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R.M. Lodha, J.

 Leave granted in S.L.P. (Crl.) No.5209/2006.

The appellants in these four appeals suffered death sentence for the offence punishable under Section 302/34 IPC, at the hands of Additional Distt. & Sessions Judge, First Fast Track Court, Nainital. The trial court also convicted the appellants for the offences punishable under Sections 376 and 377, IPC and sentenced them to life imprisonment. Each of the appellants was also convicted for the offence punishable under Section 201/34, IPC and sentenced to undergo seven years rigorous imprisonment and fine of Rs.2,000/- and in default in payment of fine, additional imprisonment of six months. Since death sentence was awarded, the trial court made a reference to the High Court for confirmation. The appellants challenged the judgment of the trial court in separate appeals before the High Court of Uttaranchal at Nainital. The death reference and appeals were heard together. Vide judgment dated July 12, 2005, the High Court maintained the conviction of the appellants under Sections 302/34, 376 and 201/34, IPC. The sentence of death awarded under Sections 302/34, IPC to each of the appellants was commuted to that of rigorous imprisonment for life. The sentence awarded by the trial court under Sections 376 and 201/34, IPC, was maintained. The High Court, however, acquitted the appellants of charge under Section 377, IPC and their conviction and sentence under this count was set aside. It is from the judgment dated July 12, 2005 that these four criminal appeals by special leave arise.

4. On September 27, 2003, while A-1, A-2, A-3 and A-4 were in District Jail, Nainital, their underwears were seized and sent for chemical examination to Forensic Science Laboratory, Agra. The Pyajama and other items of victim were also sent to Forensic Science Laboratory, Agra.

5. After receipt of the post-mortem report, the offences under Sections 376 and 377 IPC were also added.

6. Aamir's statement under Section 164, Cr.P.C. was recorded by the Judicial Magistrate, Nainital on October 7, 2003.

7. The investigating officer on completion of investigation submitted charge sheet against A-1, A-2, A-3 and A-4 for the offences punishable under Sections 302/34, 376, 377 and 201/34 IPC. The Chief Judicial Magistrate, Nainital, took cognizance and committed the case to the Sessions Judge, Nainital which was transferred to the court of Additional Distt. & Sessions Judge, First Fast Track Court, Nainital.

8. The defence of the accused persons was one of simple denial. They stated that they have been falsely implicated in the case.

31. Mr. L.C. Goyal, learned counsel for A-1 and A-2 submitted that these accused were not given sufficient opportunity to defend themselves and constitutional mandate was flouted and also they were denied their statutory right to be defended by a pleader as envisaged under Sections 303 and 304 Cr.P.C.

32. We deem it proper to refer to the consideration of this aspect by the High Court which is as follows:

"In regard to the submission that the trial stand vitiated for want of compliance of the constitutional mandate as well as the legal provisions it need to be stated that the accused were committed to the Court of Sessions on 20.12.2003 by the C.J.M., Nainital and when the accused were brought before the court of Sessions in pursuance of the commitment of the case date for framing of the charge was fixed by the Sessions Judge, Nainital. The date fixed for the purpose was 2.3.2004. Before this date the sessions trial was transferred to the court of Additional Sessions Judge/1 F.T.C., Nainital for disposal according to law and on receipt of the record this transferee court fixed 16.3.2004 for framing of the charge. The Additional Sessions Judge took up the case for this purpose on 16.3.2004 and in the presence of all the four accused persons framed charges against them for the offences as mentioned above and for the commission of which the accused were later on convicted. The order sheet of the said date does not reflect the presence of the defence lawyer or even the public prosecutor before the learned Additional Sessions Judge and perhaps the charges were framed after perusal of the documents of the prosecution without referring that the Judge was of the opinion that there were grounds for presuming that the accused have committed offences which are exclusively triable by the court as envisaged by Section 228 of the `Code'. Record also reveal that till that date neither the accused have engaged their own lawyer nor they were provided with a defence lawyer at the expense of the state as provided under Sections 303 and 304 of the `Code'. The learned Additional Sessions Judge however after framing the charges and making an endorsement that the accused pleaded not guilty and claimed to be tried, fixed 24.3.2004 for recording of the evidence of the prosecution and directed the prosecution witnesses to be summoned. On 24.3.2004 A.D.G.C. (Criminal) moved an application for adjournment of the trial in view of the prosecution witnesses having not been served with summons and on his prayer the trial was adjourned to 7.4.2004 for recording of the evidence of the prosecution. However no lawyer was appointed on this date also as Amicus Curiae for the accused. On 7.4.2004, as is evident from the record and the order sheet of the said date, three prosecution witnesses, P.W.1, P.W.2 and P.W.3 were examined by the prosecution, and on the same day Sri M.A. Khan, Advocate was appointed Amicus Curiae. The Amicus Curiae cross-examined all these three witnesses on behalf of two accused Babu and Aamir only which indicate that only these two accused were provided the Amicus Curiae by the learned Additional Sessions Judge. The witnesses were cross-examined by a lawyer on behalf of other two accused Pawan and Arjun which indicate that they have engaged the lawyer of their choice after the charges against them have already been framed in the trial.