THIRD DIVISION
[ G.R. No. 108234, August 11, 1997 ]PEOPLE v. FIDEL RAGAY Y DE ROSAS +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FIDEL RAGAY Y DE ROSAS, DANILO ODANI Y NATALON, DOMINGO TUMAGOS Y DINGLE AND ZOSIMO GONZAGA Y AGENSI, ACCUSED-APPELLANTS.
D E C I S I O N
PEOPLE v. FIDEL RAGAY Y DE ROSAS +
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FIDEL RAGAY Y DE ROSAS, DANILO ODANI Y NATALON, DOMINGO TUMAGOS Y DINGLE AND ZOSIMO GONZAGA Y AGENSI, ACCUSED-APPELLANTS.
D E C I S I O N
DAVIDE, JR., J.:
Accused-appellants Fidel Ragay, Danilo Odani, Domingo Tumagos and Zosimo Gonzaga were charged before Branch 148 of the Regional Trial Court of Makati City with Robbery with Rape in an information[1] whose accusatory portion reads:
Private complainants Rafael and Dorothy Bernardo narrated how the offense was committed.
At dawn on 21 July 1990, Rafael was asleep in the master's bedroom of his house, located in Okra Street, Victoria Homes, Tunasan, Muntinlupa. With him were his sisters Dorothy and Rhodora; their mother, Dolores; Dorothy's son, Richard; Rafael's wife, Ruth; and Rafael's daughter, Em-Em. The bedroom light and the kitchen light were both left on. At around 3:00 o'clock that morning, four masked men broke into the house and went to the master's bedroom. Rafael was awakened when one of them went on top of him, pointed a jungle bolo at him, and told him not to shout; while another tied his hands and feet. Rafael also saw the intruders tied up his wife. The intruders, demanded money from Rafael but when he said he had none, they "ransacked" the house, taking two mini-components; a Toshiba black-and-white television set; two wedding rings; a Seiko watch; P1,000 cash; P3,000 worth of jewelry; a flat iron; a wall clock; and an undetermined sum of money from a piggy bank.[3]
Meanwhile, one of the intruders, whom Rafael and Dorothy identified in court as Zosimo Gonzaga, pointed a jungle bolo at Dorothy's neck, tore her dress, mashed her breast, and ordered her to stand up. Dorothy refused. The man forthwith kicked her buttocks, ordered Dorothy's mother to get up from the bed, and forced Dorothy to lie down on the vacated bed. The man then removed Dorothy's skirt and pulled his pants down. He thereupon inserted his private part into that of Dorothy. Later, he pulled out his sexual organ and again forced himself on Dorothy. Afterwards, the man made Dorothy stand up, pushed her towards Rafael's feet, and bound her hands and feet. In court, she identified the intruders to be accused Zosimo Gonzaga, Fidel Ragay, Danilo Odani, and Domingo Tumagos.[4]
The intruders went out of the room, leaving a threat that they would kill the Bernardos if the latter would report to the police authorities. They then stayed in the kitchen of the Bernardos' residence until around 4:30 in the morning.[5] Rafael, who was lying on one of the beds and had a clear view of the kitchen which was about two meters away, saw the intruders removing their masks and drinking coffee.[6] Rafael identified them to be the accused Fidel Ragay, Zosimo Gonzaga, Danilo Odani and Domingo Tumagos. He knew them because they were the ones who constructed his fence.[7]
The Bernardos stayed in the bedroom until 5:30 that morning. After Dorothy untied Rafael they went to Rafael's brother-in-law to inform the latter of the incident. On that same day Rafael's brother-in-law reported the crime to their barangay tanod and security officers of the subdivision. Between 7:00 to 7:30 a.m., accused Gonzaga, Odani and Ragay were apprehended, and were later brought to the police station in Muntinlupa.[8] Accused Tumagos was arrested on 22 July 1990.[9]
Rafael and Dorothy also reported the incident to the police. Pfc. Alfredo Aninipot took down their sworn statements and prepared the "necessary referral" of the case. He also conducted an ocular inspection of the crime scene.[10]
On 23 July, 1990, Dorothy submitted herself to a medical examination by Dr. Louella Nario. The latter noted extragenital physical injuries on Dorothy and found her vaginal orifice to be "wide as to allow complete penetration of an average-sized, adult Filipino male organ in full erection without producing any genital injury."[11]
The accused, on the other hand, put up alibi as their defense.
Danilo Odani testified that on 21 July 1990 he was at home with his wife. He slept at around 9:00 the previous night and woke up the next day at around 6:30 a.m. He went to work in Henry Matute's house in Victoria Homes where he was employed as a construction worker along with co-accused Tumagos and Gonzaga. He was apprehended at about 9:00 a.m. by persons named Aga, Cornelio, Mon, and Carandang. Odani admitted on cross-examination that he, Gonzaga, and Tumagos built the complainants' fence; and that the house of the Bernardos was only half a kilometer away from the place where he was staying.[12]
Zosimo Gonzaga testified that on 21 July 1990 he was at home with his wife and children and that he went to sleep at about 9:00 the previous night. He woke up at 5:30 a.m., and after drinking coffee, he and a certain Rudy went to a piggery. They left that place at about 8:30 a.m. and headed for Victoria Homes. Along the way, they met a certain Ariel with four other companions who then "arrested" him. Gonzaga denied knowing Dorothy and claimed that it was Dorothy's brother-in-law Ariel who contracted him, Odani, and Tumagos to put a fence on the Bernardo's house. He added that Ariel failed to pay them for their work and that their effort to secure payment from Ariel proved futile. Their insistence to collect their wages angered the private complainants, prompting the latter to file this case. Gonzaga admitted that his residence is only half a kilometer away from the house of the Bernardos.[13]
Domingo Tumagos declared that in the early morning of 21 July 1990 he was at home with his family. He woke up at about 5:30 a.m. and left for work at 7:00 a.m. He was working at Henry Matute's house when a certain Aga came with four men and asked him whether they could bring Danilo Odani with them. He acceded to their request. After about half an hour, Odani came back and told Tumagos that Dorothy did not pinpoint him as a suspect in an alleged offense. After a while, the same men rearrested Odani. Tumagos found out later that Odani was brought to the municipal hall. The next day, the same men who apprehended Odani came to the construction site and arrested Tumagos.[14]
Fidel Ragay testified that in the evening of 20 July 1990 he was sleeping in the house of one Elizabeth Manzano. He acknowledge that from the said house one could take a 15 -minute walk to reach the Bernado's residence. He alleged that he was the cartetaker of the Manzano's house. At past 6:00 a.m. the following day, he went to his own house. A certain Mang Ilyo, with Danilo Odani, came to see him and brought him and Odani to the kakawatihan (place where kakawate trees grow). There, Ragay saw Zosimo Gonzaga whose hands were then tied at his back. Thereafter, the three accused were brought to the Field Office of Victoria Homes where complainant Dorothy was waiting. Although Dorothy did not know him and did not pinpoint him as one of the suspects, he was brought to the municipal hall with the other accused and was subsequently put in jail.[15]
The other defense witnesses, namely, Alicia Isip, Fidel Ragay's aunt; Jose Bagai, Ragay's co-worker; Feliciana Navarra, Zosimo Gonzaga's neighbor; and Henry Matute, the owner of the house which the accused were working on, testified on the "arrest" of the accused but not on their whereabouts between 3:30 and 5:00 a.m.of 21 July 1990.
In deciding the case, the trial court recognized three issues, viz:
1. Whether the crime of robbery with rape was committed
2. Whether the four (4) accused were sufficiently identified as those who committed the crime of robbery with rape
3. Whether the prosecution had established the guilt of all the accused beyond reasonable doubt
As to the first, the trial court held that the evidence for the prosecution clearly established all the elements of robbery with rape under paragraph 2 of Article 294 of the Revised Penal Code.
As to the second issue, the trial court also ruled in the affirmative; thus:
Before passing judgment, the trial court recounted that the accused were identified by Rafael and Dorothy Bernardo; they had the opportunity to commit the crime as they all lived near the crime scene; and that they had a motive since, as admitted by accused Gonzaga, they were not paid after they constructed the Bernardos' fence.
Accordingly, the trial court convicted all the accused and sentenced them to suffer the penalty of reclusion perpetua. It also ordered them to jointly and severally pay Dorothy Bernardo the sum of P30,000 as indemnity in causing her dishonor; P15,000 as moral damages; and P5,000 as exemplary damages and pay Dorothy and Rafael Bernardo the sum of P22,500 representing the value of the property taken by the accused, which were not recovered.[16]
The accused seasonably appealed to us from the decision. As they were represented by different counsel, they filed separate Appellant's Briefs.
Accused-appellant Fidel Ragay argues that the identification made of him by prosecution witnesses Dorothy and Rafael Bernardo as one of the culprits "was not positive and certain as to meet the inflexible requirement of proof beyond reasonable doubt of his criminal participation." He submits as incredible the testimony of Rafael Bernardo that he was able to recognize the intruders because they removed their masks when they took coffee at the kitchen and also because they were the ones who constructed the fence. For one thing, having been hog-tied inside the master's bedroom, Rafael could not have a good look at the persons in the kitchen; and for another, the alleged taking of coffee was so unnatural, since the natural tendency of one who commits a crime is to immediately flee.
Ragay likewise submits that the prosecution failed to prove the essential elements of the complex crime of robbery with rape. Dorothy's tale of rape is unbelievable. She did not shout for help when she was being abused; the doctor who examined her could not tell with certainty that she was raped; and finally, "her actuations of flashing a smile while testifying in court reduced into rubbles her pretension that she was raped."[17]
Accused Zosimo Gonzaga argues that the identity of the accused has not been positively and sufficiently identified. The evidence for the prosecution showed that the faces of the four persons who entered the house were covered with masks. He also asserts that it was impossible for him to have committed the crime, as he was asleep in his house at the time. Besides he had no motive to commit the crime.
Accused Danilo Odani also invites our attention that he was able to identify the four intruders because they removed their masks while they were taking coffee in the kitchen. If this were so, and given the fact that Rafael knew the accused even before the incident, then he should have identified them to his brother-in-law as the persons who constructed the fence, instead of giving a mere description of the intruders.
Accused Domingo Tumagos submits to be incredible the prosecution's evidence that Dorothy was able to recognize the person who raped her because she managed to "grab" the rapist's mask. He asserts that the "usual and natural reaction of a man once his identity is known and discovered is to correct or rectify the situation, that is to immediately replace the masks and to put pressure on the one who discovered him by threatening her not to reveal his identity or apply physical force on her or to do both." The man did not. He also finds to be "contrary to normal course of events" the alleged acts of the four persons in staying in the kitchen and drinking coffee after committing the crime instead of immediately leaving the scene of the crime. Tumagos further argues that if Dorothy and Rafael were in fact able to identify the four intruders to be the persons who constructed the fence, then they should have told Rafael's brother-in-law the exact identities of the four. Finally Tumagos maintains that the trial court convicted him solely on the basis of his being a co-worker of the three accused in the construction of the fence of Rafael.
In the Briefs of the Appellee,[18] the Office of the Solicitor General submits that the accused-appellants were all positively identified as the culprits; that their alibi and denial cannot prevail over their positive identification; and that prosecution witnesses had no ill-motive to falsely accuse and testify against the accused.
We are convinced that the evidence for the prosecution in this case had proved the commission of the special complex crime of robbery with rape. Accordingly, we have to affirm the trial court's resolution of the first of the three issues it formulated.
But, has the same evidence for the prosecution established beyond reasonable doubt the participation and guilt of the accused in said crime? The answer to that query entirely depends on their identification. Such identification then is the most crucial issue which, in fact, is the heart of appellant's assigned errors.
The trial court found the accused positively identified by Dorothy and Rafael Bernardo. Dorothy claimed to have been able to identify appellant Zosimo Gonzaga as her rapist because she had succeeded in "grabbing" his mask. She revealed this only in her sworn statement during cross-examination, thus:
Our doubts are further heightened insofar as Dorothy's identification of appellant Odani is concerned. In her sworn statement[26] taken at 2:00 p.m. of 22 July 1990 by Pfc. Alfredo Aninipot, she did not mention Odani in her narration of the incident.
Rafael Bernardo cannot save the day for the prosecution. His claim that he was able to identify the four intruders because they removed their masks while they were drinking coffee in the kitchen of his house does not persuade us. In the first place there is even doubt as to the fact that accused delayed their departure by entering the kitchen and drinking coffee. In his sworn statement[27] taken by Pfc. Alfredo Aninipot at 1:35 p.m. of 21 July 1990, or a few hours after the incident, categorically declared that after Zosimo Gonzaga tied the hands and feet of his wife, the four persons immediately left. This was Rafael's answer to question no. 16. Thus:
We have grave doubts as to Rafael Bernardo's having seen the four intruders in the kitchen. Again, this was a very vital information which he did not mention in his sworn statement. Moreover, when Rafael told his brother-in-law about the incident, he did not identify the trespassers as those who constructed the fence of his house; he only gave a description of the suspects. Thus:
While the factual findings of the trial court are entitled to great weight and respect, this case, however, calls for the application of an exception i.e., when the trial court has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case.[32]
Thus, the prosecution cannot profit from the weakness of accused's alibi. It must rely on the strength of its evidence[33] and establish the guilt of accused beyond reasonable doubt. It failed to do so in this case. Accused's acquittal then is in order.
WHEREFORE, for failure of the prosecution to prove beyond reasonable doubt that the accused-appellants are guilty of the crime charged, the decision of Branch 148 of the Regional Trial Court in Makati City in Criminal Case No. 1904 is hereby REVERSED. The accused-appellants are ACQUITTED, and their immediate release from confinement is ordered, unless some other lawful cause warrants their further detention.
Costs de oficio.
SO ORDERED.
Narvasa C.J. (Chairman), Melo, Francisco, and Panganiban, JJ., concur.
[1] Original Record (OR), 1.
[2] OR, 9.
[3] TSN, 18 October 1990, 12-15; TSN 3 December 1990, 3-4.
[4] TSN, 18 October 1990, 12, 16-24.
[5] Id., 24-25; TSN, 3 December 1990, 5.
[6] TSN, 3 December 1990, 6; TSN, 10 December 1990, 5.
[7] TSN, 3 December 1990, 6.
[8] TSN, 18 October 1990, 25-28; TSN, 3 December 1990, 5-7.
[9] TSN, 3 December 1990, 9.
[10] TSN, 15 February 1991, 2-4.
[11] OR, 115.
[12] TSN, 26 March 1991, 2-18.
[13] TSN, 17 May 1991, 4-11.
[14] TSN, 11 April 1991, 3-6.
[15] TSN, 10 July 1991, 4-23; TSN 8 August 1991, 3-6.
[16] OR, 62-93; Rollo, 33-64. Per Judge Oscar B. Pimentel.
[17] He then quoted from the transcript of the stenographic notes the following remark of his counsel:
ATTY. ESPINA:
We would like to make it of record that the witness is smiling while being asked, Your Honor. (tsn., p. 2, November 14, 1990).
[18] The Office of the Solicitor General filed three Appelle's Brief, viz., (1) the Brief to meet Ragay's main Brief; (2) the Consolidated Brief to counter the separate Appellant's Brief of Gonzaga and Odani; and (3) the Brief to counter the Appellant's Brief of Tumagos.
[19] TSN, 14 November 1990, 1-2.
[20] Id., 7.
[21] TSN, 18 October 1990, 16-22. Underscoring supplied for emphasis.
[22] TSN, 12 November 1990, 3-4.
[23] TSN, 14 November 1990, 2-4. Emphasis supplied.
[24] TSN, 14 November 1990, 7. Emphasis supplied.
[25] Supra, note 20.
[26] Exhibit "A, " OR, 101.
[27] Exhibit "B," OR, 103.
[28] People v. Patilan, 197 SCRA 354, 367 [1991]; People v. Marcelo, 223 SCRA 24, 34 [1993]; People v. Enciso, 223 SCRA 675, 685 [1993].
[29] People v. Valeriano, 226 SCRA 694, 713 [1993].
[30] TSN, 10 December 1990, 2.
[31] See People v. Yangan, 233 SCRA 504 [1994].
[32] People v. Lee, 204 SCRA 900, 909 [1991]; People v. Simon, 209 SCRA 148, 156 [1992].
[33] People v. Dural, 223 SCRA 201, 214 [1993].
That on or about the 21st day of July, 1990 in the municipality of Muntinlupa, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, WITH intent of gain and by means of violence and intimidation, that is by pointing a jungle bolo at Dorothy Bernardo, took and carry away the following personal things to wit: one (1) Toshiba B&W set worth P2,500.00; two (2) Sharp mini components P7,000.00; one (1) Fisher mini component worth P2,000.00; one (1) Display wall clock P2,500.00; one (1) GE flat iron P500.00; two (2) pieces of Seiko wrist [watch] P1,500.00; one (1) pair wedding ring P1,500.00; jar clay bank P1,000.00; assorted jewelries P3,000.00 and cash money of P1,000.00 with a total amount of P22,500.00 and by means of force and intimidation have carnal knowledge of the complainant Dorothy Bernardo, to the damage and prejudice of Dorothy Bernardo in the aforementioned amount of P22,500.00 Philippine Currency.Upon arraignment on 16 October 1990, all the accused pleaded not guilty. Trial ensued, as the accused waived pre-trial.[2]
Private complainants Rafael and Dorothy Bernardo narrated how the offense was committed.
At dawn on 21 July 1990, Rafael was asleep in the master's bedroom of his house, located in Okra Street, Victoria Homes, Tunasan, Muntinlupa. With him were his sisters Dorothy and Rhodora; their mother, Dolores; Dorothy's son, Richard; Rafael's wife, Ruth; and Rafael's daughter, Em-Em. The bedroom light and the kitchen light were both left on. At around 3:00 o'clock that morning, four masked men broke into the house and went to the master's bedroom. Rafael was awakened when one of them went on top of him, pointed a jungle bolo at him, and told him not to shout; while another tied his hands and feet. Rafael also saw the intruders tied up his wife. The intruders, demanded money from Rafael but when he said he had none, they "ransacked" the house, taking two mini-components; a Toshiba black-and-white television set; two wedding rings; a Seiko watch; P1,000 cash; P3,000 worth of jewelry; a flat iron; a wall clock; and an undetermined sum of money from a piggy bank.[3]
Meanwhile, one of the intruders, whom Rafael and Dorothy identified in court as Zosimo Gonzaga, pointed a jungle bolo at Dorothy's neck, tore her dress, mashed her breast, and ordered her to stand up. Dorothy refused. The man forthwith kicked her buttocks, ordered Dorothy's mother to get up from the bed, and forced Dorothy to lie down on the vacated bed. The man then removed Dorothy's skirt and pulled his pants down. He thereupon inserted his private part into that of Dorothy. Later, he pulled out his sexual organ and again forced himself on Dorothy. Afterwards, the man made Dorothy stand up, pushed her towards Rafael's feet, and bound her hands and feet. In court, she identified the intruders to be accused Zosimo Gonzaga, Fidel Ragay, Danilo Odani, and Domingo Tumagos.[4]
The intruders went out of the room, leaving a threat that they would kill the Bernardos if the latter would report to the police authorities. They then stayed in the kitchen of the Bernardos' residence until around 4:30 in the morning.[5] Rafael, who was lying on one of the beds and had a clear view of the kitchen which was about two meters away, saw the intruders removing their masks and drinking coffee.[6] Rafael identified them to be the accused Fidel Ragay, Zosimo Gonzaga, Danilo Odani and Domingo Tumagos. He knew them because they were the ones who constructed his fence.[7]
The Bernardos stayed in the bedroom until 5:30 that morning. After Dorothy untied Rafael they went to Rafael's brother-in-law to inform the latter of the incident. On that same day Rafael's brother-in-law reported the crime to their barangay tanod and security officers of the subdivision. Between 7:00 to 7:30 a.m., accused Gonzaga, Odani and Ragay were apprehended, and were later brought to the police station in Muntinlupa.[8] Accused Tumagos was arrested on 22 July 1990.[9]
Rafael and Dorothy also reported the incident to the police. Pfc. Alfredo Aninipot took down their sworn statements and prepared the "necessary referral" of the case. He also conducted an ocular inspection of the crime scene.[10]
On 23 July, 1990, Dorothy submitted herself to a medical examination by Dr. Louella Nario. The latter noted extragenital physical injuries on Dorothy and found her vaginal orifice to be "wide as to allow complete penetration of an average-sized, adult Filipino male organ in full erection without producing any genital injury."[11]
The accused, on the other hand, put up alibi as their defense.
Danilo Odani testified that on 21 July 1990 he was at home with his wife. He slept at around 9:00 the previous night and woke up the next day at around 6:30 a.m. He went to work in Henry Matute's house in Victoria Homes where he was employed as a construction worker along with co-accused Tumagos and Gonzaga. He was apprehended at about 9:00 a.m. by persons named Aga, Cornelio, Mon, and Carandang. Odani admitted on cross-examination that he, Gonzaga, and Tumagos built the complainants' fence; and that the house of the Bernardos was only half a kilometer away from the place where he was staying.[12]
Zosimo Gonzaga testified that on 21 July 1990 he was at home with his wife and children and that he went to sleep at about 9:00 the previous night. He woke up at 5:30 a.m., and after drinking coffee, he and a certain Rudy went to a piggery. They left that place at about 8:30 a.m. and headed for Victoria Homes. Along the way, they met a certain Ariel with four other companions who then "arrested" him. Gonzaga denied knowing Dorothy and claimed that it was Dorothy's brother-in-law Ariel who contracted him, Odani, and Tumagos to put a fence on the Bernardo's house. He added that Ariel failed to pay them for their work and that their effort to secure payment from Ariel proved futile. Their insistence to collect their wages angered the private complainants, prompting the latter to file this case. Gonzaga admitted that his residence is only half a kilometer away from the house of the Bernardos.[13]
Domingo Tumagos declared that in the early morning of 21 July 1990 he was at home with his family. He woke up at about 5:30 a.m. and left for work at 7:00 a.m. He was working at Henry Matute's house when a certain Aga came with four men and asked him whether they could bring Danilo Odani with them. He acceded to their request. After about half an hour, Odani came back and told Tumagos that Dorothy did not pinpoint him as a suspect in an alleged offense. After a while, the same men rearrested Odani. Tumagos found out later that Odani was brought to the municipal hall. The next day, the same men who apprehended Odani came to the construction site and arrested Tumagos.[14]
Fidel Ragay testified that in the evening of 20 July 1990 he was sleeping in the house of one Elizabeth Manzano. He acknowledge that from the said house one could take a 15 -minute walk to reach the Bernado's residence. He alleged that he was the cartetaker of the Manzano's house. At past 6:00 a.m. the following day, he went to his own house. A certain Mang Ilyo, with Danilo Odani, came to see him and brought him and Odani to the kakawatihan (place where kakawate trees grow). There, Ragay saw Zosimo Gonzaga whose hands were then tied at his back. Thereafter, the three accused were brought to the Field Office of Victoria Homes where complainant Dorothy was waiting. Although Dorothy did not know him and did not pinpoint him as one of the suspects, he was brought to the municipal hall with the other accused and was subsequently put in jail.[15]
The other defense witnesses, namely, Alicia Isip, Fidel Ragay's aunt; Jose Bagai, Ragay's co-worker; Feliciana Navarra, Zosimo Gonzaga's neighbor; and Henry Matute, the owner of the house which the accused were working on, testified on the "arrest" of the accused but not on their whereabouts between 3:30 and 5:00 a.m.of 21 July 1990.
In deciding the case, the trial court recognized three issues, viz:
1. Whether the crime of robbery with rape was committed
2. Whether the four (4) accused were sufficiently identified as those who committed the crime of robbery with rape
3. Whether the prosecution had established the guilt of all the accused beyond reasonable doubt
As to the first, the trial court held that the evidence for the prosecution clearly established all the elements of robbery with rape under paragraph 2 of Article 294 of the Revised Penal Code.
As to the second issue, the trial court also ruled in the affirmative; thus:
It must be pointed out at the very outset that Dorothy Bernardo was raped. Likewise, it must be pointed out that the four accused were known to the family of the Bernardos because the four (4) accused having admitted at one time or another as those who worked for a time or another in constructing the fence surrounding the house of Rafael Bernardo where Dorothy Bernardo was living on July 21, 1990 at Okra St., Victoria Homes, Tunasan, Muntinlupa, Metro Manila.On the third issue, the trial court held that the overwhelming evidence against the accused outweighed their alibi and denial.
x x x
But it is very clear that Dorothy Bernardo and others recently arrived at the house of her brother Rafael Bernardo and they slept in one room. Dorothy Bernardo positively identified Zosimo Gonzaga as the one who raped her, mashed her breast, tore her dress, pointed a jungle bolo at her neck. Rafael Bernardo identified the four (4) accused although he admitted that during the robbery and rape, the four were masked. He explained however that he recognized them not only because he saw them taking coffee at the kitchen but because they formerly worked in construction of their fence.
x x x
It must be remembered that it is not only the face of the man that will give him away. He has other characteristics which will be very evident to other people and which would give him away even if his face is covered.
While Dorothy Bernardo was in the witness stand, she did not hesitate in identifying Zosimo Gonzaga as the one who raped her during the robbery and so with the four accused. Also Rafael Bernardo did not also hesitate in identifying all the four (4) accused while he was in the witness stand. To the mind of the court, sufficient identification was made on the four (4) accused.
Before passing judgment, the trial court recounted that the accused were identified by Rafael and Dorothy Bernardo; they had the opportunity to commit the crime as they all lived near the crime scene; and that they had a motive since, as admitted by accused Gonzaga, they were not paid after they constructed the Bernardos' fence.
Accordingly, the trial court convicted all the accused and sentenced them to suffer the penalty of reclusion perpetua. It also ordered them to jointly and severally pay Dorothy Bernardo the sum of P30,000 as indemnity in causing her dishonor; P15,000 as moral damages; and P5,000 as exemplary damages and pay Dorothy and Rafael Bernardo the sum of P22,500 representing the value of the property taken by the accused, which were not recovered.[16]
The accused seasonably appealed to us from the decision. As they were represented by different counsel, they filed separate Appellant's Briefs.
Accused-appellant Fidel Ragay argues that the identification made of him by prosecution witnesses Dorothy and Rafael Bernardo as one of the culprits "was not positive and certain as to meet the inflexible requirement of proof beyond reasonable doubt of his criminal participation." He submits as incredible the testimony of Rafael Bernardo that he was able to recognize the intruders because they removed their masks when they took coffee at the kitchen and also because they were the ones who constructed the fence. For one thing, having been hog-tied inside the master's bedroom, Rafael could not have a good look at the persons in the kitchen; and for another, the alleged taking of coffee was so unnatural, since the natural tendency of one who commits a crime is to immediately flee.
Ragay likewise submits that the prosecution failed to prove the essential elements of the complex crime of robbery with rape. Dorothy's tale of rape is unbelievable. She did not shout for help when she was being abused; the doctor who examined her could not tell with certainty that she was raped; and finally, "her actuations of flashing a smile while testifying in court reduced into rubbles her pretension that she was raped."[17]
Accused Zosimo Gonzaga argues that the identity of the accused has not been positively and sufficiently identified. The evidence for the prosecution showed that the faces of the four persons who entered the house were covered with masks. He also asserts that it was impossible for him to have committed the crime, as he was asleep in his house at the time. Besides he had no motive to commit the crime.
Accused Danilo Odani also invites our attention that he was able to identify the four intruders because they removed their masks while they were taking coffee in the kitchen. If this were so, and given the fact that Rafael knew the accused even before the incident, then he should have identified them to his brother-in-law as the persons who constructed the fence, instead of giving a mere description of the intruders.
Accused Domingo Tumagos submits to be incredible the prosecution's evidence that Dorothy was able to recognize the person who raped her because she managed to "grab" the rapist's mask. He asserts that the "usual and natural reaction of a man once his identity is known and discovered is to correct or rectify the situation, that is to immediately replace the masks and to put pressure on the one who discovered him by threatening her not to reveal his identity or apply physical force on her or to do both." The man did not. He also finds to be "contrary to normal course of events" the alleged acts of the four persons in staying in the kitchen and drinking coffee after committing the crime instead of immediately leaving the scene of the crime. Tumagos further argues that if Dorothy and Rafael were in fact able to identify the four intruders to be the persons who constructed the fence, then they should have told Rafael's brother-in-law the exact identities of the four. Finally Tumagos maintains that the trial court convicted him solely on the basis of his being a co-worker of the three accused in the construction of the fence of Rafael.
In the Briefs of the Appellee,[18] the Office of the Solicitor General submits that the accused-appellants were all positively identified as the culprits; that their alibi and denial cannot prevail over their positive identification; and that prosecution witnesses had no ill-motive to falsely accuse and testify against the accused.
We are convinced that the evidence for the prosecution in this case had proved the commission of the special complex crime of robbery with rape. Accordingly, we have to affirm the trial court's resolution of the first of the three issues it formulated.
But, has the same evidence for the prosecution established beyond reasonable doubt the participation and guilt of the accused in said crime? The answer to that query entirely depends on their identification. Such identification then is the most crucial issue which, in fact, is the heart of appellant's assigned errors.
The trial court found the accused positively identified by Dorothy and Rafael Bernardo. Dorothy claimed to have been able to identify appellant Zosimo Gonzaga as her rapist because she had succeeded in "grabbing" his mask. She revealed this only in her sworn statement during cross-examination, thus:
CONTINUATION OF THE CROSS-EXAMINATION BY:
[19]
[20]
The "identification" made by Dorothy leaves much to be desired. We entertain serious doubts as to the credibility of her claims. Her long testimony on direct examination which we have carefully read is silent on her "grabbing" of the mask and of her seeing the four intruders
eat in the kitchen. These are vital matters as they go into the identity of the intruders. Despite her testimony that the four intruders were wearing masks the prosecuting fiscal merely asked her whether she would be able to recognize them if ever she would see them again: and
after she replied "yes sir," the fiscal merely requested her to "go down from the witness stand and to tap them." Dorothy then approached the appellants at the seat for the accused. She knew beforehand that they were the accused in the case.
Even assuming that it was not necessary for the prosecution to establish in its evidence in chief how the identification of the accused at the time of the commission of the offense was made, the "grabbing" of the mask is nevertheless unworthy of belief. She testified on direct
and cross examinations that as she was unable to shout, and was practically immobilized because she was engulfed with fear while the assailant was pointing a bolo at her head, with its tip touching her temple. On direct examination, she testified as follows:
Neither are we impressed by Dorothy's testimony that she was able to identify the four intruders because she was able to focus her eyes on them while they were eating in the kitchen. She did not answer the simple question of the prosecutor, which the trial court repeated after it was objected to for being "leading," as to the condition of their heads while the were eating. The question, of course, was to elicit an answer that the four persons removed their masks. Dorothy merely answered that she "saw them eating."[25]
In so far as you were concerned as you said one of the 4 persons poked a jungle bolo at you, what else did he do in so far as you were concerned?
What finally happened after that person holding a bolo at your neck torned (sic) your dress and mashed your breast?
And after he kicked you what else happened?
Thereafter he took off your skirt Mrs. Witness, what else did he do?
Thereafter what happened?
Afterwards he made me tand (sic) up then he pushed me towards the feet of my brother Raffy and he tied my hands and feet.[21]
At the initial cross-examination by Atty. Espina, Dorothy said that she could not resist or, at least, make an outcry; she could only cry silently. Thus:
You were crying all the while this person was mashing your breast?
But you were not trying to push this man who was mashing you breast you just let him mash your breast standing like this?
The bolo was pointed at what part of your body?
As a matter of fact when he was removing your panty he was holding a bolo?
And the tip of the bolo was pointed at your head?
Our doubts are further heightened insofar as Dorothy's identification of appellant Odani is concerned. In her sworn statement[26] taken at 2:00 p.m. of 22 July 1990 by Pfc. Alfredo Aninipot, she did not mention Odani in her narration of the incident.
14. T Maari bang isalaysay mo sa akin ang buong pangyayari kung papaano naganap ito?If indeed Odani was among the four intruders, Dorothy could not have failed to mention him in her sworn statement.
S Ganito po iyon. Kasalukuyang kami ay natutulog ng kami ay gisingin ng mga armadong lalaki na sina Zosimo Gonzaga, Fidel Ragay at Domingo Tumagos at kami ay kanilang ginising at pilit na ipinalalabas ang aming pera. Ng wala kaming maibigay na pera sila ay nanghalughog na sa loob ng aming bahay at nakita ni Fidel ang alkansiya ng aking pamangkin na si MM at ito ay kaniyang kinuha at binasag doon sa loob ng aming kuwarto kung saan kami sama-sama natutulog. At kanilang kinuha ang aming mga kasangkapan tulad ng B&W TV Set, wall clock, dalawang mini components, isang radio/cassette, electric flat iron, cash na perang P2,000.00 at mga alahas. At matapos nilang makuha ang aming mga gamit ako ay binalikan ni Zosimo Gonzaga at ako ay kanyang tinutukan ng kanayang jungle bolo sa ulo at winasak ang aking duster na suot at ako ay dalawang ulit na hinalay niya. At pagkatapos ay kinagat niya ako sa leeg at ako ay kanyang nilagyan ng kiss mark at saka niya itinali ang aking paa at kamay. At silang tatlo ay mabilis na tumakas sa likod ng aming bahay dala-dala ang kanilang nakulimbat na mga gamit namin. (Underscoring supplied).
Rafael Bernardo cannot save the day for the prosecution. His claim that he was able to identify the four intruders because they removed their masks while they were drinking coffee in the kitchen of his house does not persuade us. In the first place there is even doubt as to the fact that accused delayed their departure by entering the kitchen and drinking coffee. In his sworn statement[27] taken by Pfc. Alfredo Aninipot at 1:35 p.m. of 21 July 1990, or a few hours after the incident, categorically declared that after Zosimo Gonzaga tied the hands and feet of his wife, the four persons immediately left. This was Rafael's answer to question no. 16. Thus:
16. T Maari bang isalaysay mo sa akin ang buong pangyayari kung papaano naganap ito?Dorothy corroborated this statement in her sworn statement. The last two sentences of her answer to question 14, as quoted above, read:
S Ganito po iyon. Bandang alas 3:00 ng madaling araw habang kami(ang aking Nanay na si Dolores, kapatid na si Dorothy at Rodora, ang iisang anak ni Dorothy na si Richard at ang aking asawa at anak) ay nasa kasarapan ng tulog ay bigla na lamang pumasok sa loob ng aming bahay sila Zosimo, Fidel at ang isang nagngangalang Larry sa pamamagitang ng pagsungit sa lock ng aming pintuan sa may harapan. At si Danilo ay siyang bantay sa labas. At ako ay kanilang ginising na nakatutok sa aking leeg ang jungle bolo na hawak ni Zosimo at ni Fidel. At pagkatapos ay itinali nila ang aking paa at kamay nilang dalawa ng mga lampin ng bata. At pilit na ipinalalabas sa akin ang aking mga pera, subalit ng wala akong mailabas sila ay naghalughug sa loob ng aming bahay at kinuha nila ang aming mga gamit na nabanggit sa itaas at pera. Matapos silang makapagnakaw sa loob ng aming bahay ay pilit na kinuha ni Zosimo ang aking kapatid na panganay na si Dorothy at siya ay kanyang ginahasa sa harap namin. At pagkatapos ay kanyang itinali ang paa ni Dorothy at ang aking asawang si Ruth ay itinali rin niya ang paa at kamay. At pagkatapos ay mabilis silang umalis. (Underscoring supplied for emphasis).
[A]t pagkatapos ay kinagat niya ako sa leeg at ako ay kanyang nilagyan ng kiss mark at saka niya itinali ang aking paa at kamay. At silang tatlo ay mabilis na tumakas sa likod ng aming bahay dala-dala and kanilang nakulimbat ng mga gamit namin. (Emphasis added).It is settled that no undue importance should be given to a sworn statement or an affidavit as a piece of evidence because, being taken ex-parte, an affidavit is almost always incomplete and often inaccurate. [28] But, it is, equally settled that when there is an omission in an affidavit concerning a very important detail, the omission can affect the affiant's credibility.[29]
We have grave doubts as to Rafael Bernardo's having seen the four intruders in the kitchen. Again, this was a very vital information which he did not mention in his sworn statement. Moreover, when Rafael told his brother-in-law about the incident, he did not identify the trespassers as those who constructed the fence of his house; he only gave a description of the suspects. Thus:
Q You have [sic] no opportunity to talk with the tanod to describe to the tanod the description of the persons who entered your house on July 21?In sum, the above circumstances cast doubt on the identification of the accused. It has been said that when there is doubt as to the identification of the accused, in the absence of other evidence showing the accused's guilt, their acquittal is more than justified.[31]
A We were able to identify them because they even drank coffee in the house and I told my brother in law their description.[30]
While the factual findings of the trial court are entitled to great weight and respect, this case, however, calls for the application of an exception i.e., when the trial court has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case.[32]
Thus, the prosecution cannot profit from the weakness of accused's alibi. It must rely on the strength of its evidence[33] and establish the guilt of accused beyond reasonable doubt. It failed to do so in this case. Accused's acquittal then is in order.
WHEREFORE, for failure of the prosecution to prove beyond reasonable doubt that the accused-appellants are guilty of the crime charged, the decision of Branch 148 of the Regional Trial Court in Makati City in Criminal Case No. 1904 is hereby REVERSED. The accused-appellants are ACQUITTED, and their immediate release from confinement is ordered, unless some other lawful cause warrants their further detention.
Costs de oficio.
SO ORDERED.
Narvasa C.J. (Chairman), Melo, Francisco, and Panganiban, JJ., concur.
[1] Original Record (OR), 1.
[2] OR, 9.
[3] TSN, 18 October 1990, 12-15; TSN 3 December 1990, 3-4.
[4] TSN, 18 October 1990, 12, 16-24.
[5] Id., 24-25; TSN, 3 December 1990, 5.
[6] TSN, 3 December 1990, 6; TSN, 10 December 1990, 5.
[7] TSN, 3 December 1990, 6.
[8] TSN, 18 October 1990, 25-28; TSN, 3 December 1990, 5-7.
[9] TSN, 3 December 1990, 9.
[10] TSN, 15 February 1991, 2-4.
[11] OR, 115.
[12] TSN, 26 March 1991, 2-18.
[13] TSN, 17 May 1991, 4-11.
[14] TSN, 11 April 1991, 3-6.
[15] TSN, 10 July 1991, 4-23; TSN 8 August 1991, 3-6.
[16] OR, 62-93; Rollo, 33-64. Per Judge Oscar B. Pimentel.
[17] He then quoted from the transcript of the stenographic notes the following remark of his counsel:
ATTY. ESPINA:
We would like to make it of record that the witness is smiling while being asked, Your Honor. (tsn., p. 2, November 14, 1990).
[18] The Office of the Solicitor General filed three Appelle's Brief, viz., (1) the Brief to meet Ragay's main Brief; (2) the Consolidated Brief to counter the separate Appellant's Brief of Gonzaga and Odani; and (3) the Brief to counter the Appellant's Brief of Tumagos.
[19] TSN, 14 November 1990, 1-2.
[20] Id., 7.
[21] TSN, 18 October 1990, 16-22. Underscoring supplied for emphasis.
[22] TSN, 12 November 1990, 3-4.
[23] TSN, 14 November 1990, 2-4. Emphasis supplied.
[24] TSN, 14 November 1990, 7. Emphasis supplied.
[25] Supra, note 20.
[26] Exhibit "A, " OR, 101.
[27] Exhibit "B," OR, 103.
[28] People v. Patilan, 197 SCRA 354, 367 [1991]; People v. Marcelo, 223 SCRA 24, 34 [1993]; People v. Enciso, 223 SCRA 675, 685 [1993].
[29] People v. Valeriano, 226 SCRA 694, 713 [1993].
[30] TSN, 10 December 1990, 2.
[31] See People v. Yangan, 233 SCRA 504 [1994].
[32] People v. Lee, 204 SCRA 900, 909 [1991]; People v. Simon, 209 SCRA 148, 156 [1992].
[33] People v. Dural, 223 SCRA 201, 214 [1993].