IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.23721 of 2009 MALESHWAR PRASAD SINGH @ MALO SINGH, son of Late Anirudh Prasad Singh, village and Ps Chautham, District Khagaria – petitioner. Versus STATE OF BIHAR 2 17.11.2009 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. This application has been filed against the order, dated 4.6.2009 passed by the Addl. Sessions Judge, FTC II, Khagaria in S.C. Case No. 356/2006 by which the petition filed on behalf of the prosecution to permit the affidavit of mother of the deceased to be marked as exhibit has been rejected. The court below while considering the petition under section 311 of the Cr.P.C. has rightly found that the concerned lady was not examined at any stage in the case. Her statement has not been recorded under section 161 of the Cr.P.C. and she is not even a witness in the charge sheet. The evidence of the parties has closed and at this stage this petition has been moved by the prosecution to mark the petition as an affidavit. The court below has rightly rejected the application of the prosecution for the reason that the witnesses have not supported the prosecution case and this affidavit has been filed to fill in the lacunae in the prosecution case. I find that the impugned order is justified and there is no anomaly in rejecting the petition filed by the petitioner. It will always be open to the petitioner to take any plea in course of argument of the case. This application is dismissed. haque (Sheema Ali Khan, J.)