I.A. ANSARI. J.— This is an appeal preferred against the judgment and order, dated 24.3.2000, passed by the learned Sessions Judge, Barpeta in Sessions case No. 42/97, convicting the accused-appellant under Section 302 and 323 read with Section 149 IPC and sentencing each of them, for conviction under Section 302 read with Section 149 IPC, to undergo imprisonment for life and also to pay a fine of Rs. 2000.00 and in default, to undergo rigorous imprisonment for 2 months and also sentencing each of them, for their conviction under Section 323 read with Section 149 IPC, to undergo rigorous imprisonment for another period of 6 months and pay fine of Rs. 500/- and in default, to undergo rigorous imprisonment for another period of I month with direction that substantive part of the sentence under both penal sections will run concurrently. 2. The case against the accused appellants, as unfolded at the trial, may, in brief, be stated as follows: On 29.5.95, at about 3.30 P.M., when accused appellant No. 5, namely, Akub Ali's cow's was found grazing at the paddy field of Ali Akbar, his wife, Anowara Begum, wanted to take away the cow, but accused Akub AH assaulted her with sandals. About one and half hours thereafter, accused Sona Mia came to Ali Akbar's courtyard, abused Anowara and threatened to kill her. At that point of time accused Akub, Nurul Mahibul, Makbul, Habel, Naser, Hussain Ali, Ismail and Khaleque also entered into Anowara's courtyard and assaulted Anowara's sons, namely, Manirul Jamal and Nurul Hoque. At the time when Anowar's sons were being so assaulted, Anowara's younger brother, Inamul, who had come on a courtery visit to his sister's house and was sleeping there, woke up and sat on the bed, but accused Akub Ali and others dragged him outside and assaulted him seriously. The accused also assaulted Anowara and went away from the scene of occurrence leaving behind Inamul almost dead, Anowara, Nurul and Moridul also sustained injuries on their persons. On being informed about the occurrence by injured Nurul Haque, Inamul's elder brother Nazrul Islam, came to the house of Anowara and found there Inamul lying injured and vomiting blood. Upon being asked what had happened, Inamul narrated to. him the occurrence. On being informed about the occurrence by injured Nurul Haque, Inamul's elder brother Nazrul Islam, came to the house of Anowara and found there Inamul lying injured and vomiting blood. Upon being asked what had happened, Inamul narrated to. him the occurrence. Injured Inamul was first taken to a PHC at Barpeta Road and on being referred to the GMCH, Guwahati, he was taken and admitted there on the very night of the occurrence, but he died on 30th May, 1995, at about 7.40 P.M. On being informed by the doctor of the said hospital about the death of Inamul, police from GMCH outpost visited the GMCH, held inquest over the said dead body and prepared inquest report (Ext. 1) Post mortem examination was also held over the said dead body and post mortem report was prepared. Nazrul Islam elder brother of the deceased lodged a written Ejahar (Ext.2) at Bhabanipur P.S, on 31.5.95. Based on this Ejahar, Barpeta P.S.Case No. 337/95 under Section 147/448/325/302 IPC was registered against as many as ten accused persons. Other injured persons, namely, Anowara, Nurul and Moridul were also medically examined. On completion of investigation, police submitted charge sheet against as many as ten accused persons under Section 147/149/448/323/ 307/302 IPC. 3. During trial, charges under Sections 302 and 323 read with Section 149 IPC were framed against the accused, but when the charges, so framed, were read over and explained to the accused, they all pleaded not guilty to the charges. 4. Prosecution examined as many as 9 (nine) witnesses including the Investigating Officer. The accused were, then, examined under Section 313 Cr.P .C. In their examination aforementioned, the accused denied that they had committed the offences alleged to have been committed by them, the defence being a mixed plea of denial and of alibi. The accused also adduced evidence by examining as many as 5 (five) witnesses. 5. At the conclusion of the trial, learned trial Court, on finding the present accused-appellants guilty of the charges framed against them, convicted them accordingly and passed sentences against them as hereinabove mentioned. The remaining accused were, however, acquitted. 6. The moot point, which has arisen for determination in the present appeal, is this: whether the findings of guilt arrived at by the learned trial Court were justified on the basis of the evidence on record and law relevant thereto? 7. The remaining accused were, however, acquitted. 6. The moot point, which has arisen for determination in the present appeal, is this: whether the findings of guilt arrived at by the learned trial Court were justified on the basis of the evidence on record and law relevant thereto? 7. We have carefully perused the relevant record including the impugned judgment and order. We have heard Mr. C.R. De, learned Senior Advocate for the accused-appellants, and Mr. Noor Mohammed, learned Public Prosecutor, Assam. 8. Assailing the impugned judgment and order, Mr. De has submitted inter alia, that the learned trial Court completely failed to take notice of omission of material facts from the FIR nor did it give importance to the delayed FIR lodged in this case, though no plausible explanation was offered for the delay. Mr. De has also submitted that the FIR relied upon by prosecution is not really an FIR in law inasmuch as the police investigation had, points out Mr. De, already commenced before the FIR was lodged. Mr. De has further submitted that the learned trial Court failed to appreciate that the witnesses, who were examined as eye witnesses in this case, were all inimical to the accused and that the prosecutions case suffered from non examination of material and independent witnesses including the doctor, who had conducted the postmortem examination. 9. It is contended by Mr. De that the investigation of the case at hand was wholly tainted and perfunctory, but this aspect was ignored by the learned trial Court. Even the post mortem report relied upon by the learned trial court was, points out Mr. De, not a part of the evidence on record, but this aspect too was not taken into account by the learned trial Court, Examination of the accused-appellants under Section 313 Cr.P.C. too, points out Mr. De, was wholly inadequate and caused serious prejudice to the accused-appellants inasmuch as many of the materials circumstances, on which learned trial Court relied upon, were never put to the accused-appellants and their explanation were not sought thereto. At any rate, contends Mr. De, the evidence on record adduced by the prosecution was wholly unreliable and unsafe to base conviction of the accused thereon. The appeal preferred by the accused-appellants, therefore, pleads Mr. De, deserves to be allowed and the accused-appellants deserve to be acquitted of the charges framed against them. 10. At any rate, contends Mr. De, the evidence on record adduced by the prosecution was wholly unreliable and unsafe to base conviction of the accused thereon. The appeal preferred by the accused-appellants, therefore, pleads Mr. De, deserves to be allowed and the accused-appellants deserve to be acquitted of the charges framed against them. 10. Controverting the above submissions made on behalf of the accused-appellants, learned Public Prosecutor has submitted that the evidence on record was adequate and clincing in nature and was sufficient to found conviction of the accused-appellants for the charges framed against them and in such a situation, learned trial court, contends the learned Public Prosecutor, was wholly justified in convicting the accused-appellants. The lapse, if any, on the part of the Investigating Officer did not, submits the learned Public Prosecutor, materially affect the merit of the trial held against the accused-appellants and hence conviction, of the accused-appellants as well as sentence passed against them deserve to be upheld. 11. Having heard the rival submission made before us on behalf of the parties and upon perusal of the case record, what attracts our eyes, most prominently, is that the doctor, who had performed post mortetn examination, on the dead body deceased Inamul, was not examined as a witness at the trial, but the learned trial Court placed reliance on the post-mortem report, which was, in fact as correctly points out Mr. De, not a part of the evidence on record. Without examination of the doctor concerned and without effectively providing the contents of the post-mortem report, no reliance on the findings and/or opinion, revealed in the post-mortem report, could have been validly placed by the learned trial Court. 12. Though post-mortem report is not substantive piece of evidence, the significance of post mortem report cannot be ignored, Laying emphasis on post­mortem report, the Apex Court has, in State of Haryana Vs. Ramsingh (2002 AIR SCW 219), observed as follows :- "While it is true that the postmortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the postmortem can by no means be ascribed to insignificant. Ramsingh (2002 AIR SCW 219), observed as follows :- "While it is true that the postmortem report by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the postmortem can by no means be ascribed to insignificant. The significance of the evidence of the doctor lies vis-a-vis the injuries appearing on the body of the deceased person and likely use of the weapon therefore and it would then be the prosecutor's duty and obligation to have the corroborative evidence available on record from the other prosecution witnesses." 13, If we, at this stage, in the appeal, ignoring the postmortem report, make endeavour to appreciate the evidence give by eye witnesses vis-a-vis the medical evidence on record, cause of justice may seriously suffer, which we are not inclined to permit. 14. Coupled with the above, there is, we find, yet another important reason, which does not permit us to appreciate the evidence on record effectively. We have carefully perused the examination of the accused-appellants under Section 313 Cr.P.C. by the learned trial Court and we have noticed that the examination of the accused-appellants was most perfunctory done inasmuch as the learned trial Court relied upon a number of incriminating circumstances, appearing from the evidence on record, against the accused-appellants, such as, the medical evidence and material evidence of other witnesses but it did not put to the accused-appellants many of these incriminating circumstances appearing against them and upon which the learned trial Court relied to hold the accused-appellants guilty of the charge aforementioned. We may refer at this stage, to the case of SharadBirdhi Chand Sarda Vs. State of Maharashtra (AIR 1984 SC 1662) wherein their Lordships have succinctly laid down the law on the above subject as follows :- "As these circumstances were not put to the appellants in their statement under Section 313 of the Criminal Procedure Code they must be completely excluded from consideration because the appellants did not have any chance to explain them. This has been consistently held by this Court as far back as 1953, wherein the case of Hata Singh Bhagat V. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstances in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. This has been consistently held by this Court as far back as 1953, wherein the case of Hata Singh Bhagat V. State of Madhya Bharat AIR 1953 SC 468 this Court held that any circumstances in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision there is a catena of authorities of this Court uniformly taking the view that unless the circumstances appearing against an accused is put to him in his examination under Section 342 of Section 313 of the Criminal Procedure Code, the same cannot be used against him........................ ..............................................It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court in this view of the matter the circumstances, which were not put to the appellant in his examination under section 313 of the Criminal Procedure Code have to be completely excluded from consideration." (Emphasis is supplied by us) 15. Even in the case of State of Maharashtra Vs. Sukdeo Singh and Another ( AIR 1992 SC 2100 ) their Lordships have observed as follows :- "The trial judge is not expected, before he examined the accused under Section 313 of the Code, to sift the evidence regarding any incriminating material to determine whether or not to examine the accused as that material. To do so, would be to prejudice the evidence without hearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon." (Emphasis is added by us) 16. It is, now, settled beyond dispute by a catena of judicial pronouncements that every circumstances, on which a trial Court relies to hold an accused guilty, must be put to the accused person and his answer sought thereto. The very purpose of Section 313 Cr.P.C. will stand defeated if a trial Court, without asking for explanation of an accused on the circumstances, which appear to it to be incriminating, bases its conviction on such circumstances. The very purpose of Section 313 Cr.P.C. will stand defeated if a trial Court, without asking for explanation of an accused on the circumstances, which appear to it to be incriminating, bases its conviction on such circumstances. It is in this view of the matter that the examination of an accused person under Section 313 Cr.P.C. is a solemn act of a trial Court and it cannot, and must not be treated as an empty formality. 17. In the case at hand, the incriminating circumstances spoken to by each prosecution witness, on which the learned trial Court has relied upon, ought to have been put to the accused-appellants when they were being examined under Section 313 (1) (b) of the Cr.P.C. and the same having not been done, learned trial Court ought not to have based its findings on such incriminating pieces of evidence. In fact, the learned trial Court had, it appears to us, put to the accused-appellants, in the instant case, not even the sum-total of the prosecution's case, which, in our considered view, does not satisfy the requirements of law. 18. Situated thus, one has no option but to conclude that if the accused-appellants are not examined under Section 313(1)(b) of the Cr.P.C. as warranted by law, it will deny to the accused-appellants a valuable right vested in them by law to properly and effectively project their defence. At the same time, prosecution, to our mind, cannot be made to suffer solely for the lapse on the part of the learned trial Court in properly examining the accused-appellants under Section 313 (1) (b) of the Cr.P.C. We are, therefore, clearly of the view that this case needs to be remanded to the learned trial Court. 19. At the same time, prosecution, to our mind, cannot be made to suffer solely for the lapse on the part of the learned trial Court in properly examining the accused-appellants under Section 313 (1) (b) of the Cr.P.C. We are, therefore, clearly of the view that this case needs to be remanded to the learned trial Court. 19. Ordinarily, we would have reappreciated the entire evidence on record to arrive at legally correct findings, but in the instant case, as we have found that before the evidence on record is re-appreciated in this appeal, postmortem report be introduced in to the evidence on record and that the accused appellants be further examined under Section 313 (1) (b) on the Cr.P.C. in accordance with the requirements of law contained in that behalf and that the case needs to be remanded back to the learned Court below, we do not wish to enter into the merit of the various grounds on which the said judgment has been impugned in this appeal by the accused-appellants. We do not even remotely wish to make any observations about the evidence on record so that the learned trial Court does not get fettered by any of the observation of this Court on any piece of evidence on record and it may feel free to come to its own independent findings after making the post mortem report a part of the evidence on "record and after appropriate examination of the accused-appellants. 20. In the result, this appeal succeeds, for the reasons indicated above. The impugned judgment and order shall stand set aside and the case in remanded to the learned Court below with direction to examine the conceraejd doctor, who had performed post-mortem examination on the dead body of deceased Inamul Haque, and if, for any reason, the doctor concerned is not found available or his presence cannot be procured, learned trial Court shall be free to get the post-mortem report proved by examining such witness/ witnesses as may be necessary in law and, then, after necessary and proper examination of the accused-appellants under Section 313 Cr.P.C., dispose of the case in accordance with law within three months from the date of appearance of the accused -appellants. 21. Let the accused-appellants be set at liberty forthwith unless they are required to be detained in connection with any other case. 21. Let the accused-appellants be set at liberty forthwith unless they are required to be detained in connection with any other case. The accused-appellants are also directed to appear before the trial Court on 19.8.2002 and on their appearance in the trial Court, if the accused-appellants apply for bail, they should be allowed to go on bail of Rs. 10,000/- each with one local surety, each of the like amount, subject to the satisfaction of the learned trial Judge. 22. Send bail the LCRS with a copy of this judgment and order.