G.R. No. 97032. July 05, 1993
PROTACIO T. BACANI, PETITIONER, VS. COURT OF APPEALS AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.
FELICIANO, J.:
Petitioner Protacio T. Bacani was charged with two (2) separate
offenses: homicide for allegedly
killing one Abetalib Usodan; and frustrated homicide said to have been committed
against Khalik Menor. The information
for homicide read as follows:
“That on or about July 12, 1983, in the City of Manila,
Philippines, the said accused, conspiring and confederating together with
several others whose true names, identities and present whereabouts are still
unknown and helping one another, with intent to kill, did then and there
willfully, unlawfully and feloniously, attack, assault and use personal
violence upon one ABETALIB B. USODAN, by then and there stabbing him on the chest
with a bladed weapon, thereby inflicting upon the latter mortal stab wound
which was the direct and immediate
cause of his death immediately thereafter.
Contrary to law.”[1]
The charge of frustrated homicide stated:
“That on or about July 12, 1983, in the City of Manila,
Philippines, the said accused, conspiring and confederating together with
several others whose true names, identities and present whereabouts are still
unknown and helping one another, with intent to kill, did then and there
wilfully, unlawfully and feloniously attack, assault and use personal violence
upon the person of one KHALIK MENOR y
INDOL, by then and there stabbing him with a broken bottle, thereby inflicting
upon him serious physical injuries which is necessarily fatal; thus performing
all the acts of execution which should have produced the crime of homicide as a
consequence, but nevertheless, did not produce it by reason of causes
independent of his will, that is, because of the timely and able medical
attendance which prevented his death.
Contrary to law.”[2]
After arraignment and trial, the trial court found petitioner
Bacani guilty of homicide and of slight physical injuries:
“WHEREFORE, as regards Criminal Case No. 83-19581, the
accused is hereby convicted of the crime of homicide under Article 249 of the
Revised Penal Code and is hereby sentenced to suffer the penalty of 12 years and one day of reclusion
temporal with all the accessory penalties as provided by law; to
indemnify the heirs of Abetalib Usodan in the sum of P12,000.00, without
subsidiary imprisonment in case of default, and to pay the costs.
With regard to Criminal Case No. 83-19582, the accused is also
convicted of the lesser offense of slight physical injuries under paragraph 1
of Article 266 of the Revised Penal Code and is hereby sentenced to suffer the
penalty of one month of arresto menor and to pay the costs.
SO ORDERED.”[3]
In a decision that is remarkable for its conspicuous brevity and
a lack of analysis and discussion of evidence that had been presented before
it, the trial court made the following findings of fact:
“The records show that in the evening of July 12, 1983, at
around 9:00 o’clock, Abetalib B. Usodan, Khalik Indol Menor and Sinuding Angsal
were at the second floor of Luisa and Sons Restaurant, on C. M. Recto Avenue, Manila, drinking beer and listening
to a combo. After a while, Menor went
to a comfort room to answer the call of nature. While inside the comfort room, he saw the accused and his three
male companions, one of whom had a bandage on his forehead. Menor asked the man with the bandage what
had happened to him. For [an] unknown
reason, the man with the bandage resented the question, which prompted Menor to
apologize to him. Menor rejoined his
companions and they continued drinking beer. The accused and his companions approached the table of Menor and
his friends. The two groups amicably
settled the misunderstanding that occurred in the comfort room.
Later, after Menor and his friends paid their bills and were about
to leave, they were suddenly attacked by the accused and his three companions and a melee ensued. During the fight, Abetalib B. Usodan was stabbed with a knife by
the accused. The accused also stabbed
Menor with a broken bottle, while the accused’s companions hit Sinuding Angsal
with chairs. Moreover, the accused and
his companions left the restaurant without paying their bills.
Usodan died of this knife wound before reaching the hospital,
Exhibits ‘A’ and ‘F’,while Menor sustained physical injuries, which took less
than nine days to heal, Exhibits ‘B’ and ‘C’.”[4]
Fifteen (15) days after Usodan had been stabbed to death and
Menor injured with a broken bottle, that is, on 27 July 1983, at around 9:00
o’clock in the evening, while petitioner Bacani and his friends Rogelio Regerson
and Godualfredo Tobon were walking home, three (3) policemen approached and
asked them to board a Ford Fierra vehicle, and to go with them to the police
station. Inside the vehicle, while en
route to the police station, one of the police officers accused petitioner
Bacani of having killed one of the Muslims involved in the 12 July 1983 brawl
in the Luisa and Sons Restaurant. At
the police station, petitioner Bacani was separated from his friends; the two
(2) friends were, after sometime, allowed to go home. Petitioner Bacani, upon the other hand, was subjected to
interrogation.
On the following day, 28 July 1983, at about 8:00 o’clock in the
evening, Khalik Menor went to the police station and there executed a sworn
statement (Exhibit, “A”) stating, among other things, that in a police line-up,
he had identified petitioner Bacani as the man responsible for the stabbing of
Abetalib Usodan and for attacking him (Khalik Menor) with a broken bottle. Petitioner Bacani was then charged, as
noted, with homicide and frustrated homicide.
After conviction by the trial court, petitioner Bacani went on
appeal to the Court of Appeals which, however, in a Decision dated 26 July
1990, dismissed the appeal and affirmed the decision of the trial court.
Petitioner is now before this Court on a Petition for Review
alleging that the Court of Appeals had erred as follows:
1.
in not finding that the prosecution’s evidence of “positive
identification” was violative of petitioner Bacani’s constitutional rights;
2.
in not finding that the identification of petitioner Bacani as
the slayer of Abetalib Usodan and the attacker of Khalik Menor, had not been
established beyond reasonable doubt; and
3.
in concluding, contrary to the evidence of the prosecution
itself, that the attack on Abetalib Usodan and Khalik Menor was preceded by a
disagreement between a group of Muslims of which Usodan and Menor formed part
and petitioner Bacani’s own group.
We have carefully examined the records of this case and we believe that
both the trial court and the Court of Appeals failed to consider adequately
certain facts which had been brought out during the trial, which facts generate
in our mind a nagging doubt as to whether petitioner Bacani had indeed stabbed
Abetalib Usodan to death with a knife and attacked Khalik Menor with a broken
glass bottle.
Petitioner Bacani was convicted of both homicide and slight
physical injuries fundamentally upon the testimony of Khalik Menor who had pointed
to Bacani in a police line-up and identified him as the assailant who had
stabbed Usodan and himself. Sinuding
Angsal too, stated in court that he had seen Bacani stab Usodan as the two (2)
were side by side.
The physical state, however, of the two (2) prosecution
witnesses, Khalik Menor and Sinuding Angsal, who had been Abetalib Usodan’s
companions at the beer hall of the Luisa and Sons Restaurant on the night of
the stabbing, was such as to create serious doubt as to the correctness of that
identification.
In the sworn statement given by Menor on the day that he picked out petitioner Bacani in a
police line-up (the prosecution’s Exhibit “A”), he stated that at the time of
the attack on Abetalib Usodan and himself, he (Menor), Usodan and Angsal had
already drunk nine (9) bottles of beer each: five (5) bottles of beer each at Rico’s Restaurant where they had
began their drinking spree and four (4) bottles each at the Luisa and Sons
Restaurant where they proceeded after leaving Rico’s Restaurant, to continue
their drinking.[5]
Khalik Menor and Sinuding Angsal confirmed their statements in the testimony
they respectively gave before the trial court.[6] Dr.
Dario Gajardo, the physician who had conducted an autopsy on the deceased
Abetalib Usodan, stated in his testimony that the level of alcohol found in the
blood of the deceased Usodan was .23%. Dr. Gajardo also stated that a normal person with that percentage of
alcohol in his blood would be sluggish of movement and would be “walking in a
groggy manner”[7]
and concluded that the victim Usodan was “under the influence of liquor at the
time that he was stabbed.”[8] Since
Khalik Manor and Sinuding Angsal had ingested the same quantity of beer as the
deceased Usodan, we must conclude that they were in the same physical condition that the deceased Usodan was when
the melee or tumultuous affray erupted in
the Luisa and Sons Restaurant. If Menor and Angsal were groggy and sluggish of movement, their ability
clearly to perceive visually and remember the faces of their attackers must, in
all probability, been similarly dulled and impaired.
Khalik Menor, who as noted was the principal prosecution witness,
was probably in a worse physical condition than his two (2) companions. For in his sworn statement at the police station,
Khalik Menor stated that he had taken “hycodine” (a cough syrup with a narcotic
drug ingredient) before he and his companions had gone to the Luisa and Sons
Restaurant:
“14. T: Maliban
sa beer, mayroon pa ba kayong ininom na alak o anumang bagay na nakalalasing?
S: Noon hong nasa Rico’s kami ay uminom ho
ako nq “HYCODINE”.
T: Alam
mo ba kung ano itong Hycodine?
S: Gamot ho sa ubo.
16. T: Nang
inumin mo ang Hycodine, ikaw ba ay may ubo?
S: Wala ho.
17. T: Dati
ka na bang umiinom ng Hycodine?
S: Oho.
18. T: Gaano
na katagal na umiinom ka nq Hycodine?
S: High school pa ho ako.”[9]
(Emphases supplied)
Nine (9) bottles of beer, especially when
combined with “hycodine” cough syrup, appears to the court to be enough to
create substantial doubt as to the capacity of Khalik Menor then to perceive
the faces of their attackers (whom he was seeing for the first time in his
life) with such clarity and sharpness as to be able to recognize petitioner
Bacani in particular sixteen (16) days later in the police line-up.
In addition to the physical condition of Khalik Menor and
Sinuding Angsal, referred to above, when they were at the beer hall of the
Luisa and Sons Restaurant, two (2) other circumstances must be taken into
account in appraising the “positive identification” of petitioner Bacani by
Khalik Menor. Menor, Angsal and Usodan
were drinking beer and listening to a band play on the second floor or beer
hall of the Luisa and Sons Restaurant. The place was not ablaze with light; it was dimly lit being
illuminated merely by flickering red lights.[10] In
his sworn statement, Khalik Menor stated that the place was dark (“medyo may
kadiliman”) but claimed that he was able to see petitioner Bacani because of
the light which came from the first floor of the Restaurant:
“22. T: Sinabi mo na sinaksak si Abe o Abetalib ng
kutsilyo, sakali bang makita mo ulit ang kutsilyong ginamit na panaksak kay
Abe, ito ba ay makikilala mo at maituturo mo sa amin?
S: Hindi ko ho masyadong matandaan ang hitsura
kasi mabilis ho ang pangyayari at medyo may kadiliman.
23. T: Sinabi mo na may kadiliman, papaano mo
makikilala ang mukha ng tao sa lugar na iyon?
S: Kasi ho may ilaw na nanggagaling sa first
floor.”[11]
(Underscoring supplied)
In his testimony during cross-examination,
Sinuding Angsal stated that the second floor or mezzanine of the restaurant
where they sat drinking beer was smoky and “a little dim” with “flickering
lights.”[12]
The second circumstance that must be noted is that the melee or
brawl which erupted on the second floor or beer hall of the Restaurant involved
at least ten (10) or twelve (12) individuals, all of whom were total
strangers to Khalik Menor and Sinudinq Angsal. The attack by one of these strangers (allegedly petitioner
Bacani) on Usodan and Menor was sudden and commenced without any warning,[13]
in a situation marked by noise and alarm and confused fighting and brawling
among at least twelve (12) persons. Under these conditions, and bearing in mind the physical condition of
Khalik Menor and Sinuding Angsal resulting from drinking beer for at least five
(5) hours, in addition to ingestion of a narcotic cough syrup by Khalik Menor,
the accuracy and reliability of the identification by Menor and Angsal of
petitioner Bacani as the assailant must be regarded as open to serious doubt.[14]
It is also worth noting that the prosecution witnesses appeared
uncertain or inconsistent in pointing to petitioner Bacani as the assailant of
both Abetalib Usodan and Khalik Menor. Menor said in his sworn statement given before the police authorities
that one of the attackers had stabbed him with a broken bottle while another
person had knifed Usodan:
“11. T: Maari
bang isalaysay mo ang buong pangyayari tungkol sa pagkakasaksak at pagkakapalo
sa iyo?
S: x x x Iyong isa sa kanila ay sinaksak ako
ng basag na bote samantalang iyong isa naman ay sinaksak si Abe ng kutsilyo
at ang iba ay pinalo si Ding ng silya.”[15]
(Underscoring supplied)
In court, however, Khalik Menor testified
that petitioner Bacani had stabbed both Usodan and Menor himself. Sinuding Angsal also testified that Bacani
had stabbed both Usodan and Menor; on cross-examination, however, he kept
referring to “they” as having stabbed Usodan and Menor, without differentiating
petitioner Bacani from other unnamed persons:
“q: When
was the last time you saw the accused?
a: When
they stabbed Abetalib.
q: So
that was the time …?
a: They
stabbed Abetalib first and after they stabbed Abetalib, they turned to
Khalik.
q: When
you said ‘they’ who were they?
a: His
companions (witness pointed to the accused Bacani).”[16]
(Underscoring supplied)
It appears, therefore, that Angsal was not really certain as to
whether or not petitioner Bacani himself had stabbed both Usodan and Menor, nor
certain as to the identity of the persons responsible for the injuries
sustained by Usodan and Menor. Angsal
apparently assumed that petitioner Bacani was one of the unknown and unnamed
assailants because he (Angsal) believed that the assailants were companions of
petitioner Bacani.
Where identification of the doer of the crime is forthright,
clear and positive, and not open to serious question, there is no necessity for
proving the motive which moved the doer. Where, however, as in the case at bar, the identification is open to
substantial question, proof or failure of proof of the motive for the attack
appears relevant. In the case at bar,
the motive alleged for petitioner Bacani’s supposed attack on Usodan and Menor
remained murky and never satisfactorily proved. Khalik Menor had initially testified that he believed that
Abetalib Usodan would be attacked because a woman working in the restaurant as
a waitress grew angry at Usodan:
“q: As
a matter of fact Abetalib was at your back?
a: Yes,
sir.
q: How
did you see that Abetalib was stabbed by Protacio Bacani?
a: We
were on our way out.
q: That
is why, how did you see?
a: I
looked at him.
q: Who?
a: Abetalib.
q: Why did you look at him?
a: Because
I knew that he was the one to be
attacked, ‘siya anq nakursonadahan.’
q: How
do you know that he was the one to be attacked?
a: Because
of a woman.
q: Who
is that woman?
a: I
do no know. She works there.
q: Why
do you say because of that woman? What
about that woman?
a: What
I knew, since I do not frequent the place, Abetalib I think knew the girl.
q: Why
do you say that you knew that Protacio Bacani was going to stab Abetalib
because of that woman? The reason why
you looked at Abetalib because you knew there was a reason and it was because
of the woman. What happened that
night about the woman?
a: As
if the woman was angry.
q: At
whom?
a: At
Abetalib.
q: What
has the anger of that woman got to do with Protacio Bacani, the accused?
a: None,
sir.
q: You
say that the reason why you looked at Abetalib because he was to be stabbed by
Protacio because of the woman?
a: Yes,
sir.”[17]
(Underscoring supplied)
But Menor, right in the middle of his
testimony, changed his tune:
“q: What
happened that Protacio came to Abetalib and stabbed Abetalib?
a: No,
sir, Protacio did not stabbed Abetalib because of the woman.
q: What
is the reason why he was stabbed?
a: Because
we were together.
q: You
said a while ago you make amend already why is it that there were stabbing?
a: Even
though we already make amends with each other as if they were still angry with
us.
q: Let
us come back when you said Abetalib was following you?
a: Yes,
sir.
q: Why
did you see Abetalib when Abetalib was at your back?
a: He
was near me. I just turned my head
and I saw it.
q: What
was the reason why you looked at him? What
made you looked at him?
a: As
if I feel something might happen so I looked at him.”[18]
(Emphases supplied)
And so Menor went on to suggest that he and
Usodan and Angsal had been attacked because of a misunderstanding that he
(Menor) had with some unknown person with a bandaged forehead inside the
washroom of the Restaurant.
For his part, petitioner Bacani admitted that he along with two
(2) companions, was present at the Luisa and Sons Restaurant’s beer hall during
the melee. He testified that he and his
companions ran out of the establishment when the tumult and fighting began. Bacani’s testimony was corroborated by his
two (2) companions — Rogelio Regerson and Godualfredo Tobon — who had been
students like petitioner Bacani himself.
A judgment of conviction requires that the accused be shown to
have been the perpetrator of the crime charged in the information by proof
beyond reasonable doubt. Unless the
accused is identified as the doer of the crime by such proof, the charge
against the accused must be dismissed for the constitutional presumption of
innocence has not then been overcome.[19] In
the case at bar, the mind and conscience of this Court are not at ease with the
identification of petitioner Bacani as the slayer of Abetalib Usodan and as the
assailant of Khalik Menor. The
presumption of innocence to which petitioner Bacani is entitled, has not been successfully
overthrown.
Both before the Court of Appeals and before this Court,
petitioner Bacani’s counsel has raised a number of issues all relating, in
varying degrees, to the constitutional rights of petitioner Bacani as a person
accused of crime. In the course
thereof, petitioner’s counsel has made arguments and submissions which the
Solicitor General, apparently in exasperation, has described as “wild” and
“weird” theories. With the conclusion
that we have reached above, there is no necessity for examining and passing
upon petitioner’s constitutional law arguments.
WHEREFORE, the Decision of the Court of Appeals dated 26
July 1990 is hereby REVERSED, and petitioner is ACQUITTED of the crimes
charged, his guilt thereof not having been shown by proof beyond reasonable
doubt. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., Romero, and
Melo, JJ., concur.
Bidin, J., in the result.
[1]
Records, Criminal Case No. 83-19581 for Homicide, p. 1.
[2]
Records, Criminal Case No. 83-19582 for Frustrated Homicide, p. 1.
[3]
Records, A.C.-G.R. CR No. 05201, p. 19.
[4]
Trial Court Decision, p. 1.
[5]
Records, Criminal Case No. 83-19581 for Homicide, p. 40.
[6]
TSN, 13 October 1983, pp. 31-33; TSN, 17 October 1983, pp. 23-25.
[7]
TSN, 19 October 1983, p. 12.
[8]
Id., p. 22.
[9]
Records, Criminal Case No. 83-19581 for Homicide, Records, p. 41.
[10]
TSN, 13 October 1983, p. 37.
[11]
Records, Criminal Case No. 83-19581 for Homicide, p. 41.
[12]
TSN, 17 October 1983, pp. 31-32.
[13]
TSN, 13 October 1983, p. 10.
[14]
In the case of People v. Bautista (148 SCRA 155 [1987]), this Court
said:
“We are not unmindful of prior
rulings of the Court that the testimony of one witness is sufficient for
conviction where such witness positively identified the accused as the wrongdoer. (People v. Tintero, 111 SCRA 714
[1982]; People v. Oquino, 122 SCRA 797 [1983]). In the instant case of Jose Bautista,
however, the totality of the circumstances here relating to him, especially the
milieu of tumult, disorder and confusion, (which is perhaps most
dramatically brought home by recalling that three supposed co-accused remain,
even today, unidentified: John Doe,
Peter Doe and Richard Doe’) is such that a very substantial doubt persist in
our mind whether Jose had in fact stabbed Prospero at all. That milieu we regard as imposing
upon the prosecution a more exacting degree of proof than would be necessary in
the absence of confusion and turmoil. x
x x.” (148 SCRA at 163).
[15]
Record, Criminal Case No. 83-19581 for Homicide, p. 40.
[16]
TSN, 17 October 1983, p. 37.
[17]
TSN, 13 October 1983, pp. 39-41.
[18]
Id., pp. 41-43.
[19]
People v. Fontanilla, 199 SCRA 897 (1991); People v. Acosta, 187
SCRA 39 (1990).