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G.R. No.

117944 February 7, 1996

RICHARD LI, petitioner,


vs.
COURT OF APPEALS and LOURDES VALENZUELA, respondents.

DECISION

KAPUNAN, J.:

These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem from an action
to recover damages by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries
sustained by her in a vehicular accident in the early morning of June 24, 1990. The facts found by the trial
court are succinctly summarized by the Court of Appeals below:

This is an action to recover damages based on quasi-delict, for serious physical injuries sustained
in a vehicular accident.

Plaintiff's version of the accident is as follows: At around 2:00 in the morning of June 24, 1990,
plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from
her restaurant at Marcos highway to her home at Palanza Street, Araneta Avenue. She was
travelling along Aurora Blvd. with a companion, Cecilia Ramon, heading towards the direction of
Manila. Before reaching A. Lake Street, she noticed something wrong with her tires; she stopped
at a lighted place where there were people, to verify whether she had a flat tire and to solicit help
if needed. Having been told by the people present that her rear right tire was flat and that she
cannot reach her home in that car's condition, she parked along the sidewalk, about 1-1/2 feet
away, put on her emergency lights, alighted from the car, and went to the rear to open the trunk.
She was standing at the left side of the rear of her car pointing to the tools to a man who will help
her fix the tire when she was suddenly bumped by a 1987 Mitsubishi Lancer driven by defendant
Richard Li and registered in the name of defendant Alexander Commercial, Inc. Because of the
impact plaintiff was thrown against the windshield of the car of the defendant, which was destroyed,
and then fell to the ground. She was pulled out from under defendant's car. Plaintiff's left leg was
severed up to the middle of her thigh, with only some skin and sucle connected to the rest of the
body. She was brought to the UERM Medical Memorial Center where she was found to have a
"traumatic amputation, leg, left up to distal thigh (above knee)". She was confined in the hospital
for twenty (20) days and was eventually fitted with an artificial leg. The expenses for the hospital
confinement (P120,000.00) and the cost of the artificial leg (P27,000.00) were paid by defendants
from the car insurance.

In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary
damages in the amount of P100,000.00 and other medical and related expenses amounting to a
total of P180,000.00, including loss of expected earnings.

Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph;
considering that it was raining, visibility was affected and the road was wet. Traffic was light. He
testified that he was driving along the inner portion of the right lane of Aurora Blvd. towards the
direction of Araneta Avenue, when he was suddenly confronted, in the vicinity of A. Lake Street,
San Juan, with a car coming from the opposite direction, travelling at 80 kph, with "full bright lights".
Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming
vehicle, and bumped plaintiff's car, which he did not see because it was midnight blue in color, with
no parking lights or early warning device, and the area was poorly lighted. He alleged in his defense
that the left rear portion of plaintiff's car was protruding as it was then "at a standstill diagonally" on
the outer portion of the right lane towards Araneta Avenue (par. 18, Answer). He confirmed the
testimony of plaintiff's witness that after being bumped the car of the plaintiff swerved to the right
and hit another car parked on the sidewalk. Defendants counterclaimed for damages, alleging that
plaintiff was reckless or negligent, as she was not a licensed driver.

The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the
sketch of the three cars involved in the accident, testified that the plaintiff's car was "near the
sidewalk"; this witness did not remember whether the hazard lights of plaintiff's car were on, and
did not notice if there was an early warning device; there was a street light at the corner of Aurora
Blvd. and F. Roman, about 100 meters away. It was not mostly dark, i.e. "things can be seen" (p.
16, tsn, Oct. 28, 1991).

A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car and
opened the trunk compartment, defendant's car came approaching very fast ten meters from the
scene; the car was "zigzagging". The rear left side of plaintiff's car was bumped by the front right
portion of defendant's car; as a consequence, the plaintiff's car swerved to the right and hit the

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parked car on the sidewalk. Plaintiff was thrown to the windshield of defendant's car, which was
destroyed, and landed under the car. He stated that defendant was under the influence of liquor as
he could "smell it very well" (pp. 43, 79, tsn, June 17, 1991).

After trial, the lower court sustained the plaintiff's submissions and found defendant Richard Li guilty of
gross negligence and liable for damages under Article 2176 of the Civil Code. The trial court likewise held
Alexander Commercial, Inc., Li's employer, jointly and severally liable for damages pursuant to Article 2180.
It ordered the defendants to jointly and severally pay the following amounts:

1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a


result of her severed left leg;

2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiff's Bistro
La Conga restaurant three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a month,
as unrealized profits of the plaintiff in her Bistro La Conga restaurant, from August, 1990 until the
date of this judgment and (c) P30,000.00, a month for unrealized profits in plaintiff's two (2) beauty
salons from July, 1990 until the date of this decision;

3. P1,000,000.00, in moral damages;

4. P50,000.00, as exemplary damages;

5. P60,000.00, as reasonable attorney's fees; and

6. Costs.

As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial and for
Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs. Richard Li), tending to
show that the point of impact, as depicted by the pieces of glass/debris from the parties' cars, appeared to
be at the center of the right lane of Aurora Blvd. The trial court denied the motion. Defendants forthwith filed
an appeal with the respondent Court of Appeals. In a Decision rendered March 30, 1994, the Court of
Appeals found that there was "ample basis from the evidence of record for the trial court's finding that the
plaintiff's car was properly parked at the right, beside the sidewalk when it was bumped by defendant's
car."1 Dismissing the defendants' argument that the plaintiff's car was improperly parked, almost at the
center of the road, the respondent court noted that evidence which was supposed to prove that the car was
at or near center of the right lane was never presented during the trial of the case. 2 The respondent court
furthermore observed that:

Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; it was
not corroborated. It was in fact contradicted by eyewitness Rodriguez who stated that he was
outside his beerhouse located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of
June 24, 1990 when his attention was caught by a beautiful lady (referring to the plaintiff) alighting
from her car and opening the trunk compartment; he noticed the car of Richard Li "approaching
very fast ten (10) meters away from the scene"; defendant's car was zigzagging", although there
were no holes and hazards on the street, and "bumped the leg of the plaintiff" who was thrown
against the windshield of defendant's care, causing its destruction. He came to the rescue of the
plaintiff, who was pulled out from under defendant's car and was able to say "hurting words" to
Richard Li because he noticed that the latter was under the influence of liquor, because he "could
smell it very well" (p. 36, et. seq., tsn, June 17, 1991). He knew that plaintiff owned a beerhouse in
Sta. Mesa in the 1970's, but did not know either plaintiff or defendant Li before the accident.

In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the plaintiff, the
Court of Appeals, in its decision, however, absolved the Li's employer, Alexander Commercial, Inc. from
any liability towards petitioner Lourdes Valenzuela and reduced the amount of moral damages to
P500,000.00. Finding justification for exemplary damages, the respondent court allowed an award of
P50,000.00 for the same, in addition to costs, attorney's fees and the other damages. The Court of Appeals,
likewise, dismissed the defendants' counterclaims.3

Consequently, both parties assail the respondent court's decision by filing two separate petitions before this
Court. Richard Li, in G.R. No. 117944, contends that he should not be held liable for damages because the
proximate cause of the accident was Ma. Lourdes Valenzuela's own negligence. Alternatively, he argues
that in the event that this Court finds him negligent, such negligence ought to be mitigated by the
contributory negligence of Valenzuela.

On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent court's decision
insofar as it absolves Alexander Commercial, Inc. from liability as the owner of the car driven by Richard Li
and insofar as it reduces the amount of the actual and moral damages awarded by the trial court.4

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As the issues are intimately related, both petitions are hereby consolidated.

It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions of law.
What it, in effect, attempts to have this Court review are factual findings of the trial court, as sustained by
the Court of Appeals finding Richard Li grossly negligent in driving the Mitsubishi Lancer provided by his
company in the early morning hours of June 24, 1990. This we will not do. As a general rule, findings of
fact of the Court of Appeals are binding and conclusive upon us, and this Court will not normally disturb
such factual findings unless the findings of fact of the said court are palpably unsupported by the evidence
on record or unless the judgment itself is based on a misapprehension of facts. 5

In the first place, Valenzuela's version of the incident was fully corroborated by an uninterested witness,
Rogelio Rodriguez, the owner-operator of an establishment located just across the scene of the accident.
On trial, he testified that he observed a car being driven at a "very fast" speed, racing towards the general
direction of Araneta Avenue.6 Rodriguez further added that he was standing in front of his establishment,
just ten to twenty feet away from the scene of the accident, when he saw the car hit Valenzuela, hurtling
her against the windshield of the defendant's Mitsubishi Lancer, from where she eventually fell under the
defendant's car. Spontaneously reacting to the incident, he crossed the street, noting that a man reeking
with the smell of liquor had alighted from the offending vehicle in order to survey the incident. 7 Equally
important, Rodriguez declared that he observed Valenzuela's car parked parallel and very near the
sidewalk,8 contrary to Li's allegation that Valenzuela's car was close to the center of the right lane. We
agree that as between Li's "self-serving" asseverations and the observations of a witness who did not even
know the accident victim personally and who immediately gave a statement of the incident similar to his
testimony to the investigator immediately after the incident, the latter's testimony deserves greater weight.
As the court emphasized:

The issue is one of credibility and from Our own examination of the transcript, We are not prepared
to set aside the trial court's reliance on the testimony of Rodriguez negating defendant's assertion
that he was driving at a safe speed. While Rodriguez drives only a motorcycle, his perception of
speed is not necessarily impaired. He was subjected to cross-examination and no attempt was
made to question .his competence or the accuracy of his statement that defendant was driving
"very fast". This was the same statement he gave to the police investigator after the incident, as
told to a newspaper report (Exh. "P"). We see no compelling basis for disregarding his testimony.

The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of the
testimony. Rodriguez testified that the scene of the accident was across the street where his
beerhouse is located about ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not state
that the accident transpired immediately in front of his establishment. The ownership of the
Lambingan se Kambingan is not material; the business is registered in the name of his mother, but
he explained that he owns the establishment (p. 5, tsn, June 20, 1991). Moreover, the testimony
that the streetlights on his side of Aurora Boulevard were on the night the accident transpired (p.
8) is not necessarily contradictory to the testimony of Pfc. Ramos that there was a streetlight at the
corner of Aurora Boulevard and F. Roman Street (p. 45, tsn, Oct. 20, 1991).

With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a heavy
rain and the rain has stopped and he was outside his establishment at the time the accident
transpired (pp. 64-65, tsn, June 17, 1991). This was consistent with plaintiff's testimony that it was
no longer raining when she left Bistro La Conga (pp. 10-11, tsn, April 29, 1991). It was defendant
Li who stated that it was raining all the way in an attempt to explain why he was travelling at only
50-55 kph. (p. 11, tsn, Oct. 14, 1991). As to the testimony of Pfc. Ramos that it was raining, he
arrived at the scene only in response to a telephone call after the accident had transpired (pp. 9-
10, tsn, Oct. 28, 1991). We find no substantial inconsistencies in Rodriguez's testimony that would
impair the essential integrity of his testimony or reflect on his honesty. We are compelled to affirm
the trial court's acceptance of the testimony of said eyewitness.

Against the unassailable testimony of witness Rodriguez we note that Li's testimony was peppered with so
many inconsistencies leading us to conclude that his version of the accident was merely adroitly crafted to
provide a version, obviously self-serving, which would exculpate him from any and all liability in the incident.
Against Valenzuela's corroborated claims, his allegations were neither backed up by other witnesses nor
by the circumstances proven in the course of trial. He claimed that he was driving merely at a speed of 55
kph. when "out of nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiff's car".
He alleged that upon seeing this sudden "apparition" he put on his brakes to no avail as the road was
slippery.9

One will have to suspend disbelief in order to give credence to Li's disingenuous and patently self-serving
asseverations. The average motorist alert to road conditions will have no difficulty applying the brakes to a
car traveling at the speed claimed by Li. Given a light rainfall, the visibility of the street, and the road
conditions on a principal metropolitan thoroughfare like Aurora Boulevard, Li would have had ample time
to react to the changing conditions of the road if he were alert - as every driver should be - to those
conditions. Driving exacts a more than usual toll on the senses. Physiological "fight or flight" 10 mechanisms

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are at work, provided such mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness,
etc.11 Li's failure to react in a manner which would have avoided the accident could therefore have been
only due to either or both of the two factors: 1) that he was driving at a "very fast" speed as testified by
Rodriguez; and 2) that he was under the influence of alcohol. 12 Either factor working independently would
have diminished his responsiveness to road conditions, since normally he would have slowed down prior
to reaching Valenzuela's car, rather than be in a situation forcing him to suddenly apply his brakes. As the
trial court noted (quoted with approval by respondent court):

Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the
incident, he said that while driving along Aurora Blvd., out of nowhere he saw a dark maroon lancer
right in front of him which was plaintiff's car, indicating, again, thereby that, indeed, he was driving
very fast, oblivious of his surroundings and the road ahead of him, because if he was not, then he
could not have missed noticing at a still far distance the parked car of the plaintiff at the right side
near the sidewalk which had its emergency lights on, thereby avoiding forcefully bumping at the
plaintiff who was then standing at the left rear edge of her car.

Since, according to him, in his narration to the San Juan Police, he put on his brakes when he saw
the plaintiff's car in front of him, but that it failed as the road was wet and slippery, this goes to show
again, that, contrary to his claim, he was, indeed, running very fast. For, were it otherwise, he could
have easily completely stopped his car, thereby avoiding the bumping of the plaintiff,
notwithstanding that the road was wet and slippery. Verily, since, if, indeed, he was running slow,
as he claimed, at only about 55 kilometers per hour, then, inspite of the wet and slippery road, he
could have avoided hitting the plaintiff by the mere expedient or applying his brakes at the proper
time and distance.

It could not be true, therefore, as he now claims during his testimony, which is contrary to what he
told the police immediately after the accident and is, therefore, more believable, that he did not
actually step on his brakes but simply swerved a little to the right when he saw the on-coming car
with glaring headlights, from the opposite direction, in order to avoid it.

For, had this been what he did, he would not have bumped the car of the plaintiff which was properly
parked at the right beside the sidewalk. And, it was not even necessary for him to swerve a little to
the right in order to safely avoid a collision with the on-coming car, considering that Aurora Blvd. is
a double lane avenue separated at the center by a dotted white paint, and there is plenty of space
for both cars, since her car was running at the right lane going towards Manila on the on-coming
car was also on its right lane going to Cubao.13

Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer, the
next question for us to determine is whether or not Valenzuela was likewise guilty of contributory negligence
in parking her car alongside Aurora Boulevard, which entire area Li points out, is a no parking zone.

We agree with the respondent court that Valenzuela was not guilty of contributory negligence.

Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm
he has suffered, which falls below the standard to which he is required to conform for his own
protection.14 Based on the foregoing definition, the standard or act to which, according to petitioner Li,
Valenzuela ought to have conformed for her own protection was not to park at all at any point of Aurora
Boulevard, a no parking zone. We cannot agree.

Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency
is not to be held up to the standard of conduct normally applied to an individual who is in no such situation.
The law takes stock of impulses of humanity when placed in threatening or dangerous situations and does
not require the same standard of thoughtful and reflective care from persons confronted by unusual and
oftentimes threatening conditions.15

Under the "emergency rule" adopted by this Court in Gan vs. Court of Appeals,16 an individual who
suddenly finds himself in a situation of danger and is required to act without much time to consider the best
means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake
what subsequently and upon reflection may appear to be a better solution, unless the emergency was
brought by his own negligence.17

Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to
avoid hitting two children suddenly darting into the street, we held, in Mc Kee vs. Intermediate Appellate
Court,18 that the driver therein, Jose Koh, "adopted the best means possible in the given situation" to avoid
hitting the children. Using the "emergency rule" the Court concluded that Koh, in spite of the fact that he
was in the wrong lane when the collision with an oncoming truck occurred, was not guilty of negligence. 19

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While the emergency rule applies to those cases in which reflective thought, or the opportunity to
adequately weigh a threatening situation is absent, the conduct which is required of an individual in such
cases is dictated not exclusively by the suddenness of the event which absolutely negates thoroughful care,
but by the over-all nature of the circumstances. A woman driving a vehicle suddenly crippled by a flat tire
on a rainy night will not be faulted for stopping at a point which is both convenient for her to do so and which
is not a hazard to other motorists. She is not expected to run the entire boulevard in search for a parking
zone or turn on a dark street or alley where she would likely find no one to help her. It would be hazardous
for her not to stop and assess the emergency (simply because the entire length of Aurora Boulevard is a
no-parking zone) because the hobbling vehicle would be both a threat to her safety and to other motorists.
In the instant case, Valenzuela, upon reaching that portion of Aurora Boulevard close to A. Lake St., noticed
that she had a flat tire. To avoid putting herself and other motorists in danger, she did what was best under
the situation. As narrated by respondent court: "She stopped at a lighted place where there were people,
to verify whether she had a flat tire and to solicit help if needed. Having been told by the people present
that her rear right tire was flat and that she cannot reach her home she parked along the sidewalk, about 1
1/2 feet away, behind a Toyota Corona Car."20 In fact, respondent court noted, Pfc. Felix Ramos, the
investigator on the scene of the accident confirmed that Valenzuela's car was parked very close to the
sidewalk.21 The sketch which he prepared after the incident showed Valenzuela's car partly straddling the
sidewalk, clear and at a convenient distance from motorists passing the right lane of Aurora Boulevard.
This fact was itself corroborated by the testimony of witness Rodriguez. 22

Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the
emergency and could not be considered to have contributed to the unfortunate circumstances which
eventually led to the amputation of one of her lower extremities. The emergency which led her to park her
car on a sidewalk in Aurora Boulevard was not of her own making, and it was evident that she had taken
all reasonable precautions.

Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the
accident. "Negligence, as it is commonly understood is conduct which creates an undue risk of harm to
others."23It is the failure to observe that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury. 24 We stressed, in Corliss vs. Manila Railroad
Company,25 that negligence is the want of care required by the circumstances.

The circumstances established by the evidence adduced in the court below plainly demonstrate that Li was
grossly negligent in driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at
about 2:00 A.M. after a heavy downpour had settled into a drizzle rendering the street slippery. There is
ample testimonial evidence on record to show that he was under the influence of liquor. Under these
conditions, his chances of effectively dealing with changing conditions on the road were significantly
lessened. As Presser and Keaton emphasize:

[U]nder present day traffic conditions, any driver of an automobile must be prepared for the sudden
appearance of obstacles and persons on the highway, and of other vehicles at intersections, such
as one who sees a child on the curb may be required to anticipate its sudden dash into the street,
and his failure to act properly when they appear may be found to amount to negligence.26

Li's obvious unpreparedness to cope with the situation confronting him on the night of the accident was
clearly of his own making.

We now come to the question of the liability of Alexander Commercial, Inc. Li's employer. In denying liability
on the part of Alexander Commercial, the respondent court held that:

There is no evidence, not even defendant Li's testimony, that the visit was in connection with official
matters. His functions as assistant manager sometimes required him to perform work outside the
office as he has to visit buyers and company clients, but he admitted that on the night of the accident
he came from BF Homes Paranaque he did not have "business from the company" (pp. 25-26, ten,
Sept. 23, 1991). The use of the company car was partly required by the nature of his work, but the
privilege of using it for non-official business is a "benefit", apparently referring to the fringe benefits
attaching to his position.

Under the civil law, an employer is liable for the negligence of his employees in the discharge of
their respective duties, the basis of which liability is not respondeat superior, but the relationship
of pater familias, which theory bases the liability of the master ultimately on his own negligence and
not on that of his servant (Cuison v. Norton and Harrison Co., 55 Phil. 18). Before an employer may
be held liable for the negligence of his employee, the act or omission which caused damage must
have occurred while an employee was in the actual performance of his assigned tasks or duties
(Francis High School vs. Court of Appeals, 194 SCRA 341). In defining an employer's liability for
the acts done within the scope of the employee's assigned tasks, the Supreme Court has held that
this includes any act done by an employee, in furtherance of the interests of the employer or for
the account of the employer at the time of the infliction of the injury or damage (Filamer Christian
Institute vs. Intermediate Appellate Court, 212 SCRA 637). An employer is expected to impose

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upon its employees the necessary discipline called for in the performance of any act "indispensable
to the business and beneficial to their employer" (at p. 645).

In light of the foregoing, We are unable to sustain the trial court's finding that since defendant Li
was authorized by the company to use the company car "either officially or socially or even bring it
home", he can be considered as using the company car in the service of his employer or on the
occasion of his functions. Driving the company car was not among his functions as assistant
manager; using it for non-official purposes would appear to be a fringe benefit, one of the perks
attached to his position. But to impose liability upon the employer under Article 2180 of the Civil
Code, earlier quoted, there must be a showing that the damage was caused by their employees in
the service of the employer or on the occasion of their functions. There is no evidence that Richard
Li was at the time of the accident performing any act in furtherance of the company's business or
its interests, or at least for its benefit. The imposition of solidary liability against defendant Alexander
Commercial Corporation must therefore fail.27

We agree with the respondent court that the relationship in question is not based on the principle
of respondeat superior, which holds the master liable for acts of the servant, but that of pater familias, in
which the liability ultimately falls upon the employer, for his failure to exercise the diligence of a good father
of the family in the selection and supervision of his employees. It is up to this point, however, that our
agreement with the respondent court ends. Utilizing the bonus pater familias standard expressed in Article
2180 of the Civil Code, 28 we are of the opinion that Li's employer, Alexander Commercial, Inc. is jointly and
solidarily liable for the damage caused by the accident of June 24, 1990.

First, the case of St. Francis High School vs. Court of Appeals29 upon which respondent court has placed
undue reliance, dealt with the subject of a school and its teacher's supervision of students during an
extracurricular activity. These cases now fall under the provision on special parental authority found in Art.
218 of the Family Code which generally encompasses all authorized school activities, whether inside or
outside school premises.

Second, the employer's primary liability under the concept of pater familias embodied by Art 2180 (in
relation to Art. 2176) of the Civil Code is quasi-delictual or tortious in character. His liability is relieved on a
showing that he exercised the diligence of a good father of the family in the selection and supervision of its
employees. Once evidence is introduced showing that the employer exercised the required amount
of care in selecting its employees, half of the employer's burden is overcome. The question of
diligent supervision, however, depends on the circumstances of employment.

Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee
during the performance of the latter's assigned tasks would be enough to relieve him of the liability imposed
by Article 2180 in relation to Article 2176 of the Civil Code. The employer is not expected to exercise
supervision over either the employee's private activities or during the performance of tasks either
unsanctioned by the former or unrelated to the employee's tasks. The case at bench presents a situation
of a different character, involving a practice utilized by large companies with either their employees of
managerial rank or their representatives.

It is customary for large companies to provide certain classes of their employees with courtesy vehicles.
These company cars are either wholly owned and maintained by the company itself or are subject to various
plans through which employees eventually acquire their vehicles after a given period of service, or after
paying a token amount. Many companies provide liberal "car plans" to enable their managerial or other
employees of rank to purchase cars, which, given the cost of vehicles these days, they would not otherwise
be able to purchase on their own.

Under the first example, the company actually owns and maintains the car up to the point of turnover of
ownership to the employee; in the second example, the car is really owned and maintained by the employee
himself. In furnishing vehicles to such employees, are companies totally absolved of responsibility when an
accident involving a company-issued car occurs during private use after normal office hours?

Most pharmaceutical companies, for instance, which provide cars under the first plan, require rigorous tests
of road worthiness from their agents prior to turning over the car (subject of company maintenance) to their
representatives. In other words, like a good father of a family, they entrust the company vehicle only after
they are satisfied that the employee to whom the car has been given full use of the said company car for
company or private purposes will not be a threat or menace to himself, the company or to others. When a
company gives full use and enjoyment of a company car to its employee, it in effect guarantees that it is,
like every good father, satisfied that its employee will use the privilege reasonably and responsively.

In the ordinary course of business, not all company employees are given the privilege of using a company-
issued car. For large companies other than those cited in the example of the preceding paragraph, the
privilege serves important business purposes either related to the image of success an entity intends to
present to its clients and to the public in general, or - for practical and utilitarian reasons - to enable its

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managerial and other employees of rank or its sales agents to reach clients conveniently. In most cases,
providing a company car serves both purposes. Since important business transactions and decisions may
occur at all hours in all sorts of situations and under all kinds of guises, the provision for the unlimited use
of a company car therefore principally serves the business and goodwill of a company and only
incidentally the private purposes of the individual who actually uses the car, the managerial employee or
company sales agent. As such, in providing for a company car for business use and/or for the purpose of
furthering the company's image, a company owes a responsibility to the public to see to it that the
managerial or other employees to whom it entrusts virtually unlimited use of a company issued car are able
to use the company issue capably and responsibly.

In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. In his testimony before the
trial court, he admitted that his functions as Assistant Manager did not require him to scrupulously keep
normal office hours as he was required quite often to perform work outside the office, visiting prospective
buyers and contacting and meeting with company clients. 30 These meetings, clearly, were not strictly
confined to routine hours because, as a managerial employee tasked with the job of representing his
company with its clients, meetings with clients were both social as well as work-related functions. The
service car assigned to Li by Alexander Commercial, Inc. therefore enabled both Li - as well as the
corporation - to put up the front of a highly successful entity, increasing the latter's goodwill before its
clientele. It also facilitated meeting between Li and its clients by providing the former with a convenient
mode of travel.

Moreover, Li's claim that he happened to be on the road on the night of the accident because he was
coming from a social visit with an officemate in Paranaque was a bare allegation which was never
corroborated in the court below. It was obviously self-serving. Assuming he really came from his
officemate's place, the same could give rise to speculation that he and his officemate had just been from a
work-related function, or they were together to discuss sales and other work related strategies.

In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction, that it exercised the care and
diligence of a good father of the family in entrusting its company car to Li. No allegations were made as to
whether or not the company took the steps necessary to determine or ascertain the driving proficiency and
history of Li, to whom it gave full and unlimited use of a company car. 31 Not having been able to overcome
the burden of demonstrating that it should be absolved of liability for entrusting its company car to Li, said
company, based on the principle of bonus pater familias, ought to be jointly and severally liable with the
former for the injuries sustained by Ma. Lourdes Valenzuela during the accident.

Finally, we find no reason to overturn the amount of damages awarded by the respondent court, except as
to the amount of moral damages. In the case of moral damages, while the said damages are not intended
to enrich the plaintiff at the expense of a defendant, the award should nonetheless be commensurate to the
suffering inflicted. In the instant case we are of the opinion that the reduction in moral damages from an
amount of P1,000,000.00 to P800,000,00 by the Court of Appeals was not justified considering the nature
of the resulting damage and the predictable sequelae of the injury.

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of
the full ambulatory functions of her left extremity, even with the use of state of the art prosthetic technology.
Well beyond the period of hospitalization (which was paid for by Li), she will be required to undergo
adjustments in her prosthetic devise due to the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be replaced and re-adjusted
to changes in the size of her lower limb effected by the biological changes of middle-age, menopause and
aging. Assuming she reaches menopause, for example, the prosthetic will have to be adjusted to respond
to the changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all
post-menopausal women. In other words, the damage done to her would not only be permanent and lasting,
it would also be permanently changing and adjusting to the physiologic changes which her body
would normally undergo through the years. The replacements, changes, and adjustments will require
corresponding adjustive physical and occupational therapy. All of these adjustments, it has been
documented, are painful.

The foregoing discussion does not even scratch the surface of the nature of the resulting damage because
it would be highly speculative to estimate the amount of psychological pain, damage and injury which goes
with the sudden severing of a vital portion of the human body. A prosthetic device, however technologically
advanced, will only allow a reasonable amount of functional restoration of the motor functions of the lower
limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable.

As the amount of moral damages are subject to this Court's discretion, we are of the opinion that the amount
of P1,000,000.00 granted by the trial court is in greater accord with the extent and nature of the injury -

7
physical and psychological - suffered by Valenzuela as a result of Li's grossly negligent driving of his
Mitsubishi Lancer in the early morning hours of the accident.

WHEREFORE, PREMISES CONSIDERED, the decision of the Court of Appeals is modified with the effect
of REINSTATING the judgment of the Regional Trial Court.

SO ORDERED.

Padilla, Bellosillo and Hermosisima, Jr., JJ., concur.

Separate Opinions

VITUG, J., concurring:

Pursuant to Article 21801 of the Civil Code that acknowledges responsibility under a relationship of patria
potestas, a person may be held accountable not only for his own direct culpable act or negligence but also
for those of others albeit predicated on his own supposed failure to exercise due care in his supervisory
authority and functions. In the case of an employer, that vicarious liability attaches only when the tortious
conduct of the employee relates to, or is in the course of, his employment. The question to ask should be
whether, at the time of the damage or injury, the employee is engaged in the affairs or concerns of the
employer or, independently, in that of his own. While an employer incurs no liability when an employee's
conduct, act or omission is beyond the range of employment,2 a minor deviation from the assigned task of
an employee, however, does not affect the liability of an employer.3

8
G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
CEILITO ORITA alias "Lito," defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.


C. Manalo for defendant-appellant.

MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B
before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case
reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows:

That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria
St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable
Court, above named accused with lewd designs and by the use of a Batangas knife he conveniently
provided himself for the purpose and with threats and intimidation, did, then and there wilfully,
unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S.
Abayan against her will and without her consent.

CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses
for the People testified and the exhibits were formally offered and admitted, the prosecution rested its case.
Thereafter, the defense opted not to present any exculpatory evidence and instead filed a Motion to
Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp.
59-60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of
the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating
circumstances of dwelling and nightime (sic) with no mitigating circumstance to offset the same,
and considering the provisions of the Indeterminate Sentence Law, imposes on accused an
imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE
(12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of
Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to
pay costs.

SO ORDERED.

Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the
Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo):

WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of
the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and
to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision
and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas
Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of
1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):

Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College
at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.

9
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates
had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had
left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her
and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another
boarder (pp. 8-9,ibid).

She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door
which led to the first floor was locked from the inside, appellant forced complainant to use the back
door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and his
right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid).
When they reached the second floor, he commanded her to look for a room. With the Batangas
knife still poked to her neck, they entered complainant's room.

Upon entering the room, appellant pushed complainant who hit her head on the wall. With one
hand holding the knife, appellant undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid).

He ordered her to lie down on the floor and then mounted her. He made her hold his penis and
insert it in her vagina. She followed his order as he continued to poke the knife to her. At said
position, however, appellant could not fully penetrate her. Only a portion of his penis entered her
as she kept on moving (p. 23, ibid).

Appellant then lay down on his back and commanded her to mount him. In this position, only a
small part again of his penis was inserted into her vagina. At this stage, appellant had both his
hands flat on the floor. Complainant thought of escaping (p. 20, ibid).

She dashed out to the next room and locked herself in. Appellant pursued her and climbed the
partition. When she saw him inside the room, she ran to another room. Appellant again chased her.
She fled to another room and jumped out through a window (p. 27, ibid).

Still naked, she darted to the municipal building, which was about eighteen meters in front of the
boarding house, and knocked on the door. When there was no answer, she ran around the building
and knocked on the back door. When the policemen who were inside the building opened the door,
they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see
her, took off his jacket and wrapped it around her. When they discovered what happened, Pat.
Donceras and two other policemen rushed to the boarding house. They heard a sound at the
second floor and saw somebody running away. Due to darkness, they failed to apprehend
appellant.

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where
she was physically examined.

Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:

Physical Examination Patient is fairly built, came in with loose clothing with no under-
clothes; appears in state of shock, per unambulatory.

PE Findings Pertinent Findings only.

Neck- Circumscribed hematoma at Ant. neck.

Breast Well developed, conical in shape with prominent nipples; linear abrasions below
(L) breast.

Back Multiple pinpoint marks.

Extremities Abrasions at (R) and (L) knees.

Vulva No visible abrasions or marks at the perineal area or over the


vulva, errythematous (sic)areas noted surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal
canal tight; no discharges noted.

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

10
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses;
and

2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.

The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and
vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor,
truth and validity." (p. 33, Rollo)

A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are
not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of
fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations
of truthfulness on material points. These little deviations also confirm that the witnesses had not been
rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not
necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA
98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must
be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of
Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity
in details would be a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No.
L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little
discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in
order to have carnal knowledge of her. According to the accused, this is strange because "this is the only
case where an aggressor's advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of
the victim ended there. The victim testified further that the accused was holding a Batangas knife during
the aggression. This is a material part of the victim's testimony which the accused conveniently deleted.

We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the
credibility of witnesses should be accorded the highest respect because it has the advantage of observing
the demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R. No.
55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim
(p 56, Rollo):

As correctly pointed out in the memorandum for the People, there is not much to be desired as to
the sincerity of the offended party in her testimony before the court. Her answer to every question
profounded (sic), under all circumstances, are plain and straightforward. To the Court she was a
picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor.
It is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally
her honor.

When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape
was committed provided her testimony is clear and free from contradiction and her sincerity and candor,
free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid,
G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16,
1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified
convincingly on how the rape was committed. The victim's testimony from the time she knocked on the door
of the municipal building up to the time she was brought to the hospital was corroborated by Pat. Donceras.
Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in
view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear
abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck,
erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against
force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding
house and was fully satisfied that the narration of the scene of the incident and the conditions therein is
true (p. 54, Rollo):

. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of
both accused and offended party without the slightest difficulty, even in the manner as narrated.
The partitions of every room were of strong materials, securedly nailed, and would not give way
even by hastily scaling the same.

A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R.
No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):

. . . And the jump executed by the offended party from that balcony (opening) to the ground which
was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a
frightened individual being pursued. Common experience will tell us that in occasion of
conflagration especially occuring (sic) in high buildings, many have been saved by jumping from
some considerable heights without being injured. How much more for a frightened barrio girl, like

11
the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the
exposure of her private parts when she sought assistance from authorities, as corroborated, is
enough indication that something not ordinary happened to her unless she is mentally deranged.
Sadly, nothing was adduced to show that she was out of her mind.

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled
that:

What particularly imprints the badge of truth on her story is her having been rendered entirely naked
by appellant and that even in her nudity, she had to run away from the latter and managed to gain
sanctuary in a house owned by spouses hardly known to her. All these acts she would not have
done nor would these facts have occurred unless she was sexually assaulted in the manner she
narrated.

The accused questions also the failure of the prosecution to present other witnesses to corroborate the
allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the
victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses
on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679,
June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the
medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the
parties that another physician testified inasmuch as the medico-legal officer was no longer available. The
accused did not bother to contradict this statement.

Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its
face. Some were not even substantiated and do not, therefore, merit consideration. We are convinced that
the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is
whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that
there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the
accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same
view.

Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:

Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of
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, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.

xxx xxx xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's
Law Dictionary. Fifth Edition, p. 193).

On the other hand, Article 6 of the same Code provides:

Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies as well as


those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment
are present; and it is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt
acts, and does 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.

Correlating these two provisions, there is no debate that the attempted and consummated stages apply to
the crime of rape.1wphi1 Our concern now is whether or not the frustrated stage applies to the crime of
rape.

12
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which
would produce the felony and (2) that the felony is not produced due to causes independent of the
perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a
distinction between attempted and frustrated felonies which is readily understood even by law students:

. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of
the crime by overt acts, is prevented, against his will, by some outside cause from performing all of
the acts which should produce the crime. In other words, to be an attempted crime the purpose of
the offender must be thwarted by a foreign force or agency which intervenes and compels him to
stop prior to the moment when he has performed all of the acts which should produce the crime as
a consequence, which acts it is his intention to perform. If he has performed all of the acts which
should result in the consummation of the crime and voluntarily desists from proceeding further, it
can not be an attempt. The essential element which distinguishes attempted from frustrated felony
is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between
the beginning of the commission of the crime and the moment when all of the acts have been
performed which should result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of the acts which should
produce the crime. He is stopped short of that point by some cause apart from his voluntary
desistance.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually
attains his purpose and, from that moment also all the essential elements of the offense have been
accomplished.Nothing more is left to be done by the offender, because he has performed the last act
necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar,
48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56
SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform
rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female
organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the
hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there
is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil.
694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender
merely commenced the commission of a felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.

Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil. 998 [1927]
where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of
the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it
has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised
Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No.
4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when
the rape is attempted orfrustrated and a homicide is committed by reason or on the occasion thereof. We
are of the opinion that this particular provision on frustrated rape is a dead provision. The Eria case, supra,
might have prompted the law-making body to include the crime of frustrated rape in the amendments
introduced by said laws.

In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial
court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva
does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party
the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court
stated (p. 57, Rollo):

. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by
Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was
penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed
from the uncorroborated testimony of the offended party and that a medical certificate is not
necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people
relied upon cannot be applicable to the instant case. The testimony of the offended party is at
variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of
the court. It should be stressed that in cases of rape where there is a positive testimony and a
medical certificate, both should in all respect, compliment each other, for otherwise to rely on the
testimony alone in utter disregard of the manifest variance in the medical certificate, would be
productive of mischievous results.

The alleged variance between the testimony of the victim and the medical certificate does not exist. On the
contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by
abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis
that Dr. Zamoradid not rule out penetration of the genital organ of the victim. He merely testified that there

13
was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified
that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

xxx xxx xxx

Q What do you mean when you said comply, or what act do you referred (sic) to, when you said
comply?

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the
victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People
v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-
29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and
is not an indispensable element in the prosecution of this case (People v. Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt beyond
reasonable doubt of the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed
with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court
appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper imposable penalty
is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People
v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not
declare the abolition of the death penalty but merely prohibits the imposition of the death penalty, the Court
has since February 2, 1987 not imposed the death penalty whenever it was called for under the Revised
Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-
33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph
3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63, paragraph
1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v.
Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May
31, 1985, 136 SCRA 702).

ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita
is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as
well as to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

14
[G.R. No. 143708. February 24, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGELIO SAMBRANO y TINDERO, accused-


appellant.

DECISION
PER CURIAM:

On automatic review is the decision[1] dated April 19, 2000, of the Regional Trial Court of Bataan,
Branch 3, in Criminal Case No. 6937, finding appellant guilty beyond reasonable doubt of raping the
daughter of his common-law spouse and sentencing him to suffer the ultimate penalty of death, to indemnify
the victim in the amount of P75,000.00 as well as to pay moral damages of P50,000.00.
The criminal complaint filed by the victims mother, Nilda N. Parilla, alleged:

That on or about October 20, 1998 at Brgy. San Juan, Samal, Bataan, Philippines and within the jurisdiction
of this Honorable Court, the said accused, motivated by lust and lewd design, did then and there willfully,
unlawfully and feloniously have carnal knowledge or sexual intercourse with Sheen Gonzales, a five year
old minor and a daughter of the undersigned who is the common-law spouse of the accused, against the
will and consent of the said Sheen Gonzales, and to her damage and prejudice.

CONTRARY TO LAW.[2]

On November 6, 1998, appellant, assisted by counsel, was arraigned and pleaded not guilty to the
rape charge. Trial ensued thereafter.
The prosecution presented four witnesses, namely: Nilda Parilla, Dr. Emelita Firmacion, Pet Byron
Buan and the child-victim Sheen Gonzales.
NILDA N. PARILLA testified that her daughter, Sheen, was born on December 1, 1992.[3] According to
her, Sheen was five (5) years old when appellant raped her. She said appellant is her common-law
spouse. She recalled that on October 20, 1998 at around 10:00 A.M., she was in the yard, washing their
dirty clothes. Sheen and appellant were also there. Appellant helped the witness by pumping the artesian
well. After Sheen had taken a bath in the yard, her mother told her to go home so she could get ready for
school. Their house is only 25 meters away from the place. When the witness finished rinsing the clothes,
she likewise told appellant to go home while she remained to hang the clothes to dry. Thereafter, she too
went home.[4]
Upon reaching their house, she was surprised to see her daughter still at home. Sheen looked pale
and seemed afraid. When asked why she was still home, Sheen replied that she was looking for something.
Nilda noticed that Sheens clothes were crumpled so she raised her daughters skirt so as to change her
clothes. It was then she saw that Sheens panties were inside out and had blood stains on it. She asked her
daughter about the bloodstains to which the latter allegedly replied inindot daw siya ng tatay
niya.[5] Realizing what her daughter meant, Nilda looked for appellant to confront him. She asked appellant
about her daughters bloodied underwear but appellant told her to ask Sheen instead. Sheen by then was
already crying. She nagged him about the bloodied underwear but he kept evading the issue. Moments
later, their lessor, Barangay Councilor Rafael Guinto, arrived and witnessed the commotion. She forthwith
asked for his assistance. Councilor Guinto called for the police who came and arrested
appellant.[6] According to the witness, the police accompanied her and Sheen to the Bataan Provincial
Hospital where the doctor examined Sheen.[7]
DR. EMELITA Q. FIRMACION, physician at the Bataan Provincial Hospital, testified that she
conducted a physical and genital examination on Sheen on October 20, 1998 at around 1:50 P.M. Her
examination showed that the victims labia majora and minora were well opposed; there were fresh
lacerations on the victims hymen at the 3 oclock and 9 oclock positions, and there was presence
of erythma around the vaginal opening.[8] She stated that the victims hymen could have been lacerated
within the 24-hour period prior to the examination. She also testified that there are several causes of
hymenal laceration, namely: penetration of an erect penis (without causing hymenal laceration); insertion
of foreign body; insertion of the finger; instrumentation; heavy exercises like gymnastics; and
masturbation.[9]
PET BYRON T. BUAN,[10] a forensic biologist of the National Bureau of Investigation (NBI), testified
that on March 24, 1999, he examined two pairs of underwear, both belonging to the victim. The specimens
were brought to the NBI laboratory upon the request of the victims mother. He conducted a blood test
examination on the two pairs of underwear and found that these had reddish brown stains, which yielded
positive results for the presence of human blood showing the reactions of group O. He also got and

15
examined fresh blood samples from Sheen, the result of which showed that the blood belongs to group
type O.[11]
On cross-examination, he admitted that he had no personal knowledge of the ownership of the
underwear brought to him for examination and that he merely relied on the labels on the containers of the
specimens submitted to him for laboratory testing.[12]
SHEEN N. GONZALES was the last witness for the prosecution. She testified on November 11, 1999.
She was six years old at the time of her testimony. She declared that on October 20, 1998, appellant
undressed her and inserted his penis inside her organ (yong titi po niya nilagay sa kiki ko).[13]
The defense presented appellant ROGELIO SAMBRANO as its sole witness. The trial court summed
up his version of the incident as follows:

He denied that he raped Sheen Gonzales. He said that the medical certificate can disprove the rape.
However when counsel told him that the medical report shows lacerations on the private part of the child
and that her panties had blood similar to her own type of blood, he told this story: In that morning at 10:00
A.M., he was cleaning the pigpen while Sheen Gonzales was watching him. Sheen climbed the balustre
and when he placed her down, she complained of aches. It was only Nilda Parilla who was saying that he
raped her daughter. Sheen Gonzales was taught by her mother to testify against him. He denied that he
helped Nilda Parilla in pumping the artesian well. He insisted that at about 10:30 A.M. on October 20, 1998,
he was taking a rest for having just cleaned the pigpen. He was not able to get a good sleep the night before
as he had watched his pig which was then giving birth. He was therefore tired and woke up at 8:00 A.M. [14]

The trial court found the prosecutions version credible and convicted appellant as follows:

WHEREFORE, finding accused Rogelio Sambrano guilty beyond reasonable doubt as principal by direct
participation of the crime of rape, the Court hereby sentences him to suffer DEATH in accordance with the
prevailing law and orders him to indemnify his victim Sheen Gonzales the amount of P75,000.00 and pay
her moral damages in the amount of P50,000.00.

xxx

SO ORDERED.[15]

Hence, this automatic review. Appellant raises the sole error that:

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY, BEYOND REASONABLE
DOUBT, OF THE CRIME OF RAPE DESPITE THE INSUFFICIENCY OF EVIDENCE FOR THE
PROSECUTION.[16]

The issues for resolution are (1) whether the charge against appellant was proven beyond reasonable
doubt, and if so, (2) whether the penalty imposed on him is appropriate. Unavoidably, we must look into the
credibility of the witnesses to resolve these issues.
Appellant assails the testimony of the victim Sheen Gonzales. He claims that private complainant was
not able to describe how she was allegedly raped. According to appellant, this only shows that the alleged
rape was just an accusation maliciously and wickedly concocted by the private complainants mother Nilda
Parilla, who would do anything to be with her paramour.[17] Likewise, appellant claims that it is inconceivable
for him to even attempt to rape Sheen at that time, considering that his common-law spouse was just nearby
and could have easily discovered or witnessed the dastardly act imputed against him. [18] Appellant argues
that there were no eyewitnesses to the crime such that it is possible that when Sheen testified thatinindot
siya ng tatay niya, what she actually meant was that the accused inserted his finger in her vagina and not
his penis. This allegation is bolstered by the fact that Sheen was not able to describe the manner in which
the alleged rape was committed upon her, according to appellant.[19]
The Office of the Solicitor General (OSG), for the appellee, contends that the medical evidence
corroborates the child-victims testimony.[20] The OSG argues that appellants allegation that the rape charge
was a mere fabrication of the victims mother so that she could live with her supposed lover is not only false
and unsubstantiated, but also ridiculous.[21] According to the OSG, the trial court did not err in assigning
greater value to Sheens testimony. Appellants simple denial is unworthy of belief, said the OSG, as it is a
mere attempt to contrive a defense in his favor to absolve him of his criminal liability.[22]
In reviewing rape cases, this Court is guided by three principles: (1) an accusation of rape can be
made with facility and while the accusation is difficult to prove, it is even more difficult for the person
accused, although innocent, to disprove; (2) considering the intrinsic nature of the crime, only two persons
being usually involved, the testimony of the complainant should be scrutinized with great caution; (3) the
evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength
from the weakness of the evidence for the defense.[23] With these guidelines in mind, after carefully
considering the testimony of the victim and thee appellant as well as the other witnesses, we are convinced
that the findings of the trial court on the credibility of the victim and the other witnesses for the prosecution

16
must be sustained. Sheen Gonzales testimony on the witness stand is remarkable for its simplicity and
candor, thus:
Q: What did the accused do to you?
A: (Witness whispering) Ni-rape po niya ako.
Q: When you said rape, what did the accused do to you?
A: He undressed me, sir.
Q: After that, what did he do to you?
A: He put his penis inside my sex organ, sir (Yong titi po niya nilagay po sa kiki ko)
Q: What did you feel when the accused put his private organ to your private organ.
A: Pain sir.[24]
Under rigorous cross-examination, Sheen remained unperturbed by the confusing questions of the
defense counsel. It is understandable that at her age, she could not fully explain the nature of rape. As
correctly pointed out by the prosecution, rape has a technical definition. [25] We should not expect a six-year-
old child to define the term rape with exact precision, given her vocabulary and command of language.
Despite this limitation, however, it is noteworthy that she never wavered in her claim that appellant imposed
upon her his unwanted lust, thus:
ATTY. GUIAO:
Sheen, who told you that you were raped?
A: Roger, madam.
Q: Your mother, did your mother tell you that you were raped?
A: No, madam.
Q: The person from the DSWD, did they tell you that you were raped?
A: No madam.
Q: How did you know that you were raped?
A: Si Roger po, sinabi po niya sa akin.
Q: But you do not know if you were really raped, is that correct?
PROS. LASAM:
The witness had already answered that she was raped, Your Honor.
ATTY. GUIAO:
I am just asking her if she knows the essence of the term rape, Your Honor. That is material
Your Honor, to test her credibility. When you said Ang titi po niya nilagay sa kiki ko, what do
you mean?
A: I do not know, madam.
ATTY. GUIAO:
The answer is hindi ko po alam. You do not know that because it did not really happen, am I
correct?
A: No, madam, he did it.
Q: What did he really do?
PROS. LASAM:
That is self-explanatory, Your Honor. She already answered that.[26]
Sheens testimony is supported by the medical findings of Dr. Firmacion on the presence of fresh
lacerations on the victims hymen. The lacerations may have been incurred, within the 24-hour period,
consistent with her mothers testimony that she had Sheen examined immediately after the rape incident.
Laceration of the hymen, whether fresh or healed, is the best physical evidence of defloration. [27]
Now on appeal, appellant modified his theory from total denial to just a claim that contact between him
and the victim was only attempted rape. He relied on People vs. Campuhan[28] to bolster his testimony. But
appellants belated change of theory does not aid his cause. Appellants reliance on the case
of Campuhan, is misplaced. In Campuhan, when the court asked the victim if the penis of the accused
touched her organ, her reply was yes. When asked further if his penis penetrated her organ, she said no.
The medical finding that there was no physical evidence of rape was more conclusive, thus:

17
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in
this case was consummated. It has foreclosed the possibility of Primos penis penetrating her vagina,
however slight. Crysthel made a categorical statement denying penetration, obviously induced by a
question propounded to her who could not have been aware of the finer distinctions
between touching andpenetration. Consequently, it is improper and unfair to attach to this reply of a four
(4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of
worldly sophistication, an adult interpretation that because the penis of the accused touched her organ
there was sexual entry. Nor can it be deduced that in trying to penetrate the victims organ the penis of the
accusedtouched the middle portion of her vagina and entered the labia of her pudendum as the prosecution
failed to establish sufficiently that Primo made efforts to penetrate Crysthel. [29]

In the present case, the categorical declaration of Sheen is that yong titi po niya nilagay po sa kiki
ko. (His penis was put into my vulva.) When asked what she felt at that time, she replied pain. There can
be no doubt as to the real meaning of these words spoken by her. Appellant did not merely graze her mons
pubis, that rounded eminence that becomes hairy after puberty.[30] It appears that he was able to penetrate
and went beyond the labia. The penis must enter the labia, minora or majora, of the pudendum to
consummate the rape.[31] Appellants line of defense, that only attempted rape was committed, is far from
persuasive. Based on the medical findings and the positive testimony of the victim and other prosecution
witnesses, we agree with the trial courts conclusion that rape was consummated, not merely attempted.
Appellants assertion that only his fingers were inserted inside Sheens genitalia only confirms the
monstrous act of abusing a helpless child of five. His assertion that he could not have raped Sheen for fear
of being discovered is a non sequitur. That his sense of decency would have prevented him from imposing
his degenerate desires on the child because Nilda was just nearby is a mere afterthought, a baseless
pretext. Time and again, we held that lust is no respecter of time or place. Rape has been successfully
consummated in places where people congregate, like parks or school premises, and even in a house
where there are other occupants.[32] In this case, appellant had the opportunity to be alone with the child,
although for just a short time. That sufficed for him to take advantage of the opportunity to molest her.
Finally, the imputation of ill motive against the victims mother is not a viable defense. That she has
another lover, and she would like to get rid of appellant by filing the charges against him, is too specious it
deserves scant consideration. Appellant admitted he was not legally married to Nilda Parilla and there was
no legal impediment should Nilda desire to leave him.[33]There is no reason for her to fabricate a tale so
sick as to subject her daughter and herself to gossip and ridicule. The charges put her daughters and her
own reputation to public scrutiny. A court trial could expose them all to ridicule, not just the appellant. No
mother in her right mind would expose her daughter to the trauma resulting from a court case unless she
is truly motivated by a desire to penalize the person responsible for her daughters defilement.[34] Moreover,
we note appellant could not name Nildas alleged lover when asked during the direct examination. Nor did
he try to confront Nilda about her alleged lover. When asked for the reason behind these failures, appellant
could not give any reasonable explanation except to say, I did not mention the name of her lover during the
last hearing but now I am telling you his name and I am reserving it today to give the name of her lover.[35]
Consequently, appellants failure to substantiate the imputation of ill motive against the principal
witnesses constrains us to affirm the jurisprudential presumption that they were not so moved, hence, their
testimonies are entitled to full faith and credence.[36] These testimonies and the medical evidence establish
that the offense charged was committed beyond a shadow of doubt.
Under Article 335, seventh paragraph, no. 4,[37] of the Revised Penal Code, as amended by Republic
Act No. 7659, the crime of rape committed upon a child below seven (7) years old is punishable by death.
We have previously held that the victims age, being a qualifying circumstance which could raise the
penalty to the supreme penalty of death, must be proved with equal certainty and clearness as the crime
itself.[38] The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.[39]
Here, the prosecution indubitably established that Sheen Gonzales was only five (5) years old when
she was raped. The certified true copy of her certificate of live birth [40] shows that she was born on
December 1, 1992, making her only five (5) years old when appellant raped her. Her age was also
corroborated by her mothers testimony.[41] Hence, all the elements of the offense were properly proved
beyond reasonable doubt, and the trial court did not err in imposing the death penalty.
As to the damages, we have held that if the rape is perpetrated with any of the attending qualifying
aggravating circumstances that require the imposition of the death penalty, the civil indemnity for the victim
shall be P75,000.[42] Thus, the trial courts award of P75,000 as civil indemnity is in line existing with existing
case law. Also, in rape cases moral damages are awarded without need of proof other than the fact of rape
because it is assumed that the victim has suffered moral injuries entitling her to such an award. [43] However,
the trial courts award of P50,000 as moral damages should also be increased to P75,000 pursuant to
current jurisprudence on qualified rape.[44] Lastly, exemplary damages in the amount of P25,000 is also
called for, by way of public example, and to protect the young from sexual abuse. [45]
Three Justices of the Court maintain their position that R.A. No. 7659 is unconstitutional insofar as it
prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is
constitutional, and that the death penalty can be lawfully imposed in the case at bar.

18
WHEREFORE, the assailed decision dated April 19, 2000 of the Regional Trial Court of Bataan,
Branch 3, in Criminal Case No. 6937, finding appellant Rogelio Sambrano y Tindero guilty beyond
reasonable doubt of qualified rape and imposing upon him the DEATH penalty, is AFFIRMED. Appellant is
also ordered to pay the victim, Sheen Gonzales, the amount of P75,000.00 as civil indemnity, P75,000.00
as moral damages, and P25,000.00 as exemplary damages. Costs de oficio.
In accordance with Section 25 of R.A. No. 7659 amending Section 83 of the Revised Penal Code, let
the records of this case be forthwith forwarded, upon finality of this decision, to the Office of the President
for possible exercise of the pardoning power.
SO ORDERED.

19
[G.R. No. 129433. March 30, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused.

DECISION

BELLOSILLO, J.:

On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated rape[2] and allowed only
attempted rape and consummated rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by considering almost every attempt
at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The
danger there is that that concept may send the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any
attempted fornication would be considered consummated rape and punished as such. A mere strafing of
the citadel of passion would then be considered a deadly fait accompli, which is absurd.

In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the
victim since by it he attained his objective. All the elements of the offense were already present and nothing
more was left for the offender to do, having performed all the acts necessary to produce the crime and
accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ
by the male organ, however slight, was sufficient. The Court further held that entry of the labia or lips of the
female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant
conviction for consummated rape. We distinguished consummated rape from attempted rape where there
was no penetration of the female organ because not all acts of execution were performed as the offender
merely commenced the commission of a felony directly by overt acts. [3] The inference that may be derived
therefrom is that complete or full penetration of the vagina is not required for rape to be consummated. Any
penetration, in whatever degree, is enough to raise the crime to its consummated stage.

But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of
the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a
conviction for consummated rape. While the entry of the penis into the lips of the female organ was
considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora,
etc.,[4] the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to,
or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary
sense. In other words, the touching must be tacked to the penetration itself. The importance of the
requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the
lips of the female genitalia has not been established, the crime committed amounts merely to attempted
rape.

Verily, this should be the indicium of the Court in determining whether rape has been committed either in
its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the
two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the
difference between life and death for the accused - a reclusive life that is not even perpetua but
only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another
level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute
attempted rape? Must our field of choice be thus limited only to consummated rape and acts of
lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree
with this ponencia?

On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a
quo to the extreme penalty of death,[5] hence this case before us on automatic review under Art. 335 of the
Revised Penal Code as amended by RA 7659.[6]

As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in the afternoon, Ma.
Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down from the second floor
of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo
Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located
at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy
preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush
upstairs. Thereupon, she saw Primo Campuhan inside her childrens room kneeling before Crysthel whose
pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees.

According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she cursed the accused,
"P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his
pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for

20
help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the
accused.[8] Seconds later, Primo was apprehended by those who answered Corazon's call for help. They
held the accused at the back of their compound until they were advised by their neighbors to call
the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded
negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on
Crysthels body as her hymen was intact and its orifice was only 0.5 cm. in diameter.

Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed
the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal
to run an errand for her.[9] He asserted that in truth Crysthel was in a playing mood and wanted to ride on
his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this
fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused
him of raping her child. He got mad but restrained himself from hitting back when he realized she was a
woman. Corazon called for help from her brothers to stop him as he ran down from the second floor.

Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him
and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado
Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the
accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead
pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and
neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or
possibly kill him.

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of
statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00
for moral damages, P25,000.00 for exemplary damages, and the costs.

The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that
her narration should not be given any weight or credence since it was punctured with implausible
statements and improbabilities so inconsistent with human nature and experience. He claims that it was
truly inconceivable for him to commit the rape considering that Crysthels younger sister was also in the
room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence
alone as possible eyewitnesses and the fact that the episode happened within the family compound where
a call for assistance could easily be heard and responded to, would have been enough to deter him from
committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking
place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description
of the alleged sexual contact when from where she stood she could not have possibly seen the
alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any
external signs of physical injuries or of penetration of Crysthels private parts more than bolsters his
innocence.

In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo
with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly
"already removed" and that Primo was "forcing his penis into Crysthels vagina." The gravamen of the
offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par.
(3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising
the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec.
11, the offended party being below seven (7) years old. We have said often enough that in concluding that
carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the
rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of
consummating the sexual act is sufficient to constitute carnal knowledge.[10] But the act of touching should
be understood here as inherently part of the entry of the penis into the labias of the female organ and not
mere touching alone of the mons pubis or the pudendum.

In People v. De la Pea[11] we clarified that the decisions finding a case for rape even if the attackers penis
merely touched the external portions of the female genitalia were made in the context of the presence or
existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection,
had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court
nonetheless held that rape was consummated on the basis of the victim's testimony that the accused
repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of
her pudendum as the victim felt his organ on the lips of her vulva,[12] or that the penis of the accused
touched the middle part of her vagina.[13] 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 victims vagina, or the mons pubis, as in this case. 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 an accused to be convicted of consummated rape.[14] As the labias, which are required
to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal
surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence,

21
the conclusion that touching the labia majora or the labia minora of the pudendum constitutes
consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal
area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons
pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface.
The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface
and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented,
while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly
beneath the labia majora is the labia minora.[15] Jurisprudence dictates that the labia majora must
beentered for rape to be consummated,[16] 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 either labia of the pudendumby the penis, there can be no consummated rape; at
most, it can only be attempted rape, if not acts of lasciviousness.

Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female
organ,"[17] but has also progressed into being described as "the introduction of the male organ into
the labia of the pudendum,"[18] or "the bombardment of the drawbridge."[19] But, to our mind, the case at bar
merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the
citadel of passion."

A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving
that Primos penis was able to penetrate Crysthels vagina however slight. Even if we grant arguendo that
Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of
her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw
upon entering her childrens room Corazon plunged into saying that she saw Primo poking his penis on the
vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and
sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon
Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus:

Q: How was Primo holding your daughter?

A: (The witness is demonstrating in such a way that the chest of the accused is pinning
down the victim, while his right hand is holding his penis and his left hand is spreading the
legs of the victim).

It can reasonably be drawn from the foregoing narration that Primos kneeling position rendered an unbridled
observation impossible. Not even a vantage point from the side of the accused and the victim would have
provided Corazon an unobstructed view of Primos penis supposedly reaching Crysthels external genitalia,
i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden
his movements from Corazons sight, not to discount the fact that Primos right hand was allegedly holding
his penis thereby blocking it from Corazons view. It is the burden of the prosecution to
establish how Corazon could have seen the sexual contact and to shove her account into the permissive
sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is
required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect,
thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved.
To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the
constitutional right of the accused to be presumed innocent.

Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely
appearance, thus giving her the opportunity to fully witness his beastly act.

We are not persuaded. It is inconsistent with mans instinct of self-preservation to remain where he is and
persist in satisfying his lust even when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of
Primo upon learning of Corazons presence would have been to pull his pants up to avoid being caught
literally with his pants down. The interval, although relatively short, provided more than enough opportunity
for Primo not only to desist from but even to conceal his evil design.

What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the
court -

Q: Did the penis of Primo touch your organ?

A: Yes, sir.

But when asked further whether his penis penetrated her organ, she readily said, "No." Thus -

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Q: But did his penis penetrate your organ?

A: No, sir.[20]

This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in
this case was consummated. It has foreclosed the possibility of Primos penispenetrating her vagina,
however slight. Crysthel made a categorical statement denying penetration, [21] obviously induced by a
question propounded to her who could not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four
(4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of
worldly sophistication, an adult interpretation that because the penis of the accused touched her organ
there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the
accused touched the middle portion of her vagina and entered the labia of her pudendum as the
prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. [22] Corazon did not
say, nay, not even hint that Primo's penis was erect or that he responded with an erection.[23] On the
contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he
had yet to attain an erection to be able to penetrate his victim.

Antithetically, the possibility of Primos penis having breached Crysthels vagina is belied by the child's own
assertion that she resisted Primos advances by putting her legs close together;[24]consequently, she did not
feel any intense pain but just felt "not happy" about what Primo did to her. [25] Thus, she only shouted "Ayo'ko,
ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt
pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer visible.[26] None was shown in this case.
Although a child's testimony must be received with due consideration on account of her tender age, the
Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of
the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the
testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced
to death.

Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external
signs of physical injuries on complaining witness body to conclude from a medical perspective that
penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete
penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical
basis to hold that there was sexual contact between the accused and the victim. [27]

In cases of rape where there is a positive testimony and a medical certificate, both should in all respects
complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the
manifest variance in the medical certificate, would be productive of unwarranted or even mischievous
results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the
labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the
thin line that separates attempted rape from consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender
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. All the elements of attempted rape - and only of attempted rape - are present in
the instant case, hence, the accused should be punished only for it.

The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense
charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion
temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the
Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the
maximum of the penalty to be imposed upon the accused shall be taken from the medium period
of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen
(17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree,
which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any
of its periods.

WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO
guilty of statutory rape and sentencing him to death and to pay damages isMODIFIED. He is instead found
guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4)
months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months
and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio.

SO ORDERED.

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