Appellant PO3 Ernesto Langres of the Philippine National Police was convicted by the Regional Trial Court of Dapa, Surigao Del Norte, for the crime of Murder. He was sentenced to suffer the penalty of reclusion perpetua and to pay the legal heirs of the victim, Teodorico Sindo, Jr., the sum of fifty thousand pesos (P50,000.00) as indemnity, twenty thousand pesos (P20,000.00) for burial expenses and ten thousand pesos (P10,000.00) for moral and exemplary damages. He now seeks his acquittal on the ground that the killing was done in self-defense.

The crime1 [Information dated May 3, 1991, Original Records, p. 2.] was allegedly committed as follows: Jksm

Upon arraignment, accused pled 'not guilty'. Trial ensued. Chief

The prosecution evidence shows that in the evening of June 23, 1990, the victim, Teodorico Sindo, Jr., his brother, Restituto, and friends Orestes Concilles, Boboy Cubelo and Henry Tiu attended a dance at the municipal gymnasium of Dapa.2 [TSN, July 6, 1993, pp. 3-4.] The dance ended at about midnight. The victim and his companions walked Tiu to his home. Thereafter, they proceeded to the house of Dondel Sindo, an elder brother of the victim and Restituto.

Dondel’s house is situated at the corner of Lopez Jaena and Del Pilar Streets, about 22 kilometers from the house of Jaime Azarcon and 36 meters from the house of Adelindes Clave. The vicinity was illuminated by a light from a lamp post installed at the corner of the streets. It was already 1:00 a.m. of June 24, 1990.

The victim and his companions sat on a bench opposite Dondel’s house. They conversed as they watched the Cubelo brothers having a heated argument a few meters away from them. Esm

After a short while, appellant PO3 Ernesto Langres arrived at the scene, followed closely by Pablo Escobal and Ben Sollo.3 [TSN, February 23, 1993, p. 6; March 22, 1994, pp. 13-14.]

Restituto greeted the appellant, saying, "Maayong gabii, sir." Without a word, appellant punched Restituto on the lower jaw, causing the latter to tumble to the ground.4 [TSN, February 23, 1993, p. 8; August 23, 1995, p. 4; February 28, 1995, p. 8.] Restituto got up and did not say anything. Victim Teodorico, Jr. then approached the appellant and asked the latter what Restituto’s fault was.5 [TSN, August 23, 1995, p. 4; February 23, 1993, p. 8; July 6, 1993, p. 4.] Appellant took two (2) or three (3) steps backwards, drew his .38 caliber service revolver and aimed it at the victim. The gun’s trigger went off, hitting the victim on the forehead.6 [Exhibit "A".] The victim was lifted a few inches off the ground due to the gunshot’s impact. When the victim landed on the ground, he was able to take a few steps before he collapsed.7 [TSN, July 6, 1993, pp. 4-5; February 23, 1993, pp. 8-9; March 22, 1994, p. 7; August 23, 1995, p. 5.] Esmsc

Restituto charged towards the appellant upon seeing his brother slump on the ground. Again, appellant aimed the gun at Restituto. Restituto desisted from assaulting the appellant and instead cuddled his brother. Restituto urged the victim to speak. He could not.

Patrolman Jose Inhaynes arrived and pacified the appellant. Shortly thereafter, Lt. Venias, a Commanding Officer of the defunct Philippine Constabulary, also came. Appellant surrendered to Lt. Venias. They carried the victim to the service patrol jeep of Lt. Venias. Appellant and Lt. Venias boarded the jeep and brought the victim to Siargao District Hospital.

The victim was declared dead on arrival at the district hospital. His death was due to "cardio-respiratory arrest secondary to massive hemorrhage due to gunshot wound frontal forehead."8 [Exhibits "D", "D-1".]Esmmis

Teodorico Sindo, Sr., father of the victim, declared that he spent some twenty thousand pesos (P20,000.00) for the burial of his son and for other incidental expenses such as the nightly novena and the "katapusan.".9 [Exhibit "E".]

The defense had a different version of the shooting incident.

In the evening of June 23, 1990, appellant was a part of the police team tasked to maintain peace and order at the dance being held at the municipal gymnasium in Dapa. At about midnight, a commotion erupted followed by a power failure. The dance was stopped upon the advice of the police.

After everything settled down, appellant decided to go home. Along the way, he heard a woman shouting for help. He headed towards the source of the shouting. He saw a crowd at Lopez Jaena and Del Pilar Streets and learned that the woman shouting for help was the mother of the Cubelo brothers. He noticed a bench, a table and some broken glasses in the vicinity. Esmso

Appellant introduced himself as a policeman and investigated. A drunken Restituto pointed a finger at him and said, "So what if you are a policeman." Appellant took a step backward but Restituto kept advancing towards him. He pushed Restituto and warned him, saying, "Do not go near me." Restituto staggered and fell down.

The victim then rushed towards the appellant. Wary of what the victim would do, appellant retreated and drew his gun. He pointed the gun at a 45-degree angle into the air and fired a warning shot. To his surprise, the victim was hit by the gunfire. Msesm

When Restituto saw his brother sprawl on the ground, he moved to assault the appellant. Instinctively, appellant aimed his revolver at Restituto. It was then that Pat. Inhaynes arrived at the scene. Appellant returned his revolver to its holster and requested Pat. Inhaynes to help him bring the victim to the hospital. A few minutes later, Lt. Venias came on board a patrol jeep. Appellant voluntarily surrendered to Lt. Venias.

Patrolman Jose Inhaynes testified that he heard a gunfire in the early dawn of June 24, 1990. He rushed to the scene and found the appellant pointing his gun at Restituto who was then embracing his wounded brother, Teodoro, Jr. Inhaynes shouted at appellant, saying, "Erning, don’t!" Appellant retreated a bit and put the gun back in its holster. Soon after, Lt. Venias, the Commanding Officer of the Philippine Constabulary, arrived at the scene on board a patrol jeep. Appellant surrendered to Lt. Venias. They boarded the victim inside the jeep and drove him to Siargao District Hospital. Appellant was taken to the police headquarters.10 [TSN, March 26, 1996, pp. 4-6; July 6, 1993, pp. 5-6; March 22, 1994, pp. 8-9.] Exsm

The trial court found the appellant guilty as charged. The dispositive portion of its Judgment, dated August 27, 1996, reads:

Hence, this appeal. Appellant now contends: Kycalr

The appealed decision is affirmed with modification. Mesm

The elementary rule is when a person admits having killed the victim but invokes self-defense, he assumes the burden of proof to establish his plea of self-defense by credible, clear and convincing evidence.11 [People vs. Sambulan, 289 SCRA 500, 512 (1998); Section 1, Rule 131 of the Rules of Court.] For self-defense to prosper, it must be shown that there was a previous unlawful and unprovoked attack that placed the life of the accused in danger and forced him to inflict more or less severe wounds upon his assailant, employing therefor reasonable means to resist said attack. Thus, three (3) elements must first be established before a person can invoke self-defense, to wit: (1) unlawful aggression, (2) reasonable necessity of the means employed to repel the aggression and (3) lack of sufficient provocation on the part of the person invoking self-defense. The presence of unlawful aggression is a condition sine qua non. There can be no self-defense to speak of, whether complete or incomplete, unless the victim has committed an unlawful aggression against the person defending himself.12 [People vs. Cawaling, 293 SCRA 267, 303 (1998).]

In the case at bar, the first element of unlawful aggression was not established by the appellant. Four (4) credible witnesses for the prosecution belied appellant’s claim that the victim unlawfully assaulted him prior to the shooting incident, thus: Slx

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It is crystal clear from the foregoing testimonies that appellant was the aggressor and not the victim nor the victim’s brother. The prosecution witnesses’ testimonies are worthy of belief. Their accounts of the incident dovetailed in all material points-- that the victim and his companions were sitting on a bench and sharing light moments with each other when appellant came; that Restituto greeted the appellant; that appellant gave a fist blow on Restituto without provocation from the latter; that the victim merely intervened to ask what his brother’s fault was; that appellant drew his gun and aimed it at the victim; that appellant pressed the gun’s trigger and a bullet hit the victim on the forehead.

At best, the victim’s brother was discourteous to appellant. Even then, such behavior could not be taken as an unlawful aggression to justify the shooting of the victim. The unlawful aggression contemplated under the law must come from the victim himself.

Appellant contends that when the victim darted towards him, he sensed an attack. He panicked, drew his gun and aimed it towards his alleged aggressor. The excuse is lame. Our jurisprudence teaches that mere belief of an impending attack is not sufficient. Neither is an intimidating or threatening attitude. Even a mere push or shove not followed by other acts placing in real peril the life or personal safety of the accused is not unlawful aggression.17 [People vs. Bautista, 254 SCRA 621 (1996).] Oldmiso

In the case at bar, it is noteworthy that the Sindo brothers were unarmed. They were young men having a jovial, innocuous conversation when appellant passed by. Appellant’s claim that his life was endangered was unreal. He was a policeman, armed with a gun and trained to use his gun. He was facing unarmed youngsters who could not have posed any threat to his life. It is a settled rule in our jurisprudence that to constitute aggression, the person attacked must face a real threat on his life and the peril sought to be avoided is imminent and actual, not imaginary.18 [Ibid.] Without such imminent threat on his life, the person invoking self-defense has nothing to repel. Ncm

In a dire attempt to escape liability, appellant claims that the killing was an accident. Allegedly, he merely fired a warning shot into the air when he pressed the gun’s trigger. The records show the falsity of his claim. In her Sworn Statement,19 [Exhibit "A".] eyewitness Adelindes Clave gave a detailed account on what actually transpired that fateful day, thus:

Appellant was correctly charged with the crime of Murder as the killing was qualified by abuse of superior strength. Abuse of superior strength requires, at base, a deliberate intent on the part of the malefactor to take advantage thereof. Besides the inequality of comparative force between the victim and the aggressor, there must be a situation of strength notoriously selected and made use of by the offender in the commission of the crime before abuse of superior strength can be appreciated against the offender.20 [People vs. Solis, 291 SCRA 529 (1998), citing People vs. Escoto, 244 SCRA 87.] Scncm

In the case at bar, appellant's deliberate intent to take advantage of superior strength is clear. He was armed with a powerful weapon that is manifestly out of proportion to the defense available to the offended party. His victim was young and unarmed. It was unnecessary for appellant to shoot the victim when the latter approached him for throwing a punch at Restituto. In People vs. Padilla, we held:21 [233 SCRA 46 (1994).]

We now review the penalty imposed on appellant. As rightly observed by the Solicitor General, the trial court erroneously applied the provisions of Republic Act No. 7569 when it imposed the penalty of reclusion perpetua. When the offense was committed on June 24, 1990, the penalty for murder was reclusion temporal maximum to death.22 [Article 248, Revised Penal Code.] R.A. 7659 took effect on December 31, 1993 and increased the penalty for murder to reclusion perpetua to death. Being unfavorable to the appellant, R.A. 7659 can not be given retroactive effect.23 [Article 22, Revised Penal Code.] Sdaamiso

Moreover, in imposing the proper penalty, the mitigating circumstance of voluntary surrender was not considered by the trial court in appellant's favor. The facts show that he unconditionally surrendered to the authorities immediately after the shooting incident. Applying the Indeterminate Sentence Law and appreciating the mitigating circumstance of voluntary surrender which is not offset by any aggravating circumstance, appellant's minimum penalty should be within the range of prision mayor maximum to reclusion temporal medium,24 [The range of prision mayor maximum to reclusion temporal medium is 10 years and 1 day to 17 years and 4 months.] while the maximum penalty should be reclusion temporal maximum.25 [The range of reclusion temporal maximum is 17 years, 4 months and 1 day to 20 years.]

Lastly, we go to the civil liability of appellant. We note that the trial court ordered the appellant to pay the sum of ten thousand pesos (P10,000.00) for moral and exemplary damages. Moral damages are recoverable for the mental anguish or emotional distress suffered by the heirs of the victim. Exemplary damages, on the other hand, are awarded to provide an example or correction for the public good. Moral damages cannot be awarded as the prosecution did not present evidence to justify its award. Also, the prosecution failed to prove any aggravating circumstance to justify the award of exemplary damages. For lack of legal basis, the awards for moral and exemplary damages cannot be sustained. Sdaad

IN VIEW OF THE FOREGOING, the Decision, dated August 27, 1996, of the Regional Trial Court of Surigao del Norte (Branch XXXI) in Criminal Case No. 842, finding appellant PO3 ERNESTO LANGRES guilty beyond reasonable doubt of Murder, is AFFIRMED, with the modification that appellant is sentenced to an indeterminate prison term of ten (10) years and one (1) day of prision mayor maximum, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal maximum, as maximum.26 [People vs. Unarce, 272 SCRA 321 (1997).] The awards for moral and exemplary damages are disallowed while the awards for indemnification and burial expenses are affirmed. No costs.

Pardo, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J. (Chairman), and Kapunan, J., on official business abroad.