JUDGMENT : SANJAY K. AGRAWAL, J. 1. This criminal appeal under Section 374(2) of Cr.P.C. has been preferred by the appellant against impugned judgment dated 19/01/2016 passed by learned Additional Sessions Judge (FTC), Bilaspur in Special Sessions Trial No. 404/2014 whereby he has been convicted and sentenced as under with a direction to run all the sentences concurrently: Conviction Sentence U/s 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 Imprisonment for life with fine of Rs. 20,000/- and in default of payment of fine, further R.I. for 1 year. U/s 363 of IPC R.I. for 2 years with fine of Rs. 1000/- and in default of payment of fine, further R.I. for 6 months. U/s 366 of IPC R.I. for 7 years with fine of Rs. 1000/- and in default of payment of fine, further R.I. for 6 months. 2. Case of the prosecution, in a nutshell, is that on 19/09/2014, the appellant herein abducted minor victim, aged about 13 years, from her legal guardianship and on the pretext of getting married, committed sexual intercourse with her and thereby, committed the aforesaid offence. 3. Further case of the prosecution is that victim's mother (PW-2) lodged a report at Police Station Sarkanda that in the morning of 19/09/2014, when she returned home after work, her daughter informed her that the appellant herein, who worked as a Sweeper in public toilet, lured her on the pretext of giving money and food and took her to a nearby room and committed sexual intercourse with her. On the basis of the said report, first information report was lodged against the appellant vide Ex. P/1. Spot map was prepared vide Ex. P/2. After obtaining permission from the Sub-divisional Magistrate vide Ex. P/5, victim (PW-1) was subjected to medical examination which was conducted by Dr. Rukhmani Tekam (PW-9) and she was referred to undergo Radiological test for age determination and as per the Radiologist's report (Ex. P/16), victim's age was opined to be between 11 to 13 years. After due investigation, the appellant was charge-sheeted for offences punishable under Sections 363, 366 and 376 of IPC and Section 4 of the Act of 2012 by order dated 05/01/2015 which was committed to the Court of Special Judge for trial in accordance with law. The appellant abjured his guilt and entered into defence. 4. After due investigation, the appellant was charge-sheeted for offences punishable under Sections 363, 366 and 376 of IPC and Section 4 of the Act of 2012 by order dated 05/01/2015 which was committed to the Court of Special Judge for trial in accordance with law. 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 16 documents. Statement of the appellant was recorded under Section 313 of Cr.P.C. wherein he denied guilt, however, he examined none in his defence and neither brought any documents on record. 5. Learned trial Court, after appreciation of oral and documentary evidence on record, proceeded to convict the appellant for offences punishable under Sections 363, 366 and 376 of IPC and Section 6 of the Act of 2012 and sentenced him to imprisonment for life under Section 6 of the Act of 2012 by virtue of Section 42 of the Act of 2012 although the appellant was charged with Section 4 of the Act of 2012. 6. Mr. Rishi Rahul Soni, learned counsel for the appellant, would submit that the statements of victim (PW-1), her mother (PW-2) and her maternal aunt (PW-8) are not reliable and the trial Court could not have based appellant's conviction on their self-serving statements as there is no other corroborating evidence available on record as the medical report (Ex. P/6) has also been found negative and the FSL report has also not been brought on record by the prosecution. In alternative, he would submit that charge was framed against the appellant for offence punishable under Section 4 of the Act of 2012 but he has been convicted for offence punishable under Section 6 of the Act of 2012 and it would not be permissible under Section 464 of Cr.P.C. as failure of justice has been occasioned in light of the decision rendered by the Supreme Court in the matter of Dalbir Singh vs. State of U.P. AIR 2004 SC 1990 , as such, conviction of the appellant for offence punishable under Section 6 of the Act of 2012 is liable to be set aside. He would further submit that if the offence punishable under Section 4 of the Act of 2012 is found proved against the appellant, the minimum sentence on the date of offence i.e. 19/09/2014 would be 7 years as Section 4 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 of life imprisonment awarded to the appellant be reduced and since he is in jail from 24/09/2014, he be sentenced to the period already undergone. 7. Per contra, Mr. Ashish Tiwari and Mr. Afroz Khan, learned counsel for the respondent/State, would support the impugned judgment and submit that since no failure of justice has been occasioned, therefore, in view of the decision rendered by the Supreme Court in Dalbir Singh (supra), the conviction of the appellant for offence punishable under Section 6 of the Act of 2012 and the sentence awarded to him is well-merited and 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 records with utmost circumspection. Conviction of appellant for offence punishable under Sections 363, 366 and 376 of IPC: 9. Considering the statements of victim (PW-1), her mother (PW-2) and her maternal aunt (PW-8) and further considering the statement of Dr. Rukhmani Tekam (PW-9) who has proved the MLC report (Ex. P/6) and also taking into account that as per the Radiologist's report (Ex. P/16), victim's age has been held to be between 11-13 years and taking the error of margin of two years on either side, her age would still be less than 16 years, which has rightly been held by the trial Court, we are of the considered opinion that conviction of the appellant for offences punishable under Section 363, 366 and 376 of IPC is well-merited and does not warrant any interference by this Court. Conviction of the appellant for offence punishable under Section 6 of the Act of 2012: 10. Conviction of the appellant for offence punishable under Section 6 of the Act of 2012: 10. It is correct to say that vide order dated 05/01/2015, charges were framed against the appellant for offences punishable under Sections 363, 366 and 376 of IPC and Section 4 of the Act of 2012 and he was also found guilty by the trial Court for offence under Section 4 of the Act of 2012, yet at the time of delivering impugned judgment dated 19/01/2016, the trial Court proceeded to sentence the appellant for offences punishable under Sections 363, 366, 376 of IPC and Section 6 of the Act of 2012 by citing the provision contained under Section 42 of the Act of 2012, which has been questioned by learned counsel for the appellant stating that failure of justice has been occasioned and the trial Court could not have convicted the appellant for offence punishable under Section 6 of the Act of 2012 without altering the charges so framed against the appellant, however, it has been supported by learned counsel for the respondent/State citing the provision contained under Section 464 of Cr.P.C. 11. At this stage, it would appropriate to notice the provision contained under Section 464 of Cr.P.C. which provides as under: “464. Effect of omission to frame, or absence of, or error in, charge: (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, ommission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may: (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after framing of the charge. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may: (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after framing of the charge. (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit : Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.” 12. A careful perusal of the aforesaid provision would show that mere non-framing of charge would not vitiate the judgment of conviction, is no prejudice has been caused to the accused and there is no failure of justice. If the Appellate Court is of the opinion that failure of justice has in fact been occasioned, it may order for framing the charge and for re-trial. 13. The decision rendered by the Supreme Court in the matter of Dalbir Singh (supra) which deals with the issue in hand may be noticed herein profitably. Paragraph 17 of the report states as under: “17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of S. 464, Cr.P.C. it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangaraboina Sreenu vs. State of A.P. AIR 1997 SC 3233 was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under S. 302, I.P.C. he cannot be convicted for offence under S. 306, I.P.C.” 14. The Supreme Court in the matter of Main Pal vs. State of Haryana, (2010) 10 SCC 130 has pertinently held as under: “17. The following principles relating to Sections 212, 215 and 464 of the Code, relevant to this case, becme evident from the said enunciations: (i) and (ii) xxx xxx xxx (iii) In judging, a question of prejudice, as of guilt, the courts must act with broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew that he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given full and fair chance to defend himself.” 15. Bearing in mind the aforesaid principle of law laid down by their Lordships of the Supreme Court in Dalbir Singh (supra) followed in the matters of Kamil vs. State of U.P. (2019) 12 SCC 600 and Main Pal (supra) qua Section 464 of Cr.P.C. what has to be considered is whether failure of justice has been occasioned in this case or not. Admittedly, as per order dated 05/01/2015, appellant was only charged with offence under Section 4 of the Act of 2012 and he was tried for the said offence till the final judgment was delivered on 19/01/2016 wherein though the trial Court only found the appellant guilty for offence under Section 4 of the Act of 2012 yet proceeded to sentence him for offence under Section 6 of the Act of 2012 and sentenced him with imprisonment for life. Since the charge was framed against the appellant for offence under Section 4 of the Act of 2012 and he was also found guilty for the said offence, he could not have been convicted for offence under Section 6 of the Act of 2012 finally at the time of delivering the judgment as he was not made aware of the basic ingredients of Section 6 of the Act of 2012 as the minimum punishment for offence under Section 4 of the Act of 2012 was seven years prior to the amendment dated 16/08/2019 which was then enhanced to ten years, however, the minimum punishment for offence under Section 6 of the Act of 2012 was ten years which was enhanced to twenty years after amendment dated 16/08/2019. As such, we are of the considered opinion that appellant was not given a fair chance to defend himself against offence punishable under Section 6 of the Act of 2012 and in light of the decision rendered by the Supreme Court in Dalbir Singh (supra) retained in Kamil (supra) and Main Pal (supra), since prejudice has been caused to the appellant and failure of justice has also been occasioned to the appellant, we hereby set aside the order sentencing of the appellant for offence punishable under Section 6 of the Act of 2012 and rather sentence him for offence punishable under Section 4 of the Act of 2012. 16. Now the next question for consideration is whether, as claimed by learned counsel for the appellant, the appellant is entitled for reduction in sentence awarded by the trial Court? 17. 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 Court specifically noted the impact of longer prison sentences on convicts who are young. 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 Court 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 indurations 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 v. 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 v. 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.” 18. 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.” 18. Following the decision of the Supreme Court in Vipul Rasikbhai (supra) and considering the fact that the age of the appellant was 27 years on the date of the offence and it is not the case of the prosecution that it is likely that the appellant would convert himself into a hardened criminal if his sentence is reduced and further considering that minimum sentence for offence punishable under Section 4 of the Act of 2012 at the time of offence was 7 years (enhanced to 10 years w.e.f. 16/08/2019), we hereby award the sentence of 10 years to the appellant for offence punishable under Section 376 of IPC read with Section 4 of the Act of 2012, in place of the sentence of life imprisonment as awarded by the trial Court, as he is in jail from 24/09/2014. However, the fine sentence and default sentence as awarded by the trial Court shall remain maintained along with the sentences awarded by the trial Court for offence punishable under Sections 363 and 366 of IPC. 19. Accordingly, this criminal appeal is allowed to the extend indicated herein-above. 20. 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.