THIRD DIVISION

[G.R. No. 134974. December 8, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO ARAPOK y CUTAMORA, accused-appellant.

DECISION

GONZAGA-REYES, J.:

This is an appeal from the decision¹ Penned by Judge Jaime N. Salazar, Jr.1 rendered on July 29, 1998 by the Regional Trial Court, Branch CIII of Quezon City in Criminal Case No. Q-976-68841, finding accused-appellant Danilo Arapok y Cutamora guilty of robbery with homicide. Accused-appellant was charged with violation of P.D. No. 1866 and Robbery with Homicide in separate informations which alleged as follows:

In Criminal Case No. Q-96-68840 for violation of P.D. No. 1866 –

“That on or about the 29^th day of November 1996 in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control (1) .38 caliber revolver paltik, marked S&W with two (2) spent shells and four (4) live ammunitions of the same caliber without first having secured the necessary license/permit issued by the proper authorities.

CONTRARY TO LAW.”² Original Records, p. 1.2

In Criminal Case No. Q-96-68841 for Robbery with Homicide –

“That on or about the 29^th of November, 1996, in Quezon City, Philippines, the above-named accused, conspiring and confederating with four (4) other persons whose true names and whereabouts have not as yet been ascertained and mutually helping one another, armed with firearms with intent to gain and by means of force, violence against and intimidation of persons, to wit: by entering the residence of one CLOUDELIA MESIONA Y JAVIER located at No. 044 Gold Street, Barangay Commonwealth, this City and once inside by poking their firearms at the persons inside the said house and announcing that it was a holdup did then and there willfully, unlawfully and feloniously take, steal and carry away the following:

One (1) VHS Video Cassette Player - - - P7,000.00

One (1) Lenon Instamatic Camera - - - 900.00

One (1) Small dark blue ladies bag - - - 50.00

One (1) Ladies Wallet - - - 120.00

One (1) Small blue ladies bag

(Park Home Cosmos) - - - 75.00

One (1) Seiko wrist watch - - - 1,600.00

One (1) gold ring - - - 2,500.00

One (1) gold bracelet - - - 15,000.00

in the total amount of P27,245.00, Philippine Currency, belonging to said CLOUDELIA MESIONA Y JAVIER against her will, to the damage and prejudice of the latter in the said amount of P27,245.00, Philippine Currency.

That on the occasion of the said offense of robbery for the purpose of enabling the said accused to take, steal and carry away the aforesaid personal properties and in pursuance of their conspiracy the said accused with intent to kill and taking advantage of their superior strengths, did then and there treacherously attack, assault and use personal violence upon PO2 ROMEO D. CALCITAS, one of the policemen from the PNP Criminal Investigation Group CID, NCRIO, Camp Crame, Quezon City who responded at the scene by then and there shooting the latter several times with a firearm, thereby inflicting upon said PO2 ROMEO D. CALCITAS mortal gunshot wounds which were the direct and immediately cause of his death thereafter.

CONTRARY TO LAW.”³ Ibid., p. 6.3

On arraignment, accused-appellant pleaded not guilty to both charges. Joint trial of the cases ensued thus.

The prosecution presented five witnesses, namely: Senior Police Inspector Darlito Dar, SPO1 Nathaniel Mallare, PO3 Nicanor Faustino, Senior Inspector Danilo Macerin and private complainant Claudelia Mesiona.

Senior Police Inspector Darlito Dar of the Criminal Investigation Division (CID) of the Philippine National Police (PNP) testified that on November 29, 1996, he was a member of the team dispatched to conduct surveillance on the activities of the Akyat Bahay gang in Fairview, Quezon City. The team received information that there were five male persons rushing out of a house and when approached opened fire. His team tried to go to the place where there was gunfire but were unable to, for fear of being hit. When the gunfire stopped, they approached the group and discovered one of the suspects killed. The four other suspects fled from the scene. One of their companions was also shot and pronounced dead on arrival at the hospital. He learned that one of the suspects was alive and was in a hospital in Banawe. They requested that the suspect be transferred to the Camp Crame hospital. On cross-examination, he testified that he did not see Danilo Arapok ransacking the house of the victim nor during the gunfight. The first time he saw the accused was in the hospital on December 2, 1996. He added further that he did not recover guns, bullets or any of the items mentioned as stolen in the information from the accused.⁴ TSN dated July 17, 1997, pp. 2-11.4

SPO1 Nathaniel Mallare testified that he and other police officers were dispatched to conduct surveillance along Barangay Commonwealth in Quezon City. A few minutes after they arrived they saw five persons coming out of a house located on Gold Street corner Martan Street, carrying firearms, a plastic bag and a blanket folded over something. They introduced themselves as policemen, at which point, the persons fired at them. During the shootout, the accused was hit but was able to run. One of his companions, PO2 Romeo Calistas was also hit. The suspects were running and the police officers gave chase. During the running gunfight, they were not able to apprehend the suspects as they attended to their wounded companion. In the early morning of November 30, 1996, somebody from Galas Station called to inform them that a certain person with a gunshot wound who had himself admitted at the National Orthopedic Hospital might have something to do with the robbery the day before. His companions verified the matter and found Danilo Arapok there. He was sure that it was Danilo Arapok in the National Orthopedic Hospital because the husband (Editho Mesiona) of the owner of the house (Claudelia Mesiona) personally pointed to him as one of the robbers in his presence. On cross-examination, he testified that the incident happened at around 9:45 in the evening; that there was no Meralco post in the immediate vicinity, but the night was clear. They were at a distance of about four meters from the five persons when they introduced themselves as policemen. During the gunfight, two of these persons were killed on the spot and guns were recovered from them. He went to the hospital on December 3, 1996, and recovered none of the items mentioned in the two informations from the accused. He did not actually see accused and his companions ransack the house of the victim but saw them when they were coming out of the house. The bodies of the two suspects were located 200 meters away from the house of the victim. They recovered all the items mentioned in the information beside the two fallen suspects. Their chief turned over all of the items to the chief investigator of the CPD.⁵ Central Police District.5 He does not know if they were turned over to the owner.⁶ TSN dated July 18, 1997, pp. 5-36.6

PO3 Nicanor Faustino testified that he came to know the accused when he saw him at the National Orthopedic Hospital; that he was dispatched to conduct surveillance in Barangay Commonwealth in Quezon City; that he spotted five men rushing out of a house along Martan Street corner Gold Street carrying a blanket with something inside. When they saw them, they said, “Sandali, sandali. We are police officers.” Soon after, a firefight commenced. He doesn’t know who started the firefight as he just heard gunshots. When asked if he could identify these men again, he pointed to a person seating inside the court room who identified himself earlier as Danilo Arapok. He said he was about 200 meters away from the accused when he saw him that evening. As a result of the gunfight, two of the suspects were killed and one of his companions, Romeo Calcitas was also killed, while the others were injured. He came to know that one of the injured suspects was in a hospital in Banawe when a police officer from another police station called to say that there was a person with a gunshot wound who checked in by the name of Renaldo Reyes. On cross-examination, he testified that when they arrived at the corner of Martan and Gold Streets, police officer Calcitas was already wounded because he was part of the blocking force who met the suspects. He further testified that it was on November 30, 1996, that the police station received a call regarding a man with a gunshot wound in the National Orthopedic Hospital. They transferred the accused to the Camp Crame hospital on December 3.⁷ TSN dated July 18, 1997, pp. 36-68.7

Senior Inspector Danilo Macerin testified that nine operatives including himself were dispatched to Barangay Commonwealth to conduct surveillance. The operatives went to different places in the barangay. At 9:45 p.m., while cruising along Fabian street, they heard gunshots approximately 30 to 40 meters away. They alighted as they were alarmed. When they got down they saw three male persons running towards their direction, and one was carrying a plastic bag. He could not identify the one carrying the “supot.” They identified themselves as police officers and immediately one of them fired at him. He retaliated and also fired. There was a running gunfight, but they stopped chasing and attended to Calcitas who was wounded. During the firefight he noticed that they wounded two of the suspects. They were able to apprehend all but one of the wounded suspects right then and there. Subsequently, they received a call from a police station about a male person with a gunshot wound confined at the National Orthopedic Hospital. Upon verification, it was found out that the person with a gunshot wound was registered as Reynaldo Reyes. On cross-examination, he testified that he was not actually present when the house of Claudelia Mesiona was robbed; that he saw Arapok in the hospital in Banawe in December but did not recover any of the stolen items from him. He didn’t know that Danilo Arapok was at the scene of the crime.⁸ TSN dated September 25, 1997, pp. 3-51.8

Private complainant Claudelia Mesiona testified that on November 29, 1996, she was at home watching television when three unidentified men entered her house located in Commonwealth, Manggahan, Quezon City at around 9:45 p.m. They were carrying firearms and announced a hold-up. She was then with her husband, daughter, son, niece and househelp. They were told that they will not get hurt if they would bring out the money. Three persons went upstairs to the second floor. When she went downstairs she saw two more persons standing by the door with the other poking a gun at her husband. They were asked to lie down on their stomachs, thereafter, they were asked to go inside the comfort room without looking up. While inside the comfort room, she heard gunfire as the hold-uppers went out of the house. On cross-examination, she testified that she was on the second floor when the men entered their house and that her husband was on the ground floor. When they were led downstairs, she saw her husband lying down face flat on the floor. After the incident they did not go back to the house anymore. And they have since moved to their store in Quiapo.⁹ TSN dated October 28, 1997, pp. 2-19.9

On the other hand, the defense presented two witnesses, namely: the accused himself, Danilo Arapok and his sister Rosanna Arapok.

Danilo Arapok testified that he is a newspaper vendor; that on the whole day of November 29, 1996, he was in his house at Mapagbugay, V. Luna, Barangay Piñahan, Diliman, Quezon City. He sells newspapers in Quezon City Hall. At around 4 a.m. of November 30, 1996, he went out of his house to get his newspaper “paninda” from Cubao. Right after he stepped out of his house, he saw several people chasing each other and there was an exchange of gunfire. He did not know these people who were inside vehicles chasing each other. He was hit by a stray bullet ten meters from his house. He was advised by his “ate” to go to the National Orthopedic Hospital in Banawe. He arrived in the hospital at past 5 a.m. and treated thereat. After two days, he was informed by the policemen that he was one of the suspects in a robbery. He couldn’t name the police officers as they were wearing civilian clothes. He was then brought to Camp Crame. At the Crame hospital, a man and a woman arrived. A policeman asked them to point to him as one of the robbers and they did. He stayed in the Crame hospital for one month. After one month, he was transferred to a detention center. On cross-examination, he testified that he was shot about 10 meters away from his house; that he was not at the corner of Gold and Martan streets; and that he saw Caludelia Mesiona for the first time in court.¹⁰ TSN dated February 25, 1998, pp. 2-44.10

Rosanna Arapok, sister of the accused testified that she was at home in the afternoon and evening of November 29, 1996, at 41 Mapagbigay Street, V. Luna, Diliman, Quezon City. Her brother was with her at home. Her brother went out of the house in the morning of November 30, 1996 to get his “paninda” at past 4 a.m.. When he left, she heard gunshots. Then she heard somebody shout: “Ate, ate tulungan mo ako.” She immediately brought him to the hospital where on the way, Danilo relayed to her that he was hit by a stray bullet by several persons who were exchanging gunfire outside. The incident was no longer reported to the police authorities as they knew that the police authorities would come anyway. Policemen went to the hospital and told her brother that he was a suspect in a robbery and that they were going to bring him to Camp Crame. On cross-examination, she testified that on November 29, 1996, she arrived home from the office at 5 p.m. The next day she did not go to work so she could accompany her brother to the hospital. She was asleep between 12 midnight of November 30, 1996, up to 4 a.m. of the next day. She said that Danilo woke her up before he got his “paninda” in the morning. Her brother left the house at 4 a.m. She does not know the private complainant in the case and she does not know of any reason why the former would identify her brother as the one who entered the house.¹¹ TSN dated March 23, 1998, pp. 2-12.11

In sum, the testimony of the prosecution witnesses established that the residence of Cloudelia Mesiona at 44 Gold Street, Barangay Commonwealth, Quezon City, was entered into by several armed men at 9:45 p.m. on November 29, 1996 and took away several personal belongings therein with force and intimidation. As the several armed men went out of the house, they encountered a group of policemen and a running gunfight took place which attracted other police teams to the scene. As a result thereof, two of the suspects lay mortally wounded, while one of the responding officers, Romeo D. Calcitas, was hit fatally. For his part, accused-appellant sought to establish that he was wounded in the arm in another exchange of gunfire near their house at Mapagbigay Street, Barangay Piñahan, Quezon City. According to him, he was hit accidentally by the persons exchanging gunfire.

On July 29, 1998, the trial court rendered its decision, acquitting accused–appellant of the charge of illegal possession of firearms for insufficiency of evidence. However, it convicted him of the crime of Robbery with Homicide after finding the testimonies of the prosecution witnesses to be credible and rejecting accused-appellant’s denial and alibi. The dispositive part of the said decision reads:

“1. In Q-96-68840 for violation of P.D. 1866 (Illegal Possession of Firearms), accused Danilo Arapok y Cutamora is ACQUITTED on insufficiency of evidence, and

2. In Q-96-68841, the accused DANILO ARAPOK y CUTAMORA is hereby found, beyond reasonable doubt, GUILTY as co-principal in the crime of Robbery with Homicide in violation of the Revised Penal Code and he is hereby sentenced to suffer the penalty of Reclusion Perpetua. There being a confrontational firefight, treachery and abuse of superior strength are discounted.

On the civil aspect, the accused Danilo Arapok is hereby ordered to return the articles stolen from offended victim Cloudelia Mesiona y Javier, less the items returned by the police to her, if any, otherwise to pay their price, namely VHS player (P7,000.00), Lenon Camera (P900.00), dark blue bag (P50.00), wallet (P120.00), small blue bag (75.00), seiko watch (P1,600.00), a gold ring (P2,500.00) and a gold bracelet (15,000.00).

On the civil award for the death of police officer Romeo D. Calcitas, accused DANILO ARAPOK Y CUTAMORA is hereby ordered to pay the heirs of said police officer the sum of P75,000.00 as indemnification damages. Costs against the accused.

SO ORDERED.”¹² RTC Decision, p. 7; Rollo, p. 21. 12

Accused-appellant imputes the following errors to the court a quo: (1) in convicting the accused-appellant of the crime of robbery with homicide notwithstanding that the evidence adduced by the prosecution appears to only establish the crime of robbery; and (2) in not acquitting the accused-appellant considering that he was not clearly positively identified and absent any proof of conspiracy.¹³ Appellant’s Brief, p. 1; Rollo, p. 47.13

Firstly, we do not agree with accused-appellant that the killing of PO2 Calcitas is in no way connected with the robbery and should be considered as a separate crime considering that the same occurred after the crime of robbery had already been consummated. The five suspects were coming out of the house and were carrying the stolen goods. The policemen identified themselves, at which point, the five suspects immediately opened fire. In the course of the gunfight, two of the suspects were killed and one police officer. Evidently, the suspects engaged the policemen in a gunfight either to defend possession of their loot, or to escape after the commission of the robbery, or both. It cannot be denied that the killing of PO3 Calcitas took place as a necessary consequence of the commission of the robbery.

In cases of robbery with homicide as defined in Art. 294(1) of the Revised Penal Code,¹⁴ Art. 294. Robbery with violence against or intimidation of persons –Penalties. – Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer:

1. The penalty of from reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed;

x x x.14 the principal purpose of the accused must be shown to be to commit robbery, the homicide being committed either by reason or on occasion of the robbery. The elements of robbery with homicide are: (1) the taking of personal property is committed with violence or intimidation against persons; (2) the property taken belongs to another; (3) the taking is done with animo lucrandi; and (4) by reason of the robbery or on the occasion thereof, homicide (used in its generic sense) is committed.¹⁵ People vs. Salazar, 277 SCRA 67 (1997).15 In robbery with homicide, what is essential is that there be “a direct relation, an intimate connection between robbery and the killing, whether the latter be prior or subsequent to the former or whether both crime be committed at the same time.”¹⁶ People vs. Navales, 266 SCRA 569 (1997). 16

There is no question that the original and principal intention of the five armed men was to rob the Mesionas, as is evident from the testimony of Claudelia Mesiona that as soon as the five men entered their house somebody shouted “Hold-up!”. As the robbery resulted in the killing of PO3 Romeo Calcitas, as charged in the information, the offense committed by the malefactors is indubitably the special complex crime of robbery with homicide.

Secondly, accused-appellant disputes the conviction on conspiracy. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.¹⁷ People vs. Quinao, 269 SCRA 495 (1997).17 Conspiracy may be deduced from the acts of the suspects before, during, and after the commission of the crime which are indicative of a joint purpose, concerted action, and concurrence of sentiments.¹⁸ People vs. Magallano, 266 SCRA 305 (1997).18 In the instant case, the conspiracy to commit the crime of robbery was shown by the coordinated acts of the five persons. From the time they gained entry into the Mesiona residence they announced it was a hold-up and demanded money; two of the men stood guard at the ground floor; the other three went upstairs and proceeded to ransack the house; they then left the house together carrying the loot. With the foregoing circumstances, there can be no other conclusion than that the successful perpetration of the crime was done through the concerted efforts of the five armed men seen rushing out of the house.

Thirdly, accused-appellant contends that he cannot be held liable for the death of PO2 Calcitas, considering that he was not pinpointed to as the one who shot the former and there was no proof adduced by the prosecution to establish that the escaping robbers conspired to kill him. The rule is settled that whenever homicide has been committed as a consequence or on the occasion of robbery, all those who took part as principals in the robbery will also be held guilty as principals of the special complex crime of robbery with homicide although they did not actually take part in the homicide.¹⁹ People vs. Guiamil 277 SCRA 658 (1997).19 Indeed, when a homicide takes place by reason or on the occasion of the robbery, all those who took part in the robbery shall be guilty of the special complex crime of robbery with homicide whether or not they actually participated in the killing, unless there is proof that they had endeavored to prevent the killing.²⁰ People vs. Magdamit, 279 SCRA 423 (1997).20

We now come to the main thrust of the defense in the instant appeal that the testimonies of private complainant Claudelia Mesiona and SPO3 Nathaniel Mallare, relative to the identity of accused-appellant as one of the malefactors cannot be given full faith and credence. Accused-appellant contends that the prosecution failed to clearly and positively identify accused-appellant as one of the culprits on account of the following circumstances: (1) Claudelia Mesiona previously singled out a certain Florencio Francisco as one of the robbers before retracting her identification of him, and resolving to point an accusing finger at the accused-appellant on the prodding of the fiscal; and (2) SPO2 Nathaniel Mallare who claims to have seen the accused-appellant come out of the house of the Mesiona residence along with the four other suspects could not have positively made out the features of accused-appellant during that fateful evening since, by his own admission, his group of police officers immediately engaged the suspects in an exchange of gunfire and PO3 Nicanor Faustino who was with him at the time never testified in open court that he actually saw the accused-appellant together with the other suspects at that time.

In seeking the conviction of an accused in a criminal case, the first, if not the basic foundation upon which the prosecution builds its case against the former is proof beyond reasonable doubt that it is the said accused who committed the crime charged.²¹ People vs. Delmendo, 109 SCRA 350 (1981).21 In other words, the identity of the accused is the first duty of the prosecution.²² Ibid.22

Of the five prosecution witnesses, Senior Police Inspectors Darlito Dar and Danilo Macerin admitted that they did not see or recognize accused-appellant as one of the suspects during that fateful night. It is doubtful that PO3 Nicanor Faustino who claims to have seen accused-appellant at a distance of 200 meters at around 9:45 in the evening without any Meralco post in the immediate vicinity, clearly saw the face of accused-appellant. As to him, the impossibility of identification could not be ruled out because of the time and of the place, and the fact that it was their first encounter. A further review of the testimony of SPO1 Nathaniel Mallare discloses that while he claims to have seen accused-appellant coming out of the house at 9:45 in the evening at a distance of about 4 meters when his group introduced themselves as policemen, he nevertheless testified that he was sure it was Danilo Arapok in the National Orthopedic Hospital because when he got there, the husband of the owner of the house personally pointed to him as one of the robbers. The unreliability of the identification made by SPO2 Mallare of herein accused-appellant is underscored by his own account, that his group of police officers immediately engaged the suspects in an exchange of fire; and that at that time, PO3 Nicanor Faustino who was with him never testified in open court that he actually saw the accused-appellant together with the other suspects.

Thus, on the issue of identification, the trial court did not rely on the testimonies of the police officers including that of SPO2 Nathaniel Mallare but on the testimony of Cloudelia Mesiona and a photograph showing the husband of Cloudelia Mesiona pointing to accused-appellant as one of the malefactors. The trial court explained thus:

“The court believes that said accused has been properly identified by no less than Cloudelia Mesiona who had the opportunity to do so as she and her family were asked to go downstairs and were herded inside the comfort room. She pointed out that she saw the accused guarding her husband.

Moreover, the accused admitted that as per a hospital photograph taken of him while in bed at a Camp Crame hospital (Exh. B), he was pointed to as one of the robbers by a man, no less than Editho Mesiona, husband of Cloudelia Mesiona, who did so in the presence of S/Insp. Danilo Macerin and SPO1 Nathaniel Mallare.”²³ Rollo, p. 20.23

However, a careful scrutiny of the testimony of Claudelia Mesiona reveals that her in-court identification of accused-appellant as one of the malefactors is vague and uncertain, as follows:

“FIS. MACEREN:

If you see these three people again, will you be able to identify the same?

WITNESS:

It was like this, these three persons who went up the stairs on the second floor, I don’t know at first there were two persons down stairs, these persons asked us “dumapa” and thereafter when we went down that was the time I saw two persons standing by the door and the other is poking the gun to my husband sir.

FIS. MACEREN:

There were two persons downstairs?

WITNESS:

Yes, sir.

FIS. MACEREN:

These two persons downstairs they were also armed?

WITNESS:

Yes sir.

FIS. MACEREN:

If you see any of these persons, five persons, will you be able to identify?

WITNESS:

Yes, sir.

FIS. MACEREN:

Will you please look around inside this courtroom if any one of the five persons is present?

WITNESS:

Yes sir.

FIS. MACEREN:

Will you please point to us who is that person?

WITNESS:

That man sir, wearing yellow t-shirt sir.

COURT:

Will you please tap the shoulder of the man you are pointing to?

WITNESS:

This man sir.

INTERPRETER:

Witness tap the shoulder of a man, who identified himself as Florencio Francisco.

FIS. MACEREN:

Madam witness you pointed to somebody wearing yellow shirt, are you sure he is a person who was together with the group?

ATTY. SAVELLANO:

Already answered your honor.

FIS. MACEREN:

I am asking your honor if there is any other person within the group of five inside this court room your honor.

ATTY. SAVELLANO:

The witness answered that there is only one person among the five persons entered their house who is inside the courtroom your honor.

COURT:

Sustained.

FIS. MACEREN:

Will you tell us of these five persons and the one whom you saw downstairs, how long did it take a look at him?

WITNESS:

Hindi masyadong matagal at masyadong mabilis ang pangyayari and it is already one year ago.

FIS. MACEREN:

After you were told to lay down and the person poked gun to your husband and son, what happened next?

WITNESS:

We were asked to go inside the comfort room at hindi kami pinatingala sir.

FIS. MACEREN:

What happened after you were asked to go the comfort room?

WITNESS:

I heard the hold-uppers went out, I heard several gun fire and after five (5) minutes we went out of our house sir.

FIS. MACEREN:

As a result of this incident what if any has been loss?

ATTY. SAVELLANO:

We object your honor, no basis yet.

FIS. MACEREN:

Where there any items taken as a result of this robbery Ms. witness?

WITNESS:

Yes sir.

FIS. MACEREN:

What were these items Ms. witness?

WITNESS:

My ring, wrist watch, VHS and there were also several items which were taken from our room which I do not know what are those sir.

FIS. MACEREN:

Just a while ago while you were answering what was loss you shouted us “ayun pala siya” what do you mean?

WITNESS:

Kasi siya talaga, siya po kasi talaga.

FIS. MACEREN:

To whom you are pointing to?

WITNESS:

That man sir wearing orange, siya po talaga, I am sorry sir.

COURT:

Will you please go down and tap the shoulder of the man you are referring to?

WITNESS:

This man sir.

INTERPRETER:

Witness tap the shoulder of a man who identified himself as Danilo Arapok.

FIS. MACEREN:

What was the participation of this person wearing orange in this hold up?

WITNESS:

He was the one outside sir.

FIS. MACEREN:

Outside where?

WITNESS:

He was the one standing by the door sir.

FIS. MACEREN:

What was he doing at the door?

WITNESS:

As if he was guarding and holding the firearm.

FIS. MACEREN:

What kind of firearms sir?

WITNESS:

Debola, I do not know the kind of firearm.

FIS. MACEREN:

You mentioned “debola”, you mentioned you do not know particulars about firearms, when you say “debola” will you please describe?

WITNESS:

The one with something round in it.

FIS. MACEREN:

No further question your honor.”²⁴ TSN dated October 28, 1997, pp. 5-10.24

We are disconcerted by the uncertain testimony of Cloudelia Mesiona. Initially, she identified a person other than herein accused-appellant as one of the culprits. Subsequently, she admitted that the incident happened so fast and over a year ago that she did not really get a good look of the malefactors who stayed downstairs. Based on the foregoing, we can not rule out mistaken identity. Verily, while it is not shown that Claudelia Mesiona has been impelled by any ill-motive to testify against the accused, such, circumstance, however, does not guaranty that she could not have made an honest mistake.²⁵ People vs. Niño, 290 SCRA 155 (1998).25

The trial court also relied on a photograph showing Editho Mesiona pointing to the accused as one of the perpetrators of the crime who was then lying in bed at the Camp Crame hospital. While Macerin and Mallare testified that they were present at the time the photograph was taken, effectively vouching for the photograph’s accuracy in portraying the scene at the time it was taken, the non-presentation of Editho Mesiona, however, further underscores the unreliability of accused-appellant’s identification as one of the culprits. Editho Mesiona was not presented in court to testify as to the events that transpired in the hospital. Apparently, Mesiona was called by the police to proceed to the hospital to identify a lone suspect, herein accused-appellant who lay wounded in a bed. As far as the records show, Editho Mesiona executed an affidavit²⁶ Records, p. 14.26 at the Camp Crame hospital on December 3, 1996, wherein he related that he was informed by the police that there was a person confined in the hospital with a gunshot wound in the left arm; that he was asked if he could take a look at him to see if he recognizes him; that he was guided to the patient; whereupon, he identified accused-appellant as the same person who robbed them on that fateful night.

In People vs. Timon,²⁷ 281 SCRA 577 (1997).27 this Court reiterated the procedure for out-of-court identification and the test to determine the admissibility of such identification thus:

“x x x. Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness’s opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure.”

We find that the out-of-court identification of accused-appellant, which is a show-up, falls short of “totality of circumstances” test. Specifically, there was no prior description given by the witness to the police at any time after the incident; and we cannot discount the possibility that the police may have influenced the identification under the circumstances by which accused-appellant was presented to him. This Court has held in People vs. Salguero²⁸ 198 SCRA 357 (1991).28 that this kind of identification, where the attention of the witness is directed to a lone suspect, is suggestive. Also, in People vs. Niño ²⁹ 290 SCRA 155 (1998).29, this Court described this type of out-of-court identification as being “pointedly suggestive, generated confidence where there was none, activated visual imagination, and, all told, subverted their reliability as eye-witnesses.”

In cases such as the instant one, where the identification made by the principal eyewitness Claudelia Mesiona was uncertain, a little extra effort on the part of the prosecution to acquire appropriate corroborating evidence goes far towards achieving the proper ends of justice.³⁰ People vs. Cartuano, 255 SCRA 403 (1996).30 Whatever flaw attended the out-of-court identification of accused-appellant could have easily been cured by a subsequent positive identification in court by Editho Mesiona himself. Stated in another way, “inadmissibility or unreliability of an out-of-court identification should not necessarily foreclose the admissibility of an independent in-court identification.”³¹ People vs. Timon, supra.31

Once again we stress that the correct identification of the author of a crime should be the primal concern of criminal prosecution in any civilized legal system.³² People vs. Agustin, 246 SCRA 673 (1995).32 Corollary to this is the actuality of the commission of the offense with the participation of the accused.³³ Ibid.33 All these must be proved by the State beyond reasonable doubt on the strength of its evidence and without solace from the weakness of the defense.³⁴ Ibid.34 Thus, even if the defense of the accused may be weak, the same is inconsequential if, in the first place, the prosecution failed to discharge the onus on his identity and culpability.³⁵ Ibid.35 The presumption of innocence dictates that it is for the people to demonstrate guilt and not for the accused to establish innocence.³⁶ Ibid.36

Premises considered, we find the evidence for the prosecution inadequate to prove the guilt of the accused-appellant beyond reasonable doubt.

IN VIEW OF ALL THE FOREGOING, the judgment of conviction appealed from is hereby REVERSED and SET ASIDE and another one is entered ACQUITTING accused-appellant Danilo Arapok y Cutamora of the crime of robbery with homicide due to reasonable doubt. His immediate release from prison is hereby ordered in the absence of any other legal cause for his continued incarceration.

SO ORDERED.

Melo, J., (Chairman), Vitug, and Panganiban JJ., concur.