JUDGMENT : J. Das, J. - This criminal revision arises out of the appellate judgment dated 15.7.1985 upholding the conviction and sentence dated 30.4.1984 passed by Sri S.C. Misra, Asst. Sessions Judge, Anandapur in Sessions Trial No. 9/57 of 1983 convicting the Petitioner under Sections 363/366, I.P.C. and sentencing him to undergo R.I. for 5 years u/s 366, I.P.C. and awarding no separate sentence for his conviction u/s 363, I.P.C. 2. The prosecution case briefly stated is that Sumati Panda (P.W. 4) is the daughter of Karunakar Panda (P.W. 1) and Gelhamani Panda (P.W.2), Sumati Panda is said to be a minor being below 16 years of age. The accused Chaitan Charan Jena was working as a teacher of Upgraded M.E. School, Tolankapada along with P.W. 1 and it appears that the accused had family relationship with P.W. 1 and members of his family and it also appears that the accused was the private tutor of P.W. 4. In course of time there was intimacy between sumati Panda and the accused. On 9.7.1983 at about midnight while the family members were asleep, P.W. 4 went away from her house and went to the house of the accused and stayed there. On coming to know this Karunakar Panda (P.W. 1) lodged the F.I.R. During the course of investigation, Sumati Panda (P.W.4) was found in the house of the accused and she was brought to the house of P.W. 1 and in course of investigation, P.W. 4 and the accused were medically examined. After completion of the investigation charge sheet was submitted and hence the accused stood his trial and was convicted and sentenced as above. 3. The defence plea is that P.Ws. 1 and 2 had arranged, marriage of P.W. 4 with an old bridegroom and P.W. 4 was not agreeable to that marriage and thus she was ill-treated by her parents. It is also the defence plea that P.W. 4 voluntarily left her father's house. It has also been asserted that; P.W. 4 was aged about 19 years at the time of occurrence. 4. It is also the defence plea that P.W. 4 voluntarily left her father's house. It has also been asserted that; P.W. 4 was aged about 19 years at the time of occurrence. 4. Relying upon the testimony of Karunakar Panda (P.W. 1) mainly and on some other materials, the trial court and the appellate court gave the finding that the age of the girl is less them 16 years of age and that she was kidnapped from the custody of her lawful guardians for the purpose of forcible sexual intercourse and also to marry her forcibly. 5. The learned advocate for the Petitioner argued that the finding of the trial court and the appellate court is erroneous as Sumati Panda (P.W. 4) is riot aged less than 16 years and she is aged about 18 to 19 years and attained her age of discretion and she voluntarily went away from the custody of her legal guardians. 6. In a case u/s 366, I.P.C. the age of the girl is the most material evidence. Unless it is proved that the girl is less than the prescribed age, there cannot be any offence u/s 363 or 366 I.P.C. Karunakar Panda (P.W. 1) has stated that the victim girl Sumati Panda was aged about 15 years on 14.2.1984 i.e. when his evidence was recorded. In order to prove the age of Sumati, horoscope has been proved as Ext-7 and the School Leaving Certificate has been proved Ext-8, Although horoscope has been tendered in the evidence, the person preparing the horoscope has not been examined. 7. The horoscope is in Palm leaf and it is certainly a private document. The horoscope has also been written in a special object i.e. Palm leaf and in a special style. Hence the horoscope can be proved only when the person preparing the horoscope is examined or when a person acquainted with the style of hand-writing in such Palm leaf by the author of the horoscope is examined. P.W. 1 has stated that he is acquainted with the hand-writing of the author who prepared the horoscope. This statement of P.W. 1 is not sufficient. Handwriting in ink or pencil on a paper greatly differs from a hand writing in Palm leaf. P.W. 1 has stated that he is acquainted with the hand-writing of the author who prepared the horoscope. This statement of P.W. 1 is not sufficient. Handwriting in ink or pencil on a paper greatly differs from a hand writing in Palm leaf. A person will be competent to prove the writing in the horoscope prepared on Palm leaf when he proves that he is acquainted with the style of writing of the author on Palm leaf. There is no such evidence. Hence the proof of the horoscope by P.W. 1 is not satisfactory. 8. A horoscope of a child is prepared by an Astrologer on the information being received from somebody. It is found that in many cases information is supplied by the persons other than the parents also for preparation of horoscope P.W. 1 does not say that he himself supplied the information at the time of preparation of horoscope. He also does not say that soon after the horoscope was prepared, he read the horoscope and found the contents to be correct. This is also a circumstance which goes to show that the contents of the horoscope have not-been proved in accordance with law satisfactorily. 9. As per law a horoscope can be used to corroborate or contradict the evidence of the witnesses u/s 155 or 157 of the Evidence Act and in such cases horoscope may be used only for a collateral purpose and the horoscope cannot be taken, as substantive evidence. Under Section 157 of the Evidence Act former statements of witness may be proved to corroborate later testimony as to same fact. Section 151 of the Evidence Act is as follows: In order to corroborate the testimony of a witness, any former statement made by such witness relating to the, same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. The words "at or about the time" must mean that the statement must be made at once or at least shortly after the event when a reasonable opportunity for making it presents itself. 10. In this case there is absolutely no evidence that P.W. 1 himself gave the details for preparation of the horoscops and that he (P.W. 1) gave the details at once or shortly after the birth of Sumati. 10. In this case there is absolutely no evidence that P.W. 1 himself gave the details for preparation of the horoscops and that he (P.W. 1) gave the details at once or shortly after the birth of Sumati. Hence the horoscope even if it is assumed to have been prepared on the details being supplied by P.W. 1, cannot be admissible as there is no legal proof in accordance with the provisions of Section 157 of the Evidence Act. 11. The horoscope may also be used to refresh the memory u/s 159 of the Evidence Act which is as follows: A witness may while under examination refresh his memory by referring to any writing made by himself at the time of the transaction concerning, which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory. The witness may also refer to any such writing, made by any other person, and read by the witness within the time aforesaid, if when he read it he know it to be correct. The requirement of Section 159 of the Act is that when a witness refers to any writing made by any other person (as in this case) for refreshing the memory, he must prove that he read the document soon after it was prepared end the evidence should be such that the Court must consider it likely that the witness read the document at time when the details were fresh in his mind. If a document is used for refreshing the memory, it cannot be treated as substantive evidence, but it can be used for collateral purposes. In this case, however, there is no proof that. P.W. 1 had read the horoscope soon after it was prepared and at a time when the details said to have been written in the horoscope were fresh in his mind. 12. A Birth Register may be of great evidentiary value for proof of minority. A horoscope is, however, not of great evidentiary value for proof of minority (AIR 1941 Allahabad 385). 13. The School Leaving Certificate has been marked as Ext-8 P.W. 1 has proved the School Leaving Certificate and he has stated that it was granted by the Head Master. The school leaving certificate is based upon the entries in the Admission Register. A horoscope is, however, not of great evidentiary value for proof of minority (AIR 1941 Allahabad 385). 13. The School Leaving Certificate has been marked as Ext-8 P.W. 1 has proved the School Leaving Certificate and he has stated that it was granted by the Head Master. The school leaving certificate is based upon the entries in the Admission Register. P.W. 1 has stated that at the time of admission of his daughter Sumati in Class-I on 15.7.1974, he made the entry in column 261/15 of the Admission Register. In the Admission Register the data of birth was recorded- as 30.1.1969. The learned advocate for the Petitioner argues that the entry in the Admission Register has been made by Karunakar Panda and that cannot be believed as he is the father of the girl. Karunakar Panda (P.W. 1) was the Head Pandit at the relevant time and hence he made the entry in the Admission Register by the time of admitting her daughter. It is, however, true that frequently the date of birth given in the admission register is not the correct date of birth and this view is also supported by a decision reported in Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others, wherein it has been held that in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life he would have an advantage when seaking public service for which a minimum age for eligibility is often prescribed. 14. P.W. 1 has stated that he made the entry as per the horoscope. In cross-examination P.W. 1 has stated that a column is prescribed in the admission register as to if the horoscope of the student is verified while giving his age. The serial No. 261/15 does not specifically disclose that the horoscope of Sumati Panda was seen and verified and this is also admitted by P.W. 1. Gadadhar Bal produced the school admission register of Mangalpur U.P. School and proved that relevant entry in column No. 261/15 relating to Sumati Panda was made by P.W. 1. In cross-examination, P.W. 14 has stated that serial No. 261/15 relating to Sumati Panda has been scored through and re-written. Similarly serial Nos. Gadadhar Bal produced the school admission register of Mangalpur U.P. School and proved that relevant entry in column No. 261/15 relating to Sumati Panda was made by P.W. 1. In cross-examination, P.W. 14 has stated that serial No. 261/15 relating to Sumati Panda has been scored through and re-written. Similarly serial Nos. 258, 259 and 260 which are contained in the same pages as Serial No. 251/15, have been scored through and re-written. This goes to show that the school admission register of Mangalpur U.P. School is not maintained in regular course of business and any entry is scored through and re-written as and when necessary. Hence, serial No. 261/15 in school admission register cannot be relied upon in proof of age of Sumati. In appears that on the basis of entry made in the admission register of Mangalpur, U.P. School, subsequent entries have been made in the other admission registers and ultimately the Transfer Certificate has been granted by the Head Master of Kundulai High School, Belabahali and in that certificate, the date of birth has also been stated as 30.1.1969, As the first entry regarding the date of birth is not reliable, the date of birth recorded in the transfer certificate of Kundulai High School (Ext-8) cannot be said to be reliable. 15. There is not proof that the Kundulai High School, Belabahali is a Government or Municipal School, There is also no evidence that the schools in which Sumati was reading including the Mangalpur U.P. School are Government or Municipal Schools. In these circumstances, the entries made in the registers of both the schools are oat admissible u/s 35 of the Evidence Act, as the employees of those schools are not public servants. Added to, this there is also absence of reliable evidence to show as to on what materials the entries, in the school registers were made. In such circumstances, the date of birth recorded in school registers and transfer certificate (Ext.8) do not have any evidentiary value. In the circumstances discussed above, no reliance can be placed either on the horoscope of on the School Leaving Certificate or School Registers in proof of age of Sumati Panda. 16. Geeta Mohanty (P.W. 6) a lady doctor who examined Sumati Panda, has stated that she could not give any opinion regarding the age of the girl without her radiological test. 16. Geeta Mohanty (P.W. 6) a lady doctor who examined Sumati Panda, has stated that she could not give any opinion regarding the age of the girl without her radiological test. P.W. 6 has however, stated that the third molar teeth erupted between 17th and 25th years of age. In case of Sumati Panda, the third molar teeth had not erupted. In any case, P.W. 6 has not been able to give any opinion regarding the age of Sumati Panda and hence her testimony regarding the age of Sumati is of no avail. 17. On the basis, of the materials discussed above, it is difficult to say as to what was the actual age of Sumati at the time of occurrence, In her evidence in court Sumati has stated that her age is 19 years on the descriptive portion of the deposition of course this statement cannot also be taken as the most correct statement regarding the age of Sumati. 18. It is seen that there is no clear and reliable evidence regarding the age of Sumati while on the basis of the statement of P.W. 1, Sumati was aged 18 years at the time of incident, it appears from the deposition of Sumati (descriptive portion) that she was aged 19 years on 14.7.1984 and hence at the time of incident was 18 years of age. Whatever may be the age of Sumati at the time of incident, there cannot be any doubt on the basis of the nature of evidence that she had attained sufficient maturity of understanding and she had attained the, age of discretion so as to have the capacity to know the full import of what she was doing and it is clear, from the evidence of P.W. 4 that she left the house of her parents and voluntarily went to the house of the accused. In such circumstances, it cannot be said to be a case of kidnapping. 19. This case is a very peculiar case. Sumati Panda has been examined as P.W. 1. She has stated that as her father arranged her marriage with an old bridegroom having taken money and she having not agreed to the same, she went to the house of the accused voluntarily in the midnight, as her father used to keep the words of the accused. Sumati Panda has been examined as P.W. 1. She has stated that as her father arranged her marriage with an old bridegroom having taken money and she having not agreed to the same, she went to the house of the accused voluntarily in the midnight, as her father used to keep the words of the accused. This statement of P.W. 4 goes to show that the accused did not exert any force on P.W. 4 and he did not also persuade her either directly or indirectly to leave the house of her parents. Hence there cannot be any case of kidnapping. Of course P.W. 4 has been declared hostile and she is cross-examined by the prosecution. On account of this it may be argued that reliance cannot be placed on the testimony of P.W. 4 and once no reliance is placed on the testimony of P.W. 4, there is none in the case to prove that the accused either forced or persuaded P.W. 4 to come out of the keeping of her lawful guardian. 20. All that has been proved by the prosecution is that the girl Sumati (P.W. 4) left her house at the midnight and went to the house of the accused. There is no evidence that at the time when Sumati went out of her house, the accused had forced or persuaded her to leave the house. Karunakar Panda (P.W. 1) has admitted that even though Sumati was recovered from the house of the accused in, pursuance to search warrant issued by the court, she has again gone to the house of the accused and is staying there. He has also stated that before the incident also Sumati was again and again going to the house of the accused and staying there. Thus, after institution of the case and before that also Sumati stayed in the house of the accused voluntarily leaving the house of her parents. This is also a circumstance which goes to show that Sumati voluntarily left her house and went to live in the house of the accused. 21. It appears that the trial Court and the appellate Court placed some reliance on Ext-1 which is said to be the letter of the accused. The letter is addressed to one 'Kunu'. There is no evidence to, show that the alias name of Sumati is Kunu. 21. It appears that the trial Court and the appellate Court placed some reliance on Ext-1 which is said to be the letter of the accused. The letter is addressed to one 'Kunu'. There is no evidence to, show that the alias name of Sumati is Kunu. From the letter (Ext-1) it appears that Kunu asked the author of the "letter to take her away" very soon and she made the request again and again and hence the author of the letter wrote the letter. This circumstance goes to show that request was made from Kunu and not from the author of the letter. The letter is also not signed by the accused, In these circumstances the letter cannot be made the basis of conviction specially when there is clear evidence that Sumati voluntarily went away from the house of her parents and she was very much willing to stay in the house of the accused. 22. In course of argument the learned advocate for the Petitioner filed an affidavit of Sumati Jena. In that affidavit Sumati Jena (P.W. 4) has described herself as the wife of the accused Chaitan Charan Jena. Sumati Jena has also stated that she voluntarily left her parents' house as her parents took a decision to give her in marriage to an old man, She has also stated that she has married the accused Chaitan Charan Jena and she has given birth a male child and she is expecting a second child withtin a short time, This goes to show that Sumati has consumated her marriage with the accused of course the affidavit cannot substitute evidence, but it just be woked into as a subsequent statement regarding the state of things. In any case, it is also seen that apart from the affidavit also there is no evidence of kidnapping. 23. From the circumstances discussed above, it is seen that the evidence regarding the age of Sumati is not convincing and in any case, she has attained the age of discretion at the time of the incident. In any case, it is also seen that apart from the affidavit also there is no evidence of kidnapping. 23. From the circumstances discussed above, it is seen that the evidence regarding the age of Sumati is not convincing and in any case, she has attained the age of discretion at the time of the incident. There are also convincing materials to show that Sumati left her parents voluntarily and she has been found to be very much willing to stay in the house of the accused, Last but the least, the affidavit filed goes to show that Sumati married the accused and she also stayed in the house of the accused even after institution of the case, This circumstance goes to show that the case has been instituted at the instance of the father of Sumati as the pride of the father of Sumati was affected in some way, Taking all the circumstances into consideration, the prosecution case is quite doubtful and the prosecution has failed to establish the ingredients of the offence. The trial court and the appellate court had not taken into consideration the circumstances discussed above and hence their findings are erroneous. In the result, the criminal revision is allowed and the conviction and sentence passed against the Petitioner are set aside. Final Result : Allowed