P. C. Phukan, J.-- This is an appeal directed against the judgment and order dated 7.9.96 passed by the learned Additional Sessions Judge, Sonitpur at Tezpur convicting the accused Dipak Sharma under section 302 IPC and sentencing him thereunder to imprisonment for life and also to pay a fine of Rs.5,000/-, in default, to further 6 months RI. 2. The prosecution case in brief is that on 23.2.93 at about 2 PM at Purana Boraigaon under Helem Police Station, while the deceased Hariprasad Kotel was working in his mustard seeds cultivation field, the accused Dipak Sharma hacked him with a dao, severing his head. PW1, Homelal Sharma was then only 20 yards away passing urine, and from there he saw the accused inflicting dao blow on the neck of the deceased. Out of fear PW 1 ran away and informed the deceased's son Kumar Katel, PW 3 about the occurrence. In the meantime, the accused came to the police station with the severed head of the deceased wrapped in a towel and with a dab in his hands and narrated the occurrence before PW 8, Officer In-charge of the police station. On his verbal information, PW 8 made General Diary Entry Ext 7 and seized the dao, Material Ext 1 vide seizure list, Ext 4. PW 8 then visited the place of occurrence, found the headless dead body there, held inquest of the headless dead body and of the severed head, and sent the accused for recording his confessional statement, and PW 7, Smti R. Bora Saikia, Judicial Magistrate, recorded his statement, Ext 5 under section 164 CrPC. The police collected the post mortem examination report of the dead body performed by PW 6, Dr. BK Bora. Within an hour of the occurrence, the deceased's son PW 3 Kumar Kotel lodged the FIR, Ext 2. On completion of investigation, the police submitted charge sheet against the accused under section 302 IPC. After the case was committed to the Court of Sessions, a charge under section 302 DPC was framed, read over and explained to the accused to which g he pleaded not guilty and claimed to be tried. In the trial the prosecution examined 8 witnesses. In his examination under section 313 CrPC the accused denied to have made any confessional statement, pleaded innocence and said that he was falsely implicated. He declined to adduce any evidence. 3. In the trial the prosecution examined 8 witnesses. In his examination under section 313 CrPC the accused denied to have made any confessional statement, pleaded innocence and said that he was falsely implicated. He declined to adduce any evidence. 3. After considering the evidence on record and hearing the prosecution and the defence, the learned Sessions Judge convicted and sentenced the accused as stated above, hence this appeal. 4. We have considered the record of the case and have heard arguments of Mr. SC Biswas, learned counsel for the accused appellant and Mr. J. Singh, learned Public Prosecutor appearing for the respondent State of Assam. 5. PW 6, Dr. BK Bora, Medical and Health Officer, Bargaon New PHC performed the post mortem examination on the dead body of the deceased and found cut laceration from the left side of the upper lip obliquely upwards, size 1" x l/2” multiple extensive cut laceration on the left side of the face below the left ear, a cut laceration of the right side of the face extending horrizontally backwards on the middle of the nose, size 3" x 1/2" skin thickness, cut laceration through the lower part of the right ear extending horrizontally backwards, size 3" x 1" x skin thickness of the external ear and skin thickness behind the ear. He found separation of the head from the body at the neck and opined that death was due to shock as a result of spinal cord injuries caused by heavy and sharp weapon like dao. The defence declined to cross examine the Doctor. The unchallenged testimony of the Doctor coupled with other evidence on record have amply proved that the death of the deceased was not suicidal nor accidental, but homicidal and he was done to death at the time and place as alleged by the prosecution. The defence has not disputed this. The only pertinent question is whether it was the accused who caused the death of the deceased. In this regard the prosecution has relied upon: (i) The eye witness account of PW 1 and the evidence of the reported witness PW 3 Kumar Kotel. According to PW 1, on the fateful day at about 2 PM, he and the deceased had been loading mustard seeds in a bullock cart on the river bank of Miri Pathar. The accused came there. According to PW 1, on the fateful day at about 2 PM, he and the deceased had been loading mustard seeds in a bullock cart on the river bank of Miri Pathar. The accused came there. When the accused and the deceased were talking, PW 1 came near a bamboo grove to pass urine and saw from a distance of about 20 yards the accused hacking the deceased on the neck. Out of fear, PW 1 ran away and reported to the deceased's son PW 3 about the occurrence. PW 3 corroborated PW 1 and added that he then came to the place of occurrence and saw there the headless body of his father, that the police came and took the body to the police station where they showed him the severed head. Within an hour of the occurrence the police received the FIR, Ext 2, Ext 2(1) being signature of PW 3 as the informant. The accused has been specifically named in the FIR. (ii) The evidence of PW 8 that after the occurrence at about 2.30 PM the accused appeared before him in the police station with the severed head of the deceased and a dao in his hand. This is relevant under section 8 of the Evidence Act as subsequent conduct of the accused. (iii) The confessional statement, Ext 5 of the accused recorded by the Judicial Magistrate, PW 7 under section 164 CrPC. 6. Learned defence counsel Mr. Biswas submits that the evidence of PW 1, who claimed to be an eye witness, is unworthy of credence. For, PW 1 said in examination-in-chief that on the fateful day he accompanied the deceased to the field of rape seeds cultivation where the occurrence took place. But PW 8, Investigating-Police Officer in cross-examination said that PW I made no such statement before him. This is no doubt an omission, but is not material omission and does not amount to contradiction. Here the presence of PW 1 at the place of occurrence at the relevant time was most material, and PW 1 did state to the IO about such presence. Thus what PW 1 actually stated is not irreconcilable with a what he omitted to state. Such omission is no ground for discarding evidence of PW 1. Mr. Here the presence of PW 1 at the place of occurrence at the relevant time was most material, and PW 1 did state to the IO about such presence. Thus what PW 1 actually stated is not irreconcilable with a what he omitted to state. Such omission is no ground for discarding evidence of PW 1. Mr. Biswas, learned counsel for the accused appellant, has argued that PW 1 can hardly be believed when he claimed to have seen the accused hacking the deceased with a dao, for the reason that he admitted that he had not seen any dao in the hands of the accused. The argument is not tenable. PW 1 only said “prior to my leaving for passing urine, I had not seen dagger in Deepak's hand”. Subsequently, PW 1 saw the accused hacking the deceased with a dao (dagger). Another submission of Mr. Biswas is that both PW 1 and PW 3 are closely related to the deceased and hence the accused should not be convicted on the basis of their evidence. It is true that PW 1 is brother-in-law of the deceased and PW 3 is the deceased's son. There is nothing in their cross-examination to show that they had any animous against the accused and there is nothing to show why they would falsely implicate the accused, and in fact the close relations shall be the last persons to screen the real culprit by falsely implicating innocent person. We feel convinced that the single eye witness PW 1 is a witness for the truth. If we would still want corroboration to reassure ourselves, that is there in the medical evidence of PW 6 as regards the situation of the injuries inflicted, their nature and the weapon used to inflict them in the evidence of PW 3 we have already discussed, in the unchallenged evidence of PW 8 that after the occurrence the accused appeared before him in the police station with the severed head and the dao, and the last but not the least, in the confessional statement of the accused. 7. Mr. Biswas contends that the confessional statement as aforesaid is not admissible in evidence inasmuch as, in recording the same, learned Magistrate committed illegality by not observing the legal formalities, by not giving time to the accused for reflection, and that the alleged confession was not voluntary. 7. Mr. Biswas contends that the confessional statement as aforesaid is not admissible in evidence inasmuch as, in recording the same, learned Magistrate committed illegality by not observing the legal formalities, by not giving time to the accused for reflection, and that the alleged confession was not voluntary. On close scrutiny, we have, however, found that the learned Magistrate PW 7 substantially complied with the statutory requirements under section 164 CrPC. PW 7 deposed that the accused was produced before her on 24.2.93 and was remanded to the judicial custody for reflection, that next day he was produced, duly cautioned and was again given time for reflection keeping him inside her chamber in custody of a Court peon. Mr. Biswas then submits that in the confessional statement from Ext 5, there is nothing to show that the learned Magistrate explained to the accused that he would not be sent to police custody even if he declined to confess. Learned Magistrate, PW 7, however, categorically deposed that she did explain that to the accused before recording his confessional statement. Mr. Biswas has further contended that the learned Magistrate, in utter disregard to the legal requirement, did not explain to the accused that he had a right to consult a lawyer before making confession, and in support of his contention Mr. Biswas has referred to the opinion of Mr. Justice K. Lahiri (as he was then) of this Court in Kuthu Goala's case reported in 1981 Criminal Law fr Journal 424. Mr. Singh, learned Public Prosecutor, however submits that this Court subsequently took a different view in Hendry Rober's case reported in (1983) 1 GLR NOC 4 wherein, it has been held, inter alia : “Indeed, in our opinion, there is no such constitutional obligation on the part of such a Magistrate. With the greatest respect, we do not subscribe to the views of the learned brother Lahiri, J. In Kuthu Goala vs. State of Assam 1981 Crl LJ 424; Gendra Brahma vs. State of Assam 1981 Crl LJ 430: State of Assam vs. Rabindra Nath Guha, 1982 Crl LJ 216 and we hold that the confession of an accused on that score cannot be abjured as violative of Article 21 of the Constitution.” 8. The confessional statement of the accused reads as under : “Deceased Hariprasad Kotel used to speak ill of me before my wife, Shrimati Dulasha Debi. The confessional statement of the accused reads as under : “Deceased Hariprasad Kotel used to speak ill of me before my wife, Shrimati Dulasha Debi. Besides that, he advised my wife to leave my house and to stay at her parents house at Shantipur. On 23.2.93, my wife, as advised by Hariprasad Kotel, made preparation to convene a 'mel' alleging my.illegal relation with my niece, Chenumaya Debi, who lived near our house. Out of anger for the false allegation against me, I cut Hariprasad Kotel at the mustard seeds cultivation itself. Taking the severed head of Hariprasad along, I presented myself at the thana with the dao and narrated the incident” 9. The above confessional statement of the accused has been fully corroborated not only by the eye witness PW1, but also by the medical evidence of PW 6 as regards the situation of the injuries inflicted, their nature, and the weapon used to inflict them, and by the evidence of Investigating Police Officer PW 8 that the accused appeared in the police station with the severed head and a dao. It is true that subsequently the accused retracted his confession. But the confession is not regarded involuntary merely because it was later retracted. Confessions are made only to be retracted in the vast majority of cases. After dareful consideration of the confessional statement along with other evidence corroborating it, we hold that it was perfectly voluntary as well as true, and hence has satisfied the double test. 10. Mr. Biswas has argued that assuming but not conceding that the confessional statement was voluntary, and true, it does not make out a case of murder under section 302IPC, but brings this case within the mischief of exception 1 to section 300 IPC. This arguments does not hold good. For exception I says "Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation.” In this regard Mr. Singh learned Public Prosecutor, submits that it is absolutely clear from the confessional statement that the deceased himself did not say or do anything provocative to the accused. He is only alleged to have spoken ill of the accused before his wife, who, in turn, sought to convene a village meeting about illicit relationship of the accused with his niece. Singh learned Public Prosecutor, submits that it is absolutely clear from the confessional statement that the deceased himself did not say or do anything provocative to the accused. He is only alleged to have spoken ill of the accused before his wife, who, in turn, sought to convene a village meeting about illicit relationship of the accused with his niece. In the facts and circumstances of this case, by no stretch of imagination, it can be said that it was the deceased who gave grave and sudden provocation to the accused. 11. Mr. Biswas, learned counsel for the accused appellant, has lastly argued that the blood stained clothes of the deceased and sample of the earth where the occurrence allegedly took place were not sent for chemical examination and such non examination has demolished the value and credibility of the investigation. We are, however, of the opinion that in view of the clear and clinching evidence against the accused in this case, such lapses on the part of the Investigating Officer have not caused any prejudice to the defence and have not demolished the prosecution case. In this regard, it has been held in Baleshewar Mandal's case AIR 1997 SC 3471 that : “The evidence on record before the Sessions Court and the appellate Court does not show that due to the lapses on the part of the Investigating Officer in not sending the blood stained clothes and earth seized from the place of occurrence for chemical examination.... has resulted in any prejudice to the defence of the accused. In the present case, the place of occurrence and the identity of the accused are not disputed .... Once the eye-witnesses are believed and the Court comes to the conclusion that the testimony of the eye witnesses is trustworthy, the lapses on the part of the Investigating Officer in not observing the provisions of section 172 CrPC unless some prejudice is shown to have been caused to the accused, will not affect the finding of guilt recorded by the Court.” 12. Now, the accused used a dao, a sharp cutting lethal weapon, to cause the fatal injury on the deceased's neck, a vital and vulnerable part of the human body, with such great force that the head got severed from the body. Now, the accused used a dao, a sharp cutting lethal weapon, to cause the fatal injury on the deceased's neck, a vital and vulnerable part of the human body, with such great force that the head got severed from the body. It must, therefore, be held that the accused did so with the intention of causing the death of the deceased. Hence, the learned Sessions Judge rightly convicted the accused , appellant under section 302IPC and sentenced him thereunder to imprisonment for life which is the minimum sentence that can be awarded in a conviction under section 302 IPC. 13. In the result, the appeal fails and is dismissed. 14. The conviction and the sentence awarded by the impugned judgment and order are upheld. 15. Send immediately the records of Sessions Case No. 78 (J) of 1993 along with a copy of the judgment and order of this Court to the Court below.