WBench1

THIRD DIVISION

[G.R. No. 137750. January 25, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DINDO ABSALON and JOEL DIJON, accused-appellants.

D E C I S I O N

GONZAGA-REYES, J.:

Before this Court is the appeal of accused-appellants Dindo Absalon and Joel Dijon seeking the reversal of the decision[1] of the Regional Trial Court, Branch 13, Carigara, Leyte in Criminal Case No. 2611 finding them guilty of the crime of murder.

Accused-appellants Dindo Absalon and Joel Dijon together with Robert Inzo, Joseph Dijon and Eddie Quilisadio were charged with murder under the following Information[2]–

“That on or about the 5^th day of October 1996, in the Municipality of Leyte, Province of Leyte, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, with deliberate intent, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, and assault and shot one ROMULO ACEBEDO with firearms (M14 and M16 rifles) which the accused have provided themselves for the purpose, thereby inflicting upon the latter the following wounds, to wit:

1. Gunshot wound over right face, measuring 1 cm. in diameter, lacerated, inverted, with contusion collar; connected to a wound on the left side of the head, measuring 4 inches in diameter, lacerated everted, with the skull fractured and the brain exposed and blown out.

2. Gunshot wound, left angle of the mouth, lacerated, inverted, with contusion collar; connected to a wound on the vertex of the head posterior, measuring 1-1/2 inch in diameter, lacerated, everted, and with the skull fractured and brain exposed.

3. Powder burns found over the lower face more on the or around the left side of the mouth.

which wounds caused the death of said Romulo Acebedo.

CONTRARY TO LAW.”

Upon arraignment on January 27, 1997, all the accused duly assisted by counsel, except Eddie Quilisadio who remained at large, pleaded not guilty to the crime charged.[3]

The following facts are supported by the evidence:

At about 7 o’clock in the morning of October 5, 1996, Barangay captain Romulo Acebedo of Mataluto, Leyte, Leyte, and his wife, Ruperta Ranis Acebedo were on their way to the house of a certain Lily Catari located in the Barangay proper of the same Barangay to settle a family problem.[4] While on their way and upon reaching the cemetery, three (3) gunshots rang out,[5] and Romulo Acebedo was shot and fell to the ground[6] Appellant Dindo Absalon approached them and shot Romulo at the mouth with a long firearm[7]. Ruperta Acebedo cradled her fallen husband, holding his head and saw blood oozing therefrom[8]. She then saw appellant Joel Dijon, who was unarmed, approach appellant Dindo Absalon[9] and saw another person whom she cannot identify[10] Thereafter, Ruperta ran towards the direction of their house[11] In the autopsy examination conducted by Dr. Leticia Gatchalian, it was reported that the victim Romulo Acebedo sustained two gunshot wounds and the cause of death was severe hemorrhage secondary to gunshot wounds.[12]

After trial on the merits, the lower court rendered its decision dated August 24, 1998,[13] the dispositive portion reads:[14]

“WHEREFORE, IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, judgment is hereby rendered finding accused JOEL DIJON and DINDO ABSALON GUILTY of the crime of Murder and is (sic) hereby sentenced to suffer the penalty of RECLUSION PERPETUA and to indemnify the heirs of the victim, Romulo Acebedo, the sum of P100,000.,00 without, however, subsidiary imprisonment in case of insolvency, and further, the Court finds accused JOSEPH DIJON NOT GUILTY and orders the DISMISSAL of the case against him. The bail he posted may now be released and without any further legal effect.

SO ORDERED.”

In holding accused Dindo Absalon and Joel Dijon liable, the trial court gave credence to the testimony of prosecution witness Ruperta Acebedo, wife of the deceased victim, who positively identified the accused, and rejected the defense of alibi invoked by the appellants. It concluded that Ruperta cannot be mistaken as to the identity of the accused Dindo Absalon and Joel Dijon because Joel was a neighbor of the Acebedos at Barangay Mataluto while Dindo was positively identified when he shot Romulo at close range; that the inconsistencies in the testimony of Ruperta referred only to minor details which strengthened her credibility as it meant that she was speaking the truth. The Court however, acquitted Joseph Dijon on the ground that the only evidence connecting Joseph to the commission of the crime charged was the doubtful testimony of Ismael Diola; hence his participation based on conspiracy was not proven. Accused Roberto Inso figured in an incident and was shot to death on July 13, 1998; thus the case against him was dismissed.

The instant appeal filed by accused-appellants Dindo Absalon and Joel Dijon allege that the lower court erred:[15]

“I. IN CONVICTING THE HEREIN ACCUSED-APPELLANTS DESPITE THE FAILURE OF THE PROSECUTION TO OVERCOME THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE OF THE ACCUSED-APPELLANTS;

II. IN CONVICTING THE ACCUSED-APPELLANTS DESPITE A STRONG DEFENSE OF ALIBI AND TOTAL DENIAL, AND IN BELIEVING THAT SAID DEFENSE IS A SHAKY FOUNDATION AND APPEARS DOUBTFUL IF NOT A TOTAL FALSEHOOD;

III. IN CONVICTING THE ACCUSED-APPELLANTS DESPITE THE FACT THAT THE TESTIMONIES OF THE PROSECUTION WITNESSES ARE TAINTED WITH MATERIAL INCONSISTENCIES AND INCREDIBLE AND WERE HEARSAY; AND,

IV. IN NOT APPRECIATING THE FACT THAT THE PROSECUTION WITNESSES WERE INFLUENCED BY THE POLICE OFFICERS IN IMPUTING THE CRIME TO THE HEREIN ACCUSED-APPELLANTS.”

The central issue in this appeal focuses on the credibility of the prosecution witnesses particularly of Ruperta Ranis vda de Acebedo, wife of the victim Romulo Acebedo, in identifying her husband’s assailants.

Appellants contend that the trial court erred in concluding that they were positively identified by Ruperta Acebedo whose testimony was inconsistent and incredible, citing the following: (I) that when Trinidad Golane (balae of the spouses Acebedos) and a certain Barangay Councilman reported the killing incident to the police authorities, they said that the deceased victim Romulo Acebedo was shot by unidentified men, thus appellants insinuate that had Ruperta Acebedo really known the assailants, she would have told the former the names of the assailants; (2) that when Ruperta Acebedo was being interviewed by the police officers, she never mentioned the names of her husband’s assailants; (3) that there were inconsistencies between Ruperta’s affidavit and her testimony in the court especially with respect to the identity of the accused-appellants.

In his brief, the Solicitor General prays for the affirmance of appellant Dindo Absalon’s conviction but seeks the acquittal of appellant Joel Dijon on the ground that conspiracy between appellants was not proven, arguing that Joel Dijon’s mere presence in the crime scene does not make him guilty.

The settled rule is that appellate courts will generally not disturb the findings of the trial court on the issue of credibility of witnesses considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during trial.[16] After an examination of the records, we affirm the trial court’s finding that the prosecution witness Ruperta Acebedo has proven beyond reasonable doubt that accused-appellant Dindo Absalon was the one who shot her husband at close range. Her testimony was clear and consistent that she saw appellant Dindo Absalon shoot her husband with a long firearm at a distance of about five armslength. Thus -[17]

“Q: How did you proceed on that morning going to the barangay hall?

A: We walked to the barangay hall.

Q: While you were on your way can you tell this Court what transpired?

A: From our house when we reached the cemetery I heard a shot and also my husband heard a shot.

Q: How many shots were you able to hear?

A: I heard three shots and my husband told me that there was a smoke.

ATTY. SANTOS:

Q: After your husband said “nagpu-ot man” what happened next?

A: Because of the shot my husband turned back and I followed him then I heard the shot and when I look at him he fell down.

Q: Was your husband hit?

A: Yes, sir.

Q: How many wounds did your husband sustain?

A: Two (2).

Q: Where were these wounds located?

A: Witness pointing at her right cheek and it goes out at the top of the head and the second shot was at the mouth and it exited at the back of the head.

Q: And when this happened what did you do?

A: I cradle his body holding his head and I saw the blood oozing.

Q: Thereafter what happened?

A: Somebody counted one and two.

Q: Who was that somebody?

A: It was Joel Dijon and Dindo Absalon whom I saw and one whom I did not identify.

Q: You said there was a wound which came through from the mouth and exited from the top of the head. Did you come to know who made or who shot your husband this time?

ATTY. TUMAMAK:

We object Your Honor. This witness would be incompetent.

ATTY. SANTOS:

We will find it out Your Honor, if she can answer that.

COURT:

What is the question?

STENOGRAPHER READING BACK THE QUESTION:

Q: You said there was a wound which came through from the mouth and exited from the top of the head. Did you come to know who shot your husband this time?

COURT:

Let the witness answer.

ATTY. TUMAMAK:

We submit, Your Honor.

A: The wound that exited at the top of the head the one who shot it was Dindo Absalon.

ATTY. SANTOS:

Q: Will you point that person now if he is in Court?

A: Yes sir. (Witness pointing to a person inside of the courtroom who when asked of his name identified himself as Dindo Absalon.)

Q: Did you find out with what weapon did he use in shooting your husband?

A: Long firearm.

Q: How far was he to you when he fired on your husband?

ATTY. SANTOS:

Q: . . . which hit him from the mouth and exited through the head?

A: About five (5) armslength.

Q: Did you see him really fired that gun?

A: Yes sir.

Q: Can you demonstrate to the Court how he fired on your husband?

A: Witness at this juncture demonstrating a fortharm position.

Q: Then what did you do after this shot which was made by Dindo Absalon?

A: After my husband fell I ran.

Q: Towards what direction did you run to?

A: To the direction of our house.”

Ruperta Acebedo was familiar with appellant Dindo Absalon as the latter used to reside at Barangay Bagabao which was just adjacent to Barangay Mataluto[18] where spouses Acebedo live. She testified that she knew appellant Absalon even before the incident.[19] Understandably, Ruperta, who had witnessed the killing of her loved one, would strive hard to remember the faces of her husband’s assailants.[20] It would be unnatural and illogical for her to impute the crime to an innocent person and let the real culprit escape prosecution.[21]

Appellants claim that Ruperta was not able to positively identify her husband’s assailants considering that when Trinidad Golane and a certain barangay councilman reported the incident to the police authorities, the two said that the victim was shot by unidentified men, and Ruperta herself, when investigated, likewise said that she was not able to identify her husband’s assailants.

We are not persuaded.

It must be noted that Ruperta did not authorize Golane and the councilmen to report the matter to the police but the latter did it voluntarily since Ruperta was busy attending to her husband’s burial. While it may be true that when Ruperta was investigated, she stated that unidentified men killed her husband, however, this was mainly because she was afraid and did not trust her investigators as established through the testimony of police investigator SPOI Tarcela M. Carel,[22] thus:

Q: You confronted Mrs. Acebedo regarding the actual assailant if she was able to know or identify the assailant she refuses to name for purposes of record.

A: She told me and requested me to put on the blotter only that she was not able to identify the assailant because Mrs. Acebedo told us that (sic) just place unidentified although she identified the assailant but she refuse to mention names and she do not want to place it on the blotter because she suspected us.

Q: You mean she was uncooperative during the course of your investigation?

A: She is only afraid and we cannot force her if she would not tell us.

Q: Did I get you correct when she stated afraid?

A: Yes sir, because it could really be seen from her face that she had no trust in us.

Q: So she was not in a normal composure the time when the police came in?

A: We could sense that she had fear and we feel that she does not trust us.

Thus, the failure of Ruperta to immediately report the identities of the assailants cannot be taken to weigh against the credibility of her narration. Her initial nondisclosure of her husband’s assailants immediately after the occurrence of the crime is not entirely against human experience[23] and does not by itself, impair her credibility. In fact, when confronted on why she stated in her affidavit that she only came to know appellant Dindo Absalon when he was presented to her for identification, she explained upon further question that she only knew the face of appellant Dindo Absalon but not his name.[24] It matters little that he initially did not know the name of appellant Dindo Absalon as long as she recognized his face.[25] Significantly, in open court, she unequivocally identified Dindo Absalon as the one who shot her husband at close range.

Ruperta Acebedo positively identified Dindo Absalon as the one who actually shot her husband to death. On the other hand, the complicity of appellant Joel Dijon in the commission of the crime is premised on the purported presence of conspiracy between the accused-appellants in the commission of the crime.

Notably, the trial court observed that the prosecution wanted to show that there was conspiracy among the four accused on trial; however the court concluded that conspiracy as to the two accused Roberto Inso (who died in an accident pending the trial) and Joseph Dijon was not properly proven. It found the testimony of Ismael Diola who claimed to have heard the plan of the accused to kill Romulo a few minutes before the incident on October 6, 1996 was found to be doubtful if not incredulous. The trial court convicted appellant Joel Dijon of the crime of murder on the basis of his presence at the crime scene. However, appellant Joel Dijon’s complicity should be established by proof beyond reasonable doubt that he was a conspirator, but nowhere in the trial court’s decision or the evidence on record was it mentioned that other than his presence there was any other act of appellant Joel Dijon that may reasonably be construed as an overt act in the furtherance of a conspiracy.

Criminal conspiracy must always be founded on facts, not on mere inferences, conjectures and presumptions[26], thus it must be proven just like any other crime accusation, that is, independently and beyond reasonable doubt.[27] The presence of the element of conspiracy among the accused can be proven by their conduct before, during, and after the commission of the crime[28] showing that they acted in unison with each other, evincing a common purpose or design.[29] In other words, the accused must participate, even by a single overt act, in the perpetration of the crime. It is sufficient that at the time of the aggression, all of them, acted in concert, each doing his part to fulfill their common design to kill the victim. Evidence of intentional participation is imperative.[30] In a long line of cases, this Court has held that mere presence at the scene of the crime at the time of its commission, without more, is not, by itself, sufficient to establish conspiracy.[31]

In the instant case, Ruperta Acebedo testified that she saw the appellant Joel Dijon, who was unarmed, approach appellant Dindo Absalon after the latter shot her husband. A review of her testimony however does not show that appellant Joel Dijon had an actual or direct participation in the killing of the victim that might reveal his guilty participation in furtherance of a conspiracy. We agree with the Solicitor General that the prosecution failed to adduce any evidence of Joel Dijon’s guilt aside from his mere presence at the crime scene.

The quantum of proof required in a criminal prosecution to support a conviction has not been satisfied with regard to appellant Joel Dijon’s participation in the murder of Romulo Acebedo. The oft repeated truism that conviction of the accused must rest not on the weakness of the defense but on the strength of the prosecution[32] applies in the case of appellant Joel Dijon. We are therefore convinced that Joel Dijon should be exonerated. Well settled is the rule that in case of doubt as to the guilt of the accused, the case must be resolved in his favor.

WHEREFORE, we affirm the appealed decision insofar as it held appellant Dindo Absalon Guilty of Murder and sentenced him to Reclusion Perpetua. Appellant Absalon is solely responsible for paying the heirs of the victim, Romulo Acebedo the amounts of P50,000.00 as indemnity ex delicto. Appellant Joel Dijon is Acquitted and ordered released from custody immediately, unless he is being legally held for another cause. In this regard, the Director of the Bureau of Corrections is directed to report his compliance, within five (5) days from receipt hereof.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.