Evidence 11/22/11 EN BANC

G.R. No. 100599 April 8, 1992

AL-AMANAH ISLAMIC INVESTMENT BANK OF THE PHILIPPINES, petitioner, vs. THE HONORABLE CIVIL SERVICE COMMISSION and NAPOLEON M. MALBUN, respondents.

GUTIERREZ, JR., J.:

Petitioner Al-Amanah Islamic Investment Bank of the Philippines, formerly Philippine Amanah Bank (PAB) accuses public respondent Civil Service Commission (CSC) of grave abuse of discretion in imposing the minimum penalty of suspension of one (1) year under CSC Memorandum Circular No. 8, s. 1970 on private respondent Napoleon M. Malbun, the Branch Manager of the bank in Cagayan de Oro City. The bank deemed the penalty incommensurate with the CSC's finding that the private respondent was guilty of a serious grave misconduct. The facts of the case are not disputed. They are stated in the CSC's Resolution No. 90-1014, to wit: Respondent/Appellant Malbun was formally charged by the then PAB Acting President Farouk A. Carpizo for Neglect of Duty, Inefficiency and Incompetence arising from the alleged unauthorized and illegal encashment of commercial checks drawn against uncleared and unfunded deposits. Said cheeks were all deposited, through a series of several deposits, in the Savings Account of one Portri Gandarosa in the PAB, Cagayan de Oro Branch. The transactions under question covered the period from January 28, 1986 to September 5, 1986. The alleged deposits were allegedly approved by the former Cashier, Zenaida B. Sayson and all withdrawals were made and approved by the said branch accountant and approved by the Respondent/Appellant an Branch Manager. Be it noted, that during those times of the alleged commission of the said irregularities, Respondent/Appellant Malbun was then the Manager of the Cagayan de Oro Branch. The then PAB Acting President created an Investigating Committee, which after due notice and hearing, submitted the following findings and recommendation, as follows: "There is no proof that respondent Malbun tolerated the anomalies nor is there any showing that he benefited directly or indirectly from the transactions to the detriment of the bank and therefore he is presumed to have acted in good faith. But for his failure to give a convincing proof that he exercised due care and diligence like a good father of a family in the performance of his duties, is hereby found guilty of NEGLECT OF DUTY. xxx xxx xxx Respondent joined the bank on April 16, 1974. Under the Civil Service Rules, Neglect of Duty is a light offense. Credited in his favor are three (3) mitigating circumstances (length of service, first offense and good faith) with no aggravating circumstances, hence, the imposable penalty would be the minimum for light offense. (Reprimand or fine or suspension from one to ten days in its minimum period.). Upon receipt of the report of the Investigating Committee, the same was referred by the then PAB Acting President to the Corporate Secretary, Atty. Ernesto Duran for comment and recommendation, who recommended that Respondent/Appellant Malbun should be charged of either Misconduct or Conduct Prejudicial to the Best Interest of the Bank; that nevertheless, even under the charge of Neglect of Duty for which he was found guilty by the Investigating Committee, a higher penalty is imposable under CSC Memorandum Circular No. 8, s. 1970; that Malbun must also be found guilty of violating the Central Bank's Manual of Regulations for Banks and other Financial Intermediaries; and that contrary to the findings of the Investigating Committee that there are no aggravating circumstances, abuse of confidence should be considered against him. The then PAB Acting President submitted both the Report of the Investigating Committee and the recommendation of Atty. Duran to the PAB Board of Directors for appropriate action. The PAB Board of Directors, in its Resolution No. 1714-K, dated March 7, 1989, resolved to approve the finding of the Investigating Committee that Respondent/Appellant Malbun is guilty of Neglect of Duty with an imposable penalty of "Forced Resignation without prejudice to Reinstatement." Respondent/Appellant Malbun appealed to the MSPB, which found out and ruled, as follows: "After, a careful and thorough evaluation of all the records of the case, this Board agrees with the findings of the Investigating Committee that there is no proof that respondent-appellant Malbun tolerated the anomalies nor is there any showing that he benefited directly or indirectly from the transactions to the detriment of the Bank and therefore is presumed to have acted in good faith. However, for his failure to exercise due care and diligence of a good father of a family in the performance of his duties and observance of his obligation, respondent Malbun is hereby found guilty of Neglect of Duty and is hereby meted the penalty of suspension for six (6) months notwithstanding the presence of mitigating circumstances of length of service considering that the Bank suffered loss of money. Loss or abuse of confidence cannot be considered as an aggravating circumstance being analogous to the other grave circumstances as contended by the Acting President of the Philippine Amanah Bank. (Rollo, pp. 35-37) xxx xxx xxx

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After a review of the facts and documents submitted pertaining to the instant appeal, the Commission finds Respondent/Appellant Malbun guilty not only of "Gross Neglect of Duty," which is a less grave offense under CSC Memorandum Circular No. 8, s. 1970 but also of "Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service" which are grave offenses under the same Memorandum Circular. In this regard, as correctly alleged by the then PAB Acting President Carpizo in his "Comment on Appellant's Appeal to the MSPB" dated July 26, 1989, thus: "The appellant is fully aware that his previous position as Branch Manager of Cagayan de Oro in lodged with very high responsibility. The exercise of his responsibilities is not merely ministerial but laden with decision making. Out there, in his own branch, he is a little president whose actuation and decision must be endowed with great prudence and care lest incompetence and inefficiency will result into financial loss. . . . True, it is the Branch Cashier, Zenaida Sayson, that solely approved the series of withdrawals against unfunded deposits. But the appellant was fully aware that under the Bank's Manual on Signing Authority, a Branch Cashier is authorized to approve cash withdrawals up to P5,000.00 and beyond such amount the approval of the Branch Manager is required. . . . The series of unauthorized withdrawals made upon the sole authority of the Cashier ranges from a minimum withdrawn amount of P10,000.00 to a maximum amount of P86,500.00 blatantly beyond the authority of the Cashier. And what was aggravating was the fact that it was committed thirteen (13) times under the very nose of the appellant from 28 January 1986 up to 05 September 1986. Yet due to the sheer incompetence, appellant even approved the series of accountant's blocking sheets containing and showing the unauthorized withdrawals made by the Branch Cashier. . . . xxx xxx xxx The argument of the appellant that the approval of the Accountant's blocking sheets does not mean approval of the irregular transactions is flimsy and incongruous with the Bank's Job Description Manual which provides that: I. Basic Function of the Branch Manager Assumes direct control, responsibility for and supervision over activities and business affairs of the Branch. II. Responsibilities Reviews daily transactions and results of operations; analyzes trends in deposit, withdrawals, clearing operations; cash position, fund transfers, loaning grants and collection. From the foregoing, it is crystal clear therefore that the function and responsibilities of a Branch Manager is (sic) not merely ministerial but laden with decision-making and analysis of transactions and results of operation, particularly those involving money matters. In the instant case, when the appellant was then a Branch Manager, he was expected and presumed to have read, reviewed and analyzed the contents of the Accountant's blocking sheets containing the anomalous transactions including the supporting proof sheets and withdrawal slips made on the unfunded deposits. But the appellant was remiss in observing even the ordinary care and prudence in the discharge of his function and responsibilities. How can he argue that his approval of the Accountant's blocking sheet does not mean he approved of the irregular transaction, when under the Bank's Job Description Manual, he is responsible and duty bound to review daily transactions and results of operations, analyze trends in deposit withdrawals, clearing operations, cash position, fund transfers, loan grants and collections which were all reflected, stated and contained in the Accountant's blocking sheets. By affixing his signature in the Accountant's blocking sheets which contain and carry the irregular transactions he is grossly incompetent and negligent in the observance and discharge of his duties and responsibilities spelled out in the Banks Job Description Manual. Be it noted that the investigating Committee, the PAB Board of Directors and the MSPB are one in their findings that Respondent/Appellant Malbun is guilty of "Neglect of Duty." However, based an the facts and circumstances of the instant case visa-vis CSC Memorandum Circular No. 8, s. 1970, which does not penalize "Neglect of Duty" but "Gross Neglect of Duty" an a less grave offense, respondent/appellant Malbun should have been charged and found guilty of "Gross Neglect of Duty". Nevertheless, considering that he is now found guilty of the said offense by this Commission based on the aforesaid allegations, he should also be penalized for "Serious/Grave Misconduct" and "Conduct Prejudicial to the interest of the Banking System." The Supreme Court in the case of Oyao v. Pabatao (78 SCRA 93) ruled that a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by the public officer is a Serious Misconduct. A Serious or Grave Misconduct is a grave offense under the said CSC Memorandum Circular No. 8, s. 1970. Be that as it may, considering the existence of the two (2) mitigating circumstances of length of service in the government service and first offense and the aggravating circumstance of abuse of confidence, the minimum of the penalty for grave offense under CSC Memorandum Circular No. 8, s. 1970 of suspension of one (1) year is imposable. (Rollo, pp. 38-40)

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The petitioner bank filed a motion for reconsideration of the aforesaid resolution stating therein that the circumstance of prior conviction of the private respondent in 1979 for "neglect of duty as charged and upon suspension from the service for four (4) months effective upon receipt of this approval, . . ." (Rollo, p. 11) should be considered in determining the proper penalty (which should be dismissal) to be imposed on the private respondent. The CSC, however, refused to consider this "prior conviction" of the private respondent on the ground that this is not a newly discovered evidence and that the petitioner in its exercise of reasonable diligence could have discovered and produced the document during the hearing conducted or could have presented the same in its appeal to the Merit Systems Protection Board (MSPB) as well as in the Commission. In a resolution dated November 14, 1991, we gave due course to the petition. The petition is impressed with merit. Section 695 of the Revised Administrative Code of 1917 provides that a civil service subordinate officer or employee, may for neglect of duty or violation of reasonable office regulations . . . be removed from the service. Moreover, Memorandum Circular No. 8, Series of 1970 of the Civil Service Commission (Guidelines in the Application of Penalties) provides the penalties for grave offenses, to wit: 1. Transfer or demotion in rank or salary from two to three grades or suspension for one year in its minimum period. 2. Forced resignation without prejudice to reinstatement to forced resignation with prejudice to reinstatement in its medium period. 3. Dismissal in its maximum period. The following are considered mitigating circumstances: 1. Physical illness 2. Good faith 3. Length of service in the government. 4. Analogous circumstances. The Civil Service Commission considered as mitigating circumstances: (1) length of service, and (2) first offense. The CSC also considered abuse of confidence as aggravating circumstance. The records show that the private respondent joined the bank on April 16, 1974. He committed the offense in 1986. Hence, there is no dispute that length of service in the government can be considered a mitigating circumstance in his favor. However, we do not agree that the mitigating circumstance of first offense can be considered in favor of the private respondent. It is to be noted that the private respondent was found guilty of approving a series of accountant's blocking sheets containing and showing thirteen (13) transgressions of the branch cashier wherein the latter approved unauthorized withdrawal against unfunded deposits ranging from P10,000.00 to P86,570.00 which are beyond the P5,000.00 limit that a branch cashier is authorized to approve as regards cash withdrawals to the detriment of the petitioner bank. In fact, the petitioner bank lost P597,450.05 as a result of these unauthorized withdrawals. Under these circumstances, we cannot categorize the private respondent's grave misconduct as first offense. The private respondent committed thirteen (13) offenses at different times. The private respondent's repeated transgressions, standing alone, warrant dismissal. Thus, we ruled in the case of Philippine National Bank v. Intermediate Appellate Court (187 SCRA 757 [1990]): The Court of Appeals reduced the penalty from dismissal to suspension for six (6) months without pay by reason of mitigating circumstances good faith and disparity between the penalties imposed on the respondent and on other implicated offenders. While it may indeed be questionable that other persons were not as severely punished, (unfortunately they are beyond the court's reach), petitioner's repeated violations (92 times), standing alone, merit dismissal. In Policarpio v. Fajardo (Adm. Matter No. P-312, 78 SCRA 210), gross misconduct in office by a sheriff was punished by dismissal from the service with forfeiture of all benefits. This was reiterated in Abdulwahid v. Reyes (Adm. Matter No. P-902 & 926, Jan. 31, 1978; Antonio v. Diaz, Adm. Matter No. P-1568, 94 SCRA 890), where a deputy sheriff found guilty of serious misconduct in office was likewise dismissed. Good faith cannot be appreciated in favor of Private respondent considering the repeated violations. (at p. 762) Moreover, we agree with the petitioner that "prior conviction" should have been considered by the Commission in imposing the proper penalty on the private respondent although it was presented only in the petitioner's motion for reconsideration/motion for new trial. It is true that the document showing the private respondent's prior conviction in 1979 is not a newly discovered evidence but "forgotten evidence" considering that the same already existed or was available before or during the trial which was known and obtainable by the petitioner bank and could have been presented were it not for the oversight or forgetfulness of the petitioner (Tumang v. Court of Appeals, 172 SCRA 328 [1989]), and therefore, applying rigid technical rules, such document is not admissible as evidence against the private respondent. However, administrative agencies like the Civil Service Commission exercising quasi-judicial functions are free from the rigidity of certain procedural requirements. (Esquig v. Civil Service Commission, 188 SCRA 166 [1990]) We rule that in the case of the document showing prior conviction of the private respondent, such should have been

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admitted considering that it is a public document and within the judicial notice of the Commission. Section 12(4) of Chapter 3, Book VII of the Revised Administrative Code of 1987 provides: See. 12, Rules of Evidence. In a contested case: 1. . . . 2. . . . 3. . . . 4. the agency may take judicial notice of judicially cognizable facts and of generally cognizable technical or scientific facts within its specialized knowledge. The parties shall be notified and afforded an opportunity to contest the facto so noticed. (Official Gazette, Vol. 83, No. 39, p. 171) The Commission is the central personnel agency of the government. It is the repository of all government appointments as well as all records of final decisions in administrative cases against government employees. Hence, it is deemed to have judicial notice of such prior conviction of the private respondent. What the Commission should have done, therefore, was to notify the private respondent to rebut such document. At any rate, the records reveal that the document showing prior conviction of the private respondent is indisputable. Necessarily, even if we consider the private respondent's repeated violations as one offense, the admission of this document would readily reveal that this is not his first offense. But the Commission also applied CSC Memorandum Circular No. 6, Series of 1991, to wit: . . . [(I]n the appreciation of any mitigating circumstances in favor of the respondent in an administrative case and/or aggravating circumstances against him, the same must be invoked or pleaded by the proper party, otherwise the said circumstances shall not be considered in the determination of the proper penalty to be imposed against the respondent concerned. (Rollo, pp. 56-57) to the instant case. The Commission held that the Memorandum Circular should be applied retroactively insofar as it benefits the respondent but it would not be applied to increase the penalty imposable to the private respondent otherwise this will be tantamount to violating the prohibition on ex-post facto law as the Memorandum was issued after the commission of the offense. The records show that the Circular was filed with the University of the Philippines Law Center only on May 17, 1991. Section 4, Chapter 2, Book VII of the Revised Administrative Code of 1987 provides that ". . . each rule shall become effective fifteen (15) days from the date of filing . . .. " The Commission issued the resolution on March 21, 1991. Verily, the Commission erred in applying the said circular insofar as it benefited the private respondent. The Memorandum Circular was not yet in effect at the time. The well-entrenched principle is that "a statute operates prospectively only and not retroactively, unless the legislative intent to the contrary is made manifest either by the express terms of the statute or by necessary implication." (Nilo v. Court of Appeals, 128 SCRA 519 [1984] cited in Puzon v. Abellera, 169 SCRA 789 [1989]). We rule that the same principle is applicable to administrative rules and regulations issued by the government agencies in their duty to implement laws. The Memorandum Circular does not indicate that it should be applied retroactively, hence the general rule that a statute operates prospectively must be followed. With the foregoing considerations, the only remaining mitigating circumstance in favor of the private respondent is length of service. This is, however, offset by the aggravating circumstance of abuse of confidence found by the Commission. Under these circumstances, we rule that the proper penalty for the repeated offenses committed by the private respondent against the beneficial interest of the petitioner is dismissal from the government service with forfeiture of benefits. And finally, the Civil Service Commission totally ignored the fact that the respondent is a Bank Manager who is in charge of daily transactions involving millions of pesos. There is a tremendous difference between the degree of responsibility, care, and trustworthiness expected of a clerk or ordinary employee in the bureaucracy and that required of bank managers, cashiers, finance officers, and other officials directly handling large sums of money and properties. The standards in the interpretation of good faith, due care, diligence of a good father of a family, neglect of duty, grave misconduct and conduct prejudicial to the interest of the service are not rigid or inflexible terms to be applied like the bed of Procrustes without considering attendant circumstances. Certainly, a bank manager who did not learn from an earlier four months suspension for neglect of duty in 1979 and who allowed kiting operations under his very nose to happen in 1986 until his bank lost P597,450.05 should not be returned to his former position as Bank Manager. There is no room for negligence and carelessness in managing a bank. WHEREFORE, the instant petition is GRANTED. The questioned Resolutions of the Civil Service Commission are REVERSED and SET ASIDE. Private respondent NAPOLEON M. MALBUN is ordered DISMISSED from the government service with forfeiture of benefits. SO ORDERED.
Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

Bellosillo, J., took no part. Narvasa, C.J., is on leave.

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SPECIAL THIRD DIVISION

G.R. No. 170583

September 12, 2007

ERNESTO M. FULLERO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CHICO-NAZARIO, J.:

In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court,1 petitioner Ernesto M. Fullero seeks to set aside the Decision2 dated 19 October 2005 of the Court of Appeals in CA-G.R. CR. No. 28072, affirming in toto the Decision3 dated 9 October 2003 of the Legazpi City Regional Trial Court (RTC), Branch 6, in Criminal Case No. 7712, finding petitioner guilty of falsification of public document as defined and penalized in paragraph 4, Article 171 of the Revised Penal Code. In an Amended Information4 dated 14 October 1997, petitioner was charged with falsification of public document under paragraph 4, Article 171 of the Revised Penal Code, allegedly committed as follows: That sometime in 1988, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to prejudice and defraud, being then the Acting Chief Operator of Iriga City Telecommunications Office, while acting in said capacity and taking advantage of his official function, did then and there willfully, unlawfully and feloniously falsify and/or caused to be falsified a genuine public document, that is when he prepared his CSC 212 (Personal Data Sheet) for submission to Bureau of Telecommunication Regional Office No. 5, Legazpi City, he made it appear that he passed the Civil Engineering Board Examinations given by Professional Regulation Commission on May 30 and 31, 1985 with a rating of 75.8%; however, upon verification issued by PRC, said accused took the examination in May 1984 and another one [in] May, 1985 with general ratings of 56.75% and 56.10% respectively. When arraigned on 5 January 1998, petitioner, with the assistance of counsel de parte, pleaded "Not Guilty" to the charge. 5 Thereafter, trial on the merits ensued. Culled from the records are the following facts: In 1977, petitioner was employed as a telegraph operator at the Bureau of Telecommunications Office in Iriga City (BTO, Iriga City). In 1982, he became the Acting Chief Operator of the same office until 1994.6 A Personal Data Sheet (PDS) [Civil Service Form 212] dated 8 January 1988, purportedly accomplished and signed by petitioner, states that he passed the Civil Engineering Board Examination given on 30-31 May 1985 in Manila with a rating of 75.8%.7 It appears that he submitted the PDS to the Bureau of Telecommunications Regional Office, Legazpi City (BTO, Legazpi City).8 A letter dated 7 March 1988 and signed by petitioner shows that he applied for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor with the Regional Director of the Civil Service Commission (CSC), Region 5, Legazpi City.9 Upon inquiry made by Florenda B. Magistrado (Magistrado), a subordinate of petitioner in the BTO, Iriga City, with the Professional Regulation Commission (PRC), it was verified that petitioner never passed the board examination for civil engineering and that petitioners name does not appear in the book of registration for civil engineers.10 Petitioner denied executing and submitting the subject PDS containing the statement that he passed the 30-31 May 1985 board examination for civil engineering. He likewise disowned the signature and thumbmark appearing therein. He claimed that the stroke of the signature appearing in the PDS differs from the stroke of his genuine signature.11 He added that the letters contained in the PDS he accomplished and submitted were typewritten in capital letters since his typewriter does not have small letters. As such, the subject PDS could not be his because it had both small and capital typewritten letters. Moreover, petitioner claimed that Magistrado had an ill motive in filing the instant case against him because he issued a memorandum against her for misbehavior in the BTO, Iriga City.12 He further argued that the RTC had no jurisdiction to try him there being no evidence that the alleged falsification took place in Legazpi City.13 After trial, the Legazpi City RTC rendered a Decision dated 9 October 2003 finding petitioner guilty of the crime of falsification. Thus: WHEREFORE, premises considered, the accused Ernesto M. Fullero is hereby found guilty beyond reasonable doubt of the crime of Falsification defined and penalized under Art. 171 (4) of the Revised Penal Code, and hereby sentences him to suffer the penalty of imprisonment of six (6) years of prision correccional maximum to ten (10) years of prision mayor medium as the maximum and to pay a fine of three thousand P3,000.00 Pesos. Costs against the accused.14 Petitioner appealed to the Court of Appeals. On 19 October 2005, the appellate court promulgated its Decision affirming in toto the assailed Legazpi City RTC Decision. The appellate court decreed:

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In sum, the Court finds that the prosecution has successfully established all the elements of the offense of falsification of a public document and that the trial court correctly rendered a judgment of conviction against appellant. WHEREFORE, the appeal at bench is DISMISSED for lack of merit and the appealed 09 October 2003 decision is affirmed.15 On 21 November 2005, petitioner lodged the instant petition before us citing as errors the following: I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT SAID LOWER COURT CONVICTED THE ACCUSED IN THE ABSENCE OF SUFFICIENT EVIDENCE I.E., PROOF TO SHOW THAT THE ACCUSED ACTUALLY PERFORMED THE ACT OF FALSIFICATION HE IS ACCUSED OF; II. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT, EVEN ON THE ASSUMPTION THAT ACCUSED FILLED UP THE PERSONAL DATA SHEET (PDS) INCLUDING THE STATEMENT THAT HE IS A LICENSED ENGINEER, ACCUSED WAS UNDER NO OBLIGATION TO STATE SAID DATA AND NO CRIMINAL INTENT WAS SHOWN. III. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT SAID RTC ADMITTED EVIDENCES NOT PROPERLY IDENTIFIED AND THEREAFTER CONSIDERED THE SAME IN DETERMINING THE ALLEGED GUILT OF THE ACCUSED; IV. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT THE LOWER COURT HAD NO JURISDICTION BECAUSE THE VENUE SHOULD HAVE BEEN IN THE REGIONAL TRIAL COURT OF IRIGA CITY, WHERE THE ALLEGED PERSONAL DATA SHEET WAS ACCOMPLISHED NOT IN THE RTC OF LEGAZPI CITY. Apropos the first issue, petitioner maintained that none of the prosecution witnesses actually saw him accomplish and sign the PDS; that the prosecution failed to establish that he took advantage of his position in falsifying the PDS; that a person need not be an Acting Chief Operator to be able to falsify a PDS; that he never became the custodian of the PDS nor did he have any special access to it by reason of his office; and that the identity of the person who falsified the PDS has not been established by the prosecution.16 In establishing its charge of falsification against petitioner, the prosecution presented the following witnesses, namely: Magistrado, Joaquin C. Atayza (Atayza), Romeo Brizo (Brizo), Emma Francisco (Francisco) and Edith C. Avenir (Avenir). Magistrado, a subordinate of petitioner at the BTO, Iriga City, testified that prior to the filing of the instant case against petitioner, she sued the petitioner for unjust vexation as the latter kissed her on one occasion. While the case for unjust vexation was pending, her lawyer, Atty. Mariano Baranda, Jr. (Atty. Baranda), asked her if petitioner was indeed a licensed civil engineer since some persons simply referred to petitioner as "Mr. Fullero" whereas in the BTO, Iriga City, petitioner was known as "Engineer Fullero." Suspicious of the true status of petitioner, she went to the Records Office of the BTO, Legazpi City, and requested therein if she can see petitioners PDS. Upon being shown petitioners PDS, she observed that, under Item No. 18 thereof, petitioner appears to be a licensed civil engineer having passed the board examination for civil engineering given on 30-31 May 1985. Unconvinced of the veracity of petitioners statement in the PDS that he is a licensed civil engineer, she sought the advice of Atty. Baranda. Atty. Baranda then proceeded to the main office of the PRC in Manila to check the records of petitioner. Subsequently, Atty. Baranda obtained a certification from the PRC attesting that petitioner never passed the board examination for civil engineering. Atty. Baranda showed the said certification to her. Thereafter, she instituted the instant case against petitioner.17 Atayza, Regional Director of the PRC in Legazpi City, testified that petitioner is not registered as a board passer for the civil engineering examination given on 30-31 May 1985.18 Brizo, Human Resource Management Officer and Acting Records Officer of the BTO, Legazpi City, testified that his duty as acting records officer was to safeguard the records and files of the BTO, Iriga City, and BTO, Legazpi City. He said he personally knows the petitioner and is familiar with the latters signature because he regularly received petitioners daily time records and other documents bearing petitioners signature. He confirmed that the signature appearing in petitioners PDS was the signature of petitioner.19 Francisco was the Officer-In-Charge of the Records Section of the PRC, Manila. She declared that petitioners name was included in the master list of examinees in the May 1984 civil engineering licensure examination where petitioner obtained a failing grade of 56.75%. She affirmed that petitioners name also appears in the list of examinees for the 30-31 May 1985 and May 1990 civil engineering licensure examinations where he got failing marks.20 Avenir was the Special Investigator III in the Legal Affairs Division of the CSC, Regional Office No. 5, Legazpi City. As the duly authorized representative of the Regional Director of the said office, Avenir brought to the court the letter of petitioner applying for the position of either Junior Telecommunications Engineer or Telecommunications Traffic Supervisor, and a certification submitted by the petitioner stating that the latter is a

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licensed civil engineer. Avenir stated that the letter and the certification were taken from the records of their office and that these documents were being kept as part of the records of an administrative case of petitioner with the said office.21 The prosecution also presented documentary evidence to bolster the foregoing testimonies of the prosecution witnesses, to wit: (1) a certification issued by Jose A. Arriola, Director II, PRC, Manila, attesting that petitioners name is not registered in the book of registry for licensed civil engineers; (2) certifications issued by Francisco affirming that petitioner failed in the 30-31 May 1985 board examination for civil engineering;22 (3) the PDS where petitioner stated that he passed the 30-31 May 1985 board examination for civil engineering with a rating of 75.8% and which was signed by him;23 (4) certifications issued by Francisco attesting that petitioner failed the May 1990board examination for civil engineering;24 (5) transcript of stenographic notes in the perjury case filed by petitioner against Magistrado which states that, during the trial thereof, petitioner affirmed before the court hearing the case that he is a licensed civil engineer;25 (6) a letter signed and submitted by petitioner to the Regional Director of the CSC, Regional Office No. 5, Legazpi City, claiming to be a licensed civil engineer and applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor;26 (7) an Order dated 20 December 2001 of the CSC, Regional Office No. 5, finding petitioner administratively liable for conduct prejudicial to the best interest of the service and imposing upon him a penalty of six months suspension for falsifying his PDS which is also the subject matter of the instant case;27 (8) a certification submitted by the petitioner to the CSC, Regional Office No. 5, Legazpi City, showing that he is a licensed civil engineer;28 (9) the daily time records of Magistrado signed by petitioner as the formers superior; 29 and (10) other documents bearing the signature of petitioner in blue ballpen.30 On the other hand, the defense presented petitioner as its sole witness. No documentary evidence was proffered. Petitioner interposed denials and alibi to support his contentions. Petitioner denied that he executed and submitted the subject PDS containing the statement that he passed the board examinations for civil engineering. He likewise disowned the signature and thumbmark appearing therein. He averred that the PDS he accomplished and submitted was typewritten in capital letters since his typewriter does not have small letters; thus, the subject PDS could not be his since the letters were typewritten in small and capital letters; that the stroke of the signature appearing in the PDS differs from the stroke of his genuine signature; that Magistrado had an ill motive in filing the instant case against him since he issued a memorandum against her for the latters misbehavior in the BTO, Iriga City; that he is not a licensed civil engineer; and that he accomplished a different PDS in the BTO, Iriga City. Petitioner testified that he cannot recall the exact date when he issued the alleged memorandum against Magistrado 31 and when during the trial of his perjury case against Magistrado, he claimed that he is a licensed civil engineer.32 He cannot also remember if he submitted a letter to the CSC, Regional Office No. 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor33 and the fact that he submitted therein a certification that he is a licensed civil engineer.34 The initial query to be resolved is whose evidence between the prosecution and defense is credible. Case law dictates that an accused can be convicted even if no eyewitness is available as long as sufficient circumstantial evidence had been presented by the prosecution.35 Circumstantial evidence is sufficient if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.36 Although none of the prosecution witnesses actually saw the petitioner falsifying the PDS, they, nonetheless, testified that that they are very familiar with the petitioners handwriting and signature. Magistrado testified that, being a subordinate of petitioner, she is very familiar with petitioners signature and actually witnessed petitioner affixing his signature on her daily time records for September 1987 to May 1988. 37 Brizo testified that he is also familiar with petitioners signature because he personally knows petitioner and that he regularly received petitioners daily time records and other documents bearing petitioners signature.38 Both Magistrado and Brizo opined that the signature in the PDS belongs to petitioner. The foregoing testimonies are consistent with the documentary evidence submitted by the prosecution. The RTC and the Court of Appeals found the testimonies of Magistrado and Brizo as trustworthy and believable. More significant are the documentary evidence consisting of petitioners signature in certain authentic instruments which are apparently similar to the signature in the PDS. The RTC and the Court of Appeals have compared petitioners signatures in Magistrados daily time records and petitioners signature in his application letter to the CSC, Regional Office No. 5, Legazpi City, with that of petitioners alleged signature in the PDS. They observed that the slant position of the writing, as well as the stroke and the last rounding loop of the signature in the PDS, does not differ from petitioners signatures in Magistrados daily time records and in petitioners application letter.39They noted that petitioners signatures in the said documents are "strikingly similar, such that through the naked eye alone, it is patent that the signatures therein were written by one and the same person." The observation of the Court of Appeals is worth noting, viz: Appellants allegation that he did not execute the subject PDS is unavailing. First, the informations entered in the PDS, such as his accurate personal data and precise employment history, are matters which only the accused could have known. Second, a visual analysis of appellants signatures in the Certificate of Arraignment and Notice of Hearing, vis-a-vis his signature in the PDS would show no significant disparity, leading to the conclusion that appellant himself prepared the PDS and affixed his signature therein. Third, the signature of appellant in the PDS and in the Daily Time Records (Exhibits "J" to "Q") of prosecution witness Florenda Magistrado, were glaringly identical. x x x.40 The rule is that the findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings, are accorded high respect if not conclusive effect. 41 This is more true if such findings were affirmed by the appellate court. When the trial courts findings have been affirmed by the appellate court, said findings are generally binding upon this Court.42

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In absolute disparity, the evidence for the defense is comprised of denials. Petitioner denied having accomplished and signed the PDS. He tried to impart that someone else had filled it up. However, aside from this self-serving and negative claim, he did not adduce any convincing proof to effectively refute the evidence for the prosecution. It is a hornbook doctrine that as between bare denials and positive testimony on affirmative matters, the latter is accorded greater evidentiary weight.43 The subsequent matter to be determined is whether the elements of falsification for which petitioner is charged were proven beyond reasonable doubt. Article 171, paragraph (4) of the Revised Penal Code, provides: ART. 171. Falsification by public officer, employee or notary or ecclesiastic minister. The penalty ofprision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: xxxx 4. Making untruthful statements in a narration of facts. The elements of falsification in the above provision are as follows: a) the offender makes in a public document untruthful statements in a narration of facts; b) he has a legal obligation to disclose the truth of the facts narrated by him; and c) the facts narrated by him are absolutely false.44 In addition to the aforecited elements, it must also be proven that the public officer or employee had taken advantage of his official position in making the falsification. In falsification of public document, the offender is considered to have taken advantage of his official position when (1) he has the duty to make or prepare or otherwise to intervene in the preparation of a document; or (2) he has the official custody of the document which he falsifies.45 All of the foregoing elements of falsification of public documents under paragraph 4, Article 171 of the Revised Penal Code, have been sufficiently established. First, petitioner was a public officer, being then the Acting Chief Operator of the BTO, Iriga City, when he accomplished and submitted his PDS on 4 January 1988 at the BTO, Legazpi City. It is settled that a PDS is a public document.46 He stated under Item No. 18 of his PDS that he passed the civil engineering board examination given on 30-31 May 1985 in Manila with a rating of 75.8%. Thereafter, petitioner submitted his PDS to the BTO, Legazpi City. Second, in Inting v. Tanodbayan,47 we ruled that the accomplishment of the PDS being a requirement under the Civil Service Rules and Regulations in connection with employment in the government, the making of an untruthful statement therein was, therefore, intimately connected with such employment. Hence, the filing of a PDS is required in connection with promotion to a higher position and contenders for promotion have the legal obligation to disclose the truth. Otherwise, enhancing their qualifications by means of false statements will prejudice other qualified aspirants to the same position.48 Petitioner was legally obliged to disclose in the PDS that he is not a licensed civil engineer since, as evidenced by his application letter, he was applying for positions to be occupied only by licensed civil engineers. Further, petitioner was also legally obliged to make truthful statements in his PDS since he affirmed therein "under the penalty of perjury" that his answers to the queries are "true and correct to the best of [his] knowledge and belief."49 Third, petitioners statement in the PDS that he passed the civil engineering board examination given on 30-31 May 1985 in Manila with a rating of 75.8% is absolutely false. As Officer-in-Charge of the Records Section of the PRC, Manila, Francisco declared that petitioner was included in the master list of examinees in the May 1984 civil engineering licensure examination wherein petitioner obtained a failing grade. She affirmed that petitioners name also appears in the list of examinees for the May 1985 and May 1990 civil engineering licensure examinations where petitioner also got failing marks. She also submitted certifications and authentic documents in support of her statements. Further, petitioner admitted that he never passed the board examination for civil engineering.50 Finally, as a public officer, petitioner is duty-bound to prepare, accomplish and submit his PDS pursuant to the Civil Service Rules and Regulations.51 Were it not for his position and employment in the government, he could not have accomplished the PDS. In People v. Uy,52 Santiago Uy, a field agent of the National Bureau of Investigation, was charged with falsification of public document under paragraph 4, Article 171 of the Revised Penal Code, for making false statements in his Personal Information Sheet. We ruled therein: "[T]hat the defendant (Santiago Uy) took advantage of his position may be gathered from the fact that he himself filled the information sheet which obviously was to be submitted by each and every officer or employee of the NBI." In the same vein, petitioner also had the responsibility to prepare, accomplish and submit his PDS at the time he made a false statement therein that he is a licensed civil engineer. Hence, it is clear that petitioner took advantage of his position as Acting Chief Operator of BTO, Iriga City when he falsified his PDS. Anent the second issue, petitioner posited that being a licensed civil engineer is not a qualification for him to hold office and such is not a requirement for his promotion; that the false statement caused no prejudice to any private person as he did not have any competitor in his position nor was the

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government damaged by such false statement; that the false statement would not in any way redound to his benefit and, as such, no criminal intent could have impelled him to make such false claim; and that no evidence was produced showing that he had intent to cause injury. The law is clear that wrongful intent on the part of the accused to injure a third person is not an essential element of the crime of falsification of public document.53 It is jurisprudentially settled that in the falsification of public or official documents, whether by public officers or private persons, it is not necessary that there be present the idea of gain or the intent to injure a third person for the reason that, in contradistinction to private documents, the principal thing punished is the violation of the public faith and the destruction of truth as therein solemnly proclaimed. 54 In falsification of public documents, therefore, the controlling consideration is the public character of a document; and the existence of any prejudice caused to third persons or, at least, the intent to cause such damage becomes immaterial.55 The fact that the petitioners false statement in the PDS did not redound to his benefit, and that the government or any private individual was not thereby prejudiced, is inconsequential. What is clear and decisive in this case is that petitioner made an entry in his PDS that he passed the 30-31 May 1985 board examination for civil engineering despite his full awareness that such is not true. Regarding the third issue, petitioner contended that the prosecutions documentary evidence, consisting of Exhibits A, C, F, G, H, I, J, K, L, M, N, O, P, Q and R and their sub-markings, are inadmissible in evidence based on the following reasons: (1) Exhibit A, which is the Certification of the PRC dated 17 January 1998, confirming that petitioners name does not appear in the registry books of licensed civil engineers, was not properly identified during the trial. The proper person to identify the certification should have been the signatory therein which was PRC Director II Jose A. Arriola, or in his absence, a person who actually witnessed the execution of the certification. Prosecution witness Atayza, who was not present when the certification was executed, had identified the certification during the trial. Thus, the contents of the certification are mere hearsay; (2) Exhibit C, which is, according to petitioner, a machine copy of the PDS, does not show that it was the petitioner who prepared and submitted the PDS to BTO, Legazpi City. There was nothing in the PDS which requires a periodic submission of an updated PDS. Prosecution witness Brizo does not know whether petitioners PDS was personally delivered or mailed. Hence, the identification and subsequent testimonies of the prosecution witnesses on the PDS are mere hearsay; (3) Exhibit F, which is the Transcript of Stenographic Notes dated 17 March 1998 of the perjury case filed by petitioner against Magistrado where petitioner allegedly admitted that he is a civil engineer, lacks proper identification as the stenographer or records officer was not presented in court; (4) Exhibit G, which is the alleged letter of petitioner to the Regional Director of the CSC, Region 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; and Exhibit I, which is a machine copy of a certification allegedly issued by the PRC attesting that petitioner is a licensed civil engineer and which was allegedly submitted by petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his credential in applying for the aforesaid positions, are merely machine copies and the loss and unavailability of their original were not proven; and (5) Exhibits J, K, L, M, N, O, P, Q and R, which are the daily time records of Magistrado signed by petitioner and which were offered to compare petitioners alleged signature in the PDS with the said exhibits, are devoid of factual basis. Petitioners signatures in the said exhibits are, "with the use of naked eye," not the same as his signature in the PDS. The Legazpi City RTC should have submitted these documents to a handwriting expert for examination instead of relying on the testimony of Magistrado.56 Section 36, Rule 130 of the Revised Rules on Evidence, states that a witness can testify only to those facts which he knows of or comes from his personal knowledge, that is, which are derived from his perception. A witness, therefore, may not testify as to what he merely learned from others either because he was told, or he read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned.57 This is known as the hearsay rule. The law, however, provides for specific exceptions to the hearsay rule. One of the exceptions is the entries in official records made in the performance of duty by a public officer.58 In other words, official entries are admissible in evidence regardless of whether the officer or person who made them was presented and testified in court, since these entries are considered prima facie evidence of the facts stated therein. Other recognized reasons for this exception are necessity and trustworthiness. The necessity consists in the inconvenience and difficulty of requiring the officials attendance as a witness to testify to innumerable transactions in the course of his duty. This will also unduly hamper public business. The trustworthiness consists in the presumption of regularity of performance of official duty by a public officer.59 Exhibit A, or the Certification of the PRC dated 17 January 1998, was signed by Arriola, Director II of the PRC, Manila.60 Although Arriola was not presented in court or did not testify during the trial to verify the said certification, such certification is considered as prima facie evidence of the facts stated therein and is therefore presumed to be truthful, because petitioner did not present any plausible proof to rebut its truthfulness. Exhibit Ais therefore admissible in evidence. Section 3, Rule 128 of the Revised Rules on Evidence, provides that an evidence is admissible when it is relevant to the issue and is not excluded by the law or rules. Exhibit C, which according to petitioner is the machine copy of the PDS, is very relevant to the charge of falsification and is not excluded by the law or rules. It was offered precisely to prove that petitioner committed the crime of falsification by making false statements in the PDS. Further, the information specifically accuses petitioner of falsifying such PDS. A scrutiny of Exhibit C would show that it is the very PDS which petitioner falsified and not a mere machine copy as alleged by petitioner. Being the original falsified document, it is the best evidence of its contents and is therefore not excluded by the law or rules.61 Section 2, Rule 132 of the Revised Rules on Evidence, explicitly provides that a transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. Petitioner failed to introduce proof that Exhibit F, or the Transcript of Stenographic Notes dated 17 March 1998 of the perjury case filed by petitioner against Magistrado in which petitioner allegedly admitted that he is a civil engineer, is not what it purports to be. Thus, it is prima facie correct. Moreover, as earlier elucidated, one of the exceptions to the hearsay rule is the entries in official records made in the performance of duty by a public officer.Exhibit F, being an official entry in the courts records, is admissible in evidence and there is no necessity to produce the concerned stenographer as a witness.62 Section 7, Rule 130 of the Revised Rules on Evidence, provides that when the original of a document is in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer in custody thereof. Exhibit G, which is the alleged letter of petitioner to the Regional Director of the CSC, Region 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or

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Telecommunications Traffic Supervisor; and Exhibit I, which is the machine copy of a certification allegedly issued by the PRC attesting that petitioner is a licensed civil engineer and which was allegedly submitted by petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his credential in applying for the aforesaid positions, are certified true copies of their original documents recorded or kept in the CSC, Regional Office No. 5, Legazpi City63 and, thus, admissible to prove the contents of their originals. Exhibits J to R, which are the daily time records of Magistrado signed by petitioner and which were offered to compare petitioners alleged signature in the PDS with the said exhibits, are admissible in evidence since they are relevant and material to the charge of falsification against petitioner. The signatures of petitioner in the said exhibits, the authenticity of which were not denied by petitioner, were presented to prove that these signatures were similar to petitioners signature in the PDS where he made the alleged falsification. Well-entrenched is the rule that resort to handwriting experts is not mandatory. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwritings or signatures.64 This is so since under Section 22, Rule 132 of the Revised Rules on Evidence, the handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, because he has seen the person write; or has seen writing purporting to be his upon which the witness has acted or has been charged, and has thus acquired knowledge of the handwriting of such person. Moreover, the opinion of a non-expert witness, for which proper basis is given, may be received in evidence regarding the handwriting or signature of a person with which he has sufficient familiarity.65 The Legazpi City RTC was, therefore, not obliged to put a handwriting expert on the witness stand and direct the latter to examine petitioners signatures in the foregoing exhibits before ruling on their admissibility. It can, as it did, rely on the testimonies of the prosecution witnesses who are familiar with petitioners handwriting/signature in determining the admissibility of the aforesaid exhibits. It can, by itself, also compare petitioners signature in the PDS with the petitioners signatures in the subject exhibits with or without the aid of an expert witness and thereafter rule on the admissibility of such exhibits based on its own observation. In short, it can exercise independent judgment as regards the admissibility of said exhibits. As to the fourth issue, petitioner argued that since none of the prosecution witnesses testified that they actually saw him fill up the PDS, then there is no evidence showing that the alleged falsification took place in Legazpi City; that when the PDS was allegedly falsified, he was stationed at BTO, Iriga City, and was a resident of Iriga City; that, even assuming without admitting that he filled up the PDS, the same was, "in all probability," filled up in Iriga City and, as such, the crime of falsification was consummated therein; that, consequently, the instant case should have been tried in the Iriga City RTC and not in the Legazpi City RTC.66 There are three important requisites which must be present before a court can acquire jurisdiction over criminal cases. First, the court must have jurisdiction over the offense or the subject matter. Second, the court must have jurisdiction over the territory where the offense was committed. And third, the court must have jurisdiction over the person of the accused.67 There is no dispute that the Legazpi City RTC has jurisdiction over the offense and over the person of petitioner. It is the territorial jurisdiction of the Legazpi City RTC which the petitioner impugns. The territorial jurisdiction of a court is determined by the facts alleged in the complaint or information as regards the place where the offense charged was committed.68 It should also be emphasized that where some acts material and essential to the crime and requisite to its consummation occur in one province or city and some in another, the court of either province or city has jurisdiction to try the case, it being understood that the court first taking cognizance of the case will exclude the others.69 In the case at bar, the information specifically and positively alleges that the falsification was committed in Legazpi City. Moreover, as heretofore discussed, the testimonies and documentary evidence for the prosecution have sufficiently established that petitioner accomplished and thereafter submitted the PDS to the BTO, Legazpi City. The foregoing circumstances clearly placed the locus criminis in Legazpi City and not in Iriga City. We find no reason to disturb the prison term and fine imposed on petitioner by the Legazpi City RTC and the Court of Appeals, as they are in accord with law and jurisprudence. WHEREFORE, the petition is hereby DENIED. The Decision of the Court of Appeals, dated 19 October 2005, in CA-G.R. CR. No. 28072, is hereby AFFIRMED in toto. Costs against petitioner. SO ORDERED.
Ynares-Santiago, Chairperson, Austria-Martinez, Corona, Nachura, JJ., concur.

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FIRST DIVISION

G.R. No. 151458 August 31, 2006

JALLALUDIN ABDULRAHMAN GULAM, Petitioner, vs. SPOUSES CATALINO and RICARDA SANTOS, Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

The question of whether or not petitioner has fully paid the stipulated price under the Contract to Sell between him and respondents is a question of fact that is not proper in the present petition for review on certiorari under Rule 45 of the Rules of Court, as only questions of law may be raised therein,1 save for certain exceptions,2 which are not present in this case. Petitioner and respondents entered into a Contract to Sell on January 1994, whereby the latter agreed to sell to petitioner a 72-square meter parcel of land located in Sampaloc, Manila, for the price of P1,700,000.00, including a 2-storey townhouse to be constructed by respondents on the property. The terms of payment were as follows:P500,000.00 to be paid on the first month of construction, another P500,000.00 to be paid on the second month of construction, the remaining balance to be added on the full payment of the contract price; and a reservation ofP50,000.00 shall be paid by petitioner. A final deed of sale shall be executed by respondents upon full payment of the contract price, with petitioner bearing the costs of the taxes. Written on the contract is the note: "Received the amount of Five Hundred Thousand Pesos only (P500,000.00) representing Partial Payment of Full Downpayment." Two years after the execution of the Contract to Sell, petitioner filed against respondents an action for Specific Performance, asking the Regional Trial Court (RTC) of Manila, Branch 50, to order respondents to execute a final deed of sale, plus damages and costs. Petitioner contended that he already fulfilled his end of the bargain by paying the stipulated amount, including the taxes, or a total of P2,050,000.00, broken down as follows: UCPB Check No. 157244 dated March 3, 1993 P 50,000.00 UCPB Check CMRO 19635 dated Jan. 19, 1994 P 500,000.00 UCPB Check CMRO 40154 dated March 8, 1994 P 300,000.00 Private receipt made on March 9, 1994 P 500,000.00 UCPB Check CMRO 40154 dated March 22, 1994 P 200,000.00 Private receipt in the contract to sell P 500,000.003 Respondents denied petitioners allegations, claiming that petitioner is yet to fully pay the agreed price, having paid only P1,000,000.00, exclusive of the P50,000.00 reservation fee. According to respondents, petitioner paidP500,000.00 upon the execution of the Contract to Sell, as acknowledged in the Contract to Sell, and anotherP500,000,00 in two separate payments made in March 1994. Thus, respondents set up a counter-claim by asking for the rescission of the contract due to petitioners refusal to abide by its terms. On September 17, 1998, the RTC rendered a Decision dismissing the complaint and ordering the rescission of the Contract to Sell. The dispositive portion of the Decision reads: WHEREFORE, the foregoing facts considered, the case against the defendant is hereby dismissed. The reciprocal obligation between the plaintiff and the defendant is hereby ordered rescinded under Article 1191 of the Civil Code. This Article recognizes an implied or tacit revolutionary condition in reciprocal obligations. It is a condition imposed exclusively by law, even if there is no corresponding agreement between the parties. In reciprocal obligations, when one party has performed his part of the contract, the other party incurs in delay hence, the party who has performed or is ready and willing to perform may rescind the obligation if the other does not perform or is not ready and willing to perform (Civil Code of the Phils. Vol. IV Tolentino, 1986 ed p. 176). Under the circumstances the failure of the plaintiff to pay their correlative obligation was not a casual breach but it was a breach of contract tainted with fraud or malice (dolo) as distinguished from mere negligence (culpa) (Luzon Brokerage Co., Inc. vs. Wantime Building Co., Inc. 43 SCRA 93). The amount of P1,100,000.00, the amount admitted by the defendant to have been paid by the plaintiffs and received by herein defendant is hereby declared as forfeited in favor of the defendants to be applied as rental of the house from June of 1994 up to the time of rendition of judgment and the payment of P20,000.00 a month from the time of rendition of the judgment until the plaintiff and all persons claiming rights under him shall have finally vacated the premises, and to pay the amount of P200,000.00 by way of attorneys fees for unjustly refusing to comply with their obligation in bad faith thus forcing the defendants to litigate this matter in court. The amount ofP200,000.00 by way of moral damages and to pay the amount of P100,000.00 by way of exemplary damages and cost. SO ORDERED.4 Petitioner appealed to the Court of Appeals (CA), docketed as CA-

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G.R. CV No. 62803, and in a Decision5 promulgated on June 22, 2001, the CA affirmed the RTC Decision, with modification as to the amount of damages. The dispositive portion of the CA Decision reads: IN VIEW OF ALL THE FOREGOING, the appealed Decision is hereby AFFIRMED with the modification that the award of attorneys fees as well as moral damages is reduced to P75,000.00 and P50,000.00, respectively. Costs against appellant. SO ORDERED.6 Petitioner sought reconsideration of the decision but this was denied by the CA in its Resolution dated January 10, 2002.7 Hence, this petition based on the following assignment of errors: First Assigned Error THE TRIAL COURT GRAVELY ERRED IN CONCLUDING THAT THE PLAINTIFF VIOLATED SECTIONS 208 AND 229 OF RULE 132 OF THE RULES OF COURT. Second Assigned Error THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT PLAINTIFF MR. GULAM DID NOT OR WAS INCOMPETENT TO TESTIFY ON DUE EXECUTION OF THE RECEIPT IN THE CONTRACT TO SELL, NORHAYA, THE PLAINTIFFS WIFE SHOULD HAVE BEEN ASKED INSTEAD SINCE SHE WOULD BE COMPETENT ON THIS MATTER BUT THE ISSUE ON SAID RECEIPT ON THE CONTRACT TO SELL WAS INSTEAD AVOIDED ON DIRECT EXAMINATION, MR. GULAM WAS ALSO DECLARED INCOMPETENT TO TESTIFY ON THE MARCH 9, 1994 RECEIPT FOR THE AMOUNT OF P500,000.00 SINCE IT WAS NORHAYA WHO MADE THE PAYMENT THEREOF, MR GULAM CANNOT TESTIFY ON THE DUE EXECUTION OF SAID RECEIPT. Fourth Assigned Error [sic] THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE PLAINTIFF MISERABLY FAILED TO ESTABLISH THEIR CLAIM, THEIR CAUSE OF ACTION AGAINST DEFENDANTS ARE HEREBY DISMISSED AGAINST THE DEFENDANTS HAVING PROVED OR ESTABLISHED THEIR CLAIM THROUGH PREPONDERANCE OF EVIDENCE THAT THE PLAINTIFF TRIED TO AVOID THEIR OBLIGATION IN RECIPROCAL ONE BY FRAUDULENT MEANS WITH THE USE OF CLEAVER [sic] MANIPULATIONS IN EVIDENT BAD FAITH SHOWS THAT THE DEFENDANTS ARE ENTITLED TO RESCISSION OF THE CONTRACT. Fifth Assigned Error [sic] THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT THE AMOUNT OF P1,100,000.00 ADMITTED BY THE DEFENDANT [sic] TO HAVE BEEN RECEIVED BY PLAINTIFFS AND RECEIVED TO BE APPLIED AS PAYMENT OR RENTAL OF THE HOUSE FROM JUNE 1994 TO THE TIME OF RENDITION OF THE JUDGMENT AND PAYMENT OF P20,000.00 A MONTH FROM THE TIME OF RENDITION OF THE JUDGMENT UNTIL THE PLAINTIFF AND ALL PERSONS CLAIMING RIGHTS UNDER HIM SHALL HAVE FINALLY VACATED THE PREMISES.10 The Court notes that the above-quoted assignment of errors is an exact reproduction of assigned errors I, III, IV and V raised in the appeal brief filed by petitioner with the CA, except assigned error II,11 which was not raised in the present petition. As Comment, respondents adopted their Defendants-Appellees Brief filed with the CA. Petitioners arguments basically hinge on his claim of overpayment. These arguments, however, do not raise any question of law. As stated at the outset, the principal issue in this case, i.e., whether petitioner has fully paid the stipulated price under the Contract to Sell, thus entitling him to the execution of a final deed of sale, is one of fact, which is beyond the province of Rule 45 of the Rules of Court. As earlier mentioned, the exceptions adverted to, to wit:12 (1) when the factual findings of the Court of Appeals and the trial court are contradictory; (2) when the findings are grounded entirely on speculations, surmises, or conjectures; (3) when the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd, or impossible; (4) when there is grave abuse of discretion in the appreciation of facts; (5) when the appellate court, in making its findings, goes beyond the issues of the case, and such findings are contrary to the admissions of both appellant and appellee; (6) when the judgment of the Court of Appeals is premised on a misapprehension of facts;

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(7) when the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a different conclusion; (8) when the findings of fact are themselves conflicting; (9) when the findings of fact are conclusions without citation of the specific evidence on which they are based; and (10) when the findings of fact of the Court of Appeal are premised on the absence of evidence but such findings are contradicted by the evidence on record. are not present in the present case. Moreover, the Court finds no plausible reason to analyze and weigh all over again the evidence already considered by the RTC and the CA, especially since these findings are not tainted with any capriciousness or palpable error. The rule is that where the factual findings of both courts are in accord, the same are binding on this Court.13 The RTC sifted through the evidence on record, testimonial as well as documentary, to determine the veracity of petitioners claim that there was overpayment, due to the alleged issuance of several checks and cash payments to respondents, and ruled that petitioner failed to prove his claim of overpayment. It was the RTCs finding that the receipt acknowledging the payment of the sum of P500,000.00, which allegedly was signed by respondent Ricarda Santos (Santos) on March 9, 1994 and which was examined by the NBI, cannot be given any credence because Santos denied having furnished any specimen signature from which the signature in the receipt may be compared, in violation of Sections 20 and 22 of the Rules of Court. Instead, the RTC gave weight to the conclusion of the PNP Crime Laboratory that "the documents were written by two different persons." The RTC also observed that the issuance by petitioner of UCPB Check No. CMR0 19635 dated January 19, 1994 for P500,000.00 is actually the payment acknowledged in the contract as it coincides with the stipulation in the contract wherein petitioner had to pay P500,000.00 on the first month of construction, which in fact, started in January 1994. The RTC also ruled that petitioner cannot testify on the alleged receipt of these contested amounts as he was not present during the time that it was made, since according to petitioner himself, it was his wife Norhaya who allegedly made the payments.14 The RTC, meanwhile, gave credence to respondents claim that petitioner is yet to pay the full amount of the purchase price, relying on the two letters sent by petitioners wife Norhaya to Santos admitting that the amount of P1,100,000.00 has already been given to respondents, and a balance of P446,036.00 in the purchase price remains, exclusive of the cost of labor and improvements, and which Norhaya seeks to reimburse from respondents.15 The CA sustained the RTCs findings, stating that the receipt dated March 9, 1994 is a forgery. It also ruled that respondents are entitled to a rescission of the Contract to Sell as petitioner failed to comply with his obligations under the contract, to wit: In the final analysis, it is apparent that appellant has not kept his own end of the bargain in the Contract. A computation of the payments made based on evidence on hand, without including the bogus receipt dated March 9, 1994, would eventually show that appellant had only paid a total ofP1,100,000.00, thus leaving an unpaid balance of more or less P600,000.00 (Exhibit "13"). This is bolstered by the appellants admission in a letter addressed to appellees through his counsel (Exhibit "3") wherein he asserted that he had already paid P1,500,000.00. Likewise, in a letter by appellants wife to appellees, admitting having paid only P1,500,000.00. This is contrary to his later claim that he had already paid a total of P2,050,000.00 by March 22, 1994. If this were true, why was appellants wife still paying for the house on May 7, 1994 (Exhibits "15" and "15-A"), as correctly observed by appellees. All told, We are in accord with the finding of the lower court that appellant committed a substantial breach when he tried to weasel out of his obligation through fraudulent means by utilizing a forged check and receipt. Appellants vain attempt to cloak with legal color his devious scheme to acquire at all costs the house and lot at the expense of the rightful owner. Correspondingly, appellees are entitled to avail of the provisions of Article 1191 of the Civil Code, which authorizes an injured party in a reciprocal obligation to rescind an obligation to be decreed by the court, in case one of the obligors should not comply with what is incumbent upon him. Surely, the introduction of forged documents can be considered a significant breach in the reciprocal obligation as would warrant the resolution of the contract. 16 xxxx The Court agrees with the foregoing evaluation of both the RTC and the CA, as it finds support in the evidence on record. Despite his protestations, petitioner failed to show any reversible error committed by the RTC and the CA. Petitioner, however, insists that the CA erred in holding that his testimony with regard to the payments made by his wife was hearsay. Petitioner argues that the purpose of such testimony was merely to establish the fact that such statement was made. It is a hornbook doctrine of evidence that a witness can testify only to those facts which he knows of his personal knowledge, which means those facts which are derived from his perception.17 A witness may not testify as to what he merely learned from others either because he was told or read or heard the same. Such testimony is considered hearsay and may not be received as proof of the truth of what he has learned. The hearsay rule is based upon serious concerns about the trustworthiness and reliability of hearsay evidence inasmuch as such evidence are not given under oath or solemn affirmation and, more importantly, have not been subjected to cross-examination by opposing counsel to test the perception, memory, veracity, and articulateness of the out-of-court declarant or actor upon whose reliability on which the worth of the out-of-court statement depends.18 True, petitioners statements may be considered as independently relevant statements and may be admissible not as to the veracity thereof but to the fact that they had been thus uttered.19 However, the admissibility of his testimony to such effect should not be equated with its weight and sufficiency.20 Admissibility of evidence depends on its relevance and competence, while the weight of evidence pertains to

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evidence already admitted and its tendency to convince and persuade. 21 In this case, both the RTC and the CA refused to give credence to petitioners testimony, and the Court finds no reason to doubt the assessments made by both courts. Even assuming that his wife, indeed, told him that payments were made on these dates, still, it does not follow that it is sufficient proof to establish his claim of overpayment. These should be weighed vis--vis the other evidence on record, which, as appraised by the RTC and the CA, do not support petitioners claim. Although Norhaya testified, she did not, however, give any credible testimony regarding these alleged payments. In fact, Norhaya failed to testify on the alleged separate payment made in the amount ofP500,000.00, which was annotated on the Contract to Sell.22 With regard to the alleged payment and receipt made on March 9, 1994, respondent Santos categorically denied having received any payment on said date.23 Moreover, the RTC and the CA chose to ignore her testimony, and instead gave weight to the testimony of the PNP Crime Laboratory Document Examiner that the signature appearing on the receipt was not made by respondent Santos based on her standard signature. 24 On this score, the Court will not interfere with the judgment exercised by the RTC and the CA since it is in the best position to assess the credibility of witnesses and their testimonies because of its unique opportunity to observe the witnesses firsthand and note their demeanor, conduct and attitude under grilling examination. As such, its evaluation of the credibility of witnesses is accorded great respect.25 Finally, petitioner laments the disregard made on the NBI finding that the signature of respondent Santos appearing on the March 9, 1994 receipt was genuine. On this score, it should be stressed that although they may have probative value, reception in evidence of expert testimonies is within the discretion of the court.26 The RTC and the CA did not commit any error in disregarding the NBIs finding since it was convincingly shown that the specimen signature of respondent Santos from which the signature on the receipt was compared, was not actually supplied by Santos but by petitioner. Thus, as correctly stated by the CA: A fortiori, We agree with the trial court that the NBI expert is considered to have no adequate knowledge of the genuine signatures of the parties whose signatures are claimed to be forged, for this witness was not in possession of the genuine signatures of the appellees. Moreover, opinion of handwriting experts are not necessarily binding upon the courts, the experts function being to place before the court data upon which the court can form its own opinion. x x x27 Verily, the RTC and the CA did not err in dismissing petitioners complaint and ordering the rescission of the Contract to Sell. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated June 22, 2001 in CA-G.R. CV No. 62803 and its Resolution dated January 10, 2002 are hereby AFFIRMED. Costs against petitioner. SO ORDERED.

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EN BANC

G.R. No. 123546 July 2, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOERAL GALLENO, accused-appellant.

PER CURIAM:

What could be more compelling than deciding a case which involves the sexual abuse of a five-year old child? Equally important is the fact that the case before us involves the highest penalty imposable by law. Being the guardian of the most fundamental liberties of every citizen, the Court must pass upon every intricate detail of the case at bar to determine whether or not accused-appellant committed the gruesome act imputed against him. Accused-appellant Joeral Galleno seeks reversal of the judgment of Branch 14 of the Regional Trial Court of the 6th Judicial Region stationed in Roxas City, relying on the defense of denial. Since the case involves the death penalty, the matter has been elevated to this Court for automatic review. Accused-appellant was charged in an Information docketed as Criminal Case No. C-4629 for the crime of Statutory Rape, reading as follows: The undersigned Assistant Provincial Prosecutor, upon prior authority and approval of the Provincial Prosecutor, and the original complaint filed by the guardian of the offended party, accuses JOERAL GALLENO of the crime of STATUTORY RAPE, committed as follows: That on or about 5:00 o'clock in the afternoon of August 16, 1994, at Brgy. Balighot, Maayon, Capiz, and within the jurisdiction of this Court, the said accused did, then and there, wilfully and feloniously, and without the permission of anyone, enter the house of EVELYN OBLIGAR, a five-year old child, and succeeded in having carnal knowledge of her thereby inflicting upon the latter a vaginal laceration which caused continuous bleeding and her admission of five (5) days at the Roxas Memorial Hospital. CONTRARY TO LAW. (p. 9, Rollo.) Accused-appellant entered a plea of not guilty. Thereafter, trial on the merits ensued, resulting in a judgment of conviction, the dispositive portion of which reads: IN THE LIGHT OF THE FOREGOING ESTABLISHED FACTS, the Court finds accused JOERAL GALLENO GUILTY beyond reasonable doubt under Section 11 of Republic Act No. 7659 amending Article 335 of the Revised Penal Code. Accordingly, accused JOERAL GALLENO is sentenced to suffer the supreme penalty of DEATH and to indemnify the victim Evelyn Obligar Garganera the sum of FIFTY THOUSAND (P50,000.00) PESOS. Let this DECISION serve as clear signal, warning the perverts, the misguided elements of our society, especially their lackadaisical parents in their innate moral obligation and responsibility in educating their children that in this corner of the world the wheels of justice is not asleep and its unforgiving hands and watchful eyes are as vigilant as ever. (pp. 44-45, Rollo.) In flashback, let us visualize the events. Evelyn Obligar Garganera is the 5-year old daughter of Rosita Obligar Garganera who had to leave the province to find work in Manila after separating from her husband. Evelyn, together with her younger brother, 3-year old Eleazar, was thus left under the care and custody of their uncle, Emeterio Obligar, and aunt, Penicola Obligar. Less than a kilometer away from their place of residence lived accused-appellant, 19-year old Joeral Galleno, known well to Evelyn's family due to his frequent visits at the Obligars' abode as he was paying court to Emeterio's eldest child, Gina. On August 16, 1994, Emeterio and Penicola left their residence to work at the sugarcane plantation owned by Magdalena Dasibar. Their three children had all earlier left for school. The only persons left in the house were niece Evelyn and nephew Eleazar. At around 4 o'clock in the afternoon, accused-appellant was on his way to his Lola Esing to have his pants tailored. Since it was drizzling, he passed by the Obligars' residence and found the two children left to themselves. The prosecution and the defense presented conflicting versions on what occurred at said residence. However, the result is undisputed. Evelyn sustained a laceration in her vagina which resulted in profuse, and to our mind, lifethreatening bleeding due to her tender age. The prosecution's version of what took place at the Obligars' residence is based on the testimony of Evelyn herself, her uncle Emeterio, and the doctors who examined and treated her. The Solicitor General summarized the same in this wise:

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2. Appellant took advantage of the situation by sexually molesting Evelyn. After lowering her shorts, he made Evelyn sit on his lap, facing him. Then he forcibly inserted his penis into her vagina. As Evelyn was only five-years old while appellant was a fully-grown man, the penetration caused the child's vagina to bleed, making her cry in pain. (pp. 10-11 and 18-25, tsn, Garganera, January 10, 1995). 3. Appellant tried to stop the bleeding by applying, with his finger, the sap of "madre de cacao" leaves on her vagina. Unsuccessful in his attempt, he left Evelyn grimacing and crying in pain. (pp. 14-15, tsn, Garganera, January 10, 1995; pp. 6-7, tsn, Obligar, February 7, 1995). 4. Shortly, Emeterio and Penicola came home from work. The spouses were laborers in a sugarcane plantation about two kilometers away from their house. They arrived to find Evelyn crying. Emeterio noticed that there was blood in Evelyn's dress and she was pressing a rug against her genital organ. (pp. 11-12, tsn, Obligar, January 10, 1995; pp. 8-9, tsn, Obligar, February 7, 1995). 5. Emeterio asked Evelyn what happened but she did not answer. Emeterio spread the child's legs and saw that her vagina had been lacerated and blood was oozing therefrom. He summoned a "quack" doctor who applied herbal medicine on Evelyn's vagina but this did not stop the bleeding. (pp. 12-14, tsn, Obligar, January 12, 1995). 6. The following day, August 17, 1994, Emeterio brought Evelyn to the clinic of Dr. Alfonso D. Orosco, the Rural Health Physician of Maayon, Capiz. Dr. Orosco reported, upon examining Evelyn, that he found (1) clotted blood, about 1 centimeter in diameter, in her vaginal opening, and (2) a vaginal laceration, measuring 1.0 centimeter x 0.5 centimeter, between the 3:00 o'clock and 6:00 o'clock position. He also affirmed that Evelyn's vaginal laceration could have been caused by a blunt instrument inserted into the vagina, that it was possible that a human penis in full erection had been forcibly inserted into her vagina and that a human penis in full erection is considered a blunt instrument. (pp. 4-7, tsn, Orosco, November 28, 1994; p. 14, tsn, Obligar, January 12, 1995). 7. While he was examining Evelyn, Dr. Orosco asked Evelyn what caused her injuries. The child told him that a penis was inserted into her vagina and that its insertion caused her pain. (pp. 9-10, 14 and 18-19, tsn, Orosco, November 28, 1994). 8. Since his clinic lacked the proper medical facilities needed to treat Evelyn, Dr. Orosco, after dressing the victim's wound which continued to bleed, advised Emeterio and Penicola to bring the child to the hospital for further medical treatment (p. 8, tsn, Orosco, November 28, 1994; pp. 14-16, tsn, Obligar, January 12, 1995). 9. On August 18, 1994, Emeterio brought Evelyn to the Roxas Memorial General Hospital where she was examined by resident physician Dr. Ma. Lourdes Laada, Dr. Laada, upon examining Evelyn, found that "there was a 3 cm. lacerated wound at the left anterior one-third of the vagina" and "the presence of about 10-15 cc of blood" at the vaginal vault. Dr. Laada recommended that Evelyn be admitted for confinement in the hospital because the wound in her vagina, which was still bleeding, had to be repaired. Due to financial constraints, Evelyn was not admitted into the hospital that day and went home with Emeterio to Barangay Balighot. (pp. 6-8, tsn, Laada January 4, 1995; pp. 15-16, tsn, Obligar, January 12, 1995). 10. Upon her examination of the victim on August 18, 1994, Dr. Laada opined that "a lot of things will cause the lacerated wound in the vagina." (p. 9, tsn, Laada, January 4, 1995). According to Dr. Laada, the vaginal laceration may be caused (1) by trauma to the area, when a girl falls and hits her genital area on a blunt instrument; (2) by medical instrumentation, like the insertion of a speculum into the vagina; or (3) by the insertion of a blunt foreign object into the vagina, like a finger of a penis of a man in full erection. (pp. 8-10, tsn, Laada, January 4, 1995). 11. On August 19, 1994, Emeterio brought Evelyn back to the Roxas Memorial General Hospital where she was attended to by Dr. Machel Toledo, the resident physician on duty, who found blood clots and minimal bleeding in the genital area. Dr. Toledo ". . . pack(ed) the area to prevent further bleeding and (he) . . . admitted the patient for possible repair of that laceration and blood transfusion because she has anaemia 2ndary to bleeding." Two hundred five (255) cc of blood was transfused to Evelyn and she was given antibiotics to prevent infection. However, she was no longer operated on because the laceration had healed. Five days later, Evelyn was discharged and sent home with medication. (pp. 11-13, 17 and 26, tsn, Toledo, December 2, 1994). 12. Upon his examination of Evelyn on August 19, 1994, Dr. Toledo disclosed that the child suffered severe compound laceration which could have been caused by a normal and fully developed penis of a man in a state of erection that was forcibly inserted into her vagina and that the insertion caused her vagina to hemorrhage which thus required the transfusion of 255 cc of blood. (pp. 1416 and 26, tsn, Toledo, December 2, 1994). 13. Prior to her confinement in the Roxas Memorial General Hospital on August 19, Emeterio and Penicola Obligar brought Evelyn to the Maayon Police Station on August 18, 1994, where they reported the crime to SPO1 Paulino Durana. That same day, appellant was apprehended in a house near the Balighot Elementary School and brought to the police station. (pp. 17-19, tsn, Obligar, January 12, 1995; pp. 5-9, 16-17 and 21, tsn, Durana, January 16, 1995). (pp. 164-171, Rollo.) Denial is presented as the defense. Accused-appellant testified that when he arrived at the Obligar residence that afternoon of August 16, 1994, he found the two children, Evelyn and Eleazar (also referred to in the record as Pilfo). While seated at the balcony, accused-appellant was approached by Evelyn, who knew him (tsn, April 5, 1995, pp. 5 and 8). He cajoled her by throwing her up and down, his right hand holding the child and his left hand covering her vagina (Ibid., p. 21). Upon lifting up the child the first time, his left ring finger was accidentally inserted into the vagina of the child since his fingernail was long and the child was not wearing any underwear. Consequently, Evelyn began to cry because her vagina started to bleed. Upon seeing

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this, he immediately went down the house and got some bark or leaves of a madre de cacao tree and applied the sap on the child's wound. The bleeding ceased and Evelyn stopped crying. Thereafter, accused-appellant went home. (Ibid., pp. 9-10). Accused-appellant further testified that on August 18, 1994, at around 9 o'clock in the morning, he was arrested. On the same day, Emeterio Obligar asked him to admit the offense so that he could be released the next day, but accused-appellant did not do so (Ibid., pp. 26-27). Accused-appellant's father Raul Galleno was also called to the witness stand and he testified that he learned about the arrest of his son on August 18, 1994 (tsn, May 12, 1995 p. 6). The following day, he went to the house of the Obligars to ask Evelyn what happened to her. The child allegedly answered that a finger was accidentally inserted into her genital organ, but that Penicola who was then present, butted into the conversation and told Raul Galleno that the penis of accused-appellant was likewise inserted (Ibid., p. 8). The trial court did not accord credence to the version of the defense, pointing out in its decision that accused-appellant's defense of denial hinged on the argument that the statement of Evelyn as to how she sustained her vaginal laceration was a mere concoction and a plain distortion of facts by her guardian. The trial court called this a "desperate attempt of the defense to becloud the charge of rape." The trial court believed and accepted the testimony of Police Officer Paulino Durana that during the interrogation of Evelyn which he conducted at the PNP Station of Maayon, Emeterio and Penicola Obligar did not interfere with the responses of Evelyn, although, true enough, it was difficult to obtain answers from her because of her tender age. The trial court deemed the following circumstances significant in finding accused-appellant culpable: 1. Accused-appellant failed to explain how his left ring finger accidentally came in contact with Evelyn's vagina, while in the process of throwing her up and down. Besides, the prosecution was able to establish that Evelyn was wearing shorts. And assuming for the sake of argument that Evelyn was not wearing any pants or underwear at that time, accused-appellant failed to explain how his finger could possibly penetrate the victim's vagina by about one-fourth of an inch (p. 23, tsn, April 5, 1995). 2. After satisfying his lust, accused-appellant left the victim with her 3-year old brother, in pain and bleeding. 3. Evelyn's statement given to Dr. Ma. Lourdes Laada, the physician who examined her at the Roxas Memorial General Hospital, that it was accusedappellant's finger which injured her, was a consequence of the victim's confusion. 4. The formal offer of settlement made by accused-appellant's father Raul Galleno militates against the cause of the defense. Hence, the instant appeal and review, with accused-appellant assigning the following errors: THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE MEDICAL DOCTORS WHEN THE SAME FAILED TO CONCLUSIVELY AND SUFFICIENTLY ESTABLISH THE CAUSE OF THE LACERATION IN THE OFFENDED PARTY'S VAGINA THE TRIAL COURT SHOWED MANIFEST BIAS THEREBY DEPRIVING THE ACCUSED-APPELLANT TO A FAIR AND IMPARTIAL TRIAL AND DISREGARDED THE RIGHT OF THE ACCUSED TO BE PRESUMED INNOCENT, WHEN HE ACTIVELY PARTICIPATED IN THE CROSS EXAMINATION OF THE ACCUSED THE TRIAL COURT ERRED IN NOT DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AS UNJUSTIFIED THE TRIAL COURT ERRED IN INTERPRETING THE FINANCIAL ASSISTANCE EXTENDED BY THE PARENTS OF THE ACCUSED TO THE OFFENDED PARTY AS AN IMPLIED ADMISSION OF GUILT. (pp. 81-82, Rollo.) One can not escape the feeling of utmost compassion for any rape victim, and more especially so for a 5-year old statutory rape victim. However, in our consideration of the matter before us, we set aside emotion and observe impartiality and coldness in drawing conclusions. Under the first assigned error, accused-appellant contends that the testimony of the three expert witnesses presented by the prosecution, namely, Dr. Alfonso Orosco, Dr. Ma. Lourdes Laada, and Dr. Machael Toledo, which convinced the trial court that rape was committed against the offended party, is not impeccable considering that they found that there was no presence of spermatozoa, and that they were not sure as to what caused the laceration in the victim's vagina; that Dr. Laada herself testified that Evelyn told her that it was the finger of accused-appellant which caused the laceration. In addition, accused-appellant banks on the victim's testimony on cross-examination, that it was the finger of accused-appellant which caused the laceration; and that she even disclosed this to accused-appellant's father, Raul Galleno. We are not persuaded. As a general rule, witnesses must state facts and not draw conclusions or give opinions. It is the court's duty to draw conclusions from the evidence and form opinions upon the facts proved (Francisco, Pleadings and Trial Practice, Vol. 1, 1989 ed., pp. 889-890). However, conclusions and opinions of witnesses are received in many cases, and are not confined to expert testimony, based on the principle that either because of the special skill or expert knowledge of the witness, or because of the nature of the subject matter under observation, or for other reasons, the testimony will aid the court in reaching a judgment (Ibid., p. 886).

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In the case at bar, the trial court arrived at its conclusions not only with the aid of the expert testimony of doctors who gave their opinions as to the possible cause of the victim's laceration, but also the testimony of the other prosecution witnesses, especially the victim herself. In other words, the trial court did not rely solely on the testimony of the expert witnesses. Such expert testimony merely aided the trial court in the exercise of its judgment on the facts. Hence, the fact that the experts enumerated various possible causes of the victim's laceration does not mean that the trial court's inference is wrong. The absence of spermatozoa in the victim's vagina does not negate the conclusion that it was his penis which was inserted in the victim's vagina (People vs. Caada, 253 SCRA 277 [1996]). In rape, the important consideration is not the emission of semen but the penetration of the female genitalia by the male organ (People vs. Dones, 254 SCRA 696 [1996]). Verily, it is entirely probable that climax on the part of accused-appellant was not reached due to the cries of pain of the victim and the profuse bleeding of her vagina. As regards the inconsistencies in Evelyn's declarations, particularly as to what really caused the laceration, we are convinced that the child, due to her tender age, was just confused. This is best exemplified by the testimony of Dr. Lourdes Laada on cross-examination, as follows: Q Now, Doctor, at the time that you conducted your examination, you were aware that this child was only five years old? A Yes, sir. Q And at that tender age, Doctor, is it possible that the child may not know the difference or distinction between fingers of the hands and a finger protruding between the legs of a person? A Yes, sir, it is possible. Q So that it is possible, Doctor, that the child may have referred to a finger that is between the legs? WITNESS You mean the penis? PROSECUTOR OBIENDA Yes. WITNESS It is possible. (tsn, p. 27 March 30, 1995.) Of vital consideration and importance too is the unreliability, if not the outright incredulity of the version of accused-appellant which is not in accord with ordinary human experience. We thus can not help expressing sentiments similar to those of the trial court when it said: The contention of accused Joeral Galleno raises serious doubts to his credibility. He failed to explain how his ring finger accidentally came in contact with the genitalia of Evelyn, while in the process of throwing her up and down, when it was established by the prosecution that at that time Evelyn was wearing shorts. Even assuming "ex gratia argumente" that Evelyn was pantyless, how could it be possible for his finger to penetrate the vagina for about one-fourth of an inch . . . when she was in shorts. The Supreme Court, in People vs. Fulgencio Baquiran, 20 SCRA 451, (held that) evidence, to be believed must not only proceed from the mouth of a credible witness, but it must be credible in itself. Human perception can be warped by the impact of events and testimony colored by the unconscious workings of the mind. No better test has yet been found to measure the value of a witness' testimony than its conformity to the knowledge and common experience of mankind. (pp. 42-43, Rollo.) Sec. 4, Rule 128 of the Rules of Court provides that "(e)vidence must have such a relation to the fact in issue as to induce belief in its existence or nonexistence." This simply means that relevancy is determinable by the rules of logic and human experience (Regalado, Remedial law Compendium, Vol. II, 1988 ed., p. 434). There is no precise and universal test of relevancy provided by law. However, the determination of whether particular evidence is relevant rests largely at the discretion of the court, which must be exercised according to the teachings of logic and everyday experience (Sibal and Salazar; Compendium on Evidence, 1995 ed., p. 6, citing Alfred Asmore Pope Foundation vs. New York 138 A. 444, 106 Conn. 432). There is no explanation how the left ring finger (allegedly with a long fingernail) of accused-appellant penetrated the victim's vagina by a depth of one fourth of an inch. Admittedly, accused-appellant's right hand held the child while his left hand supposedly held her in the vagina area. Why would he hold the child's vagina if his only intention was to frolic and kid around with her?

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Accused-appellant likewise failed to explain why after injuring Evelyn (and after applying to the wound the sap ofmadre de cacao), he left her in the company of an even younger child, the victim's 3-year old brother. He did not even make an effort to immediately inform Emeterio and Penicola of what had happened. Instead, he went home and kept mum about the incident. Accused-appellant also said that after the alleged accident, before going home, he removed Eleazar's shorts and put them on Evelyn. Assuming this to be true, this only shows that the child was still bleeding. Why then would he leave the child considering that there was no adult to attend to her? Significantly, his act of immediately leaving the place, when considered in the light of the other evidence, reflects his fear because of what he had done. The proverb "the wicked fleeth even when no man pursueth, but the innocent are as bold as a lion" was correctly adopted by the trial court in drawing its conclusions. All of these loopholes are palpable and manifest, and clearly work against the credibility of accused-appellant's story on which his defense is based. Besides, the trial court's conclusions find support in the testimony of accused-appellant's own witness, Dr. Lourdes Laada (who was earlier presented during the trial as a prosecution witness), who testified that a laceration is caused by a blunt instrument and that a fingernail is not a blunt but a sharp instrument (tsn, pp. 32-33, March 30, 1995). As regards accused-appellant's argument that the victim's testimony is just a concocted story of what really happened, we apply the rule that the revelation of an innocent child whose chastity was abused deserves full credence (People vs. Cagto, 253 SCRA 455 [1996]). We likewise consider the fact that her uncle and aunt, virtually her foster parents, themselves support her story of rape. It is unnatural for a parent to use her offspring as an engine of malice, especially if it will subject a daughter to embarrassment and even stigma (People vs. Dones, supra.). Accused-appellant's father, Raul Galleno, tried to destroy the credibility of Evelyn when he took the stand and testified that the child disclosed to him that it was accused-appellant's finger which was inserted into her vagina. Nevertheless, this testimony cannot prevail over the testimony of the victim, to wit: FISCAL OBIENDA Q You said that Joeral Galleno the accused in this case hurt you while you were in the farm, can you tell the Honorable Court which part of your body was hurt by Joeral Galleno? A (Witness pointing to her vagina) Here. Q When you said you were hurt did you bleed? WITNESS A Yes, Sir. FISCAL OBIENDA Q What was used by Joeral Galleno in hurting your sexual organ? A His (Pitoy). Penis. COURT Make the translation of "Pitoy" into Penis. Do you agree that the translation of Pitoy is Penis in English? ATTY. DISTURA Agreeable, Your Honor. FISCAL OBIENDA Q What did Joeral Calleno do with his Pitoy (Penis) to your vagina (Putay)? A It was inserted (ginsulod) to my vagina (Putay). Q When Joeral Galleno inserted his penis (Pitoy) to your vagina (Putay), that was the reason why it bleed? A Yes, sir.

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Q And it was very painful? A Yes, Sir. Q And you cried because of the pain? A Yes, Sir. FISCAL OBIENDA Q And you were brought to the Doctor and admitted to the hospital because of that? A Yes, Sir. (tsn, pp. 10-12, January 10, 1995.) Under the second assigned error, accused-appellant alleges that he was deprived of a fair and impartial trial since the trial court showed bias by discounting his testimony, and by actually participating in the cross-examination of accused-appellant. We recently pronounced in People vs. Malabago (265 SCRA 198 [1996]) that a judge may properly intervene in the presentation of evidence to expedite and prevent unnecessary waste of time and clarify obscure and incomplete details after the witness has given direct testimony. And such discretion to question witnesses in order to clear obscurities in their testimony cannot be assailed as a specie of bias. Of course, we are aware of Rule 3.06 of the Code of Judicial Conduct provides: While a judge may, to promote justice, prevent waste of time or clear up some obscurity, properly intervene in the presentation of evidence during the trial, it should always be borne in mind that undue interference may prevent the proper presentation of the cause or the ascertainment of truth. And there is undoubtedly undue interference if the judge extensively propounds questions to the witnesses which will have the effect of or will tend to build or bolster the case for one of the parties. We have, however, carefully examined the record and transcript of stenographic notes of the instant case. The trial court judge, the Honorable Salvador S. Gubaton, did propound questions but this was done only for clarification purposes and not to build the case for one of the parties. For instance, accused-appellant, in his brief, refers to the questions propounded by the trial court on his act of cajoling the child. A perusal of the line of questioning referred to hardly shows bias on the part of the trial court, but pure clarification. In the third assigned error, accused-appellant questions the validity of his arrest. It is settled jurisprudence that any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of the accused must be made before he enters his plea, otherwise the objection is deemed waived (People vs. Lopez, Jr., 245 SCRA 95 [1995]). An accused should question the validity of his arrest before he enters his plea in the trial court (Filoteo, Jr. vs. Sandiganbayan, 263 SCRA 222 [1996]). He is estopped from questioning any defect in the manner of his arrest if he fails to move for the quashing of the information before the trial court (People vs. Compil, 244 SCRA 135 [1995]) or if he voluntarily submits himself to the jurisdiction of the court by entering a plea and by participating in the trial (People vs. De Guzman, 224 SCRA 93 [1993]; People vs. Lopez, Jr., supra). It does not appear in the record that accused-appellants raised this matter before entering his plea of "not guilty" to the charge (pp. 63 & 67, Record). Further, this issue was not even touched during the trial. Lastly, accused-appellant, in his fourth assigned error, argues that the trial court misinterpreted the financial assistance extended by his parents as an attempt to settle the case. Accused-appellant even banks on the alleged close relationship between Emeterio Obligar and Raul Galleno as compadres, and the fact that Emeterio borrowed forty pesos from Raul Galleno, despite the fact that Emeterio already knew that accused-appellant caused the laceration in Evelyn's vagina. Accused-appellant also draws attention to two incidents involving alleged financial assistance extended by Raul Galleno to the spouses Emeterio and Penicola Obligar. First, Emeterio Obligar, whom Raul Galleno said is hiscompadre, borrowed P40.00 for fare going to Roxas City where Evelyn was confined. Second, on August 20, 1994, Raul Galleno and his wife and one of the brothers of Penicola Obligar went to Roxas Memorial General Hospital. There he gave P400.00 financial assistance to Penicola Obligar. Raul Galleno later admitted that the sum of P440.00 was returned to him by the spouses. Accused-appellant insists that these offers of financial assistance were not attempts at an amicable settlement but were prompted out of a sincere desire on the part of Raul Galleno to help the offended party. We find no merit in me above-stated argument. It may be inferred that Raul Galleno wanted to settle the case by offering an amount to the spouses Obligar, to wit: Q Now, according to you, you were paid in the amount of Four Hundred Pesos (P400.00) then you expected your Comareng Pening as financial assistance to Evelyn Garganera, isn't it? A Yes, Your Honor.

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Q How long after August 19, 1994, that your Comareng Pening returned to you the amount of Four Hundred Pesos (P400.00)? A A week after when Evelyn had already checked up from the hospital. Q It was given by you or as voluntary financial assistance, why did you receive the amount or the payment returned to that amount of Four Hundred Pesos (P400.00)? A That was telling me that they refused already for the settlement of the case. Q And that is why they returned the amount of Four Hundred Pesos (P400.00). (tsn, pp. 29-30, May 12, 1995.) From the above-stated clarificatory questions by the trial court, it may be gleaned that Raul Galleno no longer had any interest in aiding the victim when he found that the Obligar spouses would still pursue the case against his son, accused-appellant, and hence he found that his offer for settlement was unavailing. Hence, on this point we likewise agree with the trial court when it took the financial assistance to mean an act of settling the case. This act does manifest a father's attempt to rescue his guilty son from sure incarceration. The nightmare that was forced into the tender mind of 5-year old Evelyn Obligar Garganera may unfortunately haunt her all her life. Justice may not be able to save her from this nightmare but it can calm and assure her that her tormentor and abuser shall undoubtedly face retribution. Four members of the Court although maintaining their adherence to the separate opinions expressed in People vs. Echegaray (G.R. No. 117472, February 7, 1997) that Republic Act No. 7659, insofar as it prescribes the death penalty is unconstitutional nevertheless submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should accordingly be imposed. WHEREFORE, finding the conviction of accused-appellant justified by the evidence on record, the assailed decision is hereby AFFIRMED in toto. In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the record of the case be forthwith forwarded to the Office of the President for the possible exercise of the pardoning power. SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.