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^{DISSENTING OPINION}

PUNO, J.:

With due respect to our esteemed colleague Mr. Justice Josue N. Bellosillo, I dissent from the majority Decision for the following reasons:

First. The testimony of Fernidand Calip deserves full faith and credit. Ferdinand is the brother of the victim. He was eighteen (18) year old student when he testified. I cannot imagine any reason why he should perjure himself in identifying the accused-appellant as the person inside the tricycle when his sister boarded it. The accused-appellant was unknown to him and his family. There is thus no motive for him to wrongly implicate accused-appellant of a crime punishable by death. It bears stressing that Ferdinand did not allege that accused-appellant committed the crime at bar. He merely informed the authorities of the fact that the accused-appellant was in the tricycle boarded by his sister before she was raped and killed.

The majority doubts the testimony of Ferdinand allegedly because it was unnatural for him to have allowed the victim to board the tricycle when its driver and male passenger were unknown to him. I submit that Ferdinand did not act strangely for nothing in the record shows that the driver and the male passenger did anything to stir up any suspicion that they would commit a criminal act. It is of judicial notice that due to the scarcity of transport, people share seats with strangers even in tricycles. We ride in public vehicles without bothering about the names of drivers and our co-passengers.

I am not persuaded that Ferdinand lied when he testified that his sister boarded the tricycle at 5:30 a.m., even in the light of the testimony of Medina, a defense witness, that they discovered the body of the victim also at 5:30 a.m. Witness to crimes should be given reasonable leeway in their appreciation of time for it is uncommon to remember the exact time of events. In the case at bar, Ferdinand used to accompany his sister take a tricycle ride in the early mornings to go to school. He followed the same routine on January 20, 1995. As he was doing a routine job, there was no reason for him to remember the time at exactly 5:30 a.m. His testimony stating the time at 5:30 a.m. when he let his sister board the tricycle was a mere approximation of the time at issue - - - it could be a few minutes earlier or after. I submit that a few minutes of inexactitude does not mean that Ferdinand was peddling false testimony. Moreover, the evidence is not conclusive that Medina discovered the body of the victim at exactly 5:30 a.m. The records show that Medina based his time testimony on the clock inside his vehicle. There is no evidence however, to show how accurate the said clock was.

Similarly, I am not convinced that the failure of Ferdinand to immediately report that accused-appellant was inside the tricycle boarded by his sister that fateful morning is fatal. The omission should not be interpreted as a sure sign of falsehood. It can well be that Ferdinand, then young, 18-year old student, had yet no reason to suspect that the accused-appellant was the criminal. The initial shock that numbed the Calip family upon learning of the despicable crime should also be considered in judging the confusion of Ferdinand. A thousand and one important things had to be done immediately by the victim's family, and one meaningless omission on the part of the teen-aged Ferdinand is no reason to condemn his testimony as incredible.

Second. The majority also belittles the testimony of Randy Ejara that at about 5:45 a.m. on January 20, 1995, he saw the nervous looking accused-appellant on board the sidecar of a tricycle traversing Lira Street. Allegedly, the ocular inspection of the place conducted by the trial judge in the presence of the parties demonstrated that it was impossible for Ejara to have seen the accused-appellant. With due respect, this is not the conclusion reached by the trial judge. In clear and categorical language, the trial judge declared in his decision:¹

"x x x

"Acting on the Urgent Motion for Ocular Inspection filed by the defense on December 29, 1995, the Court ordered the ocular inspection of Lira Street where prosecution witness Randy Ejara said he was standing when the accused passed by on board the side car of a tricycle which came from the general direction of the water tank of the Lores Country Homes and heading towards Franc Street on its way out of the sub-division, to determine the illumination of that portion of the street and whether it was improbable for Randy Ejara to identify the passenger of said tricycle, on account of the assertion of the defense in its said motion that 'an ocular inspection, if made on the exact date and time when the body of the victim was found, would reveal that Lira Street is so dark it will diminish any opportunity for somebody like Randy Ejara to have a clear view of the passers-by on said street.' The Court fixed the ocular inspection at 5:30 o'clock in the morning on January 20, 1996, to approximate as far as it may be possible and practical the generally prevailing weather condition at the time and in the place of the incident in question when it happened.

"When the Court and the counsels reached the site, subject of the ocular inspection and witness Randy Ejara pointed the exact spot where he was standing at around 5:45 o'clock in the morning on January 20, 1995, when the tricycle riden by the accused passed-by, the Court and the counsels found the place brightly illuminated by the light coming from the Meralco lamp post, the illumination covering a radius of about 18 meters, as estimated by the Court and the counsels. The spot where Randy Ejara was standing was only about six meters away from that Meralco lamp post. Hence, it is not improbable for Randy to recognize the accused inside the side car of that tricycle."

The majority also cites the testimonies of William Macalinao, then president of the homeowners association in Lores Country Homes and Modesto Dime of Meralco, to strengthen its conclusion that there were yet no lights in the area and hence, Ejara's testimony is weightless. Again, a reading of the Decision of the trial court very well explains why the testimonies of Macalinao and Dime cannot devalue the worth of Ejara's testimony, viz:

"x x x

"The Court is hardly impressed with the contention of the defense. The testimony of William Macalinao was offered for the purpose of proving that Lira Street was not lighted yet when the dead body of the victim was discovered. Nothing in the whole testimony of this witness, however, served the purpose for which the same was offered. What he declared was that it was Yuan Street which had no light yet on January 20, 1995. (TSN, March 5, 1996, pp. 14-15)

"Engineer Modesto Dime, on the other hand, has no participation or personal knowledge about the actual installation of the street lights in Lira Street. His only role in the project was to survey the site, propose the places where the street lights may be installed, and draw the sketch Exhibit 8, which he accomplished on December 11, 1994. His knowledge about when those street lights were put into operation was based merely on their record, referring to the entries appearing on the dorsal side of Exhibit 8. (TSN, March 26, 1996, p. 14). Admittedly however, he was not the one who made those entries, but a certain Benjamin Navea, Jr.

"In order that entries in the course of business may qualify under the exception to the hearsay rule, the party offering them must established (sic): (1) the person who made those entries has been deceased or unable to testify; (2) the entries were made at, or near the time of the transaction to which they refer; (3) the entrant was in a position to know the facts stated therein; (4) the entries were made in the professional capacity or in the course of duty of the entrant; (5) the entries were made in the ordinary or regular course of business or duty. (Rule 130, Sec. 43, Revised Rules on Evidence)"²

Third. The majority dismisses as "highly speculative, incompetent, (and) untrustworthy" the testimonies of barangay tanods Adan and Baran that the accused went to the situs of the crime between 3:00 and 3:30 in the morning, "visibly remorseful and intensely disturbed by his conscience." Again, with due respect, these testimonies are not incompetent. They are admissible for section 26 of Rule 130 (c)(3) provides that the "act, declaration or omission of a party as to a relevant fact may be given in evidence against him." The appearance accused-appellant as remorseful is conduct which is relevant in considering his guilt or innocence. Body language can eloquently communicate truth. The doctrine of logical relevance allows a judge to draw a reasonable inference from the appearance of an accused as his appearance is a material fact. The inference should then be weighed in light of the other legally relevant evidence. But whatever its weight, it cannot be shunted aside as conjectural.

Fourth. The majority also states that the accused-appellant was never asked to explain why he had injuries and that the prosecution merely presumed that his injuries were incurred in a scuffle with the victim. It is then concluded that "as the defense is not called upon to disprove what the prosecution failed to prove, this piece of evidence must of necessity be disregarded." Again, I beg to disagree. There is no question that the injuries of accused-appellant were proved by the prosecution. These injuries partake of the nature of circumstantial evidence. Whether or not the accused-appellant sustained them during the rape-killing of the victim is a matter of inference addressed to the trial judge. An inference from a circumstantial evidence need not be the subject of proof as it is the function of logical deduction. For as long as the inference is reasonable, logical, and based on the experience of man, it is entitled to some weight.

Fifth. The majority also gives more credence to the denial of the accused-appellant that he was wearing a bloodstained inverted brief when he was apprehended. It was barangay tanod Adan who apprehended accused-appellant and testified on his brief. Adan had no axe to grind against the accused-appellant. He did not know the accused-appellant before his apprehension. Ancient jurisprudence tells us that his testimony deserves more credence then the denial of the accused-appellant.

The failure to preserve accused-appellant's brief and present it as evidence is regrettable lapse on the part of the prosecution. The lapse, however, does not necessarily mean that the testimony of Adan on the matter was an out and out concoction. The lapse can well be due to the simple lack of experience of Adan in investigating rape with homicide cases. The Court should note that Adan is a mere barangay tanod. He is not experienced in police investigation, let alone investigation of heinous crimes. Indeed, it was his first time to apprehend a suspect involved in a rape with homicide case.

Similarly, the failure of the prosecution to locate and present the "white tricycle with black mudguard, an antenna and a stereo" is not fatal omission. The important thing is that the existence of said tricycle cannot be doubted. Neither can it be doubted that accused-appellant was seen riding in said tricycle. Ferdinand Calip saw him inside the tricycle before it was boarded by the victim at 5:30 A.M. Randy Ejara saw him inside the tricycle fleeing on Lira Street after the rape-killing of the victim. These testimonies cannot be given zero value just because the said tricycle and its driver were not presented by the prosecution.

Sixth. The majority floats the thesis that the real criminal could be a "drug-crazed element." The thesis is premised on the great number of wounds inflicted by the criminal on the victim in a 30-minute struggle. Whether or not the criminal is drug-crazed is pure guesswork. What is not guesswork is that the criminal suffers from behavioral aberration. The accused-appellant exhibited such aberration. Visiting the site of the crime at 3 o'clock in the morning with a candle allegedly to pray for the soul of the victim is the best evidence of such aberration.

In sum, the circumstantial evidence established the guilt of the accused-appellant beyond reasonable doubt. In contrast, the alibi of accused-appellant is as weak as an overused rug. As aptly observed by the trial court:

"The alibi of the accused is inherently weak. It can not off-set and prevail over the collective weight of the prosecution's evidence. No jurisprudence in criminal case is more settled than the rule that alibi is the weakest of all defenses that an accused can avail of, in view of the ease by which it can be concocted and the great difficult[y] of proving it. For alibi to serve as basis for acquittal, the accused must established (sic) not only that he was at some other place when the crime was committed; he must also demonstrate by clear, convincing and trustworthy evidence that it was physically impossible for him to be at the scene of the crime at the time of its comission.

"In the case under consideration, it was not physically impossible for the accused to be at the crime scene at the time it was committed. The distance between the house of the accused at E. Leyba Street, Antipolo Rizal, and the spot in Lira Street, Lores Country Homes, Antipolo Rizal, where the victim was found sprawled lifeless can be easily negotiated in just approximately from thirty to forty minutes. This can be easily deduced from the testimony of the accused that leaving their house at 7:30 o'clock in the morning on January 20, 1995, he reached the church by jogging along the way between 7:45 and 8:00 o'clock the same morning (TSN, Dec. 14, 1995, pp. 12 & 24). On the other hand, the ocular inspection group left their meeting place at the Antipolo Church yard at 5:05 o'clock in the morning on January 20, 1996 and arrived at the site of the ocular inspection at 5:15 o'clock the same morning. While it may be conceded that the group rode on separate motor vehicles in going to the site, the vehicle taken by the Court did not accelarate (sic) to more than ten kilometers per hour considering the road turns and uphill drive it took."³

I vote to convict the accused-appellant.

Endnotes:

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¹ Penned by Judge Ramon P. Makasiar; Rollo, p. 342.

² Id., pp. 341-423.

³ Id., pp. 339-340.