FIRST DIVISION

[G.R. No. 149152. February 2, 2007.]

RUFINO S. MAMANGUN, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

GARCIA, J : p

In this petition for review under Rule 45 of the Rules of Court, petitioner
Rufino Mamangun y Silverio seeks the reversal of the Decision 1 dated January
19, 2001 (promulgated on February 13, 2001) of the Sandiganbayan in its
Criminal Case No. 21131, convicting him of the crime of Homicide.
The factual backdrop:

On September 12, 1994, herein petitioner, then a police officer, was

charged before the Sandiganbayan with the crime of Murder, allegedly
committed, per the indicting Information, 2 docketed as Criminal Case No.
21131, as follows:
That on or about the 31st day of July 1992, in the Municipality of
Meycauyan, (sic) Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused Rufino S.
Mamangun, a public officer, being then a Police Officer (PO2), duly
appointed as such and acting in relation to his office, armed with a
gun, with intent to kill, did then and there willfully, unlawfully and
feloniously, with treachery, evident premeditation and abuse of
superior strength, attack, assault and shoot one Gener M. Contreras
with the said gun, hitting the latter on his body, thereby inflicting (sic)
him serious physical injuries which directly cause (sic) his death.
CONTRARY TO LAW.

On arraignment, petitioner, as accused below, duly assisted by a counsel

de oficio, entered a plea of "Not Guilty."
In the ensuing trial, the prosecution presented in evidence the testimonies
of Crisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero,
then the designated Medico-Legal Officer of Bulacan who performed an autopsy
on the cadaver of the victim.
For its part, the defense adduced in evidence the testimonies of the
accused himself, Rufino Mamangun, his co-policemen at the Philippine National
Police (PNP), namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and Police
Investigator SPO-1 Hernando B. Banez, all assigned at the Meycauayan Police
Station; and those of Lorenzo S. Abacan and Rogelio Ingco, son and son-in-law,
respectively, of Antonio Abacan, owner of the house on which rooftop the
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shooting of the victim took place.

It is not disputed that on July 31, 1992, at about 8:00 in the evening, in
Brgy. Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard
shouting, " Magnanakaw . . . Magnanakaw." Several residents responded and
thereupon chased the suspect who entered the yard of Antonio Abacan and
proceeded to the rooftop of Abacan's house.
At about 9:00 o'clock that same evening, the desk officer of the
Meycauayan PNP Police Station, upon receiving a telephone call that a robbery-
holdup was in progress in Brgy. Calvario, immediately contacted and
dispatched to the scene the crew of Patrol Car No. 601 composed of Team
Leader SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein petitioner
PO2 Rufino S. Mamangun; and Patrol Car No. 602 composed of Team Leader
PO3 Sandiego San Gabriel, with PO2 Carlito Cruz and PO2 Hobert Diaz. With the
permission of Abacan, petitioner Mamangun, PO2 Diaz and PO2 Cruz went to
the rooftop of the house whereat the suspect was allegedly taking refuge. AacCHD

The three policemen, i.e ., petitioner, Diaz and Cruz, each armed with a
drawn handgun, searched the rooftop. There, they saw a man whom they
thought was the robbery suspect. At that instance, petitioner Mamangun, who
was walking ahead of the group, fired his handgun once, hitting the man. The
man turned out to be Gener Contreras (Contreras) who was not the robbery
suspect.
Contreras died from the gunshot wound. The autopsy conducted by Dr.
Benito B. Caballero yielded the following findings:
The cause of death was "Shock due to massive external and
internal hemorrhage due to multiple gunshot wounds in the left arm
side of the thorax, penetrating the left lung and vertebral column."
There were several wounds caused by one (1) bullet.

As shown on the sketch of human body attached to the

Certificate of Death, and as testified on by Dr. Caballero, the bullet
entered through the "lower third of the left arm, left side of the thorax
and it penetrated the left lung and vertebral column and that is where
the slug was found." From a layman's appreciation of the sketch, the
bullet entered the outer, upper left arm of the victim, exited through
the inner side of the said upper left arm, a little lower than the left
armpit and the slug lodging on the victim's back where it was
recovered at the vertebral column. 3

From the foregoing admitted or undisputed facts, the prosecution and the
defense presented conflicting versions as to how the fatal shooting of Contreras
by petitioner Mamangun actually happened.
According to Ayson, the lone eyewitness for the prosecution, he
accompanied the three policemen (Mamangun, Diaz and Cruz) to the rooftop of
Abacan's house. He was following petitioner Mamangun who was ahead of the
group. They passed through the second-floor door of the house to the rooftop.
The roof was lighted by an incandescent bulb from an adjacent house. He was
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beside Mamangun when they saw, some four to five arms-length away, a man
whom he (witness) recognized as Gener Contreras. Mamangun pointed his .45
cal. pistol at the man, who instantly exclaimed, "Hindi ako, hindi ako !," to which
Mamangun replied, " Anong hindi ako ?" Before he (Ayson) could say anything,
Mamangun fired his gun, hitting the man who turned out to be Contreras. He
(witness) approached the victim who was then lying on his left side
unconscious. He brought down the victim and they rushed him to the hospital
where he died at about 10:00 o'clock that same evening.
The defense has its own account of what purportedly actually transpired.
PO2 Mamangun, along with PO2 Cruz and PO2 Diaz, denied the presence
of Ayson at the rooftop during the shooting incident. Corroborating one another,
the three testified that they were the only ones at the scene of the shooting,
and that it was dark. They claimed that each of them, with Mamangun on the
lead, went on separate directions around a water tank. As they met each other
at the other side of the tank, PO2 Cruz pointed to a person crouching at the
edge of the roof of the garage. Thinking that the person was the suspect they
were looking for, Mamangun chased said person. They announced that they
were police officers but the person continued to run in a crouching position
until Mamangun caught up with him and shouted, "Pulis. Tigil ," whereupon the
person suddenly stopped, turned around, faced Mamangun, and raised a
stainless steel pipe towards the latter's head but Mamangun was able to evade
the attack. This prompted Mamangun to shoot the person on the left arm. All
three claimed that it was only at this point that PO2 Cruz and Diaz approached
Contreras who told them, "Hindi ako. Hindi ako ." Mamangun went near
Contreras and asked, " Why did you go to the rooftop? You know there are
policemen here." Contreras was thereafter brought to the hospital where he
died. After the shooting incident, Mamangun reported the same to the desk
officer, PO1 Filomeno de Luna, who advised him to remain in the police station.
De Luna directed Police Investigator Hernando Banez to investigate the
incident. That same evening, Investigator Banez went to the place where the
shooting happened. Banez allegedly found a steel pipe about three (3) feet long
on the depressed portion of the roof. STaIHc

On January 19, 2001, after due proceedings, the Sandiganbayan came out
with its decision 4 finding the petitioner guilty beyond reasonable doubt of only
the crime of Homicide. In so finding, the Sandiganbayan did not appreciate the
presence of the aggravating circumstances of treachery, evident premeditation
and abuse of superior strength to qualify the killing to Murder. But even as the
said court rejected the petitioner's claim that the shooting was justified by self-
defense, it nonetheless ruled that the crime of Homicide was attended by an
incomplete justifying circumstance of the petitioner having acted in the
performance of his duty as a policeman, and also appreciated in his favor the
generic mitigating circumstance of voluntary surrender. Dispositively, the
decision reads:
WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby
found GUILTY beyond reasonable doubt of the crime of Homicide,
defined and penalized under Article 249, Revised Penal Code, and
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taking into account the attendance of one (1) privileged mitigation (sic)
circumstance, one generic circumstance and no aggravating
circumstance, he is hereby sentenced under the Indeterminate
Sentence Law, to suffer the penalty of imprisonment of from Three (3)
Years and Three (3) Months of prision correccional as minimum, to
Seven (7) years of prision mayor, as maximum, to indemnify the heirs
(parents) of Gener Contreras in the total amount of P352,025.00, and
to past the costs.
SO ORDERED.

Unable to accept the judgment of conviction, petitioner is now with this

Court via the present recourse alleging that the Sandiganbayan committed
reversible error in failing to apply paragraph 5, Article 11 of the Revised Penal
Code, which would have absolved him from criminal liability on the basis of his
submission that the shooting in question was done in the performance of a duty
or in the lawful exercise of a right or office.

First off, petitioner insists that the shooting, which ultimately caused the
demise of Contreras, was justified because he was repelling Contreras' unlawful
attack on his person, as Contreras was then about to strike him on the head
with a steel pipe.

We are not persuaded.

Well-settled is the rule that factual findings of the Sandiganbayan are
conclusive upon the Court except where: (1) the conclusion is a finding
grounded entirely on speculations, surmises and conjectures; (2) the inference
made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on misapprehension of facts and the findings of fact are
premised on the absence of evidence and are contradicted by the evidence on
record. 5 None of these exceptions obtains in this case.

Having admitted 6 the fatal shooting of Contreras on the night of July 31,
1992, petitioner is charged with the burden of adducing convincing evidence to
show that the killing was done in the fulfillment of his duty as a policeman.
The justifying circumstance of fulfillment of duty under paragraph 5,
Article II, of the Revised Penal Code may be invoked only after the defense
successfully proves that: (1) the accused acted in the performance of a duty;
and (2) the injury inflicted or offense committed is the necessary consequence
of the due performance or lawful exercise of such duty. 7
Concededly, the first requisite is present in this case. Petitioner, a police
officer, was responding to a robbery-holdup incident. His presence at the situs
of the crime was in accordance with the performance of his duty. However,
proof that the shooting and ultimate death of Contreras was a necessary
consequence of the due performance of his duty as a policeman is essential to
exempt him from criminal liability. HCSDca

As we see it, petitioner's posturing that he shot Contreras because the

latter tried to strike him with a steel pipe was a mere afterthought to exempt
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him from criminal liability.
We see no plausible basis to depart from the Sandiganbayan's findings
that there was no reason for the petitioner to shoot Contreras. The latter was
unarmed and had already uttered, "Hindi po ako, Hindi po ako " before the
petitioner fatally shot him on the left arm. Prosecution witness Ayson, who was
then behind the petitioner when the latter shot Contreras, testified that to the
victim's utterances, the petitioner even responded, " Anong hindi ako ," and
immediately shot Contreras. 8 As correctly observed by the Sandiganbayan:
Besides being self-serving (with respect to the accused) and
biased (with respect to his co-policemen-witnesses), We find (1) the
claim of the accused and his co-policemen-witnesses that the victim
(Contreras) attacked the said accused and (2) their seemingly
"positive" identification of the stainless steel pipe (more of a rod) as his
weapon, to be of doubtful credibility, for the following reasons:

(1) We have no doubt that, as claimed by PO2 Carlito Cruz

and PO2 Hobert Diaz, the three policemen appropriately identified
themselves as police officers as they started chasing the man they saw
"crouching," and, as claimed by accused PO2 Rufino Mamangun, that,
as he was about to catch up with said man, he shouted, "Pulis! Tigil!"
With all these introductions and forewarnings, it is utterly incredible
and contrary to human experience that, that man, later identified to be
Gener Contreras and admittedly not the person they were looking for,
purportedly armed only with a stainless steel "lead" pipe (more of a
rod) would suddenly stop, turn around and attack one of the three
policemen who were chasing him, one after the other, with drawn
guns.
(2) When the victim (Gener Contreras) fell down after being
shot by accused PO2 Mamangun, and as the latter went near the fallen
victim, said accused asked, "Why did you go to the rooftop. You know
there are policemen here." He admits that he did not ask the victim,
"Why did you try to hit me, if you are not the one?" This admission
clearly belies the claim of the police-witnesses that Gener Contreras
attacked the accused policeman with an iron pipe when he was shot,
for the accused should have asked the latter question.

(3) The location of the entry of the bullet fired by accused

Mamangun which is at the outer left arm at about the bicep of the
victim and its trajectory as it penetrated his body hitting his vital
organs along the way belies the claim of the accused that the victim
was facing him and had just missed his head with an iron pipe, as
instead the victim must have instinctively shielded his body with his
left arm.

Moreover, petitioner's pretense that Contreras struck him with a steel

pipe is intriguing. As it is, petitioner did not report the same to Police
Investigator Banez when he reported back to the police station after the
shooting incident. It was only when a lead pipe was recovered from the scene
and brought to the police station that petitioner conveniently remembered
Contreras trying to hit him with a pipe. Such a vital information could not have
escaped the petitioner's mind. We are thus inclined to believe that the alleged
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actuation of Contreras, which could have justified petitioner's shooting him, was
nothing but a concocted story to evade criminal liability. Indeed, knowing that
he shot Contreras, the least that the petitioner should have done was to bring
with him to the police station the very pipe with which Contreras tried to attack
him. As borne by the evidence, however, it was only after a police investigator
referred to the scene that the lead pipe surfaced.

Petitioner would likewise argue that the testimony of prosecution witness

Ayson was incredible and riddled with inconsistencies. CAETcH

The alleged contradictions cited by the petitioner, i.e. where the victim
was shot, where he died, and as to whether Ayson left his house after the
shooting incident, are but minor details which do not affect Ayson's credibility.
We have held time and again that few discrepancies and inconsistencies in the
testimony of a witness referring to minor details and not in actuality touching
upon the central fact of the crime, do not impair his credibility. Quite the
contrary, such minor inconsistencies even tend to strengthen credibility
because they discount the possibility that the testimony was rehearsed. 9
For sure, the record reveals that Ayson's answers to the questions
propounded by the defense counsel are clear and categorical. As to where the
victim died, Ayson clarified that the victim was already at the rooftop even
before the arrival of the police officers. As to why he was not able to warn
Mamangun that the victim was his relative, Ayson explained that he was not
able to utter any word because when Contreras said " Hindi ako. Hindi ako ,"
petitioner suddenly fired at the latter. 10 As to the claim that Ayson was also on
the roof, record shows that the robbery-holdup happened at around 8:00 in the
evening. Before the policemen arrived, Ayson and Contreras were already
pursuing the robber. 11 Ayson also testified that when the victim was shot by
the petitioner, the former fell on his left side unconscious; that he did not leave
his house after the incident because he was afraid that the policemen would
detain him. 12

Self-defense, whether complete or incomplete, cannot be appreciated as

a valid justifying circumstance in this case. For, from the above admitted,
uncontroverted or established facts, the most important element of unlawful
aggression on the part of the victim to justify a claim of self defense was
absent. Lacking this essential and primary element of unlawful aggression,
petitioner's plea of self-defense, complete or incomplete, must have to fail.
To be sure, acts in the fulfillment of a duty, without more, do not
completely justify the petitioner's firing the fatal gunshot at the victim. True,
petitioner, as one of the policemen responding to a reported robbery then in
progress, was performing his duty as a police officer as well as when he was
trying to effect the arrest of the suspected robber and in the process, fatally
shoot said suspect, albeit the wrong man. However, in the absence of the
equally necessary justifying circumstance that the injury or offense committed
be the necessary consequence of the due performance of such duty, there can
only be incomplete justification, a privileged mitigating circumstance under
Articles 13 and 69 of the Revised Penal Code.
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There can be no quibbling that there was no rational necessity for the
killing of Contreras. Petitioner could have first fired a warning shot before
pulling the trigger against Contreras who was one of the residents chasing the
suspected robber.
All told, we find no reversible error committed by the Sandiganbayan in
convicting the petitioner of the crime of Homicide attended by the privileged
mitigating circumstance of incomplete justifying circumstance of having acted
in the performance of his duty as a policeman and the generic mitigating
circumstance of voluntary surrender.

IN VIEW WHEREOF, the instant petition is DENIED and the assailed

decision of the Sandiganbayan is AFFIRMED in all respects.

No pronouncement as to costs.
SO ORDERED.
Puno, C.J., Sandoval-Gutierrez, Corona and Azcuna, JJ., concur.

Footnotes
1. Penned by Associate Justice Nicodemo T. Ferrer with Associate Justices
Narciso S. Nario and Rodolfo G. Palatao, concurring; Rollo , pp. 25-46.
2. Sandiganbayan Record, Vol. I, p. 1.
3. As culled from the Sandiganbayan decision, Id. at 29.
4. Supra note 1.
5. Resoso v. Sandiganbayan, G.R. No. 124140, November 25, 1999, 319 SCRA
238, 244.
6. TSN, p. 11; Hearing on May 27, 1996.

7. People v. Cawaling , G.R. No. 117970, July 28, 1998, 293 SCRA 267.
8. TSN, pp. 22, 29. Hearing on March 23, 1995.
9. People v. Givera , G.R. No. 132159, January 18, 2001, 349 SCRA 513, 530. ADCIca

10. TSN, pp. 9-10, March 23, 1996.

11. Ibid at p. 20.
12. Ibid at p. 15.

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