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SECOND DIVISION
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G.R. No. 106817.
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JULIAN RAPANUT, DIOSDADO RAPANUT, JOHN DOE and PETER DOE, Accused
JULIAN RAPANUT and DIOSDADO RAPANUT, Accused-Appellants.
D E C I S I O N
MENDOZA, J.:
This is an appeal from a decision
1
of the Regional Trial Court, Branch 20, Vigan, Ilocos Sur finding
accused-appellants guilty of murder and sentencing each of them to suffer the
penalty of reclusion perpetua,
to indemnify jointly and severally the heirs of the deceased, Amado Somera, in
the sum of P50,000.00,
and to pay the costs.
Accused-appellants, Pfc. Julian Rapanut and Pat. Diosdado Rapanut, are
members of the Police Force stationed in Sta. Catalina, Ilocos Sur under the
command of the deceased, P/Sgt. Amado Somera.
The prosecution evidence tends to show the following: At around
Not long after the three had left between
On the basis of information given to him, Lt. Henry Thomas, Commanding Officer of the 148th PC Command looked for the accused-appellants. He went to Pat. Diosdado Rapanuts house where he found him sleeping. Diosdado accompanied Lt. Thomas to Julian's house but the latter was not there. The following day, Lt. Thomas was called by then Mayor Porfirio Rapanut (now counsel for the accused-appellants) who took him to certain place where Julian was staying. Apparently, Julian had asked Mayor Porfirio Rapanut to facilitate his surrender to the authorities.
Dr. Elvigio Taay, the one who conducted the autopsy filed this autopsy report 4 :
EXTERNAL FINDINGS:
1. Gunshot wound non penetrating entrance 1 cm in diameter, right side of neck, middle portion 2.5 cm below right ear with area of blackening around the wound of entrance.
NOTE: Slug was palpable and by extracted at the left side of the neck, same level as of entrance.
2. Gunshot wound thru and thru; entrance 1 cm in diameter left side of neck about cm below findings in no. 1 (Gunshot wound of entrance 1, middle portion directed upward. Exit 5 cm in length, occipital region (skull) along the vertibral line.
3. Gunshot wound thru and thru entrance 1 cm in diameter, middle portion of left side of neck about cm medial to gunshot wounds of entrance No. 2 at same level. Exit 1.5 cm. in diameter posterior aspect of neck middle portion.
4. Gunshot wound thru and thru entrance 0.9 cm in diameter, left arm middle third, posterior aspect. Exit 1.5 in diameter, anterior aspect of left arm, same level as wound of entrance.
5. Gunshot thru and thru, entrance 1 cm in diameter at lower border of scapula involving subcutaneous and mascular tissue. Exit- 1.2 cm in diameter at the right axillary region.
6. Gunshot wound thru and thru entrance 1 cm in diameter below the level of the left 12th posterior rib involving subcutenous and mascular tissue. Exit-1.5 cm in diameter about 2 cm above left pelvic bone, anterior aspect.
INTERNAL FINDINGS:
1. Penetrating wound of left sterno-cleidomastoid muscle, left common carotid artery was perforated.
2. Left subclavian artery was massively lacerated.
3. Penetrating wound of trachea penetrating wound of esophagus.
CAUSE OF DEATH: HEMORRHAGE SECONDARY TO GUNSHOT WOUNDS, MULTIPLE.
Julita Tumbaga, Forensic Chemist of the NBI, testified on the paraffin test conducted on the hands of the accused-appellants. She testified that Julian Rapanuts right hand tested positive for nitrates which she said possibly came from gun powder residue, 5 while Diosdado Rapanuts hands tested negative. 6 She added, however, that she could not conclude from this circumstance alone that Diosdado Rapanut did not fire a gun at the time. 7cräläwvirtualibräry
Doroteo Magaro, Officer-in-charge of ballistics of the PC Crime Laboratory of Camp Crame, testified that a ballistic examination conducted on the shells recovered from the scene of the crime and the test shells, as well as the slug recovered from the body of Somera and the test bullets, show that the shells came from the 5.56 M-16 Armalite rifle carried by Julian Rapanut during the incident 8 and from the 38 Cal. revolver, Serial No. 658737, issued to him. Magaro also testified that the test slug and the slug recovered from Someras body were fired from the same .38 Cal revolver of Julian Rapanut. 9 A fragment was recovered but had no significant bore impressions and it could not be determined from what gun it was fired, according to him. 10cräläwvirtualibräry
Maximo Manuel testified that on
Cpl. Reynaldo Gascon testified that when Somera dropped by his
office at around
The defense claimed that Julian Rapanut shot Amado Somera after the latter had drawn his revolver during an altercation, while denying that Diosdado Rapanut ever took part in the killing of Somera.
Testifying on his behalf, Diosdado Rapanut said he was not armed
on P50.00 by his sister. Somera thought that the amount was too small
and wanted Julian to borrow P500.00.
When Julian declined to do so, Somera got angry and started cursing him
("Iyot ni inam"
17
),
and the two had an altercation. Somera
stopped the tricycle, drew his gun with his left hand and pointed it at Julian,
who tapped it aside. Diosdado claims
that he got scared and so he got off the tricycle and ran away. While he was running away he heard gunshots. He allegedly went to Marcelita Alibins house
and told her that Julian and Somera were shooting each other. Marcelitas husband, Jovito Alibin, reported
the matter to the barangay captain.
Accused-appellant Julian Rapanut admitted having shot Somera but claims that he acted in self defense. He corroborates Diosdados claim that the latter was unarmed and ran away when the shooting took place. Julian said that he was the one who carried the .38 Cal revolver in a holster 18 which he claimed got hooked to the armrest of the sidecar as he was stepping out and fell to the ground. This explains why the gun was found on the ground at the side of the sidecar. 19cräläwvirtualibräry
In a decision dated
Hence this appeal based on the following assignment of errors:
I. The trial court erred in finding that the qualifying circumstance of treachery as alleged in the information was sufficiently established.
II. The trial court erred in not acquitting the accused-appellant Diosdado Rapanut despite strong evidence warranting his acquittal.
III. The trial court erred in not finding that accused-appellant Julian Rapanut killed deceased Amado Somera in legitimate and complete self-defense.
IV. The trial court erred in not appreciating the mitigating circumstance of voluntary surrender on the part of the accused-appellants.
First. The evidence
in this case quite clearly shows both accused-appellants to be guilty of
killing Somera on
The evidence for the prosecution belies this claim of the defense. Maximo Manuel, the eyewitness, testified that he saw the two accused-appellants with firearms drawn and pointed at the body of the fallen Somera right after he heard gunshots. His testimony is corroborated by Cpl. Gascon who testified that when Somera and the accused-appellants dropped by his office he saw Diosdado Rapanut with a gun tucked in his waist. It is on the basis of these testimonies that the trial court found Diosdado liable. The rule is settled that the findings of fact of trial courts, which had the opportunity to observe the demeanor of the witnesses, is entitled to great weight in the absence of anything showing bias, partiality or grave abuse of discretion. 21cräläwvirtualibräry
Indeed, the location and the number of the gunshot wounds sustained by the victim indicate that there was more than one gunman and confirm the testimony of Maximo Manuel regarding the positions of the accused-appellants in relation to the deceased. Of the six (6) gunshot wounds suffered by the victim, two were located on the back of Somera and one on the right side of his neck. The location of these wounds belies the claim of accused-appellant Julian Rapanut that he alone had shot Somera and that he did so while he was standing in front of him. It was highly improbable for Julian to have caused those wounds unless he went around his victim as he riddled him with bullets.
More importantly, the ballistics examination also shows that the shells found in the vicinity came from the 5.56 M-16 Armalite rifle as well as from the .38 Cal. revolver. The slug recovered from the body of Somera also matched the test slug of the same .38 Cal. revolver. It is clear that both the M-16 Armalite rifle and the .38 Cal. revolver were used in shooting Somera. If, as Julian Rapanut said, he only used the M-16 Armalite rifle, it stands to reason that another person must have used the revolver in shooting the victim.
The evidence shows that while this .38 Cal. revolver had been issued to Julian Rapanut, on the night in question Diosdado Rapanut was seen with a gun tucked in his waist band. The probability therefore is that the gun he had that night was Julians gun and that the latter gave his gun to Diosdado because Julian was already carrying an M-16 Armalite rifle, while Diosdado, whose own gun had been surrendered for the period of his suspension, had none. In fact, accused-appellants have not explained who could have fired the .38 Cal. revolver if according to Julian Rapanuts testimony, he only fired the M-16 Armalite rifle 22 as his .38 Cal. revolver allegedly fell from his holster while he was getting off from the sidecar. 23 These circumstances persuade us that Diosdado Rapanut was the one who used the .38 Cal. to shoot Somera. It is true that the paraffin test showed that Diosdado Rapanuts hands were negative for nitrates, but the NBI forensic chemist said that she could not tell from this circumstance alone that Diosdado Rapanut did not fire a gun.
On the other hand, Julian Rapanut admitted shooting Somera. He claims, however, that he acted in self defense. Having made this admission, the burden rests upon him to prove, by clear and convincing evidence, the existence of the essential requisites of self-defense. For this purpose, he must rely on the strength of his own evidence and not on the weakness of that of the prosecution. 24cräläwvirtualibräry
More specifically, he must prove (1) unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of the person defending himself. Foremost of these is the requisite that the victim was guilty of unlawful aggression; the absence of this requisite negates the existence of self-defense. 25 It must be positively shown that there was a previous unlawful and unprovoked attack on the person of the defendant which placed him in danger, forcing him to repel the attack and to inflict more or less severe wounds upon his assailants by employing reasonable means to resist the same. 26 Put in another way, unlawful aggression connotes a sudden unprovoked attack against the person defending himself. There must be a real threat to the life, safety or rights of the person attacked and the peril must be imminent or actual. There must be an actual, sudden and unexpected attack or imminent danger thereof and not merely a threatening or intimidating attitude. 27cräläwvirtualibräry
The testimony of Diosdado Rapanut fails to show that there was unlawful aggression in this case or that even if there was, it did not cease to exist before Julian Rapanut shot Somera. Diosdado Rapanut said:
Q And after the late Amado Somera had stopped the tricycle in that particular place, what transpired next, if any?
A The late Amado Somera was in the act of drawing his gun.
Q When the late Amado Somera was in the act of pulling out his firearm, what did this Julian Rapanut do?
A He tapped the gun of Amado Somera and it was dropped and Julian Rapanut went down from the tricycle. [28cräläwvirtualibräry
. . . .
Q Now, you knew that Amado Somera drew his gun because you were still behind Amado Somera?
A Yes, sir.
Q And you knew that Julian Rapanut tapped the gun because you were still behind Amado Somera and Julian Rapanut was still inside the sidecar?
A Yes, sir.
Q You did not try to stop Julian Rapanut?
A No, sir.
Q You did not try to stop Amado Somera?
A No, sir.
Q Now, when Julian Rapanut stepped down the tricycle you did not stop Amado Somera.
A No, sir.
Q When Julian Rapanut stepped down the tricycle you were still behind Amado Somera?
A I also alighted from the motorcycle, sir.
Q When the service pistol of Amado Somera was tapped by Julian Rapanut are you sure that it fell down?
A Yes, sir.
Q When you saw it drop you were still behind Amado Somera?
A Yes, sir. 29cräläwvirtualibräry
. . . .
Q Now, when you said that Julian Rapanut was inside the sidecar, he was to the right of the late Amado Somera
A Yes, sir.
Q And you are very sure that the late Amado Somera drew his gun with his left hand?
A Yes, sir.
Q How far was Julian Rapanut to Amado Somera when Amado Somera drew the firearm?
A Like this, sir. (Witness pointing to the chair of the Interpreter, and witness stands indicating a distance of around half foot).
Q In other words, the distance now as you estimated, which is your distance from Mr. Colcol, was the same distance between Amado Somera and Julian Rapanut?
A Yes, sir.
Q Will you please tap the left hand of Mr. Colcol?
A (Witness tapped the hand of the interpreter).
Q Thats how Julian Rapanut tapped it?
A Yes, sir.
Q Now, where did the gun fall?
A I dont know, sir, where the gun fell. But I am sure that the gun fell. [30cräläwvirtualibräry
Julian Rapanut lost no time trying to overcome this damaging testimony of his coaccused and tried to explain it away by saying that Someras gun fell only after he had been shot. 31 But between his claim and the testimony of Diosdado Rapanut, the latter appears to be more reliable. In the first place, if Somera dropped his gun because he had been shot, it has not been explained why he had to be shot five (5) more times when there was no longer any danger that he would be able to fire his gun. In the second place, if he dropped his gun only after he had been shot six (6) times, it has not been explained why he was not able to fire his gun at all. If accused-appellant Julian Rapanut is to be believed Amado Somera had drawn his gun first. As Julian testified:
Q Why did he stop the tricycle?
A Because we were already quarrelling with each other and then I tapped his gun because he wanted to shoot me and then I jumped out from the tricycle, I first shot him because I dont want him that he first shot me. [32cräläwvirtualibräry
But if Somera had drawn his gun first, how could Julian Rapanut have gotten out of the sidecar and fire his M-16 Armalilte rifle without being shot? Moreover, the claim of self-defense is further negated by the location and number of the wounds suffered by the victim. If Julian Rapanuts aim was to simply repel the aggression, one shot to disable him without killing him would have been sufficient.
Second. We think, however, that the trial court erred in finding that the killing of Amado Somera was attended by treachery. Nobody witnessed the commencement of the attack. The prosecution witness Maximo Manuel said he saw the accused-appellant after the shooting. It was precisely because of the gun reports which he heard which attracted his attention. Circumstances which qualify criminal responsibility cannot rest on mere conjecture, no matter how reasonable or probable but must be based on facts of unquestionable existence. The rule is that such circumstance must be proved as indubitably as the crime itself. 33 Therefore, as in this case, where the lone eyewitness did not see how the attack was carried out and he can not testify on how it began, the trial court cannot merely surmise from the circumstances of the case that treachery attended the commission of the crime. 34cräläwvirtualibräry
Third. Lastly, we agree with accused-appellants that the mitigating circumstance of voluntary surrender should be considered in their favor. It has been held that this mitigating circumstance may properly be appreciated if the following requisites concur: (1) the offender was not actually arrested; (2) he surrendered himself to a person in authority or to an agent of a person in authority; and (3) his surrender was voluntary. 35 As already noted, Diosdado Rapanut voluntarily went with Lt. Henry Thomas when the latter went to his house and asked him to go with him, 36 while Julian Rapanut asked then Mayor Porfirio Rapanut to facilitate his surrender and eventually went with Lt. Henry Thomas when the Mayor brought the latter to where he was staying. All these had taken place before warrants for their arrest were issued. Accused-appellants are, therefore, entitled to the mitigating circumstance of voluntary surrender for what is required is that the offender voluntarily surrender himself to a person in authority or his agents before his actual apprehension. 37chanroblesvirtuallawlibrary
WHEREFORE, the decision of the Regional Trial Court is SET
ASIDE and another one is ENTERED, finding accused-appellants Diosdado Rapanut
and Julian Rapanut guilty of homicide with the mitigating circumstance of
voluntary surrender and no aggravating circumstance and sentencing each of the
accused-appellants to suffer an indeterminate penalty of 12 years of prision
mayor, as minimum, to 14 years and 8 months of reclusion temporal,
as maximum, to indemnify jointly and severally the heirs of the deceased Amado
Somera in the sum of P50,000.00 and to pay the cost.
SO ORDERED.
Regalado (Chairman), Romero, Puno, and Torres, Jr., JJ, concur.
Endnotes:
1 Presided over by Judge Florencio A. Ruiz, Jr.
2 Sworn Statement of Paul Ramirez, Records, p. 4.
3 Sketch, Records, pp. 9-10.
4 Exh. "A," Records, p. 1.
5 TSN, pp. 29-30, Sept. 9, 1981.
6 TSN, p. 11, Dec. 3, 1981.
7 Ibid.
8 TSN, pp. 69-71, Sept. 9, 1981.
9 TSN, p. 14, Oct. 28, 1981.
10 TSN, p. 16, Oct. 29, 1981.
11 Direct examination of Maximo Manuel, TSN, pp. 10-18. Aug. 11, 1981.
12 Id., pp. 19; 29-31.
13 TSN, pp. 1-2, Feb. 18, 1982.
14 TSN, p. 25, Aug. 11, 1981.
15 Id., pp. 37-38.
16 Direct examination of Cpl. Reynaldo Gascon, TSN, March 23, 1983; TSN, April 27, 1983.
17 The first word refers to the actual sexual act and the rest refer to mother. Combined the term would be more derogatory than the Tagalog expression "Putang-ina mo."
18 TSN, p. 8, April 18, 1989.
19 TSN, p. 6, June 19, 1989.
20 Testimony of Segundino Pagada, Jr., TSN, Feb. 5, 1991.
21 People v. Magaluna, 205 SCRA 266 (1992); People v. Quilaton, 205 SCRA 279 (1992).
22 TSN, p. 15, July 7, 1989.
23 Id., p. 16.
24 People v. Boniao, 217 SCRA 653 (1993).
25 Ibid., People v. Galit, 230 SCRA 487 (1994).
26 People v. Gemetiza, 230 SCRA 146, 151 (1994).
27 People v. Galit, supra.; People v. Boniao, supra.
28 Direct examination of Diosdado Rapanut, TSN, p. 13, Feb. 21, 1985. (Emphasis added).
29 Cross examination of Diosdado Rapanut, TSN p. 6, July 6, 1987 (Emphasis added).
30 Cross examination of Diosdado Rapanut, TSN, pp. 6-7, Oct. 27, 1987. (Emphasis added).
31 TSN, pp. 13-14, 21-23, Feb. 7, 1989.
32 TSN, p. 9, April 18, 1989.
33 People v. Genobia, 234 SCRA 699, 709 (1994).
34 People v. Apa-ap, Jr., 235 SCRA 468, 475 (1994); People v. Manuel, 234 SCRA 532, 544 (1994); People v. Lug-aw, 229 SCRA 308 (1994); People v. Cordero, 217 SCRA 1 (1993).
35 People v. Decena, 235 SCRA 67, 79 (1994); People v. Amaguin, 229 SCRA 166, 177 (1994).
36 People v. Alba, G.R. No. 107715, April 25, 1996.