On August 16, 1993, at 11:30 p.m., Barangay Captain Constantino Rebanal and Barangay Tanod Angel Almazan, both of Talongog, Oas, Albay, went to the Fernando's Hideaway beerhouse. Almazan ordered drinks and was joined at the table by one of the lady entertainers. Rebanal stayed outside on the porch of the beer house where he talked with Loreto Sotto and Pedio Rex. At 1:00 a.m., one of the lady entertainers at the table of a group of policemen inside the beerhouse went outside and approached Rebanal. She told him that she and the other ladies were getting intimidated by the policemen, who were drunk and displaying their firearms. Later, one of the policemen in the group, PO2 Arnulfo Valencia, stepped out on the porch. Rebanal introduced himself and politely told him that the lady entertainers were getting apprehensive over the public display of their firearms. Valencia retorted that Rebanal had no business meddling with their affairs since he was only a barangay captain. Then, Valencia hit Rebanal on the chest and kicked him in the lower abdomen. Since Valencia was tipsy, he fell off the porch. He tried to get up but fell down again.

At that moment, Rebanal looked inside the beerhouse and saw a man in a vest, later identified as accused-appellant SPO1 Rafael Trapane, approach Almazan while the latter was paying for his bill at the cashier's counter. Accused-appellant drew a gun from his waist and shot Almazan on the back. Although badly wounded, Almazan managed to run towards the road but fell down. Rebanal, on the other hand, ran towards the police station of Oas, Albay, which was 60 meters away from the beerhouse, to seek assistance.

When the police arrived at the scene, they found Almazan lying prostrate on the road. He was rushed to the Emergency Hospital of Ligao, Albay but unfortunately, he died upon reaching the hospital.^[1]

Dr. Emma Fuentabella-Rebato, Municipal Health Officer of Oas, Albay, who conducted the post-mortem examination on Almazan, found that he suffered two gunshot wounds. She opined that the assailant was most probably positioned behind the victim since the point of entry of the gunshot wound was at the back of the body. She placed the cause of death as acute hypovolemic shock due to severe hemorrhage resulting in severe loss of blood.^[2]

The defense, on the other hand, sought to establish that on the night of the shooting, accused-appellant went to Fernando's Hideaway beerhouse with PO2 Arnulfo Valencia and SPO3 Rodrigo Ramos to conduct a surveillance on certain armed men sighted in the beerhouse, pursuant to an agent's report. The police officers wore civilian clothes, and when they arrived at the beerhouse they ordered beer and engaged the company of lady entertainers. After some time, team leader SPO3 Ramos decided to return to camp, but instructed SPO1 Trapane and PO2 Valencia that they should leave one at a time. PO2 Valencia was to go out first, followed by SPO1 Trapane.^[3]

When PO2 Valencia got out of the beerhouse, three men suddenly attacked him. Valencia allegedly fell to the ground, while the three unidentified men tried to get his service pistol. He tried to prevent them from wresting the pistol from him by rolling on the ground until he reached the other side of the road. One of the aggressors tried to stab him with a knife. Suddenly two gunshots rang out, followed by another.^[4]

It turned out that the shots came from accused-appellant SPO1 Trapane who affirmed that he fired warning shots because he saw PO2 Valencia being mauled by three unidentified men. However, no one seemed to heed the warning shots. When he saw one of the aggressors trying to stab Valencia, accused-appellant decided to shoot the aggressor on the lower portion of the body. After that, the aggressors fled.^[5]

Defense witness Rosemarie Dionson corroborated the testimonies of accused-appellant, SPO3 Rodrigo Ramos and PO2 Arnulfo Valencia. She stated that she saw PO2 Valencia being mauled by three men, two of whom she identified as Rebanal and Almazan. She also saw that Almazan was holding a knife. She got scared and ran back into the beerhouse.^[6]

SPO1 Trapane, SPO3 Ramos and PO3 Valencia were charged with the murder of Angel Almazan.^[7] After preliminary investigation, Judge Aurora Binamira-Parcia of the Municipal Circuit Trial of Ligao-Oas, recommended the indictment of accused-appellant SPO1 Rafael Trapane only.^[8] On November 26, 1993, an information was filed with the Regional Trial Court of Ligao, Albay, Branch 12 against SPO1 Rafael Trapane, to wit:

That on or about 1:30 o'clock in the morning of August 17, 1993, at Brgy. Iraya Norte, Municipality of Oas, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there, wilfully, unlawfully and feloniously and with treachery attack and shoot ANGEL ALMAZAN Y SIAL to death, to the damage and prejudice of his legal heirs.

ALL ACTS CONTRARY TO LAW.^[9]

On May 21, 1998, the accused-appellant was convicted of murder in a decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the prosecution having proven the guilt of the accused, Rafael B. Trapane, beyond reasonable doubt, this court finds him GUILTY as charged for the crime of MURDER. Accordingly, he is hereby sentenced, to suffer the penalty of RECLUSION PERPETUA, and to suffer the accessory penalties provided for by law. Further, to indemnify the heirs of the deceased in the amount of EIGHTY THOUSAND PESOS (P80,000.00) as actual damages and FIFTY THOUSAND PESOS (P50,000.00) as moral and exemplary damages and to pay the costs.

SO ORDERED.^[10]

Hence, the instant appeal, based on the following errors:

I

THE HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED DESPITE THE PRESENCE OF JUSTIFYING CIRCUMSTANCE OF VALID SELF-DEFENSE OR IN NOT CONSIDERING IN FAVOR OF THE ACCUSED THE JUSTIFYING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE (DEFENSE OF A STRANGER).

II

ASSUMING THAT THE ACCUSED IS GUILTY OF KILLING THE VICTIM, THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME AS CHARGED, INSTEAD OF THE CRIME OF CONSUMMATED HOMICIDE ONLY, CONSIDERING THE CLEAR ABSENCE OF THE MODIFYING CIRCUMSTANCE OF TREACHERY IN THE COMMISSION THEREOF.^[11]

Accused-appellant argues that in shooting Almazan, he merely acted in defense of a stranger. Further, he claims that, if at all, he can only be convicted of homicide since there was no treachery in the killing of the victim.

The justifying circumstance of self-defense or defense of stranger, like alibi, is a defense which can easily be fabricated.^[12] Hence, it is inherently weak, and in order that it may be successfully invoked, accused-appellant must prove the following elements: (1) unlawful aggression by the victim; (2) reasonable necessity of the means to prevent or repel it; and (3) the person defending was not induced by revenge, resentment, or other evil motive.^[13] Moreover, he cannot rely on the weakness of the prosecution but on the strength of his own evidence, for even if the evidence of the prosecution were weak it could not be disbelieved after the accused himself admitted the killing.^[14]

Hence, while it is a cardinal principle in criminal law that the prosecution has the burden of proving the guilt of the accused, the rule is reversed where the accused admits committing the crime but only in his or another's defense.^[15] Ei incumbit probatio qui dicit, non que negat he who asserts, not he who denies, must prove.^[16]

Defense, whether of one's self, a relative or a stranger, as a justifying or mitigating circumstance requires as a condition sine qua non the element of unlawful aggression on the part of the victim.^[17] Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof. The person defending himself must have been attacked with actual physical force or with actual use of weapon.^[18]

In the case at bar, the element of unlawful aggression is absent. Aside from accused-appellant's self-serving statement, there is nothing to corroborate his statement that the victim attempted to stab PO2 Valencia. Defense witness Rosemarie Dionson testified that she saw the victim holding a knife, then out of fear she retreated into the beerhouse and hid behind the counter.^[19] She did not categorically state that she saw the victim thrust the knife towards PO2 Valencia.

Even assuming that the victim, Rebanal and an unidentified person ganged up and mauled PO2 Valencia, accused-appellant's act of firing his gun at them was not a reasonable means to repel the attack. We are not convinced that the victim attempted to stab PO2 Valencia. Hence, the latter was in no real danger.

In any event, we sustain the trial court's evaluation of the evidence. It found the testimonies of the prosecution witnesses, particularly Constantino Rebanal, straightforward and credible. On the contrary, the trial court noted that the version of the defense was inconsistent with the normal course of things. It also disbelieved the testimony of defense witness Rosemarie Dionson.

After a careful review of the transcripts and evidence on record, we agree with the trial court's finding that the testimony of Constantino Rebanal was forthright and more worthy of faith and credence. He declared that from a distance of three meters, he saw accused-appellant shoot Almazan point blank at the back. He also testified that it was PO2 Valencia who was the unlawful aggressor.^[20] It is hornbook doctrine that the trial court's evaluation of the testimony of the witnesses is accorded great respect by the appellate courts by reason of its unique opportunity to observe the witnesses on the stand and to determine whether they are telling the truth or not.^[21] This Court will generally not interfere with the judgment of the trial court in passing upon the credibility of witnesses unless there appears on record some fact or circumstance of weight and influence which has been overlooked and if considered would affect the outcome of the case.^[22] None exist in the case at bar. Besides, there appears no reason for Rebanal to falsely impute such a serious crime on accused-appellant. Absent any proof thereof, the presumption is that witnesses were not actuated by improper motive.^[23] We believe that Rebanal was impelled by a genuine desire to see that justice is dispensed.
However, we do not agree with the trial court that treachery attended the killing. There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof, tending directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make.^[24] Thus, to appreciate treachery, two requisites must concur: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or retaliate; and (2) the deliberate or conscious adoption of the means of execution.^[25] In the case at bar, the events which led to the shooting were so spontaneous that it cannot be said that accused-appellant deliberated on the means of execution. Hence, the crime committed is only Homicide.

Under Article 249 of the Revised Penal Code, Homicide is punishable by reclusion temporal. Considering that there are neither mitigating nor aggravating circumstances in this case, the penalty shall be imposed in its medium period. Accused-appellant shall likewise be entitled to the benefits of the Indeterminate Sentence Law. Thus, he shall be sentenced to a penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.

The damages awarded by the trial court needs modification. The amount of actual damages must be substantiated. To justify an award of actual damages, it is necessary to prove the actual amount of loss with a reasonable degree of certainty, premised upon competent proof and on the best evidence obtainable by the injured party.^[26] In the case at bar, only the amount of P15,000.00 can be awarded as funeral expenses, since these were the only damages duly receipted.^[27]
Likewise, the award by the trial court of moral and exemplary damages of P50,000.00 must be modified. Moral and exemplary damages rest on different jural foundations and cannot be lumped together as one. Exemplary damages are awarded in criminal offenses only when the crime was committed with one or more aggravating circumstances.^[28]  Since there were no aggravating circumstances in this case, exemplary damages may not be awarded. However, considering the pain and anguish of the victim's family brought about by his death, the award of P50,000.00 as moral damages is justified.^[29] Finally, civil indemnity of P50,000.00 should be awarded, the same being mandatory upon the finding of the fact of killing.^[30]

WHEREFORE, in view of the foregoing, the appealed decision of the Regional Trial Court of Ligao, Albay, Branch 12, is MODIFIED. Accused-appellant SPO1 Rafael Trapane is found guilty beyond reasonable doubt of the crime of Homicide and is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. Further, accused-appellant is ordered to pay the heirs of the deceased, Angel Almazan, the amounts of P15,000.00 as actual damages; P50,000.00 as moral damages; and P50,000.00 as civil indemnity. Costs de officio.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, and Austria-Martinez, JJ., concur.

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^[1] TSN, November 29, 1995, pp. 2-17.
^[2] TSN, October 17, 1995, pp. 4-21.
^[3] TSN, February 20, 1997, p. 14.
^[4] TSN, February 05, 1997, pp. 15-17.
^[5] TSN, April 10, 1997, p. 12.
^[6] TSN, July 17, 1997, pp. 6-9.
^[7] Records, p. 5.
^[8] Records, pp. 70-76.
^[9] Rollo, p. 11.
^[10] Ibid., pp. 26-36.
^[11] Rollo, p. 48.
^[12] People v. Bantiling, G.R. No. 136017, November 15, 2001.
^[13] People v. Galvez, et al., G.R. No. 130397, January 17, 2002.
^[14] People v. Bonifacio, G.R. No. 133799, February 5, 2002.
^[15] People v. Magaro, 291 SCRA 681, 686 1998.
^[16] People v. Masakit, 300 SCRA 147, 156 1998.
^[17] People v. Gaspar, 318 SCRA 649 1999.
^[18] People v. Saure, G.R. No. 135848, March 12, 2002.
^[19] TSN, July 17, 1997, p. 9.
^[20] TSN, November 29, 1995, pp. 9-11.
^[21] People v. Ubaldo, G.R. No. 129389, October 17, 2001.
^[22] People v. Tahop, 315 SCRA 465, 473 1999 .
^[23] Naval v. Panday, 321 SCRA 290, 308 1999.
^[24] Section 16, Article 14, Revised Penal Code.
^[25] People v. Caisip, 290 SCRA 451, 461 1998.
^[26] People v. Discalsota, G.R. No. 136892, April 11, 2002.
^[27] Exhibit "D", Records, p. 280.
^[28] People v. Galvez, G.R. No. 136790, March 26, 2001.
^[29] People v. Villamor, G.R. No. 141908-09, January 15, 2002.
^[30] People v. Peña, G.R. No. 133964, February 13, 2002.