Crim Cases

Republic of the Philippines
SUPREME COURT
Manila
G.R. No. 169642
EN BANC
design, and by means of force and intimidation, did then and there
wil[l]fully, unlawfully and feloniously lie and have sexual intercourse with
his daughter one [AAA], 14 years old, against the latters will and without
her consent, the rape was committed with grave abuse of
authority.4 (Underscoring supplied)
September 14, 2007
Criminal Case No. C-55121
PEOPLE OF THE PHILIPPINES, Appellee

vs.
ENRIQUE CEBALLOS JR. y CABRALES, Appellant.
DECISION
CARPIO MORALES, J.:
Enrique Ceballos Jr. y Cabrales1 (appellant) was charged with six counts
of rape, five on complaint of his minor daughter AAA, and one on
complaint of another minor daughter BBB. The Informations were filed on
November 23, 1998 and docketed as Criminal Case Nos. C-55119, C55120, C-55121, C-55122, C-55123 and C-57126 before the Regional
Trial Court (RTC) of Caloocan.
The accusatory portion of each of the informations follows:
That [in] February, 1998 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd
wil[l]fully, unlawfully and feloniously lie and have sexual intercourse with
That [in] March, 1998 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd
design, by means of force and intimidation, did then and there wil[l]fully,
unlawfully and feloniously lie and have sexual intercourse with
That [in] December, 1997 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused with lewd
wil[l]fully, unlawfully and feloniously lie and have sexual
intercourse with his daughter one [AAA], 14 years old2 , against the
latters will and without her consent, the rape was committed with grave
abuse of authority.3 (Underscoring supplied)
1
That on or about 5th day of November, 1998 in Caloocan City, Metro

Manila and within the jurisdiction of this Honorable Court, the abovenamed accused, with lewd design, and by means of force and
intimidation, did then and there wil[l]fully, unlawfully and feloniously lie
and have sexual intercourse with his daughter one [AAA], 14 years old,
against the latters will and without her consent, the rape was committed
with grave abuse of authority.7(Underscoring supplied)
That [in] January, 1998 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused with lewd
That on or about during the period from December 25, 1995 until July 16,
1998 in Caloocan City, Metro-Manila [sic] and within the jurisdiction of this
CRIM2 CASES
Honorable Court, the above-named accused, being then the father

of [BBB], a minor of 17 years old,8 with lewd design, and by means of
force and intimidation, did then and there wil[l]fully, [u]nlawfully and
feloniously lie and have sexual intercourse with one [BBB] against the
latters will and without her consent.9 (Underscoring in the original)
his chest, but to no avail. And while she cried, appellant again covered
her mouth.15
AAAs birth certificate shows that she was born on October 13,
198410 while BBBs shows that she was born on October 16, 1981. 11 At
the times material to the first five cases, CCC, appellants wife with whom
he has six children, was working abroad in Qatar.12
Criminal Case No. C-55121:
Culled from the evidence for the prosecution are the following respective
versions in the cases:
One nighttime in December 1997, AAA and four of her siblings were
sleeping at the second floor of their house in Caloocan City when their
father-herein appellant touched AAAs breast and vagina, catching her by
surprise. Appellant thereafter removed her short pants and underwear
and tried to insert his penis inside her vagina but failed, drawing him to,
while AAA was in a lying position, instead insert his finger inside her
vagina and mash her breasts. She boxed appellant but she was subdued
by him. And she cried, but appellant covered her mouth, rendering it
difficult for her to breathe. Appellant thereafter dozed off to sleep. 13
AAA did not report the incident as appellant had threatened that he would
kill the members of the family if she did. She had no opportunity to narrate
the incident to her older sisters because every time she was conversing
with them, appellant would send her away. And while she had the
opportunity to report to her classmates and teacher, she did not do so,
apprehensive that they might tease her.14
Also at nighttime sometime in January 1998, while AAA was sleeping with
her five siblings at the upper floor of their house, she was awakened as
appellant forcibly undressed her and again succeeded in inserting his
penis inside her vagina. She tried to resist appellants moves by boxing
CRIM2 CASES
Again, AAA did not narrate the incident to any of her siblings with whom
she often quarrelled in the discharge of household chores. 16
On the night of February 14, 1998, while AAA was sleeping with her
siblings, she was again awakened as appellant touched her vagina. He
removed her underwear, inserted a finger and then inserted his penis
inside her vagina. She resisted by boxing him but appellant held her
hands and told her to give in; otherwise, he would harm her. She was
frightened, but she did not cry anymore because she did not want
appellant to cover her mouth again to render her unable to breathe. 17
She did not also report the incident because appellant had warned her
against doing so.18
On March 26, 1998, three days before her graduation from grade school,
AAA was awakened as appellant took off her clothes and directed her to,
as she did, lie down on her side. With appellant at her back, he inserted
his penis inside her vagina. She could not offer any resistance, however,
on account of her position.19 While she initially cried, the fear that
appellant would again cover her mouth prompted her to stop. After
appellant ejaculated, he went to sleep.20
Every time appellant had sexual intercourse with AAA, he would be kind
to her the following morning; otherwise, she expected appellant to beat
her buttocks with a fiber glass object,21 the same object which he was
using to hit her brothers head.22
Asked by the defense counsel during cross-examination, on observing
her to be "aggressive" in answering the questions he was propounding,
whether that was "how [she] [had been] talking within the household,"
AAA replied in the negative, but explaining that her "aggressive" manner
was reflective of her anger at her father for the "ginawang kahayupan" to
her and her sister BBB "Ginahasa niya po kaming dalawa."23

On November 5, 1998, between two and three oclock in the morning,
appellant removed AAAs short pants and had sexual intercourse with her.
She offered no resistance as she was afraid that he would beat her again.
Besides, it would just be an exercise in futility. Appellant thereafter went to
sleep, while AAA put on her short pants and went downstairs to clean the
house.24
On November 19, 1998, AAA narrated to her classmates in high school
what she had been through. On November 21, 1998, SPO4 Bayani Feria
of the Northern Police District (NDP) who had in the meantime been
informed of AAAs plight, accompanied AAA to the NDP Headquarters
where she executed a sworn statement 25charging appellant, who was
soon after arrested, with rape.
At the Philippine General Hospital (PGH) where AAA was subjected to
medico-legal examination, AAA informed the resident doctor on duty at
the Emergency Room that she was raped several times by appellant. 26
bringing along her (BBBs) siblings. 32 At about two oclock in the morning
of even date, BBB was awakened to find appellant on top of her.
Appellant succeeded in inserting his penis inside her vagina, following
which he went to sleep.33
BBB did not inform her mother CCC about the incident before she left for
Qatar in May 1996 as she was threatened by appellant that he would kill
them, and he would create a scandal in the neighborhood. 34
After the rape on December 25, 1995, BBBs travails continued as
appellant raped her on the average of ten times every month and every
birthday of his on July 15 except his birthday in 1998, she having allowed
her boyfriend to sleep in their house. The following day, July 16, however,
appellant raped her.35
When BBB eventually learned that appellant had also raped her younger
sister AAA who even witnessed 36appellant having sexual intercourse with
her (BBB) to thus prompt her to instruct AAA not to tell anybody what she
had witnessed, she broke her silence.37
Dr. Bernadette Madrid of the PGH Child Protection Unit, who conducted
on AAA general physical and genital examination with the use of a
colposcope, an apparatus that enlarges the view of ones genitalia by 15
times and takes pictures of it, 27 found a deep cleft between 3 oclock and
4 oclock positions in AAAs hymen 28 and a healed laceration at her fossa
navicularis or "part of the genitalia beside or before the hymen." 29 In the
Provisional Medical Certificate30 which she issued, Dr. Madrid gave her
impression as follows:
While BBB was brought to a doctor for medical examination, she was no
longer examined as she was at that time already cohabiting with her
boyfriend.38
IMPRESSION
For the defense, appellant testified as did his mother DDD and sister
EEE.
Patient with a statement made at the Caloocan Police Station on Nov. 21,
1998. Physical findings are highly suspicious of sexual
abuse.31 (Emphasis and underscoring supplied)
3
By the account of CCC, mother of AAA and BBB, she left for Qatar on
May 17, 1996 and returned to the Philippines in November 1998; and
while her husband was in jail, he sent her and her children
letters39 through his mother DDD asking for forgiveness.40
Appellant declared that it was impossible for him to commit the acts
complained of as the family of his sister EEE was also living with
them41 and there were many other people in the house.

On December 25, 1995, after BBB arrived home from the church together
with her aunt, BBB learned that her mother CCC had left the conjugal
house and went to her parents house, after a quarrel with appellant,
CRIM2 CASES
With respect to the alleged rape of BBB on December 25, 1995, appellant
declared that he could not have committed it as he followed his wife and
children who earlier left that day for Pangulo, Malabon. 42
Appellant also denied having asked his wife and children for forgiveness
bearing on the acts complained of. If he had asked for forgiveness, it had
to do with his being strict with them and it was in fact on that account that
AAA filed the charges against him.43 As for BBB, he could not think of any
reason why she filed a case against him.44
Appellants mother DDD found it impossible too for appellant to rape his
daughters because of the presence of people in the house. 45 She
surmised that CCC could have instigated her daughters to file the
charges against him in view of his objection to her (CCCs) going abroad.
DDD claimed that AAA and BBB in fact usually went out of the house to
avoid being scolded by appellant, adding that she herself usually got mad
at the two since they could no longer help in the discharge of household
chores.46
Appellants sister EEE affirmed that her family used to live with appellant
and family during which she usually saw AAA and BBB being scolded by
appellant. She claimed that before CCC left for Qatar, she witnessed a
quarrel between CCC and appellant because of the hardheadedness of
their children. She tried to convince both AAA and BBB to withdraw the
charges against appellant but the two were adamant, apprehensive that
the withdrawal would infuriate their mother CCC and some of their
relatives.47
By Decision48 of October 14, 2002, the RTC of Caloocan City, Branch
128, found the testimonies of AAA and BBB "straightforward, categorical
and convincing" and accordingly convicted appellant of rape in all the
charges except that in Criminal Case No. C-55119 where it convicted
appellant only of acts of lasciviousness. The decretal portion of the trial
courts decision reads:
WHEREFORE, in view of all the foregoing, this Court hereby finds
accused Enrique Ceballos GUILTY beyond reasonable doubt for Acts of
4
Lasciviousness in Criminal Case No. C-55119, hereby sentencing
him to
suffer imprisonment of four (4) years, two (2) months and one (1) day to
six (6) years of prision correc[c]ional and for Criminal Cases Nos. C55120, C-55121, C-55122, C-55123 and C-57126, the Court finds the
accused GUILTY beyond reasonable doubt, for five (5) counts of
consummated rape, hereby sentences Enrique Ceballos to five (5) death
by lethal injection. He is further adjudged to indemnify [AAA] in the
CRIM2 CASES
amount of [P]50,000.00 as moral damages and [P]50,000 as exemplary

damages for count[s] of four (4) consummated rape. Further, Enrique
Ceballos is adjudged to indemnify [BBB] [P]50,000.00 as moral
damage[s] and [P]50,000.00 as exemplary damage[s][.]
The City Jail Warden of Caloocan City is hereby ordered to bring the
accused to the National Penitentiary in Muntinlupa City, to serve his
sentence.
Let the entire record of th[ese] case[s] be forwarded to the Supreme
Court for automatic review as mandated by law.49 (Italics supplied)
The records of the cases were forwarded to this Court for automatic
review where they were docketed as G.R. Nos. 155493-155498. Per this
Courts ruling in People v. Mateo,50 however, the cases were referred to
the Court of Appeals for appropriate action and disposition. 51
By the assailed Decision52 of July 20, 2005, the appellate court affirmed
with modification the decision of the trial court. It modified the duration of
the penalty imposed in Criminal Case No. C-55119, for acts of
lasciviousness, the amount of moral damages awarded in each rape case
which it increased to P75,000 from P50,000, and the amount of
exemplary damages in each rape case which it reduced to P25,000
from P50,000. Additionally, the appellate court awarded the amount
of P75,000 in each rape case as civil indemnity.
In modifying the penalty for acts of lasciviousness, the appellate court
explained:
The penalty for acts of lasciviousness is prision correccional. There being
no aggravating or mitigating circumstance alleged and proven in this
case, the penalty prescribed shall be imposed in its medium period, i.e.,
from 2 years, 4 months and 1 day to 4 years and 2 months. Applying the
Indeterminate Sentence Law, said penalty shall constitute the maximum
term, while the minimum shall be within the range of the penalty next
lower to that prescribed by the Revised Penal Code for the offense,
i.e., arresto mayor or 1 month and 1 day to 6 months. Appellant should,
therefore, be sentenced to suffer the penalty of 6 months of arresto
mayor, as minimum, to 4 years and 2 months of prision correccional, as
maximum.53 (Italics in the original; underscoring supplied)
Thus the appellate court disposed as follows:

WHEREFORE, the assailed decision of the Regional Trial Court of
Caloocan City, Branch 128, convicting accused-appellant Enrique
Ceballos of acts of lasciviousness in Criminal Case No. C-55119 and of
five (5) counts of rape in Criminal Cases Nos. C-55120, C-55121, C55122, C-55123 and C-57126 is AFFIRMED with MODIFICATION in that
in Criminal Case No. C-55119 for acts of lasciviousness, appellant is
sentenced to suffer the indeterminate prison term of 6 months of arresto
mayor, as minimum, to 4 years and 2 months of prision correccional, as
maximum. In addition to the moral damages awarded by the trial court
which is increased to [P]75,000.00 and exemplary damages which is
hereby reduced to [P]25,000.00, civil indemnity in the amount of
[P]75,000.00 is awarded to the victims, in each of the five (5) counts of
rape.54 (Emphasis and italics in the original)
The cases are now before this Court for final review and have been given
one docket number.
By Resolution of November 8, 2005, 55 this Court required the parties to
simultaneously submit Supplemental Briefs if they so desired. Both
parties filed their respective Manifestations 56 that they were no longer
filing supplemental briefs.
In rape cases, the credibility of the victim is almost always the single most
important issue.57 If the testimony of the victim passes the test of
credibility, which means it is credible, natural, convincing, and consistent
with human nature and the normal course of things, the accused may be
convicted solely on that basis.58
In its Decision, the trial court observed:
. . . Though inherently shy, [AAA and BBB] displayed an air of confidence
and sincerity in their narration. Their testimony was straightforward,
categorical and convincing. Showing no signs of remorse,5 they braved
the embarrassment and stigma of a public trial, came forward and
courageously revealed the dastardly acts of their own father. At some
points during the taking of their testimony, when they were narrating the
rape committed on their person by their own father, both cried. This
emotional condition displayed by the sisters is evidence of the veracity of
CRIM2 CASES
their claim. The Court sees no reason at all to doubt their narration of
what happened during the instances they were defiled by the accused,
and no reason at all why these two young sisters would impute so grave a
crime as rape against their own father, if the same were not true.
Indeed, it would be the height of depravity for the two sisters who have no
experience of sexual perversity to concoct a scenario that would lead
their father on the death row and in the process, drag themselves and the
rest of the their family to a lifetime of ridicule and shame. 59 (Emphasis and
underscoring supplied)
The observations of the trial court, which are substantiated by the records
of the cases, deserve the respect of appellate courts. Apropos is the
following observation of this Court in People v. Briones:60
. . . [A] daughter would not accuse her own father of a serious offense like
rape, had she really not been aggrieved. Her testimony against him is
entitled to greater weight, since reverence and respect for elders is too
deeply ingrained in Filipino children and is even recognized by law. . . .
That she would accuse her own father of this heinous crime had she not
been aggrieved would be absurd.61 (Underscoring supplied)
Appellants argument that the acts complained of could not have been
committed due to the presence of other people fails. As repeatedly held
by this Court, lust is no respecter to time and place. The nearby presence
of the relatives of the victim, 62 the cramped condition of the room, the
presence of other people therein, or the high risk of being caught, have
been held as not sufficient and effective to deter the commission of
rape.63
As for appellants allegation that AAA and BBB falsely charged him as he
was strict and had had quarrels with his wife CCC, the same was
correctly brushed aside by the appellate court as "puerile and . . . too
flimsy to merit even scant consideration." Indeed, People v.
Bidoc64 teaches:
. . . [P]arental punishment or disciplinary chastisement is not enough for a
daughter in a Filipino family to falsely accuse her father of rape. She
would not subject herself to an examination of her private parts, undergo
the trauma and humiliation of public trial, and embarrass herself with the
need to narrate in detail how she was raped if she was not in fact raped. It
takes depravity for a young girl to concoct a tale of defloration, which
would put her own father on death row, drag herself and the rest of her
family to a lifetime of shame, and make them the object of gossip among
their classmates and friends.65 (Underscoring supplied)1wphi1
One of appellants letters, Exhibit "L," dated July 13, 1999, sent to CCC
and children, which reads in part:
. . . Nalulungkot ako sa mga pangyayari sa ating buhay. Sana matanggap
niyo na ito sa sarili ninyo at mapatawad na ninyo ako sa aking
kasalanang nagawa. Siguro naman alam naman niyo na hindi naman
ako likas na masama. Kung nagawa ko man iyong mga bagay na iyon
dala na rin ng naging kahinaan ko. Lahat naman tayo ay nagkakamali
at ang nangyari sa akin ay kinamuhian ko rin ang aking sarili sapagkat
hindi ko alam matagal akong nabilanggo sa bisig ng diyablo na siyang
tunay na may kagagawan sa pagwasak sa buhay natin. Alam niyo lahat
ng kasalanan ng nagagawa ng tao ay simbuyo ng damdamin na inutos ng
diyablo na di natin napaglalabanan sapagkat wala sa puso natin si Cristo.
Alam mo siguro na nangarap din ako sa buhay natin. Lahat ay ginawa ko
para sa inyo naging mabuti rin akong ama. Inaamin ko na akoy
nalulong sa bawal na gamut at ito rin ang naging dahilan kaya ako
nakagawa ng di ko gusto. Patawarin niyo ako kung di ko kayang
aminin sa korte ang kasalanan ko . . .66 (Emphasis supplied)
in fact strongly reflects his admission of guilt to thus negate his professed
innocence.
The offenses of rape subject of Criminal Case Nos. C-55120, C-55121,
C-55122 and C-55123 having been committed in 1998, appellant should
have been charged under Article 266-A of the Revised Penal
Code.67Republic Act (R.A.) No. 835368 ("Anti-Rape Law of 1997")
introduced Articles 266-A, 266-B, 266-C and 266-D on Rape, and
effective October 22, 1997, rape was reclassified as a crime against
persons.
6
Since, as the Office of the Solicitor General observes, "the acts
constituting the crime of rape and its qualifying circumstances as averred
in the information in each of said cases, which were all filed under the
then Article 33569 of the Revised Penal Code, as amended by R.A. No.
7659, are substantially the same as those required to be stated under
CRIM2 CASES
Articles 266-A, paragraph 1, and 266-B70 of the said Code," appellants

right to be informed of the charges against him was not violated. 71
Appellants conviction in Criminal Case No. C-55119, for acts of
lasciviousness,72 is in order. While under R.A. No. 8353, which was, as
reflected above, already in effect when the criminal act was committed in
December 1997, the act of inserting a finger into anothers genital is
penalized as rape by sexual assault under paragraph 2 of Article 266-A of
the Revised Penal Code, the Information charged appellant with rape still
under Article 335 of the Revised Penal Code.
Thus, appellant cannot be convicted of rape by means of sexual assault
even if it was established that he inserted his finger into the vagina of
AAA. To do so would violate his constitutional right to be informed of the
nature of the charge against him. It bears noting, however, that the crime
of acts of lasciviousness is necessarily included in the crime of rape. 73
The appellate court, however, erred in finding that no aggravating
circumstance was alleged and proven in the case for acts of
lasciviousness. Relationship, which was alleged in the information and
admitted by appellant,74 is under Article 1575 of the Revised Penal Code
(alternative circumstances) aggravating in acts of lasciviousness. 76
Under Article 336 of the Revised Penal Code, the penalty for acts of
lasciviousness is prision correccional. Appreciating relationship as an
aggravating circumstance and applying the Indeterminate Sentence Law,
appellant should suffer an indeterminate prison term of six (6) months
of arresto mayor as minimum, to six (6) years of prision correccional as
maximum.77 Further, the amount of P30,000 as moral damages may be
awarded to the victim.78
The award of exemplary damages in acts of lasciviousness is also
justified under Article 2230 of the Civil Code, 79there being an aggravating
circumstance. This Court finds the amount of P2,000 reasonable for the
purpose.80
Going back to the charges for rape in Criminal Cases Nos. C-55120, C55121, C-55122, C-55123 and C-57126 in which appellants guilt beyond
reasonable doubt is affirmed, in view of the enactment of R.A. No. 9346,
"An Act Prohibiting the Imposition of Death Penalty in the Philippines," the
death penalty can no longer be imposed. Appellant must thus be

sentenced to suffer the penalty of reclusion perpetua, without eligibility for
parole.81
WHEREFORE, the assailed July 20, 2005 Decision of the Court of
Appeals is AFFIRMED with MODIFICATION.
In Criminal Case Nos. C-55120, C-55121, C-55122, C-55123 and C57126, in lieu of the death penalty, appellant, ENRIQUE CEBALLOS, JR.
y CABRALES, is sentenced to suffer the penalty of reclusion
perpetua, without eligibility for parole, and to pay the victim AAA in each
of the first four cases and the victim BBB in the last case P75,000 as
moral damages, P25,000 as exemplary damages, and another P75,000
as civil indemnity.
In Criminal Case No. C-55119, appellant is sentenced to suffer the
penalty of Six (6) Months of arresto mayor as minimum, to Six (6) Years
of prision correccional as maximum, and to pay the victim AAA P30,000
as moral damages and P2,000 as exemplary damages.
TINGA, J.:
For automatic review is the decision 1 of the Court of Appeals (CA) dated
28 April 2006, affirming with modification the decision 2 of the Regional
Trial Court (RTC) of Santa Cruz, Laguna, Branch 28, 3 dated 27 December
2000, finding him guilty beyond reasonable doubt of two (2) counts of
qualified rape and one (1) count of acts of lasciviousness.
In three (3) separate Informations4 for Criminal Cases No. SC-7422, SC7423 and SC-7424 all dated 16 June 1999, appellant was indicted before
the RTC for three (3) counts of qualified rape against his minor daughter
AAA.5 The accusatory portions in all the Informations are identical, except
as regards the date of commission of the crime. The Information in
Criminal Case No. SC-7422 reads:
At the instance of the private complainant [AAA] with the conformity of her
mother [BBB]6 in a sworn complaint filed with the Municipal Circuit Trial
Court of Lumban-Kalayaan (Laguna), the undersigned Assistant
Provincial Prosecutor of Laguna hereby accuses ALVIN ABULON Y
SALVANIA, of the crime of "RAPE," committed as follows:
No pronouncement as to costs.
"That on or about March 14, 1999, in the Municipality of Kalayaan,
Province of Laguna, and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd designs, with grave abuse of
confidence or obvious ungratefulness, and with force and intimidation, did
then and there wilfully [sic], unlawfully and feloniously have carnal
knowledge of his legitimate minor daughter, [AAA], who at the [sic] time
was thirteen (13) years of age, against her will and consent and to her
damage and prejudice."
SO ORDERED.

SUPREME COURT
Manila
CONTRARY TO LAW.
EN BANC
G.R. No. 174473
August 17, 2007
THE PEOPLE OF THE PHILIPPINES, Appellee,

vs.
ALVIN ABULON y SALVANIA, Appellant.
DECISION
CRIM2 CASES
After appellant pleaded not guilty, trial ensued with AAA herself, as the
first prosecution witness, testifying to the following facts:
AAA is the oldest of five (5) legitimate children born to appellant and BBB.
On 14, 15, and 16 March 1999, appellant raped AAA. The first rape
incident occurred at around 1:30 in the morning of 14 March 1999. AAA
was home, fast asleep next to her brother and sister when she suddenly
woke up to the noise created by her father who arrived drunk, but who
likewise soon thereafter returned to the wedding festivities he was

attending. Abiding by their fathers instructions, AAA and her siblings went
back to sleep.7
AAA was next awakened by the weight of her father lying naked on top of
her. Appellant had removed her underwear while she slept. He poked a
knife on AAAs waist and threatened to kill her and her siblings if she
reported the incident to anyone. She begged him to stop but he
proceeded to kiss her mouth, vagina, and breast, and to have carnal
knowledge of her.8 Although they witnessed the ongoing ordeal, AAAs
siblings could do nothing but cry as appellant likewise poked the knife on
them.9 The following morning, AAA found a whitish substance and blood
stains on her panty.10
On 15 March 1999, at around 10:30 in the evening, AAA and her siblings
were awakened as appellant came home drunk. He told them to eat first
as they had not taken their supper yet. After dining together, appellant left
and AAA, her brother, and her sister went back to sleep. 11 As in the
previous evening, appellant roused AAA in mid-sleep. This time, she
woke up with her father holding her hand, covering her mouth and lying
on top of her. He undressed AAA, then mounted her. Repeatedly, he
inserted his penis into her vagina, and AAA felt pain in her private parts.
Appellant also kissed and fondled AAA on different parts of her body.12
Again, AAAs siblings could only cry as they saw appellant rape their
sister. AAAs sister, however, took a pen and wrote her a note which
read: "Ate, let us tell what father was doing to the police officer." After
appellant had raped AAA, the latters sister asked their father why he had
done such to AAA. In response, appellant spanked AAAs sister and
threatened to kill all of them should they report the incidents to the
police.13 The sisters nonetheless related to their relatives AAAs
misfortune, but the relatives did not take heed as they regarded appellant
to be a kind man.14
The third rape episode happened at around 3:30 in the morning
of 16
8
March 1999. Although appellant did not insert his penis into AAAs vagina
on this occasion, he took off her lower undergarments and kissed her
vagina.15On cross-examination, AAA asserted that her father inserted his
tongue into the hole of her vagina and she felt pain because of this. 16
CRIM2 CASES
To corroborate AAAs testimony, the prosecution presented BBB and

AAAs 6-year old brother CCC. 17 BBB testified that she was a stay-in
housemaid working in Las Pias on the dates that her daughter was
raped by appellant. On 26 March 1999, she went home and stayed with
her family. However, it was only on 4 May 1999 that BBB learned of the
rape, when CCC told her that appellant had raped AAA three (3) times
and that he had seen his father on top of his sister during those
occasions. BBB then verified the matter with AAA herself, and the latter
affirmed the incidents. BBB thus took AAA with her to the barangay and
police authorities to report the incidents, and later to the provincial
hospital for medical examination.18
CCC testified that on three (3) separate occasions, he saw his father lying
naked on top of AAA, who was likewise naked.19
The prosecution also presented SPO1 Bayani G. Montesur (SPO1
Montesur) and Dr. Gloria Cabael (Dr. Cabael). SPO1 Montesur identified
the Police Blotter of 4 May 1999 which recorded the complaints of rape
against appellant and the report of the latters arrest. 20 Dr. Cabael, on the
other hand, testified that she examined AAA on 4 May 1999 upon the
request of Police Officer Gallarosa. She identified the Rape Case Report
she prepared thereafter.21
Appellant testified as the sole witness on his behalf, proffering denial and
alibi as his defenses. According to appellant, he was hired by his aunt,
Raquel Masangkay, to deliver hogs and that at 1:30 in the morning of 14
March 1999, he was in Calamba, Laguna pursuant to such employment.
He averred that he went home at 7:00 in the morning of the following day
and thus could not have raped his daughter as alleged. 22 Likewise
denying the second rape charge, appellant testified that on 15 March
1999, he attended a wedding ceremony in Sityo Kalayaan, San Antonio,
Kalayaan, Laguna. He went home drunk at 6:00 that evening and
promptly went to sleep.23 Similarly, at 3:00 in the morning of 16 March
1999, appellant claimed to have been asleep with his children and could
not have thus committed the rape as charged.24
Finding that the prosecution had proven beyond reasonable doubt the
guilt of appellant of the crime of qualified rape in Criminal Case Nos. SC7422 and SC-7423 and the crime of acts of lasciviousness in Criminal
Case No. SC-7424, the RTC rendered a Consolidated Judgment against
appellant and sentenced him accordingly, thus:
WHEREFORE:
Under Criminal Case No. SC-7422, this Court finds the
accused ALVIN ABULON y SALVANIA GUILTY BEYOND
REASONABLE
DOUBT
as
PRINCIPAL
of
CONSUMMATED QUALIFIED RAPE as defined and
penalized under Article 335 of the Revised Penal Code,
as amended by Rep. Act No. 7639, otherwise known as
the DEATH PENALTY LAW, and hereby sentences him to
suffer the SUPREME PENALTY of DEATH and to
indemnify the offended party [AAA] the following sums:
P 75,000.00 - as civil indemnity
50,000.00 - as moral damages; and
50,000.00 - as exemplary damages.
REASONABLE DOUBT as PRINCIPAL of
CONSUMMATED QUALIFIED RAPE as defined and
penalized under Article 335 of the Revised Penal Code,
as amended by Rep. Act No. 7639, otherwise known as
the DEATH PENALTY LAW, and hereby sentences him to
suffer the SUPREME PENALTY of DEATH and to
indemnify the offended party [AAA] the following sums:
P 75,000.00 - as civil indemnity
50,000.00 - as moral damages; and
50,000.00 - as exemplary damages.
REASONABLE DOUBT as PRINCIPAL of ACTS OF
9
LASCIVIOUSNESS as defined and penalized under
Article 336 of the Revised Penal Code and hereby
sentences him to suffer the penalty of imprisonment for
SIX (6) MONTHS of ARRESTO MAYOR as MINIMUM to
SIX (6) YEARS of PRISION CORRECCIONAL as
MAXIMUM.
CRIM2 CASES
The accused is further ordered to pay the costs of the

instant three (3) cases.
SO ORDERED.25
With the death penalty imposed on appellant, the case was elevated to
this Court on automatic review. However, pursuant to this Courts ruling
in People v. Mateo,26 the case was transferred to the Court of Appeals.
On 28 April 2006, the appellate court rendered its decision affirming
appellants conviction, but with modification as to damages awarded to
the victim. The dispositive portion of the decision states:
WHEREFORE, the decision of the Regional Trial Court of Santa Cruz,
Laguna, Branch 28, in Criminal Case Nos. SC-7422 and SC-7423 finding
appellant Alvin S. Abulon guilty beyond reasonable doubt of the crimes of
qualified rape, and in Criminal Case No. SC-7424, finding appellant guilty
beyond reasonable doubt of the crime of acts of lasciviousness, are
hereby AFFIRMED.
The civil aspect of the case is MODIFIED to read: In Criminal Case Nos.
SC-7422-7423, the award of exemplary damages in the amount of
[P]50,000.00 is reduced to [P]25,000.00. In Criminal Case No. SC-7424,
appellant is ordered to pay the victim the amount of [P]30,000.00 as
moral damages. We affirm in all other respects.
Pursuant to A.M. 00-5-03-SC (Amendments to the Revised Rule of
Criminal Procedure to Govern Death Penalty Cases), which took effect on
October 15, 2004, this case is elevated and certified to the Supreme
Court for its automatic review.
SO ORDERED.27
In his Brief,28 appellant assails his conviction and imputes grave error to
the trial court for giving weight and credence to the testimony of AAA. In
particular, he makes capital of AAAs delay in reporting the incidents to
her mother. He likewise impugns the trial courts alleged bias in
propounding inappropriate leading questions to private complainant AAA.
Finally, he maintains that the Informations against him are defective as
they failed to allege the key element of force and/or intimidation. 29
We affirm the decision of the Court of Appeals with modifications.

The duty to ascertain the competence and credibility of a witness rests
primarily with the trial court, 30 because it has the unique position of
observing the witnesss deportment on the stand while testifying. Absent
any compelling reason to justify the reversal of the evaluations and
conclusions of the trial court, the reviewing court is generally bound by
the formers findings.31
In rape cases particularly, the conviction or acquittal of the accused most
often depends almost entirely on the credibility of the complainants
testimony. By the very nature of this crime, it is generally unwitnessed
and usually the victim is left to testify for herself. 32 Her testimony is most
vital and must be received with the utmost caution. 33When a rape victims
testimony, however, is straightforward and marked with consistency
despite grueling examination, it deserves full faith and confidence and
cannot be discarded. Once found credible, her lone testimony is sufficient
to sustain a conviction.34
The court a quo found the testimony of AAA in its entirety to be credible,
made in a candid, spontaneous, and straightforward manner and never
shaken even under rigid cross-examination.35 We agree that AAAs
narration of her harrowing experience is worthy of credence, thus:
A : I was still lying straight down, sir.

Q : How about your father in relation to you, where was he at the time you
woke up?
A : He was on top (nakadagan) of me, sir.
Court:
Q : Was he naked?
A : Already naked, Your Honor.
Q : How about you, do [sic] you have your clothes on?
A : I have [sic] my lady sando on, Your Honor.
Trial Prosecutor:
Q : Are [sic] you still wearing your panty when you were awakened?
Criminal Case No. SC-7422
A : No more, sir.
Trial Prosecutor:
Q : Tell us what happened at around 1:30 in the morning of March 11, [sic]
1999 to you?
A : My brother and sister and I were already asleep when my father who
was drank [sic] came home. We told him to just sleep. My father told us
that he would still return to the wedding celebration (kasalan).
10
xxxx
Q : What happened next when you continued sleeping?
A : I was awakened when I felt my father already on top of me, sir.
CRIM2 CASES
Q : Tell us exactly what was [sic] your position then at that time you woke
up?
xxxx
Q : What did your father do aside from placing his body on top of you?
A : He poked a knife on [sic] me, sir.
Court:
Q : Did he say something?
A : Yes, Your Honor.
Q : What did he say?
Trial Prosecutor:
A : He said that if he [sic] report her [sic] to anybody he would kill us, Your
Honor.
Q : From where did you feel that pain?

A : From my private part, sir.
xxxx
xxxx
Trial Prosecutor:
Q : Do you know if you know why you felt the pain on the lower portion of
your body?
Q : What else did he do aside from telling you "huag kang

magsusumbong"?
A : Yes, sir.
A : He also poked the knife on [sic] my brother and sister, sir.
Q : Please tell us if you know?
Q : They were already awakened at that time?
A : Something whitish coming out from it, sir.
A : Yes, sir.
Court:
Q : What else did he do aside from poking a knife on [sic] you and your
brother and sister?
Q : From where did it come from [sic]? That whitish substance?
A : No more, sir.
A : From my fathers private part, Your Honor.
Court:
Q : Why, what happened to the private part of your father?
Q : While your father according to you is [sic] on top of you, what did he
do if any?
A : I do not know, Your Honor.

Q : When you felt pain, what was your father doing then?
A : "Kinayog na po niya ako."

Q : What do you mean by telling [sic] "kinayog na po niya ako"?
A : He was moving, Your Honor.
11
Q : While your father was moving, what else was happening at that time?
A : I felt pain, Your Honor.
CRIM2 CASES
A : He repeated what he told [sic] previously not to tell to [sic] anybody.

Q : At that time, did you see the private part of your father?
Q : When you felt pain. Do you know what is [sic] happening to the private
part of your father?
Q : Aside from your mouth, what other part or parts of your body did he
kiss?
Q : What was happening?

A : On my private part, sir.
A : His private part stiffened or hardened (tumirik), Your Honor.
Q : When did he kiss you private part, before inserting his penis or after?
Q : Where was it placed if any?
A : After he inserted his penis, sir.
A : Into my private part, Your Honor.
Q : What other part of your body did he kiss?
Q : Did the private part of you father actually penetrate your vagina?
A : On my breast, sir.36
xxxx
Q : What did you feel at the time the penis of your father entered your
vagina?
A : It was painful, Your Honor.
TP. Arcigal, Jr.:
Q : At that time was your father making any movement?
Q : Now, you said that the second incident happened [on] March 15,
1999, am I correct?

A : Yes, sir.
Q : Will you describe the movement made by your father?
Q : And where and what time said [sic] second incident happened?
A : (Witness demonstrating an upward and downward stroke by placing
her right palm over her left hand)
A : 10:30 in the evening, sir, also in our house, sir.
Trial Prosecutor:
xxxx
Q : Did he kiss you?
Q : And what were you doing when your father returned at around 11:00
oclock in the evening?
A : Yes, sir.
12
A : We were all asleep, sir.

Q : In what part of your body?
Q : And how did you come to know that he returned at around 11:00 P.M.?
A : On my mouth, sir.
A : My father suddenly held my hand, sir.
CRIM2 CASES
Q : And because of that, you were awakened?
Q : Where?
A : Yes, sir.
A : Into my vagina, sir.
Q : And what happened when you were awakened because your father
held your hand?
Q : How did you come to know that the penis of your father was inside
your vagina?
A : He covered my mouth, sir.
A : I felt pain in my private part, sir.
Q : And after covering your mouth, what else did he do?
Q : And do you know why you felt pain in your private part?
A : He removed the lower portion of my clothes. "Hinubuan po niya ako."
A : Yes, sir.
xxxx
Q : Why?
Q : After removing your lady sando, what else did he do?

A : He laid himself on top of me, sir.
A : His private part . (Thereafter witness is crying while uttering words:

"I am afraid I might be killed by my father.") He held his penis into my
vagina. Thereafter, inserted it repeatedly into mine, sir.
xxxx
Q : And you were able to actually feel his penis inside your vagina?
Q : Now, what did he do to you when he was already on top of you?
A : Yes, sir. 37
A : He was "kinakayog niya po ako."
xxxx
Q : Aside from "kinakayog," what else did he do?
A : He kissed my breast, sir.
TP. Arcigal, Jr.:
Q : Aside from that, what else?
Q : Now, you said also that you were raped on March 16, 1999, am I
correct?
A : He likewise touched my private part, sir.
13
A : Yes, sir.
Q : When he was on top of you, do you know where was [sic] his penis at
that time?
Q : What time?
A : Yes, sir.
A : It was 3:30 oclock in the morning, sir.
CRIM2 CASES
xxxx
Court:
TP. Arcigal, Jr.:
Q : What about your upper garments at that time?
Q Now, how did it happen, that third incident?
A : He did not remove it, Your Honor.
A I was able to run downstairs but when I was about to open the door, he
was able to hold my dress, sir.
Q : What else did he do, aside from that?

A : Nothing more, just that.
Q : Was your father drunk at that time?

Q : After kissing your vagina, what else happened, if any?
A : Yes, sir.
A : He again poked the knife on us, Your Honor.
Q : How did you come to know?
Q : At that time, was your father naked or not?
A : His eyes were red and he was laughing at me while telling me: "It is
your end." (Witness crying while answering the question.)
A : Still with his clothes on, Your Honor.
Q : Now, what happened when your father was able to hold your dress?
xxxx
A : He carried me upstairs, sir.
Q : For clarification, what else, if any, did your father do after your father
kissed your vagina?
Q : Was he able to carry you upstairs?

A : Nothing more, merely that act, Your Honor.
A : Yes, sir.
Q : What did he do, if any, when you were upstairs?
Q : You mean your father did not insert his penis to [sic] your vagina
anymore?
A : He removed my panty and shortpants, sir.
A : No more, Your Honor.
Q : After removing your shorts and panty, what else did he do?
xxxx
A : No more but he kissed my vagina.
14
TP. Arcigal, Jr.:
Q : Which part of your vagina did he kiss?
Q : Now, what did he use in kissing your clitoris?
A : That part of my vagina with hold [sic].
A : His tongue, sir.
CRIM2 CASES
Q : How did you come to know that it was his tongue that he used?
A : It is because I saw him put out his tongue, sir.38
Verily, it is inconceivable and contrary to human experience for a
daughter, who is attached to her father by the natural bond of love and
affection, to accuse him of rape, unless he is the one who raped and
defoliated her.39 As we have pronounced in People v. Canoy: 40
It is unthinkable for a daughter to accuse her own father, to submit herself
for examination of her most intimate parts, put her life to public scrutiny
and expose herself, along with her family, to shame, pity or even ridicule
not just for a simple offense but for a crime so serious that could mean
the death sentence to the very person to whom she owes her life, had
she really not have been aggrieved. Nor do we believe that the victim
would fabricate a story of rape simply because she wanted to exact
revenge against her father, appellant herein, for allegedly scolding and
maltreating her.41
In stark contrast with AAAs convincing recital of facts, supported as it was
by the testimonies of BBB and CCC, are appellants uncorroborated and
shaky defenses of denial and alibi. Nothing is more settled in criminal law
jurisprudence than that alibi and denial cannot prevail over the positive
and categorical testimony and identification of the complainant. 42 Alibi is
an inherently weak defense, which is viewed with suspicion because it
can easily be fabricated.43 Denial is an intrinsically weak defense which
must be buttressed with strong evidence of non-culpability to merit
credibility.44
The records disclose that not a shred of evidence was adduced by
appellant to corroborate his alibi. Alibi must be supported by credible
corroboration from disinterested witnesses, otherwise, it is fatal to the
accused.45 Further, for alibi to prosper, it must be demonstrated that it was
physically impossible for appellant to be present at the place where the
crime was committed at the time of its commission. 4615
By his own
testimony, appellant clearly failed to show that it was physically
impossible for him to have been present at the scene of the crime when
the rapes were alleged to have occurred. Except for the first incident,
appellant was within the vicinity of his home and in fact alleged that he
was supposedly even sleeping therein on the occasion of the second and
third incidents.1avvphi1
CRIM2 CASES
Appellants contention that AAAs accusations are clouded by her failure

to report the alleged occurrences of rape is unmeritorious. To begin with,
AAA categorically testified that she told her fathers niece about the
incidents. However, the latter doubted her, believing instead that appellant
was not that kind of man. AAAs subsequent attempt to report the
incidents to the barangay turned out to be futile as well as she was only
able to speak with the barangay driver, who happened to be appellants
brother-in-law. She was likewise disbelieved by the latter. Her disclosure
of the rapes to a certain Menoy did not yield any positive result either.
Fearing for the lives of her grandparents, AAA decided not to tell them
about the incidents.47
A child of thirteen years cannot be expected to know how to go about
reporting the crime to the authorities. 48Indeed, We see how AAA must
have felt absolutely hopeless since the people around her were relatives
of her father and her attempts to solicit help from them were in vain. Thus,
AAAs silence in not reporting the incidents to her mother and filing the
appropriate case against appellant for over a month is sufficiently
explained. The charge of rape is rendered doubtful only if the delay was
unreasonable and unexplained.49 It is not beyond ken that the child, living
under threat from appellant and having been turned away by trusted
relatives, even accused by them of lying, would simply opt to just suffer in
silence thereafter. In People v. Gutierrez, 50 we held:
Complainants failure to immediately report the rape does not diminish her
credibility. The silence of a victim of rape or her failure to disclose her
misfortune to the authorities without loss of material time does not prove
that her charge is baseless and fabricated. It is not uncommon for young
girls to conceal for some time the assault on their virtues because of the
rapists threat on their lives, more so when the offender is someone whom
she knew and who was living with her.51
Appellant brands the trial judge as partial against him for propounding
leading questions to AAA. According to him, were it not for the lower
courts and the prosecutions biased leading questions, AAA would not
have proven the elements of the crimes charged.52
Appellants argument is not well-taken. It is the judges prerogative to ask
clarificatory queries to ferret out the truth. 53 It cannot be taken against him
if the questions he propounds reveal certain truths which, in turn, tend to
destroy the theory of one party.54 After all, the judge is the arbiter and
ought to be satisfied himself as to the respective merits and claims of

both parties in accord with the stringent demands of due process. 55 Also,
being the arbiter, he may properly intervene in the presentation of
evidence to expedite proceedings and prevent unnecessary waste of
time.56
Besides, jurisprudence explains that allegations of bias on the part of the
trial court should be received with caution, especially when the queries by
the judge did not prejudice the accused. The propriety of the judges
questions is determined by their quality and not necessarily by their
quantity and, in any event, by the test of whether the defendant was
prejudiced by such questioning or not.57 In the instant case, the Court
finds that on the whole, the questions propounded by the judge a quo
were but clarificatory in nature and that, concomitantly, appellant failed to
satisfactorily establish that he was prejudiced by such queries.
The matter of the purportedly defective Informations was properly
addressed by the Court of Appeals, pointing out that a close scrutiny of
the Informations would reveal that the words "force and/or intimidation"
are specifically alleged therein.58 Even if these were not so, wellestablished is the rule that force or intimidation need not be proven in
incestuous cases. The overpowering moral influence of a father over his
daughter takes the place of violence and offer of resistance ordinarily
required in rape cases where the accused is unrelated to the victim. 59
Now, we turn to the determination of the crime for which appellant under
the third charge is liable and the corresponding penalty therefor. In the
Brief for the People, the Office of the Solicitor General (OSG) argues that
all three (3) charges of rape, including the rape committed on 16 March
1999 subject of Criminal Case No. SC-7424, were proved beyond
reasonable doubt. The court a quo held that it was clear from the
evidence that appellant merely kissed the vagina of AAA and made no
attempt of penetration, meaning penile penetration, and for that reason
found him guilty of acts of lasciviousness only.60 Yet, in affirming the trial
court, the Court of Appeals did not find any categorical 16
testimony on
AAAs part that appellant had inserted his tongue in her vagina, stressing
instead that the mere probability of such insertion cannot take the place of
proof required to establish the guilt of appellant beyond reasonable doubt
for rape.61
CRIM2 CASES
The automatic appeal in criminal cases opens the whole case for
review,62 as in this case. Thus, this Court is mandated to re-examine the
vital facts established a quo and to properly apply the law thereto. The
two courts below were both mistaken, as we note that AAA unqualifiedly
testified on cross-examination to appellants insertion of his tongue into
her vagina, viz:
Court:
Q : On the third time you are [sic] allegedly raped, you said it happened at
3:30 in the morning of March 16, 1999.
A : Yes, sir.
Q : And you said yesterday that he did not insert his pennies [sic] to [sic]
your vagina on March 16?
A : Yes, sir.
Q : What he did is he kissed your vagina?
A : Yes, sir.
Q : For how long did he kiss your vagina?
A : Two minutes, sir.
Q : What did he actually do when he kissed your vagina?
A : He kissed my vagina, thereafter he laughed and laughed.
Q : You mean to tell the court when he kissed your vagina he used
his lips?
A : His lips and tongue, sir.
Q : What did he do?
A : He put out his tongue thereafter he "inano" the hole of my

vagina.
the same Code a new chapter to be known as Chapter

Three on Rape, to read as follows:
Court:
Article 266-A. Rape; When And How Committed. Rape

Is Committed
Q : What did your father do with his tongue?

A : He placed it in the hole of my vagina.
1) By a man who shall have carnal knowledge of a

woman under any of the following circumstances:
Q : Did you feel pain?
(a) Through force, threat, or intimidation;
A : Yes, sir.
(b) When the offended party is deprived of reason or

otherwise is unconscious;
Q : By just kissing your vagina you felt pain?
(c) By means of fraudulent machination or grave abuse of

authority; and
63
Notwithstanding the explicit testimony of AAA on the matter, this Court

cannot find appellant guilty of rape as proved, but of acts of
lasciviousness only. In reaching this conclusion, we take a route different
from the ones respectively taken by the courts below.
With the enactment of Republic Act No. 8353 (R.A. No. 8353), otherwise
known as the Anti-Rape Law of 1997, 64the concept of rape was
revolutionized with the new recognition that the crime should include
sexual violence on the womans sex-related orifices other than her organ,
and be expanded as well to cover gender-free rape. 65 The transformation
mainly consisted of the reclassification of rape as a crime against persons
and the introduction of rape by "sexual assault" 66 as differentiated from
the traditional "rape through carnal knowledge" or "rape through sexual
intercourse."
Section 2 of the law provides:
17
Sec. 2. Rape as a Crime Against Persons. The crime of

rape shall hereafter be classified as a Crime Against
Persons under Title Eight of Act No. 9815, as amended,
otherwise known as the Revised Penal Code.
Accordingly, there shall be incorporated into Title Eight of
CRIM2 CASES
(d) When the offended party is under twelve (12) years of

age or is demented, even though none of the
circumstances mentioned above be present.
2) By any person who, under any of the circumstances
mentioned in paragraph 1 hereof, shall commit an act of
sexual assault by inserting his penis into another
persons mouth or anal orifice, or any instrument or
object, into the genital or anal orifice of another person.
Paragraph 1 under Section 2 of R.A. No. 8353, which is
now Paragraph 1 of the new Article 266-A of the Revised
Penal Code, covers rape through sexual intercourse
while paragraph 2 refers to rape by sexual assault. Rape
through sexual intercourse is also denominated as "organ
rape" or "penile rape." On the other hand, rape by sexual
assault is otherwise called "instrument or object
rape,"67also "gender-free rape,"68 or the narrower
"homosexual rape."69
In People v. Silvano,70 the Court recognized that the
fathers insertion of his tongue and finger into his
daughters vaginal orifice would have subjected him to
liability for "instrument or object rape" had the new law

been in effect already at the time he committed the acts.
Similarly, in People v. Miranda,71 the Court observed that
appellants insertion of his fingers into the complainants
organ would have constituted rape by sexual assault had
it been committed when the new law was already in
effect.
The differences between the two modes of committing
rape are the following:
(1) In the first mode, the offender is always a man, while
in the second, the offender may be a man or a woman;
(2) In the first mode, the offended party is always a
woman, while in the second, the offended party may be a
man or a woman;
(3) In the first mode, rape is committed through penile
penetration of the vagina, while the second is committed
by inserting the penis into another persons mouth or anal
orifice, or any instrument or object into the genital or anal
orifice of another person; and
(4) The penalty for rape under the first mode is higher
than that under the second.
In view of the material differences between the two
modes of rape, the first mode is not necessarily included
in the second, and vice-versa. Thus, since the charge in
the Information in Criminal Case No. SC-7424 is rape
through carnal knowledge, appellant cannot be found
guilty of rape by sexual assault although it was proven,
without violating his constitutional right to be informed of
the nature and cause of the accusation against him. 18
However, following the variance doctrine embodied in
Section 4, in relation to Section 5, Rule 120, Rules of
Criminal Procedure, appellant can be found guilty of the
CRIM2 CASES
lesser crime of acts of lasciviousness. Said provisions

read:
Sec. 4. Judgment in case of variance between allegation
and proof. When there is a variance between the
offense charged in the complaint or information and that
proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused
shall be convicted of the offense proved which is included
in the offense charged, or of the offense charged which is
included in the offense proved.
Sec. 5. When an offense includes or is included in
another. An offense charged necessarily includes the
offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or
information, constitutes the latter. And an offense charged
is necessarily included in the offense proved when the
essential ingredients of the former constitute or form part
of those constituting the latter.
Indeed, acts of lasciviousness or abusos dishonestos are necessarily
included in rape.72
In light of the passage of R.A. No. 9346, entitled "An Act Prohibiting the
Imposition of Death Penalty in the Philippines," 73 the penalty of death can
no longer be imposed. Accordingly, the penalty meted out to appellant for
rape through sexual intercourse in Criminal Cases No. SC-7422 and SC7423 is reduced in each case from death to reclusion perpetua without
eligibility for parole.74 We affirm the conviction of appellant in Criminal
Case No. SC-7424 for acts of lascivousness but modify the penalty
imposed by the Court of Appeals instead to an indeterminate sentence of
imprisonment of six (6) months of arresto mayor as minimum to four (4)
years and two (2) months of prision correccional as maximum as neither
mitigating nor aggravating circumstances attended the commission of the
crime.
With respect to the civil liability of appellant, we modify the award in
Criminal Cases No. SC-7422 and SC-7423 in light of prevailing
jurisprudence. Therefore, appellant is ordered to indemnify AAA, for each
count of qualified rape, in the amount of P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary

damages.75 The award of damages in Criminal Case No. SC-7424 is
affirmed.
WHEREFORE, the Decision of the Court of Appeals in CA G.R. CR-HC
No. 01926 is AFFIRMED WITH MODIFICATIONS. In Criminal Cases No.
SC-7422 and SC-7423, appellant is found guilty beyond reasonable doubt
of the crime of qualified rape and sentenced to suffer the penalty
of reclusion perpetua without eligibility for parole and to pay the victim,
AAA, in the amounts of P75,000.00 as civil indemnity, P75,000.00 as
moral damages, and P25,000.00 as exemplary damages plus costs. In
Criminal Case No. SC-7424, appellant is found guilty of the crime of acts
of lasciviousness and sentenced to suffer the indeterminate penalty of
imprisonment for six (6) months of arresto mayor as minimum to four (4)
years and two (2) months of prision correccional as maximum, and to pay
AAA moral damages in the amount of P30,000.00 plus costs.
SO ORDERED.
SUPREME COURT
Manila
THIRD DIVISION
G.R. Nos. 148839-40
November 2, 2006
NAGKAHIUSANG MAMUMUO SA PICOP RESOURCES, INC.

SOUTHERN PHILIPPINES FEDERATION OF LABOR (NAMAPRI
SPFL), ARTEMIO Q. AVILA, ET AL., Petitioners,
vs.
THE HON. COURT OF APPEALS (Fifth Division) and PICOP
RESOURCES, INC., Respondents.
DECISION
19
VELASCO, JR., J.:

This Petition for Certiorari and Prohibition puts to use both Rules 45 and
65 of the Rules of Court, to reverse the March 7, 2001 Resolution 1 of the
CRIM2 CASES
Court of Appeals which enjoined the enforcement of the November 20,

2000 Writ of Execution2 of the Secretary of Labor and Employment; and
its July 4, 2001 Resolution3 which granted the writ of preliminary
injunction to respondent PICOP Resources, Inc. and likewise denied the
Motion for Reconsideration filed by petitioner.
Petitioner Nagkahiusang Mamumuo sa PICOP Resources Inc.,
Southern Philippines Federation of Labor (NAMAPRI-SPFL) 4 is the
recognized labor union of the rank and file employees in the paper mill
and plywood manufacturing plant of respondent Picop Resources, Inc.
(PICOP) located in Bislig, Surigao Del Sur in Mindanao. Respondent
PICOP is owned by Far East Cement Corporation, which operates the
paper mill and plywood manufacturing plant and was the former employer
of said employees.5
In 1997, PICOP suffered serious financial and operational problems that
led to a declaration of a temporary shutdown for six months. Doubting the
motives behind the short term closure, NAMAPRI-SPFL filed a Notice of
Strike with the National Conciliation and Mediation Board (NCMB)
Regional Office for CARAGA Region in Butuan City.6
On January 11, 1998, the NAMAPRI-SPFL members staged a strike by
picketing and barricading all roads leading to and from the premises of
PICOP. In order to protect its interests, PICOP filed on January 13, 1998
a Petition for Preliminary Prohibitory Injunction with the Fifth Division of
the National Labor Relations Commission (NLRC) located in Cagayan de
Oro City, which issued a Temporary Restraining Order (TRO) on January
14, 1998, enjoining the union to remove all obstructions, man-made
barricades, and to refrain from committing other acts that would prevent
the resumption of the normal business operations of the company.
Despite the NLRC directive, the NAMAPRI-SPFL members continued to
prevent ingress to and egress from the company premises. Due to such
unjustified defiance, respondent PICOP, on January 22, 1998, filed a
complaint with the NLRC to declare the strike illegal. 7
20
On January 27, 1998, PICOP filed a Petition for Assumption of

Jurisdiction8 over the labor dispute before the Office of the Secretary of
Labor and Employment. On January 28, 1998, the Labor Secretary saw
merit in the petition, assumed jurisdiction over the controversy, and
issued an Assumption Order, directing all the striking employees to lift
their picket and return to work. However, PICOP was required to accept
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the employees in the plywood division once the plant resumed operation,
and with respect to the Paper and Kraft divisions, all returning employees
should be admitted under the same terms and conditions prevailing
before the strike. In the same Order, the Petition for Preliminary
Prohibitory Injunction filed with the NLRC, and the Petition to Declare the
Strike Illegal filed with the NLRC Branch XI Regional Arbitration were
consolidated with the instant petition with the Labor Secretary.9
On February 21, 1998, respondent PICOP notified the Department of
Labor and Employment (DOLE) that effective March 31, 1998, it was
permanently shutting down the operations of its plywood plant, including
its administrative and support services. As a result, NAMAPRI-SPFL
members engaged in another strike and picketed PICOPs plant and mill
on March 8, 1998.
On March 31, 1998, PICOP dismissed the remaining workers and went
through with the permanent closure of the paper mill and plywood
manufacturing plant.
After the parties submitted their position papers, the Labor Secretary
issued the September 9, 1999 Order,10 the decretal portion of which
states:
WHEREFORE, in view of the foregoing, judgment is hereby rendered as
follows:
a. Declaring the temporary shutdown at the paper and plywood plants of
Picop Resources, Inc. legitimate and the temporary lay-off of the affected
workers therein likewise legal;
b. Declaring the permanent retrenchment of the workers at the plywood
plant and its administrative and support services valid;
c. Declaring the impeachment of Union President, Mr. Edgardo Diaz,
illegal;
d. Dismissing the NAMAPRI-Avila Groups 16 demands;
e. Dismissing the NAMAPRI-Avila Groups prayer for actual, moral,
exemplary damages and costs of litigation and attorneys [sic]; and
f. Ordering Picop Resources, Inc. to pay, if it has not yet done

so, separation benefits to all other workers at the plywood plant and its
administrative and support services who have been permanently
retrenched (emphasis supplied).
Pending resolution of the issue of illegal strike which is yet to be heard, all
the striking workers, except those already validly retrenched and paid
their separation pay, are directed to return to work within 24 hours from
receipt of this Order and Picop Resources, Inc. is hereby directed to
unconditionally accept back to work all striking Union officers and
members under the same terms and conditions prior to the strike. The
parties are directed to cease and desist from committing any act that may
aggravate the situation.
Atty. Lita Aglibut, Officer-in-Charge of the Legal Service, is hereby
designated as the Hearing Officer to hear and receive evidence on the
matter of illegality of the strikes within a period of thirty (30) days from
receipt of this Order and, thereafter, to submit a report/recommendation
within twenty (20) days from the termination of the proceeding.
The parties are further directed to submit their respective position papers
within ten (10) days from receipt of this Order.
SO ORDERED.11
On September 20, 1999, the NAMAPRI-SPFL registered a Motion for
Reconsideration of the aforequoted Order of the Labor Secretary. On the
other hand, PICOP also filed its Motion for Reconsideration on
September 21, 1999 questioning the reinstatement of the striking
employees. Both Motions for Reconsideration were rejected in the
November 5, 1999 Order, the fallo of which reads:
WHEREFORE, in view of the foregoing, the Motion for Reconsideration
filed by the NAMAPRI-Avila Group is hereby DENIED for lack of merit.
21
The Partial Motion for Reconsideration filed by Picop Resources,
Inc. is
likewise hereby DENIED. In view, however, of the clarification made
above, the Order dated September 9, 1999 is hereby MODIFIED, as
follows:
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Pending resolution of the illegal strike and the consequent termination

issues which are yet to be heard, all the striking workers, except those
already validly retrenched and paid their separation pay, are directed to
return to work within 24 hours from receipt of this Order. Picop
Resources, Inc. is hereby directed to unconditionally accept back to work
all striking employees, except those already excluded, under the same
terms and conditions prior to the strike. The parties are directed to cease
and desist from committing any act that may aggravate the situation.
Atty. Lita Aglibut, Officer-in-Charge of the Legal Service, is hereby
designated as Hearing Officer to hear and receive evidence thereon
within a period of thirty (30) days from receipt of this Order and,
thereafter, to submit a report/recommendation within twenty (20) days
from the termination of the proceeding.
The parties are further directed to submit their respective position papers
within ten (10) days from receipt of this Order.
The NAMAPRI-Avila Groups Urgent Manifestation and Motion to Cite in
Contempt is likewise DENIED, in view of the clarification.
SO ORDERED.12
Petitioner NAMAPRI-SPFL filed a petition for certiorari with the Court of
Appeals (CA) entitled Nagkahiusang Mamumuo sa Picop Resources, Inc.
Southern Philippines Federation of Labor (NAMAPRI-SPFL), Artemio
Avila, et al. v. Hon. Bienvenido Laguesma, et al. docketed as CA-G.R. SP
No. 56566 disputing the legality and proprietary of the September 9, 1999
and the November 5, 1999 Orders of the Labor Secretary. Not to be
outdone, respondent PICOP also filed a petition for certiorari with the CA
entitled PICOP Resources, Inc. v. Hon. Bienvenido Laguesma, et al. and
docketed as CA-G.R. SP No. 56204 assailing the same Orders issued by
the Labor Secretary.
Despite the pendency of these actions before the CA, petitioner
NAMAPRI-SPFL submitted a Motion to the Labor Secretary asking for a
writ of execution to implement the September 9, 1999 and November 5,
1999 Orders. This was granted by the Labor Secretary on July 5, 2000.
Consequently, on November 20, 2000, the Labor Secretary issued a Writ
of Execution13 directing the NLRC Sheriff to proceed to the premises of
PICOP to enforce its September 9, 1999 and the November 5, 1999

Orders. On November 29, 2000, Sheriff Edwin G. Manilag garnished the
funds of PICOP deposited with the BPI-Bislig branch in Bislig City,
amounting to PhP 51,170,198.42.14
Threatened, on December 14, 2000, PICOP filed an Urgent Motion for
Issuance of Temporary Restraining Order and/or Preliminary Injunction or
Mandatory Injunction with the appellate court in CA G.R. SP No. 56204.
Finding merit in the plea, the CA issued the March 7, 2001 Resolution,
the fallo of which reads:
WHEREFORE, in order not to render the instant petition moot and
academic and to preserve the rights of petitioner, the public respondents
are enjoined from enforcing the writ of execution issued on November 20,
2000, as well as the Order dated February 23, 2001.
Respondents are directed to show cause, within a period of ten (10) days
from receipt hereof, why the writ of preliminary injunction should not be
granted.
SO ORDERED.15
Petitioner NAMAPRI-SPFL asked the court a quo to reconsider the March
7, 2001 ruling, but the relief prayed for was declined in the July 4, 2001
CA Resolution. Worse, the CA decided to grant a writ of preliminary
injunction against petitioner contained in the fallo of the July 4, 2001
Resolution which we quote in toto:
WHEREFORE, private respondents motion for reconsideration and/or
motion to dissolve temporary order [sic] is DENIED for lack of merit.
Let a writ of preliminary injunction issue upon the posting by petitioner of
a bond in the amount of Fifty Million (P50,000,000.00) Pesos
22 to answer
for all damages which private respondents may sustain by reason of the
injunction if the Court should finally decide that it is not entitled thereto.
Petitioners motion for extension of thirty (30) days from June 5, 2001
within which to file its memorandum is GRANTED.
CRIM2 CASES
SO ORDERED.16
Aggrieved by the grant of injunctive writ, petitioner NAMAPRI-SPFL now
entreats the Court to overturn the assailed Resolutions of the CA.
The Issue
The main issue for consideration is whether the CA committed grave
abuse of discretion in the issuance of its March 7, 2001 and July 4, 2001
Resolutions.
On a procedural matter, respondent PICOP makes much of the
unconventional manner by which petitioner styles the instant action as
one under Rule 45 which is an appeal by certiorari from a CA decision to
the Supreme Court and simultaneously, also a special civil action under
Rule 65 based on alleged grave abuse of discretion in a decision of the
CA. However, in its Memorandum,17 NAMAPRI-SPFL clarified that it was
actually a petition under Rule 45.
We cannot give our imprimatur to this unorthodox strategy.
As a general rule, a party cannot file a petition both under Rules 45 and
65 of the Rules of Court because said procedural rules pertain to different
remedies and have distinct applications.18
Meanwhile, in Hanjin Engineering and Construction Co., Ltd., v. CA, we
held that the remedy of appeal under Rule 45 and an original action for
certiorari under Rule 65 are mutually exclusive and not alternative or
cumulative.19Thus, a party should not join both petitions in one pleading.
In Mercado v. Court Appeals, we held that "when a party adopts an
improper remedy," as in this case, "his petition may be dismissed
outright."20 We then further elucidated that:
Indeed, not infrequently, litigants and parties to a petition have invoked
liberal construction of the Rules of Court to justify lapses in its
observance. Hopefully, it is not simply a cover-up of their own neglect or
sheer ignorance of procedure. While indeed this Court has on occasion
set aside procedural irregularities in the interest of justice, it must be
stressed that liberality of construction of the rules should not be a
panacea for all procedural maladies. For this Court will not tolerate
wanton disregard of the procedural rules under the guise of liberal

construction.21
Petitioner however relented and decided to stick it out with Rule 45 as the
procedural rule to govern its petition.
22
As provided in Sec. 1, Rule 45, the petition for review must be from a
judgment or final order or resolution of the CA, Sandiganbayan, Regional
Trial Court, and other courts, whenever authorized by law. Since a petition
for review is a mode of appeal, the judgment, order, or resolution must be
one that completely disposes of the case or of a particular matter in it. It is
clear however, that the assailed March 7, 2001 and July 4, 2001 CA
Resolutions are merely interlocutory orders or provisional remedies. The
aggrieved party must await the final decision in the petition and then
appeal from the adverse judgment, in the course of which the party may
question the issuance of the interlocutory orders as errors of judgment. As
there was still no final judgment from the CA at the time of the filing of the
petition, then a petition for review under Rule 45 is not the appropriate
remedy.
However, when an interlocutory order is rendered without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or in
excess of jurisdiction, then a petition for certiorari, prohibition, or
mandamus under Rule 65 can be availed of depending on the
circumstances of each case. In the case at bar, granting arguendo that
petitioner NAMAPRI-SPFL instituted the instant petition under Rule 65 on
the ground that the CA rendered the disputed Resolutions with grave
abuse of discretion, still, the petition must fail because the CA did not
commit any grave abuse of discretion amounting to lack or excess of
jurisdiction.
In Toyota Motor Phils. Corp. Workers Association (TMPCWA) v. Court of
Appeals, we held:
In Placido Urbanes, Jr. v. Court of Appeals, we held that the23
matter of the
issuance of a writ of preliminary injunction is addressed to the sound
discretion of the trial court, unless the court commits a grave abuse of
discretion. Grave abuse of discretion in the issuance of writs of
preliminary injunction implies a capricious and whimsical exercise of
judgment that is equivalent to lack of jurisdiction or whether the power is
exercised in an arbitrary or despotic manner by reason of passion,
CRIM2 CASES
prejudice or personal aversion amounting to an evasion of positive duty or

to a virtual refusal to perform the duty enjoined, or to act at all in
contemplation of law. For the extraordinary writ of certiorari to lie, there
must be a capricious, arbitrary and whimsical exercise of power.
Section 1, Rule 58 of the Rules of Court, as amended, defines a
preliminary injunction as an order granted at any stage of an action prior
to the judgment or final order requiring a party or a court, agency or a
person to refrain from a particular act or acts. Injunction is accepted as
the strong arm of equity or a transcendent remedy to be used cautiously
as it affects the respective rights of the parties, and only upon full
conviction on the part of the court of its extreme necessity. As an
extraordinary remedy, injunction is designed to preserve or maintain the
status quo of things and is generally availed of to present actual or
threatened acts until the merits of the case can be heard. It may be
resorted to only by a litigant for the preservation or protection of his rights
or interests and for no other purpose during the pendency of the principal
action. It is resorted to only when there is a pressing necessity to avoid
injurious consequences, which cannot be remedied under any standard
compensation. The resolution of an application for a writ of preliminary
injunction rests upon the existence of an emergency or of a special
recourse before the main case can be heard in due course of
proceedings. 23
More so, in Civil Service Commission v. Court of Appeals, we held that
"[a]bsent a clear showing of grave abuse of discretion, the exercise of
judgment by the courts in injunctive matters should not be interfered
with."24
In the present case, petitioner NAMAPRI-SPFL miserably failed to
demonstrate even an iota of the alleged capricious and whimsical
exercise of judgment on the part of the court a quo. Without such
showing, the grant of the extraordinary writ of certiorari has no
basis.1wphi1 The monetary award to the NAMAPRI-SPFL members is
fully secured by the PhP 50 million bond posted by respondent PICOP.
The resort to Rule 45 is premature as petitioner could still question the
said interlocutory orders once the CA case has been decided on the
merits.
To write finis to this action, the March 7, 2001 and July 4, 2001 CA
Resolutions which enjoined the July 5, 2000 Labor Secretary Order were
maintained by the court a quo in its March 22, 2001 Decision in CA G.R.
SP No. 60586, the decretal portion of which reads:
WHEREFORE, premises considered, the present petition is hereby
GIVEN DUE COURSE and the writ prayed for [is] accordingly GRANTED.
Consequently, the Order dated July 5, 2000 of the then Secretary of
Labor and Employment Bienvenido E. Laguesma in "In Re: Labor Dispute
at Picop Resources, Inc.," docketed as OS-AJ-0002-98 (NCMB-RB13-11005-97) is hereby ANNULLED and SET ASIDE.
No pronouncements as to costs.
SO ORDERED.25
Upon review, the said March 22, 2001 CA Decision was affirmed by this
Court in NAMAPRI-SPFL-Avila Group v. NAMAPRI-SPFL-TRUGILLO
GROUP26 on September 12, 2001, the salient disposition of which is the
annulment of the July 5, 2000 Order of the Labor Secretary. In effect, the
legality of the two questioned CA Resolutions have been upheld and
affirmed. Evidently, this petition is now moot and academic. 27
WHEREFORE, the instant petition is hereby DENIED for lack of merit.
No costs.
SO ORDERED.
24

SUPREME COURT
Manila
SECOND DIVISION
CRIM2 CASES
G.R. Nos. 121213 and 121216-23
January 13, 2004
PEOPLE OF THE PHILIPPINES, appellee,

vs.
BUTCHOY DE LA TORRE and FE DE LA TORRE, appellants.
DECISION
TINGA, J.:
The present cases are remarkably different, if not altogether unique, in
two aspects. Appealed are nine (9) rape convictions of the same accused
for ravishing the same hapless young girl. And found guilty are a husband
and wife tandem.
Appellant-spouses Butchoy and Fe de la Torre were charged in nine (9)
separate Amended Complaints with rape committed during the months of
September, October and December 1992 in Barangay Tumarbong,
Roxas, Palawan. The victim, Baby Jane Dagot, was then only sixteen
(16) years old.
The first Amended Complaint dated February 23, 1994 charged the
appellants with rape as follows:
That on or about the 2nd week of September, 1992, at Barangay
Tumarbong, in the Municipality of Roxas, Province of Palawan,
Philippines, and within the jurisdiction of this Honorable Court, the
accused Butchoy de la Torre, in conspiracy and confederating with his
wife, Fe de la Torre, by means of force, threat and intimidation, did then
and there willfully, unlawfully and feloniously have carnal knowledge with
one BABY JANE DAGOT, a girl of 16 years of age against her will and
consent, to her damage and prejudice.
That Fe de la Torre is hereby accused as a co-principal for indispensable
25
cooperation in the commission of the crime by threatening Baby Jane
Dagot with a bladed weapon if ever said minor refused to submit to
perform a sexual act with Butchoy de la Torre.
CONTRARY TO LAW.1
CRIM2 CASES
The other Amended Complaints are similarly worded except for changes
in the dates of commission of the offenses. The second to the seventh
complaints charged the appellants with rape perpetuated in the remaining
weeks of the month of September as well as the whole month of
October.2 The last amended complaint charged the appellants with rape
in the second week of December 1992.3
The nine criminal cases were consolidated and joint trial conducted
before the Regional Trial Court of Palawan and Puerto Princesa City,
Branch 47. On March 2, 1995 Judge Eustaquio Z. Gacott, Jr. found the
appellants guilty of all nine (9) counts of rape charged in the
nine Amended Complaints and sentenced them to reclusion perpetua for
each count. They were also ordered to indemnify the complainant the
sum of P5,000.00 as actual damages and P90,000.000 as moral and
exemplary damages, and to pay the costs.
Appellant Fe de la Torre employed Baby Jane Dagot as housemaid in
July 1992 in Langogan, Puerto Princesa City, Palawan. After a weeks
stay in Langogan, Fe brought Baby Jane to New Buncag, Puerto
Princesa City. In September 1992, they transferred to Tumarbong, Roxas,
Palawan. It was in Tumarbong where Baby Jane first met Fes husband,
appellant Butchoy dela Torre.4
As recounted by Baby Jane, the initial rape incident occurred in the first
week of September 1992. She could not remember the exact date but in
that fateful night, as in previous nights, Baby Jane and the appellantspouses were asleep on the floor of the same bedroom. At around 12:00
oclock midnight, appellant Fe de la Torre woke Baby Jane and her
husband Butchoy. Baby Jane was surprised to see that Fe was holding a
lighted kerosene lamp and a scythe. 5 Fe ordered her husband to transfer
and lie beside Baby Jane. As appellant Butchoy did not comply, Fe
herself transferred so that Baby Jane was between her and Butchoy. Fe
put down the scythe and the lamp and proceeded to take Butchoys
clothes off and then Baby Janes. Butchoy offered no resistance but Baby
Jane objected and cried to no avail. Fe then ordered Butchoy to have sex
with Baby Jane. Baby Jane, fearful of the spouses and the dawning
realization of what would happen to her, could not ward off his advances.
Butchoy placed himself on top of Baby Jane, inserted his penis into her
vagina and did a push and pull motion. 6 Baby Jane felt pain. All the while,
Fe was standing beside them, holding the lamp and the scythe. 7 After the
sexual intercourse, Butchoy kissed her on the neck and fondled her
breasts.8 Baby Jane found it revolting but could not do much to refuse
him, as she was afraid of Fe. When Butchoy was finished, he threw her
clothes to her and got dressed. Baby Jane immediately put on her
clothes. She wanted to leave the room but Fe prevented her from doing
so.9 They all went back to sleep. Baby Jane could not sleep. The
following morning, Baby Jane saw that there was blood on her panty.10
The rape was repeated once a week from the second week of September
1992 on to the fourth week of October 1992. Baby Jane had her
menarche in the month of November 1992 and was spared from the
appellants abuse that month.11 However she was again raped in the
second week of December. This was to be the last. Baby Jane testified
that the subsequent rape incidents were carried out in the same manner
as the first.12 She felt pain during the first and second rapes, but did not
feel pain anymore in the succeeding rape incidents.13
In December 1992, Fe brought Baby Jane with her to Langogan. 14 When
Fe went out to check on her rattan business, Baby Jane was left alone in
the house. Baby Jane took the chance to slip out of the house and go to
her godmother Lucita Talamisan, who was then the barangay captain of
Langogan. She narrated her ordeal to her godmother.15 While Baby Jane
was at the barangay captains home, Fe arrived and told Baby Jane not to
report the matter. Fe threatened to twist the facts about the rape, that she
caught Baby Jane and her husband in the act and would file a complaint
against them.16
Baby Jane thereafter proceeded to her parents home and related to them
her abuse in the hands of the appellant-spouses. Her father brought her
to the police station in San Rafael, Puerto Princesa. They were advised to
have her medically examined. She underwent the medical examination on
February 1993 at the Provincial Health Office of Palawan conducted by
Dr. Joselito Vicente, Municipal Health Officer.17 The Medico-Legal
Certificate revealed the following:
External findings:
(-) signs of physical injuries
Pelvic examination:
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26
External findings = minimal distribution of pubic hair

Healed hymenal lacerations = 2:00 oclock
4:00 oclock
10:00 oclock
Vaginal vault admits one finger with ease18
The prosecution presented Dr. Marideth de Leon, Assistant Provincial
Health Officer, to testify on the findings of Dr. Joselito Vicente. Dr. de
Leon concluded from the healed lacerations that when Baby Jane was
examined, there had been sexual intercourse possibly two or three weeks
before the examination. Clearly there was previous insertion into the
vaginal canal, but she could not determine from the medical findings
when the first intercourse occurred.19
The appellant-spouses denied the allegations of rape. In their version of
the events, from September to October 1992, neither they nor Baby Jane
were in Tumarbong but were in Puerto Princesa instead. They stayed in
Tumarbong for less than a month. 20 Butchoy asserts that they stayed
there for only a week.21 Fe explains that they had to leave for Puerto
Princesa since her daughter-in-law gave birth in October 1992. When
they went to Puerto Princesa, they took Baby Jane with them. 22 In
Tumarbong, Baby Jane and the appellants slept in separate rooms
divided by a sawali wall. The appellants profess that they had no quarrel
with Baby Jane herself,23 but surmise that the imputations of rape against
them may have been instigated by Baby Janes father, Rafael Dagot.
Rafael Dagot was employed by appellant Fe dela Torre as a capataz in
her rattan business. She allegedly caught him stealing some of the rattan
and selling them to others without her consent. Fe claims that Rafael
asked for forgiveness and offered to have Baby Jane work for them as
their maid. She forgave him, allowed him to continue to work for her and
also employed Baby Jane as her maid. Rafael also allegedly owes them a
total of P11,500.00 in cash which he borrowed on May 1991. However
when Fe tried to collect from Rafael through the barangay captain, Rafael
allegedly transferred to another place and she no longer saw him. 24 The
appellants imply that Rafael filed the complaints for rape against them to
escape payment of his debt.25
The appellants also insist that Baby Jane was already married to one
Eddie Tabi when they took her as their maid. This explains why, according
to them, Baby Jane was no longer a virgin. 26
In this appeal, the appellants impute error to the trial court in believing
Baby Janes account of the supposed rape, and in not according them
their right to be presumed innocent. 27 The appellants proceed from the
theory that the alleged rape as narrated by the complainant is fantastic
and unbelievable. In Baby Janes narration, it was Fe who ordered
Butchoy to have sexual intercourse with Baby Jane. The appellantspouses argue that it is unnatural for a wife like Fe to intensely desire that
her husband have sex with their maid. There is no evidence of anything
wrong or unusual about the appellants marriage or their sexual habits
that would support the complainants story. Even assuming that the
sexual encounters had actually taken place, the appellants insist that the
prosecution failed to prove that they did so against Baby Janes will.
Evidence for the prosecution fails to explain how all nine rapes could
have occurred over a period of several months unless Baby Jane gave
her full cooperation. The appellants insist that the trial court merely relied
on the weakness of the evidence for the defense to convict them and
hence deprived them of their right to the presumption of innocence.
From the outset it should be noted that while the appellants assail the
credibility of the complainants testimony, they actually do not point to
specific inconsistencies or contradictions in her testimony. True, the trial
court relied solely on the testimony of the complainant regarding the rape
incidents, but the determinative question before the trial court was
whether the complainants testimony is credible.
The test to determine the value of the testimony of a witness is whether
such is in conformity with knowledge and consistent with the experience
of mankind. Further, the credibility of witnesses can also be27
assessed on
the basis of the substance of their testimony and the surrounding
circumstances.28
The appellants point to the unusual manner of commission of the crime,
involving as it did not only the sexual assault by the man but also the
participation of his wife, to discredit the complainants testimony. Under
CRIM2 CASES
the Revised Penal Code,29 however, an accused may be considered a

principal by direct participation, by inducement, or by indispensable
cooperation. This is true in a charge of rape against a woman, provided of
course a man is charged together with her. Thus, in two cases this Court
convicted the woman as a principal by direct participation since it was
proven that she held down the complainant in order to help her coaccused spouse consummate the offense.
In People v. Villamala, 30 the Court found the husband and wife guilty for
raping their neighbor and "kumare" in this factual setting, viz: the wife
visited the victim at her home on the pretext of inquiring as to the
whereabouts of her husband. Once inside, she whistled for her husband
and he immediately appeared at the doorstep. The wife then suddenly
pinned her "kumare" to the floor. The husband forcefully removed the
victims skirt and panties, removed his shorts, placed himself on top of the
victim and consummated the rape. In the more recent People v.
Saba,31 the accused married couple victimized a fourteen (14) year-old
epileptic who stayed at their home for treatment by the wife who was a
reputed healer. On the pretext of conducting a healing session, the wife
ordered the victim to lie down on the floor then pinned the victims hands
to the floor and covered her mouth while her husband removed his pants
and briefs and the victims panties and raped the young girl. These two
cases show not only the possibility but the reality of rape committed by a
woman together with a man.
A close look at the cited cases reveals a common thread that not only
links them but also explains why the offenses were committed in the
fashion they were. This consists of the close relationship between the
parties and the attendant conducive environment. The victim and the
felons were familiar with each other and there was a certain bond of trust
between them. The same kindred relationship and suitable setting are
extant in the present case. Indeed, the proximity of the victim to the
accused spouses was established by the particular circumstances of their
relationship. The backdrop presented the offenders with a tempting
opportunity to satisfy their twisted desires upon a conveniently placed
victim.
The appellants argue that the prosecution failed to present any evidence
of aberrant sexual behavior on their part that would justify the trial courts
conclusion that the rape occurred as described by the complainant. This
argument must fail since the sexual habits of the appellant-spouses do
not constitute an essential element of the offense of rape. The

prosecution only has to prove that there was carnal knowledge of the
complainant and that it was done against her will. The trial courts
evaluation of the evidence resulted in the appellants conviction and a
close scrutiny of its judgment leads us to affirm it.
Q Can you remember what week? First, second or what?
The greatest weight is accorded to the findings and conclusions reached

by the lower court regarding the credibility of witnesses and their
testimony, owing to the courts unique position to see, hear and observe
the witnesses testify. Unless it is shown that the court overlooked or
misunderstood some facts or circumstances of weight and substance
which would affect the outcome of the case, or that its findings of fact and
conclusions on the credibility of witnesses are not supported by the
evidence on record, its determination is left undisturbed. 32 In the present
case, we see no need to overturn this well-settled principle.
Go ahead.
Herein appellants do not refer to any inconsistency in the complainants

testimony that would discredit her or would lead this Court to doubt her
version of the story. Baby Janes testimony was straightforward and
simple, positively identifying the appellants as her abusers and clearly
narrating the circumstances of her defloration.
COURT:
PROSECUTOR GUAYCO:
A I cannot remember, your Honor.

COURT:
PROSECUTOR GUAYCO:
Q Now, this incident that happened to you, what is this?
A That was when Fe de la Torre told her husband to use me but I resisted.
But she removed our clothes.
Q You mean Fe de la Torre.

A Yes, Your Honor.
Q Whose clothes?
Q While you were residing with Butchoy de la Torre and Fe de la Torre in

Tumarbong, Roxas, was there any incident that transpired sometime in
September 1992?
A Something happened, Sir.
A Both of us, Your Honor.

Q You and who?
A Butchoy de la Torre, Your Honor.
COURT:
Q What do you mean by "to use me"?
Q When was this?

28
A To have sexual intercourse ("ing bubuli") with me, Your Honor.
A It happened in September, Your Honor, but I cannot remember the

exact date.
PROSECUTOR GUAYCO:
Q What year?
Q Where did this happen?
A 1992, Your Honor.
A At Tumarbong, Sir.
CRIM2 CASES
Q Where in Tumarbong?
Q What was she saying?
A In the house of Fe de la Torre, Sir.
A That I can leave the house only if I marry Butchoy de la Torre, Sir.
Q What happened next after that?
COURT:
A Butchoy de la Torre already used me, Sir.
Q Now, you said Fe de la Torre removed your clothes and also that of
Butchoy. While she was doing that did you not object?
COURT:
A I objected, Your Honor. I resisted. I even cried, but she forced me.
Q Be more specific. What is that "use me"?
Q But Fe de la Torre is smaller than you, did you not fight her?
A After that Butchoy de la Torre had sexual intercourse with me while Fe
de la Torre was also present.
A How could I fight her when she was holding that scythe, Your Honor.
Q And Fe de la Torre was doing what?
Q Can you describe that scythe?
A Fe de la Torre was holding a big kerosene lamp and also a scythe.
A It is sharp and we are using it in the house, Your Honor.
Q Is that a weapon?
Q But Butchoy de la Torre was not threatening you?
A Yes, Your Honor, a "karit" or "sangget" in Cuyuno dialect, Your Honor.
A No, Sir.
Q You mean Fe de la Torre was there while Butchoy was having sexual
intercourse with you holding a scythe and a lamp?
Q Why did you allow Butchoy de la Torre to have sex with you without you
resisting?
A Yes, Sir.
A Fe de la Torre ordered him, Your Honor.
COURT:
Q Butchoy de la Torre?
Go ahead.
A Yes, Your Honor.
PROSECUTOR GUAYCO:
29
Q Was this Fe de la Torre saying something while the incident was going
on?
A Yes, Sir.
CRIM2 CASES
Q You heard that?

A Yes, Your Honor.
Q How? What were the words uttered by Fe de la Torre in ordering her
husband?
A We were sleeping in the same room, Your Honor, on the floor and I
heard Fe de la Torre ordering her husband to transfer to my side but
Butchoy objected. So, Fe de la Torre was the one who transferred to the
other side of her husband and Butchoy was already between us.
Q Was Fe de la Torre lying down or standing while this was going on?
A She was standing holding a lamp, Your Honor.
Q Only a lamp?
PROSECUTOR GUAYCO:
A Also the scythe.
Q After that what happened next?
Q This push and pull motion, what was that?
A After that Fe de la Torre took off our clothes.
A While he was having sex with me he was doing that motion, Sir.
Q Was it not Butchoy de la Torre who took off your clothes?

A It was Fe de la Torre who took off Butchoy de la Torres clothes, Sir.
Q Was his penis inside your vagina when he was doing that push and pull
motion?
COURT:
A Yes, Your Honor.
Q What time of the night was this?
Q Did you enjoy it?
A It was about 12:00 midnight.
A No, Your Honor. In fact I dont want it.

xxx
Q What did you feel?
PROSECUTOR GUAYCO:
A It was painful, Your Honor.
Q After your clothes were taken off, what happened next, Madam
Witness?
Q Why was it painful?
A Butchoy de la Torre placed himself on top of me.
A Because of his penetration, Your Honor. He inserted his penis inside my

vagina.
COURT:
Q Was that the first time you experienced sex?
Q While on top of you, what was happening?
30
A While he was on top of me, Butchoy de la Torre was doing the push and
pull motion, Your Honor, ("aga ayud-ayud") while Fe was holding a scythe
and a lamp.
CRIM2 CASES
A Yes, Your Honor.

Q There was no blood?
A Only my panty was filled with blood, Your Honor.
Q But you said your clothes were taken off?
A For sometime, Sir.
A After the rape I put on my panty and the next morning I saw my panty
with blood.
COURT:
Q How many minutes?
Q That was the first time he had sexual intercourse with you?
A I cannot tell, Your Honor.
A Yes, Your Honor.
PROSECUTOR GUAYCO:
Q That was about the first week of September 1992?
Q Did Butchoy de la Torre kiss you?
A Yes, Your Honor.
A Yes, Sir, on my neck.
Q The husband did not complain to the wife why she was doing it?
Q Not on your face or lips?
A He did not complain, Your Honor.
A No, Sir.
Q But you could feel the penis of Butchoy de la Torre harden as it entered
your vagina?
COURT:
A Yes, Your Honor, it was painful.
Q So Butchoy liked you also?
Q So, it was not only Fe de la Torre who wanted Butchoy to have sex with
you, Butchoy also wanted to do it?
A I did not notice that, Your Honor, but he was ordered by his wife to do it.
A But he was also told by Fe de la Torre to have sex with me, Your Honor.
Q But Butchoy did not complain that he did not want to have sex with
you?
31
PROSECUTOR GUAYCO:
Q This push and pull motion that Butchoy de la Torre did, how long did it
take?
CRIM2 CASES
Q Was there any touching of your breasts or squeezing some parts of

your body while he was having sex with you?
A Yes, Sir.
A He did not complain, Your Honor.

xxx
PROSECUTOR GUAYCO:
COURT:
Q Your breasts, for example?
A My nipple was fondled, Your Honor, by him.
Q That was before his penis was inserted in your vagina or after?
A After, Your Honor.
A Yes, Sir.
PROSECUTOR GUAYCO;
Q What was the exact words uttered by Fe de la Torre?
Q Do you like what Fe de la Torre and Butchoy de la Torre did to you?
A "Magpaluyo kaw sa kilid." (You move to the other side.)
A No, Sir.
COURT:
COURT:
Q But the Court thought she was holding a lamp and a scythe, so she
was not lying anymore?
Q Did you not feel, while Butchoy de la Torres penis was inside you and
doing the push and pull if he finished his act?
A I did not feel, Your Honor.
A She was seated between us, Your Honor.

Q About the sexual intercourse, what was the command of Fe de la Torre
to Butchoy de la Torre?
Q He only suddenly stopped?

A Yes, Your Honor.33
Baby Jane never wavered in her testimony even under intense crossexamination by the defense. She forthrightly answered the questions and
re-affirmed her attestations during the direct. The cross-examination only
served to clarify certain details in the commission of the offense and
reinforced the truth of her narration.
A And then Fe de la Torre told him to undress or remove his clothes, but
Butchoy did not obey her. So, this Fe de la Torre put down the scythe and
the lamp which she was holding and she was the one who removed the
clothes of Butchoy and my clothes.
Q And immediately upon removal of the clothes of Butchoy, you saw the
penis of Butchoy already?
A No, Your Honor.
ATTY. PADON:
Q You did not see him naked?
Q Madam Witness, you were awakened by Fe de la Torre before the
intercourse?
A I saw him naked but I did not focus my eyes to his penis.
A Yes, Sir.
Q Who was undressed first, Butchoy de la Torre or you?
Q And you were already awaken (sic), you saw her holding 32
a lamp and a
scythe?
A It was Butchoy, your Honor.

Q You did not resist when you were being undressed?
A Yes, Sir.
A I asked her why but she did not reply.
Q And you said, Madam Witness, that Fe de la Torre told her husband to
rape you?
CRIM2 CASES
Q But you could feel that the private organ of Butchoy de la Torre entered
your body, is that right?
stigma, as in this case.35 In like manner, a father would not subject his
daughter to the indignities of a rape trial just to evade payment of a debt.
A Yes, Your Honor.
The appellants even tried to show that Baby Jane was a girl of loose
morals, by having Rafael Dagots neighbor, Gloria Mijares, testify that
Baby Jane was already married to one Eddie Tabi and that Baby Jane
had lived with said Eddie Tabi for more than a year before working for the
appellants as a maid. But the witness testified to no such thing, saying
only that allegedly Eddie Tabi had proposed marriage to Baby Jane but
she refused him.36 The testimony could not even be given much credit for
being hearsay.
ATTY. PADON:
Q What was the position of Butchoy de la Torre when Fe de la Torre
removed his clothes?
A He was standing and after Fe de la Torre removed his clothes, he sat
down already.
Q How about you what was your position when Fe de la Torre removed
your clothes?
A I was still lying down and then she pulled me to stand up and then she
removed my clothes.
Q When you were already standing, you just allowed Fe de la Torre to
remove your clothes?
A I cannot resist because I was afraid, Sir. Even her husband was also
afraid.34
The trial court noted that Baby Jane was only sixteen years old when the
incidents occurred, and had barely finished the second grade of
elementary schooling. She was young, unlettered, and unsophisticated.
Given her background she was innocent in the ways of the world and
incapable of fabricating the charges of rape against the appellants, and
making up such a shocking tale of sexual perversity.
Additionally, the defense has not imputed to her any ill motive to indict the
appellants with trumped up charges. The appellants have33
categorically
manifested that they had no quarrel with Baby Jane and effectively
erased any evil intention that may be attributed to her. Their claim is that
the charges were instigated by Baby Janes father, Rafael Dagot. This is
absurd. It is unnatural for a parent to use her offspring as an engine of
malice, especially if it will subject her to embarrassment, and even
CRIM2 CASES
Baby Janes behavior during and after the rape incidents reinforce the
trial courts findings of rape. She objected to Fes acts of removing her
clothes, but her resistance was restricted by her fear of the appellants.
The scythe that Fe held in her hands and threats of bodily harm should
she refuse effectively intimidated her into submitting to Butchoys
onslaught. Afterwards, she could tell no one of the ordeal she had gone
through as she was constantly under Fes watchful eye. In addition, she
did not know any of their neighbors nor their neighborhood well enough to
report the incident. When the opportunity to escape presented itself, she
took it. She reported the matter to the authorities and this led to the filing
of the Amended Complaints against the appellants. Her actions testify to
the truth of her allegations of rape for a young girl would not make up a
story of sexual exploitation and undergo the humiliation of a medical
examination of her private parts and a court trial that would dissect each
and every aspect of the sexual abuse committed against her if it were not
true.37
But then, on the basis of the evidence adduced by the prosecution, the
appellants may be convicted only of the rape committed in the first week
of September 1992. The evidence for the prosecution proves only the first
charge of rape. Baby Janes testimony on the commission of the eight
other charges does not satisfy the standard of proof beyond reasonable
doubt to justify the appellants conviction. We quote the transcript of the
trial:
COURT:
Q You have just described your first sexual intercourse which happened
on September 1992, was it done to you again the next week?
A It happened once every week, Your Honor.
A Yes, Your Honor.
PROSECUTOR GUAYCO:
Q The same procedure? The same threats?
Q How about on the second week of September 1992, did this happen to
you again?
A Yes, Your Honor.

xxx
A Yes, Sir, it happened again.

POSECUTOR GUAYCO:
COURT:
Q When?
Q This incident that transpired in the first week of September 1992, did it
happen again on the first week of October 1992?
A On the second week of September, Your Honor.
A Yes, Sir.
Q 1992 also?
Q How about in the second week of October 1992, did it happen again?
A Yes, Sir.
A Yes, Sir.
Q It happened the same way as the first with the wife holding a lamp and
a scythe?
COURT:
A Yes, Sir.
Q The same thing happened where Fe de la Torre was holding a scythe

and a lamp?
PROSECUTOR GUAYCO:
A Yes, Your Honor.
Q How about the third week, did it happen again?
Q And what happened the first time, happened again several times?
A Yes, Your Honor, the same thing happened again.
A Yes, Your Honor.
Q How about on the fourth week of September 1992, did it happen again?
Q So, in the month of October 1992, how many times had this Butchoy de
la Torre have sex with you?
A The same, Sir.
34
A Once every week, Your Honor.

COURT:
Q So how many times?
Q It also happened on the fourth week?
A Four times, Your Honor.
CRIM2 CASES
Q So first, second, third and fourth week?
A I was afraid, Your Honor.
A Yes, Your Honor.
Q But Fe de la Torre did not injure you, why were you afraid?
xxx
A She was threatening me with that scythe that she would strike me with
that scythe.
COURT:
Q During the first intercourse and the second, did you feel pain?
Q So because you were afraid of physical harm you allowed yourself to

be used by Butchoy de la Torre?
A Yes, Your Honor, because despite my struggle Fe de la Torre was there,
armed.
A Yes, Your Honor.

Q How about on the third time?
xxx
A It was not painful anymore.
PROSECUTOR GUAYCO:
Q And subsequently, no more?
Q Now, did this incident also happen in the second week of December?
A No more, Your Honor.
A Yes, Sir.
Q Why no more pain?
COURT:
A I dont know but I did not feel pain anymore.
Q How about in November?
Q Is it because you already approved of the intercourse?
A There was none, Your Honor.
A No, Your Honor.
Q So you were free that November?
Q But you did not resist or struggle?
A Yes, Your Honor.
A I was between a woman and a man, Your Honor, I could not struggle.
Q But you did not resist or struggle?
PROSECUTOR GUAYCO:
35
A I struggled but in vain, Your Honor.
Q Now, in these nine incidents, did you really like what was done to you
by the accused?
Q Because you were afraid?
A No, Sir.38
CRIM2 CASES
Each and every charge of rape is a separate and distinct crime; hence,
each of the eight other rape charges should be proven beyond
reasonable doubt. The prosecution is required to establish, by the
necessary quantum of proof, the elements of rape for each
charge.39 Baby Janes testimony on the first rape charge was explicit,
detailing the participation of each appellant in the offense and clearly
illustrating all the elements of the offense of rape. However her simple
assertion that the subsequent rapes occurred in exactly the same manner
as in previous incidents is clearly inadequate and grossly insufficient to
establish to a degree of moral certainty the guilt of the appellants insofar
as the eight rape charges are concerned. Her testimony was too general
as it failed to focus on material details as to how each of the subsequent
acts was committed. Even her testimony on cross-examination did not
add anything to support her accusations of subsequent rape. Thus, only
the rape alleged to have been committed on September 1992 was proven
beyond reasonable doubt and the appellants may be penalized only for
this offense.
Article 335 of the Revised Penal Code provides that whenever the crime
of rape is committed with the use of a deadly weapon the penalty
is reclusion perpetua to death. The use by the appellants of a bladed
weapon, alleged in the Amended Complaint and sufficiently proven in this
case, qualifies the rape.40 In the absence of any mitigating or aggravating
circumstance, the penalty that the appellants shall suffer is the lesser
penalty of reclusion perpetua.41
In accordance with jurisprudential law, the complainant in a rape case is
entitled to civil indemnity, which is actually in the nature of actual or
compensatory damages, in the amount of P50,000.00, as well as moral
damages in the amount of P50,000.00. Civil indemnity42 and moral
damages43 are automatically granted once the fact of rape has been
established. Exemplary damages are awarded under Article 2230 of the
Civil Code if there is an aggravating circumstance, whether ordinary or
qualifying. Since the commission of the rape was attended by the
qualifying circumstance of use of a deadly weapon, exemplary damages
36
of P25,000.00 should also be given to the complainant. 44
WHEREFORE, the judgment of the Regional Trial Court of Palawan and
Puerto Princesa City is MODIFIED. In Criminal Case No. 11199, the
appellants are found GUILTY beyond reasonable doubt of rape qualified
with the use of a deadly weapon and are accordingly sentenced to suffer
CRIM2 CASES
the penalty of reclusion perpetua and ordered to indemnify the offended

party the sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity,
Fifty Thousand Pesos (P50,000,00) as moral damages and Twenty-five
Thousand Pesos (P25,000.00) as exemplary damages. With respect to
Criminal Cases No. 11313 to No. 11320, the appellants are ACQUITTED
for failure of the prosecution to prove their guilt beyond reasonable doubt.
SO ORDERED.
The facts according to the prosecution, are as follows: 3

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 139471
January 23, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO MAGABO y MAGARTE, accused-appellant.
GONZAGA-REYES, J.:
This is an appeal from the Decision 1 dated May 14, 1999 of the Regional
Trial Court of Quezon City, Branch 95, in Criminal Case No. Q-98-77588,
finding accused Rolando Magabo y Magarte guilty beyond reasonable
doubt of the crime of Rape and sentencing him to suffer the penalty of
Reclusion Perpetua.
On July 2, 1998, accused Rolando Magabo y Magarte was charged with
the crime of Rape in an Information which reads, to wit:
"That on or about the 23rd day of June, 1998, in Quezon City, Philippines,
the said accused, by means of force and intimidation, to wit: by then and
there wilfully (sic), unlawfully and feloniously by undressing the
undersigned and put himself on top of her and thereafter have carnal
knowledge with the undersigned complainant, a mental retardate, against
her will and without her consent.
CONTRARY TO LAW."
37
Originally, this case was raffled off and assigned to Branch 103 of the
Regional Trial Court of Quezon City, presided by Judge Jaime Salazar.
But before the accused could be arraigned, Judge Salazar voluntarily
inhibited himself from trying the case, and the same was re-raffled to
Branch 95. On October 1, 1998, the accused was arraigned and pleaded
not guilty to the charges against him.2 Trial ensued.1wphi1.nt
CRIM2 CASES
On June 23, 1998, at about 1:00 in the afternoon, Noemi Dacanay, a

mental retardate, was selling fried bananas at the Frisco Market in
Quezon City when Rolando Magabo, known to Noemi as "Lanie",
approached her and invited her to go with him to his house. Noemi
immediately acceded. The two went to Magabo's house which was empty
as Magabo's mother who was living with him was not around. Accusedappellant then seized the opportunity and began kissing Noemi on the lips
and fondling her breasts. He made Noemi lie down on the floor, and had
sexual intercourse with her. Thereafter, accused-appellant rested on the
floor and embraced Noemi. Later, Noemi left and went home. She told her
mother of what happened, and they went to the police to report the
incident. Noemi was examined by Dr. Ma. Christina Freyra, the MedicoLegal Officer of the Philippine National Police (PNP) Crime Laboratory,
who found healed lacerations at 3, 6, and 9 o'clock positions on the
victim's hymen, and abrasions on her labia minora. This was later
confirmed by Dr. Freyra who was presented as a witness for the
prosecution.
For his part, accused-appellant Rolando Magabo denied the rape and
testified that between 1:00 and 2:00 in the afternoon of June 23, 1998, he
was at the corner of Roosevelt Avenue and San Francisco del Monte,
Quezon City selling short pants and t-shirts by the sidewalk. He admitted
knowing the victim Noemi Dacanay and her parents, 4 and seeing Noemi
and her mother sell fruits at the Munoz market, but said he could not
recall seeing Noemi at the market in June 1998. 5 Magabo alleges that a
certain Freddie Buenaflor, with whom he had some altercations, informed
Noemi's father of the alleged rape to get back at him. 6
After trial, the court a quo rendered a judgment dated May 14, 1999, the
dispositive portion of which reads:
"WHEREFORE, judgment is hereby rendered finding the accused
Rolando Magabo y Magarte GUILTY beyond reasonable doubt of the
crime of RAPE defined and penalized by Article 335 of the Revised Penal
Code, as amended by Republic Act 7659 and further amended by Article
266-A and Article 266-B, Republic Act No. 8353, and is hereby sentenced
to suffer the penalty of Reclusion Perpetua. The accused is further
ordered to indemnify the private complainant the amounts of P50,000.00
as compensatory damages; P50,000.00 as moral damages; and P25,000

as exemplary damages.
"The period during which the accused was detained at the City Jail of
Quezon City shall be credited to him in full as long as he agrees in writing
to abide by and follow strictly the rules and regulations of the said
institution.
"The accused is ordered to pay the costs.
"IT IS SO ORDERED."7
Hence this appeal where the accused-appellant raises a lone assignment
of error:
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED,
ROLANDO MAGABO, NOTWITHSTANDING THE FAILURE OF THE
PROSECUTION TO PROVE ALL THE ELEMENTS OF THE CRIME OF
RAPE, WITH PROOF BEYOND REASONABLE DOUBT.
The accused-appellant contends that the case at bar involves rape under
the fourth circumstance of Article 266-A, paragraph 1, 8 and therefore,
mental retardation of the alleged rape victim must be proven as an
essential element of the offense.9 As the prosecution failed to prove that
rape victim Noemi Dacanay is a mental retardate and that her mental age
is no better than a twelve year old child, no rape has been committed,
and the accused-appellant should not have been convicted by the trial
court.
The contention is unmeritorious.
Carnal knowledge of a woman who is a mental retardate is rape under
Article 266-A, paragraph 1 of the Revised Penal Code, as amended by
R.A. 8353.10 Proof of force or intimidation is not necessary38as a mental
retardate is not capable of giving consent to a sexual act. 11 What needs to
be proven are the facts of sexual congress between the accused and the
victim, and the mental retardation of the latter.
That the victim, Noemi Dacanay, had sexual intercourse with the
accused-appellant Rolando Magabo was sufficiently established by her
CRIM2 CASES
testimony, corroborated by the testimony of the medico-legal officer, Dr.

Ma. Christina Freyra, to the effect that there were lacerations and
abrasion on the victim's private parts. 12 As regards the mental retardation
of the victim, the trial court likewise found the same to have been
sufficiently proven, as set forth in its Decision, to wit:
"The Court is more than convinced that the private complainant is a
mental retardate not only based from her physical appearance as shown
from the picture (Exh. 'B') but also from the behavior and actuations she
showed during the trial. The medico-legal officer who conducted the
medical examination, in fact, concluded that the private complainant is a
mental retardate. Besides, the mental condition of the private complainant
was not raised or objected to by the accused. With the earlier findings of
the Court that carnal knowledge of the private complainant by the
accused was consummated and the fact that the words "mental retardate"
are alleged in the complaint thru the timely amendment (before
arraignment) by the public prosecutor, it is clear that the crime of rape
was committed although the prosecution offered none to establish that
carnal knowledge was without consent of the private complainant." 13
The physical appearance of the victim Noemi Dacanay, and the manner
by which she testified persuaded the trial court that she indeed is a
mental retardate. Mental deficiency is apparent from the halting and
abbreviated answers given by Dacanay during her testimony, to wit:
"Q:
And when you were selling Banana Que at Frisco Market what
happened if any?
A:
Sama ako. (the witness when answering the question pointed her
finger to the courtroom and then uttered "sama ako".)
PROS: (to the witness)
Q:
Ms. witness when you say "sama ako" and your pointing to the
courtroom. Whom are you pointing at?
A:
(witness stood up and pointed to a male person and went down
from the rostrum and proceeded to the person she was pointing at.
Witness pointing to a male person wearing yellow shirt when asked of his
name he stated his name as Rolando Magabo.)
Q:
You mentioned Ms. witness that person you pointed told you
"sama ka" where did you go?
A:
In the house. (the witness answered the question "house""and at
the same time pointing her finger to the courtroom.)
Q:
COURT: (to the witness)

Q:
When you answered the question of the Fiscal you demonstrated
by using your right hand as if something was being put inside your private
organ continously. [sic] What was that placed inside as if something was
placed inside?
Whose house did you go?
A:
Nanay. (the witness answered "nanay" and pointing her finger to
the person identified a while ago.)
A:
Pasok titi. (the witness answered the question by whispering to the
interpreter the word "pasok titi")
PROS. (to the witness)
Q:
When you went to the house of "Nanay" of the person you pointed
to what happened?
Q:
A:
Halik. (witness answered by uttering the word "halik" and pointing
to her lips.)
A:
Lanie. (the witness answered Lanie and pointing to the person
identified a while ago.)
Q:
Q:
After that when the "titi" naka pasok sa iyo" or inserted on you.
What happened next?
What else did Lanie do to you if any aside from kissing your lips?
A:
Hawak. (witness answered by saying "hawak" and pointing to her
breast)
Q:
When you say "hawak" and pointing to your breast did he touch
your breast?
A:
Yes, ma'am.
Q:
Aside from holding you breast what did he do if there was any?
39
Put on record that when answering the question, she made a gesture by
placing her right hand in front of her private part and making continous
[sic] motion as if something is being inserted continously [sic] on her
private organ.
CRIM2 CASES
A:
Higa. (the witness answered in the vernacular "higa" and at the
same time pointing to the floor.)
Q:
When you say "higa" who lied down?
A:
Lanie. (witness answered the question by uttering "Lanie" and at
the same time pointing to a person identified a while ago.)
A:
Patong. (witness she answered the question with the word
"Patong".)
COURT:
Whose "titi", was inserted?
Q:
After Lanie lied down as you as you mentioned on the floor. What
happened next if any?
A:
Akap. (the witness answered in the vernacular "akap" and at the
same time crossing both of her hands on her shoulder)
Q:
And how did it happened that you were able to go out of the house
of Lanie's mother?
A:
Umalis Nanay. (the witness answered the question by pointing her
finger and at the same time uttering the word "umalis nanay".)
COURT: (to the witness)

Q:
What do you mean "umalis nanay" when at the same time pointing
your finger?
A:
She left. (and at the same time she made a gesture as if somebody
left.)
PROS: (to the witness)
Q:
How did you go home if you were able to go home?
A:
Runong ako uwi. (and at the same time making a gesture as if
going home.)"14
The mental retardation of Noemi Dacanay was confirmed by medico-legal
officer, Dr. Ma. Christina Freyra, in her testimony, thus:
"Q:
By the way Dr., you examined the physical appearances of the
victim, what can you say about her?
A:
She looks like a mongoloid and the mother confirmed that she is a
mongoloid.
Q:
When you say mongoloid, what do you mean by that?
A:
The person is mentally retarded.
Q:
Did you happen to know the age of this victim?
A:
She is 21 years old.
Q:
How does she talk or what is her demeanor when you
40 conducted
the examination or interview?
A:
She could not speak straight Tagalog, she is like a child and she
answered in phrases when I started questioning her, Ma'am." 15
CRIM2 CASES
During the cross-examination of Noemi Dacanay, the counsel for the

prosecution even asked the court to put on record that "the witness is
mentally retarded".16 No objection was interposed by the defense. In fact,
as correctly observed by the lower court, the mental condition of the
complainant was not at all objected to by the accused-appellant during
the trial.17 Accordingly, it is too late for the accused-appellant to raise such
factual issue before this tribunal.18
It should likewise be noted that the accused-appellant himself
acknowledged such mental retardation during his cross-examination, to
wit:
"Q:
And you know for a fact that Noemi Dacanay looks like a
mongoloid or mentally retarded?
A:
Yes, ma'am.
Q:
You are aware of that?
A:
Yes, ma'am."19
Knowledge of the offender of the mental disability of the victim at the time
of the commission of the crime of rape qualifies the crime and makes it
punishable by death under Article 266-B, paragraph 10 of the Revised
Penal Code, as amended by R. A. 8353. 20 An allegation in the information
of such knowledge of the offender is necessary as a crime can only be
qualified by circumstances pleaded in the indictment. 21 A contrary ruling
would result to a denial of the right of the accused to be informed of the
charges against him, and hence a denial of due process. 22 In the case
before us, there was no allegation in the information that the accused had
knowledge of the mental disability of the victim at the time rape was
committed. Thus, notwithstanding proof of such knowledge, the accused
can only be held liable for simple rape.1wphi1.nt
Qualifying circumstances not alleged in the Information but duly proven
without objection during the trial may be considered as aggravating
circumstances. However, in this case, knowledge of the accused of the
mental retardation of the victim at the time of the commission of the crime
of rape does not fall under any of the aggravating circumstances
enumerated in Article 14 of the Revised Penal Code, and hence cannot
be appreciated as such. In view of the absence of aggravating

circumstances, we find the grant of exemplary or corrective damages by
the court a quo unwarranted.23
WHEREFORE,
the
questioned
Decision
is
hereby AFFIRMED with MODIFICATION that the award of Exemplary
Damages in the amount of P25,000.00 is deleted.
DAVIDE, JR., C.J.:

Before us for automatic review1 is the decision2 of 30 April 1998 of the
Regional Trial Court of Roxas City, Branch 14, in Criminal Cases Nos. C4766, C-4767 and C-4768 finding accused-appellant Cesar Melendres y
Bejo (hereafter CESAR) guilty beyond reasonable doubt of three (3)
counts of rape committed against Helen Balinario (hereafter HELEN). The
dispositive portion of the decision reads as follows:
IN VIEW OF THE FOREGOING ESTABLISHED FACTS, the Court finds
the accused GUILTY beyond reasonable doubt of the three (3) counts of
the crime of Rape committed on three different occasionsin the months
of November and December 1994 and January 1995, all in Brgy.
Jamulawon, Panay, Capiz with the use of a gun and through the use of
threats and intimidation against the daughter of his common-law wife,
complainant Helen Balinario, who was then 11 years of age.
Accordingly, accused Cesar Melendres y Bejo is sentenced to suffer the
extreme penalty of three (3) DEATHS in accordance with the doctrine of
the Supreme Court enunciated in Pp. vs. Jose 37 SCRA 450; to
recognize Rey Balinario, the offspring of his bestial acts, as his natural
child entitled to his support; and to indemnify the complainant in the
amount of One Hundred Fifty Thousand Pesos (P150,000.00) as
damages and to pay the costs.
SO ORDERED.

SUPREME COURT
Manila
These cases were originally commenced with the filing of a criminal

complaint by HELEN, assisted by her mother Visitacion Balinario, on 24
April 1995 before the Municipal Circuit Trial Court of Pontevedra-Panay,
Province of Capiz. After appropriate proceedings, with CESAR opting not
to file his counter-affidavit, the court issued a resolution 3 on 7 August
1997 recommending the filing of an information for rape.
EN BANC
G.R. Nos. 133999-4001
August 31, 2000

41
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CESAR MELENDRES y BEJO, accused-appellant.
DECISION
CRIM2 CASES
On 11 September 1995 Capiz Asst. Provincial Prosecutor Edwin Devano

filed against CESAR three separate informations for rape before the
Regional Trial Court of Roxas City which docketed the cases as Criminal
Case No. C-4766, Criminal Case No. C-4767, and Criminal Case No. C4768. The accusatory portions of the informations read as follows:

That sometime on one evening in the month of November 1994, at Brgy.
Jamul-awon, Panay, Capiz, Philippines, and within the jurisdiction of this
Honorable Court, abovenamed accused, motivated with lewdness, and
taking advantage of the fact that the offended party, HELEN BALINARIO
was soundly asleep and unconscious, did then and there wilfully,
unlawfully and feloniously succeeded in having carnal knowledge of the
latter against her will, and thereby resulting to the pregnancy of the latter.
The crime was aggravated by the fact that the offended party is the
stepdaughter of the accused and a girl of only eleven (11) years of age at
the time of the commission of the offense.
CONTRARY TO LAW.4
That sometime in one evening in the month of December 1994, at Brgy.
Jamul-awon, Panay, Capiz, Philippines, and within the jurisdiction of this
Honorable court, said accused, with lewdness and by means of threats
and intimidation, did then and there wilfully, unlawfully and feloniously
have carnal knowledge of the complainant HELEN BALINARIO against
her will and thereby resulting to the pregnancy of the latter.
stepdaughter of the accused and a girl of only eleven (11) years of age at
the time of the commission of the offense.
CONTRARY TO LAW.5
That sometime in one evening in January 1995, at Brgy. 42
Jamul-awon,
Panay, Capiz, Philippines, and within the jurisdiction of this Honorable
Court, abovenamed accused, motivated by lewd design and by means of
force and intimidation did then and there wilfully, unlawfully and
feloniously succeeded in having carnal knowledge, with complainant
HELEN BALINARIO against the will of the latter, and thereby resulting to
her pregnancy.
CRIM2 CASES
stepdaughter of the accused and a girl of barely over twelve (12) years of
age only at the time of the commission of the offense.
CONTRARY TO LAW.6
The cases were consolidated and after CESAR entered a plea of not
guilty in each case during his arraignment,7joint trial was had.
The evidence for the prosecution established the following facts:
HELEN, who was born on 23 December 1982 8 testified that sometime in
the month of November 1994, at around 6:00 in the morning, her mother,
Visitacion, left for Sigma, Capiz, together with her younger sister
Hendreza, to buy merchandise in connection with her buy-and-sell
business. HELEN was then left behind with CESAR to do the household
chores.9 Visitacion and Hendreza did not return home that night so
HELEN and CESAR had their supper together. As they were about to
finish eating, CESAR gave her a glass of water which she drank.
Thereafter, HELEN immediately felt dizzy and sleepy so she asked
permission from CESAR to go to sleep early.10
When she woke up late the next morning, HELEN felt pain all over her
body, especially on her thighs and genitalia. Sensing such pain and
noticing bloodstains on her undergarment when she urinated, HELEN
touched her vagina and discovered some blood on it.
She changed her underwear, after which saw CESAR and talked to him,
but CESAR responded by warning her not to tell anybody about the
incident and even tried to calm her by saying it might be due to her
menstrual flow.11But as she just had her menstrual period HELEN knew it
could not be the reason.12 HELEN then suspected that CESAR did
something to her.
Later that day, at around 5:00 in the afternoon, Visitacion and Hendreza
arrived but as HELEN heeded the warning of CESAR she kept her
suspicions to herself.
In December 1994, a few days before her birthday, Visitacion again left
for Sigma, Capiz. She was not accompanied by Hendreza. At around 5:30
p.m. that day CESAR instructed Hendreza to buy cigarettes for him. With
Hendreza away, CESAR surreptitiously entered the room where HELEN
was folding and fixing their sun-dried laundry. Immediately, CESAR poked
a gun at HELEN and mounted her, causing HELEN to fall on her back to
the floor. HELEN tried to extricate herself from CESAR, who was then
removing his underwear, but as CESAR was much stronger, her efforts
proved futile. CESAR placed his handgun aside and forcibly removed
HELENs undergarments against her objections and struggles. Stripped
of all her clothes, CESAR spread HELENs legs and applied saliva on his
penis. HELEN pleaded with CESAR but was instead pressed down to the
floor. Then CESAR forced his penis into her vagina. HELEN felt pain, but
she could not shout, as she was afraid of CESAR's threats that he would
shoot them all. She endured the excruciating pain until her ordeal was
over.13
Afraid of CESAR's threats, HELEN kept mum about the incident.
As his lust was not satiated, CESAR ravished HELEN again sometime in
January 1995, when Visitacion left once more with Hendreza for Sigma,
Capiz. At around 8:00 in the evening of that day, CESAR asked her to
help him set traps for crabs in the fishpond. HELEN did as she was
told.14 On their way home, after placing the traps, CESAR suddenly
pushed HELEN down the dike and forcibly mounted her. HELEN tried to
escape and this time firmly told CESAR "you have already done this to
me and that I have to tell mama" but her warning was simply ignored by
CESAR who instead pulled down his shorts with one hand and embraced
HELEN with the other hand to keep her from moving. Then CESAR
spread her legs, took off her undergarments and inserted his penis into
her vagina. HELEN again felt the pain as CESARs penis intruded her
womanhood. She begged and cried for him to stop but again to no avail
as CESAR inflicted his bestial desire on her.15
They returned home that evening without talking to each other except for
the warning that CESAR gave HELEN that she should not tell anyone
about the incident.16 For fear that he would kill her and her family,
HELEN,
43
again, kept secret what CESAR did to her.
In March 1995, suspecting that she was pregnant as she missed her
menstrual period, HELEN finally mustered enough courage to tell her
mother that she had been raped by CESAR several times. Thus, they
consulted Dr. Delfin of the Roxas Memorial General Hospital. 17 The
CRIM2 CASES
examination revealed that HELEN had been pregnant for six (6) months
and that her hymen exhibited old lacerations which could have been
sustained a few months earlier.18 Thereafter, HELEN and Visitacion
executed their respective sworn statements which were the basis for the
filing of the criminal complaint before the court.
In his defense, CESAR who was single and 38 years old at the time he
testified, declared that there is no truth to HELENs allegation that last
November 1994, he gave her a glass of water which made her dizzy and
sleepy. What happened was that after taking his supper, he told HELEN
he would make rounds at the fishpond, but as HELEN pleaded for him to
go home early as she was afraid to be left alone, he returned home at
around 7:30 that evening.19 While he was lying on the mat, HELEN laid
beside him and told him that she would sleep with him as she was afraid
to sleep alone. Aroused with the warmth of HELENs legs, he told her: "for
the meantime, you will have to do the obligation of your mother who is not
here at present," to which HELEN replied: "I am afraid because this might
reach the knowledge of my mother." CESAR then retorted: "it will never
reach the knowledge of your mother except when you yourself tell her."
Thereafter, he asked for the consent of HELEN who simply remained
silent. Moments later, HELEN started to embrace him; so, he also
embraced and kissed her until eventually they had sexual intercourse. 20
CESAR also denied having used a firearm to force HELEN to have sexual
intercourse with him one evening in December 1994. According to him,
Jeffrey Layo, the fishpond owner, prohibited him from possessing a
firearm. However, CESAR recalled that in December 1994, he brought
HELEN to the fishpond to place crab traps. On their way home, HELEN
asked his permission to watch television at their neighbors house. He
refused. However, he later on acceded as HELEN made insinuations that
she would not have intercourse with him if he would not allow her to
watch television. Thus, they had sexual intercourse before HELEN left to
watch television at their neighbors house.21
CESAR likewise denied having sexual intercourse with HELEN one
evening in January 1995, at the dike owned by Jeffrey Layo because the
guards securing the area kept roaming around. Besides, there was no
reason for them to engage in sexual intercourse at the dike when they
could freely do it at home, 22 which they in fact did in that month at their
house.
Finally, CESAR volunteered that after their January 1995 intercourse, he

and HELEN had sexual intercourse several times more. In fact, they were
planning to elope.23 But as the pregnancy of HELEN became evident and
reached the knowledge of Visitacion, a complaint for rape was then
lodged against him, and he was arrested by the police on 22 April 1995. 24
The trial court gave full faith and credit to HELENs testimony and found
CESARs allegation that he and HELEN were lovers as highly incredible
considering the established fact that HELEN, who was then barely eleven
(11) years old was too young to be in love with him whom she called
"tatay CESAR," being the common-law husband of Visitacion. In all the
instances he ravished her, her mother was in a faraway barangay and
HELEN was alone with him. She became "easy prey to the insatiable and
satanic desire of" CESAR. The trial court further observed that "instead of
acting in loco parentis (substitute parent) he ravaged his innocent and
hapless step-daughter (sic) Helen Balinario, who was too young and
innocent of the old ways of the world like a hungry predator."
The trial court thus declared that rapes were committed as established by
the evidence, each of which was attended by the qualifying circumstance
of being committed by the common-law husband of the victims mother,
who is below eighteen (18) years old, under Article 335 of the Revised
Penal Code, as amended by R.A. No. 7659. Accordingly, it rendered the
judgment quoted at the beginning of this ponencia.
In his Appellants Brief, CESAR submits this assigned error:
THE TRIAL COURT ERRED IN CONVICTING
ACCUSED-APPELLANT OF THREE (3) COUNTS OF
RAPE DESPITE THE FACT THAT HIS GUILT WAS NOT
PROVED BEYOND REASONABLE DOUBT.
In support of his lone assignment of error CESAR argues that in respect
of the November 1994 alleged rape, no adequate evidence was offered
44
as even HELEN merely had a suspicion as to what had happened
after
she felt dizzy and slept immediately after drinking water offered by
CESAR. As to the sexual intercourses in December of 1994 and January
1995, "there are ample evidence showing that the sexual intercourses
between private complainant and accused-appellant were done freely
and voluntarily," as shown by the following circumstances: (1) HELEN,
despite her age, made mention during the trial of the unusual and
CRIM2 CASES
uncommon terms as "orgasm" and "withdrawal," thereby showing that

she is quite knowledgeable on matters concerning sex, which could only
be because of actual sexual encounters in the past; (2) her ability to
describe CESARs sexual organ, thereby indicating familiarity with it,
which could only be possible as a result of her sexual encounters with
CESAR; (3) her cooperation as CESAR put back her panty; and (4) the
unreasonable delay in reporting the incidents, which was done only after
the discovery of HELENs pregnancy.
On the whole, CESAR asserts that the totality of the evidence for the
prosecution confirms the fact that he and HELEN were, indeed, lovers.
In the Appellees Brief, the Office of the Solicitor General asserts that
since CESAR admitted having had sexual intercourse with HELEN, who
was then below twelve (12) years old, then the formers conviction for
rape is inevitable even if HELEN had given her consent to such acts.
We find no cogent reason to overturn the finding of the trial court on the
culpability of CESAR.
The trial court convicted the appellant for three (3) counts of rape under
Article 335 of the Revised Penal Code which reads:
Article 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 and 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.
x x x.
Under the third circumstance, two elements must be established to hold
the accused guilty of rape, namely: (1) that the accused had carnal
knowledge of a woman, and (2) that the woman is below twelve years of
age.25
In the instant case, it is undisputed that HELEN was less than twelve (12)
years old when CESAR had carnal knowledge of her in November 1994,
which is the subject matter of Criminal Case No. C-4766. She was born
on 23 December 1982 per her Certificate of Live Birth. 26 As to this case,
proof of the presence of either the first or second circumstance under
Article 335, as amended, is irrelevant, and proof of consent of the woman
is immaterial. Sexual intercourse with a woman below twelve years old is
statutory rape. Her consent to the intercourse is involuntary because she
is considered to have no will of her own.27
the fishpond, CESAR suddenly pushed her to the dike; she fell to the
ground face up; he then mounted her and embraced her. She tried to
extricate herself, but to no avail and when she warned him that if he did
not stop she would tell her "Mama" Visitacion, he threatened to kill her.
He pulled down his shorts and also her shorts and panty with the use of
his foot. He then stretched and spread her thighs and placed his thighs
between hers and inserted his penis into her vagina. She felt pain. 31 Rape
was thus committed under the first circumstance under Article 335, as
amended.
As to the December 1994 incident, HELEN testified that the rape took
place "one day in the month December 1994," 28 and that it happened on a
date approaching her birthday on 23 December. Thus:
CESARs tale that he and HELEN were lovers is simply preposterous. To

us, it taxes ones credulity beyond limit; offends sensibilities and insults
the intelligence even of an average man. It is inconceivable and
unimaginable that HELEN, at her tender age and sweet innocence,
against whom no proof of sexual perversity or of loose morality had been
shown, would willingly have sex with a man more than twenty (20) years
her senior and whom she has treated as her father, being her mothers
common-law husband. Thus, as there is no evidence that she is a sexual
pervert, a sex maniac, or a prostitute, HELEN could not have acted the
way CESAR pictured her to be.32
Q Now, can you not remember the exact date when the second incident
happened in the month of December 1994?
A I cannot remember, your Honor.
Q But are you sure that it was in the month of December, 1994?
A Yes, your Honor.
Q What makes you remember that it was in the month of December,
1994?
A I remembered it very well because of my birthday and it is quite
approaching when that incident happened.29
From the foregoing, the December rape was committed before HELENs
twelfth birthday, i.e., when she was still less than twelve years old. Even if
it were conceded that there was uncertainty as to the date of the incident
and that it was resolved in favor of CESAR, still the prosecutions
evidence had established that he used threats and intimidation
to force
45
her to submit to his bestial desires. He used a handgun to threaten
her.30 Rape was thus committed under the first circumstance under Article
335, as amended.
As to the sexual assault on one evening in January 1995, at the dike, it
was established by HELEN's testimony that while on their way home from
CRIM2 CASES
Neither are we impressed with CESARs argument that HELENs

actuation/reaction confirmed their mutual love and affection. We have
long recognized that people react differently to a given situation, and
there is no standard form of behavioral response when one is confronted
with a strange, startling or frightful experience. One persons spontaneous
response may be aggression, while anothers may be cold
indifference.33 Consequently, HELENs inexplicable actuation only
conformed to the natural reaction of a bewildered victim of a sexual
assault.
As for the delay in the reporting of the sexual assaults, jurisprudence has
established that delay in revealing the commission of rape is not an
indication of a fabricated charge. It must be remembered that HELEN was
continuously threatened by CESAR. In People v. Geromo,34 we held that
intimidation must be viewed in light of the victim's perception and
judgment at the time of the commission of the crime and not by any hard
and fast rule. It is enough that the intimidation produces a fear that if the
victim does not yield to the bestial demands of the accused, something
would happen to her at the moment, or even thereafter, as when she is
threatened with death should she report the incident. Therefore, CESAR
should not be made to derive comfort from such delay, in light of the fact
that HELEN was actually hampered by the fear successfully implanted on
her mind by the appellant himself. Besides, no one can expect a girl, like
HELEN, who was then less twelve (12) years old when she was first
sexually assaulted to act like an adult or a mature and experienced
woman who would have the courage and intelligence to disregard a threat
to her life.35
CESARs attempt to discredit HELENs morality is unfounded. The words
"orgasm" and "withdrawal" were the English translation of the words in
the dialect used by HELEN to describe certain acts or movements by
CESAR. In any event, it has been held that the moral character of a rape
victim is immaterial in the prosecution and conviction of the accused for
even prostitutes can be victims of rape. 36 Moreover, CESAR offered no
credible evidence that HELEN was impelled by any ulterior motive to
fabricate a story of defloration against him. Accordingly, the presumption
that she was not actuated by any improper motive stands. 37
While CESARs guilt was proven beyond reasonable doubt, we do not,
however, concur with the trial court's imposition of the death penalty, done
solely on the basis of the relationship between CESAR and HELEN, in
light of Article 335 of the Revised Penal Code, as amended by Section 11
of Republic Act No. 7659, which partly states:
The death penalty shall be imposed if the crime is committed with any of
the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is
the 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.
A reading of the informations in the three cases reveals that HELEN was
described as the "stepdaughter" of CESAR. That allegation is inaccurate.
46 HELENs
HELEN is not CESARs "stepdaughter" and neither was CESAR
"stepfather," for that relationship presupposes a legitimate
relationship, i.e., CESAR should have been married to Visitacion after the
latters previous marriage to HELENs father was dissolved. A
stepdaughter is the daughter of ones wife or husband by a former
marriage,38 or, a stepfather is the husband of one mother by virtue of a
CRIM2 CASES
marriage subsequent to that of which the person spoken of is the

offspring.39
We have consistently declared that the circumstances under the
amendatory provisions of Section 11 of R.A. No. 7659, the attendance of
which could mandate the imposition of the single indivisible penalty of
death, are in the nature of qualifying circumstances which cannot be
proved as such unless alleged in the information, and even if proved, the
death penalty cannot be imposed.40 Unlike a generic aggravating
circumstance which may be proved even if not alleged, 41 a qualifying
aggravating cannot be proved as a generic aggravating circumstance if
so included among those enumerated in the Code. 42
Thus, to impose the death penalty on the basis of this relationship, which
has not been accurately alleged in the information, would violate
CESARs constitutional and statutory right to be informed of the nature
and cause of the accusation against him. Obviously, in the instant case,
the technical flaw committed cannot be ignored, and it constrains us to
reduce the penalty of death imposed by the trial court to that of reclusion
perpetua.
As to the civil aspect of these cases, the trial court awarded HELEN the
amount of P150,000 as indemnity. We understand this to be the total at
the rate of P50,000 in each case in line with prevailing jurisprudence. 43 In
addition, as held in People v. Prades,44 the amount of P50,000 as moral
damages must also be awarded to HELEN for each count of rape without
need for pleading or proof of the basis thereof. The fact that the
complainant in rape has suffered the trauma of mental and psychological
sufferings which constitute the basis for moral damages is too obvious to
still require recital thereof at the trial by the victim since we assume and
acknowledge such agony on her part as a gauge of her credibility. Since
CESAR committed the rapes with obvious abuse of confidence, which is
an aggravating circumstance,45 exemplary damages pursuant to Article
2230 of the Civil Code, which we fix at P25,000 in each case may be
awarded to HELEN.
The trial court correctly decreed that CESAR should recognize and
support Rey Balinario, the offspring of CESARs bestial
desire.46 Compulsory acknowledgement, as well as the support of the
child, is indeed proper there being no legal impediment in doing so since
CESAR and HELEN are both single. 47 Article 345 of the Revised Penal
Code provides that a person guilty of rape, seduction or abduction shall

be sentenced to indemnify the offended woman, acknowledge the
offspring, unless the law should prevent him from so doing, and in every
case to support the offspring.
WHEREFORE, the decision of the Regional Trial Court of Roxas City,
Branch 14 in Criminal Case Nos. C-4766 to 4668 finding accusedappellant CESAR MELENDRES y BEJO guilty beyond reasonable doubt
of three counts of rape is AFFIRMED, with the MODIFICATION that: (a)
the penalty in each case is reduced from DEATH to reclusion
perpetua and (b) in addition to the P50,000 indemnity for each count of
rape, the appellant is further ordered to pay in each case an additional
amount of P50,000 as moral damages and P25,000 as exemplary
damages.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 118823 November 19, 1996
Costs de oficio.
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
CARLITO ROSARE, accused-appellant.
SO ORDERED.
REGALADO, J.:
In an information filed on June 22, 1992 with the Regional Trial Court,
Branch
5,
Legazpi
City,
herein
accused-appellant
Carlito
Rosare, alias "Lit", was charged with having raped Rosalina Orubia, a 30year old mental retardate with the mental capacity of an eight or nine-year
old child, allegedly committed as follows:
That on or about the 11th day of May, 1992, in the City of Legazpi,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with lewd design, did then and there wilfully, unlawfully
and feloniously and by means of force, have carnal knowledge of one
ROSALINA ORUBIA against her will and without her consent, to her
damage and prejudice.
CONTRARY TO LAW. 1
47
The facts are succinctly and correctly summarized in the Brief for
Appellee filed by the Solicitor General, thus:
The victim Rosalina Orubia is a person with mild mental retardation. Even
at the age of thirty (30) when the rape incident transpired, her mental
capacity is similar to that of an eight (8) or nine (9) year old child. She has
CRIM2 CASES
such a poor learning capacity with an I.Q. ranging from fifty (50) to
seventy (70). She was only able to pass and finish Grades I to VI
because her teachers took pity on her. Although she can perform some
minor household chores and run simple errands, she cannot be trusted to
perform more complicated tasks or to ride alone in a public transportation.
However, despite her mild retardation, the victim is capable of telling the
truth and narrating in detail, incidents as they transpired (tsn., Dr. C.
Belmonte, Mar. 2, 1994, pp. 6-13; Exhs. "D" to "D-1").
On May 11, 1992, at about 6:00 p.m., the victim was in her house, located
at Barangay San Francisco, Legazpi City. Suddenly, appellant, who also
happens to be her cousin (as appellant's mother is the sister of the
victim's father), pulled (ginuyod) and dragged her towards the cogonal
area where she was stripped naked (tsn., R. Orubia, April 6, 1994, pp. 56).
After stripping the victim naked, appellant removed his pants and
underwear and placed himself on top of her. He inserted his penis in her
vagina, causing the victim to feel pain and discomfort. After doing the
pumping motion, he terminated the sexual intercourse and stood up. The
victim likewise stood up, put on her clothes and went home. She did not
shout, cry out, or run away during the ordeal, as she was afraid of
appellant who threatened to kill her if she did so (tsn., R. Orubia, April 6,
1994, pp. 6-9).
When the victim went home, she told her parents about the rape incident.
Her parents took her to the office of the Barangay Captain. In turn, the
latter told them to go to the Police Headquarters to file the necessary
complaint (tsn., R. Orubia, April 6, 1994, pp. 9-10; tsn., A. Orubia, Feb.
23, 1994, pp. 5-9; Exhs. "A" to "A-3"; tsn., SP04 Morano, April 18, 1994,
pp. 3-4; Exhs. "E" to "E-1").
Thereafter, the police advised them to go to the City Health Office to have
the victim examined. Dr. Sarah Vasquez issued a medico-legal certificate
dated May 14, 1992 after conducting a gynecologic examination
on the
48
victim. Her findings are the following: "Hymenal laceration at 6 o'clock and
7 o'clock". In layman's terms, there was hymenal laceration due to the
penetration of the penis in the vagina (tsn., Dr. S. Vasquez, Mar. 4, 1994,
pp. 19-22; Exh. "B"). 2
On December 29, 1994, the trial court rendered judgment 3 finding herein
appellant guilty of the crime of statutory rape as defined under Article
335(3) of the Revised Penal Code and sentencing him to suffer the
penalty of reclusion perpetua with the accessory penalties thereof and to
pay the complainant, Rosalina Orubia, P50,000.00 as moral damages, as
well as the costs.
Hence, this appeal, on the lone assignment of error that the court a
quo erred in convicting appellant of the crime charged despite the fact
that the prosecution failed to prove his guilt beyond reasonable doubt. He
also contends that the information filed against him alleges carnal
knowledge through force, whereas his conviction was based on the
finding that the victim is a mental retardate which fact is not alleged in the
information nor sufficiently established by substantial evidence.
Furthermore, he insists that the victim's testimony is replete with
inconsistencies and facts which are not in accord with human nature and
experience.
Appellant contends that he cannot be convicted of statutory rape because
the fact that the victim was a mental retardate was never alleged in the
information and, absent this element, the acts charged negate the
commission of the offense for which he was convicted by the lower court.
Pursuant to Section 8, Rule 112 of the Rules of Court, we have decided
to motu proprio take cognizance of the resolution issued by the
investigating prosecutor in I.S. No. 92-0197 dated June 2, 1992, which
formed the basis of and a copy of which was attached to the information
for rape filed against herein appellant. Therein, it is clearly stated that the
offended party is suffering from mental retardation. We hold, therefore,
that this should be deemed a substantial compliance with the
constitutional mandate that an accused be informed of the nature of the
charge against him. More importantly, appellant cannot feign ignorance of
the victim's mental condition considering that they are first cousins and
very close 4 in their association, aside from the fact that appellant lives
only around half a kilometer away from the house of the victim. 5 The
element of surprise on the part of the defense can definitely not be
invoked in this case, hence it cannot be said that appellant was in any
way deprived of opportunity to adequately prepare for his defense.
In the case of Commonwealth vs. Stephens, 6 the issue involved was
whether the carnal knowledge of a woman who was insane at the time of
CRIM2 CASES
the commission of the act constitutes rape where there is no proof that
the act was accomplished with physical force and such insanity was not
alleged in the information. The court held that:
Appellant also contends that there
indictment charged the commission
of the alleged victim, while
carnal knowledge of a woman who
objection. . . . .
cannot be a conviction because the

of the act forcibly and against the will
the evidence at most proved
was insane. There is no merit in this
Common-law rape may be committed in one of several ways, and it is not

necessary to set out in the indictment the means or the method
employed. It was not required that the indictment allege that the victim
was insane and incapable of giving her conscious consent. A forcible
ravishment is one done against a woman's will; if it is done against her
will, it is of necessity without her consent; if she is insane too weak of
mind to give a rational consent, then it follows that she has been forcibly
ravished. . . . .
. . . (C)arnal knowledge of an insane woman, knowing her to be insane, is
rape. There is a lack of capacity to consent, and it is presumed that the
act was done without her consent, hence it is against the female's will;
the force required may be in the wrongful act itself. It follows that such act
is done "forcibly and against her will." In an indictment the office of the
words "against her will" is merely to negative consent. (Emphasis
supplied)
Moreover, there exists ample and convincing proof to show that the victim
is a mental retardate, as may be gleaned from the following facts:
1. The victim was basically asked purely leading questions on direct
examination by the fiscal, without any objection from the defense counsel,
and also when further questioned by the court. Apparently, she could
answer only leading questions.
49
2. There was no question raised about complainant's mental retardation.

Her deficient mentality stuck out like a sore thumb at the center. Her
behavior as a mental retardate was so obvious that even the investigating
fiscal, who is not a man of science, 7 was able to observe it during the
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preliminary investigation and which thereby prompted him to recommend

the victim for psychiatric examination.
3. In the victim's own testimony, she was spanked by her mother when
she returned home on the night of the incident. Bearing in mind that the
victim was already 30 years of age at that time, such form of punishment
normally inflicted on small children is a mute but eloquent witness to the
blatant reality that she is not in a normal mental state or level.
4. Appellant was definitely no stranger to complainant Rosalina Orubia.
She is his first cousin and his house is only a few meters away from
where she lives. It would have been quite impossible for him not to have
known or at least heard about the victim's mental condition. It is not farfetched to conclude that it was precisely his knowledge that the victim is a
mental retardate which emboldened him to commit the offense.
5. An expert witness, Dr. Chona Belmonte, testified and confirmed that
the victim is a mental retardate based on the psychiatric examination she
conducted on her.
It is argued by appellant that since the victim was not subjected to a
series of psychological and other related tests, and the doctor who
conducted a preliminary examination on the victim failed to make an
official report but merely issued an initial certification about her condition,
there is nothing to support the findings of the trial court that the victim is a
mental retardate. We disagree.
Prosecution witness Dr. Chona Belmonte, who was admitted by appellant
to be an expert witness, testified that the initial examination she
conducted on the victim constituted sufficient basis to conclude that the
latter is a mental retardate with a mental capacity of a child between eight
and nine years of age. She explained that during the examination, she
observed that the victim's performance was really compatible with that of
a person with mild mental retardation. This, together with the other
circumstances obtaining in this case, considerably adequate to prove the
mental condition of complainant.
The victim's straightforward, consistent and unwavering testimony is
equally revealing. Witness these exchanges:
ASST. CITY PROS. RUBIO:
A: Towards the cogonal area.

xxx xxx xxx
Q: Were you able to reach that cogonal area?
Q: Do you know Carlos Rosare?
A: Yes, sir.
A: Yes, sir.
Q: Upon reaching that place, what did the accused or Carlito Rosare do?
Q: Why do you know him?
A: Carlito stripped me naked.
A: His mother is the sister of my father.
Q: After you were stripped naked, what did he do next?
Q: Now, if this Carlos Rosare is around, will you please point to him?
A: He removed his pants.
A: Yes, sir.
Q: What about his brief? Did he remove the same?
Q: Will you point to him?
A: Yes, sir.
A: That man, sir. (witness pointed to a man seated inside the courtroom,
who when asked of his name answered, Carlito Rosare). On May 11,
1992, more or less 6:00 p. m. where were you?
Q: Now after he removed his pants together with his brief, what did he do
next?
A: He placed himself on top of me.
A: In my house.
xxx xxx xxx
Q: Where is your house located?
Q: After he placed himself on top of you, what did he do next?
A: At Barangay San Francisco, Legazpi City.
A: He inserted his penis inside my vagina.
Q: While there at your house on said time, do you recall of (sic) any
unusual incident?
Q: What did you feel when he inserted his private organ into yours?
A: Yes, sir.
A: Painful.
50
Q: What was that?
Q: For how long did he stay on top of you?
A: I was pulled (ginuyod) by Carlito.
A: In a short time.
Q: To where? To what place were you dragged?

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Q: Now, after he was through with having ah or after the sexual

intercourse, what did he do next?
Q: You said that you were pulled by Carlito Rosare at the cogonal area.
Why did you not shout?
A: He made in and out of his organ (sic).
A: I was afraid.
Q: Now, after that, what did he do next?
Q: Why were you afraid?
A: He stood up.
A: He threatened me.
Q: And after he stood up, what did he do next?
Q: With what?
A: He put on his pants.
A: He will kill me if I shout.
COURT:
Q: You also claimed that Carlito Rosare removed your skirt and panty at
the cogonal area and thereafter removed his pants and brief. While
Carlito Rosare was removing his pants and brief, why did you not run
away?
Q: What about you? What did you do when he stood up?

A: I dressed up also.
A: I was afraid. 8
Q: After both of you were dressed up, where did you and Carlito go?
A: I went home and Carlito went home also.
On cross-examination, complainant Rosalina Orubia remained steadfast

in her testimony:
ASST. CITY PROS. RUBIO: (continuing)
ATTY. GOMEZ:
Q: Now, you said you were dragged.
Q: Now, when you were pulled towards that cogonal area, you said you
were stripped of your dress. How did Carlito Rosare remove your dress?
ATTY. GOMEZ:
(Witness has no answer)
Misleading, Your Honor. The witness testified that she was pulled, not
dragged.
COURT:
51
COURT:
Q: Where you the one who removed your clothes?
Sustained.
A: It was Carlito Rosare who removed my clothes.
ASST. CITY PROS. RUBIO:
ATTY. GOMEZ: (continuing)
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Q: Carlito removed your clothes by using his two hands?
Q: But you were naked already?
A: Yes, sir.
A: Yes, Your Honor.
Q: And after that you lie (sic) down of course, is it not?
Q: Standing?
A: No, sir.
A: Yes, Your Honor.
Q: You waited for Carlito to remove his pants?
Q: In front of him?
A: Yes, sir.
A: Yes, Your Honor.
Q: And that was the time that you lie (sic) down when he removed his
pants?
Q: While he was removing his pants, why did you not run away?
A: I was afraid.
A: Yes, sir. 9
Q: What were you afraid of?
On further questions of the trial court, the victim continued to narrate her
ordeal with the same innocent simplicity and consistency, to wit:
Q: On May 11, 1992, was that the first time that you had sexual
intercourse with Carlito Rosare?
Q: Before that, did Carlito make an intimation of any liking to you?
Q: What did you feel when he told you that he's going to kill you?
A: I was afraid. 10
A: No, sir.
Q: What did he tell you, if any, when you were pulled at the cogonal area?
A: None, sir.
52
Q: Now, you said that when Carlito Rosare was removing his pants, were
you already naked lying down?
CRIM2 CASES
Q: When did he tell you that?

A: When he was stripping me naked.
A: Yes, sir.
A: Not yet, sir.
A: He told me that he's going to kill me.
A witness who testifies in a categorical, straightforward, spontaneous and

frank manner and remains consistent is a credible witness. The candid
and unwavering narration by the victim here of how she was raped, as
borne out by the records and the transcript of stenographic notes, bears
the earmarks of credibility. We are satisfied that Rosalina Orubia, the
hapless complainant, is a credible witness and that her testimony is
worthy of judicial acceptance. 11
Appellant likewise faults the trial court for giving full fait and credence to
the testimony of the victim, theorizing that the same is inconsistent with
human nature and experience in that the victim failed to make an outcry
despite the fact that her siblings were inside their house which was only
ten meters away from the scene of the crime; she did not answer when
she heard her mother calling, which could have deterred the commission
of the act; she acted normally immediately after and despite her alleged
ravishment; and it was never shown that the victim suffered from shock,
bleeding or pain. Furthermore, the victim admitted during her crossexamination that her mother constantly discussed the incident with her
and even instructed her on what to say in court.
gift of articulation and inventiveness. Even with intense coaching,

assuming this happened as appellant insists that the victim's mother
merely coached her on what to say in court (pp. 6-7, Appellant's Brief), on
the witness stand where she was alone, it would eventually show with her
testimony falling into irretrievable pieces. But this did not happen. During
her testimony, she proceeded, though with much difficulty, to describe the
sexual assault in such a detailed manner (tsn., R. Orubia, Apr. 6, 1994).
Certainly, the victim's testimony deserves utmost credit. 15
We once again reiterate the oft-repeated holding that not every witness to
or victim of a crime can be expected to act reasonably and conformably to
the usual expectations of everyone. People may react differently to the
same situation. One person's spontaneous, or unthinking or even
instinctive, response to a horrible and repulsive stimulus may be
aggression, while another's may be cold indifference. 12 Yet, it can never
be successfully argued that the latter are any less sexual victims than the
former. 13
Appellant then digresses to impute an existing old grudge between his

parents and those of the victim as the reason behind the filing of the
present rape case against him. He avers that Rosalina's mother, who is
the sister of appellant's father, got angry when their father left his
properties to herein appellant's father. This contention is baseless.
The reaction of the unfortunate Rosalina Orubia, who has the mentality of
an eight or nine-year old child, is to be expected from a child of such
tender years. She lost no time in telling her mother about what happened
immediately upon reaching home. The records affirm that she instinctively
narrated her ordeal to her mother, and ultimately to the court.
Her ingenuous narration before the court below of when and how
appellant ravished her was so clear and convincing as to leave no doubt
that it was not a contrived or exaggerated story. Verily, the court a
quo was correct and justified in believing her. Courts usually lend
credence to testimonies of young girls, especially where the established
facts indubitably point to their having been sexually assaulted. Besides, it
is inconceivable that a young girl would invent such a sordid tale of her
being defiled by the accused unless it was the truth. Time and again, this
Court has held that when an alleged victim of rape says that she was
violated, she says in effect all that is necessary to show that rape has
been inflicted on her and so long as her testimony meets
the test of
53
credibility, the accused may be convicted on the basis thereof. 14
As insightfully observed by the Solicitor General:
Given the low I.Q. of the victim, it is impossible to believe that she could
have fabricated her charges against appellant. She definitely lacked the
CRIM2 CASES
It is inconceivable that a mother would draw her daughter, a mental

retardate at that, into a rape scam with all its attendant scandal and
humiliation just because of a supposed dispute over property. No mother
in her right mind could possibly wish to stamp her daughter falsely with
the stigma that follows a heinous crime that is rape. 16 And considering
that in this case the victim is suffering from a mental abnormality, we
cannot fathom how Rosalina's mother could be so heartless as to expose
her daughter to public ridicule just to get even with the family of appellant.
That would be senseless truculence at its peak. More importantly, it bears
emphasis that the alleged contention between the two families arose way
back in 1981, 17 hence, it is quite incomprehensible how any alleged
intention to avenge an old grudge would materialize only in 1992, or after
more than ten years.
In the end, appellant could only offer an alibi, alleging that on the date
and time of the incident, he was in Naga City where he worked as a
helper in the gravel and sand business of his employer, Jun Evasco. He
claims that on May 11, 1992, at around 11:30 in the morning, he was at
his house in San Francisco, Legazpi City and that after eating lunch, he
proceeded to San Francisco proper to cast his vote. Thereafter, he took a
bus and went back to Naga City where he arrived at 5:30 in the afternoon.
He asserts that he was in a hurry to go back to Naga City that afternoon
because they had to make a trip to Manila the following day. His
testimony was sought to be corroborated by a former household helper in
the house of Jun Evasco.
A cursory appraisal of the testimonies of appellant and his witness leaves

much to be desired therefrom. Appellant himself was very exact whenever
there was any reference made with respect to time. Thus, he vividly
recalled that he arrived in San Francisco, Legazpi City at 11:30 A.M., cast
his vote at 12:30 P.M., took a bus for Naga City at 2:45 P.M., arrived in
Naga City at 5:20 P.M., and took his supper at 7:00 P.M. But, irony of
ironies, he conveniently forgot the date when he left for Manila which was
only supposed to be on the day following the date of the incident, and yet
he surprisingly remembered that on the day they were supposed to leave
for Manila, he woke up at 5:30 and they left at 7:00 in the morning.
The testimony of his corroborating witness, Maria Theresa Odilla, did not
fare any better. Worse, she displayed a suspiciously uncanny ability to
recall with precision even the minutes details of the events as they
happened on that fateful day. This witness testified that she was sure that
appellant was in the house of Jun Evasco, their employer, in Naga City
between 5:00 and 6:00 P.M. of May 11, 1992 because she had a
wristwatch; that her co-employee, a certain Minds Medalla, was then
cleaning near the sala, while appellant was resting near the main door of
the house; that during all the time that appellant was there, they just
talked; that at 6:00 P.M., appellant was still seated near the main door;
that at that time also, the ten-wheeler truck in which appellant assisted as
helper was parked inside the garage.
Moore, in his Treatise of Facts, states that in many cases, especially
where it is sought to prove an alibi, judges have expressed their lack of
confidence in testimony from mere recollection as to the exact moment of
an occurrence. Men generally take so little note of the passing of time that
an approach to accuracy is all that can be expected. When one tries to fix
some event as occurring on that day, when there was nothing to fix it at
the time, it is very uncertain; and more than uncertain is it to try and
recollect the exact hour or half-hour in the day when something occurred
with nothing to fix it in one's mind at the time. 18 If a witness should testify
to a minute recollection of the circumstances attending a long-past
incident which required only momentary and perfunctory attention, his
54 if opposed
testimony, however honest, would deserve little consideration
to the probabilities and to facts about which there can be no great
doubt. 19
In the case at bar, it befuddles this Court how appellant and his witness
could have recounted with the utmost exactitude of time, place, and
CRIM2 CASES
circumstance the events which took place on that fateful day. We can only
regard with suspicion the testimony of the corroborating witness for the
defense with respect to a circumstance so trivial and commonplace when
it occurred that a witness could hardly be supposed to have noticed and
charged her memory with it, when there was no special reason why she
should observe it. 20
Appellant's all too familiar and discredited defense of alibi cum denial
does not inspire the slightest belief or consideration. The doctrine
consistently upheld by this Court is that alibi and denial cannot prevail
over the positive identification of the accused as the perpetrator of the
crime. In addition thereto, appellant has failed to establish that it was
physically impossible for him to have been at the crime scene when it
happened. 21 It is virtually a sacramental rule that in order for the defense
of alibi to prosper, it is not enough to prove that appellant was somewhere
else when the offense was committed but it must likewise be
demonstrated that he was so far away that it was not possible for him to
have been physically present at the place of the crime or its immediate
vicinity at the time of its commission. 22
There is not an iota of doubt that appellant is guilty of the crime charged
and that, legally, he is in a no-win situation. The testimony of the victim,
Rosalina Orubia, bears the signum of truth, and is further corroborated by
the medical examination conducted on her three days after the sexual
assault. The examination revealed that there was a superficial laceration
on the hymen which took one to two days to heal. On the basis, therefore,
of both the physical and testimonial evidence presented by the
prosecution, we find that the trial court did not err in convicting appellant
of the crime of rape.
Nonetheless, we find and so hold that appellant cannot be held liable for
statutory rape. The age of the victim is an essential element in the crime
of statutory rape, 23 but the information filed in the case at bar does not
contain any averment thereof, even at least with regard to the mental age
of the victim. 24 This notwithstanding, appellant may still be convicted of
rape under paragraph 2 of Article 335 of the Code on the basis of the
facts and evidence as hereinbefore discussed.
In addition, while there may have been no physical force employed on the
victim, considering however that she is feeble-minded, there is authority
to the effect that the force required by the statute is the sexual act itself,
to wit:
Appellant contends in the instant case that it was not shown that the
carnal knowledge was by force. It is plain, however, "forcibly" does not
mean violently, but with that description of force which must be exercised
in order to accomplish the act for there is no doubt that unlawful
connection with a woman in a state of unconsciousness, produced by
profound sleep, stupor or otherwise, . . . amounts to rape. . . . (T)his force
may be constructive . . . where the female was an idiot, or had been
rendered insensible by the use of drugs or intoxicating drinks, . . . she
was incapable of consenting, and the law implied force. . . . In such a
case the force required by the statute is the wrongful act. . . . A man who,
knowing of a woman's insanity, takes advantage of her helpless condition
to gratify his own lustful desires, is guilty of felonious rape, though he
uses no more force than that involved in the carnal act, and though the
woman offers no resistance to the consummation of his
purpose. 25(Emphasis supplied)
Accordingly, appellant can also be held liable even under the first
paragraph of Article 335 of the Revised Penal Code. Women, like the illfated girl in this case, must be protected, not only against the lecherous
members of the opposite sex, but against themselves as well; and men
who, knowing of their imbecility, take advantage of their helpless condition
to gratify their own satyric desires, are guilty of rape, though they use no
more force than that involved in the carnal act, and though the woman
offers no resistance to the consummation of their purpose.
In the language of Lord Chief Justice Campbell in Regina v. Richard
Fletcher: 26 "It would be monstrous to say that these poor females are to
be subjected to such violence, without the parties inflicting it being liable
to be indicted. If so, every drunken woman returning from market, and
happening to fall down on the roadside, may be ravished at the will of the
passers-by." 27 Indeed, our judicial experience attests that all the
foregoing pronouncements laid down in those foreign jurisdictions
are as
55
true and applicable here as they are therein.
WHEREFORE, under the foregoing modified rationale and legal basis,
the appeal of accused-appellant Carlito Rosare is DISMISSED and the
impugned judgment of the court a quo is hereby AFFIRMED.
CRIM2 CASES
SO ORDERED.

SUPREME COURT
Manila
Upon arraignment, the accused pleaded not guilty. At the ensuing trial,
the prosecution presented three witnesses, namely: Anna Liza Jacobe,
her grandmother Rafaela Jacobe and Dr. Jesusa Nieves of the PNP
Crime Laboratory Service, Camp Crame, Quezon City, who conducted
the medical examination of complainant after the alleged incident of rape.
The defense, on the other hand, presented Anna Liza Jacobe as hostile
witness and the accused himself.
The trial court summarized the testimonies of the witnesses, as follows:
THIRD DIVISION
G.R. No. 107800 October 26, 1999
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLLY PARANZO, @ LORENZO PARANI, accused-appellant.
GONZAGA-REYES, J.:
This is an appeal from the decision dated September 3, 1992 of the
Regional Trial Court, Fourth Judicial Region, Branch 76, San Mateo, Rizal
in Criminal Case No. 1667 finding accused Rolly Paranzo alias Lorenzo
Parani guilty of the crime of rape committed against complainant Anna
Liza Jacobe and sentencing him to suffer the penalty of reclusion
perpetua, to indemnify her in the amount of P30,000.00 and to pay the
costs.
In a criminal complaint filed by Anna Liza Jacobe, with the assistance of
her mother Gloria Jacobe, Rolly Paranzo alias Lorenzo Parani was
accused of the crime of rape committed as follows:
That in or about 1:00 a.m., on November 13, 1991, in the Municipality of
Rodriguez, Rizal, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, by means of threats, force and
56
intimidation, did then and there wilfully, unlawfully and feloniously have
carnal knowledge of the undersigned complainant Anna Liza Jacobe
against her will and consent.
Contrary to law. 1
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Complainant's version of the subject incident is as follows: On November

13, 1991, at around 1:00 a.m., accused Paranzo raped her inside the
house of one Teresa Rivera located at Yagit, San Rafael, Montalban.
While she was sleeping, accused lied on top of her. She was awakened
and she noticed blood on her shorts, the blood coming from her private
part. She felt pain in her genital. She tried to stop him but he continued
doing what he was doing. She did not shout because accused was
intimidating her, pointing a knife at her neck.
Annaliza further alleged that that was not the first time that accused
sexually abused her. Accused first raped her in 1990 near the calamansi
plantation in San Jose, Montalban. She reported it to her mother but the
latter did not do anything. The second time accused raped her was in the
house of accused's brother located at the other side of the river. She did
not do anything because accused was intimidating her. She was then
living with her father at Ibayo, Maly but accused brought her to his
brother's house and there raped her. The third time accused raped her
(November 13, 1991), accused and her (complainants) mother, who had
been living together, were already separated.1wphi1.nt
Complainant's grandmother, Rafaela Jacobe, testified that complainant is
the daughter of her (Rafaela's) son; that in November 1991, complainant
was not living with her. Complainant started living with her only after the
incident when she (complainant) was raped in the calamansian in San
Jose, Montalban; that at the time complainant was raped, she was still
eleven (11) years old; that she has no personal knowledge of the incident;
that after the rape incident, complainant's mother gave complainant to her
(Rafaela) because allegedly complainant is hardheaded; that she does
not have a grudge against her daughter-in-law, complainant's mother,
because she is a good woman and it is her son who was negligent; that
complainant's mother and accused are not living together anymore
because complainant's mother has another husband again, a different

one.
Dr. Jesusa Nieves of the PNP Crime Laboratory Service, Camp Crame,
Quezon City, conducted the medical examination of complainant after the
alleged incident of rape. She testified that at the time of the examination
which she conducted on November 15, 1991, at around 11:30 a.m.,
subject (complainant) was in a non-virgin state physically but there was
no external sign of recent application of any form of violence; that there
was no sign of infection, neither spermatozoa in the vagina and the area
of surrounding the passage of urine; that based on the healed laceration
she saw during the examination, it is possible that the victim had sexual
intercourse seven (7) days or more; It could be months or years based on
the healed laceration, but based on the findings, which is abrasion on the
labia menora, it is possible that there was recent trauma at the genitalia of
the victim, meaning that the abrasion could have been caused by a rub or
friction of a hard blunt object at the area of the genitalia, more or less
within five (5) days prior to the examination on November 15, 1991; that
the loss of victim's virginity was caused by sexual intercourse.
Subsequently in a surprise turn of events, complainant Annaliza testified
for the Defense and stated that what she wants is "palabasin na po namin
siya dahil wala naman pong nangyari sa amin" (TSN, p. 3, August 26,
1992 hearing). In connection with the said statement, complainant
executed an affidavit of desistance. (Exh. 1). Complainant further testified
that she lied when she testified before in Court and she lied when she
executed her affidavit complaint in connection with this case; that when
she testified, she agreed to tell the truth but when she testified before the
Court, she was not telling the truth; that she is not aware that by giving
false testimony, she can be held liable; that she executed the affidavit of
desistance because of the promise of monetary settlement but she had
not yet been paid; that were it not for the monetary settlement, she would
not execute the affidavit of desistance.
Upon the other hand, accused Rolly Paranzo pleaded "NOT
GUILTY" to
57
the charge when arraigned with the assistance of Atty. Regino
Garillo, counsel de oficio, on January 23, 1992. He denied the charge
against him and claimed that on the date and time of the alleged rape, he
was working in a slaughterhouse in San Jose, Montalban. He reports for
work at 4:00 p.m. and leaves work at 7:00 a.m. the following day. He
works at nighttime.
CRIM2 CASES
Accused gave a reason for the filing of this case against him. Thus: the
child's mother was borrowing P200.00 from him and since he did not lend
her that amount, she threatened him by saying: "if you will not lend me
that amount, you will regret afterwards". Subsequently, he was arrested
by the police but he was not told the reason why he was arrested.
Accused further alleged that he was arrested on November 12, 1991,
brought to Fiscal Naola on November 13, 1991 and then to the Fiscal's
Office in Pasig on November 14, 1991; that he signed the waiver of
detention not knowing that it was a waiver since he was told by the police
that it was regarding the food; that the slaughterhouse where he works is
far from his place of residence. From Sitio Yagit going to San Jose, he
would have to take a jeep since it cannot be reached by walking. 2
The trial court found that the accused-appellant raped Anna Liza as
charged, and held that although there was no sign of violence on her
body, rape was committed because she was under twelve years of age.
The dispositive portion of the decision states:
WHEREFORE, premises considered, the Court finds accused Rolly
Paranzo alias Lorenzo Parani guilty beyond reasonable doubt of the
crime of Rape as defined and penalized under Art. 335 of the Revised
Penal Code and hereby sentences him to suffer the penalty of reclusion
perpetua, to indemnify complainant Anna Liza Jacobe in the amount
P30,000.00, and to pay the costs. 3
The accused-appellant appeals to this Court on the following assignment
of errors:
THE LOWER COURT ERRED IN CONVICTING THE ACCUSED
NOTWITHSTANDING THE FACT THAT THE TESTIMONY OF THE
COMPLAINANT WAS NOT CORROBORATED AND TAINTED WITH
DOUBT.
THE LOWER COURT ERRED IN NOT GIVING FULL CREDIT AND
CONSIDERATION ON (SIC) THE AFFIDAVIT OF DESISTANCE AND
TESTIMONY OF THE COMPLAINANT WHO OPENLY TESTIFIED THAT
SHE LIED BEFORE THE LOWER COURT.
THAT THE LOWER COURT ERRED IN MAINTAINING THAT

COMPLAINANT WAS A MINOR ALTHOUGH NO PROOF OF BIRTH
HAS BEEN PRESENTED. 4
The appellant avers that a conviction for the crime of rape must be based
on clear and convincing proof of guilt and not merely on the
uncorroborated testimony of complainant Anna Liza Jacobe which is not
clear and free from any contradiction. He points out that complainant's
allegation that the rape on November 13, 1991 was committed in the
house of a certain Teresa Rivera is not supported by any showing that
she indeed slept at the said house on the night of November 12, 1991
and stayed there up to November 13, 1991, and that the complainant,
sometime in the course of her testimony, retracted and testified that what
she earlier told the lower court was a pure lie, thereby casting doubt on
her credibility.
Appellant also contends that except for the testimony of Rafaela Jacobe,
complainant's grandmother, no proof was ever presented to show the
exact date of birth and age of the complainant. Furthermore, accusedappellant adverts to certain inconsistencies between the testimony of the
complainant and that of Dr. Jesusa Nieves, i.e. Dr. Nieves testified that
based on the healed laceration she saw during the examination, it is
possible that the victim had sexual intercourse, months or years or not
later than seven (7) days or more before; that the abrasion found on
victim's labia menora is a recent trauma which could have been caused
by a rub or friction of a hard blunt object at the area of the genitalia, more
or less five (5) days prior to November 15, 1991 (TSN, pp. 5-6, July 16,
1992), whereas complainant testified that on November 13, 1991 at about
1:00 A.M., the accused-appellant raped her and as a matter of fact blood
came out of her private part (TSN, p. 4, March 4, 1992; TSN, pp. 15-16,
March 25, 1992). Thus, it was not possible that complainant was raped on
November 13, 1991, which is only three (3) days before she was
physically examined.
The Solicitor General filed brief for the appellee praying for the
affirmance
58
of the judgment of conviction of the accused-appellant and for the
increase in the civil indemnity from P30,000.00 to P50,000.00 pursuant to
prevailing jurisprudence. It is contended that the victim's testimony that
she was raped by the accused in the early morning of November 13,
1991 at the ground floor of the house of Teresa Rivera, the then live-in
partner of the accused-appellant, need not be corroborated by statements
CRIM2 CASES
of other persons including that of Teresa Rivera who according to

complainant all slept in the second floor of the said house that night and
did not know that the accused and the complainant were at the ground
floor. The appellee also contends that there is no inconsistency between
the testimony of Dr. Jesusa Nieves and that of the complainant regarding
the sexual assault committed by the accused-appellant.
As regards the alleged failure of the prosecution to establish that the
complainant was below twelve years of age at the time of the rape
incident, appellee argues that such contention is of no consequence
because under Article 335 of the Revised Penal Code, rape is committed
by having carnal knowledge of a woman by, among others, using force or
intimidation and the instant case, the rape of the complainant was
accomplished by using force and/or intimidation. The Solicitor General
contends that on the two (2) earlier occasions that complainant Anna Liza
was sexually molested, she was intimidated (TSN, pp. 3-4, March 25,
1992) and on the third time that she was ravished, a knife was pointed at
her neck (TSN, p. 17, March 25, 1992). Whether or not complainant was
below twelve years of age at the time she was raped is beside the point.
The appellee controverts the argument of the appellant that since Dr.
Nieves' findings show that there was no external injury on the private part
of Anna Liza, sexual intercourse in this case could have been
consummated with her consent and that the abrasion found at the labia
menora could have by the complainant herself by scratching her genitalia
prior to her medical examination. The appellee maintains that as
explained by Dr. Nieves, based on the healed laceration, it is possible that
Anna Liza had sexual intercourse seven (7) days or more prior to
November 15, 1991, but the abrasion at the labia menora could have
been caused by sexual intercourse within five (5) days from November
15, 1991, the day she conducted the physical examination of Anna Liza
(see TSN, p. 6, July 16, 1992), meaning that the sexual assault could
have happened on November 13, 1991.
Finally, as regards the defense of alibi put up by the accused-appellant,
as well as his contention that the victim's mother had an axe to grind
against him, these claims are unavailing in the light of clear and positive
evidence of the prosecution establishing accused-appellant's guilt.
Besides, it was not physically impossible for the appellant to have
committed the offense of rape imputed to him in or about 1:00 A.M. of
November 13, 1991 for the reason that Sitio Yagit, Barangay San Rafael,
where the rape incident happened and Barangay San Jose where the
slaughter house (workplace of accused-appellant) is located are
separated only by Barangay Balite and that these three barangays are
located in the Municipality of Montalban, (now Rodriguez), Rizal which
could be traversed by jeep.
Complainant's testimony is clear and positive on this point:
We find no merit in the appeal.
Q: And where is this house?
Art. 335 of the Revised Penal Code, 5 states:
A: There in Yagit, mam.
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.
Circumstances 1, 2 and 3 are alternative circumstances. When the rape
is committed by using force or intimidation, the victim does not have to be
less than twelve (12) years of age. It is only required that the proper
complaint and information for rape must clearly describe the specific
circumstance which would make the carnal knowledge of a woman qualify
as rape under Article 335. Otherwise stated, the complaint and
information must concretely describe the crime of rape in any of the
specified forms prescribed in the said Article 335 so as to duly inform the
accused of the nature of the accusation against him. 6
The complaint in the case at bar alleges that the rape was committed by
accused-appellant against complainant's will and consent "by means of
threats, force and intimidation."
59
A careful review of the evidence for the prosecution convinces us that the
accused had carnal knowledge of the offended party through the use of
force and intimidation in the early morning of November 13,
1991.1wphi1.nt
CRIM2 CASES
Q: Now, in the early morning of November 13, 1991, where were you?
A: In the house where he is residing, mam. (Pointing to the accused)
Q: What municipality?
A: Bo. San Rafael, Montalban, mam.
Q: Now, why were you at the house where Rolly Paranzo was staying?
A: Because my mother left me there, mam.
Q: Why?
A: Because he said that we sleep there, mam. (Pointing again to the
accused)
Q: When you said we, what do you mean?
A: Myself and my mother, mam.
Q: And did your mother and you sleep in that place?
A: It is only me who slept there, mam. My mother left me.
Q: Why did your mother leave you, do you know?
A: Yes mam.
Q: Why, what is the reason?
A: Because my mother does not want to sleep there, mam.
Q: How about you, why did you sleep there?
A: Yes mam.
A: Because my mother left me there, mam.
Q: Where?
Q: Now, while you were thus in the house of the accused, was there
anything unusual that happened?
A: In my private part, mam. (Witness pointing to her private part)

Q: And when you woke up, what did the accused do?
A: Yes mam.
A: He left, mam.
Q: Will you state before the Honorable Court what was that incident?
Q: Now, you said that you noticed that blood was on your shorts. At the
time that you were roused from your sleep, did you notice where your
shorts was?
A: He (laid) on top of me, mam.

Q: What do you mean when you said he lied on top of me?
A: Yes mam.
A: I did not know that because I was sleeping, mam.
Q: Where was your shorts then?
Q: And you said that you were sleeping. How were you able to know that
he laid on top of you?
A: Because I felt it, mam.
A: My shorts was near my feet, mam.

Q: Do I get it right from you that at the time this incident happened, you
were then wearing shorts when you slept?
Q: And when you felt that he laid on top of you, do I get it right from you
that you were roused from your sleep?
A: Yes mam.
A: Yes mam.
Q: Now, upon finding out that the accused laid on top of you and you
were roused, what then did you do?
Q: Now, what did you notice when you were roused from sleep and you
said that he laid on top of you?
A: I told my mother about it, mam.
A: That I have blood, mam.

Q: Where?
xxx xxx xxx

60
Q: What time, more or less, was that when you noticed that the accused
was already sleeping beside you?
A: In my shorts, mam.
A: About 11:00 o'clock, sir.
Q: And did you notice where the blood came from?
CRIM2 CASES
Q: And after you noticed that the accused was sleeping beside you,
according to you, you asked him to go away?
A: None, sir, he just continued what he was doing.

Q: How long did he stay on top of you?
A: Yes sir.
A: For a short time only, sir.
Q: But nonetheless, the accused did not leave?
Q: Were you scared?
A: No sir.
A: Yes sir.
Q: And as a matter of fact, he slept beside you?
Q: Did you do anything?
A: Yes sir.
A: Yes sir.
Court:
Q: What did you do?
Q: Did anything happen when both of you were sleeping beside each
other?
A: I stood up, sir.
A: There was, sir.
Atty. Garillo:
Q: What happened?
Q: When did you stood up?
A: He stayed on top of me, sir.
A: That night, sir.
Q: What did you feel when he stayed on top of you?
Q: Was that before or after the accused raped you?
A: I felt pain on my genital, sir.
A: After the accused was on top of me, sir.
Q: Did you try to stop him?
Q: When you go to sleep, you were fully dressed. Am I correct?
A: Yes sir.
A: Yes sir.
Q: Did he stop?
61
Q: Were you wearing a dress like a girl?
A: No sir, he did not stop.
A: Yes sir.
Q: What did he do?
Q: How did the accused able to succeed in raping you when according to
you, you were dressed?
CRIM2 CASES
A: Because he undressed me, sir.
Atty. Garillo:
Q: And when the accused undressed you, what did you do?
Q: How did you ask help when the accused was undressing you?
A: None, sir, just cried.
A: I told him not to continue, sir.
Q: Did you not shout for help while the accused was undressing you?
Q: To whom are you addressing that?
Fiscal:
A: He, sir.
May we know, your Honor, if this is also on November 13?
Q: My question is, did you shout?
Atty. Garillo:
A: No, sir.
Yes, your Honor, the incident of November 13, in the house of Teresa
Rivera.
Q: Why did you not shout?

A: Because he was intimidating me, sir.
Fiscal:
Q: How did he intimidate you?
Well, your Honor please, the question is now misleading considering the
tender age of the child now being under cross-examination because the
statement of the child was that she was awakened when she felt that the
accused was on top of her, kissing her and she noticed that she no longer
has her panty and that she tried to shout but the accused pointed a sharp
instrument at her neck at the time that the witness felt that the accused
was on top of her that she was awakened and she no longer has a panty,
your Honor please.
Atty. Garillo:
Q: Was that all that he did insofar as threatening you or intimidating you,
as you said?
A: Yes sir.
Q: Was he armed at the time when he threatened you?
Well, your Honor, I am just following up the answer of the witness, your
Honor, and I am on cross-examination.
Court:
A: He told me that if ever I tell the matter, he will kill me and my mother,
sir.
62
A: He has, sir.
Q: What was his weapon?
Alright, I would allow the witness to answer.
A: A small knife, sir.
A: I did ask help, sir.
Q: How big is the knife?
CRIM2 CASES
A: Small only, sir, just this.

(Approximately about 8 inches)
Q: So, you are telling the Court now that you slept together from almost
11:00 o'clock in the evening when you noticed the accused beside you up
to the morning of November 13?
Q: Accused was holding the knife?
A: Yes sir.
A: Yes sir.
Q: While he was on top of you, accused was also holding the knife?
Q: And the accused, after having succeeded in raping you on November

13 in the morning, at 1:00 o'clock in the morning, he slept there beside
you?
A: Yes sir.
A: Yes sir.
Q: Where was it pointed to?
Q: And you stayed with him on that morning?
A: It was pointed on my neck, sir.
A: Yes sir. 8
Q: Which part of your neck?

A: Here, sir. (Witness pointing to the right side of her neck).
Q: Which hand of the accused was holding the knife?
A: The right hand, sir.
Q: And after the accused had successfully raped you on that night of
November 13, 1991, where did he stay?
A: In the house of his brother, sir.
Q: On that night, where did he continue to sleep?
A: In that same place, sir.
Q: Where? Beside you or upstairs?
63
Contrary to the claim of the appellant, the trial court based its judgment of
conviction not solely on complainant's testimony. The testimony of
complainant Anna Liza Jacobe was corroborated by the Medico-Legal
Report (No. M-1652-91) on the examination conducted by prosecution
witness, Dr. Jesusa Nieves, (Exh. E) to the effect that the complainant,
when medically examined by her, was found to be "in non-virgin state
physically; there are no external signs of recent application of any form of
violence." Dr. Nieves however, also testified that Anna Liza's hymen was
already lacerated since she (Dr. Nieves) was able to insert the speculum
during the examination; that the laceration of Anna Liza's hymen may be
due to sexual intercourse or as a result of its penetration by a hard object,
like a penis, among others, (Tsn, pp. 5-6, July 16, 1992). Dr. Nieves
explained that based on the healed laceration, it is possible that Anna
Liza had sexual intercourse seven (7) days or more prior to November 13,
1991 but the abrasion at her labia menora could have been caused by
sexual intercourse within five (5) days from November 15, 1991, when
she examined her. Dr. Nieves testified thus:
Q. At the time you conducted examination upon the person of this
Annaliza Jacobe, will you state before this Court the possible time that
she (ha(d) lost her virginity?
A: In the place where we slept, sir.

A. Basing on the healed laceration which I saw during the examination it
is possible that the victim had sexual intercourse seven (7) days or more,
CRIM2 CASES
sir. It could be months or years based on the healed laceration but based
(on) the findings which is abrasion at the labia menora, it is possible that
there was a recent trauma at the genitalia of the victim, sir.
Q: And when you tell that there is a recent trauma at the genitalia of the
victim, what do you mean by that?
A: As I have said earlier there was an abrasion at the inner lip so that
abrasion could have been caused by a rub or friction of a hard blunt
object at the area of the genitalia, sir.
Q: This could be how many days, more or less prior to the examination
that you conducted on November 15, 1991?
A: Within five (5) days, sir. 9
In other words, as clearly declared by the complainant and confirmed by
Dr. Nieves, it was very possible that sexual intercourse between the
accused-appellant and the complainant took place on November 13,
1991.
We find that the appellant was able to have carnal knowledge of the
complainant in the early dawn of November 13, 1991 by using force and
intimidation, i.e., by the use of a knife pointed at complainant's neck in the
third rape incident which is the subject of the present indictment. 10
The Court has repeatedly held that rape is committed when intimidation
was used on the victim and the latter submitted against her will because
of fear for her life or personal safety. 11 It is not necessary that the force or
intimidation employed be so great or of such character as could not be
resisted because all that is required is that it be sufficient to consummate
the purpose that the accused had in mind. And in the case at bar, there is
no need for the prosecution to show or prove that the complainant-victim
was a minor below twelve years of age, as erroneously claimed by the
64
appellant in the third assigned error.1wphi1.nt
The appellant argues in his second assigned error that the lower court
erred in not giving full credit and consideration to the affidavit of
desistance and the testimony of the complainant that she lied when she
first testified before the lower court. This particular assigned error was not
CRIM2 CASES
discussed by the appellant in his memorandum, which simply stated that

when complainant Anna Liza Jacobe testified that she lied when she
executed her affidavit of desistance (Exh. 1) and also when she first
testified before the lower court (TSN, p. 3, August 26, 1992), doubt is cast
on her credibility.
Well settled is the rule that the trial court's assessment of the credibility of
witnesses is accorded great respect and will not be disturbed on appeal
unless a material or substantial fact has been overlooked or
misappreciated which if properly taken into account may alter the
outcome of the case. 12 The credibility given by the trial court to a rape
victim is an important aspect of evidence. 13 Generally, the courts lend
credence to the testimonies of young girls especially where the facts point
to their having been victims of sexual assault. What is important is that
the trial court which had observed the demeanor of the witnesses during
their testimonies, found the testimony of the complainant credible. 14 In
fact, the rape victim's testimony, standing alone, can be made the basis of
the accused's prosecution and conviction, if such testimony meets the
test of credibility. 15 A victim who says she has been raped almost always
says all there is to be said 16 and it is an accepted rule that the credibility
of a rape victim is not impaired by some inconsistencies in her
testimony. 17
Furthermore, the testimony of the complainant as to who abused her is
credible where no motive on her part to incriminate and falsely testify
against the accused has been shown. 18 In rape cases, the accused may
be convicted solely on the testimony of the complaining witness provided
such testimony is credible, natural, convincing and otherwise consistent
with human nature and the course of things. 19 In the case at bar, the trial
court concluded that:
[T]he earlier declarations in Court by complainant about the sexual abuse
she suffered in the hands of the accused cannot be doubted, straight
forward and detailed as they were and given without any sign of influence
having been exerted on her.
The trial court stated that only the subsequent declarations made by
complainant regarding the sexual abuse she suffered in the hands of the
accused are "dubious, and obviously improperly motivated". The trial
court correctly disregarded the said declarations because of the
complainant's admission in open court that she executed the Sinumpaang
Salaysay sa Pag-uurong ng Demanda or Affidavit of Desistance (Exh. 1)

because of the promise of monetary settlement; that were it not for the
monetary settlement, she would not execute the affidavit of desistance
and that the accused-appellant reneged in his promise to pay or make a
monetary settlement of the case with the complainant. Moreover,
complainant was not aware that she could be held liable if she lied and/or
gave false testimony in court (TSN, pp. 5 and 6, August 26, 1992
Hearing). As stated earlier, the assessment of the credibility of the
complainant in a rape case falls primarily with the trial
court. 20 Discrepancies between statements in an affidavit and those
made on the witness stand would seldom discredit the
declarant. 21 Moreover, ample margin of error and understanding should
be accorded to young witnesses, like the complainant who, much more
than adults, would be gripped with tension due to the novelty of the
experience of testifying before a Court. 22
Finally, we agree with the trial court that the defense of alibi put up by
accused-appellant cannot be sustained. The clear and positive
identification of the accused made by the complainant cannot be
overcome by the accused's naked defense of alibi, especially so that the
accused-appellant herein failed to present as witnesses the two other
persons whom he claimed were with him working at the slaughter-house
in Barrio San Jose, Montalban, in the afternoon of November 12, 1991 up
to six o'clock in the morning of November 13, 1991 (TSN, pp. 5-7,
September 3, 1992). In other words, the physical impossibility of the
65
CRIM2 CASES
presence of the accused-appellant at the scene of the crime at Sitio Yagit,

Barangay San Rafael, Municipality of Montalban in or about 1:00 A.M., of
November 13, 1991, has not been corroborated and credibly
established. 23
Accordingly, we affirm the judgment of conviction rendered by Branch 76,
Regional Trial Court, Fourth Judicial Region, San Mateo, Rizal in Criminal
Case No. 1667. Pursuant to prevailing jurisprudence, the civil indemnity
granted by the trial court to the complainant in the amount of P30,000.00
is modified and is hereby increased to P50,000.00. Furthermore, in light
of recent jurisprudence, the victim shall be indemnified in the amount of
P50,000.0 as moral damages notwithstanding the absence of proof of its
award. 24
WHEREFORE, the decision of the trial court finding the appellant guilty of
the crime of rape and sentencing him to suffer the penalty of reclusion
perpetua and to pay the costs is AFFIRMED with modification that the
civil indemnity is increased to P50,000.00 and appellant shall indemnify
Anna Liza Jacobe an additional amount of P50,000.00 as moral
damages. Costs against appellant.1wphi1.nt
SO ORDERED.

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Republic of the Philippines

G.R. No. 169642

September 14, 2007

Criminal Case No. C-55121

PEOPLE OF THE PHILIPPINES, Appellee

Criminal Case No. C-55119

Criminal Case No. C-55123

That on or about 5th day of November, 1998 in Caloocan City, Metro

Criminal Case No. C-55120

Criminal Case No. C-57126

Honorable Court, the above-named accused, being then the father

Criminal Case No. C-55121:

Criminal Case No. C-55123:

Criminal Case No. C-57126:

amount of [P]50,000.00 as moral damages and [P]50,000 as exemplary

Thus the appellate court disposed as follows:

Articles 266-A, paragraph 1, and 266-B70 of the said Code," appellants

death penalty can no longer be imposed. Appellant must thus be

Republic of the Philippines

August 17, 2007

THE PEOPLE OF THE PHILIPPINES, Appellee,

likewise soon thereafter returned to the wedding festivities he was

To corroborate AAAs testimony, the prosecution presented BBB and

The accused is further ordered to pay the costs of the

We affirm the decision of the Court of Appeals with modifications.

A : I was still lying straight down, sir.

Criminal Case No. SC-7422

Q : What did he say?

Q : From where did you feel that pain?

Q : What else did he do aside from telling you "huag kang

Q : From where did it come from [sic]? That whitish substance?

A : From my fathers private part, Your Honor.

Q : Why, what happened to the private part of your father?

A : I do not know, Your Honor.

A : "Kinayog na po niya ako."

A : He repeated what he told [sic] previously not to tell to [sic] anybody.

A : Yes, Your Honor.

Q : What was happening?

Criminal Case No. SC-7423

A : It was painful, Your Honor.

TP. Arcigal, Jr.:

Q : At that time was your father making any movement?

A : Yes, Your Honor.

A : 10:30 in the evening, sir, also in our house, sir.

Q : Did he kiss you?

A : We were all asleep, sir.

Q : And because of that, you were awakened?

A : Into my vagina, sir.

A : He covered my mouth, sir.

A : I felt pain in my private part, sir.

Q : And after covering your mouth, what else did he do?

A : He removed the lower portion of my clothes. "Hinubuan po niya ako."

Q : After removing your lady sando, what else did he do?

A : His private part . (Thereafter witness is crying while uttering words:

Q : Now, what did he do to you when he was already on top of you?

A : He was "kinakayog niya po ako."

Q : Aside from "kinakayog," what else did he do?

Criminal Case No. SC-7424

A : He kissed my breast, sir.

TP. Arcigal, Jr.:

Q : Aside from that, what else?

A : He likewise touched my private part, sir.

A : It was 3:30 oclock in the morning, sir.

TP. Arcigal, Jr.: