Before us is an appeal from the decision of the Regional Trial Court of Quezon City, Branch 219 in Criminal Case no. Q96-65214 entitled People vs. Eduardo Pavillare y Varona, a prosecution for kidnapping for ransom.

On March 14, 1996 the accused-appellant and his co-accused were criminally charged as follows:

INFORMATION
"The undersigned accuses EDUARDO PAVILLARE Y VARONA and SOTERO SANTOS Y CRUZ of the crime of kidnapping for Ransom, committed as follows:

That on or about the 12th day of February, 1996, in Quezon City, Philippines, the above-named accused, conspiring, confederating with another person, whose true name, identity and whereabouts had not as yet been ascertained and mutually helping one another, by means of force, violence and /or intimidation did then and there, willfully, unlawfully and feloniously kidnap one SUKHJINDER SINGH at the corner of Scout Reyes and Roces Avenue, this City, and thereafter brought him at the corner of Aurora Boulevard and Boston street, this City, for the purpose of extorting ransom money in the amount of P20,000.00 Philippine currency, thereby detaining and depriving him of his liberty for more than three hours, to the damage and prejudice of the said offended party."

On April 29, 1996 both accused were arraigned and both pleaded "not guilty".

The accused Sotero Santos y Cruz filed a Motion to Dismiss the charge against him for failure of the private complainant to identify him as one of the malefactors. On February 28, 1997 the trial court granted the motion and acquitted accused Sotero Santos. The trial of the case proceeded only as against the accused-appellant Pavillare.

The private complainant, an Indian national named Sukhjinder Singh testified in court that at about noon of February 12, 1996 while he was on his way back to his motorcycle parked at the corner of Scout Reyes and Roces Avenue, three men blocked his way. The one directly in front of him, whom he later identified as herein accused-appellant, accused him of having raped the woman inside the red Kia taxi cab parked nearby. Singh denied the accusation, the three men nevertheless forced him inside the taxi cab and brought him somewhere near St Joseph's College in Quezon City. One of the abductors took the key to his motorcycle and drove it alongside the cab. Singh testified that the accused-appellant and his companions beat him up and demanded one hundred thousand pesos (P100,000.00) for his release but Singh told him he only had five thousand pesos (P5,000.00) with him. The accused-appellant forced him to give the phone numbers of his relatives so they can make their demand from them. Singh gave the phone number of his cousin Lakhvir Singh and the appellant made the call. The private complainant also stated in court that it was accused-appellant who haggled with his cousin for the amount of the ransom.^[1] When the amount of twenty five thousand was agreed upon the complainant stated that the kidnappers took him to the corner of Aurora Boulevard and Boston streets and parked the cab there. The accused-appellant and two of the male abductors alighted while the driver and their lady companion stayed with the complainant in the car. When the complainant turned to see where the accused-appellant and his, companions went he saw his uncle and his cousin in a motorcycle and together with the kidnappers they entered a mini-grocery. Later the kidnappers brought the complainant to the mini-grocery where he met his relatives. The ransom money was handed to the appellant by the complainant's cousin, after which the accused-appellant counted the money and then, together with his cohorts, immediately left the scene.^[2]

Lakhvir Singh, the complainant's cousin, testified in court that the kidnappers made about three to four phone calls a few minutes apart. The kidnappers allowed him to talk to the private complainant to prove that he is indeed in their custody. The kidnappers also told Lakhvir that his cousin, Sukhjinder, raped their companion and threatened that unless Lakhvir pays one hundred thousand pesos for Sukhjinder's release "tutuluyan namin ito". Lakhvir told the kidnappers he does not have that much money and after some haggling the kidnappers settled for twenty five thousand pesos.^[3] The kidnappers also gave instructions to deliver the money outside the Aurora Boulevard branch of the Land Bank near the old Arcega's movie house. Lakhvir stated in court that he did as instructed. When he and another relative reached the designated place three men approached him and one of them, whom he identified in court as the accused-appellant herein, asked him "Ano dala mo ang pera?" Lakhvir said "yes" but, he refused to give the money until he saw his cousin. One of the kidnappers told him to follow them and they proceeded to a mini-grocery nearby. A few minutes later one of the kidnappers came with his cousin. Lakhvir handed the money to the accused-appellant who counted it before leaving with his companions.^[4] CODES

SPO1 Eduardo Frias testified for the prosecution that he was the police officer who took the sworn statement of the private complainant on February 14, 1996 pertaining to the February 12, 1996 incident.^[5] When the accused-appellant was apprehended in connection with another case involving the kidnapping of another Indian national the private complainant herein again showed up at the police station on March 11, 1996 and identified the accused-appellant as one of his kidnappers. Another sworn statement was executed by the private complainant after he identified the accused-appellant at the police station.^[6]

For the defense, the accused-appellant testified that on the whole day of February 12, 1996, the alleged date of the incident, he was at the job site in Novaliches where he had contracted to build the house of a client and that he could not have been anywhere near Roces Avenue at the time the complainant was allegedly kidnapped.^[7] One of his employees, an electrician, testified that the accused-appellant was indeed at the job site in Novaliches the whole day of February 12, 1996.^[8]

On July 15, 1997 the trial court rendered judgment as follows:

"WHEREFORE, finding EDUARDO PAVILLARE guilty beyond reasonable doubt of having committed the crime of kidnapping for the purpose of ransom, the Court hereby sentences him to suffer the penalty of Death; to indemnify the private complainant in the amount of P20,000.00, as actual damages, with interest at 6% percent per annum from February 12, 1996; to pay him the amount of P50,000.00 as moral damages; and to pay the costs.

The Branch clerk of Court is hereby directed to immediately transmit the entire records of the case to the Supreme Court for automatic review."^[9]

This, case is before us on automatic review.

The accused-appellant Pavillare prays for an acquittal based on reasonable doubt. On March 10, 1996 the accused-appellant was apprehended in connection with the kidnapping of another Indian national. While under police custody the appellant was required to stand in a police line-up where he was supposedly identified by the private complainant as one of his abductors. Five separate charges arising from five separate incidents of kidnapping, all of whom were Indian nationals, were filed against him. He claims that he was identified by the private complainant as one of his abductors because the Indians needed a "scapegoat" for the other four cases of kidnapping of Indian nationals then pending.

The appellant argues that the private complainant could not identify his captors by himself which is shown by the inconsistencies in his testimony and by the improper suggestion made by the investigating police officer pointing to the accused-appellant as one of the malefactors. In court the private complainant stated that he described his abductors to the police investigator while the latter typed his sworn statement. He said that two of the abductors look like policemen, the third one was "tall, a little bit aged" and the other one was the driver. Their female companion was pretty. Pavillare points out however, that the sworn statement given by the private complainant does not contain a physical description of the kidnappers and that SPO1 Frias, who took the complainant's statement, testified in court that the complainant described one of his abductors as short, bejeweled and with a pock marked face. The different descriptions allegedly given by the private complainant and the absence of a physical description of the kidnappers in his sworn statement supports the accused-appellant's contention that the complainant could not describe his abductors. Pavillare contends that his arrest in connection with a different case for the kidnapping of another Indian national provided the complainant an improper suggestion that he was indeed one of the culprits in this case. The appellant claims that SPO1 Frias pointed to him and conversed with the private complainant before the latter was asked to identify the kidnappers. The time interval from the date of the incident on February 12, 1996 up to the day the accused-appellant was identified at the police line-up on March 11, 1996 further weakened the complainant's vague recognition of the culprits. Pavillare finally argues that he should not have been convicted of kidnapping for ransom but only of simple robbery as it is borne by the undisputed facts that the offenders were motivated by an intent to gain and not to deprive the complainant of his liberty. The money demanded by the offenders was not ransom money but one in the nature of a bribe to drop the accusation for rape of their lady companion.

The Solicitor-General filed brief praying for the affirmance in toto of the appealed decision. The appellee contends that in court the private complainant unhesitatingly and consistently identified the accused-appellant Pavillare as one of the kidnappers. Throughout his narration of the incident in court the complainant referred to Pavillare as one of the kidnappers because he was the one who made the phone call and the one who received the ransom money. The complainant had more than adequate opportunity to observe his abductors and he testified in court that Pavillare is one of them. As a sign of the complainant's candor, he admitted in court that he does not recognize the other co-accused, Sotero Santos, as one of his abductors and for which reason the case was dismissed against him. The complainant's failure to state an accurate description of the kidnappers in his sworn statement does not belie his identification of Pavillare in court as it is the general rule that affidavits are often inaccurate and incomplete. The argument of the accused-appellant that his identification in the police line-up was made with improper motive either from the other Indian nationals who were at the police station or from SPO1 Frias is without evidentiary basis. Moreover, the complainant's testimony is corroborated by the testimony of his cousin who met the kidnappers and handed over the ransom money to them. The trial court did not err in giving credence to the complainant's identification of Pavillare as one of the abductors.

The Solicitor-General further contends that the accused-appellant's alibi that he was in Novaliches when the crime was committed cannot stand against the positive identification of two witnesses and that his alibi does not make it physically impossible for him to be at the crime scene at the time it happened. As regards accused-appellant's plea to be convicted instead of simple robbery is without legal nor factual basis. The complainant was restrained of his liberty even if only for a few hours and his captors demanded money for his release which in fact they did after the ransom money was paid. Whether or not the kidnappers only wanted money from the complainant the manner by which they compelled him to give money, i.e. by restraining his liberty until the ransom money was paid, constitutes kidnapping for ransom. Finally, the submission that the offenders demanded a bribe and not ransom money is likewise unfounded. There is no evidence that any one of the kidnappers was a public officer in the performance of his duties when they demanded money from the complainant in exchange for his liberty.

Accused-appellant Pavillare filed Reply brief to reiterate his contention that the prosecution did not controvert his testimony to the effect that the complainant could not recognize his abductors and that it was SPO1 Frias who pinpointed him to the private complainant as one of the malefactors. Pavillare cites the complainant's failure to identify his own relative who met him at the police station after the arrest of the accused-appellant and argues that considering that the complainant was held captive only for about two hours and the interval of almost one month from the day of the incident up to the time the accused-appellant was identified at the police line-up, the complainant was deprived of any reliable recollection of his captors. The complainant's failure to give a physical description of the abductors when he gave a sworn statement to the police two days after the incident supports the accused-appellant's contention that the complainant could not identify his captors. It is also claimed that the improper identification of the accused-appellant at the police line-up without the assistance of counsel renders the said identification, including that made in court inadmissible in evidence.

The appeal is without merit.

The accused-appellant's defense that the identification made by the private complainant in the police line-up is inadmissible because the appellant stood at the line-up without the assistance of counsel is without merit.

Section 12 (1) Art III of the Commission states that "Any person under investigation for the commission of an offense shall have the right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel." Thus the prohibition for custodial investigation conducted without the assistance of counsel. Any evidence obtained in violation of the constitutional mandate is inadmissible in evidence.^[10] The prohibition however, does not extend to a person in a police line-up because that stage of an investigation is not yet a part of custodial investigation.^[11] It has been repeatedly held that custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of the crime under investigation and the police officers begin to ask questions on the suspect's participation therein and which tend to elicit an admission.^[12] The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature.^[13] It has also been held that an uncounseled identification at the police line-up does not preclude the admissibility of an in-court identification.^[14] The identification made by the private complainant in the police line-up pointing to Pavillare as one of his abductors is admissible in evidence although the accused-appellant was not assisted by counsel. In court, the private complainant positively identified Paviallare as one of his captors and testified as follows:

"Q:	Were you able to recognize the faces of the men and woman who abducted you on the afternoon of February 12, 1996?
A:	Yes, sir I can recognize if I see them again.
Q:	If you see them in court will you be able to identify them?
A:	Yes, sir.
Q:	Please point to them if the accused are inside the court room?
A:	That man, sir.
INTERPRETER:
	Witness pointing at a man seated inside the court room and when asked to identify himself he gave his name as Eduardo Pavillare.
ATTY. CRUZ:
Q:	Other than the accused Pavillare, do you recognize anybody else in this court room if among those who abducted you in the afternoon of February 12, 1996?
A:	None, sir.
Q:	Tell us how were you abducted by the accused Pavillare and his companions in that particular date in the afternoon of February 12, 1996?
A:	While I was returning to my motorcycle, they blocked my way and asked for my name, sir.
ATTY. CRUZ:
Q:	Who blocked your way and asked for your name?
A:	He was infront of his companions, sir.
INTERPRETER:
	Witness referring to accused earlier identified as Eduardo Pavillare.
x x x          x x x          x x x
ATTY. CRUZ:
Q:	If you know, Mr. Singh, where were you taken by the accused after they abducted you at the corner of Roces Avenue and Scout Reyes St., Quezon City?
A:	It was a deserted street somewhere in St. Joseph College, Quezon City, sir.
Q:	After you reached that deserted place, what happened next, if any?
A:	They asked me for P100,000.00 and I told them that I have only P5,000,00 and they told me that if I give P 100,000.00 they will let me go, sir.
Q:	Who demanded the amount of P100,000.00 from you?
WITNESS:
A:	He is the one, sir.
INTERPRETER:
	Again, witness pointing to the accused earlier , identified as Pavillare.
x x x          x x x          x x x
ATTY. CRUZ:
Q:	Could you tell us what did your abductors tell to Lakhvir while they are talking over the telephone?
A:	They told him that they should pay the amount of money for my release, sir.
Q:	Incidentally, can you tell us who among your abductors who actually talked to Lakvir over the telephone?
A:	He is the one, sir.
INTERPRETER:
	Again, witness is referring to accused earlier identified as Pavillare.
ATTY. CRUZ:
Q:	Why do you know that it was the accused Pavillare who was talking to Lakhvir over the telephone?
A:	Because I was near him and I saw him talking to Lakhvir, sir.
x x x          x x x          x x x
ATTY. CRUZ:
Q:	Where did the two of you go?
A:	Inside the mini-grocery, sir.
Q:	After you went inside this mini-grocery, what happened next, if any?
A:	I saw my cousin Lakhvir. He asked me if I am okey and I told him that they bit me up but I am still fine, sir.
Q:	After you told your cousin that you are okey except for the beating that you got but you are fine, what transpired next, if any?
A:	Lakhvir gave the P20,000.00, sir.
ATTY. CRUZ:
Q:	To whom did Lakhvir handed the P20,000.00?
A:	To him sir.
INTERPRETER:
	Witness pointed to the accused Pavillare earlier identified.
ATTY. CRUZ:
Q:	Why do you know that only P20,000.00 was handed over by accused Pavillare?
A:	Because they counted the money and they complained about it, sir.
Q:	Who counted the money?
A:	He was the one who counted the money, sir.
INTERPRETER:
	Witness pointing to accused Pavillare earlier identified.
ATTY. CRUZ:
Q:	Were you present when Pavillare counted the money?
A:	Yes, sir.
Q:	After Pavillare got the P20,000.00, what happened next, if any?
A:	They left immediately and they left me too, and we went to get my Motorcycle, sir."[15]

On cross-examination the complainant stood firm on his identification of the accused-appellant as one of the abductors. He testified:    

"ATTY. MALLABO:
Q:	You said that at approximately 12:00 o'clock noon of February 12, 1996 while, you are going back to your motorcycle you were blocked by four persons, is that correct?
ATTY. CRUZ:
	Misleading, he said 3 persons, your Honor.
COURT:
	Reform.
ATTY. MALLABO:
Q:	You were blocked, by 3 persons, is that correct?.
A:	Yes, sir.
Q:	Who was the person immediately in front of you when you were blocked?
A:	He was the one, sir.
INTERPRETER:
	Witness pointing to accused Eduardo Pavillare which was earlier identified.
ATTY. MALLABO:
Q:	What about the two (2) other persons?
WITNESS:
A:	They were behind me, sir.
ATTY. MALLABO:
Q:	What was the distance if you can tell us?
A:	Almost together and then when they asked me my name I replied and they hold my arms, sir.
Q:	Who hold your arms?
A:	He was the first, sir.
INTERPRETER:
	Witness pointed to accused Eduardo Pavillare which was identified earlier.
x x x          x x x          x x x
ATTY. MALLABO:
Q:	You said that there were 5 persons who abducted you?
A:	Yes, sir, 4 male and one female.
Q:	On March 11, 1996 your cousin informed you or your friend informed you that there were persons apprehended because also of kidnapping incident?
A:	Yes, sir. There were 4 of them arrested and when I went to see them I only recognized one of them, sir.
ATTY. MALLABO:
Q:	Who was that person?
A:	He is the one, sir.
INTERPRETER:
	Witness pointing to accused Eduardo Pavillare.
ATTY. MALLABO:
	That would be all for the witness, your Honor.
COURT:
	Any redirect?
ATTY. CRUZ:
	Few redirect, your Honor.
ATTY. CRUZ:
Q:	Mr. Witness, before you went to the police station on March 11, 1996 you were aware of how many suspects were in custody of kidnapping of Gormel, is it not?
A:	Yes, sir they were 4 of them.
Q:	You were aware that 4 persons were arrested for the kidnapping of your friend Gormel?
A:	Yes, sir.
Q:	These 4 people were shown to you, were they not?
A:	Yes, sir.
ATTY. CRUZ:
Q:	But when you were asked to identify who among them were involved in your kidnapping you only pointed one of them?
A:	Yes, sir.
Q:	You did not point to the other accused?
A:	No, sir.
Q:	The only one whom you pointed as being involved in your kidnapping was none other than the person of the accussed Pavillare?
A:	Yes, sir."[16]

Moreover, the complainant's cousin Lakhvir Singh who met the kidnappers to pay the ransom money corroborated the complainant's identification of the accused-appellant Pavillare. Lakhvir Singh testified as follows:

"Q:	After reaching the designated area somewhere along Aurora Boulevard, what happened next, if any?
A:	As we parked our motorcycle near Land Bank, the kidnappers immediately approached us, sir.
Q:	How many kidnappers approached you?
A:	Three (3) of them, sir.
ATTY. CRUZ:
Q:	How were you able to know that they are the kidnappers?
A:	Because when they approached us one of them said: "Ano dala mo and pera?"
Q:	Tell us, were you able to recognize the faces of these three persons who approached you and demanded to you whether you brought the money?
A:	Yes, sir.
Q:	If you see anyone inside the courtroom, please point to him.
INTERPRETER:
	Witness pointing at a man sitting inside the courtroom and when asked to identify himself, he gave his name as EDUARDO PAVILLARE.
ATTY. CRUZ:
Q:	After Pavillare demanded to you whether you brought with you the money, what did you do next, if any?
A:	I told them "I have the money with me but I would not hand the money to you until I see Sukhjinder Singh."
Q:	What was the response of the accused Pavillare after you told him that Sukhjinder Singh be first shown to you before you turn over the money?
A:	One of them told us to follow him and they would bring Sukhjinder Singh, sir.
Q:	From that place, where did you go if you can still recall?
A:	We proceeded to a small grocery store near Land Bank, sir.
Q:	After going inside this grocery store near Land Bank, tell us what happened next, if any?
A:	After a few minutes, one of the kidnappers arrived together with Sukhjinder Singh, sir.
ATTY. CRUZ:
Q:	After you saw Sukhjinder Singh together with one of his kidnappers, what did you do next, if any?
A:	I immediately approached Sukhjinder Singh and I asked him if he was hurt by the kidnappers and he said "yes but I am now okey.
Q:	After Sukhjinder confirmed to you that he was previously beaten and that he was already okey at that time, what did you do next, if any?
WITNESS:
A:	After that, one of the kidnappers said: "Andiyan na ang tao ninyo ibinigay mo sa akin ang pera".
ATTY. CRUZ:
Q:	Who among the kidnappers who said that?
A:	That person, sir.
INTERPRETER: Kortex
	Witness pointing to the accused earlier identified as Eduardo Pavillare.
ATTY. CRUZ:
Q:	After Pavillare demanded that you turn-over to him the money, what did you do next, if any?
A:	I gave him the money, sir.
Q:	When you said "him", to whom are you referring to?
A:	To him, sir.
INTERPRETER:
	Witness pointing to the accused earlier identified as Eduardo Pavillare.
ATTY. CRUZ:
	If you recall, how many money all in all did you give to Eduardo Pavillare that afternoon of February 12, 1996?
A:	P20,000.00, sir.[17]
x x x          x x x          x x x

We find that the trial court did not err in giving due weight and credence to the identification in open court of the accused-appellant by the private complainant and his cousin as one of the kidnappers. Both witnesses had ample opportunity to observe the kidnappers and to remember their faces. The complainant had close contact with the kidnappers when he was abducted and beaten up, and later when the kidnappers haggled on the amount of the ransom money. His cousin met Pavillare face to face and actually dealt with him when he paid the ransom money. The two-hour period that the complainant was in close contact with his abductors was sufficient for him to have a recollection of their physical appearance. Complainant admitted in court that he would recognize his abductors if he sees them again and upon seeing Pavillare he immediately recognized him as one of the malefactors as he remembers him as the one who blocked his way, beat him up, haggled with the complainant's cousin and received the ransom money. As an indicium of candor the private complainant admitted that he does not recognize the co-accused, Sotero Santos for which reason the case was dismissed against him. It bears repeating that the finding of the trial court as to the credibility of witnesses is given utmost respect and as a rule will not be disturbed on appeal because it had the opportunity to closely observe the demeanor of the witness in court.

As regards the alibi forwarded by the appellant, we find that the positive identification made by two eyewitnesses for the prosecution pointing to the appellant as one of the kidnappers prevails over it. The appellant's employee who testified to corroborate his alibi only stated that in the month of February 1996 the accused-appellant was at the Novaliches job site everyday^[18] The trial court properly took judicial notice that it will take only a few hours drive from Novaliches, where the accused-appellant claimed to be on the day of the incident, to Roces Ave., in Quezon City,where the complainant was kidnapped.^[19] Absent any competent proof that Pavillare could not have been at the scene of the crime at the time and day it was committed, the trial court correctly denied weight and credence to the appellant's alibi.

Pavillare's argument that the complainant could not have identified his abductors were it not for the improper suggestion made by the police investigator is based on the bare and uncorroborated allegation of the accused-appellant himself. The police investigator was not confronted with this accusation^[20] and the defense did not present any evidence to support it. It is on record that when Pavillare's counsel made an attempt to question the police investigator, SPO1 Frias, on a matter not covered by the direct examination, i.e., where SPO1 Frias recorded the physical description given by the complainant of his abductors, the trial court suggested that the defense may later call SPO1 Frias to the stand as a defense witness apparently to give the defense a chance to prove its allegation that the complainant did not give any physical description of his abductors and that the identification at the police line-up is tainted with an improper suggestion.^[21] The defense counsel never called SPO1 Frias to the stand. The appellant must prove the veracity of his own defense^[22] and the prosecution could not controvert what was not presented in evidence. In the same vein, the defense did not present any competent proof that Pavillare was identified by the complainant only as a scapegoat for the four other kidnapping cases committed against other Indian nationals.

The cited variance between the complainant's testimony in court and his affidavit on whether or not the complainant gave a physical description of his abductors before the police investigator pertains to a minor detail. Both the complainant and police investigator SPO1 Frias testified that the former gave a physical description of the abductors to the police. The complainant testified that he gave the physical description of the kidnappers while the police typed his affidavit but no such physical description of the kidnappers is stated in the affidavit. On the other hand, the police investigator testified that the said description was entered in the police logbook. The defense never required SPO1 Frias to produce the logbook in court to ascertain whether such a description was given during the investigation. As a rule, variance between the private complainant's affidavit and his testimony in court, as long as it does not deviate from the nature of the crime as stated in the Information, does not weaken the credibility of the testimony in court.^[23]

Finally, the accused-appellant's argument that he should have been convicted of simple robbery and not kidnapping with ransom because the evidence proves that the prime motive of the accused-appellant and his companions is to obtain money and that the complainant was detained only for two hours, are both unmeritorious. Art. 267 of the Revised Penal Code states:

Art. 267. Kidnapping and serious illegal detention.- any private individual who shall kidnap or detain another, or in any other manner deprive him of liberty, shall suffer the penalty of reclusion perpetua to death;

1. If the kidnapping or detention shall have lasted more than three days.
2. 
   
3. If it shall have been committed simulating public authority.
4. 
   
5. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.
6. 
   
7. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above mentioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is the subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.^[24]

The testimonies of both the private complainant and his cousin are replete with positive declarations that the accused-appellant and his companions demanded money for the complainant's release. The pretense that the money was supposedly in exchange for the dropping of the charges for rape is not supported by the evidence. The complainant's cousin testified that at the agreed drop-off point Pavillare demanded the ransom money and stated, "Andiyan na ang tao ninyo ibigay mo sa akin ang pera". The accused-appellant released the complainant when the money was handed over to him and after counting the money Pavillare and his companions immediately left the scene. This clearly indicated that the payment of the ransom money is in exchange for the liberty of the private complainant. The death penalty was properly imposed by the trial court.^[25]

The duration of the detention even if only for a few hours does not alter the nature of the crime committed. The crime of kidnapping is committed by depriving the victim of liberty whether he is placed in an enclosure or simply restrained from going home.^[26] As squarely expressed in Article 267, above-quoted the penalty of death is imposable where the detention is committed for the purpose of extorting ransom, and the duration of the detention is not material.

Four Members of the court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty. Nonetheless they submit to the ruling of the majority of this Court i.e., that the law is constitutional and the death penalty should be imposed in this case.

WHEREFORE, the decision of the Regional Trial Court of Quezon City in Criminal Case No. Q96-65214 finding the accused-appellant Eduardo Pavillare y Varona guilty of kidnapping for ransom and imposing the DEATH penalty and the awards for actual and moral damages is AFFIRMED in toto.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.


^[1] Sukhjinder Singh, tsn., pp. 10-21, October 2, 1996.
^[2] Ibid., pp. 25-30.
^[3] Lakhvir Singh, tsn., pp. 8-14, October 22, 1996.
^[4] Ibid., pp. 15-25.
^[5] Frias, tsn., p. 3-4, December 12, 1996.
^[6] Ibid., pp. 6-8.
^[7] Pavillare, tsn., pp. 10-11; 21-25; 28-29, June 3, 1997.
^[8] Fiel, tsn., pp. 5-6, June 17, 1997.
^[9] RTC Decision, p. 83, Rollo.
^[10] People vs. Benito Bravo, G.R. No. 135562, November 22, 1999.
^[11] Dela Torre vs. Court of Appeals, 294 SCRA 197; People vs. Salvatierra, 276 SCRA 55.
^[12] People vs. Marra, 236 SCRA 565.
^[13] Gamboa vs. Cruz, 162 SCRA 642; People vs. Lamsing 248 SCRA 471.
^[14] People vs. Pacistol, 284 SCRA 520, citing People vs. Lapura, 325 Phil. 346.
^[15] Sukhjinder Singh, tsn. pp. 10-12; 16-17; 20-21; 28-30.
^[16] Ibid., pp. 45-47; 73-76.
^[17] Lakhvir Singh, tsn., October 22, 1996, pp. 17-24.
^[18] Fiel, tsn., p. 5-6, June 17, 1997.
^[19] RTC Decision, p. 4.
^[20] Frias, tsn., December 12, 1996, p. 17.
^[21] ibid., pp. 11-12.
^[22] Section 1, Rule 131, Rules on Evidence.
^[23] People vs. Wilson G.R No. 135915, December 20, 1999; People vs. Padeo, 267 SCRA 64.
^[24] As amended by Sec. 8, RA 7659, December 31, 1993.
^[25] People vs. Bahatan, G.R. No. 121901, Jan. 28, 1998; People vs. Sala, G.R. No. 76340-41, July 28, 1999.
^[26] People vs. Domasian, 219 SCRA 245; People vs. Kulais, 292 SCRA 551.