JUDGMENT D.N. Roy, J. - This is an appeal by Mahfooz, Razzaq, Mooda and Illias who have been convicted under Sec. 396 and each sentenced to imprisonment for life. Three other persons Ram Singh, Phool Singh and Kala were tried jointly with the appellants for the same offence. Ram Singh and Kala were acquitted. Phool Singh was also convicted under Sec. 396, I.P.C. and the same sentence was awarded to him as was awarded to the appellants. Phool Singh seems not to have appealed. 2. On the night between 8th and 9th of June 1957 at about mid-night an armed dacoity took place at the house of Rajaram (P.W. 1) in village Gujarpur within police circle Khandhla in district Muzaffarnagar. The dacoits were twelve in number. Two of whom were armed with guns, two others with spears and the rest with lathis. After some of the dacoits had gained entrance into the house from over the roof of Rajaram by means of a ladder, the main door of the house was let open. The other dacoits thereby gained entrance to the house. The two dacoits who had guns went up the roof and fired certain shots in order to scare away the villagers. Niranjan (P.W. 4) received gunshot from them. The other two dacoits who were armed with spears stood by the side of the outer door of the house in order to keep guard there. The dacoits who were inside, broke open the boxes and committed loot for about half an hour or 45 minutes. It was upon the alarm raised by Rajaram that Niranjan, Man Singh, Dila, Lachhia, Malkhan, Budhu and certain others, the neighbours, came to his assistance. During the course of the dacoity a stack of Phoos that was lying at a short distance was set fire to by one of the villagers and this rendered visibility possible. The night itself was also a moon-lit night and there was evidence to the effect that the moon was bright. When the dacoits were retreating with their booty and were at a very short distance from the house of Raja Ram, they perceived that there was a gathering of a large number of villagers and they apprehended that they would be given a chase and might be caught. When the dacoits were retreating with their booty and were at a very short distance from the house of Raja Ram, they perceived that there was a gathering of a large number of villagers and they apprehended that they would be given a chase and might be caught. In order to frighten the villagers from coming near them they fired certain shots when they were in front of Data Ram's gher, and by those shots Lal Singh, Bhupal, Bhumman, Sultan and Shrimati Kali were hit. Bhupal died instantaneously and Lal Singh survived for about half an hour or so. The dacoits ultimately succeeded in escaping with their booty. A report of the occurrence was lodged at police station Kandhla by Raja Ram on the 9th of June, 1957 at 6 A.M., the police station having been at a distance of about three miles from the place of occurrence. In this report the name of Ram Singh alone was specified amongst the culprits and it was stated that there were 10 or 12 other dacoits who were unknown but who had clearly been seen by the witnesses and could be identified. The report gives also a list of the property that had been taken away. 3. A large number of witnesses were examined on the side of the prosecution. The commission of the dacoity was deposed to by 11 witnesses, namely, Raja Ram, Dila, Lachhi Rain, Niranjan, Smt. Vidyawati, Smt. Wazari, Dharma, Thana, Malkhan Singh, Bahadur Singh and Budh Singh. Raja Ram was the person at whose house the dacoity was committed; and he saw the dacoits from his gher. Dila, Niranjan, Dharma, Thana and Malkhan Singh were proceeding towards the house of Raja Ram when the alarm was raised and when the dacoity was still in progress. Niranjan was shot at and hit by the dacoits who were on the roof. The evidence of these witnesses has not at all been challenged before us and there can be no manner of doubt that on the night in question an armed dacoity took place at the house of Raja Ram. Dr. P.N. Rastogi, the medical officer of Kandhla Hospital, examined the injuries on the morning of 9th June, 1957 of Smt. Kali, Dhumman, Sultan and Niranjan and gunshot wounds were found on them. Dr. P.N. Rastogi, the medical officer of Kandhla Hospital, examined the injuries on the morning of 9th June, 1957 of Smt. Kali, Dhumman, Sultan and Niranjan and gunshot wounds were found on them. It was in the evidence of the prosecution witnesses that the night in question was a moon-lit night and the moon was bright. It was 'further in evidence that a stack of hay was set fire to at a short distance from the house of Raja Ram and that that rendered visibility still clear. It appears from the evidence of the prosecution witnesses that when the dacoits were retreating and were a few steps away from the house of Raja Ram, they noticed an assembly of villagers near the baithak of Lal Singh. They would naturally have apprehended that a chase by the villagers was possible. Accordingly they fired two rounds when they were in front of Data Ram's gher over that assembly. By that fire Lal Singh, Bhupal, Dhumman, Sultan, Smt. Kali were hit. The last three survived and were medically examined by Dr. Rastogi, who found that Dhumman had got a gunshot injury, Sultan had six gunshot injuries, Smt. Kali had a gunshot injury and Niranjan, referred to above, had seven gunshot injuries. Lal Singh and Bhupal met with their death. Their dead bodies were sent for post mortem examination. The post mortem examination reports and the evidence of the doctor who conducted the post mortem examination show that Bhupal and Lal Singh deceased each got two gunshot injuries and that death was the result of those injuries. The medical evidence and the statement of the witnesses who were produced on the side of the prosecution have not at all been challenged before us by the learned counsel for the appellants. 4. The evidence against the appellants was one of identification alone. But before we deal with the identification evidence and the pleas taken by those appellants it should be necessary to state as to when were these persons arrested. Sub-Inspector Tej Bir Singh (P.W. 5) of Sardhana in district Muzaffarnagar arrested Ilyas appellant on the 27th of June 1957 in village Harra at about 8 A. M. This accused was put under Pardah, and he was finally sent to and lodged in jail; and throughout the course of transmission and stay at different places he was kept under Pardah. 5. 5. There was positive evidence of the witnesses to prove this Mooda appellant surrendered himself in the court of the Judicial Officer, Sardhana on the 30th of July, 1957. Mahfooz and Razzaq appellants were arrested on the 5th of August 1957. In the case of all these three appellants proper precautions had been taken by the authorities to keep them under Pardah and they were finally put into jail under those conditions. The identification proceedings of Razzak and Mahfooz appellants were held in the jail premises by Sri L.K. Gupta (P.W. 21), a Magistrate of the First Class, on the 17th of August 1957. The Magistrate took all precautions which were required for the conduct of the identification proceedings Mahfooz was identified by Raja Ram (P.W. 1), Lachhi Ram (P.W. 3) , Dharma (P.W. 7), Than Singh (P.W. 8) and Malkhan (P.W. 9) Dharma Singh, however, was not able to identify Mahfooz in the court of sessions. At the identification proceedings held in jail, Raja Ram had committed two mistakes. There were therefore three very good identifications against this accused, namely, of Lachhi Ram, Thana Singh and Malkhan who had made no mistake whatsoever in picking him out. That evidence, in our opinion, established the charge against Mahfooz under Sec. 396, I.P.C. beyond any shadow of doubt. 6. In the case of Razzak, he was identified in jail and in the court of Sessions by Lachhi Ram (P.W.3), Than Singh (P.W. 8) and Malkhan Singh (P.W. 9) correctly and these witnesses made no mistake whatsoever. The evidence of identification against him was also sufficiently clear and conclusive. 7. The identification proceedings in relation to Ilyas and Mooda appellants had been held in the jail premises by Sri L. K. Gupta (P.W. 21), a Magistrate of the First Class, on the 9th of October, 1957. Sri L. K. Gupta took all the necessary precautions in the conduct of those identification proceedings. In those proceedings Mooda was correctly identified by Lachhi Ram and Dila (P. Ws. 2 and 3). These witnesses correctly identified this accused in the court of the Magistrate and also in the court of sessions and they made no mistake at any stage. Ilyas accused was identified by five witnesses, namely, Raja Ram, Dila, Lachhi Rain, Niranjan and Than Singh (P.Ws. 2 and 3). These witnesses correctly identified this accused in the court of the Magistrate and also in the court of sessions and they made no mistake at any stage. Ilyas accused was identified by five witnesses, namely, Raja Ram, Dila, Lachhi Rain, Niranjan and Than Singh (P.Ws. 1 to 4 and 8.) Out of them Raja Ram had made two mistakes while he identified three persons correctly. But the others made no mistake whatsoever. The evidence of identification against Ilyas accused was overwhelming, clear and conclusive to warrant a charge under Sec. 396, I. P. C. 8. It was urged before us that since the death of Lal Singh and Bhupal took place when they were fired at by the dacoits at the time of their retreat and not during the course of the commission of the dacoity, Sec. 396 of the Indian Penal Code shall have no application and they can be convicted only under Sec. 395 of the Code. We are unable to agree with this contention. The common object of the unlawful assembly was to commit a dacoity, and there was a general purpose to resist all opposers even, if necessary, to the point of death. The unlawful assembly did actually commit dacoity, and while retreating on the advent of villagers in superior force, one or another of its members shot and killed two of the villagers. The murders were therefore committed in effecting a safe retreat; and in all such cases it should be ascertained whether the retreat was so separated by time or space from the offence which formed the common object of the assembly as not to form part of it. In the present case there was no such separation and the retreat was an essential part of the common criminal purpose; it was a continuation of the actual dacoity. The murders must be taken to have been committed in prosecution of the common object of the assembly. In the present case there was no such separation and the retreat was an essential part of the common criminal purpose; it was a continuation of the actual dacoity. The murders must be taken to have been committed in prosecution of the common object of the assembly. If certain persons after committing dacoity are persued in hot haste after the act of dacoity and being brought to bay, and one of the dacoits shoots and murders a man pursuing him, the act of murder will not be a separate transaction but an offence committed in committing the dacoity within the meaning of Sec. 396, I. P. C. We are supported in this view by a Full Bench decision of the Calcutta High Court in Monoranjan Bhattachariya v. Emperor, AIR 1932 Calcutta 818 Again, when the murder is committed by dacoits while carrying away the stolen property, the murder must be held to have been committed in the commission of the dacoity. 9. In Sirajuddin v. State, A.I.R. 1951 Allahabad 834 the dacoits were running away without collecting any booty by reason of the villagers having put up a bold front. The court held that the question whether murder was committed by the dacoits while committing dacoity was a pure question of fact and of degree, not to be determined by any general rule but by the special circumstances of each case. On the facts and circumstances of that case the court came to the conclusion that there was nothing to show that the murder was so dissociated by time or space from the dacoity that it could be held that one chapter had closed and a new chapter had begun. The court having held that the transaction of dacoity was continuing right up to the moment when the murder was committed, the case fell within Sec. 396, I. P. C. 10. In Kaley v. The State, A.I.R. 1955 Allahabad 420 there was an armed dacoity in a house in a village. While the dacoits were escaping with the booty the villagers hotly pursued them. The dacoits suddenly turned round and attacked, the villagers and then there was a pitched fight between the two sides. Two of the dacoits fired their guns resulting in death of one villager and in gun shot injuries to another. These two dacoits were convicted under Sec. 396 of the Penal Code. The dacoits suddenly turned round and attacked, the villagers and then there was a pitched fight between the two sides. Two of the dacoits fired their guns resulting in death of one villager and in gun shot injuries to another. These two dacoits were convicted under Sec. 396 of the Penal Code. It was held by a Bench of this Court of which one of us happened to be a member that the accused was rightly convicted under Sec. 396, I. P.C., since the murder had been committed to facilitate their escape with the booty, it was committed in the committing of the dacoity within the meaning of Sec. 396, I. P. C. 11. In Queen-Empress v. Sakharam Khandu, 2 B.L.R. 325 the question was whether the retreat was so separated by time or space from the offence which was the common object of the assembly as not to form part of it, and it was held that it was a pure question of fact and of degree, not to be determined by any general rule, but by the special circumstances of each case. On the facts and circumstances of that case, the court held that there was no such separation; that the retreat was an essential part of the common criminal purpose; and that it was a continuation of the actual dacoity while the dacoits were still acting in concert and were so closely and necessarily connected with the actual demand of property that it must be taken that the murder was committed in prosecution of the common object of the assembly. 12. 12. In a recent case which came before the Supreme Court in Shyam Behari v. State of Uttar Pradesh, A.I.R. 1957 S.C. 320 the decisions which we have referred to above as also certain other decisions had been noticed; and although the decision of their Lordships was based upon a finding that having regard to the peculiar facts of that case an offence under Sec. 302 of the Indian Penal Code was made out and their Lordships therefore did not think it necessary to go into the question as to whether Sec. 395 or Sec. 396 of the Indian Penal Code applied, nevertheless they held that where having made their escape, the accused were still chased by the villagers and when they were some considerable distance away, one of the accused was caught and to effect his release, the other accused fired a pistol and killed the chaser, the offence of murder was not one committed in committing dacoity within the meaning of Sec. 396. It was further held that upon the facts and circumstances of that case the transaction of dacoity had ended the moment the dacoits took to their heels and another and a separate transaction took place when the accused shot at the chaser and therefore the accused could not be convicted of having committed the offence under Sec. 396, I.P.C. Those observations were therefore in the nature of obiter. Their Lordships do not seem to have disapproved of the proposition that in every case it will be a pure question of fact and of degree, not to be determined by any general rule, but by the special circumstances of each case. Upon the facts and circumstances of the present case we are clearly of the opinion that there was nothing to show that the murders were so dissociated by time or space from the dacoity that it should be held that one chapter had closed and that a new chapter had begun. The transaction of dacoity was continuing right up to the moment when these two murders were committed and the case, therefore, fell clearly within Sec. 396 of the Penal Code. 13. We have now to notice one point which was raised in defence by the appellants and that was that the appellants had been shown to the witnesses after their arrest at the police station or during the course of their transmission. 13. We have now to notice one point which was raised in defence by the appellants and that was that the appellants had been shown to the witnesses after their arrest at the police station or during the course of their transmission. A suggestion such as this was made to the witnesses who took part in the arrest or in escorting the accused to different places and finally into the jail, and they emphatically repudiated the suggestion that the accused had been shown over to the witnesses. A clumsy effort was made on the part of two of the accused that soon after their arrest they had made complaint to a certain magistrate that they had been shown to the witnesses by the police. Two applications were relied upon in that connection but the authorship of those applications could not be traced and there was no evidence on the record to show as to whom those applications were made and when. There can therefore be no doubt that the charge against the appellants under Sec. 396; I. P. C. was established beyond any shadow of doubt. 14. Accordingly we find no merit in this appeal and we dismiss it.