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"............Ld. Panel Pleader files a petition stating that the attendance of Medical Officer, who held postmortem examination `could not be secured and he prays for making the postmortem report as exhibit. Copy of the petition served upon the ld. Advocate for the accused. Heard both sides. Sri Nalini Mazumdar, ld. Advocate for the accused is called upon to admit or deny the genuineness of the postmortem report, which is sought to be exhibited by the prosecution. The ld. Advocate does not dispute the genuineness of the document, namely, the postmortem report and has no objection to the document being admitted in evidence. Hence the postmortem report is received in evidence and it is marked ext.no.4 under section 294, Cr.P.C..................................."

Mr. Ghosh has submitted that when sufficient explanation is given in the Court's order dated 25.6.83 for non-examination of the doctor, the postmortem report, ext.4, should be treated as substantive evidence on the basis of the decision in the case of Saddiq (supra). It appears that in the course of the trial in the court below there was a petition by the prosecution on 24.6.83 for an adjournment on the ground that Dr. B.K. Khastagir, the Sub- Divisional Medical Officer, Jhargram, did not attend court on that day, though he was till then posted at Jhargram. By an order passed on 24.6.83 the learned Sessions Judge fixed the case on 25.6.83 for further hearing, after considering this petition filed for the prosecution. Thereafter, on 25.6.83 another petition was filed for the prosecution in the court below wherein it was stated that Dr. B. K. Khastagir, who was on medical leave, was to join on 27.6.83 and could extend his leave on medical ground. A prayer was made in that petition filed on 25.6.83 for treating the postmortem report as evidence under section 294, Cr.P.C. on alleging that the whereabouts of Dr. B.K. Khastagir were not yet intimated to the prosecution. The learned Sessions Judge allowed this prayer made in the petition dated 25.6.83 and passed the aforesaid order. After considering the petitions filed for the prosecution on 24.6.83 and 25.6.83, we are unable to accept the contention of Mr. Ghosh that prosecution has given sufficient explanation in this case for non-examination of the doctor. When the doctor was to join his duties on 27.6.83, prosecution could well have prayed for adjournment for some more days for examination of the doctor instead of straight way filing a petition for treating the postmortem report as evidence under section 294, Cr.P.C. The provisions of section 294, Cr.P.C. relate to formal proof of certain documents. The marginal note to that section is, "no formal proof of certain documents. This marginal note suggests that section 294, Cr.P.C. is intended to avoid wastage of time for proof of certain documents, formal proof of which can be dispensed with in the circumstances mentioned in section 294(1), Cr.P.C. These circumstances are filing of a list of documents by either the prosecution or the accused and calling upon either the prosecution or the accused to admit or deny the genuineness of each such document mentioned in this list of documents. There is nothing in the record of the court below to show that any such list of documents was filed for the prosecution in the court below or that, prior to 25.6.83, the learned Advocate for the appellant in the court below was called upon by the prosecution to admit or deny the genuineness of the postmortem report. We are accordingly, of the opinion that the provisions of section 294(1), Cr.P.C. have not been properly complied with in this case. Even assuming that the provisions of section 294(1), Cr.P.C. have been complied with in this case, in view of the aforesaid order no.8 dated 25.6.83 passed by the learned Sessions Judge, opinion evidence like a postmortem report cannot but be hearsay evidence (Rahim Khan vs. Khurshid Ahmed, (1974) 2 SCC

660. Section 60 of the Evidence Act is to the effect that oral evidence must, in all cases whatever, he directs and if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. There is proviso to this provision regarding reception of opinion evidence alike the provision in section 32 of the Evidence Act. Though the term "hearsay" means statements, oral or written, reported to have been made by persons not called as witnesses. Such statements are not admissible in evidence subject to certain exceptions mentioned in sections 17 to 39 of the Evidence Act. These sections 17 to 39 find place in Chapter II of the Evidence Act. In the case of Gafur Sheik (1984 Cr LJ 559), it was observed that no evidence was led to show that the postmortem report was being tendered in evidence under any of the provisions in Chapter II of the Evidence Act and hence the postmortem report could be used as substantive evidence. What Their Lordships presumably meant by referring to Chapter II of the Evidence Act were the provisions of sections 17 to 39 of the Evidence Act, which were exceptions to the hearsay rule. The postmortem report cannot fall within any such exceptions in sections 17 to 39 of the Evidence Act. Mr. Ghosh wanted to rely of the provisions of section 58 of the Evidence Act and contended that when the learned advocate for the accused in the court below did not object to the postmortem report being admitted in evidence, the postmortem report would go as admission. This contention cannot be accepted. A distinction is always maintained by the courts between judicial admission and evidentiary admission. Section 58 of the Evidence Act is confined to judicial admission such as admission, by the pleadings. The expression "read in evidence" in section 294(3), Cr.P.C. cannot be judicial admission within the meaning of section 58 of the Evidence Act. With due respect to Their Lordships, we are unable to accept the view expressed in thecase of Saddiq (1981 Cr LJ 379) that this expression "read in evidence" in section 294(3), Cr.P.C. means "read as substantive evidence". The expression "read in evidence" in section 294(3) Cr.P.C. cannot mean "read as substantive evidence" in view of the bar under the aforesaid section 60 of the Evidence Act under which if a document refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on these grounds. This provision in section 60 of the Evidence Act, if considered with the provisions in section45 of the Evidence Act, go to show that the opinion given by the doctor, who held the postmortem examination, can never be substantive evidence in the absence of examination of the doctor who held that opinion. We are of the opinion that in a case covered by section 294(1), Cr.P.C. the matters which could be "read in evidence" under section 294(3) Cr.P.C. are factum of holding of the postmortem examination of the dead body by the doctor on the date mentioned in the postmortem report, the identification of the dead body before the doctor by the person claiming to have identified the dead body before the doctor as well as the existence of the injuries found by the doctor on an examination of that dead body and that the opinion given by the doctor in the postmortem report about the cause of the injuries or the effect of the injuries of the dimension of the injuries found by him cannot be substantive evidence in view of the bar under section 60 of the Evidence Act. It is to be stated in this connection that a distinction is also drawn by the courts between the factum of a statement and the truth of a statement. The aforesaid matters, viz, holding of postmortem examination on a certain date by a doctor, identification of dead body by a person before a doctor and the existence of the injuries in the person of the dead body found by the doctor are matters of fact as contrasted with the truth of the other statements made in a postmortem report, such as giving opinion about the cause of the injuries or dimension of the injuries or the result of the injuries. We are, accordingly, of the opinion that the postmortem report, ext.4, may be read as evidence about the factum of holding of postmortem examination by the doctor, identification of the dead body of Hiramoni before the doctor and the existence of the injuries without their dimensions, mentioned in the postmortem report and in the judgment of the learned Judge, when no objection was raised in the court below about the reception of the report as exhibit."

It may be pointed our that the postmortem report was tendered in the present case without any objection. Moreover, the fact that the deceased were beaten to death on the spot is well proved. Not only that they were beaten to death their dead bodies were thrown into the adjoining well which were recovered from the well by the members of the fire brigade. The Division Bench in the case of Arjun Mandi on the basis of the other evidence dismissed the appeal from conviction. The same course may be followed in the present case and therefore this judgment of the Division Bench has no manner of application. We however hasten to add that the judgment is clearly against the mandate of section 294(3) Cr.P.C.