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EN BANC

G.R. No. 137514-15 : January 16, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILFREDO PANABANG Y BUSNAG, Accused-Appellant.

D E C I S I O N

VITUG, J.:

It could have indeed been a merry evening for three men unwinding from the rigors of a working day had not for a single bullet that claimed the life of one of them.

On the night of 04 September 1997, Police Chief Inspector Romeo Castro Astrero of Sison, Pangasinan, was shot to death. Wilfredo B. Panabang was charged with murder, coupled with illegal possession of firearm, before the Regional Trial Court, Branch 46, of Urdaneta City. Two separate accusatory Informations, docketed Criminal Case No. U-9528 and Criminal Case No. U-9529, respectively, were filed.

Criminal Case No. U-9528

That on or about September 4, 1997, in the evening at Poblacion Central, municipality of Sison, province of Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused armed with an Armalite Rifle with intent to kill, treachery and evident premeditation, did, then and there wilfully, unlawfully and feloniously shoot Police Chief Inspector Romeo Castro Astrero, inflicting upon him a fatal gunshot wound which caused the instantaneous death of said Police Chief Inspector Romeo Castro Astrero, to the damage and prejudice of his heirs.

CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659.[1cräläwvirtualibräry

Criminal Case No. U-9529

That on or about September 4, 1997, in the evening at Poblacion Central, municipality of Sison, province of Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and feloniously have in his possession, control and custody one (1) Armalite Rifle with ammunitions, without first securing the necessary permit/license to possess the same, which firearm was used in shooting to death one Police Chief Inspector Romeo Castro Astrero.

CONTRARY to P.D. 1866 as amended by R.A. 8294.[2cräläwvirtualibräry

The accused pled not guilty to both charges when arraigned on 24 September 1998. A joint hearing commenced at which the prosecution and the defense recited and submitted their respective cases before the trial court.

Jaime Opilas, a mechanic, owned a motorshop adjoining his house located at the Poblacion Central of Sison, Pangasinan. On 04 September 1997, around 7:25 p.m., Opilas was having a drink in his house with Romeo C. Astrero, the former Chief of Police of Sison, Pangasinan, and a certain Ladio (also referred to as Eladio in the transcript of stenographic notes). While the affair was in progress, there was a sudden burst of gunfire. Opilas heard Astrero say, I was hit. The gunfire came from the southern portion of the house and punctured, with three bullet holes, the northwest portion of the kitchen wall. Turning his head to see where the gunshots had come from, Opilas saw the accused, from a distance of approximately three meters away, move backwards in a stooping position and holding a baby armalite rifle with its nozzle still pointed to their direction. Opilas promptly took the .45 caliber pistol from Astreros clutch bag and began to chase the fleeing accused. In no time, the latter disappeared into the darkness. Astrero was declared dead on arrival when rushed to the Rosario District Hospital in Pangasinan by Opilas and some companions.

Noli Salvatierra, a 23-year old tricycle driver, testified that the accused was his last passenger on the evening of 04 September 1997. Donning a brown jacket, the accused requested to be brought to Arnes Restaurant, and from there the accused proceeded to Opilas Repair Shop located along the highway of Poblacion Central, Sison, Pangasinan.

Dr. Mario L. Duque, a resident physician of the Rosario District Hospital in Pangasinan, conducted the following day an autopsy on the victims cadaver. In his autopsy report, marked Exhibit G, he stated that Astreros cause of death was severe internal bleeding due to injured major pulmonary vessels and pulmonary toleotasis due to injured lung secondary to gunshot.[3 Testifying, he declared that the deceased victim sustained one gunshot wound, and the bullet penetrated his right lung pulmonary artery which caused massive bleeding in the thoracic cavity.

Dr. Arturo Llavore, a medico-legal officer of the National Bureau of Investigation (NBI), made his own autopsy of the victims remains on 13 September 1997 and executed Autopsy Report No. 97-53-P.[4 He concluded that the cause of the victims death was hemathorax, right, severe, secondary to gunshot wound, chest, posterior. He recovered a deformed copper-jacketed bullet, approximately 20 cms., above the right elbow and behind the upper third of the fractured humenes. The slug was fired from a 5.56 mm. armalite rifle. It was subsequently referred to the Firearms Investigation Division (FID) of the NBI for ballistic examination.

NBI Ballistician Marcos P. Libunao examined the deformed copper-jacketed slug extracted from the victims body and corroborated Dr. Llavores testimony that the bullet had been fired from a 5.56 mm firearm.

SPO2 Jovencio Fajarito, a member of the Philippine National Police (PNP), stationed in Sison, Pangasinan, undertook an investigation on the death of Astrero. He interrogated Noli Salvatierra, the tricycle driver, who informed him that he drove the accused to the scene of the incident at Barangay Cauringan on the night of the killing. He said that, on 27 October 1997, Sgt. Colombres submitted to him pieces of evidence consisting of empty shells of M16,[5 an envelope,[6 and the sketch of the crime scene.[7cräläwvirtualibräry

SPO2 Romulo Colombres, a police investigator detailed at Barangay Paldit, Sison Sub-Station, Pangasinan, testified that on 04 September 1997, approximately 7:25 p.m., he received a report on the shooting incident. He at once repaired to the scene of the shooting incident and recovered four empty shells fired from a M16 Armalite rifle. The shells were subsequently turned over to Chief Investigator SPO2 Fajarito.

Police Inspector Leopoldo Rivera, the PNP Chief of Police, in Sison, Pangasinan, testified that, together with SPO2 Colombres, he went to the crime scene. He instructed the latter to take photographs, including the trajectory of slugs, around the area.

Police Inspector Romeo Diagan took the statement of Jaime Opilas. In the course of his investigation, he learned that the accused had boarded the tricycle driven by Noli Salvatierra on the night of the killing.

Jaime Astrero, the 67-year old father of the victim, stated that the latters wife, Dolores Astrero, had spent a total of P184,748.00 for the wake and burial of his son, adding that the victim, a police officer, was receiving a monthly income of P12,000.00.

SPO4 Rodrigo Escao, a PNP member detailed at the Firearms and Explosives Unit in Camp Crame, attested that, upon verification from the available records in his office, the accused was not a duly licensed or registered holder of firearm of any kind and caliber.

It was the turn of the defense to present its evidence.

Avelino Tarona, one of the boarders of the accused at Camp 7, Montesillo Rd., Baguio City, testified that he saw the accused leave the house at about eight to nine oclock in the morning of 04 September 1997 and return at around 7:30 p.m. while he was still watching Esperanza on television.

Lyn Soriano, whose in-laws used to be the neighbors of the accused, stated that, about seven oclock in the evening, she bumped into the accused and his wife Marina Saldaen at a jeepney terminal near Camp 7. After an exchange of casual greetings, the couple left but not before she heard them say that they had just finished playing mahjong.

Virginia Morales testified that the accused was a mahjong acquaintance since 1995. She said that on 04 September 1997, about one oclock in the afternoon, the accused arrived at the Zarate Building, Burnham Park, Baguio City, to play mahjong. The latter left, together with his wife, at seven oclock that evening.

Pedro Eserio stated that from two oclock until five oclock in the afternoon on 04 September 1997, he was playing mahjong with the accused and other players at the Zarate Building. He gave up his seat when Philip Domingo arrived and took his place at the table. He saw the accused playing the game until seven oclock in the evening.

Rosita Galang said that Atty. and Mrs. Gacayan, Adel and Pedro Eserio, Virgie Morales, and the accused were already at the Zarate Building when he arrived at past two oclock in the afternoon of 04 September 1997. She said that the accused and his wife Marina Panaba left the place at seven oclock in the evening.

Lauro Gacayan, a practicing lawyer, testified that on 04 September 1997, approximately 1:30 p.m., he drove his wife to Zarate building where he saw the accused playing the game of tong-its. Gacayan left the building at three oclock in the afternoon to fetch his daughter from school and came back at past seven oclock to fetch his wife.

The accused was a policeman until his separation from the service in 1986. He claimed that, on the morning of 04 September 1997, he did some cleaning-up in his house at Camp 7, Montesillo Rd., Baguio City, before proceeding to Camp Allen to visit his sickly parents. He stayed at his parents house until about noon. Right after taking his lunch in the nearby Kambingan House, he went to Zarate Building where he played mahjong. He left the building at seven oclock in the evening with his wife. He insisted that he was not personally acquianted with the deceased victim whose name he came to know only after being zeroed in as the suspect in the killing.

On 03 February 1999, the trial court handed down a guilty verdict; it adjudged:

WHEREFORE, the Court finds WILFREDO PANABANG guilty beyond reasonable doubt of the crime of MURDER aggravated by treachery and use of unlicensed firearm. The Court hereby sentences him to suffer the penalty of DEATH to be implemented in the manner provided by law; to pay the heirs of the victim the sum of P184,748.00 as actual damages, plus P500,000.00 for compensatory and moral damages and P20,000.00 as exemplary damages and all accessories of the law.

Accused Wilfredo Panabang, in CRIM. CASE NO. U-9529, for Illegal Possession of Firearm, is hereby acquitted considering that the use of an unlicensed firearm shall be treated only as an aggravating circumstance.

The Branch Clerk of Court is hereby ordered to transmit the record of this case to the Honorable Supreme Court for automatic review.

The Warden, Bureau of Jail Management and Penology (BJMP), Urdaneta District Jail, Urdaneta City, is hereby ordered to transmit the living person of Wilfredo Panabang, with proper escort, to the National Bilibid Prisons, Muntinlupa City, as soon as possible.[8cräläwvirtualibräry

The accused assails his conviction and, in this automatic review of his case, contends that the lower court has gravely erred in convicting him of murder and sentencing him to death on the basis of what he terms to be the incredible testimony of the prosecution witnesses.

The Court has closely reviewed appellants case; while it affirms the judgment of conviction, given the circumstances, however, it must reduce the sentence of death to reclusion perpetua.

The basic challenge posed by appellant is focused on the credibility of the witnesses presented at the trial. Jurisprudence is too well settled that this particular issue lies within the province of trial courts to resolve. Trial courts have the means, more than an appellate tribunal can have, to evaluate conflicting testimony and to assess who is a credible witness and who is not, what is reality and what is falsehood, or what is candid and what is disguised. Just recently, the Court has reiterated:

x x x Repeatedly, the Court has called attention to the fact that it is the trial court which can be afforded the unique opportunity to observe the witnesses on the stand. The manner witnesses testify - the hesitant pause, the nervous voice, the undertone, the beffuddled look, the honest gaze, the modest blush, or the guilty blanch - is a significant indicum in aptly assigning value to testimonial evidence.[9cräläwvirtualibräry

It is easy to understood then why the Court, quite often, would say that it would only disturb on appeal the findings by a trial court on the credibility of witnesses just upon a clear showing that it has overlooked, misunderstood, or misapplied some facts or circumstances of weight or substance which can affect the result of the case.[10 No such exceptional showing exists in the case at bar as to warrant a reversal of the rule.

The eyewitness account of Jaime Opilas was plain and consistent on material points. He testified:

FISCAL MENESES:

On September 4, 1997, at around 7:25 in the evening, do you remember where you were, Mr. Witness?

A We were inside our kitchen, sir.

Q In relation to your place of residence, where is your kitchen located, Mr. Witness?

A At the ground floor of my house, sir.

Q How about your Auto Repair Shop?

A Just in front of my house, sir.

Q You said that we were in the kitchen on September 4, 1997 at 7:25 in the evening, can you tell the Honorable Court your companions at that time?

A Major Astrero, myself and a certain Ladio, a customer of mine, sir.

Q On said date and time, what were you doing and your companions?

A We were drinking Tanduay at that time, sir.

xxx xxx xxx

COURT:

When you say you were drinking, you mean to say you were drinking with Astrero and Ladio?

A: Yes, sir.

xxx xxx xxx

Q In relation to the four cardinal directions, where were you situated at that time, to what direction were you facing, Mr. Witness?

A I was facing east, sir.

Q How about Major Astrero?

A He was facing west, sir.

Q About your companion Ladio, where was he?

A He was facing north, sir.

Q And you were also seated in front of a table, drinking, is that correct?

A Yes, sir.

Q At that time, do you remember of an unusual incident that happened?

A There was, sir. There was a burst of automatic fire which sounds `prak.

Q What happened next, Mr. Witness, when you heard automatic fire?

A I heard Major Astrero telling me, `I was hit.

Q What else did you observe after you heard burst of automatic gunfire?

A I saw a person moving backward in a `paupo position, sir.

COURT:

Is that squatting position?

A Yes, sir.

FISCAL MENESES:

In relation to your position, how far was that person that you saw moving backwards in a squatting position?

A More or less three meters, sir.

COURT:

Away from you?

A Yes, sir.

Q About from Astrero?

A The same distance, sir.

xxx xxx xxx

FISCAL MENESES:

Can you identify that person if you will see that person in public?

A Yes, sir.

Q Can you please look around the courtroom and stand up and tell us if that person whom you saw on said date and time is here, tell us?

A Yes, sir, he is here.

Q Can you please step down from the witness stand and tap the shoulder to signify?

A (Witness steps down from the witness stand and tapped the shoulder of a person seated on one of the benches inside the courtroom).

COURT:

Who is that person?

A Willie Panabang, sir.[11cräläwvirtualibräry

PROSECUTOR DUMLAO

Mr. Witness, immediately thereafter, what did you see?

A After the sound of that gunburst `prak I noticed a person holding a long firearm moving backward, sir.

Q Mr. Witness, will you please describe before this Honorable Court that person holding a long firearm immediately after the sound of gunburst `prak?

A (Witness demonstrating) The man was moving backward in stooping position holding the firearm and when he stood up I was able to recognize him.

Q Now, when that man Mr. Witness, stood up, how far were you to him?

A More or less three (3) meters, sir.

Q Now, how were you able to recognize that man since it was already evening of September 4, 1997?

A I am familiar to that person, sir.

COURT:

Familiar with the man holding a gun?

A Yes, sir, I was familiar to the man and when he stood up I was able to recognize him.

PROSECUTOR DUMLAO

You said you were able to recognize him, if that man holding that gun is here in the courtroom, can you please point to him?

A That man, sir. (Witness is pointing to the man [seated] in the courtroom and when asked his name, he answered Wilfredo Panabang.)

xxx xxx xxx

COURT:

You mean to say the gunburst came from the back of Romeo Astrero?

A Yes, sir.

PROSECUTOR DUMLAO:

Going back with that man whom you recognized as the accused in this case who was in stooping position, how long a time was it when he was already there after you heard the gunburst?

A I noticed that person in stooping position after the gunburst, sir.

COURT:

You saw the man in stooping position, where was the muzzle of the gun directed?

A The muzzle of the gun was directed to the place where we were, sir.[12cräläwvirtualibräry

Similarly, the declaration of Noel Salvatierra before the court had all the hallmarks of a credible and honest testimony. He was straightforward and categorical.

PROS. DUMLAO:

Q Could you describe that male person that boarded your tricycle that time between 6:30 to 7:00 in the evening of September 4, 1997?

A Yes, sir. The hair is falling down at his forehead and that he is tall.

Q You said he is tall. What is the proximate height?

A 55 or more.

Q How about his attire that evening?

A Wearing brown jacket, sir.

Q Aside from this person wearing brown jacket, could you describe more?

A No more, sir.

Q How about his face.

A The face is oblong.

COURT:

Q Can you recognize that person if you see him now?

A Yes, sir.

PROS. DUMLAO:

Q Please do so if he is inside the courtroom.

A (Witness pointed to a person inside the courtroom and when asked his name, he answered Wilfredo Panabang.)

xxx xxx xxx

Q When you arrived at the Arnes Restaurant, what did this person do if he did anything?

A He paid me and then he alighted from my tricycle.

Q Where did he proceed, if you know?

A He went in front of the repair shop of Opilas.[13cräläwvirtualibräry

No ill motive or reason was shown to discredit the testimony of Opilas and Salvatierra or to indicate that these witnesses would have falsely implicated appellant. What he could only bewail was that Opilas, when subjected to an initial investigation by SPO2 Fajarito, did not immediately identify the assailant, and that Salvatierra missed by about 5 the height of appellant.

The Court has steadfastly ruled that the initial reluctance of a witness to a gruesome crime to at once disclose the identity of the offender is quite common and would not generally impair his credibility.[14 Indeed, fear of reprisal, threat or intimidation, kinship or relationship, the trouble of being involved in criminal investigations, and like circumstances, can easily silence an ordinary man until good conscience finally overtakes his own concern and overcomes his apprehensions.[15 Nor should the apparent lack of precision with which Salvatierra described the height of the accused significantly diminish the importance of his declarations. The most honest witness may at times make mistakes but such lapses do not necessarily destroy the integrity of the testimony when so taken as a whole.[16cräläwvirtualibräry

The court a quo correctly held that treachery had qualified the killing to murder. The suddenness of the attack, apparently without any provocation on the part of the victim, who was merrily drinking with Opilas and Ladio and who did not have the slightest inkling of the fate that would befall him, should sufficiently demonstrate the treacherous nature of the aggression. The accused surreptitiously positioned himself at the back of the victim, aimed his gun, and without any warning, shot the latter at close to pointblank. Indubitably, the execution of the attack made it impossible for the victim to defend himself.[17cräläwvirtualibräry

Treachery or alevosia exists when the offender commits any of the crimes against person, employing means, methods, or forms in the execution thereof, without risk to himself arising from the defense which the offended party might make.[18cräläwvirtualibräry

Appellants alibi, even with the corroborating claims of the witnesses presented by the defense, must fail in the light of the unimpeacheable declarations of Opilas and Salvatierra.[19 Truth is gauged essentially by the quality of testimony rather than by the number of witnesses presented.[20 But most importantly, appellant has failed to satisfy the element of physical impossibility of a credible alibi, a requirement that relates to the distance between the place where the accused actually is when the crime transpired and the place where such crime is committed, as well as the facility of access between the two places.[21 Baguio City is just about an hours drive from Sison, Pangasinan. Where there is even the least chance for the accused to be present at the crime scene, his alibi would seldom hold water.[22cräläwvirtualibräry

While evident premeditation was alleged in the information, it was not, however, shown in evidence by the prosecution. Three elements should concur for a finding of evident premeditation, to wit: (1) the time when the offender determined to commit the crime; (2) an act manifestly indicating that the culprit had clung to his determination; and (3) a sufficient lapse of time between the determination and the execution to allow the accused to reflect upon the consequences of his act.[23 None of these elements were adequately established.

Indemnification for loss of earning capacity partakes of the nature of actual damages which must be duly proven.[24 A self-serving statement, being unreliable, is not enough.[25 The father of the victim has testified on the latters monthly income of P12,000.00. But for lost income to be recovered, there must likewise be an unbiased proof of the deceaseds average, not just gross, income. An award for lost earning capacity refers to the net income of the deceased, i.e., his total income net of expenses.[26 The trial court has awarded P184,748.00 compensation for medical, burial, and other expenses. The award must be reduced to P70,248.00[27 which is the only amount that has been substantiated. A recovery of actual damages requires proof, with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party,[28 on the amount actually expended in connection with the death of the victim.[29 It may be useful to recall the holding of this Court in People vs. Degoma:[30

x x x Of the expenses allegedly incurred, the Court can only give credence to those supported by receipt and which appear to have been genuinely incurred in connection with the death, wake or burial of the victim. Thus, the Court cannot take account of receipts showing expenses incurred before the date of the slaying of the victim; those incurred after a considerable lapse of time from the burial of the victim and which do not have any relation to the death, wake or burial of the victim; those incurred for purely aesthetic or social purposes, such as the lining with marble of the tomb of the victim; those which appear to have been modified to show an increase in the amount of expenditure, such as by adding a number to increase the purchase value from tens to hundreds; those expenditures which could not be reasonably itemized or determined to have been incurred in connection with the death, wake or burial of the victim; those which would nonetheless have been incurred despite the death, wake or burial of the victim, the death, wake or burial being merely incidental.[31cräläwvirtualibräry

Consistent with prevailing jurisprudence, the heirs of the deceased are entitled to the amount of P50,000.00 by way of civil indemnity for the death of the victim without need of further proof of damages.[32 With respect to moral damages, care must attend its award in order to avoid any excessive expression of sympathy on the victim lest the real rationale for an award of such damages, essentially one of indemnity or reparation, is inadvertently missed.[33 Accordingly, the award of moral damages made by the trial court of P500,000.00 must be reduced to the more reasonable sum of P50,000.00, an amount that also accords with prevailing jurisprudence. The attendance of treachery in the killing of the victim justifies, consistently with the Courts ruling in People vs. Catubig,[34 the award of P20,000.00 exemplary damages made by the trial court.

Although the prosecution was able to establish that the crime of illegal possession of firearm under Presidential Decree No. 1866 had been committed, Republic Act No. 8294,[35 however, amended that decree, which would now merely consider the use of an unlicensed firearm as an aggravating circumstance in murder or homicide and not as a separate offense.[36 Fortunately for the accused, the use of an unlicensed firearm in the killing of Romeo Astrero, not having been alleged in the accusatory Information for murder, could not be used as an aggravating circumstance as to warrant the imposition of the death penalty against appellant.

WHEREFORE, the Court AFFIRMS the decision of the trial court with MODIFICATION. The Court finds accused Wilfredo Panabang y Busnag guilty beyond reasonable doubt for the murder of Romeo Astrero and sentences him, conformably with Article 248 of the Revised Penal Code, to suffer the penalty of reclusion perpetua. The accused is further ordered to pay to the heirs of the victim the amounts of P50,000.00 death indemnity, P50,000.00 moral damages, P70,248.00 actual damages, and P20,000.00 exemplary damages. Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.


Endnotes:

[1 Rollo, p. 10.

[2 Rollo, p. 11.

[3 Records, p. 169.

[4 Exhibit J, Records, p. 174.

[5 Exhibits I to I-3, Records, p. 173.

[6 Exhibit 1-4, Ibid.

[7 Exhibit H, Records, p.172.

[8 Rollo, pp. 53-54.

[10 People vs. Pulusan, 290 SCRA 353.

[11 TSN, 19 October 1998, pp 4-8.

[12 TSN, 20 October 1998, pp. 3-6.

[13 TSN, 08 October 1998, pp. 16-17.

[14 People vs. Reyes, 287 SCRA 229; People vs. Viovicente, 286 SCRA 1; People vs. Navales, 266 SCRA 569.

[15 People vs. Lozada, 334 SCRA 602.

[16 People vs. Tanzon, 320 SCRA 762.

[17 People vs. Marcelino, 316 SCRA 104; cited in People vs. Jose, 324 SCRA 196.

[18 People vs. Soldao, 243 SCRA 119.

[19 See People vs. Abitona, 240 SCRA 335.

[20 People vs. Gaspar, 318 SCRA 649.

[21 People vs. De Labajan, 317 SCRA 566.

[22 People vs. Santiago, 319 SCRA 644.

[23 People vs. Pandiano, 232 SCRA 619.

[24 People vs. De Vera, 312 SCRA 640.

[25 People vs. Sanchez, 313 SCRA 254.

[26 People vs. Villanueva, 302 SCRA 380; see also Villa Rey Transit, Inc. vs. Court of Appeals, 31 SCRA 511.

[27 Includes transfer fee, expenses for funeral service, funeral mass, construction of tomb, purchase of one burial lot; steel, roofing, grills, and 2 bags of cement.

[28 People vs. Oliano, 287 SCRA 158.

[30 209 SCRA 266.

[31 At p. 274.

[32 People vs. Galladan, 318 SCRA 569; People vs. Espanola, 271 SCRA 689.

[33 See People vs. Lumiwan, 295 SCRA 215.

[34 G.R. No. 137842, 23 August 2001.

[35 An Act Amending the Provisions of Presidential Decree No. 1866, as Amended, Entitled Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunition or Explosives or Instruments Used in the Manufacture of Firearms, Ammunition or Explosives, and Imposing Stiffer Penalties for Certain Violations Thereof, and for Relevant Purposes. The law took effect on 07 July 1997.

[36 People vs. Mendoza, 301 SCRA 66.




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