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Republic of the Philippines Department of Justice National Prosecutors Service Provincial Prosecution Office Sta.

Cruz, Laguna

MATH TAPANG, Complainant vs MACK KULET, Respondent NSP Docket no. 001 for Frustrated Murder

x-------------------------------------x RESOLUTION The respondent, Mack Kulet, was charged with the crime of FRUSTRATED MURDER in a complaint filed by Math Tapang. In support of the complaint, the herein complainant attached the following documents : 1) Affidavit of Kris Tsuper and 2) Medical Certificate of Math Tapang. Statement of Facts Based on the affidavits and counter affidavits submitted by the complainant and the respondent and the evidence presented. The foregoing facts were established. That, on the night of July 8, 2013 at around 9:00 p.m. at Brgy. Magulo, Santo, Laguna, complainant Math Tapang, together with his friend Kris Tsuper, were at the Videoke bar of Aling Ganda, singing and having a drink over some bottle of beer. On that evening, the respondent Mack Kulet and his wife Missy Kulet were also at the same Videoke bar. It was undisputed that there was an altercation which ensued between Mack Kulet and Kris Tsuper, such vehement quarrel resulted in injuries sustained by herein complainant, Math Tapang, and supported by a Medical certificate labeled as Annex A. The medical certificate, examined and certified by a licensed physician, stating among other things, that the herein complainant, Math Tapang, suffered wounds obtained from fragments of a broken bottle. The healing period of which is more than 30 days. As to who and how the injuries were inflicted, two conflicting versions were presented. The version of the complainant narrates that while he and his friend Kris Tsuper, were singing on the Videoke and having a drink over some bottles of beer, the respondent borrowed the songlist, and when the complainant and his friend were unable to immediately handover the songlist to respondent, the latter got angry and an altercation ensued. The respondent got hold of a bottle of beer, broke it and attacked Math Tapang, hitting him on the buttocks. The respondent refrained from attacking only when the other who witnessed the incident came to their rescue and pacify them. An affidavit, consistent with the facts alleged by the complainant was executed by Kris Tsuper and attached together with the complaint. The respondent denied the allegations and come up with his own version, in his counter affidavit, he stated that when he borrowed the songlist, Math Tapang who was obviously drunk, threw it on him, hitting his face. When he asked calmly what is the problem, Math Tapang replied angrily bakit, lalaban ka? and immediately wiped all the bottles of beer on top of their table thus breaking or shattering those bottles when it the ground. Kris Tsuper boxed the respondent, however Math Tapang pacified the two by embracing the respondent. That while embracing, the

respondent lost his balance thereby causing him and Math Tapang to fall on the ground where the broken bottles were scattered, causing the latters back to fall towards the scattered broken bottles. Analyses, Findings and Recommendations From an analyses of the facts presented and upon personal examination of the complainant and his witness and the evidence to support the complaint, thereby shows that there is a reasonable ground to believe that a crime has been committed. The respondent was accused of Frustrated Murder. Article 248 of the Revised Penal Code states: Article 248. Murder Any person who, not falling within the provisions of Article 246, shall kill another, shall be guilty of murder and shall be punished by reclusion perpetua to death if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity; 2. In consideration of a price, reward or promise; 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or other public calamity; 5. With evident premeditation; 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. Article 6 of the Revised Penal Code, on the other hand provides that: A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. The facts and circumstances presented before us, is not indicative that Frustrated Murder is the proper charge. For frustrated murder to be appreciated, circumstances must clearly indicate the attendance of the qualifying circumstances enumerated in Art. 248 of the Revised Penal Code, that being essential elements of the crime. None of the circumstances enumerated in Art. 248 were proved or alleged by the complainant or attendant under the circumstances. The absence of which will not qualify a crime to murder in its frustrated stage. The principal and essential element of attempted or frustrated murder is the intent on the part of the assailant to take the life of the person attacked. Such intent must be proved in a clear and evident manner to exclude every possible doubt as to the homicidal intent of the aggressor ( People v. Pagador, 409 Phil. 338, 351). In the present case, intent to kill the complainant could not be inferred from the surrounding circumstances. The complainant was only injured in the buttocks and did not hit any vital part of his body. When such intent is lacking but wounds are inflicted upon the victim, the crime is not attempted murder but physical injuries only (Pentecoste vs. People, G.R. no. 167766, 2010).

The Medical certificate issued by the physician who attended Math Tapang stated that the wound would only require less than 30 days of medial attendance. The crime committed is believed to be less serious physical injuries only. Less serious physical injury suffered is defined under Article 265 of the Revised Penal Code, which provides that "Any person who inflicts upon another physical injuries not described as serious physical injuries but which shall incapacitate the offended party for labor for ten (10) days or more, or shall require medical attendance for the same period, shall be guilty of less serious physical injuries and shall suffer the penalty of arresto mayor." Wherefore, in view of the foregoing, finding probable cause that a crime has been committed. It is most respectfully submitted that the respondent be properly charged with Less Serious Physical Injuries instead of Frustrated Murder as originally filed in the affidavit complaint and recommends that an information to be filed against the respondent Mack Kulet.

Sta. Cruz, Laguna, July 16, 2013 Atty. Maria Maganda Assist. Provincial Prosecutor

Approved by: Atty. Jose Maria Sungit Chief Provincial Prosecutor

copy furnished : Mack Kulet, Brgy. Maligaya, Santo, Laguna