JUDGMENT : SANJAY K. AGRAWAL, J. 1. This criminal appeal preferred at the instance of the appellant herein under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 24/11/2015 passed by learned Additional Sessions Judge (FTC), Bilaspur in Special Sessions Trial No. 129/2014 whereby the appellant has been convicted for offence punishable under Section 376 of IPC read with Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred as ‘the Act of 2012’) and he has been sentenced to undergo life imprisonment with fine of Rs. 20,000/- and in default of payment of fine, additional R.I. for 1 year. 2. Case of the prosecution, in brief, is that on 08/04/2014, the appellant herein sexually assaulted the victim, aged about 9 years, and thereby, committed the aforesaid offence. 3. Further case of the prosecution is that on 08/04/2014 at about 1 PM, victim had gone to the shop of the appellant to buy some eatables, however, when she did not return after about half an hour, her mother (PW-2) went to appellant’s shop and upon hearing her, victim came out from the courtyard of the appellant. When victim’s mother (PW-2) asked about her whereabouts, she informed her that appellant had taken her to the courtyard and also told her about the heinous act committed by him. Thereafter, victim’s mother (PW-2) reported the matter at Police Station on the basis of which first information report (Ex.P/3) was lodged against the appellant for offences punishable under Sections 376 of IPC and Section 4 of the Act of 2012 and the matter was taken into investigation. Victim was subjected to medical examination on 10/04/2014 which was conducted by Dr. Poonam Singh (PW-5) and the medical report was found positive and underwear of the victim along with one slide were seized vide Ex.P/4 and it was sent for forensic examination and as per FSL report (Ex.P/23), spots of semen and human sperm were found on it. Dr. Poonam Singh (PW-5) also advised to obtain Radiologist’s report for determining the age of the victim which was conducted on 11/04/2014 at District Hospital, Bilaspur and as per the report (not exhibited on record) victim’s age was determined to be between 11-13 years. Dr. Poonam Singh (PW-5) also advised to obtain Radiologist’s report for determining the age of the victim which was conducted on 11/04/2014 at District Hospital, Bilaspur and as per the report (not exhibited on record) victim’s age was determined to be between 11-13 years. After due investigation, vide order dated 06/06/2014, appellant was charge-sheeted for offence punishable under Section 376 of IPC and Section 4 of the Act of 2012, however, later on, since counsel for the appellant admitted to the correctness of Ex.P/6, which is a copy of the register maintained by Anganbadi Center, Dabripara in which date of birth of the victim is mentioned as 06/11/2005, charge framed against him for offence punishable under Section 4 of the Act of 2012 was altered to Section 6 of the Act of 2012 on the ground that since the age of the victim has been admitted by the appellant to be 9 years, it would come under Section 6(1) of the Act of 2012 which provides punishment for aggravated penetrative sexual assault. The appellant abjured his guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 10 witnesses and brought on record 24 documents. The statement of the appellant was taken under Section 313 of Cr.P.C. wherein he denied guilt, however, he examined none in his defence and only brought two documents on record. 5. Learned Special Judge, after appreciation of oral and documentary evidence on record, proceeded to convict the appellant for offence punishable under Section 376 of IPC read with Section 4 of the Act of 2012 and sentenced him as aforesaid. 6. Mr. Rishi Rahul Soni, learned counsel for the appellant, would submit that prosecution has failed to bring home the offence beyond reasonable doubt. 6. Mr. Rishi Rahul Soni, learned counsel for the appellant, would submit that prosecution has failed to bring home the offence beyond reasonable doubt. He would further submit that alteration of charge from offence punishable under Section 4 to Section 6 of the Act of 2012 by order dated 11/09/2015 was based on alleged admission of the appellant whereby counsel for the appellant is said to have admitted to the correctness of Ex.P/6 in which victim’s date of birth has been recorded as 06/11/2005 whereas the appellant has clearly refused to admit any document which has been recorded in both the order sheets dated 06/06/2014 as well as 11/09/2015, as such, the admission made by counsel for the appellant does not appear to be made on instructions by the appellant. Even otherwise, by virtue of Section 34(2) of the Act of 2012 and with the applicability of Section 49 of the Juvenile Justice (Care and Protection of Children) Act, 2000, Ex.P/6 is not a document that can be taken into account for determination of age in view of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which came into force with effect from 01/01/2016 and moreover, the radiological examination conducted to determine the age of the victim has margin of error in view of the decision rendered by the Supreme Court in the matter of Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir and Others, AIR 1982 SC 1297 . In that view of the matter, framing of charge against the appellant for offence punishable under Section 6 of the Act of 2012 as well as his conviction recorded by the trial Court are liable to be set aside. He would further submit that if the offence is found proved by this Court under Section 4 of the Act of 2012, the minimum sentence on the date of offence i.e. 08/04/2014 would be 7 years as Section 4(1) of the Act of 2012 has been amended with effect from 16/08/2019 and the minimum sentence has been enhanced from 7 years to 10 years, as such, the sentence awarded to the appellant be reduced and since he is in jail from 09/11/2014, he be sentenced to the period already undergone. 7. Per contra, Mr. 7. Per contra, Mr. Ali Asgar, learned State counsel, would submit that the Special Court is absolutely justified in convicting the appellant for offence punishable under Sections 376 of IPC read with Section 6 of the Act of 2012 as there is sufficient evidence available on record to hold that the age of the victim was less than 12 years on the date of offence and furthermore, in view of the statements of the victim, her mother (PW-2) and her father (PW-4) as well as the statement of Dr. Poonam Singh (PW-5) who examined the victim and considering the medical report (Ex.P/6) and FSL report (Ex.P/23), the appellant has rightly been convicted and sentenced as aforesaid, as such, the instant appeal is liable to be dismissed. 8. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record with utmost circumspection. 9. The first question for consideration would be whether learned Special Judge is justified in altering the charge framed against the appellant from offence under Section 4 to Section 6 of the Act of 2012 and thereafter, convicting the appellant for offence punishable under Section 376 of IPC read with Section 6 of the Act of 2012? (I) Consideration upon alteration of charge framed against the appellant: 10. In order to consider whether the Special Court was justified in altering the charge framed against the appellant from offence punishable under Section 4 to Section 6 of the Act of 2012, it would be appropriate to determine the age of the victim. In order to prove the age of the victim, prosecution has filed the document Ex.P/6 which is a copy of the register issued by the Anganbadi Center, Dabripara in which victim’s date of birth has been recorded as 06/11/2005 which has been seized vide Ex.P/5, however, prosecution has examined none to prove the document Ex.P/6 and it is rather the case of the prosecution that the correctness of document Ex.P/6 has been admitted by the counsel appearing on behalf of the appellant. It is pertinent to mention here that charge was framed against the appellant for offence punishable under Section 376 of IPC and Section 4 of the Act of 2012 on 06/06/2014 and on that day, appellant was present and he refused to have committed the crime which has also been recorded in the charge-sheet (page 7 of the paper-book). Moreover, notice under Section 294 of Cr.P.C. was served upon the appellant to admit the document (Ex.P/6) but he declined to admit any such document including Ex.P/6 which has clearly been recorded in the order-sheet dated 06/06/2014. Thereafter, on 19/12/2014, counsel for the appellant allegedly admitted to the correctness of the document Ex.P/6 showing victim’s date of birth to be 06/11/2005 and on that basis, on 11/09/2015, charge framed against the appellant for offence punishable under Section 4 of the Act of 2012 was altered to Section 6 of the Act of 2012 holding that on the date of offence, victim’s age was 8 years and 5 months and the offence would fall under Section 5(1)(m) of the Act of 2012 which describes aggravated penetrative sexual assault. Again in order-sheet dated 11/09/2015, it has expressly been recorded that once again notice under Section 294 of Cr.P.C. was issued to the appellant for admitting the document including Ex.P/6, however, he has declined to admit any document. As such, though the correctness of the document Ex.P/6 showing the date of birth of the victim to be 06/11/2005 has been admitted by the counsel appearing on behalf of the appellant but the appellant himself has declined to admit the said document on two different occasions which has clearly been recorded by the Special Court in order-sheets dated 06/06/2014 and 11/09/2015 and thus, it does not appear that the counsel for the appellant acted as per the instructions of the appellant and no such material has either been brought on record by the prosecution to prove that appellant had in fact instructed his counsel to admit the document Ex.P/6 on the basis of which charge framed against him under Section 4 of the Act of 2012 was altered to Section 6 of the Act of 2012. In that view of the matter, we are of the considered opinion that the Special Court has erred in altering the charge framed against the appellant from offence under Section 4 to Section 6 of the Act of 2012 holding that appellant’s counsel has admitted to the document Ex.P/6 and relying upon Section 294(3) of Cr.P.C. The finding recorded by the Special Court in this regard suffers from grave legal error and is perverse and contrary to the record. (II) Consideration with regard to the age of the victim: 11. At this stage, it would be appropriate to notice the provision contained under Section 34 of the Act of 2012 which provides the procedure in case of commission of offence by child and determination of age by Special Court. Section 34(1) and (2) of the Act of 2012 provides as under: “34. Procedure in case of commission of offence by child and determination of age by Special Court: (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination.” 12. A careful perusal of the above would show that sub-section (1) of Section 34 of the Act of 2012 states that where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 substituted by Juvenile Justice (Care and Protection of Children) Act, 2015 which came into force with effect from 01/01/2016. Sub-Section (2) of Section 34 of the Act of 2012 provides that if any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. 13. 13. Since the offence was committed on 08/04/2014 i.e. prior to coming into force of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred as the ‘Act of 2015’), enquiry with regard to the age of the victim was required to be done in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred as the ‘Act of 2000’) read with the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred as the ‘Rules of 2007’). 14. Section 49 of the Act of 2000 (now repealed/substituted by Act of 2015) states as under: “49. Presumption and determination of age: (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be. (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person.” 15. Similarly, Rule 12(3) of the Rules of 2007 provides the procedure to be followed in determination of age which states as under: “12. Procedure to be followed in determination of age: (1) xxx xxx xxx (2) xxx xxx xxx (3) In every case concerning a child or juvenile in conflict with law, the age determination enquiry shall be conducted by the court of the Board or, as the case may be, the Committee by seeking evidence by obtaining: (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof. (ii) the date of birth certificate from the school (other than a play school) first attended and in the absence whereof. (ii) the date of birth certificate from the school (other than a play school) first attended and in the absence whereof. (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. While passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” 16. In the matter of P. Yuvaprakash vs. State Rep. by Inspector of Police, 2023 Live Law (SC) 538 the Supreme Court has held that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (Section 49 of the Act of 2000) and their Lordships held in paragraphs 13 and 14 as under: “13. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. It is evident from conjoint reading of the above provisions that wherever the dispute with respect to the age of a person arises in the context of her or him being a victim under the POCSO Act, the courts have to take recourse to the steps indicated in Section 94 of the JJ Act. The three documents in order of which the Juvenile Justice Act requires consideration is that the concerned court has to determine the age by considering the following documents: “(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof. (ii) the birth certificate given by a corporation or a municipal authority or a panchayat. (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board.” 14. Section 94 (2)(iii) of the JJ Act clearly indicates that the date of birth certificate from the school or matriculation or equivalent certificate by the concerned examination board has to be firstly preferred in the absence of which the birth certificate issued by the Corporation or Municipal Authority or Panchayat and it is only thereafter in the absence of these such documents the age is to be determined through “an ossification test” or “any other latest medical age determination test” conducted on the orders of the concerned authority, i.e. Committee or Board or Court. In the present case, concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered. Ex.C1, i.e. the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned witness, i.e. CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, Ex.C-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence.” 17. Returning to the facts of the present case in light of the provisions contained under Section 49 of the Act of 2000 read with Rule 12(3) of the Rules of 2007 and in light of the principles of law laid down by their Lordships of the Supreme Court in the matter of P. Yuvaprakash (supra), it is quite vivid that in the instant case matriculation certificate or any such equivalent certificate of the victim is not available and her birth certificate issued by a Corporation or Municipal Authority or Panchayat is also not available. Ultimately, she was referred for medical opinion /ossification test by Dr. Poonam Singh (PW-5) for determining her age which was conducted on 11/04/2014 and as per the report (not exhibited but available in original trial Court record), victim’s age has been mentioned as 11-13 years. The Supreme Court in the matter of Jaya Mala (supra) has clearly held that margin of error in age ascertained by radiological examination is two years on either side and Rule 12 of the Rules of 2007 provides margin of one year. The decision rendered by the Supreme Court in Jaya Mala (supra) has been followed with approval in the matters of Manoj alias Monu alias Vishal Chaudhary vs. State of Haryana and Another, (2022) 6 SCC 187 and Karan alias Fatiya vs. State of Madhya Pradesh, (2023) 5 SCC 504 . After applying the error of margin, victim’s age would be in between 9-15 years. In that case, victim cannot be held to be less than 12 years of age on the date of offence. After applying the error of margin, victim’s age would be in between 9-15 years. In that case, victim cannot be held to be less than 12 years of age on the date of offence. Consequently, charge framed against the appellant for offence punishable under Section 6 read with Section 5(1)(m) of the Act of 2012 and his conviction recorded by the Special Court is hereby set aside. However, considering the evidence of victim, her mother (PW-2) and her father (PW-4) and further considering the medical report of the victim (Ex.P/6) as well as the FSL report (Ex.P/23) which have been found positive, we are of the considered opinion that there is sufficient evidence on record to hold that prosecution has been able to prove the offence under Section 376 read with Section 4(1) of the Act of 2012 against the appellant beyond reasonable doubt and we hereby convict the appellant for offence punishable under Section 376 of IPC read with Section 4 of the Act of 2012. It is pertinent to mention here that as on 08/04/2014, the minimum punishment for offence under Section 4 of the Act of 2012 was 7 years which was enhanced to 10 years with effect from 16/08/2019. 18. Now the next question for consideration would be whether the Special Court has rightly sentenced the appellant to undergo life imprisonment or his sentence can be reduced as contended by learned counsel for the appellant? 19. The Supreme Court, in the matter of Vipul Rasikbhai Koli Jankher vs. State of Gujarat, 2022 Live Law (SC) 288 has relied upon its earlier decisions rendered in the matters of Dharambir vs. State of Uttar Pradesh, (1979) 3 SCC 645 and Maru Ram vs. Union of India, (1981) 1 SCC 107 and held in paragraphs 7 and 8 as under: “7. In determining the quantum of sentence, the Court must bear in mind the circumstances pertaining to the offence and all other relevant circumstances including the age of the offender. The appellant has undergone actual imprisonment for a period of 11 years as on date. In Dharambir vs. State of Uttar Pradesh (supra) a two-Judge Bench of this Corut specifically noted the impact of longer prison sentences on convicts who are young. Justice V.R. Krishna Iyer, speaking on behalf of the Court had noted the impact of prolonged incarceration: “2. The appellant has undergone actual imprisonment for a period of 11 years as on date. In Dharambir vs. State of Uttar Pradesh (supra) a two-Judge Bench of this Corut specifically noted the impact of longer prison sentences on convicts who are young. Justice V.R. Krishna Iyer, speaking on behalf of the Court had noted the impact of prolonged incarceration: “2. We, however, notice that the petitioners in this case are in their early twenties. We must naturally give thought to the impact on these two young lives of a life sentence which means languishing in prison for years and years. Such induration of the soul induced by indefinite incarceration hardens the inmates, not softens their responses. Things as they are, long prison terms do not humanise or habilitate but debase and promote recidivism. A host of other vices, which are unmentionable in a judgment, haunt the long careers of incarceration, especially when young persons are forced into cells in the company of callous convicts who live in sex-starved circumstances. Therefore, the conscience of the court constrains it to issue appropriate directions which are policy-oriented, as part of the sentencing process, designed to make the purpose of punitive deprivation of liberty, constitutionally sanctioned, is decriminalisation of the criminal and restoration of his dignity, self-esteem and good citizenship, so that when the man emerges from the forbidding gates he becomes a socially useful individual. From this angle our prisons have to travel long distances to meet the ends of social justice.” 8. In our view, the ends of justice would be met by directing that instead and in place of the sentence of life imprisonment which has been imposed for the conviction under Section 376, the appellant shall stand sentenced to a term of 15 years’ imprisonment. We are not inclined to uphold the argument of the respondent-state that only the sentence of life imprisonment would meet the ends of justice. The principles of restorative justice finds place within the Indian Constitution and severity of sentence is not the only determinant for doing justice to the victims. In Maru Ram vs. Union of India (supra), Justice V.R. Krishna Iyer had poignantly highlighted the linkages between victimology and restorative justice: “74.......Some argument was made that a minimum sentence of 14 years’ imprisonment was merited because the victim of the murder must be remembered and all soft justice scuttled to such heinous offenders. In Maru Ram vs. Union of India (supra), Justice V.R. Krishna Iyer had poignantly highlighted the linkages between victimology and restorative justice: “74.......Some argument was made that a minimum sentence of 14 years’ imprisonment was merited because the victim of the murder must be remembered and all soft justice scuttled to such heinous offenders. We are afraid there is a confusion about fundamentals in mixing up victimology with penology to warrant retributive severity by the back-door. If crime claims a victim criminology must include victimology as a major component of its concerns. Indeed, when a murder or other grievous offence is committed the dependants of other aggrieved persons must restore the loss of heal the injury is part of the punitive exercise. But the length of the prison term is no reparation to the crippled or bereaved and is futility compounded with cruelty. “Can storied urn or animated bust call to its mansion the fleeting breath?” Equally emphatically, given perspicacity and freedom from sadism, can flogging the killer or burning his limbs or torturing his psychic being bring balm to the soul of the dead by any process of thanatology or make good the terrible loss caused by the homicide? Victimology, a burgeoning branch of humane criminal justice, must find fulfillment, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn. The State itself may have its strategy of alleviating hardships of victims as part of Article 41. So we do not think that the mandatory minimum in Section 433-A can be linked up with the distress of the dependents.” 20. The State itself may have its strategy of alleviating hardships of victims as part of Article 41. So we do not think that the mandatory minimum in Section 433-A can be linked up with the distress of the dependents.” 20. Following the decision rendered by the Supreme Court in Vipul Rasikbhai (supra) and considering the fact that the age of the appellant was 26 years on the date of the offence and no evidence has been brought on record that during incarnation in jail for the last 8 years, appellant has committed any jail offence and there is no criminal antecedent that he is a hardened criminal and if his sentence is reduced, he will not be a good citizen and engage himself in a criminal offence and further considering that minimum sentence for offence punishable under Section 4(1) of the Act of 2012 was 7 years prior to amendment dated 16/08/2019, we hereby award the sentence of 12 years to the appellant in place of the sentence of life imprisonment as awarded by the Special Court while convicting him for offence punishable under Section 376 of IPC read with Section 4 of the Act of 2012, as he is in jail since 09/11/2014. The fine sentence and default sentence as awarded by the Special Court shall remain intact. 21. Accordingly, this criminal appeal stands allowed to the extent indicated herein-above. 22. Let a certified copy of this judgment be sent to the concerned trial Court along with the original records as well as to the jail authorities for information and compliance.