PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARCELINO CEDON, DEFENDANT-APPELLANT.

This is an appeal from the decision of the Regional Trial Court,
Branch 29, Catbalogan, Samar, in Criminal Case No. 3247, disposing as follows:

“WHEREFORE, the court finds the accused Marcelino Cedon (alias
Seling Cedon) guilty beyond reasonable doubt of kidnapping for ransom under
Art. 267 of the Revised Penal Code and hereby sentences him to reclusion
perpetua, to indemnify the complainant Felimon Gerona, Sr. the amount of
Five Thousand Pesos (P5,000.00), without subsidiary imprisonment in case of
insolvency, and to pay the costs.

It appearing that the accused Marcelino Cedon has been detained
since March 21, 1990, this preventive imprisonment should be taken into account
in the service of his sentence” (Rollo, p. 23).

We reverse the decision.

I

The Information filed against appellant, reads as follows:

“That on or about the 17th day of December, 1986, at Sitio
Bito-on, Barangay Bulo-an, Sierra Island, Municipality of Catbalogan, Province
of Samar, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, who being members (sic) of a terrorist group and armed
with assorted firearms, conspiring, confederating together and mutually helping
and aiding one another with Teodoro Zaldo alias ‘Pilo Bulan’, Eli Lomuardo,
Simo Cedon, Ruben Molito, Mepen Doe, Lando Doe, Davis Doe and Jaime Doe, who
are still at large and whose identities are still unknown, and one Danilo
Alvarez, whose case had been provisionally dismissed on May 19, 1989 before the
Regional Trial Court, 8th Judicial Region, Branch 29, Catbalogan, Samar, by
force and without authority, did then and there willfully, unlawfully,
feloniously and illegally kidnap and carry away the person of Felimon Gerona from
his house to an unknown island with the use of a motorboat, and kept said
Felimon Gerona under heavy guards to better secure the consent of the victim
through fear to pay the ransom in the amount of Five Thousand Pesos
(P5,000.00), Philippine Currency for his release and the victim was released
only after having paid the ransom in the amount of Five Thousand Pesos
(P5,000.00), Philippine Currency” (Rollo, p. 4).

II

On the basis of the evidence adduced at the trial, the court a quo found that on December 17, 1986, while
Felimon Gerona, Sr. (Gerona), was having lunch at his house in Sitio Bito-on,
Barangay Bulo-an, Sierra Island, Catbalogan, Samar, several armed men
arrived. Two of them ordered him to go
down the house. Once on the ground, his
hands were bound. He recognized, as
among the group, Teofilo Bulan and Ruben Bolito, who belonged to a gang of
robbers called “Sabarra.” He also noticed appellant, standing on the
concrete pavement near the beach (TSN, November 15, 1990, pp. 4-7).

Bulan accused Gerona of being an intelligence agent, which he
denied. He was then taken on board a
motorboat to Aripuyok Island, known as “the killing fields,” which is
half a kilometer away from Barangay Bulo-an.

In the island, Gerona’s captors tried to force him to admit that
he was an intelligence agent but he stuck to his denial of the charge. Bulan finally told him that he needed funds
to buy certain equipment for the use of his band. After Gerona agreed to give P5,000.00, he was taken back to
Barangay Bulo-an, with his left hand tied to the mast of the motorboat.

The band, with Gerona in tow, arrived in Barangay Bulo-an at
around 4:00 P.M. Gerona again saw
appellant, who was sitting on the concrete fence near the beach. Thereafter, Bulan asked Gerona for money to
buy gasoline. The latter obliged by
getting P100.00 from a portion of the roof of his house.

When Gerona’s wife returned home, Bulan said, “Auntie, we
took uncle.” Scared, Gerona’s wife remained silent. After 4:00 P.M., the culprits, including
appellant, left.

The next day, Gerona withdrew
P5,000.00 from a bank in Catbalogan. His wife delivered the money to Bulan.

Gerona did not immediately report the incident to the police
authorities. It was only on May 4,
1987, after the townspeople organized the “alsa masa” as a counter­insurgency
movement, did he inform the authorities of the extortion. He also enlisted with the CAFGU as a means
to retaliate against the extortionists. In 1990, Gerona together with some members of the CAFGU,
arrested appellant and another suspect, Danny Alvarez.

III

Appellant emphatically asserted his innocence and claimed that he
was cleaning the boat owned by Corazon Escareal at the seashore in Barangay
Rama, when Bulan and his companions arrived. Bulan told him to go with them to gather bamboo in Barangay
Bulo-an. When he declined, Bulan pulled
a gun tucked in his waist and forced him to go with them. For fear of his life, knowing that Bulan was
a member of the NPA, appellant went with him to Barangay Bulo-an. After gathering the bamboo, they loaded it
on the motor boat. He was then ordered
to go home, while Bulan and his
group stayed behind.

Appellant claimed that he was apprehended in 1990 by Gerona
because the latter wanted him to testify against Pilo Bulan. When appellant refused to do so, Gerona
demanded P2,500.00 from him. Since
appellant failed to give the said amount, Gerona arrested him. His hands were then tied up and he was
ordered to board a motorboat. Gerona
and his son, Gerona, Jr., pounded appellant’s hands with the muzzle of a gun, while demanding money
from him. After an hour, appellant was
brought to the PC Camp in Barangay Maulong. He was not able to report the mauling incident to the authorities
because he was afraid of the Geronas. He eventually told the PC soldier that he had been manhandled, but the
latter did nothing about it.

IV

Before us, appellant assigns the following as errors of the trial court, to wit:

1. When it gave weight and credence to the
improbable and contradictory testimonies of the prosecution witnesses; and

2. When it failed to acquit the
accused-appellant on the ground of insufficient evidence and reasonable doubt
to warrant his conviction (Appellant’s Brief, pp. 5-9).

In the case of People v. Dramayo, 42 SCRA 59
(1971), we held:

“xxx Accusation is not, according to the fundamental law,
synonymous with guilt. It is incumbent
on the prosecution to demonstrate that culpability lies. xxx Their freedom is forfeit only if the
requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable
doubt. To such a standard, this Court
has always been committed. xxx Only if
the judge below and the appellate tribunal could arrive at a conclusion that
the crime had been committed precisely by the person on trial under such an
exacting test should the sentence be one of conviction. It is thus required that every circumstance
favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the
strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the
defendant could be laid the responsibility for the offense charged; that not
only did he perpetrate the act but that it amounted to a crime. What is required then is moral
certainty.”

The records showed that appellant was not a socius criminis
of Bulan but was merely forced to join his group at gun point.

A careful perusal of the testimonies of the prosecution witnesses
against appellant, casts doubt as to whether he was really an active
participant in the criminal enterprise. Gerona testified:

“Q.  You
said that you know Marcelino Cedon for about five (5) years ago, (sic) on June
1986, do you know his whereabouts?

A.   Yes, he was in Rama.

Q.   What about on (sic) December
1986?

A.   He was in Brgy. Bulo-an
and he was with the group.

Q.   When the gun was pointed at
you by Davis, where was Marcelino
Cedon?

A.   He
was standing in the concrete flooring
near the beach.

Q.   How far was he from your
house?

A.   About seven (7) meters.

Q.   What did you observe
from him?

A.   He was armed, but I
could not see what kind of arm (sic) he had tack(ed) in his waist but it was
bulging.

Q.   When you were in that
island of Aripuyok, where was Marcelino Cedon?

A.   He was assigned to guard
the house, and he was ordered not to leave.

Q.   Did you in fact arrive
at Sitio Bito-on?

A.   Yes, sir.

Q.   Did you in fact arrive, rather, … when you
arrived at Sitio Bito-on, where was Marcelino
Cedon?

A.   He was still
standing at the concrete fence” (TSN,
November 15, 1990, p. 10; Underlining supplied).

Felimon Gerona, Jr. testified:

“Q.  Do
you know a certain Marcelino Cedon?

A.   Yes, I know him and he is here. That man, Sir. (Witness point to the accused).

Q.   Why do you know him?

A.   Because sometimes they
go to our place.

xxx xxx xxx

Q.   What about Marcelino
Cedon, was he wearing a mask or not?

ATTY. MORALES: Leading, Your Honor.

FISCAL:    Alternative
question, Your Honor.

COURT:    Witness
may answer.

A. No, he was not wearing a mask. He was standing just
a few feet away from our house”
(TSN, October 16, 1990, p. 4; Underlining supplied).

The case for the prosecution pivots on the testimony of Pedro
Comeque. The testimony of the latter
was contradicted on vital points by Gerona himself. While Comeque testified that appellant was with the group of
Bulan that returned from Aripuyok Island, Gerona categorically stated that
appellant was left in Sitio Bito-on when he (Gerona) was brought to Aripuyok
Island and, as a matter of fact, he saw appellant again in the same place upon
his return in the afternoon.

While Comeque testified that he saw from his window how Gerona
was kidnapped, the latter said that Comeque was with him when he was
kidnapped. Gerona testified:

“Q.   While you were eating at the door of your
house and all of the sudden there were two persons pointed (sic) the gun at
you, who were inside your house.

A.   My son and my maid.

Q.   What about
Pedro Comeque, were was he?

A.   He was also
inside the house.

Q.   Are you certain
that Pedro Comeque was inside you house
when the two persons pointed the gun
at you?

A.   Yes, he was
still inside the house” (TSN, November 15,
1990, p. 15; Underlining supplied).

Comeque admitted that his testimony that appellant was a member of
the group of Bulan was based on hearsay. He testified:

Q.   To the best of you recollection who were those persons whom you
recognize?

A.   I did not recognize anyone except the accused.

Q.   What made you remember him?

A.   Because I know him and besides Naro Bacalan told me that he participated.

Q.   In other words, if Genaro Bacalan did not tell you, you did
not recognize Marcelino Cedon?

A.   I really know him but I am sure about
him because somebody told me that he participated”
(TSN, October 9, 1990, pp. 8-9; Underlining supplied).

The testimony of prosecution witness, Rudito Basilan, supports
appellant’s protestation of innocence. According to him, he was also forced to go to Barangay Bulo-an by Bulan
to gather bamboo.

His testimony on the participation of appellant is as follows:

“Q.  At
that time when Felimon Gerona was tied,
where was Marcelino Cedon?

A.   He was standing.

Q.   What did you notice in
his person?

A.   Nothing, he was just
standing.

Q.   After Felimon Gerona was
tied, what transpired next?

A.   He was brought to an
island called Camantigi­-an.

Q.   Was he in fact brought
to Camantigi-an?

A.   Yes, sir.

Q.   Do you know
if Marcelino Cedon was with the group when you went to Camantigi–an?

A.   He was not with them.

Q.   When the motor boat left for Camantigi-an,
were you with the group?

A.   No, I did not go with
them. We remained at Brgy. Bulo-an.

Q.   How many were you (who)
remain(ed) in Brgy. Bulo-an?

A.   The accused Marcelino
Cedon, myself and three (3) others whom I did not recognize.

Q.   Do you know the reason
why you were left behind (in) the barangay? I mean, the five of you?

A.   I don’t know why they
left us. They only said (sic) to us,
‘do not come along with us, you just stay here’” (TSN, November 29, 1990,
pp. 3-5).

If appellant’s culpability was based on the sole fact that he was
seen near the house of Gerona when the latter was kidnapped, then Basilan
should likewise have been indicted because he was also in the crime scene.

Time and again, the Court has held that conspiracy must be proven
beyond reasonable doubt. The reason is
obvious. Under the law, a conspirator,
even though how minimal his participation in the crime, is as guilty as the
principal perpetrator of the crime. We
do not find, however, that appellant is a conspirator. His was a passive presence in the scene of
the crime. Mere presence of the accused
at the scene of the crime does not imply conspiracy (People v. Campos, 202 SCRA
387 [1991]).

Moreover, the prosecution has failed to prove any overt act on
the part of appellant, showing that he joined Bulan’s gang to perpetrate the criminal act. Mere knowledge, acquiescence to or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent an
active participation in the commission of the crime, with a view to the
furtherance of the common design and purpose (People v. Bragaes, 203 SCRA 555
[1991]; Taer v. Court of Appeals, 186 SCRA 598 [1990]; Orodio v. Court of
Appeals, 165 SCRA 316 [1988]).

The quantum of proof required in criminal prosecution to support
a conviction has not been satisfied with regard to appellant’s participation in
the kidnapping for ransom of Gerona, Sr. The oft-repeated truism that the conviction of the accused must rest not
on the weakness of the defense but on the strength of the prosecution (People
v. De Guzman, 194 SCRA 601 [1991]) applies in this appeal.

WHEREFORE, the decision of the court a quo is REVERSED AND SET ASIDE and appellant is ACQUITTED of
the crime charged.

SO ORDERED.

Cruz, (Chairman), Davide, Jr., Bellosillo, and Kapunan, JJ., concur.