A.N. Ray, J.
1. This is an appeal Under Section 116A of the Representation of the People Act, 1951 against the judgment and order dated 5 March, 1970 of the High Court at Patna declaring the election of the appellant void.
2. The appellant and respondents No. 1 to 10 were candidates at the election of a member to the Bihar Legislative Assembly from Gaya Mufassal Assembly Constituency No. 251.
3. The date of poll was 9 February, 1969. The counting of votes took place on 12 February, 1969. The appellant obtained 15, 799 votes and was declared elected.
4. Respondent No. 1 Surajdeo Singh filed an election petition in the Patna High Court challenging the election of the appellant as a member to the Bihar Legislative Assembly from the Gaya Mufassil Constituency.
5. The election of the appellant was challenged on various grounds. The principal grounds were these. First, the appellant was guilty of committing a corrupt practice of bribing respondent No. 11 Ishwari Prasad Singh and thus inducing him to withdraw his candidature from the contest. Second, the appellant obtained the assistance for the furtherance of his prospects at the election from one J.N. Singh, Anchal Adhikari cum Block Development Officer who between 15 January, 1969 and 6 February, 1969 on the pretext of collection of loan canvassed votes for the appellant. The third ground for impeaching the election of the appellant was commission of corrupt practices by him and his election agent and by other persons with the consent of the appellant.
6. The respondent election petitioner at the trial confined the third ground to commission of corrupt practices by the appellant and his election agent and other persons at three places, namely,Kayeea Polling Station No. 62, Bijubigha Polling Station No. 38, and Sadipur Polling Station No. 40.
7. The High Court did not accept the case of the respondent election petitioner that the appellant bribed respondent No. 11 and thus induced him to withdraw from the contest. The High Court also rejected the case of the respondent election petitioner as to the scaring away of voters at Bijubigha and Sadipur Polling Stations. The High Court however found the case in respect of exercise of under influence at Kayeea Polling Station as well as canvassing of votes by J.N. Singh in favour of the appellant to be true and thus declared the election of the appellant void.
8. At the hearing of the appeal Mr. Gupta Counsel for the appellant addressed agruments on the case of exercise of undue influence at Kayeea Polling Station and quite fairly submitted that if this Court came to the conclusion that allegations of undue influence at Kayeea Polling Station were proved the appellant could not succeed in the appeal.
9. The allegations as to Kayeea polling booth No. 62 were those. On 9 February, 1969 at about 3.30 p m. when the polling at Kayeea booth No. 62 was in progress, the appellant along with his proposer and worker Nagendra Singh along with others came near the polling station seated in a jeep car and got down near the polling station. Nagendra Singh who was armed with a gun and the appellant started dissuading the voters from exercising their franchise or to vote for the Congress candidate. On refusal by most of the voters to accede to their command the appellant ordered assault whereupon Nagendrasingh tired his gun with the result that Dukhan Yadav received pellet injury. Thereafter the voters numbering about 150 who had assembled to exercise their franchise were scared away and they left the place without exercising their franchise. The particulars of the alleged corrupt practices were set out in annexure 3 to the petition. In that annexure the time of the occurrence at Kayeea Polling Station was 3.30 p m on 9 February, 1969 the date of the pulling. The persons who committed the corrupt practice were stated to be the appellant, Nagendra Singh, Sakaldip Singh and Nand Bihar Singh. Nagendrasingh was the proposter and worker of the appellant Sakaldip Singh and Nand Bihar Singh were the workers of the appellant. The names of some of the persons who did not cast their votes and were scared away were furnished in the particular. Names of 13 persons were given. On these 13. persons three were examined. They Were Brajeshwar Singh P.W. 20, Rambilash Singh P.W. 27 and Ram Assis Singh P.W. 30.
10. The High Court held that on the evidence adduced the incident of firing as alleged by the election petitioner at Kayeea polling station had been fully substantiated. The High Court also held that the result of the voting as could be gathered from the Presiding Officer's report would show that between 2 and 4.30 p.m. only 65 votes were cast at Kayeea polling station whereas from 7.30 a.m. to 10 A M. 100 votes, from 10 A M. to 12A.M. 150 votes and from 12 A.M. to 2 PM. 100 votes had been cast. The High Court accepted the case of the election petitioner that the appellant was guilty of the commission of corrupt practice at Kayeea polling station.
11. The evidence adduced established that the appellant and Nagendra Singh with a gun in his hand were moving around in a jeep at Kayeea polling station Dukhan Yadav P.W. 18, Kedar Mahto P.W. 39 and Chhatar Mahto P.W. 42 were coming along a foot-path and when they came to the road, a jeep and a car came there. The witnesses saw the appellant and Nagendra Singh with a gun and a driver inside the jeep. The evidence of the witnesses on behalf of the election petitioner was as follows. The appellant asked those persons assembled there as to whom they were going to vote for and their reply was that they would vote for Machhli Chhap (the fish symbol). Thereupon the appellant and Nagendra Singh insisted that they should vote for the bullock chhap the symbol of the Congress Party. Those persons said that they would vote according to their own choice and not at the dictate of any person This enraged the appellant and Nagendra Singh. The appellant ordered Nagendra Prasad Singh to shoot at them. When Nagendra Prasad Singh took up his gun and began to load the cartridge, these persons started fleeing away. But Nagendra Prasad Singh shot his gun which hit Dukhan Yadav in his neck. Dukhan Yadav pressed the wound and sat down. The other two companions then also came near him On hearing the gun fire most of the voiers, got scared and fled away. The Magistrate and some armed constables who were near the Kayeea polling station came there. The Magistrate and the Sub-Inspector of Police went towards the place from where the gun fire had been heard. The first information report of Dukhan Yadav was recorded on the spot The Magistrate, Rameshwar Mahto and Ramkishun Yadav put their signatures. Thereafter the jeep passed close to the booth. Seeing the appellant, his polling agents Sakaldip Singh and Nand Bihari Singh raised a cry of 'maro maro . At this, many voters who still remained there left the queue and fled away without casting their votes.
12. The Sub-Inspector of Police Ramlakhan Prasad and the Magistrate A.N. Ghosh both ran in the direction from where the gun fire had been shot. The Sub-Inspector gave evidence that he found Dukhan Yadav injured. The Sub-Inspector wrote the First Information Report. Dukhan Yadav supported the F.I.R. and said that the statements contained therein were made by him. The F.I.R. was attested by Rameshwar Mahto and Ramkishun Yadav. Both of them gave evidence. The Sub-Inspector P.W. 46 said that he saw both the appellant and Nagendra Singh on a jeep and that Nagendra Prasad Singh was carrying a gun in his hand.
13. Dukhan Yadav said that Nagendra Singh was carrying a gun. The appellant and Nagendra Singh asked Dukhan Yadav and others as to where they were going to vote. Dukhanyadav and others said that they would cast vote for Machhli Chhap (fish symbol). Thereupon the appellant asked Nagendra Singh to shoot. Dukhan like others started fleeing away from that place. But Cukhan received the pallet injury in his neck.
14. The Magistrate A.N. Ghosh P.W. 48 said that he along with his officers was standing in the booth when he heard a gun fire shot. The Magistrate and his officers went towards the side from which the gun fire shot had been heard. While going that way the Magistrate saw a jeep and a car The Magistrate recognised the two persons sitting in the jeep and they were the appellant and Nagi ndra Singh. The Magistrate said that Nagendra Singh was the lawyer at Gaya. The Magistrate also said that he knew both Nagendra Singh and the appellant and that he had seen Nagendra Singh and the appellant before in connection with the election. The Magistrate referred to Exhibit 4 'The First Information Report' and said that the Sub Inspector of Police recorded the first information report and he put his signatures on Exhibit 4, the first information report.
15. P.W. 17 Rameshwar Mah'o said that at about 3 or 3.30 p.m. a gun fire was heard and about 100 to 125 persons were standing in a line to cast their votes. Some of them got afraid and fled away. Rameshwar Mahto also said that he saw a jeep and a car coming towards the polling booth Rameshwar Mahto also said that when the jeep passed near the booth Sakaldip Singh and Nand Bihari Singh cried out 'maro maro' and the voters got frightened and were scared away.
16. P.W. 27 Rambilas Singh said that he was standing in the line for casting his vote when he heard the gun fire. He was confused. The line was broken. Some people fled away. Ratnbilas saw a jeep coming followed by a taxi or car. The witness saw in the jeep the appellant and Nagendra Singh who had a gun in his hand. Rambilas Singh said that at the sight of the car Sakaldip Singh and Nand Bihar Singh raised the cry of 'maro maro' and at that cry the witness and the others fled away.
17. The evidence of Rameshwar Mahto was criticised on the ground that he was interested and inimical The High Court rightly answered that criticism by holding that Rameshwar Mahto was the polling agent of Shoshit Dal and not of the ejection petitioner. Again, the evidence of Rambilas Singh was criticised on the ground that he was not examined as an eye-witness before the investigating officer. It may not always be possible to examine all the witnesses before the investigating officer.
18. Nagendra Singh said that he had gone to Kayeea in the company of the appellant. He also saw the Magistrate and the Sub-Inspector of Police. He heard the cry of 'maro maro'. He however could not ascertain till the day of his deposition as to who had fired the gun.
19. The appellant also said that he had gone to Kayeea in the company of Nagendra Singh and that both of them were in a jeep.
20. There was some common place comment at the trial about the witnesses namely that they were inimical or partisan or they were not consistent about the time of the occurrence. Mr. Gupta however did not rely on such comments on the evidence. He put if quite squarely that it was really a question as to belief of the evidence on behalf of the petitioner.
21. The broad and basic features of the petilioner's case have been established beyond doubt.
22. The First Information Report Exhibit 4 was recorded at 4. 15 p.m. on 9 February, 1969. It was really the most contemporaneous documentary evidence which supported the case of the election petitioner. There is no evidence whatever to suggest that Dukhan Yadav manufactured a case against the appellant. The appellant and Nagendra Singh were together. Nagendra Singh was carrying a gun. The appellant asked Nagendra Singh to shoot. Nagendra Singh fired the gun. Dukhan Yadav received a pellet injury from that gun shot. Many voters were waiting in a queue to cast their vote. The gun shot and the cry of 'maro maro' raised by Sakaldip Singh and Nand Bihar Singh scared away the voters. The report of the Presiding Officer also indicates that the number of persons who cast their votes prior to the firing incident was large.
23. It is significant that the appellant in the written statement denied that there was any occurrence at the Kayeea polling booth. To some of the witnesses examined on behalf of the election petitioner it was suggested on behalf of the appellant that a firing took place when a quarrel developed between the Yadavas of village Kayeea and the Rajputs of village Chiraila. There was no such case pleaded in the written statement This was an afterthought to extricate from the established evidence of firing by Nagendrasingh who was in the company of the appellant.
24. The High Court rightly accepted the oral evidence as well as the documentary evidence adduced on behalf of the petitioner and came to the conclusion that (he appellant was guilty of corrupt practice at Kayeea polling station. The appeal is dismissed The appellant will pay costs to the respondents.