368 Phil. 226
PANGANIBAN, J.:
"That on or about the 3rd day of June, 1996, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and helping one another, being then a private individual, did then and there wilfully, unlawfully and feloniously kidnap, carry away and deprive one MAYLIN[3] MARIBUJO y BASILAN, a minor, 5 years old, of her liberty without authority of law and against her will and consent."Upon arraignment, Noel Diaz, with the assistance of Counsel de Parte Oscar B. Maturan, pleaded not guilty.[4] The other two John Does were and have remained unidentified and at large. Trial proceeded against Diaz alone. Thereafter, the court a quo rendered the assailed Decision, the dispositive portion of which reads:
"WHEREFORE, premises considered, judgment is hereby rendered finding accused Noel Diaz y Santiago alyas Boy Topak guilty beyond reasonable doubt of kidnapping. In the absence of any mitigating or aggravating circumstance, and applying the provision of [the] Indeterminate Sentence Law, and considering the fact that the victim is a minor five (5) years of age, said accused is hereby sentenced to suffer the prison term of reclusion perpetua."In view of the penalty imposed, this appeal was filed directly with this Court.[5]
"On June 3, 1996, at around 8:00 o'clock in the evening, Marilyn Maribujo was at the house of her sister at Mangosteen Road, Potrero, Malabon, Metro Manila watching TV and at the same time washing the dishes as they had just finished eating dinner, when her five (5)-year old daughter Maylin left the house. A few minutes later, Marilyn went out of the house to look for her daughter at the basketball court at Mangosteen Road but Maylin was not there. Marilyn then searched for her daughter in the nearby places up to the exit or labasan of their place but her daughter was nowhere to be found. Further search for Maylin was unsuccessful (t.s.n., September 11, 1996, pp. 2-4).
"The next day, June 4, 1996, Marilyn and her sister Tess and brother-in-law Renato continued searching for Maylin and went to BBB in Marulas, Valenzuela, Metro Manila but did not find Maylin thereat. They went to the barangay hall the following day to report the matter and seek assistance from the barangay authorities in looking for Maylin (t.s.n., September 11, 1996, p. 4).
"Coming home from the barangay hall, Marilyn was approached and told by a young boy, Marvin Bisana, that her daughter was taken by two men[,] one of whom was known to him as Boy Topak. Forthwith, Marilyn went to the barangay captain to convey the information. Later, appellant was found outside his house riding a bicycle and was brought to the barangay hall by the barangay captain for questioning where he denied having taken Maylin (t.s.n., September 11, 1996, pp. 4-6).
"Thereafter, appellant was brought by the barangay authorities to the police headquarters where he finally admitted that he brought Maylin to Pasay City and dropped her in[to] a canal thereat. When Maylin could not be found in said place, appellant then said he brought Maylin to BBB in Marulas, Valenzuela, Metro Manila. But the police authorities again were unable to find Maylin in the latter place (t.s.n., September 11, 1996, pp. 6-7).
"On June 6, 1996, Maylin was finally recovered from two women [with] whom appellant had left her. It was at the police headquarters that Marilyn and Maylin saw each other again (t.s.n., September 11, 1996, p. 7).
"Marvin Bisana, an 11-year old Grade II pupil at the Potrero Elementary School, was playing with Maylin at about 8:00 o'clock in the evening on June 3, 1996 near the basketball court at Mangosteen Road, Potrero, Malabon, Metro Manila when two men, one of whom was appellant whom he identified in court, approached them and took Maylin away. Marvin was warned by the two men not to call for policemen or else he [would] be killed. He was further told not to report the matter or call the parents of Maylin (t.s.n., October 9, 1996, pp. 2-6).
"The two men then put Maylin on board a passenger jeep going to Monumento and Marvin ran after them but did not find the appellant and his companion as well as Maylin in the Monumento area (t.s.n., October 9, 1996, pp. 6-7).
"The following Monday [sic], Marvin told Maylin's mother about the taking of her daughter by the two men. Marvin also executed a sworn statement (Exh. "B") in connection with the case (t.s.n., October 9, 1996, pp. 7-9).
"On June 4, 1996, at about 10:00 o'clock in the evening, Dolores Santos, a vendor, was in front of the Pagoda Pubhouse at BBB, Marulas, Valenzuela, Metro Manila, where she had a cigarette stand, when she saw a man holding a child by the hand approaching her. The man who seemed to be proceeding to Gate I of San Miguel Brewery in said place, then released his hold of the child. Thereafter, the man took hold of the child again but the latter was able to free herself from the man's hold and r[u]n away. Dolores told her youngest daughter and a woman to go after and bring the child to her. Dolores then brought the child home (t.s.n., November 6, 1996, pp. 2-5).
"The following day Dolores took the child to the Dona Ata Detachment of the Valenzuela, Metro Manlia Police Force to report the matter. The police, however, told her to take back or have custody of the child in the meantime (t.s.n., November 6, 1996, pp. 5-6).
"After three days, policemen from the Malabon, Metro Manila Police Station came to Dolores inquiring about the missing child. She told them that the child was with her Kumareng Susan Reyes and accompanied them to the latter to fetch the child. Thereafter, the policemen took the child and Dolores to the Malabon Police Headquarters where the latter was investigated and [where she] gave her sworn statement (t.s.n., November 6, 1996, pp. 6-8)."
"Accused-Appellant was in his house at No. 42 Guyabano Road, Potrero, Malabon on June 3, 1996. He was with his family the whole evening on that day and stayed with them in the same house until he was invited by the Barangay Tanods to go with them to the Barangay Hall for some work on June 5, 1996.
"There at the Barangay Hall, accused-appellant was arrested as a suspect in the crime of kidnapping of [a] minor.
"An alleged eyewitness, eleven-year-old, Marvin Bisana, was brought before the accused-appellant for confrontation but [the former] failed to identify him. [The boy] describ[ed] the person who took the alleged victim as tall, fair-complexioned, long hair[ed] and with a scar on his face.
"Thereafter, the boy was brought inside the Office of the Barangay Captain and when brought back, the boy this time pointed [to] the accused-appellant as the abductor.
"Immediately, [a]ccused-[a]ppellant was brought to the Malabon Police Station where he was beaten while being blind-folded. Unable to stand the pain, he was forced to concoct a story to stop the torture and to see his mother in Pasay City. He told his captors that he threw the child in[to] a creek in Tramo St., Pasay City, where his mother [was] living nearby.
"Failing to see a victim in the creek, accused-appellant was again beaten, locked-up and charged.
"Unknown to the investigators of the case, the same five-year[-]old alleged kidnap victim was found by one Lea Fernando at Seven-Eleven, BBB, Marulas, Valenzuela, Metro Manila at 11:00 p.m. of June 3, 1996 or exactly three (3) hours after the child was allegedly kidnapped.
"This fact that [the] same child was found on June 3, 1996 at 11:00 p.m. is shown in the police blotter of [the] Dona Ata Police Station in Marulas, Valenzuela, Metro Manila was admitted by the prosecution in Exh. 3, page 3 and 4 TSN, Dec. 18, 1996.
"Three (3) days after the alleged kidnapping of the five-year-old child, the same child was recovered in Marulas, Valenzuela."
The lower court erred in admitting and giving credence to the testimony of witness, Dolores Santos, who was found inconsistent and who failed to appear for the continuation of the cross-examination.Essentially, appellant questions the credibility of the prosecution witnesses."II
There was error when the lower court relied heavily on the identification of prosecution witnesses found inconsistent with several contradictory statements."
During cross-examination, however, Marvin testified otherwise. His statement that only two men abducted the victim was contradicted by his subsequent testimony during cross-examination and by his affidavit[14] that there were three abductors. He testified:[15]
"Q What happened while you and Mylene were then playing? A Two (2) men approached us. Q What happened when these two (2) men approached you? A They took Mylene. xxx xxx xxxQ Now, when these two men including Boy Topak whom you just identified took Mylene, did they say anything? xxx xxx xxxA They told me not to call any policeman. xxx xxx xxxQ What else, if any, did they say? A That I should not call the parents of Mylene. Q After taking Mylene, what did these two men do, if any? A They boarded Mylene to a jeep. [sic] Q How did you know that these two men [loaded] Mylene [in]to a jeep? A Because I was able to read it. Q What did you do after these two men took Mylene? A I called the mother of Mylene and Renato. Q When was that ? A Monday. Q Now, what did this mother of Mylene and Renato do, if any? A We ran after the two men. Q Where did you run after them?
A At Monumento.
Q What happened at Monumento? A They did not find the men there."[13] (Emphasis supplied.)
Other contradictions in Bisana's testimony were revealed during cross-examination. Although he had declared that he called the victim's mother first before following the kidnappers, he subsequently stated that he followed the kidnappers first before going to Mylene's house. Furthermore, although he had testified during direct examination that the three of them -- Bisana, the victim's mother and Renato -- ran after the kidnappers up to Monumento, he subsequently averred during cross-examination that he alone had done so. His statements during cross-examination are reproduced below:
"Q In short, Marvin, there were three people who approached you? A Yes, sir. Q But I [was] surprised, Marvin, when you were asked during the last hearing by the distinguished fiscal a question like this and I quote, the question appearing in the transcript of the stenographic notes, dated October 9, 1996, page 4, xxx reads like this:'Q What happened while you and Mylene were then playing? A Two (2) men approached us. Q What happened when these two (2) men approached you? A They took Mylene.' Marvin, tell this Honorable Court why you said in your statement that there were only two men who took Mylene while in the affidavit, you said there were three men? ATTY MATURAN: Under the same notation, Your Honor, that the witness when confronted with the abovementioned question [could] not answer." (Emphasis supplied.)
However, Bisana's testimony that he alone had followed the kidnappers up to Monumento was subsequently contradicted by his statement that he was actually in the company of a certain Kuya Nato. Thus:
"Q Where did you call the mother of Mylene and a certain Renato? A At their house. xxx xxx xxx
COURT:
Q What came first, your having followed Mylene xxx or your calling for the mother of Mylene and Renato? A My following xxx Mylene and the men. ATTY. MATURAN: Q Now, Marvin, so you ran after the three men with Mylene first before you informed the mother of Mylene, is that correct? A Yes, sir. Q Up to what place did you chase or run after these takers of Mylene? A Up to Monumento."[16] (Emphasis supplied.)
Thus, during his direct examination, Marvin stated that he, together with the victim's mother and one "Kuya Nato" ran after the abductors up to Monumento.[18] On cross-examination, however, he stated that he alone followed the abductors up to Monumento.[19] On further questioning by the defense counsel, he admitted he was with a certain Kuya Nato.
"Q But you were so brave Marvin. Will you inform this court after you saw the two men [take] Mylene away, you followed them even to Monumento? A I was with Kuya Nato when we followed them. xxx xxx xxx Q Now, Marvin during the last hearing you were asked by this Honorable Court whether you ran or you followed the accused up to Monumento and if you kn[e]w Monumento and your answer was "yes." Do you remember having said that?A Yes, sir. Q You also informed this Honorable Court that you were alone when you followed [the] two men in Monumento? A Yes, sir. Q Marvin tell us now the truth, you are now telling this Honorable Court that you [were] with a certain Kuya Nato[.] [C]an you please explain to this Honorable Court why you said that?A Yes, sir, I only made a mistake. xxx xxx xxxQ Marvin you told us [of] a different witness before. When you were asked by the Fiscal, you told this Honorable Court that you followed the accused together with the mother of Mylene, do you remember having said that?
A I was only with Kuya Nato in following the two men."[17] (Emphasis supplied.)
It is improbable that Marvin joined Renato in following the jeepney to Monumento, without telling the latter that he knew one of the abductors. This narration is contrary to human experience, especially because the kidnapper was also a neighbor of Renato. Paramount in situations such as this is the identification of the kidnapper, particularly when he or she is known to the person who has come to help.
"Q You were running after those two men boarding a jeep along the street going to Monumento with your Kuya Nato? A Yes, sir, we were running. Q Did you tell your Kuya Nato that you kn[e]w Noel Diaz one of the men who took Mylene? A I did not tell him. Q Why Marvin, tell us the truth, why? A Because I was threatened by Noel. Court: Let us clarify this. Q In other words, you merely told your Kuya Nato that somebody took Mylene without telling him that it was Noel Diaz?
A yes, sir. Q Did your Kuya Nato not ask you if you kn[e]w that person who took Mylene? A No, sir. Atty. Maturan: Q Did you tell your Kuya Nato that [you were] both [that person's] neighbor? A I did not."[21] (Emphasis supplied.)
The foregoing statements are not only inconsistent with human nature; they are also contrary to Marilyn's subsequent testimony on cross-examination. First, she testified that she did not know the surname of Marvin. In her affidavit, however, she had stated the full name of the boy.[23] Second, she testified that she was able to talk to Marvin Bisana only on June 5, 1996, Wednesday, two days after the incident, when the boy went to her house to tell her what had happened. Although the mother knew that her daughter had gone out to play with Bisana, it was incredible that she waited for two days before talking to him.
"Q You said that while you were watching TV your five- [year]-old daughter by the name of Mylene stepped out of the house, what then did you do, if any? A When Mylene stepped out of the house I was then washing dishes because we just finished our dinner and after about two minutes I went out and followed her. Q Where did you follow your daughter? A I went out to look for her outside and at the basketball court. xxx xxx xxxQ What when did you do, if any, when you failed to see your daughter at the basketball court? A So we looked for her in the vicinity of the basketball court until we reach[ed] the exit of our place (labasan). Q You said "we looked for her." Who were these "we"? A My brother-in-law Renato and my sister Tess. Q How far did you reach in locating your daughter? A We even looked for her up to Monumento. Q Did you find your daughter that evening of June 3, 1996? A No, sir. Q Now on the following day, June 4, 1996, what did you do, if any? A We continued looking for Mylene until we reached BBB near the Cosmos Factory. Q Who were with you in looking for your missing daughter? A My sister and my [b]rother-in-law.
xxx xxx xxx
Q Now, did you find your missing daughter on June 4, 1996? A We did not find her. Q Now, the following day, June 5, 1996, do you remember what happened? A So we went to the barangay hall and report[ed] the matter. Q Who was with you in going to the barangay hall? A My sister and her husband. Q Why did you go to the barangay? A To ask for help. Q Help in connection with what? A To look for my missing daughter and on [the] day after that when we reached home Marvin approached me. Q You said that coming from the barangay you went home and a certain Marvin approached you[. W]ill you please tell us the complete name of this Marvin who approached you?A I know him only [by] that name. Q What did Marvin tell you, if any?
A Marvin told me that he saw my daughter being taken by two men. Q What else did Marvin tell you, if any?
A Marvin further said that he knew these two men and one of [them was] known as Boy Topak. Q Did Marvin tell you when did these two men [take] Mylene? A Yes, sir." (Emphasis supplied.)
Worse, the contradiction lies not only in the date on which she talked to Bisana. In her direct testimony, she clearly declared that the boy approached her on June 5, when she came back from the barangay hall, and reported to her the kidnapping incident. But on cross-examination, she admitted that they fetched Bisana from school. Thus, she testified:[25]
"Q When did you ask Marvin about the whereabouts of your daughter? A That was June 4 already. Q Mrs. Witness, let us clarify this: did you ask Marvin or Marvin told you? A Marvin told me, sir. Q So, you never asked Marvin about the whereabouts of your daughter? A Yes, sir. Q On June 3, 1996, the very night your daughter was lost as you said? A I asked him, sir. Q Are your sure of that answer of yes? A Yes, sir."
As earlier stated, this testimony is contrary to her initial statement that Marvin voluntarily went to her house two days after the incident to tell her what had happened. Furthermore, such direct testimony also differs from her assertion on cross-examination that Marvin talked to them at the basketball court. She asserted:[26]
"ATTY. MATURAN: Q What did the barangay officials do when you told them that your daughter was in the company of [a] playmate named Marvin Bisana? A The barangay officials asked us if my daughter was in the company of somebody else, and I said only Marvin. So, the barangay officials said that they [would] go and see Marvin. xxx xxx xxxQ Now, did these barangay officials indeed go xxx to the house of Marvin? A Yes, sir. We fixed [sic] Marvin from school since he was in the school at that time. xxx xxx xxxQ Now, please clarify Mr[s]. Witness. This incident of your going to the barangay officials to report the loss of your daughter and the barangay officials['] going to the place of Marvin happened on June 3 or June 5, 1996?A June 5, sir." (Emphasis supplied.)
This assertion is incompatible with her testimony that the matter was reported to barangay officials only two days later. If on the night of the abduction Bisana indeed told them of the identity of the abductors, the failure of the victim's mother to immediately notify the authorities was inexplicable. Asked to specify whether the incident was reported to the barangay authorities on June 3 or on June 5, she stressed that it was on June 5. Thus:[27]
"Q Now, Mrs. Witness, you said earlier that you went to the basketball court to look for your daughter before you went to Monumento. Did you go to the basketball court or not?A We went there, sir. xxx xxx xxxQ Mrs. Witness, where was Marvin when you went to the basketball court looking for your daughter? A Marvin was there at the basketball court and even approached us. Q Was he alone when you saw him at the basketball court? A Yes, sir.
xxx xxx xxxATTY. MATURAN: Q And what did Marvin tell you when you asked him at the basketball court? A He told me that Mylin was taken by two men and he said that he knows these two men who took Mylin." (Emphasis supplied.)
The foregoing question was prompted by an earlier contradictory testimony of the victim's mother:[28]
"Q Now, please clarify Mr[s]. Witness. This incident of your going to the barangay officials to report the loss of your daughter and the barangay officials['] going to the place of Marvin happened on June 3 or June 5, 1996?
A June 5, sir." (Emphasis supplied.)
Discrepancies Between the Accounts of
"Q Now, Mrs. Witness, on the night of June 3, 1996, when you came to know that your daughter was missing, did you not report the matter to the barangay? A We reported the matter, and I was even with my brother-in-law." (Emphasis supplied.)
To that last question of the trial judge, no answer was given. Dolores could say nothing more. Even assuming that she saw the child on June 3, 1996, and not on June 4, 1996, the entry on the police blotter dated June 3, 1996 discredits her claim that she let the child sleep in her house for one night before turning her over to the police.
"FISCAL ACUÑA: The records of the Doña Ata Police Detachment of Marulas, Valenzuela, Metro Manila show, Madam Witness, that it was Lea Fernando, a receptionist of the Pagoda Club in Marulas who reported the matter of having recovered the child Maylin Maribujo to that detachment. What can you say about that?
A Lea was with me in going to the Doña Ata Detachment, but she was the one who reported the matter to the police. Q Aside from you and Lea Fernando, did you have any companions when this matter was reported to the Doña Ata Detachment? A My kumare.
Q Why is it then that it was Lea Fernando who appeared to have made the report to that detachment on that day? A Because she went with the child inside the detachment. Q And where were you at the time that the child went inside to the police detachment with Lea Fernando? A [At] the Information Desk. x x x x x x x x x
ATTY. MATURAN:
Mrs. Santos, you went with a certain Lea Fernando[.] [W]hen was that? FISCAL ACUÑA:
There was another person. A June 4. ATTY. MATURAN: Now, Mrs. Witness, you will change your answer. COURT: Witness may answer. A I will not.
ATTY. MATURAN: I refer now, Mrs. Witness, to the police blotter which reads: 6/3/96. Can you explain to this Honorable Court why the police officer put 6/3/96? Is there an objection, please, Your Honor? Can you explain now, it took [a] longer time to answer.COURT: No objection?" (Emphasis supplied.)