At about 7:00 in the evening of February 10, 1993, SPO1 Felipe Tubianosa, Felix Baltazar and Rodolfo Julao went to the birthday party of Jorrel Cornelio at Bagong Nayon, Antipolo, Rizal.  When they arrived at the party, they saw Jorrel Cornelio, accused-appellant Baniega and other persons engaged in a drinking spree.  Felix Baltazar's group was offered drinks. Felix Baltazar overheard Felipe Tubianosa warn accused-appellant to be careful because he knew about their illegal activities, to which accused-appellant said nothing.  After a while, he got up to relieve himself. Felix Baltazar noticed that accused-appellant was holding a crash helmet.

At 10:00 in the evening, Felipe Tubianosa, Felix Baltazar, Rodolfo Julao and a certain Danny left the party.  On their way home, Felix Baltazar noticed a man wearing a crash helmet and a jacket following them.  The man was pushing a motorcycle.  Felix Baltazar also noticed that it was the same crash helmet and jacket accused-appellant had at the party.

When they were about twenty meters from his house, Felipe Tubianosa told Felix Baltazar to bring home Rodolfo Julao, who was drunk.  Felipe Tubianosa then walked to his house alone.

Twenty minutes later, as Felix Baltazar was walking towards his house forty meters away from Tubianosa's house, he saw a crowd milling around the body of Felipe Tubianosa sprawled on the ground.

Meanwhile, Michael Casiguran, who was on his way home to Bagong Nayon, Antipolo, Rizal, saw accused-appellant, who was wearing a gray vest and a blue helmet, park his motorcycle.  Moments later, he saw accused-appellant follow Felipe Tubianosa as the latter was about to urinate.  He was twelve to fifteen meters away from Felipe Tubianosa, while accused-appellant was three to four meters away from Felipe Tubianosa.  Other than the three of them, there was nobody else around.

Casiguran proceeded home.  When he was inside his house, he heard a gunshot.  He peeked through the window and saw accused-appellant running towards his motorcycle and Felipe Tubianosa sprawled on the ground.

SPO1 Madamba and PO1 Buenaflor went to the scene of the crime to investigate.  They learned that Tubianosa was shot on the forehead by a certain "Mandy" which was the name by which accused-appellant was commonly known.^[1]

Michael Casiguran identified accused-appellant as the gunman.  Four  days after the incident, accused-appellant surrendered to the Antipolo police.

Accused-appellant was charged with murder in an Information^[2] which reads as follows:

That on or about the 10th day of February, 1993, in the Municipality of Antipolo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a gun, with intent to kill, with premeditation and treachery taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot one SPO1 Felipe M. Tubianosa, thereby inflicting upon the latter mortal wounds which caused his death.

Accused-appellant pleaded "not guilty" to the charge.  Trial on the merits then ensued.

In his defense, accused-appellant claimed that at 3:00 in the afternoon of February 10, 1993, he attended the birthday party of Jorrel Cornelio in Bagong Nayon 2, Antipolo, Rizal.  At about 5:00 of that same afternoon, his cousin, Arnel Conde, arrived and informed him that the motorcycle which he borrowed broke down along the road.  Conde allegedly failed to find a mechanic, so he left the motorcycle with accused-appellant while he went to tell its owner what happened.

Accused-appellant went on to say that at 7:00 p.m., a certain Bong, whose real name was Nelson Paredes, also arrived at the party riding a red motorcycle, which he parked in front of Jorrel's house.  Bong was wearing a grey vest and a blue crash helmet.  Felipe Tubianosa's group arrived at the same time.

The drinking spree ended at 9:00 in the evening.  Felipe Tubianosa's group left while accused-appellant went home with his companions. Bong passed in front of accused-appellant's house on board his red motorcycle and told them that he was going to Marikina.  Bong wore a brown jacket which he borrowed from accused-appellant.

Accused-appellant and his group resumed their drinking session. Accused-appellant felt sleepy after consuming fourteen to fifteen bottles of beer.  Before he left the group to retire, he asked Samuel and Buboy to go back to the house of Jorrel and get the motorcycle left by his cousin.  The group moved to the front of the house and continued drinking, after which they left.

When accused-appellant woke up the following morning, he was told that Felipe Tubianosa had been killed.  Two days later, he learned that he was a suspect in the killing and that policemen were looking for him.  He therefore "surrendered" to the Vice-Mayor of Antipolo City who, in turn, brought him to the police station.

The trial court gave credence to the prosecution's version and rendered a decision,^[3] the dispositive portion of which reads as follows:

WHEREFORE, premises considered, accused Manuel Baniega y Morales is hereby found guilty beyond reasonable doubt of the crime of Murder and is hereby sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of Felipe Tubianosa the amount of P15,100.00 as actual damages and P50,000.00 as death indemnity plus P20,000.00 as temperate damages.

Accused-appellant is now before us, claiming that the trial court erred:

1. In convicting him of murder without any qualifying circumstance established beyond reasonable doubt from the evidence on record; and
   
   
2. In disregarding evidence pointing to the fact that it was not him but one Nelson Paredes who killed the victim Felipe Tubianosa.^[4]

Basically, accused-appellant contends that he was in his house sleeping at the time Felipe Tubianosa was killed.  He further contends that Michael Casiguran's testimony pointing to him as the perpetrator was merely circumstantial.

Admittedly, Michael Casiguran did not see accused-appellant actually shoot Felipe Tubianosa.  However, Michael Casiguran positively identified him prior to and after the killing.  His positive identification was the trial court's basis for convicting accused-appellant.

For an accused to be convicted of murder, he must be positively identified as the assailant.  Positive identification requires essentially proof of identity and not per se an eyewitness account of the very act of committing the crime.  A witness may identify an accused as the perpetrator of the crime by direct evidence, i.e., an eyewitness account of the commission of the crime.  There are instances, however, when a witness may not have actually seen the very act of commission of a crime, but he may still be able to identify the accused as the perpetrator as when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime.

In the case at bar, the positive identification forms part of circumstantial evidence, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to a fair and reasonable conclusion that the accused is the author of the crime to the exclusion of all others.  Otherwise, if circumstantial evidence could not be resorted to in proving the identity of the accused when direct evidence is not available, then felons would go scot-free and the community would be denied proper protection.  The rules on evidence and jurisprudence sustain the conviction of an accused through circumstantial evidence when the following requisites concur: (1) there must be more than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond doubt of the guilt of the accused.^[5]

The above requisites have been fully met in this case when the trial court found the following circumstances:

1. Casiguran saw the accused when the latter parked his motorcycle at the crime scene;
   
   
2. He also saw the accused follow the victim when the latter was urinating.  In fact, they had eye to eye contact before the shooting;
   
   
3. When Casiguran heard a single shot, he immediately peeped through the window of  their house and saw the victim sprawled on the ground; and
   
   
4. The accused, whom he previously saw, ran fast towards the parked motorcycle and fled.^[6]

The above circumstances were based on Michael Casiguran's consistent and categorical identification of accused-appellant as the person whom he saw following the victim prior to the killing and fleeing after the killing.

However, accused-appellant tries to discredit Michael Casiguran's testimony by claiming it as improbable and unbelievable.

First, accused-appellant submits that it is improbable for him and Casiguran to have "eye to eye contact," considering that Casiguran's distance from accused-appellant is estimated to be 9 to 12 meters.  Casiguran did not state this in his sworn statement before the police.

We are not impressed.  As the Solicitor General aptly observes:

Considering the condition of the place, i.e. that it was lighted and the relative positions of appellant and Michael, eye to eye contact at that level is not impossible.

Furthermore, Michael Casiguran was only seventeen (17) years old when the incident happened.  At his relatively young age, his vision is presumably unimpaired, affording him the opportunity to have an eye to eye contact with appellant.^[7]

As to the seeming discrepancy in Casiguran's testimony and his statement before the police, the same does not necessarily discredit the witness since ex parte affidavits are often incomplete.  They do not purport to contain a complete compendium of the details of the event narrated by the affiant, and have been taken as inferior to court testimony.^[8]

Second, accused-appellant submits that the one-minute period from the time he heard the gun report and the time he peeped through the window could not be considered as immediate.

Accused-appellant's submissions lack merit.  It has been held that an error in the estimation of time is too immaterial to discredit the testimony of a witness, especially when time is not an essential element or has no substantial bearing on the fact of the commission of the offense.^[9]

Third, accused-appellant argues that if he was running away from Casiguran's vantage point, then it is impossible for the latter to have seen his front.

Accused-appellant's intention to discredit Casiguran's testimony on said matter falls short.

Defense counsel:
	x x x                          x x x                          x x x
Q:	When you saw Manuel Baniega, what was he wearing at that time?
A:	He was wearing blue helmet and gray vest.
Q:	His face was covered by the said helmet, is it not?
A:	No.
Q:	What do you mean by No.  Are you telling the court that you saw the face of the man running?
A:	Yes, because I previously saw him when he parked his motorcycle.
Q:	I am not asking you at the time when he parked his motorcycle.  I am asking you at the time when you saw this Manuel Baniega allegedly running away from the scene of the incident, is it not that when you peeped thru the window and saw this man running away, this man was wearing a helmet?
A:	Yes.
Q:	And you were actually looking at him from his side?
A:	No, his front.
Q:	Was he running or was he simply walking?
A:	Running.
Q:	How fast was he running?
A:	He was running fast.
Q:	You only saw him for a very short time or short fleeing (sic) time?
A:	Yes.
Q:	Would you say he was in your length of vision for two or one seconds (sic)?
A:	Yes.
Q:	The only reason why you were certain that it was Manuel Baniega that you saw, it's because he was the one whom you saw following your Kuya Peng when the latter was urinating, is it not?
A:	Yes.
Q:	As a matter of fact, that was what you told the police officers when you were investigated on February 15, 1993?
A:	Yes.
Q:	A while ago you identified your sworn statement which was marked as Exhibit "B" for the prosecution.  I am calling your attention to question and answer no. 8 and I quote "Tanong:  Bakit mo naman nasiguro na si MANDY itong tao na tumatakbong palabas at nagmamadali na sumakay doon sa motor na nakasuot pa ng helmet?  Sagot:  Dahil siya lang naman po ang nakita kong tao na sumunod doon kay Kuya Peng noong umiihi ito."  Do you affirm this?
A:	Yes.
Q:	In other words, your only basis for being certain that it was Manuel Baniega or Mandy whom you saw running is the reason that you gave to the police investigator because he was the only person whom you saw following your Kuya Peng when the latter was about to urinate?
A:	Yes.[10]

It appears that Casiguran may have misunderstood the context of defense counsel's question asking if he, from his vantage point, saw accused-appellant's side view while the latter was running away, and answered that he saw his front.  Casiguran's answer was still within the context of defense counsel's line of questioning, namely, that accused-appellant was the only person whom he saw following the victim when the latter was about to relieve himself.  Casiguran was consistent in his testimony and in his statement before the police that he saw accused-appellant following the victim and they even had "eye to eye contact."  It is assumed that when two persons' eyes meet, they frontally present themselves to each other or at least the face of one is seen by the other.

Lastly, accused-appellant found it strange when Casiguran, who calls the victim "Kuya Peng", failed to shout for help or ascertain the condition of the victim instead of leaving the latter who was dying.

This omission is too flimsy to impair Casiguran's credibility.  It is well-settled that different people react differently to a given situation or type of situation, and there is no standard form of human behavioral response where one is confronted with a strange or startling or frightful experience.  Witnessing a crime is an unusual experience which elicits different reactions from the witnesses and for which no clear-cut standard form of behavior can be drawn.^[11]

Accused-appellant failed to attribute to Casiguran any improper or credible motive to falsely point to the former as the perpetrator of the crime.  In fact, Casiguran testified that accused-appellant's brother is his friend.

The Court adheres to the established rule that in the absence of any evidence to show that the witness was actuated by any improper motive, his identification of the accused as the assailant should be given full faith and credit.  The presence of personal motives on the part of a witness to testify in favor of the victim and against the accused should be supported by satisfactory proof before his testimony may be considered biased.^[12]

Accused-appellant denies killing Tubianosa for he was then drinking with his friends inside his house.  Settled is the rule that alibi cannot prevail over the positive identification of the assailant by an eyewitness.  For alibi to prevail, it must be established by positive, clear and satisfactory proof that it was physically impossible for the accused to have been at the scene of the crime at the time of the commission, and not merely that he was somewhere else.^[13] Accused-appellant's alibi does not meet the requirement of physical impossibility as he and the victim live in the same barangay.

Between the categorical statements of the prosecution witnesses, on the one hand, and the bare denial of accused-appellant, on the other hand, the former must perforce prevail.  An affirmative testimony is far stronger than a negative testimony especially when the former comes from the mouth of a credible witness.  Alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law.  It is considered with suspicion and always received with caution, not only because it is inherently weak and unreliable but also because it is easily fabricated and concocted.^[14]

Probably aware of the weakness of his defense, accused-appellant tries to impute the killing to another person by presenting a witness, Roberto Baula, who allegedly saw somebody else shoot Tubianosa.  Accused-appellant implies that a certain Bong could have been that person.  He tries to support this theory by pointing out that:

(a)     The motorcycle used by the killer had no license plate and Bong had removed the license plate of his motorcycle while they were still drinking;

(b)     Bong was wearing a chaleco and a blue crash helmet during the drinking session, the same items being worn by the killer;

(c)     Bong was riding on a red Kawasaki motorcycle, as the killer; and

(d)     Bong did not stay with the group at Manuel Baniega's house but mysteriously left the same under the pretext of going home to Marikina.  Certainly, it was after this period that he followed the deceased to shoot him.^[15]

Accused-appellant's imputation of the crime to another malefactor can only be described as a desperate and self-serving move, which deserves scant consideration.

As the Solicitor General aptly observes:

By his own admission, Roberto Baula did not immediately report the shooting he allegedly witnessed to the authorities.  This despite the fact that he allegedly went near the victim right after the shooting incident and learned that it was "Mang Peping" whom he had known for about a year (pp. 6 and 25, TSN, September 5, 1994).  Also, he (Roberto Baula) did not promptly reveal to the authorities that a person other than appellant shot Felipe Tubianosa after learning that appellant whom he considered to be a "good person" was implicated in the killing (pp. 22 and 26, ibid.).  These omissions engender serious doubt on the veracity of Roberto Baula's claim.^[16]

Be that as it may, accused-appellant's submission that he was not wearing a crash helmet and a chaleco or vest, but that it was a certain Bong who was wearing them becomes immaterial due to the positive identification made by Michael Casiguran.  His identification of accused-appellant was based mainly on facial recognition brought about by their having "eye to eye contact," rather than on the apparel worn by the perpetrator.

Furthermore, accused-appellant's submission that he does not know how to drive a motorcycle is self-serving.  This is belied by his own witness, Rodel delos Reyes, his friend of more or less twenty years, who testified that accused-appellant learned how to drive a motorcycle.^[17]

What is more, accused-appellant's claim that Bong was riding a red Kawasaki motorcycle was inconsistent with the testimony of his own witness, Rodel delos Reyes, that the color of Bong's motorcycle was blue.^[18] Furthermore, accused-appellant told Rodel delos Reyes that the motorcycle they retrieved from Jorrel's house belongs to him.^[19]

As to who between the prosecution and the defense witnesses are to be believed, the trial court's assessment enjoys a badge of respect for the reason that the trial court has the advantage of observing the demeanor of the witnesses as they testify, unless found to be clearly arbitrary or unfounded.  The rationale for this doctrine, as explained in People v. Cayabyab is that "the trial judge is able to detect that sometimes thin line between fact and prevarication that will determine the guilt and innocence of the accused.  That line may not be discernible from a mere reading of the impersonal records by the reviewing court.  The record will not reveal those tell-tale signs that will affirm the truth or expose the contrivance, like the angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply.  The record will not show if the eyes have darted in evasion or looked down in confession or gazed steadily with a serenity that has nothing to distort or conceal.  The record will not show if tears were shed in anger, or in shame, or in remembered pain, or in feigned innocence.  Only the judge trying the case can see all these and on the basis of his observations arrive at an informed and reasoned verdict."^[20]

However, we do not agree with the trial court that the crime committed was murder. While premeditation, treachery and abuse of superior strength were alleged in the information, there was no discussion by the trial court as to why it qualified the crime to murder.  Significantly, since nobody witnessed the actual shooting, there could be no proof whatsoever of evident premeditation, treachery or abuse of superior strength.  Consequently, the crime committed is only homicide.

The penalty for homicide is reclusion temporal.  There being no aggravating nor mitigating circumstance, and applying the Indeterminate Sentence Law, the minimum term of the penalty imposable on accused-appellant is within the range of prision mayor in any of its periods, or from six (6) years and one (1) day to twelve (12) years, and the maximum within the range of reclusion temporal in its medium period, or from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.

The trial court awarded P15,100.00 as actual damages.  It appears that said amount was based on the contract for funeral services.^[21] However, the amount stipulated in the contract was P14,500.00.  Since a contract for funeral services is not proof that what was stipulated in the contract was eventually paid, then it cannot be considered as a receipt.  Hence, the contract cannot be considered as proof of the amount of the loss. However, we find the expenses for interment, amounting to P6,000.00, to be duly receipted.

The trial court also awarded P20,000.00 as temperate damages which can only be awarded if the victim's family suffered some pecuniary loss, the amount of which cannot be proved with certainty.^[22] Since only the amount of P6,000.00 was duly proved as actual damages and testimonial as well as documentary evidence indicates that the family incurred additional expenses more than what was duly receipted, temperate damages may be reasonably awarded.  The trial court's award, however, should be reduced to P10,000.00.  The award of civil indemnity in the amount of P50,000.00 is maintained.^[23]

WHEREFORE, based on the foregoing, the decision of the Regional Trial Court of Antipolo City, Branch 73, is MODIFIED.  Accused-appellant Manuel Baniega y Morales is found guilty beyond reasonable doubt of homicide for the death of Felipe Tubianosa and is sentenced to suffer the indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen (17) years of reclusion temporal, as maximum.  Accused-appellant is ORDERED to pay the heirs of the victim civil indemnity in the amount of P50,000.00, actual damages in the amount of P6,000.00, temperate damages in the amount of P10,000.00 and to pay the costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno and Kapunan, JJ., concur.

---

^[1] TSN, October 8, 1993, p. 14.

^[2] Records, p. 1.

^[3] Penned by Judge Mauricio M. Rivera of Branch 73 of the Regional Trial Court of Antipolo City.

^[4] Rollo, p. 52.

^[5] People v. Casingal, 337 SCRA 109, 110 [2000].

^[6] Decision, Records, p. 205.

^[7] Appellee's Brief, Rollo, p. 116.

^[8] People v. Gallo, G.R. No. 133002, October 19, 2001.

^[9] People v. De Leon, G.R. No. 132160, June 19, 2001.

^[10] TSN, August 6, 1993, pp. 11-13.

^[11] People v. Baltazar, G.R. No. 129933, February 26, 2001, p. 6.

^[12] Id. p. 7.

^[13] Id. p. 9.

^[14] People v. Crisanto, G.R. No. 120701, June 19, 2001.

^[15] Appellant's Brief, Rollo, p. 62.

^[16] Appellee's Brief, Rollo, p. 119.

^[17] TSN, April 28, 1994, p. 13.

^[18] Id. p. 12.

^[19] Id., p. 13.

^[20] People v. Estorco, 331 SCRA 52 [2000].

^[21] Exhibit "C", Records, p. 217.

^[22] Article 2224, Civil Code.

^[23] People v. Nanas, G.R. No. 137299, August 21, 2001.