JUDGMENT B.A.Patil, J. - Crl.A.No.100386/2017 has been preferred by appellant/accused No.1 and Crl.A.No.100387/2017 has been preferred by appellants/accused Nos.2 to 4 being aggrieved by the judgment of conviction and order of sentence passed by the I Addl. District and Sessions Judge, Bagalkot, to sit at Jamakhandi in S.C.No.39/2016 dated 15.11.2017. 2. We have heard Sri S.N.Bendigeri, for Sri S.B.Deyannanavar, learned counsel appearing for the appellants/accused and Sri V.M.Banakar, learned Addl. SPP appearing for the respondent-State. 3. The case of the prosecution in brief is that on 31.01.2016, accused No.1/Smt.Muttavva wife of the deceased filed a complaint against the driver of unknown vehicle wherein her husband met with the accident and he died and in that light, a case was registered in Cr.No.10/2016. It is her further case that the marriage of the complainant was solemnized with deceased Siddappa Hiroji about 8 years prior to the incident and they have begotten four children out of the said wedlock. Three children were residing with their relatives and the daughter by name Savitri was residing with them. About 6 to 7 months prior to the incident, deceased bought a new HF Deluxe motorcycle bearing No.KA-23/EL-0370 which was not written on the number plate and he was using the said vehicle for his personal use. It is further alleged that on 30.01.2016 at about 5 p.m., complainant along with her husband and daughter went to Mahalingpur as the complainant was not feeling well. The deceased dropped the complainant and the daughter at Dr.Sorgavi Hospital and deceased went to Dr.Athani and thereafter, he did not return till 9 p.m. Hence, they had been to their relatives house at Mahalingpur and stayed there overnight. 4. On 31.01.2016 in the morning hours, there was rumor that a dead body was lying near the Reliance Petrol Pump at Mahalingapur and a person on motorcycle had met with an accident. The complainant along with her relatives went to the spot and identified the dead body as that of her husband and thereafter she filed the complaint. 5. During the course of investigation the Investigating Of ficer arrested the complainant accused No.1 and recorded her voluntary statement. Subsequently, during investigation, Investigating Officer came to know that the deceased had started consuming alcohol and used to scold and assault accused No.1. He also used to suspect the fidel ity of accused No.1. 5. During the course of investigation the Investigating Of ficer arrested the complainant accused No.1 and recorded her voluntary statement. Subsequently, during investigation, Investigating Officer came to know that the deceased had started consuming alcohol and used to scold and assault accused No.1. He also used to suspect the fidel ity of accused No.1. In that l ight, being enraged, accused No.1 conspired with accused Nos.2 to 4 and committed the al leged offences. After investigation charge sheet came to be filed. 6. The committal Court committed the case to the Sessions Court wherein charge was framed after hearing the learned Publ ic Prosecutor and the learned counsel for the accused. They pleaded not gui lty and claimed to be tried, as such, trial was fixed. To prove the case of the prosecution, the prosecution has examined 19 witnesses got marked 53 documents and 11 material objects. Thereafter, statement of the accused was recorded by putting incriminating materials as against them. The accused denied the same and they have not lead any defence evidence nor got marked any documents. After hearing both the sides, impugned judgment of conviction and order of sentence came to be passed. 7. The main grounds urged by the learned counsel for the appellants-accused are that the judgment of conviction and order of sentence passed by the trial Court is not sustainable in law and the same is l iable to be set aside. Neither there is evidence to show that the appellantaccused No.1 abated nor conspired with the other accused persons to eliminate the deceased but the trial Court without looking into the said aspect has wrongly convicted the accused for the al leged offences. Even though PW10 has not supported the case of the prosecution to establ ish the fact that he had lastly seen accused Nos.1 to 4 together in Mathura Hotel. The CCTV footage which have been produced by the prosecution does not contain the certif icate as per Section 65B of the Evidence Act. The same is not reliable. PW2 is neither possessor of the said record nor PW11. Unti l al l those aspects are established, the same cannot be considered as evidence in the eye of law. 8. The CCTV footage which have been produced by the prosecution does not contain the certif icate as per Section 65B of the Evidence Act. The same is not reliable. PW2 is neither possessor of the said record nor PW11. Unti l al l those aspects are established, the same cannot be considered as evidence in the eye of law. 8. The electronic record in evidence not being the original electronic record, if it is not accompanied with the certificate as specif ied u/s 65(B) (4) of the Indian Evidence Act under such circumstances, the same cannot be admitted in evidence. Though the said proposition of law has been laid down by the apex Court, the trial Court without looking into the said aspect has come to a wrong conclusion and convicted the accused. 9. The four mobi le phones have been recovered from the accused persons and cal l details have been produced at Exs.P.36 to P.41 but no connecting l ink has been establ ished in any manner so as to show that accused Nos.1 to 4 conspired and it is accused No.1 who abated the remaining accused persons to eliminate the deceased. Though the said documents have been produced through PW18, no details have been deposed by him in his evidence as to when and how the cal ls have been made by the accused and also the details as to from whose mobi le phone calls are made and to whom is also not forthcoming. Though there is no suff icient evidence produced by the prosecution to establ ish the fact that the accused Nos.1 to 4 conspired with each other and it is accused Nos.1 who abated accused Nos.2 to 4 to commit the offence, the trial Court only on the evidence of the seizure and related witnesses has come to a wrong conclusion and has wrongly convicted the accused. On these grounds he prayed to al low the appeals and to set aside the judgment of conviction and order of sentence passed by the trial Court. 10. Per contra, learned Sri V.M. Banakar, Addl. SPP, vehemently argued and submitted that the evidence of PW11 and CCTV footage produced at MO8 clearly goes to show that accused Nos.1 to 4 have conspired and it is accused No.1 who abated accused Nos.2 to 4 to eliminate the deceased. 10. Per contra, learned Sri V.M. Banakar, Addl. SPP, vehemently argued and submitted that the evidence of PW11 and CCTV footage produced at MO8 clearly goes to show that accused Nos.1 to 4 have conspired and it is accused No.1 who abated accused Nos.2 to 4 to eliminate the deceased. PWs 5 to 9 have clearly stated in their evidence that the deceased used to consume alcohol and he also use to suspect f idelity of the accused No.1 and assault her. In that light, the accused No.1 conspired with the other accused and committed the al leged offence to show as if it is an accidental death. The prosecution has also produced the cal l details at Exs.P.36 to 41 and during the course of examination-in-chief whi le producing the said documents so also their marking as exhibits as Material Object at MO8, the accused have not objected and at this stage now the said issue cannot be raised. Under such circumstances the trial Court has rightly relied upon such evidence and has come to a right conclusion and convicted the accused. On these grounds he prayed to dismiss the appeals. 11. We have careful ly and cautiously gone through the submissions of the learned counsel for the appellants-accused so also the learned Addl. SPP for the respondent-State and perused the records including the trial Court records. 12. To prove the fact that the deceased died a homicidal death, the prosecution got examined PW1, the inquest mahazar pancha. In his evidence he has deposed that he had been to Mahal ingapur hospital at about 5.30 PM and after seeing the dead body he came out and at that time the Pol ice cal led him along with CW3 and they went and saw the dead body of the deceased and they noticed scratch injury on the chest, back, chin and right palm so also bandage, there was some ligature black mark on the neck. The CPI asked him what he feels by seeing the said marks and he expressed it may be of strangulation. Thereafter, the CPI sent the dead body for postmortem. During the course of crossexamination of this witness much has not been brought on record so as to discard the evidence of this witness. 13. Pw12 is the Doctor who conducted autopsy over the dead body of the deceased. Thereafter, the CPI sent the dead body for postmortem. During the course of crossexamination of this witness much has not been brought on record so as to discard the evidence of this witness. 13. Pw12 is the Doctor who conducted autopsy over the dead body of the deceased. In his evidence he has deposed that there was fracture of mandible, blood oozed from the mouth, abrasion on the face, chest and leg (previous injury), hang mark on the neck, fracture of thyroid cartilage, injury to Oesophago and Legar Mortis was present. He has given opinion that the cause of death is due to asphyxia secondary to strangulation. He has also produced postmortem report as per Ex.P.29. He opined that the death is a homicidal one and he has issued opinion as per Ex.P.32. On perusal of the evidence of these witnesses it clearly goes to show that the deceased died a homicidal death. 14. In order to prove the motive behind the crime, the prosecution has relied upon the evidence of PWs 5, 6, 7, 8 and 9. 15. Pw5 is the elder brother of the deceased. In his evidence he has deposed that he is residing separately at Hittanapur and his mother used to stay along with the deceased and as she was not keeping well she went to his sister's house at Kesaragoppa and in the recent past her brother deceased Siddappa started consuming l iquor and whenever he consumes l iquor he used to quarrel with his wife suspecting her fidelity. He further deposed that the CPI told him that the three accused have confessed that they have committed murder of the deceased. During the course of cross-examination he has denied al l the suggestions made to him. In his evidence he has deposed that the deceased after the marriage was residing separately and looking after his business independently. He further admitted the fact that his brother by consuming alcohol used to drive the two wheeler, had fell 2-3 times and sustained injuries. 16. Pws 6, 7, 8 and 9 reiterated the evidence of PW5. Though they have deposed that the deceased was in the habit of consuming alcohol and use to suspect the fidelity of accused No.1 but only on the interested testimony of these witnesses, it cannot be held that there was some misunderstanding between the deceased and the accused No.1. 16. Pws 6, 7, 8 and 9 reiterated the evidence of PW5. Though they have deposed that the deceased was in the habit of consuming alcohol and use to suspect the fidelity of accused No.1 but only on the interested testimony of these witnesses, it cannot be held that there was some misunderstanding between the deceased and the accused No.1. Even for having quarreled with his wife neither the neighbours nor any independent witnesses have been examined, nor they have been advised in this behalf by al l these witnesses. Under such circumstances, the motive which is intended to be relied upon by the prosecution to establ ish the fact that deceased used to abuse accused No.1 by consuming alcohol by suspecting the fidel ity and in that l ight, the alleged incident has taken place cannot be accepted. 17. The third aspect which has been relied upon by the prosecution is the last seen theory. In this behalf it has relied upon the evidence of PW10 who has deposed that accused Nos.1 to 4 came to Mathura Hotel wherein they conspired and it is accused No.1 who abated the other accused persons to eliminate the deceased. But this witness has completely turned hosti le and even during the course of cross-examination by learned Publ ic Prosecutor nothing has been elucidated so as to support the case of the prosecution in any manner. 18. In order to establ ish the last seen theory and even if it is establ ished no inference can be drawn only on close proximity between the last seen and the factum of death. The last seen does not by itself necessari ly lead to the inference that the accused has committed crime. In this behalf we would like to rely upon the decision of the Hon'ble Supreme Court in the case of Rajender alias Rajesh alias Raju V. State (NCT of Delhi), (2019) 10 SCC 623 . At paragraph No.12.2.5 it has been observed as under: 12.2.5. Notably, a circumstance of last seen does not, by itself , necessarily lead to an inference that the accused committed the crime. There must be something more that establ ishes a connection between the accused and the crime. At paragraph No.12.2.5 it has been observed as under: 12.2.5. Notably, a circumstance of last seen does not, by itself , necessarily lead to an inference that the accused committed the crime. There must be something more that establ ishes a connection between the accused and the crime. For instance, there may be cases where close proximity between the event of last seen and the factum of death may persuade a rational mind to reach the irresistible conclusion that the last seen of the deceased is material and merits an explanation f rom the accused. 19. The prosecution has also relied upon the evidence of PW11. In his evidence he has not spoken with regard to the presence of accused Nos.1 to 4 at Mathura Hotel but in his evidence he has deposed that on 30.01.2016 the Pol ice asked him to give CCTV footage and as he has not acquainted with the taking out of CCTV footage the Pol ice took the DVR and took the CCTV footage and recorded the same in CD and he has produced the same before the Pol ice and the same has been seized by drawing mahazar as per Ex.P.18. MO8 is the CD which has been produced in this behalf. During the course of cross-examination of this witness he has deposed that he is not an expert in taking out the CCTV footage and no mahazar has been drawn while drawing the CCTV footage. 20. Pw11 has deposed in his evidence that accused Nos.2 to 4 are the same persons who have been produced by the Police. Except that, nothing has been elicited by the prosecution in this behalf. 21. We have careful ly and cautiously gone through the materials produced by the prosecution. 22. The prosecution has also relied upon the mobile phone cal l detai ls. Four mobi le phones have also been recovered from the accused and also got produced cal l detai ls at Exs.P.36 to 41. Though, in order to prove the cal l detai ls PW18 came to be examined but in his evidence no l inks have been given by him as to in what manner the said evidence is going to substantiate the fact that there was conspiracy between accused Nos.1 to 4 and it is accused No.1 who abated accused Nos.2 to 4. The prosecution has also rel ied upon the evidence of PW2 who he is none other than the recovery mahazar panch to Exs.P.4 to 9 whereunder the mobi le phones have been recovered from accused Nos.2 to 4. But it is of no avai l. 23. Though it is contended by the learned Addl. SPP that, during the course of evidence with regard to the marking of cal l detai ls and MO8 there was no objection by the accused. But, as per Ex.65(B)(4) of the Indian Evidence Act it is mandatory pre-requirement that the said electronic record l ike CD, VCD, pen drive, call details of the phone, have to contain a certif icate or it must be accompanied with the certif icate containing the statement which is sought to be given as a secondary evidence. In the absence of such certif icate the secondary evidence of electronic record cannot be admitted in evidence. In order to substantiate the said fact, we would l ike to rely upon the decision of the Hon'ble Supreme Court in the case of Anvar P.V. V. P.K. Basheer and Others, (2014) 10 SCC 473 . At paragraph No. 16 it has been observed as under: "16. It is further clarif ied that the person need only to state in the certif icate that the same is to the best of his knowledge and bel ief . Most importantly, such a certif icate must accompany the electronic record l ike computer printout, compact disc (CD) , video compact disc (VCD) , pen drive, etc. , pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. Al l these safeguards are taken to ensure the source and authenticity, which are the two hal lmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, al teration, transposition, excision, etc. wi thout such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice." - - - 24. But, subsequently in the case of Rajendra @ Rajesh @ Raju quoted supra, the Hon'ble Apex Court observed that the objections with regard to the marking of the electronic records has to be raised at the earl iest point of time. But, subsequently in the case of Rajendra @ Rajesh @ Raju quoted supra, the Hon'ble Apex Court observed that the objections with regard to the marking of the electronic records has to be raised at the earl iest point of time. The objections relating to the mode or method of proof has to be raised at the time of marking of document as exhibit and not later. In that l ight, it appears that there is some force in the arguments advanced by the learned Addl. SPP in this behalf. But, even if the said cal l detai ls and MO8-CD are taken into consideration they are not going to throw much l ight on the fact that accused Nos.1 to 4 conspired in Mathura Hotel and that it is accused No.1 who abated the other accused to commit the offences. 25. Usually, conspiracy is not going to be held at an open and crowded place. Admittedly, the said place is a hotel. If really the accused No.1 was intending to eliminate the deceased with the help of accused Nos.2 to 4, then under such circumstances, she could not or ought not to have come along with the deceased on his motorcycle to visit the hospital under the pretext of not feeling well. It was the deceased who dropped the complainant and her daughter at Dr.Swargan Hospital and deceased went to Dr.Athani. Prosecution has not produced any l ink to show earlier to the incident whether any contact has been made with accused, and how on the date of incident al l of a sudden they gathered in the hotel and acted immediately. Under such circumstances, the recovery of mobi les from accused Nos.2 to 4 and the cal l detai ls produced at Exs.P.36 to 41 and even the production of CD at MO8 is not going to establ ish the fact that accused Nos.1 to 4 conspired and it is accused No.1 who abated other accused persons in this behalf, there is no evidence produced by the prosecution to accept the same. 26. When the materials which have been produced do not connect the link though the prosecution is intending to rely upon the last seen theory but the evidence of PW11 also does not clearly show that it is accused Nos.1 to 4 come and sat in the hotel. 26. When the materials which have been produced do not connect the link though the prosecution is intending to rely upon the last seen theory but the evidence of PW11 also does not clearly show that it is accused Nos.1 to 4 come and sat in the hotel. Even the last seen theory is appl icable only if the deceased and accused were lastly seen together and thereafter if the deceased died a homicidal death and under such circumstances, the accused has to explain under what circumstances the deceased died a unnatural death. But the prosecution is trying to establish the last seen theory to show that accused Nos.1 to 4 conspired in the hotel. Nobody has deposed even though if they are there what discussion was held between them. In that l ight, the said theory itself is not going to help the prosecution in any manner. 27. Even as could be seen from the contents of the complaint and other material, it indicates that the accused No.1 has f iled the complaint al leging that her husband met with a motorcycle accident. Even PW5, the brother of the deceased has clearly admitted that prior to the alleged incident, the deceased after consuming alcohol had driven the motorcycle and fell down and sustained injuries. Under such circumstances, it cannot be ove rruled that he might have met with accident. 28. One more crucial aspect which is noticed by this Court is that, when the inquest mahazar was drawn the CPI asked said witness, as to what is his opinion by seeing the marks on the neck of the deceased, for which the witness repl ied that, it may be a strangulation and even subsequently to PW2, the same question was put and PW2 opined that he has suspicion. Thereafter, the investigation was conducted and charge sheet came to be fi led against the accused persons. There is no concrete materials produced by the prosecution to show that because of suspecting of the fidelity of accused No.1, the accused Nos.1 to 4 conspired and accused No.1 abated the accused to eliminate the deceased and in that l ight they have committed the al leged offences. 29. There is no concrete materials produced by the prosecution to show that because of suspecting of the fidelity of accused No.1, the accused Nos.1 to 4 conspired and accused No.1 abated the accused to eliminate the deceased and in that l ight they have committed the al leged offences. 29. Even the prosecution has not establ ished the other supporting circumstances, which are also scanty and not so strong so as to come to the conclusion that it is the accused who have committed the al leged offences. When the case rests on circumstantial evidence, prosecution has to establ ish al l the circumstances and they should be so l inked up with one another. In that event, if they point out the gui lt of accused and accused alone, Court can convict the accused. But in the instant case on hand, conspiracy, evidence, abatement, last seen theory and motive have not been established. Mere suspicion however strong it is not proof and on that accused cannot be convicted. Taking into consideration the above said facts and circumstances we are of the considered opinion that the trial Court without looking into the evidence in its right perspective has come to a wrong conclusion and convicted the accused-appel lants. The said judgment is l iable to be set aside. 30. In the l ight of the discussion made by us, we proceed to pass the fol lowing order. ORDER Both the appeals are allowed. Consequently, the judgment of conviction and order of sentence passed by the learned First Addl. Dist. & Sessions Judge, Bagalkot to sit at Jamakhandi in Sessions Case No. 39/2016 dated 15.11.2017 is hereby set aside. The appellants-accused Nos.1 to 4 are acquitted of al l the charges leveled against them. Bai l bonds and surety bonds executed by the accused stand cancelled. The learned First Addl. Dist. & Sessions Judge, Bagalkot to sit at Jamakhandi, shal l refund the fine amount to the appellants-accused on proper identif ication and acknowledgement, if the same has been deposited by accused Nos.1 to 4. Registry is directed to send back the trial Court records forthwith.