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13. Even before this Court, after filing the appeal, the counsel engaged by the appellant did not turn up to conduct the matter. Since the appellant is in judicial custody, this Court appointed Sri. S.G. Chaitanya, learned counsel as Amicus Curiae to assist the Court on behalf of the appellant.

Submissions of learned Amicus Curiae are as follows:

14. The appellant was in judicial custody during the trial. The counsel engaged by him failed to defend him in trial. The State cannot take away the fundamental right of liberty of the appellant without following the due procedure of law. If the accused is in custody and is unrepresented, Sections 303 and 304 of Cr.P.C. cast a duty on the Court to assign the pleader for his defence. The Trial Court without complying Section 304 Cr.P.C and in violation of Section 303 and Article 39(A) of the Constitution has convicted the appellant. The impugned judgment and order are vitiated for want of fair trial.
"39A. Equal justice and free legal aid:
The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."

21. To achieve the object of Article 39A of the Constitution, the Legal Services Authority Act has been enacted. Under the said Act, Legal Services Authorities are constituted right from national level to taluk level. The district courts have District Legal Services Authority and a panel of advocates for rendering legal aid to the unaffordable as contemplated under Section 304 of Cr.P.C.

22. As per the prosecution papers, at the time of filing charge sheet, the appellant was hardly aged 23 years. He was in judicial custody. Obviously he had no means to defend himself. Under such circumstances, when his advocate failed to represent him, in view of Section 304 of Cr.P.C and the aforesaid other provisions, it was mandatory for the Trial Court to refer the matter to the District Legal Services Authority for providing free legal aid to the appellant. That is evident from Section 304 of Cr.P.C. as the word 'shall' is used in the said provision. The trial was vitiated for non compliance of Section 304 Cr.P.C. and Articles 21 and 39A of the Constitution and the impugned order is unsustainable. Therefore the appeal is allowed.

The impugned order of conviction and sentence passed against the appellant are hereby set aside.

The matter is remanded to the Trial Court for fresh consideration.

The Trial Court shall assign an Advocate for the defence of the appellant as required under Section 304 of Cr.P.C.

The Trial Court shall recall PWs-1 to 5, 9, 14 and 15 and provide an opportunity to cross examine those witnesses. After such examination of the witnesses, if the trial court finds it necessary to further examine the appellant under Section 313 Cr.PC., it may do so and shall give opportunity to him to lead his defence evidence.