G.R. No. L-24780




Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-24780 June 29, 1981 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAYMUNDO ARAJA and RODING ARAJA, defendants-appellants. MELENCIO-HERRERA, J.: This is an appeal from the Decision of the Court of First Instance of Batangas, Eighth Judicial District, in Criminal Case No. 1904, convicting the brothers, RAYMUNDO Araja and RODING Araja, of Murder, qualified by treachery, and sentencing each one to suffer reclusion perpetua, to indemnify the heirs of the deceased Apolonio Aquino, jointly and severally, in the sum of P6,000.00, each to pay one-half of the costs, and to suffer all the accessories of the law. The Information, dated December 17, 1962, charged the two above accused as follows: That on or about the 29th day of November, 1962 in the Barrio of San Gabriel, Municipality of Talisay, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with firearms, conspiring and confederating together, acting in common accord and mutually aiding each other, with deliberate intent to kill Apolonio Aquino by means of treachery and with evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and fire shots several times at the said Apolonio Aquino with the said firearms, thereby inflicting upon him several gunshot wounds in the different parts of his body which caused his death; that the crime was committed with the aggravating circumstances of abuse of superior strength, use of unlicensed firearms and nocturnity deliberately sought. Apolonio Aquino (the deceased, for short), 20, single, was a resident of Barrio Payapa, Lemery, Batangas. His friend, Epifanio Umali, 22, single, farmer, was a resident of the same barrio. The latter, as principal prosecution witness, testified that in the afternoon of November 29, 1962, he and the deceased boarded the last trip of the BTCo. bus from Barrio Payapa, bound for Barrio San Gabriel, Talisay, Batangas. Upon arriving at their destination at 6:00 P.M., they proceeded to the house of the deceased's friend (whose name he did not know) where they ate supper and stayed for an hour. Five friends of the deceased from Barrio San Gabriel were already there. At 8:00 P.M., accompanied by those friends, they proceeded to the house of Purok Araja, father of the accused brothers, to serenade Purok's niece and the accused's first degree cousin, Gregoria Bathan, also from Barrio Payapa, whom the deceased was courting. According to the deceased's father, Catalino Aquino, Gregoria's parents did not approve of that courtship but were in favor of another man, Jovito Gamboa — And it was because of this that Gregoria was taken to Barrio San Gabriel by her parents in order to keep her away from the deceased. Continuing with Epifanio Umali's narration, he stated that at 10:00 P.M., on their way home after the serenade, he and the deceased stood by with their group along the road in front of a store owned by Leodegario Bait where one of their companions bought cigarettes for all of them. When the deceased about to light his cigarette, they suddenly heard shouts "patay kayo ngayon". The deceased beamed his flashlight towards the place where the voices came from. Thereby, Epifanio saw both accused holding firearms and simultaneously fire shots at the deceased. The latter was hit, fell with his face down sumobasob na) and cried "aray!" Frightened, Epifanio ran away towards Barrio Tamayo and walked home to Barrio Payapa. Informed by one Baldomero Malabanan of the shooting incident, PC soldier Victoriano Antazo proceeded to the scene of the crime where he and some companions found the deceased lying near the road, with gunshot wounds, in grave condition. He recorded his investigation of the deceased as follows: Tanong: Ano ang iyong pangalan? Sagot: Apolonio Aquino Taga saan ha? Payapa, Lemery, Batangas, po. Sino ang bumaril sa iyo? Ang anak ng Purok, po, na taga San Gabriel, Talisay, Batangas, po. Bakit ka binaril? Bagay po sa babae, na taga Payapa rin. Tanong: Ano ang ibinaril sa iyo? Sagot: carbine at garand po. (Sgd.) APOLONIO AQUINO Witnesses: (SGD.) PORFIRIO AUSTRIA (SGD.) PEDRO MALABANAN Ante Mortem Statement, taken by Pfc. Victoriano Antazo, 122 PC Co. Bayuyungan Detachment, at exactly 2430 hrs. 30 November 1962. Thereafter, they hired a BLTBCo. bus to take the deceased to the Batangas Provincial Hospital, passing via the Payapa Lemery route. They stopped at Barrio Payapa to fetch the deceased's father, who thereupon boarded the bus. PC soldier Antazo heard father and deceased murmuring words. The deceased died, however, before reaching the hospital, specifically at Buan, Batangas.1 Catalino Aquino, the deceased's father, also a farmer, corroborated Epifanio's testimony regarding his son's departure from their barrio, accompanied by Epifanio, for the purpose of serenading Gregoria Bathan. He added that at about midnight he was awakened and informed that his son had been wounded. He boarded the parked BTCo. bus and asked his son who had shot him and why. The latter replied, "Raymundo Araja and Roding Araja, " and that he was going to die because of those wounds. He then comforted his son by telling him that they were taking him to the hospital, but his son expired en route thereto. 2 An ocular inspection of the crime scene was conducted the following day by PC Sgt. Michael Anduque He found a flashlight and five empty shells near the place of the incident and caused them to be turned over to the Office of the Provincial Fiscal, Batangas, Batangas, on December 18, 1962. He also declared that the front of the store where the slaying occurred is approximately 500 to 700 yards from the house of Purok Araja, and about 400 to 600 yards from that of the accused Raymundo Araja. He investigated Porfirio Austria, who was in the deceased's group, and Gregoria Bathan herself, which investigations were reduced to writing. 3 Neither declarant, however, was presented as a witness. On December 27, 1962, the deceased's body was exhumed and upon examination by Dr. Ceferino Cunanan, NBI medicolegal officer, he found a gunshot wound on the "lumbar region, right, posterior aspect", thru and thru, exiting at the "right hypochondriac region". 4 According to him, the muzzle of the gun must have been behind the deceased for this wound to have been caused. The second gunshot wound, also thru and thru, was on the right wrist antero-lateral aspect, which fractured comminutedly that area, and exited in the dorso-lateral aspect. 5 Dr. Cunanan stated that this wound could have been caused while the deceased was facing the assailant. He also found the deceased's "heart with blood clots meaning that the latter could have lived for sometime before he died, the duration depending upon the degree of hemorrhage, which could be an hour or more, as his wounds could not have caused instantaneous death. 6 In exculpation, appellants both advanced the defense of alibi. They denied any participation whatsoever in the commission of the crime and claimed to have been at their respective homes when the shooting occurred. Elaborating, RAYMUNDO Araja, 23, married, farmer and resident of Bo. San Gabriel, declared that at 8:00 P.M. of November 29, 1962, while at his house, Baldomero Malabanan (his father-in- law) came with somebody from Barrio Payapa, asking him (RAYMUNDO) to accompany them to borrow a guitar as the group wanted to serenade. They were eight serenaders, to wit, Baldomero Malabanan, Porting, Peddy, Amador, Meddy, Pedring and two others from Barrio Payapa whom he did not know. RAYMUNDO borrowed the guitar from his father's house, where he saw his brother RODING. The group then serenaded Gregoria Bathan, his first cousin from Barrio Payapa, who was vacationing at his father's house. After the serenade, Peddy, one of the group invited him to go with them, which he did, leaving RODING behind. The group proceeded to Barrio Alas-as but he separated from them at the junction of the road, and went home. While resting, he heard shots. He peeped through their window, and saw Gorio, the store owner, trying to light the front of his store. He approached the store and inquired from Gorio what had happened. Because Meddy, his brother-in-law was with the group, he and Porting (who hid near the store) went to look for Meddy who might have been hurt. They found Meddy in his house, unhurt. As instructed by the Deputy Barrio Lieutenant, they continued their search for whomsoever was hit and found somebody sprawled by the road. The following day, November 30,1962, he and RODING were fetched by the PC soldiers who brought them to Macaoy Lipa City, thence to Camp Crame for investigation. On December 2, 1962, they were allowed to go home. But one month later, they were arrested. 7 For his part, RODING, Araja, 33, married, farmer, and also a resident of Barrio San Gabriel, testified that before the serenaders arrived, he was already in the house of his father and remained there until they left. Another group of serenaders came and it was during this second serenade that he heard shots after which the serenaders sang a farewell song and left. He then went home to sleep. The next morning, November 30, 1962, his father arrived and told him that Apolonio Aquino (the deceased), one of the serenaders from Barrio Payapa, met with an accident. At 10:00 A.M. of the same day, the PC soldiers took him and RAYMUNDO to Maraoy and on December 1, 1962, to Camp Crame where something was applied to their hands. Later, they were allowed to go home. 8 The defense likewise presented PC Major Jose C. Fernandez, Chief, Chemistry and Questioned Documents Branch of the PC Laboratory, Camp Crame. He declared that upon the request of Captain Eufronio Alip, Jr., the Commanding Officer of the 122nd PC Co., Camp Malvar, Lipa City, he examined the hands of RAYMUNDO and RODING Araja at 11:00 A.M. of December 1, 1962, for presence of gun powder residue, by using the dephonylemine or ballistic test. His findings were negative. He declared, however, that he could not conclude therefrom whether the two suspects fired a gun or not because of such factors as: the length of a firearm like a carbine or garand rifle, which if fired once or twice will seldom give positive results because of the distance of the chamber of the gun from the dorsal side of the hand of the firer; the washing of the hands with gasoline before examination; perspiration of the firer's hand, which can wash off gun powder residue; the use of gloves; and even the velocity of the wind in relation to the direction of the line of fire.9 Luis Genil, a neighbor and brother-in-law of RAYMUNDO corroborated the latter's alibi. He recalled that at 9 o'clock in the evening of November 29, 1962, he went to the house of RAYMUNDO but instead found there the brothers, Berto and Julian (whose family names he could not remember) and the wife of RAYMUNDO, who told him that RAYMUNDO was out serenading. Twenty minutes later, RAYMUNDO arrived. Then they heard a volley of shots. Because the shots seemed to have been fired somewhere near his house where his family was, he ran towards home. Seeing that the store was already lighted, he went there and saw the storeowner, Porting Austria, and RAYMUNDO conversing. He then went with RAYMUNDO to look for his brother-in-law, Pedro Malabanan, and upon returning to the house of RAYMUNDO they met another brother-in-law of RAYMUNDO, who is the Deputy Barrio Lieutenant, and who informed them of the incident. 10 After trial, the lower Court rendered a verdict of guilty, as initially stated. On April 2, 1965, appellants filed their notice of appeal. In assailing the judgment of conviction, appellants contend that the prosecution failed to establish beyond reasonable doubt their Identity as the perpetrators of the crime. This assertion is negated by the evidence. 1. When asked by Pfc. Antazo in the ante-mortem statement "sino ang bumaril sa iyo"? the deceased answered precisely, "ang anak ng Purok po na taga San Gabriel, Batangas, po. " The circumstance that the deceased answered in the singular and failed to specify appellants' names, although he knew them, does not detract from the Identification he had made considering that at the time the declaration was taken, he was in grave and weakening condition that the investigating PC soldier, for humanitarian reasons, deemed it more urgent to bring him to the hospital rather than ask him for more specific details of the incident.' 11 As pointed out by the Solicitor General, the deceased, who was in the throes of death at the time he gave the ante-mortem statement, could not be expected to speak distinctly and with faultless grammar such that he could have omitted the word "mga" to denote that more than one son of Purok had shot him. "One does not hold the dying to the observance of all the niceties of speech to which conformity is exacted from one on the stand" (Mr. Justice Cardozo). However, the deceased's reply to the next question — "ano ating binaril sa iyo? " — "carbine at garand po " — confirmed that he referred to and meant the two sons of Purok Araja, it being impossible for only one 13 Decison to carry and fire the two weapons at the same time. Moreover, the deceased while aboard the bus, confided to his father that appellants, both of whom he Identified by name, had shot him The deceased's conscious state immediately after the shooting is borne out by the NBI medicolegal officer, who declared that the wounds suffered by the deceased would not have caused death instantaneously but that he could have lived an hour or more depending on the blood being lost. Thus he was s physically capable of giving the ante-mortem statement taken even after the incident and at the very site thereof. The positive declaration of the deceased as to the Identity of his assailants, given with the consciousness that death was imminent, is undoubtedly entitled to weight considering the seriousness of his wounds and the fact that death supervened shortly afterwards, thereby showing the great improbability that the deceased would have trifled with the truth. 12 Contrary to the trial Court's opinion, the deceased's dying declaration satisfied all legal requisites, namely: (1) it must concern the crime and the surrounding circumstances of the declarant's death; (2) at the time it was made, the declarant was under a consciousness of an impending death; (3) the declarant was competent as a witness at the time the same was executed; (4) the declaration is offered in a criminal case for murder in which declarant was the victim.13 But even if the statement were not admissible as an ante-mortem declaration, it may still be considered as part of the res gestae, as correctly held by the trial Court. It was made immediately after the shooting incident, appears to be natural and spontaneous and made before the deceased could contrive or devise a plan to incriminate appellants. 14 The defense contention that the prosecution suppressed evidence when it failed to present Porfirio Austria and Pedro Malabanan, witnesses to the ante-mortem statement, is untenable. The prosecution believed that with the witnesses it had presented during the trial, it had sufficiently established the guilt of appellants. Moreover, their testimonies would have been merely corroborative so that there was no compelling reason for the prosecution to still utilize them as witnesses. Besides, assuming that their testimonies were material, nothing could have prevented the defense from presenting them as their own witnesses in order to discredit the ante mortem statement. The presumption of suppressed evidence does not apply when the same is equally accessible or available to the defense. 15 The defense, too, makes capital of the fact that Porfirio Austria did not mention the appellants by name in his Statement taken on November 30, 1962, 16 and merely stated "may dalawang taong dumating galing silangan at kami ay kanilang dinaluhong sabay putok ng baril " This fact, however, does not prove appellants' innocence any. In the first place, Porfirio was not asked for those names. And secondly, it is possible that because of the suddenness of the occurrence, or perhaps, because of his position in relation to the deceased, he was unable to recognize appellants unlike Epifanio Umali who Identified them readily. Be that as it may, Porfirio Austria's statement corroborates the evidence that two individuals were the malefactors. 2. The joint participation of appellants in the assault on the deceased was vividly recalled by witness Epifanio Umali, his barriomate and companion that fateful night in these words: Q. Then what transpired? A. Apolonio Aquino lighted his cigarette, the rest of us have not lighted our cigarettes yet when we suddenly heard somebody said "Patay kayo ngayon. Q. After hearing those words, what transpired? A. Apolonio Aquino focused his flashlight towards the place where the voices came from. Q. And focusing the light on the place where the words came from, did you see any body? A. I saw Raymundo and Roding holding firearms and they suddenly fired shots. Q. Against whom? A. Apolonio Aquino. Q. And what happened? A. He was hit. Q. What happened to Apolonio Aquino after he was fired at by the two Arajas? A. He fell and he shouted, "Aray", so I ran away" 17 (Emphasis supplied) No evil motive has been imputed against Epifanio Umali for testifying against appellants. As a matter of fact, the latter admitted that they knew of no reason as to why Epifanio testified against them nor were they in bad terms with said witness. 18 In such a situation, the rule is that where there is no evidence, and nothing to indicate, that the principal witness for the prosecution was actuated by improper motives, the presumption is that he was not and his testimony is entitled to full faith and credit. 19 In the face of such positive Identification, added to the ante mortem statement of the deceased, the defense of alibi sharply loses its credibility. RAYMUNDO claimed that after he separated from the group of serenaders he went home and slept. However, as he himself admitted, the distance between his house and the place where the shooting occurred was only around 30 meters so that it was not physically impossible for him to have been at the locus criminis at the time it was committed. Q. And how far is that store from your house? A. The store was about thirty meters away from my house. Q. So, your house to the place of the incident is less than 70 meters more or less? It is possible because the place of the incident is near the store. A. I do not remember that statement. Q. You stated a while ago that the distance between your house and that of the junction where you separated from the group is how many? A. More or less fifteen meters. Q. Not half a kilometer? A. No, sir. xxx xxx xxx Q. So that actually now, the place where the shooting occurred is only around 30 meters away from your house? A. Yes, sir. 20 Then, too, RAYMUNDO avers that after the shooting, he and Porfing (referring in all probability to Porfirio Austria), were instructed by the Deputy Barrio Lieutenant to search for anyone who may have been hit. 21 Actually, however, Porfing was with the deceased's group when the latter was shot, had signed the ante-mortem statement as a witness, and had executed a statement 22 regarding the incident, so that there would have been no need for him to search. RAYMUNDO's credibility is thus again laid open to serious doubt. RODING, on the other hand, averred that when the deceased group of serenaders left the house of his father, he remained in said house and listened to the serenade of the condition group during which time he heard the volley of shots. Again, however, the distance between his father's house and the scene of the incident was only "more than 1/2 kilometer". Q. How far is the house of your father from the scene of the incident. A. Far, sir. Q. More or less, how far? A. More than 1/2 kilometer. , 23 As held in People vs. Tizon, 24 a distance of one or two kilometers from the scene of the incident does not exclude the accused from the possibility of committing the crime. The absence of traces of gunpowder residue in appellants' hands neither proves their innocence. The ballistic expert himself, a defense witness, could not categorically conclude from said result that the appellants did or did not fire any firearm because of other factors involved. One fact looms clear, however, and that is that the deceased's declaration that his assailants had utilized a "carbine and garand" finds confirmation in: Exh. "5"- 5 empty shells caliber.30 carbine Type Mark MI (2M5); — 1 for caliber, 30 empty shells garand Type Mark MIA. which shells were found in the scene of the crime by Sgt. Anduque and were surrendered by the PC to the Office of the Provincial Fiscal on December 18, 1962. 25 (Emphasis supplied) That the deceased sustained only two gunshot wounds when, in fact, five empty shells were found at the scene of the crime would not diminish a bit the strength of the prosecution evidence, it being obvious that only two out of the five shots found their mark. Appellants cannot be expected to be sharpshooters. The non-presentation of the firearms used in killing the victim neither disproves the guilt of appellant. It is most unlikely that appellants would just leave them at the scene of the crime. 26 The defense further asks: how could it be possible that it was only the deceased who was hit when there was a group with him? Additionally, how could it be possible that the deceased was hit at the back when according to Epifanio's testimony, upon hearing appellants' shout, the deceased focussed his flashlight on them so that the deceased was facing appellants at the time he was shot? A plausible explanation is that appellants must have hit the deceased's hand holding the flashlight, and thereafter, the deceased must have turned around reflexly, with his back towards the appellants, at which point, the latter directed another shot or shots at him, one of which hit its mark. And, if the others in the group were not hit at all, that was their good fortune. Or, the deceased was the only target of the assailants and was easily picked out from the group because of the flashlight he had focussed on the appellants. Lastly, appellants would have us believe that they were bereft of any motive to liquidate the deceased as there were no strained relations between them. They claim that RAYMUNDO even accompanied the deceased and stayed with his group until the end of the serenade, and that on the way to Purok Araja's house, the deceased even pointed out RAYMUNDO's house to Epifanio Umali. Well settled is the rule, however, that motive need not be established when the accused has been positively Identified 27 as when there are eyewitnesses to the commission of the crime," 28 as in the case under review. Besides, it should be recalled that appellants are first degree cousins of Gregoria Bathan, the sweetheart of the deceased. The family must have been one in disliking the deceased as a suitor. The evidence also discloses that during the serenade, RODING went to where RAYMUNDO was and proceeded to the kitchen, followed by RAYMUNDO,29 after which the two reentered the sala, and RODING left. 30 It is very possible that the brothers discussed the Identity of the serenaders particularly, the deceased. And if RAYMUNDO still joined the group in leaving the house after the serenade, it was to create a "deceptively friendly atmosphere." It should also be recalled that he separated from the group just before the latter went to the store on the pretext that he was going home. In resume the guilt of the appellants has been proven beyond reasonable doubt. The crime committed was Murder qualified by treachery. The assault on the deceased was sudden and unexpected to the point of incapacitating the deceased to repel or escape from it.31 Appellants adopted a method which tended directly to insure the accomplishment of their objective with no risk to themselves from any defense that the deceased might have been able to make. Evident premeditation has not been satisfactorily proven. The aggravating circumstances of abuse of superior strength and nighttime cannot be considered for they are deemed absorbed by treachery. 32 In the absence of any modifying circumstance, the trial Court correctly imposed the medium period of penalty prescribed by Article 248 of the Revised Penal Code (reclusion temporal in its maximum period to death), or reclusion perpetua. WHEREFORE, the judgment appealed from is hereby affirmed, except with respect to the amount of the civil indemnity, which is hereby raised to P12,000.00. 33 Costs against accused-appellants Raymundo Araja and Roding Araja. SO ORDERED. Teehankee (Chairman), Makasiar, Fernandez and Guerrero, JJ., concur. Footnotes 1 T.S.N., June 9, 1964, pp. 61-74. 2 T.S.N. June 9, 1964, pp. 75-96. 3 Exhibits "B" & "1". 4 Exhibit "F". 5 Ibid. 6 T.S.N., January 16, 1964, pp- 39-61. 7 T.S.N., August 13, 1964, pp- 2-50; September 11, 1964, pp. 13. 19, 8 T.S.N., September 11, 1964, pp. 20-34. 9 T.S.N., July 24,1964, pp. 96-109. 10 T.S.N., October 7, 1964, pp. 35-44. 11 People vs.Genoguin, 56 SCRA 181, 190(19-14). 12 People vs. Manlapaz, et al., 55 SCRA 598 (1974). 13 People vs. Lanza, 94 SCRA 613 (1979); People vs. Sagario, et al., 14 SCRA 468 (1965). 14 People vs. de Gracia, 18 SCRA 197 (1966). 15 20 Am. Jur., p. 193; People vs. Padiernos, 69 SCRA 484 (1 976), cited in People vs. Realon, L-30832, August 29, 1980. 16 Exhibit "B". 17 T.S.N., August 27, 1963, pp. 4 & 5. 18 T.S.N., September 11, 1964, p. 30; August 13, 1964, p. 16. 19 People vs. Cabiling, 74 SCRA 285 (1976); People vs. Mercado, 38 SCRA 168, 174 (1971): People v Gonzales, et al., 76 Phil. 473 (1946). 20 T.S.N., August 13,1964, pp. 37-39. 21 T.S.N., August 13,1964, pp. 8-9. 22 Exhibit "B". 23 T.S.N., September 11, 1964, p. 28. 24 66 SCRA 372 (1975). 25 T.S.N., December 3, 1963, pp. 37-38. 26 cf. People vs. Ordonio 68 SCRA 397, 402 (1975). 27 People vs. Veloso, 92 SCRA 515 (1979). 28 People vs. Sabater, et al., L-41537-8, February 24, 1981. 29 T.S.N., August 27, 1963, p. 45. 30 Ibid, p. 45. 31 People vs. Pengzon, 44 Phil. 244. 32 People vs. Carzano, 95 SCRA 146 (1980); People vs. Redona, 87 Phil. 743 (1950); People vs. Mobe, 81 Phil. 58 (1948). 33 People vs. Lucero, 96 SCRA 694 (1980) citing People vs. Pantoja, 25 SCRA 468. 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