PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. GREGORIO BERINGUEL, ARTURO DEVARAS, ARTEMIO TULANG (AT LARGE), AND RUFINO CAMINONG (AT LARGE), ACCUSED. GREGORIO BERINGUEL AND…

This is an appeal from the October 29, 1979 decision*
of the then Court of First Instance of Leyte, Branch
II, Palo, Leyte, in Criminal Cases Nos. 3179 and 3180
for Robbery with Rape and Robbery in Band, respectively, convicting accused-appellants Gregorio Beringuel** and Arturo Devaras***.  The decretal portion of the decision reads:

“IN VIEW OF THE FOREGOING, judgment is hereby rendered in
Criminal Case No. 3179 declaring accused Arturo Devaras
guilty of the special complex offense of robbery with rape punished by Art.
294, paragraph 2 of the Revised Penal Code, as amended by P.D. No. 767, with
the attendance of two aggravating circumstances, not offset by any mitigating,
and he is sentenced to suffer the supreme penalty of death; to indemnify Merlita Rapada in the amount of
P12,000; to pay Isidro Apdo
the sum of P3,460 proven value of the personal property taken away from him;
and to pay 1/5 of the costs.

“Judgment is also rendered in Criminal Case No. 3179 finding
accused Gregorio Beringuel guilty of the offense of
robbery punished by Art. 294, paragraph 5
of the Revised Penal Code, with the attendance of two aggravating circumstances
not offset by any mitigating, and he is sentenced to suffer the penalty of from
FOUR (4) years and TWO (2) months of prision correccional
to TEN (10) years of prision mayor, to pay Isidro Apdo jointly and
severally with accused Arturo Devaras the sum of P3,460.00 and to pay 1/5 of the costs.

“The preventive imprisonment undergone by accused Gregorio Beringuel shall be deducted from the term of imprisonment
imposed upon him in Criminal Case No. 3179, if he has signed an agreement to
abide by the same rules imposed on convicted prisoners while in detention or
only 4/5 thereof if he has not signed said agreement.

“Judgment is also rendered in Criminal Case No. 3180 declaring
accused Arturo Devaras and Gregorio Beringuel guilty of the offense of Robbery punished by Art.
294, paragraph 5, of the Revised Penal Code with the attendance of two
aggravating circumstances not offset by any mitigating, and each of them is
sentenced to suffer the penalty of from FOUR (4) years and TWO (2) months of prision correccional to
TEN (10) years of prision mayor,
to jointly and severally pay to
Pastor Hadlocon the amount of P300.00, proven value
of the personal property robbed from him, and to pay 1/5 of the costs.

“The preventive imprisonment undergone by accused Arturo Devaras shall be deducted from the term of imprisonment
imposed upon him in Criminal Case No. 3180, if he has signed an agreement to
abide by the same rules imposed upon convicted prisoners while on detention, or
only 4/5 thereof, if he has not signed such an agreement.

“Be it understood that the sentence imposed upon accused in
Criminal Case No. 3180 shall be served by them only after completing the
service of sentence imposed upon them in Criminal Case No. 3179.

“Finally, judgment is also rendered in Criminal Cases No. 3179
and 3180 finding accused Eusebio Abrio
not guilty of the offense charged in the respective informations
and he is therefore acquitted from said charges, with 1/5 of the costs de oficio.

“It appearing that he is under detention in the provincial jail, the officer-in-­charge of said
jail is hereby ordered to immediately release therefrom
accused Eusebio Abrio,
unless he is held therein also for other charges.

“SO ORDERED.” (Rollo, pp. 58-71).

Two separate informations were filed
against Beringuel, Devaras
and Abrio.  Artemio Tulang and Rufino Caminong who were charged
with them in the informations were never
apprehended.  The information in Criminal
Case No. 3179 for robbery with rape, reads:

“That on or about the 3rd day of September, 1976, in the
Municipality of Abuyog, Leyte,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together with John Doe, whose
identity and whereabouts is still unknown,
mutually helping and aiding one another, armed with assorted firearms, with
deliberate intent of gain by means of violence and intimidation upon the person
of Isidro Apdo, taking advantage of nighttime to
better consummate their object and committed at the dwelling, did then and there wilfully,
unlawfully and feloniously take, rob, and carry away money and personal
belongings, to wit:

valued in the total sum of Four Thousand
Four Hundred Sixteen and Eighty Centavos (P4,416.80) Philippine Currency, owned
by Isidro Apdo without his consent and against his
will, to his damage and prejudice in the said amount of Four Thousand Four
Hundred Sixteen and Eighty Centavos (P4,416.80); that during or on the occasion
of the robbery, the above-named accused, with deliberate intent and lewd
designs and consistent force and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge
of one Merlita Rapada,
against the latter’s will and without her consent, to the damage and prejudice
of said Merlita Rapada.

“Contrary to law.  Article 294, paragraph 2 of
the Revised Penal Code.” (Original Records, pp. 1-3, Rollo,
pp. 4-6)

The second information, docketed as Criminal Case No. 3180,
reads:

“That on or about the 3rd day of September, 1976, in the
Municipality of Abuyog, Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring and confederating together
with John Doe, whose identity and whereabouts are still unknown, mutually
helping and aiding one another, armed with assorted firearms, with deliberate
intent to gain by means of violence, and intimidation upon the person of Pastor Hadlocon,
taking advantage of nighttime to better consummate their object and committed
at the dwelling did, then and there wilfully,
unlawfully and feloniously take, rob and carry away money and personal
belongings, to wit:

valued in the
total sum of P658.00, Philippine currency, owned by and belonging to said
Pastor Hadlucon without his consent and against his
will, and to his damage and prejudice in the said amount of P658.00.

“Contrary to Art. 294
in relation to Art. 296 of the Revised Penal
Code.” (Original Records, pp. 1-3).

At the arraignment, accused
Arturo Devaras, Gregorio Beringuel
and Eusebio Abrio, assisted
by their counsel, entered the plea of not guilty (Record, p. 74; Rollo, p. 42). 
Thereafter, the trials of the two cases were jointly held.  The prosecution presented their version of
the crimes as follows:

At around 10:00 o’clock
in the evening of September 3, 1979,
Isidro Apdo, a businessman, was in his house in
barrio Bulak, Abuyog, Leyte with his wife, children, housemaid Merlita Rapada and two helpers
named Presing Tusloc and Bonifacio Tulang, when he heard a noise.  Upon opening the door of his room, he saw
three persons near him.  There was then a lighted small
lamp at the altar.

The three men tied his hands behind his back.  They made him lie on the floor with his face
down.  One of the men hit him with an armalite, the other pointed a bolo at his neck and the
third poked a pistol on his right ear. 
They looked for money and they found P2,500.00
inside an aparador. 
They also took Isidro’s watch, calculator, eyeglasses and some
commodities from his store.  Isidro also
saw one of them enter Merlita Rapada’s
room.

Apparently dissatisfied with what they got, the three persons
insisted that Isidro give them P20,000.00 and
continued manhandling him.  Then they
brought Isidro outside with his hands still tied behind him.  They pushed him towards the store of Pastor Hadlucon.  Isidro
called Pastor and the latter opened the door of his store.  The persons demanded money from Pastor who
was made to lie down also with his hands tied behind his back.  Isidro could not tell whether the malefactors
were able to get money from Pastor. 
Later, he and Pastor were ordered to look for a fast motor boat.  Finding Isidro’s outboard motor, Isidro
started the engine while one of the men boarded it.  The two other men accompanied Isidro and
Pastor to a rocky place called Taytay.  After the older of the two persons had
decided not to kill Isidro and Pastor, they left.  Isidro and Pastor then ran towards their homes (TSN, Hearing of January
22, 1979, pp. 2-13).

Isidro’s wife, Tarciana, was able to recognize
two of the three intruders as Devaras and Beringuel because of the lighted kerosene lamp in front of
her husband at the time of the commission of the crime.  She failed to recognize the third person
because his back was towards her.  It was Devaras
who demanded money and took a watch from her. 
When Devaras left the room, Beringuel entered and, while demanding money from her,
threatened her with a pistol.  Beringuel ransacked her aparador
and got the P2,500.00 inside it.

As Beringuel left the room, she heard Merlita Rapada calling out to her
for help.  When Merlita
entered the room, she told Tarciana that she had been
raped.  Merlita
was crying when Devaras locked them in the room.  It was only after the intruders had left that
Tarciana and Merlita jumped
out through the window (TSN, Hearing of May 11, 1979, pp. 3-8).

Merlita, who was around 16 years old when the incident transpired, was
inside a room in the Apdos‘ house when she heard a
noise outside.  She opened the door and
peeped.  By the light of the “lamparilla“, she saw one of the persons as he tied the
hands of Isidro.  The other person was
pointing an armalite
at Isidro while the third had his back towards her.  She closed the door of the room and was about
to jump out of the window when she saw two other persons outside near the
window.  She tried to go out of the room through the door
but a person pushed her inside, held her hair and pointed an armalite at her.  He
made her lie down on the bed, removed her panties and had carnal knowledge of
her.  Then he went out of the room (TSN,
Hearing of March 12, 1979, pp. 4-9).

On September 4, 1976,
Merlita underwent a physical examination at the Abuyog General Hospital.  The attending physician made the following
findings:

“1. No signs of physical injuries, conscious and coherent.

 2. Mens
pubis clean with sparse hair.

 3. Signs of irritation at
labia majora and menor.

 4. Superficial laceration at
fourchette.

 
5. Hymen not intact, freshly lacerated, admits tip of small finger, no
bleeding.

 
6. Vaginal smear – negative for sperm cells.”
(Exhibit “A”)

Pastor Hadlocon corroborated the
testimony of Isidro on how the malefactors entered his abode.  He was carrying a small lamp with his left
hand when he opened the door upon hearing the call of his compadre
Isidro to open up.  One person who was with Isidro, carried an armalite
while the other had a pistol.  Pastor
could not recognize the third person as he was a little apart from them.  When he opened the door, they were about
three meters away from him while Isidro was leaning on the door.

Three persons entered his house while two others were by the
boat.  The three asked for P2,000.00 from him. 
Pastor told his wife to give them whatever amount she had but she was
able to produce only P300.00.  Pastor was
then lying down with his face to the floor while Isidro was by his feet.  Then two of the intruders threatened to cut
off their heads should they be unable to raise P2,000.00.  Pleading for their lives, Pastor told the
intruders to take anything they could get. 
Hence, they took five pants, a radio, eyeglasses, mirror and cigarettes
from the store.  Then they ordered Pastor
to take the goods to the boat.

Pastor even had to provide them with gasoline to make the boat
start running.  Thereafter, Pastor and
Isidro were taken to the corral reef called Taytay
where, undecided as to what to do with them, the intruders left them (TSN,
Hearing of February 21, 1979, pp. 8-15).

At around 7:00 o’clock
in the morning of September 4, 1976,
Miguel Manito was fishing with two other fishermen when he saw someone on a
boat waving at them.  As they got near
that boat occupied by Devaras, Beringuel
and three other persons, one of these men asked that their boat, which had
engine trouble, be towed to Barrio Maya, MacArthur, Leyte for P30.00 plus
gasoline.  Upon reaching the place, the
men requested Manito to continue towing them to Barrio Fatima, Dulag, Leyte
for an additional P30.00 plus gasoline (TSN, Hearing of October 18, 1979, pp.
2-8).

Devaras and Beringuel
both interposed alibi as a defense.

Devaras, who is from Barrio Salvacion, Dulag, Leyte and who was around 21 years old when the crimes were
perpetrated, was allegedly at home in the afternoon of September 3, 1976
because his sister Noning was sick.  His father, Paulino,
fetched Alejandro Padilla, a quack doctor, to treat Noning.  At around 6:00
o’clock in the evening, Paulino told Devaras to buy tuba. 
While Paulino and Alejandro were
drinking tuba, Devaras was reading comics.  Two hours later, Devaras
went to bed and when he woke up at 4:00 o’clock
a.m. the next day, he found out that the quack doctor had slept in
their house (TSN, Hearing of October 22, 1979, pp. 3-6).

When the crimes were committed, Devaras
was then on leave as a soldier attached to the Seventh Infantry Battalion of
the Philippine Army stationed at Cotabato
City.  He had been issued an M-16 armalite but he deposited it at their headquarters.  He claimed to have lost the deposit slip (TSN, Hearing of October 24, 1979, pp.
2-4).  He was arrested in Salvacion, Dulag, Leyte by seven PC
soldiers and two policemen on September
29, 1976 at 3:00 a.m.  (TSN, Hearing of October
22, 1979, pp. 8-9).

Alejandro Padilla endorsed Devaras‘
story on his whereabouts adding that he treated Devaras‘
sister of dysmenorrhea (TSN, Hearing of September 12,
1979, p. 4).  For his part, Paulino Devaras averred that on
that fateful night he and Alejandro were drinking tuba
while his son, Arturo Devaras read comics until he
fell asleep.

Appellant Gregorio Beringuel, a farmer
who was 58 years old when he testified in 1979, belied the
accusation that he was one of the robbers because when the crimes were committed, he was at the hospital attending
to his daughter Teresita who had
“schistosomiasis of the brain.” His daughter was
confined in the hospital from July 12 to September 12.  In the evening of September 3, 1976, he was at the hospital with
Francisco Camero and his son, Bebot
(TSN, Hearing of October 23, 1979, pp. 4-5). 
He did not present any witness to buttress his testimony.

Beringuel was brought to Camp
Bumpus
for investigation sometime in October, 1976. 
He claimed that he was implicated in the crimes by Devaras
because he had testified against Marcelino Devaras, Arturo’s uncle, in a criminal case (TSN, Hearing
of October 23, 1979, pp. 6; 8-9).

Based on these factual findings, the lower court rendered the aforementioned judgment of
conviction.  Beringuel
filed a motion for the reconsideration of the decision alleging that he was not positively identified
by the complainants and their witnesses (Record, p. 238).  Seeing no reasons to disturb the findings and
conclusions of the court, the
presiding judge, Hon. Jose P. Arro, denied the motion
for reconsideration (Record, p. 247). 
Hence, Beringuel filed a notice of appeal to
the Court of Appeals (Record, p. 248).

Two days later, however, both Devaras
and Beringuel filed a motion for new trial alleging
that Beringuel was not allowed to present witness
Francisco Camero on the stand because the then
presiding judge was “in a hurry to terminate” the cases, and that there was a
newly discovered evidence which would prove that the complainants and their witnessess did not actually identify the accused (Record,
pp. 249-250).  Attached to the motion was
an affidavit of M/Sgt. Gaudencio Superable
stating that during the investigation at Camp
Bumpus in
Tacloban City,
the complainants did not positively identify the malefactors although they
stated that the suspects looked “similar” to them (Record, p. 254).

The motion for new trial was granted (Record, p. 265) and in due
course, Gaudencio Superable
testified.  A master sergeant at the
351st PC Company stationed at Marasbaras, Tacloban City, Superable was the chief of the Intelligence and
Investigation Section when, on September 18, 1976, the instant cases were
investigated.  He was present when two
investigators took the statements of the complainants and suspects Devaras, Beringuel and Abrio.  Superable reiterated his observation that Merlita was not able to positively identify the suspects
although she said that some of them looked “similar” to the intruders in Apdo’s residence. 
Isidro Apdo and Pastor Hadlocon
allegedly failed to identify the malefactors (TSN, Hearing of January 22, 1982,
pp. 4-6).  Camero,
Beringuel’s witness, could not be presented because
he was allegedly not allowed to testify (Record, p. 146).

On July 12, 1982,
Judge Arro rendered a decision on the motion for new
trial finding that the grounds relied upon by the defendants had not been
satisfactorily established (Record, p. 443). 
Nevertheless, Beringuel filed another motion
for the reconsideration of the July
12, 1982 decision (Record, p. 452) but, after the prosecution had
filed an opposition thereto, the lower court denied it (Record, p. 464).  Beringuel then
filed a notice of appeal to the Court of Appeals (Record, p. 480).  However, in view of the fact that the death
penalty had been imposed on his co-accused, the cases reached this Court for
automatic review.

An assignment of error submitted by both Beringuel
and Devaras for this Court’s consideration is the
admissibility of Exhibit “B”, the sworn statement of Devaras,
wherein he admitted having participated in the commission of the crimes and
implicated Beringuel therein.  There is merit in appellants’ claim.  Exhibit “B” is inadmissible because
it was taken during custodial investigation unaided by counsel.  Moreover, there was no valid waiver of his
rights to remain silent and to counsel. 
This being so, Devaras‘ extrajudicial
confession is inadmissible
(People v. Malmis, 167 SCRA [1988]).

In view of the inadmissibility of Devaras‘
sworn statement, the Court has to determine whether there is ample evidence to
establish the guilt of the accused to a moral certainty (People v. Lopez, 157
SCRA 304 [1988]) and, in these cases, the controlling issue is whether or not
the appellants had been positively identified as the culprits.

It is submitted that notwithstanding Merlita
Rapada’s statement that she could not recognize any
of the men who entered Isidro Apdo’s residence
(Exhibit “2”), the malefactors had been positively identified at the
trial.  Thus, when asked to point out the
person who had carnal knowledge of her, Merlita
unhesitatingly pointed to Arturo Devaras inspite of the presence of other persons whom she might
have singled out (TSN, Hearing of March 12, 1979, pp. 9-10).  She testified:

“Q: How were you able to see these persons when it was already night
time?

A:    There
was a light.

Q:   What
was that kind of light?

A:   
Lamp called ‘lamparilla.’

xxx            xxx                   xxx

Q:   All
right, while you were inside your room what did you do?

A:    I
opened the window and I was about to jump.

Q:   Did
you as a matter of fact jump out of the window?

A:    No
because I saw two persons.

xxx            xxx                   xxx

Q:   And
since you did not jump what then did you do? 
What happened next since you did not jump?

A:    I
opened the door of my room because I was about to go out.

Q:   And
were you as a matter of fact able to go out?

A:    No
because a person approached me.

Q:   Then
what happened?

A:    He
held me and pushed me inside.

Q:   Inside
where?

A:    Inside
the room.

Court: Then what happened?

A:    He
abused and assaulted me.

Q:   Can
you tell the court what you mean by he abused you or how did he abuse you?

A:    He
held my hair pointing the armalite at me.

xxx            xxx                   xxx

Q:
  What happened while you were inside the room after your
hair was held and the armalite was pointed at you?

A:    He
took off my panty and then he had
carnal knowledge of me.

Court: How did he have carnal knowlege with you, what did he do, what was his position?

A:    He
forced me.

Court: Forced you to what?

A:    To
have carnal knowledge, to make intercourse with me.

Court: Now, what did he
do when he made intercourse with you, what was his position and what was your
position?

A:    He
made me lie down.

Q:  
What happened next?

A:    He
took off his pants and after that
he approached me and placed on
top

Court: And then?

A:    I
tried to push him.

Court: Then?

A:    He
went out.

Court: So he was not able to have sexual
intercourse with you?

A:    After
making intercourse with me he went out. 
(TSN, March 12, 1979, pp. 5-9)

She further declared on cross examination.

Court: Is it not that when the man tried sexual intercourse with you it
was very dark and you could not see his face?

A:    I could see his face because he was
very close to me and my bed was by the window which was opened and it was a
moonlight night and the light illuminated inside (TSN, Hearing of March 12,
1979, p. 15).

It is understandable why Merlita failed
to identify Devaras when she executed Exhibit
“2”.  Affidavits, taken ex-parte, are generally considered inferior to testimonies
given in open court (People v. Pacola, 58 SCRA 370
[1974]) because they are almost always incomplete and inaccurate, sometimes from
partial suggestions sometimes from want of suggestions and inquiries, without
the aid of which the witness may be unable to recall the connected collateral
circumstances necessary for the
correction of the suggestion of his memory and for his accurate recollection of
all that belongs to the subject (People v. Loveria,
G.R. No. 79138, July 2, 1990 citing People v. Gonzales, 99 SCRA 697 [1980]).

Tarciana Apdo
also positively identified Devaras and Beringuel as the robbers because of the kerosene lamp on a
small table in front of her
husband (TSN, Hearing of May 11, 1979, pp. 4-5).  Pastor Hadlocon,
who was holding a small lamp when he opened the door, identified Devaras as the one carrying an armalite
and Beringuel as the intruder with the pistol (TSN,
February 21, 1979, pp. 10-11).

Identification of the culprits is, therefore, not difficult in
these cases because the places where the crimes occurred were sufficiently
lighted.  Where considerations of
visibility are favorable and the witness does not appear to be biased against
the accused, his or her assertions as to the identity of the malefactor should
be normally accepted.  This is more so
when the witness is the victim or his near relative because these witnesses usually
strive to remember the faces of the assailants (People v. Espino,
G.R. No. 88662, June 18, 1990; People v. Alvarez, 169 SCRA 730 [1989]).  Moreover, the trial court gave credence to
the prosecution’s identification of the appellants as the culprits.  Subject to exceptions which do not obtain in
these cases, the trial court is in a better position to decide this question,
having seen and heard the witnesses themselves and observed their deportment
and manner of testifying during the trial (People v. De la Cruz, G.R. No.
83260, April 18, 1990).

In view of the positive identification of the appellants as the
culprits, alibi must he established by full, clear and satisfactory evidence
(People v. Pili, 56 Phil. 730 [1926]).  Appellants failed to do so.  The testimony of Paulino
Devaras does not carry much weight because he is the
father of one of the appellants.  Alibi
is weak if it is established mainly by the accused himself and his immediate
relatives and not by credible persons (People v. Somera,
173 SCRA 684 [1989].  For his part, Beringuel
even failed to present a witness to corroborate his alibi even after he was
given the chance to do so at the new trial which he himself requested.

Furthermore, appellants failed to prove any ulterior motive on
the part of the prosecution witnesses as to why they would falsely impute such
a despicable crime on the accused if they did not really commit it.  The testimonies of the prosecution witnesses
strongly indicate their honest motivation to have the real offenders
punished (People v. Francisquite, 56 SCRA 764
[1974]).

Beringuel’s contention that the failure
of the complainants to immediately submit to an investigation and their delay
in the institution of the criminal charges indicate that they were not able to identify the culprits, does not hold water.  This has been debunked by the positive
declaration of the prosecution witnesses regarding his identity and
participation in the crimes.

Robbery with rape is penalized with reclusion perpetua to death under Article 294, paragraph
2 of the Revised Penal Code.  In view of
the presence of the two aggravating circumstances of nighttime and dwelling
which the lower court appreciated against both appellants in the two criminal
cases, the death penalty was correctly imposed on Arturo Devaras
in Criminal Case No. 3179.  However,
since the death penalty is now constitutionally prohibited, the penalty of reclusion
perpetua shall be meted on Arturo Devaras instead (People v. Munoz, 170 SCRA 107 [1989]).

For lack of proof beyond reasonable doubt of conspiracy between Devaras and Beringuel, in
Criminal Case No. 3179 Gregorio Beringuel shall only
be liable for robbery under paragraph 5 of Article 294.  Such offense is punishable by prision correccional
in its maximum period to prision mayor
in its medium period.  Due to the presence of two aggravating
circumstances, the proper penalty should be prision
mayor in its medium period (Articles 64 and 65).  Applying the Indeterminate Sentence Law, Beringuel should be imposed the indeterminate penalty of
four (4) years and two (2) months of prision correccional medium as minimum penalty to eight (8)
years and one (1) day of prision mayor medium as maximum penalty.

Inasmuch as in Criminal Case No. 3180 the offense was committed
with the presence of the same aggravating circumstances of dwelling and
nighttime with no mitigating circumstances to offset them, the same penalty imposed on Beringuel
in Criminal Case No. 3179 shall
likewise be imposed on both appellants.

PREMISES CONSIDERED, (a) the judgments of conviction against
Arturo Devaras for robbery with rape in Criminal Case
No. 3179 and for robbery in Criminal Case No. 3180, and against Gregorio Beringuel for two crimes of robbery in Criminal Cases Nos.
2179 and 3180 are hereby AFFIRMED; (b) the penalties stated above are hereby
IMPOSED on appellants which they shall serve
successively pursuant to the provisions of the Revised Penal Code; and (c)
appellants shall jointly and severally REIMBURSE the the
amounts of P4,416.80 and P658.00, respectively taken from Isidro Apdo and Pastor Hadlocon, and
INDEMNIFY Merlita Rapada in
the amount of P30,000.00, with costs against appellants.

SO ORDERED.

Melencio-Herrera, (Chairman),
Padilla, Sarmiento, and
Regalado, JJ., concur.

*
Penned by Judge Jesus N. Borromeo.