ROBERT P. WA-ACON, petitioner vs.

PEOPLE OF THE PHILIPPINES, respondent

G.R. No. 164575 December 6, 2006

The Case

This Petition for Review on Certiorari, under Rule 45 of the Rules of Court, seeks
the reversal of the April 22, 2004 Decision1 of the Sandiganbayan convicting
petitioner Robert P. Wa-acon of Malversation under Article 217 of the Revised Penal
Code for misappropriating PhP 92,199.20, which forms part of his accountabilities
as Special Collecting Officer of the National Food Authority (NFA); and the July
23, 2004 Resolution2 of said graft court denying Wa-acon's plea for reconsideration
in Criminal Case No. 14375.

The Facts

The information against the accused Wa-acon reads as follows:

That on about the period from July 19, 1979 to September 28, 1981, in the City of
Manila, Philippines and within the jurisdiction of this Honorable Court, accused
Robert P. Wa-acon, a public officer, being a Special Collecting Officer, National
Food Authority (NFA) and stationed at Canonigo, Paco, Manila and as such was
accountable and responsible of rice stocks and empty sacks for which he received
and entrusted to him, by reason of his official position, did then and there
willfully, unlawfully and feloniously, with grave abuse of confidence,
misappropriate, misapply, embezzle and convert to his own personal use and benefit
the aforesaid stocks of rice and empty sacks with a total aggregate money value of
P114,303.00, to the damage and prejudice of the government in the aforementioned
amount.

CONTRARY TO LAW.3

The facts of the case as found by the Sandiganbayan are:

On the period from July 19, 1979 to September 28, 1981, accused Robert P. Wa-acon
was a Special Collecting Officer of the National Food Authority (NFA) and was
assigned at the Kadiwa Center at Moriones, Tondo, Manila. One of his duties was to
receive grains, consisting of rice and mongo, which shall then be sold to the
public on retail. The proceeds of the sale of the grains shall then be collected by
the same accused.

On September 28, 1981, by virtue of a Travel Order, a team of Auditors from the
Commission of Audit, composed of Dionisio A. Nillo, as team leader, Mercedes
Punzalan, Audit Examiner II, Herminia Gonzales, Audit Examiner II and Raquel Cruz,
Clerk II, as members, conducted an examination of the accountabilities of various
Special Collecting Officers of the NFA, one of whom was accused Robert P. Wa-acon.
The said examination was conducted at the Office of the Regional Auditor, NFA Metro
Manila Office at Paco, Manila. In that office, the audit team asked the presence of
accused Robert P. Wa-acon by virtue of a demand letter dated September 1981,
demanding the latter to produce cash, cash items, stocks and empty sacks and other
pertinent papers. As testified by Prosecution witness Dionisio A. Nillo, accused
Robert P. Wa-acon told the audit team that "he has no cash on hand at the time
pertaining to his accountability as Special Collecting Officer. Hence, it was
indicated in the Cash Count Sheet that there was no cash counted during the cash
examination.

Based on the examination conducted on the various Warehouse Stock Issues, Empty
Sacks Receipts, Official Receipts submitted and the Certificate of Inventory of
Stocks and Empty Sacks dated September 18, 1981, containing the signature of
accused Robert P. Wa-acon and witnessed by Virgilio Cacanendin, Special
Investigator, Manolito Diaz, Bookkeeper, Louie Pastofide, Proceso A. Saavedra,
Audit Examiner II and Gloria T. Reyes, Audit Examiner I, the audit team rendered a
Report of Examination, Form 74-A of the Cash and Accounts of accused Robert P. Wa-
acon. All of the aforementioned documents were submitted by Proceso Saavedra, a
resident Audit Examiner of the NFA Metro Manila Office, Paco, Manila, to the Audit
team headed by Dionisio A. Nillo. In connection with the Audit conducted, the Audit
Team prepared the following Schedules: Schedule 1: Statement of Rice received by
Robert A. Wa-acon, Schedule 1-A: Statement of Rice/mongo Received by Robert P. Wa-
acon, Schedules 2: Statement of Remittances of Proceeds from Sales of Robert P. Wa-
acon, Schedule 3: Statement of Refunds made by Robert P. Wa-acon, Schedule I:
Statement of Empty Sacks Returned by Robert P. Wa-acon, and Summary of Empty Sacks
Accountability of Robert P. Wa-acon and the Revised Summary of Cash Examination of
Robert P. Wa-acon.

The Report of the Examination of the Cash and Accountabilities of accused Robert P.
Wa-acon shows that the latter incurred a cash shortage of One Hundred Fourteen
Thousand Three Hundred Three Pesos (P114,303.00). In the Revised Summary of the
Cash Examination of accused Robert P. Wa-acon, the cash shortage was changed to One
Hundred Two Thousand and One Hundred Ninety Nine Pesos and Twenty Centavos
(P102,199.20) after deducting the cost of sixty (60) bags of regular milled rice
value of Six Thousand Nine Hundred (P6,900.00) and the monetary value of the empty
sacks returned by accused Robert P. Wa-acon, which is Five Thousand Two Hundred
Three Pesos and Eighty Centavos (P5,203.80). However, accused Robert P. Wa-acon
made a refund of the amount of Ten Thousand Pesos (P10,000.00). Therefore, the
total shortage amount[ed] to Ninety Two Thousand One Hundred Ninety Nine Pesos and
Twenty Centavos (P92,199.20).4

During the trial before the Sandiganbayan, petitioner denied that he misapplied and
converted for his personal use the stocks of rice and empty sacks as he had been
faithfully remitting all the proceeds of the rice he sold to consumers.5

Petitioner also contended that the shortage discovered by the Audit Team may be
attributed to the discrepancy in the actual weight of the rice actually delivered
to him and that of the weight reflected in the receipts. In other words, he claimed
that the rice delivered to him weighed less than that for which he signed. He
alleged that he discovered the shortage of five (5) to ten (10) kilos per sack only
upon delivery of the rice to the station/outlet. Petitioner explained that he could
not check the weight of the sacks delivered to him as the weighing scale in their
office had a maximum capacity of only twelve (12) kilograms. Petitioner claimed
that he informed his superiors of such shortage verbally, but was unheeded.6

Petitioner further claimed that the only reason he signed for the sacks of rice,
despite the shortage, was because he was told that he would not be paid his salary
if he would not sign, added to the fact that he was then hungry�all of which
prompted Wa-acon to sign the audit report of the Audit Team.7 As to the missing
empty sacks, petitioner argued that those were in the custody of the delivery man
who had a logbook where Special Collecting Officers sign as proof that the delivery
man had taken the sacks.8

The Sandiganbayan Ruling

Citing the presumption under the last paragraph of Article 217 of the Revised Penal
Code that "the failure of the public officer to have duly forthcoming any public
funds which he is chargeable upon demand by any duly authorized officer, shall be
prima facie evidence that he has put such missing funds or property to personal
use" and the inability of accused Wa-acon to "rebut the presumption that he had put
the rice stocks and the empty sacks to personal use," the Sandiganbayan found him
guilty of malversation of public funds under the Revised Penal Code. In the graft
court's April 22, 2004 Decision, the dispositive portion reads:
WHEREFORE, judgment is hereby rendered finding the accused Robert P. Wa-acon,
GUILTY beyond reasonable doubt of the crime of Malversation of Public Funds as
defined in and penalized by Article 217 of the Revised Penal Code and, there being
no modifying circumstance, is hereby sentenced to suffer an indeterminate penalty
of from TWELVE (12) YEARS and ONE (1) DAY of reclusion temporal minimum, as the
minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of reclusion
temporal maximum, as the maximum and to suffer perpetual special disqualification.
The accused Robert P. Wa-acon is likewise ordered to pay a FINE equal to the amount
of the funds malversed, which is Ninety Two Thousand One Hundred Ninety Nine Pesos
and Twenty Centavos (P 92,199.20) and to indemnify the National Food Authority
(NFA) the amount of Ninety Two Thousand One Hundred Ninety Nine Pesos and Twenty
Centavos (P92,199.20) with interest thereon.

SO ORDERED.9

Correspondingly, petitioner filed his May 20, 2004 Motion for Reconsideration10 of
the Decision, reiterating his defenses raised during the trial.

On July 23, 2004, the Sandiganbayan issued the assailed Resolution denying
petitioner's Motion for Reconsideration on the ground that accused Wa-acon raised
no new substantial issues and cogent reasons to justify the reversal of the April
22, 2004 Decision.

Thus, Wa-acon filed the instant petition.

The Court's Ruling

Petitioner Wa-acon presented a lone issue to be resolved: his guilt was not proven
beyond reasonable doubt; thus, the assailed Decision and Resolution convicting him
of malversation must be reversed.

In seeking the recall of his conviction, accused petitioner asserts that the
unremitted amounts for the rice stocks and the money allegedly gained from the
empty sacks were not used for his personal use and therefore, the fourth element of
malversation�that the accused appropriated, took, or misappropriated public funds
or property for which he was accountable�was not proven. According to petitioner,
while he might have violated certain auditing rules and regulations, this violation
is not tantamount to malversation. He leans on the rulings in Madarang v.
Sandiganbayan,11 and Agullo v. Sandiganbayan12 that "it is essential to prove that
there had been a conversion of public fund to personal use" and that "conversion
must be affirmatively proved"; otherwise, the presumption is "deemed never to have
existed at all."

Article 217 of the Revised Penal Code whereas provides:

Malversation of public funds or property. � Presumption of malversation. � Any

public officer who, by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or negligence, shall permit
any other person to take such public funds or property, wholly or partially, or
shall otherwise be guilty of the misappropriation or malversation of such funds or
property x x x

x x x x

The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized officer
shall be prima facie evidence that he has put such missing funds or property to
personal uses (emphasis supplied).

The elements to constitute malversation under Article 217 of the Revised Penal Code
are as follows:

The elements common to all acts of malversation � under Article 217 are: (a) that
the offender be a public officer; (b) that he had custody or control of funds or
property by reason of the duties of his office; (c) these funds were public funds
or property for which he was accountable; and (d) that he appropriated, took,
misappropriated or consented or through abandonment or negligence, permitted
another person to take them.13

Accused petitioner has conceded that the first three (3) elements of the crime of
malversation exist but asseverates that the fourth element�that he appropriated,
took, or misappropriated the public funds for which he was made accountable by the
Commission on Audit (COA) to his own personal use��was not proven beyond reasonable
doubt.

Unfortunately, petitioner's postulation has no legal mooring. Article 217, as

amended by Republic Act 1060, no longer requires proof by the State that the
accused actually appropriated, took, or misappropriated public funds or property.
Instead, a presumption, though disputable and rebuttable, was installed that upon
demand by any duly authorized officer, the failure of a public officer to have duly
forthcoming any public funds or property� with which said officer is
accountable�should be prima facie evidence that he had put such missing funds or
properties to personal use. When these circumstances are present, a "presumption of
law" arises that there was malversation of public funds or properties as decreed by
Article 217. A "presumption of law" is sanctioned by a statute prescribing that "a
certain inference must be made whenever facts appear which furnish the basis of the
interference." This is to be set apart from a "presumption of fact" which is a
"[conclusion] drawn from particular circumstances, the connection between them and
the sought for fact having received such a sanction in experience as to have become
recognized as justifying the assumption."14 When there is a presumption of law, the
onus probandi (burden of proof), generally imposed upon the State, is now shifted
to the party against whom the interference is made to adduce satisfactory evidence
to rebut the presumption and hence, to demolish the prima facie case.

After the government auditors discovered the shortage and demanded an explanation,
petitioner Wa-acon was not able to make money readily available,15 immediately
refund the shortage,16 or explain satisfactorily the cash deficit.17 These facts or
circumstances constitute prima facie evidence that he converted such funds to his
personal use.

Prima facie evidence is defined as:

Evidence good and sufficient on its face. Such evidence as, in the judgment of the
law, is sufficient to establish a given fact, or the group or chain of facts
constituting the party's claim or defense, and which if not rebutted or
contradicted, will remain sufficient. Evidence which, if unexplained or
uncontradicted, is sufficient to sustain a judgment in favor of the issue it
supports, but which may be contradicted by other evidence (emphasis supplied).18

Neither can accused petitioner claim that such presumption under Article 217
violates the constitutional guarantee of presumption of innocence for "the
establishment of a prima facie case does not take away the presumption of innocence
which may x x x be such as to rebut and control it."19 Such prima facie evidence,
if unexplained or uncontradicted, "can counterbalance the presumption of innocence
to warrant a conviction."20
Since the facts adduced by the State brought about a prima facie evidence which is
considered sufficient to sustain petitioner's conviction under Article 217, it is
incumbent upon petitioner Wa-acon to destroy the presumption of law.

In his quest to exculpate himself from the legal assumption of criminal liability
for the missing funds, he insisted that: 1) the sacks of rice were less than that
declared in the receipts when they were delivered to him; 2) he sold the rice at
the older and lower prices, as he was not informed of changes in the prices of the
rice; and 3) the empty sacks of rice were in the possession of the delivery men.
However, petitioner merely settled for his bare uncorroborated testimony during the
trial before the Sandiganbayan. He never bothered to adduce other pieces of
evidence to fortify his defenses. Petitioner did not produce the delivery men whom
he claims had in their possession the empty sacks or any acknowledgement receipt
for said bags. Moreover, petitioner did not bring forward his co-workers to attest
to and confirm the practice of, and substantiate petitioner's story of receiving
sacks of rice without weighing them and that the bags received weighed less than
that reflected in the receipt. The established rule is that "[d]enials, if
unsubstantiated by clear and convincing evidence, are deemed negative and self-
serving evidence unworthy of credence."21 The court a quo is correct in holding
that as compared to credible witnesses like the COA auditors who testified on
affirmative matters, the self-serving negative testimony of accused petitioner Wa-
acon has no substantial weight or credit.22

"Negative testimony" is made clear as testimony that a fact did not exist, that a
thing was not done, that no one did not hear��is admissible and, in the absence of
opposing testimony, is usually regarded as of sufficient probative force to sustain
a verdict. It is however, a long recognized general rule of evidence that all other
things being equal, positive evidence is stronger than negative evidence. 23

Since Wa-acon lamentably fell short of adducing the desired quantum of evidence,
his weak and unconvincing testimony standing alone did not overthrow the
presumption that he misappropriated public funds.

As a last ditch effort to exonerate himself, petitioner anchored his defense on

Madarang24 and Agullo,25 where public employees charged of malversation were
cleared of criminal liability.

In these two (2) cases cited by petitioner, we elucidated the legal presumption of
assumed criminal liability for accountable funds under the last paragraph of
Article 217 of the Revised Penal Code. In Madarang, we explained:

Concededly, the first three elements are present in the case at bar. Lacking any
evidence, however, of shortage, or taking, appropriation, or conversion by
petitioner or loss of public funds, there is no malversation (Narciso vs.
Sandiganbayan, 229 SCRA 229 [1994]). True, the law creates a presumption that the
mere failure of an accountable officer to produce public funds which have come into
his hand on demand by an officer duly authorized to examine his accounts is prima
facie evidence of conversion. The presumption is, of course, rebuttable.
Accordingly, if petitioner is able to present adequate evidence that can nullify
any likelihood that he had put the funds or property to personal use, then that
presumption would be at an end and the prima facie case is effectively negated.26

In Agullo, we amplified that:

Thus, in a string of categorical pronouncements, this Court has consistently and

emphatically ruled that the presumption of conversion incarnated in Article 217,
paragraph (4) of the Revised Penal Code is � by its very nature � rebuttable. To
put it differently, the presumption under the law is not conclusive but disputable
by satisfactory evidence to the effect that the accused did not utilize the public
funds or property for his personal use, gain or benefit.

Accordingly, if the accused is able to present adequate evidence that can nullify
any likelihood that he had put the funds or property to personal use, then that
presumption would be at an end and the prima facie case is effectively negated.
This Court has repeatedly said that when the absence of funds is not due to the
personal use thereof by the accused, the presumption is completely destroyed; in
fact, the presumption is never deemed to have existed at all.27

Unfortunately, petitioner's vaunted reliance on Madarang and Agullo does not

provide legal relief as the facts in these cases are not on all fours with his
case. The accused parties in said cases were able to produce satisfactory evidence
ample enough to prove that the missing funds were not converted to their personal
uses and thus, the legal presumption was effectively negated.

In Madarang, the accused, based on the COA audit report, was charged with
malversation of PhP 20,700.00 representing advance rental payments for the lease of
real property owned by the City of Cebu for which he was responsible as a barangay
captain. When the accused was asked to account for such missing funds, he
introduced convincing evidence that the funds were utilized by the barangay for its
projects and for the benefit of his constituents, namely: for materials for the
water system of the barangay hall, barangay police uniforms, and payment for
medicine. Therefore, the legal presumption was successfully overturned.

Likewise, in Agullo, the accused, who was the disbursing officer of then Ministry
of Public Works and Highways, Regional Office No. VIII, Candahug, Palo, Leyte, was
charged based on audit, with malversation of PhP 26,404.26 representing the
salaries of the personnel in her office. The accused admitted that the funds were
lost; however, she was able to prove that she suffered a stroke while going to her
office. This was corroborated by the barangay captain of the place where she
suffered a stroke, as well as medical certificates to prove the illness. She was
acquitted because the loss of funds was not due to malversation.

In contrast, petitioner anchored his defenses solely on his own bare testimony
unsubstantiated by other parol, documentary, or object evidence to prop up such
self-serving allegations. Without doubt, the rulings in Madarang and Agullo cannot
be considered precedents to the case at bar because the facts in said cases are not
the same or substantially similar to petitioner Wa-acon's situation.

Without any strong and convincing proof to bring down the disputable presumption of
law, the Court is left with no other option but to sustain petitioner's conviction.

WHEREFORE, We DENY the petition and the assailed April 22, 2004 Decision and the
July 23, 2004 Resolution of the Sandiganbayan in Criminal Case No. 14375 are
AFFIRMED IN TOTO.

No pronouncement as to costs.

SO ORDERED.

Quisumbing, J., Chairperson, Carpio, Carpio Morales, and Tinga, JJ., concur.
----

GAUDIOSO C. LLAMOSO, HILARIO A. GUIGUE PROTACIO U. JUMAMOY, JR., NICANOR ANINIPO

and ALFREDO CAGAIS petitioners vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,
respondents
G.R. No. L-63408 & 64026 August 7, 1985
Enrico B. Aumentado for petitioner in 63408.
Prospers A. Crescini for petitioner in 64026.
The Solicitor General for respondents.

AQUINO, J.:

This case is about a false entry in the payroll for March 16 to 31, 1981 of 12
laborers who worked in the improvement of Sta. Rosa Street, municipality of E.
Villanueva, Siquijor. The anomaly involves the sum of P 130 as the wages for two
weeks of one laborer at P 13 a day. The entries for the 11 laborers were not
falsified.

Gaudioso C. Llamoso was the assistant highway engineer and officer-in-charge of the
district engineer's office. Hilario A. Guigue, 56, a senior civil engineer, was
assigned to Project CRI-80-0704 which undertook the repair of drainage canals and
sidewalks at Sta. Rosa Street E. Villanueva. Protacio U. Jumamoy, Jr., 33, was also
a civil engineer who had been in the service since 1974.

Llamoso, now 57, was assigned as district engineer on February 10, 1981. Alfredo
Cagais, 25, worked as caretaker of the district engineer's cottage and acted as
utility man and messenger. On March 10, 1981 Cagais complained that he had not been
paid his wages at thirteen pesos a day or P 130 for the quincena of February 16 to
27, 1981, a period of ten working days.

He was on the verge of crying because he was the sole breadwinner of vs. family.
His mother was sickly. Llamoso called Guigue and Jumamoy to explain why Cagais had
not been paid his wages. They said that Cagais was listed in the payroll of the
Pisong Bridge project. Apparently, he could not be included in the payroll for
personnel of the district engineer's office. Llamoso asked Guigue and Jumamoy to
find a "legitimate way" by which Cagais could be paid his wages as caretaker (11
tsn November 17, 1982).

Jumamoy intended to consult the auditor as to how Cagais could be paid vs. wages.
He was not able to see the auditor. Instead, he talked with Gertrudes Quilat an
auditing aide who suggested that a person acting as a "stand-in" or substitute for
Cagais, might be included in the payroll but Jumamoy should consult a lawyer about
that arrangement (14).

Jumamoy discussed the matter with Mayor Alfredo Orquillas, Sr. of the municipality
of E. Villanueva who used to be a municipal judge. Orquillas advised that a "stand-
in" was permissible provided it was done in good faith and without the slightest
intention of defrauding the government (15). Jumamoy then asked Cagais who could
act as his "stand-in". Cagais suggested Nicanor Aninipo, 18, who was allegedly
jobless (17).

So, on March 12, 1981, Jumamoy instructed his clerk to include the name of Aninipo
in the form or document known as "Authority to Hire Casual Employees and Order to
Work" for the project on Sta. Rosa Street, municipality of E. Villanueva for the
quincena of March 16 to 31, 1981 (Exh. A and A-2). Jumamoy initialed the inclusion
of Aninipo's name in that form and gave it to his immediate superior, Guigue, for
approval (19). Guigue approved it.

Aninipo was also included in the "Time Book and Payroll" (Exh. A) for that quincena
of March 16 to 31, 1981 which listed 12 laborers, 11 of whom worked for 12 days. In
the case of Aninipo, the twelfth in the list, it was indicated that he worked for
10 days only to correspond with the ten-day period for the quincena of February 12
to 27, 1981 for which, as already noted, Cagais worked in the district engineer's
cottage (21- 22).
Aninipo was able to collect P 130 under that payroll for the project on Sta. Rosa
Street, E. Villanueva. He gave the amount to Cagais because, as previously
arranged, Aninipo was only a "stand-in" for Cagais (22-23).

The pay master the sole prosecution witness, testified that at nine o'clock in the
morning of April 13, 1981 he paid Aninipo P 130 for his supposed work in the Sta.
Rosa Street project. Two hours later, Aninipo wanted to collect P 156 for his
actual work in the Bogo-Licuan road, another project (Exh. B). The paymaster
refused to pay him again. That was how the false entry was discovered.

It should be clarified that before March 16, Aninipo was really jobless. His first
job was in the Bogo-Licuan project. But he was not able to apprise Cagais before
March 16 that he started working in that project (62-63).

Jumamoy declared that the government was not defrauded because Aninipo gave the
P130 to Cagais for his work of ten days in the district engineer's cottage but
Aninipo was not able to collect P156 for his actual work in the Bogo-Licuan Road
project (31-2).

The Sandiganbayan convicted Llamoso Guigue, Jumamoy, Cagais and Aninipo as

conspirators in the crime of falsification of public documents by allegedly having
made it appear in the time book, payroll and authority to hire employees (Exh. A to
A-2) that Aninipo worker in the Sta. Rosa Street project when in fact he did not
work therein.

I t sentenced each of them to an indeterminate penalty of two years, four months

and one day of prision correccional as minimum to eight years and one day of
prision mayor as maximum and to pay a fine of P2,000. They appealed.

We hold that the accused are not criminally liable because they had no criminal
intent. Making no concealment or evasion, they admitted that there was a false
entry. They acted in good faith (12-13 tsn Nov. 16, 1982). They may be disciplined
administratively for the irregularity but their inclusion of ninipo in the payroll
is outside the pale of criminal law.

Apparently, the case was an isolated instance. It should not be equated with the
systematic and rampant practice in some engineering districts of fabricating
payrolls with fictitious laborers working on fictitious projects resulting in the
defraudation of the government of considerable sums of money,

There is a ruling that the accused is not guilty of falsification in the absence of
proof that he maliciously perverted the truth with the wrongful intent of injuring
some third person (U.S. vs. Reyes, 1 Phil. 341, 343).

The instant case is similar to U.S. vs. Arceo, 17 Phil. 592, where the accused was
the foreman of carpenters hired by the City of Manila to reconstruct the houses
torn down for reasons of sanitation and removed to the San Lazaro Estate. The city
had bound itself to reconstruct gratis said houses. The wife of the accused had
purchased from Severino Pelagio one of these houses, including the right to have
the house rebuilt at the city's expense.

The accused foreman reported that a carpenter named Castro worked for the city when
in truth he worked on the reconstruction of the house which the accused had
purchased. He was charged with falsification,

It was held that he was not criminally liable. He believed in good faith that the
city was duty-bound to rebuild the house which his wife had purchased from Pelagio
and that there was nothing wrong in charging against the city the time spent by
Castro in rebuilding that house, just as there was nothing wrong in charging
against the city and time spent by the other carpenters in rebuilding the other
houses removed under the same circumstances.

In the instant case, as in the Arceo case, it cannot be said that the accused
perverted the truth in including Aninipo in the payroll in order to attain any
felonious objective. Their honest motive was to enable Cagais to receive his
compensation which he needed very badly.

The judgment of conviction is reversed and set aside. The accused are acquitted
with costs de oficio. A copy of this decision should be furnished the Minister of
Public Works and Highways for the purpose of taking administrative action against
the accused should the facts warrant such action.

SO ORDERED.

Concepcion, Jr., Abad Santos, Escolin, Relova, Gutierrez, Jr., De la Fuente and
Alampay, JJ., concur.

Makasiar, C.J., Melencio-Herrera and Cuevas, JJ., reserved their votes.

Plana, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

I concur with the judgment of acquittal. It is a judgment reached with the mind and
the heart that the five accused had no criminal intent in making in good faith an
admittedly false entry in the payroll that enabled one of them, Alfredo Cagais, to
be paid promptly his just wages for ten days work (a total of P130.00 at P13.00 per
day), which he needed very badly for his family.

It reaffirms the doctrine of deference and non-disturbance on appeal of the trial

court's conclusions on matters of fact and credibility of witnesses cannot rise
above the constitutional presumption of innocence which can only be overcome if the
proof of guilt is beyond reasonable doubt. The Court had stressed time and again
that "while the Court on appeal would normally not disturb the findings of the
trial court on the credibility of witnesses in view of the latter's advantage of
observing at first hand their demeanor in giving their testimony, the Court has
consistently held that this rule of appreciation of evidence 'must bow to the
superior and immutable rule that the guilt of the accused must be proved beyond
reasonable doubt, because the law presumes that a defendant is innocent and this
presumption must prevail unless overturned by competent and credible proof."

The now Chief Justice thus defined in an early ponencia the scope of the
constitutional presumption of innocence: "That is a right safeguarded [the]
appellants. Accusation is not, according to the fundamental law, synonymous with
guilt. It is incumbent on the prosecution to demonstrate that culpability lies.
Appellants were not even called upon then to offer evidence on their behalf. Their
freedom is forfeit only if the requisite quantum of proof necessary for conviction
be in existence. Their guilt must be shown beyond reasonable doubt. To such a
standard, this Court has always been committed. There is need, therefore, for the
most careful scrutiny of the testimony of the state, both oral and documentary,
independently of whatever defense is offered by the accused. Only if the judge
below and the appellate tribunal could arrive at a conclusion that the crime had
been committed precisely by the person on trial under such an exacting test should
the sentence be one of conviction. It is thus required that every circumstance
favoring his innocence be duly taken into account. The proof against him must
survive the test of reasons the strongest suspicion must not be permitted to sway
judgment The conscience must be satisfied that on the defendant could be laid the
responsibility for the offense charged, that not only did he perpetrate the act but
that it amounted to a crime. What is required then is moral certainty."

The Court's judgment justly sets aside respondent court's judgment which, for the
"magnificent" sum of P 130.00 duly earned by and paid to the accused laborer Cagais
thru a "stand-in" because of various technical and bureaucratic requirements in
government projects, would have sentenced all five accused (Three engineers and two
laborers), notwithstanding "their honest motive" and non-defraudation of the
government of a single centavo, 3 to serve an indeterminate penalty of 2 years, 4
months and 1 day of prision correccional as minimum to 8 years and 1 day of prision
mayor as minimum and to pay a fine of P2,000.00. To paraphrase the late President
Manuel A. Roxas when he granted political amnesty after the last World War II.
their error was one of the heart and not of the mind that would render them
criminally liable.

Separate Opinions

TEEHANKEE, J., concurring:

I concur with the judgment of acquittal. It is a judgment reached with the mind and
the heart that the five accused had no criminal intent in making in good faith an
admittedly false entry in the payroll that enabled one of them, Alfredo Cagais, to
be paid promptly his just wages for ten days work (a total of P130.00 at P13.00 per
day), which he needed very badly for his family.

It reaffirms the doctrine of deference and non-disturbance on appeal of the trial

court's conclusions on matters of fact and credibility of witnesses cannot rise
above the constitutional presumption of innocence which can only be overcome if the
proof of guilt is beyond reasonable doubt. The Court had stressed time and again
that "while the Court on appeal would normally not disturb the findings of the
trial court on the credibility of witnesses in view of the latter's advantage of
observing at first hand their demeanor in giving their testimony, the Court has
consistently held that this rule of appreciation of evidence 'must bow to the
superior and immutable rule that the guilt of the accused must be proved beyond
reasonable doubt, because the law presumes that a defendant is innocent and this
presumption must prevail unless overturned by competent and credible proof." 1

The now Chief Justice thus defined in an early ponencia the scope of the
constitutional presumption of innocence: "That is a right safeguarded [the]
appellants. Accusation is not, according to the fundamental law, synonymous with
guilt. It is incumbent on the prosecution to demonstrate that culpability lies.
Appellants were not even called upon then to offer evidence on their behalf. Their
freedom is forfeit only if the requisite quantum of proof necessary for conviction
be in existence. Their guilt must be shown beyond reasonable doubt. To such a
standard, this Court has always been committed. There is need, therefore, for the
most careful scrutiny of the testimony of the state, both oral and documentary,
independently of whatever defense is offered by the accused. Only if the judge
below and the appellate tribunal could arrive at a conclusion that the crime had
been committed precisely by the person on trial under such an exacting test should
the sentence be one of conviction. It is thus required that every circumstance
favoring his innocence be duly taken into account. The proof against him must
survive the test of reasons the strongest suspicion must not be permitted to sway
judgment The conscience must be satisfied that on the defendant could be laid the
responsibility for the offense charged, that not only did he perpetrate the act but
that it amounted to a crime. What is required then is moral certainty. " 2

The Court's judgment justly sets aside respondent court's judgment which, for the
"magnificent" sum of P 130.00 duly earned by and paid to the accused laborer Cagais
thru a "stand-in" because of various technical and bureaucratic requirements in
government projects, would have sentenced all five accused (Three engineers and two
laborers), notwithstanding "their honest motive" and non-defraudation of the
government of a single centavo, 3 to serve an indeterminate penalty of 2 years, 4
months and 1 day of prision correccional as minimum to 8 years and 1 day of prision
mayor as minimum and to pay a fine of P2,000.00. To paraphrase the late President
Manuel A. Roxas when he granted political amnesty after the last World War II.
their error was one of the heart and not of the mind that would render them
criminally liable.
---
PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. PORFERIO M. PEPITO, accused-
appellant.
G.R. Nos. 112761-65 February 3, 1997

PUNO, J.:

Accused-appellant PORFERIO PEPITO appeals from the Decision of the trial court
convicting him of Malversation of Public Funds through Falsification of Official
Documents on five (5) counts.

Appellant, as Acting Postmaster of Iligan City, was charged with misappropriating

government funds by manipulating his records and making it appear that he paid a
number of postal money orders although no such payments were made. Appellant was
found short in his cash accounts, as follows: (a) P23,643.73 for October 1975; 1
(b) P11.07 for December 1975.2 (c) P7,283.59 for the month of January 1976; 3 (d)
P30,052.25 for April 1976, and;4 (e) P42,302.97 for May 1976. 5

Except for the dates and amounts involved, appellant was similarly charged in five
(5) separate Informations6 as follows:

That sometime during the month of __________, in the City of Iligan, Philippines,
and within the jurisdiction of this Honorable Court, the said accused Porferio
Pepito, Acting Postmaster of Iligan City, with official station thereat, and as
such accountable officer, responsible for funds collected and received by him by
reason of his position, did then and there willfully, unlawfully and fraudulently
and with grave abuse of confidence, misappropriate, embezzle and take away
government funds in his possession in the amount __________ of accused employing
deceit, false manifestation and fraudulent misrepresentations, manipulated his
records to make it appear that on the month __________ of the Money Order Paid by
him was __________ although his payments amounted only to __________ making
untruthful statements in a narration of facts and that by virtue of such
falsification in his record of payments, the said accused successfully appropriated
and converted to his own personal use and benefit the sum of __________ to the
damage and prejudice of the Bureau of Post, Manila, Philippines, in the
aforementioned amount of __________.

Contrary to and in violation of Article 217 and Article 171 of the Revised Penal
Code.

First, the facts. In a letter,7 dated August 5, 1976, CESAR L. JUAN, Regional
Director of the Bureau of Posts, Region X, Cagayan de Oro City, requested the
Office of the City Auditor, Iligan City, to audit the accounts of appellant
PORFERIO PEPITO, Acting Postmaster of Iligan City. Earlier, an audit team from the
Office of Regional Director Juan uncovered certain anomalies regarding appellant's
postal money order transactions at the Iligan City Post Office. However, due to
lack of time, the team failed to determine the exact figure involved in the
anomaly. Hence, their request for assistance from the City Auditor's Office. 8
Iligan City Auditor FRANCISCO APARECE immediately formed an audit team composed of
Assistant City Auditor HONORIO N. PABLICO and Auditor ROMULO ORBE.9 They started
their audit on August 19, 1976 and concentrated on the postal money order
transactions of appellant. They examined the cash in appellant's possession and.
verified the records of the postal money orders (PMOs), the payment of these
checks, and all depository funds of said post office in government banks and in the
Bureau of Posts, Manila, covering the period from July 1, 1975 to August 9, 1976.
10

Asst. Auditor Pablico outlined the procedure for payment of postal money orders,
thus: The postmaster pays the postal money order (PMO) upon presentation to him.
The PMO paid cards, evidencing payment of the PMOs, are then kept by the postmaster
as custodian. The postmaster then prepares a list of the PMOs he paid for a period
of fifteen (15) days. Hence, in a month, the postmaster prepares two (2) lists or
records of payment: one for the first fifteen days of the month, and another list
for the next fifteen days. The PMO paid cards and the lists are then sent to the
central office of the Bureau of Posts in Manila for safekeeping. A copy of each
list is sent to the Regional Office of the Bureau of Posts, another copy is sent to
the City Auditor's Office and the last copy is retained by the Postmaster
himself.11

The audit team verified the total amount of PMO payments appearing on the lists or
records prepared by appellant. They totalled the daily PMO payments of appellant
and cross-checked them with appellant's entry on the cash book. These reveal the
total money order payments of appellant for the month. After totalling the PMO
payments of the postmaster per month, the audit team requested the Central Office
of the Bureau of Posts in Manila, through its regional office, to furnish them the
PMO paid cards, evidencing payments of the PMOs during the period covered by their
audit. 12

Upon receipt of the PMO paid cards, the audit team cross-checked the paid cards
with the record of the PMOs allegedly paid by appellant. They discovered that some
PMOs were listed as paid but were not supported by paid cards. The audit team
uncovered these discrepancies for the months of October and December, 1975 and for
the months of January, April and May, all of 1976. Based on the records, the total
PMOs paid by appellant during the period covered by the audit was P494,720.85, but
only P250,090.60 was supported by PMO paid cards. The balance of two hundred forty-
four thousand six hundred thirty pesos and twenty-five centavos (P244,630.25) was
disallowed in audit for lack of supporting documents. Hence, the cash shortage in
appellant's account. 13 Appellant asked the auditors to double-check their findings
but the audit team came out with the same result.

In a letter 14 dated February 25, 1977, the audit team informed appellant of the
shortage in his cash accounts. They demanded from appellant the immediate
restitution of the missing funds and an explanation why no criminal and
administrative sanctions should be taken against him. 15 No action was taken by
appellant to restore and explain his shortage of funds. Hence, five (5) criminal
Informations for malversation of public funds through falsification of official
documents were filed against him.

After the prosecution formally offered its evidence and rested its case on December
18, 1978, the continuation of the hearing for the presentation of the defense
evidence was suspended due to the transfer of then Presiding Judge Leonardo I. Cruz
to Angeles City.

It was only after two (2) years, or on August 13, 1982, that continuation of the
trial resumed for the presentation of the defense evidence. However, on the
scheduled date of hearing, appellant, through counsel, filed a motion to suspend
the trial 16 on the ground that he has applied for and was conditionally granted an
amnesty under P.D. 1082 by the 11TH Amnesty Commission of Marawi City, Lanao del
Sur, for said cases. Appellant prayed that pursuant to Section 6 of P.D. 1082,
further proceedings in his cases be held in abeyance pending final approval of his
conditional amnesty by the President of the Philippines.

The fiscal opposed 17 the motion on the ground that the conditional amnesty of
appellant was spurious for it was issued by a person not duly authorized for the
purpose.

Resolution of this motion was deferred for six (6) years with the subsequent
reorganization of the judiciary and the re-raffling of appellant's cases. Finally,
in an Order, 18 dated September 9, 1988, appellant's motion to suspend the trial of
the cases was set for hearing by the new presiding Judge Tago M. Bantuas. However,
on the date set, appellant's counsel failed to appear. Judge Bantuas continued with
the hearing of appellant's motion and denied appellant's motion to suspend the
trial. The continuation of the hearing of the cases was set on January 10, 1989.
Upon receipt of the Order and Notice of Hearing, appellant's counsel, Atty.
Dimnatang T. Saro, filed a motion to postpone the hearing due to conflict of
schedule. 19 Hearing was thus reset to February 7,
1989. 20

Again, a series of motions to defer the hearing was filed at appellant's instance
and granted by the trial court. It was only on January 24, 1992 that the new
presiding Judge Maximino Magno-Libre issued an Order admitting the evidence offered
by the prosecution. 21 On July 14, 1992, the defense commenced to adduce its
evidence and presented appellant as its lone witness.

On the stand, appellant denied there was shortage in his cash accounts. After he
was informed of the missing funds, he asked the audit team to re-examine the
records for his cash on hand has always tallied with his cashbook. His office had
been subjected to various regular audit examinations by different offices, namely:
the Bureau of Treasury, the District Postal Inspector, the Postal Audit Examiners
and the Iligan City Auditor's Office. None of these offices found any irregularity
in his accountabilities. He urged that there must have been some error or
inaccuracy in the conduct of the audit. He further charged that the malversation
cases were filed against him for political reasons for the late Governor Arsenio
Quibranza had a grudge against his son-in-law. 22

Appellant admitted that when he was found short in his cash accounts, he applied
for amnesty under P.D. 1082. When he was informed by then Presiding Judge Dalisay
and Prosecutor Lagcao that he would have to admit his guilt in his application for
amnesty since amnesty presupposes the commission of a crime, he still proceeded
with his application for his friends in Lanao del Sur assured him that his amnesty
would be immediately processed and approved. His conditional amnesty has been
granted but it is still pending final approval by the President for allegedly there
is someone in Manila who is blocking the grant of his amnesty. 23

After trial, the court rendered judgment 24 on September 8, 1993 finding appellant
guilty of the crime charged. The dispositive portion reads:

WHEREFORE, in accordance with the provisions of Article(s) 217, 171, in relation to

Article 48 of the Revised Penal Code, the Court finds accused guilty on all the
five (5) counts he is charged (with) and is hereby sentenced, to wit:

1. As to Criminal Case No. 277, since the amount misappropriated is P23,643.73,

accused should be penalized according to the penalty provided in Paragraph No. 4 of
Article 217 of the Revised Penal Code which is reclusion temporal maximum to
reclusion perpetua. Since according to Article 48 of the Revised Penal Code, the
penalty for the most serious crime shall be applied in its maximum period, accused
is meted out a penalty of reclusion perpetua.

2. As to Criminal Case No. 278, considering that the amount misappropriated was
P11.07, according to Article 48 of the Revised Penal Code, the penalty for the most
serious crime shall be imposed in its maximum period, thus, accused should be meted
out the penalty prescribed in Article 171 and in applying the provisions of the
indeterminate sentence law, accused should be meted the indeterminate prison terms
of six (6) years prision correctional to twelve (12) years prision mayor.

3. As to Criminal Case No. 274, since the amount malversed was P7,283.79,
accused should be penalized according to Paragraph No. 3 of Article 217 of the
Revised Penal Code and should be meted out an indeterminate penalty of ten (10)
years and one (1) day of prision mayor to fourteen (14) years and eight (8) months
of reclusion temporal.

4. As to Criminal Case No. 275, considering that the amount misappropriated is

P30,052.20, the penalty imposed should be akin to the penalty prescribed in
Criminal Case No. 277 mentioned in Paragraph 1 hereof, which is reclusion perpetua;
and

5. As to Criminal Case No. 276, considering that the amount subject of

malversation is P37,558.30, then the necessary penalty of reclusion perpetua should
also be meted out against accused.

Finally, accused is also hereby ordered to pay the government the total sum of
P98,549.99, which is the aggregate government funds actually misappropriated, for
restitution in accordance with Article 104 of the Revised Penal Code.

SO ORDERED.

Hence this appeal where appellant contends that:

I. THE TRIAL COURT ERRED IN DENYING THE ACCUSED-APPELLANT'S MOTION TO SUSPEND

THE PROCEEDINGS OF THE CASES PENDING FINAL ACTION ON THE CONDITIONAL AMNESTY
GRANTED TO THE APPELLANT;

II THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIMES OF

MALVERSATION OF PUBLIC FUNDS THRU FALSIFICATION OF OFFICIAL DOCUMENTS; AND

III. THE TRIAL COURT ERRED IN FAILING TO CONSIDER VOLUNTARY SURRENDER IN FAVOR OF
THE ACCUSED-APPELLANT.

First. Appellant charges that the trial court erred in denying his motion to
suspend the proceedings in these cases pursuant to Section 6 of P.D. 1082. 25
Hence, the proceedings of the trial court are null and void and the judgment of
conviction against him should be vacated.

We do not subscribe to appellant's contention. On the date scheduled for hearing of

his motion, appellant's counsel failed to appear and substantiate the allegations
in his motion. The trial court proceeded with the hearing of the motion, found no
merit thereto and denied the same. Appellant's counsel received a copy of the Order
of denial and was notified of the continuation of the hearing of said cases.
Appellant did not challenge the correctness of this ruling by way of a petition for
certiorari and prohibition with the Court of Appeals. 26 Instead, he proceeded to
adduce evidence in his defense. After more than fifteen (15) years of trial of his
cases, appellant cannot now impugn the Order of the court denying his motion to
suspend his prosecution. 27

Second. Appellant contends that there was no clear showing that he

misappropriated the missing funds. Allegedly, his office has been regularly audited
by different agencies and none has found him short in his accountabilities. He
insists on the inaccuracy of the audit report of the City Auditor's Office which
examined his cash and accounts.

We find no merit in the contention. It is settled that in cases of malversation of

public funds, the mere failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable, upon demand by any duly
authorized officer, is prima facie evidence that he has put such funds or property
to personal use. 28 An accountable officer may be convicted of malversation even in
the absence of direct proof of misappropriation so long as there is evidence of
shortage in his accounts which he is unable to explain. 29 Indeed, to justify
conviction for malversation of public funds, the prosecution has only to prove that
the accused received public funds or property and that he could not account for
them or did not have them in his possession and could not give a reasonable excuse
for the disappearance of the same. 30

In the case at bar, all the elements of malversation of public funds are present,
viz: (a) the offender is a public officer, (b) he had custody or control of the
funds or property by reason of the duties of his office, (c) these funds or
property were public funds or property for which he was accountable, and (d) that
he appropriated, took, misappropriated or consented, or through abandonment or
negligence permitted another person to take them. 31 Appellant, as Acting
Postmaster of Iligan City has custody of the funds of his Office. A portion of
these funds was used in the payment of postal money orders (PMOs) presented to him.
As evidence of these payments, the Postmaster accomplishes the PMO paid cards and
makes a list of the PMOs he paid for a given period. These lists and paid cards are
then sent to the Central Office of the Bureau of Post for safekeeping. An audit of
the PMO transactions of appellant, however, disclosed that some of his PMO payments
were not supported by PMO paid cards.

Appellant's assertion that the audit made by the Office of Iligan City Auditor was
inaccurate remains an unsubstantiated allegation. Although appellant insisted on
this alleged inaccuracy during the trial, he cannot point to the specific procedure
where the auditors erred in examining his accountabilities. 32 Noticeably,
appellant did not present any document to show that the audit of other government
agencies covered also the PMO transactions of the post office for the same period
covered by the audit of the City Auditor.

Appellant also faults the trial court for considering as an admission of guilt his
application for amnesty under P.D. 1082. Regardless of this consideration, however,
the totality of the prosecution evidence has proved the guilt of appellant beyond
reasonable doubt. The testimonies of the auditors and the documentary evidence
adduced clearly proved appellant's shortage of funds and his corresponding
liability therefor as an accountable officer. The testimonial and documentary
evidence of the prosecution were not successfully rebutted by the defense.

Finally, appellant contends that the trial court failed to consider in his favor
the mitigating circumstance of voluntary surrender. Allegedly, he voluntarily
surrendered to the court of justice and posted bail for his provisional liberty
before a warrant for his arrest could be issued.

The rule is clear that for the mitigating circumstance of voluntary surrender to be
appreciated, it must be proven that the accused freely placed himself at the
disposal of law enforcing authorities. The records confirm that appellant was
arrested and detained by the INP Station of Marawi City for the crimes charged upon
the issuance of the Order 33 for his arrest on February 9, 1978. Appellant was only
released from custody 34 upon the approval of his bailbond on March 27, 1978. Under
the circumstances, appellant cannot be credited with the mitigating circumstance of
voluntary surrender.

IN VIEW WHEREOF, the Decision of the trial court convicting appellant PORFERIO M.
PEPITO for five (5) counts of Malversation of Public Funds Through Falsification of
Official Documents is AFFIRMED. Costs against appellant

SO ORDERED.

Regalado, Romero, Mendoza and Torres, Jr., JJ., concur.

----
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. ULYSIS CLOPINO y VARGAS,
accused-appellant.
G.R. No. 117322 May 21, 1998

MENDOZA, J.:

This is an appeal from a decision1 of the Regional Trial Court of Virac,

Catanduanes, finding accused-appellant guilty of rape and sentencing him to suffer
reclusion perpetua and to pay the complainant Melody Quintal the sum of P50,000.00
as moral damages.

The information against accused-appellant alleged �

That on or about the 16th day of February, 1992 at barangay Dugui Too, municipality
of Virac, province of Catanduanes, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused willfully, unlawfully and feloniously with
force, violence and intimidation drag Melody Quintal to the forest and did then and
there lie and succeeded in having carnal knowledge with her against her will and
consent.

ALL ACTS CONTRARY TO LAW.

The evidence for the prosecution is as follows:

Melody Quintal was at the time material to this case a 16-year old high school
student. On February 16, 1992, between 12:30-1:30 in the afternoon, she and her
sister Jinky and cousin Beverly left Barangay Dugui Too in Virac, Catanduanes to go
to school at the poblacion. Melody walked very fast, so much so that she was ahead
of her companions. At the bend of the road, her companions lost sight of her.
Beverly Beo claimed that they met a man wearing dark blue short pants, a light blue
t-shirt, and a mask. Without warning, the man pushed them, causing them to roll
down the ravine. Fortunately, they did not fall to the bottom because of the
presence of ''bigaho" plants. When they looked at the man who pushed them, they
recognized him as accused-appellant. He ran in the direction where Melody was
going.

Beverly and Jinky climbed up the ravine and tried to look for Melody but they could
not find her. They found some of her belongings strewn on the road. These were her
wrist watch, bag and umbrella. The strap of the bag was detached, while the handle
of her umbrella was broken. They called her name several times but to no avail.
They then went back to their barangay to report that Melody was missing. They
informed Melody's brother about what happened. Then they went to Melody's mother
who reported the matter to the barangay authorities. A rescue team went to the
place where Melody was last seen.

Melody testified that at sitio Pagsangahan, she was surprised to find accused-
appellant behind her. Accused-appellant was wearing blue shorts and a blue t-shirt.
Although he had a mask on, Melody recognized him just the same as they were
neighbors. Melody asked him about her sister and her companion, but instead of
answering her, accused-appellant asked her to kiss him first. Then, accused-
appellant held her by the arms. Melody said she shouted for help but apparently no
one heard her. When she tried to shout again, accused-appellant tried to choke her
and boxed her. The victim fell down and the accused-appellant dragged her towards a
forested area uphill, 250 meters away from the road.

She was asked by the accused-appellant to undress. As she refused to do so, the
accused-appellant threatened to kill her. He then boxed her again, causing her to
fall down. Accused-appellant then kissed her on the face and on the neck. Next, he
removed her pants and panties and dragged her further uphill about 250 meters away.
Accused-appellant asked her to lie down and as she refused to do so, the accused-
appellant again hit her, causing her to lie down. Accused-appellant then removed
his shorts and brief and went on top of her. He kissed her and tried to insert his
penis into her vagina.

Melody testified that only about an inch of accused-appellant's penis was able to
penetrate her vagina. He asked if she was still a virgin and upon being told that
she was, accused-appellant inserted his finger into her vagina, apparently to
engage her in foreplay. Then he again tried to put his penis into her vagina but,
at that point, they heard people coming.

The accused-appellant ordered Melody to get dressed and told her to tell the people
that he had saved her from someone who had tried to molest her. When finally they
were found, the accused-appellant did all the talking. According to Leopoldo
Gianan, a barangay tanod who was in the search team, accused-appellant was fixing
his shorts while Melody was crying. When he asked Melody about what happened,
accused-appellant told him not to bother her. Accused-appellant was holding Melody
by the arm and did not want to leave her side. Melody did not talk because she had
been threatened with harm by accused-appellant. But, once she reached their house,
Melody told her father what happened. Her parents then reported the matter to the
barangay authorities. Melody (together with her father, her sister Jovita and
Beverly Beo) and the accused-appellant were taken to Camp Camacho, the Philippine
Constabulary Headquarters in Virac, Catanduanes. Melody was examined by Dr. Cecilia
Tanael of the Provincial Health Office at about 8:20 p.m. that evening, February
16, 1992. She was found to have suffered the following injuries:2

� Laceration of hymen, fresh (new) at 9 o'clock and 3 o'clock position

� (+) Whitish discharge at vaginal vault

� Admits one index finger snugly

� (+) Erythema at epigastric area

� (+) Abrasion 1 cm. each on ant. aspect, neck (both sides)

Dr. Tanael indicated in her certificate the following:3

� Clothes (T-shirt and pants) with dirt at buttocks area

� Dirt particles (R) buttocks

LABORATORY REPORT

� NEGATIVE FOR SPERMATOZOA

She opined that it was possible that Melody had been raped.4

Only accused-appellant testified for the defense. Accused-appellant claimed that on

February 16, 1992, between 12:30 to 1:30 in the afternoon, he saw Melody Quintal
walking towards Ilawod. He followed her until sitio Pagsangahan, where he embraced
and kissed her on the face, neck and breasts. He claimed that as she did not
resist, he took it as a challenge to his manhood to make love to her. He put her on
the ground, put his hand inside her pants and caressed her in the sex organ. He
denied that he used force, or that he was able to put his penis into Melody's
vagina. He insisted that he only inserted his fingers into her vagina in an effort
to arouse her. He also denied that he pushed Melody's companions down a ravine.

The trial court believed the prosecution's theory and found the accused-appellant
guilty of rape. Hence, the appeal.

First. The defense maintains that there is an inconsistency between the sworn
statement given by Melody to the PC on the one hand, and her testimony in court on
the other. The defense cites the following portion of the sworn statement dated
February 18, 1992 which she gave at Camp Francisco Camacho, Virac, Catanduanes:5

15Q: Was his personal organ or his penis able to penetrate to your vagina?

A: No, sir.

16Q: Why?

A: He tried it but it could not penetrate, he even asked me if I am still a

virgen [sic].

17Q: What else happened?

A: After answering his question that I am still a virgen [sic], he told me that
he will used his finger.

18Q: Were your vagina fingered by him?

A: Yes, sir.

In the complaint she filed with the Municipal Trial Court on the same day, February
18, 1992, she stated �

. . . [H]is personal organ did not penetrate instead he used his finger to guide
his penis but ultimately did not succeed for reasons of independent to his well
[sic] and the timely arrival of the people who were informed of the incident by her
companions. . .6

However, it is asserted in Melody's testimony in the trial court that about one
inch of the penis of the accused-appellant was able to penetrate into her vagina:7

VELASCO (Private Prosecutor)

Q After removing the short pants and brief, what did Clopino do?

A When he was already mounted on me, he tried to force his penis on my vagina,
sir.

Q Did you feel the penis?

A Yes, sir.

Q Why can you say that the penis was being penetrated on your vagina?
A Because I was looking at him when he was holding his penis and trying to let
it in my organ, sir.

x x x x x x x x x

Q Was the penis able to penetrate completely inside your vagina?

A Yes, it was able to penetrate about an inch, sir.

The contention has no merit. The alleged inconsistency is more apparent than real.
It must not be forgotten that the victim was only 16 years old at the time of the
rape, inexperienced in the ways of the world. It is evident that what she meant by
accused-appellant's organ not being able to penetrate her vagina was that there was
no full penetration. But it is clear that accused-appellant did all he could to
have sexual intercourse with her. If he was not able to have full penetration, it
was because the victim was still a virgin. According to Melody, accused-appellant
went on top of her, removed his brief and tried to insert his penis into her
vagina. Indeed, how would accused-appellant know his penis would not go in unless
he first tried to insert it into his victim's vagina? That was all that was
necessary to commit consummated rape. It would have been a different story if there
was no attempt at all to have sexual intercourse.

Thus, in her February 18, 1992 complaint, she said:8

. . . by means of force, intimidation and threats ordered her to undress herself

and accused also removed his short pant and brief and place himself over her body
and does the sexual play to her vagina but as a consequence in spite of his desire,
his personal organ did not penetrate instead he used his finger to guide his penis
but ultimately did not succeed for reasons of independent to his well [sic] and the
timely arrival of the people who were informed of the incident by her companions.
That all his acts is against the will of the complainant who suffered injuries to
her vagina and some parts of her body as per Medico Legal Certificate hereto
attached to form part of this complaint.

In her sworn statement of February 18, 1992, she said:9

15Q: Was his personal organ or his penis able to penetrate to your vagina?

A: No, sir.

16 Q: Why?

A: He tried it but it could not penetrate, he even asked me if I am still a

virgen [sic].

But more revealing than all these is the statement of Melody during the preliminary
examination held before MTC Judge Honesto Morales on February 18, 1992, the same
day the complaint before the MTC and the sworn statement before the PC were made.
In her statement, she said:10

COURT:

Q And when you were now lying on the ground what did he do?

A He [lay] on top of me and keep on kissing me.

Q What more?

A When his organ could not enter then he used his finger.
Q How did you know that his organ could not enter?

A He told me that because his organ could not enter so he will use his finger.

Q By the way, what was the condition of his body when he lied down on top of
you?

A He has no clothes.

Q Not even pants or brief?

A When he [lay] on top of me he was wearing brief but he removed it.

Q Did you feel his organ touching yours?

A Yes, sir.

Q And as you said you feel his organ touching your organ also, did you feel
that Ulysis tried to insert it?

A Yes, sir.

Q And that was the time you said that since it could not enter he told you that
he will use his finger?

A Yes, sir.

Q By the way, for how long was Ulysis on top of you?

A More or less two minutes.

She repeated this in her testimony in this case. She stated:11

VELASCO:

Q After removing the short pants and brief, what did Clopino do?

A When he was already mounted on me, he tried to force his penis on my vagina,
sir.

Q Did you feel the penis?

A Yes, sir.

Q Why can you say that the penis was being penetrated on your vagina?

A Because I was looking at him when he was holding his penis and trying to let
it in my organ, sir.

Q How about your thigh then when he was forcing his penis to your vagina?

A At first he inserted his one thigh between my thigh and then he was able to
insert his other thigh between my thigh and he was forcing his penis to enter my
organ, sir.

Q About how many minutes in your estimate did he entail in causing the
penetration of his penis in your vagina?
A More than a minute, sir.

Q Was the penis able to penetrate completely inside your vagina?

A Yes, it was able to penetrate about an inch, sir.

Q Because his penis, I am referring to the accused, was not able to cause the
penetration completely, what happened?

A When his penis was not able to penetrate completely, he insert [sic] his
finger in my organ sir.

It is thus clear that accused-appellant tried to insert his penis into the victim's
vagina. If it did not go the full length and accused-appellant was not able to
attain full penetration, it was not because he did not try to have intercourse with
her but because the victim, being still a virgin, required stimulation. That was
the reason accused-appellant "fingered" her private part, apparently to arouse her.

It is not necessary, in order to have rape, that accused-appellant succeed in

having full penetration. The slightest touching of the lips of the female organ or
of the labia of the pudendum constitutes rape.12 Accused-appellant is certainly
wrong when he states that because his penis was not able to penetrate the vagina
despite his efforts to do so, the crime should only be either attempted rape or
acts of lasciviousness. As the Solicitor General rightly states, it can be
logically concluded that when the accused-appellant was trying to insert his penis
into the victim's vagina, his penis touched the middle part of the complainant's
vagina and penetrated the labia of the pudendum.13 It is impossible for the penis
of the accused-appellant not to touch the labia of the pudendum in trying to
penetrate her. As Melody narrated at the preliminary examination conducted on
February 18, 1992:14

COURT:

Q Did you feel his organ touching yours?

A Yes, sir.

Q And as you said you feel his organ touching your organ also, did you feel
that Ulysis tried to insert it?

A Yes, sir.

It must not have been an easy thing for Melody to tell in great detail what
happened to her. The inconsistencies in her testimonies are understandable. More
importantly, during her cross-examination, Melody was able to explain
satisfactorily why she knew that the accused-appellant was able to put about an
inch of his penis into her vagina:15

CONCEPCION: (Defense Lawyer)

Q Now, why were you able to know that, did you see the actual penetration?

A While he was doing that to me I could feel and I look what he was doing to
me, sir.

Q Is it not that the man was on top of you, why were you able to see?

A While he was doing that to me, he was not mounted on me. His both legs were
between my legs, and his legs were positioned as if just squatting, sir.
Q So, his two legs were not touching your legs at that time?

A Yes, sir, it was, because his thighs were inside my both thighs.

Moreover, under Rule 132, �13 of the Revised Rules on Evidence, in order to impeach
a witness by evidence of prior inconsistent statement, the statement must be
related to him and the circumstances of its execution stated. Then he must be asked
whether he made such inconsistent statement. In this case, no attempt was made to
impeach Melody's testimony in court. She was not shown the complaint of February
18, 1992 and the sworn statement of the same date nor was she asked to explain any
discrepancy, instead, what she was asked was the following question:16

CONCEPCION

Q And according to you the man was not able to succeed in having his penis
penetrate your own organ?

VELASCO

� Misleading.

COURT

� Sustained, because the witness mentioned that it was about to penetrate one
(1) inch.

The question was misleading because she never really said that accused-appellant
did not succeed in penetrating her. The trial court properly sustained the
objection of the prosecution.

We have reviewed the records, and we found no reason why Melody should concoct a
story as damaging to her reputation as this, if it were not true that she was
raped. We have held that when the offended parties are young and immature girls
from the ages of twelve to sixteen, courts are inclined to lend credence to their
version of what transpired, considering not only their relative vulnerability but
also the shame and embarrassment to which they would be exposed by court trial if
the matter about which they testified is not true.17

Second. Accused-appellant contends that Judge Nilo B. Barsaga had no basis for
saying that the testimony of Melody was given in a straightforward manner and,
therefore, was credible. He points out that because Judge Barsaga did not try the
case, another one, Judge Eduardo Israel Tanguanco, having done so, the former did
not observe the witness' demeanor so as to be able to say that her testimony was
straightforward.

It may be that a judge who tried the case and had the opportunity to observe the
demeanor of witnesses has an advantage over another who did not have such an
opportunity. But such lack of opportunity does not necessarily prevent him from
determining from the transcript of stenographic notes whether a witness was
forthright and frank. How often has this Court itself found the testimony of
witnesses to have been given in a straightforward manner on the basis solely of the
records of the case. For example, in People v. Compedio,
Jr.,18 we said:

In the first assigned error, the accused-appellant attacks the credibility of

prosecution witness Trinidad Sabando. On this score, the oft-repeated rule is that
appellate courts will generally not disturb the findings of the trial court,
considering that the latter is in a better position to decide the question, having
heard the witnesses themselves and observed their deportment and manner of
testifying during the trial. This case, however, falls under one of the exceptions
to the above rule, namely, where one judge heard the testimony of the witnesses and
another penned the decision; hence, we are not precluded from making our assessment
of the probative merit and value of the testimony of the witnesses on the basis of
the transcripts of the stenographic notes thereof.19

After poring over Sabando's testimony, we find her to be a trustworthy witness. Her
narration of the events and observations of what transpired before her were
delivered in a direct, unaffected, and convincing manner. She stuck to her story
and was uncompromising in regard thereto on cross-examination and on questions from
the court. We detect no indication of prevarication.

Indeed, there is no claim in this case that at any time in her testimony Melody
Quintal hedged or even hesitated or otherwise indicated that she was withholding
anything from the court. As held in People v. Tuvilla,20

While the trial judge who presided over the trial of the case would be in a better
position to ascertain the truth or falsity of the testimonies of the witnesses, it
does not follow that a judge who was not present during the trial cannot render a
valid and just decision. The full record was available to him. It is evident from
the knowledgeable and analytical decision he has written that he thoroughly
examined the testimonial and documentary evidence before him and carefully assessed
the credibility of the witnesses with the seasoned perceptiveness he has developed
as a trial judge.21

Third. Accused-appellant's conviction is not based solely on the victim's

testimony, but on other evidence in the record as well. Dr. Cecilia Tanael, who
examined the victim on the day of the incident, testified that the victim was
probably raped, based, among other things, on the lacerations which she found in
the victim's hymen. Dr. Tanael testified:22

VELASCO

Q Now, in your considered opinion doctora, could this fresh laceration be

caused by a half penetration of penis to the vagina?

A Anything which can enter the vagina can cause laceration, sir.

Q How about the penis?

A It could be, sir.

Q How about the finger?

A It could be sir, anything that could pass thru to the vagina can cause
laceration.

In addition, Dr. Tanael found whitish discharge in the vaginal vault of the victim.
Dr. Tanael said she could not rule out the possibility that the discharge was
seminal fluid coming from a male person.23 Although the discharge was found
negative for spermatozoa, she explained that this could only be because the amount
of discharge was not enough for spermatozoa to be present. Besides, the absence of
spermatozoa in the complainant's vagina does not negate the commission of rape.24

Dr. Tanael's testimony also confirmed the victim's claim that she was hit several
times in the stomach because she refused to do accused-appellant's bidding. As she
testified:25
VELASCO

Q And this findings of your, erithma at epigastric area, what is erithma [sic]?

A Erithma [sic] is redness, sir.

Q This epigastric area, what is this?

A The area below the externum, sir.

Q In your examination, you found reddish portion, could it be possible that the
reddish portion was caused by used of fist blow?

A I [sic] can be caused bay [sic] any blunt force, sir.

Q Like fist?

A Yes, sir.

Earlier, Melody told the court how she had been boxed several times by the accused-
appellant to make her lie down:26

ATTY. VELASCO

Q Thereafter, what happened?

A After he boxed me I fell down because of the pain and then he dragged me
uphill, sir.

x x x x x x x x x

Q After you were dragged to a distance of 250 meters from the road into the
interior of the forest, what happened?

A When we reached there, he told me to remove my pants. When I did not heed
what he told me, he threatened me that he would kill me and he kept on boxing me,
sir.

Q What happened next?

A His boxing me caused me to fall, sir.

x x x x x x x x x

Q While you were brought there, I am referring to the place wherein the second
time you were dragged, what happened?

A He again told me to lie down, sir.

Q Did you lie down?

A No, sir.

Q Because you did not lie down, what happened?

A Because I did not lie down, he again boxed me on my stomach, sir.

Q Because he boxed you in your stomach, what did you do?

A His boxing me caused me again to lie down, sir.

Dr. Tanael also found abrasions in the neck and stomach, indicating that Melody had
a struggle with accused-appellant:27

VELASCO

Q This abrasion 1 cm. inch on anterior aspect, neck (both sides), would you
mind explaining it to the Court in a layman's language?

A Abrasion is caused by friction by another surface in the anterior aspect of

the neck, below the buttocks. (Witness pointing to her neck).

Q Is it possible doctora, that abrasion like this is caused because of the

struggle of the victim from assailant?

A Basing from my physical examination, it is possible, because there is erithma

at the epigastric area, and there is an abrasion, sir.

Q Can this be caused by grip of hands?

A It is possible, sir.

There were other tell-tale marks of the use of violence against the victim. Dr.
Tanael noted that the clothes of Melody were dirty, particularly at the buttocks.
This evidence of the use of force and violence belie the fantastic claim of
accused-appellant that Melody agreed to have a tryst with him.

Indeed, how could accused-appellant claim that Melody voluntarily went with him
when the two of them were not even lovers? Accused-appellant was 32, married.
Melody was only 16, a high school student. It was unlikely they were lovers. On the
contrary, the fact that her personal effects, consisting of her bag, her umbrella
and her wrist watch were strewn on the ground and that according to Beverly Beo the
victim's lips and neck were bruised and her clothes soiled attests to the
resistance she offered to accused-appellant's assault. As the trial court said,
considering all these facts, accused-appellant's claim that Melody voluntarily went
with him and agreed to have sexual intercourse with him was simply incredible.

The trial court awarded P50,000.00 to the offended party as moral damages. However,
moral damages can be awarded only upon sufficient proof that the complainant is
entitled thereto in accordance with Art. 2217 of the Civil Code. Accordingly, the
amount of P50,000.00 should be considered as civil indemnity in accordance with our
decision in People v. Gementiza. 28

WHEREFORE, the decision of the trial court is AFFIRMED with the MODIFICATION that
the award of P50,000.00 should be considered indemnity to the offended party Melody
Quintal.

SO ORDERED.

Regalado, Melo, Puno and Martinez, JJ., concur.