PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EX-CPL. VICTORIO PLETADO, ACCUSED-APPELLANT.

In an information filed by the Provincial Prosecutor of Davao,
accused-appellant Victorio Pletado, a former soldier with the rank of corporal
was charged in the Regional Trial Court of Davao with the crime of double
murder under Article No. 248 of the Revised Penal Code. The crime was allegedly committed as
follows:

“That on or about January 16, 1990, in the Municipality of
Tagum, Province of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with treachery and evident
premeditation, with intent to kill, armed with M-16 Armalite, did then and
there wilfully, unlawfully and feloniously attack, assault and shoot Sgt.
Venancio Agipo, PA and Evelyn Delima, thereby inflicting upon them wounds which
caused their deaths, and further causing (sic) actual, moral and compensatory
damages to the heirs of the victims.

Contrary to law.” (Rollo,
p. 6)

When arraigned, the accused-appellant pleaded not guilty.

The People’s version of the incident which resulted in the deaths
of Venancio Agipo and Evelyn Delima is summarized by the Solicitor General, as
follows:

“At about past midnight of January 16, 1990, appellant,
together with other Philippine Army soldiers of the 40th Infantry Batallion
stationed at Magum, Tagum, Davao, namely: Cpl. Ireneo Francisco, Sgt. Agipo (one of the victims), and Pfc. Quioyo,
left their barracks and proceeded to the Poblacion of Tagum to fetch Cpl.
Danilo Benedicto whom they wanted to invite for a drink. (pp. 8, 67, TSN, March 14, 1990).

At first, Cpl. Benedicto refused as he felt tired, but upon
proddings from his fellow soldiers, he went along with them (p. 9, ibid).

The group proceeded to the Poblacion of Tagum and went to Neneng’s
Store located at the Peneyras Bus Terminal. Sgt. Agipo and Cpl. Francisco then ordered beer for the group which was
then occupying a table. Cpl. Benedicto
and a companion were seated on one side and fronting them on the opposite side
of the table, likewise seated, were Sgt. Agipo, Cpl. Francisco and appellant
(pp. 9, 10, ibid).

Not long thereafter, appellant and Pfc. Quioyo had a discussion
regarding a past incident which happened at the Bangoy Airport, when appellant
fell off from a service jeep then driven by Pfc. Quioyo (p. 69, ibid).

The discussion between the two turned into a heated argument. Cpl. Benedicto advised appellant to calm
down who was then banging his hands on the table. Appellant did not heed Cpl. Benedicto’s advice (p. 10,
ibid). Cpl. Francisco, observing that
trouble was then brewing, tried to pacify appellant. He (Cpl. Francisco) tried to touch appellant’s face and advised
the latter, ‘Pare, this is only between us, do not destroy our camaraderie
within the unit.’ Appellant did not
calm down and even got infuriated and parried the hand of Cpl. Francisco. The latter then told appellant, ‘Do not do
that as it might destroy our unit.’ Then and there appellant drew a fan knife and attempted to stab Cpl.
Francisco. The latter fired a warning
shot. Cpl. Benedicto still tried to
pacify appellant, but the latter left the group which remained at Neneng’s
Store and continued drinking beer. (pp.
70-71, ibid).

About 30 minutes thereafter, appellant returned on board a
passenger jeep, in uniform and armed with an M-16 Armalite rifle. Without hesitation and any warning,
appellant fired his rifle towards the direction where the group of Cpl.
Benedicto, Cpl. Francisco, Pfc. Quioyo, and Sgt. Agipo were then seated inside
the Neneng’s Store (pp. 14, 72-73, ibid).

At the first volley of gunfire, Cpl. Benedicto was hit on the upper
portion of his left hand just above the elbow (p. 14, ibid). He jumped and sought cover behind the
service jeep they earlier used just parked near them (p. 15, ibid).

Cpl. Francisco jumped behind the cooler inside the store and there
sought cover from appellant’s gunfire (p. 72, ibid). Cpl. Benedicto, although already hit, fired back using his .45
caliber service pistol (p. 15, ibid).

The firing stopped. Cpl.
Francisco and Cpl. Benedicto emerged from where they sought cover. Cpl. Francisco was likewise hit on the right
arm just below the shoulder (p. 73, ibid).

Likewise hit by reason of the ‘strafing incident’ were Sgt. Agipo
and Evelyn Delima, a waitress. Sgt.
Agipo was found slumped in a chair, his head bowed and resting on top of the
table. Sgt. Agipo sustained gunshot
injury on his stomach area, with entry wound on his right side and exit wound
on the left portion of the stomach. (pp. 74-75; 16-17, ibid).

Evelyn Delima, who was a waitress at the adjacent store was hit on
her head near the lower portion of the right ear without any exit wound on the
lower portion of the left ear (pp. 17; 74-75, ibid).

Sgt. Agipo and Evelyn Delima died on the spot.” (Appellee’s Brief, pp. 4-7)

On the other hand, the appellant presented another version of the
incident, to wit:

“On the early hours of January 16, 1990 accused Ex-Cpl.
Victorio Pletado accompanied with (sic) Sgt. Aguipo (should be Agipo), Cpl.
Benedicto, Cpl. Francisco and Pfc. Quioyo who went to Pereyras Terminal for a
drinking spree. Accused Pletado did not
join his companions to serve as a look out since his companions have been
continuously drinking. (t.s.n., Session
January 24, 1991, p. 13).

Later, accused Pletado approached Pfc. Quioyo to request him to
stop drinking because of their assignment to proceed to Davao City early that
same morning to fetch their batallion commander. Their companion, Cpl. Francisco, got mad with the instruction
accused Pletado gave Pfc. Quioyo, thereby tried to tap accused Pletado’s ear at
the same time drawing his .38 caliber. Cpl. Francisco pointed his gun at accused making accused run towards the
mini-cruiser while warning shots were fired at him by his companions. Sgt. Agipo had with him caliber .38;
Benedicto caliber .38; Quioyo caliber .38; and Francisco caliber .40. t.s.n., Session January 24, 1991, pp.
14-16).

At this juncture, accused-Pletado went back to his barracks at NIA
Magum, Tagum, Davao and reported immediately to Lt. Bendenillo the incident
that happened in Poblacion, Tagum. Lt.
Bendenillo instructed the accused to go back to where his companions were to
tell them to stop drinking because on that morning, the mini-cruiser service
jeep will be used to fetch the batallion commander. Lt. Bendenillo further instructed accused Pletado to be in
uniform and at least go back with Pfc. Quioyo, who was the assigned driver of
the service jeep. (t.s.n., Session
January 24, 1991, pp. 17-18).

After changing to his uniform, accused went back to Pereyras
terminal aboard a passenger jeep and alighted in front of DJ Cinema. While approaching his companions, he was
immediately fired at. Accused was
immediately hit on his right leg by Benedicto, resulting in a big scar, half
inch in circumference and another scar, a smaller than the entry, reflecting the
wound’s exit. (t.s.n., Section January
24, 1991, pp. 18-19). Accused Pletado
tried to run because of the successive firing of the guns, but was again hit,
this time by Francisco on the right side of his left leg, just 2 inches above
his left knee and which exited on the left side of the left leg. (t.s.n., Session January 24, 1991, p. 21).

Accused-appellant almost collapsed but managed to run for a
distance of four (4) meters, after which he fired back towards them. Upon the arrival of the military police
team, accused voluntarily surrendered after which he was immediately brought to
the Davao Regional Hospital for treatment. (t.s.n., Session January 24, 1991, p. 23). He had a 70/0 pressure upon arrival at said Hospital. (t.s.n., Session October 24, 1990, p.
9).” (Appellant’s Brief, pp. 205)

As between these two (2) conflicting versions, the trial court
gave credence to the prosecution. Accordingly, Pletado was found guilty of the crimes charged. The dispositive portion of the decision
reads:

“WHEREFORE, premises considered, the evidence of guilt having
been proven beyond reasonable doubt, pursuant to Article 248 of the Revised
Penal Code, Ex-Corporal VICTORIO PLETADO is hereby found guilty of Double
Murder against Sgt. Venancio Agipo and Evelyn Delima, and he is hereby
sentenced to serve two RECLUSION PERPETUA to be served at the National
Penitentiary, Muntinglupa, and to indemnify at P30,000.00 each to the heirs of
the deceased.” (Rollo, p. 21)

The appellant now assigns the following errors:

FIRST ERROR: THE TRIAL COURT ERRED FOR NOT ACQUITTING THE
ACCUSED-APPELLANT FOR HAVING ACTED IN COMPLETE SELF-DEFENSE.

SECOND ERROR: THE HONORABLE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED ON THE BASIS OF SPECULATIONS, SURMISES AND CONJECTURES.

THIRD ERROR: THE HONORABLE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED ON THE BASIS OF THE INCREDIBLE, IMPROBABLE, AND
CONTRADICTORY TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION.

FOURTH ERROR: THE HONORABLE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE ACCUSED DESPITE THE PROSECUTION’S FAILURE TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT. (Rollo, p. 74)

It is to be noted that under the first assigned error, the
appellant completely changed his line of defense. Hence, while in the trial court the appellant denied killing
Agipo and Delima, he now admits killing them, but he interposes “complete
self-defense.”

In view of this admission, we limit our review of the decision to
whether or not the appellant had presented strong, clear and convincing evidence
to prove the justifying circumstance of self-defense to be relieved of any
criminal liability. (People v. Nabayra,
G. R. Nos. 96368-69, October 17, 1991; People v. Bausing, 199 SCRA 355 [1991];
See also People v. Bayocot, 174 SCRA 285 [1989]; People v. Masangkay, 157 SCRA
320 [1988]; People v. Abagon, 161 SCRA 255 [1988]; People v. Tesorero, 71 SCRA
579 [1976]; People v. Llamera, 51 SCRA 48 [1973]; People v. Bauden, 77 Phil.
105 [1946]; and People v. Ansoyon, 75 Phil. 772 [1942]).

Legitimate self-defense is present when the following requisites
concur: (1) unlawful aggression on the
part of the victim; (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. (par. 1, Article 11,
Revised Penal Code).

Unlawful aggression on the part of the victim is an indispensable
requisite in self-defense. If there is
no unlawful aggression, there is nothing to prevent or repel. (People v. Malazzab, 160 SCRA 123 [1988]
cited in People v. Bausing, supra) The test as to whether unlawful aggression is present under given
circumstances is stated in the case of People v. Bausing, supra,
to wit:

x x x        x x x           x x x

“x x x [F]or aggression to be
appreciated, there must be an actual, sudden, unexpected attack or imminent
danger thereof, and not merely a threatening or intimidating attitude (People
v. Pasco, Jr., supra; People v. Rey, 172 SCRA 149 [1989] and the accused
must present proof of positively strong act of real aggression (Pacificar v.
Court of Appeals, 125 SCRA 716 [1983]; People v. Aquiatan, 123 SCRA 501 [1983];
People v. Aquino, 124 SCRA 835 [1983]). Unlawful aggression must be such as to put in real peril the life or
personal safety of the person defending himself or of a relative sought to be
defended and not an imagined threat.” (at pp. 361-362)

In the present case, the appellant insists on his version of the
incident as opposed to the version of the prosecution to substantiate his
stance that the “supposed offended parties” were guilty of unlawful
aggression against his person. The
ultimate issue, therefore, hinges on the credibility of witnesses.

The well-entrenched principle is that factual findings of the
trial courts are accorded great weight and the highest degree of respect by the
appellate courts in the absence of any showing that the trial court has
overlooked some substantial material facts. (People v. Aguiluz, G. R. No. 91662, March 11, 1992; People v. Caraig,
G. R. No. 91162, October 3, 1991; People v. Payumo, 187 SCRA 64 [1990]; People
v. Realon, et al. 79 SCRA 422 [1980]; People v. Espejo, et al. 36 SCRA 400
[1970]). In this regard, we have
consistently ruled that credibility is a matter that peculiarly falls within
the province of the trial judge who had first hand opportunity to watch and
observe the demeanor and behavior of witnesses, both for the prosecution and
the defense, at the time of their testimony.” (People v. Hatague, et al. G. R. No. 97308, April 7, 1992, citing
People v. De Jesus, G. R. No. 93852, January 24, 1992; People v. Turla, 167
SCRA 278 [1988]; People v. Escabarte, 158 SCRA 602 [1988]).

After a second scrutiny of the records, we find no substantial
reasons to deviate from the findings of the trial court.

The appellant capitalizes on the prosecution’s evidence that – 1)
When the appellant fled from Neneng’s Store after the first incident involving
their group, Cpl. Danilo Benedicto warned the others that the appellant “x
x x might go to the barracks and come back with an arm (should be
firearm).” (t.s.n., March 14,
1990, p. 12); and 2) the group composed of Cpl. Benedicto, Cpl. Francisco, Pfc.
Quioyo and Sgt. Agipo saw the appellant return thirty (30) minutes after he left
Neneng’s store when he alighted from a Lawin jeep arrived; (t.s.n., March 14,
1990, p. 14) to convince us that the appellant was the victim of unlawful
aggression. Thus, the appellant claims
that given these facts, it is unimaginable how a group of enlisted men, except
in the act of suicide, would rather risk exposing themselves to gunfire by
waiting for the first burst of fire and be hit before seeking cover and firing
back when they had the opportunity to do otherwise. The appellant opines that “It is more in accordance with
one’s automatic instinct for self-preservation, these supposed victims who were
likewise armed, should fire at accused immediately after sighting
him.” (Appellant’s Brief, pp. 8-9)

We find these conclusions not supported by the evidence on
record.

Although Cpl. Benedicto warned the group that the appellant
“might go back to the barracks and come back with an arm” the others
were not perturbed by the warning. Cpl.
Benedicto testified:

“Q   Now,
after Cpl. Pletado left, how about the four of you, where were you?

A     We
went back to the table and remained ourselves seated.

Q    Now,
what did you say?

A     I
advised Sgt. Agipo we would rather go home because Cpl. Pletado might go to the
barracks and come back with an arm.

x x x                      x x x           x x x

ASST. PROSECUTOR:

Q    What
did your companion answer?

A     Sgt.
Agipo refused and answered, ‘Why should we be afraid’.

Q    What
else did he say, if any?

A     He
answered further, ‘It is good if we are handsome. It is better to die because nobody loves.’” (t.s.n., March 14, 1990, pp. 11-13)

The evidence on record conclusively shows that just after the
appellant alighted from the Lawin jeep, he started firing his M16 rifle, first
directing it at the parked service jeep, and thereafter, towards the group and
“strafing” them.

Cpl. Benedicto testified as follows:

Q    After
a few minutes, after about 30 minutes, what happened?

A     A
Lawin jeep arrived.

Q    Who
was on board that Lawin jeep?

A     Cpl.
Pletado arrived with the Lawin and he wore his upper uniform.

Q    Then,
what did he do?

A     He
indiscriminately fired his gun towards us.

ASST PROSECUTOR:

May we request the
word ‘strafing’ be used, Your Honor.

COURT:

Place that he was
strafing us.

ASST. PROSECUTOR:

Q    What
did he use?

A     He
used M16 rifle.

Q    What
did you do when the accused was strafing your group?

A     I
was hit at my left upper hand.

Q    Do
you have evidence of your wound?

A     Yes,
I have.

(Witness showing a scar
at the upper portion of his elbow with length of 1 and 1/2 inches and with a
diameter of 2 inches of the wound.)

Q    When
you were hit, what did you do?

A     I
jumped beside the jeep which was parked near us.

Q    How
about Cpl. Francisco?

A     Cpl.
Francisco was able to jump behind Sgt. Agipo. But at the same time, Pletado was still firing his gun getting nearer
us.

Q    Now,
while you were, you said you were hiding?

A     Yes. I was hiding behind the tire of the jeep.

Q    What
did you do?

A Because he was still continuing firing
his gun and getting nearer us, I tried to draw my 45 pistol. And when I peeped below the jeep, I tried to
hit his foot.

Q    Was
he hit?

A     I
was not so sure. But he was still
trying to attack towards the jeep. And
because I already observed I was in danger, I tried to move back and hit him
and that was the time I withdrew.

Q    Was
he hit?

A     I
was not so sure whether I hit him, but at least, the firing was able to
stop.” (t.s.n., March 14, 1990, pp. 13-16)

Cpl. Jesus Francisco corroborated the testimony of Cpl.
Benedicto. He Added that after the
appellant “jumped off the jeep” he started strafing at them and that
the first strafing was directed towards the service jeep. He, too, was a victim of the
“strafing.” He was hit on his right arm. At the trial, he showed a scar just below his right shoulder,
with more or less three (3) inches length and a width of one (1) inch. (t.s.n. March 14, 1990, p. 73) He was hit while hiding behind the
cooler. (t.s.n., April 2, 1990, p. 29)

The version of the prosecution was bolstered by the testimony of
Lani Briones, a salesgirl of Neneng’s store. At the time of the incident, Briones was seventeen (17) years old and a
first year high school student. She
worked at the store from ten o’clock in the evening until seven o’clock the
following day. On January 16, 1990, at
about 2:00 o’clock in the morning, Briones was at the Neneng’s Store serving
the group of Cpl. Francisco, Sgt. Benedicto, Sgt. Venancio Agipo, Pfc. Quioyo
and the appellant.

Briones testified that while she was outside the store, at about
2:00 o’clock in the morning, she saw the appellant return and “without any
word, he fired a shot but, the first was directed to the ground.” (t.s.n.,
April 2, 1990, p. 41) Immediately
thereafter, the appellant “made a strafing in the store.” (t.s.n.,
April 2, 1990, p. 41) She was about
five meters away from where the appellant was located. She pointed at the appellant as the one who
shot Cpl. Benedicto, Cpl. Francisco, Sgt. Agipo and Evelyn Delima.

The appellant, however, questions the credibility of
Briones. The appellant argues that
“x x x her claim that she did not even hide nor duck during the sudden
attack even if she was supposedly nearest to the accused, and in fact saw and
remembered everything that transpired is simply incredible.” (Appellant’s
Brief, p. 13)

We are not persuaded.

There is no standard form of behavior when one is confronted with
a shocking incident. (People v.
Amoncio, 122 SCRA 686 [1983]; People v. Radomes, 141 SCRA 548 [1986]; People v.
Catubig, G. R. No. 89732, January 31, 1992). In the present case, Briones satisfactorily explained her “unusual
” behavior during the entire incident, to wit:

Q    Now,
while he was strafing the store how far were you from Pletado?

A     About
five (5) meters away.

Q    Did
you seek cover also?

A     At
first, I just watched.

Q    Then,
later on?

A Because at first, I never thought that that
will happen, then, after the first shot, I moved backward and kept on
watching.” (t.s.n., April 2, 1990,
p. 41)

xxx   xxx   xxx

PROECUTOR AVENTURADO:

Q    You
said in the cross examination that Cpl. Benedicto shot Pletado. Now, when did Cpl. Benedicto shot (sic)
Pletado?

A     When
Pletado kept on strafing.

Q Now, you also said that you were looking
at Pletado and the four other army men when Pletado was strafing at them, you
mean to say you did not seek cover?

ATTY. GONZAGA:

Already answered that
she was there standing akimbo.

PROSECUTOR AVENTURADO:

There was no such answer
she was standing akimbo.

COURT:

Witness may answer.

WITNESS:

A     No,
I slowly moved backwards while watching them.

PROSECUTOR AVENTURADO:

Q    Up
to what point were you moving backward?

A     When
I was slowly moving backward I reached up to the gasoline station because it is
just near.” (t.s.n., April 3,
1990, pp. 37-38)

Briones is a disinterested witness. The defense has not shown any motive sufficient to impel her to
perjure herself. There was no reason
for Briones to incriminate the appellant except to tell the truth as she had
witnessed the incident. (People v.
Ballinas, G. R. No. 93300, October 4, 1991; People v. Catubig, supra).

The prosecution witnesses were spontaneous and straightforward in
their testimony. They were subjected to
rigid and prolonged cross-examinations and they never faltered. True, there were discrepancies as regards
their respective positions before the incident. Such minor inconsistencies, however, do not affect their
credibility. What matters is the fact
that the accounts of the prosecution witnesses are replete with the same
details and circumstances which show that the appellant, in a strafing manner,
shot Sgt. Venancio Agipo and Evelyn Delima resulting in their instantaneous
deaths.

Treachery qualified the crime into murder. There is treachery when the offender commits
any of the crimes against a person employing means, methods or forms in the
execution, without risk to himself arising from the defense which the offended
party might make. (Section 16, Article
14, Revised Penal Code; People v. Sabellano, 198 SCRA 196 [1991]; People v.
Tinampay, Gr. R. No. 80658-60, March 23, 1992; People v. dela Cruz, G. R. No.
68319, March 31, 1992). The appellant
herein, immediately after alighting from a jeep, suddenly fired his M16 rifle,
first at a parked service jeep and then at the victims, strafing them. Although, Cpl. Benedicto, Cpl. Francisco and
Sgt. Agipo were armed, the attack on them was so sudden, they were practically
defenseless. Their immediate response
was to scamper away to look for a hiding place. It was only when Cpl. Benedicto was safe behind the parked
service jeep that he was able to shoot back at the appellant hitting him twice
on his legs.

However, we disagree with the trial court that evident
premeditation attended the commission of the crime. Evident premeditation is appreciated only when the following
elements are present: 1) the time when
the offender determined to commit the crime; 2) an act manifestly indicating
that he has clung to his determination; 3) sufficient lapse of time between
determination and execution to allow himself to reflect upon the consequences
of his act. (People v. Quintos, 186
SCRA 14 [1990]; People v. Talla, 181 SCRA 133 [1990]; People v. Nabayra, supra). These circumstances were not clearly
established by the prosecution’s evidence. The fact that after an altercation involving the appellant and the group
of Sgt. Agipo, the former left and then returned after thirty (30) minutes and
attacked the latter does not prove beyond doubt that he committed the crimes
with evident premeditation.

The crime of murder is punished by reclusion temporal maximum to
death. (Article 248, Revised Penal Code) Since there are no mitigating or aggravating
circumstances present, the medium penalty which is reclusion perpetua was
correctly imposed by the trial court. (See People v. Munoz, 170 SCRA 170 (1989); People v. dela Cruz, supra) However, the civil indemnity for each of the
two crimes must be increased to P50,000.00 in conformity with recent
jurisprudence. (People v. Sison, 189
SCRA 643 [1990]; People v. Sazon, 189 SCRA 700 [1990]; People v. Narit, 197
SCRA 334 [1991]; People v. Tiozon, 198 SCRA 368 [1991]; and People v. dela
Cruz, et al. supra).

WHEREFORE, subject to the above modification, the judgment
appealed from is AFFIRMED.

SO ORDERED.

Feliciano, Bidin, Davide, Jr., and
Romero, JJ., concur.