Prosecutor Nip

Peopls vs. Mahinay Facts: Larry Mahinay was found guilty of rape with homicide by the RTC. Mahinay was a houseboy and the victim Ms. Victoria Chan, was the 12-year-old neighbour of his emplotyer. The victim was found inside a septic tank. Mahinay was arrested and he executed an extrajudicial confession with the assistance of Atty. Viernes. Issue: WON the evidence against the accused were obtained through lawful means? Held: Yes. Evidence was obtained following the Miranda rights. The court as, guardian of right sof the people lays down the procedure, guidelines and duties which the arresting, detaining, inviting or investigating officer or his companion must do. 1. The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any; Every other warnings, information or communication must be in a language known to and understood by said person; 2. He must be warned that he has a right to remain silent and that anystatement he makes may be used as evidence against him; 3. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice; 4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf; 5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made; 6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means - telephone, radio, letter or messenger - with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one from his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished; 7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; 8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it

must be done in writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insist on his waiver and chooses to speak; 9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must ceased if it has already begun; 10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements; 11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence. Through this case the court updated the Miranda rights.
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION 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) YEARSPRISION 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. 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: 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 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. Our concern now is whether or not the frustrated stage applies to the crime of rape. 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 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-3792829, 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. 7873233, 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. Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. Nos. L-44859-60 April 27, 1984

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABELARDO BALBUENA and JUANITO TORRES, accused-appellants. The Solicitor General for plaintiff-appellee. Luciano D. Valencia for accused-appellants. GUERRERO, J.:

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Appeal from the decision of the Court of First Instance of Rizal, Branch XII, Caloocan City, promulgated on August 6, 1976, in Criminal Cases Nos. C-6848 (75) and C-6849 (75) convicting herein accused Abelardo Balbuena and Juanito Torres for the crime of RAPE and sentencing each of them to suffer in each case the penalty of reclusion perpetua and to pay the costs. The two separate informations dated November 20, 1975 filed by Asst. City Fiscal Romeo C. Cortes upon the complaint of the offended party, Elvira Polintan, single, 20 years of age, a senior criminology student of the Philippine College of Criminology, against the two accused, read as follows: CRIMINAL CASE NO. C-6848 (75)
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That on or about the 28th day of August, 1975, in the City of Caloocan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Abelardo Balbuena y Garcia, conspiring and confederating with Juanito Torres y Villanueva, by means of force, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the complainant Elvira Polintan against the latter's win and consent. Contrary to law. CRIMINAL CASE NO. C-6849 (75)
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That on or about the 28th day of August, 1975, in the City of Caloocan, Philippines and within the jurisdiction of this Honorable Court, the said accused Juanito Torres y Villanueva, conspiring and confederating with Abelardo Balbuena y Garcia, by means of force, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant Elvira Polintan against the latter's win and consent. Contrary to law. Upon arraignment, both accused, assisted by counsel, waived the reading of the information and entered the plea of not guilty. Upon motion of the Fiscal, on the ground that the complainant in both cases is one and the same person, the court conducted a joint trial of the two cases. The evidence of the prosecution as summarized in the People's Brief established that:
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On August 28, 1975, at around 10:00 o'clock in the evening, complainant Elvira Polintan was in an apartment located at P. Zamora St., Caloocan City, talking with appellant Juanito Torres, a friend of long standing (pp. 1-2, t.s.n., Feb. 10, 1976). After a while, some friends of Torres arrived. Torres and his friends agreed to drink liquor. They invited Elvira Polintan to join them (p. 2, t.s.n., Id.). Because Elvira had not seen appellant Torres for quite sometime, she accepted the invitation. They decided to hold the drinking party at the apartment of appellant Abelardo Balbuena which was also situated at P. Zamora St., Caloocan City, and adjacent to the house of appellant Juanito Torres (Ibid.). The ground floor of Balbuena's apartment was formerly a billiard hall but was no longer used as such (p. 10, t.s.n., Id.). Inside the billiard hall where the drinking party was held, Torres introduced Balbuena to Elvira Polintan (lbid.). Aside from the two appellants and Elvira Polintan there were three other male persons in the group (p. 2, t.s.n., Id.). They drank gin. (lbid.) After Elvira Polintan consumed a half glass of gin, she felt dizzy (Ibid.). She asked permission from the group that she would take a rest. She lay down in a bench inside the billiard hall (p. 5, t.s.n., Feb. 24, 1976). Then, appellant Balbuena undressed the complainant by removing her pants and briefs (pp. 4, 19, 21, t.s.n., Id.) and spread her legs

wide apart (p. 22, t.s.n., Id.). At this juncture, appellant Torres was holding Elvira's hands. Balbuena then went on top of the billiard table (p. 16, t.s.n., Feb. 24, 1976). In the meantime, complainant feebly tried to extricate herself even as appellant Balbuena kept on threatening her and her family with death if she would not yield her body to him (Ibid.). Finally, Balbuena succeeded in having carnal knowledge with complainant (pp. 22-23, t.s.n., Id.). After appellant Balbuena had satisfied his lustful desires, he went down the billiard table. Immediately thereafter, appellant Torres went up the billiard table. Appellant Balbuena held complainant's hands (p. 4, t.s.n., Feb. 16, 1976). Despite complainant's continued struggle by twisting her body and kicking her feet, she simply could not overpower the appellants, so that appellant Torres also succeeded in consummating the sexual act with her (p. 5, t.s.n., Id.). In the course of the sexual act, appellant Balbuena covered the mouth of complainant to prevent her from shouting (p. 5, t.s.n., Id.). After she was raped, she sat down on the corner and cried. Appellant Balbuena told her "remember what I told you (referring to the threat that he will kill complainant and her parents)." (Ibid.). After about five minutes and when the attention of the appellants were distracted, complainant ran away and proceeded to her house. (Ibid.). On October 19, 1975, she related her sad experience to her mother (p. 7, t.s.n., Feb. 10, 1976). The following day, October 20, 1975, she went to the police headquarters at Caloocan City and gave a statement (Exhibit "A") narrating the incident of August 28, 1975 (p. 6, t.s.n., Id.). Also on October 20, 1975, she filed a complaint (Exhibits "B" and "C") for rape in the City Fiscal's Office at Caloocan City against the appellants. On the same date, complainant was examined by Dr. Maximo Reyes, medico-legal officer of the National Bureau of Investigation who issued a medical certificate (Exhibit "D", p. 46, rec.) with the following findings: General Physical Examination:
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Height: 156 cm. Weight: 96 lbs. Normally developed, fairly nourished, conscious, coherent, cooperative subject. Breast fully developed, hemispherical and soft. Areola, dark brown, 3.0 cm. in diameter. No evident sign of extragenital physical injury noted on the body of the subject. Genital Examination:
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Pubic hairs, fully grown and abundant. Labia majora and minora both gaping. Fourchette, lax Vestibular mucosa, pinkish. Hymen, thick, moderately wide, with multiple natural notches and a healed superficial laceration at 5:00 o'clock position corresponding to the face of the watch; edges beginning to round up and hardly coeptable Hymenal orifice originally annular and admits a tube 3.0 cm. in diameter with moderate resistance. Rugosities, shallow, and vaginal walls lax. CONCLUSIONS:
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1. No evident sign of extragenital physical injury noted on the body of the subject.
2. She could have had sexual intercourse with a man on or about the alleged date of commission. 1

Both accused-appellants rest their defense on denial and alibi.

Accused Juanito Torres testified that he had known, the complainant for the past three years prior to the alleged commission of rape as she used to be with him in going places and having occasional drinking sprees of beer, gin and coke, "pagka may katuwaan", with a group of male companions; 2 that at about 4:00 o'clock in the afternoon of August 28, 1975, he saw complainant and requested her to accompany him to his cousin who resides at Gen. Luna Street, Caloocan City, to request his cousin to write a letter for him, and she acceded to come along; 3 that however, he went alone to see his cousin while complainant stayed behind at the fire department and then he went home without her at about 6:00 o'clock in the afternoon of the same day. 4 In denying any participation in the rape charge, accused Torres disclaimed his presence at the drinking party held inside the billiard hall. He denied that he usually drives a public utility jeepney from the corner of 10th Avenue, Rizal Avenue Extension, up to Biglang-Awa from 6:00 o'clock in the evening up to 12:00 o'clock midnight. 5 He declared further that complainant, a tomboy, had a previous amorous relation with his cousin, Rhodora Torres, and that she maintains a grudge against him for advising his cousin to part ways with her which resulted in the separation of his cousin and the complainant. 6 He said that after August 28, 1975, he had on seven or nine occasions seen the complainant who when greeted simply ignored him. 7 On the other hand, accused Abelardo Balbuena also denied the accusation of rape against him and his participation at the drinking spree with complainant. He testified that he first met complainant upon being introduced to each other on August 28, 1975 at his father's billiard hall situated at P. Zamora Street, Caloocan City; that after conversing with her for about five minutes, he left complainant in the company of three male companions and that they had a drinking spree at the billiard hall. They went to the upper floor of their house to eat supper and only came down later to ask her and her companions what time they would leave the house, to which she answered that it would not take long, and immediately thereafter he went upstairs again to do something else. 8 As indicated earlier, both accused were found guilty and sentenced in each case to suffer the penalty of reclusion perpetua and to pay the costs. Appealing to this Court, accused-appellants submit the following assignment of errors: I The lower court erred in not declaring Elvira Polintan as an incredible complaining witness in her narration of being raped by the accused. II The lower court erred in not declaring Elvira Polintan as a willing victim in the crime of rape, hence, the element of force is absolutely wanting. In raising the first assigned error, appellants contend that the lower court should have declared complainant Elvira Polintan as an incredible witness in her narration of being raped by the accused, pointing out that there was a delay of more than one month before the incident was reported to the police authorities; that complainant used to go with male friends, imbibing alcoholic beverages; that no bodily injuries were noted in the medical certificate (Exhibit "D"); that her dress or underwear was not torn and that she was able to give a detailed description of what transpired during the night including the acts and movements of the appellants. On the question of delay which the defense submits to be construed to mean that the Court should doubt the very existence of the commission of the crime, We agree and affirm the ruling of the trial court that the delay in filing the complaint was reasonable. The reasoning of the Court that "(i)t is not easy for a Filipina to easily decide whether to come out in the open in a situation where public contempt and ridicule would result in the prosecution of a case. The very fact that she came forward in the case is persuasion that the act had been committed. The complainant stands to gain nothing with her revelation and the consequent punishment of the accused," is well-grounded, considering the inate modesty of Filipina womanhood and the inherent reluctance of the Filipino family to be exposed to the rigors of a long drawn out trial scandalizing the family's good name and honor.
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It is quite true that the unexplained delay in the filing of a criminal complaint for rape may result in an adverse inference against the complainant's sincerity and credibility, as in People vs. Pimentel, 118 SCRA 695, where the formal complaint was lodged against appellant after the lapse of 39 days and the Court said it taxes one's credibility that complainant could be able, after a long period of time, to feign a composed and serene posture after the harrowing experience she had undergone. But that is not true in the instant case. The victim herein has rendered a credible and satisfactory account for her delay in reporting the incident to her mother and in seeking the help of the authorities. The complainant unequivocably testified that she was fearful over the threats of the accused-appellants that they would kill her and her parents should she report the matter to the police, especially so since she resides near the houses of the accusedappellants and she has to pass their houses in going out. 9She also expressed her worry that her ongoing classes at school would be disrupted upon her filing of the complaint. 10 The fear and the shock engendered by the threats as well as her desire to avoid further shame is more than sufficient to restrain the offended party from immediately exposing her sad experience. 11 We reject appellants' contention that complainant Elvira Polintan is an incredible witness because she used to go with male friends, imbibing alcoholic beverages. This is not unusual, considering that complainant is admittedly a "'tomboy". As observed by the trial court, the demeanor of the complainant at the witness stand shows:
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Admittedly, the complainant is a 'tomboy'. Her appearance is most revealing. She is not exactly ugly. These considerations notwithstanding, and perusing the background leading to the incidents in question, it cannot be disputed that the two accused were at the time of the incident, drunk. Such being their state, it is not-improbable to say that the physical appearance of the woman would not bar these persons from the commission of the offense. (See CFI Decision) And neither the absence of any injury being noted in the medical certificate nor that her dress or underwear was not torn supports appellants' submission that complainant is an incredible witness. The absence of any injury is explained by the fact that the physical examination of the victim was made after more than one month had elapsed from the commission of the crime and moreover, We find no evidence that complainant was injured in her struggle to resist the acts of the accused. And there was no torn dress or underwear because she was then wearing pants and brief at the time of the incident. 12 The general rule on the credibility of the victim's testimony in a rape case is well-stated in People vs. Pimentel, 118 SCRA 695 where the Court, speaking through Justice Escolin, held as follows:
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In weighing the testimony of the complainant in an accusation for rape, the rule often applied by the courts is that the testimony of the victim, whose chastity has not been questioned, is generally accorded credence because such offended party would not have fabricated facts that could bring shame and dishonor on her. Nor would she disclose her humiliating experience at a public trial, and thus give rise to gossip and slander, unless her motive was to bring to justice the person who grievously wronged her. Such a rule has been established because the detestable crime of rape in which a man shows his most heinous side is one of the hardest to prove. Indeed, the testimony of the victim most often is the only one available to prove directly its commission and corroboration by other witnesses would in certain cases place a serious doubt as to the probability of its commission. When a woman testifies that she has been raped, she says all that need to be said to signify that this crime has been committed. (U.S. vs. Ramos, 1 Phil. 81). In its decision, the trial court said that it "has gone at length with the testimony of Elvira Polintan in order to determine whether the same is conclusive, logical and probable. The complainant when she testified before the court to narrate what had happened on the night of August 28, 1975, appeared to be credible as a witness, and her account of the incident likewise left in the judicial mind an affirmative answer whether a woman of complainant's stature could be the object of this heinous offense." The court further added: "Then too, the complainant narrated the incident in a straight forward and convincing manner and despite the lengthy cross-examination to which she has been put too, she was steadfast in the fact that she was the victim of rape. Moreover, the very fact that she came out forward in this case is in itself a silent but persuasive evidence of an outrage done upon her honor. Considering these "evidences on record," there is

nothing in the defense evidence which points out convincingly why Elvira Polintan should "corrupt the truth and put the lives of these two accused in jeopardy." This finding of the trial court on the credibility of the complaining witness is entitled to the highest respect upon this Tribunal, and We will not disturb the same. Moreover, We find no reason, and none is advanced by appellant Balbuena why complainant should implicate him in the case considering that he came to know the complainant for the first time during the incident. The motive imputed by appellant Torres to the complainant in implicating the appellant in the charge of rape which is that Torres told his cousin, Rhodora Torres, to sever her relationship with complainant, is indeed too flimsy to be accepted because the crime of rape exposes not only the accused but also the complainant to public ridicule and shame. We agree with the trial court in its conclusion that "(t)he sum total of all the foregoing considerations is the fact that the court believes that essential elements constitutive of the crime of rape had been established by the prosecution peradventure of doubt." The defense of the accused is one of denial as pointed out earlier in this decision, which is inherently weak, and more than that, the testimony of the accused Torres that he was with the complainant on August 28, 1975 at about 4:00 o'clock in the afternoon and not in the evening, is itself belied by the other accused Balbuena who admitted that Torres was present at the drinking spree on August 28, 1975. And in addition to the above contradiction, the defense of the accused is wanting in material corroboration. As to the second assigned error, We find the same to be without merit. Complainant is a "tomboy" and as such, she is sexually attracted to persons of her own sex rather than to the male specie. She would not willingly submit herself to a sexual intercourse with a male person as suggested by the appellants. The evidence is clear that appellants employed force in consummating the crime of rape. From the bench where she was lying down, she was pulled to the billiard table and bodily raised on top of the table where she was forced to lie down. Both accused held her at the wrist and one of them held her by the feet. She fought and struggled with them (nagpapapalag). On top of the billiard table, Torres held both of her hands while Balbuena laid on top of her and sexually abused her. After that, Balbuena went down from the table and Torres climbed while the other held both of the victim's hands and similarly, Torres was able to rape her. That the guilt of the accused for the crime of rape has been proved beyond reasonable doubt is clear and the decision being in accordance with law and the evidence, the same must be affirmed. WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of conviction against the accusedappellantsAbelardo Balbuena y Garcia and Juanito Torres v Villanueva and the penalty of reclusion perpetua in Criminal Case No. C-6848 and Criminal Case No. C-6849 for each of the accused is hereby AFFIRMED. Costs de oficio. SO ORDERED.
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Makasiar (Chairman), Aquino, De Castro and Escolin, JJ., concur. Concepcion, Jr., J., I vote for acquittal.

Separate Opinions ABAD SANTOS, J., dissenting: Elvira Polintan was 20 years old in August, 1975. By her own testimony she joined a group of men in a former billiard hall for the purpose of drinking "cuatro cantos" gin. All the men, except for appellant Juanito Torres, were apparently strangers to her. Is this normal behaviour for a Filipino woman of her age? I do not think so. The Filipino woman as a rule is an abstainer even after she has reached maturity. I have to

conclude that Elvira's conduct casts a dark cloud on her claim that she was raped successively by Torres and Abelardo Balbuena. If in fact there was sex, "It could very well be that the euphoric feeling induced by this young girl's imbibing tubawine led to the relaxation of what could be inhibiting factors." (People vs. Joven, L-36022, May 22, 1975, 64 SCRA 126, 128.) In other words if there was sex, it was with Elvira's consent. Other circumstances support the consensual view: 1. There was no determined resistance by Elvira nor did she shout for help considering that there were other persons in the premises. 2. She had no signs of extragenital injury nor any kind of injury for that matter. While it is true that there can be a conviction for rape even absent signs of injury still there must be other convincing evidence. In the case at bar there is none other than the say so of the complainant. 3. The unreasonable delay in the filing of the complaint against the appellants. One month and 23 days elapsed before Elvira complained that she had been raped and her lame excuse for the delay was that she was threatened with death by the appellants which she ignored after all. It is usually said in rape cases that the Filipino woman is modest and shy so that she will not publicly complain of having been raped and thereby expose herself to shame and ridicule unless she was in fact raped. I accept this proposition for a typical Filipino woman. But Elvira is not a typical Filipino woman. Not yet 21 she was already a guzzler, not just of ladies' drinks, but of full-strength distilled spirits like gin. The appellants have put up the defense of denial and alibi. This defense can well be rejected but it does not follow that they are guilty. For it is elementary that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. In the instant case I do not believe that the prosecution has overcome the presumption of innocence which the law accords to the accused. I vote for acquittal.

Separate Opinions ABAD SANTOS, J., dissenting: Elvira Polintan was 20 years old in August, 1975. By her own testimony she joined a group of men in a former billiard hall for the purpose of drinking "cuatro cantos" gin. All the men, except for appellant Juanito Torres, were apparently strangers to her. Is this normal behaviour for a Filipino woman of her age? I do not think so. The Filipino woman as a rule is an abstainer even after she has reached maturity. I have to conclude that Elvira's conduct casts a dark cloud on her claim that she was raped successively by Torres and Abelardo Balbuena. If in fact there was sex, "It could very well be that the euphoric feeling induced by this young girl's imbibing tuba wine led to the relaxation of what could be inhibiting factors." (People vs. Joven, L-36022, May 22, 1975, 64 SCRA 126, 128.) In other words if there was sex, it was with Elvira's consent. Other circumstances support the consensual view: 1. There was no determined resistance by Elvira nor did she shout for help considering that there were other persons in the premises. 2. She had no signs of extragenital injury nor any kind of injury for that matter. While it is true that there can be a conviction for rape even absent signs of injury still there must be other convincing evidence. In the case at bar there is none other than the say so of the complainant. 3. The unreasonable delay in the filing of the complaint against the appellants. One month and 23 days elapsed before Elvira complained that she had been raped and her lame excuse for the delay was that she was threatened with death by the appellants which she ignored after all. It is usually said in rape cases that the Filipino woman is modest and shy so that she will not publicly complain of having been raped and thereby expose herself to shame and ridicule unless she was in fact

raped. I accept this proposition for a typical Filipino woman. But Elvira is not a typical Filipino woman. Not yet 21 she was already a guzzler, not just of ladies' drinks, but of full-strength distilled spirits like gin. The appellants have put up the defense of denial and alibi. This defense can well be rejected but it does not follow that they are guilty. For it is elementary that the prosecution must rely on the strength of its evidence and not on the weakness of the defense. In the instant case I do not believe that the prosecution has overcome the presumption of innocence which the law accords to the accused. I vote for acquittal. Footnotes
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09495931708Republic of the Philippines

SUPREME COURT Manila SECOND DIVISION G.R. No. 91490 May 6, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DELFIN CASTRO y LOZADA, defendant-appellant. The Solicitor General for plaintiff-appellee. Eduardo I. Advincula for defendant-appellant. PADILLA, J.:p This is an appeal interposed by the accused, Delfin Castro y Lozada, from the decision * of the Regional Trial Court of Pasay City, Branch 110, imposing upon him the penalty of reclusion perpetua for statutory rape defined under Art. 335, paragraph 3 of the Revised Penal Code. On the witness stand, six (6) year old Diana Rose Castro narrated how, while playing with a neighbor sometime on 4 October 1986, she was pulled by the accused inside a bathroom, prevented from going out, and made to stand on the toilet bowl. Accused is a first cousin of Diana Rose's mother. Kuya Delfin, as Diana Rose referred to the accused, then put up her clothes, took off her panty, made her lean on the wall and, despite her efforts to pull away he inserted his private part into her causing pain. Then she was told by the accused to go home. At home, she refused to have her private part washed by her Auntie Alice because it was hurting and painful. 1 Mrs. Jacinta Castro, Diana's grandmother, testified that on 6 October 1986, in her house at No. 1692, F. Muoz, Tramo, Pasay City, she was asked by her husband to find out why Diana was crying. Her testimony follows. 2 COURT: Q Was there anything unusual that happened on Oct. 6 particularly in your house? A On Oct. 6 I was downstairs and there was a call by my husband. xxx xxx xxx FISCAL: xxx xxx xxx Q Now, what was the reason why your husband called you? A He asked me to fine out why my granddaughter does not want to eat and just keeps on crying.

Q And what did you do wen (sic) your husband told you to see your granddaughter? A I went upstairs and found out what was wring (sic) with her whether she has fever. Q And what did you find out A At first she said she was complaining that her private property was painful and when I investigated I discovered that it swollen (sic). Q Then what happened after you found out that the private property of your granddaughter was swollen? A I asked her why. Q (sic). And what did your granddaughter tell you? A At first she told me that "nasabit sa hiyero." Q And what did you do after that? xxx xxx xxx A What I did was to examine her carefully her private part; I lifted her two (2) legs and I discovered that her private property was reddened as swollen. Q Did you ask her again what happened to her private property? A Yes, sir, she told me that she was invited by her Kuya Delfin to the bathroom. Q And what else did she tell you? A She told me that she was asked by her Kuya to stand on top of the toilet bowl and he removed her panty and his (sic) Kuya Delfin also removed his pants. Q What else did she tell you? A She told me that his (sic) Kuya Delfin had sexual intercourse with her. COURT: Q Did you ask Diane Castro how Delfin allegedly had sexual intercourse with her? A Yes, Your Honor. Q What did she answer? A She was standing and she was made to lean on the wall, Your Honor. . . Because of Diana's revelation, the grandmother brought her to the National Bureau of Investigation for examination on 8 October 1986. 3 Dr. Roberto Garcia, the NBI medico-legal, had this explanation: xxx xxx xxx A Under the single heading of "genital examination" the more insignificant findings will be the contused or bruised vetibular (sic) meaning the area inside the genital organ of the subject person; the hymen of the subject person was noted to be bruised or contused . . . Q Now what do you mean when you say that the genital parts you mentioned were contused or bruised?

A The area was noted to be purplish or red darker than the normal appearance of the said portion being bruised or contused it would mean that this particular portion was subject to some amount of force or it could have come in contact with a hard object, the contract must have been done with a certain amount of force. Q Under No. 2 of the conclusion of this report it reads"signs of recent genital trauma, present, consistent with the alleged date of infliction." Would you explain this? This witness meant that the appearance of the genital or prior of those mentioned was seen by this witness which brought about the trauma and that it has to be recent, meaning it could have been sustained by the subject person in a matter of days prior to the date of the examination. A Now, was the hymen of the subject lacerated? A No, sir. Q Now this genital trauma which you said to have been suffered by the subject from what could this injury or trauman (sic), what was the cause? A Any hard object would have produced this bruise or contusion. Q Now, this is a case of rape, Doctor, would you venture to state from what object this could have been inflicted?
A Under the normal course of events injuries of this nature involving this particular portion of the body of a female or woman is produced by the insertion of a male organ. 4

xxx xxx xxx A sworn complaint for rape was filed against Delfin Castro y Lozada. It charged as follows:
That on or about the 4th day of October, 1986 in Pasay City, Philippines and within the jurisdiction of tills Honorable Court, the above named accused, Delfin Castro y Lozada, with lewd designs and taking advantage of his moral ascendancy over the undersigned complainant who is his niece, did then and there wilfully, unlawfully and feloniously have sexual intercourse with or carnal knowledge of the undersigned. 5

Accused pleaded not guilty and posted bail for his provisional liberty. Delfin's alibi begins on 3 October 1986 in 1692 Muoz, Pasay City, where he lives two (2) houses away from complainant's. At about 12:00 P.M., Diana went to his house while he was taking a bath. She was crying and went inside the bathroom. When asked by the accused why, she replied that while going down the stairs, a dog whose two (2) hind legs were limping, chased her and so she tripped. The accused told Diana to go out because their dog might bite her. He proceeded to dress up and saw the victim playing outside. In the morning of 4 October 1986, he woke up at about quarter to seven, 6 left the house at 7:30 7 took a jeep plying the Pasay-Taft- Luneta route, arrived in school (Adamson University) at 8:15 in the morning. He proceeded to see Dolores Rivera, a godsister who worked in the treasurer's office of the university to ask the latter to type a term paper which was due that day. After submitting the term paper, he treated his godsister to lunch. Around 1:00 o'clock in the afternoon, he went home. Mrs. Teresita Castro's testimony dovetails with her son Delfin's saying that at around 12:30 P.M. on 4 October 1986, he arrived and ate lunch at home. 8 Mother and son talked of enmity between Mrs. Jacinta Castro, Diana's grandmother and their family. This rape case against Delfin is a result allegedly of the envy of Diana's said grandmother over his (Delfin's) fine scholastic performance. 9 Delfin further narrated that on or about 8 October 1986, he was invited to the Pasay Police Headquarters for questioning. While there, he was asked to undress, was blindfolded and beaten by around 7 to 10

policemen for about half an hour and made to admit that he raped Diana. Since he could no longer stand the torture, he told them that he used his small finger to touch her private part. 10 After the incident, Delfin left their house in order to avoid trouble; occasionally he would visit his parents. 11 Finding the testimony of Diana positive, clear and credible, the Regional Trial Court disregarded the alibi of the accused and convicted him. The trial court, inter alia, stated: . . . The accused's claim that he was, in the morning of October 4, 1986, at Adamson University waiting for his term paper engenders disbelief. By his evidence, he was enrolled at the Adamson University for the second semester of school 1986-1987 classes for which usually start in October. Term papers are usually submitted at the end of the semester, not at the beginning of the semester. In any event, Delfin was not shown that it was physically impossible for him to be at the place of the incident on October 4, 1986 as, by his evidence, he returned to his house after noontime, rested for a while, then left and returned again in the afternoon. His suggestion that Diana's genital bruises could have resulted from trippling down the stairs when she was chased by a limping dog is ridiculous. A dog whose two hind legs are limping chasing her (where did the dog come from?) while she was going down the stairs? Granted that were possible or that actually happened, the fall would cause abrasions, not hymenal contusions. Finally the defense's insinuation that Diana's grandmother Jacinta who was pictured to be supercilious and envious was behind the filing of this case is difficult to believe, there being no concrete proof thereof. Besides, it would be unthinkable for Jacinta to alienate her relations with all her in-laws, the Castros, who are staying in different houses of the same compound, by fabricating a charge against the accused. Finally, the accused's flight from his house after the filing of the present case is not consistent with his professed innocence. He did not, according to him, have any good relationship with Diana's grandmother even before October 4, 1986. So what was he fleeing from? His answer, that he wanted to avoid trouble, tells it all . . . xxx xxx xxx From the said decision sentencing him to suffer the penalty of reclusion perpetua and indemnify the victim in the amount of P20,000.00 by way of damages, the accused appealed to this Court pointing out the following alleged errors: 1. there is no rape because a. the hymen of the victim was not lacerated. b. the victim was allegedly standing while the crime was being committed. c. the victim is still a virgin. 2. reliance on the conflicting testimony of the victim and not that of the accused. A recent decision of this Court in a case of statutory rape observed that, usually, the average adult's hymen measures 2.8 to 3 centimeters in diameter, making it compatible with, or easily penetrable by an average size penis. The victim being of tender age, the penetration of the male organ could go only as deep as the labia. In any case, for rape to be committed, full penetration is not required. It is enough that there is proof of entrance of the male organ within the labia or pudendum of the female organ. Even the slightest penetration is sufficient to consummate the crime of rape. 12 Perfect penetration, rupture of the hymen or laceration of the vagina are not essential for the offense of consummated rape. Entry, to the least extent, of the labia or lips of the female organ is sufficient. 13 Diana's remaining a virgin does not negate rape. Sexual intercourse in a standing position, while perhaps uncomfortable, is not improbable. The RTC decision explained:
. . . For her account that she was made to stand on the toilet bowl made it easy for the accused to do the act as she was too small and their private parts would not align unless she was elevated to a higher position. The suggestion of the defense counsel that a finger could have

been used is absurd. For if it were only a finger there would have been no need to let Diana stand on the toilet bowl.. . .14

The Solicitor General's brief, in turn, asserts that the position Diana was forced to take, made it easier for appellant to accomplish insertion of his organ than if Diana had been made to lie down. 15 Experience has shown that unfounded charges of rape have frequently been proffered by women actuated by some sinister, ulterior or undisclosed motive. Convictions in such cases should not be sustained without clear and convincing proof of guilt, 16 considering the gravity of the offense and the penalty it carries. On the alleged sinister motive of Diana's grandmother engendered by envy, we find this incredulous. For, what grandmother would exact vengeance on her enemies at the perpetual humiliation and disrepute of her six (6) year old granddaughter? Finally, the issue of credibility. Who among the contending parties is telling the truth? The prosecution's evidence is simple and straightforward. Appellant's alibi must fall. Claims of his scholastic achievements, assuming they are relevant, were unsubstantiated. His counsel did not even formally offer the exhibits attesting to his enrollment at Adamson University where he was supposed to have submitted in the morning of 4 October 1986 a term paper. His credibility is dubious; he was not able to even identify the topic of his alleged term paper. To discredit the victim he testified on her alleged propensity to tell lies. 17 The trial court, however, categorically held:
While Diana's testimony was in some instances flawed, the flaw was minor and only with respect to dates. She is a young girl. She sat at the witness stand four times, yet she survived the rigors of testifying, unwavering in her claim that she was raped. 18

Accused-appellant claims he was coerced and tortured by Pasay policemen to admit the rape, showing to the trial court bodily signs of said abuse. 19 Aside from his self-serving assertion, the truth of such allegation was not proven. Besides, this allegedly coerced admission of guilt cannot affect the prosecution's case which has been established by other positive evidence pointing to his guilt beyond reasonable doubt. Finding no reversible error in the decision subject of this appeal, we affirm the same in its entirety. WHEREFORE, the decision is AFFIRMED. Accused-appellant is sentenced to suffer the penalty of reclusion perpetua and to indemnify the victim, Diana Rose Castro in the amount of P30,000.00 in line with prevailing jurisprudence. Costs against the appellant. SO ORDERED. Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur. Footnotes * Pe

EN BANC
[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, andnot 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 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 beneaththe mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, 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 be entered 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 pudendum by 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 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 medicolegal 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 is MODIFIED. 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. Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Panganiban, J., in the result.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 123544 July 29, 1999 PEOPLE OF THE vs. RAUL BERANA y GUEVARRA, accused-appellant. ROMERO, J.: In this sordid tale of defloration, a man is saved from the gallows for failure of the prosecution to adduce clear and positive proof of his relationship with the complainant. PHILIPPINES, plaintiff-appellee,

Before us on automatic review is a decision rendered by the Regional Trial Court of Naga City, Branch 25, imposing the supreme penalty of death on herein accused-appellant, Raul Berana y Guevarra for the crime of rape. 1 The facts of the case are as follows: On June 2, 1994 at around 2:00 o'clock in the morning, 14-year old Maria Elena Jarcia was sleeping with her four-year old niece in one of the two rooms in a house her family was renting at Bayawas Street, Naga City when she was awakened by her brother-in-law, herein accused-appellant, Raul Berana. Complainant recognized him because light was filtering in from a nearby window. Berana pointed a "buntot page" at her neck and warned her not to make any noise, otherwise she would be killed.
1wphi1.nt

The terrified girl was made to lie down while accused-appellant raised her duster and proceeded to remove her shorts and her underwear, after which he mashed her breasts and lay on top of her. The hapless girl was again threatened not to make any noise otherwise he would kill her. Complainant tried to cover her breasts with her arms but accused-appellant pushed her arms aside. As he inserted his organ into her womanhood, Elena felt excruciating pain. He began kissing her and made several push and pull movements, after which, the victim felt something liquid in her organ. Accused-appellant sat down and warned her not to talk to anyone about the incident. His bestial lust not having been satisfied, accused-appellant lay on top of her for the second time, fondled her breasts and made push and pull movements. At around 2:30 o'clock in the morning, accused-appellant left after warning her that only the two of them must know about the incident. During the entire time that the accused-appellant was raping her, the poor girl was weeping and trembling with fear because he repeated his threats to kill her should she make any noise. Complainant, before having identified in court Exhibit A as the "buntot page" used by accused-appellant, described it as "long with some protruding parts and with long and pointed tip." 2 After the accused-appellant left, Elena put on her clothes and went to the adjacent room to report the incident to her sister, Ma. Ana. When Ana heard the grim story, she lost no time in hurrying to Camaligan, Camarines Sur where their parents, having been invited to a birthday party of a relative, had stayed overnight. On the same day, their mother fetched Elena and accompanied her to the Provincial Hospital for medical examination. The medical examination conducted revealed the following findings: P.E. Vagina admits one finger (+) Hymenal Laceration at 6:00 o'clock and 9 o'clock positions Gram Staining Result:

gram (+) bacilli = many pus cells = few epithelial cells = many
NOTE: Gram stains smear shows presence of spermatozoa 3

After having been examined, Elena and her mother proceeded to the Sabang Police station in Naga City to report the incident. Thereafter, accused-appellant apprehended by the police. On June 3, 1994, an information was filed before the Regional Trial Court of Naga City, Branch 25, against accused-appellant for the crime of rape, allegedly committed as follows: That on or about June 2, 1994, in the city of Naga, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused by means of force, did then and there willfully, unlawfully and feloniously, have sexual intercourse with the herein complaining witness, MARIA ELENA JARCIA Y DELOS MARTINEZ, a minor, 14 years of age. CONTRARY TO LAW. On June 6, 1994, an amended information was filed against accused-appellant which reads:

That on or about June 2, 1994, in the City of Naga, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, a relative of the offended party within the third civil degree, by means of force and intimidation, did there and then, willfully, unlawfully and feloniously have sexual intercourse with herein complaining witness MARIA ELENA JARCIA Y DE LOS MARTINEZ, a minor, 14 years of age, to her damage and prejudice. CONTRARY TO LAW. Upon arraignment, accused-appellant entered a plea of not guilty. On October 12, 1994, the prosecution again sought the amendment of the information filed in accordance with the mandate of Section 5, Rule 110 of the Revised Rules on Criminal Procedure relating to de oficio offenses which require the offended party's express conformity to the filing of the information. On October 17, 1994, accused-appellant entered a plea of not guilty to the re-amended information. Accused-appellant does not deny having sexual intercourse with the complainant but, however, maintains that Elena consented to it. According to accused-appellant, at around 1:30 o'clock in the morning of June 2, 1994, he had difficulty sleeping, so he took a walk and decided to visit his daughter at the house in Bayawas Street. When he arrived at the said place, he sat on the stairs at the rear of the house. While seated, he heard someone calling, "Mama." He recognized the voice as Elena's so he answered, "This is not your mama, this is your manoy," 4 On hearing these words, complainant opened the door and approached accused-appellant to ask him where her mother was, whereupon, accused-appellant told her that her parents might not return home because her father got drunk at a birthday party of a relative in Camaligan. He then asked Elena if his daughter was already asleep. Upon having been informed that his daughter had just fallen asleep, accused-appellant bade Elena goodbye but the girl, invited him to stay for the night so that he could keep watch over her and his daughter. Accused-appellant accepted her invitation since he was very tired. When he entered the room, Elena followed him and locked the door. Seeing his daughter sleeping soundly on a mat, he picked her up and moved her away from the middle to the left side so as not to disturb her. Elena turned off the light from the gas lamp and lifted the mosquito net to prepare for bed. At this point, she reminded the accused-appellant of the sum of money which she had been asking him some time. When told that he had no money, complainant allegedly started to caress and embrace accused-appellant while at the same time insisting that he give her the money. When he reiterated that he had no money, complainant took hold of his hand and placed it on her breast. Complainant allegedly was wearing only an undershirt and panty at the time. Accused-appellant, feeling "hot", decided, and succeeded in having sex with her. During the sexual intercourse, Elena told him, "It is painful, manoy." but accusedappellant tried to assuage the pain, saying that it is painful only during the first time. 5 Afterwards, accusedappellant sat beside Elena and engaged her in conversation. Elena allegedly asked him to help her when she completes high school. When accused-appellant promised to help her on condition that she will be serious in her studies, Elena rose from her lying position and embraced him. He kissed her on the lips, touched her breasts and asked her again for sex. Complainant allegedly smiled and told him, "To my sister, you could do it only one (sic) but to me you will make it two," 6 They had sex for the second time in the early morning of June 2, 1994. Accused-appellant left the room at around 2:30 o'clock in the morning. While answering a call of nature near a santol tree outside the house, he heard Ma. Ana ask Elena, "What did your manoy do to you?", to which the latter answered, "None, none." Accused-appellant heard nothing more as he decided to go on his way. 7 Accused-appellant narrated that prior to the incident, or specifically on December 1993, he was alone in the same room, reading an adult magazine when Elena arrived. She saw what he was reading and remarked that she had read the same magazine also. Embarassed, accused-appellant turned away and went near the window to continue his reading. Complainant, in the meantime, removed her school uniform leaving only her "sando" and her panty on. She approached accused-appellant and told him of the interesting parts in the magazine. When he told her that he had already seen them and was just reviewing the magazine, she told him, "Manoy, there are parts there which are beautiful." He then showed her the adult magazine and asked her to point out where these were. Elena placed her arms on his shoulders as she obliged him. When she embraced him, accused-appellant responded by embracing her back. He felt "hot" and placed his hand on her cheek then began touching her breast also. However, she turned her lips away so he

ended kissing her cheek instead. Elena responded by kissing his cheek in turn. Accused-appellant, this time, kissed her lips and touched her breasts. They moved away from the window to avoid unwitting voyeurs. Somebody soon arrived and interrupted them so Elena became flustered and accused-appellant left. They maintained no relationship after the incident. The trial court did not give credence to the testimony of accused-appellant and on November 27, 1995, rendered a decision, the dispositive portion of which reads as follows: PREMISES CONSIDERED, this court finds accused-appellant guilty beyond reasonable doubt of the crime of rape defined and punishable under the provisions of Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659 which provides: The death penalty shall be imposed when the crime of rape is committed with any of the following circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a . . . relative by consanguinity or affinity within the third civil degree. The accused being the husband of the victim's sister, is related by affinity to his victim within the third civil degree, the court hereby imposes upon Raul Berana Guevarra to suffer DEATH PENALTY, to pay Ma. Elena M. Jarcia, the amount of P50,000.00 by way of damages and to pay the costs. In this automatic review of the decision rendered by the trial court, accused-appellant raises the following issues: I. The trial court erred when it convicted herein accused-appellant despite the absence of any clear and convincing evidence demonstrating the alleged use of force. II. The trial court erred when it convicted herein accused-appellant despite serious lapses and material inconsistencies in the testimony of the private complainant. III. The trial court erred when it convicted herein accused-appellant despite the prosecution's failure to adduce clear proof of all the attendant qualifying circumstances of the crime charged. IV. The trial court erred when it convicted herein accused-appellant based on a misplaced conclusion that herein accused-appellant allegedly admitted committing the offense charged. We shall deal with the issues raised seriatim. Regarding the first issue, accused-appellant contends that the trial court's finding that he had forcible sexual intercourse with the complainant was based solely on the results of the medical examination conducted by the prosecution's witness, Dr. Humilde Janaban on Elena. In support of his contention, appellant cites the following excerpt from the trial court's decision: A careful perusal of the evidence adduced during the trials conducted in this case, show that the medical certificate of June 2, 1994 which was identified by Dra. Ma. Humilde B. Janaban, showing that the victim, private complainant Ma. Elena M. Jarcia suffered "Hymenal laceration at 6:00 o'clock and 9:00 o'clock positions in her private part which could have been caused by sexual intercourse and/or by the intervention of a blunt object by thrusting and then pulling then thrusting again of a hard blunt object and the presence of spermatozoa confirms the testimony of Ma. Elena Jarcia that she was sexually molested makes such testimony credible. To the mind of the court this [sic] findings are significant to the effect that sexual intercourse was involuntary or through threat and duress. The absence of any kind of external injury in the body of the victim other than those found in her organ is of no consequence. Accused-appellant alleges that Elena encouraged his advances and the sexual intercourse was consensual. He asserts that while the hymenal laceration and the presence of spermatozoa prove the fact of sexual intercourse, they do not ipso facto prove that such act was committed by means of force, in line with our pronouncement inPeople vs. Godoy 8 that, "Even granting ex gratia argumenti that the medical

report and the laceration corroborated the complainant's assertion that there was sexual intercourse, of course the same cannot be said as to the alleged use of force. It has been held that such corroborative evidence is not considered sufficient, since proof of facts constituting one element of the crime is not corroborative proof of facts necessary to constitute another equally important element of the crime. Accused-appellant's contention is misplaced. The trial court's finding of rape in the case at bar, was not based solely on the medical findings showing hymenal laceration and the presence of spermatozoa in the victim's organ. While the excerpt quoted by the accused-appellant from the questioned decision gives the impression that the trial court considered the hymenal laceration and the presence of spermatozoa in the victim's organ as proof of forcible sexual intercourse, the decision read in its entirety shows otherwise. The trial court merely considered the medical findings as corroborative evidence for the complainant's testimony that accused-appellant had sexual intercourse with her. Complainant was forced to accede to accusedappellant's advances because he poked a "buntot page" at her neck and threatened to kill her should she make any noise. With such repeated threats, the hapless girl eventually broke down and cried. Accused-appellant maintains, however, that complainant's testimony is too full of material inconsistencies to deserve belief. For instance, although complainant alleged that she bled after the coitus, the medical examination revealed otherwise; complainant's testimony in court that accused-appellant asked her for sex a second time belies her allegation that accused-appellant forced himself on her; complainant' s statement in her affidavit that accused-appellant was armed with a blunt instrument is materially different from her testimony in court that accused-appellant carried with him a "buntot page". Accused-appellant's assertion that the medical record is bereft of any proof/corroborating complainant's testimony that she bled after she was raped hardly merits consideration. The underwear of the complainant which was presented and admitted in court as evidence bore traces of blood. 9 Moreover, the absence of any sign of physical bleeding on the part of the complainant does not necessarily mean there was no forcible sexual intercourse. For one thing, complainant was threatened with a "buntot page" poked at her neck at that time. Then too, accused-appellant's threat was sufficient enough to intimidate a young girl of 14 to force her to submit to his baser instincts. It must be noted that proof of external injuries inflicted on the complainant is not indispensable in a prosecution for rape committed with force or violence. The law does not impose upon a rape victim the burden of proving resistance. Physical resistance need not be established in rape cases when intimidation is exercised upon her and she submits herself against her will to the rapist's lust because of fear for life and personal safety. 10 When a woman testifies that she was raped, she says in effect all that is necessary to show that said crime has been committed. Accused-appellant, however, would have us believe that the sexual intercourse was consensual since complainant herself testified during trial that he asked her for sex a second time during the night in question. While complainant did state during trial that, "After the first incident, he sat down and he again asked me to give him for the second time," 11 complainant also stated that she was then crying and trembling with fear. Considering the continuing threat on her life if she makes an outcry, complainant had no choice but to accede to the desire of accused-appellant. That he asked her for sex does not necessarily imply that she gave her consent when he succeeded in ravishing her again. It is indeed preposterous that a young woman, untrained in the ways of the world and of men would initiate and encourage his advances, as accused-appellant claims, considering especially that he is the husband of her older sister. Accused-appellant nevertheless insists that complainant's testimony does not merit credence because of inconsistencies in her statement regarding the weapon used by the accused-appellant to threaten her on the night of the incident. We are not unaware that complainant stated in her affidavit that accused-appellant was armed with a blunt instrument in contrast with her testimony in court that accused-appellant was armed with a "buntot page." It must be borne in mind, however, that discrepancies between an affidavit and testimony in court occur more often than not since an affidavit is not prepared by the affiant herself but by another who uses his own language in writing the affiant's statement. It might not be amiss to note, at this point, that the instrument which was submitted by complainant to the police and later identified in court as the "buntot page" used by the accused-appellant was described by the Chief of Police in his letter to the prosecutor as "one (1) blunt instrument with black handle. 12 In the case of People vs. Empleo 13, we had occasion to state that, "the contradiction between the affidavit and the testimony of the witness may be explained by the fact that an affidavit will not always disclose all the facts and will oftentimes and without design incorrectly describe, without the deponent detecting it, some of the occurrences narrated."

We find merit, however, in accused-appellant's contention that the prosecution failed to adduce clear and positive proof of the qualifying circumstance of relationship between accused-appellant and complainant. It should be noted that the relationship between accused-appellant and the complainant qualifies the crime from rape punishable by reclusion perpetua to rape punishable by death under Republic Act No. 7659. Under Article 335 of the Revised Penal Code as amended by R.A. No. 7659, the death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances: xxx xxx xxx 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common law spouse of the parent of the victim. Affinity is defined as "the relation which one spouse because of marriage has to blood relatives of the other. The connection existing, in consequence of marriage between each of the married persons and the kindred of the other. The doctrine of affinity grows out of the canonical maxim that marriage makes husband and wife one. The husband has the same relation by affinity to his wife's blood relatives as she has by consanguinity and vice versa.14 Consequently, to effectively prosecute accuse-appellant for the crime of rape committed by a relative by affinity within the third civil degree, it must be established that a) he is legally married to complainant's sister and b) complainant and accused-appellant's wife are full or half blood siblings. The prosecution tried to established the relationship of accused-appellant to the complainant by asking her the following during trial: xxx xxx xxx Q: By the way, do you know the accused in this case by the name of Raul? A: Yes, I know him, sir. Q: Why do you know him?
A: He is the husband of my sister. 15

Complainant' s mother also testified: xxx xxx xxx Q: Do you know the accused in this case, Raul Berana y Guevarra? A: Yes, I know him, sir. Q: Why do you know him? A: Because he is the husband of my daughter. Q: Whose name is that?
A: Rosa Jarcia, sir. 16

Based on abovementioned testimonies, as well as accused-appellant's letter to the complainant's parent's addressing them as "mama at papa" and his use of phrase, "ang inyong manugang, Raul" 17 the trial court convicted him of the crime of rape committed by a relative by affinity within the third civil degree, under the provisions of Article 335 of the Revised Penal Code, as amended by Republic Act. No. 7659. Considering that the relationship of accused-appellant to complainant qualifies the crime of rape punishable byreclusion perpetua to rape punishable by death, it is but proper that a more stringent proof of relationship between the offender and the offended party must be established by the prosecution. Corollarily, a clearer proof of relationship between the complainant and the spouse of accused-appellant must be presented. The relationship of accused-appellant and the complainant is not adequately substantiated since it is merely based on testimony of the complainant, her mother's testimony and the accused-appellant's use of the words, "mama at papa" in his letters. Needless to say, the evidence presented are not sufficient to dispel doubts about the true relationship of accused-appellant and the

complainant, to the benefit of which the accused is entitled. Where the life of an accused-appellant hangs in the balance, a more exacting proof must be adduced. Accused-appellant, in his last submission, insists that the trial court erred in convicting him based solely on a misplaced conclusion that he admitted the offense charged based on the four (4) letters he sent to the parents of the complainant, one of which states:
Ma, Pa, patawarin niyo na ako, alam ko na hindi niyo basta-basta mapapatawad ang nagawa ko pero paano naman po ang kinabukasan nang mga apo at anak ko. 18

Accused-appellant asserts that the letters, in no way, indicate an admission of guilt on his part. In support of his contention, accused-appellant cites the case of United States vs. Maqui 19 where it was held that an accused may show that an offer of compromise on his part was not made under a consciousness of guilt but merely to avoid the inconvenience of imprisonment or for some other reason which would justify a claim by the accused that an offer to compromise was not in truth an admission of his guilt and an attempt to avoid the legal consequences which would ordinarily therefrom. We are not convinced. The tenor of the letters sent by the accused-appellant to the parents of the complainant, while not explicitly admitting the forcible sexual intercourse, could hardly be considered an admission made merely to avoid the inconvenience of imprisonment. Consider the following excerpts: Mama at Papa,
Masakit man sa inyo ang nagawa ko. Pero nagsasabi ako sa inyo ng totoo. Nang maganap ang insidenteng iyon. Wala ako sa sarili kong pagkatao. At wala akong matandaan sa nangyari (sic) 20

And xxx xxx xxx

Ma, pa, hindi ko kayo sinusumbatan. Dahil wala naman po akong dapat isumbat sa inyo. Napakabait niyo sa kain. Ewan ko nga lang kung bakit ko nagawa iyon. Kung totoo talagang ako nasa sarili kong pagkatao. 21

Despite his claim that complainant initiated and consented to the sexual intercourse, accused-appellant in his letters never made mention of this fact but has, instead, unceasingly asked for forgiveness from the parents of the complainant, short of admitting categorically the offense charged. Clearly, the unsolicited letters of the accused-appellant cannot be construed as an offer of compromise to avoid the inconvenience of imprisonment but a plea of mercy to save him from the gallows. In view of the fact that relationship between accused-appellant and the complainant was not properly established, we are constrained to reduce the penalty imposed by the lower court from death to reclusion perpetua. Accused-appellant is, however, ordered to pay civil indemnity ex delicto in the amount of P50,000 and the P50,000 imposed by the lower court shall constitute moral damages. The fact that the complainant has suffered the trauma of mental, physical and psychological suffering which constitutes the bases for moral damages is too obvious to still require the recital thereof at the trial by the victim since the court itself assumes and even acknowledges such agony on her part as gauge of her credibility. 22 WHEREFORE, the decision of the Regional Trial Court of Naga City, Branch 25, finding accused-appellant Raul Berana y Guevarra guilty beyond reasonable doubt of rape is AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty of reclusion perpetua. Accused-appellant is ordered to pay complainant Ma. Elena M. Jarcia the sum of P50,000 by way of civil indemnity and P50,000 as moral damages. Costs against accused-appellant.
1wphi1.nt

SO ORDERED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur. Davide, Jr., C.J., is on leave. Footnotes

EN BANC G.R. No. 124736. January 22, 1998 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROMEO GALLO Y IGLOSO, Accused-Appellant. DECISION PER CURIAM: It is disturbing enough to see that there has been a noticeable increase in the incidents of rape but one is left completely appalled that this still growing number includes cases of the bestial act being perpetrated on the young and innocent and, no longer too infrequently it seems, compounded by the close kinship of the offender and the victim. In People vs. Malagar,1 the Court has had occasion to state that a "x x x (F)ather is looked up to as the protector and as the guardian of his family, remaining ever wary of even the slightest harm that might befall it. It is difficult to thus imagine that any such man could instead stand as the predator of his own flesh and blood. Yet, we occasionally would find ourselves so regrettably contending with it as a fact."2 In the instant case, the accused, Romeo Gallo y Igloso, was charged, docketed Criminal Case No. 2282, before the Regional Trial Court, Branch 68, of Binangonan, Rizal, with the crime of rape in an information that read: "That on or sometime the period of May, 1994 in the Municipality of Cardona, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with a 13-year old girl, Marites Gallo y Segovia. "CONTRARY TO LAW."3 The accused pleaded not guilty; trial ensued in due time. In a decision, dated 17 April 1996, Romeo Gallo y Igloso was ultimately convicted of rape committed against his own daughter, Marites Gallo y Segovia, only then thirteen years of age. The death penalty having been imposed by the trial court, the records of the case were transmitted to this Court by way of an automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659. The Solicitor General recommends an affirmance of the decision. He makes the following statement of facts: "For three years, since age ten, complainant Marites Gallo y Segovia suffered repeated sexual abuses from her father, herein appellant Romeo Gallo y Igloso, the last of which was in their house at Sitio Alacos, Lambac, Cardona, Rizal at around 7:00 in the evening (Exh. 'A') in May 1994 (TSN, Feb. 8, 1995, pp. 4-5; March 13, 1995, p. 2). "That evening, appellant, taking advantage of the situation that Marites was only with her younger brother who was already asleep, again imposed his bestial desire on his own daughter. Subjecting his daughter to the usual threat that she would be killed if anybody would know his bestiality, appellant (with his pants off) undressed Marites, removed her underpants, kissed her and inserted his penis into her vagina (Annex 'A,' TSN, Feb. 8, 1995, pp. 25-27). "After appellant's last sexual onslaught, Marites, now thirteen, finally mustered enough courage and narrated her harrowing experience to her aunt Dolores del [Prado]. Accompanied by the latter, Marites reported the incident to the Barangay Captain of Lambac, Cardona, Rizal (TSN, Feb. 8, 1995, pp. 6-7). The incident led to the investigation by the Cardona Police. Marites executed her complaint-affidavit (Exh. 'A,' 'A-1;' Id., pp. 810). "Marites was, thereafter, brought to Camp Crame, Quezon City and was examined by Dr. Cristina B. Freyra who found Marites to be in a non-virgin state. The result of the

examination was reduced in writing and covered by Medico-Legal Report No. M-0963-94 (Exh. `B,' `B-1;' Id., p. 12; TSN, Sept. 5, 1995, pp. 6-7)."4 The defense pictured the accused as any other ordinary man in the family who had tried hard to provide and care for his wife and children. At certain times, the accused conceded, he would meet and drink with friends. The appellant's brief summed up the testimony of Gallo given before the court below; viz: "Accused Romeo Gallo testified that he is a native of Masbate and he got married to his wife Elvie Sigovia in 1975. They were married in the Island of Lambac, Cardona, Rizal. Marites, the complaining witness in this case is his eldest child who was born in 1977. Marites was born in Bicol where Elvie, his wife, formerly resided. His daughter Marites stayed with his mother-in-law in Bicol for three (3) years. After three years, Marites already stayed with his family. In 1989, his family, together with Marites, stayed [in] Mindoro up to 1994. During their stay in Mindoro they engaged themselves [in] farming, planting palay, cassava and `kamoteng bagin.' When asked about the incident that Marites related during her testimony, that she was first molested by the accused, he said that he [did] not know about their accusations. He has no knowledge of any charge against him, for what Marites has said are not true. He treated Marites as a family and he performs his obligation over his family. As far as he remember[s], he spanked his children whenever they commit mistakes as a part of discipline. He and his family alone were in Mindoro, his mother-in-law was not with them. "In 1994, they moved to Lambac, Cardona, Rizal and there, they engaged in charcoal making somewhere in the mountainous part of Lambac. With him was his whole family of six (6) children and his wife, and they occupy a nipa hut. When asked of the incident that happened in the mountainous part of Lambac where he was accused of molesting [his] child Marites, he answered that he knows nothing about it. The truth is that one time he beat Marites and may be she was hurt and related the matter to her mother-in-law. His mother-in-law was making `sulsol' to his daughter to file this case against him so that he and his wife will be separated. His mother-in-law wanted them to be separated because of his poverty. He tried to convince his child Marites to discontinue filing this case but she did not listen. He [has] never molested her daughter Marites Gallo even once. "On cross examination, he testified that when he married his wife Elvie Gallo, he was then a charcoal maker and before their marriage he [did] not know her mother-in-law. It was only because of the prodding of his mother-in-law that this case was filed by her daughter. Even in 1975 when he got married to his wife Elvie he was still poor and this may be the reason why his mother-in-law wanted him to be separated from his family. At one time he inflicted punishment [on] Marites and this is probably the reason why Marites agreed to file this case against him. On that occasion, he spanked Marites on the buttocks. He admit[ted] to be drinking liquor for a long time during the intervals of weeks x x x with companions in Lambac, Cardona, Rizal. They have stayed in Mindoro from 1984 to 1993, then they moved to Lambac, Cardona, Rizal. After the testimony of this accused, the defense rested its case. (TSN, pp. 3-17, November 27, 1995)"5 Contending that the prosecution has failed to overcome the Constitutional presumption of innocence by an exacting standard of proof beyond reasonable doubt, appellant downgrades the testimony of the complainant as being nothing but incredulous. The Court has taken meticulous care in reviewing the evidence submitted by both the prosecution and the defense. All possible angles have been considered in the process, for, as it has so recently been said in People vs. Galera,6 "the Court exercises the greatest circumspection" in its review of death penalty cases since "there can be no stake higher and no penalty more severe x x x than the termination of a human life." Regrettably in this instance, the Court must agree with the trial court in the judgment of conviction. Cognizant of the fact that the focal, as well as crucial, point in this review is the testimony of the young victim, and because, except for a bare denial, there hardly is any direct rebutting evidence, the Court finds it fitting to hear, here again, Marites, in her own words, on the unfortunate saga. Thus -

Marites Gallo y Segovia, Testifying: "Q Now, you said that you are almost 14 years of age today? "A Yes, sir. "Q When is your birthday? "A October 6, sir. "Q October 6, 1995? "A Yes, sir. "Q Now, the accused in this case . . .

What relation, if any, do you have with the accused in this case?
"A He is my father, sir. "Q And sometime on May, 1994 you were already 13 years old, is that correct? "A Yes, sir. "x x x . "ASST. PROS. SOYANGCO "Q You said that he is your father, if he is inside the Court room can you identify him? "A Yes, sir. "Q Please point to him. "INTERPRETER Witness is pointing to a man wearing fuchsia t-shirt, who when his name was asked answered to the name of Romeo Gallo. "x x x . "Q You are the complainant in this case, Maritess? "A Yes, sir. "Q Now, can you inform us why you are accusing your father of rape? "A `Pinagsamantalahan niya po ako,' he raped me, sir. "x x x . "Q When you said `pinagsamantalahan' what exactly do you mean? "A `PINAGSAMANTALAHAN PO NIYA AKO NUON.' "x x x . "ASST. PROS. SOYANGCO And the answer was `Ako po ay pinagsamantalahan niya.' Now to reform that I will adopt the suggestion of the Court that the question should be - `What exactly did your father do to you?' "COURT Witness may answer. "WITNESS He removed my clothes and he took advantage of me while he was drank, sir. "ASST. PROS SOYANGCO "Q Now, exactly what do you mean by `he took advantage of you while he was drank,' I mean the accused took advantage of you while he was drank? "A `INASAWA NIYA PO AKO.' "ASST. PROS SOYANGCO

`Inasawa,' Your Honor, means sexual intercourse. "x x x . "Q Are you a tagalog speaking person? "A Yes, sir. "Q In tagalog, what exactly do you mean by the word `Inasawa ako?' "A He is making me as if I am his wife, sir. "Q How did he make you as if you were his wife? "A He placed his body on top of my body, sir. "Q When he placed his body on top of you, were you naked? "A Yes, sir. "Q Completely naked? "A Only my panty, sir. "Q And your father, when he undressed you and placed himself on top of you, was he dressed-up or naked? "A He was dressed but his shortpants was off, sir. "Q So he was without shortpants. Now, when he was on top of you what happened? "A He inserted his penis to my vagina, sir. "Q When he undressed you, did you do anything? "A I was not able to do anything because he told me that he will kill me, sir. "Q And when he inserted his penis into your genital or vagina, what did you do? "A I was crying, sir. "Q After having inserted his penis to your vagina, what happened next? A `KINAYOG KAYOG NIYA PO AKO.' "x x x . "Q After that what happened? "A After that he dressed-up and he told me to dress-up also, sir. "Q What happened next? "A And he left the house, sir. "Q And what about you? "A And I also left the house, sir. "Q By the way when you said house, what house are you referring to? "A Our house, sir. "Q And where is this house situated? "A Our house in Mindoro where he did that things, sir."7 "Q You are testifying in this case for rape against your father, the accused, Romeo Gallo y Igloso which per information happened on May 1994 in the Municipality of Cardona, Province of Rizal? "A Yes, sir. "Q Now, in the last session when you were testifying in this case you made mention of the fact that when asked where is your house located, you said in Mindoro?

"A The first time I was raped was in Mindoro and the last time he raped me was in our house in Cardona, sir. "Q So you were raped by your own father earlier than you were raped in Cardona in Mindoro? "A Yes, sir. "Q And can you remember when was that when you were raped by your father in Mindoro? "A Yes, sir. "Q When? "A 1993, sir. "Q And how old were you when you were raped in 1993 by your father? "A I was raped when I was ten (10) years old up to the age of thirteen (13), sir. "Q How many times were you raped by your father from the time you were ten (10) years old up to the time that you were 13 years old in Mindoro? "A Many times, sir. "Q And the last of which is that you were raped is the subject of the instant information that happened in Lambak, Cardona, Rizal, is that correct? "A Yes, sir. "Q Now, when you were raped in Barrio Lambak, Cardona, Rizal by your father what did you do after that, if any? "A I did not do anything, sir. "Q You did not do anything? Did it not occur to you to report it to your mother? "A I was afraid, sir because he threatened me that he will kill us, sir. "Q And why was this case filed by you against your father? "A Because he raped me, sir. "Q Yes. Who told you to file this complaint of rape? "A No other person except me, sir. "Q When did you report this matter? "A To my auntie, sir. "Q What is the name of your auntie? "A Dolores del Prado, sir. Q After having told your auntie Dolores del Prado about this incident, what did your auntie or you do? "A They also told the incident to their other sisters, sir. "Q And what is the name of that sister? "A Elvie Gallo, sir. "Q Who else? "A No more, sir. "Q Now, what did your auntie or you again [do] after that? "A She told us to go back to Lambak, sir. "Q For what purpose? "A We will talk together, sir. "Q Together with whom? "A We will talk with the Barangay Captain, sir.

"Q Did you in fact go to the Barangay Captain in Lambak? "A Yes, sir. "Q What happened when you reached there? "A We talked together in the Barangay Hall and afterwards he was brought in Cardona, sir. "Q When you said he you are referring to your father? "A Yes, sir. "Q Where in particular in Cardona were he taken? "A In the Municipal Hall, sir. "Q And were you with him when he was taken in the Municipal Hall of Cardona? "A Yes, sir. "Q In what office in particular in the Municipal Hall of Cardona did you go? "A In the office near the jail, sir. "Q Could it be the Police of Cardona? "A Yes, sir. "Q What happened there, what did you do there? "A I told them what really happened to me, sir. "Q And what did the Police do as you narrated what happened to you? "A They were listening and writing what I was narrating, sir. "Q In other words what you narrated was reduced into writing by the Police? "A Yes, sir. "Q Now, I am showing to you the `Sinumpaang Salaysay ni Marites Gallo,' what relation if any has this document to that document which you said the Police was writing down as you narrated then? "A Yes this is the document, sir. "Q Was it read and explained to you by the Investigator? "A Yes, sir. "Q And you understood the contents thereof? "A Yes, sir. "x x x . "ASST. PROSECUTOR SOYANGCO: Now, there appears a signature below the document marked already as Exhibit `A' a signature on top of the typewritten name Marites Gallo, whose signature is this? "A That is my signature, sir. "x x x . "ASST. PROSECUTOR SOYANGCO: "Q So, you went to the Police of Cardona and your father and who else are your companions? "A My mother and also my grandmother, sir. "Q What is the name of your mother? "A Elvie Gallo, sir. "Q And your grandmother? "A Conching, sir.

"Q Conching what? "A Conching Segovia, sir. "Q Who else? "A No more, sir. "Q What about a certain Rogelio del Prado, was he not with you? "A Yes, sir. "Q What did this Rogelio del Prado do in the Police Station? "A We went to the Police and told them that he is one of the witnesses, sir. "Q And I supposed that he was made to sign a sworn statement? "A Yes, sir. "Q Now, after that I mean after reporting the incident to the Police what legal step did you do next? "A None, sir. "Q Did you not report the matter to any other office? "A None, sir. "x x x . "Q Were you treated or given medical assistance by anyone? "A Yes, sir. "Q Where? "A Camp Crame, sir. "Q In other words you were examined by someone in Camp Crame? "A Yes, sir. "Q And who were with you when you were examined in Camp Crame? "A My aunt, Dolores del Prado, sir. "Q What happened when you were examined? "A The result of the examination is that I was not a virgin, sir. "x x x . "ASST. PROSECUTOR SOYANGCO: Back to your father - - - you mentioned in your testimony earlier that your father was drank when he committed rape against you? "A Yes, sir. "Q Is your father a habitual drunkard? "A Yes, sir. "Q When he is in the influence of liquor he is violent, is that correct? "A Yes, sir. "Q Were you a victim of acts of violence of your father other than the rape? "A Yes, sir. "Q What kind of cruelty did he inflict upon you? "A He pulled our hair, kicked us and mauled us, sir. "Q When you said `kami' you are not only referring to yourself but also to others? "A Yes, sir also my mother.

"Q Who else? "A Only the two (2) of us, sir. "Q Can you describe to the Honorable Court the sort of cruelty that the accused inflicted towards your mother? "A He was also doing the same thing to my mother what he has done to me, sir. "Q And that you mean your mother was also mauled? "A Yes, sir because he was jealous. "Q Jealous of whom? "A To the men [s]he was talking, sir. "Q Of your own knowledge do you know of a fact that your father despite the fact that he is in jail is making threats to you and your mother? "A Yes, sir. "Q What sort of threat if you know? "A He told us that he will kill us, sir. "Q And when did he tell you that he will kill you? "A He said the moment I get out of jail I will kill all of you, sir. "x x x . "CROSS-EXAMINATION BY ATTY. JUAN B. SUCO, JR. ON WITNESS MARITES GALLO: "Q You were first raped at Mindoro? "A Yes, sir. "Q And you were ten (10) years old, is that correct? "Q When was that? "A The year 1993, sir. "Q Do we understand that during that time you and your family were still residing in Mindoro? "A Yes, sir. "Q Including your mother? "A Yes, sir. "Q Your brothers and sisters? "A I am the only girl, sir. "Q Are you the only daughter of your parents? "A Yes, sir and I have five (5) brothers. "Q Are you the youngest o[r] the eldest? "A I am the eldest, sir. "Q In what particular place in Mindoro were you residing? "A Gutad, Mindoro, sir. "Q Is that a barrio? "A No, sir we lived in a mountainous part of Mindoro, sir. "Q What month when you were first raped in 1993? "A May, sir. "Q But you did not file any complaint against you father? "A No, sir because I was afraid.

"Q Neither you report what your father did to you to your mother? "A Because if I will tell the matters to my mother we will be killed, sir. "Q You only presumed it to yourself when you report the matter to your mother? "A Yes, sir. "Q When you were raped for the first time did you offer resistance? "A Yes, sir. "Q In what manner? "A I pinched him and pushed him, sir. "Q You did not attempt to run away? "A He was able to hold me, sir. "Q By the way, what time was that when the incident happened? "A About 4:00 o'clock, sir. "COURT: "Q 4:00 o'clock what? "A 4:00 o'clock in the afternoon, sir. "ATTY. SUCO: "Q Did that happen inside your house? "A Yes, sir. "Q Your mother was also there? "A She was not there, sir. "Q What about your other brothers? "A They were not there, sir. "Q The four (4) of them were not in your house when that incident happened? "A There are five (5), sir. Q Not even one (1) of them was inside your house? "A One (1) was there, sir the youngest. "Q How old is your youngest then? "A Two (2) years old, sir. "Q Can he talk already? "A He can talk only for few words, sir. "Q But he can understand? "A No, sir. "Q Where was your mother then? "A She went to the barrio to get our rice, sir. "Q How far? "A Near, sir. "Q How near? "A It will not took her one (1) hour by walk, sir. "Q But you have neighbors? "A We have neighbors, sir but we only have two (2) neighbors, sir.

"Q In other words there are three (3) families residing in the area? "A Yes, sir. Our house was the third house. "Q And your two (2) neighbors were near to your house? "A A little bit far, sir. "Q How far? "A A little bit far, sir. "Q Alright. From the place where you are now sitting, can you demonstrate the distance in relation to your house and to the two (2) neighbors? "INTERPRETER: Witness is pointing to the place where she is sitting up to the municipal hall of Binangonan, Rizal. "ATTY. SUCO: Can we stipulate? "WITNESS: "A The same distance, sir. "ATTY. SUCO: "Q About a distance of thirty (30) meters? "A Yes, sir. "ASST. PROSECUTOR SOYANGCO: We can stipulate on that. "ATTY. SUCO: "Q And you are referring that distance, you refer to the distance to one of your neighbors? "A Yes, sir. "Q Do you know the name of that neighbor of yours? "A Yes, sir. "Q What is the name? "A Arias, sir. "Q How many were they living in the house? "A Three (3), sir, his wife and a child. "Q Only one (1) child? "A Yes, sir. "Q Now, your other neighbor, can you also demonstrate the distance? "A The same distance, sir. "Q And again do you know the name? "A Yes, sir. "Q What is the name? "A Bernard, sir. "Q Is he a man or a woman? "A He is a man, sir. "Q Is he married? "A He is married, sir.

"Q How many were they living inside the house? "A His wife and his four (4) children were residing there, sir. "Q So, all in all you have nine (9) neighbors in that two (2) houses? "A Yes, sir. "Q Now, when the incident happened did you not attempt to shout for help? "A They were not there at that time, sir. "Q Why did you say that they were not there? Did you visit the two (2) houses before you were raped by your father in your house? "A They went to the barrio, sir. "Q The nine (9) of them went to the barrio? "A Yes, sir because they always go to that place and nobody was left, sir. "Q How do you know that? "A They went to the barrio and the house was closed, sir. "Q Did all of them inform you that they will go to the barrio? A Yes, sir. "Q They informed you before they left for the barrio? "A They talked to me and told me to watch their house while they were away in the barrio, sir. "Q When that incident was in progress did you not shout or tell your youngest brother to report the matter to your mother who was in the barrio? "A He cannot talk yet at that time, sir. "Q But you did not tell him? "A Even if I told him he cannot understand, sir. "Q In other words you did not tell anything to your brother? "A No, sir because even if I told him he cannot understand, sir. "Q You just allowed your father to do what he wanted to do? "A I also reported what happened, sir, after we had transferred residence, sir. "Q While the incident was still in progress you did not tell any word to your younger brother or shout hoping that somebody will rescue you? "A That time my brother was sleeping, sir. "Q Now, will you explain what exactly did your father [do] to you at that particular incident? "A Yes, sir. "Q What did he [do] to you? "A He first undress me, sir and he raped me. "Q You did not offer resistance when he removed your dress? "A I tried to resist, sir but he is a man that is why I cannot resist him, sir. "Q Is that the only thing happened, did he just removed your dress? "A He removed my panty or underwear, sir. "Q Is that the only one? "A Yes, sir. "Q Other than that nothing happened? "A After he removed my panty he raped me, sir.

"Q What do you mean by he raped me? "A He took advantage of me, sir. "Q By what means? "A He kissed me, sir and - - "ATTY. SUCO: We request that that statement in vernacular be recorded. "COURT: The vernacular testimony of the witness put it down as requested by the counsel - - `INANO NIYA AKO AT INANO.' "ATTY. SUCO: "Q What did you mean by `INANO AKO.' "A He inserted his penis to my vagina, sir, that is what I mean. "Q How? "A He held his penis and inserted it to my vagina, sir. "Q Was there an actual penetration of his penis to your vagina? "A Yes, sir. "Q He was able to penetrate his penis to your vagina? "A Yes, sir. "Q Are you telling this Court that after he held his penis he was able to insert it immediately to your vagina? "A Yes, sir. "Q So, if that is the case it could be that you assisted him or you positioned yourself in such a manner that he can insert his penis immediately inside your vagina? "x x x . "Q What did you feel when the penis of your father was already inside your vagina? "A I felt pain, sir. "Q How long did the penis of your father was inside your vagina? "A For quite a long time, sir. "Q Up to the next morning his penis was inside your vagina? "A No, sir. "Q How long in terms of hours? "A For less half hour, sir. "Q So, for 59 minutes? "x x x . "ATTY. SUCO: Twenty nine (29) minutes I mean. "WITNESS: "A Yes, sir. "x x x . "ATTY. SUCO: "Q Was your vagina bleeding when your father finished?

"A Yes, sir. "Q By the way, was that the first time that you were sexually abused by any person? "A Yes, sir. "Q After that did you try to consult a doctor for the purpose of treating your vagina when you said it was bleeding? "A There was no doctor around, sir and the doctor was far in our house and the doctor was in Tanyag, sir. "Q You did not consult to any albularyo? "A The place of the albularyo was also far, sir. "Q You did not apply any medicine to your vagina which was bleeding? "A I placed some medicine, sir. "Q What medicine? "A Oil, sir. "Q And did it heal when you applied oil? "A Yes, sir. "Q Now, you also testified that you were abused many times starting in Mindoro. Now, please tell this Court how many times? "A For a month, sir. "x x x . "WITNESS: "A About five (5) times, sir. "ATTY. SUCO: "Q In all that incidents your father was able to insert his penis to your vagina? "A Yes, sir. "Q Do you have a menstruation already? "A Yes, sir. Q When did you experience having for the first a menstruation? "A March, sir. "Q March of what year? "A 1994, sir. "Q So, only last year? "A Yes, sir only now, sir. "x x x . "ATTY. SUCO: "Q Since March when you experienced menstruation you were not abused anymore by your father up to now? "A He was still abusing me, sir. "Q When? "x x x . "WITNESS: "A Last year, sir.

"x x x . "Q Did you say earlier in reply to the question of the counsel for the accused that your menstruation was in March 1994? "A Yes, sir. "Q Atty. Suco asked next - - since that time were you abused by your father? "A Yes, sir. "Q The next question of Atty. Suco - - when were you abused? "A In the year 1994, sir he keep on abusing me. ATTY. SUCO: "Q What do you mean by he keep on abusing you? "A That was the time he wanted to rape me, sir."8 Marites spoke of not one but of several sexual transgressions committed, as if so casually, on her by her own father, the first of which occurred when she was only ten years of age and the last when she was thirteen. For some undisclosed reasons, appellant was not charged with the prior offenses. Almost invariably, the Court uses three guiding principles in the review of rape cases, to wit: (1) An accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant is scrutinized with extreme caution; and (3) the evidence for the prosecution stands or falls on its own merits and cannot be allowed to draw strength from the weakness of the defense. 9 It is within these parameters that this Court, not much unlike that of the trial court, has made its evaluation of the case. Since the participants are usually the only witnesses in crimes of this nature, the conviction or acquittal of the accused would virtually depend on the credibility of the complainant's testimony.10 If found credible, the lone declaration of facts given by the offended party would be sufficient to sustain a conviction.11 A victim of sexual assault would not ordinarily be willing to undergo the humiliation of a public trial, let alone testify on the details of her ordeal, if her reasons were other than her natural passion to avenge her honor12 and to condemn a grave injustice done to her.13 Even more improbable than any other case perhaps, is for a young girl to accuse her own father for her defilement,14 and so expose not only herself but the family as well to shame and scandal, if the charges were untrue and merely made up.15 Understandably in the case at bar, appellant could only resort to, and content himself by, having a recourse to mere generalities, such as those hereinafter discussed, so normally employed as defense strategy when the evidence for the prosecution appears to be formidable. In giving full credence to the testimony of the victim, the trial court has found no cogent reason to deny her credibility and to discard what it described to be her "coherent and straightforward" narration of the incident. That court has had all the opportunity to observe closely the demeanor of the young victim at the witness stand. Well settled is the rule that an assessment made by a trial court on the testimony of witnesses deserves great respect absent any valid justification that can warrant its outright rejection by an appellate court.16 Nothing significant has been shown to convince the Court that the trial court has at any time acted with undue bias or that it has overlooked or ignored something of substance that could have, in any degree, warranted a turnabout by it of its findings and judgment. Occasional flaws or unguarded exaggerations in the testimony of witnesses, verily, could lend and add up to the credence of testimony.17 A completely accurate description of the incident certainly cannot be expected from a witness in recounting the details of a harrowing experience.18 An errorless declaration could, in fact, be suspect for a rehearsed testimony. Appellant bewails the supposed failure of the offended party to promptly report the crime to the authorities. The delay and initial reluctance of a rape victim to make public the assault on her virtue is neither unknown nor uncommon.19 It is not an unexpected reaction of a woman to keep

secret, at least momentarily, the dishonor brought to bear on her and to suffer alone in her misfortune rather than to be the subject of embarrassment, public scrutiny, pity or ridicule. Fear, brought about by threat or when, such as in the case at bar, the rapist is living under the same roof with his victim,20 is a circumstance that can easily muffle the latter into silence while that fear lasts. Age is another.21 Thus we have stated: "Vacillation in the filing of complaints by rape victims is not an uncommon phenomenon. This crime is normally accompanied by the rapist's threat on the victim's life, and the fear can last for quite a while. There is also the natural reluctance of a woman to admit her sullied chastity, accepting thereby all the stigma it leaves, and to then expose herself to the morbid curiosity of the public whom she may likely perceive, rightly or wrongly, to be more interested in the prurient details of the ravishment than in her vindication and the punishment of the rapist. In People vs. Coloma [222 SCRA 255] we have even considered an 8-year delay in reporting the long history of rape by the victim's father as understandable and so not enough to render incredible the complaint of a 13-year old daughter."22 Marites, to stress once again, was only between ten and thirteen years old when she was subjected to repeated bestial abuse. The unbelievable depravity was committed by her own father, described by the victim's younger brother Christopher Gallo to be a cruel and violent man particularly when drunk. It was to her credit that she ultimately found the right composure and determination, belated such as it might have been, to finally have her father brought to justice. Everything considered, the Court is convinced that accused-appellant did commit the crime of rape on his own 13-year old daughter. This offense is defined and made punishable by Article 335 of the Revised Penal Code. The law, as amended by Section 11 of Republic Act No. 765923 reads: "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 or is demented. "The crime of rape shall be punished by reclusion perpetua. "Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall bereclusion perpetua to death. "When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. "When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall bereclusion perpetua to death. "When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. "The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: "1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. "2. When the victim is under the custody of the police or military authorities. "3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. "4. When the victim is a religious or a child below seven (7) years old. "5. When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. "6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.

"7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation." The crime of rape, having been committed by appellant on his own daughter of thirteen years of age, is consequently covered by the above mandatory death penalty provision. Thus, following its deliberations, the Court by a majority vote, with two members voting to only impose the penalty of reclusion perpetua on constitutional grounds, sustains the trial court in the imposition of the death penalty on appellant Romeo Gallo y Igloso. WHEREFORE, the appealed decision is hereby AFFIRMED except for the award of civil indemnity which is INCREASED toP50,000.00. Costs against accused-appellant. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of the case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Panganiban, and Martinez, JJ., concur. EN BANC [G.R. No. 134309. November 17, 2000] PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROBERTO MARIANO alias ATO, Accused-Appellant. DECISION BELLOSILLO, J.: ROBERTO MARIANO alias Ato was accused of raping five-year old Khristine Dandan Custan before the Regional Trial Court of Pasig City. On 7 May 1998 the court a quo found him guilty as charged and sentenced him to death;[1 hence, this automatic review of his conviction. The family of Khristine Custan rented a room in a small bungalow owned by accused Roberto Mariano where his family lived in an adjoining room. Only lawanit and flattened carton boxes divided the two quarters. Mariano's wife worked in Malaysia. Like typical neighbors in depressed areas, with nowhere else to spend their leisure time, Khristine and her siblings would go to the room of the Marianos to play or watch television. It was on one of these occasions that the crime charged supposedly transpired. On 17 February 1995, at around 1:00 o'clock in the afternoon, four-year old Khristine [2 went to the room of Roberto Mariano whom she called Kuya Ato to play with his son "JC."[3 Roberto was watching television in his room together with his children. Khristine and "JC" were playing in the sala with the latter's toy jeep while his sister and a brother were washing dishes.[4 After some time, Roberto gave money to his children and told them to buy some chicheria from the nearby convenience store. The children left leaving behind Khristine and Roberto alone in the house. According to Khristine, Roberto carried her to his bed, removed her clothes as well as his own, and inserted his penis into her vagina. She felt pain although the contact was brief. Then he carried her again and asked her to sit down beside him. He called for his children and told Khristine to put on her clothes and go back to the room. When the children arrived he asked his older daughter to buy beer for him.5 As the whole incident was taking place, Evelyn C. Custan, Khristines mother, was in the adjoining room attending to her other children. According to Evelyn, when Khristine returned she noticed that she was wearing her panty inside out. When she asked Khristine why, she answered that it was her Kuya Ato who put it on. Evelyn claimed that Khristine, upon further questioning, told her that her Kuya Ato inserted his finger inside her vagina and then his penis afterwards. The electric power failed at this moment so Evelyn rushed to a neighbor's house to borrow a flashlight and returned immediately to examine Khristine's private part. According to Evelyn, she noticed bloodstains and bruises in Khristine's vagina, prompting her to report the incident to the police station near her home. The police however did not believe her story so they were refused assistance. Evelyn then brought Khristine to the Taguig Police Station where they gave their statements, after which, mother and daughter led the police officers to Roberto's residence; however, he was not there.

Evelyn then brought Khristine to the PC Crime Laboratory Service in Camp Crame for medical examination. The medico-legal report of Dr. Jesusa N. Vergara, Khristine's examining physician, contained the following CONCLUSION: "Subject is in virgin state physically x x x x no external signs of application of any form of violence. REMARKS: Vaginal and peri-urethral smears are negative for gram-negative diplococci and for spermatozoa."[6 The following day, 18 February 1995, Evelyn and her family moved out. The Marianos also followed suit. Thus, the warrant for Roberto's arrest could not be served. On 26 December 1996 or more than a year after their last meeting, Roberto unexpectedly appeared at Evelyn's place. Evelyn wasted no time in calling for the police and Roberto was arrested. Testifying alone in his defense, Roberto denied the charge. He explained that at about 11 o'clock in the morning of 17 February 1995 he arrived home from his work as a taxi driver to prepare food for his children; that while he was cooking, Dandan(referring to Khristine) went to his room to watch television. Kisay (Khristine's mother) joined them but watched only through the window. After his lunch Roberto laid down on his bed and talked to Evelyn as both watched television, while Khristine and Roberto's children were playing. Their conversation lasted until 1:15 in the afternoon just after the noontime TV show. Evelyn retired to her room afterwards. Meanwhile, the two (2) youngest children of Roberto - Ezequiel and Chonalyn - playfully sat on their father's belly and prodded him to play with them. Tired and sleepless the night before from long hours of driving a taxi, Roberto tried to discourage the children but they insisted on playing "horsie-horsie" with their father for about fifteen minutes. Khristine also joined them. To dissuade the children from further disturbing him, he gave P2.00 to each of them including Khristine so that they could play outside and leave him alone to sleep. At about four or five o'clock in the afternoon, according to Roberto, he was interrupted in his sleep by his daughter Cathy who told him that Evelyn wanted to see him in her room. There, Evelyn confronted him why Khristine was already wearing her "shorts"7inside out. After Roberto professed ignorance, Evelyn threatened to have him and his family killed by her brother whom she claimed to be a member of the New People's Army (NPA). Sensing that he was being accused of having sexually molested Khristine, Roberto advised Evelyn to have her daughter physically examined before making such an accusation. When Evelyn did not respond, Roberto returned to his room as he was having a headache and slept until 5 o'clock the following morning. On 18 February 1995 Gloria Cidagan, Roberto's mother, arrived to fetch her grandchildren after hearing from Cathy that Evelyn had threatened to harm them and that she would file a case against their father. Roberto merely shrugged off his mother's report. Although he did not believe at once that Evelyn would carry out her threat, he became apprehensive later in the evening when Evelyn packed up their things, destroyed the door of their rented room and left. Then Roberto realized that the threat to the security of his family was real. The next day, 19 February 1995, Roberto went to his mother's place to confirm from his children the things Evelyn had told them. He drove until 9:30 p.m. when his taxi developed engine trouble. He brought his cab to the garage and reported the matter to the owner. He also told the owner that he was going to stop driving the taxi temporarily; instead, he decided to drive a passenger jeepney so he could be nearer his mother's house, thus affording him a better opportunity of protecting his family in case Evelyn made good her threats. Roberto learned later from his friend Rene Montes that Evelyn filed a rape case against him. This was confirmed by Roberto's sister-in-law who was shown by Evelyn a warrant for Roberto's arrest. Roberto immediately informed his wife about the charge. When Roberto's wife, Melinda Mariano, arrived from Malaysia, she approached Evelyn about the case. According to Roberto, Evelyn demanded from the spouses P50,000.00 in exchange for dropping the charges. When Roberto's mother learned about the offer, she offered to sell their house, but Roberto dissuaded her saying that she was not going to give Evelyn a single centavo as he did not do anything wrong. On 26 December 1996 Roberto went to the house of Evelyn in order to ask her about the case she filed against him. But before he could do so Evelyn called for the police who promptly arrested him.

On 9 June 1997 Roberto was arraigned and trial ensued. However, soon after Evelyn executed a "Salaysay ng Pag-uurong ng Demanda" paragraphs 2 and 3 of which read: 2. Na aking nakita sa Medico Legal Report na ang aking anak ay hindi naman pala nagalaw ng kahit kanino (sic); 3. Na matapos akong makipag-usap sa inakusahan, aking nabatid na hindi lamang kami nagkaintindihan sa pangyayari x x x x When confronted with this document on cross-examination, Evelyn explained that she had Atty. Mendoza of the Public Attorney's Office (PAO) prepare the document after taking pity on Roberto's wife, who frequently visited her and begged her to drop the charges. When the trial court noted that the document was not subscribed to by the public prosecutor, Evelyn further explained that the prosecutor did not want her to sign and advised her instead to think the matter over. Afterwards, she decided to pursue her case. On 26 May 1998 the trial court found the accused Roberto Mariano alias Ato guilty of statutory rape and sentenced him to death and the accessory penalties consequent thereto, and ordered him to pay private offended party Khristine C. Custan P50,000.00 by way of civil indemnity, plus the costs. Accused-appellant Roberto Mariano now insists that the prosecution failed to prove his guilt beyond reasonable doubt. In support of his claim, Mariano asserts that the testimony of Khristine declaring that he inserted his penis into her vagina because of which she suffered pain, and the claim of Evelyn that she discovered blood and bruises in Khristine's vagina, were both belied by the medico-legal report of Dr. Jesusa N. Vergara of the PC Crime Laboratory which indubitably showed that Khristine was physically a virgin, that her hymen was intact, and that there were no external signs of the application of any form of violence. He further claims that the "Salaysay ng Pag-uurong ng Dimanda" executed by Evelyn C. Custan clearly proves his innocence of the crime charged as she would not have wavered in her resolve to pursue the case if their accusation of rape was indeed true. We reiterate at the outset that the evaluation of testimonies of witnesses by the trial court is binding upon the appellate court in the absence of a clear showing that it was reached arbitrarily or that the trial court had plainly overlooked certain circumstances of substance or value which, if considered, might affect the result of the case. In prosecutions for rape, this Court in the evaluation of the evidence has always been guided by the following considerations: (a) an accusation of rape can be easily made, is hard to prove, but harder to defend by the party accused, though innocent; (b) in view of the nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and, (c) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense.8 In all criminal prosecutions, without regard to the nature of the defense which the accused may raise, the burden of proof remains at all times upon the prosecution to establish his guilt beyond reasonable doubt.9 With these guidelines in mind, we proceed with the instant case. Once again, it is up to this Court to see to it that only the strictest standard of evidence has been met in order to justify the taking of a life. The exacting standard of proof beyond reasonable doubt acquires more relevance in rape charges which are easy to make but harder to prove and harder still to defend by the party accused who may be innocent.10 This Court will not condemn a person to his death if there exists the slightest hint of reasonable doubt as to his guilt. In reviewing the factual circumstances of the instant case, the Court has seen doubt cast on the evidence of the prosecution, sufficient to warrant a reversal of his conviction. The trial court convicted the accused of statutory rape. In so doing, it relied mainly on the testimonies of complaining witness Khristine Custan and her mother Evelyn C. Custan. But, in reviewing this case, it is imperative to ensure that their testimonies can withstand the strictest judicial scrutiny. This Court is not unaware of cases where we held that it was unthinkable for a youthful rape victim to undergo the humiliation of a public trial unless she was merely protecting her honor and bringing to justice the person who raped her.[11 However, this does not remove the necessity of scrutinizing the testimony of the complaining witness with extreme caution. The trial court was probably convinced that Khristine gave a truthful account of what actually transpired during her ordeal considering her demeanor,her apparent immaturity, youthfulness and lack of malice. But we are not as easily convinced, as we are conscious of our constitutional duty to exact proof beyond reasonable doubt before convicting an accused. Although we do not generally disturb conclusions of the trial court on credibility of witnesses, we will do so in this case as the lower court has clearly overlooked certain facts of substance. An

examination of Khristine's testimony and demeanor reveals spatters of irregularities that the lower court apparently overlooked, but are simply too glaring for us to ignore. Khristine told the trial court that Roberto carried her to his bed, removed her clothes as well as his own, and inserted his penis into her vagina. When asked by the prosecutor what she felt at this time, the victim replied, "It was painful, sir." 12 It is highly inconceivable that Khristine would not cry for assistance considering that her mother was only in the next room that was separated only by lawanit and flattened carton boxes from that of Mariano where she was supposedly sexually abused. Nowhere in her entire testimony was there any indication that she shouted or wept at the invasion into her private organ. In fact, when the prosecutor asked what she was doing while Roberto was inserting his penis into her vagina, she failed to give any answer, which strongly indicated that she was in all probability coached on the other questions propounded to her. Her actions immediately after the incident did not suggest the slightest hint of discomfort on her part. In the normal state of things, a rape victim, particularly a girl of very tender years, would have at the very least exhibited some form of uneasiness or discomfort. It would not have been unusual for Khristine to come running to her mother who was just in the adjoining room with an informal partition. But after her alleged defilement Khristine meekly obeyed Roberto's order to sit down beside him in the sala.13When she was later instructed to put on her clothes and go home she meekly obeyed.[14 Not once did she exhibit a grain of discomfiture, soreness or uneasiness. Neither did she offer any resistance, nor declare her abhorrence towards the molester; more so, to the evil done to her. Instead, she reacted in complete submission and supplication to the instructions of her offender, all inconsistent with her claim that she felt pain. In People v. Bormeo,15 the 2-1/2-year old victim immediately ran to her grandmother crying, with her legs apart and blood trickling down her feet, after having been violated by her grandmother's common-law husband. While we are not unmindful that rape victims may react in different ways,16 given the variance of their background and upbringing and the nature of the crime, we have however said often enough that the conduct of the victim immediately following the alleged assault is of the utmost importance as tending to establish the truth or falsity of the charge.17 Khristine's apparent nonchalance to the evil done to her by accused-appellant seems to suggest indeed that no rape was committed, or at the very least, that she was not harmed after all. The testimony of Khristine's mother is likewise replete with inconsistencies. According to Evelyn, when she confronted Khristine about her inverted shorts Khristine answered that Roberto inserted his finger insider her vagina and then his penis. [18 However, according to her testimony in court, Roberto performed no act other than inserting his penis into her vagina.19 Evelyn's affidavit taken before the Taguig Police Station confirms this inconsistency. Her initial complaint that Roberto touched her daughter's private parts ("hinipo daw ni Kuya Ato niya ang pekpek niya").20 It was only at the end of her statement, when she was prodded to add something to her narration, that she said that Roberto likewise inserted his penis into Khristine's vagina. ("Gusto ko pong idagdag na sinabi rin po ni Khristine na ipinasok daw po ng Kuya Ato niya ang titi niya sa pekpek niya").[21 In the natural course of a truthful narration, this piece of information would have been revealed at the earliest opportunity; at least, at the very instance when she revealed the insertion of his finger that supposedly preceeded the insertion of the penis. Incongruously, Evelyn divulged it only at the very end of the statement, and only after she was coaxed to add something more, which leads as to the inevitable conclusion that the statement about the insertion of the penis was merely added as an afterthought. Finally, Evelyn claimed that when she inspected the vagina of Khristine with the use of the flashlight she saw bloodstains and bruises. This was improbable, to say the least. The medical examination on Khristine conducted on the very same day she was supposedly sexually assaulted not only failed to support the assertion but expressly declared that Khristine's hymen was intact, she was physically virgin, and there were no signs of violence applied on her sexual organ. [22 But the trial court belittled the medico-legal report thus x x x the consummation of the crime of rape does not call for a complete penetration of the female organ. Neither is it essential that there be rupture of the hymen or laceration of the vagina. It is sufficient that the labia be penetrated. To repeat, the slightest penetration of the pudenda would suffice, and vaginal bleeding is

not an element of rape. In fact, the absence of penetration or laceration, or the fact that the victim remains a virgin, does not, in itself, negate the consumation of the crime of rape (citations omitted). To that extent we have no quarrel. We agree that bleeding and bruising are not elements of rape; neither does the finding that the victim is a virgin negate it. However, Evelyn herself stated that she saw blood and bruises when she inspected Khristine's vagina immediately after the supposed assault on her virginity. Khristine herself testified that Roberto actually inserted his penis into her vagina, and that she felt pain as a result. In short, the prosecution's contention was that there was actual penetration, and not only mere contact between Roberto's penis and Khristine's pudendum, in which case, the medico-legal report assumes importance, not necessarily to prove or disprove an element of the crime but, more importantly to verify the credibility of the two (2) principal witnesses. If indeed there were bruises and blood on Khristine's vagina, as Evelyn claimed, the medical examination of Khristine on the very same day would have revealed a wound, laceration or contusion of some sort, or any sign that would indicate that there were indeed bruises and blood on the area several hours before. But the medico-legal report showed nothing of that sort. With such dubious testimonies and obvious inconsistencies, the prosecution should have presented the examining physician, Dr. Jesusa Vergara, as witness to explain the apparent contradictory evidence, if such was reasonably explainable. It should not have left this very important issue hanging in the air. Surely, the prosecution knows that it is not the obligation of the defense to provide the explanation. The failure of the prosecution in that regard is fatal to its cause, as the Court will have no choice but to resolve the doubt in favor of the accused. Under the circumstances, this Court cannot help viewing the execution of the Affidavit of Desistance as a confirmation of a scheme to extort money from Roberto. It is not entirely true that the unsubscribed Affidavit of Desistance has no legal effect whatsoever, and hence, must be treated as a mere scrap of paper. Evelyn admitted that she signed the affidavit. Therefore, even if not subscribed, it already partook the nature of a private document which was properly identified and authenticated during the trial under Sec. 20, Rule 132, of the Revised Rules of Court. Thus it may now be taken as proof of its contents. We cannot simply ignore that, at one point after the trial had commenced, the mother of the victim herself declared that the accused was innocent of the rape charges. While an affidavit of desistance is not generally looked upon with favor, yet, it may create serious doubts as to the liability of the accused, especially if it corroborates his explanation about the filing of the criminal charges against him.[23 Indeed, the existence of the Affidavit of Desistance opens a host of new questions that seriously hint at the mother's motives in filing the case. Both parties offer conflicting explanations as to why this document came about. According to Evelyn, she executed the document out of pity for the wife of Roberto who implored her to withdraw the complaint. Roberto however countered that Evelyn conditioned the preparation of the document on the payment of P50,000.00, which he refused to pay as he claimed to have done nothing wrong. We believe Roberto's version. No amount of imploring will convince a person to withdraw a complaint if truly she has sufficient and valid grievance against another. Moreover, it should be noted that Evelyn did not conduct one; as in fact the prosecution did not present any evidence on rebuttal;[24 in fact, there was no rebuttal at all. On the other hand, it is apparent from the records that the family of Roberto has a more stable income than the family of Evelyn, Roberto being a full-time taxi driver while his wife was employed in Malaysia. It is not unlikely that the relatively comfortable living of Roberto's family may have been the cause of some envy on the part of Evelyn, or was at least an economic inducement for her to concoct the rape story. As held in People v. Godoy,25 the facts of which bear some striking resemblance to the instant case Although the trial court did observe that a mother would not sacrifice her daughter to tell a story of defloration, that is not always the case as this Court has noted a long time ago. The books disclose too many instances of false charges of rape. While this Court has, in numerous cases, affirmed the judgments of conviction rendered by trial courts in rape charges, especially where the offended parties were very young and presumptively had no ill motives to concoct a story just to secure indictments for a crime as grave as rape, the Court has likewise reversed judgments of conviction and acquitted the accused when there are strong indications pointing to the possibility that the rape charges were merely motivated by some factors except the truth as to their commission. This is a case in point. The Court, therefore, cannot abdicate its duty to declare that the prosecution has failed to meet the exacting test of moral certainty and proof of guilt of appellant beyond reasonable doubt (citations omitted).

Among our well-entrenched principles is that an accused is presumed innocent until proved guilty. To overcome the presumption, his guilt must be shown by proof beyond reasonable doubt. While this does not connote absolute certainty, it means that degree of proof which, after an investigation of the whole record, produces moral certainty in an unprejudiced mind of accusedappellant's culpability. It signifies such proof that convinces and satisfies the reason and conscience of those who are to act upon it that accused-appellant is guilty of the crime charged. In the instant case, the constitutional presumption of innocence has not been overcome by the prosecution; hence, accused-appellant must be acquitted. WHEREFORE, the conviction of accused-appellant ROBERTO MARIANO alias ATO of statutory rape, sentencing him to DEATH and imposing the accessory penalties consequent thereto, as well as to pay damages to Khirstine Custan, the offended party, plus costs, is REVERSED and SET ASIDE. Consequently, he is ACQUITTED of the crime charged and ordered released immediately from custody unless he is being held for some other lawful cause. The Director of Prisons, or whoever is in charge of his detention by reason of this case, is DIRECTED to release immediately from custody accused-appellant Roberto Mariano alias Ato and to report to this Court the action taken hereon within five (5) days from receipt of this Decision. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiagoand De Leon, Jr., JJ., concur. Mendoza J., on leave.

EN BANC

[G.R. Nos. 137834-40. December 3, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO DOGAOJO Y MORANTE, accused-appellant. DECISION
PER CURIAM:

Accused-appellant Domingo Dogaojo y Morante was charged before the Regional Trial Court of Malolos, Bulacan with seven counts of rape allegedly committed against his minor daughter, Melinda Dogaojo. The trial court found accused-appellant guilty of all the charges and sentenced him to suffer seven death penalties.[1] The case was elevated to this Court on automatic review. The first six Informations which contained the same allegations except the date of the commission of the offense alleged: That on or about the 21st day of March 1996, (22nd day of March, 1996 for Crim. Case No. 1339-M97; 26th day of March, 1996 for Crim. Case No. 1340-M-97; 13thday of April, 1996 for Crim. Case No. 1341-M-97; 21st day of April, 1996 for Crim. Case No. 1342-M-97; 2nd day of May, 1996 for Crim. Case No. 1343-M-97) in the municipality of San Jose Del Monte, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully,

unlawfully and feloniously with lewd design, by means of force and intimidation, have carnal knowledge of his 11 year old daughter Melinda A. Dogaojo, against her will and consent. Contrary to law.[2] The seventh Information alleged: That on or about the 17th day of December, 1996, in the municipality of San Jose del Monte, province of Bulacan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and feloniously with lewd design, by means of force and intimidation, have carnal knowledge of his 12 year old daughter Melinda Dogaojo against her will and consent. Contrary to law.[3] Accused-appellant pleaded not guilty to the charges.[4] Trial followed. For the prosecution, Melinda Dogaojo testified that accused-appellant Domingo Dogaojo is her father. She said that he violated her seven times on various dates in 1996.[5] She was born on November 19, 1984.[6] The first incident happened on March 21, 1996 at 11:30 in the morning in their house at Barangay Kaybanban, San Jose Del Monte, Bulacan. At that time, Melindas mother, Mila, and her younger brothers, Arnold and Albert, were at the well washing clothes. Melinda was alone in the room inside their house when her father, Domingo, entered and pushed her to the wooden bed. She fell down. He began to remove her clothes. Melinda tried to resist by pushing and kicking him. Domingo, however, succeeded in removing her short pants and underwear. He also removed his short pants and underwear. Thereafter, he pulled her feet and spread her legs while she continued to push and kick him. Then he lay on top of her, fondled his organ and inserted it into her vagina by making a push and pull movement for about one minute. She felt pain in her private part. Domingo got up when he heard Melindas brothers coming. He put on his short pants and told Melinda not to tell anybody about what happened. He threatened to kill her if she does. Melinda fixed herself as Domingo went out of the house. When she saw her mother, they talked about various things but she did not tell her about the sexual assault because she was afraid of her father who looked panicky and red-faced at that time.[7] The second incident occurred on March 22, 1996 in the same house. Domingo, Mila, Arnold, Albert and Melinda were lying on the wooden bed in the order mentioned. Around 1:00 in the morning, Melinda was roused from her sleep when Domingo got up and went to her side. He pushed her two brothers toward her mother. Then he undressed her. She wept while resisting his advances. She pushed him and swayed her body. After her clothes had been removed, Domingo laid on top of Melinda and held her hands to keep her from moving. He inserted his penis into her vagina and made a push and pull movement for about one minute. Melinda again felt pain in her genitalia. After satisfying his lust, Domingo stood up. The movement awoke Mila who asked Domingo what he was doing. He told her that he was just looking for something. Mila turned to Melinda and asked her why she was not sleeping. She answered that she was awakened by a mosquito. Melinda went back to sleep and kept silent about the incident. Domingo also went back to bed beside Mila.[8] The deed was repeated three times more -- at 12:00 midnight on April 13, 1996, at 11:00 in the evening on April 21, 1996, and at 10:30 in the evening on May 21, 1996. On all occasions, Domingo succeeded in having sexual intercourse with Melinda against her will.[9]

Prior to these dates, however, on March 26, 1996 at 2:00 in the afternoon, Domingo once again abused Melinda. Melinda was standing outside the house beside the kakawate tree when her father summoned her to come inside. At that time, Melindas mother was at her sisters house and her brothers were also out playing. When Melinda entered the room, Domingo pushed her to the wooden bed and removed her short pants and underwear. Domingo also removed his clothes. Melinda continued to cry as she resisted Domingos advances. She swayed her body and pushed him. But he mounted her and made a push and pull movement for about three minutes, causing pain in her organ. Thereafter, he stood up. Melinda saw a white substance come out of Domingos organ. Domingo put on his short pants. Looking mad, he told Melinda not to report the incident. Melinda cried as she wore her short pants.[10] The last episode occurred at 8:00 in the morning of December 17, 1996 in the familys new house. Melinda woke to find her naked father lying on top of her. He removed her short pants and underwear and inserted his penis into her vagina. As before, Melinda swayed her body and pushed him. She tried to get up but Domingo prevented her. Domingo made a push and pull movement while lying on top of Melinda. After two minutes, he stood up because a white substance came out of his organ. He wiped the white substance and told Melinda not to tell anybody about what happened. Domingo went out of the room. Melinda again kept silent about the sexual abuse.[11] A week after the last incident, Melinda moved to the house of her sister, Vangie. She related to Vangie what her father had done to her. Vangie, in turn, informed their mother about the story, but the latter refused to believe and left them on their own to seek redress. Vangie accompanied Melinda to the police authorities to report the rape and to give her sworn statement. Thereafter, they went to the National Bureau of Investigation (NBI) for physical examination.[12] Dr. Antonio Vertido, Medico-Legal Officer of the NBI, testified on the result of the physical examination. It yielded the following findings:[13] GENERAL PHYSICAL EXAMINATION: Height: 145.0 cms. Weight: 85 lbs. Normally developed, fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts developed, hemispherical, doughy, Areolae, 2.0 cms. in diameter, brown. Nipples, 0.7 cm. in diameter, brown, protruding. GENITAL EXAMINATION: Pubic hair, fine, short, scanty. Labia and labia majora, gaping. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, moderately tall, moderately thick, intact. Hymenal orifice, measures 2.0 cms. in diameter. Vaginal walls, tight. Rugosities, prominent. CONCLUSIONS: 1. Physical virginity preserved. Domingo Dogaojo and Mila Dogaojo testified for the defense. Domingo testified that he and his wife have eight living children. Three are staying with them, namely, Jay-Ar, Arnold and Ambet. Their daughter. Melinda. has been living with their other child since 1995. She seldom goes to their home.[14]

Domingo denied raping Melinda on the dates alleged by the prosecution. He posed an alibi. He stated that he worked as mason-carpenter in various construction projects and he usually stayed at the work site from Monday to Saturday. He would go home only at 6:00 or 7:00 in the evening of Saturday. In 1996, he worked at Palmera Construction in San Jose Del Monte and he slept at the construction site during weekdays.[15] Domingo further testified on the possible motive of Melinda in filing the complaint against him. He said that he had an argument with Melinda regarding her having a boyfriend. He confronted her twice about the matter. During the first confrontation, Melinda got mad and walked out. On the second instance, Melinda answered back, prompting him to hit her with a belt. Melinda left the house and stayed with her siblings.[16] After three weeks, he learned that a complaint has been filed against him. [17] He also said that Melinda might have filed the complaint because of the prodding of his mother-inlaw, Melindas grandmother who spoils her and provides for all her needs. He said that his mother-inlaw detested him because she did not want her daughter, Mila, to marry him. She allegedly wanted a wealthy husband for Mila. He also stated that he had a previous altercation with his mother-in-law regarding the latters alleged extramarital affair. As a result, his mother-in-law filed a complaint against him before the Barangay Captain. The Barangay Captain, however, ruled in his favor.[18] Domingos testimony was corroborated by his wife, Mila.[19] The trial court found Domingo guilty of all the charges and sentenced him to seven death penalties and ordered him to pay private complainant the amount of P50,000.00 as moral damages. The dispositive portion of the Decision stated: WHEREFORE, the foregoing considered, this Court hereby finds accused DOMINGO DOGAOJO y MORANTE GUILTY beyond reasonable doubt of seven (7) counts of Rape defined and penalized under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, and hereby sentences him to suffer seven (7) DEATH penalties (one for each count) and to pay private complainant Melinda Dogaojo the amount of Fifty Thousand Pesos (P50,000.00) as moral damages. With costs.[20] In this appeal, accused-appellant raises the lone assignment of error: The trial court gravely erred in finding the accused guilty of seven (7) counts of rape despite the fact that the physical evidence failed to corroborate the charges.[21] Accused-appellant contends that Melindas testimony should not be given credence as it is not corroborated by physical evidence. He harps on the medico-legal report indicating that the hymen of the alleged victim is still intact. The Office of the Solicitor General, instead of filing an appellees brief, filed a manifestation and motion in lieu thereof. It is the position of the Solicitor General that the crime committed was merely attempted rape. It argues that although it was shown that accused-appellant has done several acts leading to the consummation of the crime, the prosecution failed to prove the element of carnal knowledge. It asserts that the evidence of the prosecution regarding carnal knowledge are conflicting. On one hand, Melinda testified that Domingo made a push and pull movement and she felt pain in her private part. On the other hand, the medico-legal report showed that there was no sexual contact as evidenced by the fact that the victims hymen was found to be intact. These conflicting evidence, it is argued, put to doubt proof of carnal knowledge.

We sustain the factual findings of the trial court. Accused-appellant was charged with qualified rape of an under-aged relative which is classified as heinous crime by Section 11 of RA 7659.[22] To convict the accused of the offense, the prosecution must allege and prove the ordinary elements of (1) sexual congress, (2) with a woman, (3) by force and without consent, and in order to warrant the imposition of death penalty, the additional elements that (4) the victim is under eighteen years of age at the time of the rape, and (5) the offender is a parent (whether legitimate, illegitimate or adopted) of the victim.[23] In the case at bar, the prosecution was able to prove the existence of all these elements beyond a shadow of doubt. The defense did not dispute the fact that Melinda is the daughter of accused-appellant and that she was only eleven years old at the time of the alleged commission of the offense. They did not present evidence refuting the testimony of Melinda that accused-appellant is her father [24] and that she was born an November 19, 1984.[25] In fact, in their testimonies, both Domingo and Mila Dogaojo referred to Melinda as their daughter.[26]Moreover, when asked in court about Melindas age, Domingo said that she was already fourteen (14) years old.[27] Melinda also recounted clearly and candidly how her father ravished her on seven occasions. We do not see any reason to doubt the veracity of her testimony which remained consistent and unwavering even on cross-examination. The Court has consistently adhered to the principle that the testimonies of child victims of rape are generally accorded full weight and credit, especially when no ill motive is shown to move her to testify falsely against the accused.[28] We are not convinced that Melinda, as the defense would like us to believe, filed the complaint against her father because of a previous altercation and because of the prodding of her grandmother. It would take the most senseless kind of depravity for a young daughter to fabricate a story which would send her father to death only because he scolded her or because they do not see eye to eye. A child, innocent and naive to the ways of the world, is not likely to accuse her own father of a very serious crime such as incestuous rape if it was not the plain truth, or if her motive was not purely to bring the offender to justice.[29] We disagree with the assertion of accused-appellant and the Solicitor General that the testimonial and the documentary evidence of the prosecution are conflicting. On the contrary, we find that the testimony of Melinda jibes with the medico-legal report submitted by Dr. Antonio Vertido of the NBI. The physical examination of Melinda revealed that her hymen is still intact. This is consistent with her testimony that her father lay on top of her for only a few minutes and that he was able to insert only a small portion of his organ into her genitalia. She also testified during cross-examination that she did not notice any bleeding in her private part after the various rape incidents, except after the fourth incident, which bleeding could have been caused by her monthly period which lasted for ten days. She testified thus: xxx
Q: A: Q: A:

xxx

xxx

And you are claiming that this penis of your father was inserted in your vagina? Yes, sir. What did you feel? Painful, sir.

Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

Did you feel that the full penis of your father was inserted in your vagina? No, sir. How deep did the penis of your father reach in your vagina? I do not know. But that was very painful as you mentioned? Yes, sir. He had just inserted konti lang po. But do (sic) you really feel pain? Yes, sir. But did you observe if there was blood on the first alleged rape? None. How about on the second time? None, sir. On the third? On the 4th, I noticed blood.[30]

xxx
Q: A: Q: A:

xxx

xxx

You mentioned also that you felt pain in this alleged rape? (referring to the third incident) Yes, sir. But you did not see blood? None, sir.[31]

xxx
Q: A: Q: A: Q:

xxx

xxx

So in this 4th incident, you mentioned you noticed blood also? The following morning. Not on the very moment? No, sir. And where did that blood come from?

A: Q: A:

I do not know. Where did you notice that blood? The following morning. I noticed that on my panty when I moved my (b)owel.[32]

xxx
Q: A: Q: A: Q: A: Q: A:

xxx

xxx

By the way, when you noticed blood in your panty, what did you do? I mentioned that to my mother. What did your mother ask you She told me that maybe that is menstruation. Did you not tell your mother about the alleged rape by your father? No, sir. So how long does (sic) that blood last? 10 days.[33]

xxx
Q:

xxx

xxx

So in this time, you did not notice any blood, did you notice any blood? (referring to the seventh incident) None, sir.[34]

A:

The absence of bleeding affirms the fact that the hymen has not been torn, thus the medical finding that Melindas physical virginity has been preserved. The lack of laceration in the hymen, however, is not incompatible with the fact of rape. Hymenal laceration is not an element of rape for even the slightest penetration of the labia by the male organ is equivalent to consummated rape. [35] Dr. Antonio Vertido admitted upon inquiry by the trial court that it is possible that the male organ touches the opening of the vagina and not cause laceration. He testified: xxx
Q: A:

xxx

xxx

In this particular case based on your finding it is possible that there was penetration? It is difficult to prove that there was a penetration because the hymen was intact. The or(i)fice is small and it (is) impossible (for) the average erect penis to penetrate. What about the slightest penetration? What do you mean slightest penetration, your Honor?

Q: A:

Q: A: Q: A:

Slightest penetration; what you are telling the Court is the full penetration of the penis. Well, the male penis touches the opening, your Honor, then sometimes it does not lacerate. So it is possible the penis touches the vagina? It is possible, your Honor.

xxx

xxx

xxx.[36]

We reject the theory of the Solicitor General that the crime committed was merely attempted and not consummated rape. Melinda categorically stated that her father inserted his organ into her vagina on all seven occasions of rape. She was certain that her father was able to penetrate her because she felt pain in her genitalia. This refutes the theory of the Solicitor General that there was no penetration of the male organ into the labia of the female organ, but merely a touching of its outer surface. The pain in Melindas private part could only be caused by the penetration, albeit slight, of the male organ into its opening, Our ruling in People vs. Palicte[37]finds application in the case at bar. We held in that case: The fact that there was no deep penetration of the victims vagina and that her hymen was still intact does not negate the commission of rape. According to Dr. Jose Ladrido, Jr., who has been in medicolegal cases since 1963 and has examined many rape victims, if the victim is a child, as in the case of Edievien, rape can be done without penetration. Without penetration the male organ is only within the lips of the female organ, and there is interlabia or sexual intercourse with little, none, or full penetration, although he admitted that it was also possible that there was no rape since the hymen was intact. In the case before us, Edievien repeatedly testified that the accused inserted his penis into her vagina for half an hour, as a consequence of which she suffered pain. This, at least, could be nothing but the result of penile penetration sufficient to constitute rape. Being a virgin, as found by the examining physician, her hymenal resistance could be strong as to prevent full penetration. But just the same, penetration there was, which caused the pain. For, rape is committed even with the slightest penetration of the womans sex organ. Mere entry of the labia or lips of the vagina, as in this case of Edievien, is sufficient to warrant conviction for consummated rape. In an attempted crime, the offender commences the commission of a felony directly by overt acts, but does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance.[38] A felony is consummated when all the elements necessary for its execution and accomplishment are present.[39] Rape under the first paragraph of Article 335 of the Revised Penal Code, as amended by RA 7659 is consummated when there is penetration, no matter how slight, of the victims genitalia under any of the circumstances enumerated therein.[40] The prosecution in this case has proven the consummation of the offense through the testimony of the victim which we find credible. Hence, we find that the trial court did not err in convicting accused-appellant of all the charges. We note, however, that the trial court awarded only P50,000.00 as moral damages to the victim, but failed to award civil indemnity. In line with prevailing jurisprudence, the civil indemnity ex delicto for the victim is P75,000.00 for each count of rape, aside from the moral damages in the amount of P50,000.00, likewise for each count of rape.[41] Furthermore, since the offender is the victims own father, we find an award of exemplary damages in the amount of P25,000.00 to be in order.[42]

Six members of the Court are of the view that the act committed by accused-appellant was attempted rape, not consummated rape. They hold that there was no evidence of sexual congress however slight. The victim, Melinda, testified that her father inserted his penis into her vagina a little causing pain. He made a push and pull movement while mounted on top of her for a few minutes (2-3 minutes) until a white substance came out of his organ. This fact shows that there was no penetration of penis into the female sex organ even slightly. Dr. Antonio S. Vertido, Medico-Legal Officer, NBI, declared when asked if it was possible that there was penetration of the victims vagina that it is difficult to prove that there was penetration because the hymen was intact. He admitted, though, that it was possible the penis touched the vagina. Touching by the penis of the opening of the vagina is not consummated rape, only attempted rape.[43] There is no physical evidence showing that the accuseds penis touched the pudendum.[44] True, entry of the penis into the lips of the said organ even without rupture or laceration of the hymen is enough.[45] In this case, however, the doctor testified that penetration was impossible because the orifice is small. In People vs. Bation,[46] the court held that it is essential that there be penetration of the female organ no matter how slight. There must be entry of the penis into the labia majora of the female victim, however slightly[47] or there is entrance of the male organ within the labia or pudendum of the female organ. [48] Although the rule is that when the victim cries rape, she says all constituting the commission of the offense. However, case law requires that the victims testimony must find support in the physical evidence. In this case, six members of the Court find that the physical evidence does not support the victims testimony. Four members of the Court maintain their position that Republic Act No. 7659, insofar as it prescribes the death penalty, is unconstitutional. Nevertheless, they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be accordingly imposed. IN VIEW WHEREOF, the Decision appealed from is AFFIRMED with the MODIFICATION that accused-appellant is ordered to indemnify the victim, Melinda Dogaojo, in the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages for each count of the offense charged and proved, and to pay her the amount of P25,000.00 as exemplary damages. In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of her pardoning power. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur. Buena, J., voted and participated in the deliberation of this case. ________________________________

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DOMINGO DELA CRUZ, accused-appellant. DECISION
GONZAGA-REYES, J.:

Accused-appellant Domingo dela Cruz was charged in two separate informations filed before the Regional Trial Court of San Carlos City, Pangasinan, Branch 57[1] for two (2) counts of rape punishable under Article 266-A of the Revised Penal Code. In Criminal Case No. SCC-2924, accused-appellant was charged, as follows: That on or about the 8th day of April 1998, at Barangay Alacan East, municipality of Malasiqui, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there willfully, unlawfully and criminally (sic) have sexual intercourse with Diana Lamsen y Escat, a minor 17 years of age, while the latter was unconscious or otherwise deprived of reason and under the custody of the accused and his wife, to her damage and prejudice.[2] In Criminal Case No. SCC-2925, the information against the accused reads: That on or about the 8th day of June 1998, at Barangay Alacan East, municipality of Malasiqui, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there wilfully, unlawfully and criminally (sic) have sexual intercourse with Diana Lamsen y Escat, a minor 17 years of age and under the custody of the accused and his wife, by means of force, threat or intimidation, to the damage and prejudice of said Diana Lamsen y Escat.[3] During the arraignment on both indictments, accused-appellant pleaded not guilty[4] to the said charges and, after pre-trial was terminated, trial on the merits ensued. The prosecution presented evidence that established the following facts and events: The complainant Diana Lamsen, at the time of the two alleged incidents of rape, was a seventeenyear old girl living with her aunt and guardian, Rosalina Lamsen, in Barangay Lepa, Malasiqui, Pangasinan. She was then a fourth year high school student at the Malasiqui National High School[5]. On 18 February 1998, her aunt, Rosalina Lamsen, and her uncle, a certain SPO1 Juan Lamsen, took complainant to the house of Virginia dela Cruz, a known faith healer in the municipality and the wife of accused-appellant. Complainant was then suffering from fainting spells and she often lost consciousness. Because allegedly the complainant was being possessed by bad spirits, it was decided that she was to stay at the house of Virginia dela Cruz for observation and treatment of her illness. [6] She eventually stayed at the house of the dela Cruz spouses until 22 June 1998. It was during this period that she was allegedly raped twice by accused-appellant. The first sexual assault allegedly occurred on 8 April 1998. That day, private complainant was feeling sick and so she went inside the chapel of Virginia dela Cruz for treatment. While inside the chapel, she lost consciousness. When she woke up, she felt something hard inside her private part. She then opened her eyes and it was then that she saw accused-appellant about to withdraw from her and put on his briefs. She then looked at herself and noticed that she was no longer wearing her panties. Before accused-appellant left, he allegedly threatened that he would kill her if she would report the incident[7]. The second incident allegedly happened in the early hours of 8 June 1998. The previous day, 7 June 1998, at around 7:30 p.m., complainant was not feeling well and she suffered from another fainting spell. When she regained consciousness, Virginia dela Cruz treated her by praying over her

and making her drink two bottles of Red Horse beer. After her treatment, she felt well enough to play bingo until 11:30 p.m[8]. After playing bingo, she again felt dizzy and so she proceeded to her room in the 2 nd floor of the house of accused-appellant. She then fell asleep. When she woke up, accused-appellant was already on top of her body and he was making a pumping movement. She tried to shout but accused-appellant covered her mouth with a towel with his right hand and held her shoulder with his left hand. Because of accused-appellants weight, she was not able to free herself. Afterwards, accused-appellant again threatened her with death if she would report the incident to anyone[9]. A few days after, accused-appellant approached the complainant while the latter was doing her assignment. He allegedly dictated to her and forced her to write a note to ensure that no one would believe her in case she reported the rape incidents. The contents of the note would make it seem that complainant and accused-appellant were having an illicit, but consensual, love affair. Because of her desire to go back home and due to her fear of accused-appellant, she did as she was told and wrote down what accused-appellant dictated to her[10]. On 22 June 1998, Rosalina Lamsen and SPO1 Juan Lamsen fetched complainant from the house of accused-appellant in order to bring her home. Accused-appellant and his spouse, the healer Virginia dela Cruz, were reluctant to let her go as, allegedly, she was not yet fully healed of her ailment. Despite the reluctance of accused-appellant and his wife, the complainant was able to go home to Barangay Lepa, Malasiqui, Pangasinan that same day[11]. Although she wanted to tell her guardians that same night about the rape incidents, her fear of accused-appellants threats to kill her prevented her from doing so. She finally told her aunt, Rosalina Lamsen, about her horrific ordeal at the hands of accusedappellant the following night[12]. She told them that the incidents of rape happened on 8 April 1998 and 8 June 1998. Rosalina Lamsen, at first, did not believe her and asked her whether she and accusedappellant had a consensual relationship. Complainant denied this and insisted that she was raped by accused-appellant. The following day, Rosalina Lamsen told her brother, SPO1 Juan Lamsen, about the accusations of complainant against accused-appellant[13]. SPO1 Lamsen then proceeded to the house of accused-appellant to confront him about these accusations. Allegedly, when asked about the incidents, accused-appellant admitted that he committed the rapes but that he was only tempted by complainant. He allegedly further said that he would just serve the time in jail[14]. Meanwhile, the complainant had the two incidents of rape blottered[15] at the Malasiqui Police Station where she also executed an affidavit[16] detailing her harrowing ordeal at the hands of accusedappellant. She also submitted herself to a physical examination at the hands of the medico-legal of the San Carlos General Hospital. The results of the medico-legal examination showed that there were old complete lacerations at the 3:00 and 8:00 positions of her sex organ[17]. The defense presented a different version of what transpired. While accused-appellant admitted previously having sexual intercourse with the victim, he claims that these were consensual as they were having an illicit affair. He denies, however, having had sexual intercourse with the complainant on the two dates mentioned in the informations[18]. In support of his claim that they were lovers, he recalled

particular instances where he and complainant accused-appellant were intimate and he produced a letter allegedly written by complainant confirming their relationship. The first incident allegedly occurred on 27 March 1998. On that date, at around 11:00 p.m., accused-appellant entered the bathroom of his house. When he was about to take a bath, the complainant Diana Lamsen suddenly entered the bathroom[19]. Apparently, accused-appellants older brother Tirso dela Cruz saw complainant enter the bathroom as Tirso loudly knocked on the bathroom door and shouted at them to get out of the bathroom as what they were doing was wrong. [20] Because of this, accused-appellant and complainant went out of the bathroom and proceeded to go their separate ways. On 4 April 1998, accused-appellant was sent by his wife to San Carlos City, Pangasinan in order to buy embutido. Diana went with him to San Carlos City and rode with him on the back of his tricycle. They proceeded to the house of accused-appellants father in Taloy, Pangasinan. In that house, Diana allegedly laid down her head on accused-appellants lap and told him that they should rest first. At that time however, accused-appellant and complainant still did not commit any overt act of intimacy[21]. On 17 April 1998, at around 5:00 p.m., while his wife and daughter were watching a procession, accused-appellant and complainant were alone in the house. Diana approached him and started to embrace and kiss him. They were interrupted when accused-appellants wife suddenly knocked at the door. Because of the interruption, Diana got angry and she slammed the door and kicked the chairs[22]. The next incident occurred on 10 May 1998. On that day, he borrowed the motorcycle of his brother, Oscar dela Cruz as he wanted to go to San Carlos City. The complainant accompanied him and rode with him on the back of the motorcycle. When they reached San Carlos City, they saw accusedappellants sister, Lydia, and accused-appellant told her not to mention to his wife that complainant accompanied him[23]. On 20 May 1998, accused-appellant mislead his wife into thinking that he was going to buy spare parts for his tricycle. Instead of buying the parts, accused-appellant and complainant allegedly met in Dagupan City where they proceeded to Bonuan. In Bonuan, they stayed in a cottage along the seashore where they had consensual sex. They stayed in the cottage for around two hours afterwhich, they went home[24]. On 26 May 1998, the complainant allegedly called up accused-appellant on the phone and told him that they should repeat their visit to Bonuan six days earlier. Accused-appellant refused and told her that Bonuan was too far. Complainant then suggested that they go to a certain Inawa Hotel or Lodge in Calasiao which she had previously visited with her former boyfriend. Accused-appellant agreed and fetched the complainant from her school. They then checked-in at the Inawa Lodge where they made love for about two hours[25]. The following day, or on 27 May 1998, accused-appellant, his wife and daughter, his brother Tirso, and the complainant, together with a few others, went to Bataan. Apparently, accused-appellants wife had a medical mission there and they were supposed to stay in Bataan for three days. While his wife was treating patients, accused-appellant went to the river by himself. Complainant followed him and she told him that she loved him and that he should separate with his wife. Complainant apparently

wanted to live-in together with the accused. Accused-appellant refused and told complainant that he was not yet prepared to leave his wife[26]. On 1 June 1998, the accused-appellant and the complainant had another opportunity to pursue their illicit love affair as the wife of accused-appellant had to go to Manila for a few days leaving their daughter behind. After his wife had left for Manila, accused-appellant and complainant proceeded to the masters bedroom of the house where again they had sexual intercourse[27]. The last sexual encounter allegedly occurred on 22 June 1998. On that day, Rosalina Lamsen and Juan Lamsen arrived at their house, as they wanted to bring complainant back to their home. While accused-appellants wife was talking with the two visitors, accused-appellant was in the kitchen fixing dinner. The complainant then entered the kitchen and told him that she was already going home and that he should give her a kiss. Accused-appellant did not answer and instead went to the bathroom. The complainant followed him inside the bathroom and proceeded to kiss and embrace accused-appellant and fondle his private parts[28]. Two days after the complainant had gone home, or on 23 June 1998, the complainant allegedly called-up accused-appellant. She told accused-appellant that she had inserted a letter for him inside her math book which she had left behind. Accused-appellant asked complainant why she left a note and she answered that he should read it and decide as her mommy was starting to get suspicious[29]. Accused-appellant was eventually able to find the letter[30] inserted between the pages of a math book[31] with the name of complainant written on one of the pages. The said letter was purportedly the third letter written by complainant to accused-appellant. Accused-appellant tore-up the other two for fear that his wife might read them[32]. On 25 June 1998, accused-appellant was surprised when SPO1 Juan Lamsen and other policemen came to his house. Juan Lamsen allegedly told him that it would have been better if he and the complainant had just eloped. Accused-appellant replied that it was not necessary for the two of them to elope as he was just tempted by the complainant. He denied ever saying that he was willing to go to jail for his crimes[33]. Accused-appellants version of the events was corroborated by the testimonies of his brother, Tirso dela Cruz, and his wife, Virginia dela Cruz. Tirso de la Cruz corroborated the account of the accused-appellant regarding the events which happened on 28 March 1998 where he allegedly caught accused-appellant and complainant inside the bathroom at the same time[34]. He likewise narrated the incidents in Bataan on 27 May 1998. He recalled that at the house of his brother-in-law in Bataan, the complainant always called accusedappellant dear whenever the wife of accused-appellant was not around. However, whenever Virginia dela Cruz was around, she always called accused-appellant Tiyo Boy.[35] For her part, Virginia dela Cruz testified on several incidents which, at first, seemed harmless and innocuous, but on hindsight confirmed the illicit affair between complainant and accusedappellant. She recalled incidents where complainant often threw tantrums whenever she and her husband became sweet to each other. She likewise claimed that she sometimes heard the complainant call her husband dear or mahal.

She likewise testified on the events which occurred after the complainant had left their place on 22 June 1998. The following day, she claimed that the complainant called her up at home and told her that she has seriously offended her. However, when she asked complainant what her offense was, the complainant did not answer and instead, put down the phone[36]. In the morning of 25 June 1998, the police went to their house and brought the accused to the police headquarters. That afternoon, the complainant, her guardian, Rosalina Lamsen, and her uncle, SPO1 Juan Lamsen went to their house to get the belongings of the complainant. The complainant allegedly approached her and asked for her forgiveness as the accused-appellant had not raped her. Complainant further told her that she was pursuing the case only because her guardian, Rosalina Lamsen, forced her to or else she would abandon her. The complainant further admitted to her that she loves accused-appellant and that she wanted to live with him[37]. On 21 June 1999, the court a quo rendered judgment[38] finding accused-appellant Domingo dela Cruz guilty of the two counts of rape. The dispositive portion of the decision is as follows: WHEREFORE, judgment is hereby rendered in the above charges as follows: 1. In Criminal Case No. SCC-2924, the court finds the accused Domingo dela Cruz guilty beyond reasonable doubt with the crime of RAPE as defined in and penalized by Article 266-A of the Revised Penal Code and (is) hereby ordered to serve the penalty of reclusion perpetua and to indemnify Diana Lamsen the sum of P50,000.00. 2. In Criminal Case No. SCC-2925, the court finds the accused Domingo dela Cruz guilty beyond reasonable doubt with the crime of RAPE as defined in and penalized by Article 266-A of the Revised Penal Code and (is) hereby ordered to serve the penalty of reclusion perpetua and to indemnify Diana Lamsen the sum of P50,000.00.[39] Hence, this appeal. In his appeal brief, accused-appellant assails the credibility of the complaining witness and faults the trial court in not taking into account the evidence that he presented. Thus, he asserts that the prosecution failed to prove his guilt beyond reasonable doubt. He likewise reiterates his defense that he and the complaining witness were lovers, and that there sexual congress was consensual. In reviewing the evidence in rape cases, the Court is guided by three (3) settled principles, namely: (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where two (2) persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense.[40] The credibility then of the complaining witness is of paramount importance. On this score it is doctrinally settled that appellate courts will generally not disturb the findings of the trial court. Its evaluation of the testimony of the witness is accorded the highest respect because the trial court is in a better position to decide the question of credibility of witnesses having heard their testimony and observed their deportment and manner of testifying during trial.[41] The recognized exceptions to this doctrine are when such evaluation was reached arbitrarily or when the trial court overlooked, misunderstood, or misapplied some facts or circumstances which could have affected the results of the case.[42]

After a careful perusal of the testimony of the witnesses in this case and a review of the findings and conclusions of the trial court, there is no justification to depart from this doctrine and apply its exceptions. We find no reason to overturn the findings of the trial court regarding the credibility of Diana Lamsen, the rape victim. In a straightforward and categorical manner, the complainant narrated her ordeal at the hands of accused-appellant without any serious or material contradiction. With respect to the first incident, she testified on how accused-appellant took advantage of her unconscious state in order to satisfy his lust. Thus: Q: In April 1998, do you recall of any unusual incident that happened to you?
A: Q: A: Yes, sir. What is that? On April 8, 1998 I was not feeling well and so I entered the chapel of kgd. Virginia dela Cruz alias Mahal so that she could treat me, sir. And so what happened? And it was there that I collapsed already, sir. When you regained consciousness after losing it, what happened or what did you notice, if any? When I woke up, I noticed something hard inside my private part and it was there when I saw Domingo dela Cruz already about to withdraw and that he was about to wear his brief, sir. What is that hard object that was in your private part that you feel (sic)? His penis, sir. You said, you saw him and thereafter, he was wearing his brief, what happened later on? I looked at myself and I noticed that I have no more panty, sir. What did you feel in your private part? Very painful, sir. Later on, what did you observe, if any, in your body? When he left already and when I wore my panty, when I woke up at dawn, my panty has blood, sir. With that incident, what did you do? Because of my fear and out of my fear because of his warning that and he said when you will report this, I will kill you, so I was helpless, sir.[43]

Q: A: Q: A:

Q: A: Q: A: Q: A: Q: A: Q: A:

Regarding the second incident, she likewise narrated how accused-appellant again took advantage of her unconscious state and how he used force and intimidation to consummate his criminal intent. Q: What happened on June 8, 1998?
A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: When I woke up, Domingo dela Cruz was on top of me and he was pumping, sir. Before that, tell us, where did you sleep? On June 7, 1998, I was not feeling well at around 7:30 p.m. and I collapsed then, sir. After collapsing, what did you notice when you regained your consciousness? Kgd. Virginia dela Cruz treated me and gave me Red Horse beer, sir. How many bottles of Red Horse beer? Two bottles, sir. What did she do with the contents of the bottles? She placed it inside a glass and had me treated, sir. What did you feel after that? I regained my feelings, sir. Now, tell us, what event transpired next? We still played bingo until 11:30, sir. After 11:30, what did you do or where did you go? I went upstairs, and I slept in the place where they used to allow me to sleep, sir. Before going to sleep, what was your feeling? I was feeling dizzy then, sir. After falling asleep and when you were awakened, what did you observe, if any? When I woke up, Domingo dela Cruz was already on top of my body and he was pumping on me, sir. Now, what did you do? I was about to shout but he covered my mouth with a towel with his right hand while his left hand was on my shoulder, so that although I wanted to free myself, I could not because he was heavy, sir. What happened afterwards?

Q:

A:

He told me again, not to make a report to anyone, or else he will kill me, sir.[44]

As correctly found by the trial court, private complainants narration of the events is more credible and real because it is more in accord with human experience and with the evidence presented, unlike accused-appellants version.[45] For one thing, it is not disputed that complainant suffered from fainting spells as this was the very reason why she was left by her guardians at the house of accusedappellant. And it is because of such fainting spells that accused-appellant was able to consummate his sexual assault on complainant. Moreover, we have often repeated that under no circumstance would a young Filipina of decent repute publicly admit that she has been criminally abused and ravished unless that is the truth.[46] Her lack of sophistication, coupled with the direct and simple manner in which she described her ordeal are likewise indicia of truthfulness.[47] In contrast, accused-appellants defense of denial and his invocation of the sweetheart theory fails to inspire belief. According to accused-appellant, he and complainant engaged in an illicit love affair from 27 March 1998 until her departure from his house on 22 June 1998. The affair allegedly happened because the complainant tempted accused-appellant by being sweet to him and embracing and kissing him. During the period of their affair, they allegedly made love or were sweet to each other in, among other places, the bathroom and sala in the house of accused-appellant, the living room in the house of accused-appellants father, various motels and lodges, and the bedroom of accusedappellant. Moreover, accused-appellant claims that during these instances, it was almost always complainant who initiated their amorous acts. This description and narration of accused-appellant of his alleged affair with complainant is quite hard to accept as true. It is difficult enough to give credence to his allegation that a seventeen (17) year-old barrio lass would consent to have an amorous affair with a married man almost twice her age. Appellant would want this Court to further believe that it was actually the complainant who was the aggressor and who initiated their romantic liaisons. Evidence to be believed must not only come from a credible source but must also be credible in itself such as one that the common experience and observation of mankind can approve as probable under the circumstances.[48] The Court has previously taken judicial cognizance of the fact that in rural areas in this country, young ladies by custom and tradition act with circumspection and prudence, and that great caution is observed so that their reputation remains untainted.[49] It is highly unbelievable that the complainant would have participated in, much less initiated these alleged romantic trysts. More so if you consider the fact that according to accused-appellant, there were instances when they made love under the very noses of their relatives and friends. Surely if there was indeed an illicit affair between the two, they could have been more circumspect and prudent in their choice of places for their sexual congress. In support of his sweetheart theory, accused-appellant presented the testimonies of his wife and brother-in-law and a letter allegedly written by complainant. With respect to the testimonial evidence of the defense, the trial court correctly ruled them out as they came from admittedly biased witnesses who did not want accused-appellant to go to jail. Moreover, the testimony of Tirso dela Cruz, accused-appellants brother, that he saw complainant follow accused-appellant into a bathroom together, even if true, did not confirm that there was indeed an amorous relationship between the two. The testimony of accused-appellants wife is even more suspect. According to her testimony, she had already seen signs that there was an illicit relationship between her husband and complainant and that, at one point, she was even directly asked by complainant if she was jealous of her.[50] If so, it is simply inconsistent with human nature that she merely ignored these signs and did not do anything to allay her suspicions. That the witness chose to

keep quiet and confront neither accused-appellant nor complainant about her suspicions merely confirms the untrustworthiness of her testimony. With respect to the letter, the existence of the same was sufficiently explained by complainant in her direct and rebuttal testimonies. The complainant does not deny writing the letter but she insists that she was forced by accused-appellant to write the same a few days before she left the house of accusedappellant. According to her, she obeyed the directions of accused-appellant because she was afraid of him and because of her desire to go home to her guardians. The explanation of accused-appellant is in full accord with her assertion that she was afraid of accused-appellant because of his threats to kill her. Moreover, if, as appellant insists, the letter is only one of three letters allegedly written by complainant, we are puzzled as to why accused-appellant kept this letter and chose to tear apart the other two[51]. We affirm the trial courts finding that accused-appellant failed to substantiate his sweetheart theory. Aside from the letter, the existence of which was successfully explained, there are no other letters or notes, photographs or mementos to evidence the alleged love relationship. It is apparent that the alleged affair was merely concocted by accused-appellant to exculpate him from any criminal liability.[52] Aside from his reliance on his sweetheart theory, accused-appellant likewise points out certain circumstances which, he argues, renders the charges of complainant unbelievable. Specifically, accused-appellant points to the circumstance that during the whole duration of the complainants stay at his house, complainant did not report or talk about the rape incidents to her guardian or to the authorities despite the numerous opportunities for her to do so and considering that her uncle was a member of the police force. Again we are not persuaded. The failure of complainant to immediately report the rape to her guardians or to the police authorities does not in this jurisdiction detract from her credibility, her hesitation and silence being attributable to her age, and the moral ascendancy and threats of accusedappellant.[53] It must be borne in mind that in the case at bench, the complainant was entrusted into the care of accused-appellant and his wife. As such, the threat made by accused-appellant that he would kill her of she reported the incidents to anyone was immediate and real for as long as she was in their custody. In fact, once she was no longer in the custody of accused-appellant, she immediately told her guardian about the incidents and reported the same to the police authorities. Her act of immediately reporting the crimes once the threat against her life had been lifted certainly adds to her credibility. In view of the foregoing, accused-appellants denial that he did not rape the complainant on the two dates mentioned in the informations must fail. It is axiomatic that denial is an extrinsically weak defense which must be buttressed by strong evidence of non-culpability to merit credibility.[54] In the absence of such strong evidence, the defense of denial cannot outweigh the positive and unequivocal narration of the complainant of her ordeal at the hands of accused-appellant [55]. In the case at bar, the complainant categorically pointed to accused-appellant as the author of the two crimes of rape perpetrated on her person on 8 April 1998 and 8 June 1998 in the house of accused-appellant. For his part, accused-appellant does not even deny that he was at home at the time two incidents occurred[56]. He merely denies having committed the same and, as a seeming afterthought, declares that he and complainant were lovers. As shown above, however, accused-appellant failed to discharge the burden of proving his sweetheart theory. The Court is thus morally convinced that accused-appellant is guilty of the two crimes of rape imputed to him by complainant.

Under Article 266-A of the Revised Penal Code, the crime of rape is committed, among others, by a man who shall have carnal knowledge of a woman when the offended party is deprived of reason or is otherwise unconscious or through force, threat or intimidation. In the case at bar, it was successfully proven that in both instances, accused-appellant took advantage of complainants state of unconsciousness in raping her. Additionally, in the rape which occurred on 8 June 1998, accusedappellant likewise threatened complainant with death and used force on her in consummating his crime. The trial court thus correctly convicted accused-appellant of two counts of rape and sentencing him to serve the penalty of reclusion perpetua for each count[57]. In addition to the trial courts award of civil indemnity of P50,000.00 for each count, we award to the victim, Diana Lamsen, moral damages in the amount of P50,000.00 for each count, without need for pleading or proof of the basis thereof. The fact that the complainant in rape has suffered the trauma of mental, physical, and psychological sufferings which constitute the basis for moral damages are too obvious to still require recital thereof at the trial by the victim since we assume and acknowledge such agony on he part as a gauge of her credibility.[58] WHEREFORE, accused-appellant Domingo dela Cruz is hereby found guilty beyond reasonable doubt of two (2) counts of rape and is sentenced to suffer the penalty of reclusion perpetua for each count. Accused-appellant is also ordered to pay the victim, Diana Lamsen, civil indemnity in the total amount of P100,000.00 or P50,000.00 for each count and moral damages in the total amount of P100,000.00 or P50,000.00 for each count. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.