FIRST DIVISION

[G.R. No. 171284. June 29, 2015.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, v s . ALFREDO

DULIN Y NARAG, accused-appellant.

DECISION

BERSAMIN, J : p

The accused is guilty only of homicide in a prosecution for murder where

the record does not substantiate the attendance of treachery. But he may not
benefit from the privileged mitigating circumstance of incomplete self-defense
if there was no unlawful aggression from the victim.
The Case
Alfredo Dulin y Narag appeals the decision promulgated on August 26,
2005, 1 whereby the Court of Appeals (CA) affirmed with modification his
conviction for the murder of Francisco Batulan rendered on December 29,
1997 by the Regional Trial Court (RTC), Branch 3, in Tuguegarao, Cagayan. 2 In
convicting him, the RTC had appreciated the privileged mitigating
circumstance of incomplete self-defense, and had then sentenced him to
"suffer the penalty of reclusion temporal in its maximum period of
imprisonment ranging from 17 years and 4 months and 1 day to 20 years."
On appeal, the CA prescribed reclusion perpetua. ETHIDa

Antecedents
The information filed on January 7, 1991 averred as follows:
That on or about August 22, 1990, in the Municipality of
Tuguegarao, Province of Cagayan, and within the jurisdiction of this
Honorable Court, the said accused, Alfredo Dulin y Narag alias Freddie,
armed with a sharp blade(d) instrument, with intent to kill, with evident
premeditation and with treachery did then and there willfully, unlawfully
and feloniously attack, assault and stab one, Francisco Batulan, inflicting
upon him several stab wounds on the different parts of his body which
caused his death.
Contrary to law. 3

During the trial, the Prosecution presented four witnesses, namely: (a)
Dr. Nelson Macaraniag, (b) Alexander Tamayao, (c) Romulo Cabalza and (d)
Estelita Batulan. Their version follows.
Tamayao was on Tamayao Street in Atulayan Norte, Tuguegarao at about
10:00 o'clock in the evening of August 22, 1990 when a young man came
running from the house of Vicente Danao towards the house of Batulan,
shouting that his Uncle Totoy (Batulan) had been stabbed. Tamayao rushed
towards Danao's house, which was about 30 meters from his own house, and
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 there he saw Dulin stabbing Batulan who was already prostrate face down.
Dulin was on top of Batulan, as if kneeling with his left foot touching the
ground. Dulin was holding Batulan by the hair with his left hand, and
thrusting the knife at the latter with his right hand. Seeing this, Tamayao ran
towards Batulan's house to inform Estelita Batulan, the victim's wife who was
his aunt, about the incident. He went home afterwards.
Tamayao mentioned of the long standing grudge between Batulan and
Dulin, and of seeing them fighting in April 1990. He recalled Dulin uttering on
two occasions: He will soon have his day and I will kill him. 4
Cabalza, a barangay tanod, was in his house around 10:00 o'clock in the
evening of August 22, 1990 when he heard the commotion in Danao's house
which was facing his house. It was Carolina, Danao's daughter, screaming for
help. He thus sought out a fellow barangay tanod. On his return to the scene,
he found Batulan at the door of Danao's house, with Dulin wielding a sharp
pointed instrument, about 6-7 inches long. Fearing for his safety, he rushed to
the Barangay Hall to seek the assistance of Edwin Cabalza and Nanding
Buenaflor to bring Batulan to the Provincial Hospital in Carig, Tuguegarao. 5
Estelita recalled that Tamayao went to her house around 10:00 o'clock in
the evening of August 22, 1990 to inform her that Dulin had stabbed her
husband in Danao's house. She rushed to Danao's house but fainted on the
way. Upon regaining consciousness, she learned that her husband had been
rushed to the hospital. On her way to the hospital, she met Barangay Captain
Loreto Meman, who told her: Finally, Freddie Dulin killed your husband as he
vowed to do. At the hospital, she was told that her husband had sustained two
wounds in the back and several stab wounds in the front, and was being
attended to at the hospital's intensive care unit (ICU) before he expired.
Estelita said that Barangay Captain Meman went to her husband's wake
and repeated what he had said to her about Dulin. But when she later on
sought out Barangay Captain Meman to ask him to confirm what he had told
her about Dulin's vowing to kill her husband, Barangay Captain Meman's
response was: I'm sorry I cannot go and declare what I have stated because I
am afraid of FREDDIE and he will kill all those persons who will testify in their
favor. 6
Estelita mentioned of the heated discussion between her husband and
his nephew, Seong Bancud, in front of Danao's house in April 1990. On that
occasion, Dulin wielded a knife with which he tried to stab her husband. Dulin
was pacified only when she went to the aid of her husband, but she then
heard Dulin saying: You will soon have your day, I will kill you. 7
Batulan was attended to at the Cagayan Valley Regional Hospital on
August 22, 1990 by Dr. Macaraniag, who said that the victim was in a state of
shock from his 12 stab wounds. Dr. Macaraniag was part of the three teams
that conducted the surgery on Batulan. He issued the Medico-Legal Certificate
8 attesting that Batulan died on August 24, 1990 at 12:15 a.m.; and that
Batulan had sustained several injuries, as follows:
Multiple stab wounds #12
(1) Lacerated wound, sternum, 1 cm.
(2) Lacerated wound, 4th ICS, 2 cm. MCL
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 (3) Lacerated wound, 1 cm. post axillary line
(4) Lacerated wound, 3 x 2 cm. 3 cm below scapula
(5) Lacerated wound, 3 cm. lateral aspect, left hand
(6) Lacerated wound, 3 cm. anterior aspect, left hand
(7) Lacerated wound, 3 cm. anterior aspect, about 3 cm. from elbow, left
(8) Lacerated wound, 2 cm. middle third, left forearm
(9) Lacerated wound, 3 cm. posterior aspect left forearm 4 cm. from left
wrist
(10) Lacerated wound, 3 cm. lateral aspect of left foot
(11) Lacerated wound, 4 cm. lateral aspect, left thigh
(12) Lacerated wound, 2 cm. scapular area.
xxx xxx xxx. 9

Dr. Macaraniag stated the cause of death to be "Hypovolemic shock

secondary to Massive Hemothorax secondary to Multiple stab wounds." 10 He
clarified in court that there were clerical errors in the preparation of the
Medico-Legal Certificate because his handwritten records indicated that
Batulan had sustained stab instead of lacerated wounds. He surmised that one
of the clerks could have misread his handwriting in the process of
transcription. 11
Estelita declared that her late husband had earned a living from buying
pigs, deriving a monthly income of P8,000.00; that their marriage bore only
one child; that she spent more or less P6,500.00 for Batulan's hospitalization,
including his medicines, and P36,000.00 for Batulan's 10-day wake, his burial
attire and his coffin; that during the wake she butchered one cow worth
P6,800.00 and six pigs worth P15,000.00; that his death caused her and her
family so much pain; and that she and her family expended a total of
P70,000.00, plus the P20,000.00 for the counsel's services in bringing the
criminal charge against Dulin. 12
In his defense, Dulin testified that in the evening of August 22, 1990, he
was in his house in Atulayan Norte, Tuguegarao, Cagayan with Doming Narag,
Imelda Danao, Jun Danao, Carolina Dulin and Caridad Narag; that Nicanor
Annariao and Raymond Soriano arrived at his house to see the fighting cocks
being sold by Alberto Eugenio (Alberto); that Alberto was not yet around,
arriving only at about 8:00 o'clock in the evening to talk with Raymund and
Nicanor about the price of the fighting cocks; that after their transaction,
Alberto served Nicanor and Raymund food, and he (Dulin) and Jun Danao
thereafter accompanied Raymund and Nicanor to the highway to get a tricycle
ride, but on their way, they passed Angel Bancud who called out to him: that
he (Dulin) asked the others to go ahead, and he would just catch up with
them; that as he (Dulin) approached Bancud, Batulan, the cousin of his
(Dulin) mother, stabbed him on the right side of his body and in the left hand;
that he complained to Batulan: Uncle, you hit me (Dinisgrasya nakun), but
Batulan replied: I will really kill you; that he (Dulin) ran to the upper level of
Carolina Danao's house, pursued by Batulan who stabbed him again several
times; that they grappled for the weapon until he (Dulin) was able to wrest it
from Batulan; that he (Dulin) stabbed Batulan with the weapon, and they
struggled until he (Dulin) felt weak, eventually falling to the ground; and that
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 he (Dulin) regained consciousness only the next day at the hospital. cSEDTC

Dulin insisted that there was no grudge between him and Batulan, but
interjected that the barangay captain would summon him to bring Batulan
home each time the latter got drunk at night.
Erlinda Danao, Records Officer of the Cagayan Valley Regional Hospital
in Tuguegarao, Cagayan, authenticated the hospital records showing that
Dulin had also been injured. 13
Judgment of the RTC
On December 29, 1997, the RTC rendered its decision convicting Dulin of
murder, 14 to wit:
WHEREFORE, judgment is hereby rendered finding the accused
Alfredo Dulin guilty beyond reasonable doubt of the crime of Murder,
and appreciating the privileged mitigating circumstance of incomplete
self-defense and no aggravating circumstance, this Court hereby lowers
the penalty of said crime by two degrees and hereby sentences him to
suffer the penalty of reclusion temporal in its maximum period of
imprisonment ranging from 17 years and 4 months and 1 day to 20
years and to indemnify the heirs of the victim in the amount of
P50,000.00 and to pay actual damages in the amount of P36,000.00
and moral damages for P40,000.00.
Without subsidiary imprisonment in case of insolvency and
without pronouncement as to costs.
SO ORDERED. 15

Decision of the CA
In his appeal, Dulin contended that his crime should be homicide instead
of murder, considering the RTC's appreciation of incomplete self-defense as a
privileged mitigating circumstance; and that even if self-defense should be
unavailing, he could be found guilty only of homicide because it was the
victim who had first attacked by stabbing him, and that the multiple wounds
inflicted on the victim did not mean that he had not been justified in killing
the victim. He argued that the penalty imposed on him was incorrect
considering the absence of any aggravating circumstance and the presence of
the privileged mitigating circumstance of incomplete self-defense.
On August 26, 2005, the CA affirmed the conviction subject to the
modification of the civil liability, decreeing:
The Court agrees with the OSG representing the State that the
penalty requires modification. The Court a quo committed error in the
imposition of the proper penalty. The crime committed by appellant in
the case at bench is murder qualified by treachery. There being no
aggravating and no mitigating circumstance, the proper penalty is
reclusion perpetua. Where no mitigating or aggravating circumstance
attended the commission of the crime, the medium period of the
imposable penalty, which is reclusion perpetua, should be imposed by
the trial court.
WHEREFORE, the judgment of conviction is hereby AFFIRMED
subject to the modification of the penalty and awards of damages.
Appellant ALFREDO DULIN y NARAG is hereby sentenced to suffer
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 the penalty of reclusion perpetua. The award of P36,000 actual
damages is DELETED. Appellant is ordered to pay the heirs of Francisco
Batulan P20,000 as temperate damages and P50,000 by way of moral
damages.
SO ORDERED. 16

On January 12, 2006, the CA denied Dulin's motion for reconsideration.

17

Issues
In this appeal, Dulin submits the following issues for our review and
consideration, to wit:
I
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO
APPRECIATE THE PRESENCE OF THE JUSTIFYING CIRCUMSTANCE OF
SELF-DEFENSE DESPITE CLEAR AND CONVINCING EVIDENCE
SHOWING THE ELEMENTS OF SELF-DEFENSE.
II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT
CONSIDERING SELF-DEFENSE AS A PRIVILEGED MITIGATING
CIRCUMSTANCE, IN THE EVENT THAT THE APPRECIATION OF A
COMPLETE SELF-DEFENSE IS UNAVAILING.
III
WHETHER OR NOT THE COURT OF APPEALS ERRED IN APPRECIATING
THE QUALIFYING CIRCUMSTANCE OF TREACHERY IN THE KILLING OF
FRANCISCO. 18
Ruling of the Court
The appeal is partly meritorious.
I.
There was no self-defense
The accused who pleads self-defense admits the authorship of the crime.
The burden of proving self-defense rests entirely on him, that he must then
prove by clear and convincing evidence the concurrence of the following
elements of self-defense, namely: (1) unlawful aggression; (2) reasonable
necessity of the means employed to prevent or repel the unlawful aggression;
and (3) lack of sufficient provocation on the part of the person defending
himself. 19 The most important of all the elements is unlawful aggression, 20
which is the condition sine qua non for upholding self-defense as a justifying
circumstance. Unless the victim committed unlawful aggression against the
accused, self-defense, whether complete or incomplete, should not be
appreciated, for the two other essential elements of self-defense would have
no factual and legal bases without any unlawful aggression to prevent or
repel.
Unlawful aggression as the condition sine qua non for upholding self-
defense is aptly described in People v. Nugas, 21 as follows:
Unlawful aggression on the part of the victim is the primordial
element of the justifying circumstance of self-defense. Without unlawful
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 aggression, there can be no justified killing in defense of oneself. The
test for the presence of unlawful aggression under the circumstances is
whether the aggression from the victim put in real peril the life or
personal safety of the person defending himself; the peril must not be
an imagined or imaginary threat. Accordingly, the accused must
establish the concurrence of three elements of unlawful aggression,
namely: (a) there must be a physical or material attack or assault; (b)
the attack or assault must be actual, or, at least, imminent; and (c) the
attack or assault must be unlawful.
Unlawful aggression is of two kinds: (a) actual or material unlawful
aggression; and (b) imminent unlawful aggression. Actual or material
unlawful aggression means an attack with physical force or with a
weapon, an offensive act that positively determines the intent of the
aggressor to cause the injury. Imminent unlawful aggression means an
attack that is impending or at the point of happening; it must not
consist in a mere threatening attitude, nor must it be merely imaginary,
but must be offensive and positively strong (like aiming a revolver at
another with intent to shoot or opening a knife and making a motion as
if to attack). Imminent unlawful aggression must not be a mere
threatening attitude of the victim, such as pressing his right hand to his
hip where a revolver was holstered, accompanied by an angry
countenance, or like aiming to throw a pot.
Dulin argues that the CA should have appreciated the justifying
circumstance of self-defense in his favor because all its elements had been
present in the commission of the crime.
In rejecting Dulin's argument, the CA observed that although Batulan
had initiated the attack against Dulin the unlawful aggression from Batulan
effectively ceased once Dulin had wrested the weapon from the latter. The CA
thus found and held in its assailed decision:
Appellant testified that after the initial stabbing attack on him, he
was able to take possession of the weapon and ran towards the second
level of the house of Vicente Danao, away from FRANCISCO. At that
point, the unlawful aggression against him effectively ceased. When
FRANCISCO and appellant again grappled for possession of the weapon,
appellant now became the armed protagonist, and FRANCISCO's act of
trying to wrest the weapon cannot be considered as unlawful
aggression. At that moment, appellant no longer faced any imminent or
immediate danger to his life and limb from FRANCISCO.
xxx xxx xxx
From the foregoing, it is evidently clear that FRANCISCO could no
longer be considered as unlawful aggressor. Appellant had nothing to
repel. Therefore, appellant's theory that he was merely defending
himself when he killed FRANCISCO is unavailing. A fortiori, there would
be no basis for the second requisite of self-defense. 22
We uphold the finding and holding of the CA. Batulan, albeit the initial
aggressor against Dulin, ceased to be the aggressor as soon as Dulin had
dispossessed him of the weapon. Even if Batulan still went after Dulin despite
the latter going inside the house of Danao, where they again grappled for
control of the weapon, the grappling for the weapon did not amount to
aggression from Batulan for it was still Dulin who held control of the weapon
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 at that point. Whatever Dulin did thereafter — like stabbing Batulan with the
weapon — constituted retaliation against Batulan. In this regard, retaliation
was not the same as self-defense. In retaliation, the aggression that the victim
started already ceased when the accused attacked him, but in self-defense, the
aggression was still continuing when the accused injured the aggressor. 23 As
such, there was no unlawful aggression on the part of Batulan to justify his
fatal stabbing by Dulin.
Still, Dulin vigorously insists that the initial aggression employed by
Batulan did not cease because the latter followed him into Danao's house with
the singular purpose of ending his life; and that there was no gap in the
aggression initiated by Batulan. 24
The insistence is unwarranted. Dulin admitted having successfully
disarmed Batulan and then running away from him. With the aggression by
Batulan having thereby ceased, he did not anymore pose any imminent threat
against Dulin. Hence, Batulan was not committing any aggression when Dulin
fatally stabbed him.
It is notable, too, that the results of the medico-legal examination
indicating Batulan to have sustained twelve stab wounds 25 confirmed the
cessation of the attack by Batulan. The numerosity and nature of the wounds
inflicted by the accused reflected his determination to kill Batulan, and the
fact that he was not defending himself. 26
II.
Incomplete self-defense was not proved
Pursuant to Article 69 of the Revised Penal Code, the privileged
mitigating circumstance of incomplete self-defense reduces the penalty by one
or two degrees than that prescribed by law. For this purpose, the accused must
prove the existence of the majority of the elements for self-defense, but
unlawful aggression, being an indispensable element, must be present. Either
or both of the other requisites may be absent, namely: reasonable necessity of
the means employed to prevent or repel it, or the lack of sufficient
provocation on the part of the person defending himself. 27
Dulin posits that the totality of circumstances indicated that his acts
constituted incomplete self-defense, and must be appreciated as a privileged
mitigating circumstance. 28
Dulin's position is untenable. Like in complete self-defense, Dulin should
prove the elements of incomplete self-defense by first credibly establishing
that the victim had committed unlawful aggression against him. With
Batulan's aggression having already ceased from the moment that Dulin
divested Batulan of the weapon, there would not be any incomplete self-
defense. Moreover, as borne out by his stabbing of Batulan several times,
Dulin did not act in order to defend himself or to repel any attack, but instead
to inflict injury on Batulan.
III.
The RTC and CA erred in appreciating
the attendance of treachery
Murder is the unlawful killing of any person attended by any of the
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 circumstances listed Article 248 of the Revised Penal Code. Treachery, which
was alleged in the information, is one such qualifying circumstance.
There is treachery when the offender commits any of the crimes against
persons, employing means and methods or forms in the execution thereof
which tend to directly and specially ensure its execution, without risk to
himself arising from the defense which the offended party might make. 29 Two
conditions must concur in order for treachery to be appreciated, namely: one,
the assailant employed means, methods or forms in the execution of the
criminal act which give the person attacked no opportunity to defend himself
or to retaliate; and two, said means, methods or forms of execution were
deliberately or consciously adopted by the assailant. 30 Treachery, whenever
alleged in the information and competently and clearly proved, qualifies the
killing and raises it to the category of murder. 31
Based on the established facts, Dulin and Batulan grappled for control of
the weapon Batulan had initially wielded against Dulin, who divested Batulan
of it and ran with it into the house of Danao, with Batulan in immediate
pursuit. They continued to grapple for the weapon inside the house of Danao,
and it was at that point when Dulin stabbed Batulan several times. Under the
circumstances, treachery should not be appreciated in the killing of Batulan
because the stabbing by Dulin did not take Batulan by surprise due to his
having been sufficiently forewarned of Dulin's impending assault, 32 and being
thus afforded the opportunity to defend himself, or to escape, or even to
recover control of the weapon from Dulin. The essence of treachery is that the
attack comes without warning, or is done in a swift, deliberate and
unexpected manner, affording the hapless, unarmed and unsuspecting victim
no chance to resist or to escape, without the slightest provocation on the part
of the victim. 33 The mode of attack must not spring from the unexpected turn
of events.
Consequently, Dulin should be liable only for homicide, the penalty for
which is reclusion temporal. 34 There being no aggravating or mitigating
circumstances, the penalty is imposed in its medium period (i.e., 14 years,
eight months and one day to 17 years and four months). The indeterminate
sentence of Dulin is, therefore, eight years and one day of prision mayor, as
the minimum, to 14 years, eight months and one day of reclusion temporal,
with full credit of his preventive imprisonment, if any.
Anent the civil liability, the CA ordered the accused to pay to the heirs of
Batulan P20,000.00 as temperate damages and P50,000.00 as moral
damages. We modify the awards, and grant to the heirs of Batulan
P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00
as temperate damages. Indeed, the current judicial policy sets the civil
indemnity for death caused by a crime at P50,000.00. In addition, the heirs of
the victim are entitled to moral damages of P50,000.00. The civil indemnity
and moral damages are allowed even without allegation and proof, it being a
certainty that the victim's heirs were entitled thereto as a matter of law.
Temperate damages of P25,000.00 should further be granted to the heirs of
the victim for they were presumed to have spent for his interment. It would
be unjust to deny them this amount for the reason that they were not able to
establish the actual expenditure for his interment with certainty. 35
In line with recent jurisprudence, 36 interest of 6% per annum shall be
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 charged on all the items of the civil liability fixed and imposed herein,
computed from the date of the finality of this decision until the items of the
civil liability shall be fully paid.
WHEREFORE, the Court MODIFIES the judgment promulgated on
August 26, 2005 by finding ALFREDO DULIN Y NARAG guilty beyond
reasonable doubt of HOMICIDE, and SENTENCES him to suffer the
indeterminate sentence of EIGHT YEARS AND ONE DAY OF PRISION
MAYOR, AS THE MINIMUM, TO 14 YEARS, EIGHT MONTHS AND ONE
DAY OF RECLUSION TEMPORAL, with full credit of his preventive
imprisonment; ORDERS him to pay to the heirs of Francisco Batulan
P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00
as temperate damages, plus interest of 6% per annum on each item reckoned
from the finality of this decision until full payment; and DIRECTS him to pay
the costs of suit. SDAaTC

SO ORDERED.
Sereno, C.J., Leonardo-de Castro, Perez and Perlas-Bernabe, JJ., concur.
Footnotes
1. Rollo, pp. 33-56; penned by Associate Justice Japar B. Dimaampao, with the
concurrence of Associate Justice Renato C. Dacudao (retired) and Associate
Justice Edgardo P. Sundiam (retired/deceased).
2. CA rollo, pp. 21-30; penned by Judge Loreto Cloribel-Purugganan.

3. Rollo, pp. 33-34.

4. Id. at 35-36.
5. Id. at 36.
6. Id. at 37.
7. Id.

8. Records, p. 8.
9. Records, pp. 8-11.
10. Records, p. 213.
11. Rollo, p. 35.

12. Id. at 37.

13. Id. at 39.
14. Supra note 2.
15. Id. at 30.
16. Rollo, p. 55.

17. Id. at 57-58.

18. Id. at 13-14.
19. Rimano v. People, G.R. No. 156567, November 27, 2003, 416 SCRA 569, 576.
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 20. People v. Dolorido, G.R. No. 191721, January 12, 2011, 639 SCRA 496, 503.
21. G.R. No. 172606, November 23, 2011, 661 SCRA 159, 167-168.

22. Supra note 1, at 41-44.

23. People v. Gamez, G.R. No. 202847, October 23, 2013, 708 SCRA 625, 636.
24. Rollo, p. 20.
25. Id. at 121.

26. Sienes v. People, G.R. No. 132925, December 13, 2006, 511 SCRA 13, 25.
27. Mendoza v. People, G.R. No. 139759, January 14, 2005, 448 SCRA 158, 161-
162.

28. Rollo, p. 26.

29. Article 14, paragraph 16, Revised Penal Code.
30. People v. Flores, G.R. No. 137497, February 5, 2004, 422 SCRA 91, 97.
31. People v. Sarabia, G.R. No. 106102, October 29, 1999, 317 SCRA 684, 694.

32. People v. Placer, G.R. No. 181753, October 9, 2013, 707 SCRA 199, 210.
33. People v. Warriner, G.R. No. 208678, June 16, 2014, 726 SCRA 470, 479.
34. Article 249, Revised Penal Code.
35. See People v. Isla, G.R. No. 199875, November 21, 2012, 686 SCRA 267, 283.
36. Sison v. People, G.R. No. 187229, February 22, 2012, 666 SCRA 645, 667.

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