EN BANC

[G.R. Nos. 132875-76. November 16, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs., ROMEO G. JALOSJOS, accused-appellant.
D E C I S I O N
YNARES-SANTIAGO, J .:
This Court has declared that the state policy on the heinous offense of rape is clear and unmistakable. Under certain
circumstances, some of them present in this case, the offender may be sentenced to a long period of confinement, or he may suffer
death. The crime is an assault on human dignity. No legal system worthy of the name can afford to ignore the traumatic
consequences for the unfortunate victim and grievous injury to the peace and good order of the community.
[1]

Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral depravity, when committed against
a minor.
[2]

In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant
is always scrutinized with extreme caution.
[3]

In the present case, there are certain particulars which impelled the court to devote an even more painstaking and meticulous
examination of the facts on record and a similarly conscientious evaluation of the arguments of the parties. The victim of rape in this
case is a minor below twelve (12) years of age. As narrated by her, the details of the rape are mesmerically sordid and repulsive. The
victim was peddled for commercial sex by her own guardian whom she treated as a foster father. Because the complainant was a
willing victim, the acts of rape were preceded by several acts of lasciviousness on distinctly separate occasions. The accused is also a
most unlikely rapist. He is a member of Congress. Inspite of his having been charged and convicted by the trial court for statutory
rape, his constituents liked him so much that they knowingly re-elected him to his congressional office, the duties of which he could
not perform.
Statutory rape committed by a distinguished Congressman on an eleven (11) year old commercial sex worker is bound to attract
widespread media and public attention. In the words of accused-appellant, he has been demonized in the press most unfairly, his
image transmogrified into that of a dastardly, ogre, out to get his slimy hands on innocent and nave girls to satiate his lustful
desires.
[4]
This Court, therefore, punctiliously considered accused-appellants claim that he suffered invidiously discriminatory
treatment. Regarding the above allegation, the Court has ascertained that the extensive publicity generated by the case did not result
in a mistrial; the records show that the accused had ample and free opportunity to adduce his defenses.
This is an appeal from the decision
[5]
of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-
1986, convicting accused-appellant Romeo Jalosjos of two (2) counts of statutory rape, and in Criminal Case Nos. 96-1987, 96-1988,
96-1989, 96-1990, 96-1992, and 96-1993, for six (6) counts of acts of lasciviousness defined and penalized under Article 336 of the
Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, also known as the Child Abuse Law.
There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, where the
accused-appellant was acquitted of the charges of acts of lasciviousness for failure of the prosecution to prove his guilt beyond
reasonable doubt.
On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12) for acts of lasciviousness defined
and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, were filed against
accused-appellant. The accusatory portion of said informations for the crime of statutory rape state:
In Criminal Case No. 96-1985:
The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses
ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as
follows:
That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor
Rosilyn Delantar against her will, with damage and prejudice.
CONTRARY TO LAW.
[6]

In Criminal Case No. 96-1986:
The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses
ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as
follows:
That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor
Rosilyn Delantar against her will, with damage and prejudice.
CONTRARY TO LAW.
[7]

For acts of lasciviousness, the informations
[8]
under which accused-appellant was convicted were identical except for the
different dates of commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20, 1996; June 21, 1996; and June 22, 1996, to
wit:
The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year old minor ROSILYN DELANTAR accuses
ROMEO JALOSJOS of the crime of ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act No. 7610,
otherwise known as the Special Protection of Children against Abuse, Exploitation and Discrimination Act, committed as follows:
That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers, Makati City, Metro-Manila and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there wilfully, unlawfully and
feloniously kiss, caress and fondle said complainant's face, lips, neck, breasts, whole body, and vagina, suck her nipples and insert his
finger and then his tongue into her vagina, place himself on top of her, then insert his penis in between her thighs until ejaculation, and
other similar lascivious conduct against her will, to her damage and prejudice.
CONTRARY TO LAW.
In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on the different dates, the accused gave
the complainant P10,000.00, P5,000.00 and P5,000.00 respectively.
Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the trial court entered a plea of not
guilty for him. At the trial, the prosecution presented eight (8) main witnesses and seven (7) rebuttal witnesses as well as documentary
evidences marked as Exhibits A to EEEE, inclusive of submarkings. The defense, on the other hand presented twenty-six (26)
witnesses. Its documentary evidence consists of Exhibits 1 to 153, inclusive of submarkings. The records of the case are extremely
voluminous.
The Peoples version of the facts, culled mainly from the testimony of the victim, are as follows:
Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and almond-shaped black eyes. She grew
up in a two-storey apartment in Pasay City under the care of Simplicio Delantar, whom she treated as her own father. Simplicio was a
fifty-six year old homosexual whose ostensible source of income was selling longganiza and tocino and accepting boarders at his
house. On the side, he was also engaged in the skin trade as a pimp.
Rosilyn never got to see her mother, though she had known a younger brother, Shandro, who was also under the care of
Simplicio. At a very young age of 5, fair and smooth-complexioned Rosilyn was exposed by Simplicio to his illicit activities. She
and her brother would tag along with Simplicio whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn was
offered by Simplicio as a prostitute to an Arabian national known as Mr. Hammond. Thus begun her ordeal as one of the girls sold by
Simplicio for sexual favors.
Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his office located near Robinsons
Galleria. Rosilyn and Simplicio were brought there and introduced by a talent manager by the name of Eduardo Suarez. Accused-
appellant promised to help Rosilyn become an actress. When he saw Rosilyn, accused-appellant asked how old she was. Simplicio
answered, 10. She is going to be 11 on May 11. Accused-appellant inquired if Rosilyn knows how to sing. Simplicio told Rosilyn
to sing, so she sang the song, Tell Me You Love Me. Accused-appellant then asked if Rosilyn has nice legs and then raised her skirt
up to the mid-thighs. He asked if she was already menstruating, and Simplicio said yes. Accused-appellant further inquired if Rosilyn
already had breasts. When nobody answered, accused-appellant cupped Rosilyns left breast. Thereafter, accused-appellant assured
them that he would help Rosilyn become an actress as he was one of the producers of the TV programs, Valiente and Eat
Bulaga.
Simplicio and Suarez then discussed the execution of a contract for Rosilyns movie career. Accused-appellant, on the other
hand, said that he would adopt Rosilyn and that the latter would have to live with him in his condominium at the Ritz Towers. Before
Simplicio and Rosilyn went home, accused-appellant gave Rosilyn P2,000.00.
The second time Rosilyn met accused-appellant was at his condominium unit, located at Room 1702, Ritz Towers, Makati City.
Accused-appellant and Simplicio discussed the contract and his plan to finance Rosilyns studies. Accused-appellant gave Simplicio
P500.00, thereafter, Rosilyn, Shandro and Simplicio left.
The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss her acting career. Accused-
appellant referred the preparation of Rosilyns contract to his lawyer, who was also present. After the meeting, Simplicio and Rosilyn
left. As they were walking towards the elevator, accused-appellant approached them and gave Rosilyn P3,000.00.
On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-appellants condominium unit at Ritz
Towers. When accused-appellant came out of his bedroom, Simplicio told Rosilyn to go inside the bedroom, while he and accused-
appellant stayed outside. After a while, accused-appellant entered the bedroom and found Rosilyn watching television. He walked
towards Rosilyn and kissed her on the lips, then left the room again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio
that accused-appellant kissed her to which Simplicio replied, Halik lang naman.
Rosilyn was left alone in the bedroom watching television. After some time, accused-appellant came in and entered the
bathroom. He came out clad in a long white T-shirt on which was printed the word, Dakak. In his hand was a plain white T-
shirt. Accused-appellant told Rosilyn that he wanted to change her clothes. Rosilyn protested and told accused-appellant that she can
do it herself, but accused-appellant answered, Daddy mo naman ako. Accused-appellant then took off Rosilyns blouse and
skirt. When he was about to take off her panties, Rosilyn said, Huwag po. Again, accused-appellant told her, After all, I am your
Daddy. Accused-appellant then removed her panties and dressed her with the long white T-shirt.
The two of them watched television in bed. After sometime, accused-appellant turned off the lamp and the television. He turned
to Rosilyn and kissed her lips. He then raised her shirt, touched her breasts and inserted his finger into her vagina. Rosilyn felt pain
and cried out, Tama na po. Accused-appellant stopped. He continued to kiss her lips and fondle her breasts. Later, accused-
appellant told Rosilyn to sleep.
The following morning, Rosilyn was awakened by accused-appellant whom she found bent over and kissing her. He told her to
get up, took her hand and led her to the bathroom. He removed Rosilyns shirt and gave her a bath. While accused-appellant rubbed
soap all over Rosilyns body, he caressed her breasts and inserted his finger into her vagina. After that, he rinsed her body, dried her
with a towel and applied lotion on her arms and legs. Then, he dried her hair and told her to dress up. Rosilyn put on her clothes and
went out of the bathroom, while accused-appellant took a shower.
Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching television. When accused-appellant entered the
room, he knelt in front of her, removed her panties and placed her legs on his shoulders. Then, he placed his tongue on her
vagina. Thereafter, he gave Rosilyn P10,000.00 and told his housemaid to take her shopping at Shoemart. When she returned to the
Ritz Towers, Simplicio was waiting for her. The two of them went home. Rosilyn narrated to Simplicio what accused-appellant did
to her, and pleaded for him not to bring her back to the Ritz Towers. Simplicio told her that everything was alright as long as accused-
appellant does not have sexual intercourse with her.
That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn to the Ritz Towers. After Simplicio
left, accused-appellant removed Rosilyns clothes and dressed her with the same long T-shirt. They watched television for a while,
then accused-appellant sat beside Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt above her breasts, and
inserted his finger into her vagina. Then, accused-appellant removed his own clothes, placed his penis between Rosilyns thighs and
made thrusting motions until he ejaculated on her thighs. Thereafter, accused-appellant kissed her and told her to sleep.
The next day, June 16, 1996, accused-appellant roused her from sleep and bathed her. Again, he rubbed soap all over her body,
washed her hair, and thereafter rinsed her body and dried her hair. While accused-appellant was bathing Rosilyn, he asked her to
fondle his penis while he caressed her breasts and inserted his finger into her vagina. After their shower, accused-appellant ate
breakfast. He gave Rosilyn P5,000.00 and told her to just wait for Simplicio in the condominium unit. On their way home, Simplicio
told Rosilyn that if accused-appellant tries to insert his penis into her vagina, she should refuse.
At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They found accused-appellant sitting on
the bed in his bedroom. Simplicio told Rosilyn to approach accused-appellant, then he left. Accused-appellant took off Rosilyns
clothes and dressed her with a long T-shirt on which was printed a picture of accused-appellant and a woman, with the caption, Cong.
Jalosjos with his Toy. They watched television for a while, then accused-appellant lay beside Rosilyn and kissed her on the lips. He
raised her shirt and parted her legs. He positioned himself between the spread legs of Rosilyn, took off his own shirt, held his penis,
and poked and pressed the same against Rosilyns vagina. This caused Rosilyn pain inside her sex organ. Thereafter, accused-
appellant fondled her breasts and told her to sleep.
When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no longer around but she found P5,000.00
on the table. Earlier that morning, she had felt somebody touching her private parts but she was still too sleepy to find out who it
was. Rosilyn took a bath, then went off to school with Simplicio, who arrived to fetch her.
The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00 oclock in the evening in his bedroom
at the Ritz Towers. Accused-appellant stripped her naked and again put on her the long shirt he wanted her to wear. After watching
television for a while, accused-appellant knelt beside Rosilyn, raised her shirt, caressed her breasts and inserted his finger into her
vagina. Then, he clipped his penis between Rosilyns thighs, and made thrusting motions until he ejaculated. Thereafter, Rosilyn
went to sleep.
The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing her and fondling her sex organ. She,
however, ignored him and went back to sleep. When she woke up, she found the P5,000.00 which accused-appellant left and gave the
same to Simplicio Delantar, when the latter came to pick her up.
On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-appellant took photographs of Rosilyn. He
asked her to pose with her T-shirt pulled down thereby exposing her breasts. He also took her photographs with her T-shirt rolled up
to the pelvis but without showing her pubis, and finally, while straddle on a chair facing the backrest, showing her legs.
Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and inserted his finger into her vagina. The
following morning, she woke up and found the P5,000.00 left by accused-appellant on the table. She recalled that earlier that
morning, she felt somebody caressing her breasts and sex organ.
On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had to wait for accused-appellant, who
arrived between 12:00 to 1:00 a.m. He again dressed her with the long white shirt similar to what he was wearing. While sitting on
the bed, accused-appellant kissed her lips and inserted his tongue into her mouth. He then fondled her breasts and inserted his finger
into her vagina, causing her to cry in pain. Accused-appellant stopped and told her to sleep.
The next morning, accused-appellant bathed her again. While he soaped her body, he fondled her breasts and inserted his finger
in her vagina. Rosilyn felt pain and shoved his hand away. After bathing her, accused-appellant had breakfast. Before he left, he
gave Rosilyn P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money and then they left for school.
On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant was waiting in his bedroom. He took
off Rosilyns clothes, including her panties, and dressed her with a long T-shirt similar to what he was wearing. After watching
television, accused-appellant kissed Rosilyn on the lips, inserted his tongue in her mouth and fondled her breasts. Then, he made
Rosilyn lie on the bed, spread her legs apart and placed a pillow under her back. He inserted his finger in her vagina and mount
himself between her legs with his hands rested on her sides. After that, he lifted his shirt, then pointed and pressed his penis against
her vagina. Accused-appellant made thrusting motions, which caused Rosilyn pain. Thereafter, accused-appellant told her to sleep.
In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but she did not wake up. When she woke
up later, she found P5,000.00 on the table, and she gave this to Simplicio when he came to fetch her.
On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00 p.m. Accused-appellant was about to leave,
so he told them to come back later that evening. The two did not return.
The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their boarders. Yamie accompanied
Rosilyn to the Pasay City Police, where she executed a sworn statement against Simplicio Delantar. Rosilyn was thereafter taken to
the custody of the Department of Social Welfare and Development (DSWD). The National Bureau of Investigation (NBI) conducted
an investigation, which eventually led to the filing of criminal charges against accused-appellant.
On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp Crame. The examination yielded the
following results:
EXTERNAL AND EXTRAGENITAL
Fairly developed, fairly nourished and coherent female subject. Breasts are conical with pinkish brown areola and nipples from which
no secretions could be pressed out. Abdomen is flat and soft
GENITAL
There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pinkish brown labia minora presenting
in between. On separating the same disclosed an elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock position and
deep healed laceration at 8 o'clock position. External vaginal orifice offers moderate resistance to the introduction of the examining
index finger and the virgin sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of violence.
[9]

During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it was his brother, Dominador Jun
Jalosjos, whom Rosilyn had met, once at accused-appellants Dakak office and twice at the Ritz Towers. Accused-appellant insisted
that he was in the province on the dates Rosilyn claimed to have been sexually abused. He attributed the filing of the charges against
him to a small group of blackmailers who wanted to extort money from him, and to his political opponents, particularly Ex-
Congressman Artemio Adaza, who are allegedly determined to destroy his political career and boost their personal agenda.
More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine Airlines (PAL) 9:40 a.m. flight from
Manila to Dipolog. He stayed in Dipolog until June 18, 1996. He submitted in evidence airline ticket no. 10792424,
[10]
showing that
he was on board Flight PR 165; the said flights passengers manifest,
[11]
where the name JALOSJOS/RM/MR appears; and
photographs showing accused-appellants constituents welcoming his arrival and showing accused-appellant talking with former
Mayor Hermanico Carreon and Fiscal Empainado.
Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight from Manila to Dipolog City. On the
same flight, he met Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after talking to his representatives, he
proceeded to his residence known as Barangay House in Taguinon, Dapitan, near Dakak Beach resort, and spent the night there.
On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in the house of Barangay Captain
Mila Yap until 5:30 p.m. Then, together with some friends, he visited the Rizal Shrine and the Pirate Bar at Dakak Beach
Resort. Thereafter, he retired in the Barangay House in Taguilon.
On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with his political leaders at the Blue Room
of Dakak, which lasted till the afternoon. In the evening, he went home and slept in the Barangay House.
On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night in the Barangay House.
On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach Resort. The blessing ceremony was
officiated by Assistant Parish Priest Adelmo Laput.
On July 3, 1996, he was the guest in the inaguration of the 3
rd
Engineering District of Dapitan City. After the mass, he visited
the Jamboree site in Barangay Taguilon, Dapitan City.
He further contended that after his arrival in Dipolog on June 28, 1996, there was never an instance when he went to Manila until
July 9, 1996, when he attended a conference called by the President of the Philippines.
Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of PAL from Manila to Dumaguete
City. From there, he was flown by a private plane to Dipolog, where he stayed until the President of the Philippines arrived.
To buttress the theory of the defense, Dominador Jun Jalosjos testified that he was the one, and not accused-appellant, whom
Rosilyn met on three occasions. These occurred once during the first week of May 1996, at accused-appellants Dakak office where
Rosilyn and Simplicio Delantar were introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he interviewed
Rosilyn, and later when Rosilyn and Simplicio followed up the proposed entry of Rosilyn into the show business.
Dominadors admission of his meetings with Rosilyn on three instances were limited to interviewing her and assessing her
singing and modeling potentials. His testimony made no mention of any sexual encounter with Rosilyn.
After trial, the court rendered the assailed decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond reasonable doubt the guilt of the accused,
ROMEO JALOSJOS y GARCIA, as principal in the two (2) counts of statutory rape defined and penalized under Article 335 of the
Revised Penal Code. He is hereby declared CONVICTED in each of these cases.
2. Accordingly, he is sentenced to:
2a. suffer the penalty of reclusion perpetua in each of these cases.
2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral
damages for each of the cases.
3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-1993, the prosecution has proven beyond reasonable
doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts of lasciviousness defined under
Article 336 of the Revised Penal Code and penalized under Section 5 (b) of R.A. 7610 otherwise known as the Child Abuse Law. He
is hereby declared CONVICTED in each of these cases;
4. Accordingly he is sentenced to:
4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years, eight (8) months and one (1) day of prision
mayor in its medium period, as maximum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its
medium period, as maximum;
4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY THOUSAND (P20,000.00) as moral damages
for each of the cases;
5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998, the prosecution has failed to prove beyond
reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of lasciviousness. Therefore, on
the ground of reasonable doubt, the accused in these cases is hereby ACQUITTED.
SO ORDERED.
[12]

Hence, the instant appeal. Accused-appellant contends:
A.
THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON TESTIMONY
OF THE PRIVATE COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF INCONSISTENCIES AND
UNTRUTHS.
B.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE CONFLICTING
STATEMENTS GIVEN BY THE PRIVATE COMPLAINANT.
C.
THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF PRIVATE COMPLAINANTS
FAILURE TO IDENTIFY THE ACCUSED-APPELLANT.
D.
THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT WAS A MINOR LESS
THAN TWELVE YEARS OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.
E.
THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED AGAINST THE PRIVATE
COMPLAINANT.
[13]

In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with utmost caution. The constitutional
presumption of innocence requires no less than moral certainty beyond any scintilla of doubt. This applies with more vigor in rape
cases where the evidence for the prosecution must stand or fall on its own merits and is not allowed to draw strength from the
weakness of the evidence of the defense. As an inevitable consequence, it is the rape victim herself that is actually put on trial. The
case at bar is no exception. Bent on destroying the veracity of private complainants testimony, the errors assigned by accused-
appellant, particularly the first three, are focused on the issue of credibility.
Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-
1998, for acts of lasciviousness. According to him, the fact that the trial court sustained his defense of alibi in the said cases only
shows that Rosilyn concocted her stories and the rest of her testimony ought not to be believed. Stated differently, accused-appellant
urges the application of the doctrine of "falsus in uno falsus in omnibus (false in part, false in everything).
[14]

The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied in
modern jurisprudence.
[15]
Thus, in People v. Yanson-Dumancas,
[16]
citingPeople v. Li Bun Juan,
[17]
this Court held that:
... In this connection it must be borne in mind that the principle falsus in uno falsus in omnibus is not an absolute one, and that it is
perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. In
People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was quoted with approval by the Court of Appeals from 1 Moore on
Facts, p. 23:
18. Testimony may be partly credited and partly rejected. --- Trier of facts are not bound to believe all that any witness has said;
they may accept some portions of his testimony and reject other portions, according to what seems to them, upon other facts and
circumstances to be the truth Even when witnesses are found to have deliberately falsified in some material particulars, the jury are
not required to reject the whole of their uncorroborated testimony, but may credit such portions as they deem worthy of belief. (p.
945)
[18]

Being in the best position to discriminate between the truth and the falsehood, the trial court's assignment of values and weight
on the testimony of Rosilyn should be given credence. Significantly, it should be borne in mind that the issue at hand hinges on
credibility, the assessment of which, as oft-repeated, is best made by the trial court because of its untrammeled opportunity to observe
her demeanor on the witness stand.
On the demeanor and manner of testifying shown by the complainant, the trial court stated:
Guided by the foregoing principles, this court found no reason why it should not believe Rosilyn when she claimed she was
raped. Testimonies of rape victims especially those who are young and immature deserve full credence (People v. Liquiran, 228
SCRA 62 (1993) considering that no woman would concoct a story of defloration, allow an examination of her private parts and
thereafter allow herself to be perverted in a public trial if she was not motivated solely by the desire to have the culprit apprehended
and punished. (People v. Buyok, 235 SCRA 622 [1996]).
When asked to describe what had been done to her, Rosilyn was able to narrate spontaneously in detail how she was sexually
abused. Her testimony in this regard was firm, candid, clear and straightforward, and it remained to be so even during the intense and
rigid cross-examination made by the defense counsel.
[19]

Accused-appellant next argues that Rosilyns direct and redirect testimonies were rehearsed and lacking in candidness. He
points to the supposed hesitant and even idiotic answers of Rosilyn on cross and re-cross examinations. He added that she was trained
to give answers such as, Ano po?, Parang po, Medyo po, and Sa tingin ko po.
Accused-appellants arguments are far from persuasive. A reading of the pertinent transcript of stenographic notes reveals that
Rosilyn was in fact firm and consistent on the fact of rape and lascivious conduct committed on her by accused-appellant. She
answered in clear, simple and natural words customary of children of her age. The above phrases quoted by accused-appellant as
uttered by Rosilyn are, as correctly pointed out by the Solicitor General, typical answers of child witnesses like her.
At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand, may have given some ambiguous
answers, they refer merely to minor and peripheral details which do not in any way detract from her firm and straightforward
declaration that she had been molested and subjected to lascivious conduct by accused-appellant. Moreover, it should be borne in
mind that even the most candid witness oftentimes makes mistakes and confused statements. At times, far from eroding the
effectiveness of the evidence, such lapses could, indeed, constitute signs of veracity.
[20]

Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in the five (5) sworn statements
executed by Rosilyn as well as in the interviews and case study conducted by the representatives of the DSWD. In particular,
accused-appellant points to the following documents:
(1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A. Carrasco of the Pasay City Police;
(2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents Cynthia L. Mariano and
Supervising NBI Agent Arlis E. Vela;
(3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996;
(4) DSWD Final Case Study Report dated January 10, 1997.
It must be stressed that rape is a technical term, the precise and accurate definition of which could not have been understood by
Rosilyn. Indeed, without the assistance of a lawyer, who could explain to her the intricacies of rape, she expectedly could not
distinguish in her affidavits and consequently disclose with proficient exactitude the act or acts of accused-appellant that under the
contemplation of law constitute the crime of rape. This is especially true in the present case where there was no exhaustive and clear-
cut evidence of full and complete penetration of the victims vagina. It may well be that Rosilyn thought, as any layman would
probably do, that there must be the fullest penetration of the victims vagina to qualify a sexual act to rape.
In People v. Campuhan,
[21]
we ruled that rape is consummated by the slightest penetration of the female organ, i.e., touching of
either labia of the pudendum by the penis. There need not be full and complete penetration of the victims vagina for rape to be
consummated. There being no showing that the foregoing technicalities of rape was fully explained to Rosilyn on all those occasions
that she was interviewed by the police, the NBI agents and DSWD social workers, she could not therefore be expected to intelligibly
declare that accused-appellants act of pressing his sex organ against her labia without full entry of the vaginal canal amounted to rape.
In the decision of the trial court, the testimony on one of the rapes is cited plus the courts mention of the jurisprudence on this
issue, to wit:
Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs
were spread wide apart, what else did he do?
A: He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko. (underscoring supplied)
Q: And, after doing that: Idinikit-dikit niya yong ari niya sa ari ko; what else did he do?
A: After that, Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko. (underscoring supplied)
(pp. 23, 25 to 30, TSN, 16 April 1997)
It is well-entrenched in this jurisdiction that rape can be committed even without full penetration of the male organ into the vagina of
the woman. It is enough that there be proof of the entrance of the male organ within the labia of the pudendum of the female
organ. (People vs. Mangalino, 182 SCRA 329; People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA 393). Penetration
of the penis by entry into the lips of the female organ suffices to warrant a conviction. (People vs. Galimba, G.R. No. 111563-64,
February 20, 1996 citing People vs. Abonada, 169 SCRA 530). Hence, with the testimony of Rosilyn that the accused pressed against
(idiniin) and pointed to (itinutok) Rosilyns vagina his sexual organ on two (2) occasions, two (2) acts of rape were
consummated.
[22]

Moreover, it must be borne in mind that Rosilyns purpose in executing the affidavits on August 22 and 26, 1996 before the
Pasay City Police was to charge Simplicio Delantar, not accused-appellant. As aptly pointed out by the trial court, it is preposterous to
expect Rosilyn to make an exhaustive narration of the sexual abuse of accused-appellant when he was not the object of the said
complaint.
Additionally, Rosilyns statements, given to the NBI on September 11 and 19, 1996, concerned mainly the identification of
pictures. There was thus no occasion for her to narrate the details of her sexual encounter with accused-appellant.
As to the interviews and studies conducted by the DSWD, suffice it to state that said meetings with Rosilyn were specially
focused on the emotional and psychological repercussions of the sexual abuse on Rosilyn, and had nothing to do with the legal actions
being prepared as a consequence thereof. Thus, the documents pertaining to said interviews and studies cannot be relied upon to
reveal every minute aspect of the sexual molestations complained of.
At any rate, the inconsistencies between the affidavits and Rosilyns testimony, if at all they existed, cannot diminish the
probative value of Rosilyns declarations on the witness stand. The consistent ruling of this Court is that, if there is an inconsistency
between the affidavit of a witness and her testimonies given in open court, the latter commands greater weight than the former.
[23]

In the third assigned error, accused-appellant attempts to impress upon this Court that Rosilyn gave the name Congressman
Romeo Jalosjos as her abuser only because that was the name given to her by the person to whom she was introduced. That same
name, accused-appellant claims, was merely picked up by Rosilyn from the name plate, plaque, and memo pad she saw on accused-
appellants office desk. Accused-appellant presented his brother, Dominador Jun Jalosjos, in an attempt to cast doubt on his
culpability. It was Dominador Jun Jalosjos who allegedly met and interviewed Rosilyn at the Dakak office. In advancement of this
theory, accused-appellant cites the fact that out of a total of 16 pictures presented to Rosilyn for identification, she picked up only 4,
which depict Dominador Jun Jalosjos. In the same vein, accused-appellant claims that the resulting cartographic sketch from the
facial characteristics given by Rosilyn to the cartographer, resembles the facial appearance of Dominador Jun Jalosjos. Accused-
appellant also points out that Rosilyn failed to give his correct age or state that he has a mole on his lower right jaw.
Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively and unhesitatingly identified accused-
appellant at the courtroom. Such identification during the trial cannot be diminished by the fact that in her sworn statement, Rosilyn
referred to accused-appellant as her abuser based on the name she heard from the person to whom she was introduced and on the name
she saw and read in accused-appellants office. Verily, a persons identity does not depend solely on his name, but also on his
physical features. Thus, a victim of a crime can still identify the culprit even without knowing his name. Similarly, the Court, in
People v. Vasquez,
[24]
ruled that:
It matters little that the eyewitness initially recognized accused-appellant only by face [the witness] acted like any ordinary
person in making inquiries to find out the name that matched [appellants] face. Significantly, in open court, he unequivocally
identified accused-appellant as their assailant.
Even in the case of People v. Timon,
[25]
relied upon by accused-appellant to discredit his identification, this Court said that even
assuming that the out-of-court identification of accused-appellant was defective, their subsequent identification in court cured any
flaw that may have initially attended it.
In light of the foregoing, Rosilyns failure to identify accused-appellant out of the 16 pictures shown to her does not foreclose the
credibility of her unqualified identification of accused-appellant in open court. The same holds true with the subject cartographic
sketch which, incidentally, resembles accused-appellant. As noted by the trial court, accused-appellant and his brother Dominador
Jalosjos have a striking similarity in facial features. Naturally, if the sketch looks like Dominador, it logically follows that the same
drawing would definitely look like accused-appellant.
Likewise, Rosilyns failure to correctly approximate the age of accused-appellant and to state that he has a mole on the lower
right jaw, cannot affect the veracity of accused-appellants identification. At a young age, Rosilyn cannot be expected to give the
accurate age of a 56 year-old person. As to accused-appellants mole, the Solicitor General is correct in contending that said mole is
not so distinctive as to capture Rosilyns attention and memory. When she was asked to give additional information about accused-
appellant, Rosilyn described him as having a prominent belly. This, to our mind, is indeed a more distinguishing feature that would
naturally catch the attention of an eleven year-old child like Rosilyn.
In his fifth assigned error, accused-appellant insists that the words idinikit, itinutok, and idiniin-diin, which Rosilyn used
to describe what accused-appellant did to her vagina with his genitals, do not constitute consummated rape. In addition, the defense
argued that Rosilyn did not actually see accused-appellants penis in the supposed sexual contact. In fact, they stressed that Rosilyn
declared that accused-appellants semen spilled in her thighs and not in her sex organ.
Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that, assuming that his penis touched or
brushed Rosilyns external genitals, the same is not enough to establish the crime of rape.
True, in People v. Campuhan,
[26]
we explained that the phrase, the mere touching of the external genitalia by the penis capable
of consummating the sexual act is sufficient to constitute carnal knowledge, means that the act of touching should be understood here
as inherently part of the entry of the penis into the labia of the female organ and not mere touching alone of the mons pubis or the
pudendum. We further elucidated that:
The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia
majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy
after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ
composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is
pigmented, while the inner surface is a thin skin which does not have any hairs but has many sebaceous glands. Directly beneath the
labia majora is the labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not
merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons
pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted
rape, if not acts of lasciviousness.
[27]

In the present case, there is sufficient proof to establish that the acts of accused-appellant went beyond strafing of the citadel of
passion or shelling of the castle of orgasmic potency, as depicted in theCampuhan case, and progressed into bombardment of the
drawbridge [which] is invasion enough,
[28]
there being, in a manner of speaking, a conquest of the fortress of ignition. When the
accused-appellant brutely mounted between Rosilyns wide-spread legs, unfetteredly touching, poking and pressing his penis against
her vagina, which in her position would then be naturally wide open and ready for copulation, it would require no fertile imagination
to belie the hypocrisy claimed by accused-appellant that his penis or that of someone who looked like him, would under the
circumstances merely touch or brush the external genital of Rosilyn. The inevitable contact between accused-appellants penis, and at
the very least, the labia of the pudendum of Rosilyn, was confirmed when she felt pain inside her vagina when the idiniin part of
accused appellants sex ritual was performed.
The incident on June 18, 1996 was described by Rosilyn as follows:
PROS. ZUNO:
Q. And, after kissing your lips; after kissing you in your lips, what else did he do?
A. After that, he was lifting my shirt.
Q. Now, while he was lifting your shirt, what was your position; will you tell the court?
A. I was lying, sir.
Q. Lying on what?
A. On the bed, sir.
Q. And, after lifting your shirt, what else did he do?
A. He spread my legs sir.
Q. And, after spreading your legs apart; what did he do?
A. After that, he lifted his shirt and held his penis.
Q. And while he was holding his penis; what did he do?
A. He pressed it in my vagina.
ATTY. FERNANDEZ:
May we request that the vernacular be used?
A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.
PROS. ZUNO:
May I respectfully move that the word: idinikit-dikit niya ang ari niya sa ari ko, be incorporated?
Q. And while he was doing that; according to you, idinikit-dikit niya ang ari niya sa ari mo; what did you feel?
A. I was afraid and then, I cried.
Q. Will you tell the Court why you felt afraid and why you cried?
A. Because I was afraid he might insert his penis into my vagina.
Q. And, for how long did Congressman Jalosjos perform that act, which according to you, idinikit-dikit niya yong ari niya sa
ari ko?
COURT:
Place the Tagalog words, into the records.
A. Sandali lang po yon.
Q. What part of your vagina, or ari was being touched by the ari or penis?
x x x x x x x x x
Q. You said that you felt I withdraw that question. How did you know that Congressman Jalosjos was doing, idinikit-dikit
niya yung ari niya sa ari ko?
A. Because I could feel it, sir.
Q. Now, you said you could feel it. What part of the vagina in what part of your vagina was Congressman Jalosjos, according
to you, idinikit-dikit niya yong ari niya sa ari mo?
A. In front of my vagina, sir.
Q. In front of your vagina? O.K.; will you tell the Court the position?
Will you describe the position of Congressman Jalosjos when he was doing that. Idinikit-dikit niya sa ari ko?
A. Ide-demonstrate ko po ba?
FISCAL ZUNO:
Q. Can you demonstrate?
x x x x x x x x x
A. He was holding me like this with his one hand; and was holding his penis while his other hand, or his free hand was on the
bed.
x x x x x x x x x
PROS. ZUNO:
Now, according to you, you dont know how to say it; or what was done to you. Now, will you tell the Court how can you
describe what was done to you?
A. After he dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito.
Q. O.K. you said itinutok niya ito; what else did he do?
PROS. ZUNO:
She is now trying to describe.
COURT:
Translate.
A. He seems to be parang idinidiin po niya.
Q. Now, what did you feel, when according to you; as I would quote: parang idinidiin niya?
A. Masakit po.
Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya?
COURT:
Q. Sabi mo itinutok. Nakita mo bang itinutok?
A. I saw him na nakaganuon po sa ano niya.
PROS. ZUNO:
Q. O.K., clarify. You said nakaganuon siya what do you mean by nakaganuon siya?
A. He was holding his penis, and then, that was the one which he itinutok sa ari ko.
PROS. ZUNO:
Q. And, when you said idinidiin po niya; to which you are referring? What is this idinidiin niya?
A. Idinidiin niya ang ari niya sa ari ko.
Q. And what did you feel when you said: he was idinidiin niya ang ari niya sa ari ko?
A. Masakit po.
COURT:
The answer is masakit po.
Proceed.
PROS. ZUNO:
Q. Where did you feel the pain?
A. Inside my ari po. (Sa loob po ng ari ko.)
x x x x x x x x x
PROS. ZUNO:
Q. And then, after that, what else did he do
A. After that, he touched my breast, sir.
Q. And, after touching your breast, what did he do?
A. And after that I felt that he was (witness demonstrating to the court, with her index finger, rubbing against her open left palm)
Q. And after doing that, what else did he do?
A. After that, he instructed me to go to sleep.
x x x x x x x x x
A. I put down my clothes and then, I cried myself to sleep, sir.
Q. Why did you cry? Will you tell the court, why did you cried after putting down your clothes?
A. Because I felt pity for myself.
(Naaawa po ako sa sarili ko.)
x x x x x x x x x.
(Emphasis supplied.)
[29]

Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the sketchy visualization of the nave
and uninitiated to conclude that there was indeed penile invasion by accused-appellant of Rosilyns labia. On that occasion, accused-
appellant was similarly ensconced between the parted legs of Rosilyn, except that, this time, Rosilyn was conveniently rested on, and
elevated with a pillow on her back while accused-appellant was touching, poking and pressing his penis against her vagina. Topped
with the thrusting motions employed by accused-appellant, the resulting pain felt by Rosilyn in her sex organ was no doubt a
consequence of consummated rape.
The pertinent portions of Rosilyns account of the July 20, 1996 incident is as follows:
PROS. ZUNO:
x x x x x x x x x
Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your position?
INTERPRETER:
The witness is asking he (sic) she has to demonstrate?
FISCAL ZUNO:
Q. Ipaliwanag mo lang?
A. My back was rested on a pillow and my legs were spread apart.
Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs
were spread wide apart, what else did he do?
A. He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko.
Q. And what did you feel when he was doing that which according to you and I would quote in Tagalog: idinikit-dikit niya yong
ari niya sa ari ko?
A. I was afraid sir.
Q. And, after doing that: idinikit-dikit niya yong ari niya sa ari ko, what else did he do?
A. After that, itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko.
Q. You said: Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari niya sa ari ko; Now,
while he was doing that act, what was the position of Congressman Jalosjos?
A. His two (2) hands were on my side and since my legs were spread apart; he was in-between them, and doing an upward and
downward movement.
(Witness demonstrated a pushing, or pumping movement)
Q. For how long did Congressman Jalosjos perform that act, pushing or pumping movement while his penis, or ang ari niya ay
nakatutok at idinidiin-diin yong ari niya sa ari mo?
A. I dont know.
Q. And what did you feel when Congressman Jalosjos was making that movement, pushing, or pumping?
A. I felt pain and then I cried.
Q. Where did you feel the pain?
A. Inside my vagina, sir.
x x x x x x x x x.
[30]

The childs narration of the rape sequence is revealing. The act of idinikit-dikit niya was followed by itinutok niya xxx at
idiniin-diin niya. The idiniin-diin niya was succeeded by Masakit po. Pain inside her ari is indicative of consummated
penetration.
The environmental circumstances displayed by the graphic narration of what took place at the appellants room from June 14 to
June 16 and June 21 to June 22, 1996 are consistent with the complainants testimony which shows that rape was legally
consummated.
In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs close together --- which, although futile,
somehow made it inconvenient, if not difficult, for the accused-appellant to attempt penetration. On the other hand, the ease with
which accused-appellant herein perpetrated the sexual abuse, not to mention the absence of time constraint, totally distinguishes the
instant case fromCampuhan. Here, the victim was passive and even submissive to the lecherous acts of accused-appellant. Thus, even
assuming that his penis then was flaccid, his act of holding, guiding and assisting his penis with his one hand, while touching, poking
and pressing the same against Rosilyn's vagina, would surely result in even the slightest contact between the labia of the pudendum
and accused-appellant's sex organ.
Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the alleged sexual assault at bar, the defense
argued that it is highly improbable and contrary to human experience that accused-appellant exercised a Spartan-like discipline and
restrained himself from fully consummating the sexual act when there was in fact no reason for him not to do so. In the same light,
the defense likewise branded as unnatural the testimony of Rosilyn that accused-appellant contented himself with rubbing his penis
clipped between her thighs until he reached orgasm and desisted from fully penetrating her, when Rosilyn was then entirely at his
disposal.
The defense seems to forget that there is no standard form of behavior when it comes to gratifying ones basic sexual
instinct. The human sexual perversity is far too intricate for the defense to prescribe certain forms of conduct. Even the word
perverse is not entirely precise, as what may be perverse to one may not be to another. Using a child of tender years who could even
pass as ones granddaughter, to unleash what others would call downright bestial lust, may be utterly nauseating and repulsive to
some, but may peculiarly be a festive celebration of salacious fantasies to others. For all we know, accused-appellant may have found
a distinct and complete sexual gratification in such kind of libidinous stunts and maneuvers.
Nevertheless, accused-appellant may not have fully and for a longer period penetrated Rosilyn for fear of perpetrating his name
through a child from the womb of a minor; or because of his previous agreement with his suking bugaw, Simplicio Delantar, that
there would be no penetration, otherwise the latter would demand a higher price. This may be the reason why Simplicio Delantar gave
his mocking fatherly advice to Rosilyn that it is bad if accused-appellant inserts his penis into her sex organ, while at the same time
ordering her to call him if accused-appellant would penetrate her. Such instance of penile invasion would prompt Simplicio to
demand a higher price, which is, after all, as the Solicitor General calls it, the peculiarity of prostitution.
The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her thighs and not in her vagina, only
proves that there was no rape. It should be noted that this portion of Rosilyns testimony refers to the June 15 and 21, 1996 charges of
acts of lasciviousness, and not the rape charges. In any event, granting that it occurred during the twin instances of rape on June 18
and July 20, 1996, the ejaculation on the victims thighs would not preclude the fact of rape.
There is no truth to the contention of the defense that Rosilyn did not see the penis of accused-appellant. As can be gleaned from
the above-quoted portions of the transcripts, Rosilyn unequivocally testified that accused-appellant held his penis then poked her
vagina with it. And even if she did not actually see accused-appellants penis go inside her, surely she could have felt whether it was
his penis or just his finger.
We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at the time the rape complained of
occurred. To bolster the declaration of Rosilyn that she was then eleven years old, the prosecution presented the following documents:
(1) Rosilyns birth certificate showing her birthday as May 11, 1985;
[31]

(2) Rosilyns baptismal certificate showing her birthday as May 11, 1985;
[32]

(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to Librada Telen as the
mother;
[33]

(4) Marked pages of the Cord Dressing Room Book;
[34]

(5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her parents (Librada Telen and
Simplicio Delantar) patient file number (39-10-71);
[35]

(6) Record of admission showing her parents patient number (39-10-71) and confinement at the Jose Fabella Memorial
Hospital from May 5-14, 1985.
[36]

It is settled that in cases of statutory rape, the age of the victim may be proved by the presentation of her birth certificate. In the
case at bar, accused-appellant contends that the birth certificate of Rosilyn should not have been considered by the trial court because
said birth certificate has already been ordered cancelled and expunged from the records by the Regional Trial Court of Manila, Branch
38, in Special Proceedings No. 97-81893, dated April 11, 1997.
[37]
However, it appears that the said decision has been annulled and set
aside by the Court of Appeals on June 10, 1999, in CA-G.R. SP No. 45289. The decision of the Court of Appeals was appealed to this
Court by petition for review, docketed as G.R. No. 140305. Pending the final outcome of that case, the decision of the Court of
Appeals is presumed valid and can be invoked as prima facie basis for holding that Rosilyn was indeed eleven years old at the time
she was abused by accused-appellant.
However, even assuming the absence of a valid birth certificate, there is sufficient and ample proof of the complainants age in
the records.
Rosilyns Baptismal Certificate can likewise serve as proof of her age. In People v. Liban,
[38]
we ruled that the birth certificate,
or in lieu thereof, any other documentary evidence that can help establish the age of the victim, such as the baptismal certificate,
school records, and documents of similar nature, can be presented.
And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn are inadmissible to prove her age, the
Master List of Live Births and the Cord Dressing Book of Dr. Jose Fabella Memorial Hospital where Rosilyn was born are sufficient
evidence to prove that her date of birth was May 11, 1985. These documents are considered entries in official records, admissible
as prima facie evidence of their contents and corroborative of Rosilyns testimony as to her age.
Thus, Rule 130, Section 44, of the Rules of Court states:
Entries in official records. --- Entries in official records made in the performance of his duty by a public officer of the Philippines, or
by a person in the performance of a duty especially enjoined by law, areprima facie evidence of the facts therein stated.
In Africa v. Caltex, et al., (Phil), Inc., et al.,
[39]
the Court laid down the requisites for the application of the foregoing rule, thus:
(a) That the entry was made by a public officer, or by another person specially enjoined by law to do so;
(b) That it was made by the public officer in the performance of his duties or by such other person in the performance of a
duty specially enjoined by law; and
(c) That the public office or the other person had sufficient knowledge of the facts by him stated, which must have been
acquired by him personally or through official information.
In order for a book to classify as an official register and admissible in evidence, it is not necessary that it be required by an
express statute to be kept, nor that the nature of the office should render the book indispensable; it is sufficient that it be directed by
the proper authority to be kept. Thus, official registers, though not required by law, kept as convenient and appropriate modes of
discharging official duties, are admissible.
[40]

Entries in public or official books or records may be proved by the production of the books or records themselves or by a copy
certified by the legal keeper thereof.
[41]
It is not necessary to show that the person making the entry is unavailable by reason of death,
absence, etc., in order that the entry may be admissible in evidence, for his being excused from appearing in court in order that public
business be not deranged, is one of the reasons for this exception to the hearsay rule.
[42]

Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,
[43]
mandates hospitals to report and register with
the local civil registrar the fact of birth, among others, of babies born under their care. Said Decree imposes a penalty of a fine of not
less that P500.00 nor more than P1,000.00 or imprisonment of not less than three (3) months nor more than six (6) months, or both, in
the discretion of the court, in case of failure to make the necessary report to the local civil registrar.
Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44, of the Rules of Court, it is clear that
the Cord Dressing Room Book where the fact of birth, name of the mother and other related entries are initially recorded, as well as
the Master List of Live Births of the hospital, are considered entries in official record, being indispensable to and appropriate modes of
recording the births of children preparatory to registration of said entries with the local civil registrar, in compliance with a duty
specifically mandated by law.
It matters not that the person presented to testify on these hospital records was not the person who actually made those entries
way back in 1985, but Amelita Avenante, the records custodian of the hospital in 1995. To reiterate, these records may be proved by
the presentation of the record itself or by a certified copy or the legal keeper thereof. Proof of the unavailability of the person who
made those entries is not a requisite for their admissibility. What is important is that the entries testified to by Avenante were gathered
from the records of the hospital which were accomplished in compliance with a duty specifically mandated by law.
Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital are admissible as evidence of the
facts stated therein.
The preparation of these hospital documents preceded that of the birth and baptismal certificates of Rosilyn. They establish
independent and material facts prepared by unbiased and disinterested persons under environmental circumstances apart from those
that may have attended the preparation of the birth and baptismal certificates. Hence, these hospital records, to reiterate, are sufficient
to support the testimony of Rosilyn as to her age.
Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of Rosilyn are false and that he merely
made them up, particularly her date of birth, was correctly disregarded by the trial court. It should be noted that the criminal charges
for child abuse filed by Rosilyn against him was the direct cause of his incarceration. This raises a possibility that Simplicio falsely
testified in the present case, to get even with Rosilyn.
Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito Intruzo because the defense failed to
prove that they were knowledgeable as to the circumstances of Rosilyns birth. Their testimonies consist mainly of observations
tending to show that Rosilyns appearance belie her claim that she was born on May 11, 1985.
In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July 2, and July 3, 1996 (Criminal Cases
Nos. 96-1994, 96-1995, 96-1996, and 96-1997, respectively), the trial court acquitted accused-appellant on the ground of reasonable
doubt as the defense was able to prove that accused-appellant was not in Manila but either in Dipolog or Dapitan City at the time the
lascivious acts were supposedly committed. The evidence of the defense established that accused-appellant flew to Dipolog on June
28, 1996, and stayed there until July 9, 1996.
In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness allegedly committed both in the early
mornings of June 19 and July 21, 1996, Rosilyn merely testified that she felt somebody touching her private part but failed to identify
the person who was performing those lecherous acts as she was too sleepy to wake up. Hence, accused-appellant was likewise
acquitted in these cases on the ground of reasonable doubt.
With respect, however, to the acts of lasciviousness committed in the morning of June 15 and 22, 1996, and in the evening of
June 14, 15, 18, and 21, 1996, as well as the rape perpetrated on June 18, 1996 and July 20, 1996, accused-appellant failed to account
for his whereabouts. A careful review of the pertinent transcript of stenographic notes reveals that accused-appellant did not give any
testimony as to where he was at the time these crimes were committed. Clearly, therefore, the trial court correctly disregarded his
unsubstantiated defense of denial, which cannot prevail over his positive identification by Rosilyn as the culprit.
As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996, accused-appellant claimed that it was
impossible for him to have committed the same because he flew to Dipolog on that day. The records disclose, however, that accused-
appellants flight was at 9:40 a.m. The possibility, therefore, of accused-appellants having performed the lascivious acts on the
victim before he went off to the airport is not at all precluded. For his failure to prove the physical impossibility of his presence at the
Ritz Towers in the morning of June 16, 1996, when the sexual abuse of Rosilyn was committed, his defense of alibi must fail.
Article III, Section 5 of Republic Act No. 7610, states:
Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who for money or profit, or any other consideration
or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to
be children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
xxx xxx xxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other
sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335,
paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the
case may be:Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; x x x . (Emphasis supplied.)
In People v. Optana,
[44]
the Court, citing the case of People v. Larin,
[45]
explained the elements of the offense of violation of
Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected other sexual abuse.
3. The child, whether male or female, is below 18 years of age.
A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or
lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or
group. Under RA 7610, children are persons below eighteen years of age or those unable to fully take care of themselves or protect
themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition.
Lascivious conduct is defined under Article XIII, Section 32 of the Implementing Rules and Regulation of R.A. 7610, as
follows:
[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of
the genitals or pubic area of a person.
In the case at bar, accused-appellants acts of kissing Rosilyn on the lips, fondling her breast, inserting his finger into her vagina
and placing his penis between her thighs, all constitute lascivious conduct intended to arouse or gratify his sexual desire. Hence, the
trial court correctly convicted accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, in Criminal Cases
Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, charging him with the above-described lascivious acts.
The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is below 12 years of age,
is reclusion temporal in its medium period.
The records show that on at least nine (9) separate occasions, the accused-appellant inserted his finger into the complainants
vagina. These insertions took place in 1996. A year later, Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It
does not apply to this case but it indicates state policy on rape. The Revised Penal Code is now amended to read as follows:
Article 266-A. Rape; When and How Committed. Rape is committed
1. By a man who have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above
be present.
2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by
inserting his penis into another persons mouth or anal orifice or any instrument or object, into the genital or anal orifice of another
person. (Emphasis supplied.)
Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now classifies the crime as an offense against
persons. Any public prosecutor, not necessarily the victim or her parents, can prosecute the case.
The penalties for the crime of rape in the light of various circumstances, which are now set forth and contained in Article 266-B
of the Revised Penal Code, have also been increased.
Considering that there are neither mitigating nor aggravating circumstance, the trial court correctly imposed on accused-appellant
the maximum penalty of fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, which is within the medium
period of reclusion temporal medium, pursuant to our ruling in Dulla v. Court of Appeals.
[46]
Notwithstanding that R.A. 7610 is a
special law, accused-appellant may enjoy a minimum term of the indeterminate sentence to be taken within the range of the penalty
next lower to that prescribed by the Code.
[47]
However, the trial court erroneously fixed the minimum term of the indeterminate
sentence at eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period. In the aforesaid case
of Dulla,
[48]
we held that the penalty next lower in degree to reclusion temporal medium is reclusion temporal minimum, the range of
which is from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, for violation of Article III,
Section 5 (b) of R.A. 7610, accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one (1) day of reclusion
temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum.
At the time of commission of the crimes complained of herein in 1996, statutory rape was penalized under Section 11 of R.A.
7659, which amended Article 335 of the Revised Penal Code, to wit:
When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua. xxx.
In statutory rape, mere sexual congress with a woman below twelve years of age consummates the crime of statutory rape
regardless of her consent to the act or lack of it. The law presumes that a woman of tender age does not possess discernment and is
incapable of giving intelligent consent to the sexual act. Thus, it was held that carnal knowledge of a child below twelve years old
even if she is engaged in prostitution is still considered statutory rape. The application of force and intimidation or the deprivation of
reason of the victim becomes irrelevant. The absence of struggle or outcry of the victim or even her passive submission to the sexual
act will not mitigate nor absolve the accused from liability.
[49]

In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had carnal knowledge of
Rosilyn. Moreover, the prosecution successfully proved that Rosilyn was only eleven years of age at the time she was sexually
abused. As such, the absence of proof of any struggle, or for that matter of consent or passive submission to the sexual advances of
accused-appellant, was of no moment. The fact that accused-appellant had sexual congress with eleven year-old Rosilyn is sufficient
to hold him liable for statutory rape, and sentenced to suffer the penalty of reclusion perpetua.
As to accused-appellant's civil liability, the amount of moral damages awarded by the trial court for each count of acts of
lasciviousness under Section 5 (b) of R.A. 7610 should be increased from P20,000.00 to P50,000.00.
[50]
On the other hand, the award
of the amount of P50,000.00 as moral damages for each count of statutory rape was correct.
In People v. Lor,
[51]
citing the cases of People v. Victor,
[52]
and People v. Gementiza,
[53]
we held that the indemnity authorized by
our criminal law as civil indemnity ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and
aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. Said civil indemnity is
mandatory upon finding of the fact of rape; it is distinct from and should not be denominated as moral damages which are based on
different jural foundations and assessed by the court in the exercise of sound judicial discretion.
[54]
Hence, accused-appellant should be
ordered to pay the offended party another P50,000.00 as civil indemnity for each count of rape and acts of lasciviousness.
WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986
finding accused-appellant Romeo Jalosjos guilty beyond reasonable doubt of two counts of statutory rape, and sentencing him to
suffer the penalty of reclusion perpetua for each count, is AFFIRMED. Likewise, the appealed Decision of the Regional Trial Court
of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, finding accused-appellant
guilty beyond reasonable doubt of acts of lasciviousness in six counts, is AFFIRMED with MODIFICATIONS. As modified,
accused-appellant is sentenced to suffer, for each count of acts of lasciviousness, the indeterminate penalty of twelve years (12) and
one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as
maximum. Further, accused-appellant is ordered to pay the victim, Ma. Rosilyn Delantar, the additional amount of P50,000.00 as civil
indemnity for each count of statutory rape and acts of lasciviousness. Finally, the award of moral damages for each count of acts of
lasciviousness is increased to P50,000.00.
SO ORDERED.














EN BANC
[G.R. No. 117682. August 18, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SILVINO (SILVERIO) SALARZA, JR. accused-appellant.
D E C I S I O N
BELLOSILLO, J .:
DEATH, the punishment in extremis, was imposed on Silvino Salarza Jr. for rape. We now review his conviction.
Zareen Smith, British, was 30, single, a television and stage actress. Sometime in 1994 she came to the Philippines and chose
Boracay in Aklan and Port Barton in Palawan for her vacation retreats. In Port Barton she met Enrico de Jesus, Filipino, 26, caretaker
of Elsa's Place, a resort owned by his parents. Soon enough a mutual attraction developed between them which ripened into an
intense love affair that they would have sex almost every night.
On 30 April 1994 Enrico brought Zareen to Mary's Cottage in Sitio Sabang, Bgy. Cabayugan, and introduced her to his
granduncle Rogelio Maraon and grandaunts Nenita Maraon and Maria Ausan who collectively owned and managed the
resort. Enrico and Zareen occupied Cottage No. 1. They spent the day at the beach where they drank and swam. They were later
joined in by Enrico's friend Silvino Salarza Jr., a tourist guide, a press relations officer and a fisherman.
In the evening Enrico and Zareen went to Sabang Centro together with Silvino, Julio Morales and a certain Tonton to attend a
dance. The dance however was canceled so they proceeded to Coco Grove Restaurant and drank a bottle of rhum. Zareen did not
drink as she preferred red wine which was not available. At eleven o' clock the group returned toMary's Cottage where Enrico
awakened his grandaunt Nenita and asked her for two (2) more bottles of rhum, after which, they went back to the beach and
continued drinking. This time Zareen opted for a bottle of beer. After a while Zareen said she felt tired and sleepy so she excused
herself and retired to the cottage. She was accompanied by Enrico who left her there to sleep. Back at the beach Enrico asked his
friends to go spearfishing. Although Silvino went with them he later returned to the beach because he could not stand the cold and
was feeling dizzy. From this point on the prosecution and the defense presented varying versions.
According to the prosecution, at two o'clock in the morning of 1 May 1994 Zareen woke up when she felt somebody take off her
underwear.
[1]
The room was dark as the resort management switched off the lights at ten o'clock. Zareen said she did not stop the man
from removing her panties as she thought it was Enrico, her boyfriend, and she was half-asleep. The man in turn removed his briefs
and placed himself on top of her, spread her legs, penetrated her and executed push-and-pull movements. Later, the man softly
whispered: "Zareen, it's not Ricky; it's Jun. I love you." According to Zareen, when she heard those words, she pushed him
aside. She cried and became hysterical. She went to the bathroom and washed herself, at the same time telling Silvino, "Why? Why
did you do that to me? You have ruined everything. You know that Ricky and I are trying to have a baby of our own, what will
happen now? I might get impregnated by what you did to me." Silvino however assured her that pregnancy was out of the question as
he did not ejaculate.
Maria Ausan heard Zareen cry so she awakened Nenita. Thinking that Enrico was forcing himself on Zareen, Nenita went near
Cottage No. 1 and pleaded, "Rico, please naman, kung ayaw huwag mong pilitin." But she did not enter the cottage. At this moment
she noticed a lighted petromax approaching. It was Enrico with Julio and Tonton coming from the beach. Enrico hurriedly walked to
the cottage. He saw Silvino coming out. At once he assumed that Silvino must have molested Zareen. Upon nearing Silvino, Enrico
punched him even before Zareen could narrate what happened to her. Rogelio Maraon and Julio Morales then reported the incident
at the police station and Patrolmen Eleazar and Rodillo immediately responded.
On the other hand, Silvino claims that it was Zareen who was flirting with him. His version is that while at Coco Grove
Restaurant, whenever Enrico was not looking, Zareen would whisper to him and place her arm on his shoulder. She would talk to him
about her stay in Boracay with her sister Lucila and the men she met there. In turn, he spoke to her about his former
girlfriends. When Enrico invited him to go spearfishing he went with the group but after a while he returned to the beach saying he
was feeling cold and dizzy having imbibed one too many. He even stumbled and fell on the sand. As a result, he got sand all over his
body so he proceeded to the public restroom for a shower. On the way to get his t-shirt and cigarettes he saw Zareen lying on the
hammock. She asked him for a cigarette and insisted that he take his shower inside her cottage instead of the public restroom which
was about a hundred meters away. He hesitated for a while but finally acceded.
After emerging from his shower he was surprised to see Zareen on the bed. She pulled him towards her and asked him to make
love to her. She embraced him tightly and kissed him lustfully. He was surprised with the turn of events and felt uncomfortable
because of Enrico whom he did not wish to offend, much less betray, so he pushed her away. In her exasperation she shouted, Sh---t
you, you are stupid!" Then she rushed to the bathroom and washed herself.
He heard the voice of Nenita Maraon coming from outside Cottage No. 1 calling for Enrico and inquiring what was happening,
apparently thinking it was her grandnephew with Zareen having a lover's quarrel. So Silvino answered, "This is not Ricky, Tiyay, this
is me, Jun." He informed her that he had just taken his shower inside. While Silvino and Nenita were talking, Zareen was simply
keeping quiet. As he went out of the cottage he met Enrico on the way. Nenita shouted, "Jun, Ricky is coming; you're dead!" True
enough Enrico boxed Silvino. Tonton and Julio ganged up on him, beat him, poured pepper on his body and pulled him towards the
river. Fearful that they would eventually kill him, Silvino crawled towards the coconut grove and upon reaching the road leading to
Sabang Centro he walked to the police station to lodge his complaint. On his way, he met Policemen Eleazar and Rodillo. Rodillo
brought him to the police station while Eleazar continued his way towards Mary's Cottage to conduct an investigation.
But the trial court was not persuaded by Silvino's story. It pronounced him guilty of rape and imposed upon him the supreme
penalty of death. The court threw out his declaration that Zareen had been flirting with him earlier and was the one who even
proposed that they engage in sex that night. It found incredible that Zareen would fall for Silvino and substitute him for Enrico,
rationalizing that Zareen was 30 years old, Enrico 26, and Silvino already 35, and that Enrico was 5'8" tall, handsome, with a well-
shaped face and nose, while Silvino was not generously endowed and standing only at 5'2". Besides, it argued that a woman would
not charge a person with the heinous crime of rape if it were not true, for she would not allow the examination of her private parts and
subject herself to a public trial which are both embarrassing if her accusation was merely fabricated. It quoted People v.
Selfaison,
[2]
where it was held that it was difficult to believe that the complainants, who were young and unmarried, would tell a story
of defloration, allow the examination of their private parts and thereafter permit themselves to be the subject of a public trial if they
were not motivated by an honest desire to have the culprits apprehended and punished. Obviously the court did not find it pertinent
that Zareen was already 30, a stage and television actress, by her admission had several boyfriends in the past with whom she had
sexual relations, and was possessed with a vigorous appetite for sex as she was indulging in intercourse with Enrico almost every night
without benefit of marriage.
Quite interestingly, the Information alleges that Silvino had carnal communication with Zareen while she was asleep, with the
use of force, against her will and without her consent.
We do not find the facts substantiating the Information. We must acquit.
Under Art. 335 of the Revised Penal Code, as amended by Sec. 11, RA 7659, rape is committed by having carnal knowledge of a
woman under any of the following circumstances: (a) by using force or intimidation; (b) when the woman is deprived of reason or
otherwise unconscious; and, (c) when the woman is under twelve (12) years of age or is demented. The facts of this case do not by
any means show the existence of any of these circumstances; thus we cannot see how the trial court could have convicted and, worse,
sentenced the accused to die.
First, the complaining witness was not below twelve (12) years of age at the time of the alleged commission of the offense. She
was already thirty (30) years old. Neither was she demented.
Second, the Information avers use of force but the evidence negates any use of force, nay, not even intimidation, in the
commission of the offense charged. In fact, as discussed hereunder, the sexual advances of the accused were done with the consent of
the complaining witness although she claimed she thought that the man who laid with her was her boyfriend Enrico. Here it may be
argued that consent to the sexual act was given by Zareen only because of her erroneous belief that the man on top of her was Enrico,
thus implying that had she known it was someone else she would have resisted.
The explanation is not persuasive. The evidence shows that this mistake was purely a subjective configuration of Zareen's mind
- an assumption entirely contrived by her. Our impression is that Silvino had nothing to do with the formulation of this belief; he did
nothing to mislead or deceive Zareen into thinking that he was Enrico. In fact, Silvino precisely, and confidently, told her, "Zareen,
it's not Ricky; it's Jun. I love you." It is thus obvious that whatever mistake there was could only be attributable to Zareen - and her
inexcusable imprudence - and to nobody else. Clearly, the fault was hers. She had the opportunity to ascertain the identity of the man
but she preferred to remain passive and allow things to happen as they did. Silvino never used force on her and was even most
possibly encouraged by the fact that when he pulled down her panties she never objected; when her legs were being parted she never
objected; and, when he finally mounted her she never objected. Where then was force?
Third, Zareen was not deprived of reason or otherwise unconscious when the accused had intercourse with her. Her lame excuse
was that she was half-asleep. However she admitted that in the early morning of 1 May 1994 she woke up to find someone removing
her underwear. Thuswise it cannot be said that she was deprived of reason or unconscious. She knew, hence was conscious, when her
panties were being pulled down; she knew, hence was conscious, when her legs were being parted to prepare for the sexual act; she
knew, hence was conscious, when the man was pulling down his briefs to prepare himself likewise for the copulation; she knew, hence
was conscious, when the man mounted her and lusted after her virtue. Her justification was that she never objected to the sexual act
from the start because she thought that the man was her boyfriend with whom she was having sex almost every night for the past three
(3) weeks as they were getting married and wanted already to have a baby. In other words, her urge could not wait for the more
appropriate time.
The prosecution would have the accused convicted of rape under its hypothesis that the complaining witness was half-
asleep, ergo unconscious, when the sexual assault took place. Obviously, it had in mind the doctrine enunciated in 1929 in People v.
Corcino,
[3]
and later in 1935 in People v. Caballero.
[4]
These cases however do not apply because the offended parties there were
unquestionably fast asleep - and not just half-asleep as in the instant case - when the act was perpetrated. Consequently, there was no
opportunity for them to either object or give their consent as they were in deep slumber at the time of the coition. It was only some
time after they woke up that they realized that the men having sex with them were not their husbands they thought them to be. In
convicting the accused, this Court held, as the trial courts did, that the crime of rape had already been consummated even before the
offended parties woke up from their sleep. In Caballero it was found that -
x x x when Consorcia, the offended party, awoke the appellant had already introduced his organ into her genitals and in fact he was
already having sexual intercourse with her. We mention this fact on account of a certain doubt arising from the offended party's
testimony during the direct examination relative to this detail, but in the attempt of the attorney for the defense to clarify this point
during his cross-examination, the offended party categorically affirmed that she had been unaware when the appellant introduced his
organ into hers x x x x when the offended party awoke, the crime of rape committed by the appellant was already consummated,
having had carnal knowledge with the offended party while she was unconscious for being asleep. The offended party's consent to the
act was subsequent thereto and it was given on the belief that the man lying with her was her own husband (underscoring supplied).
[5]

The import of this pronouncement is that it was no longer relevant, much less significant, that after waking up the offended party
continued to have sex with the man she thought was her husband. Her "consent" to the act was subsequent to the rape, or after the
crime was already committed; the fact that the consent - even if only implied - was given on the belief that the man was her spouse,
was inconsequential. In the case of Zareen, her "consent" was given prior to the carnal act, i.e., the act was done because of her
passivity, if not consent.
The record abounds with indicia to discredit the theory of the prosecution that Zareen was dead drunk when the alleged rape took
place. Having consumed only a small quantity of rhum during the day, according to her, and a bottle of beer in the evening on a
normal pace, she could not have been so drunk as to be deprived of reason or otherwise rendered unconscious. When she returned to
her cottage she immediately fell asleep as she was tired and remained so for some time. When she was supposedly molested at around
two-thirty the following morning she must have already been, as we believe she was, in full possession of her mental and physical
faculties. Whatever intoxicating effect the rhum and beer might have had on her would have already worn off.
Zareen herself claimed that she woke up when she felt someone removing her panties. This means she was fully conscious when
somebody approached her bed, removed her panties, spread her legs although not far apart but just enough to get her underwear off,
and then proceeded to perform coital movements with her. Her testimony that she knew that the "intruder" removed his own briefs;
that his penis was already erect; that no effort at foreplay was made before penetrating her in his first attempt; that the man did not kiss
her nor touch her breasts; that she did not even guide his penis into the trough of her femininity; and, that he pushed-and-pulled on
top of her for approximately less than a minute, all validate our conviction that she was fully conscious - not asleep nor even half-
asleep - of what was being done to her from the beginning. She was also aware that there was no light as the gas lamp inside the
cottage was not lighted and the electricity was already shut off.
Most significantly, Zareen was acutely aware of the manner by which Silvino identified himself - "Zareen, it's not Ricky; it's
Jun" - because she testified that " x x x it was not preceeded by a question. It was as if Jun wanted to wake me up fully."
[6]
To repeat,
all these details vividly recalled and recounted by her ineluctably indicate that she was awake all the time and capable of
comprehending the nature of the sexual act and of exercising her own free will as to yield to or resist a Lothario's libido.
Zareen had known Enrico for three (3) weeks and since then had been making love with him almost every night. It strains
credulity and understanding that she could have mistaken Silvino for Enrico. Their constant lovemaking and togetherness would have
already made her familiar with the physical attributes of Enrico and accustomed to his fornicating peculiarities. Zareen even asserted
that Enrico was not inclined to sexual intercourse when drunk and would usually indulge in foreplay before actual copulation. These
oddities are cues which reasonably engender suspicion that the man she was having carnal communication with was not her lover but
someone else. She had the moral responsibility not only to herself but to society itself to ascertain first the identity of her "ravisher"
before yielding completely to him. It can hardly be said that she was not imprudent, reckless and irresponsible in giving in to her own
sexual impulses. Moreover, being almost a stranger in the place, Zareen should have been leery of her surroundings especially at
night. In this regard, she should not have left her cottage door unlocked as much as she did leave pregnable and unshielded the portals
of her womanhood.
In People v. Bacalzo,
[7]
the accused boxed his victim into unconsciousness. When the victim regained her consciousness she felt
the flaccid penis of her ravisher still inside her vagina and that thereafter he removed his sexual organ. He then warned her not to
divulge what had happened or else she and her family would be killed. Force, which was used to knock the victim into
unconsciousness, was employed before the act was done to ensure its consummation. In People v. Corcino
[8]
the complaining witness
was totally asleep and when she woke up the organ of the accused was already inside her genitalia. In People v. Caballero
[9]
the victim
was fully asleep when the accused had carnal communication with her, such that when she woke up the crime of rape was already
consummated. The same was true in People v. Inot.
[10]
In People v. Dayo,
[11]
the rapist's organ was already in the vagina of the
offended party when she woke up, so she pushed him away and screamed. But the accused pulled out his revolver and threatened to
kill her if she made any further outcry. She fainted, and the accused continued having sex with her. In fine, in all these cases rape was
already consummated before the offended parties could even exercise their volition to grant or deny access to erotic consortium.
Under the circumstances we cannot help entertaining serious doubts on the culpability of the accused. Rape is a charge easy to
make, hard to prove and harder to defend by the party accused, though innocent. Experience has shown that unfounded charges of
rape have frequently been proferred by women actuated by some sinister, ulterior or undisclosed motive. Convictions for such crime
should not be sustained without clear and convincing proof of guilt. On more than one occasion it has been pointed out that in crimes
against chastity the testimony of the injured woman should not be received with precipitate credulity. When the conviction depends
on any vital point upon her uncorroborated testimony, it should not be accepted unless her sincerity and candor are free from
suspicion. A little insight into human nature is of utmost value in judging matters of this kind.
[12]

But even from the narration of Zareen, the elements of the crime of rape are, regretfully, miserably wanting. There was no force
nor intimidation; Zareen was not deprived of reason nor otherwise unconscious; and, she was not below twelve nor demented.
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE and accused-appellant SILVINO SALARZA JR.
is ACQUITTED of the crime charged; consequently, he is ordered immediately RELEASED from confinement unless held for some
other lawful cause. Costs de oficio.
SO ORDERED.
Narvasa, C.J., Puno, Kapunan, and Hermosisima Jr., JJ., concur.
Padilla, Romero, Melo, and Panganiban, JJ., joined the dissenting opinions of Justices Regalado and Davide, Jr.
Regalado, and Davide, Jr., JJ., See Dissenting Opinion.
Vitug, J., voted for acquittal not for anything attributable to complainant but simply because of a failure of proof beyond
reasonable doubt.
Mendoza, J., joined in the majority opinion of Justice Josue N. Bellosillo and in the concurring opinion of Justice Ricardo J.
Francisco.
Francisco, J., See concurring opinion.
Torres, Jr., on leave.



SECOND DIVISION
[G.R. No. 123115. August 25, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NIXON MALAPO, accused-appellant.
D E C I S I O N
MENDOZA, J .:
This is an appeal from the decision rendered on June 23, 1995 by the Regional Trial Court of Iriga City, Branch 36, convicting
accused-appellant Nixon Malapo of rape and sentencing him to suffer the penalty of reclusion perpetua and to pay the victim Amalia
Trinidad the sum of P50,000.00 in moral damages.
The information
[1]
against accused-appellant alleged:
The undersigned Assistant City Prosecutor of Iriga City, upon sworn complaint originally filed by the offended party hereto attached,
hereby accuses one NIXON MALAPO of Salvacion, Iriga City of the crime of RAPE, committed as follows:
That sometime on the month of September, 1991 at Salvacion, Iriga City, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, entered the house of one Nenita I. No, aunt of Complainant AMALIA TRINIDAD who was then and there
alone, and by means of force and intimidation, did, then and there willfully, unlawfully and feloniously succeeded in having carnal
knowledge of said Amalia Trinidad against her will and consent and as a result she has become pregnant and delivered a baby at the
Iriga City Puericulture Center.
CONTRARY TO LAW.
Three witnesses testified against him: complainant Amalia Trinidad; Amalias guardian, Nenita No; and a guidance counselor
and first cousin of Nenita No, Bernardita Marquinez.
Nenita No identified accused-appellant as her long-time neighbor. She testified that Amalia Trinidad had been under her care
and custody since 1978 when Amalia was just seven years old. She said Amalia was able to finish the sixth grade of her primary
education.
[2]
It appears that Amalia is a retardate who was a former ward of the Elsie Gaches Village institution. Mrs. Nenita No and
her husband were given custody of Amalia on November 19, 1978 on the basis of the following psychological evaluation:
Amalia is seemingly an example of a pseudoretardate. She might have been deprived of intellectual stimulations which explains her
lag in cognitive development. She is still categorized within the normal classification of children. She must continue attending the
centers special school to catch-up for whatever educational deficiency she may have.
[3]

Mrs. No told the court that, sometime during the first week of September 1991, Amalia was left alone in their house at Salvacion,
Iriga City, as she and her husband taught in school, while their four natural children attended classes.
[4]

At around 10:30 in the morning of that day, when Mrs. No came home from her class, she found accused-appellant Malapo in
the yard of her house. Accused-appellant was in haste. She stopped him and asked why he was in a hurry, to which accused-appellant
replied he had gathered firewood. This puzzled Mrs. No as they had no firewood at the back of their house. Mrs. No said she found
Amalia inside their house crying. Mrs. No tried to find out why Amalia was crying, but she would not say anything. On May 18,
1992, Amalia finally told Mrs. Nos cousin, Bernardita Marquinez, that she had been raped by accused-appellant.
[5]

Taking the witness stand, Amalia Trinidad recounted how at around 9:30 in the morning in September 1991, while she was alone
at home, accused-appellant Nixon Malapo entered their house. Amalia was then cooking. Upon seeing accused-appellant, she tried to
run away, but Malapo caught her hand and brought her to the dining room. The accused-appellant then caused her to fall on the floor,
covered her mouth, and forcibly removed her short pants and undergarment. Next, he removed his pants, lay on top of her, and forced
his sexual organ into her private part, causing lacerations and bleeding in her vagina. Amalia said she tried to punch the accused-
appellant and to remove his hand from her mouth, but he was too strong for her. After he had succeeded in having sexual intercourse
with her, accused-appellant left after warning her that he would kill her if she reported the incident to Mrs. No or to anyone else.
[6]

For this reason, Amalia said, when Mrs. No asked why she was crying, she did not tell her what had happened to her. She
confirmed that it was only when she was about to give birth to her baby on May 18, 1992 that she told Bernardita Marquinez that she
had been raped by accused-appellant. Amalia pointed to accused-appellant in court as the person who had raped her. She testified
that, prior to the date of the alleged crime, she did not harbor any ill will or grudge against him,
[7]
but, as a result of her abuse, she said
she suffered from wounded feelings which made her cry very often.
[8]

The last witness for the prosecution was Bernardita Marquinez, a resident of Iriga City and guidance counselor of the University
of Saint Anthony. She was presented to corroborate the testimonies of Mrs. No and the victim regarding the events on May 18, 1992
and afterward.
[9]

Accused-appellant Nixon Malapo testified on his behalf, basically claiming alibi as his defense. He presented as witnesses
Felipe Edroso and Santos Ramos to corroborate his claim that he and Ramos worked together as duck watchers hired by Edroso in San
Jose, Buhi, Camarines Sur, about fifteen kilometers away from Salvacion, Iriga City, from July 1991 until January 1992.
[10]

Accused-appellant alleged that Amalia three times failed to identify him: When Amalia was brought before the barangay
captains office to confront accused-appellant, Amalia failed to identify him despite Mrs. Nos effort to make her point to
him. Amalia again failed to identify him as her alleged assailant when they were taken to the police headquarters and, still later,
before Prosecutor Jose Tagum of the Iriga City Prosecutors office.
[11]

Accused-appellant submitted as documentary evidence a medical certificate
[12]
showing that the alleged victim gave birth to a
full-term male baby on May 18, 1992. He argues that if Amalia had been raped in September of 1991, she could not have been
delivered of her baby on May 18, 1992.
On June 23, 1995, the trial court rendered its decision finding accused-appellant guilty. The dispositive portion of its decision
reads:
WHEREFORE, premises considered, the Court finds the accused, NIXON MALAPO, guilty beyond reasonable doubt of the crime of
rape defined and penalized under Article 335 of the Revised Penal Code before its amendment by Rep. Act No. 7659, as charged in
the information, and hereby sentences the said accused to suffer the penalty of reclusion perpetua; that said accused is further ordered
to indemnify the private offended party, AMALIA TRINIDAD, of the sum of P50,000.00 as moral damages, and to pay the costs.
SO ORDERED.
Hence, this appeal. Accused-appellants sole contention is this:
As, according to Exhibit 1-A, the baby was a full term baby, it is unlikely, nay unbelievable, that same baby was the fruit of the
alleged rape perpetrated sometime in September 1991, because from September 15, 1991 (assuming that the rape took place on
September 15, 1991, there being no evidence as to when in September 1991 the rape took place) to May 18, 1992 when the baby was
born, is a period of only eight (8) months and three (3) days, contrary to the Certificate (Exh. 1 and 1-A) that the baby was full term
when delivered.
Consequently, that the appellant had raped the complaining witness in September 1991 and, as a result, she became pregnant and gave
birth to her baby on May 18, 1992 is simply improbable; hence, obviously a lie.
It could therefore be that the baby of the complaining witness was fathered by another man; hence, there is serious doubt that the
appellant had raped same complaining witness in September 1991 causing her to become pregnant and to deliver a baby on May 18,
1992.
It cannot be argued that the victim must have been already pregnant when she was allegedly raped because there is no evidence to this
effect. The information and the prosecution evidence are to the effect that the baby was the fruit of the alleged rape.
[13]

The contention has no merit.
A textbook on pediatrics states that Infants delivered before the thirty-seventh week of gestation with a birth weight of less than
2,500 grams (American) or 2,275 grams (Filipino) are considered premature.
[14]
An infant can therefore be considered a full-term
baby if it weighs more than 2,275 grams even if it is born before the thirty-seventh week which is less than 9.3 months. Since
according to the medical certificate (Exh. 1) Amalias baby weighed 2.4 kilograms or 2,400 grams, it was a full-term baby even if it
was born before the normal gestation period.
Article 166 of the Family Code provides:
Legitimacy of a child may be impugned only on the following grounds:
(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300
days which immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse with his wife;
(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented sexual intercourse;
(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the
instance provided in the second paragraph of Article 164; . . .
In the case at bar, it can be inferred that conception occurred at or about the time that accused-appellant is alleged to have
committed the crime, i.e., within 120 days from the commission of the offense in September 1991.
[15]
Pursuant to Art. 166 of the
Family Code, accused-appellant can overcome the presumption that Amalias child was begotten as a result of her having been raped
in September 1991 only if he can show either that it was physically impossible for him to have sexual intercourse because of
impotence or serious illness which absolutely prevents him from having sexual intercourse or that Amalia had sexual intercourse with
another man. However, accused-appellant has not shown either of these.
The testimony of Amalia, as corroborated by Nenita No and Bernardita Marquinez, leaves no doubt in our mind that accused-
appellant is the father of the child. Therefore, in accordance with Art. 345 of the Revised Penal Code, accused-appellant should be
ordered to pay support.
In any event, the impregnation of a woman is not an element of rape. Proof that the child was fathered by another man does not
show that accused-appellant is not guilty, considering the positive testimony of Amalia that accused-appellant had abused her. As
held in People v. Alib:
[16]

... Under Article 335 of the Revised Penal Code, rape is committed by having carnal knowledge of a woman under any of the
following circumstances:
(1) By using force or intimidation;
(2) When the woman is deprived of reason or otherwise unconscious; and
(3) When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.
It is therefore quite clear that the pregnancy of the victim is not required. For the conviction of an accused, it is sufficient that the
prosecution establish beyond reasonable doubt that he had carnal knowledge of the offended party and that he had committed such act
under any of the circumstances enumerated above. Carnal knowledge is defined as the act of a man having sexual bodily connections
with a woman;
Indeed, the findings of the trial court deserve the great respect usually accorded the findings of triers of facts who had the
opportunity of observing the demeanor of the witnesses while testifying. Amalias inability to recall the exact date she was raped
cannot affect her credibility, especially considering her condition of feeblemindedness. In People v. Quinones,
[17]
which involved the
rape of a 25-year old retardate who also could not recount when she was raped by the accused in that case, this Court held:
[T]he date of the occurrence of the rape is not an essential element in the commission of the rape. That is why the Amended
Information reads: [t]hat on or about the 5th of June 1989 . . . Suffice it to say that it was shown that rape under Art. 335, par.
(2), of the Revised Penal Code was committed, and that the evidence presented established beyond a ray of doubt that accused-
appellant was responsible therefor.
[18]

It is noteworthy that in this appeal accused-appellant does not reiterate his original defense that in September 1991 he was not in
Salvacion, Iriga because he was then tending a duck farm in San Jose, Buhi, Camarines, Sur, fifteen kilometers away. For alibi is
inherently a weak defense which cannot prevail over the positive identification of the accused.
[19]
Furthermore, his claim that he was
elsewhere at the time of the crime is belied by his own witness, Santos Ramos, who admitted that he and accused-appellant took turns
going home to their families in Salvacion. By testifying that he did not go home in September 1991, Santos, by implication, admitted
that it was accused-appellants turn to go home in that month. Santos Ramos testified:
Q But the fact is, you and Nixon Malapo did never leave the ducks you were tending to from the time that they were brought at
Salay in July up to the time you left in January, 1992?
A Sometimes, one of us also leave.
Q And when one of you leave, where do you go?
A We go home to our house, sir.
Q And will you tell the Court how many times you went home between July, 1991 to January, 1992?
A About five (5) times, sir?
Q When were these five (5) times?
A I went home in October and December.
Q You said five (5) times - you said you went home five (5) times, in October and December only?
A Yes, sir.
Q You did not go home in August?
A No, sir.
Q You did not also go home in September?
A No, sir.
[20]

Answering questions from the trial judge, he said:
Q During that period between July, 1991 to January, 1992, do you remember if Nixon Malapo also visited?
A Yes, Your Honor.
Q Do you remember how many times did he visit his family during that period?
A Yes, Your Honor, the same number of times that I went home.
Q He went home on those days when you were on duty?
A Yes, Your Honor.
[21]

In addition to the foregoing, Felipe Edroso, the other defense witness, testified:
PROS. CANUTO:
Q In September 1991 he [accused-appellant] also used to leave San Jose, Salay, and visited his family in Salvacion, stayed there
for about a day and then returned to his work in San Jose, Salay?
A Yes, Sir.
Q And in October 1991, he also would leave San Jose Salay, to visit his family in Salvacion and stayed with his family for about
a day and then returned [to] his work in San Jose, Salay?
A Yes, Sir.
Q Now, in 1991 do you know whether Nixon Malapo was married or not?
A Yes, Sir.
Q Did they have children at that time?
A Yes, Sir.
Q And you will agree with me that this could be the reason of [sic] the fact that he already had his wife, had his family that he
did not continuously stay in Buhi, for three (3) months, but that he would leave San Jose, Salay and visited his family once in
a while in Salvacion during that time/period?
A Very seldom, Sir.
[22]

In conclusion, we hold that the trial court correctly found accused-appellant guilty of rape. However, it failed to order accused-
appellant to pay indemnity. After reciting that, in all criminal cases, unless the offended party reserves the right to institute a separate
civil action, she has a right to recover civil indemnity, the trial court awarded the complainant in this case moral damages only. As we
have explained in a number of cases,
[23]
the indemnity provided in criminal law as civil liability is the equivalent of actual or
compensatory damages in civil law. It is, therefore, separate and distinct from any award of moral damages. As currently fixed, the
indemnity for rape is P50,000.00. However, as we have recently held inPeople v. Victor,
[24]
if rape is committed or is qualified by any
of the circumstances which under the law (R.A. No. 4111 and R.A. No. 7659) would justify the imposition of the death penalty, the
indemnity shall be in an amount not less than P75,000.00.
Since in this case the rape is not qualified, the indemnity should be P50,000.00. This is in addition to the amount of P50,000.00
awarded by the trial court as moral damages. It should be added that the latter amount is automatically granted in rape cases without
need of any proof. It is assumed that the offended party has suffered moral injuries entitling her to the award of such damages. As we
explained in the recent case of People v. Prades:
[25]

The conventional requirement of allegata et probata in civil procedure and for essentially civil cases should be dispensed with in
criminal prosecutions for rape with the civil aspect included therein, since no appropriate pleadings are filed wherein such allegations
can be made.
Corollarily, the fact that complainant has suffered the trauma of mental, physical and psychological sufferings which constitute the
bases for moral damages are too obvious to still require the recital thereof at the trial by the victim, since the Court itself even assumes
and acknowledges such agony on her part as a gauge of her credibility. What exists by necessary implication as being ineludibly
present in the case need not go through the superfluity of still being proved through a testimonial charade.
Mention was earlier made that since Amalias baby was begotten as a result of the rape, accused-appellant is liable for
support. Under Art. 345 of the Revised Penal Code, in addition to the indemnification of the offended party, persons guilty of rape
must in every case support the offspring. Although said article also provides for the acknowledgment of the child unless the offender
is married, this Court has already ruled that:
Article 176 of the Family Code confers parental authority over illegitimate children on the mother, and likewise provides for their
entitlement to support in conformity with the Family Code. As such, there is no further need for the prohibition against
acknowledgment of the offspring by an offender who is married which would vest parental authority in him. Therefore, under Article
345 of the Revised Penal Code, the offender in a rape case who is married can only be sentenced to indemnify the victim and support
the offspring, if there be any. In the instant case then, the accused should also be ordered to support his illegitimate offspring, Tracy
Jhuen Nieto, with Marie Elena Nieto, but in light of Article 201 of the Family Code, the amount and terms thereof are to be
determined by the trial court only after due notice and hearing.
[26]

Therefore, given the fact that Amalias child is conclusively the illegitimate child of the accused-appellant,
[27]
the
acknowledgment in this instance should be understood to refer only to the affiliation of the child.
[28]

WHEREFORE, the decision of the Regional Trial Court is AFFIRMED, with the MODIFICATION that the accused-appellant
is ordered to pay complainant Amalia Trinidad the sum of P50,000.00 as indemnity, in addition to the amount of P50,000.00 granted
by the trial court as moral damages, as well as to acknowledge the filiation of complainants offspring and to give support, the amount
of which shall be determined by the trial court. Accordingly, the records of this case are hereby REMANDED to the Regional Trial
Court for the fixing of the amount of support.
SO ORDERED.
Melo (Acting Chairman), Puno and Martinez, JJ., concur.
Regalado, J. (Chairman), on official leave.

THIRD DIVISION
[G.R. No. 112986. May 7, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANSELMO O. BUTRON alias ANSING,accused-appellant.
D E C I S I O N
PANGANIBAN, J .:
The appellant admits to having sexually molested the ten-year-old victim in this case, but claims that he merely used his fingers
and is thus guilty only of acts of lasciviousness and not of rape. The Court is not convinced, for there is proof beyond reasonable
doubt that there was penetration of the victims private organ.
This is an appeal from the Decision
[1]
dated July 6, 1993 of the Regional Trial Court, 10th Judicial Region, Branch xxx,
[2]
xxx
City, in Criminal Case No. 5283, finding appellant guilty of rape.
On August 19, 1992, AAA, assisted by her mother BBB, filed a Complaint
[3]
before the xxx Municipal Circuit Trial Court of
xxx, Province of xxx, charging Accused-appellantAnselmo O. Butron of rape. After preliminary investigation, Provincial Prosecutor
xxx filed in the Regional Trial Court the following Information on September 25, 1992 against the accused-appellant:
That on or about the 18th day of August, 1992, at 10:00 oclock in the morning, more or less, in the family
residence, Barangay xxx, Poblacion, Municipality of xxx, Province of xxx, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with criminal intent, did then and there willfully, unlawfully and feloniously
have carnal knowledge of one AAA, a ten-year old minor, against her will and in her own house.
CONTRARY TO LAW.
[4]

Arraigned on November 9, 1992, the accused appellant, assisted by Counsel Jesus G. Chavez, pleaded not guilty to the charge.
[5]

The Facts
Version of the Prosecution
The prosecution presented five witnesses: (1) AAA, who gave a personal account of the rape; (2) Dr. xxx, who testified on the
results of the physical examination she had conducted on AAA; (3) Police Officer xxx; (4) BBB, the mother of AAA;
and (5) Edgar Jimenez, a friend of the appellant.
In the appellees brief, the Solicitor General provided the prosecutions summary of the facts:
In the morning of August 18, 1992, 8-year old
[6]
AAA was left in their house, which was situated under the xxx bridge, to
take care of her younger brother. (p. 3, TSN, January 6, 1993) Earlier, her parents trooped to the fields to harvest
peanuts. (p. 15, TSN, January 6, 1993)
At about 10:00 a.m. that same morning, while AAA was rocking her younger brother, appellant suddenly went up their
house. (p. 3, TSN, January 6, 1993) Hebrought with him a bottle of rugby and a pair of underwater fishing goggles. He
then sniffed from the bottle, took off his goggles, and dropped it in a pail. (p. 4, Ibid)
AAA thereafter testified how she was mercilessly violated when appellant twice inserted his finger into her organ. And still
unsatisfied, appellant went on to pull her legs, pin her down, went on top of her, and twice inserted his male organ into her
vagina. (pp. 3-4, Ibid)
Appellant, unperturbed, casually went down the stairs only to go up again but this time, with a knife in his hand. He
threatened appellant (sic) that he will stab her if she did anything as speak to anyone of what befell her. (p. 4, Ibid)
Later that day, the PNP Station received a report that a young girl was raped under the xxx bridge, pointing to appellant as
the prime suspect. (p. 5, TSN, January 4, 1993) Thus, while on his way home, appellant was arrested and the following
objects were recovered from him: a bottle of rugby (Exh. A-3); rubber sling (Exh. A-2); knife (Exh. A-1); and goggles
for underwater fishing (Exh. A). (p. 3-4, Ibid) When brought to the police station, AAA -- who was then wearing a
bloodstained dress -- positively identified appellant as her vicious attacker. (p. 6, Ibid)
On the next day, AAA underwent medical examination. XXX, resident physician of the xxx District Hospital, found that
(a) there was actual bleeding on the vaginal canal; (b) the hymen was torn stillate-shaped; and (c) there was spermatozoa in
the vagina. (pp. 13-15, TSN, January 4, 1993)
AAA, with the assistance of her mother, filed a complaint with the Municipal Trial Court of xxx. (pp. 6-7, TSN, January 6,
1993) This became the basis of the information for rape brought before the lower court."
[7]

Version of the Defense
The defense presented only one witness in the person of Accused-appellant Anselmo Butron. In a nutshell, he raises the defense
of denial. As succinctly presented in his brief:
The evidence for the defense shows that the accused Anselmo Butron went indeed to the house of the complainant-
victim. However, he denied raping the complainant victim but admitted fingering her. (TSN, January 21, 1993, pp. 2-3)
[8]

The Error Assigned
Appellant posits this lone error against the trial courts Decision:
The trial court gravely erred in finding the accused-appellant guilty of the crime of rape instead of acts of lasciviousness
[9]

The Courts Ruling
The appeal is not meritorious.
Credibility of Witnesses
The Court reiterates the following standard in reviewing an appeal from a conviction for rape:
In reviewing the evidence of this case, this Court was guided by the three (3) settled principles in reviewing rape cases,
namely, (1) an accusation for rape can be made with facility, it is difficult to prove but more difficult for the person accused,
though innocent, to disprove it; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually
involved, the testimony of the complainant must be scrutinized with extreme caution; (3) the evidence for the prosecution
must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the
defense."
[10]

In the present case, Appellant Anselmo Butron admits to having sexually molested the ten-year-old complainant AAA at the time
and place stated in the complaint. Appellant however contends that what he did was merely insert his finger into her vagina and not
rape her as found by the trial court.
[11]
Appellant Butron argues that his position was affirmed and confirmed by the complainant
herself, and he cites the following:
First, before the Honorable Judge xxx during the preliminary investigation on August 25, 1992:
Q. What did happen (sic) next?
A. He held me covering my mouth and I resisted.
Q. Why?
A. Because he fingered my vagina.
Q. Did you shout?
A. No, Maam, because he covered my mouth and even threat (sic) me with the knife.
Q. Did he put his penis inside your vagina? (Witness refused to remember the incident)
A. He let me lie down on the floor, its painful.
Q. What did the person do next?
A. He went out of the house. (Exh. 1A; underscoring supplied)
Second, during the trial on cross-examination:
Q. But you will remember that you were asked by that woman what Anselmo Butron did to you? Did that woman not
ask you that question?
A. She asked me.
Q. And your answer to that woman was that Ansing inserted his finger into your vagina?
A. Yes, sir.
Q. Because that is (sic) really what happened? And you were telling the truth then?
A. Yes, sir. (TSN, January 6, 1993, p. 9)
Third, also during the trial when the Court propounded clarificatory questions.
COURT:
Q. You told the court that Anselmo Butron inserted his penis into your vagina?
A. No.
Q. You mean Anselmo Butron never inserted his finger into your vagina?
A. He inserted. (TSN, January 6, 1993, pp. 9-10)
[12]

Moreover, appellant contends that the nature of the victims injury does not support the claim that he had inserted his penis into
the private part of the victim. Appellant submitted as evidence the medical certificate dated January 15, 1993 (Exh. 2) issued by Dr.
Benjamin C. Kho showing that his non-erect organ measured seven centimeters in length and nine centimeters in diameter.
[13]
He
thus argues, rather haughtily and egotistically, that (o)ne does not need to have a medical training but only have (sic) to imagine how
large the same penis would be if erect and inserted into the young victims vagina. It would create not only a stillate-shaped injury but
could have completely lacerated the victims hymen.
[14]

The Court is not persuaded by appellants boasts. In assessing the credibility of witnesses, it is well-settled that:
...when the question is raised as to whether to believe the version of the prosecution or that of the defense, the trial courts
choice is generally viewed as correct and entitled to the highest respect because it is more competent to conclude so, having
had the opportunity to observe the witnesses demeanor and deportment on the witness stand, and the manner in which they
gave their testimonies, and therefore could better discern if such witnesses were telling the truth; the trial court is thus in the
best position to weigh conflicting testimonies. Therefore, unless the trial judge plainly overlooked certain facts of substance
and value which, if considered, might affect the result of the case, his assessment on credibility of witnesses must be
respected.
[15]

After a meticulous review of the records in this case, the Court finds no error in the ruling of the trial court giving full faith and
credence to the testimony of AAA, stating that she was indeed raped by Appellant Butron. Her account was direct, candid, replete
with details, and supported by physical evidence.
It is a truism that when an alleged victim of rape says that she was violated, she says in effect all that is necessary to show that
rape has been inflicted on her and so long as her testimony meets the test of credibility, the accused may be convicted on the basis
thereof.
[16]
This is so in the instant case, where the testimony of AAA, a mere ten-year-old at the time of the rape, as to the
circumstances of the rape must be given weight, for testimony of young and immature rape victims are credible.
[17]

No Material Inconsistency in the Victims Testimony
Appellants insistent argument that AAA admitted he had not used his penis but had inserted only his finger into her private part
is misleading. A reading of her complaint and whole testimony in court readily and clearly shows that the appellant selectively quoted
out of context from and woefully misinterpreted AAAs testimony. Her statements on the stand that she was raped are clear,
categorical and worthy of belief, viz.:
Q. What did he do? (sic) to you before he inserted his penis into your vagina?
A. He pulled my legs then he pushed my head against the cement.
Q. My question is: what did Anselmo Butron do to you immediately before he inserted his penis into your vagina?
A. He smelled rugbi (sic) and placed his goggles into our pail.
xxx xxx xxx
Q. Did he not insert his finger into your vagina before he inserted his penis into your vagina?
A. He inserted his finger into my vagina two times before inserting his penis into my vagina.
Q. You said that he inserted his penis into your vagina for two times. After that, what did he do?
A. After that, he went downstairs.
Q. When he went downstairs, what did you see from him?
A. I saw and he showed me a knife and told me that if ever I will tell somebody about what happened, he will stab
me. (Witness making a slashing motion.)
[18]
(Underscoring supplied.)
Thus, in simple language bereft of equivocation, the young victim affirmed that the appellant had carnal knowledge of her. She
testified that appellant had inserted not only his finger into her private part; it is clear that the finger was subsequently followed by
appellants sexual organ, thus consummating rape.
Indeed, after her cross-examination, she replied No to the trial court judges clarificatory question, (Y)ou told the court
that Anselmo Butron inserted his penis into your vagina? Her answer, however, does not belie her charge of rape. It will be noted
that the witness is a very young girl not yet twelve years old, who might have been prone to an occasional misapprehension of a
question propounded to her on the stand. It is very likely that she misunderstood the judges clarificatory question as referring to her
prior answer which informed the court that the appellant had inserted his finger into her private part. She probably thought that the
judge was asking her whether she had told the court that appellant had inserted his penis into her organ; thus, she said No to clarify
her previous answer to the question which dealt with insertion of the finger, not of the penis.
[19]
That is, she must have meant to say,
No, that was not what I said.
AAAs sworn answer to the Municipal Circuit Trial Court Judge, who conducted the preliminary investigation, unmistakably
intimated that she had been raped, even if her answers did not graphically provide a second-by-second account of the whole sordid
incident. To the judges question on whether appellant had inserted his penis inside her vagina, her answer that (h)e let me lie down
on the floor, its painful,
[20]
sufficiently answered the same in the affirmative. As noted by the investigating judge, AAA refused to
remember the incident. This is not unnatural because a court cannot expect a rape victim to remember every ugly detail of the
appalling outrage, especially so since she might in fact have been trying not to remember them.
[21]
In the case before us, it is palpable
that AAA remembered the painful sexual intercourse forced upon her by appellant. But she just did not want to replay the whole rape
in her mind and simply gave her terse but sufficient answer to this crucial question posed by the judge conducting the preliminary
investigation.
It is hornbook doctrine that the testimony of a witness must be considered in its entirety and not by truncated portions thereof or
isolated passages therein.
[22]
Besides, it is an accepted rule that the credibility of a rape victim is not impaired by some
inconsistencies, if there are any, in her testimony.
[23]
Inconsistencies are to be expected of persons of such tender age as the private
complainant. Protracted cross-examination of a young girl not accustomed to public trial may produce contradictions that need not
necessarily destroy her credibility. Hence, the alleged inconsistency in AAAs testimony as pointed out by Appellant Butron does not
render the same incredible or unacceptable.
Lacerated Hymen Not an Essential Element of Rape
That young AAAs hymen was not completely lacerated does not discredit her categorical testimony that she was raped by
Appellant Butron. Jurisprudence teaches us that (i)n the crime of rape, full or complete penetration of the complainants private part
is not necessary as the only essential point to prove is the entrance, or at least the introduction of the male organ into the labia of
the pudendum. The present case clearly establishes the crime of statutory rape, i.e., the offender had carnal knowledge of a woman
under twelve (12) years of age. x x x The fact that there was no deep penetration of the victims vagina and that her hymen was still
intact does not negate rape which is committed even with the slightest penetration of a womans sex organ.
[24]

Furthermore, sexual contact is confirmed by the medical certificate issued by the physician who examined the victim only about
6 1/2 hours after the incident. The presence of sperm cells in the vagina of the victim indubitably shows that there was actual
penetration of the private parts, and belies appellants allegation that he inserted only his finger, not his penis, into the vagina of the
victim. As aptly stated by the trial court:
Between the two (2) versions, the Court believes that there was coitus between the complainant and the accused based on
the finding of the physician, Dr. xxx, as medico-legal expert witness testified that when he examined the complainant he
found semen or spermatozoa inside the vagina and injuries in complainants private parts that he concluded that the
complainant was raped. The medical certificate (Exh. C) Dr. xxx issued to the complainant shows the following findings:
-There was (sic) blood clots surrounding the entruitus, actual bleeding at the anterior portion of the vaginal
canal.
-The hymenal covering was torn stillate-shaped.
-Index finger easily inserted.
-Vaginal smear -- positive for human spermatozoa.
The defense failed to explain the presence of sperm cell(s) or spermatozoa inside the vagina of the complainant. The
findings of the doctor that an erect penis was introduced into the vagina of the complainant and while inside there was
ejaculation, and there was semen inside the vagina indicate that there was sexual intercourse. The court does not find any
reason for the doctor to prevaricate or falsify his findings or his testimony.
[25]

Dr. xxx elucidated the matter in her testimony as follows:
Q. Now, from the result of your findings, what could have caused these injuries, actual bleeding at the anterior portion of
the vaginal canal? etc.
A. It must be that this child had been assaulted physically because as the facts mentioned here that there was (sic) blood
clots surrounding the entruitus, actual bleeding at the anterior portion of the vaginal canal.
[Q.] Meaning, there was insertion of a male organ?
A. Yes, sir.
Q. And it ejaculated?
A. Yes, sir.
[26]

She reiterated the same statement during cross-examination:
Q. When you were asked by the prosecutor, you right away mentioned of an erected (sic) penis.
A. Because of the presence of spermatozoa.
Q. You said that on the basis of the spermatozoa.
A. Plus others which I mentioned. (Witness pointing to the medical certificate.)
[27]

The argument that the insertion of the penis would have resulted in the complete laceration of the hymen, and not only a stillate-
shaped injury, is clearly belied by the medical certificate. Speculative at best, such postulation merely reflects appellants misplaced
swaggering braggadocio concerning his manhood, which does not lessen his guilt or excuse his conduct.
Based on the foregoing discussion, our conscience rests easy upon the moral certainty that Appellant Anselmo Butron is indeed
guilty of rape as charged. However, the amount of P30,000.00 imposed by the trial court as civil indemnity shall be increased
to P50,000.00 in accordance with prevailing jurisprudence.
[28]

WHEREFORE, the appeal is DENIED. The Decision appealed from, convicting Appellant Anselmo Butron of the crime of
rape and imposing on him the penalty of reclusionperpetua, is hereby AFFIRMED subject to the modification that he shall pay AAA
civil indemnity in the amount of fifty thousand pesos (P50,000.00).
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.
EN BANC
[G.R. Nos. 148056-61. October 8, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. JOSE DE CASTRO, appellant.
D E C I S I O N
PER CURI AM:
FOR AUTOMATIC REVIEW is the consolidated decision of the Regional Trial Court
[1]
of Pallocan, Batangas City, in Crim.
Cases Nos. 10242 to 10247, finding appellant Jose de Castro guilty of six (6) counts of rape and sentencing him to suffer the
maximum penalty of death in each of the six (6) cases. He is further ordered to indemnify the three (3) complaining witnesses Gemma,
Jean and Jenny, all surnamed de Castro, in the sum of P100,000.00 each and to pay the costs.
Spouses Jose and Genoveva de Castro, residents of Barangay Pallocan, Batangas City, have three (3) daughters, namely,
Gemma, twin sisters Jean and Jenny, and two (2) sons, Luis and Jose. The father, herein appellant Jose de Castro, earned his living by
selling newspapers near the BLTB terminal in Batangas City, while his wife Genoveva was a laundrywoman.
Private complainant Gemma de Castro,
[2]
seventeen (17) years old, testified that on 3 June 1998 at around 10:00 oclock in the
morning she was cleaning the house when her father Jose suddenly grabbed her hand and dragged her towards the bedroom. Therein,
Jose forced her to lie down on the bed and peppered her body with kisses while removing her clothes. After he undressed himself, he
mounted Gemma and forcibly inserted his penis into her vagina. She struggled vainly and tried to shout for help but her father
immediately covered her mouth with his hand. Since all attempts at repulsing the advances of her father proved futile, Gemma could
only plead for mercy. After satisfying his lust, her father warned her not to tell anybody otherwise he would kill her mother and a
sister.
[3]
She revealed that the appellant again molested her two (2) days after the first rape incident.
[4]
On that day, she was alone with
him in their house because her mother and her sister were at their neighbors house. With the same modus operandi, appellant dragged
her into the room and there sexually abused her against her will.
According to Gemma, it was only on 10 June 1999, or a week after the first rape incident, that she mustered enough courage to
reveal her sordid experience to her Ate Fely who accompanied her to the barangay captain and the police authorities to report the
matter.
Jean de Castro,
[5]
fifteen (15) years old, also testified that on 18 April 1999 at around noon she was inside the bedroom of their
house with her father when the latter forcibly removed her clothes. The appellant, after taking off his shorts and t-shirt, placed himself
on top of Jean who tried to free herself by wriggling and pushing him away. The appellant, while kissing his daughter on different
parts of her body, put his penis on (sic) her vagina.
[6]
Jean testified that the sexual molestation of 18 April was repeated on 7 June
1999 when she was alone with appellant in their house at Pallocan, Batangas City. The appellant again inserted his penis into her
vagina. It was then that she went to her aunt Felisa to whom she revealed everything.
[7]
Together, they went to the barangay captain
and reported the incident.
[8]
She further stated that her father deserved to die for what he had done to them.
[9]

Jenny de Castro, fifteen (15) years old, twin sister of Jean, also narrated that the appellant sexually abused her on two (2)
occasions, i.e., on 5 June 1998 and 24 March 1999. As to the rape incident of 5 June 1998,
[10]
she recalled that at about noon of the
same day she was alone with her father in the house when the latter removed her clothes. After the appellant took off his clothes, he
inserted his penis into her vagina. Jenny shouted for help but nobody heard her cry. By her own account, the appellant once again
victimized her in the afternoon of 24 March 1999 in the sala of their house.
[11]
In answer to the query on what her reaction was to her
fathers molestations, she said she pushed him.
[12]
Jenny confirmed that she was impregnated by her father and gave birth to a baby
girl on 3 November 1999.
Dr. Janet B. Esguerra of the Batangas Regional Hospital, OB Gyne Department, testified that she interviewed the private
complainants on 10 June 1999 and physically examined them. Her medico-legal certification contained the following findings:
[13]

For Gemma de Castro, the findings were:
Physical Examination: No external Physical Injuries
External Genitalia: Minimal pubic hair, gaping labia majora, complete healed laceration at 5:00 oclock position.
Internal Examination: Vagina admits 2 fingers with slight difficulty, cervix close, firm, uterus small, adnexae (-)
For Jean de Castro, the findings showed:
Physical Examination: No external physical injuries.
External Genitalia: Minimal pubic hair, gaping labia majora, complete healed laceration at 9:00 oclock position,
incomplete healed laceration at 6:00 oclock position.
Internal Examination: Vagina admits 2 fingers with ease, cervix close, softish uterus, small adnexae (-)
For Jenny de Castro, the findings were:
Physical Examination: No external physical injuries
External Genitalia: Minimal pubic hair, gaping labia majora, complete healed lacerations at 5, 6 and 7 oclock
positions.
Internal Examination: Vagina admits 2 fingers with ease, cervix softish close, uterus enlarged to 20 weeks size (-)
adnexae.
In disputing the imputations against him, the appellant interposed the defense of denial and alibi. He asserted that on 3 June 1998
at around 10:00 oclock in the morning he was in front of his brother-in-laws house having a drinking spree with him as it was their
town fiesta. He likewise denied having raped Gemma two (2) days later. According to him, he was at the BLTB terminal selling
newspapers that day from 4:00 oclock in the morning up to 12:00 noon, and then at 2:00 oclock in the afternoon he waited for the
evening papers to arrive.
He also disputed the allegation that he sexually molested his twin daughters Jenny and Jean on 5 June 1998 and 7 June 1999,
respectively. On said dates according to him, he was at the BLTB terminal selling newspapers as usual.
The trial court completely rebuffed the attempts by the appellant to escape culpability. Instead, it gave full credence to the
positive assertions of the three (3) young victims that he did in fact commit the offenses as alleged in the six (6) Informations. The
trial court further took special note of the medico-legal certification showing that all the private complainants had healed lacerations
on their respective hymens. For good measure, it observed that Jenny whom the appellant raped on 24 March 1999, gave birth to a
baby girl on 3 November 1999.
[14]

Appellant now comes to us professing his innocence and decrying his conviction on the lone ground that his guilt has not been
proved beyond reasonable doubt.
In his brief, appellant draws attention to the alleged inconsistencies that seriously contaminate the veracity and render incredible
the testimonies of the private complainants. He points out that Gemmas testimony is fatally flawed as it fails to take into
consideration the fact that the room where the alleged rape took place has a grill-less window about 4 feet from the floor which can
be opened to facilitate her escape had she felt the need to do so. Moreover, according to him, Gemma had the chance to run outside the
house while he was closing the door, but failed to take advantage of such opportunity on the flimsy and simple pretext that she was
naked. Worse, according to appellant, the trial court shrugged off the incredible claim that he was on top of Gemma for about an hour.
Appellant finds mind-boggling Gemma and Jeans insistence that they knew there were no people in the nearby houses at the time
they were being molested. To top it all, he argues that if indeed Gemma and Jenny were raped for the second time, it defies reason
why after the first assault they chose to remain at the scene of the crime and wait for their father to repeat his sexual aggression.
The thrust of appellants arguments is essentially to discredit private complainants for their alleged failure to escape their
supposed sexual tormentor despite a myriad of chances to do so.
Time and again, we stress the verity that in incestuous rape where the father/stepfather exercises moral dominance over his
daughter/stepdaughter, the victim by the sheer force of this moral influence is reduced to a docile creature, vulnerable and submissive
to the sexual depredations of her tormentor. People v. Matrimonio elucidates this point
[15]
-
In a rape committed by a father against his own daughter, the formers moral ascendancy and influence over the latter substitutes
for violence and intimidation. That ascendancy or influence necessarily flows from the fathers parental authority, which the
Constitution and the laws recognize, support and enhance, as well as from the childrens duty to obey and to observe reverence and
respect towards their parents. Such reverence and respect are deeply ingrained in the minds of Filipino children and are recognized
by law. Abuse of both by a father can subjugate his daughters will, thereby forcing her to do whatever he wants (underscoring
supplied).
Granting arguendo that herein private complainants had a few precious opportunities to escape, appellant conveniently discounts
the fear that his moral influence, coupled with the use of threats and intimidation, has instilled in his minor daughters whenever he
succumbed to his perverted proclivities. The testimonies of private complainants give flesh to this conclusion. Gemma de Castros
direct examination reads in part
[16]
-
Pros. Suyo: And after that, what did your father do?
A: I was able to shout but, he put his hand to cover my mouth.
Q. After that, what did you do if you did anything?
A. He threatened me not to tell anybody because he would kill my sister and my mother.
And then again
[17]
-
Court: The question asked you is this.
Q. You said that your father threatened you that he would kill your sister and your mother if you told this raping incident
to anyone. Why did you tell eventually your cousin Ate Fely about this raping incident?
A. I gathered enough strength to tell her.
Q. When did you tell your Ate Fely about this incident?
A. June 10, 1999, sir.
Q. Why did it take so long before you informed your Ate Fely of what happened to you?
A. I was overcome by fear, sir.
On cross-examination, private complainant Gemma de Castro also made the following disclosure
[18]
-
Q. You said that before the rape took place, you were undressed by your father and that he likewise undressed himself. At
the time that he was undressing himself why did you not try to jump out of the window?
A. Because he closed the window, sir.
Q. In what particular time did he close the window before the rape took place?
A. When I was already undressed.
Q. Why did you not try to run outside the door when he was still closing the window?
A. Because I had no clothes, sir.
Q. Do you mean to say that you were ashamed to get out in your nakedness?
A. No, sir.
Court: So, why did you not run as your father was busy undressing himself?
A. Because he was staring at me.
Atty. Bravo: He was not holding a bolo?
A. He was holding a knife, sir.
Q. Do we understand that while he was undressing you he was holding that knife?
A. Yes, sir.
Q. Then at the time when he put himself on top of you, he was still holding that knife?
A. Yes, sir.
Private complainant Jenny de Castro likewise revealed at the trial that she purposely did not report the rape incidents to her
mother because of fear of the appellant who warned her not to tell her mother about his sexual abuses.
[19]

Appellant scrapes the bottom of the barrel in making much of Gemmas statement that he was on top of her for an hour. Indeed,
it is too much to expect of a minor rape victim to give a precise recollection of the rape incident when at the time of the sexual assault
her tender mind was not only bombarded by a mishmash of confusing emotions but, more so, every sinew of her young body was
committed to ward off her attacker in a vain attempt to defend her purity and honor. Understandably, Gemma might have lost all
bearings of time for the few harrowing minutes in the hands of her father seemed eternity to her.
The rule is that when a rape victims testimony is straightforward and candid, unshaken by rigid cross-examination and unflawed
by inconsistencies or contradictions in its material points, the same must be given full faith and credit.
[20]
It is simply too improbable
for the minor victims, who are guileless and innocent in the ways of the world, to brazenly impute a crime as serious as rape to the
man, they call their father, if it were not true.
In Crim. Cases Nos. 10242 and 10245, Gemma not only identified appellant as her abuser but established in her narration of facts
how he by force and intimidation had carnal knowledge of her against her will.
Testifying in Crim. Cases Nos. 10243 and 10247, Jean de Castro also established that on 18 April 1999 and 7 June 1999 she was
forced by appellant to engage in unwanted and illicit sexual congress.
In Crim. Case No. 10244, Jenny de Castro sufficiently proved beyond any iota of doubt that appellant ravished her when through
force and intimidation he inserted his penis into her genitalia. We cannot say the same thing however with respect to her testimony in
Crim. Case No. 10246 where she merely stated that on 24 March 1999 the appellant raped her. Consider the following exchanges -
Q. What about on March 24, 1999, how did your father rape you?
A. It was in the afternoon when he raped me in the sala of our house, sir.
Q. And what did you do when your father raped you?
A. I pushed him, sir.
In any criminal prosecution, it is necessary that every essential ingredient of the crime charged must be proved beyond
reasonable doubt in order to overcome the constitutional right of the accused to be presumed innocent. Jennys simple declaration that
she was raped is not evidence but simply a conclusion. The principle that when a woman declares that she has been raped she says in
effect all that is necessary to mean that she has been raped, no longer holds. This means that the prosecution must still prove the
elements of the crime of rape, and it is not enough for a woman to claim she was raped without showing how the crime was
specifically committed.
In the earlier case of People v. Mendoza,
[21]
the accused was acquitted by virtue of the victims plain statement that she was
raped on 11 August 1995 without offering further details on how the alleged incident was carried out. This Court declared therein
that (w)hether or not he raped her is the fact in issue which the court must determine based on the evidence offered. Testimony to that
effect is not evidence, but simply a conclusion, the proof of which is the very purpose of the trial x x x x It is not competent for a
witness [in this case Michelle] to express an opinion, conclusion or judgment thereon. That being so, we cannot sustain appellants
conviction in Crim. Case No. 10246.
The certificates of live birth
[22]
prove that at the time of the rape incidents Gemma, Jean and Jenny were minors. With the
concurrence of their minority and relationship
[23]
with appellant, the trial court correctly found appellant guilty beyond reasonable
doubt of qualified rape in Crim. Cases Nos. 10242, 10243, 10244, 10245 and 10247 and sentenced him to suffer the supreme penalty
of death in each case. As earlier discussed however, the guilt of appellant was not adequately proved in Crim. Case No. 10246; hence,
his acquittal in this particular case.
As to damages, the award of P100,000.00 granted by the court a quo must likewise be modified. Since the appellant is convicted
of five (5) counts of qualified rape, he must be ordered to pay each complaining witness P75,000.00 as civil indemnity, P75,000.00 as
moral damages and P25,000.00 as exemplary damages for each case proved.
Three (3) members of the Court, although maintaining their adherence to the separate opinions expressed in People v.
Echegaray that RA 7659, insofar as it prescribes the penalty of death, is unconstitutional, nevertheless submit to the ruling of the
majority that the law is constitutional and that the death penalty should accordingly be imposed.
WHEREFORE, the Decision of the trial court finding appellant Jose de Castro guilty of qualified rape in Crim. Cases Nos.
10242, 10243, 10244, 10245 and 10247 is AFFIRMED with the MODIFICATION that, insofar as Crim. Case No. 10246 is
concerned, he is ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt.
Appellant is further ordered to indemnify the three (3) complaining witnesses as follows:
1) In Crim. Cases Nos. 10242 and 10245, to pay Gemma de Castro the amount of P75,000.00 as civil indemnity, another
P75,000.00 as moral damages and P25,000.00 as exemplary damages in each case;
2) In Crim. Cases Nos. 10243 and 10247, to pay Jean de Castro the amount of P75,000.00 as civil indemnity, another P75,000.00
as moral damages and P25,000.00 as exemplary damages in each case; and,
3) In Crim. Case No. 10244, to pay Jenny de Castro P75,000.00 as civil indemnity, another P75,000.00 as moral damages and
P25,000.00 as exemplary damages.
Costs against appellant Jose de Castro.
Let the records of this case be forwarded to Her Excellency, the President of the Philippines, for the possible exercise of her
pardoning power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Carpio-Morales, Callejo, Sr., Azcuna,and Tinga, JJ., concur.
Corona, J., on leave.



G.R. No. 27859, People v. Dayo, 51 Phil. 102
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
December 1, 1927
G.R. No. 27859
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AMANDO DAYO, defendant-appellant.
Vicente Sotto for appellant.
Attorney-General Jaranilla for appellee.
AVANCEA, C.J .:
On the night of July 18, 1925, while Lamberta Valdehuesa, sleeping by the side of her 13-year old son, Higino Sabido, in the
municipality of Salay, Province of Misamis, was awakened by the feeling of a certain weight upon her and discovered that a man was
having carnal knowledge of her. She gave him a push in an attempt to extricate herself from him and at the same time screamed. Later
on she recognized the accused Amando Dayo as the man, who threatened to kill her with a revolver which he carried with him, if she
made an outcry, whereupon Lamberta fainted. The boy Higino Sabino, who had also awaked, seeing the accused mounted on his
mother, tried to awaken her, touching her, but she did not wake up or answer him. The accused kept on lying with Lamberta and after
having consummated his purpose, he left but not before having threatened to kill the boy Higino with his revolver if the latter spoke of
it to his father.
That night Bruno Sabido, Lamberta's husband, was absent from home and the accused knew this, because on the afternoon of the same
day he had gone to the house on the pretext of seeing Bruno to speak to him, as he stated, of the "Spartan" society of which Bruno and
the accused were the organizers. That afternoon while the accused was in the house on the aforementioned pretext, and while speaking
with Lamberta, he suddenly kissed her whereupon Lamberta took him to task, telling him that he had thus taken liberties with her
because her husband was away.
When Lamberta came to she noticed that her chemise was raised and that her private parts were smeared with semen. She wept as
soon as she became aware of what had happened and did not sleep until her husband returned the following day, when she
immediately told him of it. Bruno lost no time but went in search of a lawyer to make the proper complaint. A complaint was filed
against the accused charging him with the crime of rape; he was convicted by the trial court and sentenced to twelve years and 1
day reclusion temporal, with the accessories of the law, and the costs of the action. The accused appeals from this judgment.
The facts hereinbefore set forth appear from the testimony of Lamberta Valdehuesa and her son Higino Sabido, whose testimony we
find sufficient to establish said facts beyond the slightest shadow of a doubt. The mere fact that Lamberta was by the side of her son
Higino Sabido when the accused, taking advantage of the fact that she was asleep had carnal knowledge of her does not render the fact
improbable. After the accused had made up his mind to commit the crime, he was unable to bring about all the conditions for its
consummation. He might have thought that if he commenced the act, which Lamberta's sleep enabled him to do, she would in the end
consent to the intercourse, and this consideration might have led him to commit the crime, notwithstanding that the boy was by her
side. On the other hand, in our opinion the circumstances of the case exclude the supposition that the act was agreed to by and between
the accused and Lamberta; for were it so, Lamberta should, undoubtedly, have arranged it differently as, for example, in another
house, or not having her son Higino by her side. Moreover, when the accused, taking advantage of the fact that the offended party was
asleep, entered upon the commission of the act, the crime of rape had already been consummated, and the offended party's final
consent, after she realized the outrage perpetrated against her, even supposing there was such consent, is not of the character of
exclude the concept of the crime of rape, but a mere resignation in the face of an outrage already perpetrated, as is shown by the
offended party's conduct afterwards in telling her husband of it as soon as he arrived home.
The appellant pleads an alibi. He tried to prove that on that night he was at a ball given in the municipal government building and that
he did not leave until 2 o'clock the following morning, going straight home. Taking into account the fact that the building where the
ball was given was not far from the offended party's house, it is not impossible, nor improbable, that the accused left the building
where the ball was being held, for a time long enough to commit the crime. Although Raymundo Gora, one of the witnesses for the
defense, claims that at no time did the accused leave the building of the ball, yet, considering the exaggerations which may be noticed
in his declarations, we cannot give credence to his testimony.
As the crime was committed at night and in the offended party's home, which circumstances increase the accused's liability, the
Attorney-General is fully justified in recommending the imposition of the penalty in its maximum degree.
The appellant is hereby sentenced to seventeen years, four months and one dayreclusion temporal, and the judgment appealed from is
affirmed in all other respects, with the costs against the appellant.
Johnson, Street, Malcolm, Villamor, Johns and Villa-Real, JJ., concur.
Separate Opinions
OSTRAND, J ., dissenting:
The evidence does not convince me of the defendant's guilt and I therefore dissent.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-63260 March 20, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MURPHY BANZALES y ILAGAN and JOSEPHINE DIALOLA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Victoriano Agcaoili, Jr. for accused-appellant Murphy Banzales.

FERNAN, J .:
Murphy Banzales and Josephine Dialola appeal from the judgment of the then Court of First Instance of Quezon, Lucena City, Branch
2 in Criminal Case No. 3622, * convicting them of rape and sentencing them to an indeterminate penalty ranging from reclusion
temporal as minimum to reclusion perpetua as maximum and to pay an indemnity of P30,000.00 to the victim, Rosalina Ricarfort
[Records, p. 108].
The evidence for the prosecution shows that at about three o'clock in the afternoon of June 17, 1982, Rosalina Ricarfort, then a
seventeen-year-old cosmetology student residing at Riverside Subdivision, Lucena City, visited her elder half-sister Nida [Leonida
Obenza at the resthouse of the family-owned resort in the university site [Luzonian University]. They exchanged pleasantries and
munched coconut meat. After an hour or at around four o'clock in the afternoon, Rosalina decided to leave for home. She took the
shortcut route leading to the "burol," an uphill road which is the usual stopping place for jeepneys plying the university area. The
shortcut is a narrow footpath in the middle of tall cogon grasses, thick under brushes, trees and bamboo groves [Exh. B; TSN, 39-43,
92, 177].
As Rosalina was nearing a turning area, a woman approached her and requested that they both look for a boy had died in that area.
That woman was the accused-appellant Josephine Dialola. Rosalina hesitated but Dialola quickly assured her that she would be safe
with her since they were both girls. Rosalina acquiesced. But after taking a few steps, Dialola pulled her towards a thickly forested
area, about 10 meters away from the path where the other accused-appellant Murphy Banzales emerged from his hiding place and
suddenly grabbed Rosalina from behind. Then together he and Dialola forcibly laid Rosalina down on a grassy portion. While Dialola
covered Rosalina's mouth with her hands, Banzales pinned the struggling girl down with his thighs. He threatened to kill her if she
shouted [TSN, pp. 44-46, 105, 180].
Rosalina tried to break free and turned her and from side to side but Banzales boxed her on the stomach, rendering her unconscious.
When she came to, Banzales was on top of her, his private organ inserted in her private part. She moaned. Noticing that she was
already awake, Dialola covered her mouth again. To create noise, Rosalina kicked the ground with her feet. Banzales gave her a heavy
blow on her thighs and stomach and she fainted for the second time. When she regained consciousness, it was almost dark. She
noticed that she was almost naked except for her bra which was up in her neck and her panties dangling from her right leg. Her shirt
and pants were missing [TSN, pp. 47-49, 114-120].
Banzales was seated beside her, facing the path used for leaving the area. He warned her that he would kill her parents if she reported
the matter to the police. Then he left. There was no sign of the other accused [TSN, pp. 49, 121-122].
Feeling weak and dizzy and clad only in her underwear, Rosalina trudged back to the resthouse and called out for her sister Nida.
Noticing a piece of clothing hanging on a nearby cacao tree belonging to one of their workers, she reached for it and wrapped it
around her body. When Nida appeared, Rosalina immediately told her that she had been raped. Nida returned to the house, took a
blanket and placed it around her distraught sister. Then she ran to the diversion road where she hailed a passing jeep belonging to the
National Irrigation Administration and brought Rosalina to the Quezon Memorial Hospital where the latter was examined by the
resident physician at seven o'clock in the evening of that same day [June 17th]. Examination of the victim's genitalia showed
congestion on the anterior fourchette left and posterior left and hymenal laceration at the 5:00 o'clock position. The vagina which
admitted one finger with difficulty bore dark blood and traces of sperm cells. There was multiple linear abrasion at the anterior chest
[upper torso] which could have been caused by sharp instruments or fist blows. The physician also found blood on Rosalina's lower
cheeks near the lip area. Her findings were consistent with the conclusion that coitus with the injured girl was obtained through force
[Exh. A; TSN, pp. 8-14, 49-51, 123-125].
Shortly thereafter, the police arrived and asked Rosalina for a description of the rapists. She told them that although she did not know
their names she could recognize them by their faces. She described the woman as of medium height with a high-bridge nose and
wearing T-shirt with green stripes, maong pants and a pair of Adidas shoes. Rosalina described the man as quite fat, tall with thick
curly hair and a protruding stomach [TSN, pp. 52-54, 110-11, 130].
Guided by that description, the police apprehended Banzales and Dialola and in the morning of June 18, 1982 brought them separately
before Rosalina in the hospital ward where she was confined. In between sobs, she Identified them as the man and woman who had
sexually abused her [TSN, pp. 54-57, 145,155- 158].
At three o'clock in the afternoon of June 18, 1982, Rosalina was discharged from the hospital. At about midnight, she and her foster
parents were invited to the police headquarters where she again pinpointed the two accused in the police lineup as her attackers.
Rosalina also executed a sworn statement narrating the details of the rape [Exh. B; TSN, pp. 58-70, 80-81].
A complaint for rape signed by the victim herself and sworn to before the city fiscal was filed on June 21, 1982 with the Court of First
Instance against Murphy Banzales as principal by direct participation and Josephine Dialola as principal by indispensable cooperation
[Records, pp. 1-2]. On arraignment, both accused pleaded not guilty [Records, p. 20]. After hearing, they were found guilty as charged
but the mitigating circumstance of voluntary surrender was appreciated in their favor [Records, p. 108].
Accused-appellants Banzales and Dialola through their counsels de parte, contend that the trial court erred in not giving credence to
their defense of alibi and in holding that Rosalina's testimony was sufficient to overcome the presumption of innocence [Rollo, pp.
170, 240].
Appellant Banzales, high school graduate, twenty-four years old, married, a public utility jeepney driver and residing in Lucena City,
denied the accusation that he had raped Rosalina. He testified that on June 17, 1982, between the hours of four and six in the
afternoon, he was out plying his Lucena City-university site route. At about four, he was at the marketplace picking up passengers. A
friend, Philippine Constabulary Sergeant Charlie Tolopia boarded his jeepney. Upon reaching the university site, his other passengers
alighted, leaving only Tolopia He brought Tolopia to his residence at Madrid Street where they talked for about fifteen minutes while
remaining inside the vehicle. At 5:20 in the afternoon, Banzales resumed his driving and picked up passengers bound for the public
market. Upon reaching the town proper, a tire started to wobble so he brought the jeep over to his parents' house at the university site
for repairs. After ten minutes or around 5:35 p.m., he decided to call it a day, joined a fellow-jeepney driver named Junior in his route,
and later had drinks with him until 9:30 in the evening in the house of a certain Aling Delia, also at the university site [TSN, pp. 417-
413].
The next day, June 18, 1982, Banzales drove his jeepney till noon. Having heard that the police were looking for a tall man [he was
about five-foot-eight] in connection with a rape that occurred near the resort, he decided to present himself before them to deny any
involvement. Patrolman Ginauli and Corporal Lequin brought him to see Rosalina at the hospital. He maintained that she remained
silent throughout the confrontation and did not respond when the police asked her if Banzales was the one who had abused her. Left
with no other alternative, the police released him and he resumed his driving. At around midnight, while he was drinking with friends
in the house of Aling Delia, the police picked him up and took him to the police station where he was pinpointed by Rosalina, once
inside the interrogation room, and again in the police lineup [TSN, pp. 433-441, 445-447].
Josephine Dialola the other appellant, twenty years old, single, jeepney conductress and residing in Red V, Lucena City, testified that
from nine in the morning until 8:30 in the evening of June 17, 1982, she was working as a conductress in the red Tamaraw jeepney
driven by Rolando Lopez. They plied the same university site route being serviced by Banzales which began at the public market and
ended at the "burol" after circling the university area. That day she made around twelve complete trips [TSN, pp. 275, 307, 325].
Reportedly a tomboy, Dialola was the lone female conductress among the PUJ's operating at the university site. She worked with
Lopez continuously for six months, except for the two months when she was incarcerated in the city jail for several robbery cases
[Exh. C; TSN, pp. 318-319, 321]. She declared that she never saw Rosalina before in her life.
There is no doubt in our mind that Rosalina was raped. The medical report confirms this. The question now remaining is whether
appellants Banzales and Dialola have been definitely Identified by the seventeen-year-old rape victim and whether their respective
alibis are sufficient to exculpate them.
To corroborate his story, Banzales presented Tolopia as his witness. Upon cross-examination, however, it was elicited from Tolopia
that he was a long-time acquaintance of Banzales and a comrade in arms of his father in the Philippine Constabulary [TSN, p. 405].
Dialola for her part, presented Rolando Lopez, her jeepney driver, and Dionisio Dialola her father, to convince the trial court that
between the hours of four and six in the afternoon of June 17, 1982 she was out plying the university site route [TSN, pp. 340-346,
236-237]. It is readily apparent that corroborative testimony as to appellants' being elsewhere at the time of the commission of the
offense came from either a relative, a close friend or an associate which led the lower court to doubt its veracity considering that the
appellants could have easily secured the testimonies of so many drivers, conductors and passengers using the same route. But
independently of the suspicion naturally engendered by such biased testimony, this Court is convinced that the offended party has
positively Identified the appellants.
To begin with, Rosalina had ample opportunity to recognize and remember her two attackers. Prior to the rape, Rosalina used to see
Dialola at the Obar Ricemill in Red V whenever complainant went there to have palay milled As for Banzales, Rosalina met him once
on board a jeep on her way to the resort about a month before she was criminally assaulted. She remembered him because they were
sitting opposite each other. They had a conversation. When Rosalina alighted at the " burol, " the appellant did likewise and pointed to
her a shortcut to the resort. Rosalina took the suggested path the very place where she would be abused a month later. After that, she
again saw Banzales hanging around her neighbor's house which is about twenty meters from the "burol" [TSN, pp. 3839,195-196, 210,
468].
When Rosalina was raped, it was broad daylight. Dialola covered her mouth but not her eyes. She was lying face up when Banzales
was astride her. Though she fainted twice, there were moments when she was awake and aware of what was being done to her.
Less than 24 hours later, the police brought the two appellants separately before her in the hospital ward where she was confined. To
demonstrate how meticulous the police were in ascertaining the Identity of the offenders, they showed another tomboy to complainant
to test the latter's recollection. They also told the appellants to enter the room twice to ensure that there would be no mistake on
Rosalina's part. Afterwards at the police station, the law enforcers once again required Rosalina to Identify Banzales and Dialola in a
police line-up. All throughout, she remained unwavering [TSN, pp. 54-57, 60-61].
Subsequently, at the witness stand and in a straight-forward manner, Rosalina narrated how she was ravished and positively affirmed
that it was Dialola who waylaid her towards a forested area into the waiting arms of Banzales who then succeeded in abusing her in
spite of her resistance.
In the face of such unequivocal Identification by the rape victim whose testimony the trial court had given full credence, as well as the
incontrovertible fact that there was no physical impossibility on appellants' part to reach the scene of the crime which is but a few
minutes away from their respective routes 'as public utility jeepney driver and conductress, appellants' defense of alibi must
necessarily fall and the lower court properly disregarded the same.
The minor inconsistencies in Rosalina's testimony are to be expected. The gruelling cross-examination of a seventeen-year-old girl,
unaccustomed to a public trial, would inevitably produce contradictions which nevertheless would not destroy her credibility [People
vs. Gozum, G.R. No. 66970, February 28, 1985, 135 SCRA 295; People vs. Garcia, G.R. No. L- 45280-81, June 11, 1981, 105 SCRA
6].
On matters of credibility this Court has accorded the highest degree of respect for the findings of the trial judge because he had the
opportunity to hear the witnesses testify and observe their demeanor. Evidently, in the instant case, he found the complaining witness
more credible. In line with the rule above-stated, We affirm.
The trial court correctly found Dialola a woman, equally culpable as a principal together with Banzales for the crime of rape.
Appellants' combined actions easily induce the belief that everything had been prearranged between them in order that Banzales might
carry out his bestial designs upon the victim. Dialola cooperated in the perpetration of the rape by Banzales by acts without which the
crime could not have been consummated. She paved the way by luring the unsuspecting victim into a secluded wooded area,
delivering her to Banzales and then covering the girl's mouth so that she could not summon for help. The criminal responsibility of
Dialola has been established [People vs. Andal, G.R. No. L-39763, March 8, 1976, 70 SCRA 30; US vs. Javier, 31 Phil. 235].
However, We find that the lower court erred in appreciating the attenuating circumstance of voluntary surrender in appellants' favor.
In order that voluntary surrender may be taken into account, "it is necessary that the same be spontaneous in such manner that it shows
the intent of the accused to surrender unconditionally to the authorities" [People vs. Sakam, 61 Phil. 27, 34; People vs. Hanasan, G.R.
No. L-25989, September 30, 1969, 29 SCRA 534]. The evidence disclosed that both accused were picked up by the police several
hours after they were definitely Identified by Rosalina in the hospital [TSN, pp. 278, 297, 446-448]. Where the record does not clearly
show that the accused voluntarily surrendered to the authorities, the doubt cannot be resolved in their favor (People vs. Lopez, 107
Phil. 1039]. The fact that Banzales and Dialola went willingly with the police does not amount to voluntary surrender [People vs.,
Dimdiman, 106 Phil. 391].
Likewise, the trial court erroneously applied the Indeterminate Sentence Law after it improperly lowered the penalty of reclusion
perpetua to reclusion temporal by reason of the extenuating circumstance of voluntary surrender. The crime committed in this case is
rape by two or more persons falling under paragraph 3 of Article 335 of the Revised Penal Code. It is punished by reclusion perpetua
to death which are two principal indivisible penalties.
Two vital points must be made clear. Firstly, the indeterminate sentence covers only divisible penalties and does not include
indivisible penalties [People vs. Asturias, G.R. No. 61126, January 31, 1985, 134 SCRA 405; People vs. Arizola, G.R. No. 59713,
March 15,1982,112 SCRA 615; People vs. Roque, G.R. No. 53470, June 26, 1981, 105 SCRA 117]. Secondly, in all cases in which
the law prescribes a penalty of two indivisible penalties and there are neither mitigating nor aggravating circumstances present, as in
the case at bar, the proper penalty is the lesser penalty or reclusion perpetua. [Revised Penal Code, Article 63(2); People vs. Lamberte,
G.R. No. 65151, July 11, 1986, 142 SCRA 685].
WHEREFORE, the judgment of conviction is affirmed but the penalty is modified. Accused-appellants Murphy Banzales and
Josephine Dialola are hereby sentenced to reclusion perpetua and to indemnify the victim, Rosalina Ricafort, in the amount of
P30,000.00. Costs against accused-appellants.
SO ORDERED.
Gutierrez, Jr., Paras, Padilla, Bidin and Cortes, JJ., concur.

Footnotes
* Penned by Judge Benigno M. Puno.

EN BANC

[G.R. No. 139181. October 27, 2003.]

PEOPLE OF THE PHILIPPINES, Appellee, v. JIMMY AQUINO y VIOLA, Appellant.

D E C I S I O N


DAVIDE, JR., C.J .:


Before us on automatic review is the 7 June 1999 Decision of the Regional Trial Court of Malolos, Bulacan, Branch 21, in Criminal
Case No. 1310-M-98 convicting appellant Jimmy Aquino of the crime of statutory rape and sentencing him to the penalty of death.
1chanrob1es virtua1 1aw 1ibrary

The Information under which Jimmy was charged reads:chanrob1es virtual 1aw library

That on or about the 24th day of May 1996, in the municipality of San Miguel, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, armed with a bladed instrument, did then and there willfully,
unlawfully and feloniously, with lewd designs, by means of force and intimidation have carnal knowledge of the said Analyn dela
Cruz y Viola, 11 years of age, against her will. 2

Upon his arraignment, Jimmy pleaded not guilty to the offense charged. 3 Pre-trial ensued, followed by the trial on the merits of the
case.

The evidence for the prosecution, culled from the testimonies of the victim Analyn de la Cruz and her mother Lolita Viola de la Cruz,
is as follows:chanrob1es virtual 1aw library

Analyn was 10 years and 11 months old on the day of the alleged rape, having been born on 23 June 1985. She filed the complai nt
with the assistance of her mother, Lolita, who is Jimmys first cousin. Prior to the filing of this case and the assumption of custody by
the Department of Social Welfare and Development, Analyn lived with her grandmother in Sta. Ines, San Miguel, Bulacan; while her
mother lived with her second husband in another house within the same barangay. 4

At around 9:00 a.m. of 24 May 1996, while Analyn was playing with her friend near the house of Jimmys sister Nini in Sta. Ines, San
Miguel, Bulacan, Jimmy, who was staying in Ninis house during the day, called out Analyn to buy cooking oil for him from the store
nearby. He gave her P5.00 and a glass for the cooking oil. When she returned to Ninis house, Jimmy asked her to get the feeding
bottle of his niece near the bed, which was in a slightly elevated portion of the house. She then went to get the bottle. Jimmy followed
her and, producing a knife, ordered Analyn to remove her shorts and underwear. Fearing for her safety, Analyn acceded. Jimmy then
proceeded to remove his clothes and force himself on top of her. With a knife in his right hand pressed against her left palm, he began
to have sexual intercourse with her. Once during the ordeal, he applied to her genitals the cooking oil she bought. Jimmy stopped his
assault only after two hours, or at around 11:00 a.m., when he heard the voice of his brother-in-law outside the house. He forthwith
ordered Analyn to get dressed and get out of the house. Analyn went home and reported the rape to her grandmother. 5

Later in the afternoon, Analyn went to the poultry farm where her mother worked and told her that "Tio Imi" had raped her. 6 Lolita
went to the Barangay Council of Sta. Ines and reported the rape. Councilman Ismael Julian asked Barangay Tanod Rolando Viola to
fetch Jimmy. Under interrogation by Ismael, Jimmy admitted to having asked Analyn to undress. The councilman prepared a
statement, 7 which was signed by him, Jimmy and Lolita, wherein it was stated that the nature of the complaint was that Jimmy had
asked Analyn to remove her clothes because he wanted to see what her vagina looked like. Even if the statement did not mention rape,
Lolita signed it thinking it would merely be used as evidence that she had made a complaint. 8

Analyn was also sent for, and though she testified to having signed a document upon the request of the barangay tanods, she did not
know what document she signed. 9 Analyns signature does not appear in the statement signed by her mother and Jimmy.chanrob1es
virtua1 1aw 1ibrary

According to Lolita, she was frustrated by the lack of action by the Barangay officials. She attributed it to the fact that Jimmy was a
relative of many of them, and that they wanted her to settle the case with him. Thinking that Jimmy had fled, she did not pursue the
complaint. It was only on 20 August 1997, Jimmys birthday, that she spotted Jimmy in the house of his grandmother. Her rage
renewed. she tried to go to the police in San Miguel, Bulacan, but the policemen refused to help her because Jimmy was the nephew of
the incumbent barangay captain at that time. 10

With the help of her friend Celia Manese, she, together with Analyn, filed on 10 November 1997 a complaint with the Municipal Trial
Court (MTC) of San Miguel, Bulacan. The next day, Analyn was examined at the Philippine National Police Crime Laboratory in
Malolos, Bulacan. 11 The examining physician, Dr. Manuel Aves, found old healed hymenal lacerations, which the parties admitted.
12

For his defense, Jimmy interposed a basic denial. His version of the events is that on 24 May 1996, he was in the house of his sister
Nini where he usually stayed during the day, sometimes to take care of his niece. Around two meters away was Antonio Clemente, a
first cousin of Jimmy and Lolita and a carpenter by profession, who was hired by Nini to put up a fence in the back of the house. 13

At approximately 9:00 a.m., Analyn arrived and watched television with Jimmy. Sometime between 10:00 and 11:00 a.m., Antonio
got hungry and asked Jimmy for merienda. Because none was available, Antonio gave Jimmy P5.00 to buy ice and some cooking oil
to fry camote (sweet potatoes). Jimmy, in turn, gave Analyn the money and bid her to buy the items in a store nearby. She returned
with the cooking oil worth P3.00 but without the ice, and gave the P2.00 to Jimmy. 14

At one point while the camote was being fried, Jimmy became curious about the rumors he had heard about the beautiful appearance
of Analyns private organ. To see it for himself, he asked Analyn to pull down her shorts. The latter agreed. When Analyns shorts
were down, a group of children entered the house and laughed when they saw Analyn. Among this group were Analyns younger
brother Jonathan Duklayan, and Antonios son Jervy Clemente. Antonio also looked in to see what was happening. He saw Analyn
with her shorts around her knees and her underwear exposed. The children then asked whether they could have some of the camote
being fried. Antonio playfully asked them to also pull down their shorts as a condition to giving them any. 15

Late that same afternoon, Rolando Viola, a barangay tanod, came and informed him that Lolita was making a complaint against him
(Jimmy) with the barangay councilor. He (Jimmy) went to where Ismael Julian and Lolita were and, when confronted, admitted to
having asked Analyn to pull down her shorts because he was curious about her. He signed a statement made by Ismael that was in
question-and-answer form, and both he and Lolita were made to sign the same document. The issue of rape was not discussed during
that confrontation, and he had no idea of the charge until he was arrested in his house on 12 November 1997 and brought to the
provincial jail. 16

Antonio Clemente, a first cousin of both Jimmy and Lolita, corroborated Jimmys story. He testified that on the day of the alleged
rape, he was fixing the fence in the back of Ninis house. He could see into the house of Nini because the back wall was almost non-
existent. At around 10:00 a.m. he asked Jimmy for food and gave him money to buy cooking oil and ice. Afterwards, he heard
children laughing and he saw Analyn with her shorts around her knees. He even jokingly asked the children to do the same so that
they could eat some of the camote. 17

Rolando Viola, a barangay tanod and an uncle of both the appellant and the victims mother, testified to having seen Antonio fix the
house. Sometime before 10:00 a.m., he went looking for Antonio because he wanted to have his roof fixed. While he was conferring
with Antonio, he saw Analyn and Jimmy watching television inside Ninis house. He also testified that the state of Ninis house at that
time was such that although he was at the back, he could see into the house and out into the street and at passers-by because the front
and back walls were dilapidated and almost non-existent. 18

He also testified that he was present when Lolita reported to Barangay Councilman Ismael Julian that Analyn was ordered by the
appellant to take off her lower apparel. He was even the one who fetched the appellant from his house to be investigated. He was
likewise present during the investigation. 19 This testimony was corroborated by Ismael Julian. 20

Alberto Viola, uncle of Jimmy and granduncle of Analyn, declared that he had been taking care of Jimmy ever since the latter was 10
years old, after Jimmys father died. He testified that at around 10:30 a.m. of 24 May 1996, while he was cooking lunch in hi s house,
he heard children laughing. From his kitchen in the back of the house, he had a view of the front of Ninis house, where he saw
children. Noticing nothing extraordinary, he continued cooking. At around noon, Jimmy came over and ate with him. 21

Teresita Bacuan, another cousin of Analyn and a close friend, testified that at 11:00 a.m. of 24 May 1996, Analyn came by her house
to tell her that "Tio Imi" had almost succeeded in raping her (Analyn). Teresita was worried that a rape had in fact been committed and
asked Analyn whether the latter was just ashamed to admit it. Analyn assured her that nothing happened because of the timely arrival
of one Jervy and other small children. Teresita confronted Jervy Clemente, who then denied having witnessed any attempt at rape.
Teresitas testimony also included revelations from Analyn that sometime in April of 1997, Analyn was having sexual intercourse
with her boyfriend named Ryan Ramos. 22

The witnesses for the appellant denied Jimmys flight. They testified that they had seen him working in the field or in a construction,
23 watching television in Ninis house, or buying something in the store, and sometimes in the company of Analyn. 24

The defense put forward several motives for Lolita to have constrained Analyn to accuse him of rape. One was for the money that
Lolita was claiming to settle the case. After the case was filed, she wanted P10,000 to settle the case, and later, according to her
neighbor Lerma, she wanted P50,000. 25 The second was because of a land dispute over the inheritance between Lolitas father
Edilberto and Jimmys uncle Alberto. 26 The third was revenge in that Jimmys sister Lala was instrumental in putting in jail the
father of Lolitas friend Celia Manese for raping his stepdaughter. 27

After trial, the trial court rendered the decision now on review. Convinced of the overall veracity of Analyns claim, the trial court
gave no weight to the testimonies of the witnesses for the defense because of their relation to Jimmy. Reasoning that lust is not a
respecter of time and place, it found inconsequential the testimonies of the witnesses that the house where the rape was allegedly
committed was located near a store or artesian well. It could find no reason why either Analyn or her mother Lolita would fabricate a
story of rape when to do so would subject Analyn to an emotional ordeal and humiliation. On Analyns claim that Jimmy raped her for
two hours, the court attributed this to Jimmys youth and strong physical condition as a probable "sexual athlete," or else to a
condition called satyriasis, which describes excessive sexual desire.

Finding, therefore, that rape was committed and that the accused used a deadly weapon in its commission, the trial court
declared:chanrob1es virtual 1aw library

As to the penalty to be imposed, the law provides that for Statutory Rape, the penalty is Reclusion Perpetua: whereas if committed
with the use of a deadly weapon, it should be Reclusion Perpetua to Death. Inasmuch as the circumstance of using of the fan knife
which is a deadly weapon, was established, it is hereby deemed to be one that aggravated the commission of the offense.
Accordingly, Accused Jimmy V. Aquino is hereby sentenced to suffer the supreme penalty of DEATH by lethal injection.

Further, he is hereby ordered to indemnify Analyn dela Cruz the sum of P75,000.00 (in line with the case of People v. Victor, G.R.
No. 127903, July 9, 1998) and to pay moral damages of P100,000.00.

With costs against the accused.

SO ORDERED. 28

The records were elevated to us.

In his Appellants Brief, Jimmy contends that the trial court erred in (1) holding that the testimonies of the prosecution witnesses are
direct and credible, and (2) ignoring the truth and credibility of the witnesses for the defense. On the other hand, the Office of the
Solicitor General, representing the People of the Philippines, agrees with the trial court in giving full faith and credence to Analyns
narration of the facts that warranted the conviction of the accused.

In reviewing rape cases, three guiding principles must be borne in mind: (1) an accusation for rape may be made with facility, for it is
difficult to prove but more difficult for the person accused, though innocent, to disprove; (2) in view of the intrinsic nature of the
crime where two persons are involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the
evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the
evidence for the defense. 29

Taking into account the totality of the evidence presented, we cannot sustain the conviction of the appellant for the crime of rape.

The main issue in this case is whether on the day of 24 May 1996, Jimmy Aquino had carnal knowledge of Analyn de la Cruz.
Because Analyn was under 12 years old, her age takes the place of force and intimidation in vitiating her consent, and only an
evidence of carnal knowledge is necessary. 30 The presence of a deadly weapon only qualifies the offense. 31

Excluding the peripheral motives and actuations of the secondary players in this drama, we are once again tasked with the duty of
weighing the testimony of the victim as against the appellant. As a general rule the trial courts findings as to the credibility of
witnesses are entitled to great weight and should largely remain undisturbed. 32 On review, an appellate court may reverse these
findings when there appears on record some fact or circumstance of weight and influence which has been overlooked or
misinterpreted that could. affect the result of a case. 33 It is on this ground that we find that the trial court committed a reversible error
in completely disregarding all other evidence contrary to what was deemed as the irrefutable testimony of the complainant.

The trial court found Analyns demeanor while she testified to the rape as frank, straightforward, sincere, and unshaken despite the
rigid cross-examination. True, the positive testimony of a credible complainant is sufficient basis for the conviction of rape, for
jurisprudence recognizes that a victim who cries rape, more so if she is a minor, almost always says all that are needed to signify that
the crime has been committed. 34 It is also true that a woman would not make a charge of rape for reasons other than to seek justice
for what is the truth. 35 We must consider, however, a principle equally fundamental: that evidence to be worthy of credit must not
only proceed from a credible source but must, in addition, be credible in itself. 36 In this regard, the probability of the testimony of
Analyn is suspect in light of the totality of the evidence presented for and against the Appellant.

Analyn was unyielding on the point that Jimmy did the pumping motion while on top of her for two hours, from 9:00 to 11:00 a. m. of
24 May 1996. 37 Ordinarily, this improbability would be attributable to confusion or perhaps a failure to communicate her sense of
time or the sequence of events, especially when accounting for Analyns age. The trial judge, therefore, disregarded this improbability
by factoring in the probability of Jimmys sexual prowess. However, the adamancy of Analyn as to the continuity of the rape, when
confronted with the presence of children in the same cramped one-room house, as well as the declarations of the other witnesses who
saw Analyn and Jimmy at intervals during that time, creates an uncertainty as to whether a rape could have occurred during that
time.chanrob1es virtua1 1aw 1ibrary

The accused presented Antonio Clemente and Rolando Viola who testified to having seen Analyn and Jimmy between 9:00 a.m. and
10:00 a.m. watching television. They also testified as to the arrival or the presence of children in the house of Nini sometime before
10:00 a.m. until 11:00 a.m. Even Analyns mother, Lolita, claimed that her son Jonathan had seen the rape and was the first to report it
to her. Lolitas statement is hearsay, but it indicates, at the very least, Jonathans presence in Ninis house during that time. Moreover,
the statement signed by Jimmy and Lolita mentions the presence of Jonathan and other children, who laughed at Analyn after seeing
her in a state of undress. 38 Independent is the testimony of Teresita Bacuan that Analyn mentioned the appearance of Jervy Clemente
in Ninis house as the reason why Jimmy was unable to consummate the rape. It is unfortunate that none of the children could be made
to testify. Both parties show that their presence or absence would have been material. Although the statements of the children cannot
be used for being hearsay, the fact that several witnesses acknowledged their presence during the time of the rape is noteworthy.

It is also significant to note that both Barangay Councilman Ismael Julian and Barangay Tanod Rolando Viola testified that what
Analyns mother, Lolita, reported to them was that Jimmy ordered Analyn to undress or in the dialect, "pinaghubo." 39 There is
nothing in the record of such investigation that indicates that she or her mother complained of rape. The record of the investigation,
which bears the signatures of Ismael, Jimmy, and Lolita and was identified and marked as Exhibit "1" during the trial, reflects
Jimmys admission to having asked Analyn to undress. Lolita, who had finished grade six, 40 testified during her cross-examination
that she knew the contents of the record before she affixed her signature therein. 41 If what Analyn had reported to her mother was
one of rape, the latter would have been so enraged that she would not sign that document and would have, instead, insisted that the
complaint for rape be likewise reflected in the record. Moreover, it is undisputed that Analyn was present during the investigation. 42
Analyn would have also seized the opportunity to give her side that what happened was rape, not just "undressing."cralaw virtua1aw
library

Furthermore, it was only one-and-a-half years after the incident, or in November 1997, that a complaint for rape was filed by Analyn
and her mother before the MTC of San Miguel, Bulacan. We find her reasons for the delay to be unsatisfactory.

We cannot subscribe to the conclusion of the trial court that the witnesses of the appellant should be discredited or otherwise
disregarded because they are his relatives. It must be remembered that the witnesses presented were as much related to the
complainant as they were to the appellant. On the one hand, a bias in favor of the appellant does not, on its face, exist. On the other
hand, a bias against the complainant cannot be explained on the mere recognition that society treats with scorn a non-virgin who is
deflowered against her will, 43 as declared by the trial court. There was no malice or favor exhibited by any of the witnesses in favor
of the appellant or against the complainant. Neither was there an indication in the record as to any wish to discredit Analyns
character. Even the allegation that she had sexual experiences with her boyfriend at the age of 12 years was only to explain the old
healed hymenal lacerations.

In view of the consistency and credibility of the witnesses presented by the defense, who equally withstood strict scrutiny during trial,
we must give weight to the evidence for the defense and make room for the uncertainty that arises out of it. At most is what has been
admitted by the appellant that he asked Analyn to undress on 24 May 1996. Whether it was a prelude to sexual intercourse or to truly
satisfy his curiosity is debatable. Whether this event continued into the consummation of the sexual act remains uncertain.

From the consistent and credible evidence of the defense, we find that the scales have to be tipped again, if not in favor of the
appellant, then to balance the scales and to reaffirm the precept that when inculpatory facts and circumstances are capable of two or
more explanations, one consistent with innocence and the other with guilt, such evidence would not meet the test of moral certainty
and would not support a conviction. 44

However, while the appellant cannot be held guilty of the charge of rape on the ground of reasonable doubt, we find that his act of
directing Analyn to remove her lower apparel constitutes an act of lasciviousness under Article 336 of the Revised Penal Code.
Section 4, Rule 120 of the Revised Rules of Criminal Procedure authorizes, in cases of variance between the offense charged and that
proved, the conviction of an accused of the offense proved which is included in the offense charged, or of the offense charged which is
included in that which is proved. In People v. Caralipio, 45 we ruled that although an accused is charged in the information with the
crime of rape, he can be convicted of acts of lasciviousness, which is included in rape.chanrob1es virtua1 1aw 1ibrary

The elements of the crime of acts of lasciviousness are as follows:chanrob1es virtual 1aw library

1. The offender commits an act of lasciviousness or lewdness;

2. The act is done (a) by using force or intimidation, (b) when the offended party is deprived of reason or otherwise unconscious, or
(c) when the offended party is under 12 years of age; and

3. The offended party is another person of either sex. 46

These elements are present in the case at bar. From the environmental circumstance under which the act was done, lewd design can be
imputed to Jimmy. He was alone with Analyn when he ordered her to remove her drawers. He claimed that his purpose was to see her
private organ because of the alleged rumors that it (Analyns genitalia) was "beautiful and big." 47 Such act was not out of sheer
curiosity but rather out of lascivious curiosity. Notably, on cross-examination, he testified that he never tried "to peep to see the
private organs" of his sisters to confirm whether they were big and beautiful. He also acknowledged that it is "very immoral for a man
to look and stare at the private organ of a lady." 48

In any event, the appellant cannot escape liability for his act of ordering Analyn to undress for him to see her private part. Such was an
act of lewdness perpetrated against Analyn, who at the time was only 10 years and 11 months old, having been born on 23 June 1985
as evidenced by her Certificate of Live Birth. 49 For such act of lasciviousness, Article 336 of the Revised Penal Code prescribes as
penalty prision correctional, whose duration is from 6 months and day to 6 years. There being no modifying circumstances, the
penalty should be imposed in its medium period, which ranges from 2 years, 4 months, and 1 day to 4 years and 2 months of
imprisonment. Applying the Indeterminate Sentence Law, the appellant should be made to suffer an indeterminate penalty ranging
from 4 months of arresto mayor, as minimum, to 4 years of prision correctional, as maximum.

WHEREFORE, the decision of the Regional Trial Court of Malolos, Bulacan, Branch 21, in Criminal Case No. 1310-M-98 finding
appellant Jimmy Aquino guilty of the crime of rape is hereby modified. As modified, said appellant is hereby found guilty beyond
reasonable doubt of the crime of acts of lasciviousness and is sentenced to suffer an indeterminate penalty of four (4) months of
arresto mayor, as minimum, to four (4) years of prision correctional, as maximum. If he has already served that sentence, his
immediate release from custody is hereby ordered unless he is being held for other legal grounds.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio
Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.

Ynares-Santiago, J., on official leave.