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24. The situation would have been different had the appellant adduced primary evidence, by

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making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act."

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electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil cases in accordance with law, and in accordance with the requirements of justice on the facts of each case. When it comes to criminal trials, it is important to keep in mind the general principle that the accused must be supplied all documents that the prosecution seeks to rely upon before commencement of the trial, under the relevant sections of the CrPC.

73. The reference is thus answered by stating that:

73.1. Anvar P.V., as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad and the judgment dated

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03.04.2018 reported as Shafhi Mohd. V.State of H.P., do not lay down the law correctly and are therefore overruled.

30. Further, on the charge of conspiracy under Section 120B of Indian Penal Code, it was necessary to establish that there was agreement between the parties for doing unlawful act and it is very difficult to establish direct evidence. At the same time in the absence of any evidence to show meeting made between conspirator for concealing the committed act, it is not possible to hold any person guilty for the offence under Section 120B. But in the present case charge was not only 120B, but also Section 302 read with Section 34 of Indian Penal Code against the accused persons. Though the conspiracy has not been proved based on the alleged confession statement of the accused or in the absence of certificate under Section 65B(4) of the Act, even though the prosecution proved the conspiracy between parties by the oral and documentary evidence, in view of the mandate of Section 65B of the Act, they are technically escaping from the clutches of law for the offence under Section