JUDGMENT : ILESH J. VORA, J. 1. This conviction Appeal is directed against the judgment and order dated 24.06.2010, passed by the learned Special Judge, FTC, Court No. 2, Bhavnagar, by which, the appellant-sole accused Amanat @ Patiyo Safarbhai Shaikh, has been convicted for the offence punishable under Sections 376, 452, 506(2) of the Indian Penal Code and Section 3(1)(xi) & (xii) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo rigorous imprisonment for 7 years with fine of Rs. 5,000/- and in default, additional simple imprisonment for 1 year for the offence under Section 376 and sentenced to undergo R.I. for 1 year with fine of Rs. 1000/- and in default thereof to undergo 3 months S.I. for the offence under Section 3(1)(xi) & (xii). So far as Section 452 and 506(2) are concerned, no separate sentence is imposed. 2. This Court has heard learned counsel Ms. Poonam Mehta, Mr. Dhruv Dave and Ms. Chetna Shah, learned State counsel for the respective parties. 3. The prosecution case in brief was that, the prosecutrix PW-1 Exh.6, is belonged to SC/ST caste. The complaint of rape, assault and outrage her modesty was filed on 13.08.2006. In the complaint, it was alleged inter-alia that, her husband was serving in a railway hospital at Bhavnagar and she used to go to provide her husband a Tiffin at the hospital, for which, she ordinarily hired the passenger rickshaw nearby the vicinity of her house. The accused appellant was driving the passenger rickshaw and she used to hire the said rickshaw to reach the railway hospital and in that process, she came into contact with the appellant accused, as a result, intimate relations were developed and that would continue upto 2 years and during the said period, they entered into physical relationship. In these background facts, she had alleged in the FIR that, under one or other pretext, the appellant used to come her house and asked her for sexual favour and on refusing to it, she was forced to have a physical relationship. 4. It was in these background facts, the aforesaid FIR for the said offences came to be registered with the Bhavnagar “D” Division Police Station. 4. It was in these background facts, the aforesaid FIR for the said offences came to be registered with the Bhavnagar “D” Division Police Station. After completion of the investigation, the appellant was chargesheeted and case was committed to the Court of Sessions at Bhavnagar, which had culminated into Special (Atro.) Case No. 31 of 2006. After recording the evidence and hearing the parties, the Court of Sessions convicted the appellant and directed to suffer 7 years imprisonment for the offence of rape and 1 year imprisonment under the provisions of Atrocity Act. 5. Aggrieved with the judgment of the conviction, present appeal has been preferred by the appellant and accordingly, pending the appeal, he has been enlarged on bail. 6. During the pendency of present appeal, the circumstances have been changed. The husband of the informant/victim expired. The victim married to the appellant herein on 02.09.2020 and the marriage was registered under the Special Marriage Act and certificate thereof is placed on record. The victim, though her advocate, filed affidavit stating therein that, since the date of marriage, she is residing with the appellant as husband and wife and her marriage life is happy and considering this aspect, she has prayed to quash the judgment of conviction passed against the appellant herein. 7. Ms. Poonam Mehta, learned advocate assailing the judgment of conviction, has submitted that, considering the peculiar facts and circumstances of the present case, the Court may modify the sentence as the victim and the appellant accused got married and since the date of marriage, they living together happily. So far as, conviction held under Section 3(1) (xi) & (xii) is concerned, the trial Court has committed an error of law while, interpreting the statutory provision, as the ingredients of alleged offence are not satisfied and there is no evidence to establish that, the appellant accused was in a position to dominate the will of the victim and by using that position, he had exploited her sexually. 8. On the other hand, learned Additional Public Prosecutor Ms. Chetna Shah has submitted that, the offence proved against the appellant is grave and serious offence and have a harmful effect on the society at large and therefore, no case is made out to grant any leniency in the sentence passed by the trial Court. 8. On the other hand, learned Additional Public Prosecutor Ms. Chetna Shah has submitted that, the offence proved against the appellant is grave and serious offence and have a harmful effect on the society at large and therefore, no case is made out to grant any leniency in the sentence passed by the trial Court. She would further urge that, the trial Court convicted the appellant for the offence under Section 3(1)(xi) & (xii) of the SC/ST Act and sentenced him to undergo R.I. for 1 year, the minimum sentence prescribed is 6 months. In such circumstances, she would urge that, where the minimum sentence is provided for, the Court cannot impose less than the minimum sentence. 9. Having regard to the facts and circumstances of the case and on re-analysis and re-appreciation of the record, this Court is of the considered view that, the victim PW-1, Exh.6 was in relationship with the accused and since last two years from the date of registration of the FIR, they had maintained the physical relationship. Thus, therefore, considering the subsequent events like marriage of the accused with the victim, and that too, after the sad demise of husband of the victim, this Court deem it fit to modify the sentence awarded under Section 376 of the Indian Penal Code. The sentence awarded to the accused under Section 376 is modified as period already undergone and fine awarded is set aside. 10. The appellant accused has been convicted for the offence under Section 3(1)(xi) & (xii) of the Act, 1989, (prior to its amendment with effect from 26.01.2016), which stood as under: “Section 3 (1) - whoever, not being a member of Scheduled Caste or a Scheduled Tribe: xxx xxx xxx (xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty. (xii) being in a position to dominate the will of the woman belonging to Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexual to which she would not have otherwise agreed.” A careful perusal of the aforesaid provision would show that, it must be proved that, the accused was in a position to dominate the will of a woman and uses that position to exploit her sexually to which she would not have otherwise agreed. The term ‘dominate’ means commanding the controlling position, which is the important criteria apart from the caste/tribe factor of the victim. 11. Here in this case, the victim in her evidence, has not stated that the rape was committed only because she was scheduled caste. It is nowhere stated that, how the accused was dominating her and was in a controlling position and exploited her sexually. The accused at relevant time was a rickshaw driver and under no circumstances, he can be said that, he was in a position to dominate the will of the victim. In such circumstances, the ingredients of the offence under Section 3(1)(xi) & (xii) of the Act are not satisfied as the prosecution miserably failed to prove that the appellant offender is not a member of SC/ST and was in a position to dominate the will of the victim who is belonging to SC/ST and had used to exploit her. 12. In light of the ingredients of Section 3(1) (xi) & (xii) of the Act, the learned trial Court has recorded findings that, the offence of rape committed by the accused and considering the caste of the victim, the offence under the provisions of the Atrocities Act is established. The said findings are contrary to the statutory provision and evidence on record. The factor of the caste of the victim cannot be assumed that the appellant was able to dominate her to exploit her sexually. 13. In conclusion, the conviction of the appellant for the offence punishable under Section 3(1)(xi) & (xii) of the Atrocities Act, 1989, is hereby set aside. The conviction under Section 376 is modified as above. Fine, if paid by the appellant, be refunded to the appellant. 14. Accordingly, the appeal is partly allowed with the modification of the sentence above. The appellant is on bail, he shall be released forthwith, if not needed in any other case. Records and proceedings, if any, be sent to the trial Court forthwith.