Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-50905 September 23, 1982
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO JUMAWAN alias "KIKO", CESARIO JUMAWAN alias "SARIO",
MANUEL JUMAWAN alias "OWEL" and PRESENTACION JUMAWANMAGNAYE alias "ESEN" accused-appellants.
ABAD SANTOS, J.:
On the basis of a written statement made by Vicente Recepeda on July
18, 1976, and an affidavit executed by Trinidad Alcantara on July 19,
1976, a complaint for murder was filed in the Municipal Court of
Sariaya, Quezon, on July 19, 1976, by Station Commander Sisenando P.
Alcantara, Jr. against Francisco Jumawan, Cesario Jumawan, Manuel
Jumawan and Presentacion Jumawan for the death of Rodolfo Magnaye.
The affidavit of Trinidad Alcantara clearly states that her son Rodolfo
Magnaye was married to Presentacion Jumawan albeit they had been
living separately from each other. (During the trial Presentacion
admitted her marriage to Rodolfo. See t.s.n., pp. 811-812.) The Station
Commander can perhaps be excused for not accusing Presentacion of
parricide but when the case was elevated to the Court of First Instance
of Quezon where it was docketed as Criminal Case No. 1408, the
Provincial Fiscal perpetuated the mistake by filing an information for
murder against all the accused. The information reads:
The undersigned Provincial Fiscal accuses CESARIO
JUMAWAN alias 'Sario,' MANUEL JUMAWAN alias
'Owel', FRANCISCO JUMAWAN alias 'Kiko' and
PRESENTACION JUMAWAN alias 'ESEN', of the crime of
murder, defined and punished under Article 248 of the
Revised Penal Code, committed as follows:
That on or about the 19th day of June 1976, in the
Municipality of Sariaya, Province of Quezon, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a bolo (gulukan),

conspiring and confederating together and mutually

helping one another, with intent to kill and with
evident premeditation and treachery, taking advantage
of their superior strength, did then and there wilfully,
unlawfully and feloniously attack, assault and stab with
the said bolo one Rodolfo Magnaye alias 'Digo', thereby
inflicting upon the latter a stab wound on the chest,
which directly caused his death.
After a long trial and 1,211 pages of stenographic transcript, the trial
court rendered the following judgment:
Wherefore, the Court finds Cesario Jumawan,
Presentacion Jumawan-Magnaye, Manuel Jumawan,
and Francisco Jumawan guilty as principals beyond
reasonable doubt of the crime of Murder as defined
and punished under Art. 248 of the Revised Penal Code
and hereby sentences each of them to suffer a penalty
of life imprisonment and to indemnify jointly and
severally the parents of the victim in the amount of
Twenty-four Thousand (P24,000.00) Pesos.
The case is now before this Court on appeal.
The brief of the appellants gives the following:
STATEMENT OF FACTS
The Accused:
Francisco Jumawan is the father of his co-accused,
namely, Cesario Jumawan, Manuel Jumawan and
Presentacion Jumawan.
Presentacion Jumawan was married to Rodolfo
Magnaye.
Death of Rodolfo Magnaye:
As described by the lower court, '... when Rodolfo
Magnaye did not return home in (that) evening of 19
June 1976, his mother (Trinidad Alcantara) went to the
public market to look for him on the following day. She
met four (4) children who told her that they saw a man
near the water. They accompanied her to the place and
she recognized the dead man as her son Rodolfo
Magnaye. She then proceeded to the police

headquarters to report the matter. ...' (page 5,

Judgment).
For the death of Rodolfo Magnaye, the accused stand
charged of the crime of MURDER.
The People's brief, on the other hand, merely reproduces the trial
court's findings of facts as follows:
It appears from the evidence adduced during the trial
that Rodolfo Magnaye was married on 26 January 1974
to Presentacion Jumawan, one of the accused in the
above entitled criminal case. Presentacion JumawanMagnaye left the conjugal home and stayed with her
sister Sebastiana Jumawan. Rodolfo Magnaye, on the
other hand, went and stayed with his mother Trinidad
Alcantara.
The mother of Mrs. Presentacion Jumawan-Magnaye
made several attempts to secure the signature of
Rodolfo Magnaye on a document agreeing to a
separation from his wife so that both he and his wife
will be free to marry again but Rodolfo Magnaye
persisted in refusing to sign said document.
On one occasion the mother of Mrs. Presentacion
Jumawan-Magnaye even brought Rodolfo Magnaye
and his mother to the Provincial Constabulary
Command to ask for the assistance of Sgt. Mortilla to
assist her daughter in securing a separation from
Rodolfo Magnaye but they were told by Sgt. Mortilla
that it cannot be legally done.
Between 5:00 and 6:00 o'clock in the afternoon of 19
June 1976 while Trinidad Alcantara was in her house,
her son Rodolfo Magnaye was dressing up and told her
that he was going to the public market because his wife
asked him to fetch her. He asked his mother to prepare
food because they are going to talk about their lives.
He left home at about 6:00 o'clock in the evening.
At about 9:30 o'clock in the evening of 19 June 1976
one Mr. Vicente Recepeda came from the Aglipayan
fiesta in Sariaya, Quezon and after eating at the Sariling

Atin eating place he went to the former BLTB station at

Sariaya, Quezon. While he was infront of the public
market on the way to the former BLTB station he heard
the noise of pigs being butchered and being in the
business of buying pigs and chicken he went to the
direction of [the] slaughter house to inquire about the
prices of pigs and chicken.
Before reaching the slaughter house he heard the noise
(sic) of a person being attacked by three (3) persons
and a woman inside a store which was lighted. He saw
accused Francisco Jumawan holding the hands of
Rodolfo Magnaye while accused Manuel Jumawan was
behind Rodolfo Magnaye with his arm around the neck
of Rodolfo Magnaye while Cesario Jumawan was
infront of Rodolfo Magnaye with his left hand holding
the collar of Rodolfo Magnaye and in his right hand he
was holding a small pointed bolo with which he
stabbed Rodolfo Magnaye below the right nipple.
At about 11:00 o'clock in that evening a certain Mr.
Policarpio Trinidad who also came from the Aglipayan
fiesta in Sariaya, Quezon was waiting infront of a
gasoline station across the old station of the BLTB
waiting for a ride home when he saw Cesario Jumawan
and Manuel Jumawan with Rodolfo Magnaye between
them while they were crossing the national highway
towards the south to a road opposite the Emil Welding
Shop. They went on walking after crossing the highway.
At that time the head of Rodolfo Magnaye was bowed
infront while his two (2) arms were on the shoulder of
Cesario and Manuel Jumawan. Rodolfo Magnaye was
not walking.
At about 11:45 o'clock in the evening of 19 June 1976
Presentacion Jumawan-Magnaye reported to
Patrolman Marcial Baera and Patrolman Albufera that
the store of Bastiana (Sebastiana) Jumawan where she
works is threatened to be robbed by Rodolfo Magnaye.
When asked by Patrolman Baera Presentacion

Jumawan-Magnaye denied being related to Rodolfo

Magnaye. He went to investigate the reported attempt
to rob the store of Sebastiana Jumawan and he saw
one of the panels used to close the store was destroyed
but nothing appears to have been taken from the store.
Presentacion Jumawan-Magnaye and her companions
Tita Daez and Anabelle Jumawan told Patrolman
Baera that they will file charges against Rodolfo
Magnaye. Patrolman Baera entered the report of
Presentacion Jumawan-Magnaye in the police record
book.
When Rodolfo Magnaye did not return home in that
evening of 19 June 1976, his mother (Trinidad
Alcantara) went to the public market to look for him on
the following day. She met four (4) children who told
her that they saw a man near the water. They
accompanied her to the place and she recognized the
dead man as her son Rodolfo Magnaye. She then
proceeded to the police headquarters to report the
matter.
The two Patrolmen Baera and Albufera went to the
place and they saw the dead man without a shirt and
wearing black pants with white shoes. They noticed a
stab wound on the lower portion of the right breast.
The dead man was lying face up.
In the afternoon of the same day Patrolman Loreto
Galeon went to the store of Sebastiana Jumawan
located at the public market of Sariaya to follow up the
investigation of the reported attempted robbery case
against Magnaye. He asked the storekeeper for
permission to look at the wood panels which are used
to close the store. He found traces of blood in one of
the wooden panels. He reported what he saw to Sgt.
Labitigan when he returned to the police headquarters.
The following day he was ordered by the chief of police
to look again at the wooden panel with traces of blood
but he saw that the wooden panels were already

planed ('kinatam') and the traces of blood could no

longer be seen.
On 23 June 1976, Patrolman Rodrigo Cedonio was
ordered to look for Tita Daez in Barrio Mamala Sariaya,
Quezon because Tita Daez was allegedly in the store
at the time of the alleged attempted robbery and at the
time Rodolfo Magnaye was allegedly killed.
Patrolman Cedonio was informed by the mother of Tita
Daez that she had not gone to her home at barrio
Mamala. She accompanied Patrolman Cedonio in trying
to locate Tita Danez. They first went to the store of
Sebastiana Jumawan which turned out to be closed on
that day. They then went at Muntingbayan, Tayabas,
Quezon where they were able to find Tita Danez
together with Francisco Jumawan, Bienvenido
Jumawan and Rosita Abratiga.
Mr. Cesario Jumawan, one of the accused in the above
entitled criminal case and a brother-in-law of the victim,
set up the defense of alibi when he testified that
between 3:00 and 4:00 o'clock in the afternoon of 19
June 1976 he was at Barrio Sampaloc, Sariaya, Quezon
which is more or less three (3) kilometers away from
the poblacion of Sariaya, Quezon. He went home to
Barrio Pili of the same town early in the afternoon of
the following day. He did not go anywhere else since
3:00 to 4:00 o'clock in the afternoon of 19 June 1976
up to and until he returned to Barrio Pili.
Mr. Manuel Jumawan, another accused in the above
entitled criminal case who is also a brother-in-law of
the victim, likewise set up the defense of alibi when he
testified that on 19 June 1976 he was in his house at
Barrio Pili, Sariaya, Quezon which is about five (5)
kilometers from the poblacion of Sariaya, Quezon. He
went to bed at about 7:00 o'clock in the evening of 19
June 1976. He woke up at about 6:30 o'clock in the
morning.

He further claims that he suffers from an abnormality

of the left arm which he cannot raise in a normal way
and that he was suffering from said disability since
childhood when he fell from a cow continuously up to
the present.
Said accused presented a medical certificate, Exhibit 7,
issued by Dr. Concepcion dela Merced, a radiologist of
the National Orthopedic Hospital certifying to the fact
that Manuel Jumawan is negative for fracture
dislocation and that he suffers from a deformity of the
proximal and left humerous probably from a previous
fracture. There is no showing that Manuel Jumawan is
incapable of raising his left arm around the neck of
Rodolfo Magnaye whose actual height was not
established by the evidence nor was Dr. Concepcion
dela Merced presented to testify on her findings.
Presentacion Jumawan-Magnaye claims that in the
evening of 19 June 1976 she was in the store of
Sebastiana Jumawan together with Anabelle Jumawan
and Tita Daez when she heard a person who wanted
to enter the store. She shouted 'thieves'
('magnanakaw'). In response to her shouts several
people arrived and chased the person who wanted to
enter the store. She then went to the house of
Sebastiana Jumawan where hats are being made and
where her father Francisco Jumawan was staying that
night.
While she was in the house where her father was
staying, their adjoining neighbor, a certain Mateo
Diamante informed her that the person being chased
by several men was Rodolfo Magnaye. She, however,
did not talk with any of the person who chased her
husband nor does she know any of them. She then
went with her father, Francisco Jumawan, to report the
matter to the police whom they met at the Filipina
Restaurant.

While Presentacion Jumawan-Magnaye gave the name

of Rodolfo Magnaye as the suspect in the attempted
robbery, she did not reveal to the investigating
policemen that he was her husband even if she was
asked why they knew his name, neither did she inform
the police that her husband was chased by several
persons nor did she give the direction where her
husband supposedly ran.
The two policemen, Patrolmen Baera and Albufera,
actually went to the store of Sebastiana Jumawan and
after looking at the store, these two patrolmen told
Presentacion Jumawan-Magnaye that because nothing
happened they will continue the investigation on the
next day.
None of those who allegedly chased her husband that
evening was even presented as a witness.
Mr. Francisco Jumawan, who is the father of his three
(3) other co-accused, likewise set up the defense of
alibi when he testified that in the evening of 19 June
1976 at about 8:00 o'clock more or less he was alone in
the house of Sebastiana Jumawan situated near the
former garage of the BLTB in Sariaya, Quezon and that
he was awakened only when his daughter Presentacion
woke him up to ten him that someone was trying to
enter the store of Sebastiana Jumawan.
In a brief which is more noteworthy for legal rhetoric rather than a
critical analysis of the evidence, the appellants claim that the trial court
committed the following errors:
THE LOWER COURT ERRED IN NOT FOCUSING
OBJECTIVELY AND IMPARTIALLY THE EVIDENCE FOR
THE PROSECUTION EVEN AS IT FOCUSED SUBJECTIVELY
AND UNFAIRLY ON SUPPOSED WEAKNESS OF THE
EVIDENCE FOR THE DEFENSE.
THE CONSTITUTIONAL GUARANTEE THAT THE ACCUSED
ARE PRESUMED INNOCENT OF THE CRIME CHARGED
AND ARE ENTITLED TO A RIGHT TO A DAY IN COURT
CANNOT BE OVERTURNED BY THE DOCTRINE THAT

APPELLATE COURTS ARE NOT PRONE TO DISTURB THE

FINDINGS OF THE TRIAL COURT WITH RESPECT TO THE
CREDIBILITY OF WITNESSES.
THE LOWER COURT ERRED IN NOT FINDING AND
TAKING INTO SERIOUS ACCOUNT THE FATAL
WEAKNESSES OF THE EVIDENCE FOR THE
PROSECUTION IN TERMS OF IMPROBABILITIES, GROSS
INCONSISTENCIES AND IRRECONCILABLE
CONTRADICTIONS.
THE LOWER COURT ERRED IN GIVING CREDIT AND
CREDENCE TO THE TESTIMONIES OF THE STAR
PROSECUTION WITNESS CONSIDERING THE GLARING
WEAKNESS THEREOF, EVEN AS THE LOWER COURT
CONVENIENTLY DENIED THE DEFENSE REASONABLE
OPPORTUNITY OF THE PROSECUTION WITNESSES.
THE LOWER COURT ERRED IN ITS ERRONEOUS
APPROACH TO AND APPLICATION OF THE PRINCIPLES
CONCERNING THE DEFENSE OF ALIBI IN THE CASE AT
BAR. SPECIALLY IN THE LIGHT OF THE FACT THAT THERE
WAS NO POSITIVE IdENTIFICATION OF ACCUSED AND
ALSO THAT THE PROSECUTION FAILED TO EFFECTIVELY
REBUT THE DEFENSES OF ALIBI WHICH WOULD HAVE
BEEN EASY TO DO IF SUCH DEFENSES WERE REALLY
CONCOCTIONS.
The foregoing assignment of errors can be reduced to the simple
proposition whether the evidence against the accused, independent of
their alibis, has overcome the presumption of innocence in their favor
and created a moral certainty as to their guilt.
Except for Vicente Recepeda and Policarpio Trinidad, the appellants do
not question the credibility of the witnesses for the prosecution. Hence,
the testimony of these witnesses deserves scrutiny.
Vicente Recepeda was 67 years old, jobless and a resident of Lucena
City when he first testified on April 29, 1977. He testified that on June
19, 1976, he went to Sariaya, Quezon, to attend the Aglipayan fiesta; he
arrived there at about 5:00 o'clock and thereafter did the following:
listened to the music and singing, went to the Aglipayan church and the
"perya," ate at a restaurant, and walked to the public market where

there was a former BLTB station. While he was waiting for a trip to
Lucena, he heard the shriek of pigs being killed so he walked toward
the butchers for the purpose of asking the price of pigs since he was
then engaged in the business of buying and selling pigs. In fact, at one
time Rodolfo Magnaye, the deceased, tied the feet of a pig which he
had bought. He was not able to talk to the butchers because an unusual
event intervened which in his own words was:
Q. At about 9:30 o'clock in the evening
of June 19, 1976, do you remember
where were you?
A. Yes sir.
Q. Where were you on that particular
date and hour?
A. I was in the public market of Sariaya,
Quezon, sir.
Q. While you were in the market of
Sariaya, Quezon, on that particular
date and hour, do you remember if
there was any unusual incident that
you witnessed?
A. There was, sir.
Q. What was that unusual incident that
happened on that particular place and
hour?
A. I saw a person being attacked by
three persons, sir.
Q. What else did you see there on that
particular occasion, aside from a
person being attacked by three persons?
A. There was a woman who ordered
the three persons to stab and kill the
person being attacked by these three
persons, sir.
Q. Where in particular in the public
market of Sariaya, Quezon did you see
this incident happen?

A. Inside the store within the public

market of Sariaya, Quezon, sir.
Q. Did you recognize, or did you come
to know these three persons whom
you said were inside the store within
the public market of Sariaya, Quezon at
about 9:30 o'clock in the evening of
June 19, 1976?
A. I recognize their faces, sir.
Q. Did you come to know their names
later on?
A. Yes sir.
Q. What is the name of the woman
whom you said was there on that
particular occasion?
A. Presentacion Jumawan, sir.
Q. If you will see that Presentacion
Jumawan again, will you be able to
Identify her?
A. Yes, sir.
Q. Will you please look around the
courtroom and point to Presentacion
Jumawan if she is here.
A. She is here sir.
Q. Please point her out to this
Honorable Court.
A. That one sir.
ATTY. ALCALA:
May we respectfully ask if your honor please that the
person pointed to by the witness Identify herself.
COURT:
Ask the person to Identify herself.
INTERPRETER:
What is your name?
A. Presentacion Jumawan.
INTERPRETER:

The person pointed to by the witness

your honor, Identified herself as
Presentacion Jumawan.
ATTY. ALCALA:
And what is the name of the person
whom you said was being attacked by
the three men on that particular
occasion inside the store?
A. Rodolfo Magnaye, sir.
Q. And what are the names of the
three persons attacking Rodolfo
Magnaye, will you please state it
before this Honorable Court?
A. Yes, sir, one is Francisco Jumawan,
Manuel Jumawan and the other one is
Cesario Jumawan.
Q. That Francisco Jumawan whom you
said was one of the persons attacking
Rodolfo Magnaye, on that particular
occasion, will you be able to recognize
him if you will see him again?
A. Yes, sir.
Q. If this Francisco Jumawan is inside
the courtroom, will you please point
him out before this Honorable Court?
A. Yes, sir.
Q. Please do so.
A. That one sir.
ATTY. ALCALA:
Your honor please may we ask that the
person pointed to by the witness
Identify himself.
COURT:
Ask the Identity of the person pointed
to by the witness.
INTERPRETER:
What is your name?

A. Francisco Jumawan.
INTERPRETER:
The person pointed to by the witness
your honor Identify himself as
Francisco Jumawan.
Q. And that person whom you said the
name as Manuel Jumawan will you be
able to recognize him if you will see
him again?
A. Yes, sir.
Q. Please look around the courtroom
and point out to this Honorable Court if
Manuel Jumawan is here inside the
courtroom.
A. Yes, sir, that one.
ATTY. ALCALA:
May we ask Your Honor that the
person pointed to by the witness be
made to Identify himself.
COURT:
Ask the person pointed to by the
witness to Identify himself.
INTERPRETER:
What is your name?
A. Manuel Jumawan.
INTERPRETER:
The person pointed to by the witness
Your Honor Identified himself as
Manuel Jumawan.
Q. And that person whom you
mentioned is named Cesario Jumawan,
will you be able to Identify him if you
will him again?
A. Yes, sir.
Q. Please look around the courtroom
and point to this Honorable Court the

person whom you said is Cesario

Jumawan.
That one sir.
ATTY. ALCALA:
May we request your honor that the
person pointed to by the witness
Identify himself.
COURT:
Ask the person pointed to by the
witness to Identify himself.
INTERPRETER:
What is your name?
A. Cesario Jumawan.
INTERPRETER:
The person pointed to by the witness
Identify himself as Cesario Jumawan
Your Honor.
Q. On that occasion what was Francisco
Jumawan doing at that time you saw
him?
A. He was standing besides Rodolfo
Magnaye and holding his hands.
Q. Who was holding his hands?
A. Francisco Jumawan was holding the
hands of Rodolfo Magnaye, sir.
Q. How about Manuel Jumawan, what
was he doing?
A. Manuel Jumawan was at the back of
Rodolfo Magnaye with his arm around
the neck of Rodolfo Magnaye, sir.
Q. How about Cesario Jumawan what
was he doing on that particular
occasion?
A. He was in front of Rodolfo Magnaye,
his left hand is holding the collar of

Rodolfo Magnaye and his right hand

holding a bolo, sir.
Q. How about Presentacion Jumawan,
what was she doing on that particular
occasion?
A. She was standing inside the store
ordering the three persons to stab and
kill Rodolfo Magnaye, sir.
Q. What happened when Presentacion
Jumawan give that order?
A. Rodolfo Magnaye was stabbed, sir.
Q. Who stabbed Rodolfo Magnaye on
that occasion?
A. Cesario Jumawan, sir.
Q. At that time that Cesario Jumawan
stabbed Rodolfo Magnaye on that
particular occasion, what were
Francisco Jumawan and Manuel
Jumawan doing.?
A. Francisco Jumawan was holding the
hands of Rodolfo Magnaye with his
arms around the neck of Rodolfo
Magnaye, sir.
Q. What happened to Rodolfo
Magnaye when he was stabbed by
Cesario Jumawan on that occasion?
A. He was hit by the stab, sir.
Q. Where was Rodolfo Magnaye hit by
the stab of Cesario Jumawan on that
occasion?
A. Under the right nipple, sir. Below the
right nipple.
Q. What did Rodolfo Magnaye do on
that particular occasion after he was hit?
A. He said, why did you stab me.
Q. What did you do after that?
A. I left, sir.

Q. While you were walking away did

you hear anything?
.A. Yes, sir.
Q. What did you hear?
A. A voice of a woman shouting, thief,
thief.
Q. What did you do when you heard
the shout of a woman?
A. I hurriedly walked away, sir.
Q. Did you finally came to know what
happened to Rodolfo Magnaye as a
result of that incident?
A. Yes, sir.
Q. What happened to him?
A. He died, sir. (t.s.n., pp. 494-509.)
Policarpio Trinidad was 28 years old and a laborer at the time he first
testified on June 27, 1977. He testified that he knew Manuel Jumawan,
Cesario Jumawan and Rodolfo Magnaye; that on June 19, 1976, at
about 11:00 p.m., he was in Sariaya, Quezon, near the old station of the
BLTB; and on that occasion he saw the aforesaid persons thus:
Q. Will you please describe before this
Honorable Court their position when
you saw them?
A. Their hands were on the shoulders
of each other.
Q. And who was in the middle?
A. Rodolfo Magnaye, sir.
Q. Will you please tell this Honorable
Court the appearance of Rodolfo
Magnaye when you saw him being in
the middle of Cesario Jumawan and
Manuel Jumawan on that occasion?
A. His head falls and his two hands
were on the shoulder of Cesario
Jumawan and Manuel Jumawan.

Q. Did you see where these persons

were going on that particular occasion
when you said you saw them?
ATTY. CUARTOY
Objection Your Honor, that has already
been answered, that they are going out
of the old BLTB station.
COURT:
Witness may answer.
A. They cross the highway, sir.
Q. In what particular place did they go
when they cross the highway?
A.. They went to the road opposite the
Emil Welding Shop, sir.
Q. Did you see on that particular
occasion whether Rodolfo Magnaye
was walking?
A. He was not walking and he cannot
step his feet, sir.
Q. When they went to that place, near
the Emil Welding Shop, did they go any
further?
A. They proceeded walking, sir.
Q. Where did you go upon seeing them?
A. I went directly to my house, sir.
(t.s.n., pp. 628-631.)
The testimony of Vicente Recepeda linked to that of Trinidad Alcantara
and Policarpio Trinidad shows that the four appellants conspired and
cooperated in the assassination of Rodolfo Magnaye.
The victim and his wife had a rendezvous in the evening of June 19,
1976, in order to discuss the fate of their marriage. While it is not
known if they actually conversed, the purpose of the rendezvous was in
fact accomplished; the marriage was terminated by the murder of the
husband.
The report to the police by Presentacion that Rodolfo Magnaye had
attempted to rob the store of Sebastiana Jumawan was a crude

diversionary tactic to enable Cesario and Manuel to transfer the

cadaver to another place.
The alibis of Francisco, Cesario and Manuela are for naught.
Francisco claimed that in the evening of June 19, 1976, he was in the
house of Sebastiana Jumawan, not in her store. Cesario said that while
his residence was Barrio Pili, Sariaya, on the night of June 19, 1976, he
and his wife were in Barrio Sampaloc, Sariaya, visiting his brother
Benigno Jumawan and they did not return to Pili until the next day.
Manuel said that on the night of June 19, 1976, he was in his house at
Barrio Pili.
These alibi cannot prevail for the following reasons: (a) Francisco,
Cesario and Manuel were positively Identified to be at the scene of the
crime by Vicente Recepeda and Cesario and Manuel were similarly
Identified by Policarpio Trinidad; and (b) the places where they claimed
to be were not far from the scene of the crimeso that it was not
impossible fro them to be there. Sebastiana Jumawan's house where
Francisco was supposed to be is within walking distance from the
former's store. Barrio Sampaloc, where Cesario claimed he was, is only
about three kilometers from the poblacion of Sariaya. Barrio Pili, where
Manuel said he slept that night, is about five kilometers from the
same poblacion.
Presentacion should have been accused of parricide but as it is, since
her relationship to the deceased is not alleged in the information, she,
like the others, can be convicted of murder only qualified by abuse of
superior strength.
Although not alleged in the information, relationship as an aggravating
circumstance should be assigned against the appellants. True,
relationship is inherent in parricide, but Presentacion stands convicted
of murder. And as to the others, the relationships of father-in-law and
brother-in-law aggravate the crime. (Aquino, Penal Code, Vol. I. p. 406
[1976].)
The penalty for murder with an aggravating circumstances is death.
However, for lack of necessary votes, the penalty is reduced
to reclusion perpetua.
WHEREFORE, the jugment of the court a quo is hereby affirmed in toto.
No costs.
SO ORDERED.

Fernando, C.J., Teehankee, Barredo, Makasiar, Aquino, Concepcion, Jr.,

Guerrero, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez, Relova
and Gutierrez, Jr., JJ., concur.

10

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-47941 April 30, 1985
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JAIME TOMOTORGO y ALARCON, defendant-appellant.
ALAMPAY, J.:
Jaime Tomotorgo y Alarcon, the accused-appellant in this case, appeals
from the decision rendered on December 22, 1977, by the Court of First
Instance of Camarines Sur, Branch IV, in Criminal Case No. 403 of said
court finding him guilty of the crime of parricide for having killed his
wife Magdalena de los Santos. The dispositive portion of said judgment
reads, as follows:
WHEREFORE, in view of the foregoing considerations,
the accused Jaime Tomotorgo y Alarcon is hereby
condemned to suffer the penalty of reclusion
perpetua and to indemnify the heirs of the deceased
Magdalena delos Santos in the sum of P12,000.00
without subsidiary imprisonment, plus costs. And
considering the circumstances under which the offense
was committed, the court hereby recommends
executive clemency for him, after serving the minimum
of the medium penalty of prision mayor.
Let copy of this decision be furnished, his Excellency,
the President of the Philippines, and the Chairman of
the Board of Pardons and Parole.
SO ORDERED.
Given at Naga City, this 22nd day of December, 1977.
SGD. ALFREDO S. REBUENA
Judge (Rollo, pg. 10)
The facts of this case as recited in the decision of the trial court and in
the appellee's brief stand uncontroverted and undisputed. From the
evidence submitted it is disclosed that the victim, Magdalena de los

Santos, was the wife of the herein accused. Several months prior to the
occurrence of the fatal incident on June 23, 1977, Magdalena de los
Santos had been persistently asking her husband to sell the conjugal
home which was then located at Sitio Dinalungan, Barangay Cabugao,
Municipality of Siruma, Camarines Sur. She wanted their family to
transfer to the house of her husband's in-laws which is in the town of
Tinambac, Camarines Sur. (TSN, pp. 6-10, December 13, 1977). Accused
Tomotorgo would not accede to his wife's request. He did not like to
abandon the house wherein he and his wife were then living.
Furthermore, he had no inclination to leave because he has many
plants and improvements on the land which he was then farming in
said municipality of Siruma, Camarines Sur, a town very far from the
place of his in-laws where his wife desired their family to transfer to.
On June 23, 1977, at about seven o'clock in the morning, the accused
left his home to work on his farm Upon his return at about nine o'clock
that same morning. He found his wife and his three-month old baby
already gone. He proceeded to look for both of them and sometime
later on, on a trail about two hundred (200) meters from their home,
he finally saw his wife carrying his infant son and bringing a bundle of
clothes. He asked and pleaded with his wife that she should return
home with their child but she adamantly refused to do so. When
appellant sought to take the child from his wife, the latter threw the
baby on the grassy portion of the trail hereby causing the latter to cry.
This conduct of his wife aroused the ire of the herein accused. Incensed
with wrath and his anger beyond control, appellant picked lip a piece of
wood nearby and started hitting his wife with it until she fell to the
ground complaining of severe pains on her chest. Realizing what he had
done, the accused picked his wife in his arms and brought her to their
home. He then returned to the place where the child was thrown and
he likewise took this infant home. Soon thereafter, Magdalena de los
Santos died despite the efforts of her husband to alleviate her pains.
After the accused changed the dress of his wife, he reported the tragic
incident to the Barangay Captain of their place who brought him to
Policeman Arellosa to whom the accused surrendered. He also brought
with him the piece of wood he used in beating his wife.
Charged with the crime of parricide, the accused at his arraignment on
November 24, 1977, with assistance from his counsel de-oficio, pleaded

11

not guilty to the said offense. However, when his case was called for
trial on December 13, 1977, his counsel manifested to the court that
after his conference with the accused, the latter expressed a desire to
change his previous plea of not guilty to that of guilty. Accordingly, and
upon motion by the counsel of the accused and without objection on
the part of the prosecution, the trial court allowed the accused to
withdraw his original plea. Upon being re-arraigned, the accused
entered a plea of guilty. He confirmed the manifestations made by his
counsel to the court regarding his desire to change his initial plea. He
expressed his realization of the gravity of the offense charged against
him and the consequences of his plea. His counsel was then permitted
by the court to establish the mitigating circumstances which were then
invoked in favor of the accused.
After the accused had testified and upon his plea given in open court,
the court below found him guilty of the crime of parricide, but with
three mitigating circumstances in his favor, namely: voluntary
surrender, plea of guilty, and that he acted upon an impulse so
powerful as naturally to have produced passion and obfuscation.
With the imposition by the court below of the penalty of reclusion
perpetua on the herein accused and the subsequent denial of his
motion for reconsideration of the judgment rendered against him, the
accused through his counsel filed a notice of appeal to this Court.
In his appeal, accused argues and contends that the lower court erred:
1. In disregarding its own findings of fact which showed
manifest lack of intent to kill;
2. In disregarding the provisions of Article 49 of the
Revised Penal Code which prescribes the proper
applicable penalty where the crime committed is
different from that intended;
3. In not following the mandatory sequence of
procedures for determining the correct applicable
penalty;
4. In denying the appellant the benefits of the
Indeterminate Sentence Law. (Appellant's Brief, pg. 1,
pars. 1-4)
We find no merit in the appeal of the accused herein which assails only
the correctness of the penalty imposed by the trial court on him.

Appellant submits that the penalty for the felony committed by him
which is parricide being higher than that for the offense which he
intended to commit, and which he avers to be that of physical injuries
only, the provisions of Article 49 of the Revised Penal Code which relate
to the application of penalties should have been observed and followed
by the trial court. The said provision of law which accused invokes
provides that:
ART. 49. Penalty to be imposed upon the principals
when the crime committed is different from that
intended in cases in which the felony committed is
different from that which the offender intended to
commit, the following rules shag be observed;
1. If the penalty prescribed for the felony committed be
higher than that corresponding to the offense which
the accused intended to commit, the penalty
corresponding to the latter shall be imposed in its
maximum period.
xxx xxx xxx
Continuing, appellant argues in his appeal brief submitted to this Court,
that:
xxx xxx xxx
The felony actually committed, parricide. has a higher
penalty (reclusion perpetua to death) than the felony
intended, qualified physical injuries (reclusion temporal
medium and maximum). Hence, since the penalty
corresponding to the felony intended shall be imposed
in its maximum period, the prescribed penalty is
therefore reclusion temporal maximum. This is a
divisible penalty.
Under Article 64, sub-par. 5, of the Penal Code,
When there are two or more mitigating circumstances
and no aggravating circumstances are present, the
court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem
applicable, according to the number and nature of such
circumstances.

12

The trial court itself found "that the accused is entitled

to three (3) mitigating circumstances with no
aggravating circumstances, namely: voluntary
surrender, plea of guilty, and obfuscation. We submit
that the plea of guilty, which, as we had shown earlier,
was improvidently made, should no longer be
considered. This leaves only two mitigating with no
aggravating. Sufficient compliance with the law. Hence,
an automatic lowering of the penalty by one degree, or
to reclusion temporal medium This being a case where
a period constitutes the entire range of the penalty
prescribed, and therefore, also a degree. (Appellant's
Brief, pp. 8-9)
Appellant maintains the belief that he should be punished only for the
offense he intended to commit which he avers to be serious physical
injuries, qualified by the fact that the offended party is his spouse.
Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the Revised
Penal Code and as his wife is among the persons mentioned in Art. 246
of the same code, appellant contends that the penalty imposable
should then be reclusion temporal in its medium and maximum periods.
On this mistaken premise, appellant therefore claims that the penalty
prescribed by law for his offense is divisible and he should thus be
entitled to the benefits of the Indeterminate Sentence Law.
These contentions of the accused are manifestly untenable and
incorrect. Article 4 of the Revised Penal Code expressly states that
criminal liability shall be incurred by any person committing a felony
(delito) although the wrongful act be different from that which he
intended and that the accused is liable for all the consequences of his
felonious acts.
The reference made by the accused to Article 263 of the Revised Penal
Code which prescribes graduated penalties for the corresponding
physical injuries committed is entirely misplaced and irrelevant
considering that in this case the victim died very soon after she was
assaulted. It will be, therefore, illogical to consider appellant's acts as
falling within the scope of Article 263 of the Revised Penal Code. The
crime committed is parricide no less.

We are in complete accord with and we sustain the ruling made by the
courts below that the accused is not entitled to the benefits of the
Indeterminate Sentence Law. The court sustains the submissions of the
appellee that
... Article 49 of the Revised Penal Code does not apply
to cases where more serious consequences not
intended by the offender result from his felonious act
because, under Article 4, par. I of the same Code, he is
liable for all the direct and natural consequences of his
unlawful act. His lack of intention to commit so grave a
wrong is, at best mitigating (Article 13, par. 3).
Article 49 applies only to cases where the crime
committed is different from that intended and where
the felony committed befalls a different person (People
vs. Albuquerque, 59 Phil. 150).
Article 246 of the Revised Penal Code punished
parricade with the penalty of reclusion perpetua to
death, which are two indivisible penalties. As the
commission of the act was attended by mitigitating
circumstances with no aggravating circumstances, the
lesser penalty, which is reclusion perpetua, should be
imposed (People vs. Laureano, et al., 71 Phil. 530;
People vs. Francisco, 78 Phil. 697; People vs. Belarmino,
91 Phil. 118) Appellee's Brief, pp. 6-7). (Emphasis
supplied)
We hold that the fact that the appellant intended to maltreat the victim
only or inflict physical imjuries does not exempt him from liability for
the resulting and more serious crime committed. In the case of People
vs. Climaco Demiar, 108 Phil. 651, where the accused therein had
choked his mother in a fit of anger because the latter did not prepare
any food for him, it was ruled that hte crime committed by Demiar is
parricide (Article 246, Revised Penal Code), the deceased victim of his
criminal act being his legitimate mother. Said crime was declared as
punishable with reclusion perpetua to death. As the mitigating
circumstance of alck of intent to commit so grave a wrong. (Article 13
(3 Id.) The penalty imposed on the herein accused is therefore correct
in the light of the relevant provisions of law and jurisprudence.

13

The trial court in its consideration of this case had added a

recommendation that "executive clemency be extended to the
accused-appellant after his service of the minimum of the medium
penalty of prison mayor." The Solicitor General likewise concludes and
prays in the People's Brief that in view of the circumstances which
attended the commission of the offense, a recommendation for the
commutation of the penalty would be appropriate. (Appellee's Brief, pg.
7). This Court is constrained to take note that the accused-appellant is
said to have been in detention since June 23, 1977 or for more than
seven years already. This Court can do no less than express its hope
that hte accused-appellant can be now extended an absolute or
conditional pardon by the President of the Republic of the Philippines
or that there be a commutation of his sentence so that he may qualify
and be eligible for parole.
WHEREFORE, the appealed judgment is hereby affirmed without any
pronouncement as to costs.
Considering the circumstances which attended the commission of the
offense, the manifest repentant attitude of the accused and his
remorse for his act which even the trial court made particular mention
of in its decision and the recommendation made by the Office of the
Solicitor General as well as number of years that the accused-appellant
had been imprisoned, this Court can do no less than recommend that
executive clemency be extended to the accused-appellant, Jaime
Tomotorgo y Alarcon, or that his sentence be commuted so that he can
now qualify and be considered eligible for parole. This recommendation
of the Court should be promptly brought to the attention of the
President of the Republic of the Philippines by the proper authorities in
whose custody the herein accused has been placed.
Aside from this, let copy of this decision be furnished the Office of the
President of the Republic of the Philippines and the Chairman of the
Board of Pardons and Parole.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, Gutierrez, Jr.
and De la Fuente, JJ., concur.

14

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 74433 September 14, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO ABARCA, accused-appellant.
SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial Court of Palo,
Leyte, sentencing the accused-appellant Francisco Abarca to death for
the complex crime of murder with double frustrated murder.
The case was elevated to this Court in view of the death sentence
imposed. With the approval of the new Constitution, abolishing the
penalty of death and commuting all existing death sentences to life
imprisonment, we required the accused-appellant to inform us whether
or not he wished to pursue the case as an appealed case. In compliance
therewith, he filed a statement informing us that he wished to continue
with the case by way of an appeal.
The information (amended) in this case reads as follows:
xxx xxx xxx
The undersigned City Fiscal of the City of Tacloban
accuses Francisco Abarca of the crime of Murder with
Double Frustrated Murder, committed as follows:
That on or about the 15th day of July, 1984, in the City
of Tacloban, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with
deliberate intent to kill and with evident premeditation,
and with treachery, armed with an unlicensed firearm
(armalite), M-16 rifle, did then and there wilfully,
unlawfully and feloniously attack and shot several
times KHINGSLEY PAUL KOH on the different parts of
his body, thereby inflicting upon said KHINGSLEY PAUL
KOH gunshot wounds which caused his instantaneous
death and as a consequence of which also caused
gunshot wounds to LINA AMPARADO and ARNOLD

AMPARADO on the different parts of their bodies

thereby inflicting gunshot wounds which otherwise
would have caused the death of said Lina Amparado
and Arnold Amparado, thus performing all the acts of
execution which should have produced the crimes of
murders as a consequence, but nevertheless did not
produce it by reason of causes independent of his will,
that is by the timely and able medical assistance
rendered to Lina Amparado and Arnold Amparado
which prevented their death. 1
xxx xxx xxx
On arraignment, the accused-appellant pleaded not guilty. The Solicitor
General states accurately the facts as follows:
Khingsley Paul Koh and the wife of accused Francisco
Abarca, Jenny, had illicit relationship. The illicit
relationship apparently began while the accused was in
Manila reviewing for the 1983 Bar examinations. His
wife was left behind in their residence in Tacloban,
Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984).
On July 15, 1984, the accused was in his residence in
Tacloban, Leyte. On the morning of that date he went
to the bus station to go to Dolores, Eastern Samar, to
fetch his daughter. However, he was not able to catch
the first trip (in the morning). He went back to the
station in the afternoon to take the 2:00 o'clock trip but
the bus had engine trouble and could not leave (pp. 5-8,
tsn, Nov. 28, 1985). The accused, then proceeded to
the residence of his father after which he went home.
He arrived at his residence at the V & G Subdivision in
Tacloban City at around 6:00 o'clock in the afternoon
(pp. 8-9, tsn, Id.).
Upon reaching home, the accused found his wife, Jenny,
and Khingsley Koh in the act of sexual intercourse.
When the wife and Koh noticed the accused, the wife
pushed her paramour who got his revolver. The
accused who was then peeping above the built-in

15

cabinet in their room jumped and ran away (pp. 9-13,

tsn, Id.).
The accused went to look for a firearm at Tacloban City.
He went to the house of a PC soldier, C2C Arturo Talbo,
arriving there at around 6:30 p.m. He got Talbo's
firearm, an M-16 rifle, and went back to his house at V
& G Subdivision. He was not able to find his wife and
Koh there. He proceeded to the "mahjong session" as it
was the "hangout" of Kingsley Koh. The accused found
Koh playing mahjong. He fired at Kingsley Koh three
times with his rifle (pp. 13-19, tsn, Id.). Koh was hit.
Arnold and Lina Amparado who were occupying a room
adjacent to the room where Koh was playing mahjong
were also hit by the shots fired by the accused (pp. 3449, tsn, Sept. 24, 1984). Kingsley Koh died
instantaneously of cardiorespiratory arrest due to
shock and hemorrhage as a result of multiple gunshot
wounds on the head, trunk and abdomen (pp. 28-29,
tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado
was hospitalized and operated on in the kidney to
remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also
exh. C). His wife, Lina Amparado, was also treated in
the hospital as she was hit by bullet fragments (p. 23,
tsn, Id.). Arnold Amparado who received a salary of
nearly P1,000.00 a month was not able to work for 11/2 months because of his wounds. He spent
P15,000.00 for medical expenses while his wife spent
Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2
On March 17, 1986, the trial court rendered the appealed judgment,
the dispositive portion whereof reads as follows:
xxx xxx xxx
WHEREFORE, finding the accused, Francisco Abarca
guilty beyond reasonable doubt of the complex crime
of murder with double frustrated murder as charged in
the amended information, and pursuant to Art. 63 of
the Revised Penal Code which does not consider the
effect of mitigating or aggravating circumstances when

the law prescribes a single indivisible penalty in relation

to Art. 48, he is hereby sentenced to death, to
indemnify the heirs of Khingsley Paul Koh in the sum of
P30,000, complainant spouses Arnold and Lina
Amparado in the sum of Twenty Thousand Pesos
(P20,000.00), without subsidiary imprisonment in case
of insolvency, and to pay the costs.
It appears from the evidence that the deceased
Khingsley Paul Koh and defendant's wife had illicit
relationship while he was away in Manila; that the
accused had been deceived, betrayed, disgraced and
ruined by his wife's infidelity which disturbed his
reasoning faculties and deprived him of the capacity to
reflect upon his acts. Considering all these
circumstances this court believes the accused Francisco
Abarca is deserving of executive clemency, not of full
pardon but of a substantial if not a radical reduction or
commutation of his death sentence.
Let a copy of this decision be furnished her Excellency,
the President of the Philippines, thru the Ministry of
Justice, Manila.
SO ORDERED. 3
xxx xxx xxx
The accused-appellant assigns the following errors committed by the
court a quo:
I.
IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD
OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF
THE REVISED PENAL CODE;
II.
IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING
CIRCUMSTANCE OF TREACHERY. 4
The Solicitor General recommends that we apply Article 247 of the
Revised Penal Code defining death inflicted under exceptional
circumstances, complexed with double frustrated murder. Article 247
reads in full:

16

ART. 247. Death or physical injuries inflicted under

exceptional circumstances. Any legally married
person who, having surprised his spouse in the act of
committing sexual intercourse with another person,
shall kill any of them or both of them in the act or
immediately thereafter, or shall inflict upon them any
serious physical injury, shall suffer the penalty
of destierro.
If he shall inflict upon them physical injuries of any
other kind, he shall be exempt from punishment.
These rules shall be applicable, under the same
circumstances, to parents with respect to their
daughters under eighteen years of age, and their
seducers, while the daughters are living with their
parents.
Any person who shall promote or facilitate prostitution
of his wife or daughter, or shall otherwise have
consented to the infidelity of the other spouse shall not
be entitled to the benefits of this article.
We agree with the Solicitor General that the aforequoted provision
applies in the instant case. There is no question that the accused
surprised his wife and her paramour, the victim in this case, in the act
of illicit copulation, as a result of which, he went out to kill the
deceased in a fit of passionate outburst. Article 247 prescribes the
following elements: (1) that a legally married person surprises his
spouse in the act of committing sexual intercourse with another person;
and (2) that he kills any of them or both of them in the act or
immediately thereafter. These elements are present in this case. The
trial court, in convicting the accused-appellant of murder, therefore
erred.
Though quite a length of time, about one hour, had passed between
the time the accused-appellant discovered his wife having sexual
intercourse with the victim and the time the latter was actually shot,
the shooting must be understood to be the continuation of the pursuit
of the victim by the accused-appellant. The Revised Penal Code, in
requiring that the accused "shall kill any of them or both of them . . .
immediately" after surprising his spouse in the act of intercourse, does

not say that he should commit the killing instantly thereafter. It only
requires that the death caused be the proximate result of the outrage
overwhelming the accused after chancing upon his spouse in the basest
act of infidelity. But the killing should have been actually motivated by
the same blind impulse, and must not have been influenced by external
factors. The killing must be the direct by-product of the accused's rage.
It must be stressed furthermore that Article 247, supra, does not define
an offense. 5 In People v. Araque, 6 we said:
xxx xxx xxx
As may readily be seen from its provisions and its place
in the Code, the above-quoted article, far from defining
a felony, merely provides or grants a privilege or
benefit amounting practically to an exemption from
an adequate punishment to a legally married person
or parent who shall surprise his spouse or daughter in
the act of committing sexual intercourse with another,
and shall kill any or both of them in the act or
immediately thereafter, or shall inflict upon them any
serious physical injury. Thus, in case of death or serious
physical injuries, considering the enormous
provocation and his righteous indignation, the
accused who would otherwise be criminally liable for
the crime of homicide, parricide, murder, or serious
physical injury, as the case may be is punished only
with destierro. This penalty is mere banishment and, as
held in a case, is intended more for the protection of
the accused than a punishment. (People vs. Coricor, 79
Phil., 672.) And where physical injuries other than
serious are inflicted, the offender is exempted from
punishment. In effect, therefore, Article 247, or the
exceptional circumstances mentioned therein, amount
to an exempting circumstance, for even where death or
serious physical injuries is inflicted, the penalty is so
greatly lowered as to result to no punishment at all. A
different interpretation, i.e., that it defines and
penalizes a distinct crime, would make the exceptional
circumstances which practically exempt the accused

17

from criminal liability integral elements of the offense,

and thereby compel the prosecuting officer to plead,
and, incidentally, admit them, in the information. Such
an interpretation would be illogical if not absurd, since
a mitigating and much less an exempting circumstance
cannot be an integral element of the crime charged.
Only "acts or omissons . . . constituting the offense"
should be pleaded in a complaint or information, and a
circumstance which mitigates criminal liability or
exempts the accused therefrom, not being an essential
element of the offense charged-but a matter of
defense that must be proved to the satisfaction of the
court-need not be pleaded. (Sec. 5, Rule 106, Rules of
Court; U.S. vs. Campo, 23 Phil., 368.)
That the article in question defines no crime is made
more manifest when we consider that its counterpart
in the old Penal Code (Article 423) was found under the
General Provisions (Chapter VIII) of Title VIII covering
crimes against persons. There can, we think, hardly be
any dispute that as part of the general provisions, it
could not have possibly provided for a distinct and
separate crime.
xxx xxx xxx
We, therefore, conclude that Article 247 of the Revised
Penal Code does not define and provide for a specific
crime, but grants a privilege or benefit to the accused
for the killing of another or the infliction of serious
physical injuries under the circumstances therein
mentioned. ... 7
xxx xxx xxx
Punishment, consequently, is not inflicted upon the accused. He is
banished, but that is intended for his protection. 8
It shall likewise be noted that inflicting death under exceptional
circumstances, not being a punishable act, cannot be qualified by either
aggravating or mitigating or other qualifying circumstances, We cannot
accordingly appreciate treachery in this case.

The next question refers to the liability of the accused-appellant for the
physical injuries suffered by Lina Amparado and Arnold Amparado who
were caught in the crossfire as the accused-appellant shot the victim.
The Solicitor General recommends a finding of double frustrated
murder against the accused-appellant, and being the more severe
offense, proposes the imposition of reclusion temporal in its maximum
period pursuant to Article 48 of the Revised Penal Code. This is where
we disagree. The accused-appellant did not have the intent to kill the
Amparado couple. Although as a rule, one committing an offense is
liable for all the consequences of his act, that rule presupposes that the
act done amounts to a felony. 9
But the case at bar requires distinctions. Here, the accused-appellant
was not committing murder when he discharged his rifle upon the
deceased. Inflicting death under exceptional circumstances is not
murder. We cannot therefore hold the appellant liable for frustrated
murder for the injuries suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally free
from any responsibility. Granting the fact that he was not performing
an illegal act when he fired shots at the victim, he cannot be said to be
entirely without fault. While it appears that before firing at the
deceased, he uttered warning words ("an waray labot
kagawas,") 10 that is not enough a precaution to absolve him for the
injuries sustained by the Amparados. We nonetheless find negligence
on his part. Accordingly, we hold him liable under the first part, second
paragraph, of Article 365, that is, less serious physical injuries through
simple imprudence or negligence. (The records show that Arnold
Amparado was incapacitated for one and one-half months; 11 there is
no showing, with respect to Lina Amparado, as to the extent of her
injuries. We presume that she was placed in confinement for only ten
to fourteen days based on the medical certificate estimating her
recovery period.) 12
For the separate injuries suffered by the Amparado spouses, we
therefore impose upon the accused-appellantarresto mayor (in its
medium and maximum periods) in its maximum period, arresto to
being the graver penalty (than destierro). 13
WHEREFORE, the decision appealed from is hereby MODIFIED. The
accused-appellant is sentenced to four months and 21 days to six

18

months of arresto mayor. The period within which he has been in

confinement shall be credited in the service of these penalties. He is
furthermore ordered to indemnify Arnold and Lina Amparado in the
sum of P16,000.00 as and for hospitalization expense and the sum of
P1,500.00 as and for Arnold Amparado's loss of earning capacity. No
special pronouncement as to costs.
IT IS SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras, and Padilla JJ., concur.

19

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-32103 September 28, 1984
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSE BUENSUCESO, RODOLFO AGUILAR, CONRADO IZON and ERNESTO
JOSON, defendants-appellants.
MELENCIO-HERRERA, J.:
This is an appeal from the Decision of the then Court of First Instance of
Bataan, sitting in Balanga, in Criminal Case No. 6182, convicting Jose
BUENSUCESO, Rodolfo AGUILAR, Conrado IZON and Ernesto JOSON, all
members of the police force of Dinalupihan, Bataan, of Murder, and
sentencing "said accused each to suffer the penalty ofRECLUSION
PERPETUA; to jointly and severally indemnify the heirs of the deceased
Pariseo Tayag in the amount of P12,000.00; and each to pay the
proportionate costs." 1
The Information filed against said four accused together with two other
policeman, Eduardo MALLARI and Fidel DE LA CRUZ, charged them with
Murder as follows:
That on April 21, 1967 at about 5:00 o'clock in the
afternoon at Dinalupihan, Bataan, Philippines, and
within the jurisdiction of this Honorable Court, the
abovenamed accused by conspiring, confederating and
helping one another, with intent to kill, treachery and
by taking advantage of their official positions and
superior strength, using their service revolvers did then
and there willfully, unlawfully and feloniously shoot
one PARESEO TAYAG Y ANGELES hitting him in the
different parts of his body inflicting upon his person
several gunshot wounds which caused his death to the
damage and prejudice of his heirs. 2
After pleas of not guilty and after due trial, accused BUENSUCESO
SUCESO, AGUILAR, IZON and JOSON were found guilty of Murder and,
as aforestated, were sentenced to suffer reclusion perpetua.

MALLARI and DE LA CRUZ were both absolved on reasonable doubt. 3

Three separate Briefs were filed: the first was for IZON and JOSON; the
other was for BUENSUCESO; and the third one was for AGUILAR. The
Solicitor General filed a consolidated Brief.
The prosecution synthesized the occurrence as follows:
Between 5:00 and 6:00 o'clock in the afternoon of April
21, 1967, while prosecution witness Apolonio Salvador
was in his small store beside the market near the
municipal building of Dinalupihan Bataan, he saw
Patrolman Rodolfo Aguilar and Pariseo Tayag con.
conversing as they were walking side by side, each
resting his hand on the shoulder of the other, going
towards the municipal building (pp. 22-24, tsn, July 25,
1967). Pat. Aguilar was trying to take the fan knife of
Tayag, but could not take it because Tayag prevented
him from taking it by gripping it with his right hand and
swaying it left and right as ff playing (p. 24, tsn, Id.).
Tayag did not want to , the give knife because he was
not making any trouble (p. 25, tsn., Id.). At the
suggestion of Pat. Aguilar, Tayag readily agreed to go to
the office of the chief of police (pp. 25, 26, tsn, Id.).
When they arrived in the said office, there were two
persons there, namely, Enrique Mallo and Pat. Eduardo
Mallari (p. 27, t.s.n. Id.). Pat. Mallari was then the
municipal guard and in uniform (p 8, tsn., July 26, 1967).
Subsequently, a heated argument took place between
Pat. Aguilar and Tayag arising from the latter's refusal
to give his fan knife to the former (p. 28, tsn July 25,
1967). later on, Pat. Fidel de la Cruz appeared at the
doorway (pp. 30, 32, tsn Id.).
Thereafter , when Tayag was about to leave the office,
Chief of Police Adriano Canlas arrived and inquired
what the trouble was an about (p. 31, tsn, Id.). Pat.
Aguilar answered that the two of them (Aguilar and
Canlas) had been cursed by Tayag (p. 32, tsn Id.). Tayag
asserted that he did not curse either of them, but that
Aguilar was to force him to give up his knife (p. 32,

20

tsn, Id.). Thereafter Tayag hurriedly left the office. He

was followed by Pat. Aguilar, Mallari and de la Cruz
who walked fast, with Aguilar and Mallari holding guns
(p. 33, tan, Id.). After having gone out of the building,
Pat. Aguilar fired his gun upward (p. 34, tsn, Id.).
Hearing the shot, Tayag turned about, then retreated
backwards until he reached the fence of the plaza (Id.).
When Tayag was near the wooden fence about a knee
high, Pat. Aguilar aimed his gun at Tayag and fired,
hitting him above the right knee (pp. 34, 36, tsn, Id.).
Tayag continued to run towards his house followed by
de la Cruz without a gun (p. 36, tsn, Id.). Pat. Mallari
went to the waiting shed to intercept Tayag (Id.). Pat.
Mallari had a gun at that time (p. 37, tsn, Id.). Pat.
Aguilar followed Mallari in the shed and they took
opposite sides of the road, that is, Rizal Street, in front
of the Catholic Church (Id.). Then there were several
successive gun shots, more or less nine in number (p.
39 tsn, tsn, Id.).
After the commotion, Tayag was seen lying prostrate
near the back of a jeep parked at the corner of Rizal
and San Juan Streets, about 60 meters away from the
municipal building (p. 38, tsn. Id.). Pat. de la Cruz took
the knife from Tayag and gave it to Pat. Jose
Buensuceso (p. 39, tsn, Id.), who at the precise moment
had his revolver tucked in its holster (p. 42, tsn, Id.). Pat.
Conrado Izon and Pat. Ernesto Jose were also seen in
the immediate vicinity of the crane scene by witness
Apolonio Salvador (Id.). Witness did not know, however,
where Pat. Izon and Joson came from (p. 45, tsn, Id.).
Both had their guns in their holsters (Id.).
Later, at about 5:50 that afternoon of April 21, 1967,
Sgt. Romualdo-Espiritu of the P.C. stationed at Balanga
Bataan, arrived at the corner of Rizal and San Juan
Bautista streets in Dinalupihan (pp. 1, 2, tsn, July 26,
1967). He noticed a commotion in the plaza and as a
peace officer he inquired from people around what was

going on (p. 2, tsn, July 26, 1967). He was told that a

certain person was shot (Id.). He went to the place
where people were converging and found Pariseo
Tayag dead lying down on a pool of blood, some 10 to
15 yards from the corner of Rizal and San Juan Bautista
Streets (Id.). He ordered that deceased be brought to
the municipal health center where a cursory inspection
of the cadaver was made by the Municipal Health
Officer, Dr. Sta. Maria (Id.) and photographs (Exhs. "F"
and "G", p. 6, tan, Id.) taken of the deceased (p. 5,
tsn, Id.).
Thereafter, he proceeded to the municipal building and
investigated (p. 2, tsn, Id.). Upon learning that some
police officers were involved he investigated the
suspects. He first saw Pat. Aguilar who was then
recounting the incident to Pat. de la Cruz (Id.). He asked
for his service pistol inspected the cylinder and found
three (3) empty shells and three (3) live ammunitions
(Id.). He smelled the barrel Of the gun and found out
that it had been fired (Id.). Then he proceeded to the
office of the chief of police (p. 3, tsn, Id.) Moments
later, Pat. Buensuceso arrived (Id.). He asked for
Buensuceso's service revolver, inspected the cylinder,
and found four (4) empty shells and two (2) live
ammunitions (Id.). He smelled the barrel of the gun and
found that it also had been fired. He also asked for the
service revolver of Pat. de la Cruz but the latter
manifested that he had no firearm at the time but
pointed to Pat. Mallari from whom he (Pat. de la Cruz)
got a pistol while they were on the ground door of the
municipal building (Id.).
Sgt. Espiritu then proceeded to the Patrol base or
detachment of the 161st PC Co. at Layac Dinalupihan,
Bataan and from there he reported the incident by
calling up headquarters in Balanga, Bataan (Id.), and at
the same time asked for investigators to come over
(Id.). Later on, while Sgt. Espiritu was preparing an on-

21

the-spot report in the office of the Dinalupihan Police

Dept. Capt. Antonio Resurreccion of the 161st PC Co.
arrived with his investigators (Id.). Sgt. Espiritu turned
over to Capt. Resurreccion the revolvers of Aguilar and
Buensuceso, which are both Smith and Wesson Cal. 38,
Sgt. Espiritu Identified in court as Exhibit "C"a Smith
and Wesson cal. 38 revolver, with Serial No. K-617092
as belonging to Pat. Buensuceso, and as Exhibit 'D' the
other revolver with Serial No. C-73130, Cal. 38, as
belonging to Pat. Aguilar (p. 4, tsn, July 26, 1967).
Jose Penaflor, Acting Chief of Police of Dinalupihan,
Bataan (pp 12, 13, 14, tsn, Id.) and the municipal
treasurer, Ludovico Simpao (pp. 17, 18, tsn, Id.),
testified that on the basis of the memorandum receipt
and records in their offices (Exhibits "H", "I", "J"), the
respective firearms issued to the policemen of
Dinalupihan, Bataan, bear the following serial numbers:
Eduardo Mallari Serial No. L- 597615
(Exh. H-1; J-4)
Rodolfo Aguilar Serial No.C 73130
Jose Buensuceso Serial No. K-617092
(Exh H-3; J-3)
Ernesto Joson Serial No. K-617201
(Exh. H-4; J-3)
Conrado Izon Serial No. 73534
(Exh. H-5; 1-1)
The deceased Pariseo Tayag died of gunshot wounds as
found by Dr. Ceferino Cunanan, a medico-legal officer
of the National Bureau of Investigation. His findings and
conclusions are reflected in his necropsy report No. N67-445 (Exh. L; p. 5, tsn., Aug. 15, 1967), as follows:
1. Entrance located at the scapular region, left, directed
forward slightly upward and medially; ...
2. Entrance located at the infrascapular region, left, * *
* directed forward, upward and medially; * * * ...

3. Entrance located at the thigh, right, distal 3rd,

antero-lateral aspect, *** directed backward,
downward and laterally; ...
4. Entrance located at the leg, right, proximal ward,
antero-lateral aspect * * * directed upward, backward
and laterally; * * * fracturing communitedly the upper
3rd of the tibia and a slug was recovered at a point at
the level of the knee, * * *
Dr. Cunanan testified that gunshot wound No. 4 is not a
through and though wound, but instead the bullet was
recovered with its course at Exhibits Q-3 and S (pp. 7, 8,
tsn, Aug. 15, 1967). The bullet is preserved in their
office and the photo of the slug is shown in Exhibits T
and T-1 (p. 8, tsn, Id.). He explained that gunshot
wounds Nos. 1 and 2 were inflicted by a .38 caliber
bullet (p. 8, tsn, Id.), while wound No. 3 may have been
inflicted by a .32 or .38 cal. bullet. Wound No. 1 must
have been fired by an assailant behind and to the left
of the victim (p. 9, tsn, Id.). The shot causing Wound No,
2 must have been fired by an assailant while in the
same position when Wound No. 1 was inflicted on the
victim. Wound No. 3 is located on the lower extremity
which is movable part of the body and could be
inflicted on the victim assuming different positions.
Wound No. 4 could be inflicted when the victim was
lying down and assailant was in a lower position than
the victim both standing erect face to face. Wounds No.
1 and 2 were fatal. Wound No. 1 involves the heart and
lungs and Wound No. 2 involves the lungs, spleen and
the liver (pp. 9, 10, tsn, Id.).
Lunges diphenylamine tests were made on the dorsal
aspect of both hands of the accused from the wrist
joint to the fingertips, which produced the following
results, to wit:
Chemistry Report No. G-67-204-Conrado Izon
Left Hand Positive
Right Hand Negative

22

Chemistry Report No. G-67-203-Fidel de la Cruz

Negative results
Chemistry Report No. G-67-202-Ernesto Joson
Left Hand Positive
Right Hand Negative
Chemistry Report No. G-67-200 Eduardo Mallari
Negative results.
Filemon Mamaril, Supervising Ballistician and Chief,
Forensic Ballistic of the National Bureau of
Investigation, who conducted a ballistic examination of
the firearms and shells and ammunitions received from
the office of the provincial fiscal of Bataan in
connection with this case, rendered his Ballistic Reports
Nos. B-41-867 and B-44-867 (Exh. V, pp. 4, 5, tsn, April
17, 1968).
Exhibit W which is a deformed jacketed bullet which
was received from Dr. Cunanan (p. 6, tsn, Id.), showed
that it was fired from the Smith and Wesson revolver,
Cal. 38, bearing Serial No. K-617092 (p. 7, tsn, Id.). He
also found that the empty shells, Exhs. "Y", "Y-1" and
"Y-2" and "Y-3" were fired from the revolver marked
Exh. "C" (Id.). The three empty shells, Exhs. "Y-4", "Y-5"
and "Y-6" were fired from a Smith and Wesson revolver,
Cal. 38, with Serial No. C-73130 (pp. 123, 124, tsn., April
18, 1969) marked Exh. "D" (p. 4, tsn., July 26, 1967). 4
The testimony of one of the accused, Eduardo MALLARI, in his defense
was summarized by the Trial Court thus:
In his defense, the accused Eduardo Mallari testified
that at about 5:30 o'clock in the afternoon of April 21,
1967, he closed the office of the Chief of Police on the
2nd floor of the municipal building. Then he went down
to the office of the Deputy Chief of Police on the
ground floor. While descending to the ground floor, he
saw a person in the office of the Deputy Chief of Police
facing Cpl. Aguilar. The person was holding a knife and
cursing the Chief of Police. Suddenly the person raised
his right hand with the knife stating, "You can only get

this from me, Aguilar, when I am already dead." Then

the person and Aguilar pursued one another around
the table, the person with a knife as the pursuer. He
saw the person pushed aside Aguilar and stabbed him
but Aguilar was not hit. Thereupon Aguilar ran towards
the outside of the building. The person followed Aguilar.
At this juncture Pat. Fidel de la Cruz arrived. De la Cruz
asked Mallari what happened. As De la Cruz and Mallari
were conversing, Mallari heard a shot fired outside the
building. Thereupon, De la Cruz grabbed Mallari's gun
and rushed outside the building. Mallari also ran
outside of the building. He saw the person, whom he
later recognized as Pariseo Tayag, running away. He
heard other shots, not less than five of them. He was
short distance from the main door of the municipal
building and he saw a commotion of the people. Fidel
de la Cruz returned Mallari's gun after the shooting and
when they were already inside the building. Thereafter
Sgt. Romualdo Espiritu of the P.C. arrived. Sgt. Espiritu
got Mallari's gun from De la Cruz, smelled it, then
handed it back to De la Cruz, saying: "It was not fired".
Another defense witness, Corazon Cruz, a waitress, testified that the
deceased together with some companions had drunk beer inside
Freddie's Restaurant before the shooting incident. After her testimony,
the defense without presenting the other accused on the witness stand,
offered its evidence and submitted the case for decision.
Accused-appellants, in their respective Briefs, assigned the following
errors:
1) By IZON and JOSON:
I
THE LOWER COURT ERRED IN HOLDING THE
APPELLANTS CONRADO IZON AND ERNESTO JOSON
GUILTY OF THE CRIME CHARGED IN THE INFORMATION
PENALIZED UNDER ARTICLE 248 OF THE REVISED PENAL
CODE.
II

23

THE LOWER COURT LIKEWISE ERRED IN FINDING THE

APPELLANTS IZON AND JOSON AS CO. PRINCIPAL IN
THE COMMISSION OF THE CRIME.
2) By BUENSUCESO:
I
THE LOWER COURT ERRED IN GIVING UNDUE
CREDENCE TO THE NECROPSY REPORT EXHIBIT L) OF DR.
CEFERINO CUNANAN AND THE BALLISTICS REPORT
(EXHIBIT V) OF THE BALLISTICIAN FILEMON MAMARIL,
AS WELL AS THEIR TESTIMONIES AND IN RELYING
THEREON OR MAKING THE SAME AS ITS BASIS FOR
CONCLUDING THAT THE SLUG (EXHIBIT W) WHICH WAS
ALLEGEDLY RECOVERED FROM THE KNEE OF THE
ALLEGED VICTIM WAS FIRED FROM THE REVOLVER
(EXHIBIT C) OF THE APPELLANT JOSE BUENSUCESO.
II
THE TRIAL COURT ERRED IN RULING THAT THE TWO
FATAL WOUNDS WHICH CAUSED THE INSTANTANEOUS
DEATH OF THE ALLEGED VICTIM WERE INFLICTED BY
BULLETS FIRED FROM THE GUNS OF THE APPELLANTS
JOSE BUENSUCESO, RODOLFO AGUILAR, CONRADO
IZON and ERNESTO JOSON.
III
THE COURT BELOW ERRED IN CONVICTING THE
APPELLANT JOSE BUENSUCESO FOR MURDER
NOTWITHSTANDING ITS OWN FINDING THAT THERE
WAS NO CONSPIRACY ESTABLISHED BY THE
PROSECUTION, ASIDE FROM THE FACT THAT THERE
WAS ABSOLUTELY NO EVIDENCE ON RECORD TO SHOW
THAT HE ACTUALLY PARTICIPATED IN THE KILLING OF
THE VICTIM.
3) By AGUILAR:
I
THE LOWER COURT ERRED IN HOLDING THAT THERE
WAS TREACHERY, MORE SPECIFICALLY ON THE PART OF
DEFENDANT AGUILAR THAT WOULD QUALIFY THE
CRIME TO MURDER.

II
THE LOWER COURT ERRED IN HOLDING THAT THE
ACCUSED AGUILAR THOUGH ACTING INDEPENDENTLY
SHOULD BE LIKEWISE HELD LIABLE AS THE REST OF THE
ACCUSED FOR THE DEATH OF THE VICTIM.
III
THE LOWER COURT ERRED IN NOT HOLDING THAT
DEFENDANT WAS MERELY ACTING IN LEGITIMATE SELFDEFENSE WHEN HE INFLICTED THE WOUND ON THE
VICTIM.
The assigned errors find no support from the evidence on record.
Firstly, all four appellants were seen by Apolonio Salvador, one of the
prosecution eyewitnesses, to have been present at the crime scene at
the nine of the incident, armed with .38 caliber service revolvers. 5
Secondly, the autopsy conducted on the body of the victim showed that
he died as a result of four (4) gunshot wounds, 6 two of which were
fatal. 7 The examining physician testified that the wounds were inflicted
by .38 cal. revolvers and that a deformed bullet, also .38 cal., which
caused wound No. 4, was recovered (Exhibit "W" ).
Thirdly, upon an on-the-spot inspection by PC Sgt. Romualdo Espiritu
soon after the incident, he found that the service pistol of AGUILAR had
been fired and that its cylinder contained three (3) empty shells and
three (3) live ammunitions. Similarly, he smelled the barrel of
BUENSUCESO's revolver and found that it, too, had been fired and that
its cylinder had four (4) empty shells, and two live ammunitions. 8
Fourthly, ballistic examination disclosed that the deformed jacketed
bullet recovered from the knee of the victim was fired from a .38 cal.
Smith & Wesson revolver, with Serial No. K-617092, (Exhibit "C") issued
to BUENSUCESO; that the four (4) empty shells (Exhibits "Y", "Y-1", "Y2", and "Y-3") were fired also from BUENSUCESO's firearm; while the
three (3) other empty shells (Exhibits "Y-4", "Y-5", and "Y-6") were fired
from AGUILAR's Smith & Wesson revolver, cal. 38, with Serial No. C73130 (Exhibit "D"). 9
Fifth, the Chemistry Reports on the paraffin tests
showed the following results, particularly in respect of
IZON and JOSON:
Chemistry Report No. G-67-204 Conrado Izon

24

Left Hand Positive

Right Hand Negative
Chemistry Report No. G-67-203 Fidel de la Cruz
Negative Results.
Chemistry Report No. G-67-202 Ernesto Joson
Left Hand Positive
Right Hand Negative
Chemistry Report No. G-67-200 Eduardo Mallari
Negative Results. 10 (Emphasis ours)
The positive finding, insofar as IZON and JOSON are concerned, confirm
prosecution witness Apolonio Salvador's declaration that they were in
the vicinity of the crime at the time of its occurrence. Although they
had their guns in their holsters when Salvador saw them the fact
remains that, upon examination, their left hands were positive for
nitrates.
AGUILAR's plea of self-defense is evidently unmeritorious. AGUILAR
followed the victim right after the latter hurriedly left the office of the
Chief of Police. Once outside the building, AGUILAR fired his gun
upward. And when the victim turned around and retreated backwards,
AGUILAR fired upon him hitting him above the right knee.
If, as contended, the victim had thrust his knife at AGUILAR inside the
Municipal Building malting the former the unlawful aggressor, to be
sure, the incident would have happened there and then and not some
60 meters away from the building. We discredit AGUILAR's testimony
that it was the victim who had pursued him rather than the other way
around.
BUENSUCESO's contention that there is serious doubt that the body
autopsied was that of the victim hardly deserves even passing
consideration.
All told, there is ample evidence establishing that AGUILAR,
BUENSUCESO, IZON, and JOSON had fired their guns at the victim
hitting him on different parts of his body. True, it has not been
established as to which wound was inflicted by each accused. However,
as this Court has held, where the victim died as a result of wounds
received from several persons acting independently of each other, but
it has not been shown which wound was inflicted by each assailant, all
of the assailants are liable for the death of the victim. 11

The crime is Murder, qualified by treachery. The victim was already

retreating backwards until he reached the fence of the town plaza
when AGUILAR fired his revolver at the former hitting him above the
right knee. 12 Notwithstanding that he was already hit and wounded,
and possibly immobilized, he was still subjected to successive shots as
shown by the wounds that he had received, even at his back. Certainly,
the means employed by the accused-appellants tended directly and
specially to insure the execution of the crime without risk to
themselves arising from any defense which the victim might have
made. 13
The killing of the victim was aggravated by abuse of superior strength
as shown by the number of assailants, which circumstance, however, is
absorbed by treachery. 14 No other circumstances modify the
commission of the crime.
WHEREFORE, the judgment appealed from is hereby AFFIRMED, except
that the indemnity to the victim's heirs is hereby increased to
P30,000.00. 15 With proportionate costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr. and De la Fuente,
JJ., concur.

25

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-74324 November 17, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y
MAGDALENA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accused-appellants.
MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y
BALCITA and BENJAMIN SAMSON y MAGDALENA were charged with
the crime of MURDER in Criminal Case No. L-175-82 of the Court of First
Instance (now Regional Trial Court) of Cavite, under an information
which reads as follows:
That on or about May 19, 1982 at the town plaza of the
Municipality of Rosario, Province of Cavite, Philippines,
and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and
mutually helping and assisting one another, with
treachery and evident premeditation, taking advantage
of their superior strength, and with the decided
purpose to kill, poured gasoline, a combustible liquid to
the body of Bayani Miranda and with the use of fire did
then and there, wilfully, unlawfully and feloniously,
burn the whole body of said Bayani Miranda which
caused his subsequent death, to the damage and
prejudice of the heirs of the aforenamed Bayani
Miranda.
That the crime was committed with the qualifying
circumstance of treachery and the aggravating
circumstances of evident premeditation and superior
strength, and the means employed was to weaken the
defense; that the wrong done in the commission of the

crime was deliberately augmented by causing another

wrong, that is the burning of the body of Bayani
Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty to the offense
charged. After trial, the trial court rendered a decision finding both
accused guilty on the crime of murder but crediting in favor of the
accused Pugay the mitigating circumstance of lack of intention to
commit so grave a wrong, the dispositive portion of which reads as
follows:
WHEREFORE, the accused Fernando Pugay y Balcita and
Benjamin Samson y Magdalena are pronounced guilty
beyond reasonable doubt as principals by direct
participation of the crime of murder for the death of
Bayani Miranda, and appreciating the aforestated
mitigating circumstance in favor of Pugay, he is
sentenced to a prison term ranging from twelve (12)
years of prision mayor, as minimum, to twenty (20)
years of reclusion temporal, as maximum, and Samson
to suffer the penalty of reclusion perpetua together
with the accessories of the law for both of them. The
accused are solidarily held liable to indemnify the heirs
of the victim in the amount of P13,940.00 plus moral
damages of P10,000.00 and exemplary damages of
P5,000.00.
Let the preventive imprisonment of Pugay be deducted
from the principal penalty.
Cost against both accused.
SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present
appeal and assigned the following errors committed by the court a quo:
1. THE COURT A QUO ERRED IN UTILIZING THE
STATEMENTS OF ACCUSED-APPELLANTS IN ITS
APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT
THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A
COUNSEL DURING THE CUSTODIAL INVESTIGATION.

26

2. THE COURT A QUO ERRED IN NOT FINDING THAT THE

SUPPRESSION BY THE PROSECUTION OF SOME
EVIDENCE IS FATAL TO ITS CASE.
3. THE COURT A QUO ERRED IN LENDING CREDENCE TO
THE INCREDIBLE TESTIMONY OF EDUARDO GABION
WHO WAS ONE OF THE MANY SUSPECTS ARRESTED BY
THE POLICE (Accused-appellants' Brief, p. 48, Rollo).
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the accused Pugay
were friends. Miranda used to run errands for Pugay and at times they
slept together. On the evening of May 19, 1982, a town fiesta fair was
held in the public plaza of Rosario, Cavite. There were different kinds of
ride and one was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting
in the ferris wheel and reading a comic book with his friend Henry.
Later, the accused Pugay and Samson with several companions arrived.
These persons appeared to be drunk as they were all happy and noisy.
As the group saw the deceased walking nearby, they started making fun
of him. They made the deceased dance by tickling him with a piece of
wood.
Not content with what they were doing with the deceased, the accused
Pugay suddenly took a can of gasoline from under the engine of the
ferns wheel and poured its contents on the body of the former. Gabion
told Pugay not to do so while the latter was already in the process of
pouring the gasoline. Then, the accused Samson set Miranda on fire
making a human torch out of him.
The ferris wheel operator later arrived and doused with water the
burning body of the deceased. Some people around also poured sand
on the burning body and others wrapped the same with rags to
extinguish the flame.
The body of the deceased was still aflame when police officer Rolando
Silangcruz and other police officers of the Rosario Police Force arrived
at the scene of the incident. Upon inquiring as to who were responsible
for the dastardly act, the persons around spontaneously pointed to
Pugay and Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In
the meantime, the police officers brought Gabion, the two accused and

five other persons to the Rosario municipal building for interrogation.

Police officer Reynaldo Canlas took the written statements of Gabion
and the two accused, after which Gabion was released. The two
accused remained in custody.
After a careful review of the records, We find the grounds relied upon
by the accused-appellants for the reversal of the decision of the court a
quo to be without merit.
It bears emphasis that barely a few hours after the incident, accusedappellants gave their written statements to the police. The accused
Pugay admitted in his statement, Exhibit F, that he poured a can of
gasoline on the deceased believing that the contents thereof was water
and then the accused Samson set the deceased on fire. The accused
Samson, on the other hand, alleged in his statement that he saw Pugay
pour gasoline on Miranda but did not see the person who set him on
fire. Worthy of note is the fact that both statements did not impute any
participation of eyewitness Gabion in the commission of the offense.
While testifying on their defense, the accused-appellants repudiated
their written statements alleging that they were extracted by force.
They claimed that the police maltreated them into admitting
authorship of the crime. They also engaged in a concerted effort to lay
the blame on Gabion for the commission of the offense.
Thus, while it is true that the written statements of the accusedappellants were mentioned and discussed in the decision of the court a
quo, the contents thereof were not utilized as the sole basis for the
findings of facts in the decision rendered. The said court categorically
stated that "even without Exhibits 'F' and 'G', there is still Gabion's
straightforward, positive and convincing testimony which remains
unaffected by the uncorroborated, self-serving and unrealiable
testimonies of Pugay and Samson" (p. 247, Records).
Accused-appellants next assert that the prosecution suppressed the
testimonies of other eyewitnesses to the incident. They claim that
despite the fact that there were other persons investigated by the
police, only Gabion was presented as an eyewitness during the trial of
the case. They argue that the deliberate non- presentation of these
persons raises the presumption that their testimonies would be
adverse to the prosecution.

27

There is no dispute that there were other persons who witnessed the
commission of the crime. In fact there appears on record (pp. 1617, Records) the written statements of one Abelardo Reyes and one
Monico Alimorong alleging the same facts and imputing the respective
acts of pouring of gasoline and setting the deceased on fire to the
accused-appellants as testified to by Gabion in open court. They were
listed as prosecution witnesses in the information filed. Considering
that their testimonies would be merely corroborative, their nonpresentation does not give rise to the presumption that evidence
wilfully suppressed would be adverse if produced. This presumption
does not apply to the suppression of merely corroborative evidence
(U.S. vs. Dinola, 37 Phil. 797).<re||an1w> Besides, the matter as to
whom to utilize as witness is for the prosecution to decide.
Accused-appellants also attack the credibility of the eyewitness Gabion
alleging that not only was the latter requested by the mother of the
deceased to testify for the prosecution in exchange for his absolution
from liability but also because his testimony that he was reading a
comic book during an unusual event is contrary to human behavior and
experience.
Gabion testified that it was his uncle and not the mother of the
deceased who asked him to testify and state the truth about the
incident. The mother of the deceased likewise testified that she never
talked to Gabion and that she saw the latter for the first time when the
instant case was tried. Besides, the accused Pugay admitted that
Gabion was his friend and both Pugay and the other accused Samson
testified that they had no previous misunderstanding with Gabion.
Clearly, Gabion had no reason to testify falsely against them.
In support of their claim that the testimony of Gabion to the effect that
he saw Pugay pour gasoline on the deceased and then Samson set him
on fire is incredible, the accused-appellants quote Gabion's testimony
on cross-examination that, after telling Pugay not to pour gasoline on
the deceased, he (Gabion) resumed reading comics; and that it was
only when the victim's body was on fire that he noticed a commotion.
However, explaining this testimony on re-direct examination, Gabion
stated:
Q. Mr. Gabion, you told the Court on
cross-examination that you were

reading comics when you saw Pugay

poured gasoline unto Bayani Miranda
and lighted by Samson. How could you
possibly see that incident while you
were reading comics?
A. I put down the comics which I am
reading and I saw what they were
doing.
Q. According to you also before Bayani
was poured with gasoline and lighted
and burned later you had a talk with
Pugay, is that correct?
A. When he was pouring gasoline on
Bayani Miranda I was trying to prevent
him from doing so.
Q. We want to clarify. According to you
a while ago you had a talk with Pugay
and as a matter of fact, you told him
not to pour gasoline. That is what I
want to know from you, if that is true?
A. Yes, sir.
Q. Aside from Bayani being tickled with
a stick on his ass, do you mean to say
you come to know that Pugay will pour
gasoline unto him?
A. I do not know that would be that
incident.
Q. Why did you as(k) Pugay in the first
place not to pour gasoline before he
did that actually?
A. Because I pity Bayani, sir.
Q. When you saw Pugay tickling Bayani
with a stick on his ass you tried
according to you to ask him not to and
then later you said you asked not to
pour gasoline. Did Pugay tell you he
was going to pour gasoline on Bayani?

28

A. I was not told, sir.

Q. Did you come to know..... how did
you come to know he was going to
pour gasoline that is why you prevent
him?
A. Because he was holding on a
container of gasoline. I thought it was
water but it was gasoline.
Q. It is clear that while Pugay was
tickling Bayani with a stick on his ass,
he later got hold of a can of gasoline, is
that correct?
A. Yes, sir.
Q. And when he pick up the can of
gasoline, was that the time you told
him not to pour gasoline when he
merely pick up the can of gasoline.
A. I saw him pouring the gasoline on
the body of Joe.
Q. So, it is clear when you told Pugay
not to pour gasoline he was already in
the process of pouring gasoline on the
body of Bayani?
A. Yes, sir (Tsn, July 30, 1983, pp. 3233).
It is thus clear that prior to the incident in question, Gabion was reading
a comic book; that Gabion stopped reading when the group of Pugay
started to make fun of the deceased; that Gabion saw Pugay get the
can of gasoline from under the engine of the ferris wheel; that it was
while Pugay was in the process of pouring the gasoline on the body of
the deceased when Gabion warned him not to do so; and that Gabion
later saw Samson set the deceased on fire.
However, there is nothing in the records showing that there was
previous conspiracy or unity of criminal purpose and intention between
the two accused-appellants immediately before the commission of the
crime. There was no animosity between the deceased and the accused
Pugay or Samson. Their meeting at the scene of the incident was

accidental. It is also clear that the accused Pugay and his group merely
wanted to make fun of the deceased. Hence, the respective criminal
responsibility of Pugay and Samson arising from different acts directed
against the deceased is individual and not collective, and each of them
is liable only for the act committed by him (U.S. vs. Magcomot, et. al. 13,
Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).
The next question to be determined is the criminal responsibility of the
accused Pugay. Having taken the can from under the engine of the
ferris wheel and holding it before pouring its contents on the body of
the deceased, this accused knew that the can contained gasoline. The
stinging smell of this flammable liquid could not have escaped his
notice even before pouring the same. Clearly, he failed to exercise all
the diligence necessary to avoid every undesirable consequence arising
from any act that may be committed by his companions who at the
time were making fun of the deceased. We agree with the Solicitor
General that the accused is only guilty of homicide through reckless
imprudence defined in Article 365 of the Revised Penal Code, as
amended. In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as
follows:
A man must use common sense and exercise due
reflection in all his acts; it is his duty to be cautious,
careful, and prudent, if not from instinct, then through
fear of incurring punishment. He is responsible for such
results as anyone might foresee and for acts which no
one would have performed except through culpable
abandon. Otherwise his own person, rights and
property, all those of his fellow-beings, would ever be
exposed to all manner of danger and injury.
The proper penalty that the accused Pugay must suffer is an
indeterminate one ranging from four (4) months ofarresto mayor, as
minimum, to four (4) years and two (2) months of prision correccional,
as maximum. With respect to the accused Samson, the Solicitor General
in his brief contends that "his conviction of murder, is proper
considering that his act in setting the deceased on fire knowing that
gasoline had just been poured on him is characterized by treachery as
the victim was left completely helpless to defend and protect himself
against such an outrage" (p. 57, Rollo). We do not agree.

29

There is entire absence of proof in the record that the accused Samson
had some reason to kill the deceased before the incident. On the
contrary, there is adequate evidence showing that his act was merely a
part of their fun-making that evening. For the circumstance of
treachery to exist, the attack must be deliberate and the culprit
employed means, methods, or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to
himself arising from any defense which the offended party might make.
There can be no doubt that the accused Samson knew very well that
the liquid poured on the body of the deceased was gasoline and a
flammable substance for he would not have committed the act of
setting the latter on fire if it were otherwise. Giving him the benefit of
doubt, it call be conceded that as part of their fun-making he merely
intended to set the deceased's clothes on fire. His act, however, does
not relieve him of criminal responsibility. Burning the clothes of the
victim would cause at the very least some kind of physical injuries on
his person, a felony defined in the Revised Penal Code. If his act
resulted into a graver offense, as what took place in the instant case, he
must be held responsible therefor. Article 4 of the aforesaid code
provides, inter alia, that criminal liability shall be incurred by any
person committing a felony (delito) although the wrongful act done be
different from that which he intended.
As no sufficient evidence appears in the record establishing any
qualifying circumstances, the accused Samson is only guilty of the crime
of homicide defined and penalized in Article 249 of the Revised Penal
Code, as amended. We are disposed to credit in his favor the ordinary
mitigating circumstance of no intention to commit so grave a wrong as
that committed as there is evidence of a fact from which such
conclusion can be drawn. The eyewitness Gabion testified that the
accused Pugay and Samson were stunned when they noticed the
deceased burning (Tsn, June 1, 1983, pp. 16-17).<re||an1w>
The proper penalty that the accused Samson must suffer is an
indeterminate one ranging from eight (8) years ofprision mayor, as
minimum, to fourteen (14) years of reclusion temporal, as maximum.
The lower court held the accused solidarily liable for P13,940.00, the
amount spent by Miranda's parents for his hospitalization, wake and
interment. The indemnity for death is P30,000.00. Hence, the

indemnity to the heirs of the deceased Miranda is increased to

P43,940.00.
Both accused shall be jointly and severally liable for the aforesaid
amount plus the P10,000.00 as moral damages and P5,000.00 as
exemplary damages as found by the court a quo.
Accordingly, the judgment is affirmed with the modifications aboveindicated. Costs against the accused-appellants.
SO ORDERED.
Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

30

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-50884 March 30, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FILOMENO SALUFRANIA, defendant-appellant.
PADILLA, J.:
In an information, dated 7 May 1976, Filomeno Salufrania y Aleman
was charged before the Court of First Instance of Camarines Norte,
Branch I, with the complex crime of parricide with intentional abortion,
committed as follows:
That on or about the 3rd day of December, 1974, in
Tigbinan, Labo, Camarines Norte, Philippines, and
within the jurisdiction of the Honorable Court the
accused Filomeno Salufrania y Aleman did then and
there, willfully, unlawfully, and feloniously attack,
assault and use personal violence on MARCIANA
ABUYO-SALUFRANIA, the lawfully wedded wife of the
accused, by then and there boxing and stranging her,
causing upon her injuries which resulted in her
instantaneous death; and by the same criminal act
committed on the person of the wife of the accused,
who was at the time 8 months on the family way, the
accused likewise did then and there willfully, unlawfully,
and feloniously cause the death of the child while still
in its maternal womb, thereby committing both crimes
of PARRICIDE and INTENTIONAL ABORTION as defined
and punished under Art. 246 and Art. 256, paragraph I,
of the Revised Penal Code, to the damage and
prejudice of the heirs of said woman and child in the
amount as the Honorable Court shall assess.
CONTRARY TO LAW
Upon arraignment, the accused, assisted by counsel de officio, pleaded
not guilty to the offenses charged.

After trial the lower court rendered a decision ** dated 9 August 1978,
the dispositive part of which states:
WHEREFORE, finding the accused Filomeno Salufrania y
Aleman guilty beyond reasonable doubt, of the
complex crime of Parricide with Intentional Abortion,
he is hereby sentenced to suffer the penalty of DEATH,
to indemnify the heirs of the deceased Marciano Abuyo
in the sum of P12,000.00 and to pay the costs. "For
unselfish, valuable and exemplary service rendered by
counsel de oficio, Atty. Marciano C. Dating, Jr., a
compensation of P500.00 is hereby recommended for
him subject to the availability of funds
SO ORDERED.
The accused having been sentenced to suffer the penalty of death, this
case is on automatic review before this Court.
At the trial in the court a quo, the prosecution presented the following
witnesses: Dr. Juan L. Dyquiangco Jr., Pedro Salufrania and Narciso
Abuyo.
Dr. Juan L. Dyquiangco Jr., who was then Rural Health Officer of Talisay,
Camarines Norte, testified that, after passing the Board Examination,
he was employed as a Resident Physician of La Union Provincial
Hospital, then as Junior Resident Physician of Bethane Hospital in San
Fernando, La Union and that later, he joined the government service,
starting from 1968 up to the time of the trial; that as a Doctor of
Medicine, he had performed about ten (10) post mortem examinations;
that he was called upon by the Municipal Judge of Talisay to examine
the corpse of Marciana Abuyo-Salufrania that was exhumed from its
grave in the Municipal Cemetery of Talisay at around 11:00 o'clock in
the morning of 11 December 1974; that his post mortem examination
lasted from 12:30 o'clock to 2:00 o'clock in the afternoon of the same
day. He reduced his findings of injuries into writing. (Exhibit "A"), which,
together with their probable cause, as testified to by him, are as follows:
Injury

Cause

31

1) Multiple
abrasions with

"Blunt object or
friction by

4) Upper right
eyelid

contusion, left
leg, middle part,

hard object" (tsn.,

Aug. 20, posterior

more prominent
than the left

covering an
area of

1976, p. 7)

eyelid ("the
right upper
eyelid a

about 2 & 1/2

by 5 inches.

little bit bulging

than the left

2) Abrasions,
1/2 by 2

Friction on a hard
object"

inches, medial
side of the cubi

(tsn., Aug. 20, 1976,

p. 7)

eye "and" sort

of "swollen")
(tsn.,
Aug. 20, 1976,
pp. 7-8)

tal fossa (back

left leg)
3) Multiple
pinhead sized

Hard pinhead sized

material

wounds, right
face, starting

(tsn., Aug. 20, 1976,

p. 7)

from the side of

the right eye

5) Tongue
protruding bet

Usually, the main

cause of

ween the lips,

about 1 inch
teeth

protruding tongue
during

line.

death is (by)
strangulation.
(tsn., Aug. 20, 1976,
p. 8)

down to
mandibular
bone
(right check)

No cause given

6) Deceased is
pregnant

32

with a baby boy

about 7-8
months old
(tsn., Aug. 20,
1976, p. 8).
Dr. Dyquiangco testified that after conducting the post
mortem examination, he issued a certification thereof (Exhibit "A");
that he issued a death certificate (Exhibit "B") for the deceased
Marciano Abuyo-Salufrania, bearing the date of 5 December 1974,
made on the basis of the information relayed by a certain Leonila Loma
to his nurse before the burial, without mentioning the cause of death;
that the cause of death, as cardiac arrest, was indicated on said death
certificate only after the post mortem examination on 11 December
1974.
The other witness for the prosecution was Pedro Salufrania, son of
herein appellant and of the deceased. The lower court's decision states
that, by reason of interest and relationship, before Pedro Salufrania
was allowed to testify against his father-accused Filomeno Salufrania,
he was carefully examined by the prosecuting officer and the defense
counsel under the careful supervision of the court a quo, to determine
whether, at his age of 13 years old, he was already capable of receiving
correct impressions of facts and of relating them truly and, also,
whether he was compelled and/or threatened by anybody to testify
against his father-accused. 1
The lower court found Pedro Salufrania to be determined and
intelligent. He convincingly declared that he was not threatened by any
of his uncles on his mother's side to testify against his father, because it
was true that the latter killed his mother. Then, formally testifying as
the prosecution's lone eyewitness, he stated that his father Filomeno
Salufrania and his mother Marciana Abuyo quarrelled at about 6:00
o'clock in the evening of 3 December 1974, in their small house at a far
away sitio in barrio Tigbinan, Labo, Camarines Norte; that during said
quarrel, he saw his father box his pregnant mother on the stomach and,

once fallen on the floor, his father strangled her to death; that he saw
blood ooze from the eyes and nose of his mother and that she died
right on the spot where she fell.
Pedro Salufrania further testified that after killing his mother, the
accused- appellant went out of the house to get a hammock; that his
brother Alex and he were the only ones who witnessed how the
accused killed their mother because his sister and other brothers were
already asleep when the horrible incident happened; that his brothers
Celedonio, Danilo and sister Merly woke up after the death of their
mother and kept watch at their mothers body while their father was
away; that their father arrived early the next morning with the
hammock and after placing their dead mother on the hammock, the
accused carried her on his shoulder and brought the cadaver to the
house of his sister Conching, located at a populated section of Tigbinan
that from Tigbinan the corpse was transferred to Gabon, Talisay,
Camarines Norte for burial.
Continuing his testimony, Pedro Salufrania stated that he is now living
with his uncle Eduardo Abuyo and had refused and still refused to live
with his father-accused, because the latter has threatened to kill him
and his other brothers and sister should he reveal the true cause of his
mother's death.
The third witness for the prosecution was Narciso Abuyo, a resident of
Gabon, Talisay, Camarines Norte. He testified that the accused
Filomeno Salufrania and his sister, the deceased Marciana Abuyo, were
lawfully wedded husband and wife as evidenced by a marriage contract
(Exhibit "C"). He declared that his sister was more or less seven (7)
months pregnant when she died; that he first came to know about his
sister's death on 4 December 1974 thru his nephews Pedro and Alex
Salufrania who first informed him that their mother died of stomach
ailment and headache; that he went to Tigbinan to request for the body
of his sister so that it may be buried in Talisay, Camarines Norte and, as
intended, Marciana Abuyo was buried in the Talisay Cemetery on 6
December 1974.
Narciso Abuyo also declared that after the burial of Marciana Abuyo,
the three (3) children of his deceased sister went to his house and
refused to go home with their father Filomeno Salufrania; that when
asked for the reason why, his nephew Alex Salufraa told him that the

33

real cause of death of their mother was not stomach ailment and
headache, rather, she was boxed on the stomach and strangled to
death by their father; that immediately after learning of the true cause
of death of his sister, he brought the matter to the attention of the
police authorities of Talisay, Camarines Norte, who investigated Alex
and Pedro Salufirania and later, to that of the Office of the Provincial
Fiscal of Camarines Norte.
The defense had for witnesses Geronimo Villan, Juanito Bragais,
Angeles Liling Balce and the accused Filomeno Salufrania.
Geronimo Villan testified that he was a neighbor of Filomeno Sulfrania.
He declared that Marciana Abuyo died at around 6:00 o'clock in the
morning of 4 December 1974 in her house at Sitio Kapagisahan
Tigbinan Labo, Camarines Norte; that he happened to pass by said
house because his attention was attracted by the bright light in the
fireplace and he saw Filomeno Salufrania boiling "ikmo" and garlic as
medicine for his wife who was about to deliver a child; that he helped
the accused by applying "ikmo" to the different parts of the body of
Marciana Abuyo and by administering the native treatment known as
"bantil", that is, by pinching and pulling the skin with two fingers of his
closed fist; that when the condition of Marciana Abuyo worsened, he
told Filomeno Salufrania to go and get Juanita Bragais who is known as
a healer but the latter arrived at about 7:00 o'clock in the morning of 4
December 1974 and that at that time Marciana Abuyo was already
dead.
Witness Juanita Bragais testified that he was fetched by Felipe
Salufrania, another son of Filomeno Salufrania at about 6:00 o'clock in
the morning of 4 December 1974. He further testified that when he
reached the house of the Salufranias, Marciana Abuyo was already
dead so he just helped Filomeno Salufrania in transferring the body of
his wife to the house of the latter's brother-in-law at Tigbinan, Labo,
Camarines Norte.
Angeles Liling Balce, who claimed to be a former resident of
Kapagisahan Tigbinan, Labo, Camarines Norte testified that she arrived
in the house of Filomeno Salufrania at about 6:00 o'clock in the
morning of 4 December 1974 after being called by one of the latter's
sons; that she saw Marciana still in a coma lying on the lap of her

husband who informed her that Marciana was suffering from an old
stomach ailment.
The accused Filomeno Salufrania admitted that he was that lawful
husband of the deceased Marciana Abuyo; that at around 9:00 o'clock
in the morning of 3 December 1974, Marciana arrived home from
Talisay where she had earlier stayed for about a week; that she was
hungry upon her arrival, so he allegedly cooked their food and after
eating their lunch, he proceeded to his work while his wife rested in
their house; that when he returned home at 3:00 o'clock in the
afternoon of that same day, his wife complained to him of stomach
pain and he was told to prepare the beddings because she was already
sleepy; that at about 4:00 o'clock in the morning of 4 December 1974,
he was awakened by his wife who was still complaining of stomach pain,
and that she asked for a drink of hot water; that while he was boiling
water, Geronimo Villan arrived and assisted him in administering to his
wife the native treatments known as "hilot" or massaging and "banti"
that Geronimo Villan and Francisco Repuya alternately applied "bantil"
to his wife but when her condition worsened, he woke up his children,
Pedro and Alex to fetch Rico Villanueva who might be able to ,save the
life of their mother; that his children left and returned without Rico
Villanueva but the latter arrived a little later.
Accused-appellant then went on to say that he sent for Juanito Bragais
but the latter was not able to cure his wife, since the latter was already
dead when he arrived; that after the death of his wife, he ordered his
children to get the hammock of Kaloy Belardo whose house was about
two (2) kilometers away from their house, and upon the arrival of the
hammock, he placed the body of his wife thereon and brought it to the
house of his sister Consolacion Salufrania in Tigbinan; that while the
corpse of Marciana Abuyo was at Tigbinan he sent Chiding and his elder
son to inform the brothers and sisters of his wife at Talisay about her
death and that Leonila Abuyo and Salvador Abuyo came; that he
informed the Barangay Captain of Tigbinan of the cause of death of his
wife; that upon the suggestion of the brothers and sisters of Marciana
Abuyo, especially Salvador Abuyo, the body of their sister was brought
home to Talisay and thereafter buried at the Talisay Cemetery; that
there was no quarrel between him and his wife that preceded the
latter's death, and that during the lifetime of the deceased, they loved

34

each other; that after her burial, his son Pedro Salufrania was taken by
his brother-in-law Narciso Abuyo and since then, he was not able to talk
to his son until during the trial; and that at the time of death of his wife,
aside from the members of his family, Geronimo Villan Francisco
Repuya and Liling Angeles Balce were also present.
The case was considered submitted for decision by the trial court on 18
July 1978. As aforestated, the trial court found the appellant guilty of
the crimes charged and sentenced him to the penalty of death.
The appellant assigns the following errors allegedly committed by the
trial court:
I
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS
OF THE TESTIMONY OF AN INCOMPETENT WITNESS, AND ON
INCONSISTENT AND INSUFFICIENT EVIDENCE OF THE PROSECUTION,
THEREBY VIOLATING THE RULE THAT THE ACCUSED IS ENTITLED TO AN
ACQUITTAL UNLESS HIS GUILT IS SHOWN BEYOND ANY REASONABLE
DOUBT.
II
ASSUMING ARGUENDO THAT THE EVIDENCE FOR THE PROSECUTION IS
CREDIBLE AND SUFFICIENT, THE TRIAL COURT ERRED IN CONVICTING
THE ACCUSED OF THE COMPLEX CRIME OF PARRICIDE WITH
INTENTIONAL ABORTION.
III
THE TRIAL COURT ERRED IN DISCREDITING THE EVIDENCE FOR THE
ACCUSED.
Appellant alleges that the trial court failed to determine the
competence of Pedro Salufrania before he was allowed to testify. Since
Pedro was allegedly a child of tender age, being only thirteen (13) years
old when he testified, and only eleven (11) years old when the offense
charged occurred, he is presumed incompetent under Rule 130 Sec. 19
(b) of the Revised Rules of Court, which includes among those who
cannot be witnesses:
Children who appear to the court to be of such tender
age and inferior capacity as to be incapable of receiving
correct impressions of the facts respecting which they
are examined, or of relating them truly.

Therefore, according to appellant, for failure of the trial court to

determine Pedro's competence, the presumption of incompetency was
not rebutted and Pedro's testimony should not have been admitted.
Moreover, appellant stresses that there is no basis for the trial court's
finding that Pedro is intelligent.
Appellant's contention is without merit. The record shows that the trial
court determined Pedro Salufrania's competency before he was
allowed to testify under oath. 2 The trial court's conclusion that Pedro
was intelligent and competent is fully supported by Pedro's
responsiveness to the questions propounded to him when he was
already under oath:
A. Did you go here in court to testify
voluntarily?
Q. Yes, Your Honor.
A. Were you not forced by your uncle
to testify in his case?
Q. No, I was not forced by my uncle.
xxx xxx xxx
A. The accused is your father?
Q. Yes, sir.
A. Do you love him?
Q. No, sir.
A. Your father is accused now of crime
which carries the penalty of death, are
you still willing to testify against him?
xxx xxx xxx
Q. Why did you say that you don't love
your father
A. Because he killed my mother.
Q. And that is the reason why you hate
your father now?
A. Yes, sir. (tsn., pp. 3, 7,17, Nov. 12,
1976).
Pedro's strong sense of moral duty to tell the truth, even though it
should lead to his father's conviction, shows that he fully appreciated
the meaning of an oath, which likewise proves that he was no longer a
child of tender years at the time of his testimony.

35

Appellant also alleges that, since Pedro changed his answer

from no to yes when he was asked whether he was threatened by his
uncle to testify against his father, shows that Pedro was lying and
proves that he did not appreciate the meaning of an oath at all. 3
Again, this contention is without merit, Pedro became confused when
the trial court ordered that the original question be reformed. Pedro's
confusion is apparent from the fact that when asked the third time, he
affirmed his first answer,
Q. Isn't it that your uncle threatened
you with bodily harm if you will not
give statement before the police?
A. No, sir.
xxx xxx xxx
Q. But later you actually went with
your uncle to the police because you
were threatened by him with bodily
harm if you will not follow him?
A. Yes, sir.
Q. Is it true that your uncle threatened
you with bodily harm if you will not
give statement to the police?
A. No, sir. (tsn., pp. 6, 7, Nov. 12, 1976)
Appellant next lists the following alleged inconsistencies to discredit
the testimony of Pedro. First, Pedro testified on direct examination that
his mother died in the evening of December 3. while on crossexamination he said that she died in the morning of December 4. It
must be noted that he affirmed twice during cross-examination that his
mother died on December 3, just as he had testified during direct
examination. Significantly, he did not mention December 4 as the date
when she died, as appellant would make it appear. Pedro merely
answered 'yes' to the question "And isn't it that your mother died in the
early morning on that day (December 4) and not on the evening of
December 3?"4 Thus, Pedro's answer could have resulted only from a
misapprehension of the a question, and for no other reason.
Second, appellant alleges that Pedro testified on direct examination
that he saw appellant leave the house to get a hammock after
strangling the victim and then came back the following morning.

However, upon cross-examination, Pedro testified that appellant left at

noon or in the afternoon of December 4. Moreover, Pedro allegedly
testified on re-direct that he saw appellant sleep beside the dead body
of his mother. Again Pedro misapprehended the question propounded
to him. Ajudicious reading of the transcript will bear this out:
Q. When did your father leave to get
the hammock?
A. In the afternoon.
Q. That may be when the body was
brought to Talisay. When your father,
rather, when you said that your father
left to get a hammock so that your
mother may be brought to Tigbinan
what time was that?
A. About 12:00 o'clock noon. (Tsn, p. 16,
Nov. 12, 1976)
One may discern that the court itself noticed that there was a
missapprehension when it commented "that maybe when the body
was brought to Talisay" after Pedro answered "In the afternoon". When
Pedro answered "about 12:00 noon' he must have been referring to the
time when appellant carried his dead wife to Tigbinan. It must be noted
that the question was so worded that it could have misled Pedro to
think that what was being asked was the time when appellant brought
his dead wife to Tigbinan. In fact, there is nothing inconsistent with
Pedro's testimony that he saw his father leave in the evening of
December 3 and again saw him asleep and thus not noticed appellant's
coming back after securing a hammock and sleeping beside the
deceased. Pedro was therefore telling the truth when he said that,
upon waking up, he saw his father sleeping beside his dead mother. By
then, appellant had already returned with the hammock.
Third, Pedro allegedly testified on direct examination that the corpse
was carried to Tigbinan in the morning of December 4, while on crossexamination, he said it was in the evening. 5 It must be pointed out that
Pedro merely answered "yes" to a question purportedly mentioning the
time when the victim's body was transferred to Tigbinan. The question
is as follows: "The corpse of your mother was brought to the Tigbinan
proper when the vigil was had in the evening of December 4, is that

36

right?" It is to be noted that the question's thrust is whether or not the

victim's body was brought to Tigbinan. The time it was brought was
merely incidental. Thus, Pedro may not have paid attention to the part
of the question involving time. Moreover, the phrase "in the evening"
may have referred either to the time of transport of the body or to the
vigil, which could have definitely confused Pedro.
Fourth, Pedro allegedly testified on direct examination that he,
together with his brothers and sister, kept vigil beside their mother's
dead body that night, while on cross-examination, he testified that they
just kept lying down and pretended to sleep. 6 There is nothing
inconsistent here. The children could have kept vigil while lying down
with their deceased mother.
Appellant further cites other alleged improbabilities to discredit Pedro's
testimony. Appellant contends that it was improbable for Pedro to have
seen the attack on his mother since he testified that the room was
dimly lighted, and that, while the attach was going on, he closed his
eyes pretending to sleep. 7 This contention is without merit. Even
though the room was dimly lighted, Pedro was only two (2) meters
away from his parents; thus, he could easily see, as he saw, the attack
on his mother. 8 Also, although he pretended to be asleep, it was
unlikely that he kept his eyes closed all the while, as he was aware that
a fight was going on. Rather, it was to be expected that he had his eyes
open and, thus, he saw the heinous crime unfold and ultimately
consumated.
Appellant alleges that he does not believe that it was fear of him that
caused the delay in Pedro's divulging the real cause of his mother's
death until 10 December 1974. According to appellant, such fear could
no longer have influenced Pedro from December 6, the date he started
to live separately from him. This contention is untenable. Even though
Pedro started to live separately from his father from December 6, it
cannot be said that the influence of appellant's threat suddenly ceased
from that time. It must be noted that Pedro was young and was still
very much under appellant's influence and control. The thought and
memory of his father's viciousness were still too fresh even after three
days from his mother's death. The fear that he too could be killed by
appellant in like manner must have deterred him from divulging the
truth earlier.

Appellant also alleges that it was improbable for Pedro to have just
watched the killing of his mother. This contention is untenable. At that
moment, when his mother was being assaulted and strangled, Pedro
must have been so shocked as to be rendered immobile and powerless
to do anything. This is a normal reaction in such a situation. Besides, it
is a fact of life that different people react differently to the same types
of situations. 9 One cannot overlook that there is no standard form of
behaviour when one is confronted by a shocking occurrence. 10
Appellant next alleges that since the prosecution has failed without
satisfactory explanation to present Pedro's brother Alex who is alleged
to be also an eyewitness to the killing of the victim, it is presumed that
Alex's testimony would be adverse to the prosecution if presented. This
contention is without merit. First, Alex, who is younger than Pedro by 3
years, may not have been competent to testify due to his tender age.
Second, even assuming that he was competent to testify, his testimony
could be merely corroborative. Corroboration is not necessary in this
case because the details of the crime have already been testified to by
Pedro with sufficient clarity. The failure to present all the eyewitnesses
to an act does not necessarily give rise to an unfavorable presumption,
especially when the testimony of the witness sought to be presented is
merely corroborative. 11 Witnesses are to be weighed, not numbered,
and it is a well established rule that the testimony of a single witness,
even if uncorroborated, but positive and credible, is sufficient to
support a conviction. 12 In any event, it is not for the appellant to say
how many witnesses the prosecution should have presented. 13
The inconsistencies magnified by appellant in the testimony of Pedro
Salufrania have been satisfactorily explained. In fact, some of them are
not material since they neither touch upon the manner of death of the
victim nor question the identity of the killer, both of which were
unwaveringly testified upon by Pedro. Thus, with the alleged
inconsistencies and improbabilities explained away, Pedro's testimony
remains unperturbed. Even if there were discrepancies, such
discrepancies were minor and may be considered as earmarks of
verisimilitude. 14
The trial court's assessment of Pedro's testimony, as quoted hereunder,
deserves more than passing consideration:

37

... The testimony of eye-witness Pedro Salufrania, 13year old son of the victim Marciana Abuyo and her
killer-spouse Filomeno Salufrania, appears to be very
clear, convincing and truthful. It is vivid as to the details
of the horrible occurence that took place at about 6:00
o'clock in the evening of December 3, 1974 in their
small house at a far away sitio of Tigbinan, Labo,
Camarines Norte, resulting in the untimely and cruel
death of her (sic) mother. He and his brother Alex were
the only eyewitnesses to the gory crime committed by
their father. The credibility of this witness (Pedro
Salufrania) and his testimony was invested when,
despite rigid cross-examination, the veracity of his
testimony in chief was not impeached. He remained
firm and on the verge of crying, when he pointed an
accusing finger at his father during the trial. He was
unshaken notwithstanding a long and detailed crossexamination. And, there is reason to bestow complete
credence to his testimony because he had the
opportunity to closely observe how his father had
deliberately and cruelly ended the life of his mother.
Despite his tender age and apparent childish innocence,
this Court believes that he can clearly perceive and
perceiving, make known his perception, precluding the
possibility of coaching or tutoring by someone. His
declaration as to when, where and how the horrible
incident complained of happened is the believable
version. 15
Appellant questions the competence of Dr. Dyquiangco as an expert
witness, since this is the first time that the doctor conducted an
autopsy on a cadaver which had been buried for about a week. It must
be noted, however, that although this was the doctor's first autopsy
under circumstances present in this case, he had, however, conducted
similar post-mortem examinations on ten (10) other occasions. This
would constitute sufficient experience. Significantly, appellant did not
object to the doctor's expression of medical opinions during the trial.
Being an expert in his field, the doctor is presumed to have taken all

pertinent factors into consideration with regard to the autopsy,

including embalming and the state of the cadaver's decomposition. Dr.
Juan Dyquiangco Jr., was a disinterested witness in the case, and a
reputable public official in whose favor the presumption of regularity in
the performance of official duties must be applied.
Appellant further alleges that the findings of Dr. Dyquiangco and the
testimony of Pedro Salufrania do not tally. Suffice it to say that the
Court finds no inconsistencies between the findings of Dr. Dyquiangco
and Pedro Salufrania's testimony. Both are consistent on material
points. Thus, the Court sees no reason to disturb the conclusions
reached by the trial court insofar as their credibility and the appellant's
guilt are concerned.
Appellant's third assignment of error alleges that the trial court erred in
discrediting his evidence simply because the testimonies of the defense
witnesses were consistent on material points. Moreover, there is no
showing, according to the appellant, that said testimonies were
rehearsed so as to dovetail with each other.
This contention is without merit. The Court notes, first of all, that
appellant did not even bother to discuss his defense in order to refute
the massive evidence against him. This is tantamount to an admission
that he could not adequately support his version of Marciana Abuyo's
death. The trial court's reasons for rejecting the defense version, as
hereunder quoted, are tenable and sound. Thus
On the contrary, the testimonies of defense witnesses
Geronimo Villan, Angeles Liling Balce and the accused
Filomeno Salufrania suspiciously dove-tailed in every
detail as to when, where and how .Marciana Abuyo
died at 6:00 o'clock in the morning of 4 December 1974,
in their house at sitio Kapagisahan Tigbinan Labo,
Carnarines Norte, of stomach pain. On these points,
these witnesses and the accused made statements
which seemed to be very fresh and clear in their minds,
despite the lapse of four long years. Their exact and
uniform declarations on these points, their
phenomenal recollections, without sufficient special or
uncommon reason to recall, rendered their testimonies
unconvincing. If at all, their testimonies appeared to

38

this Court to be an eleventh hour concoction. And, as

defense witnesses, after observing them and their
declarations on the witness stand, they appeared to
the Court to be untruthful and unreliable. For, despite
the synchronization of time when, the place where and
how the incidence happened, their testimonies on
other material points revealed their tendency to
exaggerate and their propensity to falsehood, thusAside from the accused Filomeno Salufrania, there are
three other witnesses for the defense Geronimo Villan
Angeles Liling Balce and Juanita Bragais. There is
nothing in the testimony of Juanito Bragais because he
did not witness how and when Marciana Abuyo died.
Francisco Repuya, who was also alleged by Filomeno
Salufrania to be present when Marciana Abuyo died,
did not testify. Accused Filomeno Salufrania never
claimed that he summoned for Angeles Liling Balce.
According to him Angeles Liling Balce was not present
during the moment of death of Marciana Abuyo, for
she was fetched by him only after the death of his wife.
Logically, therefore, there is no basis for the
presentation of Angeles Liling Balce that she was
present during the moment of death of Marciana
Abuyo. She was merely play-acting. Geronimo Villan
who claimed he passed-by the house of Filomeno
Salufrania and saw the latter boiling water with "ikmo"
and garlic, as medicine for his wife Marciana Abuyo,
who was about to give birth was discredited by accused
himself who declared he was merely boiling water for
the hot drink of his wife, who was suferring from her
old stomach ailment. In like manner, witness Geronimo
Villan discredited the accused Filomeno Salufrania,
about the presence of Francisco Repuya, who allegedly
alternated with Geronimo Villan in applying the native
treatments of 'hilot' and 'bantil' to Marciana Abuyo,
when throughout his testimony he (Geronimo Villan)
never mentioned the presence of Francisco Repuya.

After closely observing defense witnesses Geronimo

Villan and Angeles Liling Balce, this Court is convinced
that their testimonies and accounts of the incident are
fabricated, untruthful and not worth of credence.
Certainly, they were not present immediately before
and during the moment of death of Marciana Abuyo. ...
Added to these, there is one scandalous circumstance,
which to the mind of this Court, betrays the guilty
conscience of the accused. If there was nothing
revealing in the face of the deceased Marciana Abuyo,
why was her face covered by a piece of cloth by the
accused. ...
Trial judges are in the best position to ascertain the truth and detect
falsehoods in the testimony of witnesses. This Court will normally not
disturb the findings of the trial court on the credibility of witnesses, in
view of its advantage in observing first hand their demeanor in giving
their testimony. 16 Such rule applies in the present case.
Lastly, appellant alleges that, assuming he indeed killed his wife, there
is no evidence to show that he had the intention to cause an abortion.
In this contention, appellant is correct. He should not be held guilty of
the complex crime of Parricide with Intentional Abortion but of the
complex crime of Parricide with Unintentional Abortion. The elements
of Unintentional Abortion are as follows:
1. That there is a pregnant woman.
2. That violence is used upon such pregnant woman
without intending an abortion.
3. That the violence is intentionally exerted.
4. That as a result of the violence the foetus dies, either
in the womb or after having been expelled
therefrom. 17
The Solicitor General's brief makes it appear that appellant intended to
cause an abortion because he boxed his pregnant wife on the stomach
which caused her to fall and then strangled her. We find that
appellant's intent to cause an abortion has not been sufficiently
established. Mere boxing on the stomach, taken together with the
immediate strangling of the victim in a fight, is not sufficient proof to
show an intent to cause an abortion. In fact, appellant must have

39

merely intended to kill the victim but not necessarily to cause an

abortion.
The evidence on record, therefore, establishes beyond reasonable
doubt that accused Filomeno Salufrania committed and should be held
liable for the complex crime of parricide with unintentional abortion.
The abortion, in this case, was caused by the same violence that caused
the death of Marciana Abuyo, such violence being voluntarily exerted
by the herein accused upon his victim.
It has also been clearly established (a) that Marciana Abuyo was seven
(7) to eight (8) months pregnant when she was killed; (b) that violence
was voluntarily exerted upon her by her husband accused; and (c) that,
as a result of said violence, Marciana Abuyo died together with the
foetus in her womb. In this afternoon, Article 48 of the Revised Penal
Code states that the accused should be punished with the penalty
corresponding to the more serious came of parricide, to be imposed in
its maximum period which is death. However, by reason of the 1987
Constitution which has abolished the death penalty, appellant should
be sentenced to suffer the penalty of reclusion perpetua.
WHEREFORE, as modified, the judgment appealed from is AFFIRMED.
Accused-appellant is hereby sentenced to suffer the penalty of
reclusion perpetua. The indemnity of P12,000. 00 awarded to the heirs
of the deceased Marciana Abuyo is increased to P30,000.00 in line with
the recent decisions of the Court. With costs against the appellant,
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr.,
Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and GrioAquino, JJ., concur.

40

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724
April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.

MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape
in Criminal Case No. 83-031-B before the Regional Trial Court, Branch II,
Borongan, Eastern Samar. The information filed in the said case reads
as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning
inside a boarding house at Victoria St., Poblacion, Borongan,
Eastern Samar, Philippines, and within the jurisdiction of this
Honorable Court, above named accused with lewd designs and
by the use of a Batangas knife he conveniently provided himself
for the purpose and with threats and intimidation, did, then
and there wilfully, unlawfully and feloniously lay with and
succeeded in having sexual intercourse with Cristina S. Abayan
against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the
offense charged. After the witnesses for the People testified and the
exhibits were formally offered and admitted, the prosecution rested its
case. Thereafter, the defense opted not to present any exculpatory
evidence and instead filed a Motion to Dismiss. On August 5, 1985, the
trial court rendered its decision, the dispositive portion of which reads
(pp. 59-60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of

accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape
(Art. 335, RPC), beyond reasonable doubt, with the aggravating
circumstances of dwelling and nightime (sic) with no mitigating
circumstance to offset the same, and considering the provisions
of the Indeterminate Sentence Law, imposes on accused an
imprisonment of TEN (10) YEARS and ONE (1) DAY,PRISION
MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR,
maximum; to indemnify CRISTINA S. ABAYAN, the amount of
Four Thousand (P4,000.00) Pesos, without subsidiary
imprisonment in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of
Appeals. On December 29, 1988, the Court of Appeals rendered its
decision, the dispositive portion of which reads (p. 102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED,
and the appellant found guilty of the crime of rape, and
consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of
P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting
aside its December 29, 1988 decision and forwarded the case to this
Court, considering the provision of Section 9, paragraph 3 of Batas
Pambansa Blg. 129 in conjunction with Section 17, paragraph 3,
subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows
(pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman
student at the St. Joseph's College at Borongan, Eastern Samar.
Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at
her boarding house. Her classmates had just brought her home
from a party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of her boarding
house (p. 5, ibid). All of a sudden, somebody held her and

41

poked a knife to her neck. She then recognized appellant who

was a frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go
upstairs with him. Since the door which led to the first floor
was locked from the inside, appellant forced complainant to
use the back door leading to the second floor (p. 77, ibid). With
his left arm wrapped around her neck and his right hand poking
a "balisong" to her neck, appellant dragged complainant up the
stairs (p. 14, ibid). When they reached the second floor, he
commanded her to look for a room. With the Batangas knife
still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who
hit her head on the wall. With one hand holding the knife,
appellant undressed himself. He then ordered complainant to
take off her clothes. Scared, she took off her T-shirt. Then he
pulled off her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her.
He made her hold his penis and insert it in her vagina. She
followed his order as he continued to poke the knife to her. At
said position, however, appellant could not fully penetrate her.
Only a portion of his penis entered her as she kept on moving
(p. 23, ibid).
Appellant then lay down on his back and commanded her to
mount him. In this position, only a small part again of his penis
was inserted into her vagina. At this stage, appellant had both
his hands flat on the floor. Complainant thought of escaping (p.
20, ibid).
She dashed out to the next room and locked herself in.
Appellant pursued her and climbed the partition. When she
saw him inside the room, she ran to another room. Appellant
again chased her. She fled to another room and jumped out
through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was
about eighteen meters in front of the boarding house, and
knocked on the door. When there was no answer, she ran
around the building and knocked on the back door. When the
policemen who were inside the building opened the door, they

found complainant naked sitting on the stairs crying. Pat.

Donceras, the first policeman to see her, took off his jacket and
wrapped it around her. When they discovered what happened,
Pat. Donceras and two other policemen rushed to the boarding
house. They heard a sound at the second floor and saw
somebody running away. Due to darkness, they failed to
apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern
Samar Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which
states:
Physical Examination Patient is fairly built, came in
with loose clothing with no under-clothes; appears in
state of shock, per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with
prominent nipples; linear abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal
area or over the vulva, errythematous (sic) areas noted
surrounding vaginal orifice, tender, hymen intact; no
laceration fresh and old noted; examining finger can
barely enter and with difficulty; vaginal canal tight; no
discharges noted.
As aforementioned, the trial court convicted the accused of frustrated
rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in
the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape
was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras
because they "show remarkable and vital inconsistencies and its

42

incredibility amounting to fabrication and therefore casted doubt to its

candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer
to trivial inconsistencies which are not sufficient to blur or cast doubt
on the witnesses' straightforward attestations. Far from being badges
of fabrication, the inconsistencies in their testimonies may in fact be
justifiably considered as manifestations of truthfulness on material
points. These little deviations also confirm that the witnesses had not
been rehearsed. The most candid witnesses may make mistakes
sometimes but such honest lapses do not necessarily impair their
intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988,
160 SCRA 98). Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as adding
credence and veracity to such spontaneous testimonies (Aportadera et
al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158
SCRA 695). As a matter of fact, complete uniformity in details would be
a strong indication of untruthfulness and lack of spontaneity (People v.
Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of
the alleged inconsistencies deserves a little discussion which is, the
testimony of the victim that the accused asked her to hold and guide
his penis in order to have carnal knowledge of her. According to the
accused, this is strange because "this is the only case where an
aggressor's advances is being helped-out by the victim in order that
there will be a consumation of the act." (p. 34, Rollo). The allegation
would have been meritorious had the testimony of the victim ended
there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of the
victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the
findings of fact of the trial court on the credibility of witnesses should
be accorded the highest respect because it has the advantage of
observing the demeanor of witnesses and can discern if a witness is
telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989).
We quote with favor the trial court's finding regarding the testimony of
the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People,
there is not much to be desired as to the sincerity of the

offended party in her testimony before the court. Her answer

to every question profounded (sic), under all circumstances, are
plain and straightforward. To the Court she was a picture of
supplication hungry and thirsty for the immediate vindication
of the affront to her honor. It is inculcated into the mind of the
Court that the accused had wronged her; had traversed illegally
her honor.
When a woman testifies that she has been raped, she says in effect all
that is necessary to show that rape was committed provided her
testimony is clear and free from contradiction and her sincerity and
candor, free from suspicion (People v Alfonso, G.R. No. 72573, August
31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February
28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16,
1985, 140 SCRA 400). The victim in this case did not only state that she
was raped but she testified convincingly on how the rape was
committed. The victim's testimony from the time she knocked on the
door of the municipal building up to the time she was brought to the
hospital was corroborated by Pat. Donceras. Interpreting the findings as
indicated in the medical certificate, Dr. Reinerio Zamora (who was
presented in view of the unavailability of Dr. Abude) declared that the
abrasions in the left and right knees, linear abrasions below the left
breast, multiple pinpoint marks, circumscribed hematoma at the
anterior neck, erythematous area surrounding the vaginal orifice and
tender vulva, are conclusive proof of struggle against force and violence
exerted on the victim (pp. 52-53, Rollo). The trial court even inspected
the boarding house and was fully satisfied that the narration of the
scene of the incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition
safe enough to carry the weight of both accused and offended
party without the slightest difficulty, even in the manner as
narrated. The partitions of every room were of strong materials,
securedly nailed, and would not give way even by hastily scaling
the same.
A little insight into human nature is of utmost value in judging rape
complaints (People v. Torio, et al., G.R. No. L-48731, December 21,
1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):

43

. . . And the jump executed by the offended party from that

balcony (opening) to the ground which was correctly estimated
to be less than eight (8) meters, will perhaps occasion no injury
to a frightened individual being pursued. Common experience
will tell us that in occasion of conflagration especially occuring
(sic) in high buildings, many have been saved by jumping from
some considerable heights without being injured. How much
more for a frightened barrio girl, like the offended party to
whom honor appears to be more valuable than her life or limbs?
Besides, the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough
indication that something not ordinary happened to her unless
she is mentally deranged. Sadly, nothing was adduced to show
that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30,
1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her
having been rendered entirely naked by appellant and that
even in her nudity, she had to run away from the latter and
managed to gain sanctuary in a house owned by spouses hardly
known to her. All these acts she would not have done nor
would these facts have occurred unless she was sexually
assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present
other witnesses to corroborate the allegations in the complaint and the
non-presentation of the medico-legal officer who actually examined the
victim. Suffice it to say that it is up to the prosecution to determine
who should be presented as witnesses on the basis of its own
assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R.
No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31,
1989). As for the non-presentation of the medico-legal officer who
actually examined the victim, the trial court stated that it was by
agreement of the parties that another physician testified inasmuch as
the medico-legal officer was no longer available. The accused did not
bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first
assignment of error fall flat on its face. Some were not even

substantiated and do not, therefore, merit consideration. We are

convinced that the accused is guilty of rape. However, We believe the
subject matter that really calls for discussion, is whether or not the
accused's conviction for frustrated rape is proper. The trial court was of
the belief that there is no conclusive evidence of penetration of the
genital organ of the victim and thus convicted the accused of frustrated
rape only.
The accused contends that there is no crime of frustrated rape. The
Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates the
elements of the crime of rape:
Art. 335. When and how rape is committed. Rape is
committed by having carnal knowledge of a woman under any
of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next
preceding paragraphs shall be present.
xxx
xxx
xxx
Carnal knowledge is defined as the act of a man in having sexual bodily
connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary for
its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of execution
which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the

44

felony by reason of some cause or accident other than his own

spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted
and consummated stages apply to the crime of rape.1wphi1 Our
concern now is whether or not the frustrated stage applies to the crime
of rape.
The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the felony
and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave, 36
Phil. 209, 212, Justice Moreland set a distinction between attempted
and frustrated felonies which is readily understood even by law
students:
. . . A crime cannot be held to be attempted unless the offender,
after beginning the commission of the crime by overt acts, is
prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In
other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when
he has performed all of the acts which should produce the
crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result
in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony
is that, in the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts
have been performed which should result in the consummated
crime; while in the former there is such intervention and the
offender does not arrive at the point of performing all of the
acts which should produce the crime. He is stopped short of
that point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been

accomplished. Nothing more is left to be done by the offender, because

he has performed the last act necessary to produce the crime.Thus, the
felony is consummated. In a long line of cases (People v. Oscar, 48 Phil.
527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996,
August 21, 1974, 58 SCRA 505), We have set the uniform rule that for
the consummation of rape, perfect penetration is not essential. Any
penetration of the female organ by the male organ is sufficient. Entry of
the labia or lips of the female organ, without rupture of the hymen or
laceration of the vagina is sufficient to warrant conviction.Necessarily,
rape is attempted if there is no penetration of the female organ (People
v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United
States v. Garcia: 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission of a
felony directly by overt acts. Taking into account the nature, elements
and manner of execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage in rape can
ever be committed.
Of course, We are aware of our earlier pronouncement in the case of
People v. Eria 50 Phil. 998 [1927] where We found the offender guilty
of frustrated rape there being no conclusive evidence of penetration of
the genital organ of the offended party. However, it appears that this is
a "stray" decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the
Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965)
which provides, in its penultimate paragraph, for the penalty of death
when the rape is attempted or frustrated and a homicide is committed
by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eria
case, supra, might have prompted the law-making body to include the
crime of frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the
genital organ of the victim, the trial court relied on the testimony of Dr.
Zamora when he "categorically declared that the findings in the vulva
does not give a concrete disclosure of penetration. As a matter of fact,
he tossed back to the offended party the answer as to whether or not

45

there actually was penetration." (p. 53, Rollo) Furthermore, the trial
court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical
certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora
and the equivocal declaration of the latter of uncertainty
whether there was penetration or not. It is true, and the Court
is not oblivious, that conviction for rape could proceed from
the uncorroborated testimony of the offended party and that a
medical certificate is not necessary (People v. Royeras People v.
Orteza, 6 SCRA 109, 113). But the citations the people relied
upon cannot be applicable to the instant case. The testimony of
the offended party is at variance with the medical certificate.
As such, a very disturbing doubt has surfaced in the mind of the
court. It should be stressed that in cases of rape where there is
a positive testimony and a medical certificate, both should in all
respect, compliment each other, for otherwise to rely on the
testimony alone in utter disregard of the manifest variance in
the medical certificate, would be productive of mischievous
results.
The alleged variance between the testimony of the victim and the
medical certificate does not exist. On the contrary, it is stated in the
medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as
in inflammation) and tender. It bears emphasis that Dr. Zamora did not
rule out penetration of the genital organ of the victim. He merely
testified that there was uncertainty whether or not there was
penetration. Anent this testimony, the victim positively testified that
there was penetration, even if only partially (pp. 302, 304, t.s.n., May
23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx
xxx
xxx
Q What do you mean when you said comply, or what act do
you referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted
even on the sole basis of the victim's testimony if credible (People v.
Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v.
Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People
v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349).
Moreover, Dr. Zamora's testimony is merely corroborative and is not an
indispensable element in the prosecution of this case (People v.
Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt
the scale in favor of the accused because after a thorough review of the
records, We find the evidence sufficient to prove his guilt beyond
reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that
whenever the crime of rape is committed with the use of a deadly
weapon, the penalty shall be reclusion perpetua to death. The trial
court appreciated the aggravating circumstances of dwelling and
nighttime. Thus, the proper imposable penalty is death. In view,
however, of Article 111, Section 19(1) of the 1987 Constitution and Our
ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989,
that the cited Constitutional provision did not declare the abolition of
the death penalty but merely prohibits the imposition of the death
penalty, the Court has since February 2, 1987 not imposed the death
penalty whenever it was called for under the Revised Penal Code but
instead reduced the same toreclusion perpetua (People v. Solis, et al.,
G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a
single indivisible penalty under Article 335, paragraph 3, is imposed
regardless of any mitigating or aggravating circumstances (in relation to
Article 63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R.
No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No.
L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No.
70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby
MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape and sentenced to reclusion
perpetua as well as to indemnify the victim in the amount of
P30,000.00.
SO ORDERED.

46

Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

47

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79011 February 15, 1990
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SEMION MANGALINO y LUMANOG, accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Adriatico T. Bruno for accused-appellant.
SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial Court of
Manila, 1 in which the accused was convicted of statutory rape under
Article 335, paragraph 3 of the Revised Penal Code, 2 and sentenced to
suffer the penalty of reclusion perpetua and to pay the offended
parties the sum of P50,000.00 as moral damages. The complaint signed
by the father of the victim, Tomas Carlos y Valente states:
xxx xxx xxx
That on or about March 7, 1984, in the city of Manila,
Philippines, the said accused did then and there wilfully,
unlawfully and feloniously lie with and have carnal
knowledge of the undersigned complainant's daughter
Marichelle, a minor, 6 years of age, against her will and
consent.
Contrary to Law.
The following facts are fully supported by the evidence on record,
mainly the testimonies of the victim herself and her mother,
Bernardine, Dr. Roberto V. Garcia, and Staff Sergeant Mario Oser, as
well as the testimonies of the witnesses for the defense Ramil las
Dulce, Linda Ayroso, and the accused himself.
At about 10 or 11 o'clock in the morning of March 7, 1984, Marichelle
Carlos, 6 years old and a Grade I pupil at the Moises Salvador
Elementary School, Manila, was playing "takbuhan" alone at the first
level (ground floor) of the two-story apartment of the accused, Semion
Mangalino, 53, married to 55-year old Laura Gasmin, childless, a

security guard by occupation, and residing at 1597-D Honradez Street,

Sampaloc, Manila. 3 At the time of the incident, Laura was in Balayan,
Batangas, having left the day before the incident. The accused and
Marichelle's parents (Tomas and Bernardine Carlos) are neighbors,
their respective rented apartments being almost opposite each other.
During the morning of March 7, 1984, Ramil las Dulce, a 16-year old
high school student occupying the second floor of the apartment, for
free and free board, too, a grandson of the accused (his mother, Edita
Onadia who lived with him upstairs, being an adopted daughter of the
accused), and Laura's nephew, Armando Ayroso, were allegedly playing
chess 4 in the sala of the apartment. Ramil, a witness for the defense,
testified that he did not hear or see the accused calling out to
Marichelle and motioning her to go inside his bedroom or "sleeping
quarters" at one end of the sala of the ground floor, opposite the
kitchen.
Once inside the bedroom, the accused handed the girl a two peso bill
(P2.00) 5 and told her not to tell anybody about his calling her to his
bedroom. The girl assented. 6
The accused then laid Marichelle down, removed her jogging pants, and
placed them beside her feet. 7 He kissed her and fondled her infantile
breasts. 8 He inserted his finger into the private part of the victim, 9 and
then forcibly and repeatedly introduced his sexual organ into her
undeveloped genitalia, but in vain. 10
Meanwhile, the victim's mother, Bernardine Carlos, 27, and a plain
housewife, was looking for her daughter, who should be leaving for
school by that time. She was informed by her sister Agnes, who was
living next door, that the adopted daughter of the accused, Cielito, had
told her that Marichelle was in their apartment. 11 Immediately,
Michael, Agnes' four-year old son, was dispatched to fetch Marichelle.
Hearing the call of Michael, the victim put on her garments, and on the
way home noticed that her jogging pants were wet. Upon reaching her
house, Marichelle narrated to her mother what had happened, saying,
"Si Mang Semion nilagay ang daliri niya sa pikpik ko," and "yong titi ni
Mang Semion nilagay sa pikpik ko." 12
At about 2:30 that same day, an enraged Bernardine submitted her
daughter to a physical and genital examination,13 the results of which

48

National Bureau of Investigation (NBI) Medico Legal Officer Roberto V.

Garcia certified as follows:
No evidence (or) sign of any extragenital physical injury
noted on the body of the subject at the time of
examination.
Hymen, intact and its orifice, narrow.
Sign of recent genital trauma, present.
Dr. Garcia opined that the vestibular mucosa contusion could have
been caused by a hard object like an erected penis and such bruises at
such part of the girl's vagina if caused by an erected penis would be an
indication of an unsuccessful penetration. He discounted the
probability of an accident, like bumping at an edge of a chair, or any
blunt object, since there was no contusion of the labia. 14
The confrontation between the victim and the accused took place when
Staff Sergeant Mario Oser of the Waterfront Unit, Reaction Strike Force,
Philippine Constabulary Metropolitan Command (P.C. Metrocom), who
conducted the initial investigation, invited the accused to the P.C.
Headquarters. There, Marichelle Identified Semion Mangalino as the
man who had abused her.
The accused vehemently denied having ever abused Marichelle. He
argued that the bruises in the complainant's vestibular mucosa may
have been self-inflicted. Marichelle, who was constantly running about,
might have bumped her pelvis against a chair, which explained the
absence of signs of contusions in the labia.
Curiously, the young victim candidly testified that she felt no pain when
the accused was allegedly trying to insert his penis into her vagina. She
did not cry in pain nor shout for help when she was being abused. 15
Before the Court, the appellant assigned four errors in his brief which
he claims the trial court committed, to wit:
ASSIGNMENT OF ERRORS
ERROR I
THE TRIAL COURT ERRED IN NOT FINDING THAT,
CONSIDERING THE PLACE, THE TIME, AND THE
PRESENCE OF SO MANY PEOPLE WITHIN THE
IMMEDIATE VICINITY WHERE THE ALLEGED CRIME WAS
COMMITTED, THE ACCUSED COULD NOT HAVE

SEXUALLY ABUSED MARICHELLE G. CARLOS, THE

COMPLAINING WITNESS HEREIN;
ERROR II
THE TRIAL COURT ERRED IN NOT FINDING THAT THE
BRUISES THROUGH THE VESTIBULAR MUCOSA OF THE
PRIVATE PART OF MARICHELLE G. CARLOS IS THE
RESULT OF AN ACCIDENT, CONSIDERING THAT ON
MARCH 7,1984, SHE WAS IN THE GROUND FLOOR OF
THE APARTMENT OF HEREIN ACCUSED PLAYING
RUNNING AROUND "TAKBUHAN";
ERROR III
THE TRIAL COURT ERRED IN ORDERING THE ACCUSED
TO PAY THE OFFENDED PARTIES, MARICHELLE G.
CARLOS AND HER PARENTS, TOMAS CARLOS AND
BERNARDINE GANLAC CARLOS, THE SUM OF
P50,000.00 AS AND FOR DAMAGES;
ERROR IV
THE TRIAL COURT ERRED IN FINDING THAT THE
ACCUSED IS GUILTY OF THE CHARGE ALLEGED IN THE
INFORMATION, INSTEAD OF ACQUITTING HIM WITH
COSTS DE OFFICIO. 16
The defense vigorously argues against the probability of the rape
having been committed on two points: 1) The commission of the crime
was impossible, taking place as claimed, in broad daylight, and 2) there
were at least eight persons including the accused and the
complainant on the ground floor where the rape was supposedly
consummated.
The commission of the crime, submits the defense, was impossible,
considering that it was allegedly committed at noontime, which would
have readily exposed the act of rape to anyone glancing in the direction
of the place where the suspect was abusing the victim.
On the second point, it is contended that the rape could not have been
accomplished with so many persons present in the apartment. As it was,
Ramil and Armando were playing chess near the front door of the
apartment. Also, Linda Ayroso, 29, married to Armando, and a
housewife, was washing laundry in the kitchen. Furthermore, the
accused was cooking lunch also in the kitchen, and so could not have

49

flitted from the kitchen to his room to execute his evil design without
anyone noticing his absence.
The defense brings to our attention the physical layout of the
apartment of the accused. The place where the alleged sexual abuse
took place was not even a room, he asserts. The apartment had neither
a door nor walls, and what divided the so-called room from the living
room was a wooden folding divider which was full of holes, "butasbutas." 17
Finally, the accused assails the lower court's slapping of damages based
on the claims of prosecution witnesses of suffering mental anguish,
moral shock, and a "besmirched reputation." Since he did not commit
the offense attributed to him, the award of P50,000.00 as moral
damages is unwarranted. Consequently, he prays he must be
exculpated.
We deny the appeal except the amount of the award of damages which
we reduce to P20,000.00 conformably to prevailing jurisprudence.
We rule that statutory rape had been committed beyond the shadow of
a doubt.
The gravamen of the offense of statutory rape as provided in Article
335, paragraph 3 of the Revised Penal Code is the carnal knowledge of
a woman below 12 years of age. 18 Marichelle, a little over 6 years of
age at the time, was raped. Beyond that, proof of intimidation or force
used on her, or lack of it, is immaterial.
The findings of Dr. Roberto V. Garcia, the NBI Medico Legal officer, who
testified for the People, conclude that rape could have been
perpetrated. To reiterate, he certified the existence of indications
of recent genital trauma. Under normal condition, the color of the
vestibular mucosa is pinkish. The doctor found the vestibular mucosa of
the victim to be dark red. 19 The forcible attempt of an erected penis to
have complete penetration caused the 3 1/2-centimeter contusion
prior to the hymen. The government doctor further discounted the
probability of an accident, such as bumping the edge of a chair, or
violent contact with a blunt object, as there was no contusion of the
labia.
The penile-vaginal contact without penetration was due to the onecentimeter diameter opening of Marichelle's hymen. Usually, the
average adult's hymen measures 2.8 to 3 centimeters in diameter,

making it compatible to, or easily penetrable by, an average-size penis.

The victim being of a tender age, the penetration could go only as deep
as the labia. 20 In any case, the Court has consistently held that for rape
to be committed, full penetration is not required. It is enough that
there is proof of entrance of the male organ within the labia or
pudendum of the female organ. 21 Indeed, even the slightest
penetration is sufficient to consummate the crime of rape.
The relationship between the offender and the victim as neighbors
remains unrebutted. This relationship has an important bearing on the
medico-legal finding, because it explains the absence of visible signs of
physical injuries.22 The close relationship of Semion Mangalino to
Marichelle as a nearby neighbor of the Carlos family and the
degree of respect that Semion may have had in Marichelle's life, helps
explain why physical force was not employed. The mere size of the
accused, a robust security guard, and 163 centimeters (five feet and
four inches) in height, could have easily immobilized the victim who
was at that time only one hundred eight centimeters tall and weighing
31.818 kilos (70 lbs.)
The attempt to discredit the prosecution's version as shown by the fact
that Marichelle did not cry out or struggle against her attacker deserves
scant consideration. The absence of hymenal laceration adequately
explains why Marichelle did not feel any pain during the attempted
sexual intercourse. Why would she struggle, when she did not even
know that her chastity was being violated? As her mother testified, it
was only upon realizing that she had been defiled did her daughter cry.
From then on, she became "matatakutin' and "hindi na kumakain", she
became nervous and had no appetite for food symptoms of a state
of anguish.
The simplicity of the testimony of Marichelle convinces us that she was
telling the truth about her having been sexually abused.
xxx xxx xxx
q (Asst. Fiscal Mercedes C. Salvania)
Now, while you were playing will you
tell this Honorable court where did you
go after that?
Witness (Marichelle)

50

a While I was playing Mang Simeon

called me madam.
Court

Witness
a Yes, your Honor.
Fiscal Salvania

q Why, were you playing alone?

q When you were asked to go inside

the higaan of Semion Mangalino, did
you go?

Witness
a Yes, your Honor.
Witness

Fiscal Salvania
q What were you playing?

a Yes, madam.
q Now, when you went inside
the higaan, what did he do to you?
a He inserted one of his fingers in my
private part madam.

Witness
a I was running around "takbuhan"
madam.
Court
q Were you running outside or inside
the house of the accused

Fiscal Salvania

a Inside the house of Semion

Mangalino, your Honor.

Witness

q You stated that you were wearing

jogging pant?

Witness

a Yes, madam.
q What happened to your jogging pant?
a He first removed my jogging pant,
madam.
q After removing your jogging pant, did
he removed (sic) anything in his clothes?
a He did not removed (sic) anything in
his clothes madam.

Fiscal Salvania
q While you were playing inside the
house of Semion Mangalino he called
for you?
Witness
a Yes, madam.
q Why did he called (sic) for you?
Court

Witness

q Beside the jogging pant you are (sic)

wearing, were you also wearing a panty?

a He called me and told me to go to his

bedroom madam.
Witness

Fiscal Salvania
q When you were asked to go to his
bedroom, did he give you anything?

a Yes, your Honor.

Fiscal Salvania
q What happen(ed) to your panty, did
he remove?

Witness
a Yes madam.
q What did he give to you?
a He gave me P2.00, madam.

Witness
a He also removed my panty madam.
Fiscal Salvania

Court
q Did you accept that P2.00?

q What did he do with his finger?

51

Court
She said he inserted.
q Was one of the fingers of the accused
inserted in your private part?
Witness
a Yes, your Honor.
q What did he do?
a He kissed me your Honor.
q Where did he kissed (sic) you?
a In my breast your Honor.
Fiscal Salvania
q Did he remove your T-shirt?
Witness
a No madam.
xxx xxx xxx
Court
q Did Semion Mangalino removed (sic)
his pant?
Witness
a He did not removed (sic) his pant
your Honor.
xxx xxx xxx
q Do you know what is penis?
a Yes, your Honor.
q Did the accused put-out his penis
while he was inserting his finger in your
private part and kissing you in the
breast?
a He put-out his penis while he was
kissing and his one fingers (sic) inserted
in my private part, your Honor.
q What did he do with his penis?
a He is inserting his penis in my private
part, your Honor.
Court

q Was the accused able to insert his

penis into your private part?
Witness
a He was not able, your Honor.
xxx xxx xxx
q How do you feel or did you feel pain
while the accused was trying to insert
his penis into your private part?
Witness
a I did not feel anything, your Honor.
q Did you feel pain?
a I did not feel anything painful, your
Honor.
q Did you saw (sic) the penis of Semion
Mangalino?
a Yes, your Honor.
q What was your position when Semion
Mangalino was trying to insert his penis
into your private part?
Witness
a I was lying down, your Honor.
Court
q Who put you lay (sic) down, was it
yourself or what?
Witness
a Semion Mangalino, your Honor.
q Did you not cry?
a I did not cry, your Honor.
q Did you shout?
a I did not shout, your Honor.
q Why, were there persons inside the
house while Semion Mangalino was
doing all these things to you?
a There were no other persons except
myself and Semion Mangalino your
Honor. 23

52

Marichelle was a Grade I pupil when she was violated. She was in Grade
II when she took the witness stand. In view of her very tender age and
her little formal schooling, it is inconceivable for Marichelle to concoct
a serious charge of rape, and to narrate, in unhesitating and simple
terms, that she had been asked by the offender to go inside the room;
that she was laid down after the accused had given her P2.00; that he
removed her jogging pants and panty; that the accused kissed her and
caressed her breasts, that "Mang Semion" inserted a finger into her
genital, and later his sexual organ. At age 6, Marichelle would have
been one of those "babes and sucklings" from whose mouths words of
praise should have been perfected, but alas, she was instead compelled
to relate in the presence of people, some of them complete strangers,
in the police precinct and in court, her tragic story.
The heart of the matter is the violation of a child's incapacity to discern
evil from good. As the behavior of the victim towards the accused
during the commission of the crime and her testimony before police
officers and in the court indicate, she had no awareness of the
wrongfulness of the action of the accused who was old enough to be
her grandfather. Her willingness to lie down on and accept the P2.00
given her by the accused, whom she looked up to as an elder person, a
neighbor, and a friend of her family, indicate not naivete, but the
absolute trust and confidence of the very young in an older person. She
was incapable of reading malice or evil in his intentions. It is likely that
it was only when she saw how distraught her mother was at her telling
of her story and the flurry of police and judicial activity stirred up by her
narration that her young and innocent mind was violently exposed to
the reality of the existence of evil in the hearts of men. The moment of
truth, dawning so violently upon young and innocent minds is
contemptible. The older persons in the community should set
themselves up as models of proper decorum and high moral purpose
for young children; it is they who should guide the young, teach them,
and nurture them in the way of the righteous. A 53-year-old man who
instead corrupts and violates the purity and dignity of a minor is
morally depraved and should be punished to the limits of the law.
It is even more difficult to conceive of Mrs. Bernardine Carlos trumping
up a charge of the rape of her daughter and subject herself and her
daughter to humiliation, to fear, and anxiety, and community censure

that she and her daughter will have to bear for the rest of their
lives, 24 simply in consideration of P50,000.00, the amount asked for in
moral damages.
The trial court's findings of facts which rely on the credibility of
witnesses are entitled to respect, if not finality. A painstaking
examination and review of the records of the case yield no fact or
circumstance that would have contradicted the findings of the trial
court.
The alleged inconsistencies refer to minor details and do not at all
touch upon the basic aspects of the who, the how, and the when of the
crime committed. Minor discrepancies in the testimonies of Marichelle
and her mother are but natural, and even enhance their credibility as
witnesses because these discrepancies indicate that the responses
given were honest and unrehearsed. 25 In appreciation of the testimony
of the victim, due regard must be accorded to her tender age.
The contention of the accused that he never left the kitchen is flawed.
The facility of a quick tap to his room can not be discounted considering
that kitchen where he was supposed to have been cooking was only a
few meters away. That the presence of Ramil and Armando who were
allegedly playing chess in the kitchen made the commission of the
crime impossible, even if were true, falls flat in the face of the game of
chess being one that requires utmost concentration; that being so, it is
logical for both players to be concentrating on the game when the
accused lured Marichelle into the room. We hold that when Ramil,
Armando, and Linda were engrossed in what they were doing, that the
accused surreptitiously enticed Marichelle into his higaan, and that the
short distance between the kitchen and the "room" a mere distance
of 5 to 6 meters is no obstacle to the satiation of his carnal lusting
after the child.
The accused claims it was impossible for him to have raped the victim
in the presence of other people, more so, in a place without privacy.
We do not agree. Rape was in fact committed. It is quite possible for an
experienced man, like the accused, to consummate rape in just one
minute, without attracting the attention of the people inside the
apartment. 26 Marichelle's complete innocence may have facilitated the
perpetration of the clime, and the divider, although "butas-butas," was
sufficient to conceal the commission of the bestial act.

53

In several instances, this Court held that rape can be committed even in
places where people congregate: in parks, along the road side, within
school premises, and even inside a house where there are other
occupants. 27 The apartment of the accused was no exception. Lust is
no respecter of time or place.
In fine, we hold that the trial court did not commit any reversible error
in finding the accused-appellant guilty beyond reasonable doubt of the
crime of statutory rape.
No amount of money can soothe the pain and anguish suffered by a
victim of rape and her family. Still, we cannot impose the damages of
P50,000.00 on the accused. As stated earlier, we reduce the amount to
P20,000.00.
WHEREFORE, the appealled decision is AFFIRMED with the
MODIFICATION above indicated.
Costs against the accused-appellant.
SO ORDERED.

54

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. L-44859-60 April 27, 1984
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ABELARDO BALBUENA and JUANITO TORRES, accused-appellants.
The Solicitor General for plaintiff-appellee.
Luciano D. Valencia for accused-appellants.
GUERRERO, J.:+.wph!1
Appeal from the decision of the Court of First Instance of Rizal, Branch
XII, Caloocan City, promulgated on August 6, 1976, in Criminal Cases
Nos. C-6848 (75) and C-6849 (75) convicting herein accused Abelardo
Balbuena and Juanito Torres for the crime of RAPE and sentencing each
of them to suffer in each case the penalty of reclusion perpetua and to
pay the costs.
The two separate informations dated November 20, 1975 filed by Asst.
City Fiscal Romeo C. Cortes upon the complaint of the offended party,
Elvira Polintan, single, 20 years of age, a senior criminology student of
the Philippine College of Criminology, against the two accused, read as
follows:
CRIMINAL CASE NO. C-6848 (75) t.hqw
That on or about the 28th day of August, 1975, in the
City of Caloocan, Philippines, and within the jurisdiction
of this Honorable Court, the said accused Abelardo
Balbuena y Garcia, conspiring and confederating with
Juanito Torres y Villanueva, by means of force, did then
and there wilfully, unlawfully and feloniously have
carnal knowledge of the complainant Elvira Polintan
against the latter's win and consent.
Contrary to law.
CRIMINAL CASE NO. C-6849 (75) t.hqw
That on or about the 28th day of August, 1975, in the
City of Caloocan, Philippines and within the jurisdiction
of this Honorable Court, the said accused Juanito

Torres y Villanueva, conspiring and confederating with

Abelardo Balbuena y Garcia, by means of force, did
then and there willfully, unlawfully and feloniously
have carnal knowledge of the complainant Elvira
Polintan against the latter's win and consent.
Contrary to law.
Upon arraignment, both accused, assisted by counsel, waived the
reading of the information and entered the plea of not guilty. Upon
motion of the Fiscal, on the ground that the complainant in both cases
is one and the same person, the court conducted a joint trial of the two
cases.
The evidence of the prosecution as summarized in the People's Brief
established that: t.hqw
On August 28, 1975, at around 10:00 o'clock in the
evening, complainant Elvira Polintan was in an
apartment located at P. Zamora St., Caloocan City,
talking with appellant Juanito Torres, a friend of long
standing (pp. 1-2, t.s.n., Feb. 10, 1976). After a while,
some friends of Torres arrived. Torres and his friends
agreed to drink liquor. They invited Elvira Polintan to
join them (p. 2, t.s.n., Id.). Because Elvira had not seen
appellant Torres for quite sometime, she accepted the
invitation. They decided to hold the drinking party at
the apartment of appellant Abelardo Balbuena which
was also situated at P. Zamora St., Caloocan City, and
adjacent to the house of appellant Juanito Torres (Ibid.).
The ground floor of Balbuena's apartment was formerly
a billiard hall but was no longer used as such (p. 10,
t.s.n., Id.). Inside the billiard hall where the drinking
party was held, Torres introduced Balbuena to Elvira
Polintan (lbid.). Aside from the two appellants and
Elvira Polintan there were three other male persons in
the group (p. 2, t.s.n., Id.). They drank gin. (lbid.)
After Elvira Polintan consumed a half glass of gin, she
felt dizzy (Ibid.). She asked permission from the group
that she would take a rest. She lay down in a bench
inside the billiard hall (p. 5, t.s.n., Feb. 24, 1976). Then,

55

appellant Balbuena undressed the complainant by

removing her pants and briefs (pp. 4, 19, 21, t.s.n., Id.)
and spread her legs wide apart (p. 22, t.s.n., Id.). At this
juncture, appellant Torres was holding Elvira's hands.
Balbuena then went on top of the billiard table (p. 16,
t.s.n., Feb. 24, 1976). In the meantime, complainant
feebly tried to extricate herself even as appellant
Balbuena kept on threatening her and her family with
death if she would not yield her body to him (Ibid.).
Finally, Balbuena succeeded in having carnal knowledge
with complainant (pp. 22-23, t.s.n., Id.).
After appellant Balbuena had satisfied his lustful
desires, he went down the billiard table. Immediately
thereafter, appellant Torres went up the billiard table.
Appellant Balbuena held complainant's hands (p. 4,
t.s.n., Feb. 16, 1976). Despite complainant's continued
struggle by twisting her body and kicking her feet, she
simply could not overpower the appellants, so that
appellant Torres also succeeded in consummating the
sexual act with her (p. 5, t.s.n., Id.). In the course of the
sexual act, appellant Balbuena covered the mouth of
complainant to prevent her from shouting (p. 5,
t.s.n., Id.). After she was raped, she sat down on the
corner and cried. Appellant Balbuena told her
"remember what I told you (referring to the threat that
he will kill complainant and her parents)." (Ibid.). After
about five minutes and when the attention of the
appellants were distracted, complainant ran away and
proceeded to her house. (Ibid.).
On October 19, 1975, she related her sad experience to
her mother (p. 7, t.s.n., Feb. 10, 1976). The following
day, October 20, 1975, she went to the police
headquarters at Caloocan City and gave a statement
(Exhibit "A") narrating the incident of August 28, 1975
(p. 6, t.s.n., Id.). Also on October 20, 1975, she filed a
complaint (Exhibits "B" and "C") for rape in the City
Fiscal's Office at Caloocan City against the appellants.

On the same date, complainant was examined by Dr.

Maximo Reyes, medico-legal officer of the National
Bureau of Investigation who issued a medical certificate
(Exhibit "D", p. 46, rec.) with the following findings:
General Physical Examination: t.hqw
Height: 156 cm. Weight: 96 lbs.
Normally developed, fairly nourished,
conscious, coherent, cooperative
subject.
Breast fully developed, hemispherical
and soft. Areola, dark brown, 3.0 cm. in
diameter.
No evident sign of extragenital physical
injury noted on the body of the subject.
Genital Examination: t.hqw
Pubic hairs, fully grown and abundant.
Labia majora and minora both gaping.
Fourchette, lax Vestibular mucosa,
pinkish. Hymen, thick, moderately wide,
with multiple natural notches and a
healed superficial laceration at 5:00
o'clock position corresponding to the
face of the watch; edges beginning to
round up and hardly coeptable
Hymenal orifice originally annular and
admits a tube 3.0 cm. in diameter with
moderate resistance. Rugosities,
shallow, and vaginal walls lax.
CONCLUSIONS: t.hqw
1. No evident sign of extragenital
physical injury noted on the body of
the subject.
2. She could have had sexual
intercourse with a man on or about the
alleged date of commission. 1
Both accused-appellants rest their defense on denial and alibi.

56

Accused Juanito Torres testified that he had known, the complainant

for the past three years prior to the alleged commission of rape as she
used to be with him in going places and having occasional drinking
sprees of beer, gin and coke, "pagka may katuwaan", with a group of
male companions; 2 that at about 4:00 o'clock in the afternoon of
August 28, 1975, he saw complainant and requested her to accompany
him to his cousin who resides at Gen. Luna Street, Caloocan City, to
request his cousin to write a letter for him, and she acceded to come
along; 3 that however, he went alone to see his cousin while
complainant stayed behind at the fire department and then he went
home without her at about 6:00 o'clock in the afternoon of the same
day. 4
In denying any participation in the rape charge, accused Torres
disclaimed his presence at the drinking party held inside the billiard hall.
He denied that he usually drives a public utility jeepney from the corner
of 10th Avenue, Rizal Avenue Extension, up to Biglang-Awa from 6:00
o'clock in the evening up to 12:00 o'clock midnight. 5 He declared
further that complainant, a tomboy, had a previous amorous relation
with his cousin, Rhodora Torres, and that she maintains a grudge
against him for advising his cousin to part ways with her which resulted
in the separation of his cousin and the complainant. 6 He said that after
August 28, 1975, he had on seven or nine occasions seen the
complainant who when greeted simply ignored him. 7
On the other hand, accused Abelardo Balbuena also denied the
accusation of rape against him and his participation at the drinking
spree with complainant. He testified that he first met complainant
upon being introduced to each other on August 28, 1975 at his father's
billiard hall situated at P. Zamora Street, Caloocan City; that after
conversing with her for about five minutes, he left complainant in the
company of three male companions and that they had a drinking spree
at the billiard hall. They went to the upper floor of their house to eat
supper and only came down later to ask her and her companions what
time they would leave the house, to which she answered that it would
not take long, and immediately thereafter he went upstairs again to do
something else. 8

As indicated earlier, both accused were found guilty and sentenced in

each case to suffer the penalty of reclusion perpetua and to pay the
costs.
Appealing to this Court, accused-appellants submit the following
assignment of errors:t.hqw
I
The lower court erred in not declaring Elvira Polintan as
an incredible complaining witness in her narration of
being raped by the accused.
II
The lower court erred in not declaring Elvira Polintan as
a willing victim in the crime of rape, hence, the element
of force is absolutely wanting.
In raising the first assigned error, appellants contend that the lower
court should have declared complainant Elvira Polintan as an incredible
witness in her narration of being raped by the accused, pointing out
that there was a delay of more than one month before the incident was
reported to the police authorities; that complainant used to go with
male friends, imbibing alcoholic beverages; that no bodily injuries were
noted in the medical certificate (Exhibit "D"); that her dress or
underwear was not torn and that she was able to give a detailed
description of what transpired during the night including the acts and
movements of the appellants.
On the question of delay which the defense submits to be construed to
mean that the Court should doubt the very existence of the commission
of the crime, We agree and affirm the ruling of the trial court that the
delay in filing the complaint was reasonable. The reasoning of the Court
that "(i)t is not easy for a Filipina to easily decide whether to come out
in the open in a situation where public contempt and ridicule would
result in the prosecution of a case. The very fact that she came forward
in the case is persuasion that the act had been committed. The
complainant stands to gain nothing with her revelation and the
consequent punishment of the accused," is well-grounded, considering
the inate modesty of Filipina womanhood and the inherent reluctance
of the Filipino family to be exposed to the rigors of a long drawn out
trial scandalizing the family's good name and honor.

57

It is quite true that the unexplained delay in the filing of a criminal

complaint for rape may result in an adverse inference against the
complainant's sincerity and credibility, as in People vs. Pimentel, 118
SCRA 695, where the formal complaint was lodged against appellant
after the lapse of 39 days and the Court said it taxes one's credibility
that complainant could be able, after a long period of time, to feign a
composed and serene posture after the harrowing experience she had
undergone. But that is not true in the instant case. The victim herein
has rendered a credible and satisfactory account for her delay in
reporting the incident to her mother and in seeking the help of the
authorities. The complainant unequivocably testified that she was
fearful over the threats of the accused-appellants that they would kill
her and her parents should she report the matter to the police,
especially so since she resides near the houses of the accusedappellants and she has to pass their houses in going out. 9 She also
expressed her worry that her ongoing classes at school would be
disrupted upon her filing of the complaint. 10 The fear and the shock
engendered by the threats as well as her desire to avoid further shame
is more than sufficient to restrain the offended party from immediately
exposing her sad experience. 11
We reject appellants' contention that complainant Elvira Polintan is an
incredible witness because she used to go with male friends, imbibing
alcoholic beverages. This is not unusual, considering that complainant is
admittedly a "'tomboy". As observed by the trial court, the demeanor
of the complainant at the witness stand shows: t.hqw
Admittedly, the complainant is a 'tomboy'. Her
appearance is most revealing. She is not exactly ugly.
These considerations notwithstanding, and perusing
the background leading to the incidents in question, it
cannot be disputed that the two accused were at the
time of the incident, drunk. Such being their state, it is
not-improbable to say that the physical appearance of
the woman would not bar these persons from the
commission of the offense. (See CFI Decision)
And neither the absence of any injury being noted in the medical
certificate nor that her dress or underwear was not torn supports
appellants' submission that complainant is an incredible witness. The

absence of any injury is explained by the fact that the physical

examination of the victim was made after more than one month had
elapsed from the commission of the crime and moreover, We find no
evidence that complainant was injured in her struggle to resist the acts
of the accused. And there was no torn dress or underwear because she
was then wearing pants and brief at the time of the incident. 12
The general rule on the credibility of the victim's testimony in a rape
case is well-stated in People vs. Pimentel, 118 SCRA 695 where the
Court, speaking through Justice Escolin, held as follows: t.hqw
In weighing the testimony of the complainant in an
accusation for rape, the rule often applied by the
courts is that the testimony of the victim, whose
chastity has not been questioned, is generally accorded
credence because such offended party would not have
fabricated facts that could bring shame and dishonor
on her. Nor would she disclose her humiliating
experience at a public trial, and thus give rise to gossip
and slander, unless her motive was to bring to justice
the person who grievously wronged her.
Such a rule has been established because the detestable crime of rape
in which a man shows his most heinous side is one of the hardest to
prove. Indeed, the testimony of the victim most often is the only one
available to prove directly its commission and corroboration by other
witnesses would in certain cases place a serious doubt as to the
probability of its commission. When a woman testifies that she has
been raped, she says all that need to be said to signify that this crime
has been committed. (U.S. vs. Ramos, 1 Phil. 81).
In its decision, the trial court said that it "has gone at length with the
testimony of Elvira Polintan in order to determine whether the same is
conclusive, logical and probable. The complainant when she testified
before the court to narrate what had happened on the night of August
28, 1975, appeared to be credible as a witness, and her account of the
incident likewise left in the judicial mind an affirmative answer whether
a woman of complainant's stature could be the object of this heinous
offense." The court further added: "Then too, the complainant narrated
the incident in a straight forward and convincing manner and despite
the lengthy cross-examination to which she has been put too, she was

58

steadfast in the fact that she was the victim of rape. Moreover, the very
fact that she came out forward in this case is in itself a silent but
persuasive evidence of an outrage done upon her honor. Considering
these "evidences on record," there is nothing in the defense evidence
which points out convincingly why Elvira Polintan should "corrupt the
truth and put the lives of these two accused in jeopardy."
This finding of the trial court on the credibility of the complaining
witness is entitled to the highest respect upon this Tribunal, and We
will not disturb the same.
Moreover, We find no reason, and none is advanced by appellant
Balbuena why complainant should implicate him in the case considering
that he came to know the complainant for the first time during the
incident. The motive imputed by appellant Torres to the complainant in
implicating the appellant in the charge of rape which is that Torres told
his cousin, Rhodora Torres, to sever her relationship with complainant,
is indeed too flimsy to be accepted because the crime of rape exposes
not only the accused but also the complainant to public ridicule and
shame.
We agree with the trial court in its conclusion that "(t)he sum total of
all the foregoing considerations is the fact that the court believes that
essential elements constitutive of the crime of rape had been
established by the prosecution peradventure of doubt."
The defense of the accused is one of denial as pointed out earlier in this
decision, which is inherently weak, and more than that, the testimony
of the accused Torres that he was with the complainant on August 28,
1975 at about 4:00 o'clock in the afternoon and not in the evening, is
itself belied by the other accused Balbuena who admitted that Torres
was present at the drinking spree on August 28, 1975. And in addition
to the above contradiction, the defense of the accused is wanting in
material corroboration.
As to the second assigned error, We find the same to be without merit.
Complainant is a "tomboy" and as such, she is sexually attracted to
persons of her own sex rather than to the male specie. She would not
willingly submit herself to a sexual intercourse with a male person as
suggested by the appellants. The evidence is clear that appellants
employed force in consummating the crime of rape. From the bench
where she was lying down, she was pulled to the billiard table and

bodily raised on top of the table where she was forced to lie down.
Both accused held her at the wrist and one of them held her by the feet.
She fought and struggled with them (nagpapapalag). On top of the
billiard table, Torres held both of her hands while Balbuena laid on top
of her and sexually abused her. After that, Balbuena went down from
the table and Torres climbed while the other held both of the victim's
hands and similarly, Torres was able to rape her.
That the guilt of the accused for the crime of rape has been proved
beyond reasonable doubt is clear and the decision being in accordance
with law and the evidence, the same must be affirmed.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of
conviction against the accused-appellantsAbelardo Balbuena y Garcia
and Juanito Torres v Villanueva and the penalty of reclusion perpetua in
Criminal Case No. C-6848 and Criminal Case No. C-6849 for each of the
accused is hereby AFFIRMED. Costs de oficio.
SO ORDERED.1wph1.t
Makasiar (Chairman), Aquino, De Castro and Escolin, JJ., concur.
Concepcion, Jr., J., I vote for acquittal.

Separate Opinions
ABAD SANTOS, J., dissenting:
Elvira Polintan was 20 years old in August, 1975. By her own testimony
she joined a group of men in a former billiard hall for the purpose of
drinking "cuatro cantos" gin. All the men, except for appellant Juanito
Torres, were apparently strangers to her. Is this normal behaviour for a
Filipino woman of her age? I do not think so. The Filipino woman as a
rule is an abstainer even after she has reached maturity. I have to
conclude that Elvira's conduct casts a dark cloud on her claim that she
was raped successively by Torres and Abelardo Balbuena.
If in fact there was sex, "It could very well be that the euphoric feeling
induced by this young girl's imbibing tuba wine led to the relaxation of
what could be inhibiting factors." (People vs. Joven, L-36022, May 22,
1975, 64 SCRA 126, 128.) In other words if there was sex, it was with
Elvira's consent. Other circumstances support the consensual view:

59

1. There was no determined resistance by Elvira nor did she shout for
help considering that there were other persons in the premises.
2. She had no signs of extragenital injury nor any kind of injury for that
matter. While it is true that there can be a conviction for rape even
absent signs of injury still there must be other convincing evidence. In
the case at bar there is none other than the say so of the complainant.
3. The unreasonable delay in the filing of the complaint against the
appellants. One month and 23 days elapsed before Elvira complained
that she had been raped and her lame excuse for the delay was that
she was threatened with death by the appellants which she ignored
after all.
It is usually said in rape cases that the Filipino woman is modest and
shy so that she will not publicly complain of having been raped and
thereby expose herself to shame and ridicule unless she was in fact
raped. I accept this proposition for a typical Filipino woman. But
Elvira is not a typical Filipino woman. Not yet 21 she was already a
guzzler, not just of ladies' drinks, but of full-strength distilled spirits like
gin.
The appellants have put up the defense of denial and alibi. This defense
can well be rejected but it does not follow that they are guilty. For it is
elementary that the prosecution must rely on the strength of its
evidence and not on the weakness of the defense. In the instant case I
do not believe that the prosecution has overcome the presumption of
innocence which the law accords to the accused.
I vote for acquittal.

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

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

60

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 91490
May 6, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DELFIN CASTRO y LOZADA, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Eduardo I. Advincula for defendant-appellant.

PADILLA, J.:
This is an appeal interposed by the accused, Delfin Castro y Lozada,
from the decision* of the Regional Trial Court of Pasay City, Branch 110,
imposing upon him the penalty of reclusion perpetua for statutory rape
defined under Art. 335, paragraph 3 of the Revised Penal Code.
On the witness stand, six (6) year old Diana Rose Castro narrated how,
while playing with a neighbor sometime on 4 October 1986, she was
pulled by the accused inside a bathroom, prevented from going out,
and made to stand on the toilet bowl. Accused is a first cousin of Diana
Rose's mother. Kuya Delfin, as Diana Rose referred to the accused, then
put up her clothes, took off her panty, made her lean on the wall and,
despite her efforts to pull away he inserted his private part into her
causing pain. Then she was told by the accused to go home. At home,
she refused to have her private part washed by her Auntie Alice
because it was hurting and painful. 1
Mrs. Jacinta Castro, Diana's grandmother, testified that on 6 October
1986, in her house at No. 1692, F. Muoz, Tramo, Pasay City, she was
asked by her husband to find out why Diana was crying. Her testimony
follows. 2
COURT:
Q Was there anything unusual that happened on Oct. 6
particularly in your house?
A On Oct. 6 I was downstairs and there was a call by my
husband.
xxx
xxx
xxx

FISCAL:
xxx
xxx
xxx
Q Now, what was the reason why your husband called you?
A He asked me to fine out why my granddaughter does not
want to eat and just keeps on crying.
Q And what did you do wen (sic) your husband told you to see
your granddaughter?
A I went upstairs and found out what was wring (sic) with her
whether she has fever.
Q And what did you find out
A At first she said she was complaining that her private
property was painful and when I investigated I discovered that
it swollen (sic).
Q Then what happened after you found out that the private
property of your granddaughter was swollen?
A I asked her why.
Q (sic). And what did your granddaughter tell you?
A At first she told me that "nasabit sa hiyero."
Q And what did you do after that?
xxx
xxx
xxx
A What I did was to examine her carefully her private part; I
lifted her two (2) legs and I discovered that her private property
was reddened as swollen.
Q Did you ask her again what happened to her private property?
A Yes, sir, she told me that she was invited by her Kuya Delfin
to the bathroom.
Q And what else did she tell you?
A She told me that she was asked by her Kuya to stand on top
of the toilet bowl and he removed her panty and his (sic) Kuya
Delfin also removed his pants.
Q What else did she tell you?
A She told me that his (sic) Kuya Delfin had sexual intercourse
with her.
COURT:
Q Did you ask Diane Castro how Delfin allegedly had sexual
intercourse with her?

61

A Yes, Your Honor.

Q What did she answer?
A She was standing and she was made to lean on the wall, Your
Honor. . .
Because of Diana's revelation, the grandmother brought her to the
National Bureau of Investigation for examination on 8 October 1986. 3
Dr. Roberto Garcia, the NBI medico-legal, had this explanation:
xxx
xxx
xxx
A Under the single heading of "genital examination" the more
insignificant findings will be the contused or bruised vetibular
(sic) meaning the area inside the genital organ of the subject
person; the hymen of the subject person was noted to be
bruised or contused . . .
Q Now what do you mean when you say that the genital parts
you mentioned were contused or bruised?
A The area was noted to be purplish or red darker than the
normal appearance of the said portion being bruised or
contused it would mean that this particular portion was subject
to some amount of force or it could have come in contact with
a hard object, the contract must have been done with a certain
amount of force.
Q Under No. 2 of the conclusion of this report it reads"signs
of recent genital trauma, present, consistent with the alleged
date of infliction."
Would you explain this?
This witness meant that the appearance of the genital or prior
of those mentioned was seen by this witness which brought
about the trauma and that it has to be recent, meaning it could
have been sustained by the subject person in a matter of days
prior to the date of the examination.
A Now, was the hymen of the subject lacerated?
A No, sir.
Q Now this genital trauma which you said to have been
suffered by the subject from what could this injury or trauman
(sic), what was the cause?
A Any hard object would have produced this bruise or
contusion.

Q Now, this is a case of rape, Doctor, would you venture to

state from what object this could have been inflicted?
A Under the normal course of events injuries of this nature
involving this particular portion of the body of a female or
woman is produced by the insertion of a male organ. 4
xxx
xxx
xxx
A sworn complaint for rape was filed against Delfin Castro y Lozada. It
charged as follows:
That on or about the 4th day of October, 1986 in Pasay City,
Philippines and within the jurisdiction of tills Honorable Court,
the above named accused, Delfin Castro y Lozada, with lewd
designs and taking advantage of his moral ascendancy over the
undersigned complainant who is his niece, did then and there
wilfully, unlawfully and feloniously have sexual intercourse with
or carnal knowledge of the undersigned. 5
Accused pleaded not guilty and posted bail for his provisional liberty.
Delfin's alibi begins on 3 October 1986 in 1692 Muoz, Pasay City,
where he lives two (2) houses away from complainant's.1wphi1 At
about 12:00 P.M., Diana went to his house while he was taking a bath.
She was crying and went inside the bathroom. When asked by the
accused why, she replied that while going down the stairs, a dog whose
two (2) hind legs were limping, chased her and so she tripped. The
accused told Diana to go out because their dog might bite her. He
proceeded to dress up and saw the victim playing outside.
In the morning of 4 October 1986, he woke up at about quarter to
seven, 6 left the house at 7:30 7 took a jeep plying the Pasay-TaftLuneta route, arrived in school (Adamson University) at 8:15 in the
morning. He proceeded to see Dolores Rivera, a godsister who worked
in the treasurer's office of the university to ask the latter to type a term
paper which was due that day. After submitting the term paper, he
treated his godsister to lunch. Around 1:00 o'clock in the afternoon, he
went home.
Mrs. Teresita Castro's testimony dovetails with her son Delfin's saying
that at around 12:30 P.M. on 4 October 1986, he arrived and ate lunch
at home. 8 Mother and son talked of enmity between Mrs. Jacinta
Castro, Diana's grandmother and their family. This rape case against

62

Delfin is a result allegedly of the envy of Diana's said grandmother over

his (Delfin's) fine scholastic performance. 9
Delfin further narrated that on or about 8 October 1986, he was invited
to the Pasay Police Headquarters for questioning.1wphi1 While there,
he was asked to undress, was blindfolded and beaten by around 7 to 10
policemen for about half an hour and made to admit that he raped
Diana. Since he could no longer stand the torture, he told them that he
used his small finger to touch her private part. 10 After the incident,
Delfin left their house in order to avoid trouble; occasionally he would
visit his parents. 11
Finding the testimony of Diana positive, clear and credible, the Regional
Trial Court disregarded the alibi of the accused and convicted him. The
trial court, inter alia, stated:
. . . The accused's claim that he was, in the morning of October
4, 1986, at Adamson University waiting for his term paper
engenders disbelief. By his evidence, he was enrolled at the
Adamson University for the second semester of school 19861987 classes for which usually start in October. Term papers are
usually submitted at the end of the semester, not at the
beginning of the semester. In any event, Delfin was not shown
that it was physically impossible for him to be at the place of
the incident on October 4, 1986 as, by his evidence, he
returned to his house after noontime, rested for a while, then
left and returned again in the afternoon. His suggestion that
Diana's genital bruises could have resulted from trippling down
the stairs when she was chased by a limping dog is ridiculous. A
dog whose two hind legs are limping chasing her (where did the
dog come from?) while she was going down the stairs? Granted
that were possible or that actually happened, the fall would
cause abrasions, not hymenal contusions. Finally the defense's
insinuation that Diana's grandmother Jacinta who was pictured
to be supercilious and envious was behind the filing of this case
is difficult to believe, there being no concrete proof thereof.
Besides, it would be unthinkable for Jacinta to alienate her
relations with all her in-laws, the Castros, who are staying in
different houses of the same compound, by fabricating a
charge against the accused.

Finally, the accused's flight from his house after the filing of the
present case is not consistent with his professed innocence. He
did not, according to him, have any good relationship with
Diana's grandmother even before October 4, 1986. So what
was he fleeing from? His answer, that he wanted to avoid
trouble, tells it all . . .
xxx
xxx
xxx
From the said decision sentencing him to suffer the penalty of reclusion
perpetua and indemnify the victim in the amount of P20,000.00 by way
of damages, the accused appealed to this Court pointing out the
following alleged errors:
1. there is no rape because
a. the hymen of the victim was not lacerated.
b. the victim was allegedly standing while the crime was being
committed.
c. the victim is still a virgin.
2. reliance on the conflicting testimony of the victim and not that of the
accused.
A recent decision of this Court in a case of statutory rape observed that,
usually, the average adult's hymen measures 2.8 to 3 centimeters in
diameter, making it compatible with, or easily penetrable by an average
size penis. The victim being of tender age, the penetration of the male
organ could go only as deep as the labia. In any case, for rape to be
committed, full penetration is not required. It is enough that there is
proof of entrance of the male organ within the labia or pudendum of
the female organ. Even the slightest penetration is sufficient to
consummate the crime of rape. 12
Perfect penetration, rupture of the hymen or laceration of the vagina
are not essential for the offense of consummated rape. Entry, to the
least extent, of the labia or lips of the female organ is
sufficient. 13 Diana's remaining a virgin does not negate rape.
Sexual intercourse in a standing position, while perhaps uncomfortable,
is not improbable. The RTC decision explained:
. . . For her account that she was made to stand on the toilet
bowl made it easy for the accused to do the act as she was too
small and their private parts would not align unless she was
elevated to a higher position. The suggestion of the defense

63

counsel that a finger could have been used is absurd. For if it

were only a finger there would have been no need to let Diana
stand on the toilet bowl.. . . 14
The Solicitor General's brief, in turn, asserts that the position Diana was
forced to take, made it easier for appellant to accomplish insertion of
his organ than if Diana had been made to lie down. 15
Experience has shown that unfounded charges of rape have frequently
been proffered by women actuated by some sinister, ulterior or
undisclosed motive. Convictions in such cases should not be sustained
without clear and convincing proof of guilt, 16 considering the gravity of
the offense and the penalty it carries.
On the alleged sinister motive of Diana's grandmother engendered by
envy, we find this incredulous. For, what grandmother would exact
vengeance on her enemies at the perpetual humiliation and disrepute
of her six (6) year old granddaughter?
Finally, the issue of credibility. Who among the contending parties is
telling the truth? The prosecution's evidence is simple and
straightforward. Appellant's alibi must fall. Claims of his scholastic
achievements, assuming they are relevant, were unsubstantiated. His
counsel did not even formally offer the exhibits attesting to his
enrollment at Adamson University where he was supposed to have
submitted in the morning of 4 October 1986 a term paper. His
credibility is dubious; he was not able to even identify the topic of his
alleged term paper. To discredit the victim he testified on her alleged
propensity to tell lies. 17 The trial court, however, categorically held:
While Diana's testimony was in some instances flawed, the flaw
was minor and only with respect to dates.1wphi1She is a
young girl. She sat at the witness stand four times, yet she
survived the rigors of testifying, unwavering in her claim that
she was raped. 18
Accused-appellant claims he was coerced and tortured by Pasay
policemen to admit the rape, showing to the trial court bodily signs of
said abuse. 19 Aside from his self-serving assertion, the truth of such
allegation was not proven. Besides, this allegedly coerced admission of
guilt cannot affect the prosecution's case which has been established
by other positive evidence pointing to his guilt beyond reasonable
doubt.

Finding no reversible error in the decision subject of this appeal, we

affirm the same in its entirety.
WHEREFORE, the decision is AFFIRMED. Accused-appellant is sentenced
to suffer the penalty of reclusion perpetua and to indemnify the victim,
Diana Rose Castro in the amount of P30,000.00 in line with prevailing
jurisprudence. Costs against the appellant.
SO ORDERED.
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.

64

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 84728
April 26, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CESAR ATENTO accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.

CRUZ, J.:
Asked how she felt while she was being raped, the complainant replied:
"Masarap." The trial judge believed her but just the same convicted the
accused-appellant. The case is now before us.
The complainant is Glenda Aringo, who was sixteen years old at the
time of the alleged offense. She is the neighbor of Cesar Atento, the
herein accused-appellant, a 39-year old store-keeper with a wife and
eight children. Her claim is that Atento raped her five separate times,
the first sometime in April 1986.
She says that on that first occasion she went to Atento's store in
Barangay 18, Minoro, Cabagan, in Legazpi City to buy bread. Her
parents were at work and Atento was alone in his house except for his
three-year old daughter. Glenda claims Atento cajoled her into coming
inside the house and then took her downstairs, where he succeeded in
deflowering her. She says her maiden head ached and bled. Afterwards,
he gave her P5.00.
Glenda speaks of four other times when he raped her. It was later
(presumably because her hymen had healed) that she felt tickled by his
manhood and described the act of coitus as "masarap."1
The girl says she never told anybody about Atento's attacks on her
because he had threatened her life. But she could not conceal her
condition for long and after five months had to admit she was pregnant.
She revealed the accused-appellant as the father of the foetus in her
womb. The child was delivered on December 27, 1987, and christened
Hubert Buendia Aringo.

Atento denies the charge against him, saying it was pure harassment
concocted by a relative of the girl who wanted to eject him from the
land where his house was erected. Insisting that Glenda was a girl of
loose morals, he says he had twice seen her in sexual congress with a
man and that she had once offered her body to his thirteen year old
son for a fee of P5.00.
Glenda's description of the act of coitus as pleasurable would have
destroyed the whole case against Atento but for one singular significant
fact. The girl is a mental retardate.
Ascendo Belmonte, a clinical psychologist at Don Susano Rodriguez
Memorial Mental Hospital, subjected the girl to a series of intelligence
tests, to wit, the Wecslar adult intelligence scale, revised beta exam,
standard progressive matrices, and the Bender visual motor gestalt test,
with the following findings:
Glenda B. Aringo, who was born on June 18, 1970, is INTER
ALIA with an intellectual capacity between the ages of nine (9)
and twelve (12) years. As such, her intellectual functioning is
within the mentally defective level. Her fund of information is
inadequate, her judgment is unsound, her thinking and working
capacity is poor. She is unable to distinguish essential from
non-essential details. Her vocabulary is limited. Her capacity for
her perceptual processes is unsatisfactory. She lacks the
capacity for abstracting and synthesizing concepts. However, in
the midst of all these, Glenda was found capable of telling the
truth.2
Benita Aringo, Glenda's mother, testified that her daughter reached
only third grade and did not like to continue studying, preferring to play
with children younger than she, even when she was already pregnant.
After delivering her child, she would often leave its care to Benita, and
play marbles with the children rather than feed her baby. Another
relative, Caridad Aringo, testified that Glenda had the mentality of a 12year old and was fond of rubber bands and playing cards.
The Court finds this to be the reason why, while a rape victim with
normal intelligence, would have said that the attack on her caused her
much physical pain and mental agony, Glenda naively declared that
Atento's sexual organ in hers gave her much pleasure.

65

It is worth observing that Glenda's child was born on December, nine

months after her rape in April, and that, according to the trial judge,
there was a remarkable resemblance between Atento and the boy.
Article 335 of the Revised Penal Code provides:
Art. 335. When and how rape committed. Rape is committed
by having carnal knowledge of a woman under any of the
following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious and
3. When the woman is under twelve years of age, even though
neither of the circumstances mentioned in the two next
preceding paragraphs shall be present.
xxx
xxx
xxx
It has not been clearly established that Atento employed force or threat
against Glenda to make her submit to his lust. Nevertheless, there is no
question that Atento is guilty of rape upon Glenda under paragraph 2,
because the girl was deprived of reason. Alternatively, he is liable under
paragraph 3, because his victim had the mentality of a girl less than
twelve years old at the time she was raped.
In People v. Atutubo,3 this Court held:
It is not necessary under Article 335 for the culprit to actually
deprive the victim of reason prior to the rape, as by the
administration of drugs or by some other illicit method. Ms
provision also applies to cases where the woman has been
earlier deprived of reason by other causes, as when she is
congenitally retarded or has previously suffered some
traumatic experience that has lowered her mental capacity. In
such situations, the victim is in the same category as a child
below 12 years of age for lacking the necessary will to object to
the attacker's lewd intentions.
In People v. Palma,4 where a 14-year old mental retardate was another
rape victim, we held that:
The crime committed by Palma is rape under Article 335(2) of
the Revised Penal Code.1wphi1 Copulation with a woman
known to be mentally incapable of giving even an imperfect
consent is rape. Physical intimidation need not precede sexual

intercourse considering the age, mental abnormality and

deficiency of the complainant.
So also in People v. Sunga,5 where the offended party was 23 years old
with the mentality of a child about 8 to 9 years of age:
Because of her mental condition, complainant is incapable of
giving consent to the sexual intercourse. She is in the same
class as a woman deprived of reason or otherwise unconscious.
Appellant therefore committed rape in having sexual
intercourse with her.
In his authoritative work on Criminal Law, Chief Justice Aquino explains
Paragraph 2 as follows.6
. . . in the rape of a woman deprived of reason or unconscious,
the victim has no will. The absence of will determines the
existence of the rape. Such lack of will may exist not only when
the victim is unconscious or totally deprived of reason, but also
when she is suffering some mental deficiency impairing her
reason or free will. In that case, it is not necessary that she
should offer real opposition or constant resistance to the sexual
intercourse. Carnal knowledge of a woman so weak in intellect
as to be incapable of legal consent constitutes rape. Where the
offended woman was feeble-minded, sickly and almost an idiot,
sexual intercourse with her is rape. Her failure to offer
resistance to the act did not mean consent for she was
incapable of giving any rational consent.
The deprivation of reason need not be complete. Mental
abnormality or deficiency is enough. Cohabitation with a
feeble-minded, idiotic woman is rape.
The trial court, however, held Atento guilty of rape under Paragraph
3, citing People v. Asturias,7 where it was held:
Assuming that complainant Vilma Ortega voluntarily submitted
herself to the bestial desire of appellant still the crime
committed is rape under paragraph 3 of Article 335 of the
Revised Penal Code. This is so even if the circumstances of
force and intimidation, or of the victim being deprived of
reason or otherwise unconscious are absent. The victim has the
mentality of a child below seven years old. If sexual intercourse
with a victim under twelve years of age is rape, then it should

66

follow that carnal knowledge with a seventeen-year old girl

whose mental capacity is that of a seven year old child would
constitute rape.
In coming to his conclusion, Judge Gregorio A. Consulta declared:
. . . Given the low I.Q. of Glenda, it is impossible to believe that
she could have fabricated her charges against the accused. She
lacks the gift of articulation and inventiveness. She could not
even explain with ease the meaning of rape, a term which she
learned in the community. Even with intensive coaching,
assuming that happened, on the witness stand where she was
alone, it would show with her testimony falling into
irretrievable pieces. But that did not happen. She proceeded,
though with much difficulty, with childlike innocence. A smart
and perspicacious person would hesitate to describe to the
Court her sexual experiences as "tickling" and "masarap" for
that would only elicit disdain and laughter. Only a simpleminded artless child would do it. And Glenda falls within the
level of a 9-12 year old child. And Glenda was telling the truth!
There is no doubt that when she submitted herself to the
accused later for subsequent intercourses, she was dominated
more by fear and ignorance than by reason.
In any event, whether under paragraph 2 or under paragraph 3 of
Article 335 of the Revised Penal Code, the accused-appellant deserves
to be punished for the rape of Glenda Azingo.
The trial court found the accused-appellant guilty of rape as charged,
meaning that he raped the victim five times, but we do not agree that
the other four rapes have been conclusively proven. Otherwise, he
would have to be punished for five separate rapes. Except for this and
the civil indemnity, which is increased from P20,000.00 to P30,000.00,
we agree with the sentence imposing on him the penalty of reclusion
perpetua, the obligation to acknowledge and support Hubert Buendia
Aringo as his own spurious child, and to pay the costs.
WHEREFORE, the appealed judgment is AFFIRMED as above modified. It
is so ordered.
Narvasa, Gancayco, Grio-Aquio and Medialdea, JJ., concur.

67

EN BANC
[G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y
BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita[1] finally did away with
frustrated rape[2] and allowed only attempted rape and consummated
rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by
considering almost every attempt at sexual violation of a woman as
consummated rape, that is, if the contrary view were to be adopted.
The danger there is that that concept may send the wrong signal to
every roaming lothario, whenever the opportunity bares itself, to
better intrude with climactic gusto, sans any restraint, since after all
any attempted fornication would be considered consummated rape
and punished as such. A merestrafing of the citadel of passion would
then be considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the
offender had carnal knowledge of the victim since by it he attained his
objective. All the elements of the offense were already present and
nothing more was left for the offender to do, having performed all the
acts necessary to produce the crime and accomplish it. We ruled then
that perfect penetration was not essential; any penetration of the
female organ by the male organ, however slight, was sufficient. The
Court further held that entry of the labia or lips of the female organ,
even without rupture of the hymen or laceration of the vagina, was
sufficient to warrant conviction for consummated rape. We
distinguished consummated rape from attempted rape where there
was no penetration of the female organ because not all acts of
execution were performed as the offender merely commenced the
commission of a felony directly by overt acts.[3] The inference that may
be derived therefrom is that complete or full penetration of the vagina
is not required for rape to be consummated. Any penetration, in
whatever degree, is enough to raise the crime to its consummated
stage.

But the Court in Orita clarified the concept of penetration in rape by

requiring entry into the labia or lips of the female organ, even if there
be no rupture of the hymen or laceration of the vagina, to warrant a
conviction for consummated rape. While the entry of the penis into the
lips of the female organ was considered synonymous with mere
touching of the external genitalia, e.g., labia majora, labia minora,
etc.,[4] the crucial doctrinal bottom line is
that touching must be inextricably viewed in light of, in relation to, or
as an essential part of, the process of penile penetration, and not just
mere touching in the ordinary sense. In other words, the touching must
be tacked to the penetration itself. The importance of the requirement
of penetration, however slight, cannot be gainsaid because where entry
into the labia or the lips of the female genitalia has not been
established, the crime committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether
rape has been committed either in its attempted or in its consummated
stage; otherwise, no substantial distinction would exist between the
two, despite the fact that penalty-wise, this distinction, threadbare as it
may seem, irrevocably spells the difference between life and death for
the accused - a reclusive life that is not even perpetua but
only temporal on one hand, and the ultimate extermination of life on
the other. And, arguing on another level, if the case at bar cannot be
deemed attempted but consummated rape, what then would
constitute attempted rape? Must our field of choice be thus limited
only to consummated rape and acts of lasciviousness since attempted
rape would no longer be possible in light of the view of those who
disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory
rape and sentenced by the court a quo to the extreme penalty of
death,[5] hence this case before us on automatic review under Art. 335
of the Revised Penal Code as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at
around 4 oclock in the afternoon, Ma. Corazon P. Pamintuan, mother of
four (4)-year old Crysthel Pamintuan, went down from the second floor
of their house to prepare Milo chocolate drinks for her two (2) children.
At the ground floor she met Primo Campuhan who was then busy filling
small plastic bags with water to be frozen into ice in the freezer located

68

at the second floor. Primo was a helper of Conrado Plata Jr., brother of
Corazon. As Corazon was busy preparing the drinks, she heard one of
her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush
upstairs. Thereupon, she saw Primo Campuhan inside her childrens
room kneeling before Crysthel whose pajamas or "jogging pants" and
panty were already removed, while his short pants were down to his
knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina.
Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and
boxed him several times. He evaded her blows and pulled up his pants.
He pushed Corazon aside when she tried to block his path. Corazon
then ran out and shouted for help thus prompting her brother, a cousin
and an uncle who were living within their compound, to chase the
accused.[8] Seconds later, Primo was apprehended by those who
answered Corazon's call for help. They held the accused at the back of
their compound until they were advised by their neighbors to call
the barangay officials instead of detaining him for his misdeed. Physical
examination of the victim yielded negative results. No evident sign of
extra-genital physical injury was noted by the medico-legal officer on
Crysthels body as her hymen was intact and its orifice was only 0.5 cm.
in diameter.
Primo Campuhan had only himself for a witness in his defense. He
maintained his innocence and assailed the charge as a mere scheme of
Crysthel's mother who allegedly harbored ill will against him for his
refusal to run an errand for her.[9] He asserted that in truth Crysthel was
in a playing mood and wanted to ride on his back when she suddenly
pulled him down causing both of them to fall down on the floor. It was
in this fallen position that Corazon chanced upon them and became
hysterical. Corazon slapped him and accused him of raping her child. He
got mad but restrained himself from hitting back when he realized she
was a woman. Corazon called for help from her brothers to stop him as
he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and
accosted Primo. Vicente punched him and threatened to kill him. Upon
hearing the threat, Primo immediately ran towards the house of
Conrado Plata but Vicente followed him there. Primo pleaded for a
chance to explain as he reasoned out that the accusation was not true.

But Vicente kicked him instead. When Primo saw Vicente holding a
piece of lead pipe, Primo raised his hands and turned his back to avoid
the blow. At this moment, the relatives and neighbors of Vicente
prevailed upon him to take Primo to the barangay hall instead, and not
to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on
27 May 1997 found him guilty of statutory rape, sentenced him to the
extreme penalty of death, and ordered him to pay his
victim P50,000.00 for moral damages, P25,000.00 for exemplary
damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma.
Corazon Pamintuan. He argues that her narration should not be given
any weight or credence since it was punctured with implausible
statements and improbabilities so inconsistent with human nature and
experience. He claims that it was truly inconceivable for him to commit
the rape considering that Crysthels younger sister was also in the room
playing while Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and the fact
that the episode happened within the family compound where a call for
assistance could easily be heard and responded to, would have been
enough to deter him from committing the crime. Besides, the door of
the room was wide open for anybody to see what could be taking place
inside. Primo insists that it was almost inconceivable that Corazon could
give such a vivid description of the alleged sexual contact when from
where she stood she could not have possibly seen the
alleged touching of the sexual organs of the accused and his victim. He
asserts that the absence of any external signs of physical injuries or of
penetration of Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the
testimony of Corazon that she saw Primo with his short pants down to
his knees kneeling before Crysthel whose pajamas and panty were
supposedly "already removed" and that Primo was "forcing his penis
into Crysthels vagina." The gravamen of the offense of statutory rape is
carnal knowledge of a woman below twelve (12), as provided in Art.
335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years
old when sexually molested, thus raising the penalty, from reclusion
perpetua to death, to the single indivisible penalty of death under RA

69

7659, Sec. 11, the offended party being below seven (7) years old. We
have said often enough that in concluding that carnal knowledge took
place, full penetration of the vaginal orifice is not an essential
ingredient, nor is the rupture of the hymen necessary; the mere
touching of the external genitalia by the penis capable of
consummating the sexual act is sufficient to constitute carnal
knowledge.[10] But the act of touchingshould be understood here as
inherently part of the entry of the penis into the labias of the female
organ and not mere touching alone of the mons pubis or the pudendum.
In People v. De la Pea[11] we clarified that the decisions finding a case
for rape even if the attackers penis merely touched the external
portions of the female genitalia were made in the context of the
presence or existence of an erect penis capable of full penetration.
Where the accused failed to achieve an erection, had a limp or flaccid
penis, or an oversized penis which could not fit into the victim's vagina,
the Court nonetheless held that rape was consummated on the basis of
the victim's testimony that the accused repeatedly tried, but in vain, to
insert his penis into her vagina and in all likelihood reached the labia of
her pudendum as the victim felt his organ on the lips of her vulva,[12] or
thatthe penis of the accused touched the middle part of her
vagina.[13] Thus, touching when applied to rape cases does not simply
mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victims
vagina, or the mons pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labias or slid into
the female organ, and not merely stroked the external surface thereof,
for an accused to be convicted of consummated rape.[14] As
thelabias, which are required to be "touched" by the penis, are by their
natural situs or location beneath the mons pubis or the vaginal surface,
to touch them with the penis is to attain some degree of penetration
beneath the surface, hence, the conclusion that touching the labia
majora or the labia minora of the pudendum constitutes consummated
rape.
The pudendum or vulva is the collective term for the female genital
organs that are visible in the perineal area, e.g., mons pubis, labia
majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc.
The mons pubis is the rounded eminence that becomes hairy after

puberty, and is instantly visible within the surface. The next layer is
the labia majora or the outer lips of the female organ composed of the
outer convex surface and the inner surface. The skin of the outer
convex surface is covered with hair follicles and is pigmented, while the
inner surface is a thin skin which does not have any hair but has many
sebaceous glands. Directly beneath the labia majora is the labia
minora.[15] Jurisprudence dictates that the labia majora must
be entered for rape to be consummated,[16] and not merely for the
penis to stroke the surface of the female organ. Thus, a grazing of the
surface of the female organ or touching the mons pubis of
the pudendum is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of the female organ,
i.e., touching of either labia of the pudendum by the penis, there can be
no consummated rape; at most, it can only be attempted rape, if not
acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the
oft-quoted "touching of the female organ,"[17] but has also progressed
into being described as "the introduction of the male organ into
the labia of the pudendum,"[18] or "the bombardment of the
drawbridge."[19] But, to our mind, the case at bar merely constitutes a
"shelling of the castle of orgasmic potency," or as earlier stated, a
"strafing of the citadel of passion."
A review of the records clearly discloses that the prosecution utterly
failed to discharge its onus of proving that Primos penis was able to
penetrate Crysthels vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of sexually
molesting her daughter, we seriously doubt the veracity of her claim
that she saw the inter-genital contact between Primo and Crysthel.
When asked what she saw upon entering her childrens room Corazon
plunged into saying that she saw Primo poking his penis on the vagina
of Crysthel without explaining her relative position to them as to enable
her to see clearly and sufficiently, in automotive lingo, the contact point.
It should be recalled that when Corazon chanced upon Primo and
Crysthel, the former was allegedly in a kneeling position, which Corazon
described thus:
Q: How was Primo holding your daughter?

70

A: (The witness is demonstrating in such a way that the

chest of the accused is pinning down the victim, while
his right hand is holding his penis and his left hand is
spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos
kneeling position rendered an unbridled observation impossible. Not
even a vantage point from the side of the accused and the victim would
have provided Corazon an unobstructed view of Primos penis
supposedly reaching Crysthels external genitalia, i.e., labia
majora, labia minora, hymen, clitoris, etc., since the legs and arms of
Primo would have hidden his movements from Corazons sight, not to
discount the fact that Primos right hand was allegedly holding his penis
thereby blocking it from Corazons view. It is the burden of the
prosecution to establish how Corazon could have seen the sexual
contact and to shove her account into the permissive sphere of
credibility. It is not enough that she claims that she saw what was done
to her daughter. It is required that her claim be properly demonstrated
to inspire belief. The prosecution failed in this respect, thus we cannot
conclude without any taint of serious doubt that inter-genital
contact was at all achieved. To hold otherwise would be to resolve the
doubt in favor of the prosecution but to run roughshod over the
constitutional right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his
wicked intention despite her timely appearance, thus giving her the
opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with mans instinct of selfpreservation to remain where he is and persist in satisfying his lust
even when he knows fully well that his dastardly acts have already been
discovered or witnessed by no less than the mother of his victim. For,
the normal behavior or reaction of Primo upon learning of Corazons
presence would have been to pull his pants up to avoid being caught
literally with his pants down. The interval, although relatively short,
provided more than enough opportunity for Primo not only to desist
from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was
Crysthel's answer to the question of the court Q: Did the penis of Primo touch your organ?

A: Yes, sir.
But when asked further whether his penis penetrated her organ, she
readily said, "No." Thus Q: But did his penis penetrate your organ?
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that
enshrouds the question of whether rape in this case was consummated.
It has foreclosed the possibility of Primos penis penetrating her vagina,
however slight. Crysthel made a categorical statement denying
penetration,[21] obviously induced by a question propounded to her
who could not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and
unfair to attach to this reply of a four (4)-year old child, whose
vocabulary is yet as underdeveloped as her sex and whose language is
bereft of worldly sophistication, an adult interpretation that because
the penis of the accused touched her organ there was sexual entry. Nor
can it be deduced that in trying to penetrate the victim's organ the
penis of the accused touched the middle portion of her vagina and
entered the labia of her pudendum as the prosecution failed to
establish sufficiently that Primo made efforts to penetrate
Crysthel.[22] Corazon did not say, nay, not even hint that Primo's penis
was erect or that he responded with an erection.[23] On the contrary,
Corazon even narrated that Primo had to hold his penis with his right
hand, thus showing that he had yet to attain an erection to be able to
penetrate his victim.
Antithetically, the possibility of Primos penis having breached Crysthels
vagina is belied by the child's own assertion that she resisted Primos
advances by putting her legs close together;[24] consequently, she did
not feel any intense pain but just felt "not happy" about what Primo did
to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray
ko!" In cases where penetration was not fully established, the Court
had anchored its conclusion that rape nevertheless was consummated
on the victim's testimony that she felt pain, or the medico-legal finding
of discoloration in the inner lips of the vagina, or the labia minora was
already gaping with redness, or the hymenal tags were no longer
visible.[26] None was shown in this case. Although a child's testimony
must be received with due consideration on account of her tender age,

71

the Court endeavors at the same time to harness only what in her story
appears to be true, acutely aware of the equally guaranteed rights of
the accused. Thus, we have to conclude that even on the basis of the
testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this
case that there were no external signs of physical injuries on
complaining witness body to conclude from a medical perspective that
penetration had taken place. As Dr. Aurea P. Villena explained,
although the absence of complete penetration of the hymen does not
negate the possibility of contact, she clarified that there was no medical
basis to hold that there was sexual contact between the accused and
the victim.[27]
In cases of rape where there is a positive testimony and a medical
certificate, both should in all respects complement each other;
otherwise, to rely on the testimonial evidence alone, in utter disregard
of the manifest variance in the medical certificate, would be productive
of unwarranted or even mischievous results. It is necessary to carefully
ascertain whether the penis of the accused in reality entered the
labial threshold of the female organ to accurately conclude that rape
was consummated. Failing in this, the thin line that separates
attempted rape from consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
attempted when the offender commences the commission of rape
directly by overt acts, and does not perform all the acts of execution
which should produce the crime of rape by reason of some cause or
accident other than his own spontaneous desistance. All the elements
of attempted rape - and only of attempted rape - are present in the
instant case, hence, the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the
imposable penalty of death for the offense charged, which is statutory
rape of a minor below seven (7) years. Two (2) degrees lower
is reclusion temporal, the range of which is twelve (12) years and one (1)
day to twenty (20) years. Applying the Indeterminate Sentence Law,
and in the absence of any mitigating or aggravating circumstance, the
maximum of the penalty to be imposed upon the accused shall be
taken from the medium period of reclusion temporal, the range of

which is fourteen (14) years, eight (8) months and (1) day to seventeen
(17) years and four (4) months, while the minimum shall be taken from
the penalty next lower in degree, which is prision mayor, the range of
which is from six (6) years and one (1) day to twelve (12) years, in any
of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO
"SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing
him to death and to pay damages is MODIFIED. He is instead found
guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison
term of eight (8) years four (4) months and ten (10) days of prision
mayor medium as minimum, to fourteen (14) years ten (10) months
and twenty (20) days of reclusion temporal medium as maximum.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing,
Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon,
Jr., JJ., concur.
Panganiban, J., in the result.

[1]

People v. Ceilito Orita alias "Lito," G.R. No. 88724, 3 April 1990, 184
SCRA 105.
[2]
People v. Eriia, 50 Phil. 998 (1927)
[3]
See Note 1.
[4]
People v. Quinaola, G.R. No. 126148, 5 May 1999.
[5]
Decision penned by Judge Benjamin T. Antonio, RTC-Br. 170,
Malabon, Metro Manila (Crim. Case No. 16857-MN)
[6]
An Act to Impose the Death Penalty on Certain Heinous Crimes,
Amending for that Purpose the Revised Penal Code, as amended, other
Special Penal Laws, and for Other Purposes, effective on 31 December
1993.
[7]
"Ayoko," apparently is a contraction of "ayaw ko." "Ayoko, ayoko"
means "I dont like, I dont like."
[8]
Corazons brother Vicente Plata responded to her call, as well as
others living within the compound namely, Criselda Carlos Manalac,
Fernando Bondal, Jose Carlos and Reynoso Carlos.

72

[9]

Accused alleged that the charge of rape was merely concocted by Ma.
Corazon Pamintuan because of his refusal to buy medicine for her, and
perform the other tasks asked of him by her relatives.
[10]
See the following American cases where the doctrine originated:
Kenny v. State, 65 L.R.A. 316; Rodgers v. State, 30 Tex. App. 510;
Brauer v. State, 25 Wis. 413, as cited in People v. Oscar, 48 Phil. 528
(1925)
[11]
G.R. No. 104947, 30 June 1994, 233 SCRA 573.
[12]
People v. Bacalso, G.R. No. 89811, 22 March 1991, 195 SCRA 557;
People v. Hangdaan, G.R. No. 90035, 13 September 1991, 201 SCRA 568;
People v. De la Pea, G.R. No. 104947, 30 June 1994, 233 SCRA 573;
People v. Clopino, G.R. No. 117322, 21 May 1998, 290 SCRA 432;
People v. Quinaola, G.R. No. 126148, 5 May 1999.
[13]
People v. Navarro, G.R. No. 96251, 11 May 1993, 221 SCRA 684.
[14]
In People v. Quinaola (G.R. No. 126148, 5 May 1999) the Court held
the word "touching" to be synonymous with the entry by the penis into
the labia declaring that "x x x the crime of rape is deemed
consummated even when the mans penis merely entered the labia or
lips of the female organ, or as once said in a case, by the mere touching
of the external genitalia by the penis capable of sexual act x x x x"
[15]
Mishell, Stenchever, Droegemueller, Herbst Comprehensive
Gynecology, 3rd Ed., 1997, pp. 42-44.
[16]
People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281
SCRA 498; People v. Galimba, G.R. Nos. 111563-64, 20 February 1996,
253 SCRA 722; People v. Sanchez, G.R. Nos. 98402-04, 16 November
1995, 250 SCRA 14; People v. Lazaro, G.R. No. 99263, 12 October 1995,
249 SCRA 234; People v. Rejano, G.R. Nos. 105669-70, 18 October 1994,
237 SCRA 627; People v. Salinas, G.R. No. 107204, 6 May 1994, 232
SCRA 274; People v. Palicte, G.R. No. 101088, 27 January 1994, 229
SCRA 543; People v. Arce, G.R. Nos. 101833-34, 20 October 1993, 227
SCRA 406; People v. Garcia, G.R. No. 92269, 30 July 1993, 244 SCRA 776;
People v. Tismo, No. L-44773, 4 December 1991, 204 SCRA 535;
People v. Mayoral, G.R. Nos. 96094-95, 13 November 1991, 203 SCRA
528, People v. Hangdaan, G.R. No. 90035, 13 September 1991, 201
SCRA 568; People v. Caballes, G.R. Nos. 93437-45, 12 July 1991, 199
SCRA 152; People v. Bacalso, G.R. No. 89811, 22 March 1991, 195 SCRA
557.

[17]

People v. Clopino, G.R. No. 117322, 21 May 1998, 290 SCRA 432.
See Note 4.
[19]
People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281
SCRA 498.
[20]
TSN, 7 October 1996, p. 20.
[21]
In Dulla v. CA (G.R. No. 123164, 18 February 2000) the Court
considered the testimony of a child aged three (3) years and ten (10)
months old sufficient and credible even if she answered "yes" or "no"
to questions propounded to her. However, the victim therein, who was
much younger than Crysthel in the instant case, demonstrated what
she meant when unable to articulate what was done to her, even made
graphic descriptions of the accuseds penis and demonstrated the push
and pull movement made by the accused. Yet conspicuously, the Court
in the Dulla case found the accused guilty only of acts of lasciviousness
on the basis of certain inconsistencies in the testimony of the victim on
whether or not petitioner took off her underwear.
[22]
In People v. Clopino (G.R. No. 117322, 21 May 1998) the Court
rejected the argument of the accused that he should only be convicted
of either attempted rape or acts of lasciviousness. It adopted the
reasoning of the Solicitor General and declared that it was impossible
for the penis of accused-appellant not to have touched the labia of the
pudendum in trying to penetrate her. However, such logical conclusion
was deduced in the light of evidence presented that accused-appellant
made determined attempts to penetrate and insert his penis into the
victims vagina and even engaged her in foreplay by inserting his finger
into her genitalia. The same inference cannot be made in the instant
case because of the variance in the factual milieu.
[23]
Decisions finding the accused guilty of consummated rape even if
the attacker's penis merely touched the female external genitalia were
made in the context of the presence of an erect penis capable of full
penetration, failing in which there can be no consummated rape
(People v. De la Pea, see Note 11)
[24]
See Note 16, p. 21.
[25]
Ibid.
[26]
People v. Villamayor, G.R. Nos. 97474-76, 18 July 1991, 199 SCRA
472; People v. Palicte, G.R. No. 101088, 27 January 1994, 229 SCRA 543;
People v. Sanchez, G.R. Nos. 98402-04, 16 November 1995, 250 SCRA
[18]

73

14; People v. Gabris, G.R. No. 116221, 11 July 1996, 258 SCRA 663;
People v. Gabayron, G.R. No. 102018, 21 August 1997, 278 SCRA 78.
[27]
Q: Will you tell the Court, what do you mean by this No. 1
conclusion appearing in Exhibit "A" which I quote "no evident sign of
extra-genital physical injury noted on the body of the subject at the
time of the examination?"
A: That means I was not able to see injuries outside the genital of the
victim, sir.
Q: I presumed (sic) that you conducted genital physical examination on
the victim in this case?
A: Yes sir.
Q: And you also made the result of the genital physical examination
shows (sic) that there is no injury on any part of the body of the patient,
correct, Doctor?
A: Yes sir.
Q: There was no medical basis for saying that might have a contact
between the patient and the accused in this case?
A: Yes sir (TSN, 8 October 1996, pp. 3-4)

74

EN BANC
[G.R. No. 124736. January 22, 1998]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO GALLO Y
IGLOSO, accused-appellant.
DECISION
PER CURIAM:
It is disturbing enough to see that there has been a noticeable
increase in the incidents of rape but one is left completely appalled that
this still growing number includes cases of the bestial act being
perpetrated on the young and innocent and, no longer too infrequently
it seems, compounded by the close kinship of the offender and the
victim.
In People vs. Malagar,[1] the Court has had occasion to state that a
"x x x (F)ather is looked up to as the protector and as the guardian of
his family, remaining ever wary of even the slightest harm that might
befall it. It is difficult to thus imagine that any such man could instead
stand as the predator of his own flesh and blood. Yet, we occasionally
would find ourselves so regrettably contending with it as a fact."[2]
In the instant case, the accused, Romeo Gallo y Igloso, was
charged, docketed Criminal Case No. 2282, before the Regional Trial
Court, Branch 68, of Binangonan, Rizal, with the crime of rape in an
information that read:
"That on or sometime the period of May, 1994 in the Municipality of
Cardona, Province of Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd designs and by
means of force and intimidation, did then and there willfully, unlawfully
and feloniously have sexual intercourse with a 13-year old girl, Marites
Gallo y Segovia.
"CONTRARY TO LAW."[3]
The accused pleaded not guilty; trial ensued in due time.
In a decision, dated 17 April 1996, Romeo Gallo y Igloso was
ultimately convicted of rape committed against his own daughter,
Marites Gallo y Segovia, only then thirteen years of age. The death
penalty having been imposed by the trial court, the records of the case
were transmitted to this Court by way of an automatic review pursuant

to Article 47 of the Revised Penal Code, as amended by Section 22 of

Republic Act No. 7659.
The Solicitor General recommends an affirmance of the
decision. He makes the following statement of facts:
"For three years, since age ten, complainant Marites Gallo y
Segovia suffered repeated sexual abuses from her father,
herein appellant Romeo Gallo y Igloso, the last of which was in
their house at Sitio Alacos, Lambac, Cardona, Rizal at around
7:00 in the evening (Exh. 'A') in May 1994 (TSN, Feb. 8, 1995,
pp. 4-5; March 13, 1995, p. 2).
"That evening, appellant, taking advantage of the situation
that Marites was only with her younger brother who was
already asleep, again imposed his bestial desire on his own
daughter. Subjecting his daughter to the usual threat that she
would be killed if anybody would know his bestiality, appellant
(with his pants off) undressed Marites, removed her
underpants, kissed her and inserted his penis into her vagina
(Annex 'A,' TSN, Feb. 8, 1995, pp. 25-27).
"After appellant's last sexual onslaught, Marites, now thirteen,
finally mustered enough courage and narrated her harrowing
experience to her aunt Dolores del [Prado].Accompanied by
the latter, Marites reported the incident to the Barangay
Captain of Lambac, Cardona, Rizal (TSN, Feb. 8, 1995, pp. 67). The incident led to the investigation by the Cardona
Police. Marites executed her complaint-affidavit (Exh. 'A,' 'A1;' Id., pp. 8-10).
"Marites was, thereafter, brought to Camp Crame, Quezon
City and was examined by Dr. Cristina B. Freyra who found
Marites to be in a non-virgin state. The result of the
examination was reduced in writing and covered by MedicoLegal Report No. M-0963-94 (Exh. `B,' `B-1;' Id., p. 12; TSN,
Sept. 5, 1995, pp. 6-7)."[4]
The defense pictured the accused as any other ordinary man in the
family who had tried hard to provide and care for his wife and
children. At certain times, the accused conceded, he would meet and
drink with friends. The appellant's brief summed up the testimony of
Gallo given before the court below; viz:

75

"Accused Romeo Gallo testified that he is a native of Masbate

and he got married to his wife Elvie Sigovia in 1975. They were
married in the Island of Lambac, Cardona, Rizal. Marites, the
complaining witness in this case is his eldest child who was
born in 1977. Marites was born in Bicol where Elvie, his wife,
formerly resided. His daughter Marites stayed with his motherin-law in Bicol for three (3) years. After three years, Marites
already stayed with his family. In 1989, his family, together
with Marites, stayed [in] Mindoro up to 1994. During their stay
in Mindoro they engaged themselves [in] farming, planting
palay, cassava and `kamoteng bagin.' When asked about the
incident that Marites related during her testimony, that she
was first molested by the accused, he said that he [did] not
know about their accusations. He has no knowledge of any
charge against him, for what Marites has said are not true. He
treated Marites as a family and he performs his obligation over
his family. As far as he remember[s], he spanked his children
whenever they commit mistakes as a part of discipline. He and
his family alone were in Mindoro, his mother-in-law was not
with them.
"In 1994, they moved to Lambac, Cardona, Rizal and there,
they engaged in charcoal making somewhere in the
mountainous part of Lambac. With him was his whole family of
six (6) children and his wife, and they occupy a nipa hut. When
asked of the incident that happened in the mountainous part
of Lambac where he was accused of molesting [his] child
Marites, he answered that he knows nothing about it. The
truth is that one time he beat Marites and may be she was
hurt and related the matter to her mother-in-law. His motherin-law was making `sulsol' to his daughter to file this case
against him so that he and his wife will be separated. His
mother-in-law wanted them to be separated because of his
poverty. He tried to convince his child Marites to discontinue
filing this case but she did not listen. He [has] never molested
her daughter Marites Gallo even once.
"On cross examination, he testified that when he married his
wife Elvie Gallo, he was then a charcoal maker and before their

marriage he [did] not know her mother-in-law.It was only

because of the prodding of his mother-in-law that this case
was filed by her daughter. Even in 1975 when he got married
to his wife Elvie he was still poor and this may be the reason
why his mother-in-law wanted him to be separated from his
family. At one time he inflicted punishment [on] Marites and
this is probably the reason why Marites agreed to file this case
against him. On that occasion, he spanked Marites on the
buttocks. He admit[ted] to be drinking liquor for a long time
during the intervals of weeks x x x with companions in Lambac,
Cardona, Rizal. They have stayed in Mindoro from 1984 to
1993, then they moved to Lambac, Cardona, Rizal. After the
testimony of this accused, the defense rested its case. (TSN, pp.
3-17, November 27, 1995)"[5]
Contending that the prosecution has failed to overcome the
Constitutional presumption of innocence by an exacting standard of
proof beyond reasonable doubt, appellant downgrades the testimony
of the complainant as being nothing but incredulous.
The Court has taken meticulous care in reviewing the evidence
submitted by both the prosecution and the defense. All possible angles
have been considered in the process, for, as it has so recently been said
in People vs. Galera,[6] "the Court exercises the greatest
circumspection" in its review of death penalty cases since "there can be
no stake higher and no penalty more severe x x x than the termination
of a human life." Regrettably in this instance, the Court must agree with
the trial court in the judgment of conviction.
Cognizant of the fact that the focal, as well as crucial, point in this
review is the testimony of the young victim, and because, except for a
bare denial, there hardly is any direct rebutting evidence, the Court
finds it fitting to hear, here again, Marites, in her own words, on the
unfortunate saga. Thus Marites Gallo y Segovia, Testifying:
"Q Now, you said that you are almost 14 years of age today?
"A Yes, sir.
"Q When is your birthday?
"A October 6, sir.
"Q October 6, 1995?

76

"A Yes, sir.

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

"Q Now, exactly what do you mean by `he took advantage of you
while he was drank,' I mean the accused took advantage of you
while he was drank?
"A `INASAWA NIYA PO AKO.'
"ASST. PROS SOYANGCO
`Inasawa,' Your Honor, means sexual intercourse.
"x x x x x x x x x.
"Q Are you a tagalog speaking person?
"A Yes, sir.
"Q In tagalog, what exactly do you mean by the word `Inasawa ako?'
"A He is making me as if I am his wife, sir.
"Q How did he make you as if you were his wife?
"A He placed his body on top of my body, sir.
"Q When he placed his body on top of you, were you naked?
"A Yes, sir.
"Q Completely naked?
"A Only my panty, sir.
"Q And your father, when he undressed you and placed himself on
top of you, was he dressed-up or naked?
"A He was dressed but his shortpants was off, sir.
"Q So he was without shortpants.
Now, when he was on top of you what happened?
"A He inserted his penis to my vagina, sir.
"Q When he undressed you, did you do anything?
"A I was not able to do anything because he told me that he will kill
me, sir.
"Q And when he inserted his penis into your genital or vagina, what
did you do?
"A I was crying, sir.
"Q After having inserted his penis to your vagina, what happened
next?
A `KINAYOG KAYOG NIYA PO AKO.'
"x x x x x x x x x.
"Q After that what happened?
"A After that he dressed-up and he told me to dress-up also, sir.
"Q What happened next?
"A And he left the house, sir.

77

"Q And what about you?

"A And I also left the house, sir.
"Q By the way when you said house, what house are you referring to?
"A Our house, sir.
"Q And where is this house situated?
"A Our house in Mindoro where he did that things, sir."[7]
"Q You are testifying in this case for rape against your father, the
accused, Romeo Gallo y Igloso which per information happened
on May 1994 in the Municipality of Cardona, Province of Rizal?
"A Yes, sir.
"Q Now, in the last session when you were testifying in this case you
made mention of the fact that when asked where is your house
located, you said in Mindoro?
"A The first time I was raped was in Mindoro and the last time he
raped me was in our house in Cardona, sir.
"Q So you were raped by your own father earlier than you were
raped in Cardona in Mindoro?
"A Yes, sir.
"Q And can you remember when was that when you were raped by
your father in Mindoro?
"A Yes, sir.
"Q When?
"A 1993, sir.
"Q And how old were you when you were raped in 1993 by your
father?
"A I was raped when I was ten (10) years old up to the age of
thirteen (13), sir.
"Q How many times were you raped by your father from the time
you were ten (10) years old up to the time that you were 13
years old in Mindoro?
"A Many times, sir.
"Q And the last of which is that you were raped is the subject of the
instant information that happened in Lambak, Cardona, Rizal, is
that correct?
"A Yes, sir.
"Q Now, when you were raped in Barrio Lambak, Cardona, Rizal by
your father what did you do after that, if any?

"A I did not do anything, sir.

"Q You did not do anything? Did it not occur to you to report it to
your mother?
"A I was afraid, sir because he threatened me that he will kill us, sir.
"Q And why was this case filed by you against your father?
"A Because he raped me, sir.
"Q Yes. Who told you to file this complaint of rape?
"A No other person except me, sir.
"Q When did you report this matter?
"A To my auntie, sir.
"Q What is the name of your auntie?
"A Dolores del Prado, sir.
Q After having told your auntie Dolores del Prado about this incident,
what did your auntie or you do?
"A They also told the incident to their other sisters, sir.
"Q And what is the name of that sister?
"A Elvie Gallo, sir.
"Q Who else?
"A No more, sir.
"Q Now, what did your auntie or you again [do] after that?
"A She told us to go back to Lambak, sir.
"Q For what purpose?
"A We will talk together, sir.
"Q Together with whom?
"A We will talk with the Barangay Captain, sir.
"Q Did you in fact go to the Barangay Captain in Lambak?
"A Yes, sir.
"Q What happened when you reached there?
"A We talked together in the Barangay Hall and afterwards he was
brought in Cardona, sir.
"Q When you said he you are referring to your father?
"A Yes, sir.
"Q Where in particular in Cardona were he taken?
"A In the Municipal Hall, sir.
"Q And were you with him when he was taken in the Municipal Hall
of Cardona?
"A Yes, sir.

78

"Q In what office in particular in the Municipal Hall of Cardona did

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

"Q Conching what?

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

79

"A Yes, sir.

"Q Were you a victim of acts of violence of your father other than
the rape?
"A Yes, sir.
"Q What kind of cruelty did he inflict upon you?
"A He pulled our hair, kicked us and mauled us, sir.
"Q When you said `kami' you are not only referring to yourself but
also to others?
"A Yes, sir also my mother.
"Q Who else?
"A Only the two (2) of us, sir.
"Q Can you describe to the Honorable Court the sort of cruelty that
the accused inflicted towards your mother?
"A He was also doing the same thing to my mother what he has
done to me, sir.
"Q And that you mean your mother was also mauled?
"A Yes, sir because he was jealous.
"Q Jealous of whom?
"A To the men [s]he was talking, sir.
"Q Of your own knowledge do you know of a fact that your father
despite the fact that he is in jail is making threats to you and
your mother?
"A Yes, sir.
"Q What sort of threat if you know?
"A He told us that he will kill us, sir.
"Q And when did he tell you that he will kill you?
"A He said the moment I get out of jail I will kill all of you, sir.
"x x x x x x x x x.
"CROSS-EXAMINATION BY ATTY. JUAN B. SUCO, JR. ON WITNESS
MARITES GALLO:
"Q You were first raped at Mindoro?
"A Yes, sir.
"Q And you were ten (10) years old, is that correct?
"Q When was that?
"A The year 1993, sir.
"Q Do we understand that during that time you and your family
were still residing in Mindoro?

"A Yes, sir.

"Q Including your mother?
"A Yes, sir.
"Q Your brothers and sisters?
"A I am the only girl, sir.
"Q Are you the only daughter of your parents?
"A Yes, sir and I have five (5) brothers.
"Q Are you the youngest o[r] the eldest?
"A I am the eldest, sir.
"Q In what particular place in Mindoro were you residing?
"A Gutad, Mindoro, sir.
"Q Is that a barrio?
"A No, sir we lived in a mountainous part of Mindoro, sir.
"Q What month when you were first raped in 1993?
"A May, sir.
"Q But you did not file any complaint against you father?
"A No, sir because I was afraid.
"Q Neither you report what your father did to you to your mother?
"A Because if I will tell the matters to my mother we will be killed, sir.
"Q You only presumed it to yourself when you report the matter to
your mother?
"A Yes, sir.
"Q When you were raped for the first time did you offer resistance?
"A Yes, sir.
"Q In what manner?
"A I pinched him and pushed him, sir.
"Q You did not attempt to run away?
"A He was able to hold me, sir.
"Q By the way, what time was that when the incident happened?
"A About 4:00 o'clock, sir.
"COURT:
"Q 4:00 o'clock what?
"A 4:00 o'clock in the afternoon, sir.
"ATTY. SUCO:
"Q Did that happen inside your house?
"A Yes, sir.
"Q Your mother was also there?

80

"A She was not there, sir.

"Q What about your other brothers?
"A They were not there, sir.
"Q The four (4) of them were not in your house when that incident
happened?
"A There are five (5), sir.
Q Not even one (1) of them was inside your house?
"A One (1) was there, sir the youngest.
"Q How old is your youngest then?
"A Two (2) years old, sir.
"Q Can he talk already?
"A He can talk only for few words, sir.
"Q But he can understand?
"A No, sir.
"Q Where was your mother then?
"A She went to the barrio to get our rice, sir.
"Q How far?
"A Near, sir.
"Q How near?
"A It will not took her one (1) hour by walk, sir.
"Q But you have neighbors?
"A We have neighbors, sir but we only have two (2) neighbors, sir.
"Q In other words there are three (3) families residing in the area?
"A Yes, sir. Our house was the third house.
"Q And your two (2) neighbors were near to your house?
"A A little bit far, sir.
"Q How far?
"A A little bit far, sir.
"Q Alright. From the place where you are now sitting, can you
demonstrate the distance in relation to your house and to the
two (2) neighbors?
"INTERPRETER:
Witness is pointing to the place where she is sitting up to the
municipal hall of Binangonan, Rizal.
"ATTY. SUCO:
Can we stipulate?
"WITNESS:

"A The same distance, sir.

"ATTY. SUCO:
"Q About a distance of thirty (30) meters?
"A Yes, sir.
"ASST. PROSECUTOR SOYANGCO:
We can stipulate on that.
"ATTY. SUCO:
"Q And you are referring that distance, you refer to the distance to
one of your neighbors?
"A Yes, sir.
"Q Do you know the name of that neighbor of yours?
"A Yes, sir.
"Q What is the name?
"A Arias, sir.
"Q How many were they living in the house?
"A Three (3), sir, his wife and a child.
"Q Only one (1) child?
"A Yes, sir.
"Q Now, your other neighbor, can you also demonstrate the
distance?
"A The same distance, sir.
"Q And again do you know the name?
"A Yes, sir.
"Q What is the name?
"A Bernard, sir.
"Q Is he a man or a woman?
"A He is a man, sir.
"Q Is he married?
"A He is married, sir.
"Q How many were they living inside the house?
"A His wife and his four (4) children were residing there, sir.
"Q So, all in all you have nine (9) neighbors in that two (2) houses?
"A Yes, sir.
"Q Now, when the incident happened did you not attempt to shout
for help?
"A They were not there at that time, sir.

81

"Q Why did you say that they were not there? Did you visit the two
(2) houses before you were raped by your father in your house?
"A They went to the barrio, sir.
"Q The nine (9) of them went to the barrio?
"A Yes, sir because they always go to that place and nobody was left,
sir.
"Q How do you know that?
"A They went to the barrio and the house was closed, sir.
"Q Did all of them inform you that they will go to the barrio?
A Yes, sir.
"Q They informed you before they left for the barrio?
"A They talked to me and told me to watch their house while they
were away in the barrio, sir.
"Q When that incident was in progress did you not shout or tell your
youngest brother to report the matter to your mother who was
in the barrio?
"A He cannot talk yet at that time, sir.
"Q But you did not tell him?
"A Even if I told him he cannot understand, sir.
"Q In other words you did not tell anything to your brother?
"A No, sir because even if I told him he cannot understand, sir.
"Q You just allowed your father to do what he wanted to do?
"A I also reported what happened, sir, after we had transferred
residence, sir.
"Q While the incident was still in progress you did not tell any word
to your younger brother or shout hoping that somebody will
rescue you?
"A That time my brother was sleeping, sir.
"Q Now, will you explain what exactly did your father [do] to you at
that particular incident?
"A Yes, sir.
"Q What did he [do] to you?
"A He first undress me, sir and he raped me.
"Q You did not offer resistance when he removed your dress?
"A I tried to resist, sir but he is a man that is why I cannot resist him,
sir.
"Q Is that the only thing happened, did he just removed your dress?

"A He removed my panty or underwear, sir.

"Q Is that the only one?
"A Yes, sir.
"Q Other than that nothing happened?
"A After he removed my panty he raped me, sir.
"Q What do you mean by he raped me?
"A He took advantage of me, sir.
"Q By what means?
"A He kissed me, sir and - - "ATTY. SUCO:
We request that that statement in vernacular be recorded.
"COURT:
The vernacular testimony of the witness put it down as requested by
the counsel - - `INANO NIYA AKO AT INANO.'
"ATTY. SUCO:
"Q What did you mean by `INANO AKO.'
"A He inserted his penis to my vagina, sir, that is what I mean.
"Q How?
"A He held his penis and inserted it to my vagina, sir.
"Q Was there an actual penetration of his penis to your vagina?
"A Yes, sir.
"Q He was able to penetrate his penis to your vagina?
"A Yes, sir.
"Q Are you telling this Court that after he held his penis he was able
to insert it immediately to your vagina?
"A Yes, sir.
"Q So, if that is the case it could be that you assisted him or you
positioned yourself in such a manner that he can insert his
penis immediately inside your vagina?
"x x x x x x x x x.
"Q What did you feel when the penis of your father was already
inside your vagina?
"A I felt pain, sir.
"Q How long did the penis of your father was inside your vagina?
"A For quite a long time, sir.
"Q Up to the next morning his penis was inside your vagina?
"A No, sir.

82

"Q How long in terms of hours?

"A For less half hour, sir.
"Q So, for 59 minutes?
"x x x x x x x x x.
"ATTY. SUCO:
Twenty nine (29) minutes I mean.
"WITNESS:
"A Yes, sir.
"x x x x x x x x x.
"ATTY. SUCO:
"Q Was your vagina bleeding when your father finished?
"A Yes, sir.
"Q By the way, was that the first time that you were sexually abused
by any person?
"A Yes, sir.
"Q After that did you try to consult a doctor for the purpose of
treating your vagina when you said it was bleeding?
"A There was no doctor around, sir and the doctor was far in our
house and the doctor was in Tanyag, sir.
"Q You did not consult to any albularyo?
"A The place of the albularyo was also far, sir.
"Q You did not apply any medicine to your vagina which was
bleeding?
"A I placed some medicine, sir.
"Q What medicine?
"A Oil, sir.
"Q And did it heal when you applied oil?
"A Yes, sir.
"Q Now, you also testified that you were abused many times
starting in Mindoro. Now, please tell this Court how many
times?
"A For a month, sir.
"x x x x x x x x x.
"WITNESS:
"A About five (5) times, sir.
"ATTY. SUCO:

"Q In all that incidents your father was able to insert his penis to
your vagina?
"A Yes, sir.
"Q Do you have a menstruation already?
"A Yes, sir.
Q When did you experience having for the first a menstruation?
"A March, sir.
"Q March of what year?
"A 1994, sir.
"Q So, only last year?
"A Yes, sir only now, sir.
"x x x x x x x x x.
"ATTY. SUCO:
"Q Since March when you experienced menstruation you were not
abused anymore by your father up to now?
"A He was still abusing me, sir.
"Q When?
"x x x x x x x x x.
"WITNESS:
"A Last year, sir.
"x x x x x x x x x.
"Q Did you say earlier in reply to the question of the counsel for the
accused that your menstruation was in March 1994?
"A Yes, sir.
"Q Atty. Suco asked next - - since that time were you abused by your
father?
"A Yes, sir.
"Q The next question of Atty. Suco - - when were you abused?
"A In the year 1994, sir he keep on abusing me.
ATTY. SUCO:
"Q What do you mean by he keep on abusing you?
"A That was the time he wanted to rape me, sir."[8]
Marites spoke of not one but of several sexual transgressions
committed, as if so casually, on her by her own father, the first of which
occurred when she was only ten years of age and the last when she was
thirteen. For some undisclosed reasons, appellant was not charged with
the prior offenses.

83

Almost invariably, the Court uses three guiding principles in the

review of rape cases, to wit: (1) An accusation for rape can be made
with facility; it is difficult to prove but more difficult for the person
accused, though innocent, to disprove; (2) in view of the intrinsic
nature of the crime of rape where only two persons are usually
involved, the testimony of the complainant is scrutinized with extreme
caution; and (3) the evidence for the prosecution stands or falls on its
own merits and cannot be allowed to draw strength from the weakness
of the defense.[9] It is within these parameters that this Court, not much
unlike that of the trial court, has made its evaluation of the case.
Since the participants are usually the only witnesses in crimes of
this nature, the conviction or acquittal of the accused would virtually
depend on the credibility of the complainant's testimony.[10] If found
credible, the lone declaration of facts given by the offended party
would be sufficient to sustain a conviction.[11] A victim of sexual assault
would not ordinarily be willing to undergo the humiliation of a public
trial, let alone testify on the details of her ordeal, if her reasons were
other than her natural passion to avenge her honor[12] and to condemn
a grave injustice done to her.[13] Even more improbable than any other
case perhaps, is for a young girl to accuse her own father for her
defilement,[14]and so expose not only herself but the family as well to
shame and scandal, if the charges were untrue and merely made up.[15]
Understandably in the case at bar, appellant could only resort to,
and content himself by, having a recourse to mere generalities, such as
those hereinafter discussed, so normally employed as defense strategy
when the evidence for the prosecution appears to be formidable.
In giving full credence to the testimony of the victim, the trial court
has found no cogent reason to deny her credibility and to discard what
it described to be her "coherent and straightforward" narration of the
incident. That court has had all the opportunity to observe closely the
demeanor of the young victim at the witness stand. Well settled is the
rule that an assessment made by a trial court on the testimony of
witnesses deserves great respect absent any valid justification that can
warrant its outright rejection by an appellate court.[16] Nothing
significant has been shown to convince the Court that the trial court
has at any time acted with undue bias or that it has overlooked or
ignored something of substance that could have, in any degree,

warranted a turnabout by it of its findings and judgment. Occasional

flaws or unguarded exaggerations in the testimony of witnesses, verily,
could lend and add up to the credence of testimony.[17] A completely
accurate description of the incident certainly cannot be expected from
a witness in recounting the details of a harrowing experience.[18] An
errorless declaration could, in fact, be suspect for a rehearsed
testimony.
Appellant bewails the supposed failure of the offended party to
promptly report the crime to the authorities. The delay and initial
reluctance of a rape victim to make public the assault on her virtue is
neither unknown nor uncommon.[19] It is not an unexpected reaction of
a woman to keep secret, at least momentarily, the dishonor brought to
bear on her and to suffer alone in her misfortune rather than to be the
subject of embarrassment, public scrutiny, pity or ridicule. Fear,
brought about by threat or when, such as in the case at bar, the rapist
is living under the same roof with his victim,[20] is a circumstance that
can easily muffle the latter into silence while that fear lasts. Age is
another.[21] Thus we have stated:
"Vacillation in the filing of complaints by rape victims is not an
uncommon phenomenon. This crime is normally accompanied by the
rapist's threat on the victim's life, and the fear can last for quite a
while. There is also the natural reluctance of a woman to admit her
sullied chastity, accepting thereby all the stigma it leaves, and to then
expose herself to the morbid curiosity of the public whom she may
likely perceive, rightly or wrongly, to be more interested in the prurient
details of the ravishment than in her vindication and the punishment of
the rapist. In People vs. Coloma [222 SCRA 255] we have even
considered an 8-year delay in reporting the long history of rape by the
victim's father as understandable and so not enough to render
incredible the complaint of a 13-year old daughter."[22]
Marites, to stress once again, was only between ten and thirteen years
old when she was subjected to repeated bestial abuse. The
unbelievable depravity was committed by her own father, described by
the victim's younger brother Christopher Gallo to be a cruel and violent
man particularly when drunk. It was to her credit that she ultimately
found the right composure and determination, belated such as it might
have been, to finally have her father brought to justice.

84

Everything considered, the Court is convinced that accusedappellant did commit the crime of rape on his own 13-year old
daughter. This offense is defined and made punishable by Article 335 of
the Revised Penal Code. The law, as amended by Section 11 of Republic
Act No. 7659[23] reads:
"ART. 335. When and how rape is committed. - Rape is committed by
having carnal knowledge of a woman under any of the following
circumstances.
"1. By using force or intimidation;
"2. When the woman is deprived of reason or otherwise unconscious;
and
"3. When the woman is under twelve years of age or is demented.
"The crime of rape shall be punished by reclusion perpetua.
"Whenever the crime of rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be reclusion
perpetua to death.
"When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
"When the rape is attempted or frustrated and a homicide is
committed by reason or on the occasion thereof, the penalty shall
be reclusion perpetua to death.
"When by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death.
"The death penalty shall also be imposed if the crime of rape is
committed with any of the following attendant circumstances:
"1. When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the commonlaw spouse of the parent of the victim.
"2. When the victim is under the custody of the police or military
authorities.
"3. When the rape is committed in full view of the husband, parent, any
of the children or other relatives within the third degree of
consanguinity.
"4. When the victim is a religious or a child below seven (7) years old.
"5. When the offender knows that he is afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease.

"6. When committed by any member of the Armed Forces of the

Philippines or the Philippine National Police or any law enforcement
agency.
"7. When by reason or on the occasion of the rape, the victim has
suffered permanent physical mutilation."
The crime of rape, having been committed by appellant on his own
daughter of thirteen years of age, is consequently covered by the above
mandatory death penalty provision. Thus, following its deliberations,
the Court by a majority vote, with two members voting to only impose
the penalty of reclusion perpetua on constitutional grounds, sustains
the trial court in the imposition of the death penalty on appellant
Romeo Gallo y Igloso.
WHEREFORE, the appealed decision is hereby AFFIRMED except
for the award of civil indemnity which is INCREASED
to P50,000.00. Costs against accused-appellant.
In accordance with Section 25 of Republic Act No. 7659, amending
Article 83 of the Revised Penal Code, upon finality of this decision, let
the records of the case be forthwith forwarded to the Office of the
President for possible exercise of the pardoning power.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Mendoza, Francisco, Panganiban, and Martinez,
JJ., concur.

85

EN BANC
[G.R. No. 123544. July 29, 1999]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RAUL BERANA y
GUEVARRA, accused-appellant.
DECISION
ROMERO, J.:
In this sordid tale of defloration, a man is saved from the gallows
for failure of the prosecution to adduce clear and positive proof of his
relationship with the complainant.
Before us on automatic review is a decision rendered by the
Regional Trial Court of Naga City, Branch 25, imposing the supreme
penalty of death on herein accused-appellant, Raul Berana y Guevarra
for the crime of rape.[1]
The facts of the case are as follows:
On June 2, 1994 at around 2:00 o'clock in the morning, 14-year old
Maria Elena Jarcia was sleeping with her four-year old niece in one of
the two rooms in a house her family was renting at Bayawas Street,
Naga City when she was awakened by her brother-in-law, herein
accused-appellant, Raul Berana. Complainant recognized him because
light was filtering in from a nearby window.Berana pointed a "buntot
page" at her neck and warned her not to make any noise, otherwise she
would be killed.
The terrified girl was made to lie down while accused-appellant
raised her duster and proceeded to remove her shorts and her
underwear, after which he mashed her breast and lay on top of her.The
hapless girl was again threatened not to make any noise otherwise he
would kill her. Complainant tried to cover her breasts with her arms but
accused-appellant pushed her arms aside. As he inserted his organ into
her womanhood, Elena felt excruciating pain. He began kissing her and
made several push and pull movements, after which, the victim felt
something liquid in her organ.Accused-appellant sat down and warned
her not to talk to anyone about the incident.
His bestial lust not having been satisfied, accused-appellant lay on
top of her for the second time, fondled her breast and made push and
pull movements. At around 2:30 o'clock in the morning, accusedappellant left after warning her that only the two of them must know
about the incident. During the entire time that the accused-appellant

was raping her, the poor girl was weeping and trembling with fear
because he repeated his threats to kill her should she make any
noise. Complainant, before having identified in court Exhibit A as the
"buntot page" used by accused-appellant, described it as "long with
some protruding parts and with long and pointed tip"[2]
After the accused-appellant left, Elena put on her clothes and went
to the adjacent room to report the incident to her sister, Ma.
Ana. When Ana heard the grim story, she lost no time in hurrying to
Camaligan, Camarines Sur where their parents , having been invited to
a birthday party of a relative, had stayed overnight. On the same day,
their mother fetched Elena and accompanied her to the Provincial
Hospital for medical examination. The medical examination conducted
revealed the following findings:
P.E.
Vagina admits one finger
(+) Hymenal Laceration at 6:00 o'clock and 9 o'clock positions
Gram Staining Result:
-gram (+) bacilli = many
-pus cells = few
-epithelial cells = many
NOTE: Gram stains smear shows presence of spermatozoa[3]
After having been examined, Elena and her mother proceeded to
the Sabang Police station in Naga City to report the incident. Thereafter,
accused-appellant was apprehended by the police.
On June 3, 1994, an information was filed before the Regional Trial
Court of Naga City, Branch 25, against accused-appellant for the crime
of rape, allegedly committed as follows:
That on or about June 2, 1994, in the city of Naga, Philippines, and
within the jurisdiction of this Honorable Court, the abovenamed
accused by means of force, did then and there willfully, unlawfully and
feloniously, have sexual intercourse with the herein complaining
witness, MARIA ELENA JARCIA Y DE LOS MARTINEZ, a minor, 14 years of
age.
CONTRARY TO LAW
On June 6, 1994, an amended information was filed against
accused-appellant which reads:

86

That on or about June 2, 1994, in the City of Naga, Philippines and

within the jurisdiction of this Honorable Court, the abovenamed
accused, a relative of the offended party within the third civil degree,
by means of force and intimidation, did there and then, willfully,
unlawfully and feloniously have sexual intercourse with herein
complaining witness MARIA ELENA JARCIA Y DE LOS MARTINEZ, a minor,
14 years of age, to her damage and prejudice.
CONTRARY TO LAW
Upon arraignment, accused-appellant entered a plea of not guilty.
On October 12, 1994, the prosecution again sought the
amendment of the information filed in accordance with the mandate of
Section 5, Rule 110 of the Revised Rules on Criminal Procedure relating
to de oficio offenses which require the offended party's express
conformity to the filing of the information.
On October 17, 1994, accused-appellant entered plea of not guilty
to the re-amended information.
Accused-appellant does not deny having sexual intercourse with
the complainant but, however, maintains that Elena consented to
it. According to accused-appellant, at around 1:30 o'clock in the
morning of June 2, 1994, he had difficulty sleeping, so he took a walk
and decided to visit his daughter at the house in Bayawas Street. When
he arrived at the said place, he sat on the stairs at the rear of the
house. While seated, he heard someone calling, "Mama." He
recognized the voice as Elena's so he answered, "this is not your mama,
this is your manoy,"[4] On hearing these words, complainant opened the
door and approached accused-appellant to ask him where her mother
was, whereupon, accused-appellant told her that her parents might not
return home because her father got drunk at a birthday party of a
relative in Camaligan. He then asked Elena if his daughter was already
asleep. Upon having been informed that his daughter had just fallen
asleep, accused-appellant bade Elena goodbye but the girl, invited him
to stay for the night so that he could keep watch over her and his
daughter. Accused-appellant accepted her invitation since he was very
tired.When he entered the room, Elena followed him and locked the
door. Seeing his daughter sleeping soundly on a mat, he picked her up
and moved her away from the middle to the left side so as not to

disturb her. Elena turned off the light from the gas lamp and lifted the
mosquito net to prepare for bed.
At this point, she reminded the accused-appellant of the sum of
money which she had been asking him some time. When told that he
had no money, complainant allegedly started to caress and embrace
accused-appellant while at the same time insisting that he give her the
money. When he reiterated that he had no money, complainant took
hold of his hand and placed it on her breast.Complainant allegedly was
wearing only an undershirt and panty at the time. Accused-appellant,
feeling "hot", decided, and succeeded in having sex with her. During
the sexual intercourse, Elena told him, "It is painful, manoy." but
accused-appellant tried to assuage the pain, saying that it is painful
only during the first time.[5] Afterwards, accused-appellant sat beside
Elena and engaged her in conversation. Elena allegedly asked him to
help her when she completes high school. When accused-appellant
promised to help her on condition that she will be serious in her studies,
Elena rose from her lying position and embraced him. He kissed her on
the lips, touched her breasts and asked her again for sex. Complainant
allegedly smiled and told him, "To my sister, you could only do it one
(sic) but to me you will make it two,"[6] They had sex for the second
time in the early morning of June 2, 1994. Accused-appellant left the
room at around 2:30 o'clock in the morning. While answering a call of
nature near a santol tree outside the house, he heard Ma. Ana ask
Elena, "What did your manoy do to you?", to which the latter answered,
"None, none." Accused-appellant heard nothing more as he decided to
go on his way.[7]
Accused-appellant narrated that prior to the incident, or
specifically on December 1993, he was alone in the same room, reading
an adult magazine when Elena arrived. She saw what he was reading
and remarked that she had read the same magazine also. Embarassed,
accused-appellant turned away and went near the window to continue
his reading. Complainant, in the meantime, removed her school
uniform leaving only her "sando" and her panty on. She approached
accused-appellant and told him of the interesting parts in the
magazine. When he told her that he had already seen them and was
just reviewing the magazine, she told him, "Manoy, there are parts
there which are beautiful." He then showed her the adult magazine and

87

asked her to point out where these were. Elena placed her arms on his
shoulders as she obliged him. When she embraced him, accusedappellant responded by embracing her back. He felt "hot" and placed
his hand on her cheek then began touching her breast also. However,
she turned her lips away so he ended kissing her cheek instead. Elena
responded by kissing his cheek in turn. Accused-appellant, this time,
kissed her lips and touched her breasts. They moved away from the
window to avoid unwitting voyeurs. Somebody soon arrived and
interrupted them so Elena became flustered and accused-appellant
left. They maintained no relationship after the incident.
The trial court did not give credence to the testimony of accusedappellant and on November 27, 1995, rendered a decision, the
dispositive portion of which reads as follows:
PREMISES CONSIDERED, this court finds accused-appellant guilty
beyond reasonable doubt of the crime of rape defined and punishable
under the provisions of Article 335 of the Revised Penal Code, as
amended by Republic Act No. 7659 which provides
The death penalty shall be imposed when the crime of rape is
committed with any of the following circumstances
1. When the victim is under eighteen (18) years of age and the offender
is a x x x relative by consanguinity or affinity within the third civil
degree.
The accused being the husband of the victim's sister, is related by
affinity to his victim within the third civil degree, the court hereby
imposes upon Raul Berana y Guevarra to suffer DEATH PENALTY , to
pay Ma. Elena M. Jarcia, the amount of P50,000 by way of damages and
to pay the costs.
In this automatic review of the decision rendered by the trial court,
accused-appellant raises the following issues:
I. The trial court erred when it convicted herein accusedappellant despite the absence of any clear and convincing
evidence demonstrating the alleged use of force.
II. The trial court erred when it convicted herein accusedappellant despite serious lapses and material
inconsistencies in the testimony of the private
complainant.

III. The trial court erred when it convicted herein accusedappellant despite the prosecution's failure to adduce clear
proof of all the attendant qualifying circumstances of the
crime charged
IV. The trial court erred when it convicted herein accusedappellant based on a misplaced conclusion that herein
accused-appellant allegedly admitted committing the
offense charged
We shall deal with the issues raised seriatim.
Regarding the first issue, accused-appellant contends that the trial
court's finding that he had forcible sexual intercourse with the
complainant was based solely on the results of the medical examination
conducted by the prosecution's witness, Dr. Humilde Janaban on
Elena. In support of his contention, appellant cites the following
excerpt from the trial court's decision:
A careful perusal of the evidence adduced during the trials conducted in
this case, show that the medical certificate of June 2, 1994 which was
identified by Dra. Ma. Humilde B. Janaban, showing that the victim,
private complainant Ma. Elena M. Jarcia suffered "Hymenal laceration
at 6:00 o'clock and 9:00 o'clock positions in her private part which could
have been caused by sexual intercourse and /or by the intervention of a
blunt object by thrusting and then pulling then thrusting again of a hard
blunt object and the presence of spermatozoa confirms the testimony of
Ma. Elena Jarcia that she was sexually molested makes such testimony
credible. To the mind of the court this [sic] findings are significant to
the effect that sexual intercourse was involuntary or through threat
and duress. The absence of any kind of external injury in the body of the
victim other then those found in her organ is of no consequence.
Accused-appellant alleges that Elena encouraged his advances and
the sexual intercourse was consensual. He asserts that while the
hymenal laceration and the presence of spermatozoa prove the fact of
sexual intercourse, they do not ipso facto prove that such act was
committed by means of force, in line with our pronouncement in
People vs. Godoy[8] that, "Even granting ex gratia argumenti that the
medical report and the laceration corroborated the complainant's
assertion that there was sexual intercourse, of course the same cannot
be said as to the alleged use of force. It has been held that such

88

corroborative evidence is not considered sufficient, since proof of facts

constituting one element of the crime is not corroborative proof of
facts necessary to constitute another equally important element of the
crime."
Accused-appellant's contention is misplaced. The trial court's
finding of rape in the case at bar, was not based solely on the medical
findings showing hymenal laceration and the presence of spermatozoa
in the victim's organ. While the excerpt quoted by the accusedappellant from the questioned decision gives the impression that the
trial court considered the hymenal laceration and the presence of
spermatozoa in the victim's organ as proof of forcible sexual
intercourse, the decision read in its entirety shows otherwise. The trial
court merely considered the medical findings as corroborative evidence
for the complainant's testimony that accused-appellant had sexual
intercourse with her. Complainant was forced to accede to accusedappellant's advances because he poked a "buntot page" at her neck and
threatened to kill her should she make any noise. With such repeated
threats, the hapless girl eventually broke down and cried.
Accused-appellant maintains, however, that complainant's
testimony is too full of material inconsistencies to deserve belief. For
instance, although complainant alleged that she bled after the coitus,
the medical examination revealed otherwise; complainant's testimony
in court that accused-appellant asked her for sex a second time belies
her allegation that accused-appellant forced himself on her;
complainant's statement in her affidavit that accused-appellant was
armed with a blunt instrument is materially different from her
testimony in court that accused-appellant carried with him a "buntot
page".
Accused-appellant's assertion that the medical record is bereft of
any proof corroborating complainant's testimony that she bled after
she was raped hardly consideration. The underwear of the complainant
which was presented and admitted in court as evidence bore traces of
blood.[9] Moreover, the absence of any sign of physical bleeding on the
part of the complainant does not necessarily mean that there was no
forcible sexual intercourse. For one thing, complainant was threatened
with a "buntot page" poked at her neck at the time. Then too, accusedappellant's threat was sufficient enough to intimidate a young girl of 14

to force her to submit to his baser instincts. It must be noted that proof
of external injuries inflicted on the complainant is not indispensable in
a prosecution for rape committed with force or violence. The law does
not impose upon a rape victim the burden of proving
resistance. Physical resistance need not be established in rape case
when intimidation is exercised upon her and she submits herself
against her will to the rapist's lust because of fear of life and personal
safety.[10] When a woman testifies that she was raped, she says in effect
all that is necessary to show that said crime has been committed.
Accused-appellant, however, would have us believe that the
sexual intercourse was consensual since complainant herself testified
during trial that he asked her for a second time during the night in
question. While complainant did state during trial that, "After the first
incident, he sat down and he again asked me to give him for the second
time,"[11] complainant also stated that she was then crying and
trembling with fear. Considering the continuing threat on her life if she
makes an outcry, complainant had no choice but to accede to the
desire of accused-appellant. That he asked her for sex does not
necessarily imply that she gave her consent when he succeded in
ravishing her again. It is indeed preposterous that a young woman,
untrained in the ways of the world and of men would initiate and
encourage his advances, as accused-appellant claims, considering
especially that he is the husband of her older sister.
Accused-appellant nevertheless insists that complainant's
testimony does not merit credence because of inconsistencies in her
statement regarding the weapon used by the accused-appellant to
threaten her on the night of the incident. We are not unaware that
complainant stated in her affidavit that accused-appellant was armed
with a blunt instrument in contrast with her testimony in court that
accused-appellant was armed with a "buntot page." It must be borne in
mind, however, that discrepancies between an affidavit and testimony
in court occur more often than not since an affidavit is not prepared by
the affiant herself but by another who uses his own language in writing
the affiant's statement. It might not be amiss to note, at this point, that
the instrument which was submitted by complainant to the police and
later identified in court as the "buntot page" used by the accusedappellant was described by the Chief of Police in his letter to the

89

prosecutor as "one (1) blunt instrument with black handle.[12] " In the
case of People vs. Empleo[13], we had occasion to state that, "the
contradiction between the affidavit and the testimony of the witness
may be explained by the fact that an affidavit will not always disclose all
the facts and will oftentimes and without design incorrectly describe,
without the deponent detecting it, some of the occurrences narrated."
We find merit, however, in accused-appellant's contention that
the prosecution failed to adduce clear and positive proof of the
qualifying circumstance of relationship between accused-appellant and
complainant. It should be noted that the relationship between accusedappellant and the complainant qualifies the crime from rape punishable
by reclusion perpetua to rape punishable by death under Republic Act
No. 7659. Under Article 335 of the Revised Penal Code as amended by
R.A. No. 7659, the death penalty shall be imposed if the crime of rape is
committed with any of the following attendant circumstances:
xxx
1. When the victim is under eighteen (18) years of age and the offender
is a parent, ascendant, step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the common law spouse of
the parent of the victim.
Affinity is defined as "the relation which one spouse because of
marriage has to blood relatives of the other. The connection existing, in
consequence of marriage between each of the married persons and the
kindred of the other. The doctrine of affinity grows out of the canonical
maxim that marriage makes husband and wife one. The husband has
the same relation by affinity to his wife's blood relatives as she has by
consanguinity and vice versa."[14]
Consequently, to effectively prosecute accused-appellant for the
crime of rape committed by a relative by affinity within the third civil
degree, it must be established that a) he is legally married to
complainant's sister and b) complainant and accused-appellant's wife
are full or half blood siblings.
The prosecution tried to establish the relationship of accusedappellant to the complainant by asking her the following during trial:
xxx
Q: By the way, do you know the accused in this case by the name of
Raul

A: Yes, I know him, sir

Q: Why do you know him?
A: He is the husband of my sister[15]
Complainant's mother also testified:
xxx
Q: Do you know the accused in this case, Raul Berana y Guevarra?
A: Yes, I know him , sir.
Q: Why do you know him?
A: Because he is the husband of my daughter
Q: Whose name is that?
A: Rosa Jarcia, sir[16]
Based on abovementioned testimonies, as well as accusedappellant's letter to the complainant's parent's addressing them as
"mama at papa," and his use of the phrase, "ang inyong manugang,
Raul"[17] the trial court convicted him of the crime of rape committed by
a relative by affinity within the third civil degree, under the provisions
of Article 335 of the Revised Penal Code, as amended by Republic Act
No. 7659.
Considering that the relationship of accused-appellant to
complainant qualifies the crime of rape punishable by reclusion
perpetua to rape punishable by death, it is but proper that a more
stringent proof of relationship between the offender and the offended
party must be established by the prosecution. Corollarily, a clearer
proof of relationship between the complainant and the spouse of
accused-appellant must be presented. The relationship of accusedappellant and the complainant, is not adequately substantiated since it
is merely based on testimony of the complainant, her mother's
testimony and the accused-appellant's use of the words, "mama at
papa" in his letters. Needless to say, the evidence presented are not
sufficient to dispel doubts about the true relationship of accusedappellant and the complainant, to the benefit of which the accused is
entitled. Where the life of an accused-appellant hangs in the balance, a
more exacting proof must be adduced.
Accused-appellant, in his last submission, insists that the trial court
erred in convicting him based solely on a misplaced conclusion that he
admitted the offense charged based on the four (4) letters he sent to
the parents of the complainant, one of which states:

90

Ma, Pa, patawarin niyo na ako, alam ko na hindi niyo basta-basta

mapapatawad ang nagawa ko pero paano naman po ang kinabukasan
nang mga apo at anak ko.[18]
Accused-appellant asserts that the letters, in no way, indicate an
admission of guilt on his part. In support of his contention, accusedappellant cites the case of United States vs. Maqui[19]where it was held
that an accused may show that an offer of compromise on his part was
not made under a consciousness of guilt but merely to avoid the
inconvenience of imprisonment or for some other reason which would
justify a claim by the accused that an offer to compromise was not in
truth an admission of his guilt and an attempt to avoid the legal
consequences which would ordinarily ensue therefrom.
We are not convinced. The tenor of the letters sent by the
accused-appellant to the parents of the complainant, while not
explicitly admitting the forcible sexual intercourse, could hardly be
considered an admission made merely to avoid the inconvenience of
imprisonment. Consider the following excerpts:
Mama at Papa,
Masakit man sa inyo ang nagawa ko. Pero nagsasabi ako sa inyo ng
totoo. Nang maganap ang insidenteng iyon. Wala ako sa sarili kong
pagkatao. At wala akong matandaan sa nangyari (sic)[20]
And
xxx
Ma, pa, hindi ko kayo sinusumbatan. Dahil wala naman po akong dapat
isumbat sa inyo. Napakabait ninyo sa kain. Ewan ko nga lang kung bakit
ko nagawa iyon. Kung totoo talagang ako nasa sarili kong pagkatao.[21]
Despite his claim that complainant initiated and consented to the
sexual intercourse, accused-appellant in his letter never made mention
of this fact but has, instead, unceasingly asked for forgiveness from the
parents of the complainant, short of admitting categorically the offense
charged. Clearly, the unsolicited letters of the accused-appellant cannot
be construed as an offer of compromise to avoid the inconvenience of
imprisonment but a plea of mercy to save him from the gallows.
In view of the fact that relationship between accused-appellant
and the complainant was not properly established, we are constrained
to reduce the penalty imposed by the lower court from death
to reclusion perpetua. Accused-appellant is, however, ordered to pay

civil indemnity ex delicto in the amount of P50,000 and the P50,000

imposed by the lower court shall constitute moral damages. The fact
that the complainant has suffered the trauma of mental, physical and
psychological suffering which constitutes the bases for moral damages
is too obvious to still require the recital thereof at the trial by the victim
since the court itself assumes and even acknowledges such agony on
her part as gauge of her credibility.[22]
WHEREFORE, the decision of the Regional Trial Court of Naga City,
Branch 25, finding accused-appellant Raul Berana y Guevarra guilty
beyond reasonable doubt of rape is AFFIRMED with the modification
that accused-appellant is sentenced to suffer the penalty of reclusion
perpetua. Accused-appellant is ordered to pay complainant Ma. Elena
M. Jarcia the sum of P50,000 by way of civil indemnity and P50,000 as
moral damages. Costs against accused-appellant.
SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and YnaresSantiago, JJ., concur.
Davide, Jr., C.J., on leave.

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