JUDGMENT

ALAGIRISWAMI, J.:—This appeal arises out of an election petition questioning the election of 1st respondent in the election held in March 1971 to the Lok Sabha from the Banaskantha constituency in Gujarat. In that election the 1st respondent, a nominee of the Ruling Congress was declared elected securing 1,16,532 votes as against 92,945 votes secured by the 2nd respondent, a nominee of the Organisation Congress. The appellant, a voter in the constituency, also belonging to the Organisation Congress, filed a petition challenging the validity of the election on various grounds out of which only those covered by issue No. 10, hereinafter set out survive for consideration :

"(10) Whether respondent No. 1 or his agents or/other persons with his consent made a gift or promise of gratification to the petitioner with the object directly or indirectly of inducing the petitioner to vote for respondent No. 1 or to refrain from voting for respondent No. 2?"

2. The allegation relating to this charge in the election petition is that the 1st respondent and his agent Maulvi Abdul Rehman and the 1st respondent s son Bipin Popatlal Joshi with the consent of the 1st respondent had made a gift and a promise of gratification to the appellant for voting in 1st respondent s favour. The appellant as well as one Madhusudansinhji, who has been examined as P. W. 10. seem to have been at that time prominent members of the Organisation Congress and also leaders of the Kshatriva community which formed about 20 to 25 per cent of the votes in the Banaskantha constituency. It was alleged that on February 9, 1971 the 1st respondent and Maulvi Abdur Rehman came to the appellant s residence and persuaded him to leave Congress (O) and join Congress (R) offering (1) to secure a party ticket for the appellant for the election to the Gujarat Legislative Assembly in 1972. (2) to meet all his expenses for that election and to pay him Rs 10,000/- in cash towards the said expenses, and (3) to construct a hostel for the Kshatriya students of the Banaskantha district. A specific allegation was made that the 1st respondent wanted the appellant to vote for him. It was also alleged that the 1st respondent asked the appellant to convey to Madhusudansinhji an offer of a party ticket for the Legislative Assembly election in 1972 and to pay him also a sum of Rs. 10,000/-. The Prime Minister was addressing a meeting at Palanpur on that day. The appellant, his wife and Madhusudansinhji were taken to the helipad, Palanpur when the Prime Minister landed there and also to dais from which the Prime Minister was addressing a public meeting. One Akbarbhai Chavda, convener of the District Congress Committee announced that the appellant and Madhusudansinhji had joined Congress (R) and asked the appellant to say a few words: The appellant went to the microphone, took out the bundle of notes of Rs. 10,000/- given to him and flung it in the air and told the gathering that he and his colleagues could not be purchased and that they would remain loyal to the Organisation Congress.

3. During the trial of the election petition Madhusudansinhji, who had by that time joined the Ruling Congress and Maulvi Abdur Rehman were examined as witnesses on behalf of the appellant.

4. The learned Judge of the High Court after considering the evidence before him held that Bipin Popatlal Joshi, son of the 1st respondent, handed over Rs. 10,000/- to the appellant as a bribe to bring about the appellant s defection from the Organisation Congress. But he took the view that the object of the gift was to bring about the appellant s defection from the Organisation Congress and not to induce directly or indirectly any voters to cast their votes for the Ruling Congress candidate or to refrain from voting in favour of the 2nd respondent. As regards the offer to build the hostel for Kshatriya students he held that the fact that a person who defects from another party to the Ruling Congress would be expected to work