SECOND DIVISION
[G.R. No. 138451. May 17, 2001]
PEOPLE OF THE PHILLIPPINES, plaintiff-appellee, vs. SGT. ROGELIO REPIROGA, accused-appellant.
D E C I S I O N
BELLOSILLO, J.:
SGT. ROGELIO REPIROGA
appeals from the Decision of the Regional Trial Court of Morong, Rizal, finding
him guilty of murder, aggravated by treachery and evident premeditation, and
imposing upon him the penalty of reclusion perpetua and to pay the heirs
of the deceased Sgt. Eduardo H. Dino P50,000.00 for moral damages,
another P50,000.00 for civil indemnity, and still another P50,000.00
for exemplary damages.[1]
Accused-appellant was a
member of the Philippine Army at the NCO Academy, 2nd Infantry Division, Camp
Capinpin, Tanay, Rizal. He lived inside
Camp Capinpin with his family. Sometime
in 1996 a complaint was filed before the Office of the Provincial Prosecutor
charging Sgt. Rogelio Repiroga with murder for the violent death of Sgt.
Eduardo H. Dino, also a member of the Philippine Army and likewise a resident
of Camp Capinpin.
Sgt. Repiroga having
failed to submit his counter-affidavit in the preliminary investigation,
Assistant Provincial Prosecutor Rolando G. Ramirez recommended on the sole
basis of complaining witness' evidence the filing of the corresponding
Information. Accordingly, on 19 October
1995 an Information for murder was filed against accused-appellant Repiroga
aggravated by treachery and evident premeditation.[2]
On 18 April 1996,
accused-appellant filed an Urgent Motion to Quash the Information on two
(2) grounds: first, that the ex-parte
resolution of the preliminary investigation warranted a re-investigation; and, second,
that as an enlisted serviceman, the provincial prosecutor had no authority to
file the Information against him but the Deputy Ombudsman for the Military
pursuant to Administrative Order No. 8 of the Office of the Ombudsman.[3]
In his Comment/Opposition
to the Urgent Motion to Quash, State Prosecutor Marianito C. Santos
claimed that the accused was not deprived of his right to refute the charges
against him and to present counter-affidavits, but it was the accused in fact
who failed to do so within the reglementary period of ten (10) days. The State Prosecutor also asserted that the
preliminary investigation conducted by the Assistant Provincial Prosecutor was
proper for two (2) reasons: first, the shooting was not related to the
performance of the official duties of the accused; and, second, the
accused was no longer under the jurisdiction of the Ombudsman since he had
already been discharged from the service.[4]
On 30 July 1996 the trial
court denied the motion; reconsideration was likewise denied.
Editha Dino, widow of
Sgt. Eduardo H. Dino, and their son Darwin narrated at the trial that on 19
June 1995 at around 5:00 o’clock in the afternoon, Sgt. Dino, his wife Editha,
and son Darwin were in a huddle in their tricycle parked in front of their house
some five (5) to ten (10) meters below the road level. Sgt. Dino and Editha were seated on the
saddle while Darwin was in the sidecar.
They were talking about Sgt. Dino being suspected by Sgt. Repiroga as
the one responsible for the former's water disconnection. Earlier, at around 3:00 o’clock that
afternoon, accused-appellant Repiroga had gone to the house of Dino to ask
about the disconnection although the latter disclaimed any knowledge of it. Thereafter, accused-appellant Repiroga left.
In the midst of their
discussion, Editha happened to look behind her and saw Sgt. Repiroga
approaching with an M-16 rifle.
Alarmed, she exclaimed, "Pa, si Repiroga may dalang baril." "Takbo!" Sgt. Dino
answered "Takbo kayo Ma!" then Editha and Darwin scampered away. When she stopped to look back, Editha saw
Sgt. Repiroga approach her husband, cock his rifle and call out, "Pare!"
Immediately, Sgt. Dino raised his hands as if to ward off Sgt. Repiroga. Sgt. Dino pleaded, "Pare, Pare," and turned around to run but Sgt.
Repiroga shot him.
As Sgt. Dino stumbled on
the grass, Sgt. Repiroga sprayed him with bullets. Later, Sgt. Repiroga turned over his rifle to Sgt. Nodo and gave
himself up at the NCO Headquarters.
Although Sgt. Dino was
rushed to Camp Capinpin Station Hospital, he could not be saved. He died in the hospital. Dr. Jesusa N. Vergara medico-legal officer,
reported that hemorrhage was the cause of Dino's death as a result of the
gunshot wounds on his trunk. Dr.
Vergara also found multiple lacerated wounds and abrasions on various parts of
his body.[5]
Accused-appellant, in his
defense, claimed that on 19 June 1995, at around 5:00 o’clock in the afternoon,
he and his wife were walking home after his duty at the NCO Headquarters. According to him, he was advised by his
superior that the battalion should be ready for any attack so he brought his
M-16 rifle with him. When they passed
in front of the house of Sgt. Dino, accused-appellant noticed a tricycle parked
along the road. Suddenly, Sgt. Dino
came out of the tricycle and aimed his 9-mm pistol at him. Sgt. Dino fired at him but missed. To protect himself, he raised his M-16 rifle
and shot Sgt. Dino who fell to the ground.
After he fell, Sgt. Dino aimed his pistol at accused-appellant who let
out another burst of gunfire at the fallen Dino.
At this juncture, Editha
and Darwin appeared from the direction of their house and ran towards Sgt.
Dino. Darwin picked up the 9-mm pistol
of his father. Thereafter, Repiroga
turned over his rifle to Sgt. Nodo who happened to be passing by. Sgt.
Repiroga, accompanied by his wife, later went back to the NCO Headquarters and
gave himself up to Col. de Vela and Sgt. Delito who immediately placed him in
the military stockade.
Among those who testified
for the defense were Vicky Ercilla, a komadre of Sgt. Dino; Roberto
Joaquin, a carpenter working on a house being constructed inside the camp; and,
Josefina Gorgon, a laundry woman. The
crux of their testimonies was that while walking on the road they saw Sgt. Dino
suddenly emerge from the tricycle and fire at Sgt. Repiroga. In essence, their testimonies corroborated
that of accused-appellant that he only fired back to defend himself from Sgt.
Dino.
But the trial court
rejected accused-appellant's claim of self-defense, holding that from the
testimonies of the prosecution witnesses Repiroga had fired at the defenseless
Dino. The court a quo also
appreciated the presence of treachery and evident premeditation considering
that a few hours before the shooting Sgt. Repiroga inquired about the water
pipe that was disconnected from their house supposedly upon instigation of Sgt.
Dino. The court below concluded that
Repiroga failed to present clear and convincing evidence to establish his
theory of self-defense.[6]
Accused-appellant's contentions
may be narrowed down to four (4) issues:
first, whether the trial court, a civil court and not a court-martial,
had jurisdiction over his person who was then a military officer as well as
over the offense; second, whether the Assistant Provincial Prosecutor had
jurisdiction to conduct the preliminary investigation; third, whether the
filing of the Information was proper since he failed to file his
counter-affidavit during preliminary investigation; and, fourth, whether he
acted in lawful self-defense.[7]
Accused-appellant
contends that at the time of the incident he was a member of the AFP with the
rank of staff sergeant. As such, he was
subject to CA 408, as amended, otherwise known as the Articles of War,
which vests jurisdiction over members of the AFP with the courts-martial.
As early as 1938
jurisdiction was already vested in courts-martial over any crime or offense
punishable under CA 408 as amended, othewise known as the Articles of War,
committed by soldiers belonging to the regular force of the Philippine Army.[8] Thereafter, PD 1822 qualified the
jurisdiction of courts-martial to include offenses committed in relation to the
performance of their duties.[9] Subsequently, PD 1850[10] provided that a case shall be disposed of or
tried by the proper civil or judicial authorities when court-martial jurisdiction
over the offense has prescribed under Art. 38 of CA 408, as amended, or
court-martial jurisdiction over the person of the accused military personnel
can no longer be exercised by virtue of their separation from the active
service without jurisdiction having
duly attached beforehand unless otherwise provided by law.[11] Later, Sec. 1 of PD 1850 was amended by PD
1852 to include the situation where the President may in the interest of
justice order or direct, at any time before arraignment, that a case involving
a military officer be tried by the appropriate civil court.[12]
In 1991, due to the
several failed coups d’ etat, RA 7055[13] was enacted. It repealed PDs 1822, 1822-A, 1850 and 1852, and all other acts,
general orders, presidential issuances, rules and regulations inconsistent
therewith. It effectively placed upon
the civil courts the jurisdiction over certain offenses involving members of
the AFP and other members subject to military law. RA 7055 provides that when these individuals commit crimes or
offenses penalized under The Revised Penal Code (RPC), other special
penal laws, or local government ordinances, regardless of whether civilians are
co-accused, victims, or offended parties which may be natural or juridical
persons, they shall be tried by the proper civil court, except when the
offense, as determined before arraignment by the civil court, is
service-connected in which case it shall be tried by court-martial.[14]
Hence, under RA 7055, the
jurisdiction to try members of the AFP who commit crimes or offenses covered by
the RPC, and which are not service-connected, lies with the civil courts. The fact of accused-appellant’s separation
from the service is of no moment since from the outset, the civil courts have
jurisdiction over his offense and his person.
Accused-appellant also
contends that under Art. 71 of CA 408, preliminary investigation should be
conducted by an authorized military officer before any information could be
filed against AFP members.
We disagree. There is nothing in Art. 71 of CA 408 that exclusively vests the
authority on a military officer to conduct preliminary investigation in cases
involving members of the AFP. It simply
mentions an "investigating officer" who shall examine available
witnesses requested by the accused,[15] without reference to his being a military
officer.
Given the foregoing, we
cannot uphold the contention of accused-appellant that the authority to file
charges against him lies within the jurisdiction of the Office of the
Ombudsman. It is true that the
Ombudsman has jurisdiction over complaints filed against members of the armed
forces as they are deemed public officials of an instrumentality of the
government within the contemplation of the law. However, under AO 08, the power of the Ombudsman to conduct
preliminary investigation over a military case may be exercised together with
any provincial or city prosecutor or his assistants since all prosecutors are
now deputized Ombudsman prosecutors.[16] It is only in the prosecution of cases
cognizable by the Sandiganbayan where the Ombudsman enjoys exclusive control
and supervision.[17]
We agree with
accused-appellant that a preliminary investigation guarantees the accused his
right to submit counter-affidavits and present evidence. However, if the respondent cannot be
subpoenaed, or if subpoenaed, does not submit counter-affidavits within the
10-day period, the investigating officer shall base his resolution on the
evidence presented by the complainant.[18] During the prescribed period,
accused-appellant failed to present his counter-affidavit despite due
notice. Hence, the Assistant Provincial
Prosecutor conducting the preliminary investigation did not err when he
resolved the case solely on the basis of complainant’s evidence and, for his
own negligence, accused-appellant cannot now blame the investigating officer.
We now dispose of the
case on its merits.
It is elementary that an
accused who sets up the plea of self-defense has the burden to show, to the
satisfaction of the court, the concurrence of all the elements constituting
self-defense, to wit: (a) that there
was unlawful aggression on the part of the victim; (b) that there was a
reasonable necessity of the means employed to prevent or repel it; and, (c)
that there was lack of sufficient provocation on his part. Accused-appellant claims that all of these
elements are present in the case at bar.
A resolution of the
matter requires a hard look into the credibility of the witnesses. The Court has consistently recognized that
the trial court's assessment of their credibility is to be respected in view of
its unique position to observe their demeanor.
The Court may however set aside the trial court’s findings and
appreciate the evidence anew in exceptional circumstances as the instant case
will show.
Appearing as witnesses
for the prosecution were Editha and Darwin Dino, wife and son of the deceased,
respectively. Owing to their
relationship with the deceased, their testimonies must at the outset be viewed
with caution, if not suspicion.
Editha and Darwin claimed
that they were present during the killing.
Editha testified that upon seeing Sgt. Repiroga carrying an M-16 rifle
she was immediately alarmed and told her husband to run.[19] The cause of her alarm however perplexes the
Court.
On cross-examination,
Editha told the court that the mere sight of Sgt. Repiroga approaching them
with a gun was the sole reason why she told her husband to run. While reference to an earlier argument
regarding the water disconnection between her husband and the accused would
seem to be a plausible motive for the killing, Editha denied this as the cause
for her alarm.[20] She also denied knowing of any
misunderstanding between the two (2) soldiers prior to the incident;[21] yet, she claimed that she instantly panicked
at the sight of Sgt. Repiroga carrying a gun when it was inside a military camp
where the sight of gunslinging soldiers is, to state the obvious, very common
and normal. The testimony of Darwin
neither clarified this matter. It was
laconic and bereft of details. He even
disclaimed any recollection of a family discussion regarding the water
disconnection,[22] and even denied knowledge of any feud
between his father and accused-appellant.[23]
The gaps and
inconsistencies in the testimonies of prosecution witnesses seem to indicate
that they did not actually witness the commission of the crime and their
narration was a mere fabrication. This
failure to show proof beyond reasonable doubt that accused-appellant
feloniously and willfully killed the deceased validated accused-appellant’s
claim of self-defense.
Accused-appellant claims
that the deceased was waiting in ambush behind a tricycle when he and his wife
passed by his house; that the deceased allegedly shot him with his .9 mm pistol
but missed; that instinctively he raised his rifle and shot the victim as an
act of self-preservation; and that he shot him once again even when he was
already down on the ground because the latter attempted to shoot him once more.
After reviewing the
evidence spread on records, we are persuaded that it was the deceased who
initiated the attack on the accused amounting to unlawful aggression against
him and the aggression continued even when deceased was already down on the
ground. The records do not disclose any
sufficient provocation on the part of accused-appellant prior to the
attack. He and his wife were simply
walking on the road on their way home.
His prior inquiry regarding the water disconnection could not be a form
of sufficient provocation contemplated by law to negate his claim of
self-defense. In fact, he denied being
in an unpleasant mood when he made the inquiry, such denial being even
corroborated by the wife of the deceased who testified that accused-appellant
appeared calm and composed when he asked about the water disconnection. On the other hand, accused-appellant claimed
that it was the deceased who had been harboring ill will since his request for
water connection was denied while his was granted.
The use by
accused-appellant of his M-16 service rifle to counter the attack of the
deceased who was using a .9 mm pistol was reasonably necessary and justified to
repel the aggression, although this .9 mm pistol was never presented in
evidence. The prosecution claimed that
it was returned to the artillery prior to the commission of the crime. Accused-appellant positively testified that
it was picked up by the son of the deceased immediately after the shooting incident. The failure of accused-appellant to present
the pistol may have weakened, to a considerable degree, his claim of
self-defense. But the witnesses for the
defense consistently maintained that the deceased utilized a pistol in
initiating his attack against accused-appellant, and we find no reason to
disbelieve them.
The three (3) witnesses
for the defense are disinterested witnesses.
They are not related to accused-appellant. They do not hold any grudge against the deceased and his family. To note,
one of them is even the komadre of the deceased. They repeatedly professed that they
testified not at the behest of accused-appellant but out of their own volition
in the interest of truth and justice.
They also denied having been coached by the defense counsel. They were walking on the same road,
individually, when Sgt. Dino appeared from behind the tricycle and fired at
accused-appellant with a .9 mm pistol.
They were also there when accused-appellant returned fire from his M-16
rifle. They unanimously asserted that
the deceased was alone when he made the attack on accused-appellant. Their testimonies were clear, corroborative
and consistent with accused-appellant’s claim of self-defense; at the very
least, the guilt of the accused-appellant was not proved beyond reasonable
doubt.
WHEREFORE, the Decision of the court a quo
convicting accused-appellant SGT. ROGELIO REPIROGA of murder, aggravated by
treachery and evident premeditation, and imposing upon him the penalty of reclusion
perpetua as well as ordering him to pay the heirs of the victim moral
damages, civil indemnity and exemplary damages is REVERSED and SET ASIDE, and
accused-appellant is ACQUITTED of the crime charged. The Director of Prisons is ordered to
facilitate his immediate release from custody and to report thereon to this
Court within five (5) days from notice hereof unless accused-appellant is being
held for some other lawful cause. Costs
de oficio.
SO ORDERED.
Mendoza, Buena and De Leon, Jr., JJ., concur.
Quisumbing, J., on leave.
[1] Decision
penned by Judge Reynaldo G. Ros, RTC-Br. 80, Morong, Rizal, Crim. Case No.
1507-T, prom. 5 March 1999.
[2] Records,
p. 42.
[3] Id.,
pp. 46-48.
[4] Id.,
p. 65.
[5] Medico-legal
Report No. M-756-95, 30 June 1995, prepared by Dr. Jesusa N. Vergara, P/Senior
Inspector, Chief, Med-Legal Division, Crime Laboratory, National Headquarters,
Philippine National Police, Camp Crame, Quezon City.
[6] Records,
p. 289.
[7] Accused-appellant
contends that the lower court erred: (a) in not finding that he acted in lawful
self-defense; (b) in relying solely on the testimonies of the wife and the son
of the deceased; (c) in disregarding the testimonies of the defense witnesses;
(d) in not finding that he had no premeditated intention to kill the victim;
(e) in presuming that Sgt. Dino did not fire a gun at him first; (f) in denying
his Motion to Quash the Information and to re-investigate the case; and, (g) in
taking cognizance of the action when he, being a member of the AFP at the time
of the killing, was outside its jurisdiction.
[8] Sec.
1, CA 408, “An Act for Making Further
and More Effectual Provision for the National Defense by Establishing a System of
Military Justice for Persons Subject to Military Law,” 14 September 1938.
[9] See
Sec. 1, PD 1822, “Providing for the Trial by Courts-Martial of Members of the
Armed Forces Charged with Offenses Related to the Performance of their Duties,”
16 January 1981.
[10] "Providing
for the Trial by Courts-Martial of Members of the Integrated National Police
and Further Defining the Jurisdiction of Courts-Martial over Members of the
Armed Forces of the Philippines,” 4
October 1982.
[11] Sec.
1, par. (b), PD 1850.
[12] PD
1852, “Amending Sec. 1 of PD 1850 entitled 'Providing for the Trial by
Courts-Martial of Members of the Integrated National Police and Further Defining
the Jurisdiction of Courts-Martial over Members of the Armed Forces of the Philippines,'” 5 September 1984.
[13] “An
Act Strengthening Civilian Supremacy over the Military by Returning to the
Civil Courts the Jurisdiction over Certain Offenses involving Members of the
Armed Forces of the Philippines, other Persons Subject to Military Law, and the
Members of the Philippine National Police, Repealing for the Purpose Certain
Presidential Decrees,” O.G. 87, No. 34,
26 August 1991.
[14] Ibid.
[15] Art. 71. Charges; action upon. x x x
No charge shall be referred for trial until after a thorough and
impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the
matter set forth in said charges, form of charges, and what disposition of the
case should be made in the interest of justice and discipline. At such investigation full opportunity shall
be given to the accused to cross-examine witnesses against him if they are
available and to present anything he may desire in his own behalf, either in
defense or mitigation, and the investigating officer shall examine available
witnesses requested by the accused. If
the charges are forwarded after such investigation, they shall be accompanied
by a statement of the substance of the testimony taken on both sides x
x x (CA 408).
[16] AO 08 is entitled “Clarifying and Modifying Certain Rules of Procedure,” 2
November 1990.
[17] Ibid.
[18] Sec.
3, par. (d), Rule 112, Rules of Court.
[19] TSN,
9 December 1996, p. 5.
[20] Id., p. 14.
[21] Id., p. 6.
[22] TSN,
13 August 1997, p. 45.
[23] TSN,
6 October 1997, p. 74.