Zaki Ullah Khan, J. The instant appeal has been preferred against the judgment and order dated 4.12.2003 passed by A.D.J./F.T.C., Court No.4, Sitapur in Sessions Trial No.718 of 2002, Police Station Rampur Kanla, District-Sitapur, convicting and sentencing the appellant to undergo twelve years' rigorous imprisonment under Section 304-B I.P.C. and two years rigorous imprisonment under Section 498-A I.P.C. together with a fine of Rs.5,000/- and in default of payment of fine, the appellant will have to undergo three months' additional imprisonment, one year's rigorous imprisonment under Section 4 of Dowry Prohibition Act together with a fine of Rs.2000/-and in default of payment of fine, the appellant will have to undergo two months additional imprisonment. 2. The facts giving rise to the appeal in brief are that the complainant Chhotkann Verma lodged a written report before the police of police Station-Rampur Kanla alleging that his sister Guddi aged about 25 years was married to appellant-Rambali; that dowry as per his status was given during the marriage; that the appellant further demanded mattresses and bed along with bicycle; that the complainant could not fulfill the demand because of his poverty and that is why his sister was being penalized and harassed for want of dowry; that he was informed that his sister was killed on intervening night of 17/18.08.2002; that he along with his family members reached to the house of in laws of his sister and there they saw that the dead body and thereafter he submitted written report regarding dowry death; that FIR Chik No.71/02 relating to Case Crime No.129/02, under Sections 304-B & 498-A of I.P.C. and Section 3/4 of Dowry Prohibition Act was registered by the police of the police station concerned; that G.D. No.17/7.30 dated 18.08.2002 was prepared and the Circle Officer, Sidhauli conducted the investigation; that the inquest was conducted by Nayab Tehsildar and then the dead body was sent for post-mortem examination; that the investigating officer after observing due formalities submitted charge-sheet against the appellant under Sections 304-B and 498-A of I.P.C. and Section 3/4 of D.P. Act; that the appellant denied the charges and claimed to be tried; that the prosecution examined as many as six witnesses to prove its case; that the first witness is P.W.1 Chhotkann, P.W.2 is Prabhu, P.W.3 is C.P. Vishwapal Singh, P.W.4 is Investigating Officer and P.W.5 is Dr. R.K. Srivastava, who conducted autopsy, P.W.6 is Nayab Tehsildar who conducted inquest; that the prosecution exhibited all the relevant papers i.e the Chick F.I.R., written report, G.D., site plan, autopsy report, inquest report and all the other concerned papers; that during the statement recorded under Section 313 Cr.P.C. the appellant had narrated that the allegations are false, he was not present during the incident and produced defence witness Ram Prakash and also submitted documentary evidence Ext. Ka-1 which is the certificate showing that he was employed as Chaukidar and was performing duty on the fateful night; that the court after going through the evidence held the appellant guilty under Section 304-B and 498-A of I.P.C. and Section 4 of D.P. Act; that aggrieved by the aforesaid order, the instant appeal has been preferred. 3. Learned counsel for the appellant argued that the prosecution has failed to establish its case but the court on the basis of conjectures and surmises convicted the appellant. The appellant has adduced the evidence and submitted documentary evidence that he was not present on the night of the occurrence. He was employed as Chaukidar and he was on duty on that day, therefore, he cannot be held guilty for the offence which took place in his absence. 4. P.W.1 complainant has narrated that marriage took place about five years back and during marriage he has given sufficient dowry as per his status but the appellant was dissatisfied and was demanding mattresses along with bed and bicycle. The complainant has narrated that the deceased has informed him that she has been beaten up daily and she described her awful tale every time when she came to her parents house. She came 5-6 times and every time she narrated the story about the demand of dowry. Last time, she came fifteen days' before the death and the complainant himself escorted her to appellant's house. The complainant stated before the Court that the appellant demanded mattresses along with bed and bicycle and the complainant informed that his father will arrange shortly and immediately after 5-6 days' they got information that his sister has been killed. 5. Learned counsel for the appellant pointed out that there is no definite assertion as to how the demand was made and there is no one other than the complainant who has been informed about the demand of dowry. 5. Learned counsel for the appellant pointed out that there is no definite assertion as to how the demand was made and there is no one other than the complainant who has been informed about the demand of dowry. The complainant P.W.1 stated before the Court that when he reached at the place of occurrence he saw that none was present on the spot and he has seen the mark of injuries on the body of the deceased and he was informed in the village that the appellant used to beat his wife daily and consequently he submitted the written report at the police station concerned, therefore, the statement of P.W.1 is not convincing as to how and what manner the demand of dowry was there. 6. P.W.2 is the father of the deceased and father of the complainant, he has also repeated the demand of dowry being made by the appellant and the demand was made through the deceased only. Whenever the deceased came back to her parents house she used to narrate about the demand of dowry and complained about the torture being made to her by the appellant for want of dowry. P.W.2 stated before the court that he used to send his son-in-law to his daughter's matrimonial house to bring her and son-in-law questioned why they treat her with cruelty? The son-in-law Anurag Singh Chauhan consoled that they will fulfill the demand of dowry when they will have sufficient money. Fifteen days' before, the appellant took her back to his house from appellant's home and twenty days after he received information about the death of her daughter, therefore, there is contradiction regarding receipt of information. 7. P.W.1 narrated that 5-6 days after Vidai, he was informed that she was killed whereas P.W.2 said that twenty days after Vidai he got information. Rest of the witnesses are formal witnesses. 8. Learned counsel for the appellant argued that all the ingredients of Section 304-B I.P.C. are not satisfied and no demand of dowry has been proved, therefore, case is not proved beyond all reasonable doubts. 9. Rest of the witnesses are formal witnesses. 8. Learned counsel for the appellant argued that all the ingredients of Section 304-B I.P.C. are not satisfied and no demand of dowry has been proved, therefore, case is not proved beyond all reasonable doubts. 9. Learned counsel for the appellant, however, submitted in alternate that in case the court is of the opinion that charges are proved then considering the fact that the appellant is in jail with effect from 29th of August, 2002 and he was not released on bail and he has completed the sentence more than 11 years out of total period of sentence of 12 years, therefore, he may be released on sentence already undergone. 10. Learned A.G.A. argued that the occurrence took place within seven years of the marriage. Death was unnatural. Soon before the death, the deceased was subjected to dowry demand. P.W.1 and P.W.2 are witnesses, stated that soon before the death of the deceased, she was subjected to demand of dowry and she was treated cruelty and she was tortured to death by strangulation. The doctor confirmed that she was strangulated to death, therefore, the charges are proved beyond all reasonable doubts. The burden of proving that the appellant was not present at the time of occurrence rest with the appellant and burden lies on him to establish that he was not present on the spot, mere submitting the evidence that he used to work as Chaukidar is not enough. There are chances that, during the period of his employment, he may visit his house and after killing the deceased, he immediately slipped away. Therefore, the case is proved beyond all reasonable doubts. He has already completed 11 years of sentence and only part of small question is left, it would be better in the interest of justice that he may complete rest of the sentences. 11. Heard Sri Anurag Singh Chauhan, Counsel Amicus Curiae as well as Sri Kunwar Veer Bhanu Singh, learned A.G.A. for the State and perused the record. 12. Section 304-B of I.P.C. is reproduced as under:- "304B. 11. Heard Sri Anurag Singh Chauhan, Counsel Amicus Curiae as well as Sri Kunwar Veer Bhanu Singh, learned A.G.A. for the State and perused the record. 12. Section 304-B of I.P.C. is reproduced as under:- "304B. [ Dowry death.-- (1)Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub- section," dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]" 13. There is minimum sentence of seven years provided in the I.P.C. The appellant is in jail since 29.08.2002 and he has completed about 11 years sentence in prison and the court has sentenced the appellant to twelve years under Section 304-B I.P.C. and two years rigorous imprisonment under Section 498-A together with a fine of 5000/- and one year rigorous imprisonment under Section 4 of Dowry Prohibition Act together with a fine of 2000/. In default of payment of fine, under Section 498-A I.P.C, the appellant will have to undergo three months additional imprisonment and two months additional imprisonment in default of payment of fine under Section 4 of D.P. Act. It is necessary for the prosecution to establish its case as the prosecution under Section 304-B I.P.C. cannot escape from the burden of proof that the harassment of deceased was related to demand of dowry and such was caused 'soon before her death'. The demand of dowry has to be understood as it is defined under Section 2 of the Dowry Prohibition Act, 1961. Thus, the prosecution has to establish that before the marriage and at the time of marriage and at the ending period demand of dowry was made. The legislature clearly defines all these respects but it would not include the customary payment in connection of birth child etc. Thus, the prosecution has to establish that before the marriage and at the time of marriage and at the ending period demand of dowry was made. The legislature clearly defines all these respects but it would not include the customary payment in connection of birth child etc. The main thing which the prosecution has to establish in the demand of dowry and husband killed the deceased for not satisfying his dowry demand. In the instant case, the parties were married about six years back. As per allegation of the complainant, the brother of the deceased, the dowry was given during the marriage but the appellant was not satisfied with the dowry and he continuously demanded mattresses along with bed and bicycle in dowry, which the complainant's father could not provide. That due to want of dowry on the intervening night of 17/18.08.2002 the deceased was killed by the appellant. The complainant immediately rushed after getting information of the death of the deceased. The prosecution has established these facts in oral evidence before the court on oath. The complainant-P.W.1 repeated the allegation made in the F.I.R. and narrated that soon before the death i.e. fifteen days before she came to parents house and thereafter the complainant took her to matrimonial house and there he was confronted with the demand of dowry and after 5-6 days he got information that his sister has been killed. The other witness is father of the deceased, who has also proved the demand of dowry soon before the death and since inception of the marriage. Rest witnesses are formal except P.W.5 doctor, who conducted autopsy and confirmed that the death took place by way of strangulation. There was ligature mark of 10.5cm X 3 c.m. and hyoid bone was broken, therefore, it was a clear case of strangulation. The doctor being independent witness has justified the death, therefore, the prosecution has established the following ingredients:- 1.) The death took place within seven years of the marriage, 2.) The death was unnatural as proved by P.W.-5 Doctor because hyoid bone was broken and; 3.) Soon before the death, the prosecutrix was submitted to demand of dowry and this fact narrated by P.W.1 and P.W.2 in their statement on oath. 14. 14. The Hon'ble Supreme Court has also laid down the meaning of soon before the death in Kaliyaperumal vs. State of Tamil Nadu, reported in AIR (2003) SC 3828 as well as Yashoda vs. State of Madhya Pradesh, reported in (2004) 3 SCC 98 . 15. However, the learned counsel for the appellant took plea of alibi that he was not present on the date as he was employed as Chaukidar and he was on regular duty and he produced the defence evidence as well as documentary evidence in support of his contention. 16. Section 11 of the Evidence of Act is reproduced hereinbelow:- "11. When facts not otherwise relevant become relevant.- Facts not otherwise relevant are relevant- (1) if they are inconsistent with any fact in issue or relevant fact; (2) if by themselves or in connection with other facts they make the existence or non- existence of any fact in issue or relevant fact highly probable or improbable." 17. It is to be noted that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. State of Maharashtra vs. Narsingrao Gangaram Pimple, reported in (1984) 1 SCC 446 : 1984 SCC (Cri) 109. One more thing is that it is well settled that a plea of alibi has got to be proved to the satisfaction of the court. Soma Bhai vs. State of Gujarat, reported in (1975) 4 SCC 257 : (1975) SCC (Cri) 515. In the instant case, though the plea of alibi has been taken but trial court was not satisfied with the way in which it has been pleaded. Moreover, the duty of the Chaukidar is such that nobody can justify his continuous presence on the place of duty. There is no such assertion that at ascertained time he was checked by certain person and he was present there. Even if it is presumed that he was on duty the plea cannot be established unless he submits the facts with certainty that no other possibility is there, therefore, the plea of alibi cannot be sustained. 18. There is no such assertion that at ascertained time he was checked by certain person and he was present there. Even if it is presumed that he was on duty the plea cannot be established unless he submits the facts with certainty that no other possibility is there, therefore, the plea of alibi cannot be sustained. 18. As far as Sections 304-B & 498-A of I.P.C. are concerned, the facts are very clear that the prosecution has established that there was cruelty and harassment in connection with the demand of dowry but soon before the death and this fact has also been proved by the mark of injuries on body of the deceased. The Apex Court has also laid down the guidelines in Baljit Singh vs. State of Haryana, reported in AIR 2004 SC 1714 . 19. As far as merits are concerned, no need to interfere in the judgment and order dated 4.12.2003 passed by the learned lower court. 20. Learned counsel for the appellants during the course of the arguments has taken alternative plea that in case the court reaches to the conclusion that the appellant has committed an offence then looking into the circumstance, his sentence may be reduced. The appellant is in jail with effect from 29.08.2002 till now. That means, he has completed 11 years sentence against the total awarded sentence of 12 years under Section 304-B I.P.C., and two years sentence under Section 498-A and one year sentence under Section 4 of the Dowry Prohibition Act and all these sentences have been directed to run concurrently. Therefore, he will have to undergo total twelve years sentence and in default of payment of fine, he will have to undergo three months and two months additional sentence i.e. total five months additional imprisonment. The court may in his discretion issue direction to release the appellant on the basis of sentence already undergone. Learned counsel for the appellant pleaded that the appellant has completed almost entire sentence and his health is deteriorating day by day and, therefore, he may be granted certain leniency in this regard. 21. The court may in his discretion issue direction to release the appellant on the basis of sentence already undergone. Learned counsel for the appellant pleaded that the appellant has completed almost entire sentence and his health is deteriorating day by day and, therefore, he may be granted certain leniency in this regard. 21. In view of above discussion, the appeal is liable to be dismissed on merits but in view of alternative plea taken by the appellant and in view of the pathetic circumstances shown by the learned counsel for the appellant, it would not be proper to grant little leniency in sentence since the appellant is already in jail since last eleven years against total sentence of 12 years and in default of payment of fine, he will have to undergo another five months. I am of the view that sentence be reduced to sentence already undergone and appellant be released forthwith. 22. The appeal is dismissed on merits but sentence is modified. The appellant is sentenced to imprisonment already undergone. 23. The appellant is in jail. Registry of this Court is directed to communicate this judgment and order to the Court concerned as well as to the Superintendent of Jail concerned to release the appellant on the basis of imprisonment already undergone as he has already undergone eleven years instead of 12 years R.I. under Section 304-B of I.P.C. and two years R.I. under Section 498-A of I.P.C. together with a fine of Rs.5000/- and one year R.I. under Section 4 of D.P. Act together with a fine of Rs.2000/- and in default of payment of fine, he will have to undergo additional imprisonment for five months, all the sentences shall run concurrently. That means, against all the sentences of 12 years and in lieu of fine for additional imprisonment of five months, he shall be released imprisonment of already undergone since he is in jail since 29.08.2002 i.e. a total of eleven years and twenty seven days till today. 24. Sri Anurag Singh Chauhan, Counsel Amicus Curiae defended the appellant and conducted the case. He will be paid an amount of Rs. 7500/- as fee. _______________