Before us on automatic review is the decision^[1] dated August 13, 1998, of the Regional Trial Court of Quezon City, Branch 95, finding appellants Reynaldo Viñalon y San Agustin and Arnold Devera y Mocalen guilty of robbery with homicide and sentencing each to suffer the penalty of death.
The appellants were indicted under the following Information:

That on or about the 24th day of September, 1997, in Quezon City, Philippines, the said appellants, conspiring, confederating with other persons whose true names, identities, whereabouts and other personal circumstances have not as yet been ascertained and mutually helping one another, with intent to gain and by means of violence and intimidation against persons, did, then and there, wilfully, unlawfully and feloniously rob PO1 Joseph H. Llave of the PNP National Capital Region Command, Norman A. Mapa and Reynaldo B. Elidio in the following manner, to wit: on the date in the place aforementioned, the said appellants, posing themselves as passengers boarded a Jell Transport passenger bus with Plate No. PXC-266 and while said bus was cruising along Commonwealth Avenue near Don Antonio Avenue, Brgy. Old Balara, this City, a public highway, appellants armed with handguns and bladed weapon announced a hold up and thereafter robbed and divested them of their personal properties, to wit:

PO1 Joseph H. Llave

1. One (1) firearm, cal. .45 pistol marked Armscor with SN 748966;

2. One (1) men's watch;

Norman A. Mapa

1. Cash money amounting to P5,000.00 representing the day's collection.

Reynaldo B. Elidio

1. One (1) Men's watch (Seiko-5)-----------------P1,600.00;

Philippine Currency, to the damage and prejudice of the offended parties within the amount aforementioned; further that by reason or on the occasion of the said robbery, and for the purpose of enabling the said appellants to take, steal and carry away the aforementioned articles, the said appellants in pursuance of their conspiracy, with intent to kill and taking advantage of their superior strength, did, then and there, wilfully, unlawfully and feloniously attack, assault and use personal violence upon the person of one PO1 Joseph H. Llave by then and there shooting him on the different parts of his body thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his death thereafter; that likewise on the same occasion of the robbery appellants shot with the use of handguns Norman A. Mapa hitting him on the face and Antonio C. Hernandez hitting him on the hip thereby causing them serious physical injuries which have required medical attendance for a period of more than 30 days, to the damage and prejudice of the said offended parties.

Contrary to law.^[2]

Upon arraignment, both appellants pleaded not guilty. Trial then ensued.

The prosecution presented Jimmy Solomon, the bus driver; Dr. Ma. Cristina Freyra, a medico-legal officer from the PNP Crime Laboratory Services; PO3 Pedro Walawala, the investigating officer; Dr. Reynaldo Perez, examining doctor of victims Norman^[3] Mapa and Antonio Fernandez; Reynaldo Elidio, a passenger; and PO3 Bernard Amigo, the arresting officer.

JIMMY SOLOMON testified that on September 24, 1997 at around 1:00 A.M., he was driving a Jell Transport bus with at least 30 passengers on board going to Fairview, Quezon City. Upon reaching Ever Gotesco in Commonwealth Avenue, Diliman, Quezon City, appellants and two others announced a heist. One of the hold-up men, later identified as appellant Arnold Devera, poked an ice pick at Solomon while his cohorts started divesting passengers of their jewelries and other personal belongings.

According to Solomon, one of the passengers, later identified as PO1 Joseph Llave, engaged the hold-up men in a shoot-out. PO1 Llave was able to shoot appellant Viñalon in the stomach but himself sustained three gunshot wounds -- two at the head and one at the chest area. Solomon stated that during the shoot-out, stray bullets hit the bus conductor, Norman Mapa, and one of the passengers, Antonio Fernandez. The hold-up men then directed him to stop the bus and they all alighted.

Solomon added that later, he and the remaining passengers on board proceeded to the Litex Police Detachment where he gave a statement to the police.^[4] From the police station, they brought PO1 Llave to the Malvar General Hospital but he was pronounced dead on arrival.

DR. MA. CRISTINA FREYRA conducted an autopsy on the body of PO1 Llave.^[5] She testified that she found gunshot wounds on the forehead, on the right lower portion of the nose, and on the right breast of the deceased, all of which were fatal.^[6] She stated that the cause of Llave's death was hemorrhage secondary to gunshot wounds.

The testimony of PO3 PEDRO WALAWALA was dispensed with as both parties admitted that he was the investigator of the case and that he had no personal knowledge of the incident itself.^[7]

DR. REYNALDO F. PEREZ, the doctor who treated passengers Norman Mapa and Antonio Fernandez,^[8] no longer took the witness stand because the parties admitted the contents of the Medico-Legal Certificate he prepared, showing that Mapa was shot at the left axillary area^[9] and Fernandez was shot at the right lateral pelvic area.^[10]

REYNALDO ELIDIO, a passenger, corroborated the testimony of Solomon as to the details and sequence of events. Further, Elidio identified Viñalon as the one who poked a gun at him and took his watch.^[11] He stated that out of the other three assailants, he could only identify Devera whom he saw poke an ice pick at the bus driver.^[12] He also stated that he saw Viñalon shoot PO1 Llave at the forehead and at the chest^[13] with a .45 caliber pistol.^[14] According to him, he identified the appellants as their aggressors at the Malvar Hospital where they brought PO1 Llave.^[15] Witness Elidio affirmed that he executed a sworn statement before PO3 Pedro Walawala.^[16]

PO3 BERNARD AMIGO testified that on September 24, 1997, his superior sent him, SPO2 Quinto, and SPO2 Makabarek to check on the hold-up incident.^[17] They proceeded to the Malvar General Hospital and later some of the passengers arrived and pinpointed appellants as the assailants.^[18] Viñalon was then being treated for a gunshot wound.^[19] After ascertaining their identities, the policemen frisked appellants and found in Viñalon's pocket four wristwatches, a wallet with cash, and identification papers belonging to PO1 Llave.^[20] Seized from Devera were three bladed instruments, three gold rings, and a pair of earrings.^[21]

For the defense, appellant Reynaldo Viñalon, co-appellant Arnold Devera, and Viñalon's wife, Diory Viñalon, took the witness stand.

Appellant REYNALDO VIÑALON testified that on September 23, 1997, his wife instructed him to go to Fairview, Quezon City for her brother's despedida party.^[22] At around 10:30 P.M., he boarded a Jell bus bound for Fairview and dozed off along the way. He was awakened by gunfire and realized he was shot.^[23] He disclaimed taking part in the robbery.^[24] He also denied knowing his co-appellant who took him to the Malvar General Hospital^[25] and added that it was his wife who spent for his medical treatment.^[26] He claimed that the case against him was filed without prior investigation.^[27]

His wife, DIORY VIÑALON, corroborated his testimony.^[28]

Appellant ARNOLD DEVERA, for his part, testified he was merely a passenger of the bus. He said that he brought appellant Viñalon to the Malvar General Hospital out of pity.^[29] He denied poking an ice pick at the bus driver or being part of the hold-up gang.^[30]

On August 13, 1998, the trial court convicted appellants, sentencing them as follows:

WHEREFORE, judgment is hereby rendered finding the two (2) appellants, Reynaldo Viñalon y Agustin and Arnold Devera y Mocalen, GUILTY beyond reasonable doubt of the Special Complex Crime of Robbery with Homicide defined in and penalized by paragraph 1 of Article 294 of the Revised Penal Code, as amended by Republic Act 7659, and, there being one aggravating circumstance of "Band" (paragraph 6, Article 14, Revised Penal Code) without any mitigating circumstance to offset the same, are hereby sentenced to suffer the penalty of DEATH. Both appellants are ordered to indemnify the heirs of the late PO1 Joseph H. Llave the amount of P50,000.00 as death indemnity.

The watch (Exh. "I") of Reynaldo B. Elidio, the belongings (Exhs. "J" to "J-2") of the late PO1 Joseph H. Llave and the other valuables (Exhs. "K", "L", "M", "N" "O" & "P") including the knife (Exh. "Q") shall be kept by the Court until the final termination of this case.

Both appellants are ordered to pay the costs.

IT IS SO ORDERED.^[31]

Thus, appellants interposed this appeal seeking reversal of the judgment of the trial court on two grounds, viz.:

I

THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY OF THE CRIME OF ROBBERY WITH HOMICIDE WHEN THEIR GUILT HAS NOT PROVED [SIC] BEYOND A REASONABLE DOUBT.

II

GRANTING ARGUENDO THAT ACCUSED-APPELLANTS WERE GUILTY OF THE CRIME CHARGED, STILL THE LOWER COURT ERRED IN IMPOSING THE DEATH PENALTY AFTER APPRECIATING THE ATTENDANCE OF THE GENERIC AGGRAVATING CIRCUMSTANCE OF A BAND IN THE COMMISSION OF THE CRIME.^[32]

From appellants' discussion of the assigned errors, the following emerge as issues for our consideration: (1) the validity of the warrantless arrest and the search and seizure incident thereto; (2) the sufficiency of the prosecution's evidence to convict appellants for the crime of robbery with homicide; and (3) the propriety of the penalty imposed.

Concerning the first issue, appellants aver that the police conducted the warrantless arrest based upon unconfirmed suspicion. On this score, we have previously held that a warrantless arrest may be made by police officers based on their personal knowledge culled from the victim herself who pointed to the suspect as the assailant at the time of the arrest.^[33] In our view, the arrest of appellants done immediately after the incident was valid for it was made by the arresting officers after the victims of the robbery pointed to appellants as the malefactors. Accordingly, the search and seizure that ensued are valid as incidental to a lawful arrest.^[34]

However, appellants seek to nullify the seizure of the objects allegedly taken from their possession. They claim they do not constitute admissible evidence as they were not duly receipted nor properly identified at the time they were taken.

Cited in this regard is the case of People vs. Gesmundo,^[35] which stated that the officer seizing the property under the warrant must give a detailed receipt to the lawful occupant of the premises in whose presence the search and seizure was made. Note, however, that Gesmundo involved a search and seizure made pursuant to a warrant, and not to a situation of seizure incidental to warrantless arrest, as in the present case. Here, arresting officer Amigo testified that indeed he seized the disputed items from appellants but he did not issue a receipt.^[36] He claimed that the seized items were entered in the logbook of the security guard of the hospital where appellants were arrested. But this claim was unsubstantiated, as the logbook was not presented nor made part of the record of the case. Not only did the credibility of his testimony suffer thereby, but this circumstance also negated the probative force and value of the said items as evidence for the prosecution.

However, coming to the second issue, we find that appellants' guilt was proven beyond reasonable doubt by the testimonies of other prosecution witnesses and other evidence on record. In the present case, two of the victims positively identified appellants as the ones who staged the hold-up along with two other John Does. Solomon, the bus driver, categorically stated that Devera poked a bladed weapon at him and that he saw his face through the mirror in front of him.^[37] He said he had a clearer view of appellants' faces when they alighted from the bus.^[38] Elidio, one of the victims whose watch was taken by appellant Viñalon, corroborated Solomon's account of the incident on all material points. It is worth noting that these witnesses had no ill motive to falsely testify against appellants whom they had never met before. Further, the medico-legal report concerning PO1 Llave dovetailed with Solomon's and Elidio's testimonies that PO1 Llave was shot in the head and in the chest.

Appellants' defense of denial of any wrongdoing, by claiming that they were just among the passengers of the bus, is far from convincing. The defense of denial, like alibi, is considered with suspicion and always received with caution, not only because it is inherently weak and unreliable, but also because it can be fabricated easily.^[39] Their bare-faced denial cannot prevail over their positive identification as the malefactors by eyewitnesses who had no motive to falsely testify against them.^[40]

The presence of conspiracy between appellants has also been proved amply. It is easily deducible from Devera's act of poking an ice pick at the driver while Viñalon was divesting the passengers of their valuables. Their acts, collectively and individually executed, demonstrated the existence of a common design towards the accomplishment of the same unlawful purpose and objective: to hold up the bus and divest the passengers of their cash and other valuables. Conspiracy is also proved by their concerted action in shooting it out against the police officers and in leaving the vehicle together after divesting the valuables from the passengers of the bus.

PO1 Llave's slay bears a direct relation and intimate connection to the robbery, for it happened during and on the occasion of the robbery. Although it was Viñalon who pulled the trigger, both appellants are equally liable in the light of the rule that when a group of malefactors conspire to commit a robbery and arm themselves for the purpose, no member of the group may disclaim responsibility for any act of violence that is perpetrated by reason of or on the occasion of the robbery.^[41] Such violence is always reasonably to be expected, either to overcome active opposition or to forestall it altogether by disabling the victim at the very outset, or to silence him completely thereafter.

The penalty imposed on appellants, however, must be modified. The trial court imposed the death penalty based on its conclusion that the aggravating circumstance of "in band"^[42] attended the commission of the robbery. This conclusion is negated by the facts at hand.

Robbery is deemed to have been committed by a band when more than three armed malefactors took part in the commission thereof.^[43] While it can be conceded that appellants Devera and Viñalon were indeed armed with an ice pick and a gun respectively, the records, however, are bereft of proof that the two unidentified muggers were also armed. For one, prosecution eyewitness Solomon testified that he did not see whether or not the two other hold-up men were armed.^[44] Next, while prosecution witness Elidio stated in his affidavit that all four of the hold-up men were armed when they announced a hold-up (apat na holdaper na armado ng patalim at baril, at sila ay nagsabi ng "Holdap"),^[45] he, however, admitted during his testimony in court that he could not identify the two other malefactors nor did he see whether or not they were armed.^[46] His testimony on the witness stand should be held more weighty than his affidavit, for ex parte affidavits are generally subordinated in importance to declarations made in open court.^[47] Thus, we find that for lack of sufficient proof the aggravating circumstance of "in band" must be ruled out. It follows that there being neither aggravating nor mitigating circumstance attending the commission of the offense, the proper penalty to be imposed should be reclusion perpetua.^[48]

Accordingly, the grant of damages needs to be modified. The sum of P50,000 is properly awarded as civil indemnity for the wrongful death of PO1 Llave without need of proof other than the fact of death of the victim.^[49] In addition, another sum of P50,000 for moral damages should be awarded to the heirs of PO1 Joseph Llave in line with current jurisprudence.^[50] The belongings of PO1 Llave should be restored to his heirs, and so should the valuables now kept in court properly returned to their true owners, while the exhibits were instruments of the crime should be confiscated for proper disposition according to law.

WHEREFORE, the appealed decision of the Regional Trial Court of Quezon City, Branch 95, is AFFIRMED with MODIFICATION. Appellants Reynaldo Viñalon and Arnold Devera are found guilty of robbery with homicide and are sentenced to suffer the penalty of reclusion perpetua. They are ordered to jointly and severally pay the heirs of PO1 Joseph Llave P50,000 as civil indemnity and P50,000 as moral damages, together with the costs. Let the belongings and valuables now kept in court be returned to their true owners, including the heirs of the deceased PO1 Joseph Llave and the bus passengers concerned, while those that are instruments of the crime are confiscated for proper disposition by the trial court.

SO ORDERED.

Bellosillo, (Acting C.J.), Puno, Vitug, Kapunan, Mendoza, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.
Davide, Jr., C.J., on official leave.

---

^[1] Rollo, pp. 20-30.

^[2] Id. at 5-6.

^[3] "Glen" in other parts of the records.

^[4] Exhs. "A" to "A-2", Rollo, p. 22.

^[5] TSN, December 16, 1997, pp. 3-4.

^[6] Id. at 5-6.

^[7] TSN, January 27, 1998, p. 2.

^[8] TSN, February 3, 1998, p. 3.

^[9] Ibid.

^[10] Id. at 4.

^[11] TSN, February 24, 1998, pp. 3-4.

^[12] Id. at 4.

^[13] Id. at 14.

^[14] Id. at 15.

^[15] Id. at 9.

^[16] Ibid.

^[17] TSN, February 16, 1998, pp. 4-6.

^[18] Id. at 17.

^[19] Id. at 7.

^[20] Id. at 8-11.

^[21] Id. at 12-13.

^[22] TSN, March 4, 1998, pp. 5-6.

^[23] Id. at 8-9.

^[24] Id. at 10-11.

^[25] Id. at 9.

^[26] Id. at 11.

^[27] Ibid.

^[28] TSN, March 18, 1998, pp. 1-4.

^[29] TSN, April 15, 1998, pp. 3-4.

^[30] Ibid.

^[31] Rollo, p. 30.

^32] Id. at 43-44.

^[33] People vs. Alvario, G.R. Nos. 120437-41, 275 SCRA 529, 542 (1997).

^[34] People vs. Andal, et al., G.R. No. 124933, 279 SCRA 474, 493, (1997).

^[35] G.R. No. 89373, 219 SCRA 743, 752 (1993).

^[36] TSN, February 16, 1998, pp. 21-22.

^[37] TSN, January 15, 1998, pp. 3-4.

^[38] Id. at 5.

^[39] People vs. Batidor, G.R. No. 126027, 303 SCRA 335, 350 (1999).

^[40] People vs. Mamalayan, et al., G.R. No. 115282, 280 SCRA 748, 760 (1997).

^[41] People vs. Vallente, G.R. No. L-37937, 144 SCRA 495, 507 (1986).

^[42] ART. 14, Revised Penal Code: Aggravating circumstances. The following are aggravating circumstances: xxx 6. That the crime be committed in the nighttime or in an uninhabited place, or by a band, whenever such circumstances may facilitate the commission of the offense. Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band. xxx

^[43] People vs. Magdamit, et al., G.R. No. 118130, 279 SCRA 423, 433 (1997).

^[44] Supra, note 37 at 6.

^[45] Rollo, pp. 95-96.

^[46] TSN, February 24, 1998, pp. 4-5, 11.

^[47] People vs. Yanson-Dumancas, et al., G.R. Nos. 133527-28, 320 SCRA 584, 606 (1999), citing People v. Padao, G.R. No. 104400, 267 SCRA 64, 76 (1997).

^[48] People vs. Cachola, et al., G.R. No. 135047, March 16, 2001, p. 11, citing People vs. Lozada, G.R. No. 130589, 334 SCRA 602, 623 (2000).

^[49] People vs. Bayang, et al., G.R. No. 134402, February 5, 2001, p. 10.

^[50] People vs. Ereño, G.R. No. 124706, 326 SCRA 157, 169 (2000).