PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VICTORIANO GARCIA1 [The records did not indicate his middle name or initial.] and BERNARDINO CARANGUIAN y PINAPIN, accused.

On appeal is the decision of the Regional Trial Court of Tuguegarao, Cagayan, Branch 2, in Criminal Case No. 2022, convicting appellant of the crime of murder, sentencing him to suffer the penalty of reclusion perpetua, and to pay the costs.

The facts, based on the records, are as follows:

On August 1, 1991, at around 7:30 A.M., Civilian Volunteer Organization (CVO) members Ben Lumboy and William Capili informed PO3 Edwin Birung, Detachment Commander at Barangay La Suerte, that they sighted two (2) former Civilian Armed Forces Geographical Unit (CAFGU) agents at nearby Barangay Catarauan, in Amulung, Cagayan. Acting on the information, PO3 Birung formed a team to track down the two former CAFGUs.

Composed of PO3 Birung, Lumboy, Capili, Cesar de los Santos, Carlito Ramirez, Guillermo Mauricio, and Reynaldo Agpalza, the team proceeded to Barangay Catarauan. In single file, with Capili and Lumboy in the lead, they crossed an improvised wooden bridge over a creek. Suddenly Capili and Lumboy came under gunfire. The team members immediately returned fire. An exchange of gunfire ensued. After about thirty (30) minutes, the firing ceased. The gunmen withdrew in the direction of Barangay Baccring.

PO3 Birung ordered his men to rescue Lumboy and Capili. Capili was still alive and was rushed to the Cagayan Provincial Hospital at Tuguegarao, Cagayan for treatment. Unfortunately, Lumboy was already dead. His body was brought to his house. The following day, a civilian informer named Palos informed PO3 Birung that the two former CAFGUs the CVOs sighted were Bernardino Caranguian and Victoriano Garcia, herein appellant and co-accused.2 [TSN, August 26, 1993, pp. 3-22.]

After preliminary investigation,3 [Records, p. 23.] both Caranguian and Garcia were charged with the crime of murder in Criminal Case No. 2022, for the killing of Lumboy. They were also charged with frustrated murder in Criminal Case No. 2008, for the wounding of Capili. Appellant was acquitted of frustrated murder but convicted of murder. Only the murder case is now before us.

The Information for murder states:4 [Id. at 33.]

Only appellant, Caranguian, was arrested. Co-accused Garcia remains at-large to date. Upon arraignment, appellant entered a plea of not guilty.5 [Id. at 54.] Trial ensued.6 [Id. at 89.]

During trial, the prosecution presented the following witnesses: (1) Dr. Cirilo Pintucan, resident physician at the Cagayan Valley Regional Hospital, who treated the gunshot wound of Capili; (2) Dra. Dulce Donato-Baculi, retired Municipal Health Officer of Amulung, Cagayan, who conducted the autopsy on the exhumed body of Lumboy; and (3) PO3 Edwin Birung, eyewitness to the shooting incident.

Dr. Pintucan testified that Capili sustained a gunshot wound on the right side of the abdomen, the point of entry of which was 0.5 cm and the point of exit 4 cm.. Without immediate medical treatment, this tangent wound would have caused a tetanus infection which could lead to death.7 [TSN, August 2, 1993, pp. 4-7.]

Dra. Donato-Baculi conducted a post-mortem examination on the exhumed cadaver of Lumboy on September 2, 1991, a month after the incident. She testified that the cause of death was ‘shock due to massive hemorrhage secondary to gunshot wounds.’8 [TSN, August 4, 1993, pp. 3-5; Exhibit "B," "B-1," Records, p. 8.]

For his defense, appellant invoked denial and alibi. He testified that he was a CAFGU member assigned in Tabang, Sto. Nino, Cagayan. To prove his membership in the CAFGU, he presented the memorandum receipt issued for his gun. He claims that on the day of the shooting incident, he was at his post the whole day. He knows accused Garcia as a fellow CAFGU, but they were not together on the day of the incident. He was surprised to find himself arrested on February 1, 1992, for the shooting incident.9 [TSN, May 24, 1994, pp. 3-7; December 7, 1994, pp. 2-8.]

On August 11, 1995, the trial court rendered its decision,10 [Records, pp. 209-219.] the pertinent dispositive portion of which states:

Hence, the present appeal.

In his brief, appellant raises the sole issue that the lower court gravely erred in convicting him of the crime of murder in connection with the death of Ben Lumboy.11 [Rollo, p. 53.] He claims that the prosecution failed to prove his guilt beyond reasonable doubt. He assails the credibility of prosecution witness Birung since the latter did not even know the names of appellant and co-accused at the time of the incident. Further, the testimony of Birung lacks corroboration. Lastly, appellant claims an alibi, that it was physically impossible for him to be at the locus criminis since he was about 15 kilometers away at the time of the shooting incident.

For the State, the Solicitor General contends that the sole eyewitness testified in clear and unequivocal terms as to the identity of the assailants. It is well-settled that between a positive and categorical testimony and a denial, the former should prevail. Hence, appellant's bare denials and alibi cannot prevail over his positive identification, according to the Solicitor General.

The crucial issue in this appeal pertains to the sufficiency of evidence to convict appellant. More particularly, we have to inquire whether there has been sufficient identification of the appellant as the perpetrator of the offense.

The quantum of evidence required in criminal cases is proof beyond reasonable doubt. Section 2 of Rule 133 of the Rules of Court provides that "[p]roof beyond reasonable doubt does not mean such degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind." The task of the prosecution is two-fold: first, to prove that a crime was committed, and second, that accused is the person responsible. Thus, the prosecution must be able to overcome the constitutional presumption of innocence beyond reasonable doubt to justify the conviction of the accused.12 [People v. Vasquez, 280 SCRA 160, 178 (1997).] The reason for requiring proof beyond reasonable doubt is simply this -

In the case before us, the prosecution presented proof that Lumboy was killed during the shooting incident on August 1, 1991. However, we find that the prosecution failed to prove beyond reasonable doubt that it was appellant who perpetrated the killing.

On direct examination, PO3 Birung testified that Lumboy and Capili informed him that they sighted two former CAFGUs in Catarauan.14 [TSN, August 26, 1993, p. 3.] On cross-examination, PO3 Birung testified, however, that Lumboy did not actually see the two former CAFGUs but merely heard the news from his place.15 [Id. at 14.] Further, Lumboy did not categorically tell PO3 Birung that the two persons sighted were former CAFGUs, only that said persons were armed.16 [Id. at 15-16.] PO3 Birung testified that he merely heard from the people of Barangay Catarauan that there were two dismissed CAFGUs in the vicinity.17 [Id. at 17.] Further, PO3 Birung testified that he was not even authorized by the army to catch the dismissed CAFGUs, and that Catarauan was not part of his jurisdiction.18 [Id. at 18.] PO3 Birung testified that the day after the incident, a civilian informer named Palos told him the names of appellant and accused.19 [Id. at 15.] But Palos did not even witness the shooting incident. He merely executed an affidavit during preliminary investigation but did not testify in court. Hence, his affidavit is hearsay and has no probative value.20 [People v. Obello, 284 SCRA 79, 91 (1998); People v. Balderas, 276 SCRA 470, 487 (1997).]

Clearly, the information given by either Lumboy or Palos to PO3 Birung as to the identity of appellant is hearsay. The hearsay rule bars the testimony of a witness who merely recites what someone else has told him, whether orally or in writing.21 [Francisco, R., Basic Evidence, p. 212.] Section 36 of Rule 13022 [SEC. 36. Testimony generally confined to personal knowledge; hearsay excluded. - A witness can testify only to those facts which he knows of his personal knowledge; that is, wich are derived from his own perception, except as otherwise provided in these rules.] provides that a witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in the rules. In fact, PO3 Birung's testimony is even double or multiple hearsay, since it is based upon "third-hand" information related to the witness by someone who heard it from others. Multiple hearsay is no more competent than single hearsay.23 [Citing State v. Evans, 169 N.W. 2d 200, 205-206.]

PO3 Birung insists that he saw the appellant and accused "walking" during the incident.24 [Supra, see note 19.] After the initial shots rang out, however, the team members immediately sought cover. Thus, it is highly unlikely that PO3 Birung was able to sufficiently recognize the gunmen. Further, the other members of the team, including the injured Capili, did not testify as to the identity of the appellant. The trial court even observed in its decision that Capili "deliberately chose not to appear in court for 18 times when cited to appear during the hearing."

While it is accepted that the testimony of a sole eyewitness, if positive and credible, is sufficient to sustain a judgment of conviction,25 [People v. Lotoc, 307 SCRA 471, 482 (1999).] it bears stressing that such testimony must be clear, positive, and credible. Hence, an identification of the appellant as the gunman based on hearsay does not suffice for conviction.

Further, it does not appear appellant has a motive for killing the victim. While generally, the motive of the accused in a criminal case is immaterial and does not have to be proven, proof of the same becomes relevant and essential when, as in this case, the identity of the assailant is in question.26 [People v. Bautista, G.R. No. 117685, June 21, 1999, p. 21.] A finding of guilt must rest on the prosecution's own evidence, not on the weakness or even absence of evidence for the defense.27 [People v. Diaz, G.R. No. 130652, June 21, 1999, p. 31; People v. Paguntalan, 242 SCRA 753, 779 (1995).] It is precisely when the prosecution's case is weak, as in this instance, that the defense of alibi assumes importance and becomes crucial in negating criminal liability.28 [People v. Diaz, G.R. No. 130652, June 21, 1999, p. 31; People v. Adofina, 239 SCRA 67, 81 (1994).] Under our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt.29 [People v. Vasquez, 280 SCRA 160, 164 (1997).] Here, doubt as to the identification of appellant as the guilty person has not been overcome.

WHEREFORE, the decision of the trial court is hereby REVERSED and SET ASIDE. Appellant BERNARDINO Y PINAPIN CARANGUIAN is ACQUITTED for lack of proof beyond reasonable doubt that he committed the crime of murder. The Director of Prisons is hereby directed to cause forthwith the release of appellant unless he is being lawfully held for another cause, and to inform the Court accordingly within ten (10) days from notice. No costs.