409 Phil. 746
PANGANIBAN, J.:
"That on or about January 9, 1997, in the morning in the Municipality of Pikit, Province of Cotabato, Philippines, the said accused, in company with JOHN DOE and PETER DOE, whose real identities are still unknown and [who are] at large, [by] conspiring, confederating and mutually helping one another, did then and there [--] willfully, unlawfully and feloniously with the use of force and intimidation [-- succeed] in having carnal knowledge [of] LAILA ROSE B. ARCO, minor, five (5) years old, against her will[;] that on said occasion, the above-named accused, with intent to kill, choke[d] and thereafter threw her to the pond near the Purok, which is the direct and immediate cause of her death thereafter." [2]
"WHEREFORE, judgment is hereby rendered finding ARSENIO TOLEDO, SR. guilty beyond reasonable doubt of the crime of [m]urder under Article 248 of the Revised Penal Code and therefore sentences him to suffer the penalty of reclusion perpetua with the accessories provided by law.
"The accused is further ordered to indemnify the heirs of victim Laila Rose Arco in the amount of P70,000.00; to pay them P50,000.00 moral damages and P30,000.00 exemplary damages; and to pay the cost.
"As the accused is presently under detention in the Provincial Jail, Amas, Kidapawan City, he is ordered committed to the Davao Penal Colony, Carmen, Davao del Norte."
"Sometime on the morning of January 9, 1997, Ronnie Cabamungan, then . . . a Grade (I)[6] pupil of Pikit Central Elementary School, Cotabato, was ordered by his teacher Mrs. Cabana to return some plates to her house. He was accompanied by Jerry Saac, also a pupil of the same school. (pp. 8-10, TSN, July 2, 1997). While on their way to return the plates, Ronnie saw Laila Rose Arco urinating near a coconut tree at the `bungtod' or a higher portion of a land or a small hill. While Laila Rose was urinating, Ronnie saw appellant grab Laila Rose by carrying her head with his left hand as her feet were held by appellant with his right hand (pp. 11-12, TSN, Ibid.). Appellant brought Laila Rose inside the `purok' or a small hut where Ronnie noticed two other unidentified companions of the appellant waiting. Laila Rose shouted `tabang' (meaning help) but to no avail because appellant strangled (`tuok') her and covered her mouth. Thereafter, appellant came out of the hut and threw her body into a pond, and, together with his companions, ran away (pp. 12-16, TSN, Ibid; 29-39, TSN, Ibid).
"On January 9, 1997, at around 11:00 o'clock in the morning, Jimmy Arco, who was then driving a `trisicad', received information that his daughter (Laila Rose) was found drowned. He went to the Llaguno Medical Clinic where his daughter was being revived by nurses and attendants. The clinic personnel were pressing their hands over his daughter's breast to resuscitate her. Thinking that Laila Rose was still alive, he helped the nurses and the attendants in pressing his daughter's breast. While resuscitating Laila Rose, Jimmy noticed a blackened mark on her neck with what appeared to be three fingernail marks (pp. 12-16, TSN, July 1, 1997). After Laila Rose was pronounced dead, her body was brought to the National Bureau of Investigation (NBI).
"Dr. Tammy Uy, Senior Medico Legal Officer of the NBI in Cagayan de Oro City, conducted a post mortem examination (Exhibit `F' to `F-9') at about 8:20 p.m. of January 9, 1997 on the cadaver. The results of her examination showed that the genital[ia] had fresh complete lacerations at 3:00 o'clock, 6:00 o'clock and 9:00 o'clock position[s] with fibrin and with edematous congested edges. The cause of death [was] asphyxia, secondary to strangulation. Her autopsy showed the following:
`fresh hymenal lacerations are noted on the subject at the time of examination, ages of which are compatible with the alleged date and time of death on January 9, 1997 between 7:30 a.m. and 11:00 a.m. (pp. 4-10, TSN, April 21, 1997).'
"Dr. Uy stated that the presence of fibrin [indicated] that the injuries were sustained by the victim while she was still alive. The abrasions and lacerations at the posterior could have been caused by a hard, blunt object like an erect penis or anything that was forcibly inserted on Laila Rose's vagina (pp. 4-23 TSN, July 21, 1997).
"Dr. Uy further testified that she found three abrasions, toughly linear with fresh scabs located at the right side, mid aspect and left side in the adam's apple. The first group of abrasions [were] found on the right side of the neck, the second group at the thyroid region of the neck and the other abrasion [was] .5 x .2 centimeter. The fourth abrasion [was] located at [the] right side of [the] chest below the nipple. The depressed fracture[d] body of the thyroid cartillage, anterior aspect, bilateral lined, [were] caused by strong pressure applied. Likewise, the application of strong pressure cause[d] the hemorrhages in the thyroid region.
"The doctor also noted `Tardieu spots' on the body of Laila Rose. This meant that there was petecchial hemorrhage, extensive, subpleural, bilateral and subepicardial, which could have made it impossible for Laila Rose to breath[e] or inhale oxygen leading to hemorrhage on the surface of the lungs and of the heart. Laila Rose's heart chamber was likewise full of dark fluid and clotted blood, indicati[ng] that there was no external blood loss and no bleeding. Dr. Uy opined that Laila Rose's death was caused by manual strangulation because the abrasions on her neck were linear, and possibly caused by human fingernails.
"Baltazar Cabamungan, [who was] the older brother of Ronnie Cabamungan and who was 26 years old at the time of the trial, testified that sometime after lunch, in January, 1997, he accompanied his younger brother Ronnie [to] the 'cockpit'. Ronnie pointed to the appellant Antonio Toledo, Sr., as the person who killed Laila Rose. Ronnie emphatically stated `Kuya mao na Siya' (Kuya, this is the one). The two brothers then went to the police station where they reported the matter to police authorities. The chief of police conducted an on the spot investigation (Exhibit `I', pp. 32-35, TSN, Ibid.). During the trial, Baltazar identified appellant as the person his brother Ronnie earlier pointed to as the perpetrator of the crime (pp. 23-30, TSN, November 11, 1997).
"Later, two policemen went to Baltazar Cabamungan's residence to interview Ronnie Cabamungan. Ronnie told SPO2 [Rudolfo] Milagrosa that he and his classmate, Jerry Saac saw an old man carrying Laila Rose while she was urinating. Ronnie said that the old man brought Laila Rose to the cottage (purok). Ronnie stated that he frequently saw the old man in the cockpit arena in their place with his fighting cock. The next day, Milagrosa requested four people, namely Atty. Samuel Perenal, Mayor Ong, the Principal of Pikit Elementary School, Mr. Gomez and Atty. Roberto Mellendez to observe the conduct of the investigation. As a result, an affidavit was executed by Ronnie Cabamungan which was witnessed and signed by the four witnesses aforementioned (pp. 18-27, TSN, Ibid.)." [7]
"Accused Arsenio Toledo, Sr. denied having grabbed Laila Rose Arco, brought her to the purok, strangulated her, covered her mouth and thr[own] her into the pond. He denied also having raped her.
"He testified that on January 9, 1997, he left his house at 8:20 in the morning to go to his farm at Calawag, about 3 ½ kilometers or [a] 15-minute ride. He did not proceed because he passed by the house of Todo to buy [a] cock because Todo [was] also a cock breeder. However, he did not buy the cock because the classification of the cock [was] not suitable to him. At 9:30, a military man, Captain Leonardo Songcaya, with four men, arrived looking for Todo. At 10:30, M/Sgt. Pedro Cuisin arrived. He conversed with Capt. Songcaya who left at 11:00. He and Pedro Cuisin left the house of Todo at 12:00 noon. He went home because he was hungry. After taking his lunch, he slept and woke up at 1:00 and checked up his jeep until 5:00 o'clock in the afternoon (TSN, April 8, 1998, pp. 16-24).
"To buttress his denial that he had not grabbed Laila Rose, brought her to the purok, strangulated her, covered her mouth and thr[own] her into the pond, Jerry Saac was presented.
"While Jerry admitted that he and Ronnie Cabamungan were requested by their teacher to return the plates to her house, he, however, denied that he saw Laila Rose urinating, that Toledo, Sr. grabbed her, brought her to the purok, strangulated her, and threw her into the pond (TSN, December 17, 1997, pp. 22-23).
"Eleanor Toledo, Toledo Sr.'s wife, did not believe that the testimonies of the prosecution witnesses against her husband [were] true (TSN, April 6, 1998, p. 85). She testified that her husband [was] innocent of the crime charged (Ibid., p. 89).
x x x x x x x x x
"Witnesses Vena[n]cio Gabales, Joey Raul Unson, Florencio Mamites, Rosalina Saac and Remus Unson were presented by the defense to prove that the police framed-up Toledo, Sr.
"Vena[n]cio Gabales testified that the police forced him to testify against Arsenio Toledo, Sr. (TSN, January 6, 1998, pp. 11 and 16).
"Joey Raul Unson testified that Rudy Milagrosa wanted him to testify against Arsenio Toledo, Jr. as the person who raped and killed Laila Rose in the purok (TSN, February 18, 1998, p. 18).
"Florencio Mamites testified that Rudy Milagrosa requested him to testify against Arsenio Toledo, Jr. as the rapist of Laila Rose Arco (TSN, February 18, 1998, p. 39) and that he was offered [a] P70,000.00 reward if he [would] testify against Toledo, Jr. (Ibid., p. 41).
"Rosalina Saac testified that the police told her son, Jerry Saac, to pi[n]point Arsenio Toledo, Sr. appearing in the picture shown to him as the person who raped Laila Rose (TSN, April 16, 1998, p. 7).
"Remus Unson testified that the police wanted his son, Joey Raul Unson, to testify against Arsenio Toledo, Jr. as the person responsible for the death of Laila Rose (TSN, April 6, 1998, p. 39)."
"1. The trial court erred in finding appellant Arsenio Toledo, Sr. guilty [of] the crime of [m]urder under Article 248 of the Revised Penal Code of the Philippines;
2. The trial court erred in not appreciating the factual, logical and natural issues relevant to the evidence presented by the [d]efense."
"Q: You said you saw Arsenio Toledo actually grabbing the girl clearly going to the purok and strangulating her[. D]o you know Arsenio Toledo?
A: Not yet, Ma'am.
Q: You mean that you did not know x x x yet that he [was] Arsenio Toledo during the time you saw him?
A: Yes, Ma'am.
Q: But you know him by face?
A: Yes, Ma'am.
Q: But later on did you know that he [was] Arsenio Toledo?
A: Yes, Ma'am."[11]
"Q: In fact that person whom you saw and whom you know as Arsenio Toledo, during that time you did not know that his name [was] Arsenio Toledo, is that correct?
A: Not yet, sir.
Q: In fact, Mr. Witness, you only know that person was Arsenio Toledo when the police told you, is that correct?
A: The one who told me that that person [was] Arsenio Toledo [was] my Kuya Junjun when he was with me in the cockpit, sir."[12]
"Q: You said that the purpose of your going to the cockpit was for Ronnie to pinpoint the guy whom he had seen responsible for the killing of Laila Rose. Now when you reached the cockpit what did you do?
A: Upon reaching the cockpit he pointed to the person whom he saw as the one who killed Laila Rose and threw (her) into the water. He further said "kuya, mao na siya". Meaning, "[K]uya this is the one."
Q: So when he pointed to you the guy by saying ["]Kuya, mao na siya,["] did you know the guy?
A: Yes sir... yes ma'am.
x x x x x x x x x
Q: Who was that guy?
A: Arsenio Toledo, ma'am."
"Q: When all of these persons were interviewed by you, what did you do next?
A: [As a] result of the invitations that we conducted the six persons that we invited, I almost g[a]ve up [on] the investigation.
Q: What did you do then?
A: Good that the last approach I have made materialized.
Q: What was that approach you have made?
A: I went to the school campus particularly to the canteen 60 meters more or less from the crime scene. I bought Pop Cola and wait[ed] for sometime until the bell rang for recess.
Q: Could you estimate what time was that?
A: I am not sure but I think it was 9:30 to 10:00 o'clock.
Q: Now what did you do then while drinking [P]op [C]ola?
A: When it was already x x x recess, the pupils were already in their canteen, I ha[d] to go down to their level and I said: `Dong, dong tan-awa tong bata didto crush to nimo no' and he answered `Dili uy[.]'
Q: Why did you talk that way to the children? What was your purpose?
A: Because I ha[d] a hard time to approach them because the moment they knew that I [was] a policeman so I ha[d] to go down to their level first using that strategy and I said: `Wala gyoy nakakita ni Laila Rose no[,] kon unsay nahitabo[`]?
Q: When you asked [if] no one ha[d] seen [the incident], what happened?
A: Almost all of them answered in chorus `Naa sir, naa sir, Grade I naay duha ka buok.[`]
RTC INTERPRETER: Almost all of these pupils simultaneously said: Naa, sir, na [a] sir, meaning: There is, sir, there is, sir.
Q: What did they [chorus]?
A: Naa sir, naay duha ka buok.
RTC INTERPRETER: There [were] sir, there were two pupils who witnessed.
Q: Did they mention the names of these two children [who] they said in chorus x x x ha[d] seen the incident?
A: Yes, they answered that [they were] Ronnie Cabamungan and Jerry Saac.
Q: Upon knowing from these children that there were two children who ha[d] seen the incident involving Laila Rose Arco, what did you do?
A I called up my back-up PO3 Eramis to help me in locating these two children.
Q: Did you locate them?
A: Yes, we were able to reach the house of Mr. Baltazar Cabamungan.
Q: And then what happened when you reached the house of Mr. Cabamungan?
A: I requested x x x that I x x x be allowed to interview Ronnie Cabamungan.
Q: And were you able to interview Ronnie Cabamungan?
A: The mother was hesitant that their son be interviewed ma'am.
Q: What did Ronnie tell you?
A: He told me that he and Jerry Saac saw an old man [take] and carry Laila Rose Arco while she was urinating and [bring her] to the cottage.
Q: Now what else transpired after that? When Ronnie Cabamungan told you about what he saw[,] what else did you ask him?
A: I asked him if he [knew] the name of that old man he [was] referring to.
Q: And what did Ronnie Cabamungan tell you?
A: He told me that he did not know the name but he always saw this old man in the cockpit arena always bringing [a] fighting cock.
Q: Upon learning from Ronnie Cabamungan that the person who grabbed Laila Rose Arco was the very person whom he always saw in the cockpit bringing [a] fighting cock, what did you do?
x x x x x x x x x
A: I requested and instructed his older brother Baltazar Cabamungan, Jr. to accompany his younger brother to the cockpit area.
Q: Did you go with them to the cockpit?
A: No. . . .
Q: In the cockpit what happened?
A: While I was already at the road, Baltazar Cabamungan, Jr. and Ronnie Cabamungan, left the place and Baltazar Cabamungan, Jr. told me that he ponted to Arsenio Toledo, Sr.
Q: Who pointed to Arsenio Toledo, Sr.?
A: Ronnie Cabamungan [pointed] to his brother and when I look[ed] x x x there I saw also Arsenio Toledo, Sr. in that area."[13]
"Section 34, Rule 132 of the Rules of Court, provides that "[t]he court shall consider no evidence which has not been formally offered." A formal offer is necessary, since judges are required to base their findings of fact and their judgment solely and strictly upon the evidence offered by the parties a[t] the trial. To allow parties to attach any document to their pleadings and then expect the court to consider it as evidence, even without formal offer and admission, may draw unwarranted consequences. Opposing parties will be deprived of their chance to examine the document and to object to its admissibility. On the other hand, the appellate court will have difficulty reviewing documents not previously scrutinized by the court below.
x x x x x x x x x
. . . A document or an article is valueless unless it is formally offered in evidence, and the opposing counsel is given an opportunity to object to it and to cross-examine any witness called to present or identify it. Evidence not formally offered before the trial court cannot be considered on appeal, for to consider it at such stage will deny the other parties their right to rebut it."
"Besides, it is settled that where a witness testifies for the prosecution and retracts his testimony and subsequently testifies for the defense, the test to decide which testimony to believe is one of comparison coupled with the application of the general rules of evidence. The well settled rule is that retractions are generally unreliable and are looked upon with considerable disfavor by the courts. In the case before us, Siony testified during the preliminary examination conducted by Judge Paano that the appellant choked her mother to death. Her subsequent retraction was an afterthought and has no probative value at all."
"Previous to its amendment by R.A. 7610, the penalty for homicide under Article 249 of the Revised Penal Code, was reclusion temporal. As amended by R.A. 7610, the penalty for homicide in cases where the victim is a child below twelve (12) years of age is reclusion perpetua. The second paragraph of Section 10 of Article VI of R.A. 7610 provides, as follows:`For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph[s] 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. x x x.'"