SECOND DIVISION

[G.R. No. 138033. February 22, 2006.]

RENATO BALEROS, JR., petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

GARCIA, J :p

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and
seeks the reversal of the January 13, 1999 decision 1 of the Court of Appeals (CA) in
CA-G.R. CR No. 17271 as reiterated in its March 31, 1999 resolution 2 denying
petitioner's motion for reconsideration.

The assailed decision armed an earlier decision of the Regional Trial Court (RTC)
of Manila, Branch 2, in Criminal Case No. 91-101642 nding petitioner Renato
Baleros, Jr. y David (CHITO) guilty of attempted rape. 3

The accusatory portion of the information 4 dated December 17, 1991 charging
petitioner with attempted rape reads as follow:

That about 1:50 in the morning or sometime thereafter of 13 December

1991 in Manila and within the jurisdiction of this Honorable Court, the above-
named accused, by forcefully covering the face of Martina Lourdes T. Albano
with a piece of cloth soaked in chemical with dizzying eects, did then and
there willfully, unlawfully and feloniously commenced the commission of rape
by lying on top of her with the intention to have carnal knowledge with her
but was unable to perform all the acts of execution by reason of some
cause or accident other than his own spontaneous desistance, said acts
being committed against her will and consent to her damage and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded

"Not Guilty." 5 Thereafter, trial on the merits ensued.

To prove its case, the prosecution presented thirteen (13) witnesses. Among them
were private complainant Martina Lourdes Albano (Malou), and her classmates,
Joseph Bernard Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their
testimonies, as narrated in some detail in the decision of the CA, established the
following facts:

Like most of the tenants of the Celestial Marie Building (hereafter "Building", .
. .) along A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room
307 with her maid, Marvilou Bebania (Marvilou), was a medical student of the
University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around
10:30. Outside, right in front of her bedroom door, her maid, Marvilou, slept
on a folding bed. IcHEaA

Early morning of the following day, MALOU was awakened by the smell of
chemical on a piece of cloth pressed on her face. She struggled but could
not move. Somebody was pinning her down on the bed, holding her tightly.
She wanted to scream for help but the hands covering her mouth with cloth
wet with chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU
continued ghting o her attacker by kicking him until at last her right hand
got free. With this . . . the opportunity presented itself when she was able to
grab hold of his sex organ which she then squeezed.

The man let her go and MALOU went straight to the bedroom door and
roused Marvilou. . . . . Over the intercom, MALOU told S/G Ferolin that: "may
pumasok sa kuarto ko pinagtangkaan ako" ( Ibid., p. 8). Who it was she did
not, however, know. The only thing she had made out during their struggle
was the feel of her attacker's clothes and weight. His upper garment was of
cotton material while that at the lower portion felt smooth and satin-like (Ibid,
p. 17). He . . . was wearing a t-shirt and shorts . . . Original Records, p.
355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard
Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU then
proceeded to seek help. . . . .

It was then when MALOU saw her bed . . . topsy-turvy. Her nightdress was
stained with blue . . . (TSN, July 5, 1993, pp. 13-14). Aside from the window
with grills which she had originally left opened, another window inside her
bedroom was now open. Her attacker had ed from her room going
through the left bedroom window (Ibid, Answers to Question number 5; Id),
the one without iron grills which leads to Room 306 of the Building (TSN, July
5, 1993, p. 6).

xxx xxx xxx

Further, MALOU testied that her relation with CHITO, who was her
classmate . . ., was friendly until a week prior to the attack. CHITO conded
his feelings for her, telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p.
22) and she rejected him. . . . . (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at

the Building at 1:30 in the early morning of December 13, 1991, wearing a
white t-shirt with "'. . . a marking on the front of the T-shirt T M and a Greek
letter (sic) SF' and below the quoted letters the word '1946' 'UST Medicine
and Surgery'" (TSN, October 9, 1992, p. 9) and black shorts with the brand
name "Adidas" (TSN, October 16, 1992, p. 7) and requested permission to
go up to Room 306. This Unit was being leased by Ansbert Co and at that
time when CHITO was asking permission to enter, only Joseph Bernard
Africa was in the room.
He asked CHITO to produce the required written authorization and when
CHITO could not, S/G Ferolin initially refused [but later, relented] . . . . S/G
Ferolin made the following entry in the security guard's logbook . . . .:

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have
(sic) a Request letter from our tenant of Unit #-306 Ansbert, but still I
let him inter (sic) for the reason that he will be our tenant this coming
summer break as he said so I let him sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was
corroborated by Joseph Bernard Africa (Joseph), . . . .

xxx xxx xxx

Joseph was already inside Room 306 at 9 o'clock in the evening of December
12, 1991. . . . by the time CHITO's knocking on the door woke him up, . . . .
He was able to x the time of CHITO's arrival at 1:30 A.M. because he
glanced at the alarm clock beside the bed when he was awakened by the
knock at the door . . . . TEHIaD

Joseph noticed that CHITO was wearing dark-colored shorts and white T-
shirt (Ibid., p. 23) when he let the latter in. . . . . It was at around 3 o'clock in
the morning of December 13, 1991 when he woke up again later to the
sound of knocking at the door, this time, by Bernard Baptista (Bernard), . . .
.

. . . . With Bernard, Joseph then went to MALOU's room and thereat was
shown by Bernard the open window through which the intruder supposedly
passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was
nally able to talk to CHITO . . . . He mentioned to the latter that something
had happened and that they were not being allowed to get out of the
building. Joseph also told CHITO to follow him to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray
bag. . . . . None was in Room 310 so Joseph went to their yet another
classmate, Renato Alagadan at Room 401 to see if the others were there. . .
..

People from the CIS came by before 8 o'clock that same morning . . . . They
likewise invited CHITO and Joseph to go with them to Camp Crame where the
two (2) were questioned . . . .

An occupant of Room 310 . . . Christian Alcala (Christian) recalled in Court

that in the afternoon of December 13, 1991, after their 3:30 class, he and
his roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to
the Building and were asked by the CIS people to look for anything not
belonging to them in their Unit. While they were outside Room 310 talking
with the authorities, Rommel Montes (Loyloy), another roommate of his,
went inside to search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a
gray "Khumbella" bag cloth type (Ibid, pp. 44-45) from inside their unit which
they did not know was there and surrender the same to the investigators.
When he saw the gray bag, Christian knew right away that it belonged to
CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to school
inside the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents,
among others, a white t-shirt with a Taunu (sic) Sigma Phi sign ( Ibid, p. 7), a
Black Adidas short pants, a handkerchief, three (3) white T-shirts, an
underwear, and socks (Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants
(Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be CHITO's because
CHITO had lent the very same one to him . . . . The t-shirt with CHITO's
fraternity symbol, CHITO used to wear on weekends, and the handkerchief
he saw CHITO used at least once in December.

That CHITO left his bag inside Room 310 in the morning of December 13,
1991, was what consisted mainly of Renato R. Alagadan's testimony.

xxx xxx xxx

The colored gray bag had a handle and a strap, was elongated to about 11/4
feet and appeared to be full but was closed with a zipper when Renato saw it
then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato
went back to Room 310 at around 3 to 4 o'clock that afternoon along with
some CIS agents, they saw the bag at the same place inside the bedroom
where Renato had seen CHITO leave it. Not until later that night at past 9
o'clock in Camp Crame, however, did Renato know what the contents of the
bag were.

xxx xxx xxx

The forensic Chemist, Leslie Chambers, of the Philippine National Police

Crime Laboratory in Camp Crame, having acted in response to the written
request of PNP Superintendent Lucas M. Managuelod dated December 13,
1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted. . . . Her Chemistry
Report No. C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:

"SPECIMEN SUBMITTED:

xxx xxx xxx

1) One (1) small white plastic bag marked 'UNIMART' with the
 following:

xxx xxx xxx

Exh 'C' One (1) night dress colored salmon pink. EDATSI

2) One (1) small white plastic bag marked 'JONAS' with the
following:

Exh. 'D' One (1) printed handkerchief.

Exh. 'E' One (1) white T-shirt marked 'TMZI'.

Exh. 'F' One (1) black short (sic) marked 'ADIDAS'.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or

metallic poison on the above stated specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens

gave the following results:

Exhs. 'C' and 'D' POSITIVE to the test for chloroform, a

volatile poison.

Exhs. 'A', 'B', 'E' and 'F' are insufficient for further analysis.

CONCLUSION:

Exhs. 'C' and 'D' contain chloroform, a volatile poison." 6 (Words

in bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He
denied committing the crime imputed to him or making at any time amorous
advances on Malou. Unfolding a dierent version of the incident, the defense sought
to establish the following, as culled from the same decision of the appellate court:

In December of 1991, CHITO was a medical student of . . . (UST). With

Robert Chan and Alberto Leonardo, he was likewise a member of the Tau
Sigma Phi Fraternity . . . . MALOU, . . ., was known to him being also a
medical student at the UST at the time.

From Room 306 of the Celestial Marie Building . . ., CHITO, wearing the
prescribed barong tagalog over dark pants and leather shoes, arrived at
their Fraternity house located at . . . Dos Castillas, Sampaloc, Manila at about
7 o'clock in the evening of December 12, 1991. He was included in the
entourage of some fty (50) fraternity members scheduled for a Christmas
gathering at the house of their senior fraternity brother, Dr. Jose Duran, at
No. 3 John Street, North Greenhills, San Juan. . . . .
The party was conducted at the garden beside [the] swimming pool . . . .
Soon after, . . . the four (4) presidential nominees of the Fraternity, CHITO
included, were being dunked one by one into the pool. . . . .

. . . CHITO had anticipated his turn . . . and was thus wearing his t-shirt and
long pants when he was dunked. Perla Duran, . . ., oered each . . . dry
clothes to change into and CHITO put on the white t-shirt with the
Fraternity's symbol and a pair of black shorts with stripes. . . . .

Again riding on Alberto's car and wearing "barong tagalog over a white t-
shirt with the symbol TAU Sigma Phi, black short pants with stripe, socks
and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert
Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and
proceeded to the Building which they reached at about 1:30 A.M. (Ibid., p.
19). He had left his gray traveling bag containing "white t-shirt, sando,
underwear, socks, and toothbrush (Ibid., pp. 17-18) at room 306 in the
afternoon of the previous day . . . .

At the gate of the Building, CHITO knocked and . . ., S/G Ferolin, looking at
his watch, approached. Because of this, CHITO also looked at his own watch
and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused
CHITO entry . . . .

S/G Ferolin called Unit 306 . . . . When S/G Ferolin nally let him in, already
about ten (10) minutes had lapsed since CHITO first arrived (Ibid., p. 25). cDTCIA

CHITO went up the oor, found the key left for him by Joseph behind the
opened jalousie window and for ve (5) minutes vainly tried to open the door
until Rommel Montes, . . . approached him and even commented: "Okey ang
suot mo ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to
open the door of Unit 306 . . . but was likewise unsuccessful. CHITO then
decided to just call out to Joseph while knocking at the door.

It took another (5) minutes of calling out and knocking before Joseph, . . ., at
last answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph
immediately turned his back on CHITO and went inside the bedroom. CHITO,
. . . changed to a thinner shirt and went to bed. He still had on the same
short pants given by Perla Duran from the fraternity party (TSN, June 16,
1994, p. 20).

At 6 o'clock in the morning of December 13, 1991, CHITO woke up . . . . He

was already in his school uniform when, around 6:30 A.M, Joseph came to
the room not yet dressed up. He asked the latter why this was so and,
without elaborating on it, Joseph told him that something had happened and
to just go to Room 310 which CHITO did.

At Room 310, CHITO was told by Rommel Montes that somebody, whom
MALOU was not able to identify, went to the room of MALOU and tried to
rape her (TSN, April 25, 1994, p. 36). . . . .

Joseph told him that the security guard was not letting anybody out of the
 Building . . . . When two (2) CIS men came to the unit asking for Renato
Baleros, CHITO presented himself. Congressman Rodolfo B. Albano, father
of MALOU, then asked him for the key to Room 306. . . .

xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was
told to dress up and the two (2) of them, CHITO and Joseph, were brought
to Camp Crame.

When they arrived at Camp Crame . . ., Col. Managuelod asked Joseph inside
his room and talked to him for 30 minutes. . . . . No one interviewed CHITO
to ask his side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later
instructed them to undergo physical examination at the Camp Crame
Hospital . . . . . At the hospital, . . . CHITO and Joseph were physically
examined by a certain Dr. de Guzman who told them to strip . . . .

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped
short pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p.
345), inside Room 310 at more/less 6:30 to 7 o'clock in the morning of
December 13, 1991. The next time that he saw it was between 8 to 9 P.M.
when he and Joseph were brought before Fiscal Abesamis for inquest. One
of the CIS agents had taken it there and it was not opened up in his
presence but the contents of the bag were already laid out on the table of
Fiscal Abesamis who, however, made no eort to ask CHITO if the items
thereat were his.

The black Adidas short pants purportedly found in the bag, CHITO denied
putting in his gray bag which he had left at Room 306 in the early evening of
December 12, 1991 before going to the fraternity house. He likewise
disavowed placing said black Adidas short pants in his gray bag when he
returned to the apartment at past 1:00 o'clock in the early morning of
December 13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at
about 6 o'clock in the morning to go to school and brought his gray bag to
Room 310 (Ibid. 25). In fact, at any time on December 13, 1991, he was not
aware that his gray bag ever contained any black short Adidas pants (Ibid).
He only found out for the rst time that the black Adidas short pants was
alluded to be among the items inside his gray bag late in the afternoon,
when he was in Camp Crame. CaASIc

Also taking the witness stand for the defense were petitioner's fraternity brothers,
Alberto Leonardo and Robert Chan, who both testied being with CHITO in the
December 12, 1991 party held in Dr. Duran's place at Greenhills, riding on the same
car going to and coming from the party and dropping the petitioner o the Celestial
Marie building after the party. Both were one in saying that CHITO was wearing a
barong tagalog, with t-shirt inside, with short pants and leather shoes at the time
they parted after the party. 7 Rommel Montes, a tenant of Room 310 of the said
building, also testied seeing CHITO between the hours of 1:30 and 2:00 A.M. of
December 13, 1991 trying to open the door of Room 306 while clad in dark short
pants and white barong tagalog.

On the other hand, Perla Duran conrmed lending the petitioner the pair of short
pants with stripes after the dunking party held in her father's house. 8 Presented as
defense expert witness was Carmelita Vargas, a forensic chemistry instructor whose
actual demonstration in open court showed that chloroform, being volatile,
evaporates in thirty (30) seconds without tearing nor staining the cloth on which it
is applied. 9

On December 14, 1994, the trial court rendered its decision 10 convicting petitioner
of attempted rape and accordingly sentencing him, thus:

WHEREFORE, under cool reection and prescinding from the foregoing, the
Court nds the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond
reasonable doubt of the crime of attempted rape as principal and as
charged in the information and hereby sentences him to suer an
imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE
(1) DAY of Prision Correccional, as Minimum to TEN (10) YEARS of Prision
Mayor as Maximum, with all the accessory penalties provided by law, and for
the accused to pay the oended party Martina Lourdes T. Albano, the sum
of P50,000.00 by way of Moral and exemplary damages, plus reasonable
Attorney's fees of P30,000.00, without subsidiary imprisonment in case of
insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed
as CA-G.R. CR No. 17271.

As stated at the threshold hereof, the CA, in its assailed Decision dated January 13,
1999, affirmed the trial court's judgment of conviction, to wit:

WHEREFORE, nding no basis in fact and in law to deviate from the ndings
of the court a quo, the decision appealed from is hereby AFFIRMED in toto.
Costs against appellant.

SO ORDERED. 11

Petitioner moved for reconsideration, but his motion was denied by the CA in its
equally assailed resolution of March 31, 1999. 12

Petitioner is now with this Court, on the contention that the CA erred

1. In not finding that it is improbable for petitioner to have committed the

attempted rape imputed to him, absent sucient, competent and
 convincing evidence to prove the offense charged.

2. In convicting petitioner of attempted rape on the basis merely of

circumstantial evidence since the prosecution failed to satisfy all the
requisites for conviction based thereon.

3. In not nding that the circumstances it relied on to convict the

petitioner are unreliable, inconclusive and contradictory.

4. In not finding that proof of motive is miserably wanting in his case.

5. In awarding damages in favor of the complainant despite the fact that

the award was improper and unjustied absent any evidence to prove
the same. SAEHaC

6. In failing to appreciate in his favor the constitutional presumption of

innocence and that moral certainty has not been met, hence, he
should be acquitted on the ground that the oense charged against
him has not been proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or
not the CA erred in arming the ruling of the RTC nding petitioner guilty beyond
reasonable doubt of the crime of attempted rape.

After a careful review of the facts and evidence on record in the light of applicable
jurisprudence, the Court is disposed to rule for petitioner's acquittal, but not
necessarily because there is no direct evidence pointing to him as the intruder
holding a chemical-soaked cloth who pinned Malou down on the bed in the early
morning of December 13, 1991.

Positive identication pertains essentially to proof of identity and not per se to that
of being an eyewitness to the very act of commission of the crime. There are two
types of positive identication. A witness may identify a suspect or accused as the
oender as an eyewitness to the very act of the commission of the crime. This
constitutes direct evidence. There may, however, be instances where, although a
witness may not have actually witnessed the very act of commission of a crime, he
may still be able to positively identify a suspect or accused as the perpetrator of a
crime as when, for instance, the latter is the person or one of the persons last seen
with the victim immediately before and right after the commission of the crime.
This is the second type of positive identication, which forms part of circumstantial
evidence. 13 In the absence of direct evidence, the prosecution may resort to
adducing circumstantial evidence to discharge its burden. Crimes are usually
committed in secret and under condition where concealment is highly probable. If
direct evidence is insisted under all circumstances, the prosecution of vicious felons
who committed heinous crimes in secret or secluded places will be hard, if not well-
nigh impossible, to prove. 14

Section 4 of Rule 133 of the Rules of Court provides the conditions when
circumstantial evidence may be sufficient for conviction. The provision reads:
 Sec. 4. Circumstantial evidence, when sucient Circumstantial
evidence is sufficient for conviction if

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven;
and

c) The combination of all the circumstances is such as to produce

a conviction beyond reasonable doubt.

In the present case, the positive identication of the petitioner forms part of
circumstantial evidence, which, when taken together with the other pieces of
evidence constituting an unbroken chain, leads to only fair and reasonable
conclusion, which is that petitioner was the intruder in question.

We quote with approval the CA's nding of the circumstantial evidence that led to
the identity of the petitioner as such intruder:

Chito was in the Building when the attack on MALOU took place. He had
access to the room of MALOU as Room 307 where he slept the night over
had a window which allowed ingress and egress to Room 306 where MALOU
stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard
Africa as well conrmed that CHITO was wearing a black "Adidas" shorts and
fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the
morning of December 13, 1991. Though it was dark during their struggle,
MALOU had made out the feel of her intruder's apparel to be something
made of cotton material on top and shorts that felt satin-smooth on the
bottom.

From CHITO's bag which was found inside Room 310 at the very spot where
witness Renato Alagadan saw CHITO leave it, were discovered the most
incriminating evidence: the handkerchief stained with blue and wet with
some kind of chemicals; a black "Adidas" satin short pants; and a white
fraternity T-shirt, also stained with blue. A dierent witness, this time,
Christian Alcala, identied these garments as belonging to CHITO. As it
turned out, laboratory examination on these items and on the beddings and
clothes worn by MALOU during the incident revealed that the handkerchief
and MALOU's night dress both contained chloroform, a volatile poison which
causes rst degree burn exactly like what MALOU sustained on that part of
her face where the chemical-soaked cloth had been pressed. CSIcHA

This brings the Court to the issue on whether the evidence adduced by the
prosecution has established beyond reasonable doubt the guilt of the petitioner for
the crime of attempted rape.

The Solicitor General maintained that petitioner, by pressing on Malou's face the
piece of cloth soaked in chemical while holding her body tightly under the weight of
his own, had commenced the performance of an act indicative of an intent or
attempt to rape the victim. It is argued that petitioner's actuation thus described is
an overt act contemplated under the law, for there can not be any other logical
conclusion other than that the petitioner intended to ravish Malou after he
attempted to put her to an induced sleep. The Solicitor General, echoing what the
CA said, adds that if petitioner's intention was otherwise, he would not have lain on
top of the victim. 15

Under Article 335 of the Revised Penal Code, rape is committed by a man who has
carnal knowledge or intercourse with a woman under any of the following
circumstances: (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. Under Article 6, in relation to the aforementioned article of
the same code, rape is attempted when the oender commences the commission of
rape directly by overt acts and does not perform all the acts of execution which
should produce the crime of rape by reason of some cause or accident other than his
own spontaneous desistance. 16

Expounding on the nature of an attempted felony, the Court, speaking thru Justice
Claro M. Recto in People vs. Lamahang, 17 stated that "the attempt which the Penal
Code punishes is that which has a logical connection to a particular, concrete
oense; that which is the beginning of the execution of the oense by overt acts of
the perpetrator, leading directly to its realization and consummation." Absent the
unavoidable connection, like the logical and natural relation of the cause and its
eect, as where the purpose of the oender in performing an act is not certain,
meaning the nature of the act in relation to its objective is ambiguous, then what
obtains is an attempt to commit an indeterminate oense, which is not a juridical
fact from the standpoint of the Penal Code. 18

There is absolutely no dispute about the absence of sexual intercourse or carnal

knowledge in the present case. The next question that thus comes to the fore is
whether or not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth
while on top of Malou, constitutes an overt act of rape.CSTEHI

Overt or external act has been dened as some physical activity or deed, indicating
the intention to commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination following its natural
course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a concrete
offense. 19

Harmonizing the above denition to the facts of this case, it would be too strained
to construe petitioner's act of pressing a chemical-soaked cloth in the mouth of
Malou which would induce her to sleep as an overt act that will logically and
necessarily ripen into rape. As it were, petitioner did not commence at all the
performance of any act indicative of an intent or attempt to rape Malou. It cannot
be overemphasized that petitioner was fully clothed and that there was no attempt
on his part to undress Malou, let alone touch her private part. For what reason
petitioner wanted the complainant unconscious, if that was really his immediate
intention, is anybody's guess. The CA maintained that if the petitioner had no
intention to rape, he would not have lain on top of the complainant. Plodding on,
the appellate court even anticipated the next step that the petitioner would have
taken if the victim had been rendered unconscious. Wrote the CA:

The shedding of the clothes, both of the attacker and his victim, will have to
come later. His sexual organ is not yet exposed because his intended victim
is still struggling. Where the intended victim is an educated woman already
mature in age, it is very unlikely that a rapist would be in his naked glory
before even starting his attack on her. He has to make her lose her guard
first, or as in this case, her unconsciousness. 20

At bottom then, the appellate court indulges in plain speculation, a practice

disfavored under the rule on evidence in criminal cases. For, mere speculations and
probabilities cannot substitute for proof required to establish the guilt of an accused
beyond reasonable doubt. 21

I n Perez vs. Court of Appeals, 22 the Court acquitted therein petitioner of the crime
of attempted rape, pointing out that:

. . . . In the crime of rape, penetration is an essential act of execution to

produce the felony. Thus, for there to be an attempted rape, the accused
must have commenced the act of penetrating his sexual organ to the vagina
of the victim but for some cause or accident other than his own
spontaneous desistance, the penetration, however, slight, is not completed.

xxx xxx xxx

Petitioner's act of lying on top of the complainant, embracing and kissing

her, mashing her breasts, inserting his hand inside her panty and touching
her sexual organ, while admittedly obscene and detestable acts, do not
constitute attempted rape absent any showing that petitioner actually
commenced to force his penis into the complainant's sexual organ. . . . .

Likewise in People vs. Pancho, 23 the Court held:

. . ., appellant was merely holding complainant's feet when his Tito Onio
arrived at the alleged locus criminis . Thus, it would be stretching to the
extreme our credulity if we were to conclude that mere holding of the feet is
attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under
the premises, of any wrongdoing whatsoever. The information led against
petitioner contained an allegation that he forcefully covered the face of Malou with
a piece of cloth soaked in chemical. And during the trial, Malou testied about the
pressing against her face of the chemical-soaked cloth and having struggled after
petitioner held her tightly and pinned her down. Verily, while the series of acts
committed by the petitioner do not determine attempted rape, as earlier discussed,
they constitute unjust vexation punishable as light coercion under the second
paragraph of Article 287 of the Revised Penal Code. In the context of the
constitutional provision assuring an accused of a crime the right to be informed of
the nature and cause of the accusation, 24 it cannot be said that petitioner was kept
in the dark of the inculpatory acts for which he was proceeded against. To be sure,
the information against petitioner contains sucient details to enable him to make
his defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to
allege malice, restraint or compulsion in an information for unjust vexation. As it
were, unjust vexation exists even without the element of restraint or compulsion
for the reason that this term is broad enough to include any human conduct which,
although not productive of some physical or material harm, would unjustly annoy or
irritate an innocent person. 25 The paramount question is whether the oender's act
causes annoyance, irritation, torment, distress or disturbance to the mind of the
person to whom it is directed. 26 That Malou, after the incident in question, cried
while relating to her classmates what she perceived to be a sexual attack and the
fact that she led a case for attempted rape proved beyond cavil that she was
disturbed, if not distressed by the acts of petitioner.SEHTIc

The penalty for coercion falling under the second paragraph of Article 287 of the
Revised Penal Code is arresto menor or a ne ranging from P5.00 to P200.00 or
both.

WHEREFORE, the assailed Decision of the Court of Appeals arming that of the
Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one
entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted
rape. Petitioner, however, is adjudged GUILTY of light coercion and is accordingly
sentenced to 30 days of arresto menor and to pay a ne of P200.00, with the
accessory penalties thereof and to pay the costs.

SO ORDERED.

Puno, Sandoval-Gutierrez and Azcuna, JJ., concur.

Corona, J., is on leave.

Footnotes

1. Penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate

Justices Romeo A. Brawner (ret.) and Eloy R. Bello, Jr. (ret.); Rollo, pp. 198-237.

2. Id., p. 273.

3. Id., pp. 120-155.

4. Original Records, pp. 1-3.

5. Id., p. 42.

6. Rollo, pp. 201-212.

7. TSN, December 15, 1993, pp. 18-19; TSN, December 20, 1993, pp. 23-24.

8. TSN, January 17, 1994, pp. 7-10.

9. TSN, January 17, 1994, p. 24.

10. Rollo, pp. 120-155.

11. See Note #1, supra.

12. See Note #2, supra.

13. People vs. Cubcubin, Jr., 413 Phil. 249 (2001), citing People vs. Gallarde, 382 Phil.
718 (2000).

14. People vs. Sevileno , 425 SCRA 247 (2004), citing People vs. Navarro , 407 SCRA
221 (2003).

15. Comment, pp. 20-21; Rollo, pp. 302-303.

16. People vs. Campuhan, 385 Phil. 912 (2000).

17. 61 Phil. 703, 705 (1935).

18. Ibid.

19. Reyes, The Revised Penal Code, 1998 Edition, p. 91.

20. Rollo, pp. 222-223.

21. People vs. Canlas, et al., 423 Phil. 665 (2001).

22. 431 Phil. 786 (2002).

23. 416 SCRA 506 (2003).

24. Sec. 14(2), Art. III.

25. Aquino, Revised Penal Code, 1997 ed., Vol. III, p. 81.

26. Ibid., citing People vs. Lilian Gozum , CA 54 O.G. 7409; People vs. Reyes , 60 Phil.
369 [1934].