G.R. No.

138045 March 14, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIETTA PATUNGAN Y PULGA, EDGAR ACEBUCHE Y CERVITO and ELMERTO PULGA Y
ACEBUCHE, accused-appellants.

GONZAGA-REYES, J.:

At about 10:00 p.m. of May 22, 1994, Antonio Altarejos and his girlfriend Antonia Eluzon with a few
other friends were having a drinking spree beside the chapel along Laura Calderon St., Purok 2,
Barangay Old Balara, Quezon City. Antonio and Antonia noticed the van of their neighbor Alejandro
Patungan parked in front of the chapel and saw two men seated inside, one is the accused Elmerto
Pulga at the driver's seat and the other is the accused Edgar Acebuche. 1 Sometime that evening
Elmerto Pulga drove the van away from the chapel and towards a vacant lot near Commonwealth
Avenue to allow another car to park right in front of the chapel. After the drinking spree, at about 3:00
to 3:30 a.m., the following morning, the lovers Antonio and Antonia went to the basketball court to
talk. Moments later they saw Alejandro Patungan and his wife Marietta come out of their house and
walk toward the road. Marietta however, went back to their house while Alejandro proceeded without
her.2

At about 3:45 p.m. of May 24, 1994, the decomposing body of Alejandro Patungan was found inside
his van parked along Don Quixote St. Sampaloc, Manila. At 7:00 p.m. that day the cadaver was
autopsied at the WPD-PNP Medico-Legal Section. The report states as follows:

"The body was bloated and in the state of decomposition . The face was dark colored,
eyeballs, bulging, tongue half protruding and thick upper and lower lips. Bullae formation in
the chest, abdomen and extremities with greenish discoloration in the inguinal regions
spreading towards the abdomen. The abdomen was distended with gas.

"The following external injuries were noted.

1. Stab wound, with the point of entry at the left cheek, 59 inches from heel, 8 cm.
From anterior midline, measuring 4 x 2 cm. And exited at the left sub-mandibular
region, 54 inches from heel, 4 cm. From anterior midline measuring 2 x 0.6 cm.

2. Ligature mark around the neck measuring 0.5 cm.

3. 8 stab or punctured wounds, oval in shape, in the base of the left lateral neck,
supra and infra-clavicular region, with the average measurement of 0.3 x 0.5 cm.

4. 51 stab or punctured wounds, evenly distributed in the entire abdomen, oval in

shape and with the average measurement of 0.3 x 0.5 cm.

"INTERNAL FINDINGS:

1. Lacerations of the sub-cutaneous tissues in the left cheek base of the left lateral
neck, infra and supraclavicular regions. Three (3) stab or punctured wounds in the
upper lobe of the left lung with massive bleeding in the left thoracic cavity.
 2. Injuries to the liver, stomach, spleen, small and large intestines, kidneys, inferior
vena cava and abdominal aorta, with massive bleeding in the peritoneal cavity.

3. About 1 glassful of partially digested rice with meaty materials and without
alcoholic odor was recovered from the stomach."

CAUSE OF DEATH: Multiple stab wounds and ligature strangulation."3

On August 16, 1994 an Information was filed against Marietta Patungan for parricide and against
Elmerto Pulga and Edgar Acebuche for murder, to wit:

"The undersigned accuses MARIETTA PATUNGAN Y PULGA of the crime of PARRICIDE

and EDGAR ACEBUCHE Y CERVITO and ELMERTO PULGA Y ACEBUCHE of the crime of
MURDER, as committed as follows:

That on or about the 22nd day of May, 1994 in Quezon City, Philippines, the said accused,
Marietta Patungan Y Pulga being the legal wife of victim ALEJANDRO PATUNGAN Y
RANGEL, conspiring and confederating together with her co-accused EDGAR ACEBUCHE
Y CERVITO and ELMERTO PULGA Y ACEBUCHE and another person whose true name,
identity and whereabouts have not as yet been ascertained and helping one another, with
intent to kill, evident premeditation, treachery and with the use of motor vehicle, did, then and
there wilfully, unlawfully and feloniously attack, assault and use personal violence upon the
person of ALEJANDRO PATUNGAN Y RANGEL by then and there strangling him with an
electric wire and stabbing him with a bladed weapon on the different parts of his body,
thereby causing upon him multiple stab wounds which were the immediate and direct cause
of his death thereafter, to the damage and prejudice of the heirs of the victim.

Contrary to law."4

On September 6, 1994 the three accused pleaded "not guilty" to the offense charged. 5

In addition to the testimonies of Antonio and Antonia, the prosecution presented the extra-judicial
confession of the accused Elmerto Pulga, the testimonies of the police officers who took the
statement, of the lawyer from the Integrated Bar of the Philippines Quezon City Chapter, Atty. Pedro
Rudio, who allegedly assisted the accused Elmerto Pulga during the custodial investigation and of
the medico-legal officer who conducted the autopsy. The extra-judicial confession 6 of accused
Elmerto Pulga dated August 11, 1994 linked Marietta to the killing of her husband. It states as
follows:

"T. Bakit ka narito sa loob ng Integrated Bar of the Philippines, at nagbibigay ng malaya
at kusang loob na salaysay?

S. Ako po ay kusang sumuko sa mga pulis hinggil sa nalalaman ko sa pagkamatay ng

aking bayaw na si ALEJANDRO PATUNGAN at kaya po ako'y nandito ay upang sabihin ko
ang aking nalalaman at katotohanan sa mga pangyayari.

T. Sino ba itong si ALEJANDRO PATUNGAN at kailan, saan ba siya namatay o

pinatay?
S. Siya po ay aking bayaw, asawa po siya ng aking kapatid na si MARIETTA
PATUNGAN y PULGA at siya po ay pinatay ng ika 13 ng Mayo 1994, doon sa loob ng
DAIHATSU VAN ng dalawang tao.

T. Anong oras ba ito naganap?

S. Humigit kumulang po sa alas 3:30 ng madaling araw ng petsa 23 ng Mayo 1994.

T. Papaano mong nalaman ang mga bagay na ito?

S. Kaya ko po alam ang mga bagay na ito ay sapagkat kasama po ako dito sa
pangyayaring ito, pero ito po ay nagawa ko lang dahilan sa inutusan ako ng aking kapatid na
si MARIETTA upang patayin ang aking bayaw dahilan sa siya ay may kalaguyo na si JUNE
ACEBUCHE na kaniyang kakutsaba at ang nakasama ko pa po dito ay ang aming pinsan na
si EDGAR ACEBUCHE y Cervito na siyang sumaksak kay ALEJANDRO PATUNGAN.

T. Maari mo bang isalaysay sa akin ang mga buod ng pangyayaring to?

S. Ako po ay kinausap ng aking kapatid na si MARIETTA ng mga buwan ng Nobyembre

1993 at ang sabi sa akin ay mayroon siyang problema sa buhay, at tinanong ko nga siya
kung ano, ang sagot niya sa akin ay tungkol sa kaniyang kalaguyo na si JUNE ACEBUCHE
at ang problema niyang talaga ay kung papaano silang magsasamang dalawa eh mayroong
siyang asawa, (si ALEJANDRO PATUNGAN) at pilit niya akong kinukumbinsi na kung maari
ay iligpit ko si bayaw @ ALEX (ALEJANDRO) ayaw ko pong pumayag dahil sa takot po ako,
pero tuwing magkikita kaming magkapatid ay lagi niya itong idinadaing sa akin at palagi na
lang sinasabi na kung pwede ay patayin ko si ALEJANDRO na aking bayaw, at isang araw
nga po ng buwan ng Abril 1994 ay kinausap na muli ako at sila na ngang pong dalawa na
(MARIETTA AT JUNE ACEBUCHE) doon sa may JOLLIBEE sa Farmers Plaza, Cubao, at
pilit ng po akong sinasabihan na iligpit si bayaw dahilan sa balakid ito sa kanila. At minsan
pa sinabi sa akin ni MARIETTA na kung pwede ay magbayad na lang kami ng hired killer
pero wala naman siyang pera kaya hindi ito natuloy, hanggang sabihin na lang niya sa akin
na ako na lang ang gumawa at isama ko ang aming pinsan na si EDGAR ACEBUCHE. At
ang plano nga po eh natuloy na, at kami nga eh nagpasya na yariin si bayaw ng ika 15 ng
Mayo 1994, pero ito po ay hindi natuloy dahilan sa may mga tao doon sa aming
pinagbalakang lugar kaya ito po ay inulit namin sa utos na muli nina MARIETTA at JUNE
kaya ng sumapit ang ika 22 ng Mayo 1994, doon kami pinapunta ni MARIETTA sa Flower
shop sa Farmers Plaza Market, at binigyan pa nga kami niya ng pera at ang susi ng
DAIHATSU VAN para pagpunta namin doon sa Calderon kung saan sila nakatira ay madali
kaming makakapasok doon sa loob ng sasakyan. Dumating nga po kami doon sa Calderon
at sumakay kami ni EDGAR ACEBUCHE doon sa loob at nagintay sa aking bayaw sa
paglabas niya sa madaling araw, pero habang iniintay namin siya ay may dumaang isang
pulang kotse at ng hindi nakadaan ay minabuti ko na lang na ilagay sa Hi-way ang Van sa
utos ni EDGAR ACEBUCHE. Maya-maya nga po eh dumating na si ALEJANDRO
PATUNGAN kasama ang aking kapatid na ang weapon namin sa utos niya (MARIETTA) na
kapag dumating na sila ay uuwi siya kunyari sa kanila at maiiwan si bayaw, at ganun na nga
ang nangyari, naiwan si bayaw doon sa labas hanggang sa magtungo na siya sa loob ng
Van at nagulat pa nga siya ng makita kaming dalawa doon sa loob, pero nagtanong pa siya
kung sasama kaming dalawa sa kanilang mag-asawa, at ang sabi ko naman ay oo, at ganun
na nga, ng nakaupo na si bayaw sa manubela ay inatasan akong palihim ni EDGAR na
 sakalin ko si ALEJANDRO ng dala kong kable (Electric wire) at ganun na nga po ang ginawa
ko, sinakal ko si ALEJANDRO at habang sakal ko siya, nagpapapalag ay sinaksak siya ni
EDGAR ng isang beses sa tagilirang leeg, at ng hindi mamatay-matay at pinagsasaksak na
niya ng todo (madaming beses) at nalugmok si bayaw ay agad na hinila ni EDGAR sa
bandang likuran ng Van at ako naman ay kaniyang inatasan na magmaneho at dadalhin
namin ang bangkay sa Maynila (Sa DANGWA/DIMASALANG) ayon sa utos nina MARIETTA
at JUNE ACEBUCHE na naayon sa plano nila, na papalabasin na ito'y hinoldap sa pamimili
ng bulaklak. At ganun na nga po, iniwan ko ang sasakyan sa may Don Quijote St, sa
Maynila, (Sampaloc) at kami ni EDGAR ACEBUCHE ay umuwi na at naghiwalay lang kami
sa aming bahay sa INC compound, tangay ang relo ni ALEJANDRO.

T. Kailan ka ba sumuko sa mga pulis?

S. Ika 9 ng Agosto 1994 dahilan po sa nakukunsensiya ako sa mga pangyayaring ito na

kakagawan ng aking kapatid at kalaguyo niya.

T. Nais ko lang ipabatid sa iyo na sa iyo'y walang sino mang pumilit, tumakot, o
nangako ng ano mang bagay, upang gawin ang salaysay na ito, naiintindihan mo ba?

S. Opo, naiintindihan ko po."7

To establish the alleged motive in the killing of Alejandro, the prosecution also presented Adelaida
Patungan, the sister of the deceased, who testified that her sister-in-law, the accused Marietta
Patungan, had an affair with one of the helpers in the flower shop, who is her own cousin Jun
Acebuche. Thus, witness stated that she saw the two eating together from the same plate and that
she caught them holding hands. One time she saw Jun kiss Marietta. Her brother allegedly found out
about the affair and dismissed Jun from work but he forgave Marietta for the sake of their children. 8

The mother of the victim testified to establish the amount of funeral expenses incurred at
P80,000.00, which amount the defense admitted.9

For the defense, accused Marietta Patungan admitted in court that she was with her husband at
early dawn of May 23, 1994 and were on their way to buy flowers for their flower shop but she went
back to their house to get a betamax tape and that her husband proceeded without her.10 On August
9, 1994 she was invited by the police for questioning and that she was in fact questioned about her
complicity in her husband's death at the police station without the assistance of counsel. 11 The other
accused Edgar Acebuche denied participation in the murder of the victim and stated that sometime
on August 8, 1994 he went to his cousin Marietta's flower shop in Cubao to look for a job when the
police mistook him for Jun Acebuche and arrested him. He was also subjected to custodial
investigation without the assistance of counsel.12

In court, accused Elmerto Pulga repudiated his extra-judicial confession and stated that he was
coerced by the police to admit participation in the murder of Alejandro Patungan and to implicate his
sister Marietta as mastermind and cousin Edgar as co-conspirator. He narrated that he was arrested
at around 9 a.m., August 9, 1994 and that he was detained and tortured by electrocution by the
police until the following day, August 10, 1994, when he agreed to sign a prepared document. On
August 11, 1994 he was brought to the IBP office where he met Atty. Rudio who signed the prepared
extra-judicial confession as counsel for the accused. 13 A motion to withdraw the plea of "not guilty" to
the offense charged to a plea of "guilty" to a lesser offense i.e., homicide, was filed by counsel for
the accused. The trial court denied the motion and treated it instead as a motion to recall the
accused Elmerto Pulga for further testimony.14 On recall, accused Elmerto Pulga, admitted stabbing
the deceased three times until he fell unconscious, after which he lost control of himself and stabbed
the victim some more. He found a rope and pulled the victim by the neck to the back of the van. He
stated that he alone was responsible for the death of his brother-in-law.

The trial court upheld the validity of the extra-judicial confession and rendered judgment convicting
the three accused guilty of the crime charged. The March 16, 1999 decision of the trial court reads
as follows:

"WHEREFORE, the Court renders judgment finding all accused guilty beyond reasonable
doubt as principal of the crime as charged, that is PARRICIDE for MARIETTA PATUNGAN
and MURDER for accused ELMERTO PULGA and EDGAR ACEBUCHE, defined and
penalized in Article 146 and Article 248, respectively, of the Revised Penal Code, as
amended, with the attendant circumstances of treachery and evident premeditation alleged
in the Information, sentencing them therefor to death, and ordering them to pay jointly and
severally to the heirs of Alejandro Patungan the amount of Fifty Thousand (P50,000.00)
Pesos as indemnity for death, Eighty Thousand (P80,000.00) Pesos as actual damages, and
P50,000.00 as moral damages."15

The case is before us on automatic review.

Counsel for the appellants assigns as error the trial court's appreciation of the testimonies of the-
prosecution witnesses and its finding in favor of the validity of the extra-judicial confession executed
by Elmerto Pulga.

The Medico-legal officer who conducted the autopsy on the victim at 7 00 p.m. of May 24, 1994
stated that considering the advanced stage of decomposition of the cadaver the victim must have
been dead for thirty-six hours. Based on such findings it is submitted by the appellants that
witnesses Antonio and Antonia could not have seen the deceased at 3:30 a.m. of May 23, 1994. The
medical findings as to the approximate time of death and the injuries sustained by the victim are in
accord with the testimony of Elmerto Pulga who admitted that he killed the victim at around 10:00
p.m. of May 22, 1994 and that he stabbed him thrice while he was seated at the driver's seat. In
assailing the validity of the extra-judicial confession, the appellants contend that the trial court failed
to appreciate the underlying admissions in the testimonies of SPO3 Villacorte and Atty. Rudio that
the accused Pulga was in fact denied the assistance of counsel during custodial investigation. The
appellants pray for the acquittal of accused Marietta Patungan and Edgar Acebuche and the
conviction of accused Elmerto Pulga for the lesser offense of homicide.

The Solicitor-General filed appellee's brief praying for the affirmance of the decision of the trial court.
It is maintained that the exact time of death of the victim is immaterial in view of the extra-judicial
confession of Elmerto Pulga which dovetails with the findings in the autopsy report. What the
appellee considers material is the timing when Marietta lured her husband into the van where the
two co-conspirators were waiting to execute their murderous scheme. Appellee maintains that
Elmerto Pulga's belated repudiation of his extra-judicial confession, his failure to present any
evidence to support his claim of torture in the hands of his investigators and his apparent
unwillingness to file any administrative charge against them militates against his claim that his extra-
judicial confession was obtained through violence. The appellee asserts that confessions are
presumed valid unless proven to have been obtained through violence, intimidation, threat or reward
and that in view of the appellants' failure to prove any of the aforementioned circumstances that
vitiate consent, the trial court did not err in upholding the validity of Pulga's extra-judicial confession.

Considering the totality of the evidence, it appears that the principal evidence presented by the
prosecution to establish the alleged conspiracy among the appellants to commit murder is the extra-
judicial confession of accused Elmerto Pulga. The rest of the evidence presented is at most
circumstantial to establish motive and the presence of the appellants at or near the place of the
commission of the crime.

Section 12 (1), Article III of the Constitution provides:

"SECTION 12(1) Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and independent
counsel preferably his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived except in writing and in the
presence of counsel.

(1) No torture, force violence threat, intimidation or any other means which vitiate the
free will shall be used against him. Secret detention places, solitary, incommunicado,
or other similar forms of detention are prohibited.

(2) Any confession or admission obtained in violation of this or section 17 hereof shall
be inadmissible in evidence against him."

An extra-judicial confession to be admissible in evidence must be express and voluntarily executed

in writing with the assistance of an independent and competent counsel 16 and a person under
custodial investigation must be continuously assisted by counsel from the very start thereof. 17 The
presence of counsel is intended to secure the voluntariness of the extra-judicial confession. 18 The
presence of a lawyer alone, will not suffice to fulfill the requirement of the constitutional provision.
The assistance of counsel must be independent and competent that is, providing full protection to
the constitutional rights of the accused.19 A lawyer who simply goes through the motion of reciting the
rights of the accused, or acts as a witness to a pre-prepared document containing the extra-judicial
confession of the accused or holds an interest contrary to that of the accused does not qualify as
independent and competent counsel.20

To establish the validity of Pulga's extra-judicial confession, the police investigator PO3 Jovencio
Villacorte testified that appellant Pulga voluntarily surrendered to the police and told them the whole
story of how his younger sister appellant Marietta Patungan masterminded the murder of her
husband to be able to marry her lover, and how he and his cousin appellant Edgar Acebuche
accomplished Marietta's bidding.21 Atty. Pedro Rudio of the IBP, Quezon City Chapter, who
supposedly assisted Pulga during the taking of the extra-judicial confession, testified that Pulga
expressed his consent to be assisted by said counsel and signified that his confession is voluntary.
Atty. Rudio stated that he even raised Pulga's shirt to check if he had been subjected to physical
violence and found none.22

However, a closer examination of the transcript of stenographic notes regarding Pulga's extra-judicial
confession is rather disturbing. PO3 Villacorte testified as follows:
"Q. And the person of Elmer Pulga was taken in custody or apprehended because that
is the term used, arrested. That was the term used by Gacute on August 9, 1994, correct sir?

A. In our blotter, sir, it was August 10,

Q. August 10?

A. Yes, sir.

Q. And it was on August 10 that you propounded questions to Elmer Pulga when he
was referred to you by Gacute, correct, sir?

A. Yes, sir.

Q. And do you know that once a suspect is arrested or surrendered for that matter,
assuming that he surrendered, that custodial investigation will start immediately?

A. Yes, sir.

Q. Do you know that a person who is undergoing custodial investigation is entitled to

counsel?

A. Yes, sir.

Q. Did you provide him with a counsel when you talked to him?

A. No, sir. First of all, when I conducted the investigation on August 10, he denied to us
because he pointed to us . . . (emphasis supplied).

COURT:

Ang tinatanong kung may abogado?

WITNESS:

No, sir, Without any counsel.

ATTY. PRADO:

Q: Do you know that a person under custodial investigation is entitled to counsel to

assist him?

A. yes, sir.

Q. Why did you not provide or why did you not make it sure that this Elmer Pulga was
assisted by counsel when you were conducting the custodial investigation on August 10,
1994?
PROSECUTOR BAUTISTA:

Objection, your Honor please, there is no showing that the police investigator, our
witness, mentioned or investigated accused Elmerto Pulga on August 10. The
questioning and interviewing was done in the office of the IBP on August 11 when he
executed an extra-judicial confession.

COURT:

You answer.

A. Because when I questioned Elmer Pulga, he denied to us, sir. (emphasis supplied).

COURT:

Q. But did you give him a lawyer?

A. No, sir.

Q. How come that there was a lawyer assisting Elmerto Pulga? How come?

A. Later in the morning when he tell us that he has already the evidence and then he is
telling us the truth and then later I brought him to IBP to get a counsel there.

Q. Who requested you to bring him to IBP?

A. The block commander including Pulga, your Honor.

Q. So, the IBP provided the accused a counsel?

A. Yes, your Honor.

Q. Did he object to the nomination given by IBP?

A. No, sir.

COURT:

Go ahead.

ATTY. PRADO:

Q. So, in short, Mr. Witness, from August 10 up to 2:00 o'clock in the afternoon or
August 11, 1994, accused Elmerto Pulga was not assisted by counsel more specifically of his
own choice, correct, sir?

A. Yes, sir.
 Q. Do you know that once a person is under custodial investigation, he is immediately
entitled to a counsel especially of his own choice?

A. Yes, sir.

Q. And why did you not make it sure that from August 10 up to August 11 up to 2:00
o'clock in the afternoon considering that this Elmer Pulga was already under custodial
investigation he was not provided with counsel?

A. Because, as I said, when he surrendered, he lied to us. He said he will confess but
he even pointed one alleged suspect."23

Contrary to PO3 Villacorte's assertion that Pulga was taken into custody on August 10, 1994, the
police officer who actually took all three appellants into custody, SPO2 Orlando Gacute, testified that
the appellants were all "invited" to the police station on August 9, 1994 and that they were all
subjected to custodial investigation without counsel. 24This means that the appellants, and appellant
Pulga, in particular, were in police custody and subjected to custodial investigation for two and a half
days without the assistance of counsel before he decided to confess. Villacorte himself admitted that
Pulga at first did not want to confess and pointed to another suspect as the perpetrator of the crime.
This statement negates the police's claim of voluntary surrender and places in serious doubt the
voluntariness of Pulga's extra-judicial confession.

Pulga testified that he was arrested on August 9, 1994. He narrated in court that during custodial
investigation he was blindfolded with hands tied behind him and was electrocuted by the police
investigators while he was either sitting on a steel bar or had a piece of wet cloth placed on his feet,
to compel him to admit commission of the crime charged. He simply cried and could not do anything
else but to accede to his tormentors demand. He stated that he signed a pre-prepared document at
the precinct before he was taken to the IBP office near the Sulo Restaurant in Quezon City on
August 11, 1994.25 He explained that he narrated his ordeal only for the first time in court because he
could not complain to the IBP lawyer, the fiscal nor to the medical officer out of fear of his police
investigators and when he was taken to a medical officer for examination, the police escort
answered the questions for him. None of his relatives visited him in jail and he only saw his lawyer in
court.26 Until he was brought to court he had no one to confide to and he was at the mercy of the
police investigators while he was detained at the Quezon City Jail.27 As a detention prisoner he was
always escorted by the police when he was before the IBP lawyer, the fiscal and the medical officer
and Pulga did not find the opportunity to complain to the authorities. To our mind, appellant Pulga's
fear of his police escorts is well founded and his delay in revealing what he underwent during
custodial investigation does not cast doubt on its veracity, as the prosecution suggests.

We also note from the above testimonies that it was only after appellant Pulga verbally confessed at
the police precinct, without the assistance of counsel, when he was brought to the IBP office
allegedly for the actual transcription of his confession in writing in the presence of a lawyer. It would
appear to us that whatever statement Pulga allegedly gave to the police for transcription in the
presence of counsel is the product of two and a half days of coercive and uncounselled custodial
investigation. We are inclined to believe that when he was brought to the IBP office his body and his
will were in no position to raise any objection much less to complain to the IBP lawyer about what he
has gone through. The situation was not at all alleviated by the counsel who was supposed to assist
Pulga at the taking of the extra-judicial confession. Said lawyer admitted that he was working on an
appeal in another case two to three meters away from the police investigator who was then taking
Pulga's statement. He stated that he was "not totally concentrated on the appealed case because he
could still hear the investigation being conducted then." 28 Villacorte testified that while he was taking
Pulga's statement the IBP lawyer was working on something else using two other tables four meters
apart.29 The mere presence of a lawyer is not sufficient compliance with the constitutional
requirement of assistance of counsel. Assistance of counsel must be effective, vigilant and
independent.30 A counsel who could just hear the investigation going on while working on another
case hardly satisfies the minimum requirements of effective assistance of counsel. Not only was
Pulga subjected to custodial investigation without counsel, he was likewise denied effective
assistance of counsel during the actual taking of his extra-judicial confession.

For the reasons above stated, We find that the extra-judicial confession of appellant Elmerto Pulga is
inadmissible in evidence for having been obtained without effective assistance of counsel.

The other pieces of evidence presented by the prosecution fail to establish the charge of conspiracy
among the appellants to murder the deceased. The prosecution relied heavily on Pulga's extra-
judicial confession but the rest of the evidence presented fail to satisfy the required quantum of proof
to establish conspiracy. The prosecution evidence simply establishes the presence of Pulga and
Acebuche near or at the place where the victim was last seen alive. It is observed that Antonio and
Antonia allegedly saw Pulga and Acebuche inside the van at around 10:00 p.m. and that the victim
was last seen with Marietta at around 3:30 a.m. the following morning. There is no proof that Pulga
and Acebuche were still inside the van at 3:30 a.m. and the only circumstance that might indicate
that Marietta may have lured her husband to go inside the van to enable Pulga and Acebuche to kill
him that morning was her alleged motive to get rid of her husband to marry her lover. It is on record
that Marietta and her husband run a flower shop and it is not uncommon, much less suspicious, for
them to buy flowers before dawn.31The estimated time of death of the victim is nothing but such, an
estimate. Due to the advanced stage of decomposition of the body of the victim when it was
autopsied at around 7:00 p.m. of May 24, 1994, the medico-legal officer who conducted the autopsy
testified that the victim must have been dead for about thirty-six hours.32

In an apparent attempt to show Marietta's implied admission of guilt, the prosecution presented one
of the police officers who "invited" the appellants for questioning who testified that appellant Marietta
tried to commit suicide after the investigation, i.e., that Marietta stabbed herself with a Batangas
knife in the bathroom at the police precinct when she found out that her brother Elmerto pointed to
her as the mastermind of the murder of her husband.33However, no medical record was presented to
substantiate this testimony and we note that the police officer did not testify that he saw Marietta
stab herself. Marietta denied that she tried to commit suicide and testified that she woke up in the
hospital.34 Whether or not she stabbed herself is not proven by the prosecution and can by no means
be considered as an implied admission of guilt of appellant Marietta. We may add that even if she
did attempt to commit suicide a female suspect under custodial investigation in a police-dominated
atmosphere and without the assistance of counsel, Marietta cannot be expected to act rationally.

The evidence as it stands, without the extra-judicial confession of appellant Pulga, is not sufficient to
support conviction for parricide against appellant Marietta nor for murder against appellant
Acebuche. For this reason we are constrained to acquit them of the crimes charged.

Only the judicial admission of Elmerto Pulga remains on record for consideration of the court. He
testified as follows:
Q. When you said you agreed to leave at 10:00 o'clock in the evening on May 22, 1994,
what did you actually do with your brother-in-law then?

A. I was the one driving the car in going to Dangwa and while the car was running he
told me, "Bakit ka nakikialam pag sinasaktan ko ang asawa ko. Nakikisali ka."

Q. Aside from you brother-in-law, who was with you then in that van you were driving?

A. We were only two.

Q. What happened after your brother-in-law told you that statement, "Bakit ka
nakikialam pag sinasaktan ko ang asawa ko. Nakikisali ka."

A. Nauwi po yan sa pagtatalo dahil ayaw siyang pumayag sa aking paliwanag.

Q. After that pagtatalo or verbal tussle, what happened next?

A. When we arrived at Dangwa, I turned over the key to him and I told him that, "Ikaw
na lang ang umuwi." And after that, my brother-in-law got a screwdriver and stabbed me and
I was able to grapple.

Q. After that, when you were able to grapple that screwdriver from your brother-in-law,
what did you do?

A. I stabbed him, sir.

Q. How many times, Mr. Witness?

A. Three times. After I stabbed him three times, I remember what he was doing to my
sister and "nawala ako sa aking sarili."

Q. Are you telling the court, Mr. Witness that you recall having stabbed your brother-in-
law three times and the rest you do not know anymore?

A. I cannot remember, sir how many times I stabbed him."35

ON CROSS-EXAMINATION, Pulga testified:

Q. How many times did you stab Alejandro Patungan?

A. Three times, I stabbed him and then after he fell unconscious, I was not able to
control myself.

Q. And so after stabbing him three times you left the place?

A. No, ma'am. I lost control and "binanatan ko siya ng binanatan."

Q. And you kept stabbing him?

 A. Yes, ma'am.

Q. And then you left the place, the premises?

A. And I saw a rope that I put around his neck and pulled him back.

Q. So which occurred first, the stabbing or the strangulation?

A. The stabbing, ma'am."36

Pulga's admission that he stabbed the victim thrice coincides with the autopsy report that the victim
sustained three stab wounds. Pulga's statement that he was seated at the driver's seat while the
victim sat at the passenger's seat which means that Pulga was at the left side of the victim also
coincides with the medical finding which states that the stab wounds, except those on the victim's
abdomen, were all on the left side of the body of the victim. The prosecution tried to establish the
impossibility of Pulga pulling the victim by himself to the back of the van but no competent evidence
was presented to prove the theory. The autopsy report reveals that the victim was 63 inches
tall37 and Pulga testified that he stands 5 feet 4 inches tall. 38 The alleged impossibility was not proven
by the prosecution with moral certainty. At any rate, we hold that there is no other evidence on
record to show that Pulga was not alone in the commission of the crime.

Pulga's admission can be sustained but he cannot be convicted for murder in the absence of proof of
any of the qualifying circumstances alleged in the information, i.e., treachery and evident
premeditation. The number of stab wounds sustained by the victim, fifty-one in the abdomen and
three in the upper part of his body, by itself is not aggravating unless it was shown, and it was not
herein shown, to have been intentionally inflicted to add suffering to the victim. 39 On the contrary,
Pulga testified that he countlessly stabbed the victim after he fell unconscious. Accordingly, Pulga is
hereby convicted of homicide and to suffer the penalty of reclusion temporal. 40 In the absence of any
mitigating or aggravating circumstance, the said penalty is to be imposed in its medium period 41 of 14
years, 8 months and 1 day to 17 years and 4 months.

This court is not blind to the suffering of the victim's family arising from his untimely death, but we
are bound to uphold the constitutional rights of the accused. Let this be a stern lesson to the police
authorities and to the prosecution to perform their sworn tasks with utmost regard to the mandates of
the Constitution. Criminals cannot be apprehended, prosecuted and punished under the law by
resorting to non-legal means.

WHEREFORE, appellants Marietta Patungan and Edgar Acebuche are acquitted of the crimes
charged against them and the judgment of conviction rendered by the trial court is hereby reversed
and set aside. The judgment of conviction for murder against appellant Elmerto Pulga is hereby
likewise set aside and a new one entered convicting him of the crime of homicide, and imposing the
indeterminate penalty of 10 years of prision mayor in its medium period, as minimum to 17 years and
4 months of reclusion temporal in its medium period, as maximum. This Court affirms the pecuniary
awards given by the trial court and orders the appellant Pulga to pay the heirs of the victim the sum
of P50,000.00 as indemnity for death, P80,000.00 for actual damages and P50,000.00 for moral
damages.

SO ORDERED.
Davide, Jr., C .J ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ ., concur.