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THIRD DIVISION

G. R. No. 136741. July 17, 2003]

People of the Philippines, Plaintiff-Appellee, vs. VICTOR AORA y BACALLA, Accused-Appellant.

D E C I S I O N

CARPIO-MORALES, J.:

On appeal is the August 31, 1998 Decision1 of the Regional Trial Court (RTC) of Cebu City, Branch 12, in Criminal Case No. CBU-20016 finding Victor Aora y Bacalla (appellant) guilty of murder for fatally shooting Fernando Lim (the victim).

On July 22, 1990, the victim was shot and died as a result of two gunshot wounds located at his chest and right arm.2cräläwvirtualibräry

Three days after the incident or on July 25, 1990, Pablo Rico, Jr. and Jonas Niala executed a joint affidavit3 recounting that at the time and date of the incident, they heard a single burst of fire and, on verification, they saw two persons one of whom was about to stumble down to the ground and the other person was still standing and holding a firearm of an unknown caliber then a moments (sic) later he tucked his firearm to his [waist]; that the man who tucked a firearm to his waist walked hurriedly towards them (Rico and Niala) and they positively identified himself (sic) and [they] came to know his name as Victor Aora; and that the person lying down was Fernando Lim.

Also on July 25, 1990, the victims father Atilano Lim, Jr. executed an affidavit4 stating that his son was shot to death by his assailant whom I know now as Victor Aora.

A preliminary investigation of the case was conducted by the Cebu City Prosecutors Office, but the subpoena addressed to the suspect Victor Aora of Magsaysay Street, Pasil, Cebu City, who was directed to file a counter-affidavit, was not served as he could not allegedly be located at his given address. Hence, in accordance with its Resolution5 of September 6, 1990, upon a finding of probable cause against Victor Aora, the Prosecutors Office filed an Information6 for Murder at the RTC of Cebu on October 30, 1990, allegedly committed as follows:

That on or about the 22nd day of July, 1990, at about 3:20 A.M., in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a gun, with deliberate intent, with intent to kill and with treachery and evident premeditation, did then and there attack, assault and sho[o]t one Fernando Lim with the use of a gun hitting the latter upon vital parts of his body and inflicting upon him the following physical injuries:

GUNSHOT WOUNDS OF THE CHEST (L) AND (R) ARM

and as a consequence of said injuries Fernando Lim died a few minutes later.

Contrary to law.7cräläwvirtualibräry

A warrant8 was issued on November 8, 1990 for the arrest of Victor Aora of Magsaysay Street, Pasil, Cebu City which warrant of arrest could not be served, he having allegedly ceased to reside thereat.

More than nine months and three years after the shooting or on May 14, 1994,9 appellant was arrested and was identified by Rico at the police station as the man he saw tucking a gun into his waist.10cräläwvirtualibräry

On arraignment on June 22, 1994, appellant entered a plea of not guilty.11cräläwvirtualibräry

The prosecution presented Rico, Jr. who finished second year college as a criminology student, from whose testimony the following is gathered: On July 22, 1994, at 3:20 a.m., while he and his companion Niala were buying barbeque for snacks at the corner of Junquera and Sanciangco streets, Cebu City, some eight armslength from the Alliance chapel along Junquera street, they heard what sounded to be a gunburst. After the lapse of about five minutes, he and Niala, on repairing to where they heard the gunburst came from, saw two persons in front of the chapel. He saw one of the persons fall down, whom he recognized as his neighbor, Fernando Lim, while the other one, whom he identified as the appellant, tucked a firearm into his waist, walked towards the direction of the south, the same direction where he (Rico) and Niala came from, and boarded a taxicab.12cräläwvirtualibräry

Rico added that prior to the incident, he heard that appellant and the victim who is a drug pusher had an argument because the latter was asked (by appellant) to buy shabu but he pocketed the money13 for the purpose.

Ricos co-affiant Niala who was subpoenaed as a witness, on motion of the prosecution, failed to show up. Despite the issuance of a bench warrant against Niala, the prosecution failed to get him to testify.

Denying the accusation and proffering alibi, appellant claimed that on July 22, 1990, at about 3:20 a. m., he was busy unloading fish at the Pasil Fish Market, Cebu City.14 He was corroborated by Roberto Tesoro, a neighbor and head of the laborers of fish vendors in Pasil who testified that appellant was one of the 14 men who worked under his supervision, and that on the day of the incident, appellant was helping unload fish at the Pasil Fish Market from 2:00 a.m. to 10:00 a.m. the next morning.15cräläwvirtualibräry

The defense suggested that the killing of the victim was committed by appellants uncle and namesake, Victor Aora y Cempron, who has a string of criminal cases against him.

Finding that the defense of alibi cannot prevail over the positive identification of the accused as the person Rico saw in front of the Alliance Chapel tucking his firearm into his waist and then boarding a taxi going to the southern direction, the trial court convicted appellant of murder by Decision16 of August 31, 1998, the dispositive portion of which reads:

WHEREFORE, and in view of the foregoing consideration, judgment is hereby rendered finding the accused in the above-entitled case guilty beyond reasonable doubt of the crime of Murder as the same is defined and penalized under the Revised Penal Code sentencing the accused to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased, Fernando Lim, Jr. in the amount of P50,000.00 and to pay the costs.

SO ORDERED.17cräläwvirtualibräry

Hence, the present appeal which ascribes the following errors to the trial court:

I

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT

II

THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE INCREDIBLE TESTIMONY OF THE PROSECUTIONS ALLEGED EYEWITNESS PABLO RICO, JR.

III

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED FOR THE CRIME OF MURDER DESPITE FAILURE OF THE PROSECUTION TO PROVE THE ATTENDANT QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION (Underscoring supplied)

This Court finds that a reversal of the decision on review is in order.

Since Rico claimed at the witness stand that he and Niala were only about 8 armslength away from the chapel and they immediately, after hearing the gunburst, walked towards where it came from,18 it is incredible why it took them five minutes, after taking merely 10 steps, to reach the spot where appellant and the victim allegedly were.

But even assuming that it was only after five minutes that Rico and Niala repaired to where appellant and the victim were, it is improbable that within said span of time, the assailant would still be tucking his gun into his waist and not leave the locus criminis right away, given the fact that there were many houses at the back of the chapel,19 the curiosity of the occupants of which would likely be aroused.

It bears noting that by Ricos claim, soon after the shooting and after he informed the victims father about it, the latter arrived as did the policemen who picked him up and Niala. Yet it was only after three days that Rico and Niala executed a joint affidavit relating what they claimed to have seen after hearing a single burst of fire. Just as it bears noting that in said affidavit, Rico and Niala heard only a single burst of fire despite the fact that the medico legal found wounds in the victim which were the result of two gunshots; and that in the same affidavit, Rico and Niala declared that they came to know the name of the man who tucked a gun into his waist as Victor Aora, but four and a half years later, when Rico took the witness stand on January 27, 1995, he claimed that prior to the date of the incident, July 22, 1990, he had known and had twice seen appellant because he (Rico) frequented to (sic) their house because he is a friend of my lady friend.20cräläwvirtualibräry

In fine, the alleged facts and circumstances testified on by Rico, if not inconsistent with the joint affidavit he and Niala executed, are improbable, not being in consonance to reason and the common experience, knowledge and observation of ordinary men. They are, therefore, unworthy of credence.

Ricos testimony having been discredited, this Court appreciates no other evidence to incriminate appellant for the fatal shooting of the victim.

It is a settled doctrine that the prosecution must rely on the strength of its evidence and not on the weakness of that of the defense. Since in the case at bar the evidence for the prosecution is weak and betrays lack of concreteness, appellants alibi assumes importance.

WHEREFORE, the judgment of the trial court is REVERSED and the appellant VICTOR AORA y bacalla, is hereby ACQUITTED for failure to prove his guilt beyond reasonable doubt. His IMMEDIATE RELEASE from prison is hereby ORDERED, unless he is otherwise detained for any other lawful or valid cause.

SO ORDERED.

Puno, (Chairman), Panganiban, Sandoval-Gutierrez, and Corona, JJ., concur.



Endnotes:

1 Rollo, pp. 18-22.

2 Exh. A, Certificate of Death, Records p. 7.

3 Rollo, p. 6.

4 Id., p. 5.

5 Id., pp. 3-4.

6 Id., pp. 1-2.

7 Information, Rollo, pp. 1-2.

8 Id., p. 10.

9 Exhibit "D-1", Id., p. 15.

10 TSN, January 27, 1995, p. 4.

11 Id., pp. 20-21.

12 TSN, January 27, 1995, pp. 2-3, 6-9.

13 Id., p. 8.

14 TSN, July 20, 1995, p. 3-4.

15 TSN, April 7, 1995, pp. 2-8.

16 Rollo, pp. 18-22.

17 Id., p. 21-22

18 TSN, January 27, 1995, p. 6.

19 Id., p. 7.

20 TSN January 27, 1995, p. 5.




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