Incredible

If the injury inflicted or offense committed is the necessary consequence of the due performance of a duty, the offender may be absolved from criminal liability. However, the proof of this justifying circumstance must not be utterly incredible and contrary to human experience as shown in this case of Rudy, a policeman.

The incident started one evening at about 8 p.m. in a suburban neighborhood when a certain Lily was heard shouting "magnanakaw", "magnanakaw". Several residents responded and thereupon chased the suspect who fled to the rooftop of Ambo’s residence. Among those who gave chase were Ato and Gerry, relatives of Lily.

At about 9 p.m. that same evening, the police dispatched mobile crew composed of SPO1 Andy, PO2 Gene and PO2 Rudy. With the permission of Ambo, the owner of the house, Rudy, Gene and Andy went to the rooftop where the suspect was hiding. The three policemen, with drawn guns searched the rooftop. There they saw a man whom they thought was the suspect. Thinking that the person was the suspect, Rudy who was walking ahead of the group chased him and shouted "Pulis tigil" and fired his handgun once, hitting the man. The man turned out to be Gerry who was not the robbery suspect. Gerry died from the gunshot wound caused by the bullet that entered the lower third of the left arm, left side of the thorax also penetrating the left lung and the vertebral column where the slug was found.

As a result, Rudy was charged with murder for attacking, assaulting and shooting Gerry with intent to kill and with evident premeditation, treachery and abuse of superior strength.

The prosecution and defense presented conflicting versions as to how the fatal shooting actually happened. According to Ato the lone eyewitness for the prosecution, he accompanied the three policemen to the rooftop. He said he was following Rudy 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 the adjacent house. He was beside Rudy when they saw some four arms length away a man whom he recognized as Gerry. Rudy pointed his gun at the man who instantly exclaimed "hindi ako" "hindi ako", to which Rudy replied, "Anong hindi ako?’. Before he could say anything, Ato said that Rudy fired his gun hitting the man who turned out to be Gerry. He approached the victim who was then lying on the left side unconscious, brought him down and rushed him to the hospital where he died at about 10 p.m.

But Rudy and his companions had their own account of what happened. They all denied that Ato was with them at the rooftop. Corroborating one another, they testified that the rooftop was dark and each of them, with Rudy on the lead went on separate directions around a water tank. As they met each other at the other side of the tank, Rudy pointed to a person crouching at the edge of the garage roof. Thinking that the person was the suspect they were looking for, Rudy chased him. They then announced that they were police officers but the person continued to run in a crouching position, until Rudy caught up with him and shouted, "Pulis tigil", whereupon the person suddenly stopped, turned around, faced Rudy, and raised a stainless steel pipe towards Rudy’s head but the latter was able to evade the attack. This prompted Rudy to shoot the person on the left arm. All three claimed that it was only at this point that PO2 Andy and Gene approached Gerry who told them "hindi ako" "hindi ako". Rudy then went near Gerry and asked "why did you go to the rooftop, you know there are policemen here?" Gerry was then brought to the hospital while Rudy went back to the police station reported the incident to the desk officer. He did not mention about Gerry’s attacking him on the head or submitted the steel pipe used The steel pipe was only found later on when an investigator went back to the place to investigate.

The Sandiganbayan however still convicted Rudy, but only of homicide. It rejected Rudy’s claim of self-defense but ruled that the crime was attended by an incomplete justifying circumstance of Rudy having acted in the performance of his duty as policeman. His voluntary surrender was also considered mitigating so he was sentenced to a minimum of 3 years and 3 months up to maximum of 7 years imprisonment.

Rudy still questioned this decision. He insisted that he should be absolved from criminal liability because the shooting was done in the performance of a duty or in the lawful exercise of right or office. Was Rudy correct?

No. Concededly his presence at the scene site of the crime was in accordance with the performance of his duty. But acts in the fulfillment of a duty without more, do not completely justify Rudy’s firing of the fatal gunshot at the victim. He must prove that the shooting and ultimate death of Gerry was a necessary consequence of the due performance of his duty as a policeman.

The claim of Rudy and his companions that Gerry attacked him with a stainless steel pipe is of doubtful credibility and nothing but a concocted story to evade criminal liability. With all the introductions and forewarnings by the police as they testified, it is utterly incredible and contrary to human experience that Gerry, purportedly armed only with a stainless steel pipe would suddenly stop, turn around and attack one of the three policemen who were chasing him, one after the other with drawn guns. Besides, the location and entry of the bullets fired by Rudy which is at the outer left arm and its trajectory as it entered the body hitting vital organs along the way belies Rudy’s claim that the victim was facing him and had just missed his head with an iron pipe. Instead this shows that the victim must have instinctively shielded his body with his left arm. Moreover, if he indeed shot Gerry when the latter struck him with a steel pipe, the least that Rudy should have done was to bring with him to the police station the very pipe with which Gerry tried to attack him. As it is he did not even report the same to the police investigator when he came back to the station after the shooting incident. It was only when a lead pipe was recovered from the scene and brought to the police station that Rudy conveniently remembered Gerry trying to hit him with a pipe. The decision of the Sandiganbayan is therefore correct (Mamangun vs. People, G.R. 149152, February 2, 2007)

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