JUDGMENT Hon’ble Sunil Ambwani, J.—Heard Shri K.S. Rathore, learned Counsel for the petitioner and Shri Mansha Ram holding brief of Shri S.K. Pathak for Smt. Arati Devi-respondent No. 1. 2. The petitioner was declared elected as Pradhan of Village Panchayat Gohilawan, Vikas Khand Bhadohi, Distt. Sant Ravi Das Nagar on the reserved post for which election was held on 17.8.2005 and that result was declared on 28.8.2005. Total number of 714 votes were polled in which 22 votes were challenged. In the counting it was found that Smt. Arati Devi, the election petitioner secured 146 votes and returned candidate, Shri Kashi Nath, the petitioner had secured 164 votes. The petitioner was declared elected with difference of 22 votes. The Prescribed Authority/Sub Divisional Magistrate allowed the Election Petition on 24.9.2007 and has set aside the elections with directions that the vacancy be declared and bye-elections be held in accordance with law. The order of the Prescribed Authority dated 24.9.2007 was challenged by the petitioner in revision under Section 12-C (6) of the U.P. Panchayat Raj Act, 1947. The revision was dismissed by the Addl. District & Sessions Judge on 1.2.2008 confirming the finding of the Election Tribunal. 3. Brief facts given in the election petition and the findings recorded by the Election Tribunal confirmed by the Revisional Court are that the election petitioner alleged that the returned candidate belongs to ‘Patel’ biradari. He got names of 40 persons of ‘Patel’ biradari recorded in the electoral list of Gram Gohilaown illegally. They were residents of Gram Razaipur. They were shown as electors in both the voters list. The complaint in this regard was not considered by the Presiding Officer and thus 40 persons by making false declarations and fraudulent polling. affected the election result. The opposite party Nos. 2, 4, 5, 6, 7 and 8 supported the election petitioner and stated that the people residing at Village Razaipur have casted their votes in village Gohilawan. They had no concern with Village Gohilawan. The illegally casted votes helped the opposite party No. 1 to win the elections. 4. A large number of decided cases were cited by the Counsel for the petitioner alleging in defence, that once the election lists are finalised, the issue whether the electors were resident of Village Razaipur or Village Gohilawan has no consequence. The illegally casted votes helped the opposite party No. 1 to win the elections. 4. A large number of decided cases were cited by the Counsel for the petitioner alleging in defence, that once the election lists are finalised, the issue whether the electors were resident of Village Razaipur or Village Gohilawan has no consequence. In effect the election petitioner has challenged the illegal votes cast by the resident of Village Razaipur. Once they were included in the electoral list of Village Gohilawan, they could not be estopped from casting their votes. The revisional Court further found that the election petition was not properly verified in accordance with the provisions of CPC and that issues were not framed before deciding the election petition. 5. Shri K.S. Rathore has relied upon the judgment in A. Neelalohithadasan Nadar v. George Mascrene and others, JT 1994 (3) SC 181, in which the Supreme Court held while interpreting Sections 64 (4) and 94 of the Representation of People’s Act, 1951 that the principle of “secrecy of ballot” must yield to the principle of purity of elections. There were allegations of double voting and reception of invalid votes in favour of the election petitioner. The election petition was amended so as to include 10 more cases of double voting. The corresponding amendment application by the appellant that these voters had also voted in the neighbouring constituency was rejected by the High Court. The second amendment application to include 23 more cases of alleged double voting was allowed and that the Court permitted inspection of counterfoils since several double voters were summoned to appear. In order to declare such vote as void, it must be proved that such a voter actually voted at both the places. In such case the question is not resoluble only by oral evidence. The sphere of enquiry in such case would be voting and not the name of the person to whom the vote was cast. The Supreme Court did not find any illegality in the order of the High Court permitting inspection of the counterfoils. 6. In such case the question is not resoluble only by oral evidence. The sphere of enquiry in such case would be voting and not the name of the person to whom the vote was cast. The Supreme Court did not find any illegality in the order of the High Court permitting inspection of the counterfoils. 6. In I. Vikheshe Sema v. Hokishe Sema, JT 1996 (6) SC 100, the Supreme Court held that if name of person is included in more than one constituency, then sub-section (3) of Section 62 of the Representation of People’s Act, 1951 states that he shall not vote at general elections in more than one such constituency. If he votes at more than one constituency then his vote in one of the constituency in which he has made fraud shall be deemed to be void. Section 62 (4) provides that if the name of a person is included in the electoral roll in more than one place in the same constituency, then he shall not vote more than once, but if he does so, all his votes in the constituency shall be recorded as void. 7. Shri K.S. Rathore appearing for the petitioner submits that even if the 20 persons, who were found to be in the electoral list of both the villages are found to have voted in Village Gohilawan, it must be proved that they have also voted in Village Razaipur and it is only then all his votes in the constituency shall be recorded as void. He submits that the petitioner was declared elected with margin of 22 votes and that the evidence led by election petitioner proved that only 14 persons of ‘Patel’ community voted at both the places. If their votes are excluded, the petitioner would still be declared elected with margin of 7 votes and thus even if the double vote as a consequence of which the votes at both the places should be treated as void, will not materially affect the election result. If their votes are excluded, the petitioner would still be declared elected with margin of 7 votes and thus even if the double vote as a consequence of which the votes at both the places should be treated as void, will not materially affect the election result. In I. Vikheshe Sema (supra) the Supreme Court held that once the Court holds that large number of void votes were received, it was under a duty to examine the votes, which had been cast, excluding the void votes and then recount the valid votes in order to come to conclusion, whether the receiver of the void votes had materially affected the result of the returned candidate. Without undertaking this exercise the Court was wrong in coming to the conclusion that the election of the appellant was materially affected and that the same should be set aside. Paras 11, 12 and 14 of the judgment in I. Vikheshe Sema is quoted as below : “While not disputing that there had been duplication of the voters’ names in the electoral rolls, as has been indicated hereinabove, it was, however, submitted by the learned Counsel for the appellant that the respondent did not identify, by leading evidence, as to which of the voters had voted more than once because it is only thereafter that their votes could be regarded as being void and eliminated from consideration. It is true that in the present case there is no specific identification of which of the voters have voted more than once. However, the facts speak for themselves e.g. in booth No. 5 total number of votes as per the electoral roll were 815 and out of this 750 voters cast their votes. Therefore, 65 of the registered voters did not cast their votes. The total number of defective votes i.e. where names of voters appeared in the electoral list of both polling stations 5 and 6, was 269. Assuming that 65 persons who did not cast their votes were those whose names had been entered more than once, or whose names had been duplicated, and by subtracting the said 65 number from the 269 defective votes, it is clear that at least 204 out of these 269 defective duplicator voters must have voted. Taking the case of booth Nos. Taking the case of booth Nos. 5 and 6 together, it would be safe to conclude that at least 204 voters must have voted more than once. Therefore, as far as booth Nos. 5 and 6 are concerned, 408 votes had to be excluded. This is a mathematical conclusion which the Court can safely arrive at on the basis of evidence available before it. A similar exercise with regard to the duplicate votes regarding polling station Nos. 21 and 28 also shows that at least 127 persons would have voted twice. Therefore 354 votes of polling station Nos. 21 and 28 combined would be void. On this basis, it would appear that about 862 votes would be regarded as void votes. We may here again mention that at the time of arguments, it was pointed out that perhaps the total number of defective votes mentioned by the High Court was not correct, but the difference was very minor and, therefore, we have proceeded for the purpose of deciding this appeal, on the basis of the figure of the defective votes indicated in the impugned judgment. The mistake which had been committed by the High Court in the present case is in assuming that these 862 votes had materially affected the result of the election. In coming to this conclusion the High Court took into account what it termed as “the demonstrable trend and pattern of voting”. The High Court overlooked the fact that apart from the appellant and the respondent, there were three other candidates who polled a total of 2203 votes. Before an election can be set aside there has to be a definite finding, based on evidence, to the effect that the reception of these 862 odd votes had materially affected the result of the election. As held by this Court in Vashist Narain Sharma v. Dev Chandra, (1955) 1 SCR 509 : (AIR 1956 SC 573), the words “the result of the election had been materially affected” in Section 100(1)(c) of the Act, 1951 indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes, in that case, would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. Applying the same principle in the present case, once it is ascertained that the number of void votes which have been polled are more than the difference of votes polled by the returned candidate and the defeated candidate, then it has to be ascertained as to whether those void votes, which were polled and had been counted, if excluded from consideration would have materially affected the result of the election. Once, the High Court was convinced, and it was evident from the facts on record that a large number of void votes had been received and they could have affected the outcome of the election, then it was under a duty to have taken the next logical step which would have been to examine the votes which had been cast, exclude the void votes and then recounted the valid votes in order to come to the conclusion whether the reception of the void votes had materially affected the result of the returned candidate. Without undertaking this exercise the High Court was wrong in coming to the conclusion that the election of the appellant had been materially affected and that the same should be set aside.” (emphasis supplied) 8. In the present case, on the finding recorded by the Prescribed Authority and confirmed by the appellate authority it was found that members of the ‘Patel’ community of Village Razaipur entered in the electoral list at Sl. Nos. 439, 440, 441, 263, 265, 261, 260, 259, 258, 257, 256, 07, 1087, 1066 were also entered in the electoral list of Gram Panchayat Gohilawan at SI. Nos. 664, 665, 666, 794, 801, 800, 799, 798, 797, 796, 838, 1106, 110, 1017 and 885. If we exclude these 14 persons, the difference of votes would be reduced to 7 votes inasmuch as elected candidate had secured 164 votes as against 146 secured by the election petitioner. The double voting, as such, would not materially affect the election result. A perusal of the record would show that there was difference of 18 votes and not 22 votes as alleged in the election petition and in the impugned orders. This, however, also will not affect the election result as only 14 porsons were found to have voted at two places and that in that case at best the 14 would be declared as void. This, however, also will not affect the election result as only 14 porsons were found to have voted at two places and that in that case at best the 14 would be declared as void. Assuming that all the 14 votes were polled in favour of returned candidate, the election result will still not be affected. 9. The writ petition is allowed. The judgment and order passed by the SDO/Prescribed Authority, Aurai, Sant Ravi Das Nagar (Bhadohi) dated 24.9.2007 in election petition No. 4 of 2005, Arti Devi v. Kashi Nath, and the judgment dated 1.2.2008 passed by the Addl. District Judge, Court No. 3, Bhadohi in Civil Revision No. 98 of 2007 dismissing the revision, are set aside. ————