SECOND DIVISION

[G.R. No. 107798. November 16, 1995.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ORLANDO
LU TA O y LOBOS AND JULIO MEDERA y TURCIDO, accusedappellants, BATING NAZA, JOHN DOE, AND PETER DOE (at
large), accused.

The Solicitor General for plaintiff-appellee.

aisadc

Public Attorney's Office for accused-appellant.

SYLLABUS
1.
REMEDIAL LAW; EVIDENCE; PRE-TRIAL IDENTIFICATION SUFFICIENT;
PROSECUTION WITNESSES RELIEVED OF THE BURDEN OF MAKING AN IN COURT
IDENTIFICATION. By their admission that they are the Orlando Lutao and the
Julio Medera accused of committing the crime at bar, the prosecution witnesses
were relieved of the burden of making an in court identication of accusedappellants as the malefactors.
2.
ID.; ID.; CREDIBILITY OF WITNESSES; SUBSEQUENT CONDUCT OF THE
VICTIMS CONSIDERED IN THE ASSESSMENT THEREOF. The conduct of the Siervo
spouses subsequent to the crime fortied their credibility. They promptly revealed
their misfortune to Acero. They gathered their guts and reported the incident not
only to the Mondragon police authorities but also to the San Roque police. Lourdes
submitted herself to physical examination. These were all spontaneous actions.
Indeed, it was far fetched for this rural couple, in living in an isolated, unprotected
house to falsely impute all atrocious crime against accused-appellants who were
inuential CAFGU members assigned in their barangay. They would not put their
lives on the line except for a legitimate grievance.
3.
ID.; ID.; DEFENSE OF ALIBI; CANNOT PREVAIL OVER THE POSITIVE
IDENTIFICATION OF THE ACCUSED. Easy to concoct, alibi is a weak defense. It
cannot prevail over the positive identication of an accused. It cannot succeed when
there is no showing that it is not physically impossible for the accused to be at the
crime scene at the time of its commission.
4.
CRIMINAL LAW; ROBBERY WITH RAPE; COMMITTED IN CASE AT BAR. The
trial court, erred in denominating the crime committed by accused-appellants as
Robbery in Band with Multiple Rape. In People v. Precioso, (G.R. No. 95890, May 12,
1993, 221 SCRA 748) we held that there is no such composite crime of robbery in
band with multiple rape. The crime is robbery with rape, with band as a mere
aggravating circumstance. It is penalized under Article 294 (2) of the Revised Penal
Code, as amended by Republic Act No. 7659 imposing the death penalty.
LLpr

DECISION
PUNO, J :
p

Bad elements of the Civilian Armed Forces and Geographic Unit (CAFGU)
again take centerstage in the case at bar. ORLANDO LUTAO and JULIO MEDERA,
members of the CAFGU, were convicted of Robbery in Band with Multiple Rape 1
in a Decision 2 of the Regional Trial Court of Catarman, Northern Samar. They
were sentenced to suer the penalty of reclusion perpetua, and to indemnify the
amount of P30,000.00 to Lourdes Siervo or a total of P60,000.00 and to pay
spouses Siervo jointly and severally the amount of P4,060.00 corresponding to
the stolen money plus the costs of the suit. They insist on their alibi in their
appeal to this Court. We reject their pretended innocence.
The Amended Information against the ve (5) accused Orlando Lutao,
Julio Medera, Bating Naza, John Doe, and Peter Doe reads:
"That on or about the 29th day of December, 1991, at around 10:00 o'clock
in the evening, in Sitio Camarino, Barangay Malobago, Municipality of San
Roque, Province of Northern Samar, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, armed with M-14 and M-1
(Garand) ries, conspiring with, and confederating together with two (2)
persons (John Doe and Peter Doe) whose true names, identities and present
whereabouts are still unknown, and mutually, unlawfully and feloniously, with
intent of gain and by means of force, violence and intimidation take, rob and
carry with them a cash money in the amount of FOUR THOUSAND SIXTY
(P4,060.00) PESOS, Philippine Currency, belonging to spouses Arturo M.
Siervo and Lourdes Siervo, against their will and this was committed inside
their residence in the above-mentioned place, to the damage and prejudice
of said owners in the aforesaid sum of FOUR THOUSAND SIXTY (P4,060.00)
PESOS, Philippine Currency; that in the commission of the said oense the
above named accused, Orlando Lutao, Julio Medera, Bating Naza, John Doe,
and Peter Doe, with lewd design, conspiring, confederating together and
mutually helping one another did then and there willfully, unlawfully and
feloniously by means of force, violence and intimidation took turns in lying
down with and having carnal knowledge of Lourdes Siervo against her will
and consent while accused Julio Medera stood guard and threatened with
the use of his M-14 rie the husband of Lourdes Siervo and thereafter
watched his companions raped Lourdes Siervo.
With the aggravating circumstance that accused Orlando Lutao had been
sentenced by the Court of Appeals on January 22, 1987 to suer
imprisonment of 8 years and one day to 14 years, 8 months and one day in
Criminal Case No. 323 for Murder.
CONTRARY TO LAW." 3

Accused-appellants Lutao and Medera pleaded not guilty. Accused Bating

Naza, John Doe and Peter Doe remained at large.

At the pre-trial, the parties agreed that the accused-appellants on trial are
Orlando Lutao y Lobos and Julio Medera y Turcido, both members of the CAFGU
under the command of Lt. Arismindo Dayaon of the Philippine Army and
stationed in Barangay Malobago, Municipality of San Roque, Northern Samar.
At the trial, the evidence of the prosecution was given by witnesses
ARTURO SIERVO, 4 LOURDES SIERVO, 5 and DR. MELODIA NERIDA. 6
The spouses Arturo and Lourdes Siervo lived in a one-room house with a
oor area of a two and a half (2 1/2) meters by three (3) meters. Their house is
located in an isolated farm and about six (6) kilometers by feeder road from the
poblacion of Barangay Malobago, San Roque, Northern Samar. On December 29,
1991, they and their four (4) children, ages two (2) to eight (8), went to bed at
7:00 p.m. They slept on the bamboo ooring with Arturo near the doorway. A
sack draped at their door served as its shutter.
At about 10:00 p.m., Arturo was awakened by a voice yelling, " Toring,
Toring. Where is the trail going to Inanasan? " 7 He did not hear the question well
and he asked, "What is that?" The man repeated the question: "Where is the trail
going to Inanasan, we are lost in our way. " 8 Arturo recognized the voice of Julio
Medera, who used to be a buyer of their chicken.
A "pa-agahan" (kerosene lamp) hanged at the corner of their house. 9 With
its light, Arturo saw Julio Medera, Orlando Lutao, Bating Naza, and their two (2)
other companions who were unknown to him. 10 Medera and Lutao were armed
with an M-14 rie and M-1 garand, respectively. They wore military uniforms.
Arturo groped his way to the doorway and asked them where they came from.
Medera responded by dragging him downstairs. At the ground, Medera poked his
gun at Arturo and ordered him to kneel while the others stood guard.
Lutao then barged into the house, shook the left shoulder of Lourdes with
his gun and announced a "hold-up." He demanded money from Lourdes. Lourdes
begged him to spare their money which was earmarked for the medical
treatment of their child. Lutao answered her plea by hitting her chest with the
butt of his gun. 11 Stricken with fright, Lourdes yielded the leather wallet under
her pillow containing four thousand sixty pesos (P4,060.00) realized from the
sale of their copra and pig. She handed it to Lutao who threw the coins on the
floor.
Then, Lutao's lust was aroused. He pulled down the skirt and panty of
Lourdes and ordered her to lie down. Lourdes begged not to be abused because
she was menstruating. Lutao ignored her pleas and poked a gun at her. 12 He
shed o his fatigue jacket, maong pants, and green brief and forced his lust upon
her. Lourdes' resistance was futile. Medera, Naza, and their two other
companions joined the sexual orgy. They raped Lourdes in succession. Lourdes'
youngest child awoke and cried unaware of his parents' harrowing experience. 13
Arturo was a meter away when Lourdes was violated by the accused.
Throughout the unfortunate ordeal of his wife, he was furious but helpless. The
accused guarded him.
Their lust satised, the accused set to ee. But before eeing, Medera
pointed his gun at Arturo and ordered him to run. Arturo rushed towards the

bushes about fteen (15) brazas away from his house. The malefactors then ed
to Inanasan.
Lourdes who passed out regained consciousness. Her abusers were no
longer around and so was her husband. She cried and her weeping awakened her
other children. Still shaking with fear, she and her four (4) children walked and
sought immediate refuge at the house of Fausto Acero. The house of Acero is ten
(10) kilometers away from her house. 14
Daylight broke. Arturo came out from the grasses and searched for his
family. They were united at Acero's house. It was then that they revealed to
Acero their ordeal.
Initially, the spouses hesitated to report the incident to the police
authorities for fear of reprisal from Lutao and Medera who were CAFGU
members. They nally mustered courage and reported the crime to the
Mondragon Police Station on December 31, 1991. 15 They named Orlando Lutao,
Julio Medera, and Bating Naza as the culprits. Two (2) days thereafter or on
January 2, 1992, they retold their story to the San Roque Philippine National
Police Headquarters. 16 Petried by the incident, the Siervo family abandoned
their house and farm in Barangay Malobago and lived with Arturos' mother in
Barangay Bantayan. Their physical and emotional disturbance were beyond
doubt.
Dr. Melodia Nerida, the Medical Ocer of Northern Samar General Hospital,
certied that there was no trace of irritation, sperm cells, and sexual coition in
the genitalia of Lourdes. She, however, opined that the victim's menstrual ow
could have washed-out the semen. 17 She added that it was dicult to detect the
sexual assault since the victim's organ already experienced four (4) pregnancies
and childbirth.
Accused-appellants Medera and Lutao denied their involvement in the
crime and anchored their defense on alibi.
Medera testied that on December 29, 1991, Lt. Arismindo Dayaon ordered
them on "red alert" because of an imminent raid by the New People's Army
(NPA). 18 His tour of duty to guard the 19th IB Detachment Camp, Charlie
Company, Philippine Army was from 10:00 to 12:00 p.m. He was relieved by
Lutao at twelve midnight.
Lutao corroborated Medera's testimony. He testied that on December 29,
1991, he guarded the camp from 12:00 p.m. till 2:00 a.m. He said he never left
the barracks while on duty. 19
Lt. Arismindo Dayaon, Cpl. Manuelito Anata, and Cpl. Celso Mabascog
likewise corroborated the alibi of accused-appellants. Lt. Dayaon conrmed that
he ordered accused-appellants to guard the barracks on December 29, 1991. Cpl.
Anata and Cpl. Mabascog testied that they supervised the assignments of the
accused-appellants on the said date. 20
The trial court on June 30, 1992 convicted the accused-appellants of the
crime of Robbery in Band with Multiple Rape.

In this appeal, accused-appellants assail the Decision of the trial court as

follows:
"I
THE TRIAL COURT GRAVELY ERRED IN GIVING MORE WEIGHT AND
CREDENCE TO THE EVIDENCE FOR THE PROSECUTION AND IN
DISREGARDING THE EVIDENCE FOR THE DEFENSE.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS
GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY IN
BAND WITH RAPE.

We affirm the conviction with modification.

We shall rst rule on accused-appellants' argument that they were not
identied in court by the spouses Siervo, and hence, should be acquitted. They
rely on People v. Hatton, 21 where we held that pre-trial identication is not
sufficient.
We reject accused-appellants' argument. The question of whether accusedappellants are the persons actually accused in the case at bar is a non-issue. The
issue was settled during the pre-trial of the case where the parties agreed that
the accused-appellants on trial are Orlando Lutao y Lobos and Julio Medera y
Turcido. 22 They were even described as members of the CAFGU under the
command of Lt. Arismindo Dayaon of the Philippine Army and stationed in
Barangay Malobago, Municipality of San Roque, Northern Samar. By their
admission that they are the Orlando Lutao and the Julio Medera accused of
committing the crime at bar, the prosecution witnesses were relieved of the
burden of making an in court identication of accused-appellants as the
malefactors. Throughout the proceedings, they never claimed that their
admission was an error. Indeed, they did not claim as defense that they are not
the persons accused of the crime at bar. Their defense is alibi that they were at
another place when the crime was committed.
Quite clearly, accused-appellants cannot lean on the Hatton case. In Hatton,
the accused did not admit he was the Hatton charged in the Information. During
the trial, the witnesses for the prosecution failed to identify him. The prosecution
tried to remedy the lapse by introducing the identication made by the victim of
the accused in a police line-up, an out-of-court identification. The Court found this
identication as inrmed as it was suggested by the police. It acquitted the
accused, ruling: "The failure of the prosecution witnesses to positively identify
the assailant in court is fatal to the prosecution's cause. Pre-trial identication is
not sucient." Hatton is, thus, distinguishable for in the case at bar, accusedappellants judicially admitted they are the persons charged with the offense.
It is also inaccurate to contend that accused-appellant, Julio Medera was not
identied in court. Lourdes Siervo positively identied him in the course of her
testimony. We quote the relevant part of her direct testimony, viz.:

xxx xxx xxx

"Q
"A

If that Julio is in court, will you point to us where he is?

(Witness pointing to a person with blue t-shirt and when asked his
name, answered Julio Medera)." 23

Next, accused-appellants urge that the spouses Siervo should not be

believed because of inconsistencies in their testimonies, viz.:
xxx xxx xxx
"(1)
Lourdes Siervo, during her direct testimony, . . . point(ed) to . . .
Julio Medera as the one who woke her up and demanded money. . . (But)
during her cross examination . . . she easily changed her answer from Julio
Medera to Orlando Lutao . . . to conform with what she has declared in her
affidavit.
xxx xxx xxx
(2)
The spouses Siervo reported (to the Mondragon police) that they
were robbed and Lourdes Siervo was raped by . . . Bating Naza, Orling
Lutao, Jerry Medera, and two unidentied companions. . . . (But) on January
2, 1992, the couple reported the incident before the San Roque (police) . . .
that the two (2) of the ve (5) malefactors were Orlando Lutao . . . and Julio
Medera.
xxx xxx xxx
(3)
Arturo Siervo testied that . . . he ran to the bushes . . .
because he was told by the five (robbers) to run. . . . Whereas in his affidavit
. . . he stated that he ran to the bushes to hide." 24

We hold that these inconsistencies are not malicious marks of falsehood. It

is true that in her direct examination, Lourdes pointed to Medera as the one who
announced the hold-up. On cross-examination, she changed her testimony and
armed the content of her prior adavit that it was Lutao who declared the
hold-up. On questioning by the trial judge, Lourdes admitted her mistake, thus:
xxx xxx xxx
"Q

When you asserted that it was Julio Medera who awakened you by
shaking you by your shoulder it was by mistake because it was
Orlando Lutao who did that?

Yes, sir." 25

Lourdes was candid in admitting her mistake. It was an honest mistake. One
honest mistake in the course of a long testimony cannot dilute her credibility. To
be sure, Arturo corroborated the testimony of Lourdes that it was Lutao who
roused his wife from sleep, announced the hold-up, and carted the money away.
There was also an initial confusion on whether the Medera involved in the
case at bar was Jerry or Julio. We agree with the trial court's rationalization as it
deated the signicance in the discrepancy of the names of Jerry Medera and
Julio Medera, viz.:

xxx xxx xxx

"The initial identication by name Jerry Medera before the police in
Mondragon given only by Arturo Siervo as one of the criminals, it being
shown that Julio Medera has a brother by said name and who is also a
member of the CAFGU in San Roque (Exhs. "5" and "6" in relation to Exh.
"9") detracts nothing from Lourdes Siervo's spontaneous court room
identication when she pointed out to the person of Julio Medera upon his
name being mentioned in the course of an answer while 'Pating' Naza,
instead of Bating Naza, as written in the police blotter (Exh. "9") is so
innocuous an error that it should be attributable to inaccuracy of the hearing
and/or pronunciation." 26

Accused-appellants also claim that it was unnatural for Arturo to run to the
bushes and abandon his wife who has just been raped. We do not agree. Arturo
was under the gun. It would have been foolhardy for him to disobey the order for
him to run. He would have been shot dead if he did not. Even his family would
have been further endangered. He did not have any rational choice except to run.
The conduct of the Siervo spouses subsequent to the crime fortied their
credibility. They promptly revealed their misfortune to Acero. They gathered their
guts and reported the incident not only to the Mondragon police authorities but
also to the San Roque police. Lourdes submitted herself to physical examination.
These were all spontaneous actions. Indeed, it was far-fetched for this rural
couple, living in an isolated, unprotected house to falsely impute an atrocious
crime against accused-appellants who were inuential CAFGU members assigned
in their barangay. They would not put their lives on the line except for a
legitimate grievance.
CDta

In checkered contrast, Medera self-destructed when he testied. He

unabashedly admitted in court that Lt. Dayaon did not order them on "red alert"
from December 26, 1991 to January 1, 1992 for the perceived NPA raid. 27 He
was with the other soldiers patrolling Barangay Malobago. 28
Nor does the testimony of Cpl. Mabascog inspire credence. He testied that
he remembered the December 29, 1991 assignments of accused-appellants
because he reported that day after his Christmas vacation. His assertion was
negated by Lt. Dayaon's testimony that when a camp is on "red alert," it meant
maximum vigilance and all leaves and furloughs are cancelled. 29
In addition, we cannot give full faith and credit to Exhibit "4" and Exhibit
"5," the duty roster and guard detail, respectively, presented by accusedappellants. They were handwritten on papers when they should have been
properly recorded in a logbook. The accused-appellants failed to explain his
irregularity which was vital to the truth of their alibi.
Easy to concoct, alibi is a weak defense. It cannot prevail over the positive
identication of an accused. It cannot succeed when there is no showing that it is
not physically impossible for the accused to be at the crime scene at the time of
its commission. 30
At the trial, accused-appellants admitted that they patrolled Barangay
Malobago when the crime happened on December 29, 1991. Their camp can be

negotiated in ten (10) to fteen (15) minutes walk to the locus criminis. Since
accused-appellants were in Barangay Malobago from 10:00 p.m. to 2:00 a.m., it
was not physically impossible for them to be at the Siervo's house and commit
the crime.
The probability that the Siervo spouses erred in identifying the accusedappellants is nil. Accused-appellants were not strangers to the spouses. They
often patrolled Barangay Malobago. Medera was the couple's barriomate and a
regular buyer of their chicken. There was also a kerosene lamp which illuminated
the locus delicti. Accused-appellants wore no mask to hide their identity. Loose
alibi must yield to and cannot prevail over the positive identication made by the
spouses. 31
The trial court, however, erred in denominating the crime committed by
accused-appellants as Robbery in Band with Multiple Rape. In People v. Precioso,
32 we held that there is no such composite crime of robbery in band with multiple
rape. The crime is robbery with rape, with band as a mere aggravating
circumstance. It is penalized under Article 294 (2) of the Revised Penal Code, as
amended by Republic Act No. 7659 imposing the death penalty. Since the crime
charged was committed on December 29, 1991 prior to the eectivity of R.A. No.
7659 on December 31, 1993, the said law cannot be applied retroactively and
the death penalty cannot be given to the accused-appellants. The trial court
correctly imposed the penalty of reclusion perpetua.
IN VIEW HEREOF, the appealed Decision dated June 30, 1992 is AFFIRMED
with the MODIFICATION that accused-appellants are convicted of Robbery with
Rape and ordered to pay in solidum Lourdes Siervo in the amount of fty
thousand pesos (P50,000.00) for moral damages and Arturo and Lourdes Siervo
four thousand sixty pesos (P4,060.00) corresponding to the stolen money. With
costs against accused-appellants.
SO ORDERED.

cdlex

Narvasa, C.J., Regalado and Mendoza, JJ., concur.

Francisco, J., is on leave.
Footnotes
1.

Should be Robbery with Rape, People v. Precioso, G.R. No. 95890, May 12, 1993,
221 SCRA 748.

2.

Eighth Judicial Region, Branch 19.

3.

Original Records, p. 22.

4.

Forty-two (42) years old, married, farmer, and a resident of Barangay Bantayan,
San Roque, Northern Samar. He was formerly a resident of Barangay Malobago,
San Roque.

5.

Twenty-six (26) years old, married, housekeeper, and a resident of Barangay

Bantayan, San Roque, Northern Samar.

6.

Married, Medical Ocer IV, Northern Samar General Hospital, Catarman, Northern
Samar.

7.

TSN of June 22, 1992, p. 10.

8.

Id.

9.

TSN of May 29, 1992, p. 7.

10.

TSN of June 22, 1992, p. 11.

11.

TSN of May 29, 1992, p. 10.

12.

Id., p. 12.

13.

Id., p. 15.

14.

Id., p. 16.

15.

Exhibit "9."

16.

Exhibit "B."

17.

TSN of June 22, 1992, p. 4.

18.

TSN of May 29, 1992, p. 39.

19.

Id., p. 29.

20.

Id., p. 47.

21.

G.R. No. 85043, June 16, 1992, 210 SCRA 1.

22.

Court Order dated May 26, 1992; Original Records, p. 34.

23.

TSN of May 29, 1992, p. 9.

24.

Rollo, pp. 109-110.

25.

Id., p. 26.

26.

RTC Decision, p. 8.

27.

TSN of May 29, 1992, pp. 41-42.

28.

Id., pp. 44-45.

29.

RTC Decision, p. 7.

30.

People v. Dalanon, G.R. No. 107458, October 14, 1994, 237 SCRA 607.

31.

Id., People v. Dalanon at page 618.

32.

Supra.