M. Fathima Beevi, J.

1. Kundathil Aboobacker, the accused in Sessions Case No. 5 of 1986 before the Sessions Judge, Kalpetta was convicted under S.302 IPC and awarded the capital punishment. The reference is for confirmation of the death sentence.The appeals have been preferred against the conviction, one by counsel for the appellant and the other by the appellant himself from the jail.

2. Kuruman, a tribal, his mother Vellachi, sister Kembi and sister's two children were killed on 7-1-1982 at about 7.30 P.M. The appellant was tried on the charge of murder. He was also charged under S.3 read with S.25(1)(a) of the Indian Arms Act.

3. The appellant Aboobaker aged 36 was living near the tribal colony at Vellimadukunnu along with his two wives and thirteen children. Kuruman, a labourer lived close by. He used to work for the appellant. The prosecution alleged that of late the appellant was infuriated by the refusal of Kuruman to work for the appellant. On the date of the occurrence at about 7.30 P. M. Kuruman was going towards his house along the foot path. The appellant armed with an unlicensed gun and a dagger dashed against him from behind, first administered a blow using the