JUDGMENT Dr. Indira Shah, J. 1. The Judgment and order dated 11.1.2011 passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No. 39(K)/04, convicting the appellant under Section 302 and 394, IPC and sentencing him thereby to undergo imprisonment for life and to pay a fine of Rs. 10,000/- in default, further rigorous imprisonment for one year for his conviction under Section 302 IPC and further sentence of imprisonment for 10 years with fine of Rs. 5,000/- in default rigorous imprisonment for 6 months for the offence committed by him under Section 394 IPC, has been challenge in this appeal. We have heard Mr. T.J. Mahanta, learned Amicus Curiae for the appellant. We have also heard Mr. D. Das, learned Addl. P.P. for the State of Assam. 2. The prosecution case in brief, is that the accused Surath Burman, sometime before 1995 was domestic helper of Dhirendra Kr. Rava as about 3 years. He left the house of Dhirendra Kr. Rava, in search of better job. Subsequently while he was engaged to drive an auto van in a private company, he used to visit the house of Dhirendra Kr. Rava and enquire about their well being. On 9.3.1999 when he entered the house of Dhirendra Kr. Rava, he found the door of the house open and there was no body. He was acquainted with the where about of the key of the Almirah. He picked up the key and opened the Almirah and took out therefrom VCP, a pair of gold earring, a gold ring, cash amount of Rs. 1600/-, a camera etc and while he was about to leave the house, Devendra Rava's younger sister Phulsana Rabha seeing him screamed. Hearing her scream, the accused returned and kept the articles in the room and told Phulsana Rava (deceased) that he (accused) would not take away those articles and requested her (deceased) not to disclose the matter to anyone. But Phulsana Rava refused his request and walked towards the kitchen. The accused followed her to the kitchen and then picked up a knife and thereafter sliced her neck by means of the knife pulling her hair with the left hand. Thereafter, he decamped the house taking all the aforesaid articles. 3. But Phulsana Rava refused his request and walked towards the kitchen. The accused followed her to the kitchen and then picked up a knife and thereafter sliced her neck by means of the knife pulling her hair with the left hand. Thereafter, he decamped the house taking all the aforesaid articles. 3. Anindita Rava, PW 3, niece of the decease returned home from her tutorial class at around 1 P.M. and saw her aunt Phulsana Rava lying on the ground. She called her neighbourers and his father Debendra Rava (PW 1), the then Deputy Director of Doordarshan who was at his office, was also informed. On receipt of the information, he (P.W. 1), immediately came to his house and saw the deceased lying dead in the store room with injury on her neck. He found a knife near the dead body. He also noticed cash amount of Rs. 5000/-, VCP, gold ornaments etc were missing. Thereafter, he lodged the F.I.R. and on the basis of his F.I.R., Chandmari P.S. Case No. 63/99 under Section 394/302 IPC was registered. 4. During the investigation inquest on the dead body was held and it was also subjected to Post mortem examination. One blood stained knife and some clothes were seized from the place of occurrence. The seized articles were sent to Forensic Science Laboratory for chemical analysis. The accused Surath Burman was arrested and admitting his guilt he led the police to the place of occurrence wherefrom keys of the almirah, plastic container etc were seized at his instance. One pair of gold earring and a camera, cash amount of Rs. 1670/- were seized from the house of the father in law of the accused where the accused had concealed himself after commission of the offence. The confessional statement of the accused under Section 164 Cr.P.C. was recorded by Judicial Magistrate (PW 8). On examining the knife, which was used in commission of offence, the scientific officer opined that it kept positive test for human blood. 5. On completion of investigation, the police submitted charge sheet under Section 302/394 IPC, against the accused appellant. 6. The accused pleaded not guilty to the charge framed against him under Section 394/302 IPC and claimed to be tried. The prosecution examined altogether 12 witnesses in support of their case. 5. On completion of investigation, the police submitted charge sheet under Section 302/394 IPC, against the accused appellant. 6. The accused pleaded not guilty to the charge framed against him under Section 394/302 IPC and claimed to be tried. The prosecution examined altogether 12 witnesses in support of their case. Thereafter, the accused was examined under Section 313 Cr.P.C. He while admitting the contents of the confessional statement, recorded by the Judicial Magistrate, stated that he confessed before the Magistrate out of fear of physical torture by the police. 7. Conviction in this case is based on circumstantial evidence as none of the witness saw the accused causing death of the deceased. 8. Dr. P.C. Sarma, PW 2 held post mortem examination on the dead body of the deceased Phulsana on 10.3.1999 and his findings are as follows: "Injuries: 1. Incised wound measuring 6 c.m. x 3.5 c.m. (at middle and widest part) x 3.5 c.ms. deep present on the neck obliquely, the upper and left end being located at 2 c.ms. below the angle of mandible on the left side and the lower and right end of the cut wound is located at 4 c.ms. below the angle of lower jaw on the right side. The cut wound is situated at the upper boarder of the thyroid prominence at mid line. The epiglottis is cut completely and the carotid vessels on back sides are cut completely and the oesophagus is cut partly. All other organs were healthy." In the opinion of the doctor the death was due to shock and hemorrhage resulting from cut wound of neck which was anti-mortem, caused by heavy sharp cutting weapon and homicidal in nature. There is no denial of the fact that death of the deceased was caused due to his injury sustained by her and that her death was homicidal in nature. 9. It is in the evidence of PW 1 that at the time of occurrence he was attending his duty at Doordarshan and his younger sister Phulsana Rava was alone in the house. He was informed by one Raja over telephone that Phulsana was killed. He rushed to his house and found the dead body of his sister. He also found cash amount, VCP, gold ornaments were missing from his house. He was informed by one Raja over telephone that Phulsana was killed. He rushed to his house and found the dead body of his sister. He also found cash amount, VCP, gold ornaments were missing from his house. The police was informed and on arrival of police he lodged the formal F.I.R. Inquest on the dead body was held in his presence. Police seized one knife and blood stained clothes and subsequently the accused Surath Burman was arrested and at his instance, some more articles were seized from the place of occurrence. The accused confessed before the police, admitting his guilt However, the admission of the accused or his confession in presence of police is not admissible in law. 10. Corroborating the evidence of PW 1, PW 3 (son of PW 1) stated that when he came back home, he found the victim lying dead. He also stated that the accused used to visit their house as one point of time he was engaged as domestic servant. 11. PW 4, Rup Konwar Gogoi, stated about the seizure of key of almirah and plastic container from the house of the informant. 12. PW 5 Mridul Kumar Barma is a reported witness. 13. PW 6 Ananda Ram Barman is the father of the accused. He deposed that the accused had worked as servant in a family at Guwahati. The police came to his house in search of the accused. Then he told that he (accused) is in Guwahati. PW 6 led the police to the house of the father in law of the accused at Dakhauni and the accused was arrested by the police therefrom. The police also seized a pair of gold earring, cash amount of Rs. 2170/-, a camera by Ext. 9 in presence of PW 6. The evidence adduced by PW 6 remained unrebutted. 14. PW 7 is the Investigating Officer. He visited the place of occurrence, drew sketch map of the place of occurrence and examined the witnesses. He also held inquest on the dead body and sent the body for post mortem examination. He seized one knife lying near the dead body and wearing apparels of the dead body. Thereafter, he went to the house of the accused alongwith the complainant and seized the wearing blood stained shirt of the accused. One VCP, one jangia, two long pants were also seized. He seized one knife lying near the dead body and wearing apparels of the dead body. Thereafter, he went to the house of the accused alongwith the complainant and seized the wearing blood stained shirt of the accused. One VCP, one jangia, two long pants were also seized. One pair of gold ring, cash amount of Rs. 2170/-, one camera etc were seized during investigation. Some other articles were also seized at the instance of the accused. As the accused confessed before the police, he was forwarded to the Court to record his confessional statement. 15. It appears from the evidence of PW 8, the then Addl. CJM, Barpeta, that the accused was produced before PW 8 on 11.3.1999 to record his confessional statement. The accused was cautioned as per the provision of Section 164 Cr.P.C. and thereafter he was sent to judicial custody for reflection of his mind with direction to be produced again on 12.3.1999. On 12.3.99 he was produced again at 11-30 A.M. and after due caution and on being satisfied that the accused is going to make confessional statement voluntarily, PW 8 recorded his confessional statement. On perusal of the confessional statement, recorded by PW 8, it transpires that the confession of the accused as regards the injury caused to the deceased has been corroborated by the post mortem report. PW 2, the doctor finds incised wound in the neck of the deceased which was caused by sharp cutting weapon. The accused in his confessional statement also stated that he inflicted the injury on the neck of the deceased causing her death. 16. PW 9 Deputy Director of Serology examined the blood stained saree, knife and long pant and result of his examination is as under: "(a) Ext. No. Sero 129/99 gave positive test for human blood (b) Ext. Sero 130/99 gave positive test for blood. But the origin of the blood could not be done due to insufficient test material. (c) Ext. Sero 131/99 gave negative test for blood." There is no denial of the fact that the knife was stained with human blood. 17. PW 10, although a reported witness, has stated that the accused earlier had worked as servant in the house of the deceased. Inquest on the dead body was held in his presence. PW 11 S.I., Numal Ch. Sero 131/99 gave negative test for blood." There is no denial of the fact that the knife was stained with human blood. 17. PW 10, although a reported witness, has stated that the accused earlier had worked as servant in the house of the deceased. Inquest on the dead body was held in his presence. PW 11 S.I., Numal Ch. Das has simply submitted the charge sheet against the accused after collecting the post mortem examination report PW 12 was the witness to the inquest on the dead body. Thus from aforesaid discussion it is apparent that the entire case of the prosecution revolves around the evidence which is circumstantial in nature, as there were no eye witnesses to the actual assault. The circumstances relied upon by the prosecution are: 1. Recovery of gold ornaments, camera, VCP, blood stained clothes of the accused and blood stained knife seized from the place of occurrence. 2. Motive. 3. Confessional statement of the accused. 4. Conduct of the accused. 18. It has been consistently laid by the Apex Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (C. Chenga Reddy vs. State of A.P. (1996) 10 SCC 193 ; Padala Veera Reddy vs. State of A.P. (1998 Supp. (2) SCC 706; State of U.P. vs. Ashok Kumar Srivastava (1992) 2 SCC 86 ; Hanumant Govind Nargundkar vs. State of U.P. 1953 Crl.L.J. 129; Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 ). 19. (C. Chenga Reddy vs. State of A.P. (1996) 10 SCC 193 ; Padala Veera Reddy vs. State of A.P. (1998 Supp. (2) SCC 706; State of U.P. vs. Ashok Kumar Srivastava (1992) 2 SCC 86 ; Hanumant Govind Nargundkar vs. State of U.P. 1953 Crl.L.J. 129; Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 ). 19. In the case of Geejaganda Somaiah vs. State of Karnataka (2007) 9 SCC 315 , the Apex Court held as under: "There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touch stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952." In Hanumant Govind Nargundkar vs. State of U.P. AIR 1952 2 SC 343 it was observed- "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be inconsistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, it must be chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused". 20. In this case, it is established by the evidence of P.W. 1, P.W. 3, P.W. 5 and P.W. 10 that the accused used to work as servant in the house of the deceased. This fact has also been admitted by the accused in his statement recorded under Section 313 and 164 Cr.P.C. Prosecution has also proved by adducing evidence of PW 6, father of the accused that after the incident the accused along with looted booties took shelter in the house of his father-in-law at Dakhauni. Police seized gold ornaments, cash amount and camera from the possession of the accused. While the accused was arrested he was wearing blood stained shirt which was also seized alongwith one underwear and two long pants. 21. Police seized gold ornaments, cash amount and camera from the possession of the accused. While the accused was arrested he was wearing blood stained shirt which was also seized alongwith one underwear and two long pants. 21. The confessional statement of the accused was recorded by the Judicial Magistrate (PW 8) after giving him sufficient time for reflection and after due cautions about the consequence of his confessional statement. The statement of the accused before the Magistrate, is corroborated by the medical evidence as regards the nature of injury sustained by the deceased. The place where the looted articles were kept and the recovery of those articles also corroborates the confessional statement made by the accused. 22. It is well settled law that even retracted confession can be basis of conviction, if the court is satisfied that it is true and voluntarily made. The accused in this case has not denied that he confessed before the Magistrate, his plea was that out of fear of police torture he confessed. The accused was brought before the Magistrate (PW 8) on 11.3.99 at 4 P.M. The Magistrate has mentioned in Ex. 13, that the accused did not complain of any ill treatment and no injury was noticed on his person. He was cautioned and sent to jail for reflection of mind. He was again produced before the Magistrate from judicial custody on 12.3.1999 at 11-30 A.M. He was again cautioned and was asked to wait in the chamber of the Magistrate, in custody of office peon for further reflection of mind and then at 3 P.M. learned Magistrate proceeded to record his confessional statement and before that he (accused) was explained/cautioned that he is not bound to make confession and that if he does so, it may be used as evidence against him and even if he declines to make any confession he will not be sent to police custody. The confession in this case has been duly recorded by P.W. 8 who has proved the compliance of provision of law while recording the confession. The aforesaid confession is a substantive piece of evidence. 23. The retracted statement by the accused was not made at the first available opportunity. During the trial, the accused was released on bail and he remained free till the end of trial. The aforesaid confession is a substantive piece of evidence. 23. The retracted statement by the accused was not made at the first available opportunity. During the trial, the accused was released on bail and he remained free till the end of trial. Till his statement under Section 313 Cr.P.C. was recorded the confession of the accused remained un-retracted. The retraction was made many years after recording of the confession. 24. If we examine and compare the confession with the rest of prosecution evidence and the probabilities of the case, the irresistible conclusion follows is that the confessional statement is true. The material portion of the confessional document concerning the actual crime is as follows:- "I had been at Dhiren Chandra Rabha's house for about three years as a servant. In 1995 a person lured me from his house promising a job. However, I did not get any job. Thereafter, I went to my home. Then later I came back and since 1(one) year, I started working as a auto van driver in the Lakme company. I used to visit Dhirendra Rabha's house every now and then just to enquire about their well-being. Around 10 O'Clock on 09.03.99, I visited Dhirendra Rabhas's house. The door in the front of their house was open. I went straight to Dhirendra Rabha's room and opened the 'Godrej' (Almirah) taking the keys from the top of the 'Godrej'. Taking therefrom a VCP, a pair of gold earring, a gold earring, a gold ring and Rs. 1600/- from a wall drawer near the 'Godrej' and took a camera and Rs. 500/- from a wall drawer of a different room and went out of my house. When I reached near the gate, Dhirendra Rabha's younger sister Phulsana Rabha screamed. Hearing her scream, I returned there and kept the articles on the carpet in the first room. I told Phulsana that I would not take away those articles and asked her not to disclose that to any one. However, saying that she would not listen to me, Phulsana walked towards the kitchen. I, too, followed her to the kitchen and as she did not obey me, I picked up a knife from the place where knives were kept, and sauced her neck by holding the knife with the right hand and her hair with the left hand. However, saying that she would not listen to me, Phulsana walked towards the kitchen. I, too, followed her to the kitchen and as she did not obey me, I picked up a knife from the place where knives were kept, and sauced her neck by holding the knife with the right hand and her hair with the left hand. Then she fell down thereafter, I went out taking along the articles. Therefrom I went to my rented house at Dhirenpara. I kept the VCP there itself and around 2/2.30 PM I went to my father-in-law's place at Pachim Dakhaina village. In the following morning, police arrested and brought me along." It is seen that the accused inflicted only one cut on the neck of the deceased by means of a knife. The post mortem report also indicates only one cut injury in the neck of the deceased. The confession of the accused that the left the place alongwith looted gold ornaments, VCP, camera and cash amount and the recovery of those articles also shows that confession made by the accused is true. The confession of a crime by person, who has perpetrated it is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. A retracted confession may form the basis of conviction, if believed to be true and voluntarily made. The reason given by the accused for retraction on confession, if appears to be false, the confession can be acted upon as it stands. 25. It is urged by learned Amicus Curiae that there was no intention on the part of accused to kill the deceased. He simply intended to steal the articles from the house of the victim. 26. The accused when entered into the house, he might not have intended to kill or cause any injury to the victim. But when the victim saw him removing the articles from her house, the accused at that point of time developed the motive to eliminate her. He followed her to the kitchen picked up a knife kept in a plastic container and slitted her neck. Thereafter, he decamped with the looted booties. He took shelter in his father-in-laws house wherefrom he was apprehended alongwith stolen articles. 27. He followed her to the kitchen picked up a knife kept in a plastic container and slitted her neck. Thereafter, he decamped with the looted booties. He took shelter in his father-in-laws house wherefrom he was apprehended alongwith stolen articles. 27. In view of above we are of opinion that the confession by the accused in this case can be acted upon and considering other circumstances as discussed above and appearing against the accused, we find that the prosecution has proved appellant's guilt beyond reasonable doubt. The judgment of conviction passed by the trial Court is upheld and the appeal is, therefore dismissed. We appreciate the assistance rendered by Mr. T.J. Mahanta, learned Amicus Curiae. Concerned authority is directed to pay an amount of Rs. 5000/- to him as fee for rendering assistance to the Court arguing the case for the appellant. Appeal dismissed