362 Phil. 427
PUNO, J.:
"WHEREFORE, in view of all the foregoing consideration, this Honorable Court finds the accused, ROGELIO TAVAS alias 'BOTOG', GUILTY beyond reasonable doubt of the crime of MURDER contrary to Article 248 of the Revised Penal Code. The accused is hereby sentenced to suffer the penalty of Reclusion Perpetua and indemnify the heirs of the victim for damages in the amount of P50,000.00 for the death of the victim; actual damages and expenses in the amount of P11,000.00 and to pay the cost of the proceedings.The Information for Murder against the accused reads:
"SO ORDERED."[2]
"x x xThe accused was tried after a plea of not guilty.
"That on or about the 4th day of June 1988, in the Municipality of Rosario, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then armed with an Armalite rifle, with intent to kill and with Treachery, did then and there wilfully, unlawfully and feloniously attack, assault and use personal violence by means of shooting with the said Armalite rifle one ANTONIO DE LA CRUZ Y PANGANIBAN, and as a result of which the said victim suffered fatal gun shot wounds which directly caused his death soon thereafter, to the damage and prejudice of the heirs of the said Antonio de la Cruz y Panganiban.
"Contrary to Article 248 of the Revised Penal Code."[3]
"Q - Please state your name, age and other personal circumstances?Since the victim could no longer write, Pfc. Santiago dipped the victim's right thumb in his own blood and affixed his thumb mark above his written name. Florentino Dulay and Rodolfo Ninalga witnessed the taking of the sworn statement and signed the same.[8]
"A - ANTONIO DE LA CRUZ Y PANGANIBAN, 22 years old, single and a resident of Inabaan Sur, Rosario, La Union.
"Q - What happened to you?
"A - I was shot, sir, with a gun.
"Q - Who shot you?
"A - Botog Tavas, sir.
"Q - What kind of firearm did Botog Tavas use in shooting you?
"A - Armalite rifle, sir.
"Q - Why did Botog Tavas shot (sic) you with a firearm?
"A - I do not know any reason, sir.
"Q - What did (sic) you feel now?
"A - I am very weak, sir."[7]
"The lower court erred in finding the accused guilty of murder by appreciating treachery as a qualifying circumstance."The appeal is partly meritorious.
"x x xThe foregoing testimony shows that the victim was not facing the accused-appellant when he was shot.
"Q There are three findings in this Medico Legal Certificate. The first finding - 'Acute hypovolemic shock'. In layman's language, will you explain the meaning?
"A There is a decrease in the circulation of blood volume causing decreased cardiac output and decreased tissue perfusion due to secondary loss of blood.
"COURT:
"Q What was the cause?
"A Secondary to multiple fracture of the iliac crest, left side; the pubis, left side; the ischium, left side; lumbar vertebra; and laceration of muscles.
"Q You just quoted the third finding. In plain layman's language, will you please explain the meaning of these findings of yours and use your body to show the location?
"A There is a broken bone at the iliac, in the pubis upper left hip.
"Q About the pubis, left, the lumbar vertebra and ischium, left?
"A Part of the pubis. (Witness pointing to the lower part of the hip.)
"Q What was the cause of the broken bone?
"A The force of the bullet.
"Q What was your second finding -- `gunshot wound' poentry - waist above and posterior to superior iliac crest, left?
"A Lacerated wound. When we opened the wound, the muscles were severely lacerated with continuous oozing of blood.
"Q What was the cause of the lacerated wound?
"A The bullet.
"Q How many did you find - gunshot wound?
"A One wound at the posterior about 6 to 7 centimeters.
"Q The entry point of the bullet?
"A Yes, sir.
"PROSECUTOR HIPOL:
"Q You just mentioned a gunshot wound on the second finding. We have the following entry: 'Gunshot wound; poentry - waist above and posterior to superior iliac crest, left.' Was this the one you have just explained?
"A Yes, sir.
"Q It would appear that there is no point of exit?
"A What we found was fragment of bullets. I did not see any point of exit.
"Q Did you ever recover?
"A Yes, sir. Small fragments.
"Q Where?
"A It is entrusted to the operating room nurse.
"COURT:
"Q Were those fragments submitted to the police?
"A No, sir.
"FISCAL:
"Q Doctor, using your body, will you please show the point of entry?
"A Back of his hip.
"Q About how many fragments were found from the body?
"A I cannot recall because they are so small."[13] (Emphasis supplied)
"The Honorable Court is not convinced that there was unlawful aggression on the part of the victim. The alleged robbery appears to have not been committed at all. When the sister of the accused, Beatriz Colcol, testified as to the commission of the robbery, the Honorable Court noticed that she was very nervous and was fidgeting on her seat. She stuttered and stammered in giving her answers. There were many instances when she gave long pauses before answering a question. Sometimes she does (sic) not give an answer at all. Beatriz Colcol appears not to have personal knowledge of the circumstances of the alleged robbery which leads this Court to conclude that the whole case of robbery was (sic) but a part of the defense concocted and prepared to justify the shooting of the victim. The Court could only conclude after observing the demeanor of the witness Betty Colcol that there was no such robbery at all.However, we find that the trial court misappreciated treachery against the accused-appellant. It is well settled that the circumstances that qualify the killing as murder must be proven as indubitably as the killing itself. Treachery, the qualifying circumstance alleged in the Information, cannot be deduced from mere presumption or sheer speculation.[15] Article 14 (16) of the Revised Penal Code provides that there is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in the execution thereof which tend directly and specifically to insure its execution without risk to himself arising from the defense which the offended party might make. Two conditions must concur: (1) the means, method and form of execution employed gave the person attacked no opportunity to defend himself or retaliate; and (2) such means, method and form of execution was deliberately and consciously adopted by the accused.[16] Its essence lies in the adoption of ways to minimize or neutralize any resistance which may be put up by the offended party.[17]
"Robbery was far fetch (sic) to happen at such an hour of the evening. The robbery allegedly took place in the store of Betty Colcol which is located under the house of the father of Betty. The time is (sic) still early. There were other stores and houses nearby and the people are (sic) still awake. Furthermore, there is no evidence that only Betty was in the house at the time of the alleged robbery. What is logical is that at that hour, the people living in the house where the store was located are (sic) already at home. In fact, Adelaida F. Dulay, arrived at the house of the accused, there were many in the house such as Rodolfo Colcol, Roman Tavas, Arturo Tavas and others whose names she could not recall. It is against logic and reason that a man would attempt a holdup under such condition.
"The Honorable Court is convinced that there was no robbery or hold-up. If indeed there was one, the first thing which the accused or his family should have done was to report the alleged hold-up, at least to the barangay officials and later to the police. If it was true that there was a robbery, it would appear that the accused was able to apprehend the holdupper when he fired on the victim. Had he reported the incident to the barangay officials who lived nearby then they could have recovered the alleged bolo used by the victim to allegedly holdup Betty Colcol. They could have also recovered the alleged P2,000.00 in bills and P25.00 in coins from the pocket of the alleged holdupper because Betty Colcol testified that the holdupper pocketed the money after scooping it. Thus, aside from proving that there was a hold-up, then the accused would have been hailed by all as a hero who single-handedly prevented a holdup to happen as well as single-handedly subdued and then captured the holdupper.
"But what did the accused and his family do? Instead of apprehending the alleged holdupper, they did not report the alleged holdup to the police. When the sister of the victim, Adorada Dulay, arrived the accused and his father and uncle were blaming the accused and calling him a trespasser and a robber. They should have arrested or apprehended the victim/holdupper right then and there and brought him to the hospital to be dealt with later by the authorities. Had they done so, they could have shown the bolo right away as well as the money in the pocket of the victim.
"But they did not do this because the truth of the matter was there was no robbery. Thus if there was no robbery, there was no bolo and there was no money. There was no robbery because they have not yet consulted their lawyer and come up with the defense of an alleged robbery. The accused instead surfaced only after his defense was agreed upon and he and his lawyer and a certain Major Tavas surrendered a bolo claiming the bolo was the one used by the victim in the hold-up and in the trying to hack the accused. But the Court is not convinced at all. There is no proof that the bolo belong to the victim. The bolo was surrendered three months after the incident and after they have thought of the defense of self-defense. No amount of persuasion can now convince the court that the bolo is the bolo used by the victim. The bolo is part of the tale concocted for the defense of the accused.
"If there was such a robbery why was it not reported to the police when the policemen went to the house of the accused to investigate the shooting? The alleged hold-up was not entered in the police blotter. If there was a robbery and it was reported to the police, then the police could have found the alleged bolo which would have dropped on the floor when the alleged holdupper was shot. So also, the police could have recovered the P2,000.00 bills inside the pocket of the victim who allegedly robbed Betty Colcol. The police could have recovered the P25.00 in coins from the pocket of the victim or scattered and strewn on the floor if still in the hands of the victim, when he was shot."[14]