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2. The question formulated by the Division Bench uses the expression "in exact words".

Learned Counsel for the parties are ad idem that the expression "in exact words" means, to depose before the Court, the contents of a dying declaration/statement of the dying person, in the words spoken by him, about the name/description, and the act of the accused, which resulted in his death. Thus, we will be considering whether a person/Magistrate/Executive Magistrate, who records a dying declaration, in order to prove the same, needs depose before the Court contents of the "statement" of a dying person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death. We would also like to consider that merely because the presumption under Section 80 of the Indian Evidence Act, 1872 ( for short, "the Evidence Act") in respect of the dying declaration recorded by a Magistrate cannot be drawn, is it necessary that the Magistrate, who records the dying declaration, should depose before the trial Court as to the cause of death of the deceased or to the circumstances of the transaction which resulted in his death and more particularly in respect of the name/description, and act of the accused, in committing the offense.

14. Mr.P.R.Patil, learned Counsel and amicus curiae, after inviting our attention to the judgments relied upon by the Division Bench in Jivan Tulshiram Dhavali's case, submitted that in none of those cases recorder of the dying declaration was examined and, in view thereof, those judgments did not lend any support for answering the second question framed in the said judgment in affirmative. He also invited our attention to the old judgments referred to in the Reference order of different High Courts and submitted that there is no need to repeat the words of the deceased by the Magistrate as to the cause of death or to the circumstances of the transaction resulting in his death. He invited our attention to Section 3 of the Indian Evidence Act to contend that written dying declaration or the statement recorded by Magistrate, as contemplated under Section 32(1) of the Evidence Act, is a document and such document, containing the statement/dying declaration of the deceased as to the cause of his death or to the circumstances in the transaction resulting in his death, can be proved taking recourse to the other provisions in the Indian Evidence Act. In support of this contention, he placed reliance upon the judgment of this Court in Bhima Thima Dhotre v, Pioneer Chemical Co.,( [1968] 70 Bom LR

They are not supposed to be acquainted with the facts and circumstances of the case. That is the reason why statements of such witnesses are never recorded under Section 161 of the Cr.P.C. by any Police officer in the course of investigation.

18.13 Under Section 161, any Police officer making an investigation is empowered to examine orally any person supposed to be acquainted with the facts and circumstances of the case. No question, as submitted by learned P.P., can be put to such witness as to the cause of death; in the sense, the Magistrate cannot be questioned in respect of an identity of the accused who, allegedly, caused fatal injuries, how the declarant was assaulted, what was the reason, etc. Therefore, even if the Magistrate does not repeat the words spoken by the deceased or the contents of his statement, as to the cause of his death, in our opinion, that would not cause any prejudice to the accused. It was further submitted that one can put questions/case in the cross examination to such witness challenging the procedure that was followed for recording a dying declaration, mental fitness/condition of a dying person, or his physical condition so as to prove that no statement could have been made and/or the statement so recorded suffers from infirmities, and so also that it was not voluntary and result of prompting/tutoring, vindictive and product of imagination. However, in our opinion, the Courts cannot place any embargo on the prerogative of the accused to cross examine the witness unless the question/s is/are irrelevant in facts of the case. 18.14 In our opinion, the recorder of "a statement/dying declaration" does not offer himself for cross examination as if he is the deceased. He is only supposed to bring the statement of the deceased on record and prove the contents thereof. As a matter of fact, the dying declaration can be proved even if its recorder is not available, being dead or who cannot be found or, for any reason whose attendance cannot be procured. Any other person such as a Doctor / Nurse, if states, that he/she was present when the deceased made such statement, in our opinion, may be sufficient to admit the dying declaration. In that eventuality, if such witness deposes before the Court that he was present when the statement was recorded by a Magistrate, he heard the deceased making such statement, saw the Magistrate recording it, taking the signature / thumb impression of its maker, and also putting his signature thereon etc. may be sufficient to prove the contents of such statement. Whether to form conviction on the basis thereof, however, would be a matter of appreciation of evidence.

19. Having considered the provisions contained in Section 32(1) of the Evidence Act, we would now like to consider as to when the "statement" of a deceased recorded in writing by a Magistrate could be said to be proved and Court can base its conviction with or without further corroboration. To prove a dying declaration, so as to form the sole basis of conviction, in our opinion, it has to pass through three stages in the course of trial, and if the dying declaration passes through all the stages successfully, the accused could be convicted solely on the basis thereof without corroboration. The first stage is to admit and exhibit the statement/dying declaration, the second is to prove the contents thereof, and lastly, it should be proved that the statement was voluntary and trustworthy, apart from the fact it is equally necessary to prove that such statement was made by the deceased in a fit state of mind. Unless the dying declaration passes through all the stages and stands to all the tests successfully, it cannot form the sole basis of conviction without corroboration. Each case, therefore, must be determined on its own facts keeping in view the circumstances in which dying declaration is made.