Republic of the Philippines REGIONAL TRIAL COURT OF BULACAN THIRD JUDICIAL REGION Malolos City BRANCH 16 PEOPLE OF THE PHILIPPINES, > versus - CRIM. CASE NO. 3905-M-2011 FOR: Violation of Art, 267 of the MIGEN. JOVITO S. PALPARAN, JR. (Ret.) Revised Penal Code as LT. COL. FELIPE G. ANOTADO, JR. amended by RA 7659 MISGT. RIZAL C. HILARIO and S/SGT. EDGARDO OSORIO, Accused. =X PEOPLE OF THE PHILIPPINES, - versus - CRIM. CASE NO. 3906-M-2011 FOR: Violation of Art. 267 of the M/GEN. JOVITO S. PALPARAN, JR. (Ret.) Revised Penal Code as LT. COL. FELIPE G. ANOTADO, JR amended by RA 7659 M/SGT. RIZAL C. HILARIO and S/SGT. EDGARDO OSORIO, Accused. Xe “x JOINT DECISION Upon Motion for Consolidation filed by the Department of Justice through the Panel of Prosecutors, the above-entitled cases were consolidated and jointly tried before RTC, Branch 14, Malolos City, Bulacan where they were originally raffled, per Order of the court dated December 19, 2011 The two (2) Informations against accused M/Gen. Jovito S. Palparan, Jr. (Ret.), Lt. Col. Felipe G. Anotado, Jr., M/Sgt. Rizal C. Hilario and S/Sgt. Edgardo Osorio charged them with the crime of Violation of Art. 267 of the Revised Penal Code as amended by RA 7659 which read as follows: CRIMINAL CASE NO. 3905-M-2011 INFORMATION That on or about the 26™ of June, 2006, in the house of one Raquel Halli at Barangay San Miguel, Hagonoy, Bulacan, and within the jurisdiction of this Honorable Court, the above-named accused, acting as private individuals, conspiring, confederating and mutually aiding one another, did then and there, by taking advantage of nighttime and with the use of a motor vehicle , forcibly abduct KAREN E. EMPENO, a female person, and deprived her of liberty by detaining her against her will first at Camp Tecson in San Miguel, Bulacan then subsequently in other places to include theDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 2 of 31 x barangay hall of Sapang, San Miguel, Bulacan; the camp of the 24” Infantry Batallion of the Philippine Army in Limay, Bataan; and a resort/safehouse in Iba, Zambales from June 2006 to July, 2007, a period of more than three (3) days, resulting in the said female victim's continuing disappearance, to the damage and prejudice of KAREN E. EMPENO and her heirs. CONTRARY TO LAW. CRIMINAL CASE NO. 3906-M-2011 INFORMATION That on or about the 26™ of June, 2006, in the house of one Raquel Halili at Barangay San Miguel, Hagonoy, Bulacan, and within the jurisdiction of this Honorable Court, the above-named accused, acting as private individuals, conspiring, confederating and mutually aiding one another, did then and there, by taking advantage of nighttime and with the use of a motor vehicle , forcibly abduct SHERLYN T. CADAPAN, a female person, and deprived her of liberty by detaining her against her will first at Camp Tecson in San Miguel, Bulacan then subsequently in other places to include the barangay hall of Sapang, San Miguel, Bulacan; the camp of the 24" Infantry Batallion of the Philippine Army in Limay, Bataan; and a resort/safehouse in Iba, Zambales from June 2006 to July, 2007, a period of more than three (3) days, resulting in the said female victim's continuing disappearance, fo the damage and prejudice of SHERLYN T. CADAPAN and her heirs, CONTRARY TO LAW. No bail was recommended for both cases and warrants of arrest were accordingly issued. On December 20, 2011, accused Lt. Col. Felipe G. Anotado and S/Sgt. Edgardo L. Osorio voluntarily surrendered and were committed to the Bulacan Provincial Jail, Malolos City, Bulacan. Eventually, upon motion of accused, their detention were transferred to the PA Custodial Management Unit, Fort Bonifacio, Taguig City per Order dated December 23, 2011 On December 20, 2011, an Order was also issued granting the prosecution's “Urgent Ex-Parte Motion for Issuance of Hold Departure Order” against all accused Several motions were then alternately filed by parties, to wit: 1. Prosecution's Motion for Reconsideration of the Order dated December 23, 2011; 2. Omnibus Motion for Preliminary Investigation; To Quash/Recall Warrant of Arrest, Hold Departure Order and to Suspend Proceedings filed by all accused on December 23, 2011DECISION Criminal Case Nos, 3905-M-2011/3906-M-2011, Page 3 of 31 * 3. Motion for Reconsideration dated January 9, 2012 filed by all accused; 4. Motion to Expunge Entry of Appearance and Motion for Reconsideration filed by Jesus |. Santos Law Office dated January 31, 2012 filed by the prosecution; 5. Supplemental Omnibus Motion for $/SGgt. Edgardo L. Osorio for Preliminary Investigation; To Quash/Recall Warrant of Arrest, Hold Departure Order and to Suspend Proceedings filed on January 25, 2012; 6. Supplemental Omnibus Motion to Quash Information in Crim. Case Nos. 3905 & 3906-M-2011, Recall Warrant of Arrest and Hold Departure Order filed by accused Col. Felipe G. Anotado, Jr on February 2, 2012 In an Omnibus Order dated April 3, 2012, the court denied all the said motions, except for the Motion for Reconsideration filed by accused M/Gen. Palparan, et.al. where the court took cognizance of the omnibus motion filed by accused M/Gen. Palparan and M/Sgt. Hilario who were still at large. During the arraignment set on April 23, 2012, accused Col. Felipe G. Anotado and S/Sgt. Edgardo L. Osorio, assisted by counsel, entered a plea of “not guilty”. Preliminary Conference was held on May 21, 2012, whereby the prosecution and defense marked their respective documentary evidence and ‘submitted list of witnesses. At the Pre-Trial Conference, admissions and denials were made. Issues were limited to as follows: 1. Whether or not the accused in conspiracy with one another are criminally liable for the crime of kidnapping and serious illegal detention. 2. Whether or not Colonel (then Lt. Col.) Felipe G. Anotado, Jr (GSC) PA, as the Commanding Officer, 24 Inf. Bn. 71D has participation in the commission of kidnapping and serious illegal detention. 3. Whether or not accused Staff Sergeant Edgardo L. Osorio 750343 (Ml) PA has participation in the commission of kidnapping and serious illegal detention. Considering that accused Lt. Col. Felipe G. Anotado and S/Sgt. Edgardo L. Osorio filed a Petition for Bail, the presentation of evidence by the prosecution was considered for purposes of bail.DECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 4 of 31 “x Meantime, on July 19, 2012, the “Urgent Ex-Parte Partial Motion for Reconsideration’ filed by accused on the Order dated April 3, 2012 was denied. Upon conclusion of the presentation of evidence, the court denied the petition for bail of accused Lt. Col. Felipe G. Anotado and S/Sgt. Edgardo L. Osorio on July 12, 2013 On August 13, 2014, accused M/Gen. Jovito Palparan was arrested and detained. Jurisdiction having been acquired, accused M/Gen. Palparan was arraigned on August 18, 2014 who refused to enter a plea. Hence, a plea of “not guilty” was entered on his behalf. Accused M/Sgt. Rizal Hilario remains at large. Meantime several motions were filed, to wit: 1. Motion for Reconsideration of the Order denying the ‘Supplemental Motion; 2. Supplemental Motion for Reconsideration (For the Detention of MiGen. Jovito S. Palparan || AFP(Ret.) at the ISG/PA Custodial Center or at the ISAFP; 3. Motion for Reconsideration (With Prayer to Nullify the Arraignment of Accused M/Gen. Jovito S. Palparan II AFP (Ret.) and To Suspend Further Proceedings. In the Order dated September 15, 2014, all the said motions were denied Accused M/Gen. Palparan was ordered detained at the Philippine Army Custodial Center, Fort Bonifacio, Taguig City. Prosecutions Motion for Reconsideration of said Order was likewise denied. On October 1, 2014, accused M/Gen. Palparan filed a Petition for Certiorari with Prayer for Issuance of a Writ of Temporary Restraining Order and/or Writ of Preliminary Injunction before the Court of Appeals, Manila. (This was eventually dismissed by the Court of Appeals on September 18, 2017) On October 17, 2014, accused M/Gen, Palparan filed a Petition for Bail Preliminary Conference ensued on October 27, 2014 where prosecution and accused M/Gen. Palparan marked their respective documentary evidence. During the pre-trial, admissions and denials were made. Issues to be resolved were as follows: 1. Whether or not the accused in conspiracy with one another are criminally and civilly liable for the crime of kidnapping and serious illegal detention of Karen Empeno and Sherlyn Cadapan. 2. Whether or not the facts charged constitute an offense as against M/Gen. Jovito S. Palparan, Jr. who at the time theDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011, Page S of 31 x alleged crimes were committed was not a private individual but the Commanding General of 71D PA, AFP, with Salary Grade 28. 3. Whether or not M/Gen. Jovito S. Palparan, Jr. is guilty beyond reasonable doubt of the crimes charged granting that they are properly laid. On November 28, 2014, accused S/Sgt. Osorio filed a Motion to Quash which was denied on March 2, 2015. A move to reconsider the Order of denial was likewise denied on May 26, 2015. On June 15, 2015, when presentation of evidence for purposes of bail of M/Gen. Palparan was about to be concluded, accused S/Sgt. Osorio filed a Motion for Inhibition of the Presiding Judge of RTC, Branch 14. In the Order dated July 13, 2015, the court granted the said motion. The cases were eventually raffled to this court on August 3, 2015 which took cognizance thereof and proceeded where it left off. The motion for reconsideration on the inhibition is deemed mooted as the records of the case were already forwarded to this court Meantime, on July 21, 2015, accused S/Sgt. Osorio filed a Petition for Habeas Corpus before the Court of Appeals, Manila. On July 27, 2015, the said petition was denied by the Court of Appeals with reference to other appropriate remedies such as a motion to quash. Hence, accused S/Sgt. Osorio filed a Second Motion to Quash On December 9, 2015, the Second Motion to Quash was denied. On December 14, 2015, accused M/Gen. Palparan’s Petition for Bail was denied. Motion for Reconsideration of the denial of petition for bail was likewise denied on January 22, 2016. The Panel of Prosecutors adopted the presentation of prosecution evidence for purposes of bail as contained in the Orders dated July 12, 2013 and December 14, 2015 as their evidence in chief. PROSECUTION EVIDENCE On June 26, 2006 at around 2:00 in the morning, Wilfredo H. Ramos, an eyewitness, was in his house at Barangay San Miguel, Hagonoy, Bulacan when some armed men, wearing bonnets, knocked at their door and once opened, they were forcibly dragged towards the alley leading to the road. Wilfredo’s father was then hogtied and blindfolded while Wilfredo was only hogtied, While outside, Wilfredo saw Karen and Sherlyn, both UP Students, being dragged by military men and were both hoatied by S/Sgt. Osorio. He likewise saw Manuel Merino in blindfold being brought by the soldiers. The armed men called themselves “vigilantes”. Then Karen, Sherlyn and Manuel Merino were all boarded in aDECISION Criminal Case Nos. 3905-M-2013/3906-M-2011 Page 6 of 31 stainless jeepney with Plate Number 597. The three were brought elsewhere and were still missing up to the present while Wilfredo and his father were released on the same day upon instruction of a person whom the soldiers referred as “sir’ Thereafter, Wilfredo, along with the parents of Sherlyn and Karen and some members of CHR, went to the 56" Infantry Battalion to look for the two women as he chanced upon the stainless jeepney in said detachment where the two were last seen boarded. They did not seek the assistance of the police as they thought of connivance between the military and the police. During his testimony, Wilfredo identified Karen and Sherlyn through the pictures shown to him (Exhs. Y-4 & Y-1, respectively), prepared a sketch (Exh. Z) depicting the house of Raquel Halil in relation to his house and identified several times in open court S/Sgt. Osorio as one of the soldiers who participated in the abduction of Sherlyn and Karen and whom he happened to meet again for the second time at the DOJ. He likewise identified his ‘Sinumpaang Salaysay para sa Hukuman” (Exh X) dated September 4, 2012, ‘Pinagsamang Sinumpaang Salaysay” (Exh D) dated July 14, 2008 and “Karagdagang Sinumpaang Selaysay’ (Exh E) dated August 3, 2011. Raymond Manalo narrated that on February 14, 2006, at Bohol na Mangga, San Ildefonso, Bulacan, five armed men, who looked like soldiers, suddenly barged into his house and the separate houses of his brothers, Reynaldo and Rolando Manalo a.k.a. Bestre located. The armed men searched for firearms against them while referring to them as members of the NPA Thereafter, Raymond and his brother, Reynaldo, were forcibly dragged and boarded on a white L-300 van and were brought to Fort Magsaysay in Nueva Ecija where they were mauled (pinahirapan) by some soldiers, civilians and members of the CAFGU to force them to confess that they are NPA rebels. They were tortured for three months and three weeks by persons whom they could not recognize. Medical Certificates (Exhs. TT-4 to TT-8) were submitted to prove their injuries. They were also brought to a detachment at Barangay Pinaod, San lidefonso, Bulacan, where they stayed for one week and were again tortured by some soldiers. Then, they were brought to a Barangay Hall in Sapang, San Miguel, Bulacan and led to a basketball court where they met a man wearing camouflage polo and a cap whom they later on identified as General Palparan. Thereafter, they were allowed to go home and were escorted back to their house in Bohol na Manga, San Ildefonso, Bulacan, where they were met by their parents who were surprised to see them. Afterwards, they were brought back to the barracks at Sapang, San Miguel, Bulacan known as the 69" Infantry Batallion and were detained there for three months or from May to July, 2006. Then they were transferred to Camp Tecson, San Miguel, Bulacan where they were treated as servants. It was in Camp Tecson, during the month of August or September, 2006, that Raymond met Sherlyn Cadapan and Keren Empeno, both UP students, who were abducted in Hagonoy, Bulacan. He identified Sherlyn Cadapan and Karen Empeno from the pictures (Exh. Y-series) showed to them during the hearing as the same persons he met and spoke to at the camp. A farmer, Manuel Merino, was also with Sherlyn and Karen. He came to know from Sherlyn and Karen that they experienced torture and were raped. In September,DECISION Criminal Case Nos, 3905-M-2011/3906-M-2011 Page 7 of 31 2006, he saw Gen. Palparan arrived at Camp Tecson with a civilian companion who fetched Karen, Sherlyn and Manuel, and who brought them back after two or three days. The five of them were detained for less than three months at Camp Tecson. In November, 2006, they were again brought back to Sapang San Miguel, Bulacan. From there, on November 22, 2006, they were brought to the 24" Infantry Batallion, Limay, Bataan. While thereat, he witnessed the torture of Sherlyn and Karen which he described in graphic detail: “Nakita ko po si Sherlyn Cadapan nakahubo at hubad, nakahiga sa bangko. Nakatuwad yung bangko habang yung isang paa nakasabit sa halige. Pinagpapalo, pinapaso ng sigarilyo. Sinusundot ng patpat and maseselang bahagi ng katawan. Binubuhusan ng tubig sa ilong”. The same heinous treatment was done to Karen who was beside Sherlyn. The two were then detained in a bodega inside the camp. Sometime in April, 2007, a certain Col. Anotado arrived in the camp and visited the camp three times thereafter. In May, 2007, they were brought at a beach at Iba, Zambales by the same soldiers from Camp Tecson and from the camp in Bataan and brought back again to Bataan. He saw Sherlyn, Karen and Manuel for the last time in July, 2007. During his testimony, he identified his Sinumpaang Salaysay dated August 15, 2007 (Exh C & 1 for Anotado) Sinumpaang Salaysay sa Hukuman dated November 12, 2007 and Karagdagang Sinumpaang Salaysay dated August 3, 2011 Oscar Angeles Leuterio, a former security guard, testified that on April 17, 2006, while on duty at Ore Mining Corporation located at Barangay Camaching, Dona Remedios Trinidad, Bulacan, he and some companions were taken by armed men from the company's premises and were detained at Fort Magsaysay, Nueva Ecija. On June 27, 2006, while still detained thereat, he saw two women and his compadre, MM being brought inside a room. One of the soldiers commented, “Ang sarap pagnasaan ng dalawang (2) iyun”. He described the women to be the same persons depicted in the pictures (Exhibit Y-1 and Y-4) identified as Sherlyn and Karen. He did not know what happened to them afterwards as he did not see them anymore thereafter. On August 29, 2006, he was brought before the office of the commanding general and conversed with a certain “Iolo” who was later on identified as General Palparan. He was able to talk to Gen Palparan who gave instructions regarding his release. He was released from Fort Magsaysay on September 14, 2008 and was dropped off in Sapang Putol, San Ildefonso, Bulacan where he took a jeepney in going home. He filed criminal charges against those who abducted him but said complaint was dismissed. He executed Sinumpaang Salaysay para sa Hukuman (Exh PP) and Sinumpaang Selaysay (Exh H) relative thereto. Concepcion Empeno identified the victim Karen Empeno to be her daughter and a former student in UP, Diliman who was abducted at San Miguel, Hagonoy, Bulacan on June 26, 2008, together with Sherlyn Cadapan and Manuel Merino, by persons believed to be military men. The day after, she received a text message from Karen's friend who referred her to the Office of KARAPATAN which helps victims against human rights violations. In the search for Karen, her family pleaded before TV programs, went to some military detachments,DECISION Criminal Case Nos, 3905-M-2011/3906-M-2011 Page 8 of 31 = x hospitals and different barangays where they hoped they could learn of Karen's whereabouts. Erlinda Cadapan, the mother of Sherlyn Cadapan, also went to the military detachment in Bataan in search of her missing daughter. Accompanied by Raymond Manalo and several persons, they proceeded to the 24" infantry Batallion and found some demolished structures and burned portions where some human bones were dug. In their continuing search, she met Gen. Palparan twice during TV interviews. In one TV program, Gen. Palparan answered to a question by the TV host that his men arrested two (2) women at Hagonoy, Bulacan, naming them as a certain Ka Tanya or Ka Liza and Ka Cierra together with a male individual. According to Adoracion Paulino, Sherlyn's mother in law, Sherlyn and Karen were in their house during the fiesta on June 13, 2006 and stayed there for a week, After the two left, somebody called her and told her that Karen and Sherlyn, whom they call “Liza’, were missing and they helped in searching for them. On April 11, 2007, Liza came home on board a gray car accompanied by several persons, Liza just took some clothes and when asked where she had been, Liza replied that there was a change in her “destino”. Adoracion was not allowed to accompany Liza outside and they just exchanged goodbyes. The following day, four armed men came asking about the visitor she had last night before which she denied out of fear, and was called a liar. They also asked the whereabouts of her son, Valentino. The testimony of Atty. Jose Vener Ibarra, general counsel of GMA Networks, Inc., was dispensed with as the prosecution and the defense stipulated on the authenticity and genuineness of the evidence submitted consisting of compact discs and manuscripts of the TV show "Debate with Mare and Pare dated August 3, 2006; ‘News to Go dated August 14, 2014 and “Online Report dated October 7, 2014" (Exhs. VV to ZZ with submarkings, respectively) considering that they are merely corroborative in nature. On November 17, 2016, accused S/Sgt. Osorio filed a Demurrer to Evidence with leave of court which was denied per Order dated April 18, 2017. ‘Thus, presentation of defense evidence ensued. DEFENSE EVIDENCE FOR ACCUSED COL. FELIPE ANOTADO: Charnengco Galeng, a physical therapist, was assigned at the AFP Medical Center, Department of Rehabilitation sometime in September or October, 2006. He came to know Col Felipe Anotado when the latter was referred to him on December 6 and attended with his rehabilitation from December 16, 2006 until he was discharged on January 26, 2007. The patient's problem includes limitation of movement of the joints on the left side of the bodyDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 9 of 31 x x which was likened to a stroke and swelling (pamamaga) of joints/feet. During the period of confinement, Anotado underwent pain control sessions and passive and assistive exercises to recondition his joints. Anotado walked with the help of assistive device and after he was discharged, he continued with his physical rehabilitation as outpatient until May, 2007. By then Anotado was re-conditioned and can do minimal activities on flat surface. Since he is not a licensed medical physician, he cannot give medical opinion. He did not have personal records of the treatment done on Col. Anotado as the same were kept by the hospital. As @ physical therapist, he can only give him physical therapist observations. He remembered having treated Col Anotado but did not have any document or photographic proof of the same. He knew that Col. Anotado was in active military service at that time but he did not know where he was assigned nor if he continued to be in active military service while being an outpatient. Submitted to support his hospital confinement were the hospital records from V. Luna Medical Center consisting of the Clinical Record Cover Sheet (Exh. 6) and Narrative Summary (Exh.7); several Physician Order Sheets (Exhs. 9 to 10); Problem Orientation Notes (Exhs. 11 to 16); Problem List dated January 19. 2007(Exh. 17); Final Reports dated January 4, 2007 (Exhs. 19 to 21); Narrative Profile (Exhs. 23 & 24); Chemical Chemistry Result Form dated December 4 2006 (Exh.25); Final Report dated December 28, 2006 (Exh.26); Hematology Form 1 (Exhs. 27 & 28); Referral Slip dated November 28, 2006 with admitting notes (Exhs. 29 & 30); Medication Treatment Sheets (Exhs. 31 to 34); TPR Sheet (Exh. 35); Standing Order Sheet dated November 28,2006 (Exh. 36); PT Notes dated December 13 and 14, 2006 (Exhs. 37); and Medical Certificate dated October 12,2016 on Physical Therapy Treatment (Exh. 38); Order of Admission (Exh. 38) and Order of Discharge (Exh.40). The testimony of Brgy. Chairman Alfredo Villaviray was dispensed with, based on the stipulations that he is the barangay chairman of Barangay Duele, Limay, Bataan at present; that there is no Barangay Limay in Bataan; and that there is no military camp in the barangay with the qualification from the prosecution that said barangay chairman cannot testify whether there was a military camp in 2007. The testimony of Engr. Enrico Yuson was likewise dispensed with based ‘on admissions that said witness is the Provincial Engineer of Bataan and a reserved officer; that he personally knows Col Felipe Anotado as the Batallion Commander of 25" IB 7" IB, PA with battalion headquarter at Bray. Camacho, Balanga City, Bataan from 2005 to 2008; that during the stint of Col. Anotado, his office has good coordination with Col. Anotado and his unit in matters pertaining to the calamity and disaster control program, relief, rescue and evacuation and other national and provincial events and that the presence of 24"" IB as a military unit and their Anti Insurgency program contributed to the peaceful and progressive development of the province of BataanDECISION Criminal Case Nos. 3905-M-2011/3806-M-2011 Page 10 of 31 Ee x That there is only one camp of the 24" IB established which is located at Brgy. Camacho, Balanga City, Bataan is denied admission as the witness did not know if there is a detachment in Limay,Bataan nor are there camps of the various companies of the 24" IB in different places in Bataan and Zambales Accused Col. Felipe Anotado, Jr. was the commanding officer of the 24” Infantry Battalion, 7° Infantry Division, PA in the years 2006 to 2007 with headquarters at that time at Balanga, Bataan. As battalion commander, he was under the overall command of M/Gen. Palparan within the division but Gen Palparan had no direct command and control over him and his unit, the 2418 and its operations and activities. His unit was under the direct command and control of then B/Gen Rommel Gomez, PA, the commander of 703” Infantry Brigade whe was an intermediate or intervening commander between him and M/Gen. Palparan. He directly reports to B/Gen. Gomez and not to M/Gen. Palparan. His knowledge on the alleged kidnapping and illegal detention of Sherlyn Cadapan and Karen Empeno was initially based on news reports and later on reinforced when he was accused by Raymond Manalo to be part of the alleged kidnapping and serious illegal detention and which he vehemently denied. He never talked nor someone talked to him on anything related to the incident and he did not even know any person named Sherlyn Cadapan and Karen Empeno before June 26, 2006. M/Gen. Palparan and his other co-accused never talked to him on anything related to the incident until he was acoused by Manalo. He only saw Sgt. Osorio at least twice when he escorted them to the DOJ during the preliminary hearing in 2011. He only came to know Osorio's name when it was mentioned at the hearing that he was identified by a witness as also allegedly involved in the kidnapping and illegal detention of Sherlyn and Karen. Prior to this, he had no dealings with Osorio because they do not know each other. His alleged involvement in the case started on January 18, 2008 when Raymond Manalo testified during the hearing of the Writ of Amparo at the Court of Appeals (CA) where he apologized to the court for his behavior of being disrespectful during 2 verbal exchange with Assistant Solicitor General Cabotaje-Tang during the previous hearing. Manalo explained that his behavior was attributable to his trauma triggered by the presence of military officer who interrogated him while under detention. Then Manalo pointed to him as the military officer who interrogated him. He was very shocked and disgusted as he attended earlier hearings where Manalo also appeared but he was not pinpointed as someone he saw during the detention. Manalo did not explain why he deferred his accusation and apparently used his foul behavior as an alibi for his reaction in pointing/accusing him after knowing that he was the Batallion Commander in Bataan under Gen. Palparan (Exh. 12 and 12-A). He acceded to the invitation as resource person during the habeas corpus hearing as he never thought he would be accused in the alleged kidnapping and illegal detention. He did not have any hesitation because he is very sure that he had nothing to do with the incident. In all the affidavits and testimonies of Manalo before January 18,2008, Manalo did not point to anyone that looks like him nor did he say that he met an officer during his detention when he could be very easily identified (Exhs. 13,14 and 15). Manaio is just engaging in a fishing expedition. Manalo's Sinumpaang Salaysay dated August 3, 2011 (Exh. 17) containing the statement that he came back twoDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 11 of 31 times to Limay to visit them is a lie and a mere afterthought as it was done after their confrontation at the CA and made four years after the incident took place. The Sinumpaang Salaysay dated September 12, 2008 (Exh. 16) executed by Manalo was made after pointing to him at the CA on January 18, 2008. The affidavit contains the same information as the previous three affidavits except that Manalo added or included a new narration where an officer allegedly visited them in detention. Further, in the same Salaysay, it was mentioned that he embarked from a 6x6 vehicle (EXh. 18-TSN dated February 16, 2015, pg. 64) which is a mere fabrication as he never used a 6x6 truck but only a 4 wheeled Kennedy type jeep whenever he visited his troops and that during those times, he could net possibly alight from a truck as he was undergoing physical therapy treatment due to “severe gout arthritis". Manalo also stated that he saw a signage that read “Barangay Limay” at a post near the detachment when in fact there is no “Barangay Limay” in Bataan as certified by the Office of the DILG,Region Ill (Exh.19). Manalo is just inventing his facts as he might have heard that there is a place called Limay in Bataan and only made up stories to implicate them ‘As commanding officer of the 24% IB, he also attends to command conferences twice or thrice conducted by the 7" ID under Gen. Palparan who presided over said conferences FOR ACCUSED S/SGT. EDGARDO OSORIO: PFC Edward Neri was assigned at the 24", ISU, PA in 2010 together with Sgt. Osorio. He and Osorio were never assigned under the command of Gen. Palparan. In July 2011, they were called by their Commanding Officer, Major Navarro, to be among the security escorts of Gen. Palparan to accompany the latter in his hearings at the Department of Justice. While at the hearing at the DOJ, he and Osorio were surprised because, out of the blue, prosecution witness, Wilfredo Ramos (an NPA member) pointed to and falsely accused them as among the perpetrators in the kidnapping of Karen and Sherlyn. However, such charge was contradicted by another prosecution witness, Raymond Manalo, a member of the NPA, who testified in open court that Karen and Sherlyn were abducted by ‘vigilantes’. Despite their vehement denial, the prosecution insisted that they be included as respondents in the case and even produced false witnesses who were allegedly so sure that they were present during the commission of the crime. He knew Osorio to be a God-fearing person who could not have done the crime imputed to him. Pfc Neri did not wholly know the service history of Sgt. Osorio. He does not personally know the witness Wilfredo Ramos whom he referred to as a member of the New People's Army and a liar because his testimony contradicted that of Manalo when the latter said that it was the vigilantes who abducted the victims. He was not actually charged in the complaint. As per the Resolution of the DOJ, it states that “ On August 11, 2017 provost martial general submitted to us a summary of information with photograph identifying Private First Class Edward L. Neri as the security escort being referred to by Wilfredo Ramos. The complainant's counsel immediately objected to the report and manifested thatDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 12 of 31 Neri was not the one pointed to by Ramos. The panel directed anew the provost martial general to identify the proper person and to submit another report. x x x On August 19, 2011, the provost martial general submitted a second summary of information with photograph identifying S/Sgt. Edgardo Osorio as the security escort present during the July 19, 2011 hearing. The complainant's counsel manifested that Ramos was indeed pointing to Osorio as among those who abducted Sherlyn and Karen in 2006. 2Lt. Salde Russel (ret). was at the peacekeeping operation center (PKOC) at Camp Aguinaldo, Quezon City where he stayed from May to July 2006. On June 25, 2006, he saw accused Osorio at the PKOC barracks who was also to undergo physical and medical examination as candidate for the UN Peacekeeping contingent. While in the PKOC, their mobility was restricted and confined within the compound to avoid getting involved in any unusual incident otherwise, they will be dropped as candidates in the UN peacekeeping force which they ambitioned to be assigned. It could not be true that Osorio was in Hagonoy, Bulacan on June 26, 2006 because they were together at PKOC for the whole days of June 25 and June 26, and there was no possibility that Osorio could have stayed out of the camp. Lt. Russel was also with Osorio at the Central command in Cebu City for one week for the peacekeeping operations training. They were about 185 enlisted personnel and officers in the training and he could not be familiar with the whereabouts of the personnel and officers during the training. He claimed that he and Osorio were together on June 25 and 26, 2006, but there was no other evidence to prove the same. The training in Camp Aguinaldo is a pre- requisite to qualify as contingent for the peacekeeping force. The processing lasted from May 5 to July 12, 2008. Lt. Col. Jose Navarro, Jr. was assigned at the Headquarters Commandant at Fort, Bonifacio, Taguig City sometime in 2011. He knew accused Osorio who was under his control and supervision. On July 16. 2011, he received a directive from the higher headquarter to provide a personnel as escort in attending court hearing upon the request of M/Gen. Palparan. In compliance with the directive, he designated Osorio and Pfc. Neri through a Dispatch Order (Exh.2). As part of his testimony, Col. Navarro executed a Judicial Affidavit (Exh. 4). Col. Ernesto A. Cruz was the Operation Officer of the Peacekeeping Operation Center (PKOC) located at the GHQ, AFP, Quezon City in 2006 as per the Order of Designation (Exh. 3). As such, he was in charge of the planning, execution and supervision of the preparation of AFP troops for deployment as Philippines contingent for peacekeeping operation in foreign countries. Sgt. Osorio was personally endorsed to him by Maj. Joggy Fojas, J3 of the GHQ, to be part of the Philippine contingent to Liberia in 2006. Upon acceptance, Sot Osorio and the other candidates were strictly confined inside the PKOC barracks. As Operation Officer, it was his duty to see to it that everyone is accounted for through routine checks. In the early morning of June 26, 2006, Sgt. Osorio was inside the PKOC barracks because under their strict regulations, he could not goDECISION Criminal Case Nos. 3905-M-2011/3806-M-2011 Page 13 of 31 anywhere without his knowledge and there was in fact no report of missing candidate in the PKOC compound. Excuse to leave the barracks can only be possible for emergency reasons and he would know immediately if there was any. It was impossible for Osorio to escape without being noticed by the guards and there was no report of such incident. Further, the roll call for the June 25 and 26, 2006 attendance was just reported to him by his subordinates. While there are guards posted in the PKO facility, said facility is not the same as the army custodial center which is a detention facility, but still the candidates are checked. There being no reported missing candidate, it is presumed that Osorio was inside the barracks in the early morning of June 26, 2006. Col. Segundo Metran, Jr, was the Executive Officer of 24" Infantry Batallion stationed in Balanga, Bataan from February 2, 2007 to September 1 2007. In the year 2006 to 2007, the commander of the 241B was Col. Felipe Anotado. The 24" IB is under the 7® Infantry Division of the Philippine Army under M/Gen Jovito Palparan until September 11, 2006. When he was assigned at the G3 Office of the 71ID, he talked with Gen Palparan very often but he did not know if Col. Anotado has an association with Gen. Palparan. When he was in the 241B, he had not seen and talked with Gen. Palparan and had not monitored, seen or heard Col. Anotado talking to Gen. Palpalran. In the later part of 2006, Col. Anotado was on hospital leave of his command having been confined at the AFP Medical Center and continued frequent visits to the hospital for his physical therapy. This he knew for a fact as he was also confined at the same hospital during those times. When he saw Col. Anotado at the Batallion Headquarters in Balanga, he was physically weak and had difficulty moving around because of the swelling of his feet. Col. Anotado usually used his command vehicle, a 4- wheeled Kennedy type jeep. He observed that most of the time, Col. Anotado was assisted by their soldiers in getting up and getting down the vehicle as he could barely raise his feet. There was a group who introduced themselves as Human Right Advocates that went to the Headquarters of 241B. Included in the group was one surnamed Empeno. Accordingly, they received information that the two alleged victims Sherlyn and Karen were in detention at the 24IB Headquarters. He categorically denied that the two were ever detained at the 2418 nor was any other people ever detained in their headquarters or its subordinate elements. Ms. Empeno requested that they be allowed to look around the camp to see if they can find the alleged victims, and they were allowed to take pictures. Contrary to what Empeno said, he did not guide nor point to Empeno any other detachments as it did not come out of their discussion and had they asked, he would have escorted or allowed them to see their military detachments in Bataan. He cannot say anything about what Empeno said as he has no knowledge about it. He believed that even if they treated them well, they would still consider matters in a bad light and mess the facts to their advantage. Being in charge of operations, Col. Metran, Jr. is not personally in command but monitors the whereabouts of his commander as part of his normal duty. As to the whereabouts of Col. Anotado on a certain date at a preciseDECISION CCriminal Case Nos. 3905-M-2011/3905-M-2011 Page 14 of 31 x * location, it could have been logged but they do not have the records. He also relied on what Col. Anotado or other personnel said on his whereabouts but he is sure that he went to the hospital. He was not in Brgy. San Miguel, Hagonoy, Bulacan on June 26, 2006 and would not know who were the people present thereat. He reported at the 24t" IB on February 2, 2007 and thus would not know if in fact Col. Anotado was in Hagonoy, Bulacan on June 26, 2006. S/Sgt. Edgardo Osorio was assigned with the 15% Intelligence and Security Unit (ISU), Intelligence and Security Group (ISG) of the Philippine Army in 2006 as per the Special Order of Assignment (Exh.3), Specifically on the night of 25 June 2006 and in the early morning of 26 June 2006, he was confined at the barracks inside the Peacekeeping Operation Center Compound in Camp Aguinaldo, Quezon City together with other candidates for deployment to Liberia. ‘As such, he underwent physical examination, immunization and vaccination and could not leave the area without permissible reason because they have to stay fit and to prevent any untoward incident. Personal equipment and firearms were already issued ready for deployment on July 13, 2006 (Exhs. 4,5 and 6). As to charges against him, Sgt. Osorio claims that he is a victim of fishing expedition by the complainants and the militant group KARAPATAN, a front organization of the Communist Party of the Philippines/New People's Army/ National Democratic Front (CPP/NPA/NDF) for having escorted M/Gen. Palparan. The militants have shown firm determination to put Gen. Palparan in jail in retaliation for his relentless campaigns against the CPP/NPAJ/NDF. Before this case, he only knew Gen. Palparan from the news and from words of mouth of fellow soldiers. He was never under the command of Gen. Palparan. He personally met Gen. Palparan when he was tasked by ISG as shown in the Dispatch Order (Exh. 7) to provide security to the general when he attended the preliminary hearings of the case at the DOJ sometime in June and July, 2011. That he was seen in Hagonoy, Bulacan on 26 June 2006 as one of the abductors of Sherlyn and Karen is but a malicious accusation and a big lie by Wilfredo Ramos. He was not there nor could ever be in Hagonoy on said date. He was sure that Wilfredo Ramos saw him at the DOJ in July 2011 and Wilfredo could not have definitely and surely identified him as the person he allegedly saw only once in Bulacan five years ago in 2006. He was even wearing a black sunglasses while attending the hearing as shown in the picture (Exh. E). Wilfredo gripped by a scary kidnapping situation, which could have not lasted for one hour, could not have a vivid and lasting memory thereof. There was even no mention of any identifying marks on Sgt. Osorio's face or body to remember or identify him distinctly. Wilfredo was lying and he already admitted that he lied in many statements as contained in the Pinagsamang Salaysay dated July 16, 2006 (Exh. D) which was submitted to the DOJ and used as evidence in filing this case. Wilfredo himself discredit the said affidavit by admitting that he caused the preparation of another Sinumpaang Salaysay dated 27 June 2006 which he signed or placed his thumbmark on a day after the kidnapping incident. But during the hearing for bail of Gen. Palparan, he admitted that the whole affidavit and every detail in the earlier affidavit are different and contradictory to the later affidavit submitted to the DOJ and to this court. With all the discrepancies contained in the two Salaysay (Exhs. 10 and 14), itis obvious that the second affidavit is an attempt to implicate the military inDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 15 of 31 x “x the incident despite the lies and the fabrications. Wilfredo signed the first affidavit dated June 27, 2006 when he was only 14 years old and he did not say anything that indicates that he saw someone who looked like him (Osorio). Even in the July 14, 2006 statements, Wilfredo did not also say that he saw someone like him (Osorio) as among the kidnappers. But after five years, Wilfredo now says that he saw Osorio as one of the possible kidnappers which is vague and next to impossible Sgt. Osorio insisted that he was not at Brgy. San Miguel, Hagonoy, Bulacan on June 26, 2006; he was not in Sapang, San Miguel, Bulacan from May to August ,2008; he was not at Camp Tecson in San Miguel, Bulacan from August to November, 2006; he was not at Limay, Bataan from November 2006 to May, 2007; and he was not at 24" IB in Limay , Bataan from June to July, 2007 and did not know whether Gen. Palparan or Col. Anotado was also in those places on said dates. FOR ACCUSED MIGEN. JOVITO PALPARAN, JR. M/Gen. Jovito Palparan, Jr. was the Commanding General of the 7% Infantry Division (&ID), PA, with headquarters at Fort Magsaysay, Palayan City, Nueva Ecija. Its area of responsibility covers the whole of Central Luzon including part of Pangasinan. He retired on September 11, 2006 (Exh. 24). The charges of kidnapping and serious illegal detention of Sherlyn Cadapan and Karen Empeno were based on the six affidavits by Raymond Manalo consisting of Salaysay dated August 15, 2007 (Exh 13 and Exh CC); Sinumpaang Salaysay dated October 15, 2007 (Exh.14); Sinumpaang Salaysay Para sa Hukuman dated November 12, 2007 submitted to the DOJ (Exh. 15 and Exh. 1); Sinumpaang Salaysay dated September 12, 2008 submitted to the Ombudsman (Exh. 16); Karagdagang Sinumpaang Salaysay dated August 3, 2011 submitted to the DOJ (Exh. 17 and Exh. E) and Sinumpaang Selaysay Para Sa Hukuman dated September 20, 2012 (Exh.25). The statement of Manalo is pure fabrication and lies as he had not met him in a basketball court in Brgy. Sapang, San Miguel, Bulacan. Even if it that is true, that is irrelevant and cannot be used as evidence in filing the kidnapping and serious illegal detention of Sherlyn and Karen because the alleged meeting was in May 2008 which is prior to the alleged kidnapping on June 26, 2006. In all the six affidavits, Manalo made narrations of the alleged kidnapping and illegal detention of Sherlyn and Karen, mentioning names and describing several persons whom he allegedly saw and knew to have actual participation but Gen. Palparan was not one of them. While his name was mentioned in three affidavits, his alleged involvement is a clear hearsay. There is no mention that he was in Camp Tecson with the two UP dropouts. Neither was there any mention of his participation in the kidnapping and illegal detention. The oral testimonies of Manalo before the CA and DOJ, and before this court, do not show that Manalo has personal knowledge of his alleged participation. There are several illogical, conflicting and contradictory statements which seriously impaired the credibility of Manalo. (Marked as Exhibits were portions of the statements/testimonies contained in the several Salaysay and TSNs). TheDECISION Criminal Case Nos. 3905-M-20211/3906-M-2012 Page 16 of 31 i x prosecution witnesses were influenced by KARAPATAN to destroy him. The witnesses engaged in fishing expedition for lack of sufficient evidence to link him with the incident that happened in his area. The supposed fetching of the victims happened before his retirement on September 11, 2006 when he was preparing for all the clearances needed and had been staying at the headquarters most of the time and going to Manila for the winding up of his command. Col. Anotado of the 24" IB was not under his direct command and control. Though there were occasions that he had talked to Col. Anotado during some events and conferences during his stint as Division Commander of 71 ID, he cannot remember having talked to Col. Anotado specifically. After his retirement, he saw Col, Anotado at the AFP Medical Center sometime in December 2008 when he visited the center to extend his gratitude to the doctors and staff. It was just a casual and joyful meeting In April 2007, he was in Bataan during the campaign for the 2007 elections and also visited the headquarters of the 2th IB. He again saw Col. Anotado who was still physically weak and he even suggested that he should go back to the hospital. He also learned that Col. Anotado had been undergoing physical therapy treatment. The other meetings with Col. Anotado were during the hearings before the DOJ in 2011. He came to know Sgt. Osorio when he requested the Intelligence and Security Group of the Philippine Army for additional personnel to provide security while he attend hearings at the DOJ. He saw Sgt. Osorio as part of his security detail and came to know his name after he was photographed and allegedly identified by one Wilfredo Ramos as one of the kidnappers of Sherlyn and Karen. By common sense, if indeed Osorio was part of the crime, he would not allow himself to be exposed to the witnesses, accusers and investigators thereof and prominently escorting the primary suspect, Gen. Palparan. He and his co- accused cannot be involved in a conspiracy as there is no proof that they had the motive, planning, execution and did other things to kidnap and detain Sherlyn and Karen Further, Gen. Palparan retired from active military service on September 11, 2006. He was the commanding general of the 7" Infantry Division from June 2005 up to his retirement. On June 26, 2006, he was at the 7 Infantry headquarters at Fort Magsaysay, Nueva Ecija. In the month of June, 2006, he toured various bases and camps in Central Luzon but not all his presence in these camps was recorded and it is uncertain if records of those visits could still be found after the lapse of 12 years. He could not remember if he was in Sapang, Bulacan, in May 2006 as he has not visited that area for quite a longtime. Being in charge of operations, he is in touch with the intelligence branches of his division in the drive against the enemies of the state. Based on reports and observations given, he came to know that Raymond Manalo is an NPA. He is unsure if Manalo was included in the order of battle. It is only after the accusation of kidnapping by Raymond Manalo that their unit conducted anDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 17 of 31 x investigation of the incident and there was a report that not one of their soldiers was involved. As to the two victims, Sherlyn Cadapan and Karen Empeno, they were UP dropouts and from intelligence reports after the incidents, they were known to be members of a militant front organization. Members of the New People’s Army are targets of anti-insurgency campaign in certain areas in Central Luzon and should be physically cleared either by way of encounter, if armed, or be investigated and charged in court. Upon the conclusion of the presentation of all testimonial evidence and the formal offer of documentary evidence, the parties were directed to file their respective memoranda. Thereafter, the cases were deemed submitted for decision RULING The crime of Kidnapping and Serious Illegal Detention is defined and penalized under Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659. The elements of the offense are: 1. That the offender is a private individual. 2. That he kidnaps or detains another, o in any other manner deprives the latter of his liberty. 3. That the act of detention or kidnapping must be illegal. 4, That in the commission of the offense, any of the following circumstances are present: (a) That the kidnapping or detention lasts for more than 3 days; (b) That it is committed simulating public authority; (©) That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) That the person kidnapped is a minor, female or public officer. Incidentally, the accused in these cases for kidnapping and serious illegal detention of Karen Empeno and Sherlyn Cadapan are officers in active military service at that time. Jurisdiction of the civilian court over the persons of the accused stemmed from the fact that if the alleged kidnapping and serious illegal detention of the victims were neither in furtherance of official function nor in pursuit of the authority vested in them as military officers, then they are divested of their military duty and the acts are deemed done in their private capacities coupled with the other attending circumstances, The Supreme Court thus ruled: The fact alone that appellant Pillueta is an organic member of the NARCOM and appellant Sandigan a regular member of the PNPDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 18 of 31 x x would not exempt them from the criminal liability for kidnapping. It is quite clear that in abducting and taking away the victim, appellants did so neither in furtherance of official function nor in the pursuit of authority vested in them. It is not, in fine, in relation to their office, but in purely private capacity, that they have acted in concert with their co-appellants Santiano and Chanco. (People v. Alipio Santiano, et.al. G.R, No. 123979. December 3, 1998) Alleged in the two (2) Informations is conspiracy between and among the accused in the commission of the crimes with which they stand charged There is conspiracy when two or more persons come to an agreement concerning a felony and decide to commit it. (Art. 8, Revised Penal Code), Further, in a long line of cases, it was held, thus: Conspiracy may be deduced from the mode, method, and manner in which the offense was perpetrated; or inferred from the acts of the accused when those acts point to a joint purpose and design, concerted action, and community of interests. Proof of a previous agreement and decision to commit the crime is not essential, but the fact that the malefactors acted in unison pursuant to the same objective suffices. x x x x x x To be a conspirator, one need not participate in every detail of the execution; he need not even take part in every act. Each conspirator may be assigned separate and different tasks which may appear unrelated to one another but, in fact, constitute a whole collective effort to achieve their common criminal objective. Once conspiracy is shown, the act of one is the act of all the conspirators. The precise extent or modality of participation of each of them ‘becomes secondary, since all the conspirators are principals. (Aquino v. Paiste, G.R. No. 147782, 25 June 2008; People v. Amodia, G.R. No. 173791, 7 April 2009;People v. Medice, G.R. No. 181701, 18 January 2012; People v. Anticamara, G.R. No. 178771, 8 June 2011;citing People v. PO3 Tan, 411 Phil. 813, 838 (2001); People v. De Jesus, 473 Phil. 405, 429 (2004). In light of the aforecited legal and jurisprudential parameters and issues raised, the court proceeds to determine the culpability of all the accused, should the evidence so warrants. The substance of the charges may be culled from the testimonies of Wilfredo Ramos and Raymond Manalo. It was persistently recounted by Wilfredo Ramos that on that fateful day of June 26, 2006 at 2:00 in the moming at Barangay San Miguel, Hagonoy, Bulacan, he and his father were forcibly dragged by military men outside of their house where he also saw Karen, Sherlyn and a certain Manuel Merino being tied and blindfolded by accused S/Sgt. Edgardo Osorio. He identified Osorio duringDECISION Criminal Case Nos, 3905-M-2011/3906-M-2011, Page 19 of 31 x x the hearings before the court as the same person he saw when he attended hearings before the DOV. His affidavits and testimony given in open court point a clear picture which positively and in a straightforward manner identified without hesitation the accused Osorio as the person who abducted him that early morning of said date. He had a clear sight of Osorio as he came face to face with him. His proximity to the crime scene provided him a vantage point for recognition and identification of Osorio. Thus, the court finds him a credible witness and his testimony deserves full faith and credit as shown in these excerpts: TSN, September 10, 2012, pp. 40-41 Cross examination of Ramos XXX ATTY. CRUZ: Q. When you said you were likewise a victim, what do you mean by that? A. Iwas a victim of the soldiers because I was hogtied and like Ate Sherlyn and Ate Karen. Q. As a victim you want to obtain justice? A. Yes, sir. Q. And to prosecute the persons responsible for hogtying you? A. Yes, sir. Q. By the way, were you able to identify the persons who hogtied you? A. Were they who hogtied you? INTERPRETER: Witness is pointing to a person. ATTY. CRUZ: Q. A person by the name of Sgt. Osorio was the one who hogtied you? A. Yes, sir. Q. This very person is the one who hogtied you? A. Yes, sir. Q. Are you very sure?DECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 20 of 31 x A. Yes, sir. Q. You cannot be mistaken as of this time? A. Yes, sir. RHE TSN, September 10,2012, p. 63 Cross examination of Ramos XXX ATTY. CRUZ: Q. And the person who hogtied you is that person whose name is Osorio? A. Yes, sir. Q. You cannot forget about that? A. Yes, sir. @Q. Although you were afraid? A. Yes, sir. RK TSN, September 10, 2012, pp.71-72 Cross examination of Ramos Xxxx Q. Were you able to identify the man or men who apprehended these two (2) women? A. The persons who took them are those who were wearing bonnets. But the one who tied them I cannot identify, sir. Q. Were they likewise blind folded? A. Yes, sir. Q. And who hogtied them? INTERPRETER: Witness pointing to S/Sgt. Osorio.DECISION Criminal Case Nos, 3905-M-2011/3906-M-2011 Page 21 of 31 x Q. S/Sgt. Osorio alone. A. Yes, sir. Q. How about Sherlyn who hogtied her? A. Also S/Sgt. Osorio. Xxxxx TSN, September 10, 2012, pp 84-87 Cross examination of Ramos XXXX ATTY. CRUZ: Q. Did you execute any statement in the CHR? A. Yes, Sir. Q. Did you identify Osorio before the CHR? A. No. sir. COURT: Q. When you said identified, did you give the name? A. Yes, your Honor. Q. Did you give the description of Osorio in the CHR? A. Yes, sir. Q. Did they take any cartographic sketch of Osorio? A. Only description, sir. Q. So, it was only on June 26, 2006 that you ever met this person? A. Yes, sir, Q. The person who hogtied you? A. Yes, sir. ©. Did you exert any effort to locate and identify this person after he hogtied you? A. No, sir. Q. So, it was only in the DOJ that you saw this person for the second time?DECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 22 of 31 x A. Yes, sir. Q. And what was he wearing by that time? A. Wearing glasses. Q. Colored or what? A. Dark glasses. Q. Was he in this uniform? A. No, sir. Q. Was he in civilian? A. Yes, sir. Q. By that time you saw him in the DOJ, you cannot be mistaken this was the person who hogtied you? A. I relayed it to my counsel that I can identify who took these two (2) persons. @Q. Did you ask the assistance of the police who apprehended this person at the very moment that you saw him at the DOJ? A. I just relayed the description to my lawyers and after giving the description, I immediately went outside the room because I was very much afraid on that incident because after so long a time, I met again this person who hogtied me and who abducted the students. HEX Quite unnerving is the account of Raymond Manalo whose testimony included some horrifying bestial acts done on Karen and Sherlyn, replete with details that he could not have simply concocted. In plain and simple terms, he told the court what he saw during the incident material to the case at bar free from the exaggerations and embellishments of a perjured witness. His testimony focused on the fact that he himself and his brother, Reynaldo, were abducted by armed men on February 14, 2008 and forcibly boarded on a vehicle and brought to Fort Magsaysay in Nueva Ecija and then to Camp Tecson, San Miguel, Bulacan. It was in Camp Tecson where Raymond met and conversed with Karen and Sherlyn whom he recognized to be the same persons depicted in the pictures showed to him for identification during the court hearings. Then they were brought to the 24" Infantry Battalion in Limay, Bataan where he personally witnessed with his own eyes the most degrading and inhumane tortures repeatedly done to Karen and Sherlyn. Manuel Merino wasDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 23 of 31 x- x also in the said camp. It was in Camp Tecson that Raymond first saw M/Gen. Palparan and even had the chance to meet and talk with the general in the barangay hall of Sapang, San Miguel, Bulacan. It was during his painful ordeals and as he was transferred in different sites that he saw Col. Anotado visiting the places where he had been taken. Raymond repeatedly identified M/Gen. Palparan and Col. Anotado as the same persons whom he saw during his detention, The presence of M/Gen. Palparan and Col. Anotado and the victims in the places of detention was corroborated by witness Oscar Leuterio, himself a victim of abduction. Like Wilfredo, Raymond Manalo is also a credible witness and his testimony likewise is entitled to full faith and credit. The presence of Col. Anotado in the places mentioned by witness Raymond Manalo is recounted as follows: TSN, September 24, 2012, pp. 31-34 Direct Examination of Manalo XERX ATTY, OLALIA: Q. Mr.Witness, in question No. 71, you mentioned a certain official who went to the Camp in Limay, Bataan and talked to Sherlyn and Karen and later on talked to you and Manuel Merino, who is this official you are referring to, Mr. Witness? A. Icame to know him as Lt. Col. Felipe Anotado. @Q. This Col. Anotado you are referring to is the same Col. Anotado, Jr. one of the accused in this case, Mr. Witness? A. Yes, sir. Q. And how did you come to know that this official is Felipe Anotado, Jr., Mr. Witness? A. In one of our hearings at the Court of Appeals, I chance upon him and came to know his name as Col. Felipe Anotado. When I was a State witness in our case at the Court of Appeals, I identified him as the person who visited us at Limay, Bataan. Q. How many times this Co. Felipe Anotado visited you at Limay, Bataan, Mr. Witness? A, More or less three (3) times, he came back and forth at the camp.DECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 24 of 31 - @. If you see again this Col. Anotado you are referring to, will you be able to identify and point him, Mr. Witness? A. Yes, sir. Q. Will you look around inside this court room and see if this Col. Felipe Anotado you are referring to is present in court? A. Yes, sir, he is present. Q. Will you point to that Col. Felipe Anotado you are referring to Mr. Witness? A. He is the one, sir. XXXX TSN, October 29, 2012, pp. 15-16 Direct Examination of Manalo Q You have read it again that is your statement. In your reading, the name of Col. Felipe Anotado is not mentioned there, correct? A. Yes, sir. There is no mention of Col. Felipe Anotado in this statement. Q. Before February 14, 2006, did you ever have a chance to see Col. Felipe Anotado? A. Yes, sir. Isaw him. Q. Where? A. At Limay, Bataan, sir. Q. Okay. I will remind you. My question was February 14, 2006, the question was before that date, have you ever seen the person of Col. Felipe Anotado? A. Before I was abducted, I have not seen him sir. Q. And you are referring to February 14, 2006? A. Yes, sir. Xxxxx TSN, February 16, 2015, pp. 63-66 Direct Examination of Manalo XxxxDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 25 of 31 x Q. After you saw Sherlyn Cadapan and Karen Empeno being tortured, what happened next? A. They were detained in a bodega at the camp in Limay, Bataan. Q. What happened when they were transferred at that bodega? A. A big vehicle of military arrived, sir. Q. Can you describe the motor vehicle that arrived? A. 6X6 vehicle and there were persons wearing camouflage on board of that vehicle, sir. Q. What happened next? A. The said vehicle was where Lt. Anotado was embarked, sir. (Witness pointed to Col. Anotado). Q. How far were you where you when you saw the vehicle where Col. Anotado was embarked? A. I was near the bodega where Karen and Sherlyn were detained. Q. How were you sure that accused Anotado was the one embarked with that vehicle? A, Because he speak with us five (5), I, Reynaldo, Manuel, Sherlyn and Karen, sir. Q. What did Col. Anotado tell you? A. He asked us how we were and told us “magbagong buhay para makauwi na kayo”. Q. What was your reply? A. Yes, sir. ‘magbagong buhay na’. Q. What was Sherlyn Cadapan response if any? A. I do not know, sir because Col. Anotado went directly where Sherlyn and Karen were detained, sir. Q. If you know, how many times did accused Col. Anotado visit you, Sherlyn Cadapan, Karen Empeno at that bodega? A. He visited thrice, sir.DECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 26 of 31 Q. You said “pabalik balik”, is that accurate? A. He visited three (3) times at Camp Limay, Bataan, Sir. Q. Meaning he visited on separate dates, is that accurate? A. Yes, sir, on different dates. Q. Can you remember at least estimate the date of Col. Anotado’s visit? A. He visited first in the month of April, sir. Q. Of what year? A. 2007, sir. Q. Can you estimate around what date he visited the camp on the second time? A. Also that was in the month of April. Q. Can you tell the court the estimate date of accused Col. Anotado’s third visit to the camp? A, I could no longer recall, sir. Q. Now, until when were you detained at that camp at Limay, Bataan, if you can still recall? A. November 2006 to July, 2007, sir. Xxx x As to the knowledge and presence of Gen. Palparan in Camp Tecson at the time when Karen and Sherlyn were detained and viciously maltreated thereat, the testimony of Raymond Manalo is most revealing, thus: TSN, February 16, 2015, pp. 50-54 Direct Examination of Manalo XXX Q. During your stay at Camp Tecson, what happened Mr. Witness? A, One day, a white car arrived, on board was General Palparan, sir. Q. What happened next?DECISION Criminal Case Nos, 3905-M-2011/3906-M-2011 Page 27 of 31 rer x A. A civilian companion of Gen. Palparan fetched Karen Empeno, sir. XXXX xxxX Q. Where did you meet Karen Empeno? A. At Camp Tecson, sir. Q. Around what date if can still recall? A. As far as I do recall, August or September, sir. Q. What year? A. 2006, sir. Xxexx Xxxx Q. Earlier you saw Gen. Palparan at Camp Tecson, is that accurate? A. Yes, sir. Q. What happened when you saw him at Camp Tecson? A. A civilian companion alighted, sir. Q. What happened? A. They brought along with them Sherlyn Cadapan, Karen Empeno and Manuel Merino, the farmer, sir. Q. How far were you when you saw General Palparan, a civilian, Karen and Sherlyn? A. Lam quite near from them, sir. Q. Where exactly at Camp Tecson did you see Sherlyn, Karen, Manuel Merino, a civilian and General Palparan? A. At Camp 24° Infantry Batallion, sir. Q. What happened next? A. They brought back Karen, Sherlyn and Manuel Merino two (2) or Three (3) days after ,sir. XxxXDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 28 of 31 This account of Raymond Manalo that dovetail with the narrative of Wilfredo Ramos, taken in conjunction with those of the other prosecution witnesses, constitute persuasive and unassailable proof that the three accused in complicity with each other committed the crimes imputed against them Viewed in its totality, the witnesses’ positive identification of the three (3) accused and their respective participations and roles in the commission of the crimes charged against them which, after close analysis, show their connections with each other and the common design aimed towards the attainment of the same unlawful purpose, more than satisfies the judicial mind and conscience. By their actuations and roles performed as sufficiently depicted in the accounts of the prosecution witnesses, the three accused have undoubtedly demonstrated that they conspired with one another in the forcible abduction and illegal detention of Karen and Sherlyn as recited in the separate Informations in Criminal Case No. 3905-M-2011 and Criminal Case No. 3906-M-2011, that were jointly tried In the final analysis, when taken together, the accounts of Wilfredo Ramos and Raymond Manalo weave the tapestry depicting the sordid details that make up the chain of circumstances which show the connection, cooperation and Participation by and between the three accused herein regarding the occurrence of the forcible abduction of Karen Empeno and Sherlyn Cadapan and their subsequent illegal detention which indubitably link all of them to the said heinous crimes since their testimonies are consistent with the fact that such crimes had in fact been committed and the perpetrators thereof positively identified as borne by the evidence on record. It is immaterial whether any or all of the accused herein acted as a principal or as an accomplice because the conspiracy and the participation of each of them in the commission of and/or furtherance of the crimes for which they stand charged in these cases have been established. In conspiracy, the act of one is the act of all and the conspirators shall be held equally liable for the crime. (People vs. Bacungay, G.R. 125017, March 12, 2002, 379 SCRA 22) All the accused denied any involvement whatsoever in the crimes charged each claiming alibi as well as denial. They insisted that they were never identified as among those who took Karen and Sherlyn and that they were merely victims of the fishing expedition by the prosecution and its witnesses to come up with persons to be pointed as responsible for the kidnapping. Nonetheless, of particular significance is the undisputed fact that during the period from June 2006 to July 2007, M/Gen. Palparan and Col. Anotado as commanding officers of the 7° Infantry Division and 24" Infantry Division, respectively, covering the areas of Bulacan, Bataan and Zambales, had been in the areas to supervise their men under their direct command and control. The officers had also the occasion to meet during the conduct of conference among the military divisions. As commanding officers, they could not fail to know the two women being detained in their detachments and despite their knowledge, they have not done anything about it. Their silence and inaction are strong indications of complicity. TheDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011, Page 29 of 31 x “x crimes were perpetrated by taking advantage of their being military officers to pursue an ongoing anti-insurgency campaign against the leftist group without due regard to the rule of law. As stated, the accused’ denial and pretension that they had nothing to do with the abduction and illegal detention of Karen and Sherlyn lose credence in the face of their positive identification by the prosecution witnesses. As between the categorical statements of the prosecution witness and the bare denial of the accused, the former must perforce prevail. Well-settled is the rule that an affirmative testimony is far stronger than a negative testimony especially when it comes from the mouth of a credible witness. Alibi and denial, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law. They are considered with suspicion and always received with caution, not only because they are inherently weak and unreliable but also because they are easily fabricated and concocted. Denial cannot prevail over the positive testimony of prosecution witnesses who were not shown to have any ill-motive to testify against the appellants (People v. Togahan, G.R. No. 174064, June 8, 2007; Gan v. People, G.R. No. 165884, April 23, 2007), In the cases at bar, despite efforts to discredit the prosecution witnesses, the defense failed to ascribe improper motive in their taking the stand against the accused much less pictured them as perjured and biased witnesses other than simply on account of being supposedly members of the militant group KARAPATAN, a front organization of the CPP/NPA/NDF. For this reason, their unsubstantiated defense of denial and alibi can only be taken as mere subterfuge to exculpate themselves from the present criminal charges Contrary to the protestation of S/Sgt. Osorio, his defense cannot withstand his positive identification by witness Wilfredo Ramos, He was unable to show that it was physically impossible for him to be at the scene of the crime. Except from the mere say so of Lt. Russel and Col. Cruz that he was in fact inside the PKOC barracks at Camp Aguinaldo, Quezon City on June 25 and 26, 2008, no documents or substantial evidence were shown to attest that he was in fact inside the barracks during that period. It was only surmised that he was at the barracks in the absence of any report of missing trainees at that time but failed to confirm the decisive moment of his whereabouts in or about the date of the incident at bar which S/Sgt. Osorio miserably failed to substantiate. The trainees were not also under restrictions and could be allowed to go out from the camp. Moreover, these witnesses were more likely inclined to falsely testify in Osorio’s favor due to their close association with one another as, admittedly, they belong to the same military groups at Camp Aguinaldo. To exonerate himself, S/Sgt. Osorio maintains that he even willingly escorted Gen. Palparan during the hearings at the CA at the risk of his wrongful identification or implication through guilt by association. This claim is puerile as it could easily be @ product of his own prevarication. Deeply embedded in our jurisdiction is the rule that positive identification of the accused, absent improper motive, should prevail over bare denial and alibi.DECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 30 of 31 x “x The defense contends that there were material inconsistencies in the testimonies of the prosecution witnesses and in the affidavits that they submitted, such as Col. Anotado's claim that Raymond Manalo pointed him out only during their meeting at the CA although there is nothing in the affidavits of the said witness describing the several persons responsible in the kidnapping and illegal detention of Sherlyn and Karen that would fit his look or appearance. In this regard, it is important to consider that at the time when Raymond executed his earlier affidavits, his mind was still in turmoil since it was not easy to immediately recover from a harrowing experience. The workings of the human mind under severe emotional stress are at times erratic or unpredictable. Also, it is not difficult to understand that Raymond became more certain of his identification of Col. Anotado during their meeting at the CA as his mental picture of the latter was reinforced or became clearer in such subsequent meeting as it afforded the means for a better recollection and recognition, being in a less hostile environment. Moreover, discrepancies do not necessarily impair the credibility of a witness, for affidavits, being taken ex parte, are almost always incomplete and often inaccurate for lack of searching inquiries by the investigating officer or due to partial suggestions, and are, thus, generally considered to be inferior to the testimony given in open court. (People vs. Sara, G.R. No. 140618, December 10, 2003, 417 SCRA 431,443) At the same time, the supposed inconsistencies cited by the defense are negligible in character and insufficient to cast doubt on the testimonies of the prosecution witnesses, as they refer to minor details that in actuality do not blot out the central fact of the crimes with which they stand charged. If at all, such idle supposition could only indicate an attempt to deflect attention on the role of the accused whose culpability and complicity had been established beyond reasonable doubt. Concerning the witnesses for the accused, they are not of much help to the cause of the defense. Their credibility suffers from their close association with all the accused. They appear biased in their narration of the surrounding circumstances of the incident at bar selectively remembering things that favor the accused and totally oblivious of the events that put them in bad light. Hence, their testimonies deserve scant consideration Crucial in determining the culpability and conspiratorial liability of Gen. Palparan is the unassailable fact that he knew all too well of the forcible abduction and detention of Karen and Sherlyn by those under his command as he had seen these two women at Camp Tecson but he not only acquiesced to their unlawful captivity but also gave his imprimatur to their inhumane treatment at the hands of his men, and, in effect, fomented the same, by not lifting a finger to halt the abuses against them. Clearly, he was one with his men in the desire to stamp out the enemies of the state, like Karen and Sherlyn, who they believed deserve to be erased from the face of the earth at any cost. Karen and Sherlyn, in fact, have not been seen again, despite the many years of continuing search for them. His silence and inaction were the signals of approval for his men toDECISION Criminal Case Nos. 3905-M-2011/3906-M-2011 Page 31 of 31 x “x commit atrocities against these two hapless women. He was with them in sentiment and in intent and, at the very least, it is in his macabre silence that he loudly expressed his assent to, approval of and community of purpose in the crimes that he became a co-conspirator of in these cases. It has been aptly said that silence may be assent as well as consent, and may, where a direct and specific accusation of crime is made, be regarded under some circumstances as a quasi-confession. (Underhill’s Criminal Evidence, 4" ed., 489-491; Section 32, Rule 130, Rules of Court, cited in People vs. Delmundo, G.R. 123300, September 25, 1998, 296 SCRA 371) All things considered, the evidence of the prosecution indubitably proved beyond reasonable doubt that the aforementioned elements of kidnapping and serious illegal detention obtain in the two cases at bar and the three (3) accused should be penalized accordingly WHEREFORE, premises considered, the court finds the accused MiGeneral JOVITO S. PALPARAN, JR., LT. COL. FELIPE G. ANOTADO, JR. and S/SGT. EDGARDO OSORIO GUILTY beyond reasonable doubt of the crimes of Kidnapping and Serious illegal detention defined and penalized under Article 267 of the Revised Penal Code as amended by RA 7659 in Criminal Case No. 3805 and in Criminal Case No. 3906-M-2011 and hereby sentences each of them to suffer the penalty of reclusion perpetua. In addition, accused M/General JOVITO S. PALPARAN, JR., LT. COL. FELIPE G. ANOTADO, JR. and S/SGT. EDGARDO OSORIO are ordered to pay, jointly and solidarily, the heirs of Karen E. Empeno in Crim. Case No. 3905-M- 2011and the heirs of Sherlyn T. Cadapan in Crim. Case No. 3906-M-2011 the amount of P100,000.00 as civil indemnity and P200,000.00, as moral damages, in each case. With regard to accused M/Sgt. Rizal C. Hilario, who still remained at large, let alias warrant for his arrest be issued and the case against him is ordered archived. SO ORDERED. Promulgated this 17" day of September, 2018 at Malolos City, Bulacan / \/ asxancet ranavo Jud jJ JAPT