G.R. No. 96602 November 19, 1991 EDUARDO ARROYO, JR., petitioner, vs.

COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. G.R. No. 96715 November 19, 1991 RUBY VERA-NERI, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS, respondents. Efren C. Carag for Eduardo C. Arroyo, Jr. Singson, Valdes & Associates for Ruby Vera Neri. RESOLUTION

FELICIANO, J.:p In G.R. No. 96602, the Court summarized the facts of the case in this manner: Dr. Jorge B. Neri filed a criminal complaint for adultery before the Regional Trial Court (RTC), Branch 4, of Benguet against his wife, Ruby Vera Neri, and Eduardo Arroyo committed on 2 November 1982 in the City of Baguio. Both defendants pleaded not guilty and after trial, the RTC convicted petitioner and Mrs. Ruby Vera Neri of adultery as defined under Article 333 of the Revised Penal Code. The essential facts of the case, as found by the trial court and the Court of Appeals, are as follows:
... On November 2, 1982, accused, Mrs. Ruby Vera Neri in the company of Mrs. Linda Sare and witness Jabunan, took the morning plane to Baguio. Arriving at around 11:00 a.m., they dropped first at the house of Mrs. Vera, mother of Ruby Vera at Crystal Cave, Baguio City then proceeded to the Mines View Park Condominium of the Neri spouses. At around 7:00 o' clock in the evening, accused Eduardo Arroyo arrived at the Neris' condominium. Witness opened the door for Arroyo who entered, he went down to and knocked at the master's bedroom where accused Ruby Vera Neri and her companion Linda Sare were. On accused Ruby Vera Neri's request, Linda Sare left the master's bedroom and went upstairs to the sala leaving the two accused. About forty-five minutes later, Arroyo Jr. came up and told Linda Sare that she could already come down. Three of them, thereafter, went up to the sala then left the condominium. (Court of Appeals Decision, p. 4) 1

Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals' Decision. Petitioner Ruby Vera Neri also moved for reconsideration or a new trial, contending that a pardon had been extended by her husband, private complain ant Dr. Jorge B. Neri, and that her husband had later con traded marriage with another woman with whom he is presently co-habiting. Both motions were denied by the Court of Appeals. Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February 1991 which this court denied in a Resolution dated 24 April 1991. In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715) dated 19 February 1991. Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion dated 23 May 1991 for consolidation o G.R. No. 96602 with G.R. No. 96715. On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third Division in accordance with long-stand ing practice of the Court. On 29 July 1991, the Third Division deliberated upon the case which was then assigned to the ponente for the writing of the Court's Resolution. 2 On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying that the case against petitioners be dismissed as he had "tacitly consented" to his wife's infidelity. 4 Petitioners then filed their respective motions praying for the dismissal or for the granting of new trial of the case claiming a basis for their motions Dr. Neri's manifestation. The Solicitor General was then asked to comment on the manifestation; hi comment was filed with this Court on 18 October 1991. 5 In October 1991, the consolidated cases were, again in accordance with long-standing practice of the Court, assigned to the First Division upon the assignment of the ponente to that division. On 4 November 1991, the consolidated cases were re deliberated upon by the members of the First Division who reached the same conclusion as the members of the Third Division of the Court. In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the following contentions: 1. Dr. Neri's affidavit of desistance which states that the case was filed out of "pure misunderstanding' raises questions as to the truth of the alleged admission made by Mrs. Neri; 2. The other prosecution witnesses' corroborative testimonies merely proved the existence of an illicit affair but not that adultery was committed on the date and place in question; 3. Mrs. Neri's separate petition for review raised the issue of Dr. Neri's alleged subsequent marriage to another woman which, if proven would preclude either of the spouses from filing charges of adultery or concubinage against each other. In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Appeals:

1. The Honorable Court of Appeals gravely erred in not granting the motion for reconsideration and/or new trial of the petitioner; 2. The Honorable Court of Appeals gravely erred by violating the constitutional rights of petitioner against self-incrimination; 3. The Honorable Court of Appeals erred in failing to take into consideration the material inconsistencies of the testimony of the complaining witness; and
4. The Honorable Court of Appeals gravely erred in discarding medical testimony as to the physical impossibility of the petitioner to have committed the crime charged. 6

The issues in the consolidated cases may be summarized as follows: 1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast reasonable doubts on his credibility; 2. Whether or not Mrs. Neri's constitutional right against self-incrimination had been violated; 3. Whether or not Dr. Neri's alleged extra-marital affair precludes him from filing the criminal complaint on the ground of pari delicto; and 4. Whether or not Dr. Neri's manifestation is sufficient basis for the granting of a new trial. Deliberating on the: 1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner Arroyo has failed to show any ground that would warrant the Court reversing its Resolution dated 24 April 1991; and on the 2. Petition for Review docketed as G.R. No. 96715, the Court considers that petitioner Ruby Vera Neri has failed to show reversible error on the part of the Court of Appeals in issuing its Decision dated 21 May 1990 and its Resolution, dated 18 December 1990. Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the criminal case on the basis of Dr. Neri's pardon. He, together with petitioner Neri, now cites the same affidavit in the effort to cast doubts on the credibility of Dr. Neri's testimony given before the trial court. However, in the Court's Resolution, dated 24 April 1991, dismissing the Petition for certiorari in G.R. No. 96602, the Court held that: It has been our constant holding that: In certiorari proceedings under Rule 45, the findings of fact of the lower court as well itsconclusions on credibility of witnesses are generally not disturbed, the question before the court being limited to questions of law (Rule 45, Sec. 2). Specifically, the conclusions of the trial court on the credibility of witnesses are given considerable weight, since said court is in the best position to observe the demeanor, conduct and attitude of witnesses at the

trial. (Aguirre v. People, 155 SCRA 337 [1987]; emphasis supplied)

Thus, the claim that Dr. Neri's testimony is incredible is unavailing at this stage. Besides, the Court does not believe that such an admission by an unfaithful wife was inherently improbable or impossible. 7 (Emphasis supplied)

The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim that Mrs. Neri's constitutional right against self-incrimination had been disregarded when her admission to her husband in the privacy of their conjugal home that she had indeed lain with petitioner Arroyo was taken into account by the trial court, to wit: Dr. Jorge Neri was also presented as a witness and he testified that sometime in December of 1982, he surprised his wife while she was looking at some photographs in their bedroom in their house in Dasmarias Village, Makati. Accused Ruby Vera Neri then turned pale and started for the door. Struck by this unusual behavior, Dr. Neri started looking around the dressing room and he came upon a Kodak envelope with film negatives inside. He took the negatives for printing and a few days later, armed with the photographs which showed his wife in intimate bedroom poses with another man, confronted Ruby Vera Neri. It was at this point that Ruby Vera Neri admitted to her husband that Eduardo Arroyo was her lover and that they went to bed in Baguio on 2 and 3 November 1982. xxx xxx xxx As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA 642 [1988]) that: The right to counsel attaches upon the start of an investigation, i.e., when theinvestigating officer starts to ask questions to elicit information and/or confession or admissions from respondent-accused.(emphasis supplied) In the present case, Dr. Neri was not a peace officer nor an investigating officer conducting a custodial interrogation, hence, petitioner cannot now claim that Mrs. Neri's admission should have been rejected. In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held: The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him. The rule is that any person, otherwise competent as witness, who heard the confession, is competent to testify as to substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance. Compliance with the constitutional procedures on custodial investigation is not applicable to a spontaneous

statement, not elicited through questioning, but given in an ordinary manner, whereby the accused orally admitted having slain the victim. We also note that the husband is not precluded under the Rules of Court from testifying against his wife in criminal cases for a crime committed by one against the other (Section 22, Rule 129, Revised Rules of Court). In short, the trial court and the Court of Appeals did not err in admitting Dr. Neri's testimony as he was a competent witness. Neither was said testimony rendered inadmissible by the constitutional provision on the right to remain silent and the right to counsel of a "person under investigation for the commission of an offense." Petitioner next claims that the trial court erred in convicting him on the basis of the failure of Ruby Vera Neri to take the witness stand. In People v. Gargoles (83 SCRA 282 [1978]), it was held that: We have held that an accused has the right to decline to testify at the trial without having any inference of guilt drawn from his failure to go on the witness stand. Thus, a verdict of conviction on the basis, solely or mainly, of the failure or refusal of the accused to take the witness stand to deny the charges against him is a judicial heresy which cannot be countenanced. Invariably, any such verdict deserves to be reserved. Such situation does not obtain, however, in the case at bar. For while the trial court took note of the failure of defendant to take the witness stand to deny the charge against him,the same was not the main reason, much less the sole basis, of the trial court in holding, as credible the testimony of complainant, and in ultimately concluding that the crime of rape had been committed by the accused-appellant. (Emphasis supplied)
Examination of the trial court decision here shows that said failure to testify was not the sole nor the main basis of the conviction. Aside from accused's failure to deny Dr. Neri's testimony, the trial court also considered the testimonies of Dr. Neri and other prosecution witnesses and the photographs of the two accused in intimate poses (and three of which showed them half naked in bed). 8 (Emphasis supplied)

We turn to the contention that pari-delicto "is a valid defense to a prosecution for adultery and concubinage and that in such a case "it would be only a hypocritical pretense for such spouse to appear in court as the offended spouse." 9 In the first place, the case cited does not support petitioner Neri's position. In the Guinucud case, the Court found that the complaining husband, by entering into an agreement with his wife that each of them were to live separately and could marry other persons and by filing complaint only about a year after discovering his wife's infidelity, had "consented to, and acquiesced in, the adulterous relations existing between the accused, and he is, therefore, not authorized by law to institute the criminal proceedings." In fine, the Guinucud case refers not to the notion of pari delicto but to consent as a bar to the institution of the criminal proceedings. In the present case, no such acquiescence can be implied: the accused did not enter into any agreement with Dr. Neri allowing each

other to marry or cohabit with other persons; and Dr. Neri promptly filed his complaint after discovering the illicit affair. Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only in Article 1411 of the Civil Code. The Court notes that Article 1411 of the Civil Code relates only to contracts with illegal consideration. 10 The case at bar does not involve any illegal contract which either of the contracting parties is now seeking to enforce. Petitioners also contend that Dr. Neri's manifestation which reads: 2. Even before I filed the complaint in court and before the pardon that I had extended to my wife and her co-accused, I was in reality aware of what was going on between and therefore, tacitly consented to my wife's infidelity, ... should result in the dismissal of the case or, at the very least, in the remand of the case for new trial claiming that in People v. Camara 11 it was held that "the consent of the spouse is valid defense to a prosecution for adultery and/or concubinage." 12 Dr. Neri's manifestation amounts in effect to an attempted recantation of testimony given by him before the trial court. It is settled that not all recantations by witnesses should result in the granting of a new trial. 13 In People v. Follantes and Jacinto, 14 it was held that:
... [R]ecantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Moreover,recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. ... 15 (Emphasis supplied)

Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated recantation. Dr. Neri had two (2) previous occasions to make the claim contained in his manifestation: first, in the compromise agreement 16dated 16 February 1989 submitted before the Regional Trial Court of Makati, Branch 149 in relation to Civil Case No. M-001; and second, his affidavit 17 dated 23 November 1988 submitted to the Court of Appeals. Instead, however, these two (2) documents merely stated that Dr. Neri had pardoned petitioners 18 and the complaint was filed out of "pure misunderstanding" 19 without hinting that Dr. Neri knew of the adulterous relations. It appears to the Court that Dr. Neri's manifestation was so worded as to attempt to cure the deficiency noted by the Court in the two (2) previous documents in the disposition of the petition in G.R. No. 96602:
Petitioner will find no solace in the cases he cites, in support of his prayer to dismiss the case based on Dr. Neri's pardon. People v. Camara (100 Phil. 1098 (1957) is inapplicable as the affidavit there expressly stated that the wife had consented to the illicit relationship. In Gomez v. Intermediate Appellate Court (135 SCRA 620 [1985]) a case involving estafa, the criminal case was dismissed as the affidavit of desistance specifically stated that the accused had nothing to do whatsoever with the crime charged. In the present case, the pardon did not state that Dr. Neri had consented to the illicit relationship petitioner and Mrs. Neri. Neither did it state that the case was filed against the wrong parties. 20

Moreover, while the manifestation is dated 14 May 1991, which incidentally is also the date of petitioner Arroyo's motion for reconsideration, it was subscribed to only on 23 August 1991. Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the compromise agreement operate as a pardon meriting a new trial. The Court notes that the cases of People v. Camara (supra) and Gomez v. Intermediate Appellate Court (supra) were the very same cases which petitioner Arroyo cited in G.R. No. 96602 which the Court has already held to be inapplicable in the present case. The rule on pardon is found in Article 344 of the Revised Penal Code which provides: ART. 344. ... The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders. xxx xxx xxx While there is a conceptual difference between consent and pardon in the sense that consent is granted prior to the adulterous act while pardon is given after the illicit affair, 21 nevertheless, for either consent or pardon to benefit the accused, it must be given prior to the filing of a criminal complaint. 22 In the present case, the affidavit of desistance was executed only on 23 November 1988 while the compromise agreement was executed only on 16 February 1989, after the trial court had already rendered its decision dated 17 December 1987 finding petitioners guilty beyond reasonable doubt. Dr. Neri's manifestation is both dated and signed after issuance of our Resolution in G.R. No. 96602 on 24 April 1991. It should also be noted that while Article 344 of the Revise Penal Code provides that the crime of adultery cannot be prosecuted without the offended spouse's complaint, once the complaint has been filed, the control of the case passes to the public prosecutor. 23 Enforcement of our law on adultery is not exclusively, nor even principally, a matter of vindication of the private honor of the offended spouse; much less is it a matter merely of personal or social hypocrisy. Such enforcement relates, more importantly, to protection of the basic social institutions of marriage and the family in the preservation of which the State has the strongest interest; the public policy here involved is of the most fundamental kind. In Article II, Section 12 of the Constitution there is set forth the following basic state policy: The State recognizes the sanctity of family life and shall protect find strengthen the family as a basic autonomous social institution ... The same sentiment has been expressed in the Family Code o the Philippines in Article 149: The family, being the foundation of the ration, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. In U.S. v. Topio, 24 the Court held that:

... The husband being the head of the family and the only person who could institute the prosecution and control its effects, it is quite clear that the principal object in penalizing the offense by the state was to protect the purity of the family and the honor of the husband, but now the conduct of the prosecution, after it is once commenced by the husband, and the enforcement of the penalties imposed is also a matter of public policy in which the Government is vitally interested to the extent of preserving the public peace and providing for thegeneral welfare of the community. ... 25 (Emphasis supplied)

As to the claim that it was impossible for petitioner Neri to engage in sexual intercourse a month after her ceasarian operation, the Court agrees with the Solicitor General that this is a question of fact which cannot be raised at this stage. In any case, we find no reason to overturn the Court of Appeals' finding that "a woman who has the staying power to volley tennis bags for fifteen minutes at the [John Hay] tennis court would not be incapable of doing the sexual act" which ball play was followed, as noted by the Court of Appeals "by a picture taking of both accused in different intimate poses." 26 ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED for lack of merit and this denial is FINAL. The Petition for Review in G.R. No. 96715 is hereby similarly DENIED for lack of merit. Costs against petitioners. Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed on 23 August 1991 be forwarded to the Department of Justice for inquiry into the possible liability of Dr. Neri for perjury. Narvasa (Chairman), Cruz, Grio-Aquino and Medialdea, JJ., concur.

G.R. No. 157718

April 26, 2005

ALVIN AMPLOYO y EBALADA, Petitioner, vs. PEOPLE OF THE PHILIPPINES , Respondent. DECISION CHICO-NAZARIO, J.: This is a petition for review on certiorari assailing the Decision 1of the Court of Appeals which affirmed the Decision 2of the Regional Trial Court of Olongapo City , Branch 72, and its Resolution 3denying petitioner's motion for reconsideration. On 21 July 1997 , petitioner was charged with violation of Section 5(b), Article III of Republic Act No. 7610, in an Information worded as follows: That on or about the 27th day of June, 1997, and on dates prior thereto, at Brgy. Calapandayan, in the Municipality of Subic, Province of Zambales, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with lewd design, and by means of force, intimidation and threats, did then and there willfully, unlawfully and feloniously, commit acts of lascivious conduct with one Kristine Joy Mosquera, a minor of eight (8) years old, by then and there touching, mashing and playing her breast, against her will and consent, to the damage and prejudice of the latter. 4

Upon arraignment, petitioner pleaded 'NOT GUILTY. Trial on the merits ensued thereafter. The prosecution presented as witnesses (1) the complainant herself, Kristine Joy Mosquera; (2) complainant's mother, Gnelida Gallardo Mosquera; and (3) Department of Social Welfare and Development (DSWD) psychologist Lucrecia Cruz. Petitioner, on the other hand, waived his right to present evidence 5after his demurrer to evidence 6was denied by the trial court. 7 The facts, as appreciated by the trial court, are as follows: Kristine Joy Mosquera was eight years old on 27 June 1997 , 8having celebrated her eighth year the day before. A grade III student, she was walking to school (which was just a short distance from her house) at around seven oclock in the morning when she was met by petitioner who emerged from hiding from a nearby store. Petitioner and Kristine Joy were neighbors. Petitioner approached Kristine Joy, touched her head, placed his hand on her shoulder where it then moved down to touch her breast several times. Petitioner thereafter told Kristine Joy not to report to anybody what he did to her. This was not the first time that the incident happened as petitioner had done this several times in the past, even when Kristine Joy was still in Grade II. However, it was only during this last incident that Kristine Joy finally told somebody ' her grandmother, who immediately talked to Gnelida Mosquera, Kristine Joy's mother. Mrs. Mosquera conferred with Kristine Joy who said that petitioner would sometimes even insert his hand under her shirt to caress her breast. Mother and child then reported the matter to the barangay. From the barangay, the case was referred to the DSWD then to the Police Department of Subic, Zambales. On 07 November 1997, Kristine Joy was seen by a psychologist, witness Lucrecia Cruz, who reported that Kristine Joy was a victim of sexual abuse and was showing unusual behavior as a result thereof. Among other things, Ms. Cruz detected in the eight-year old child feelings of insecurity, anger, anxiety and depression. Guilt feelings were also noted. All in all, Kristine Joy appeared on the surface to be a child with normal behavior despite the experience, but on a deeper level, she developed a fear of going to school as petitioner might again be hiding in the store waiting for her. She was deeply bothered during the interview and even uttered ' Nahihiya ako sa mga magulang ko at uncle ko baka tuksuhin akong bobo na hindi ko agad sinabi. Kristine Joy continued going to school, but this time accompanied always by an adult relative. On 22 September 1999 , the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, in view of the foregoing considerations, the Court finds the accused Alvin Amployo GUILTY beyond reasonable doubt of the crime of Child Abuse defined under Section 5 (b) of Republic Act 7610 and hereby sentences him to Reclusion Temporal in its medium period or FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY TO SEVENTEEN (17) YEARS and to pay the costs. 9 The Court of Appeals, as adverted to earlier, affirmed the Decision of the trial court by dismissing petitioner's appeal for lack of merit. Upon motion for reconsideration, however, the Court of Appeals modified its ruling relative to the penalty imposed, thus: WHEREFORE, the motion for reconsideration is DENIED. However, the penalty is MODIFIED such that accused-appellant is sentenced to imprisonment of twelve (12)

years and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum. 10 Hence, the instant petition, the following issues having been presented for resolution: I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING HEREIN PETITIONER OF ACTS OF LASCIVIOUSNESS IN RELATION TO SEC. (5) ARTICLE III OF RA NO. 7610 DESPITE THAT THE FACTUAL MILIEU NEGATES THE SAME II. WHETHER THE ALLEGED ACT OF HEREIN PETITIONER CONSTITUTES ACTS OF LASCIVIOUSNESS AS PENALIZED UNDER SEC (5) ARTICLE III OF RA NO. 7610 The first issue basically questions the sufficiency of the evidence adduced to prove acts of lasciviousness under Article 336 of the Revised Penal Code (RPC). According to petitioner, the prosecution failed to prove beyond reasonable doubt all the elements of said crime, particularly the element of lewd design. On the second issue, petitioner contends that even assuming that the acts imputed to him amount to lascivious conduct, the resultant crime is only acts of lasciviousness under Article 336 of the RPC and not child abuse under Section 5(b) of Rep. Act No. 7610 as the elements thereof have not been proved. Rep. Act No. 7610, the 'Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act, defines sexual abuse of children and prescribes the penalty therefor in its Article III, Section 5: SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following; (a) . . . (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape andArticle 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; . . . Thus, pursuant to the foregoing provision, before an accused can be convicted of child abuse through lascivious conduct on a minor below 12 years of age, the requisites for acts of lasciviousness under Article 336 of the RPC must be met in addition to the requisites for sexual abuse under Section 5 of Rep. Act No. 7610.

First Issue: Article 336 of the RPC on Acts of Lasciviousness has for its elements the following: (1) That the offender commits any act of lasciviousness or lewdness; (2) That it is done under any of the following circumstances: a. By using force or intimidation; or b. When the offended party is deprived of reason or otherwise unconscious; or c. When the offended party is under 12 years of age; and (3) That the offended party is another person of either sex.
11

The presence of the second element is not in dispute, that is, Kristine Joy was below 12 years old on the material date set in the information. It is the presence of the first element which petitioner challenges, claiming that lewd design has not been proved beyond reasonable doubt. The term 'lewd is commonly defined as something indecent or obscene; 12it is characterized by or intended to excite crude sexual desire. 13That an accused is entertaining a lewd or unchaste design is necessarily a mental process the existence of which can be inferred by overt acts carrying out such intention, i.e., by conduct that can only be interpreted as lewd or lascivious. The presence or absence of lewd designs is inferred from the nature of the acts themselves and the environmental circumstances. 14What is or what is not lewd conduct, by its very nature, cannot be pigeonholed into a precise definition. As early as U.S. v. Gomez 15we had already lamented that ' It would be somewhat difficult to lay down any rule specifically establishing just what conduct makes one amenable to the provisions of article 439 16of the Penal Code. What constitutes lewd or lascivious conduct must be determined from the circumstances of each case. It may be quite easy to determine in a particular case that certain acts are lewd and lascivious, and it may be extremely difficult in another case to say just where the line of demarcation lies between such conduct and the amorous advances of an ardent lover. In herein case, petitioner argues that lewd design cannot be inferred from his conduct firstly because the alleged act occurred at around seven oclock in the morning, in a street very near the school where people abound, thus, he could not have been prompted by lewd design as his hand merely slipped and accidentally touched Kristine Joy's breast. Furthermore, he could not have been motivated by lewd design as the breast of an eight year old is still very much undeveloped, which means to say there was nothing to entice him in the first place. Finally, assuming that he indeed intentionally touch Kristine Joy's breast, it was merely to satisfy a silly whim following a Court of Appeals ruling. 17 Petitioner's arguments crumble under the weight of overwhelming evidence against him. Well-settled is the rule that factual findings of the trial court, particularly when affirmed by the Court of Appeals, are binding on this Court barring arbitrariness and oversight of some fact or circumstance of weight and substance 18for which there are none in this case. Besides, Kristine Joy's testimony is indeed worthy of full faith and credence as there is no proof that she was motivated to falsely accuse petitioner. Thus, we stress

anew that no young and decent girl like Kristine Joy would fabricate a story of sexual abuse, subject herself to medical examination and undergo public trial, with concomitant ridicule and humiliation, if she is not impelled by a sincere desire to put behind bars the person who assaulted her. 19 Clearly then, petitioner cannot take refuge in his version of the story as he has conveniently left out details which indubitably prove the presence of lewd design. It would have been easy to entertain the possibility that what happened was merely an accident if it only happened once. Such is not the case, however, as the very same petitioner did the very same act to the very same victim in the past. 20Moreover, the incident could never be labeled as accidental as petitioner's hand did not just slip from Kristine Joy's shoulder to her breast as there were times when he would touch her breast from under her shirt. 21Finally, the theory that what happened was accidental is belied by petitioner having threatened Kristine Joy to keep silent and not tell on him. 22 As to petitioner's argument that human experience negates the presence of lewd design as Kristine Joy had no developed breasts with which to entice him, suffice it to say that on the contrary, human experience has taught us painfully well that sexual misconduct defies categorization and what might be an unusual, unlikely or impossible sexual conduct for most might very well be the norm for some. Finally, we dismiss for being atrocious the proposition that petitioner was not compelled by lewd design as he was merely satisfying a 'silly whim. Terrifying an eight-year old school girl, taking advantage of her tender age with his sheer size, invading her privacy and intimidating her into silence, in our book, can never be in satisfaction of a mere silly whim. Second Issue: Petitioner contends that assuming he is guilty of lascivious conduct, still he can only be convicted under the RPC since his conduct does not amount to sexual abuse as defined under Section 5(b), Article III of Rep. Act No. 7610. The elements of sexual abuse under Section 5, Article III of Rep. Act No. 7610 that must be proven in addition to the elements of acts of lasciviousness are the following: (1) The accused commits the act of sexual intercourse or lascivious conduct; (2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) The child, whether male or female, is below 18 years of age.
23

The first element obtains. Section 32, Article XIII of the Implementing Rules and Regulations of Rep. Act No. 7610 defines lascivious conduct as follows: (T)he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person. (Emphasis supplied) Undoubtedly, based on the foregoing definition, petitioner's act of purposely touching Kristine Joy's breasts (sometimes under her shirt) amounts to lascivious conduct.

The second element is likewise present. As we observed in People v. Larin, 24Section 5 of Rep. Act No. 7610 does not merely cover a situation of a child being abused for profit, but also one in which a child engages in any lascivious conduct through coercion or intimidation. As case law has it, intimidation need not necessarily be irresistible. 25It is sufficient that some compulsion equivalent to intimidation annuls or subdues the free exercise of the will of the offended party. 26This is especially true in the case of young, innocent and immature girls who could not be expected to act with equanimity of disposition and with nerves of steel. 27Young girls cannot be expected to act like adults under the same circumstances or to have the courage and intelligence to disregard the threat. 28
1wphi1

In this case, it is not hard to imagine eight-year old Kristine Joy being intimidated by her neighbor, a full grown adult male, who constantly accosted her while she was alone and on her way to school and who consistently ordered her not to report what he had been doing to her. That this child was cowed into silence and submission and was traumatized in the process is reflected in the psychological report 29made by the DSWD psychologist, Lucrecia Cruz, the latter stating that: BEHAVIOR OBSERVATION: Subject appeared kemp, fair complexion, attractive, wearing white T-shirt and maong short pants. She [was] observed to be cooperative, attentive and expressive. In an interview, subject disclosed that since she was in Grade II a certain Alvin Amployo a.k.a. Tikboy who (sic) sexually molested her. She narrated that her private part was fondled for many times. The incident happened every time she went to school in the morning, noontime and in the afternoon. The abuser hide (sic) along the store way to school. Then she was threatened not to reveal to anybody especially to her parents. TEST RESULT AND INTERPRETATION: Test result revealed that subject manifest anger as she quoted 'gusto ko makulong si Tikboy ng matagal. Indicate strong fear, anxiety, poor concentration, nightmare, shame and auditory hallucination. Implies low self-esteem as she quoted ' madumi na ang sarili ko, nahihiya ako sa magulang ko at Uncle ko baka tuksuhin akong bobo na hindi ko agad sinabi. Indicate that subject disturbed towards past as she quoted ' ang masidhing ala-ala ng aking kamusmusan ay yong panghihipo ni Tikboy . Thus, subject aiming that Tikboy be put to jail. CASE SUMMARY AND RECOMMENDATION: In summary, Kristine Joy Mosquera is a victim of sexual molestation committed by a certain Alvin Amployo or Tikboy. Subject was greatly affected psychologically and emotionally. Thus, subject manifest from (sic) anger, anxiety, poor concentration, nightmare, shame, auditory hallucination and low self-esteem. She is deeply depressed and suffer from traumatic sexualization. From psychotherapeutic point of view subject needs constant counseling to overcome her presented (sic) crisis. To assist the subject to ventilate her ambivalent feeling. To restore moral values, improve her self-esteem and enhance her emotional and social functioning. As to the third element, there is no dispute that Kristine Joy is a minor, as she was only eight years old at the time of the incident in question.

Finally, we note that no award for moral damages was made by both the trial court and the Court of Appeals despite the fact that the mental anguish suffered by Kristine Joy on account of her harrowing experience is spread all over the records of the case and has been well documented by the psychologist who examined her as reflected in her report quoted above. At the risk of being repetitive, proof of Kristine Joy's mental anguish, wounded feelings and social humiliation finds an express outlet in her words: ' madumi na ang sarili ko, nahihiya ako sa magulang ko at Uncle ko baka tuksuhin akong bobo na hindi ko agad sinabi and ' ang masidhing ala-ala ng aking kamusmusan ay yong panghihipo ni Tikboy. We therefore modify the ruling of the Court of Appeals by awarding moral damages to Kristine Joy in the amount of Twenty Thousand Pesos (P20,000.00) pursuant to Article 2219 of the Civil Code.30 Additionally, we find relevant to discuss here the case of People v. Solmoro 31wherein we declared that upon a finding of guilt of the accused for acts of lasciviousness, the amount of P30,000.00 as moral damages may be further awarded to the victim in the same way that moral damages are awarded to victims of rape even without need of proof because it is assumed that they suffered moral injury. Considering that the crime of acts of lasciviousness or abusos dishonestos is necessarily included in rape 32and both cases involve sexual assault albeit in different degrees, the rationale for foregoing with proof of moral damages in rape cases applies with equal force to crimes of acts of lasciviousness, the rationale being: One other cognate development in the case law on rape is applicable to the present disposition. The Court has also resolved that in crimes of rape, such as that under consideration, moral damages may additionally be awarded to the victim in the criminal proceeding, in such amount as the Court deems just, without the need for pleading or proof of the basis thereof as has heretofore been the practice. Indeed, the conventional requirement of allegata et probate in civil procedure and for essentially civil cases should be dispensed with in criminal prosecutions for rape with the civil aspect included therein, since no appropriate pleadings are filed wherein such allegations can be made. Corollarily, the fact that complainant has suffered the trauma of mental, physical and psychological sufferings which constitute the bases for moral damages are too obvious to still require the recital thereof at the trial by the victim, since the Court itself even assumes and acknowledges such agony on her part as a gauge of her credibility. What exists by necessary implication as being ineludibly present in the case need not go through the superfluity of still being proved through a testimonial charade. 33 It does not end there. In People v. Abadies, 34and with respect specifically to lascivious conduct amounting to child abuse under Section 5(b) of Rep. Act No. 7610, we imposed a fine of P30,000 for each count of lascivious conduct in addition to the award of moral damages on the justification that ' It will be noted that Section 5, Article II of Republic Act No. 7610 provides for the penalty of imprisonment. Nevertheless, Section 31(f), Article XII (Common Penal Provisions) thereof allows the imposition of a fine subject to the discretion of the court, provided that the same is to be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense. This provision is in accord with Article 39 of the Convention on the Rights of the Child, to which the Philippines became a party on August 21, 1990, which stresses the duty of states parties to ensure the physical and psychological recovery and social reintegration of abused and exploited children in an environment which fosters their self-respect and human dignity. With the case of Abadies as guidepost, we impose a fine of Fifteen Thousand Pesos (P15,000.00) on petitioner.

WHEREFORE, premises considered, the Resolution of the Court of Appeals modifying the Decision of the Regional Trial Court of Olongapo City, Branch 72, finding accusedpetitioner ALVIN AMPLOYO y EBALADA alias 'TIKBOY guilty beyond reasonable doubt of violation of Republic Act No. 7610, and sentencing him to suffer the penalty of twelve (12) years and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum is AFFIRMED with the MODIFICATION that petitioner is hereby ordered to pay a fine of Fifteen Thousand Pesos (P15,000.00) and moral damages in the amount of Twenty Thousand Pesos (P20,000.00). No costs. SO ORDERED.

G.R. No. 130709

March 6, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARIANITO MONTERON Y PANTORAS, accused-appellant. YNARES-SANTIAGO, J.: This is an appeal from the decision1 of the Regional Trial Court of Davao City, Branch 15, dated May 28, 1997 in Criminal Cases Nos. 36,564-96, convicting accused-appellant Marianito Monteron of the crime of rape. The dispositive portion of the appealed decision reads: WHEREFORE, the prosecution having proven the guilt of the accused beyond reasonable doubt, Marianito Monteron is hereby sentenced to reclusion perpetua and to indemnify Mary Ann Martenez the sum of Fifty Thousand Pesos (P50,000.00).1 The factual antecedents are as follows: On March 7, 1996, at 12:10 p.m., fifteen year-old Mary Ann Martenez was walking home from Wangan National Agricultural School, Davao City. While she was walking on a secluded portion of the road, Mary Ann was hit on the head by a slingshot. She turned to see where the stone came from, she was hit again on the mouth. She fell down unconscious.2 When Mary Ann came to, she found herself lying on the grass naked. Accused-appellant was lying on top of her, also naked. She struggled but accused-appellant, who was stronger, restrained her.3 He placed his penis on top of her vagina, which caused her to feel pain. She frantically grabbed his erect penis and pushed it away from her. This caused accused-appellant to stand up in pain. Mary Ann ran towards the road while putting on her clothes. Mary Anns cousin, Arnel Arat, witnessed the whole incident as he was then walking to Wangan Agricultural School. He met Mary Ann while the latter was running away and brought her home. When they got home, Mary Ann told her uncle what happened. Her uncle, in turn, told her mother. That afternoon, upon complaint of Mary Ann, the Calinan Police Precinct arrested accused-appellant.

The following morning, Mary Ann was brought to the City Health Office of Davao City where she was examined by Dr. Danilo P. Ledesma. The latter found that Mary Anns hymen was intact and had no laceration, but her labia minora was coaptated and her labia majora was gaping.4 On March 12, 1996, accused-appellant was formally charged with rape. At his arraignment, accused-appellant entered a plea of not guilty. 5 After trial, the lower court convicted him of the crime of rape. Accused-appellant is now before us on appeal on a lone assigned error: DUE TO REASONABLE DOUBT, THE REGIONAL TRIAL COURT IN DAVAO CITY, BRANCH 15 HAS COMMITED AN ERROR IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE CRIME CHARGED IN THE INFORMATION. 6 Accused-appellant argues that his negative plea to the information filed against him; his filing of the notice of appeal; and his denial of the rape charge against him during trial indicate his innocence.7 We are not persuaded. Constitutional due process demands that the accused in a criminal case should be informed of the nature and cause of the accusation against him. The rationale behind this constitutional guarantee are: First, to furnish the accused with the description of the charge against him as will enable him to make his defense; second, to avail himself of his conviction or acquittal, for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. 8 In fulfillment of the aforesaid constitutional guarantee, Rule 116, Section 1 (a) of the Rules of Court mandates that an accused be arraigned in open court and asked to enter a plea of guilty or not guilty of the crime charged. The purpose of arraignment is, thus, to apprise the accused of the possible loss of freedom, even of his life, depending on the nature of the crime imputed to him, or at the very least to inform him of why the prosecuting arm of the State is mobilized against him. 9 Consequently, when accusedappellant entered a negative plea during his arraignment, the same was not binding on the court as an indication of his innocence. Rather, it is a general denial of the charges impugned against him and an exercise of his right to be heard of his plea. Neither is accused-appellants filing of a notice of appeal 10 indicative of his innocence. On the contrary, accused-appellants appeal was necessitated by the judgment of conviction rendered against him by the trial court. At the very least, the judgment below constituted a preliminary finding of accused-appellants guilt. On the whole, accused-appellant denies having abused and raped Mary Ann. Timetested is the rule that between the positive assertions of prosecution witnesses and the negative averments of the accused, the former undisputedly deserves more credence and entitled to greater evidentiary weight.11 Moreover, positive identification of the accused by prosecution witnesses as to his participation in the crime cannot be overcome by his denial of participation. 12 In the case at bar, Mary Ann Martenez positively identified accused-appellant as her molester in this wise: Q: Did you see the person who hit you with a sling shot?

A: Q:

Yes, sir. Whom did you see?

A: (Witness pointing to a person wearing maong pants, white T-shirt and when asked his name he answered that he is Marianito Monteron.) Q: What happened next?

A: I lost consciousness and when I regained consciousness, I was surprised because I was already at the grassy area. Q: A: Q: A: Q: A: Q: This person that you saw who hit you with a sling shot, do you know him? Yes, sir. Why do you know him? Because he is my neighbor, sir. How long? Very long time, sir. What happened when you were brought to the grassy place?

A: When I regained my consciousness I was already stripped naked and he was on top of me. Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: What was he doing? His penis was on top of my vagina, sir. What else happened? I felt pain in my vagina. What did you do? I grabbed his penis and so he felt pain and stood up. You said earlier that you saw the person who hit you with a sling shot? Yes, sir. You recognized him? Yes, sir. You saw a person on top of you later on the grassy place? Yes, sir.

Q: A:

Who is this person that you saw in the grassy place? The same person, sir.

(Witness pointing to Mr. Monteron the accused). (Emphasis provided)13 Mary Anns testimony pointing to accused-appellant as the author of the crime is corroborated by her cousin Arnel Arat, viz: Q: What did you see?

A: (Witness pointing to a person wearing a white T-shirt) I saw Marianito Monteron, the accused. Q: A: Q: A: Q: A: Did you recognize him that time? Yes, sir. Why do you know him? Because we played basketball together. What was he doing that time? He was on top of Mary Ann. (Emphasis provided)14

It is axiomatic that negative assertions cannot prevail over the positive testimonies of credible witnesses.15 Thus, the accused-appellants denial, not being substantiated by clear and convincing evidence, is negative and self-serving evidence bearing no weight in law.16 Moreover, the defense of denial is inherently weak and has always been viewed with disfavor by the courts due to the facility with which they can be concocted. 17 Accused-appellant challenges the testimony of Arnel Arat, saying that he was a biased witness because he is Mary Anns cousin.18 It is a basic precept that relationship per se of a witness with the victim does not necessarily mean that he is biased. 19 On the contrary, relatives have more interest in telling the truth for they want the real culprits to be meted their punishment.20 To be sure, there is no law disqualifying a person from testifying in a criminal case in which his relative is involved if the former was at the scene of the crime and witnessed the execution of the crime. 21 Thus, the relationship of Arnel Arat to Mary Ann does not impair the credibility of his testimony, especially so when the same was given in a clear, convincing and straightforward manner. Accused-appellant further posits that Mary Anns charge against him was prompted by illwill or grudge harbored by the Martenez family against the Monterons. More specifically, accused-appellant narrated that his father and Mary Anns father quarreled in a cockpit.22 This, however, cannot be considered as a motive strong enough to falsely accuse accused-appellant of so grave a crime as rape. Not a few accused in rape cases have attributed the charges brought against them to family feud, resentment, or revenge. But such alleged motives have never swayed this Court from lending full credence to the testimony of the complainant where she remains steadfast in her direct and cross examination.23 Besides, no parent would expose his or her own daughter to the shame and scandal of having undergone such debasing defilement of her chastity if the charges

were not true.24 It is unnatural for a parent to use his own offspring as an engine of malice, especially if it will subject a daughter to embarrassment and even stigma. 25 Accused-appellant also contends that it was unlikely for him to strip naked and commit rape in broad daylight.26 In this connection, suffice it to say that lust is no respecter of time and place. It is known to happen in the most unlikely places such as parks, along roadsides, within school premises or even occupied rooms. 27 Rape has also been committed on a passageway and at noontime. 28 While accused-appellant is guilty of rape, the same was committed only in its attempted stage. Mary Ann clearly testified that accused-appellant only placed his penis on top of her vagina. In fact, she was able to grab it and push it away from her, causing accusedappellant to stand up. The pain she felt may have been caused by accused-appellants attempts to insert his organ into hers. However, the fact remains, based on Mary Anns own narrative, that accused-appellants penis was merely on top of her vagina and has not actually entered the same. Accused-appellant has commenced the commission of the rape directly by overt acts, i.e., that of undressing himself and the victim and lying on top of her, but he did not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. In the case at bar, it was Mary Anns violent resistance which prevented the insertion of accused-appellants penis in her vagina. The foregoing conclusion is supported by the medical findings of Dr. Danilo P. Ledesma that Mary Anns hymen was intact and had no laceration. 29 In People v. Campuhan,30 we held that the labia majora of the victim must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of eitherlabia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.31 Consummated rape is punishable by reclusion perpetua.32 For attempted rape, the penalty two degrees lower shall be imposed, 33 i.e., prision mayor. During his direct examination, accused-appellant testified that he was born on December 3, 1979.34Consequently, when the crime was committed on March 7, 1996, accusedappellant was only seventeen years old. We have held that the claim of minority by an accused will be upheld by the court even without any proof to corroborate his testimony, especially so when coupled by the fact that prosecution failed to present contradictory evidence thereto.35 Therefore, considering the privileged mitigating circumstance of minority, the penalty to be imposed on accused-appellant should be lowered by one more degree, 36 i.e., prision correccional. There being no more aggravating or mitigating circumstances, the same shall be imposed in its medium period. Applying the Indeterminate Sentence Law, the penalty to be imposed should be four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. The trial court correctly ordered accused-appellant to indemnify the victim, Mary Ann Martenez, in the amount of P50,000.00. Moral damages may also be awarded without necessity for pleading or proof thereof. In cases of attempted rape, the amount of moral damages is P25,000.00.37

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Davao City, Branch 15, in Criminal Case No. 36,564-96, is MODIFIED. Accused-appellant Marianito Monteron y Pantoras is found guilty beyond reasonable doubt of the crime of Attempted Rape and is sentenced to an indeterminate penalty of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. Further, accused-appellant is ordered to pay the victim, Mary Ann Martenez, the sums of P50,000.00 as civil indemnity and P25,000.00 as moral damages. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Puno, and Kapunan, JJ., concur.

G.R. No. 141647-51

March 6, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SAILITO PEREZ Y GAZO, accused-appellant. VITUG, J.: Of the many cases that bewail the Court, rape, in its varying facets, lately appears to lurk almost everywhere threatening the very fiber of the social psyche of a supposed civilized society. Sailito Perez y Gazo was charged with five counts of statutory rape in separate Informations; viz: CRIMINAL CASE NO. 19117 "That on or about the 23rd day of January, 1998, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused being the uncle of Jobelyn Ramos y Denola, a minor of 11 years of age, with lewd design, and exercising ascendancy over said Jobelyn Ramos y Denola and by means of force, violence and intimidation, wilfully, unlawfully and feloniously, did then and there have sexual intercourse with Jobelyn Ramos y Denola against her will and without her consent." 1 CRIMINAL CASE NO. 19118 "That on or about the 13th day of January, 1998, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused being the uncle of Jobelyn Ramos y Denola, a minor of 11 years of age, with lewd design, and exercising ascendancy over said Jobelyn Ramos y Denola and by means of force, violence and intimidation, wilfully, unlawfully and feloniously, did then and there have sexual intercourse with Jobelyn Ramos y Denola against her will and without her consent." 2 CRIMINAL CASE NO. 19119

"That on or about the 3rd day of February, 1998, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused being the uncle of Jobelyn Ramos y Denola, a minor of 11 years of age, with lewd design, and exercising ascendancy over said Jobelyn Ramos y Denola and by means of force, violence and intimidation, wilfully, unlawfully and feloniously, did then and there have sexual intercourse with Jobelyn Ramos y Denola against her will and without her consent." 3 CRIMINAL CASE NO. 19120 "That on or about the 31st day of January, 1998, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused being the uncle of Jobelyn Ramos y Denola, a minor of 11 years of age, with lewd design, and exercising ascendancy over said Jobelyn Ramos y Denola and by means of force, violence and intimidation, wilfully, unlawfully and feloniously, did then and there have sexual intercourse with Jobelyn Ramos y Denola against her will and without her consent." 4 CRIMINAL CASE NO. 19121 "That on or about the 27th day of January, 1998, in the Municipality of Malabon, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused being the uncle of JOBELYN RAMOS Y DENOLA, a minor of 11 years of age, with lewd design, and exercising ascendancy over said Jobelyn Ramos y Denola and by means of force, violence and intimidation, wilfully, unlawfully and feloniously, did then and there have sexual intercourse with Jobelyn Ramos y Denola against her will and without her consent." 5 At his arraignment, the accused pleaded NOT GUILTY to the accusations in all five Informations. The cases having arose from similar incidents involving the same complainant and the same accused, joint trials were held. The Version of the Prosecution On the night of 13 January 1998, Jobelyn Ramos, then eleven (11) years old, was with her four younger siblings sleeping in the sala of their house at Cancio Street, Dampalit, Malabon, Metro Manila. The accused, said to be an uncle of Jobelyn, entered the house, approached Jobelyn and unceremoniously pulled down her shorts and underwear. Followingly, the accused removed his shorts, pinned the girl down and "pressed" his penis against her vagina. Her struggles failed to dissuade the accused. He sucked her breast and attempted to penetrate Jobelyn. With his penis still touching Jobelyn's private part, he threatened to kill her family if she were to report the incident to anyone. In the early morning of 23 January 1998, Jobelyn was roused from slumber when she felt the accused caressing her hair. He covered her with a blanket upon seeing her awake. He pulled down her shorts and underwear and placed himself on top of her. He tried to force his penis into her but she struggled to forestall the assault. Amidst sobs, Jobelyn told the accused that she would report his abuses to her mother. He repeated his prior threat and, again, she was forced into silence. On 27 June 1998, Jobelyn once more saw the accused inside their house. She pretended to be asleep in the hope, although vainly, that the accused would not disturb her. Instead, the accused forced her to lie face-up but she remained still. Unperturbed, he inserted his penis into her anus after removing her shorts and underwear. She suffered excruciating pain.

On 31 January 1998, Jobelyn again sensed the presence of the accused in their house. She covered herself with a blanket with her face down on the floor. The accused told her to lie on her back. She refused and instead buried her face in her pillow while the accused was urging her to suck his penis which he claimed to be ambrosial. When Jobelyn did not yield to his insistence, he threw the blanket at her.
1wphi1.nt

On 03 February 1998, while Jobelyn was clearing their table after supper, the accused came up to her and felt her buttocks. Jobelyn begged him to leave her alone. The accused told her to sleep near the wall of her house but her younger sister protested. The accused ordered the siblings to sleep under his watchful eyes. When he thought that everyone else was asleep, he pinned down Jobelyn and again went on with his beastly deeds. After his penis touched the private organ of Jobelyn, he licked it before spitting on the slit of the bamboo floor. Loreto, the younger brother of Jobelyn, witnessed the incident. Eventually, their mother was informed of the horrible experience that Jobelyn had been going through. The Version of the Defense The accused interposed the defense of denial and imputed ill-motive on the part of Jobelyn's mother which had led to the filing of the criminal charges. The accused testified that during all the time that the incidents were allegedly taking place, he was plying a tricycle to earn his living. He would start from three o'clock in the afternoon, or sometimes at six o'clock in the early evening, and would only retire at around five or seven o'clock the following morning. He claimed that Jobelyn's mother, Babylyn Ramos, had been harboring a grudge against his family for not lending the amount of P1,800.00 that she had sought to borrow. Conrada G. Perez, mother of the accused, stated that her son, Sailito Perez, born on 17 September 1980 as so shown by his birth certificate, 6 was only seventeen (17) years old when the crimes charged were supposed to have been committed. Corroborating her son's declarations, she said that the accused was working to earn a living, plying a motorcycle, during the days and the hours when the incidents allegedly took place, and that the reason for the filing of the criminal complaints was her failure to lend Babylyn Ramos P1,800.00 which the latter had tried to borrow. The court a quo found for the prosecution, and it rendered judgment finding the accused in Criminal Cases No. 19117-MN, No. 19118-MN, and No. 19119-MN, guilty of the crime of Statutory Rape and, in Criminal Cases No. 19120-MN and No. 19121-MN, guilty of the offense of Acts of Lasciviousness. It adjudged: "WHEREFORE, premises considered, judgment is hereby rendered as follows: "1. In Criminal Case No. 19117-MN, the Court finds Sailito Perez y Gazo guilty beyond reasonable doubt of the crime of Statutory Rape, and appreciating the privileged mitigating circumstance of minority, hereby sentences him to suffer the penalty of reclusion perpetua; "2. In Criminal Case No. 19118-MN, the Court finds Sailito Perez y Gazo guilty beyond reasonable doubt of the crime of Statutory Rape, and appreciating the privileged mitigating circumstance of minority, hereby sentences him to suffer the penalty of reclusion perpetua; "3. In Criminal Case No. 19119-MN, the Court finds Sailito Perez y Gazo guilty beyond reasonable doubt of the crime of Statutory Rape, and appreciating the

privileged mitigating circumstance of minority, hereby sentences him to suffer the penalty of reclusion perpetua; "4. In Criminal Case No. 19120-MN, the Court finds Sailito Perez y Gazo guilty beyond reasonable doubt of the crime of Acts of Lasciviousness and appreciating the privileged mitigating circumstance of minority, hereby sentences him to suffer an indeterminate penalty of twelve (12) years and one (1) day, as minimum, to fourteen (14) years, eight (8) months and one (1) day, as maximum, both of reclusion temporal; and "5. In Criminal Case No. 19121-MN, the Court finds Sailito Perez y Gazo guilty beyond reasonable doubt of the crime of Acts of Lasciviousness and appreciating the privileged mitigating circumstance of minority, hereby sentences him to suffer an indeterminate penalty of twelve (12) years and one (1) day, as minimum, to fourteen (14) years, eight (8) months and one (1) day, as maximum, both of reclusion temporal. "Moreover, accused Perez is hereby ordered to pay the total amount of P225,000.00 by way of civil indemnity and P150,000.00 as moral damages to the victim Jobelyn Ramos y Denola in connection with Criminal Cases Nos. 19117MN, 19118-MN and 19119-MN, respectively."7 The convicted accused, in the Appellant's Brief, ascribed errors to the court a quo thusly: "I "THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE ON THE BASIS OF THE UNCORROBORATED TESTIMONY OF THE ALLEGED VICTIM. "II "THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED GUILTY FOR THE COMMISSION OF THE OFFENSE OF RAPE WHEN THE EVIDENCE ADDUCED TEND TO PROVE OTHERWISE. "III "THE COURT A QUO COMMITTED A REVERSIBLE ERROR IN NOT IMPOSING THE PROPER PENALTY FOR THE COMMISSION OF THE CRIME OF ACTS OF LASCIVIOUSNESS."8 In support of the first assigned error, appellant would argue that it was not right for the trial court to have heavily relied on the testimony of Jobelyn which he described to be incredible. He stressed that the medico-legal officer found no evident signs of extragenital physical injury on the person of Jobelyn. Anent the second assigned error, appellant would have it that the trial court, in Criminal Cases No. 19117-MN, No. 19118-MN, and No. 19119-MN, corresponding to the alleged sexual molestations on 23 January 1998, 13 January 1998, and 03 February 1998, respectively, clearly overlooked the fact that not a single act of penetration, even at the slightest degree, had occurred in all the said incidents. In the third assigned error, appellant questioned the various penalties imposed by the court below.

Here, once again, the Court must state that, in reviewing rape cases, it is guided by the settled principles (a) that an accusation of rape can be made with facility; it is difficult to prove but more difficult for the person accused, although innocent, to disprove; (2) that, in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant should be scrutinized with extreme caution; and (3) that the evidence for the prosecution must stand or fall on its own merits, and it cannot be allowed to draw strength from the weakness of the defense. 9 Expectedly, courts would closely examine the testimony of the complainant with the thought in mind that any judgment on the case would depend heavily on the credibility of the offended party. The time-honored doctrine, nevertheless, has always been that the assessment by the trial court on the credibility of the witness is accorded great weight unless there are strong reasons to warrant otherwise.10 The Court has closely examined the testimony of the complainant, and it finds nothing that can permit it to depart from the rule; indeed, just the opposite would appear to be true.
1wphi1.nt

In a straightforward and unflinching manner, Jobelyn narrated the incidents that had transpired. "Q What was that unusual incident which happened in your house on January 13, 1998? "A "Q "A "Q up? "A "Q "A Our uncle entered our house, sir. What happened next after your uncle entered your house? He took off my shorts and my panty and he pulled my dress up, sir. What did he do next after he removed your panty and raised your dress

He pinned me, sir (dinaganan ako). When he pinned you, was he in clothes or not? He has no more clothes, sir.

"Q Who was ahead in removing the clothes, was your clothes removed first or was it your uncle's? "A My dress was first removed before he took off his clothes, sir.

"Q You said he pinned you down, what else did he do to you when he pinned you down? "A He was pressing his organ to my organ and I was struggling, sir.

"Q What did you feel when your uncle was pushing his penis inside your vagina? "A I felt pain, sir.

"Atty. Delas Alas There was no statement that the penis of the accused penetrated the vagina. Her answer is, she was pinned down, Your Honor.

"Court Now that you heard the statement, what are you trying to explain, what is your point? "Pros. Aliposa There was penetration based on her answer `masakit', because there was already penetration, Your Honor. "Atty. Delas Alas He was trying to penetrate, Your Honor. "Court There is no basis on that. Strike out that answer. You reform the question. Proceed. "Atty. Aliposa (witness) "Q "A "Q "A "Q "A "Q "A "Q "A "Q "A Were you successful in your struggle? No, sir. Why? Because he is strong, sir. What happened when your struggle failed? I just cried, sir. What did he do while you were crying? None, he continued what he was doing, sir. What was he doing? He was on top of me, he was sucking my breast, sir. How about his penis, what was he doing with his penis? He was placing his penis in the face of my organ, sir.

"Q Do you know what happened to this act of accused while putting his penis in the opening of your vagina? "A No, sir.

"Court (witness) "Q [Did] the penis penetrate the vagina?

"A "Court

He was not able to penetrate, Your Honor.

Proceed. "Pros. Aliposa (witness) "Q "A How do you know it was his penis which was placed in your vagina? Because it was touching my organ, sir.

"Q While your uncle was trying to insert his penis into your vagina, what was he talking [about], if he was talking [about] something? "A He told me not to report what he was doing to me and in return, he told us he will kill us, sir. "Court (witness) This incident, in what particular place in your [house] did it happen? "A "Q "A In the sala, Your Honor, because there is no bedroom. There is no room in your house? None, Your Honor.

"Q So, your house is only one room. Your brothers and sister were there, correct? "A "Q "A "Q "A "Q "A "Q "A "Q "A Yes, Your Honor. What were they doing when your uncle was molesting you? They were sleeping, Your Honor. Who were they, who were they sleeping? Loreto, Junjun, Lorelyn and Mark Lawrence, Your Honor. How old is Loreto? Nine, Your Honor. Lorelyn? Seven, Your Honor. Mark? Five, Your Honor.

"Q "A "Q "A "Q "A "Court

How about your mother and father, where were they at that time? My parents are separated and my mother is working, Your Honor. Where was she working at that time? In Sta. Cruz, Your Honor. What was she doing at Sta. Cruz? Waitress, Your Honor.

Proceed. "Pros. Aliposa (witness) "Q This uncle you are referring to, if he is inside the courtroom, can you point to him? "A Yes, sir (witness pointed to a man wearing light yellow t-shirt who, when asked his name, answered Sailito Perez) "Q "A "Q "A "Q "A "Q "A "Q "A "Q "A "Q "A "Q This Sailito Perez, how do you call him being an uncle? Kuya Junjun, sir. Was this incident of January 13, 1998 repeated? Yes, sir. When was the next incident? Are you referring to January 23? January 23, sir. What time did the incident happen? Early in the morning, sir. Who was at the house at that time when your uncle was molesting you? I was there with my brothers and sister, sir. Where was your mother? She was at work, sir. What did your uncle do on January 23, 1998 in the morning? I was awakened and I saw him caressing my hair, sir. What else did he do on January 23, 1998?

"A When he saw me awake, he covered me with blanket and he took off my short and my panty and he went on top of me, sir. "Q "A "Q What did he do next when he went on top of you? He was forcing his penis to penetrate my organ, sir. What were you doing to prevent that advances?

"Atty. Delas Alas Objection, Your Honor. No basis. "Court Sustained. Pros. Aliposa (witness) "Q What did you do when your uncle was trying to insert his penis into your private part? "A "Q "A "Q "A "Q "A "Q I was struggling and I said I will report him to my mother, sir. What did he tell you? He told me not to try to report, otherwise, he will kill us, sir. Was this repeated by your uncle after January 23, 1998? Yes, sir. Are you referring to January 27, 1998? Yes, sir. What happened on January 27, 1998?

"A I was awakened and I saw there was [a] person inside our house, what I did was to lay upside down so that he will not notice I was awake, sir. "Q What happened next?

"A He forced me to lie with my face up but I forced myself to lie my face down. When he cannot force me to face up, he took off my panty and shorts and he inserted his penis in my anus, sir. "Q "A "Q Was he able to do that, to penetrate his penis into your anus? Yes, sir. What happened?

"A "Q "A "Q "A "Q

I cried because it was painful, sir. Was this repeated again, this molestation made by your uncle? Yes, sir. Are you referring to January 31, 1998? Yes, sir. What did he do on January 31, 1998?

"A I was awakened and I noticed our door opened. What I did was to cover myself with blanket so that he will not notice I was awake, sir. I covered myself with blanket and I was lying on my stomach on the floor but he forced me to lie on my back then when he was successful in doing so, I covered my face with a pillow but he was forcing me to suck his penis, sir. "Q "A "Q Were you able to suck his penis? No, sir. What did he do next when you refused to suck his penis?

"A He told me that the thing he was forcing me to do was delicious, I told him I don't like and when I refused, he threw the blanket to me, sir. "Q "A "Q "A "Q "A "Q What did he say? No more, sir. Was this repeated, this act done by your uncle? Yes, sir. Are you referring to February 3, 1998 incident? Yes, sir. What happened on February 3, 1998?

"A We have just eaten and when we were about to go to sleep because that was the order of the husband of Aling Boly, Jun Jun went inside our house and he was commanding us to sleep. My brother replied on the verge of sleeping, why was he commanding us to sleep. "Q What did your uncle do after that, after commanding you to sleep?

"A When my brothers and sister were already lying down to sleep, while I was fixing the table cleaning the table of scatter, my uncle went near me and he touched my buttock and I told him don't do that and he should better go home, sir. "Q What happened next?

"A He threw the blanket for me to sleep alone near the wall of our house but my sister [doesn't] want me to sleep in that place, so he transferred beside my sister to sleep. "Q What happened when you lay beside your sister to sleep?

"A Kuya Jun Jun told us to sleep and told us that he will watch us to sleep, then he lay beside me, sir. "Q "A "Q "A "Q "A What happened when your uncle lay beside you? He took off my shorts and my panty and he pinned me, sir. When he pinned you, was he still wearing pants, brief or shorts? No, sir. What did he do? He kissed my organ, sir.

"Atty. Delas Alas There was previous statement `inano niya' his organ to my organ, Your Honor. Before witness said he kissed her organ, witness is trying to say we are just questioning `inano niya yong ari niya sa ari ko' then he kissed and licked my vagina, Your Honor. "Pros. Aliposa (witness) "Q Let us make this clearer. When you said `inano' what do you mean by that? "A "Q "A He touched his penis into my organ, sir. What happened after he kissed and licked your organ? He spit on the hole of the bamboo, sir."11

The sole testimony of a rape victim in a rape case could be sufficient to sustain a conviction.12 The mere fact that it is not corroborated does not necessarily mean that it has been fabricated. No young woman, it is said, would weave a tale of sexual assaults to her person, open herself to examination of her private parts, and later be subjected to public trial if she were not, in fact, molested. It is neither highly improbable for such acts to be perpetrated in a crowded room. Lust is not known to be a respecter of time and place, and rape itself has been found to occur in places where people congregate. 13 There would appear to be merit, however, in the plea of appellant that, on the basis of the testimony of the victim, his conviction by the court a quo in Criminal Cases No. 19117, No. 19118, and No. 19119 could not rightly be that of consummated rape. In People vs. Campuhan,14 the Court ruled that Primo Campuhan, who was found by the trial court guilty of statutory rape and sentenced to the extreme penalty of death, could only be

liable for attempted rape. The Court there observed that no convincing proof was proffered by the prosecution that the penis of appellant Campuhan had slid into the female pudendum. Touching would simply mean epidermal contact, stroking or grazing of organs, or a slight brush or a scrape of the penis on the external layer of the victim's vagina or mons pubis. The penis should reach the pudendum or the female genital organ. For rape to be successfully prosecuted, the labia majora (the outer lips of the female organ) must be entered and not merely for the penis to stroke the surface of the female organ or touch the mons pubis (visible area of the female organ) of thepudendum. The labias, being located beneath the mons pubis, to touch them with the penis would be to attain some degree of penetration into the surface. It would only then be when the penis of the man had entered the labial threshold of the female organ that one might conclude that rape had been consummated. Accordingly, in the case now at bar, appellant should be held accountable, like in Campuhan, only for attempted rape. In Criminal Case No. 19120, the trial court correctly found appellant guilty of acts of lasciviousness. Appellant was shrouded with lust in trying, although unsuccessfully, to get the young girl to suck his penis. The elements of this crime are that: (a) the offender commits any act of lasciviousness or lewdness; (b) by using force or intimidation, or when the offended party is deprived of reason or otherwise unconscious, or the offended party is under 12 years of age. In acts of lasciviousness, the acts complained of are prompted by lust or lewd design where the victim has not encouraged such acts. In cases of acts of lasciviousness, the offender is deemed to have accomplished all the elements necessary for the existence of the felony once he has been able, by his overt acts, to actually achieve or attain his purpose. 15 In Criminal Case No. 19121, where appellant, forcing Jobelyn to lie face down, 16 inserted his penis into her anus, rape was committed consistently with Article 266-A of Republic Act No. 8353,17 also known as the Anti-Rape Law of 1997, viz: "ART. 266-A. Rape; When and How Committed. Rape is committed. "x x x xxx xxx

"2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person." The offense is punishable by prision mayor under Article 266-B of the same amendatory law; thus: "Art. 266-B. Penalties. x x x. Rape under paragraph 2 of the next preceding article shall be punished byprision mayor." Now, on the penalties that should be imposed. The crime of consummated simple rape, under Article 335 of the Revised Penal Code, carries the penalty of reclusion perpetua. Pursuant to Article 51 of the Revised Penal Code, the penalty to be imposed upon principals of an attempted crime shall be lowered from that prescribed by law for the consummated felony by two degrees, i.e., prision mayor or six (6) years and one (1) day to twelve (12) years. Minority, a privileged mitigating circumstance under Article 68, would still lower by one degree, i.e., prision correccional with a duration of six (6) months and one (1) day to six (6) years, the penalty that can be imposed. Applying the provisions of the Indeterminate Sentence Law, the penalty lower yet by another degree, i.e., arresto mayor with a duration of one (1) month and one (1) day to six (6) months, shall be the minimum term of the penalty. The offense of acts of lasciviousness, under Article 336 of

the same Code, is made punishable by prision correccional or from six (6) months and one (1) day to six (6) years. The privilege mitigating circumstance of minority would lower the penalty to arresto mayor which ranges from one (1) month and one (1) day to six (6) months. When it is the imposable penalty, its maximum not being at least one year, the Indeterminate Sentence Law would be inapplicable. In each of the crimes with which appellant has been charged and later convicted of, i.e., Criminal Cases No. 19117, No. 19118, No. 19119, No. 19120, and No. 19121, the victim is entitled to an award of P20,000.00 civil indemnity, ex delicto, plus P20,000.00 by way of moral damages being, under prevailing jurisprudence, considered to be innate suffering in crimes against chastity. WHEREFORE, the Court AFFIRMS with MODIFICATION the assailed decision of the court a quo thusly: 1. In Criminal Case No. 19117-MN, appellant is found guilty beyond reasonable doubt of the crime of rape in its attempted stage and, with the privileged mitigating circumstance of minority, he is sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional medium, as maximum. 2. In Criminal Case No. 19118-MN, appellant is found guilty beyond reasonable doubt of the crime of rape in its attempted stage and, with the privileged mitigating circumstance of minority, he is sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional medium, as maximum. 3. In Criminal Case No. 19119-MN, appellant is found guilty beyond reasonable doubt of the crime of rape in its attempted stage and, with the privileged mitigating circumstance of minority, he is sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional medium, as maximum 4. In Criminal Case No. 19120-MN, appellant is found guilty beyond reasonable doubt of the offense of lasciviousness and, with the privileged mitigating circumstance of minority, he is sentenced to suffer the penalty of three (3) months of arresto mayor. 5. In Criminal Case No. 19121-MN, appellant is found guilty beyond reasonable doubt of the crime of rape under Article 266-A, in relation to Article 266-B, paragraph (10), of Republic Act No. 8353 and, with the privileged mitigating circumstance of minority, he is sentenced to suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision correccional medium, as maximum. Appellant is likewise ordered to pay Jobelyn Ramos y Denola P20,000.00 civil indemnity and P20,000.00 moral damages for each offense or the amounts of P100,000.00 civil indemnity and P100,000.00 moral damages, or a grand total of P200,000.00, for all the above criminal convictions. Costs against appellant. SO ORDERED. Melo, Sandoval-Gutierrez, and Carpio, JJ., concur. Panganiban, concur in the result.

G.R. Nos. 135667-701

March 1, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESSIE VENTURA COLLADO, accused-appellant. BELLOSILLO, J.: TO TIE A CHILD of tender years spread-eagled to her bed to abuse her in the privacy of her home is despicable enough; to encroach on her innocence unashamedly in front of her younger brother is to descend to the deepest recesses of depravity. Thus the incorrigible lothario transgressed all norms of decency, morality and rectitude when he molested his nine (9)-year old victim in the presence of her six (6)-year old brother and severed all strands of gratefulness to her parents who gave him food, shelter and livelihood for four (4) years. Messeah is the daughter of Jose Noli Dumaoal, a seaman. His household was composed of his wife Julie, and their three (3) children, Reggie, Messeah and Metheor. The accused Jessie Ventura Collado, son of Jose Noli's cousin Benjamin, was living with them since 1989. While waiting for an opportunity to become a seaman himself like his uncle Jose, Jessie served as the family driver. Aside from driving Julie, Jessie would also drive the school service vehicle operated by the Dumaoal spouses. Since Jose was almost always at sea and having no househelp, their children were oftentimes left in the care of Jessie. But, instead of taking care of them as their surrogate father, he took advantage of Messeah by sexually molesting her at home, and worse, even in the presence of her younger brother. The first of four (4) unfortunate occasions was on 27 April 1993 when Julie and her oldest son Reggie went to Cubao. Messeah was resting in her bedroom upstairs when Jessie suddenly barged into her room. "What are you doing here?" she demanded, knowing fully well that he was not allowed upstairs without her parents' permission. Jessie simply smiled and said, "Wala," and added that her mother was not around to get mad at him. Then he left only to return after three (3) to five (5) minutes with a straw rope in hand. Messeah asked him why he was holding the rope, and Jessie told her to keep quiet and not to ask questions or else he would hurt her. Alarmed, Messeah rushed to the window and screamed for her brother Metheor, but Jessie reached out to cover her mouth with one hand while he closed the window with the other. She heard Metheor call out from downstairs, "What's going on?" but Jessie stopped her from answering. Hearing no response from Messeah upstairs, Metheor went up to her room and discovered that Jessie had tied Messeah's hands to the bed and was about to tie her feet down. Metheor asked, "What are you doing to my Ate?" Messeah screamed to her brother to call for help from the neighbors, but Jessie threatened to hurt him if he left the room. Jessie then moved the bed to block the way to the door. At some point, he also punched Messeah on her right cheek. Jessie then parted her legs and tied them apart, pulling down her garterized shorts and panties until her ankles. He tried forcing his penis into her vagina, but when he failed in his attempt, he inserted it into her anus instead. Messeah felt pain in her anus and something sticky "like paste" flowed out from his penis. Her vagina ached from Jessie's earlier attempt to defile her. She saw Jessie close his eyes as though he was enjoying himself. She cried out and Metheor, unable to bear what Jessie was doing to his sister, told the older man, "Let my Ate go," and boxed him futilely with his baby fists. Jessie punched Metheor in the stomach and the latter was rendered helpless by the pain. Jessie told Messeah to dress up and threatened to set them and their house on fire if they said anything.

When Julie and Reggie arrived home in the afternoon she noticed that Messeah's cheek was red. She asked her what was the matter, but Messeah saw Jessie listening close by and looking at her with dagger eyes, so she simply lied and told her mother that she hurt herself while playing. Metheor also gave their mother the same excuse. That night, although she knew that Jessie was no longer on the second floor where she and her family slept, she could not muster enough courage to tell her mother what happened because of Jessie's threats.2 Because of this incident, Messeah asked her mother to buy a lock for her bedroom door, but her mother passed the errand on to Jessie, who, predictably did not buy the lock. Messeah began to hate Jessie and asked her mother to find another driver without however telling her what he did, but her mother only told her that it would be difficult to find another one. That was not the end of Messeah's ordeal. On 5 June 1993 Julie and Reggie went to the Marikina public market, again leaving Messeah and Metheor alone with Jessie. Messeah was resting on the sofa while Metheor was in the garage when Jessie grabbed Messeah and dragged her upstairs. She screamed and Jessie tried to cover her mouth. She was crying as Jessie told her to take off her shorts and panties, took off his shorts, pressed her legs apart with his two (2) legs, and rubbed his penis against her thighs, until it touched her vagina. She told him to stop because she was hurting but he did not heed her plea. The intimate encounter went on for some ten (10) to fifteen (15) minutes. Metheor heard her screams for help, went upstairs and saw what Jessie was doing. He told Jessie to let his sister go, but Jessie merely ignored him. Metheor went downstairs and got a 7" to 8"-inch breadknife which had a narrow point at the end. Metheor again told Jessie to let his sister go, and threw the knife at Jessie's back. Jessie felt the knife hit his back that left a reddish mark, and let Messeah go. Before he left, he told the children that he would throw them into a volcano if they told anybody about what happened. 3 The third molestation happened on 7 July 1993. Again, only Metheor, Jessie and Messeah were at home. Metheor was upstairs sleeping while Messeah was resting on the sofa when Jessie suddenly entered the living room armed with a knife. Messeah called for her older brother twice, but Reggie had already gone out. She only stopped when Jessie pointed the knife at her and threatened to stab her if she shouted again. He then forced her to walk backwards to the kitchen where he told her again to remove her shorts and panties. She resisted but Jessie insisted and even tried twice to stab her if she did not comply. He used one of his hands to remove his shorts and briefs. He forced Messeah to sit on a steel chair and told her to spread her legs. She sat with her legs closed together but he got mad and threatened to stab her if she did not open her legs. She reluctantly opened her legs slightly and Jessie spread them wider with his free hand as the other hand was holding the knife. Jessie then told Messeah to sit at the edge of the steel chair, like before. He stood with one hand holding on to her shoulder, the other holding the knife, and stood straddling her legs. He then inserted his penis between her thighs and used his legs to press her thighs together (apart?). Then he rubbed his penis against her thighs for some three (3) to five (5) minutes until it touched her vagina. She could then feel something sticky coming out from his penis and reaching her vagina. Although her hands were free, she could not slap, box or scratch him because she was afraid that he might stab her as he threatened. Jessie only stopped when he heard a noise. It was Reggie entering the gate. Jessie ordered Messeah to get dressed immediately. Although she did not want to, Messeah stood up, got dressed, and met her brother in the living room. As she walked away, Jessie, who had also put his clothes back on, threatened to kill her whole family and Messeah knew that she could not get any help from her brother Reggie, who was only thirteen (13) years old and no match for Jessie who was much older and bigger.4 In August 1993 Jose came home for his annual vacation, but Messeah and Metheor were too afraid of Jessie and his threats that they did not tell their father about the ongoing

abuse by Jessie. Once Jessie even borrowed a video tape of the Vizconde Massacre and forced Messeah and Metheor to watch it, telling them that the same thing would happen to them if they revealed to their parents what he was doing to them. 5 Not even the arrival in May 1993 of Julie's relative, Alipio Martin, could prevent Jessie's sexual assaults as he always waited until he was alone in the house with the children. Jessie again took advantage of the situation on 17 October 1993 when everybody in the Dumaoal household, except for the two (2) youngest children, were away from home. Messeah's parents had gone shopping, while Reggie was playing computer with his friends at a neighbor's house. Julie's parents, who were staying for a visit, were busy with other things. Her mother was at the parlor having a cold wave, while her father was talking to a neighbor at the latter's house some distance away. Alipio was also out of the house and Metheor was playing in the garage. Messeah was aware of how alone she was and felt afraid that she might be molested again, but she could not do anything since the door of her room still had no lock. She had wanted to go to Cubao with her parents but Jessie had convinced them to leave her and Metheor behind since they had been invited to go to a birthday party. By the time they returned from the party, Jose and Julie had already left for Cubao. As Messeah was changing her clothes after coming from the party, Jessie again entered her room, told her to remove her panty, and inserted his smallest finger ( kalingkingan) into her vagina while telling her to keep silent. He then removed his pants and briefs and went on top of her. This time, he was not able to touch her vagina with his penis because Messeah cried and screamed and called for Metheor who again went up and told Jessie "Get away from my sister." Jessie stopped but threatened to throw the children to the sharks if they told their parents what happened. 6 That night Messeah learned from her father that he was about to board his ship again. The next day, 18 October, she waited until Jessie left to drive the schoolbus to school. She was crying, and it was only after some prompting that she told her mother, " Tinorotot ako ni Jessie."7 Julie brought her to Jose and asked her what she meant by "tinorotot." Messeah replied, "Jessie was forcing his penis into [my] vagina." She also mentioned that Jessie had inserted his penis into her anus, and that he had also inserted his finger into her vagina.8 Jose was shocked because he had treated Jessie as if he were his own child, and that morning, had even told Jessie to make sure his papers were in order because he might be able to bring him along with him to sea.9 After promising Messeah that they would talk to Jessie, Jose and Julie brought her to school, then went home and talked to Jessie, who denied everything. However, Jessie looked pale, and told the Dumaoal spouses to just send him back to Paoay, Ilocos Norte. They were not able to talk to Jessie further because it was time for him to fetch the other children from school. The Dumaoal spouses went back to school where they found Messeah crying. When Messeah saw them, she asked them why they did not stay with her so they could have protected her. Apparently, Jessie had tried to bring her out of the school but was prevented from doing so by the school guard. The Dumaoals asked the principal's permission to bring her home. But before going home, they went to church and again asked her what happened, and reminded her that no one was supposed to tell a lie in church. Messeah insisted that she was telling the truth, and even offered to draw Jessie's penis for them. She also told them to talk to Metheor, who had witnessed the incidents, and insisted that they confront Jessie before a policeman. Since they did not know what to do, the Dumaoal spouses consulted a lawyer, as well as Jose's uncle, Anastacio Dumaoal. The latter suggested that they talk to Jessie in the presence of Jessie's father, Benjamin Collado. Since they did not know Benjamin's exact address in Valenzuela, Bulacan, they left a message with his employer. Benjamin came

on 22 October, and in the presence of Benjamin, Anastacio, and Julie Dumaoal's father Geronimo Martin, the Dumaoal spouses reached an agreement with Jessie whereby they would not press charges provided that he kept away from the Dumaoal family, and not threaten, coerce or do harm to any of them. The agreement was reduced to writing, and after signing the document, Jessie boarded a bus for Paoay. Because of Jessie's threats, the Dumaoals were forced to transfer residence even though they did not have money to spend for the purpose. Before All Saint's Day, Jose went to the province to visit his parents' grave. While in Paoay, he learned from his cousin Josephine Collado, Jessie's aunt, that Jessie only stayed in Paoay for four (4) days after which he returned to Manila. Jose hurriedly returned to Manila and went to their former residence and learned from bystanders that Jessie had been seen drinking in front of the house. When Messeah learned about this, she got angry and told her father that he should have reported Jessie to the police since she had seen him lurking outside her school. Since Jessie violated his undertaking, they decided to file complaints against him for one (1) count of consummated rape and three (3) counts of acts of lasciviousness. Jessie denied all the allegations against him and attacked instead the credibility of Messeah and Metheor. But the trial court found accused-appellant Jessie Ventura Collado guilty of statutory rape and sentenced him to suffer the penalty of reclusion perpetua. Likewise, it found him guilty of three (3) counts of acts of lasciviousness and sentenced him to suffer imprisonment of six (6) years of prision correctional in its maximum period for each count. It also ordered him to indemnify the private complainant in the amount of P50,000.00, and P100,000.00 for moral damages. 10 In his appeal, the accused Jessie Ventura Collado, aside from attacking the credibility of Messeah and Metheor, insisted that Messeah clearly testified that there was no penetration whatsoever in her vagina. But assumingarguendo that he was found guilty of acts of lasciviousness, the trial court erred nonetheless in imposing a penalty that did not take into account the Indeterminate Sentence Law. The trial court in its assailed Decision ruled that it found "Messeah's testimony of her harrowing experience, although not absolutely consistent in all their details, to be still credible and thus entitled to full faith and credit." 11And we agree with the trial court in this regard. In People v. Dado,12 the Court held that "assessing the credibility of witnesses is an area within the almost exclusive province of a trial judge whose findings and conclusions are normally accorded great weight and respect. In determining the credulity of testimony, significant focus is held to lie on the deportment of, as well as the peculiar manner in which the declaration is made by the witness in open court. Hardly can an appellate court come close to a trial court in making, from a mere reading of the transcript of stenographic notes, that kind of evaluation."13 The trial court was correct in finding accused-appellant guilty of three (3) counts of acts of lasciviousness. We take exception however to its finding that statutory rape was committed by him on 5 June 1993. A thorough evaluation of the records will show that accused-appellant Jessie Ventura Collado should only be convicted for acts of lasciviousness and not for consummated rape. It is clear from Messeah's testimony that when Jessie carried out his lecherous intent on 5 June 1993, he did not commit rape, consummated nor attempted, despite the victim's testimony that he succeeded in touching her genitalia with his private parts Q: A: And what happened when he brought you to your room? He told me to take off my shorts as well as my panty.

Q: A:

Then what happened after that? And while my legs were apart, he pressed them apart.

Q: Now, you said that Jessie pressed your legs apart, with what part of his body did he press your legs apart? A: Q: A: Q: A: With his two legs, sir. And after he pressed your legs apart, what did he do? He rubbed his penis between my thighs. Near your private part? Yes, sir, near my private part . . .

Q: You said that "kinukuskos," or he was rubbing his penis near your vagina, what happened when he was rubbing his penis near your vagina? A: I told him "don't," because I was hurt, because he is pressing his legs on my legs. Q: A: Q: A: Q: A: Q: A: Q: A: And what did he do? He told me to shut up. And what did he do after he told you to shut up? He continued what he was doing. And what was he exactly doing at that time? Rubbing his penis near my vagina. How near was it to your vagina? It touches my vagina (emphasis supplied) If you can calculate the time, how long did it last? Maybe 10-15 minutes.14

Nowhere can we find from the foregoing any indication that accused-appellant successfully penetrated at least the labia of the victim; neither can we glean therein any grain of intent on his part to invade Messeah's privities. The victim only said in her testimony that Jessie initially "pressed her legs apart with his two (2) legs, and rubbed his penis against her thighs, until it touched her vagina." Further, Messeah might have told the accused-appellant to "stop because she was hurting" yet she did so only because "he was pressing his legs on her legs." She did not mention having felt pain in her vagina. As narrated by Messeah, "the intimate encounter went on for some 10-15 minutes." If accused-appellant was penetrating her or trying to penetrate her for such a considerable period, she should have likewise cried out in anguish for the pain in her sex organ. To

compare, she cried out in pain when accused-appellant tried forcing his penis into her vagina and anus during the first incident. We recall that during the first incident of 27 April 1993, accused-appellant tried forcing his penis into her vagina, but when he failed in his first attempt, he inserted it into her anus instead. This could have been attempted rape, or even consummated rape but the Complaint filed was only for acts of lasciviousness. Thus, accused-appellant cannot be convicted of attempted or consummated rape. Noteworthy is that the victim was already in a spread-eagle position yet he was unsuccessful in his attempt to defile her. By then he must have realized that it was difficult to penetrate his victim's sex organ such that during the second incident of 5 June 1993, he merely "rubbed his penis between her thighs" although in the process "touched her vagina." We recall further that during the third incident of 7 July 1993, accused-appellant "inserted his penis between her thighs and used his legs to press her thighs together, then he rubbed his penis against her thighs for some three (3) to five (5) minutes until it touched her vagina and she felt something sticky coming out of his penis." As in the second incident, there was no showing he inserted his penis into her labias, much less tried to do so. This recourse to a "simulated means" of achieving orgasm is another manifestation of his realization of, or resignation to, the difficulty of penetrating his prey's sex organ. In according significance to the word "touched," it would be instructive to revisit our ruling in People v. Campuhan15 where we said x x x Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis . . . There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof for the accused to be convicted of consummated rape x x x x x x x Absent any showing of the slightest penetration of the female organ, i.e. touching of either the labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. In other words, "touching" of the female organ will result in consummated rape if the penis slid into or touched either labia of the pudendum. Anything short of that will only result in either attempted rape or acts of lasciviousness. Significantly, People v. Campuhan did not set a demarcation line separating attempted rape from acts of lasciviousness. The difference lies in the intent of the perpetrator deducible from his external acts. Thus when the "touching" of the vagina by the penis is coupled with the intent to penetrate, attempted rape is committed. Otherwise, it is merely acts of lasciviousness. Inasmuch as the touching of the victim's organ by the penis of accused-appellant on 5 June 1993 was but a mere incident of the "rubbing against or between the victim's thighs" which in no way manifests an act preliminary to sexual intercourse, accused-appellant should only be convicted of acts of lasciviousness instead of consummated rape. Messeah's testimony regarding the other acts of lasciviousness committed against her person on different instances by Jessie is also credible, more so when we consider how Metheor's testimony corroborated the appalling tale of molestation and assault. Messeah told the trial court how on several occasions Jessie had inserted his penis into her anus, and also his smallest finger into her vagina, and how he straddled her legs between his legs with his penis pressed between her thighs. The defense tried to show that it was

impossible for a man to have inserted his penis into the anus of a young girl tied spreadeagle to the bed with her garterized shorts and panties pulled down to her ankles, but the garter would stretch to allow the victim's legs to spread far apart and Jessie's beastly act would not have been a physical impossibility. Further, Messeah testified that both her anus and vagina hurt during the first incident,16 which could only have resulted from the penetration. On his part, Metheor testified as to how he heard his sister scream for his help, how he saw her tied down on the bed like an animal, how he twice saw Jessie lie on top of his sister, first on 27 April 1993, and again on 5 June 1993, and how Jessie pushed and threatened him if he ever said a word about what he had seen. 17 He also told the court how on17 October 1993, he saw Jessie insert his smallest finger into Messeah's vagina. 18 Neither Messeah nor Metheor had any motive to implicate Jessie except to stop the abuses. It should be noted that these are children forced to live in fear for a long time, and had suffered many indignities at the hands of Jessie. In fact, in his desire to prevent Jessie from hurting his sister, young Metheor repeatedly tried to push Jessie away from his sister's helpless body by punching him and even attempting to stab him with a bread knife, the only weapon he could handle. Messeah's failure to reveal the sexual abuses to her mother does not taint her credibility. Her silence was impelled by both fear for her life and shame for the degradation that had befallen her. It is not uncommon for a young girl of tender age to be intimidated into silence by the mildest threat against her life. Silence is not an odd behavior of a rape victim.19 In fact, the burden of keeping such a secret took its toll on her health. Jose Noli testified that when he arrived for a vacation in August 1993, he noticed that his children looked blank and pale, especially Messeah who looked thin, complained of dizziness and headaches and sometimes threw up. He and his wife had brought Messeah to several doctors, before one finally diagnosed Messeah as suffering from nervous breakdown and psychological trauma.20 The rule is that affirmative testimony is far weightier than a mere denial, especially when it comes from the mouth of a credible witness.21 Jessie's alibi that he was driving the family car on the disputed occasions cannot stand up to his positive identification as the perpetrator of the crime by both Messeah and Metheor. Neither can we believe Jessie's allegation that Julie only wanted him out of their house because she favored her own relative over him. No mother in her right mind would subject her child to the humiliation, disgrace and trauma attendant to a prosecution for rape, if she were not motivated solely by the desire to incarcerate the person responsible for her child's defilement.22 Furthermore, it is highly improbable that a rape victim and her family would publicly disclose the incident and thus sully their honor and reputation in the community unless the charge is true. 23 In fact, if Julie only wanted Jessie out of her house,24 then why would the Dumaoal family file the complaints against him only on 13 April 1994, when it is clear that he had already left the household as early as 22 October 1993. Neither does this explain why the Dumaoal spouses felt compelled to change residences in such a short period of time. As Jose Noli testified, they made the move even before All Saint's Day,25 which shows that they left their familiar surroundings and uprooted their family all within ten (10) days just so they could ensure Messeah's safety. Moreover, we agree with the Solicitor General that the only reason why the Dumaoal spouses agreed to let Jessie go home to the province instead of filing charges against him was because they were "torn between seeking justice for their daughter and preserving her and the family's reputation. There was also the Christian desire to forgive and give a blood kin a new chance at life knowing the gravity of the penalty that would be

meted out to him. To interpret their actuation any other way would be most unfair to parents who are equally suffering with what befell their only daughter." 26 Parenthetically, it may be noted that the trial court failed to consider the provisions of the Indeterminate Sentence Law when it imposed the penalty of "imprisonment of six (6) years of prision correccional in its maximum period." Under the Indeterminate Sentence Law, the imposable penalty provided by Art. 336 of The Revised Penal Code isprision correccional the range of which is six (6) months and one (1) day to six (6) years. With the presence of one (1) generic aggravating circumstance, i.e., obvious ungratefulness, the maximum shall be taken from the maximum period of the imposable penalty, which is, four (4) years two (2) months and one (1) day to six (6) years, while the minimum shall be taken from the penalty next lower in degree, which is, arresto mayor the range of which is one (1) month and one (1) day to six (6) months. WHEREFORE, the Decision of the Regional Trial Court of Pasig City, Branch 267, finding accused-appellant JESSIE VENTURA COLLADO guilty of Statutory Rape in G.R. No. 135667 (Crim. Case No. 106257) and three (3) counts of Acts of Lasciviousness in G.R. Nos. 135668-70 (Crim. Cases Nos. 106258-106260) is MODIFIED as follows: In G.R. No. 135667 (Crim. Case No. 106257), accused-appellant is found guilty of Acts of Lasciviousness (instead of Statutory Rape) under Art. 336 of The Revised Penal Code, aggravated by obvious ungratefulness. In G.R. Nos. 135668-70 (Crim. Cases Nos. 106258-106260), accused-appellant is likewise found guilty of three (3) counts of Acts of Lasciviousness under the same Art. 336, also aggravated by obvious ungratefulness in each count. Applying the Indeterminate Sentence Law, accused-appellant JESSIE VENTURA COLLADO is sentenced to an indeterminate prison term of four (4) months and twenty (20) days of arresto mayor maximum as minimum, to four (4) years six (6) months and ten (10) days of prision correccional maximum as maximum, in each count of Acts of Lasciviousness. Accused-appellant is further directed to pay the private complainant Messeah M. Dumaoal P30,000.00 as civil indemnity, P40,000.00 for moral damages, P20,000.00 for exemplary damages, in each of the four (4) counts of Acts of Lasciviousness, and to pay the costs. SO ORDERED. Mendoza, Quisumbing, Buena and De Leon, Jr., JJ ., concur.

[G.R. Nos. 135288-93. September 15, 2000]

THE

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JESUS GIANAN y MOLINA, accused-appellant. DECISION

MENDOZA, J.:

This is an automatic review of the decision [1] of the Regional Trial Court, Branch 20, Imus, Cavite finding accused-appellant guilty of multiple rape and sentencing him to triple death and to pay complainant the amount of P100,000.00 as compensatory damages. On June 26, 1996, complainant Myra Gianan, then 15 years old, filed a criminal complaint for multiple rape against her father, accused-appellant Jesus Gianan, on the basis of which the public prosecutor filed the following information:[2]

That sometime in November 1995, and some occasions prior and/or subsequent thereto, in the Municipality of Dasmarias, Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, taking advantage of his superior strength over the person of his own twelve (12) year old daughter, and by means of force, violence and intimidation, did, then and there, wilfully, unlawfully and feloniously, have repeated carnal knowledge of Myra M. Gianan, against her will and consent, to her damage and prejudice.
Accused-appellant pleaded not guilty to the charge, whereupon trial of the case ensued. The evidence for the prosecution shows the following: Myra Gianan was born on April 19, 1981 in Catanduanes, the eldest of three children of accused-appellant Jesus Gianan and his wife Dominga Gianan. After the birth of Myra, the family moved to Aroma, Tondo. [3] Sometime in December 1992, at around 9 oclock in the evening, Myra (then eleven years old) and her younger brother Jeffrey asked permission from accused-appellant to watch TV in a neighbors house. Accused-appellant allowed Jeffrey to go but told Myra to stay and give him a massage. Myra obeyed her father. Afterwards, she again asked permission to go to their neighbors house and was already at the door when accused-appellant pulled her and started kissing her. Startled, she resisted by pushing and hitting her father, but she was warned to keep quiet or else she would be killed. She was made to lie down by accused-appellant who then took off her clothes. He also undressed and proceeded to have sexual intercourse with her. After accusedappellant was through, he got up, dressed and then left. For fear that her father would make good his threats, Myra kept to herself what happened. [4] A few days later, while Myra was taking a bath in their house in Tondo, accused-appellant entered the bathroom and started kissing her on the lips, neck and genitalia. Because she resisted and pushed him away, accusedappellant left.[5] Still, in the same month of December 1992, Myra was again molested by accused-appellant. She was cleaning the room of their house and her father was the only other person in the house.Accused-appellant suddenly seized her and started kissing her. As before, her father succeeded in undressing her despite her resistance and eventually consummated the sexual act. Like the

first incident, she did not mention this incident to her mother for fear that accused-appellant would carry out his earlier threats. [6] Shortly afterwards, the Gianans house was destroyed by fire, as a result of which the family moved to Barangay Pag-asa in Dasmarias, Cavite. Myras mother was able to land a job as bookkeeper at the Santos Pension House where she was required to work from 7:30 in the morning to 9 oclock in the evening. Accused-appellant, who was unemployed, was left in their house with the children.[7] Under this setup, the abuses against Myra continued. One morning in March 1993, while Myra was taking a bath, accused-appellant entered the bathroom, removed his shorts, then started embracing and kissing her. Myra, who was only in her undergarments, tried to push him away, but was unsuccessful. Accused-appellant, while seated on the toilet bowl, made Myra straddle him as he did the sexual act. [8] The fourth rape incident took place in the evening of April 1993, after Myra and her two younger siblings had gone to bed. Their mother had not yet arrived from work. Myra was awakened as accused-appellant was undressing her. She instinctively kicked him, but she was warned not to make any noise. Accused-appellant then started kissing her and pinned down her left leg with his feet while undressing. He then proceeded with the sexual intercourse with Myra who was crying while her father violated her. [9] The fifth rape took place in November 1995. During the wake for her grandfather, while Myra was serving coffee to those who came to condole with the family, she was told by accused-appellant to go home. A short while after complainant arrived, her father followed. They were the only ones in the house. She was then told to prepare the beddings and, while she was doing so, accused-appellant embraced and started kissing her. She resisted but was told to keep quiet. Although accused-appellant was only able to lower her pants and underwear down to her knees, he succeeded in abusing her. [10] In June 1996, after deciding that she had had enough of her fathers abuses, Myra fled from their house. In a letter to her mother which she left hidden under her clothes, she revealed what had happened to her. Myra went to stay in a friends house in Tondo.[11] Three days later, Dominga Gianan discovered her daughters letter. She looked for Myra in Tondo and, after confirming from her daughter the contents of the letter, Dominga sought the help of her sister who was living in Fairview, Quezon City.[12] On June 25, 1996, Myra filed a complaint for multiple rape with the police in Dasmarias, Cavite and later underwent physical examination at the National Bureau of Investigation (NBI) office in Manila. Dr. Renato C. Bautista, the NBI examining physician, issued the following certification:[13]

GENERAL PHYSICAL EXAMINATION: Height: 150.0 cm. Weight: 93 lbs.

Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts, developed, hemispherical, doughy. Areolae, light brown, 2.4 cm. in diameter. Nipples, light brown, protruding, 0.8 cm. in diameter. No extragenital physical injuries noted. GENITAL EXAMINATION: Pubic hair, fully grown, abundant. Labia majora and minora, coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately thick, moderately wide with an old healed deep laceration at 4:00 oclock position corresponding to the face of a watch, edges rounded and non-coaptable. Hymenal orifice admits a tube 2.5 cm. in diameter with moderate resistance. Vaginal walls, lax. Rugosities, shallow. CONCLUSIONS: 1. No evident sign of extragenital physical injury noted on the body of the subject at the time of examination. 2. Old healed deep hymenal laceration present.
Dr. Bautista testified that the laceration in Myras hymen was more than six months old and that, in the normal course of events, it could have been caused by sexual intercourse. He explained that the admission of a tube with 2.5 centimeter diameter into the victims vaginal orifice meant that her genitalia could accommodate a fully erect male organ without being injured. He opined that considering the age of the victim, who was then 15 years old, it was unusual for her vagina to have such an opening and that the lax vaginal walls and shallow rugosities indicated that the victim has had sexual intercourse several times.[14] On cross-examination, Dr. Bautista belied the defenses suggestion that since there was only one laceration in the victims hymen, she could have engaged in only one instance of sexual intercourse. He explained that there are cases where the hymen is intact even after several incidents of sexual intercourse. He conceded, however, that hymenal lacerations could be caused by factors other than sexual intercourse.[15] The defense then presented its evidence. Accused-appellant, testifying as the lone witness for the defense, denied having raped his daughter Myra. He claimed that the filing of the case against him was due to his being a strict disciplinarian and that Myra resented her not being allowed to attend parties and go out with her friends. Accused-appellant testified that after moving to Cavite, he worked as a carpenter from 7 oclock in the morning to 5 oclock in the afternoon. He claimed that he was out of the house in the evening,

performing his duties as a barangay tanoduntil 3 oclock in the morning of the following day.[16] On cross-examination, he admitted that the place where he worked as a carpenter was only four houses away from theirs and that he went home whenever he wanted to rest. On April 1, 1998, the trial court rendered its decision, the dispositive portion of which reads:[17]

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding accused Guilty beyond reasonable doubt of multiple rape. Accordingly, the penalty of triple death is imposed upon him. In addition, he is ordered to indemnify the victim of the sum of P100,000.00 as compensatory damages. SO ORDERED.
Hence this appeal. Accused-appellant contends that

THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MULTIPLE RAPE. THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE PENALTY OF TRIPLE DEATH. THE TRIAL COURT GRAVELY ERRED IN ORDERING THE ACCUSED-APPELLANT TO INDEMNIFY THE VICTIM THE SUM OF P100,000.00 AS COMPENSATORY DAMAGES.[18]
I

Accused-appellant contends that the information against him was void because it did not allege with certainty the dates of commission of the rapes, as a result of which he was allegedly deprived of the opportunity to defend himself. In addition, he argues that by charging multiple rape, the information charged more than one crime. It is settled that the time of the commission of rape is not an element thereof, as this crime is defined in Art. 335 of the Revised Penal Code. The gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated therein, i.e., (1) by using force or intimidation; (2) when the woman is deprived of reason or otherwise unconscious; and (3) when the woman is under twelve years of age or is demented. In accordance with Rule 110, 11, as long as it alleges that the offense was committed at any time as near to the actual date at which the offense was committed, an information is sufficient. Thus, in People v. Bugayong,[19] it was held when the time given in the (information) is not the essence of the offense, the time need not be proven as alleged and that the complaint will be sustained if the proof

shows that the offense was committed at any time within the period of the statue of limitations and before the commencement of the action. [20] In the case at bar, Myra stated in her complaint that her father had raped her several times from 1992 up to November 1995. [21] The prosecution was able to establish that during such period accused-appellant raped his daughter five times and committed acts of lasciviousness against her once. Hence, the allegation in the information that accused-appellant committed multiple rape sometime in November 1995 and some occasions prior and/or subsequent thereto should be deemed sufficient compliance with the requirements that the five counts of rape were committed within the statute of limitations and before the criminal action was commenced in the trial court. Indeed, this Court has held that the allegations that rapes were committed before and until October 15, 1994, [22] sometime in the year 1991 and the days thereafter,[23] and on or about and sometime in the year 1988[24] constitute sufficient compliance with Rule 110, 11. In any event, even if the information failed to allege with certainty the time of the commission of the rapes, the defect, if any, was cured by the evidence presented during the trial and any objection based on this ground must be deemed waived as a result of accused-appellants failure to object before arraignment. Accused-appellants remedy was to move either for a bill of particulars[25] or for the quashal of the information on the ground that it does not conform substantially to the prescribed form. [26] In this case, accused-appellants counsel took active part in the trial. He cross-examined the prosecutions witnesses and afterwards presented evidence for the defense. It is now late in the day for him to claim on appeal that the information against him was defective. Accused-appellants reliance on United States v. Dichao[27] is unavailing because in that case, the accused made a timely motion to quash the information. Accused-appellant nevertheless argues that his conviction for rape in December 1992 is so remote from the date (November 1995) alleged in the information, so that the latter could no longer be considered as being as near to the actual date at which the offense was committed as provided under Rule 110, 11.[28] This contention is also untenable. In People v. Garcia,[29] this Court upheld a conviction for ten counts of rape based on an information which alleged that the accused committed multiple rape from November 1990 up to July 21, 1994, a time difference of almost four years which is longer than that involved in the case at bar. In any case, as earlier stated, accused-appellants failure to raise a timely objection based on this ground constitutes a waiver of his right to object. In People v. Ladrillo,[30] it was held that an information alleging that the accused-appellant committed rape on or about the year 1992 was defective and that the failure of the accused to move for a bill of particulars or for the quashal of the information was not a waiver of objection based on this ground. But, in that case, the need for a more definite allegation as to the time of the commission of the rape was essential in the determination of the

accuseds guilt because in 1992, the accused was not yet residing in the town where the crime was committed. In addition, the victim could not recall either the month or the year she was raped. Said the Court:

The phrase on or about the year 1992 encompasses not only the twelve (12) months of 1992 but includes the years prior and subsequent to 1992, e.g., 1991 and 1993, for which accused-appellant has to virtually account for his whereabouts. Hence, the failure of the prosecution to allege with particularity the date of the commission of the offense and, worse, its failure to prove during the trial the date of the commission of the offense as alleged in the Information, deprived accused-appellant of his right to intelligently prepare for his defense and convincingly refute the charges against him. At most, accused-appellant could only establish his place of residence in the year indicated in the Information and not for the particular time he supposedly committed the rape.[31]
In this case, accused-appellants denial and alibi are so general that it cannot be said that his defense hinges on the date of the commission of the rapes. Furthermore, Myra was unwavering in her claim that her father committed acts of lasciviousness against her once in December 1992, raped her twice in December 1992, twice in 1993, specifically in the months of March and April, and once in November 1995.
II

With regard to the contention that the information against him is defective because it charges more than one offense, the pertinent provisions of Rule 117 state:

SECTION 1. Time to move to quash. At any time before entering his plea, the accused may move to quash the complaint or information. SEC. 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds: .... (e) That more than one offense is charged . . . . SEC. 8. Failure to move to quash or to allege any ground therefor . The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion shall be deemed a waiver of the grounds of a motion to quash . . . .
Clearly, as a result of accused-appellants failure to move for the quashal of the information on the ground that more than one offense was charged, he is deemed to have waived his objection based on such ground.

III

The trial court convicted accused-appellant of multiple rape without stating the number of counts of rape involved. The prosecution established beyond doubt that accused-appellant is guilty of five counts of rape. In a simple and straightforward manner, Myra related to the trial court how her father raped her twice in December 1992, twice in 1993 (March and April), and once in November 1995. As the trial court noted:

She positively established in detail the antecedents and surrounding circumstances of the sexual assaults committed by her father against her. Her testimony was given in a candid, frank and straightforward manner, thereby, leaving no doubt about its credibility and truthfulness. It has been held that a candid and straightforward narration by the victim of how she had been raped bears the earmarks of credibility. [32]
Undoubtedly, Myra erred in stating that she and her family moved to Dasmarias, Cavite in June 1993 considering that she testified that after they had transferred to Cavite, accused-appellant raped her again in March and April of that year. When she was confronted with this discrepancy, she admitted that she got confused but explained that, although she could no longer recall the exact month when she was first raped by her father in 1993 in Dasmarias, she was certain that the rape in April of that year took place before her birthday on the 19th of that month. [33] Hence, complainant must have transferred to Cavite before March 1993. Indeed, Myras recollection of these two rapes was very vivid, thus:[34]
PROS. MADRIAGA: Q When for the first time did your father rape you in Dasmarias, Cavite? A While I was taking a bath. Q When was that? A Around March 1993. Q Who were present at that time in your house? A My brother Jeffrey. Q Who else? A No more. My mother was in the place of work. Q What time was that incident occurred? A Morning. Q Around what time? A Around 10:00 in the morning. Q Will you tell this Hon. Court how did it happen? A I was taking a bath in our bathroom. Q While you were taking a bath in your bathroom, what happened?

A He followed me. Q What happened after he followed you? A He entered inside the bathroom and removed his short. Q What clothes were you wearing at that time? A I was wearing a bra and a panty. Q After undressing himself, what did your father do? A He embraced me and I was pushing him. Q What else happened? A He kissed me on the lips, neck and breast. Q Aside from kissing you on the different parts of your body, what else did your father do to you? A He inserted his organ into my organ. Q When he inserted his organ to your organ, what was your position? A I was sitting and pushing him. Q What was the position of your father? A Also sitting. Q Was he able to insert his penis in your organ? A Yes, sir, a short while. .... Q Madam Witness, last time, during your direct examination with respect to the first time you were raped by your father in Dasmarias, you said that the same was committed inside the bathroom while you and your father were sitting? A Yes, sir. Q Where were you sitting? A On the lap of my father, sir. Q And where [was] your father sitting? A At the toilet bowl, Sir. Q To what direction were you facing? A Facing him, sir. .... Q Can you recall the approximate time and date when that second sexual assault was done in Dasmarias? A April 1993. Q What time? A 9:00 in the evening. Q Who were present in your house when this was done?

A My brother and sister who were then sleeping. Q Where was your mother at that time? A She is at work. .... Q How did the second sexual assault occur in Dasmarias? A I was then sleeping. I did not notice that my father was removing my skirt and my t-shirt and panty. Q What did you do upon discovering that your father was undressing you? A I kicked him. Q What did he do when you kicked him? A He told me to keep quiet. Q What happened next? A He kissed my lip, cheek, my organ and breast. Q Was your father able to undress you? A Yes, sir. Q What were the clothes that he removed from you? A My skirt, t-shirt, bra and panty. Q What did your father do after he was able to remove your dress, panty, bra etc.? A He also removed his clothes. Q What did he do after removing his clothes? A He spread my legs and inserted his organ into my organ. Q Was he able to insert his organ into your organ? A Yes, sir, a short while. Q While he was inserting his organ into your organ, what did you do? A I was crying. Q After that, what did your father do? A He put on his clothes and he slept.

Considering that the exact time of the commission of the rape is not an essential element of the crime, Myras testimony is sufficient to establish the two rape incidents in 1993. Furthermore, Myras claim of multiple rape was fully corroborated by the result of the medical examination which shows that she had sexual intercourse several times. The evidence shows that accused-appellant was able to consummate each of the rapes through force and intimidation. Myra testified that her father threatened to kill her and the other members of their family if she revealed the sexual attacks to anyone.[35] The threats cannot be minimized considering the

moral influence of accused-appellant over her. Indeed, we have consistently ruled that in cases of incestuous rapes, the fathers moral ascendancy over the victim substitutes for violence and intimidation. [36] This especially holds true in the case of Filipino children who are traditionally raised to obey and to respect their elders.[37] With regard to the incident in December 1992 during which accusedappellant kissed complainant in various parts of her body in the bathroom where she was taking a bath,[38] the crime committed was acts of lasciviousness. The elements of the crime are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force or intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex. [39]Although the information filed was for multiple rape, accused-appellant can be convicted of acts of lasciviousness because the crime of acts of lasciviousness is included in rape.[40]
IV

The trial court sentenced accused-appellant to triple death penalty. However, as the Solicitor General correctly observed, the death penalty cannot be imposed for the two rapes committed in December 1992 and the two others committed in March and April 1993, because R.A. No. 7659, which imposes the death penalty for rapes committed under any of the circumstances provided under 11 thereof, took effect only on December 31, 1993, and it cannot be given retroactive application. [41] Hence, only the penalty of reclusion perpetua can be imposed on accused-appellant for each count of rape. With respect to the rape committed in November 1995, R.A. 7659, 11 provides that the death penalty shall be imposed when the victim is under eighteen (18) years of age and the offender is a parent. Both the age of the offended party and her filiation with the accused must be alleged in the information as part of the constitutional right of the accused to be informed of the nature and cause of the accusation against him. [42] However, the information in this case alleged that accused-appellant with lewd designs, taking advantage of his superior strength over the person of his own twelve (12) year old daughter had repeated carnal knowledge of her by means of force, violence, and intimidation. This is similar to the allegations in the four informations filed in People v. Teves.[43] In that case, three informations alleged that the accused committed multiple rape by taking advantage of his superior strength over the person of his thirteen (13) year old daughter. The fourth information alleged that the accused committed rape by taking advantage of his superior strength over the person of his own daughter who is only thirteen years old. This Court ruled that none of these informations specifically alleged the qualifying circumstances of age and relationship of the offended party to the accused. It explained:

[T]he informations . . . as phrased, . . . unduly lay stress on the generic aggravating circumstance of taking advantage of superior strength. Be it in terms of syntax or composition, the wording of the informations is unable

to sufficiently notify the accused, a person of common understanding or ordinary intelligence, of the gravity or nature of the crime he had been charged, especially considering that the generic aggravating circumstance of taking advantage of superior strength is not even an element of the attendant circumstances treated under number 1 of the last paragraph of Art. 335. . . .
[44]

In accordance with the ruling in Teves, therefore, the rape committed in November 1995 must be considered to be only simple rape for which the penalty should only be reclusion perpetua. As for the damages to be awarded to complainant, the P100,000.00 awarded by the trial court should be modified. In accordance with current case law,[45] accused-appellant should be ordered to pay complainant moral damages in the amount of P50,000.00 and civil indemnity in the amount of P50,000.00 for each of the four counts of simple rape. For the rape committed in November 1995, he should likewise be ordered to pay moral damages in the amount of P50,000.00 and civil indemnity in the amount of P50,000.00. WHEREFORE, the decision of the Regional Trial Court, Branch 20, Imus, Cavite is AFFIRMED with the following modifications: (1) For each of the four counts of simple rape committed in December 1992 (two counts) and March and April 1993, accused-appellant is sentenced to suffer the penalty of reclusion perpetuaand to pay complainant moral damages in the total amount of P200,000.00 and civil indemnity in the total amount of P200,000.00. (2) For the rape committed in November 1995, accused-appellant is sentenced to suffer the penalty of reclusion perpetua and to pay complainant civil indemnity in the amount of P50,000.00 as well as moral damages in the amount of P50,000.00 and the costs. (3) For the acts of lasciviousness committed in December 1992, accusedappellant is sentenced to an indeterminate penalty of 12 years and 1 day of reclusion temporal, as minimum, to 15 years, 6 months and 20 days of reclusion temporal, as maximum. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur. Ynares-Santiago, J., on leave.

G.R. No. 123164

February 18, 2000

NICANOR DULLA, petitioner, vs. COURT OF APPEALS and ANDREA ORTEGA, represented by ILUMINADA BELTRAN, respondents.

MENDOZA, J.: This is a petition for review on certiorari of the decision1 of the Sixth Division of the Court of Appeals, affirming the conviction of herein petitioner by the Regional Trial Court, Branch 5, Manila, for acts of lasciviousness. The information against petitioner Nicanor Dulla charged him with rape. It was alleged That on or about February 2, 1993, in the city of Manila, Philippines, the said accused, did then and there wilfully, unlawfully, and feloniously with lewd designs have carnal knowledge with ANDREA ORTEGA, three years old, by then and there inserting his penis to her vagina, then succeeded in having carnal knowledge of the said ANDREA ORTEGA against her will and consent. CONTRARY TO LAW. The facts are as follows: Andrea Ortega was at birth entrusted to the care of her grandaunt, Iluminada Beltran, by her mother, Leslie Dulla Ortega. On February 2, 1993, Andrea, who was then three years old, came home crying, with bruises on her right thigh. She told her guardian, Iluminada Beltran, that her uncle, herein petitioner, touched her private part. In her own words, she said, "Inaano ako ng uncle ko," while doing a pumping motion with the lower part of her body to demonstrate what had been done to her. She also said that petitioner showed his penis to her. 2 The matter was reported to Barangay Councilor Carlos Lumaban who, with the child, the latter's guardian, and three barangay tanods, went to the house of petitioner to confront him. As petitioner's father refused to surrender his son to Lumaban and his party, Lumaban sought assistance from the nearby Western Police District (WPD) Station No. 7. It appears, however, that petitioner took advantage of the situation and ran away. 3 On February 8, 1993, Lumaban was informed that petitioner was in the nearby barangay. Together with some barangay tanods, Lumaban went to the place where petitioner was reported to be, but petitioner's employer refused to surrender the latter to the authorities. Later, however, with the aid of two policemen from the WPD Police Station No. 1, Lumaban and his party were able to take petitioner to Precinct 1 and later to Precinct 7. 4 Upon arraignment, petitioner pleaded not guilty to the charge of rape, whereupon trial ensued. In her testimony in court, Andrea said that petitioner fondled her organ and showed her his penis. She said that when petitioner did a pumping motion, she had no panties on and that she was lying down. Petitioner was also lying down, according to her. 5 The medical report6 on Andrea prepared by Dr. Maximo Reyes, who examined the child on February 3, 1993, showed: PHYSICAL INJURIES: Abrasion, brownish, 0.1 x 1.0 cm. bridge of nose, linear, 0.1 x 3.0 cm, anteromedial aspect, middle third, left leg.

Contusion, reddish, blue, 3.0 x 8.0 cm. postero-lateral aspect, lower third, right thigh. GENITAL EXAMINATION: Conclusions: Pubic hair, no growth. Labia majora and labia minora, coaptated. Fourchette, tense. Vestibule, pinkish. Hymen, annular, thin, narrow, and intact. Hymenal orifice, admits a tube 0.5 cm. in diameter. Vaginal walls and rugosities, cannot be reached by the examining finger. CONCLUSIONS: 1. The above physical injuries were noted on the body of the subject at that time of examination. 2. Hymen, intact; Petitioner, on the other hand, denied the accusation against him. He said that Andrea was coached by her guardian. He likewise denied that he escaped from Lumaban and his men on February 2, 1993, and said that he only went away to avoid any trouble that time.7 Based on the foregoing evidence, the trial court found petitioner guilty of acts of lasciviousness. It held: Viewed from the foregoing, the court is convinced that although the accused had a lewd design on the child, and that he had removed his pants, and apparently lain on top of her swaying his hips to and fro, he never intended to enter her, as clearly shown by the fact that he did not remove her panty. In other words, even if the "big penis" of the accused was erect and he was thrusting it into the private parts of the child, he could not have plunged it inside because of the panty protectively shielding it from such an illegal entry. Because of the panty worn by the child it cannot even be said that the sexual organ of the accused and that of his victim were in close contact, so that rape in its legal conception, would have been committed. That no crime of rape took place, is further shown by the medical certificate of Dr. Maximo Reyes stating that the victim's hymen (sic) is annular, thin, narrow and intact. While rape was not committed, this court is nonetheless convinced that the accused had committed an act of lasciviousness on the child. Said act is penalized under Article 336 of the Revised Penal Code. Rape and acts of lasciviousness have the same nature. The difference is that in rape there is an intent to lie with a woman. This element is absent in acts of lasciviousness. Hence, even though the charge is consummated, frustrated or attempted rape, the defendant may still be convicted of acts of lasciviousness (People vs. Mariano, 50 Phil. 587, cit. by Aquino, The Revised Penal Code, 1968 Ed., Vol III, p. 412.) xxx xxx xxx

WHEREFORE, premises considered, judgment is rendered finding the accused Nicanor Dulla y Cunanan GUILTY beyond reasonable doubt of the crime of acts of lasciviousness and hereby sentences him to serve the indeterminate penalty of not less than SIX (6) YEARS of Prison Correctional as minimum and not more than TWELVE (12) YEARS of Prision Mayor as maximum and all the accessory penalties provided by law and to pay the costs.8 SO ORDERED. On appeal, the Court of Appeals affirmed the findings of the trial court but modified the decision, to wit: THE FOREGOING CONSIDERED, the appealed decision is hereby AFFIRMED, but the penalty is modified to twelve (12) years and one (1) day of reclusion temporal, as the minimum, to not more than fourteen (14) years, eight (8) months and one (1) day also of reclusion temporal, as the maximum, with costs, together which all the accessory penalties. SO ORDERED. Petitioner now makes the following assignment of errors: I. The court a quo erred in affirming the decision of the RTC finding the petitioner guilty of the crime of Acts of Lasciviousness. II. The court a quo erred in considering and giving credence to the testimony of Andrea Ortega. III. The court a quo erred in not ruling that the guilt of the accused-petitioner was not proven beyond reasonable doubt of any offense. IV. The court a quo erred in not ruling that the case for rape should be dismissed by the Regional Trial Court. First. Petitioner questions the competence of Andrea as a witness. He argues that Andrea is not capable of understanding the questions propounded to her. Moreover, she did not take an oath and the fact that she was asked purely leading questions shows that she was only coached by her guardian. 9 The contention has no merit. As a general rule, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. 10 Under Rule 130, 21 of the Rules of Court, only children who, on account of immaturity, are incapable of perceiving the facts respecting which they are examined and of relating them truthfully are disqualified from being witnesses. In People v. Mendoza,11 the Court held: It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and perceiving, can make known his perception to others and of relating truthfully facts respecting which he is examined. In the 1913 decision in United States vs. Buncad, this Court stated: Professor Wigmore, after referring to the common-law precedents upon this point, says: "But this much may be taken as settled, that no rule defines any particular age as conclusive of incapacity; in each instance the capacity of the particular child is to be investigated." (Wigmore on Evidence, vol. I, p. 638)

xxx

xxx

xxx

The requirements then of a child's competency as a witness are the: (a) capacity of observation, (b) capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of sufficient intelligence according to the foregoing, it is settled that the trial court is called upon to make such determination. In the case at bar, Andrea was three years and 10 months old at the time she testified. Despite her young age, however, she was able to respond to the questions put to her. She answered "yes" and "no" to questions and, when unable to articulate what was done to her by petitioner, Andrea demonstrated what she meant. During her interrogation, she showed an understanding of what was being asked. She was consistent in her answers to the questions asked by the prosecutor, the defense counsel, and even by the judge. Thus: FISCAL: Q A Q Do you know Nic? Yes, sir. Do you see him around?

A Yes, sir. (Witness pointed to a person who identified himself as Nicanor Dulla). Nic is of unsound mind. xxx Q A Q A Q A Q A Q A Q A Did you see his penis? Yes, sir. (She is nodding). Is it big? Yes, sir. What did Nicanor Dulla do? The child is making a pumping motion to and fro. What was he doing? A big penis, sir. You saw it? Yes, sir. What did Nicanor Dulla do with his penis with you? The child answered by showing a pumping motion to and fro. xxx xxx

COURT:

Q What was your position when Nicanor Dulla was making a push and pull motion? A Q A Q A He was lying down, sir. He was touching your vagina? Yes, sir. What did you feel with your vagina? Nothing, sir. xxx Q A Q A xxx xxx

When you were lying down, what was Nicanor Dulla doing? Witness answered by pumping motion. Were you wearing your panty at that time? None, sir. xxx xxx xxx

CROSS-EXAMINATION BY ATTY. ORTICIO: Q A You said Nicanor Dulla has a big penis, how big was it? Witness extended her two arms showing a big size. xxx Q A Did he touch it to yourself? No, sir. xxx COURT: Q When you said [you saw] the big penis of accused Nicanor Dulla, was he wearing his pants? A Q A None, sir. You mean that he was not wearing any pants nor brief? Yes, sir. xxx xxx xxx xxx

ATTY. ORTICIO:

Q When you said that Nicanor Dulla has a large penis did he touch [it to] your vagina? A No, sir.

COURT: Q Did the penis of the accused touch your vagina while the accused was doing the pumping motion? A No, sir.

ATTY. ORTICIO: No further question, Your Honor. COURT: Any redirect. FISCAL: Q A Q A Did your vagina ache? No, sir. Did he enter his penis into your vagina? No, sir.12

The determination of the competence and credibility of a child as a witness rests primarily with the trial judge who has the opportunity to see the witness and observe his manner, his apparent intelligence or lack of it, and his understanding of the nature of the oath. As many of these qualities cannot be conveyed by the record of the case, the trial judge's evaluation will not be disturbed on review, unless it is clear from the record that his judgment is erroneous.13 In this case, the defense did not even object to the presentation of Andrea as a witness, nor questioned her competence to testify. On the contrary, the defense cross examined her, and the result of her examination showed that she was intelligent and could make her answers known to others. Petitioner makes much of the fact that Andrea did not take an oath and that the questions propounded to her during direct examination were purely leading. It should be noted, however, that in the beginning of her testimony, Andrea was asked the following questions: Q A Q I will ask you questions, will you tell the truth? Yes, sir. Do you know Jesus?

A Q A Q A Q A Q A

Yes, sir. He is the God? Yes, sir. God will get mad if you will tell a lie? Yes, sir. So, you will not tell a lie? Yes, sir. What will Jesus do with you if you will tell a lie? God will punish me "papaluin."14

The trial court considered this line of questioning sufficient to show that Andrea understood her obligation to tell the truth. Thus, the trial court said: In this case, the traditional oath was not administered to the child witness. Immediately upon her presentation in court, the public prosecutor began asking her if she would tell the truth; if she knew Jesus; and what God would do to her if she would tell a lie. To these questions, she evinced her desire to tell the truth because if she told a lie, God would get mad, and He would whip her (papaluin). What followed after these series of questions was an intelligent account of what happened which she narrated in monosyllables and a unique body language. Viewing the child while she was on the stand answering the preliminary questions on the public prosecution, it is apparent that the child had sufficient capacity to know the obligation of an oath, eventhough the ritual attending the same had not been administered. Her answers indicated an intelligence sufficient to satisfy this court that she was supposed to tell the truth once she took the witness stand. She was, in other words, aware of the wrongfulness of telling a lie, because in her own words, God would punish her (papaluin). Because of this, she was qualified to testify (See State vs. Mayer, 135 Iowa 307, N.W. 322 cit. by Francisco, Basic Evidence, p. 340).15 With respect to the fact that leading questions were propounded to Andrea during her direct examination, suffice it to say that under the Rules of Court, such questions are allowed considering the age (three years and 10 months) of the witness at the time she testified in court. Rule 132, 10 provides: Leading and misleading questions. A question which suggests to the witness the answer which the examining party desires is a leading question. It is not allowed, except: xxx xxx xxx

(c) When there is difficulty in getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deafmute; . . . .

Petitioner's contention, therefore, that Andrea was incompetent to testify must be rejected. Second. Petitioner claims that the prosecution failed to prove that he touched any part of Andrea's body. This is not so. Andrea testified that petitioner fondled her private part.16 Likewise, in her sworn statement given to PO3 Wilfredo Ursua at the WPD Station No. 7, she said: 08. Tanong Sino itong mamang ito (ref. to suspect Nicanor Dulla)? Sagot Nick sira ulo. 09. Tanong Ano ang gawa sa iyo ni Nick sira ulo? Sagot Hawak pepe, malaki titi.17 Thus, petitioner's contention that he can only be convicted of unjust vexation if it were true that he showed his private organ to Andrea must fail. By fondling Andrea's vagina, exhibiting his penis, and doing the pumping motion, there is no doubt that petitioner had lewd designs on the child. Third. Petitioner also contends that: Another error committed by the trial court, is that it did not dismiss the case outright from the very beginning, since in the information filed in the rape case, it appears that the complainant is the alleged caretaker of the alleged 3-year old girl offended party, not her parents, grandparents, in that order exclusively, as required by the Rules on Criminal Procedure. The alleged offended minor's mother is still alive and even objected to the filing of this case, and testified in favor of the accused-appellant. 18 Rule 110, 5(4) provides: The offended party, even if she were a minor, has the right to initiate the prosecution for the above offenses, independently of her parents, grandparents or guardian, unless she is incompetent or incapable of doing so upon grounds other than her minority. Where the offended party who is a minor fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to the parents, grandparents or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the immediately preceding paragraph. The contention is thus wrong. In this case, the complaint 19 was filed by Andrea herself, assisted by her guardian. The provision that the guardian can file a complaint only in default of the parents and grandparents of the minor applies only if the minor, who is the offended party, fails to file the complaint herself. Petitioner further claims that Iluminada Beltran had an ill motive for accusing him of rape, i.e., to keep custody of Andrea. However, there is no basis for this allegation. Andrea's mother, Leslie Dulla Ortega, testified that she entrusted Andrea to the care of her aunt, Iluminada Beltran, and there is nothing in her testimony to indicate that she was trying to get custody of her child from Beltran. As Leslie Dulla Ortega told the court: Q You will admit that you turned over the custody of the child to Miss Iluminada Beltran when she was a month old?

Yes, sir.

Q And that I see the child still in the physical custody of Iluminada Beltran, you will admit that up to now, up to today she is still with the custody of Beltran? A Yes, sir. xxx xxx xxx

Q If you live with the father of this Andrea Ortega, why is it that you decided to entrust Andrea Ortega to Iluminada Beltran? A Because even when Andrea was small, I used to pay Mrs. Iluminada Beltran to take care of the child. Q A You don't like Andrea Ortega very much? No, sir I am working and there is no one to take care of the child. 20

Indeed, even if there was a fight for the custody of the child, we do not see how it had anything to do with the filing of this case against petitioner. Fourth. Petitioner also contends that the prosecution witnesses Beltran and Lumaban gave inconsistent statements. The alleged inconsistencies, however, do not exist, and the contention itself appears to have been made perfunctorily as petitioner merely quoted in his petition the transcript of the witnesses' testimonies without pointing out any contradiction therein.21 On the other hand, the trial court found inconsistencies in the testimony of Andrea on whether or not petitioner took off her underwear, and, on that ground, found petitioner guilty of acts of lasciviousness only, not rape. According to the trial court: Turning to her account of what happened on February 2, 1993, the child narrated on direct examination that her uncle showed her his "big penis"; that at the time, her uncle had no pants nor brief; that apparently she was made to lie down; that she was not wearing her panty; that her uncle also laid down; that very soon her uncle was making a pumping motion which she demonstrated by swaying the lower part of her body to and fro. Asked whether she felt anything in her vagina, she said "nothing sir". She then corrected herself by saying that she was wearing her panty when she was lying down. On cross-examination, she reiterated that the accused was not wearing his pants; that she saw his "big penis"; that he did the pumping motion when he was on top of her; and that his "big penis" did not enter her vagina. In her sworn statement, the child also stated that she saw the penis of her uncle; that when she was asked "ano pa gawa sa iyo", she did not answer but "motioned to this prober a pumping motion" (see Exh. "A"). Consistent with her testimony in court, she also stated that she was wearing her panty, and the accused did not remove it. Thus: Tanong: Alis ba niya panty mo? Sagot: Hindi po.

Viewed from the foregoing, the court is convinced that although the accused had a lewd design on the child, and that he had removed his pants, and apparently lain on top of her swaying his hips to and fro, he never intended to enter her, as clearly shown by the fact that he did not remove her panty. 22 The records, however, belie the trial court's findings on this issue. The following is Andrea's testimony: Q A Q A Q A When you were lying down, what was Nicanor Dulla doing? Witness answered by pumping motion. Was Nicanor Dulla lying down when he was doing that thing to you? Yes, sir. Were you wearing your pant[y] at that time? None, sir.23

To be sure, in her cross-examination, Andrea was never asked if she was wearing her underwear when petitioner touched her private part. 24 Nonetheless, we think the trial court correctly convicted petitioner of acts of lasciviousness. Andrea told the court that petitioner's penis was never inserted in her vagina, nor was there even a touching of her external organ by petitioner's penis. There could, therefore, be no rape. Moreover, although petitioner and Andrea were both lying down, it was not shown how they were positioned in relation to each other. The trial court's statement that petitioner was on top of Andrea is not based on the testimony of Andrea or of any of the other witnesses. The medical findings of Dr. Maximo Reyes bolster the conclusion that no intercourse or attempt to commit sexual intercourse occurred. Iluminada Beltran also testified that the injuries suffered by the child on her right thigh as well as on the bridge of her nose were due to the physical chastisement inflicted on her by petitioner and his father on certain occasions.25 Thus, what was actually established by the prosecution are the following : 1. That petitioner fondled Andrea's vagina. 2. That he removed Andrea's underwear. 3. That he lay down with Andrea. 4. That petitioner did a pumping motion with his penis exposed to Andrea. The lewd design of petitioner is thus evident and, although the information filed was for the crime of rape, he can be convicted of acts of lasciviousness because the latter is necessarily included in rape. 26 Rule 120, 4 of the Rules of Court states: Judgment in case of variance between allegation and proof: When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the

offense proved included in that which is charged, or of the offense charged included in that which is proved. The appellate court was likewise correct in applying Art. III, 5(b) of R.A. No. 7610 in imposing the penalty. It stated, thus: We go for a modification of the penalty. While the Court applied the provision of Art. VI, Sec. 10, par. 3, the applicable provision should instead be Art. III, par. 5(b), thus: (b) Those who commit the act of . . . or lascivious conduct with a child exploited . . . or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, . . . as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; While Section 5(b) mentions Art. 336 of the Revised Penal Code; Article VI, Section 10(e) (3), on the other hand, refers to Article 339 or acts of lasciviousness with the consent of the offended party. If we go by the allegations in the Information [in] the Court a quo, the offense is typical of acts of lasciviousness under Article 336. The imposable penalty, therefore, pursuant to Article III, Section 5(b), should be reclusion temporal in its medium period, if the victim is under twelve (12) years of age. Applying the provisions of the indeterminate sentence law, the penalty should be twelve years (12) and one (1) day of reclusion temporal, as the minimum, to not more than fourteen (14) years, eight (8) months and one (1) day, similarly ofreclusion temporal, as the maximum. However, the application of the Indeterminate Sentence Law is erroneous. The penalty for acts of lasciviousness under Art. III, 5(b) of R.A. No. 7610 is reclusion temporal in its medium period, the range of which is from 14 years, 8 months and 1 day to 17 years and 4 months. Applying the Indeterminate Sentence Law and in the absence of modifying circumstances, the maximum term of the sentence to be imposed shall be taken from the medium period of the imposable penalty, which is reclusion temporal medium, the range of which is from 15 years, 6 months and 20 days to 16 years, 5 months and 9 days, while the minimum term shall be taken from the penalty next lower in degree, which is reclusion temporal minimum; the range of which is from 12 years and 1 day to 14 years and 8 months. WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED with the MODIFICATION that the penalty to be imposed shall be 12 years and 1 day of reclusion temporal, as minimum, to 15 years, 6 months and 20 days of reclusion temporal, as maximum. SO ORDERED.
1wphi1.nt

Bellosillo, Quisumbing and De Leon, Jr., JJ., concur. Buena, J., is on leave.

[G.R. No. 126096. July 26, 1999]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. AMADO SANDRIAS JAVIER, Accused-Appellant. DECISION MELO, J.: Once again, we are given the heavy task of reviewing a judgment of conviction imposing the death penalty in a crime so dastardly and repulsive incestuous rape. Considering that a persons life is at stake, we are burdened to come up with an errorfree judgment amidst our frailties and imperfections, lest our conscience be bothered for rendering an irrevocable and irreversible error. In the case under review, three separate complaints were filed against accusedappellant charging him with rape committed on October 20, 1994 and sometime on November, 1994 and December, 1994, against his daughter, Julia Ratunil Javier. The first complaint charged: CRIMINAL CASE NO. 95-136 The undersigned complainant, who is a minor of 16 years of age, single, herein assisted by her grandmother, Mrs. Librada Ratunil, after being duly sworn to law, hereby accuses her father AMADO SANDRIAS JAVIER, who is detained under Illegal Possession of Firearm charge, of the crime of RAPE, committed as follows: That in or about October 20, 1994, at more or less 1 oclock in the afternoon, at Zone 5, Baikingon, Cagayan de Oro City, Philippines, and within the jurisdiction of the Honorable Court, the above-named accused, as father of herein complainant, by means of force, violence, and intimidation, while inside our dwelling house at the afore-mentioned place, and when said accused and herein aggrieved party were alone in their said dwelling house as the undersigned aggrieved-party-complainants mother was out doing laundry work as a laundry woman, held and pulled undersigned complainant to accuseds bedroom in said dwelling house and as the undersigned refused, wrestled and shouted for help, accused boxed and hit undersigneds stomach to unconsciousness and did then and there, against complainants will and consent, wilfully, unlawfully and feloniously have carnal knowledge of the undersigned who noticed upon regaining consciousness that she was already stripped of her pairs of panty and pants and feeling extreme pain of her private parts, and then and there accused threatened the undersigned of death if undersigned complainant would reveal the incident to undersigneds mother or to anybody else, thus, resulting to undersigneds pregnancy as examined and found out by the doctor, all against the will and consent of the undersigned, to her great damage and prejudice. Contrary to and in Violation of Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659. (p. 7, Rollo.)

The two other complaints were identically worded as the above complaint except that they respectively charged that the rape therein alleged occurred in November and December 1994. Upon arraignment, accused-appellant pleaded not guilty. Thereafter, the cases were jointly tried. As principal witness for the prosecution, Julia recounted her harrowing experience at the hands of her father. Her testimony was capsulized by the trial court in this wise: At about 1:00 oclock in the afternoon of October 20, 1994, while her mother was out doing some laundry for neighbors, thus she and the accused were left alone in their house at Zone 5, Baikingon, Cagayan de Oro City, and while she was at the porch of their house, accused called for her to the conjugal room and while thereat grabbed her right hand. She shouted for help but nobody came to her rescue from neighbors, the nearest of whom was about 60 meters away. Accused continued his sexual assault on her by boxing her abdomen resulting to her unconsciousness. When she regained consciousness, she felt pain in her vagina which was bleeding and wet with some sticky fluids. She cried but was warned by the accused that should she make an outcry and report the incident to her mother, he will kill her. Out of fear, and knowing that accused has a handgun, she held her outcry. Parenthetically, the accused was also charged of Illegal Possession of Firearm in Criminal Case No. 95-141 committed on March 20, 1995 also raffled to this branch, to which he pleaded guilty and was sentenced accordingly on May 8, 1996. Complainant further declared that applying practically the same force and intimidation and about the same time (1:00 P.M.) and again while complainants mother was out doing some laundry for neighbors, accused repeated the sexual assault on her on November 18, 1994 and December 19, 1994. Complainant testifying further declared that she has three older brothers and a sister. That she is the youngest and the only one who lived with her parents. Her three older brothers lived in Manila, Cotabato and the last one with her grandmother, Vda. De Librada Ratunil. Out of fear, she kept the incident to herself until she felt some unusual pain in her body and when she can no longer manage said situation, she finally broke her silence by going to her grandmother, Librada Vda. De Ratunil at 165 Capistrano Street, Cagayan de Oro City in the evening of March 15, 1995. She was asked by her grandmother about the author of her pregnancy, she answered that it was her father, the herein accused. Complainant on cross examination, admitted having a sweetheart and were engaged for one year already prior to the incident. Her sweetheart, whom she identified as Michael Apduhan pays her a visit at times but on Saturday afternoon only with her mother around. Consequently, there was no occasion that she met her sweetheart alone for either her mother is around in the house or went out with her sweetheart with her barkada during disco dances on the eve of fiestas.

(pp. 24-26, Rollo.) Julias grandmother, Librada Vda. De Ratunil, corroborated Julias story and narrated that on March 15, 1995, Julia arrived at her house and upon knowing the things that happened to her granddaughter, she wrote Julias mother, Emma, her daughter, and informed her of the matter. They decided to report the matter to the police authorities at the Bulua Police Station in Cagayan de Oro City where they executed the complaints (tsn, October 11, 1995, pp. 19-20). Dr. Tammy Uy of the National Bureau of Investigation, Region 10, examined the victim and made the following findings: GENITAL EXAMINATION Pubic hairs, fully grown, abundant. Labiae mejora and minor, both gaping. Fourchete, moderately lax. Vestibular mucusae, violaceous and with engorded veins. Hymen, tall, thick, fleshy, with old healed complete laceration at 9:00 oclock position, and an old healed deep incomplete lacerations at 6:00 non-coaptable. Hymenal orifice, originally annular, admits a glass tube of 2.5 cms. Diameter with slight resistance. Vaginal walls, lax; rugosities obliterated. Uterus, enlarged with palpable fundus and with a fundic height of 12 cms. (between the umbilicus and sumphysis pubs). Cervix, soft, non-tender, enlarged, bluish-purpole. Light yellow muccoid cervical discharge is noted. CONCLUSION 1. Genital findings present, compatible with sexual intercourse with man on or about 20 October 1994 as alleged and subsequently thereafter. 2. Probable signs of pregnancy present, consistent with the early part of the second trimester of pregnancy, REMARKS: Pregnancy Test gave + sign. (pp. 23-24, Rollo.) Meanwhile, the Department of Social Welfare and Development (DSWD) took custody of Julia who gave birth to a baby boy on August 22, 1995 but whom she would like to put up for adoption because he is a reminder of what her father did to her (tsn, Oct. 11, 1995, pp. 14-15). Likewise, Julia was examined by DSWD Psychologist Ma. Lavern Labitad Jabien who found her to be suffering from inferiority complex and exhibiting feelings of inadequacy and insecurity. Julia was also said to lack security in human relations because of her experience and the brutal treatment she received from her father, and mentally deficient as a result of poor parenting or parental deprivation (tsn, October 18, 1995, pp. 7-9).

Accused-appellant vehemently disputed the charges against him, alleging that the same were engineered by his mother-in-law, Librada Vda. De Ratunil, who despises him for being a drunkard. He further declared that Julia is an errant daughter, who after reaching the age of 14, started attending dances and acquired several sweethearts but only one of them paid visits at their house. Thus, he beat her, especially when he discovered her to be pregnant (tsn, December 6, 1995, pp. 14-18, 26). Accused-appellant claimed that from October to November, 1994, he was working as a mason in the house of Bernabe Granada which is about 200 meters from his house. Among his co-workers were a certain Bermon, Dayata, and Dudong Granada, the son of Bernabe Granada. His working hours were from 6 A.M. to 6 P.M. Likewise, from December 1994 to February 1995, he said he was working at Carlito Caudors house, also spending the same working hours therein. At the same time, he was also a member of the Barangay Tanod of Baikingon (tsn, supra, pp. 9-13). To bolster accused-appellants contention that he was working at the time the rape incidents happened, the defense presented his employers, Bernabe Granada and Carlito Caudor. Granada testified that in October 1994, he engaged accused-appellant for masonry work in the lay-outing of his house. Accused-appellant worked from 8 to 11:30 oclock in the morning and from 1 to 4 oclock in the afternoon and oftentimes took his lunch at the workplace. His house is located in Zone 6 while that of accusedappellant is in Zone 5. Accused-appellant stopped working for Granada on January 20, 1995 (tsn, March 13, 1996, pp. 4-5). On the other hand, Caudor testified that he had known accused-appellant for 15 years and that for the months of October and November, accused-appellant worked in Caudors house from 8 to 11:30 oclock in the morning and from 1 to 4:30 oclock in the afternoon. Among his co-workers were Matias Remerane, Julieto Dayata, and Danilo Caudor (tsn, January 31, 1996, pp. 3-6). After trial, on June 8, 1996, the Regional Trial Court of the 10th Judicial Region, Branch 21, in Cagayan de Oro City, presided over by the Honorable Arcadio D. Fabria rendered judgment finding accused-appellant Amado Sandrias Javier guilty of Rape under Criminal Case No. 95-136 and of Qualified Seduction in Criminal Cases No. 95-147 and 95-148, and disposed as follows: WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of the crime of RAPE in Criminal Case No. 95-136 defined and penalized by Art. 335 of the Revised Penal Code as amended by R.A. No. 7659, and hereby sentences him to death and in Criminal Cases Nos. 95-147 and 95-148 finds him guilty of Qualified Seduction under Article 337 of Paragraph 2 of the Revised Penal Code and sentences him to an indeterminate penalty in each case of (5) years, (5) months and (11) days of Prision Correccional as minimum to (6) years, (8) Months and 20 days of Prision Mayor as maximum and to indemnify the offended party the sum of P50,000 as moral and exemplary damages, to support the child until he shall have reached the age of majority and to pay the costs. The accused is further ordered to recognize and acknowledge the said child as his son. SO ORDERED. (p. 35, Rollo.)

Accused-appellant assails said judgment and anchors his appeal on the general and catch-all argument that the trial court erred in convicting him despite the failure of the prosecution to prove his guilt beyond reasonable doubt. Accused-appellant questions the credibility of complainant mainly because she has a sweetheart and used to attend discos and benefit dances which lasted until midnight. He vainly tries to portray a picture of complainant as an unchaste and impure woman who was impregnated by her sweetheart at the tender age of 16. However, this Court believes that vilifying aspersion need not necessarily cast doubt on complainants credibility nor would it negate conclusively the existence of rape. It should be pointed out that the moral character of the victim is immaterial in the prosecution and conviction of the accused. The Court has ruled that even a prostitute can be the victim of rape (People vs. Edualino, 271 SCRA 189 [1997]) for she can still refuse a mans lustful advances (People vs. Iglanes, 272 SCRA 113 [1997]). In the case at bench, complainant is certainly not a prostitute. She even clarified on cross-examination that she was always in the company of friends whenever she attended discos and fiesta celebrations and that she never went out alone with her sweetheart. She likewise stressed that whenever her sweetheart visited her at their house on Saturdays, her mother and father were always present (tsn, October 4, 1995, pp. 5-11). Indeed, accused-appellants self-serving and unsubstantiated slur that his daughter is a woman of loose morals betrays his desperation to exculpate himself from liability. Against complainants positive testimony, accused-appellants self-exculpatory aspersion that complainant may have had sexual intercourse with other males simply cannot prevail. Likewise, accused-appellants contention that the filing of the case was instigated by complainants grandmother fails to sway the Court from lending full credence to the testimony of complainant who remained steadfast throughout her direct and crossexamination. Even in these trying times of poverty and greed, it is difficult to believe that the grandparents of a child would allow her to be subjected to the ordeal and embarrassment of a public trial and to expose her private parts to examination just because they do not approve of accused-appellant as their daughters husband (People vs. Perez, 270 SCRA 526 [1997]). On the contrary, accused-appellant admitted that his relationship with complainants grandmother is not strained, as in fact, his motherin-law used to extend assistance to his family (tsn, December 6, 1995, pp. 23-24). Accused-appellant also claims that complainant was merely impelled by revenge in filing the case as he used to scold and beat her for her disobedience, especially after coming to know of her pregnancy. It is highly inconceivable that complainant would impute a crime so serious as rape against her own father, if this were not the plain truth. The Court has oft repeated that it takes a certain amount of psychological depravity for a young woman to concoct a story which would put her own father to jail for the rest of his remaining life and drag the rest of the family including herself to a lifetime of shame (People vs. Sangil, Sr., 276 SCRA 532 [1997]; People vs. Fuensalida, 281 SCRA 452 [1997]). Complainant cannot be faulted for her delay in reporting the three instances of rape. Delay in reporting rape does not undermine the charge where it is grounded on the accuseds death threats (People vs. Talabac, 256 SCRA 441 [1996]; People vs. Gecomo, 254 SCRA 82 [1996]).

Complainant satisfactorily explained her hesitation in reporting the incidents, thus: Prosecutor Tagarda xxxx Q: And you said you cried, what happened? A: I kept on crying and he came to me and admonished me that he will kill me if I will report the matter to my mother. Q: And when he warned you that he will kill you if you report the matter to your mother, what did you feel? A: I was not able to reveal to my mother because I know that he has pistola in his possession. xxxx (tsn, September 27, 1995, p. 10) More importantly, the aggressor was none other than her father with whom she lived. Thus, not much explanation is needed to understand the prolonged silence of the victim. Accused-appellants defense of alibi was properly rejected by the trial court. He insisted that at the time the rape incidents happened, he was in his working place. However, considering that the place where he supposedly was is merely 200 meters from his own house (tsn, December 6, 1995; p. 10; January 31, 1996, p. 8), a distance which could be covered by a 5-minute leisurely walk, this defense cannot prevail over complainants positive identification of accused-appellant (People vs. Escober, 281 SCRA 498 [1997]; People vs. Parrazo, 272 SCRA 512 [1997]). Courts have always looked upon the defense of alibi with suspicion and have invariably received it with caution not only because it is inherently weak and unreliable but also because it is easily fabricated. For alibi to serve as basis for acquittal, it must be established with clear and convincing evidence. The requisites of time and place must be strictly met (People vs. Caada, 253 SCRA 277 [1996]). Where the accused fails to convincingly demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission, as in this case, the defense of alibi must be rejected. The trial court correctly convicted accused-appellant of the crime of rape in Criminal Case No. 95-136. However, we cannot agree with its judgment insofar as Criminal Cases No. 95-147 and 95-148 are concerned. The trial court concluded: While the court is convinced that there was sufficient force and intimidation employed by the accused in committing sexual intercourse on complainant in the

October 20, 1994 incident, it entertains some doubts about the degree of force and intimidation as would warrant a finding of rape for the sexual intercourses committed on November 18 and December 19, 1994. (p. 34, Rollo.) The trial court proceeded to convict accused-appellant merely of qualified seduction under Article 337 of the Revised Penal Code in the aforementioned cases. A careful perusal of the record would disclose that accused-appellant employed practically the same force and intimidation in committing the crime on October 20, 1994, November 18, 1994 and December 19, 1994. The commission of rape with force and intimidation under Article 335 (par. 2) of the Revised Penal Code is clearly established by the testimony of complainant herself, thus: Prosecutor Tagada Q: After you shouted, what happened? A: My father boxed my stomach or abdomen kuto-kuto. Q: After your stomach or abdomen was boxed by your father the accused in this case, what happened to you? A: I lost consciousness. Q: Now when you regain(ed) consciousness what happened? A: I noticed that I have no more short pants and panty. Q: What else did you notice? A: I felt pain at my vagina. Q: What else? A: And my vagina was bleeding. Q: What else did you observe? A: I cried. Q: Aside from the bleeding oozing from your vagina, what else did you observe? A: I noticed that there was something when I touched there is sticky fluids. Q: And you said you cried, what happened? A: I kept on crying and he came to me and admonished me that he will kill me if I will report the matter to my mother.

Q: And when he warned you that he will kill you if you report the matter to your mother, what did you feel? A: I was not able to reveal to my mother because I know that he has pistol in his possession. Q: Did you report when your mother came, did you report the incident? A: I did not. Q: Now that happened on October 20, 1994 after same date, what happened next? A: There was something that happened to me after October 20, 1994 to December. Q: December of 19? A: 1994. Q: What did your father do to you after that incident of October 20, 1994 to December 19, 1994? A: He again raped me. Q: And what time your father raped you again? A: At 1:00 oclock in the afternoon more or less. Q: Why, do you know the reason? A: Because that was the schedule when my mother wash(es) clothes. Q: How about in the month of November 1994? A: He again raped me. Q: What date in November? A: November 18. Q: The time is? A: 1:00 oclock in the afternoon. Q: And the place is ? A: At Baikingon. Q: Where at Baikingon? A: At Zone 5 in our house.

Q: Will you please narrate to the Honorable Court how did your father rape you on November 18, 1994? A: He again called me at their conjugal bedroom of my mother. Q: What happened when he called you? A: I refused to do so but there is nothing I could do because nobody heard my shout. Q: After you shouted? A: He again boxed my abdomen. Q: What happened when you were boxed by your father? A: I was unconscious. Q: When you regained consciousness, what did you observe? A: I dont have panty anymore and no short pants. Q: What else did you discover? A: I felt pain in my vagina. Q: And what else happened? A: Blood was oozing with my vagina. Q: What happened after that? A: When I touched my vagina, there was a sticky fluid. Q: What did you feel, tell us if any? A: He frightened me that if I will tell everything to (an)other person I will be killed. Q: And when your father frightened you, what did you feel? A: I was afraid because I was not able to reveal to my mother, I know that he has a pistola. Q: Now, in the month of December what happened in December 1994? A: About the end of December. Q: What about in December 1994? A: He again raped me.

Q: Where did he rape you? A: In the same place in his bedroom. Q: Will you please narrate before the Honorable Court what happened before, what time was that? A: At 1:00 oclock In the afternoon. Q: And who were in the house when that incident happened at the end of December 1994, who were the persons in the house? A: We were only two. Q: Where was your mother then? A: She was washing clothes. Q: Will you narrate before the Honorable court the incident leading to the rape that occurred to you the last portion of December 1994? A: Almost at the end of December 1994, I was, at around 1:00 oclock in the afternoon, again I was raped by my father. Q: What happened at 1:00 oclock in the afternoon at the end of the last portion of December 1994? A: At around 1:00 oclock in the afternoon at the end of December 1994, I was again called by my father to enter his bedroom. Q: And did you enter his bedroom when you were called by your father? A: I did not. Q: What happened? A: He pulled my right hand. Q: And then after that? A: I shouted but nobody answered. Q: After that? A: My panty and my short pant were no longer in my body. Q: What did you observe? A: I felt the pain in my vagina.

Q: What else did you observe? A: My whole body feel the pain. Q: After that, what else happened. Where was your father when you felt that your whole body was aching? A: My father was already outside the bedroom. Q: What did he tell you if any? A: He will kill me if I will report to anybody. (tsn, September 27, 1995, pp. 9-12) The above testimony plainly shows how accused-appellant took advantage of his moral ascendancy over complainant despite her struggle and resistance. The force and violence required in rape cases is relative and need not be overpowering or irresistible when applied (People vs. vs. Errojo, 229 SCRA 49 [1994]). For rape to exist, it is not necessary that the force or intimidation be so great or be of such character as could not be resisted it is only necessary that the force or intimidation be sufficient to consummate the purpose which the accused had in mind (People vs. Caada (253 SCRA 277 [1996]; People vs. Antonio, 233 SCRA 283 [1994]). Accused-appellant, being the father, undoubtedly exerted a strong moral influence over complainant. In rape committed by a father against his own daughter, the formers moral ascendancy and influence over the latter may substitute for actual physical violence and intimidation (People vs. Casil, 241 SCRA 285 [1995]; People vs. Burce, 269 SCRA 2293 [1997]). Well-settled is the rule that physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself against her will to the rapists embrace because of fear for life and personal safety (People vs. Dones, 254 SCRA 696 [1996]; People vs. Ramos, 245 SCRA 405 [1996]). Obviously, the use of threat of death by accused-appellant against complainant constituted sufficient intimidation to cow her into obedience. Finally, this Court has also ruled that if resistance would nevertheless be futile because of a continuing intimidation, then offering none at all would not mean consent to the assault as to make the victims participation in the sexual act voluntary (People vs. Pamor, 237 SCRA 462 [1994]). Moreover, assuming that the prosecution failed to prove the use of force by accusedappellant, the latter cannot be convicted of qualified seduction. It is only when the complaint for rape contains allegations for qualified seduction that the accused may be convicted of the latter in case the prosecution fails to prove the use of force by the accused (People vs. Antido, 278 SCRA 425 [1997]). To do otherwise would be violating the constitutional rights of the accused to due process and to be informed of the accusation against him. The accused charged with rape cannot be convicted of qualified seduction under the same information (People vs. Ramirez, 69 SCRA 144 [1976]). Then, too, rape and qualified seduction are not identical offenses. While the two felonies have one common element which is carnal knowledge of a woman, they

significantly vary in all other respects (Gonzales vs. Court of Appeals, 232 SCRA 667 [1994]). What the trial court should have done was to dismiss the charges for rape in Criminal Cases No. 95-147 and 95-148, if indeed, in its opinion, the prosecution failed to sufficiently establish the existence of force and intimidation, and order instead the filing of the appropriate information. Be that as it may, this Court believes otherwise and is fully convinced that accused-appellant is guilty as well of these two other counts of rape. The trial court ordered accused-appellant to recognize the child born to complainant despite the fact that said accused-appellant is a married man. The rule is that if the rapist is a married man, he cannot be compelled to recognize the offspring of the crime as his child, as the character of its origin legally prevents him from doing so (People vs. Guerrero, 242 SCRA 606 [1995], citing People vs. De Guzman, 217 SCRA 395 [1993] and People vs. Rizo, 189 SCRA 265 [1990]). Thus, the order of the court a quo pertaining thereto must be deleted. Critical and more substantial, however, are certain misgivings we entertain with respect to the propriety of imposition of death penalty as there is one facet of the case which necessitates elucidation. Accused-appellant is being charged under Section 11 of Republic Act No. 7659 which amended Art. 335 of the Revised Penal Code and which reads: SEC. 11. Article 335 of the same Code (Revised Penal Code, as amended) is hereby amended to read as follows: ART. 335. When and how rape is committed.- Rape is committed by having carnal knowledge of a woman under any of the following circumstances: xxx xxx xxx The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. In the case at hand, the complaints stated that the rape victim is 16 years old which therefore qualified her under the aforequoted provision. However, it is significant to note that the prosecution failed to present the birth certificate of the complainant. Although the victims age was not contested by the defense, proof of age of the victim is particularly necessary in this case considering that the victims age which was then 16 years old is just two years less than the majority age of 18. In this age of modernism, there is hardly any difference between a 16-year old girl and an 18-year

old one insofar as physical features and attributes are concerned. A physically developed 16-year old lass may be mistaken for an 18-year old young woman, in the same manner that a frail and young looking 18-year old lady may pass as a 16-year old minor. Thus, it is in this context that independent proof of the actual age of a rape victim becomes vital and essential so as to remove an iota of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances enumerated in Republic Act No. 7659. In a criminal prosecution especially of cases involving the extreme penalty of death, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which an accused is charged must be established by the prosecution in order for said penalty to be upheld. We have meticulously examined the records of the case and we are convinced that the evidence for the prosecution falls short of the required quantum of proof for the proper imposition and carrying out of the death penalty. Verily, the minority of the victim must be proved with equal certainty and clearness as the crime itself. Otherwise, failure to sufficiently establish the victims age is fatal and consequently bars conviction for rape in its qualified form. In view of the foregoing consideration, we are constrained to hold accused-appellant liable only of simple rape, and to reduce the penalty to the lower indivisible penalty of reclusion perpetua. Inasmuch as the rape in this case is not qualified by any of the circumstances under which the death penalty is to be imposed, the civil indemnity to be awarded to the offended party should remain to be P50,000.00 for each count. In line with the case of People of the Philippines vs. Senen Prades (293 SCRA 411 [1998]), accusedappellant should indemnify the victim the sum of P50,000.00 as moral damages without need for proof of the basis thereof. Lastly, accused-appellant is liable to pay complainant the sum of P20,000.00 as exemplary damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own daughters (People vs. Lao, 249 SCRA 137 [1995]; People vs. Sangil, Sr., 276 SCRA 532 [1997]). WHEREFORE, the judgment appealed from is hereby MODIFIED, to wit: 1. Accused-appellant is found guilty beyond reasonable doubt of three counts of crime of simple rape, and is hereby sentenced to suffer the penalty of reclusion perpetua for each count. 2. Accused-appellant shall indemnify the victim for each count of rape the following: (1) P50,000.00 as civil indemnity; (2) P50,000.00 as moral damages; and (3) P20,000.00 as exemplary damages. 3. The portion of the judgment of the trial court ordering accused-appellant to recognize and acknowledge the child as his son, is deleted. SO ORDERED. Romero, Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., on leave.

G.R. No. 110974-81 June 17, 1997 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANTE MANANSALA Y MANALANSANG, accused-appellant.

MENDOZA, J.: This is an appeal from the decision of the Regional Trial Court of Manila, Branch 9, finding the accused-appellant Dante Manansala y Manalansang guilty of rape against his fourteen-year old daughter, Jennifer Manansala, and sentencing him to reclusion perpetua with all the accessory penalties of the law and to pay the offended party P40,000, plus costs. The facts are as follows: Accused-appellant Dante Manansala y Manalansang is the father of herein complainant Jennifer Manansala. He was a "taho" vendor. He lived in the "taho" factory located at 1223 Asuncion Street, Tondo, Manila, after separating from Jennifer's mother with whom he had lived in common law relation. On November 17, 1991 Jennifer, accompanied by her mother, Teresita Espinocilla, complained to the Western Police District Command at UN Avenue, Manila, that she had been raped several times by her father from November 1, 1991 up to November 8, 1991. In a sworn statement she narrated: 1 Noong pong grade V ako sa Almario Elementary School, Tondo, Manila, tinawag ako ng tatay ko si RODANTE MANANSALA Y LUMIBAO, 44 years old, at binigyan niya ako ng pera ng bente pesos (P20.00) at ako ay kanyang isinama sa pabrika ng taho kung saan siya kumukuha ng panindang taho, dahil nagtitinda po siya ng taho, ng isang tanghali, at pagdating doon sa pabrika, dinala niya ako sa itaas ng pabrika at pagkatapos hinubaran niya ako ng damit, at nang ako ay hubad na inihiga niya ako at ako ay kanyang ginahasa. Pagkatapos pinauwi na niya ako. Simula noon maraming beses na ako niyang ginalaw, at nagsumbong na ako sa Nanay ko, hanggang sa mahuli siya ng Mobile Patrol ng Western Police District, at dinala na kami dito sa himpilang ito. A medical examination conducted on November 17, 1991 by Dr. Marcial Ceido, medicolegal officer of the WPD, disclosed that Jennifer was no longer a virgin. A medical certificate (Exh. A) issued by Dr. Ceido stated: 2 (1) Breasts are fairly developing, hemispherical in shape and with brownish nipples and areolae. (2) Abdomen is flat, soft and without trace of pregnancy. (3) Hymen is relatively thin, circular in shape, narrow and with deep old healed laceration at 3 and 9 o'clock position, gaping and extending to the base. (4) Introduced vagina admits two (2) examining

fingers with firmness, while vault is dry. (5) Last menstruation period November 9, 1991 for 4 days. Opinion: The above finding is consistent with a girl who is no longer a virgin. Two days later, eight (8) criminal cases for rape were commenced against accusedappellant, upon complaint of Jennifer, in the RTC of Manila. Dante Manansala pleaded not guilty to all the charges. The prosecution's version is quite vague. Its principal witness, private complainant Jennifer Manansala, declared during her direct examination that, on November 1, 1991, her father called for her through a niece named Josephine. When Jennifer came, she was taken by her father to the "taho" factory in Tondo, where she was ordered to proceed to a room on the upper floor of the factory. Accused-appellant undressed himself, spat at her vagina, took out his penis and put it inside her private part and then proceeded to do the sexual act. As Jennifer described the incident, "Dinuraan po niya ang harap ko at pinilit niya pong ipasok ang kanya sa akin. Minumura niya ako." 3 Jennifer stated that she felt pain as her father inserted half of his penis into her private part. 4 She told the court that she saw a white sticky substance coming out of her father's sexual organ as the latter pulled it from her vagina. 5 After her ordeal, she said she was sent home. 6 She was again summoned by her father and repeatedly subjected to the same sexual torture on November 2 and 3, 1991 in the "taho" factory. 7 On November 4, 1991, she was again called by her father and brought to the factory where she was ordered to undress. She was repeatedly hit in the body with a belt when she refused to give in to his demand. Thereafter, the accused-appellant inserted his private part into her vagina. 8 Nothing happened the following day. 9 But the next day, November 6, her father called for her again and brought her to the "taho" factory where she was again undressed and allegedly raped. 10 Her father repeated the same act the following day 11 and finally, in the afternoon of November 8, 1991, her father for the last time, brought her to the "taho" factory where she was again violated. Her father fondled her private parts and forced his penis into her vagina. She was later ordered to dress and go home. She made an observation that her father would withdraw his penis whenever a white sticky substance would come out from the same. 12 She told the court that she reported the incident to her mother several times but was told that she was taking time before taking action against him. 13 On cross examination, Jennifer changed her statement that the rapes were committed in the "taho" factory in Tondo. She told the court that only the first one was committed there and that was on November 1, but the rest were committed in Tarlac, from November 2, 1991 to November 8, 1991, but when next queried by the defense counsel where she had been raped whether in Tarlac or at the "taho" factory in Manila she said at the "taho" factory. 14 So messy was her account of the place where she had allegedly been raped that in the next hearing on March 20, 1992 she was again asked, this time by the court, where she had been raped on November 3, 1991 and she said, without limiting herself to November 3, that "what actually happened is that [she] was raped at Tarlac." She explained that the reason why she claimed she had been raped at the "taho" factory in Manila was because she was afraid her complaints might be dismissed for improper venue. 15

In the course of her cross examination she mentioned that her father gave her money everytime they had sexual intercourse. 16 She also stated that it was only on November 16, 1991 that she first saw her mother after arriving from Tarlac with her father. 17 The prosecution also presented Jennifer's mother, Teresita, as witness. She testified on direct examination that she and the accused-appellant Dante Manansala had three (3) children, including complainant Jennifer, 18 that in the beginning she and accusedappellant lived with the latter's parents in Tondo, Manila; 19 that they later separated from her parents-in-law but accused-appellant, a "mama's boy," returned to his parents' house after only six months; 20 that she no longer lived with said accused-appellant; that Jennifer informed her about the rape incidents only on November 14, 1991; that she immediately filed a complaint with the NBI and had her daughter examined by a medico-legal officer who informed her that Jennifer was no longer a virgin; and that the accused was arrested on November 15, 1991 (actually only on November 17, 1991, according to the record). 21 On cross examination, the same witness told the court that she and accused-appellant separated in 1986, after one of their children died of measles and accused-appellant blamed her for what had happened; 22 that she was having an affair with a certain Orlando because accused-appellant neglected their family and refused to give them support; 23 that she missed Jennifer in their house from November 1, 1991 up to November 13, 1991, when Jennifer arrived from Tarlac; 24 that she was informed by a neighbor, Perla, that Jennifer had gone to Tarlac with her father; 25 and that Jennifer later told her that she had been raped in Tarlac. 26 Fourteen days later, during the continuation of her cross examination, Teresita said that, contrary to what she had said earlier, she had been told by Jennifer that the sexual assaults happened not only in Tarlac but also at the "taho'' factory in Manila 27 and that she had been raped four times. 28 WPD medico-legal officer Marcial Ceido also testified. He said that Jennifer was no longer a virgin at the time of the examination and that it was possible for her to have been raped from November 1, 1991 up to November 9, 1991. 29 Accused-appellant Dante Manansala denied the accusations against him. Under examination by his counsel, he said that he had three (3) children by Teresita Espinocilla; 30 that they were no longer living together; 31 that he was not giving Teresita financial support; 32 that he was in Tarlac from October 31, 1991 up to November 14, 1991, having gone there for All Saint's Day; 33 that Jennifer was with him in Tarlac on those dates; 34 that he did not do any of the acts alleged in the complaints; 35 and that the reason the complaints were filed against him was because his wife Teresita was angry at him for his refusal to give her money. 36 Accused-appellant said that Teresita was a very violent person and that she beat Jennifer whenever she was angry. On several occasions, Jennifer showed him the scratches and marks caused by her mother. He said at one time even he had been chased by his wife with a knife. 37 On cross examination, Dante admitted that he had been previously jailed for gambling and that he was a member of the "Sputnik" gang. 38 He told the court, however, that he was never convicted of any crime and that he had been incarcerated for less than a day. 39 On redirect examination, he said that Jennifer loved him more than she did her mother and that she begged him to take her along when he went to Tarlac on November 1, 1991. He insisted that Jennifer had been instigated by her mother to file the cases against him. 40 Dante's testimony that he did not rape Jennifer and that he and Jennifer were both in Tarlac from October 31, 1991 up to November 14, 1991 was corroborated by the testimonies of the accused-appellant's mother, Adriana Manansala 41 and his aunt Rebecca M. Bautista. 42 Recalled to the witness stand to rebut Manansala's testimony, Jennifer said:
43

What he declared sir is not true, he committed the acts I complained of against me why will I complain if he did not commit the acts. On August 27, 1992, the trial court found accused-appellant guilty of having raped his daughter in the "taho" factory in Tondo, Manila on November 1, 1991. However, although finding that accused-appellant had also raped his daughter from November 2, 1991 to November 8, 1991, the trial court found that he committed the rest of the crimes in Tarlac, beyond its jurisdiction. Accordingly, it held accused-appellant Dante Manansala guilty of rape committed in Manila on November 1, 1991, as charged in Criminal Case No. 91-100766, but dismissed the complaints in Criminal Case Nos. 100767 to 100773, with respect to rapes committed from November 2, 1991 to November 8, 1991. The dispositive portion of its decision reads: 44 WHEREFORE, this Court finds accused DANTE MANANSALA y MANALANSANG GUILTY beyond reasonable doubt of the crime of rape as principal in Criminal Case No. 91-100766 and hereby sentences him to RECLUSION PERPETUA with all the accessories of the law, to pay the offended party P40,000.00 and to pay the cost. He shall be credited with the full period of his preventive imprisonment as provided for and mandated in Batas Pambansa Blg. 85. Criminal Cases Nos. 91-100767 to 100773 are all DISMISSED for lack of jurisdiction. Accused-appellant assigns the following errors against the decision.
45

(1) THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT HAD SEXUAL INTERCOURSE WITH THE PRIVATE OFFENDED PARTY ON NOVEMBER 1, 1991 AT THE TAHO FACTORY IN TONDO, MANILA. (2) THE LOWER COURT ERRED IN NOT ACQUITTING THE APPELLANT OF THE CRIME CHARGED IN THE INFORMATION. He contends that: 46 1. As testified by the appellant, he was in San Miguel, Tarlac from October 31 to November 14, 1991; 2. Private offended party [did] not get pregnant despite her allegations that she was raped from November 1, 1991 to November 8, 1991 and the fact that her menstruation was on November 9, 1991, Jennifer Manansala did not get pregnant; 3. There were only two (2) lacerations [in the hymen] which are old. It should also be noted that despite the alleged repeated sexual assault on her from November 1 to 8, 1991, the medical examination showed only two (2) lacerations; 4. Jennifer Manansala's testimony suffers from several serious inconsistencies and lies; 5. Her conduct is not that of a victim who was truly raped. The appeal is meritorious.

Incestuous rape is admittedly one of the heinous crimes. This Court has never hesitated to affirm convictions in cases where, after reviewing the whole evidence, it is satisfied that the accused were guilty beyond reasonable doubt of this grievous offense. Only today we have affirmed one such conviction. 47 The Court is equally concerned, however, that the constitutional presumption of innocence is sedulously observed. For this purpose it has formulated a set of principles to guide it in the decision of cases of this nature. These principles are: 48 (1) An accusation for rape is easy to make, difficult to prove, and even more difficult to disprove; (2) In view of the intrinsic nature of the crime, where only two persons are usually involved, the testimony of the complainant must be scrutinized with utmost caution; (3) The evidence for the prosecution must stand or fall on its own merits and cannot draw strength form the weakness of the evidence for the defense. With these principles in mind, the Court is constrained to reverse the conviction of the accused-appellant Dante Manansala y Manalansang on the ground of reasonable doubt. The trial court dismissed for lack of jurisdiction charges of rape allegedly committed from November 2, 1991 up to November 8, 1991, after finding that accused-appellant could not have committed the rapes in Manila because he was in Tarlac on those dates. But it found that accused-appellant was guilty of raping his daughter on November 1, 1991 in Manila, within its territorial jurisdiction. Its finding was based solely on the testimony of the complainant which the court thought was clear and straightforward because of details given concerning the place where she was raped on November 1, 1991, the people who allegedly greeted her and the activities of her father on that particular day. 49 The trial court said: 50 In the court's opinion, this witness would not remember and call to mind these exchanges of greetings and verbal communication with his father's co-workers if the sexual intercourse that November first did not take place. If it were merely a product of the complainant's imagination as the accused would want us to believe, the court cannot understand how she could possibly connect and vividly recall these ordinary and matter-of-fact happenings that occurred on that day. In so doing the trial court disregarded the contradictory testimony of Jennifer's own mother, Teresita, who stated on cross examination that Jennifer was with accusedappellant in Tarlac from November 1, 1991 up to November 13, 1991 and that Jennifer told her the sexual assaults took place in Tarlac. 51 Accused-appellant could not therefore have raped his daughter in Manila on November 1, 1991. We have in many instances sustained the conviction of an accused on the basis of the lone testimony of the victim, especially because the crime is generally committed with only the accused and the victim present. But in order to justify the conviction of the accused, the testimony must be credible, natural, convincing and consistent with human nature. 52 In the case at bar, we think that the trial court erred in relying on the claim of complainant as basis for its finding that although seven rapes had been committed by accused-appellant against her in Tarlac on successive days from November 2 to 8, 1991, one was committed on November 1, 1991 in Manila, in view of inconsistencies in her statements as to the place of commission of the crime. To be sure, complainant later said that she had lied about the place where she had been raped and that the rapes,

apparently referring to those allegedly committed from November 3 to 8, 1991, had after all, been committed in Tarlac and that the reason she lied was because she was afraid the prosecution of these crimes would be dismissed for lack of jurisdiction of the Manila court. But if, as she implied one rape the one allegedly committed on November 1, 1991 was committed in Manila, there would be no basis for her fear of total failure of prosecution in Manila. The truth is that complainant ran into a series of contradictions because her mother, on February 11, 1992, had told the court that complainant was in Tarlac with accusedappellant from November 1-13, 1991. Complainant could not therefore have been raped in Manila as she had claimed before. So, in the words of accused-appellant's counsel, complainant "undulated and wavered" between two contradictory claims until obviously she was coached to say that the rapes from November 3 to 8 were all committed in Tarlac but those committed on November 1 and 2 were committed in Manila. Hence her testimony that on those days she wanted to tell her mother what had befallen her but her mother did not come home. 53 The pertinent portion of the transcript of stenographic notes graphically portrays how complainant got enmeshed in trying to save her direct testimony that she had been sexually molested by accused-appellant from November 1 to 8 in Manila and the testimony of her mother that complainant was in Tarlac on those dates. On March 5, 1992, complainant testified under cross examination: 54 COURT xxx xxx xxx Q I thought you said, you went to Tarlac? A Yes, Your Honor. Q So you were raped in Tarlac on November 2, 1991? A That is true, Your Honor, because I was actually raped in Tarlac on November 2 to 8, it was only on the 14th my father brought me home because my mother was already furious. Q So you were only raped at the tajo factory on November 1st? A Yes, Your Honor. Q All other rapes as you claimed were committed in Tarlac? A Yes, Your Honor. COURT Proceed. ATTY. PUGUON Q On November 2, will you tell us again where were you raped, was it in Tarlac or at the tajo factory?

A At the tajo factory, sir. COURT When was that? ATTY. PUGUON November 2, Your Honor. Q Are you very sure that it was at the tajo factory when your father raped you on November 2? A Yes, sir. However, at the continuation of her cross-examination on March 20, 1992, complainant testified that she was raped by her father on November 1, 2 and 3, 1991 in Manila, prompting the court to ask which one was correct, that she had been raped on November 3, 1991 in Tarlac or that she had been raped on that day m Manila? It was then that she tried to clear up the contradictions. She said. 55 ATTY. PUGUON: Q Madam Witness, you testified that you were raped on November 1, 1991. Is that correct? A Yes, sir. Q And you also testified that on November 2, 1991 at around 5:00 o'clock in the afternoon you were again called by your father, Is [sic] that correct? A Yes, sir. Q And Madam Witness at the time your father called you, he was four (4) houses away from you? A Yes, sir. ATTY. PUGUON: Q And at the time your father called you on November 2, 1991 at 5:00 o'clock P.M. you were inside your house. Is that correct? A Yes, sir. Q And when you heard your father's call, you went at the corner of Kagitingan St. and Tuazon St., is that correct? A Yes, sir. xxx xxx xxx

ATTY. PUGUON: Q On November 3, 1991, were you raped again? A Yes, sir. Q And Madam Witness, where did you say you were raped on November 3, 1991? A At the Taho Factory, sir. Q Are you sure? It was at the factory? A Yes, sir. Q You said in your earlier testimony that you were raped in Tarlac on November 3, 1991, is that correct? A Yes, sir. COURT: Q Which is now correct, you were raped in Tarlac or in the factory on November 3, 1991? A You see, Your Honor, the reason why I claimed that at the Taho factory is because I was afraid that my complaint against my father might not pursue, what actually happened is that I was raped at Tarlac . Although the question of the trial court concerned the rape on November 3, 1991, complainant's answer that she had been raped in Tarlac appears to refer to all the rapes allegedly committed against her. This is clear from the context of her answer and from the fact that if at least one rape the one allegedly committed on November 1, 1991 was committed in Manila, she did not have to fear that her cases would be dismissed for improper venue. That she had such apprehension could only be because all the alleged rapes against her, from November 1 to 8, had been committed in Tarlac. Private complainant also gave contradictory statements as to how she had been lured by her father to go to the "taho" factory where he was staying on November 1, 1991. On direct examination, she told the court that her father had summoned her through a niece, Josephine. 56 On cross examination, however, she testified that on November 1, 1991, her father passed by her mother's house in Tondo at around 5:00 o'clock in the afternoon; that her father proceeded to go to his parents' house, which is around four (4) houses away from her mother's place; that her father came back and signalled to her ("sssit-sssit") to follow him; that she did as bidden and went to the upper floor of the factory with him and there she was abused by her father. 57 After she had been raped, she went home and found her four aunties but they did not notice her because they were talking to each other; that she took a bath and went to sleep; that she did not see her mother after she was allegedly raped. 58 Complainant also gave conflicting statements as to when she allegedly told her mother that she had been raped. In her direct testimony she claimed she immediately reported the incident to her mother, who later reported the matter to the CAPCOM on November 17, 1991. 59 But on cross examination she testified that she first reported the rape

committed on November 1 to her mother the following day, on November 2, 1991. 60 Fifteen (15) days after giving this testimony, she told the trial court that she arrived in Manila from Tarlac on November 14, 1991 and told her mother what happened to her on November 16, 1991. She testified: 61 Q You said that you returned to Manila on November 14, is that correct? A Yes, sir. Q What time did you arrive in Manila on November 14? A About 10:00 o'clock in the evening, sir. Q You are very sure it was 10:00 o'clock of November 14 when you arrived from Tarlac? A Yes, sir. COURT: ATTY. PUGUON: Q You were with your father? A Yes, Your Honor. xxx xxx xxx Q When did you see your mother after you arrived from Tarlac? A November 16, sir. xxx xxx xxx ATTY. PUGUON: Q You first reported the incident to your mother on November 16, is that correct? A Yes, sir. Q Madame Witness, you were saying that you claimed that you were raped on November 2 up to November 8, you reported the matter on November 16, is that correct? A Yes, sir. Q You never reported that earlier to your mother? A No, sir because my mother is not at home. Q You did not report it to your mother on November 1?

A No, sir because my mother is not at home. Q You also did not report the alleged rape on November 2? A No, sir my mother did not go home. Q And you did not report also the incident from November 3 to November 8? WITNESS: A I could not possibly [have] reported the matter because I was in Tarlac, sir. ATTY. PUGUON: Q But you had testified earlier in your direct testimony that you reported the matter to your mother on November 1, after the incident. Which is correct? A The truth is that I reported the matter on November 16, sir. Q So you were telling a lie when you reported to your mother on November 1 the alleged rape? A Yes, sir. Q And you are also telling a lie when you reported the incident of November 2 to your mother? Is that correct? A That is true, sir. These inconsistencies cannot be dismissed as trivial. They call into question the credibility of complainant. It was error for the trial court to rely on complainant's testimony for evidence that accused-appellant had raped her on November 1, 1991 in Manila. Trial courts must keep in mind that the prosecution must be able to overcome the constitutional presumption of innocence beyond a reasonable doubt to justify the conviction of the accused. The prosecution must stand or fall on its own evidence; it cannot draw strength from the weakness of the evidence for the defense. As we have said: 62 Rape is a very emotional word, and the natural human reactions to it are categorical admiration and sympathy for the courageous female publicly seeking retribution for her outrageous violation, and condemnation of the rapist. However, being interpreters of the law and dispensers of justice, judges must look at a rape charge without those proclivities, and deal with it with extreme caution and circumspection. Judges must free themselves of the natural tendency to be overprotective of every woman decrying her having been sexually abused, and demanding punishment for the abuser. While they ought to be cognizant of the anguish and humiliation the rape victim goes through as she demands justice, judges should equally bear in mind that their responsibility is to render justice based on the law.

The prosecution's evidence is not only shot through with inconsistencies and contradictions, it is also improbable. If complainant had been raped on November 1, 1991, the Court cannot understand why she went with her father to Tarlac on November 2 and stayed there with him until November 14, 1991. She was supposed to have gone through a harrowing experience at the hands of her father but the following day and for thirteen more days after that she stayed with him. It is true the medico-legal examination conducted on November 17, 1991 showed that she was no longer a virgin and that she had recent sexual intercourse. But the fact that she had voluntarily gone with her father to Tarlac suggests that the crime was not rape but, quite possibly qualified seduction, considering the age of complainant (14 at the time of the crime). This is especially true because she said she had been given money by her father everytime they had an intercourse. The fact that she could describe the lurid details of the sexual act shows that it was not an ordeal that she went through but a consensual act. One subjected to sexual torture can hardly be expected to see what was being done to her. What is clear from complainant's testimony is that although accused-appellant had sexual intercourse with her, it was not done by force or intimidation. Nor was the rape made possible because of accused-appellant's moral ascendancy over her, for the fact is that accused-appellant was not living with them, having separated from complainant's mother in 1986. Considering the allegations in the complaint that the rape in this case was committed "by means of force, violence and intimidation," accused-appellant cannot possibly be convicted of qualified seduction without offense to the constitutional rights of the accused to due process and to be informed of the accusation against him. That charge does not include qualified seduction. Neither can qualified seduction include rape. 63 WHEREFORE, the decision of the trial court is REVERSED and accused-appellant Dante Manansala Y Manalansang is ACQUITTED on the ground of reasonable doubt of the crime of rape. SO ORDERED. Regalado, Romero, Puno and Torres, Jr., JJ., concur.

G.R. Nos. 104942-43 November 25, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NAPOLEON SUBINGSUBING, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

PADILLA, J.: Accused-appellant Napoleon Subingsubing was charged with the crime of rape in three (3) separate informations reading thus: CRIMINAL CASE NO. 772

That on or about noontime of November 28, 1989 at Barangay Fiangtin, Barlig, Mountain Province and within the jurisdiction of this Honorable Court, the above-named accused by means of force, threat and intimidation by poking his garand rifle and then boxing the belly of the complainant, MARY JANE S. ESPILAN, which rendered the latter unconscious, did then and there willfully, unlawfully and feloniously have carnal knowledge with the complainant, against her will and without her consent. CRIMINAL CASE NO. 773 That on or about the afternoon of November 30, 1989, at Barangay Fiangtin, Barlig, Mountain Province and within the jurisdiction of this Honorable Court, the above-named accused by means of force, threat and intimidation by putting over the nose of the victim handkerchief soaked with chemical which rendered the latter unconscious did then and there willfully, unlawfully and feloniously have carnal knowledge with the complainant, against her will and without her consent. CRIMINAL CASE NO. 774 That on or about noontime of November 25, 1989, at Barangay Fiangtin, Barlig, Mountain Province, and within the jurisdiction of this Honorable Court, the above-named accused by means of force, threat and intimidation by poking his garand rifle and then boxing the belly of the complainant, MARY JANE S. ESPILAN, which rendered the latter unconscious, did then and there willfully, unlawfully and feloniously have carnal knowledge with the complainant, against her will and without her consent. Upon arraignment, the accused entered pleas of not guilty to the three (3) criminal informations which were then consolidated and tried jointly to expedite proceedings. After trial on the merits, the trial court found the case meritorious for the prosecution in Criminal Case Nos. 772 and 774 in view mainly of the testimony of the complainant which was found credible. Accused-appellant was, therefore, convicted for rape in said cases. However, insofar as Criminal Case No. 773 was concerned, the trial court found the testimony of the complainant therein inadequate to sustain conviction and "surmised that perhaps out of her bitterness, the said complainant wanted to ensure that the accused be meted out the highest penalty possible." Accused was accordingly acquitted in said Criminal Case No. 773. Hence, this appeal in Criminal Case Nos. 772 and 774, docketed in this Court as G.R. No. 104942-104943. The case for the prosecution, anchored mainly on the testimony of the complainant Mary Jane Espilan, was summarized by the trial court 1 the pertinent portion of which states: The complainant Mary Jane Espilan in all of these actions is sixteen years old, unmarried and resident of Philex Mines, Baguio. For the past three years immediately preceding 1990, she continuously lived with her grandmother at the latter's house at Bo. Fiangtin, Barlig, Mountain Province while her parents were residing in Baguio. At that time she was a high school student. The accused Napoleon Subingsubing is the complainant's uncle, the brother of her mother and the son of her grandmother. Said accused was then living with his mother and his niece

in the same house as mentioned. On Nov. 25, 1989, at 1:00 P.M., Mary Jane and Napoleon were alone in the house, the grandmother having gone to the fields. When Mary Jane was about to go out to attend her afternoon classes in school, Napoleon forcibly pulled her to the bedroom of the grandmother, pointed his Garand rifle at her, then punched her in the stomach as a result of which the former lost consciousness. When the complainant regained her senses, she noticed that she was en dishabille and her vagina was bloody. She felt pain in her private parts and is quite certain she was raped or abused. The accused who was then standing outside the room warned the complainant not to tell anybody what happened or else he will kill her. Hence Mary Jane did not report the incident to her grandmother or to anyone for that matter. In the morning of November 28, 1989, at 10:30 o' clock A.M., Mary Jane arrived from school and Napoleon was alone in the house. The latter again leveled his Garand Rifle at the former and pushed her into her bedroom. The complainant tried to get out of the house but the accused held unto her. Inside the room, the said accused pulled down the skirt of Mary Jane, pushed her down on the floor, stripped her of her panties and laid down on top of her with the zipper of his pants open. Forcing the complainant's legs apart, the accused abused or took advantage of the former second time around. All the while, Napoleon was holding unto his rifle and Mary Jane was afraid to scream for he might squeeze the trigger. Immediately thereafter, the complainant gathered up all her clothes and went to their own family house at Bo. Pat-tog, Barlig which is less than a kilometer away from her grandmother's residence. She wanted to get away from her uncle, hence she stayed alone in the house until November 30, 1989 in the morning when the accused followed her. She was then cleaning the ceiling of their house when Napoleon sneaked up behind her, and when the former tried to scream, the accused placed a piece of cloth with some sort of chemical over the nose of the complainant and the latter fainted. When she awoke, Mary Jane found herself lying on the floor stark naked. She felt that she had again been sexually molested. The accused who was outside the house menacingly ordered the complainant to pack her clothes and go back home with him. The afternoon of the same day, Mary Jane and Napoleon went back to the house of the former's grandmother. The complainant did not reveal to anybody the things that happened to her for fear that the accused might really kill her as the accused had threatened to do. Months later, when she was with her parents in Baguio, Mary Jane finally divulged everything to her mother Rosita Espilan. They went back to Barlig and reported the incidents to the police station where the statement of the complainant was taken (Exhs. "A," Crim. Case No. 772, pp. 4-5; Crim. Cases Nos. 773-774, pp. 2-3). Thereafter, she had herself physically examined at the Barlig hospital by a government physician and was found pregnant (Exh. "C"; p. 6, Crim. Case No. 772). On August 29, 1990 in Baguio, the complainant delivered a baby boy. The latter before all these things happened to her was a virgin with no prior sexual experience. She did not even have a boyfriend. In open court, Mary Jane Espilan singled out the accused Napoleon Subingsubing as the culprit in all of the incidents she earlier testified to. xxx xxx xxx At the trial, the accused Napoleon Subingsubing denied the charge of rape as narrated above and proferred a different story. Interposing consent on the part of the complainant as a defense, he testified 2 that at around 10:00 o' clock in the morning of 25 November 1989, he arrived at his mother's house at Bo. Fiangtin, Barlig, Mountain Province after fetching wood. Shortly thereafter, the complainant arrived from school, massaged the

back of the accused and then prepared their lunch. After eating, the accused went to his room to rest but was followed by the complainant who laid down beside him, placed her hand on the accused's stomach, and then the pair embraced. They both removed their clothes and then had sexual intercourse. At this time, the complainant was smiling, tightly embracing the accused. After the intercourse, the complainant put on her clothes, went to her room to change and then went back to school. That evening, the accused brought the complainant to attend a wake. The accused also professed that the incident on 25 November 1989 was the only occasion when he had sexual intercourse with the complainant. On 28 November 1989, the complainant asked him to help clean their house located at Pat-tog, Barlig, Mountain Province, as witnessed by a neighbor's child. The accused denied that he had sexual intercourse with the complainant on 28 November and 30 November 1989. To bolster the claim of the accused, his mother, Rufina Subingsubing, who is also the grandmother of the complainant, testified, 3 among others, that the three (3) of them were living in one house and that their relationship was happy, even after the month of November 1989; that the complainant left her house in March 1990 for a vacation and was fetched by her mother; that the only thing she observed about the complainant was that her breasts were becoming bigger; that the complainant and the accused got food for the pigs on Saturdays and that when the latter would receive his monthly salary, the complainant would ask him to take her to the movies. Three (3) other witnesses for the defense were presented who corroborated the story of the accused and testified that indeed, the complainant and the accused were seen going out together and sharing happy moments months after November 1989 (when the alleged rapes were committed). It is a fundamental rule in criminal procedure that the prosecution has the onus probandi in establishing the guilt of the accused, as a consequence of the tenet ei incumbit probatio qui dicit, non qui negat, that is, he who asserts, not he who denies, must prove. This is especially significant in rape cases for, generally, in the prosecution thereof, the only two (2) parties who can testify as to the occurrence are the complainant and the accused. Very often, their respective testimonies are diametrically contradictory as to what really happened. 4 A careful perusal of the records of the present case reveals, even if were to assume arguendo that the defense of consent on the part of the complainant was not sufficiently established, that the evidence for the prosecution cannot, on its own, stand and suffice to establish the guilt of the accused for the crime of rape beyond reasonable doubt. Although the general rule is that this Court by and large respects the factual findings of the trial court because of its better position in assessing the credibility of witnesses through close scrutiny of their demeanor, mannerism and attitude, the present case falls short of convincing us that it falls under such general rule. A perusal of the records and the testimony of the complainant discloses contradictions and inconsistencies on vital details which lead one to seriously doubt the veracity of her story. On 05 March 1991, during her direct examination, complainant described the incidents when the accused allegedly raped her, as follows: 5

Q: Will you tell this Honorable Court what was the incident? A: When I was about to leave for school (this was on 25 November 1989) and was almost to go out, my uncle pulled me and when I resisted trying to go out, he poked his gun at me and boxed me on my stomach and I was unconscious. When I woke up, I was conscious already. xxx xxx xxx (Emphasis supplied). Q: When you regain (sic) consciousness miss witness, what was your position? A: I was naked, sir. Q: When you say were naked, you mean to say that your panty was removed? A: Yes. Q: Your shirt, underwear, and even your panty were removed? A: Yes, sir. Q: But before the accused boxed you, do you remember if you were wearing all your clothings? A: I was wearing my school uniform? Q: And when you regained consciousness, you noticed that your clothings were removed? A: Yes. Q: Do you know who removed your clothings? A: Yes. xxx xxx xxx COURT: Q: You said that when the accused was on top of (you) you don't (sic) have any underwear? A: When he was on top of me I was forcing myself to get out. Q: But you don't (sic) have your panty? A: He removed my panty.

Q: About him how did he look? A: Only the zipper of his pant was down. Q: And when he went on top of you? A: Yes and I forced to get out but he was strong. Q: When he was on top of you, you forced yourself to get out, that was all? A: Yes, sir. Q: What else happened? A: He did again what he did to me. Q: And what is that he did to you? A: He abused me again, sir. Q: And what do you mean by abuse? A: He took advantage again of me for the second time. xxx xxx xxx Q: Did you not shout for help? A: I tried, sir, but his gun was poked to (sic) me. xxx xxx xxx Q: Did he tell you anything? A: Yes, he said that if I will scream, he will kill me. xxx xxx xxx Q: And when you went to your house at Barangay Pattog, what happened there, if any? A: When I went to our house at Pat-tog I did not know that he still followed me there, that was on the 30th of November, 1989. Q: He followed you at Barangay Pat-tog on November 30, 1989? A: Yes. Q: And when he followed you there, what happened?

A: While I was cleaning the ceiling of our house, I did not know that he entered the second floor of the house. Q: And after that what happened? A: When I was about to shout, he immediately came to me and put a piece of cloth with chemical on my nose then I felt unconscious already. Q: And were you able to regain consciousness? A: I regained consciousness after all the thing happened to me. Q: And when you regained consciousness, what did you notice? A: I was lying on the floor naked, sir. Q: And what do you think happened to you? ATTY. DOMALSIN: The witness will be incompetent to answer what happened to her because she was made unconscious. COURT: Being the person herself she is competent to feel what happened to her. Q: After you regained consciousness, you stated that you were lying on the floor? A: Yes, sir. Q: What did you feel at that time? A: I felt uneasy. Q: That was all? A: Yes. Q: You did not feel what happened to any part of your body? A: I felt. He did again what he has done to me for the third time. xxx xxx xxx

Q: Do you remember miss witness if during those times when you said the accused boxed you and you felt unconscious. . . .? A: I did not feel anything when I felt unconscious. Q: When he threatened you telling you that will kill you if you tell anybody what happened, what did you say? A: I just kept quiet. Q: Do you have neighbors? A: We have neighbors but they were out that time. xxx xxx xxx Q: On March (November) 28, 1989, do you remember where were you? A: I was in the same house of my grandmother. Q: And what were you were doing at that time? A: I just arrived from school, sir. Q: And when you arrived from school, what happened? A: When I was in the house, he poked his gun at me and stripped my shirt. Q: Who poked the garand rifle at you? A: My uncle, sir. Q: Will you please tell this Honorable Court what happened ? A: At about 11:30 P.M., I entered the house and my uncle poked his gun at me. I don't know why he poked his gun at me then he did again what he did to me. Q: When he poked his gun at you, what did you do? A: I forced my way out. Q: And were you able to go out? A: No, sir because he was strong. Q: What did he tell you, if any? A: The same threat as the first.

Q: After he poked his gun at you, what did you do next? A: He took advantage of me again, sir. Q: Will you be more specific, miss witness. When you said he took advantage of you, what do you mean? A: He did the same thing that he did to me. Q: What is that thing that he did to you? A: He again abused my dignity as a woman. Q: When he poked his gun at you, were you wearing clothes? A: Yes, sir. Q: And after that what did he do? A: He removed my panty. Q: And after removing your panty, what did he do next? A: He did it again. Q: When he removed your panty, what was your position? A: I was standing and I was forcing to leave when he forced me to remove my panty while his gun was poked at me. Q: And after he removed your panty, you said you were standing? A: Yes. Q: Then what did he do next? A: He pushed me down the floor. Q: And after that what did he do next? A: He did the same thing to me. Q: When he pushed you down to the floor, what else happened? A: He was on top of me. Q: When he was on top of you, was he wearing clothes at that time. A: Yes, sir.

Q: He did not remove any of his clothes. A: He removed his pants. Q: What else did he do? A: He put down the zipper of his pant. Q: And after he put down the zipper of his pant, what happened next? A: I tried to get out but he was strong. Q: And after he removed the zipper of his pant, what did he do? A: He abused the dignity of my woman (sic). xxx xxx xxx Q: Miss witness you said a while back that the accused poked a gun to (sic) you then removed your panty and then after that he pushed you down the floor? A: Yes, sir. Q: Aside from that he also removed the zipper of his pant then went on top of you? A: I was unconscious. xxx xxx xxx (Emphasis supplied.) Q: Aside from going on top of you, what else did he do? A: He poked his gun at me. Q: Then what else? A: He did the same thing. Q: The specific thing? A: He raped me again, sir. xxx xxx xxx In short, the complainant on 05 March 1991 testified that on 25 November 1989 and 28 November 1989, the accused employed force and threats which rendered her unconscious and unable to feel anything when ravished by the accused . However, when recalled to the witness stand on 02 April 1991, the same complainant Mary Jane Espilan testified: 6

Q: Miss Witness, you declared during the prior examination that the accused, Napoleon Subingsubing raped, abused your dignity or "pinagsamantalahan ka" and that was on March (November) 28, my question is what do you mean when you said he abused your dignity on March (November) 28, 1991? A: He pointed his gun to (at) me, then pushed me to my lola's room, let me down trying to separate my legs and then he placed his penis into my vagina. COURT: Q: When you said that the accused pointed a gun at you, what kind of gun? A. Rifle, M-14, sir. Q. When he pushed you down, was he still holding his gun? A. Yes, sir. Q. When he was doing the act, was he still holdng his gun? A. Yes. Q. You did not resist. A. I resisted but he was stronger than me. Q. The second time he did the sme, was he still holding the gun? A. Yes, sir. xxx xxx xxx The complainant's theory of force and intimidation manifested in her sworn statement and her testimony on 05 March 1991, and which rendered her "unconscious," is belied by her own testimony on 02 April 1991. Complaint speaks of resistance, intimidation, and loss of consciousness attributed to accused's violence and threats. However, and this must be carefully noted, the complainant's testimony on 02 April 1991 gave a detailed description of what transpired during those incidents. The Court also cannot help but question the conduct of the complainant after the alleged incidents of rape. The complainant did not reveal tghe incidents to her randmother allegedly because the accused told her not to and that he would kill the complainant and her grandmother if she told anyone. Neither did she tell her mother upon the latter's arrival at barlig on 28 April 1990 or soon after the complainant was brought by her mother to Philex Mines in Baguio City. The mother was told of the alleged incidents only on 15 May 1990. It is quite unnatural for a girl not to reveal such assaults on her virtue (if indeed they occurred) immediately after they happened or when the alleged threat on her life and her grandmother's had ceased, as in this case, when complainant had gone to

Baguio. The complainant likewise admitted that after the alleged incidents in November 1989, she still went out with the accused to watch betamax movies or get food for the pigs in the ricefields. Such behaviour directly contradicts the normal or expected behaviour of a rape victim. There is no way she could possibly forgive, to say the least; and yet, complainant interacted immediately with her assailant. Viewed in its entirety, such behaviour of the complainant appears to be inconsistent with her charge of rape. The accused, on the other hand, while admitting that indeed he had sexual intercourse with the complainant on 25 November 1989, set up the defense that the latter consented to such act. The Two (2) succeeding incidents were however denied by the accused. While we find such defenses weak, we nevertheless stress once more the time-honored principle that the prosecution must rely on the strength of its evidence rather than on the weakness of the defense. Appellant's exculpation from the offense of rape does not mean, however, that his responsibility is merely moral and not penal in character. If that were so, considering the facts of this case, it may be cause for right-thinking men and women to discern a gap or fissure in the legal order, one that cries moreover to be bridged. 7 As things stand, for failing to meet the exacting test of moral certainty, it is incumbent upon us to set aside the trial court's judgments of conviction for rape. However, the Court must state that it finds conclusive evidence (no less than the accused-appellant's admission) that on 25 November 1989, the accused Napoleon Subingsubing had sexual intercourse with Mary Jane Espilan when she was only 16 years of age. The complainant and the accused were living in the same house. The accused is the uncle of the complainant, brother of her own mother. Qualified seduction is the act of having carnal knowledge of a virgin over 12 years to 18 years of age and committed by any of the persons enumerated in Art. 337 of the Revised Penal Code, to wit: any person in public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education and custody of the woman seduced. Abuse of confidence is the qualifying circumstance in the offense. Notably, among the persons who can commit qualified seduction is a "domestic". And a "domestic," for purposes of said legal provision, has been interpreted judicially as
. . . Upon the word domestic being employed in said legal provision segregating it from that of a servant, the term is applied to persons usually living under the same roof, pertaining to the same house, and constituting, in the sense, a part thereof, distinguishing it from the term servant whereby a person serving another on a salary is designated; in this manner, it has been properly used. 8

Under the circumstances of the case at bench, we hold that a conviction for qualified seduction is proper in Criminal Case No. 774. The verified complaint for rape contains allegations, sans averment on the use of force, which impute the crime of qualified seduction. Any deficiency in the complaint is supplied by the supporting affidavit, 9 where complainant averred that the accused Napoleon Subingsubing, her uncle, 10 who was living in the same house as the complainant, 11 had sexual intercourse with her. The accused took advantage of his moral ascendancy if not dominance over the complainant. She was presumably a virgin. As already stated, the accused was a domestic in relation to the complainant within the meaning of Art. 337 of the Revised Penal Code. WHEREFORE, in G.R. No. 104943, the judgment of the trial court in Criminal Case No. 774 is hereby MODIFIED by convicting the accused of the crime of QUALIFIED SEDUCTION instead of RAPE. The accused is hereby sentenced to an indeterminate

penalty of six (6) months of ARRESTO MAYOR, as minimum to two (2) years, eleven (11) months and ten (10) days of PRISION CORRECCIONAL as maximum. Accused is likewise ordered to indemnify the complainant in the amount of P30,000.00 and to support the child of the complainant. Costs against accused-appellant. The accused-appellant is ACQUITTED in G.R. No. 104942 (Criminal Case No. 772) based on reasonable doubt. Upon the finality of this decision, let the records of this case be remanded to the court of origin for the sole purpose of determining the amount of support to which the child in Criminal Case No. 774 is entitled. 12 SO ORDERED. Narvasa, C.J., Regalado, Nocon and Puno, JJ., concur.

G.R. No. L-34644 January 17, 1974 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NICANOR ALVAREZ, defendant-appellant. Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T. Limcaoco and Solicitor Carlos N. Ortega for plaintiff-appellee. Alberto Cacnio and Associates as counsel de Oficio, for defendant-appellant.

FERNANDO, J.:

1wph1.t

The existence of grave misgivings as to appellant Nicanor Alvarez committing the crime of rape for which he was sentenced to reclusion perpetua, misgivings engendered by the telltale circumstances of time and place, caused hesitancy on the part of this Tribunal to grant his petition to withdraw his appeal, submitted after the briefs for both the State and the defense had been filed and the case was ready for decision. More specifically, it is not easy for the judicial conscience to be at ease with the conclusion that his guilt had been shown beyond reasonable doubt on such tenuous and ambiguous proof as that of the offense having been perpetrated on June 6, 1969 in a small room where appellant, his wife, his infant son and the offended party, his sister-in law, had retired for the night, without any outcry or visible sign of protest on her part, without any weapon to intimidate her being used, and what is more, without her reporting such alleged assault to her parents until January of 1970 when she was close to her eighth month of pregnancy. It may further be remarked that such an appraisal of the matter was aided considerably by the well-documented, both as to facts and the law, and, therefore, highly persuasive, brief of counsel de oficio, the late Attorney Alberto Cacnio. This is not to say, however, that for having taken advantage of a young teenager over whom appellant did exercise moral ascendancy, he should be exculpated. If he were not to suffer for such a misdeed, that would be an affront to one's sense of justice. It is fitting and appropriate therefore that such an act falls within the concept of qualified seduction. For that crime, appellant should be held responsible.

It was on the basis of a complaint for rape signed by the offended party herself that an information was filed on May 11, 1970 against appellant Nicanor Alvarez. It is worded thus: "That on or about June 6, 1969, in the City of Naga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, did, then and there, wilfully, unlawfully and feloniously rape and have sexual intercourse with the herein complaining witness, [Loreta T. dela Concepcion], a virgin 13 years of age and sister-in-law of the herein accused, while she was asleep by putting himself atop of her body, against her will and without her consent." 1 At the hearing, two witnesses testified for the prosecution, a certain Dr. Honesto Marco, who issued a medical certificate after examining the complainant on January 23, 1970, fully seven months and sixteen days after the alleged rape, to the effect that she was in an advanced stage of pregnancy something rather obvious from her physical condition, 2 and the complainant. It was therefore solely on the basis of the testimony of the offended party herself that the lower court in the decision now on appeal, found appellant guilty beyond reasonable doubt of the crime of rape. There is need then to dwell at length on what was testified to by her. After identifying appellant and stating that he was a brother-in-law, his wife being an elder sister, 3 she was asked whether she was the complainant, and after answering affirmatively, identified her amended complaint. 4 When asked why she filed a case against her brother-in-law, this was her reply: "Because of what had happened to me. He raped me in his house in June 1969." 5 The next inquiry was why she was in his house, to which she had this to say: "Because he asked permission from my father that should take care of his [accused's] son." 6 She admitted that both the son, then almost one year old, and her sister were in the house. 7 The location of the house of the accused in Filoville Subdivision in Naga City was next mentioned. 8 From 5:00 o'clock in the afternoon of June 6 up to the following morning, she was there precisely to take care of the baby. 9 When she arrived in the afternoon at five o'clock the day before, the accused was not present, returning only at around 9:00 o'clock that evening." 10 The next question was what happened afterwards, to which she responded: "Something happened. He raped me." 11 This was followed by a query as to whether it occurred in the presence of the sister, and without hesitation, she affirmed categorically: "Yes, sir." 12The fiscal then sought to ascertain whether the sister offered any opposition to such act of her husband. There was equally a categorical denial thus: "No, sir." 13 Then, when questioned as to where the wife was sleeping when the husband returned at 9:00 o'clock in the evening, she replied: "In the sala." 14 As to the complainant herself, it "was also there in the sala where she slept." 15 The distance was about six meters away. 16 The child was beside the mother. 17 When asked whether she resisted the alleged rape, she answered: "Yes, I resisted, but I could not overcome his strength, because he was stronger than me I was already weak." 18 Then the fiscal specifically sought to determine whether she shouted. This was her response: "As I said, I was weak and tired. After I tried to shout my voice came out and that was the time when I called for my sister." 19 As to whether that shout came after she had been raped, again she affirmed categorically: "I was already raped." 20 She repeated that she was not able to shout while she was being raped because her voice could not come out, as she "was already tired." 21 As to how the act was perpetrated, she stated that she "felt that his body was over [her] body." 22 She maintained that she was asleep at the outset, but after waking up, she resisted, but he, on the other hand, "stayed there and continued doing [it] ." 23 She added that during that time, he threatened to kill her if she ever revealed to anybody what was done. 24 The Court then took over the examination, and when reminded that after being raped, she said she was able to shout, there was a query as to whom it was addressed, and she answered: "To the wife of the accused, my sister." 25 She was, however, "not able to wake up." 26 She did alleged that she reported to her sister the following morning, surprisingly, the sister "did not say any word." 27 Nor she notice whether she got angry or not with her husband. She admitted that while she did struggle, no part of

her dress was torn. 28 She did not, however, report to her mother or father "because [she] was afraid and that [she] might be punished, because [she knew] that what had happened to [her] was bad." 29 It was not after January of 1970 she informed her parents, causing the court to make this relevant observation, "So, [it was] already 8 months from the time you were raped?" 30 When asked, on crossexamination, why she kept the incident a secret for a period several months, her answer was that she "was afraid the accused and [her] parents." 31 Again, the court took over the questioning, asking why that was so, and she answer "He might do it again." 32 When asked specifically whether all that the accused would do, if he would thus get mad was to rape her again, she was candid enough to admit: "Yes, sir." 33 To complete the story, it must be mentioned that a child was born on March 15, 1970, a little over nine months after the above occurrence. In the light, or more appropriately, the obscurity, of the above testimony, what need is there to analyze the evidence offered by the appellant, the only other witness? For the insufficiency of the above declaration of the accused was quite glaring. It would be to overturn a host of doctrines as to the indispensability of showing the guilt of an accused beyond reasonable doubt to justify a conviction. There moreover, the constitutional presumption of innocence, which clearly has not been overcome34 There is no justification then for the decision now on appeal. It is thus evident why, as mentioned at the outset, the holding that appellant was guilty of rape through the use of force or intimidation 35cannot stand. It is different, of course, as will be shown, as far as his culpability for qualified seduction is concerned. 1. Considering the severity of the penalty in prosecutions for rape and the difficulty attending the ascertainment of the facts as they did occur, the judiciary being left to choose between what usually are conflicting versions from the only two parties who could truthfully testify on the matter, it is imperative that the utmost caution be shown. Nowhere is the oft-quoted aphorism of Chancellor Van Fleet to the effect that evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself, in conformity with the common experience and observation of mankind, of more relevance than in cases of this character. 36 Reference to the rigorous analysis and appraisal in the wellwritten brief of counsel de oficio, so logical and realistic, would demonstrate that credulity had not only been strained by the version of the offended party; it had snapped. Thus: "The story of the incident as elicited in the ... complaining witness's testimony, that is, that, she was raped before the very eyes of her sister, wife of herein accused-appellant, without the latter raising a finger, challenges human credulity. Viewed from human observation and experience not even a confirmed sex maniac would dare do his thing before the eyes of strangers, how much more for a healthy husband before the eyes of his very wife? Then, again, testimony that her sister before whose very eyes the alleged raping incident took place did not lift a finger to her, mocks at human sensibility. In the natural course of things, this piece of evidence is repugnant to common experience and observation in that the natural reaction wife would be that of righteous indignation rather than passive [acquiescence]and the natural response of a sister would be to protect the virtue of a younger sister from abuse of her husband." 37 This is another case therefore where an excerpt People vs. Dramayo, 38 on the primary of the constitutional presumption of innocence is highly relevant. Thus: "Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution to demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard, Court has always been committed. There is need, therefore, for the most careful scrutiny

of the testimony of the state both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge be and the appellate tribunal could arrive at a conclusion that the crime has been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty." 39 Appellant is therefore entitled to a reversal of the decision insofar as it would hold him liable for rape. 2. It does not follow, however, that appellant's exculpation from the offense of rape means that his responsibility is merely moral and not penal in character. If that were so, it may be, considering the facts of this case, cause for right-thinking men and women to discern a gap or fissure in the legal order, one that cries moreover to be bridged. Our criminal law is not susceptible to such a reproach, it being clear from the information that the elements of the crime of qualified seduction 40 were included in the facts alleged. 41 He cannot be heard to complain thereafter that he is entitled to complete acquittal. As a matter of fact, in his defense, rightfully given credence by us, he did admit his having taken advantage of an inexperienced adolescent, the younger sister of his wife, to whom he ought to have been bound by the closest ties of affinity, considering also, as testified to by him, how close she felt towards him. As early as 1908, in the leading case of United States v. Arlante, 42 the penalty for qualified seduction was rightfully visited on an accused whose conduct was similar to the appellant. The facts, as set forth in the very able opinion of no less than Chief Justice Arellano, reads as follows: "That the accused had carnally abused two orphan girls, relatives of his wife, who were sheltered in his house; that they respectively gave birth to a boy and a girl, one of them on the 5th of November, 1905, this being the one who files the complaint for seduction, and the other on the 15th of October of the same year, the latter appearing in the case as a witness for the prosecution." 43 To the possible objection that in that case the offended parties were sheltered in the house of the accused, reference may be made to a latter portion of the same opinion where Chief Justice Arellano pointed out: "And even though the accused were not, as a matter of fact, in charge of the keeping of the offended girl, it is beyond doubt that, as she was a domestic, the crime is included within paragraph 1 of said article. 'Upon the word domestic being employed in said legal provision segregating it from that of a servant, the term is applied to persons usually living under the same roof, pertaining to the same house, and constituting, in this sense, a part thereof, distinguishing it from the term servant whereby a person serving another on a salary is designated; in this manner, it has been properly used." 44 There is a Court of Appeals decision, People vs. Lauchengco, 45 penned by Justice Gutierrez-David and concurred in by Justices Alex Reyes and J.B.L. Reyes, all three of whom serve in the Supreme Court, that follows closely the Arlante ruling thus: "We believe that this contention of the appellant is untenable and that he was properly charged and convicted of qualified seduction. He was the master of the house. The offended party was not a mere servant. She was treated as one of the family because she was the cousin of appellant's wife. Hence, in his capacity as head of the family and master of the house, appellant was, for all intents and purposes, the custodian of the complainant. But even though he were not clearly or formally entrusted with the custody of the offended party, it is beyond doubt that, as the latter was serving in his house or was therein as a domestic a term embracing 'persons usually living under the same roof, pertaining to the same house, and constituting, in this
<re||an1w>

sense, a part thereof' ... the appellant upon taking advantage of his authority and abusing the confidence and trust reposed on him as master of the house, violated the provisions of paragraph 1 of Article 337 of the Revised Penal Code." 46 The latest case in point, People v. Fontanilla, 47 this Court speaking authoritatively through the voice of Justice Castro, indicates why it is not deceit, but rather, abuse of confidence, that qualifies this offense. As was made clear by him: "Anent the said marital promise, Fontanilla also claims that there is no evidence on record supporting its veracity. Granting this to be correct, it is nevertheless settled that deceit, although an essential element of ordinary or simple seduction, does not need to be proved or established in a charge of qualified seduction. It is replaced by abuse of confidence. When the offender is a public officer, a priest or minister, a servant, domestic, tutor, teacher, or under any title is in charge of the education or keeping of the offended woman, as in the present case, the act is punishable although fraud or deceit may not have been used or, if employed, has not been proved. The seduction of a virgin over twelve and under eighteen years of age, committed by any of the persons enumerated in art. 337 'is constitutive of the crime of qualified seduction ... even though no deceit intervenes or even when such carnal knowledge were voluntary on the part of the virgin, because in such a case, the law takes for granted the existence of the deceit as an integral element of the said crime and punishes it with greater severity than it does the simple seduction ... taking into account the abuse of confidence on the part of the agent (culprit), an abuse of confidence which implies deceit or fraud.'" 48 Nothing remains to be added except that in a situation like the present, where, in keeping with Filipino mores, a younger sister is called upon to be of help to those ahead of her and to stay, even if intermittently, in the latter's house, especially so after marital ties are formed and children born, may give rise to situations of this character considering that among the poorer elements of our society, all the members of a family are huddled together within briefest confines, and insistence on personal modesty and privacy is practically out of the question. If the ascendancy of a brother-in-law, instead, were used for moral purposes, then, certainly, there is more than a justification for adherence to the view first announce in the landmark Arlante decision that thereby the offense qualified seduction was in fact committed. WHEREFORE, the judgment of the lower court of November 18, 1970, finding the accused guilty beyond reasonable doubt of the crime of rape, is reversed and set aside, and another decision entered in its place, finding him guilty beyond reasonable doubt of the crime of qualified seduction and given the indeterminate penalty of six months of arresto mayor as minimum and two years eleven months ten days of prision correccional as maximum. He is sentenced further to recognize the child born of such relationship and to pay P5,000.00 as damages. No pronounce as to costs. Zaldivar (Chairman), Barredo, Antonio, Fernandez and Aquino, JJ., concur.
1wph1.t

G.R. Nos. 128159-62

July 14, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. HIPOLITO PASCUA, appellant. CORONA, J.:

Before us is an appeal from the decision dated November 14, 1996 of the Regional Trial Court of Pangasinan, Branch 38, finding the appellant guilty beyond reasonable doubt of four counts of rape and sentencing him to suffer the penalty of reclusion perpetua in each case. The appellant was charged with four counts of rape in separate informations which read: "CRIM. CASE NO. L-5409 "That on or about the 27th day of January, 1996 in the evening, in barangay Calvo, municipality of Mangatarem, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with said Liza Paragas, a 12-year old minor inside his house against her will and without her consent, to her damage and prejudice. "CONTRARY to Art. 335 of the Revised Penal Code as amended by R.A. 7659. "CRIM. CASE NO. L-5410 "That on or about the 6th day of August 1995 in the evening, in barangay Calvo, municipality of Mangatarem, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with said Liza Paragas, a 12-year old minor inside his house against her will and without her consent, to her damage and prejudice. "CONTRARY to Art. 335 of the Revised Penal Code as amended by R.A. 7659. "CRIM. CASE NO. L-5411 "That on or about the 20th day of January 1996 in the evening, in barangay Calvo, municipality of Mangatarem, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with said Anna Paragas, a 12-year old minor inside his house against her will and without her consent, to her damage and prejudice. "CONTRARY to Art. 335 of the Revised Penal Code as amended by R.A. 7659. "CRIM. CASE NO. L-5412 "That on or about the month of August 1995 in the evening, in barangay Calvo, municipality of Mangatarem, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with force, violence and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with said Anna Paragas, a 12-year old minor inside his house against her will and without her consent, to her damage and prejudice. "CONTRARY to Art. 335 of the Revised Penal Code as amended by R.A. 7659." 1 On arraignment, appellant pleaded "not guilty" to all charges. Thereupon, joint trial of the cases ensued.

The facts, as culled from the records, follow. Private complainants Liza and Anna, both surnamed Paragas, are twins born on July 12, 1983. The appellant was their neighbor in Calvo, Mangatarem, Pangasinan. Liza and Anna considered appellant as their grandfather although he was not related to them. On August 6, 1995, private complainants were playing near the house of the appellant when the latter called Liza and instructed her to buy juice at the store. Liza obeyed. After she returned from the store, the appellant ordered Liza to go inside his house and lie down on the floor. Appellant then removed Lizas pants and underwear, went on top of her, inserted his penis into her vagina and made push and pull movements. Liza tried to scream but appellant threatened to kill her. After the sexual intercourse, the appellant gave Liza P10 and warned her not to reveal the incident to her mother. Liza then went home but did not tell her mother what happened for fear that her mother would punish her. The same thing happened on January 27, 1996 when Liza was called by the appellant as she was passing by his house. Once Liza was inside, she was forced to lie down by the appellant who then removed her pants and underwear. Appellant went on top of Liza and inserted his penis into her vagina before making push and pull movements. Liza was not able to shout because appellant again threatened to kill her. After her ordeal, the appellant gave Liza P5 and reminded her not to tell her mother what happened. So Liza went home without telling her mother that she was sexually abused by the appellant. Lizas twin sister, Anna, suffered the same fate at the hands of the appellant. Sometime in August 1995, while Anna was playing with her cousins, the appellant called her and asked her to go inside his house. As soon as Anna entered his house, the appellant closed the door, removed Annas pants and underwear, and made her lie down on the floor. Thereafter, the appellant inserted his penis into Annas vagina and ravished her. Anna felt pain but could not shout as appellant threatened to kill her. The appellant also warned her not to tell her mother about the incident. Thus, when Anna went home, she did not tell her mother what appellant had done to her. On January 20, 1996, Anna was on her way home after buying charcoal from the store when the appellant called her anew. As soon as Anna was inside appellants house, the latter told her to remove her pants and underwear but Anna refused. So appellant himself forcibly removed Annas clothes and went on top of her before inserting his penis into her vagina. Again, Anna was not able to shout because she was afraid that the appellant would kill her. As in the prior incident, Anna did not tell her mother that the appellant molested her. Private complainants mother, Leticia Paragas, learned of her daughters ordeal through her older daughter, Rosalina, who, in turn, came to know of the rape incidents from the appellants granddaughter. Apparently the granddaughter witnessed the appellant as he was raping Liza and told Rosalina about it. Upon learning what the appellant had done to her daughters, Leticia confronted them. Liza and Anna were initially reluctant to talk but upon further questioning, they finally revealed that the appellant had sexually abused them. Leticia wasted no time in reporting the matter to their barangay chairman and to the police before whom she filed criminal complaints against the appellant. Thereafter, they proceeded to the Mangatarem District Hospital where the victims were examined by Dr. Athena Merrera. The medico-legal examination conducted on Liza disclosed that she had lacerations at the 3, 4, 5 and 9 oclock positions which were caused by the insertion of a hard object

like the erect penis of a man. On the other hand, the medical findings on Anna showed that she had lacerations at the 2, 3, 7, 8, 9 and 10 oclock positions which were also caused by the insertion of a hard object such as an erect penis. These lacerations suffered by both victims were determined to have been inflicted several weeks or months before the examination on February 14, 1996. At the trial, appellant Hipolito Pascua and his granddaughter, Joy Javier, testified for the defense. The appellant admitted having sexual intercourse with private complainants but insisted that Liza and Anna freely consented to the repeated sexual acts in exchange for money ranging from P5 to P10. On several occasions, Liza and Anna allegedly visited him at home asking for money and sexual satisfaction. In fact, it was private complainants supposed persistence which drove him to accede to their demands to have sex, even if he was having difficulty achieving erection as he was suffering from hernia. Thus, there was never an instance when the appellant forced or threatened private complainants into having sexual intercourse with him. Joy Javier declared that she often saw private complainants at the house of the appellant. At one time, she asked Anna if she had sexual intercourse with the appellant to which Anna nodded. She even warned both Liza and Anna that if they continued to go to appellants house, their mother would know about it. However, despite said warning, she still saw private complainants at the house of the appellant almost everyday. On November 14, 1996, the trial court rendered its assailed decision, the dispositive portion of which states: Wherefore, in the light of all the considerations discussed above, the court hereby renders judgment in the above-entitled cases as follows: In Criminal Case Nos. L-5409 and L-5410, the court hereby finds and holds the accused, Hipolito Pascua, guilty beyond reasonable doubt of the crime of Rape on two (2) counts as charged in the informations filed against him, defined and penalized under the provisions of Article 335 of the Revised Penal Code, as amended by RA 7659, and conformable thereto, pursuant to law, hereby sentences said accused in each case to suffer the penalty of Reclusion Perpetua and to pay the costs. The court further directs the accused to indemnify the offended party, Liza Paragas, the sum of Fifty Thousand (P50,000.00) Pesos in each case or a total of One Hundred Thousand (P100,000.00) Pesos, as moral damages without subsidiary imprisonment in case of insolvency. In Criminal Cases Nos. L-5411 and L-5412, the court likewise finds and holds the accused Hipolito Pascua, guilty beyond reasonable doubt of the crime of Rape on two (2) counts as charged in the informations filed against him, defined and penalized under the provisions of Article 335 of the Revised Penal Code, as amended by RA 7659, and conformable thereto, pursuant to law, hereby sentences the said accused in each case to suffer the penalty of Reclusion Perpetua and to pay the costs. The court likewise directs the accused to indemnify the offended party, Anna Paragas, the sum of Fifty Thousand (P50,000.00) Pesos in each case or a total of One Hundred Thousand (P100,000.00) Pesos, as moral damages without subsidiary imprisonment in case of insolvency. SO ORDERED.2

Insisting on his innocence, the appellant claims in his appeal that he is not guilty of rape because private complainants voluntarily submitted to his sexual desires. The appellant even postulates that, if there should at all be any liability on his part, it should only be for simple seduction. After an exhaustive review, we find ourselves unable to agree with appellants reasoning. The appellants defense that the victims consented to his lascivious desires is simply too preposterous to deserve serious consideration. The same is not only revolting but goes against established norms. No young child in her right mind will consent to have sexual intercourse with a 65-year-old man, specially one whom she considers her grandfather. The appellant desperately tries to portray private complainants as sex-starved maniacs who, at the tender age of 12, persistently demanded sex with him. Further, his story that private complainants would even go naked on top of him was nothing but a yarn that offends sensibilities and Filipino values. Indeed, after admitting that he had carnal knowledge of private complainants on several occasions, the appellant assumed the burden of proving his defense by substantial evidence. The record shows that, other than his self-serving assertions, the appellant had nothing to support his claim that private complainants were teenagers of loose morals and that the repeated acts of sexual intercourse were consensual. It is culturally instinctive for young and decent Filipinas to protect their honor and obtain justice for the wicked acts committed on them. Thus, it is difficult to believe that private complainants would fabricate a tale of defloration, allow the embarrassing examination of their private parts, reveal the shame to the small rural town where they grew up and permit themselves to be subjected to a humiliating public trial if they had not in fact been really ravished. When the offended parties are young and immature girls from 12 to 16, as in this case, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability but also the public humiliation to which they would be exposed by court trial if their accusation were not true. 3 We entertain no doubt that Liza and Anna told the truth. Their testimony was clear that they never consented to the rape. Their declarations during the trial were simple, straightforward and unflawed by any inconsistency or contradiction. A candid and honest narration by the victim of how she was abused must be given full faith and credit for they contain earmarks of credibility.4 In this case, the trial court found these badges of truth to be present in the following testimony of Liza Paragas: FISCAL: Q Where were you by that time when you were ordered by the accused to lie down on the flooring? WITNESS: A Q A Q A Q I was in his house, sir. Now, what transpired after you were ordered to lie down? He removed my pants and my underwear, sir. After removing your pants and underwear, what transpired next? Then, he went on top of me, sir. What happened next after the accused went on top of you?

Then, he made a (sic) push and pull movements, sir.

COURT: Coitus movement. FISCAL: Q What did the accused do when he made this coitus movement?

WITNESS: A He insert (sic) his penis on (sic) my vagina, sir.

Q When he insert (sic) his penis inside your vagina, can you tell if you shouted? A He warned me not to shout or else he will kill me, sir.

Q At what point and time when the accused threaten (sic) you that he will kill you if you will shout, before he place (sic) his penis inside your vagina or after he placed already his penis inside your vagina? A Before inserting his penis on (sic) my vagina, sir.

Q How long a time did the accused make this coitus movement as his penis was inside your vagina? A For five (5) minutes, sir.5

It is clear from the foregoing testimony that private complainants tried to scream but the appellant prevented them by threatening to kill them. Also, after each rape incident, private complainants were warned by the appellant not to tell their mother what happened to them. It is settled that a rape victim is not required to resist her attacker unto death. Force, as an element of rape, need not be irresistible; it need only be present and so long as it brings about the desired result, all considerations of whether it was more or less irresistible is beside the point. 6 Indeed, physical resistance need not be established in rape when, as in this case, intimidation was used on the victim and she submitted to the rapists lust for fear of her life or her personal safety. Jurisprudence holds that even though a man lays no hand on a woman, yet, if by an array of physical forces, he so overpowers her mind that she does not resist or she ceases resistance through fear of greater harm, the consummation of unlawful intercourse by the man is rape. 7 Without question, the prosecution was able to prove that force or intimidation was actually employed by the appellant on the two victims to satisfy his lust. Equally untenable is the argument of the appellant that, if he is at all liable for anything, it should only be for simple seduction. Under Article 338 of the Revised Penal Code, to constitute seduction, there must in all cases be some deceitful promise or inducement. The woman should have yielded because of this promise or inducement. In this case, the appellant claims that the acts of sexual intercourse with the private complainants were in exchange for money. He declared that, prior to every sexual intercourse with Liza and Anna, he would promise them P20. However, aside from his bare testimony, the appellant presented no proof that private complainants consent was secured by means of such promise. As aptly opined by the trial court, the money given by the appellant to private complainants was not intended to lure them to have sex with him. Rather, it was

for the purpose of buying their silence to ensure that nobody discovered his dastardly acts. The evidence for the prosecution was more than enough to show that the element of voluntariness on the part of private complainants was totally absent. Liza and Annas respective testimonies established that the appellant had sexual intercourse with them without their consent and against their will. Considering that the victims accounts of what the appellant did to them were absolutely credible and believable, the trial court correctly convicted the appellant of several crimes of rape against the 12-year-old twins, Liza and Anna Paragas. The Court finds the penalty of reclusion perpetua imposed on the appellant for each count of rape committed against private complainants to be in accord with law. The award of moral damages in the amount of P50,000 for each offense, or a total of P100,000 for each victim, is also correct because, under prevailing jurisprudence, moral damages are mandatory in rape cases involving young girls between 12 and 19 years of age, taking into account the immeasurable havoc wrought on their youthful psyche.8 The trial court, however, failed to award civil indemnity which is automatically granted to the offended party without need of further evidence other than the commission of the rape. Hence, an additional P50,000 for each count of rape, or a total of P100,000, should be given each private complainant as civil indemnity. WHEREFORE, except for the MODIFICATION awarding private complainants an additional amount of P100,000 each as civil indemnity, the appealed decision is hereby AFFIRMED in all other respects. SO ORDERED. Puno, Panganiban, and Carpio-Morales, JJ., concur. Sandoval-Gutierrez, J., on official leave.

G.R. No. 97496 June 3, 1991 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERNANDO TEODOSIO Y CARREON, defendant-appellant. The Solicitor General for plaintiff-appellee. Lazaro Law Firm for defendant-appellant.

GANCAYCO, J.:p The crime of rape is a heinous offense. Its commission must be established by clear and convincing evidence. Invariably, the prosecution must rely on the sole testimony of the offended party. If her version proves to be weak if not credible, then the conviction for the offense charged cannot follow. This is the status of the instant case. Fernando Teodosio y Carreon was charged of the crime of rape in a sworn complaint that was filed by Elaine R. Cesar in the Regional Trial Court (Special Criminal Court) in Manila which reads as follows:

The undersigned accuses FERNANDO TEODOSIO Y CARREON of the crime of rape, committed as follows: That on or about December 19, 1985, in the City of Manila, Philippines, the said accused, by means of force, violence and intimidation, to wit: by then and there dragging the undersigned, more than 12 years of age, inside the room at the Champion Lodge Inn, located at Sta. Cruz, this City and thereafter, she was made to drink the softdrink which rendered her dizzy and unconscious, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned while she was deprived of reason or otherwise unconscious, against her will. Contrary to law. (SGD.) ELAINE R. CESAR
Complainant 1

Upon arraignment the accused entered a plea of not guilty, after which a trial on the merits was conducted. On May 17, 1988 a decision was rendered by the trial court convicting the accused of the offense charged as penalized under Article 335 of the Revised Penal Code. The trial court sentenced him to imprisonment for a term of twenty (20) years, one (1) month and one (1) day of reclusion perpetua and to pay the offended party Elaine Cesar the sum of P15,000.00 as actual damages and P50,000.00 as moral damages. An appeal therefrom was interposed by the accused to the Court of Appeals alleging that the trial court committed the following errors: I THE LOWER COURT ERRED IN FINDING THAT THE CRIME OF RAPE DEFINED AND PENALIZED UNDER ART. 335 OF THE REVISED PENAL CODE WAS PROVEN BEYOND REASONABLE DOUBT BY THE PROSECUTION. II
THE LOWER COURT ERRED IN GIVING CREDIBILITY TO THE TESTIMONY OF THE COMPLAINANT AND HER OTHER WITNESSES.

Pursuant to Section 13, Rule 124 of the 1985 Rules on Criminal Procedure, the Court of Appeals resolved to certify this case to this Court for decision. The resolution of the appellate court is accompanied by a report recommending affirmance of the appealed decision, and the imposition of the penalty of reclusion perpetua. The findings of facts of the court a quo are as follows: In the case at bar, it was established that at time of the incident on December 19, 1985, the offended party, Elaine Cesar, was only 12 years and 6 months old and a mere 6th grader while the accused was already 20 years old and a 4th year college student; and that the accused is a sexually hot individual as borne by the fact that he admittedly masturbates at least once a week. The offended party, Elaine Cesar, testified in a simple, honest and straight-forward manner whereas the

accused testified in an evasive and sometimes incredible and inconsistent manner. Elaine, at the time of the incident, being only 12 years and 6 months old and a mere Grade 6 student, was quite gullible and easily deceived by the accused. This court also noted that the accused admitted, on cross-examination, that he and Elaine agreed that they would stay in the Champion Lodging House for only 'a short time which would be for 3 to 4 hours' only. It also appeared from the testimony of the accused that they left Lyceum at about 3:25 P.M. and then took the LRT at the Central Station and alighted at the LRT Station at Doroteo Jose St., and then they proceeded on foot to the Champion Lodging House which is located along Rizal Avenue between Doroteo Jose and Zurbaran Street, so that the accused and Elaine must have arrived at the said motel between 4 to 5 P.M. on December 19, 1985. The accused failed to explain why they overstayed and left that motel only at about 7:30 A.M. on the following day, December 20, 1985. The accused claimed that when they first arrived at that motel in the afternoon of December 19, 1985, he phoned his house and talked to her sister, Imelda, to tell his family that he would arrive home late that day. In order to satisfy his lustful desires, the accused who is a sexually hot person, drugged the softdrink or pineapple juice which Elaine later drank inside the room in that motel so that she became dizzy and eventually lost consciousness. Once Elaine was unconscious, the accused raped her. According to the accused, they were very tired after walking so much on December 19, 1985 so that when they arrived inside the room of the Champion Lodging House in the afternoon of that day, the first thing they did was to order two glasses of pineapple juice to quench their thirst. And yet according to the accused he alone drank the two glasses of pineapple juice while Elaine did not, so that his testimony on that point is incredible, being against the common experience of mankind. They were both tired and thirsty after having walked around so much and they both needed a drink badly. When she woke up at 5:00 A.M. on the following morning, December 20, 1985, Elaine found blood on her private part or vagina and she felt pain in her body; when she asked the accused what happened, the accused lied by saying that nothing happened. On the following day, December 21, 1985, when Elaine told her mother what happened at the motel, her mother got angry and lost no time in bringing her to the PC Crime Laboratory before 5:00 o'clock in the afternoon to have Elaine physically examined by the expert Medico-Legal Examiner, Col./Dr. Gregorio Blanco. Dr. Blanco testified positively that in the course of his physical examination of Elaine, he found her hymen to have a fresh laceration at 5:00 o'clock and that said fresh laceration meant that there was a very recent sexual intercourse, and he also concluded that the child, Elaine Cesar, was therefore in a non-virgin state because of that fact. Considering that the accused first met Elaine Cesar only on September 11, 1985, it is difficult to believe that the said young girl, being only 12 years and 6 months old at that time, would have consented to go with the accused to a motel on December 19, 1985 for the purpose of submitting her virginity to him. The accused also admitted on cross-examination that while he and Elaine were inside the room in that motel that he kissed and embraced Elaine and that he asked Elaine to give her virginity to him "three times". The accused, being much older than Elaine, took advantage of, deceived and abused the latter sexually by raping her when she was unconscious on account of her having drunk the drugged softdrink or pineapple juice. The defense's evidence, more particularly the

two pictures (Exh. 1 and 2) of Elaine Cesar including the tenderly-worded handwritten dedication (Exh. 1-A) at the back of Exh. 1, did not disprove the fact that the accused raped the child, Elaine Cesar, while she was unconscious inside the room of the Champion Lodging House. The straight-forward testimony of Elaine Cesar as well as the testimony of the disinterested witness, Col./Dr. Blanco, that his physical examination of Elaine Cesar on December 20, 1985 at the PC Crime Laboratory revealed that her hymen had a fresh laceration at 5 o'clock and which indicated recent sexual intercourse was not over-turned by the evidence of the defense.
In this connection, it has been held that absence of spermatozoa does not disprove rape. (People vs. Calainquim, 125 SCRA 655). If the ability to resist is taken away by administering drugs, even though the woman may be conscious, sexual intercourse with her is rape. (People vs. Lintag, 126 SCRA 511). In rape, there must be sexual intercourse. Penetration even partial, is necessary. The slightest penetration is enough. Proof of emission is not necessary. (People vs. Selfaison, et al. L-14732, Jan. 28, 1961). Every person criminally liable for a felony is also civilly liable (Art. 100, Revised Penal Code). 3

Upon a careful review of the records of the case there is no question that on that fateful day of December 19, 1985 Elaine and appellant were together from 7:00 o'clock in the morning when they met in front of the Fargo Department Store in Caloocan City when they attended the Christmas party at the Manila Central University, where Elaine was enrolled, up to 10:00 A.M. Thereafter, they proceeded to the Luneta where they took a stroll. Then they went to the Fiesta Carnival at Cubao, Quezon City and they ate at a nearby McDonald's restaurant. They later proceeded to Lyceum where appellant took his examinations at about 2:30 P.M. Then he fetched Elaine at the canteen where she was waiting. They rode the metropolitan light rail transit at the Central Station up to Doroteo Jose Street. Upon alighting therefrom, they walked to the Champion Lodging House. After drinking two glasses of pineapple juice, they had sexual intercourse. They stayed overnight in the said motel. The focal question is whether the account of Elaine in that she was only forced to go to the motel and that she was made to drink the soft drink so that she lost consciousness is true and supported by the evidence. Elaine admitted that she knew appellant some three months before the alleged incident took place because they were neighbors, i.e., she resided with her grandmother in Caloocan City during her school days. Apparently, they fell in love with each other for Elaine gave appellant her photograph marked Exhibit 1 with her handwritten dedication.
12-6-86

Love, may this picture serve as remembrance for someone special. This shows how much I love you. Take care, study hard, I love you. Please take care of this picture. I trust and love you. Between us remember me always. Love. I love you
Elaine 4

This picture was given by Elaine to appellant while they were inside the Luneta Theater on December 16, 1985 and because of this memento, he kissed her out of joy, according to appellant. He said he courted Elaine for a few weeks and she accepted his proposal by phone. They went out three times to see a movie, that is, in October, 1985, December 16, 1985 and December 18, 1985. It was while at Luneta Theater on December 18 that Elaine invited appellant to accompany her to her class Christmas party. Thus the following day, appellant informed his mother of the invitation and she permitted him and gave him P50.00 pocket money. From 7:00 A.M. of December 19, 1985 to the following morning, they were together, going from one place to the other, until they slept together in the lodging house. There was no force or compulsion involved. It was a day of joy for the two young lovers. Appellant did not drug Elaine to lay with her. She was in love with him and did not hesitate to surrender her virginity to her sweetheart upon a promise of marriage. The contradictions in the testimony of Elaine where she attempted to prove that their coition was involuntary rather than fortify the case of the prosecution, served to demolish the same. Firstly, while Elaine claimed she was dragged to the hotel, her medical examination did not reveal any contusions on her body showing use of any force on her. Indeed, if she was under any compulsion, she could easily have escaped during the many hours they were together going from one place to another, but she did not. She was enjoying their tryst. Secondly, if she was really drugged she should have been given at least a blood and urine test to determine if there were any remaining chemicals in her system. This was not done. Thirdly, after the incident, Elaine was composed and was not disturbed at all. She did not show any sign of having had a traumatic experience. It was only when her mother scolded her that she contrived her story. Fourthly, in one part of her Sagot Salaysay submitted to the fiscal's office, she said she did not accept the invitation of appellant for them to go to the Luneta. 5 In another part thereof, she said she accepted the same. 6 In court, she said she agreed to go to the Luneta 7 and thereafter she said she was forced. 8 She also stated in her Sagot Salaysay that she was only persuaded to give appellant her photograph and appellant dictated what she wrote thereon. 9 In court she admitted she gave the photograph to appellant and that appellant did not ask her to write the dedication thereon. 10 Verily, the foregoing circumstances effectively disproves the theory of force and involuntariness in the sexual interlude of the two. What is obvious and clear is that these two young lovers, carried by their mutual desire for each other, in a moment of recklessness, slept together and thus consummated the fruition of their brief love affair. Appellant cannot be held liable for rape as there was none committed. It was a consensual affair. Nevertheless, based on the evidence the crime committed by appellant is simple seduction. Article 338 of the Revised Penal Code provides:

Art. 338. Simple seduction. The seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age, committed by means of deceit, shall be punished byarresto mayor. All the elements of the offense are present. Frankly 1. Elaine was over 12 and under 18 years of age. 2. She is single and of good reputation. 3. The offender had sexual intercourse with her. 4. It was committed by deceit. Appellant said he planned to marry Elaine and for this reason he successfully persuaded her to give up her virginity. This is the deceit contemplated by law that attended the commission of the offense. 11 Section 4, Rule 120 of the 1985 Rules on Criminal Procedure provides: Sec. 4. Judgment in case of variance between allegation and proof . When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved. Unfortunately, the essential ingredients of simple seduction are not alleged nor necessarily included in the offense charged in the information. The only elements of the offense alleged in the sworn complaint of the offended party is that she is over 12 years of age when appellant had carnal knowledge of her. Thus, appellant cannot be convicted even for simple seduction either. 12 WHEREFORE, the appealed judgment is hereby REVERSED AND SET ASIDE and another judgment is hereby rendered ACQUITTING appellant of the offense charged, with costs de oficio. Let a copy of the decision be furnished the Honorable Secretary of Justice for his appropriate action. SO ORDERED. Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.