Accused-appellant Domingo Albao together with accused Heracleo Monte were charged with the crime of murder before Branch 9 of the Regional Trial Court1 [Criminal Case No. 94-05-263; Penned by Judge Walerico B. Butalid.] of Tacloban City for the death of Domingo Dayola. The Information2 [Records, p. 1; Rollo, p. 4.] against the two accused reads:

Both accused were arraigned on June 9, 1994 and they both pleaded not guilty to the offense charged.3 [Records, p. 18. ]Edpä sc

The prosecution presented Samuel Pedrosa, an alleged eyewitness to the stabbing incident, who testified that he knew the victim, Domingo Dayola, as they both lived in San Joaquin, Leyte.4 [TSN, September 14, 1994, p. 6.] At around 5:00 in the afternoon of March 13, 1994, Pedrosa together with Dayola went to the Tanauan Gallera (cockpit) Tanauan, Leyte to attend a cockfight. Suddenly, Dayola had a dispute with Heracleo Monte over a bet and Dayola and Monte fought with each other;5 [Ibid.] while the two were grappling with each other and Dayola's back was towards accused Domingo Albao, the latter, who was then in an elevated place, delivered a stabbing blow at the back of Dayola.6 [Ibid, p. 4.] Dayola fell to the ground and was brought to the hospital where he was pronounced dead on arrival.7 Ibid, pp. 5-6.] Albao and Monte were immediately apprehended by the police.8 [Ibid.] Witness Pedrosa saw the stabbing incident because he was very close to Dayola, Monte and Albao when it happened.9 [Ibid, p. 5.] Pedrosa did not know accused Albao and Monte prior to the incident but came to know them only at the Tanauan police department.10 [Ibid, p. 3.]

The post mortem report issued by the medico-legal officer of the Provincial Health Office, Dr. Josenilo E. Bunado, indicated that the deceased victim Domingo Dayola sustained the following injuries, to wit: 1) Stab wound at the back left side, at the medial scapular area, at the level of 5th ICS, 2 cm in length, 1 cm in width, 18 cm in depth, penetrating thoracic cavity, penetrating the middle lobe of the left lung, penetrating the posterior pericardium of the heart, directed anterior, lateral and downward; 2) Abrasion at the upper portion of the right shoulder, posterior area; 3) Incise wound at the right hand, at the last finger, lateral aspect, basal area 1 cm in length, 0.6 in width, 1 cm in depth; 4) Incise wound at the left side of the nose on the nasal area to the root of the nose, 6 cm in length 0.5 cm in width, 1 cm in depth.11 [Records, p. 32.]

The certificate of death issued by the same medico-legal officer showed that the cause of death of the victim was due to severe hemorrhage due to stab wound.12 [Records, p. 33.]

Brena Dayola, widow of victim Domingo Dayola, testified that the untimely death of her husband on March 13, 1994 left her with four children and caused her sorrow and suffering; she asked for P50,000.00 moral damages.13 [TSN, September 6, 1994, pp. 2-3.]Edâ p

Accused Albao did not deny that he stabbed Dayola. To prove that the crime committed was not murder but homicide and to show the presence of the mitigating circumstances of provocation on the part of victim Dayola and obfuscation, Alba narrated that on March 13, 1994 at around 5:00 o'clock in the afternoon, he was at the gallera (cockfighting arena) of Tanauan, Leyte. He knew his co-accused Heracleo Monte who was also one of the bettors in the game. Domingo Dayola was also present and he was about two armslength away from him.14 [TSN, November 17, 1994, p. 2.] In one of the games wherein Dayola bet with Monte, the latter won but the former refused to pay and instead wanted to have a fight with Monte.15 [Ibid, p. 3.] He (Albao) heard a commotion and then approached Dayola and Monte to ask what happened and learned that defeated bettor Dayola did not want to pay his bet. For trying to intervene, he was boxed by Dayola on the left side of his chest.16 [Ibid, p. 4.] He (Albao) just stood and Monte drew his knife, known as "pisao", Dayola also drew his "pisao", and thrust it towards him (Albao) but he (Albao) was able to evade the thrust of the victim, so he (Albao) then also drew his knife and hit Dayola once. He did not remember at what part of the body he hit Dayola because he felt dizzy.17 [Ibid.] He hit Dayola because he was the first to box him.18 [Ibid, p. 5.] He was not able to notice the presence of prosecution witness Samuel Pedrosa.19 [Ibid.]

After trial, the Court rendered its decision dated September 5, 1995, the dispositive portion of which provides:20 [Rollo, pp. 13-18.]

A motion for reconsideration was filed by accused Albao alleging that the proper conviction should be for homicide and that the mitigating circumstances of provocation, passion and obfuscation should be appreciated in his favor. The trial court denied the motion in an Order dated November 13, 1995 stating that the basis in finding Albao guilty of murder was that the victim was stabbed at the back and that victim Dayola did not provoke the accused prior to the stabbing incident because the prosecution witness admitted that the stabbing incident was precipitated by a dispute over a cockfighting bet between Dayola and Monte.21 [Rollo, pp. 19-20.]

Hence, Albao appealed the decision to this Court contending that the trial court erred: (1) in finding that the killing of Dayola was qualified by treachery and evident premeditation; and (2) in not finding that he is entitled to the mitigating circumstance of provocation.22 [Rollo, p. 41.]

In his brief, accused appellant Albao does not deny having killed Dayola but submits that the trial court erred in finding that treachery and evident premeditation attended the killing of Dayola which qualified the crime to murder as charged in the information. He claims that the stabbing incident happened unexpectedly and was just a result of a dispute over a bet between the victim and Heracleo Monte, thus, it was not a result of calculation, meditation and reflection on his part as he did not even know the victim before the incident. Accordingly, there could have been no evident premeditation. He also maintains that the incident happened in the presence of many people which could have stopped him (Albao) from stabbing the victim. The mere fact that the victim was hit at the back does not mean that treachery is present to qualify the crime to murder. He contends that the qualifying circumstances were not clearly established, thus the crime should only be homicide.

We sustain the accused-appellant's contention that the crime committed is homicide.

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 specially to insure its execution without risk to himself arising from the defense which the offended party might make.23 [Article 14, par. 16, Revised Penal Code.] Jurisprudence, however, has required that treachery must be proved by clear and convincing evidence, or as conclusively as the killing itself. For treachery to be appreciated as a qualifying circumstance, two conditions must concur, viz.: (a) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (b) that said means of execution be deliberately and consciously adopted.24 [People vs. Porras, 255 SCRA 514 (1996).] Its essence lies in the adoption of ways that minimize or neutralize any resistance which may be put up by the offended party.25 [People vs. Ganzagan, Jr., 247 SCRA 220 (1995).]Misoedpâ

As a rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack was coolly and deliberately adopted by him,26 [People vs. Aguiluz, 207 SCRA 187, citing People vs. Young, 83 Phil. 702; People vs. Resurreccion, et al., 94 SCRA 96; People vs. Ruiz, 110 SCRA 155.] with the purpose of depriving the victim of a chance to either fight or retreat.27 [People vs. Lanseta, 95 SCRA 166; People vs. Talay.] The rule does not apply, however, where the sudden attack was not preconceived and deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of the provocative act of the victim,28 [People vs. Real, 242 SCRA 671 (1995), citing People vs. Aguiluz, 207 SCRA 187 (1992).] or where their meeting was purely accidental.29 [People vs. Aguiluz, supra, citing People vs. Berna, 128 SCRA 606l.]

We cannot agree with the conclusion of the trial court that treachery attended the killing of Dayola merely because Dayola was stabbed at the back by accused-appellant Albao. The trial court concluded that the killing was treacherous based on the post mortem report that the fatal wound sustained by the victim was a stab wound at the back left side which caused the death of the victim. However, the mere fact that the victim was stabbed in the back did not necessarily make the attack treacherous30 [People vs. Adriano, 226 SCRA 131; People vs. Jajarit, 214 SCRA 678.] and the circumstance that the fatal wound was at the back of the deceased does not by itself, compel a finding of treachery.31 [People vs. Ablao, 183 SCRA 658.]

We entertain serious doubts under the facts established by both witnesses for the prosecution and the defense as to whether accused-appellant acted with alevosia when he attacked the victim. The fight over a cockfighting bet was between victim Dayola and Monte and accused-appellant was not a participant in the betting. The testimony of prosecution witness Samuel Pedrosa revealed that it was when Domingo Dayola and Heracleo Monte were grappling with each other when accused Albao, who was in an elevated place, suddenly delivered a stabbing blow on victim Dayola. The attack was made so suddenly and in such a short interval of time that it cannot be said that the accused assailant had sufficient time to consciously adopt the mode of attack in killing the victim which would ensure its commission without risk to himself. The court notes that the accused-appellant did not know the victim prior to the incident and there was nothing that transpired between accused-appellant and the victim as to provoke the attack or provide a reason for the killing. The decision of accused-appellant to stab the victim would appear to be the result of a rash and impetuous impulse of the moment to intervene in the fight between the victim and Monte, rather from a deliberate act of the accused-appellant to stab the victim in a manner calculated to facilitate the killing without risk to himself. We are inclined to rule that the position of both the victim and the accused was merely accidental.32 [People vs. Tugbo, Jr., 196 SCRA 133; People vs. Real, supra.] As held in the case of People vs. Nitcha, a killing done at the spur of the moment is not treacherous:33 People vs. Salvador, 279 SCRA 164; People vs. Nitcha, 240 SCRA 283.]Edpâ mis

We hold that treachery cannot be appreciated in order to qualify the crime to murder.

Anent the second assigned error, accused-appellant claims that he should be given the benefit of the mitigating circumstance of provocation since he merely tried to settle the dispute between the victim and Heracleo Monte but for no apparent reason at all victim Dayola boxed him, drew his knife and thrust it towards him.

The accused-appellant's version is not believable. It must be noted that the fight over the bet was only between victim Dayola and Monte; thus there was no reason at all for Dayola to box or assault or otherwise provoke accused-appellant. As correctly observed by the trial court:

The evidence for the prosecution has established beyond reasonable doubt the guilt of the accused for the crime of homicide only, not murder. The penalty imposed for homicide in Article 249 of the Revised Penal Code is reclusion temporal.

Considering the absence of any aggravating or mitigating circumstances and applying in is favor the Indeterminate Sentence Law, the sentence should be an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor, a minimum, to fourteen (14) years and eight (8) months and one (1) day of reclusion temporal, as maximum, with all the accessory penalties prescribed by law.34 [People vs. Rodrigo Mangahas, G.R. No. 118777, July 28, 1999, citing People vs. Albao, 287 SCRA 129.]Jjä sc

In conformity with the prevailing jurisprudence, the trial court correctly awarded the amount of P50,000.00 as death indemnity to the heirs of the deceased.35 [People vs. Espanola, 271 SCRA 689.] Anent moral damages, the victim's widow testified that the death of her husband caused her sorrow and suffering and left her with four children to support. Moral damages, which include physical suffering and mental anguish, may be recovered in criminal offenses resulting in physical injuries or the victim's death, as in this case,36 [People vs. Salcedo, 273 SCRA 473.] and the Court considers the award of moral damages in the amount of P50,000.00 to Brena, the wife of Domingo Dayola as reasonable and justified.

WHEREFORE, the appealed decision of the Regional Trial Court is hereby MODIFIED, and the accused-appellant is found GUILTY OF HOMICIDE, and hereby sentenced to an indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months and one (1) day of reclusion temporal, as maximum. Accused-appellant is further ordered to pay the heirs of the victim death indemnity of P50,000.00, and moral damages of P50.000.00.

Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur. ScÓ jj