REPUBLIC OF THE PHILIPPINES

TH
9 MUNICPAL CIRCUIT TIAL COURT
Second Judicial Region
CABATAUAN-LUNA
Cabatuan, Isabela

THE PEOPLE OF THE

PHILIPPINES
Plaintiff, CRIM. CASE NO. 2022-908
FOR: RECKLESS IMPRUDENCE
RESUTING IN SERIOUS PHYSICAL
Vs. INJURIES AND DAMAGE TO
PROPERTY

EDGAR B. TORIBIO,
Accused.
X----------------------------------------------------------------------------------X

JUDICIAL COUNTER-AFFIDAVIT

I, Edgar B. Toribio, Filipino, of legal age, with postal address at

Barangay Flores, Naguilian, Isabela, after being sworn in accordance with law,
do hereby depose and state that:

1. I am the Accused (hereafter referred to as “Accused”) in this case

for alleged commission of the crime of Reckless Imprudence Resulting in
Serious Physical Injuries and Damage to Property under Article 365 of the
Revised Penal Code.

2. The private complaint is in connection with the injuries sustained

by Rodelio Doroni y Domingo (hereafter referred to as “Private
Complainant”), resulting from an accident that happened at around 3:30 pm,
on September 9, 2022, along Barangay Road of San Isidro, Luna, Isabela.

3. The prosecution failed to establish all the elements of the crimes

of Reckless Imprudence as provided for by Article 365 of the Revised Penal
Code.

TIMELINESS OF THIS AFFIDAVIT

4. I received on November 21, 2022 through the Philippine National

Police – Luna the court’s order dated November 3, 2022 to file my counter-
affidavit, affidavit of my witnesses and other evidence.
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STATEMENT OF FACTS

5. On September 9, 2022, at around 3:30 in the afternoon, I was

driving along Barangay Road of San Isidro, Luna, Isabela.

6. As I was approaching the Macugay area, I am only driving at

minimum speed of 40 kilometers per hour (kph) and I honked the car horn
three times to give warning for any vehicle that may cross. But I was surprised
when the complainant recklessly made a sudden left turn ignoring my
warning horns and suddenly appeared in front of the vehicle that I am driving.
I have tried to stop and drive the vehicle onto the left direction to avoid
collision but it was already too late as the complainant was already in front of
me.

7. As a result, the private complainant’s motorcycle bumped the

right flasher and right side mirror of the vehicle I am driving and damaged
the same due to the impact.

8. The complainant was immediately brought to United Isabela

Doctors Medical Center in Cauayan City, Isabela.

9. I honestly believe that this case filed against me must be

dismissed based on the following discussions:

The prosecution failed to establish all the

elements of the crime of Reckless
Imprudence defined under Article 365 of
the RPC.

10. The prosecution gravely failed to establish all the elements of

Reckless Imprudence as defined under Article 365. Reckless imprudence is
defined as follows:

“Art. 365. Imprudence and negligence. – xxx

Reckless imprudence consists in voluntarily,

but without malice, doing or failing to do an act from
which material damage results by reason of
inexcusable lack of precaution on the part of the
person performing or failing to perform such act,
taking into consideration his employment or occupation,
degree of intelligence, physical condition and other
circumstances regarding persons, time and place.
xxx” (Emphasis supplied)
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11. In Ofracio vs. People of the Philippines1, the Supreme Court

enumerated the elements of Reckless Imprudence, to wit:

“It has the following elements:

(1) that the offender does or fails to do an act; (2) that

the doing or the failure to do that act is voluntary; (3)
that it be without malice; (4) that material damage
results from the reckless imprudence; and (5) that there
is inexcusable lack of precaution on the part of the
offender, taking into consideration his employment or
occupation, degree of intelligence, physical condition,
and other circumstances regarding persons, time [,] and
place.47.” (Emphasis supplied)

12. In order for Reckless Imprudence Resulting in Serious Physical

Injuries and Damage to Property to prosper, it is essential that there must
have been an act that was done with inexcusable lack of precaution. In
Gonzaga vs People2, it was settled that in order to establish motorist’s
liability for negligence, the direct causal connection between such
negligence and the injuries or damages complained of must be shown.
Likewise stressed that mere negligence is not enough to constitute reckless
driving, rather, it must be proven that the motorist acted in utter disregard
of the consequence of his or her action, as it is the "inexcusable lack of
precaution or conscious indifference to the consequences of the conduct
which supplies the criminal intent and brings an act of mere negligence
and imprudence under the operation of the penal law."3

13. Further, in Caminos, Jr. vs. People of the Philippines, “In

general, the degree of care and attention required of a driver in a particular
case in exercising reasonable care will vary with and must be measured in
the light of all the surrounding circumstances, such that it must be
commensurate with the dangers which are to be anticipated and the
injuries which are likely to result from the use of the vehicle. In other
words, he must observe a sense of proportionality between precaution and
the peculiar risks attendant or even inherent in the condition of the road
which are open to ordinary observation The ultimate test, in other words,
is to be found in the reasonable foreseeability that harm might result if
commensurate care is not exercised. It is not necessary, however, that a
motorist actually foresee the probability of harm or that the
particular injury which resulted was foreseeable; it would suffice

1
G.R. No. 221981, November 04, 2020
2 751 Phil. 218 (2015)
3 G.R. No. 221981, November 04, 2020
 4

that he, in the position of an ordinary prudent man, knowing what

he knew or should have known, anticipate that harm of a general
nature as that suffered was to materialize.4 (Emphasis supplied)

14. In the instant case, there was no finding that I failed to exercise
the necessary care, prudence and precaution in driving the vehicle. In fact
because of the condition of the road – there were tall grasses / bushes at,
and cornfields near the shoulders of the road, as precautionary, I honked
/ blew the horn three (3) times to warn any vehicle from crossing that our
vehicle will be passing on the said intersection5 and I drove the vehicle only
at approximately forty (40) kilometers per hour (Kph) to keep my speed at
safe acceleration.

15. But while we were traversing the Macugay Road and about to
cross the intersection, I was surprised when the private complainant
recklessly crossed and made a sudden left turn, ignoring my warning horns
and suddenly appeared in front of the vehicle that I am driving. I have tried
to make a full stop and drive the vehicle onto the left direction to avoid
collision but it was already too late as the private complainant was already
in front of me.

16. In my attempt to avoid the collision, I managed to turn the

vehicle to the left direction but due to the surprise entry made by the
private complainant, the right headlamp and the right side mirror of our
vehicle still made contact and collided with the left front portion of the
tricycle of the private complainant.

17. To attest further that I was not driving recklessly and in speedy
manner, the photographs and the PNP Sketch showing the incident of the
collision will support my claim that I was travelling at safe speed. The
tricycle being driven by the private complainant barely moved from the
point of collision.6

18. As a matter of fact, the PNP SPOT REPORT 7 would

immediately show that nothing was mentioned in the report that I was
traversing Macugay Road in a speedy manner contrary to the private
complainant’s claim. Further, the investigators just conveniently
concluded that I was at fault but they failed to support such conclusion
because their report are bereft of factual details on how they arrived to such
conclusion.

4 G.R. No. 147437, May 8, 2009

5 Annex 1 and series –Sinumpaang Salaysay of Clarito Malmeda and Joshua Martin
6 Annex 2 – Photographs of the collision and PNP Sketch
7 Annex 3 – PNP Spot Report
 5

19. Also, the JOINT AFFIDAVIT OF ARREST8 will also show that
the initial result of the investigation directly indicated that while “the
Motorized Tricycle was traversing the Brgy. Road of san Isidro, and while on
the process of turning left towards Brgy Macugay its left side portion
accidentally bumped Isuzu Closed Van which was traversing in the same
opposite direction.” (Emphasis supplied)

20. It is also noteworthy that that there was no report that the I
was over speeding nor was violating any traffic rules at the time the
accident happened. Private Complainant’s claim in his COMPLAINT-
AFFIDAVIT that I am “travelling a very fast speed” was just a self-serving
statement.

21. The truth of the matter, and as attested to by my witnesses, was

that I was driving at a safe speed of approximately forty (4o) kilometers per
hour (Kph) in order to exercise ordinary care and drive at a reasonable rate
of speed commensurate with the conditions we encountered on the road.
Thus, together with the precautionary honking or blowing of horns and the
speed of my vehicle, I was able to show the exercise of care.

22. After the collision, we managed to help the private

complainant when I assisted him to a safe place away from the place of
accident while waiting for the responders / ambulance while my colleague,
Mr. Clarito Nelmida borrowed a phone from a rider and immediately called
for rescuers from Luna, Isabela.

Corollary, one of the essential elements of Reckless Imprudence, which is

the inexcusable lack of precaution is lacking.

The PNP Arresting Team did not cite or

read my Miranda Rights, a violation of
my Constitutional Rights to be informed
of my right to remain silent and to have
competent and independent counsel.

23. The PNP arresting team claimed that they cited to me my

Miranda rights in their Joint Affidavit of Arrest. I absolutely deny their
claim. The truth of the matter is that; I have known only the term “Miranda
Rights” and its meaning when I was being interviewed by my counsel as to
the manner of my arrest. In fact, at the time of my arrest, they even
persistently tried to persuade me to just admit the offense – that I was the
one who was reckless.

8 Annex 4 – Joint-Affidavit of Arrest

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24. Consequently, without me knowing, my Constitutional rights

were being violated and were continuously being violated when I was
detained and forced to pay my bail.

The claim for damages are without legal

and factual basis because the private
complainant was the reckless negligent
party.

25. The private complainant claims for monetary damages. We

opposed and deny these claims because the proximate cause of the injury
suffered was the sole acts of the private complainant who was negligent
when he crossed the intersection without considering the condition of the
road and without regard to the precautionary warnings I made.

26. The evidence undoubtedly shows that before the collision, my

vehicle was cruising along its rightful lane when the tricycle coming from
the intersection suddenly crossed and encroached on our lane. The
accident would not have happened had the private complainant, the
tricycle driver, stayed first on his lane, gave visible signal of his intent to
turn left and did not recklessly try to cross the intersection. According to
Section 42 of R.A. No. 4136, as amended, while the driver of a vehicle
approaching but not having entered an intersection is required to yield the
right of way to a vehicle within such intersection, the driver of the vehicle
turning left is also required to give a plainly visible signal of
intention to turn. (Emphasis supplied)

27. As mentioned, me and my colleagues were surprised when

private complainant suddenly appeared in front of our vehicle without
giving any visible signal of his intention to turn left opposite to our
direction.

28. Further, as stated in item 18 herein, the Joint Affidavit of Arrest

stated that, while “the Motorized Tricycle was traversing the Brgy. Road of
san Isidro, and while on the process of turning left towards Brgy Macugay its
left side portion accidentally bumped Isuzu Closed Van which was
traversing in the same opposite direction.” (Emphasis supplied)

29. Hence, the damage suffered by the private complainant can

only be attributed to his own reckless actions as proximate cause of the
damage he suffered.

30. From the above discussion, it is clear that I did not lack
precaution in driving my vehicle. I was not over speeding nor was violating
any traffic rules when the accident happened. The private complainant
 7

crossed the road without heeding to my precautionary honks / horns and

clearly, complainant took the risk of crossing the road without even
considering that the road is considered a busy highway.

31. Further, I respectfully submit that the only course open for this
Honorable Court is to dismiss the case against me, for the rule is that
“when at the outset the evidence cannot sustain a prima facie case or
the existence of probable cause to form a sufficient belief as to the
guilt of the accused cannot be ascertained, the prosecution must
desist from inflicting on any person the trauma of going through a
trial.”9

32. With all the foregoing, it is respectfully implored that this

Honorable Court forthwith dismiss the instant case for lack of factual and
legal basis.

33. I have caused the execution of the foregoing affidavit and do

hereby to attest to the truth of the declarations herein.

IN WITNESS WHEREOF, I have hereunto set my hand this ___ day

of ________________, 2022 in Cauayan City, Isabela, Philippines.

EDGAR B. TORIBIO
Affiant

SUBSCRIBED and SWORN to before me this _____ day of

__________________ 2022, in Cauayan City, Isabela. I hereby certify that I
personally examined the affiant, and am satisfied that he voluntarily
executed and understood this Counter-Affidavit.

9 G.R. Nos. 164166 & 164173 – 80 October 17, 2007