A.N.Ray, J.

(1) THIS is an appeal undersection 116-A of the Representation of the People Act, 1951 against the Judgment and Order, dated 5/03/1970 of the High court of Patna declaring the election of the appellant void.

(2) THE appellant and respondents Nos. 1 to 10 were candidates at the election of a member to the Bihar Legislative Assembly from Gaya Mufassil Assembly Constituency No. 251.

(3) THE date of poll was 9/02/1969. The counting of votes took place on 12/02/1969. 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 15/01/1969 and 6/02/1969 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 undue influence at Kayeea Polling Station as well as canvassing of voters 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 arguments on the case of exercise 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 these. On 9/02/1969 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 Nagender 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 Nagendra Singh fired 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 Annx. 3 to the petition. In that Annx. the time of the occurrence at Kayeea Polling Station was 3.30 p.m. on 9/02/1969 the date of the polling. The persons who committed the corrupt practice were stated to be the appellant, Nagendra Singh, Sakaldip Singh and Nand Bihar Singh. Nagendra Singh was the proposer