. Merely because the prosecution had not included the name of the witness in the witness list cannot be a ground to deny the examination of the witness in order to prove a material that is already on record."

Thus, it dismissed the plea.

A detailed order is awaited.

Case No: Crl.MC No. 4309 of 2026

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

Citation: 2026 LiveLaw (Ker) 310

Counsel for the petitioner: K.P. Prasanth,T.A. Ajmal Hussain, Arunraj S.,Hijas T.T., Sunitha K.G., Anitha V.A., Aswin T. P., Rahul C. Chellappan