EN BANC

[G.R. No. 144595. August 6, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. DANTE ILAGAN, appellant.
D E C I S I O N
YNARES-SANTIAGO, J.:
For automatic review is the decision of the Regional Trial Court of Malolos, Bulacan, Branch 21, in Criminal Case No.
1246-M-99, convicting appellant Dante Ilagan of Qualified Rape and sentencing him to suffer the extreme penalty of
death and to pay the offended party, Mylene Ilagan, the sums of P75,000.00 as civil indemnity and P100,000.00 as moral
damages.
[1]

The information for Rape against appellant reads:
That on or about the 19
th
day of May, 1998, in the municipality of Norzagaray, province of Bulacan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and
feloniously, with lewd designs, by means of force and intimidation, have carnal knowledge of his daughter Mylene
Ilagan, 16 years old, against her will and consent.
Contrary to law.
[2]

During the arraignment, appellant pleaded not guilty to the charge.
[3]
Thereafter, the trial of the case ensued.
The facts of the case as established by the prosecution are as follows:
The offended party, Mylene Ilagan, lived with her father, appellant Dante Ilagan, and her siblings at Barangay
Bulalo, Norzagaray, Bulacan. Her mother, Marietta, had gone off to live with another man.
[4]

On May 18, 1998, Mylenes elder sister went with her paternal grandmother, Nenita Ilagan, to Meycauayan to
attend the birthday celebration of their eldest sister. Later that evening, while Mylene was asleep beside her other
siblings, accused woke her up and told her that they would sleep in her grandmother Nenitas house, located some
fifteen meters away,
[5]
leaving behind her other siblings in their own house.
At 3:00 in the morning of the following day, while Mylene was asleep, she was awakened by someone taking off her
shorts and panties. She saw appellant, naked from the waist down, lying on top of her. Appellant inserted his penis into
her vagina, causing her pain. She was unable to cry for fear that appellant might kill her since he had threatened to kill
her before. Appellant stopped the sexual intrusion when a substance, which looked like phlegm, came out of his penis.
He then got up and went to the kitchen to boil some water. He told Mylene to watch the pot and left the house.
[6]

On December 10, 1998, while appellant was in Quezon Province, Mylene mustered the courage to tell her friend,
Jocelyn, about the sexual assault by her father. They went to the Department of Social Welfare and Development
(DSWD), which brought Mylene to the Norzagaray Police where she gave her sworn statement. Thereafter, she was
brought to the Philippine National Police (PNP) Provincial Crime Laboratory in Malolos, Bulacan for physical
examination.
[7]

Dr. Manuel Aves, the PNP Medico-Legal Officer who examined Mylene, found multiple healed deep lacerations on
her hymen. He concluded that Mylene was a non-virgin at the time of the examination on December 15, 1998.
[8]

On the same date, Mylene filed a complaint for Rape against appellant before the Norzagaray Municipal Trial
Court.
[9]

In his defense, appellant denied the charges and claimed that he was in Alabang, Muntinlupa City on the date that
the alleged rape was committed, working at a project for Nipponville Home Gallery. Moreover, as a furniture worker, he
stayed in Manila for several days and went home to Bulacan only on weekends.
[10]
He alleged that Mylene had several
boyfriends, and presented in court purported love letters sent by Mylene to Larry and Rudy, as well as letters she
received from her male suitors, namely, Boy Bicol, Dondon Hernandez, Rab and Orly.
[11]
Her grandmother, Nenita Ilagan,
and sister, Judith, corroborated appellants testimony. They alleged that appellant frequently scolded Mylene for coming
home late, and surmised that this may be the reason why she filed charges against her father.
[12]

On June 9, 2000, the trial court rendered the appealed judgment, the dispositive portion of which reads:
WHEREFORE, ALL PREMISES CONSIDERED, this Court resolves that the prosecution has successfully undertaken his
burden to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Dante Ilagan is hereby found
GUILTY of the crime of RAPE from having violated the provisions of Article 266-B in relation to Article 266-A of the
Revised Penal Code, as amended. Considering the presence of aggravating circumstances that the victim is under
eighteen (18) years of age and the offender is a parent of the victim in this case, he is hereby sentenced to suffer the
Supreme Penalty of DEATH by lethal injection.
One final word. The Court treats the imposition of the capital punishment upon the hereby accused as an unpleasant, if
not an unenviable task. Nonetheless, the burden becomes lighter as we ponder on what the Supreme Court stated with
regard to a case of Rape of this nature. Thus: incestuous relations are abhorrent to the nature of man, not only to
civilized men, but also to semi-civilized and barbarous people x x x and when a man perpetrates his lascivious desires on
his own direct relative, he descends to a level lower than that of a beast. (People vs. Mandap, 244 SCRA 457)
Lastly, the accused is also ordered to indemnify Mylene Ilagan the sum of P75,000.00 and further amount of
P100,000.00 as moral damages.
With costs against the accused.
SO ORDERED.
[13]

In his brief, appellant assigns the following errors:
I
THE LOWER COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME CHARGED AND SENTENCING HIM TO SUFFER THE DEATH PENALTY.
II
THE LOWER COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONY OF
PRIVATE COMPLAINANT MYLENE ILAGAN.
[14]

Well-entrenched is the rule that a conviction for rape may be made even on the testimony of the victim herself, as
long as such testimony is credible.
[15]
It is likewise settled that when a woman says that she had been raped, she says in
effect all that is necessary to show that she had been raped, and if her testimony meets the test of credibility, the
accused may be convicted on the basis of the victims testimony. A rape victim would not publicly disclose that she had
been raped and undergo the troubles and humiliation of a public trial if her motive was not to bring to justice the person
who abused her.
[16]

Consequently, the issues in a rape case boil down to the credibility of the victim. In assessing her credibility, courts
are guided by the following principles:
(1) As 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 of the prosecution stands or falls on its own merits and can not be allowed to draw strength
from the weakness of the defense.
[17]

In the case at bar, complainant recounted her harrowing experience in the hands of appellant in this wise:
Q: My question is, where were you on May 1998 at around 3 oclock early in the morning?
A: I was in the house of my grandmother, sir. My father asked me to undress and remove my panty.
Q: You said that you were then at the house of your grandmother, what is the name of your grandmother?
A: Her name is Aida Ilagan , sir.
Q: Where is this house located?
A: Near our house in Norzagaray, Bulacan, sir.
Q: What is the exact place in Norzagay where your lolas house is located?
A: Bulalo, Norzagaray, sir.
Q: Who were with you in the house of your lola at that time?
A: My father, sir.
Q: What about your lola?
A: She was in Meycauayan, Bulacan, sir together with my ate.
Q: How about your other siblings? Where were they at that time?
A: They were in our house, sir.
Q: Why did you decide to sleep at the house of your lola?
A: I was sleeping there in our house, but my father asked me to go with him and sleep at the house of
my lola because nobody was there, sir.
Q: After your panty was removed by your father, what happened next?
A: I was molested (ginalaw), sir.
Q: Tell me exactly what do you mean by ginalaw?
A: He placed his body on top of me and inserted his private organ on my private organ, sir.
Q: You said your clothes and panty were removed by your father. Are you saying that you were totally naked
when your father placed on top of you?
Court:
By the way, did the witness say that it was not only her panty but also her clothes were removed?
Q: Just to clarify this, your honor. What was removed by your father from your body?
A: My shorts and panty, sir.
Court:
Was it your father or yourself who removed your shorts and panty?
A: My father, your honor.
Court: Proceed.
Q: What were you wearing on your upper apparel?
A: T-shirt, sir.
Q: What did you feel when your father inserted his private organ into yours?
A: It was painful, sir.
Q: How long did your father placed himself on top of you?
A: Half an hour, sir.
Q: While your father was on top of you, what was he doing?
A: He forcibly inserted his penis into my private organ, sir.
Q: Did you feel anything from the private organ of your father?
A: Yes, sir.
Q: What was that, that you felt came out from the private organ if your father?
A: As if phlegm (sipon), sir.
[18]

The aforequoted testimony of the victim is marked by spontaneity, honesty, and sincerity. When the testimony of
the victim is simple and straightforward, the same must be given full faith and credit.
[19]
A young girls revelation that
she had been raped, coupled with her voluntary submission to medical examination and her willingness to undergo
public trial where she could be compelled to give out the details of an assault on her dignity, cannot be easily dismissed
as mere concoction. It is highly inconceivable for a daughter to publicly accuse her father of rape if it were not true.
Indeed, it is highly against human nature to fabricate a story that would expose herself as well as her family to a lifetime
of dishonor, especially when her charge could mean the death of her own father.
[20]

Appellant claims that the victims failure to resist the assault and the delay in reporting the case to the authorities
are sufficient to impair her credibility. We disagree. Physical resistance need not be established in rape when
intimidation is exercised upon the victim herself. As held inPeople v. Las Pinas, Jr.,
[21]
the test is whether the intimidation
produces a reasonable fear in the mind of the victim that if she resists or does not yield to the desires of the accused,
the threat would be carried out. When resistance would be futile, offering none at all does not amount to consent to
sexual assault. The law does not impose upon a rape victim the burden of proving resistance.
Anent the delay in reporting the case to the authorities, suffice it to state that delay and the initial reluctance of a
rape victim to make public the assault on her virtue is neither unknown or uncommon.
[22]
Rape is a traumatic
experience, and the shock concomitant with it may linger for a while. Oftentimes, the victim would rather bear the
ignominy and the pain in private, rather than reveal her shame to the world or risk the rapists carrying out his threat to
harm her.
[23]

We find no sufficient basis for disregarding, let alone overturning, the factual assessment made by the court a
quo. Once again, we must reiterate the familiar rule that the task of taking on the issue of credibility is a function
properly lodged with the trial court, whose findings are entitled to great weight and accorded the highest respect by the
reviewing courts, unless certain facts of substance and value were overlooked or misappreciated such as would alter the
conviction of the appellant.
[24]
There is no such fact of substance and value in this case.
Premised on the complainants testimony, there is sufficient foundation to conclude that appellant succeeded by
force in having carnal knowledge of her own daughter on May 19, 1998. Against this backdrop of evidence and in stark
contrast to complainants convincing recital of facts is appellants defense of denial and alibi. An intrinsically weak
defense, denial must be buttressed by strong evidence of non-culpability in order to merit credibility. It is a
negative self-serving assertion that has no weight in law if unsubstantiated by clear and convincing evidence.
[25]
Since
denial and alibi are so easy to concoct and fabricate, the same cannot prevail over the positive and credible testimony of
the prosecution witness that the accused committed the crime.
[26]

The rule is settled that for the defense of alibi to prosper, the requirement of time and place must be strictly
met.
[27]
It is, therefore, incumbent upon appellant to prove with clear and convincing evidence that at the time of the
commission of the offense charged, he was in a place other than the situs criminis or immediate vicinity thereof, such
that it was physically impossible for him to have committed the crime charged.
[28]

Thus, appellants alibi and denial must necessarily fail. The defense of denial and alibi per se, if not substantiated by
sufficient evidence, can not in any way diminish the credibility of the complainant or the weight of her testimony.
The pertinent provisions of Articles 266-A and 266-B of the Revised Penal Code, as amended by Republic Act No.
8353, otherwise known as The Anti-Rape Law of 1997, state:
ART. 266-A. Rape; When and How Committed. Rape is committed:
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the
circumstances mentioned above be present.
xxx xxx xxx.
ART. 266-B. Penalties.
xxx xxx xxx.
The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying 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 common-law spouse of the parent of the victim;
xxx xxx xxx.
The qualifying circumstances of minority and relationship must concur. More importantly, they must be both
alleged and proved, in order to qualify the crime of Rape and warrant the imposition of the death penalty.
[29]

Hence, in addition to the requirement that the qualifying and aggravating circumstance must be specifically alleged
in the information, it must be established with certainty that the victim was below eighteen (18) years of age or that she
was a minor at the time of the commission of the crime. It must be stressed that the severity of the death penalty,
especially its irreversible and final nature once carried out, makes the decision-making process in capital offense aptly
subject to the most exacting rules of procedure and evidence.
[30]

In the case at bar, the prosecution failed to present the birth certificate or similar authentic document, such as the
school records or baptismal certificate of the victim to prove her age. Thus, the age of the victim cannot be determined
with utmost certainty. In People v. Pruna,
[31]
it was held:
In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the following
guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance.
1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of
live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school
records which show the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or
consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the
offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances:
a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years
old;
b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12
years old;
c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18
years old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or
relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly
admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to
object to the testimonial evidence regarding age shall not be taken against him.
The trial court should always make a categorical finding as to the age of the victim.
Hence, for failure of the prosecution to prove the age of the victim by any of the means set forth above, appellant
can only be found guilty of Simple Rape and the death penalty imposed on him by the trial court shall be reduced
to reclusion perpetua.
Consequently, the amount of civil indemnity awarded by the trial court should accordingly be reduced to
P50,000.00. The amount of P75,000.00 as civil indemnity is mandatory only in cases involving qualified rape where the
death penalty is imposed. In cases of simple rape, the amount of civil indemnity shall be P50,000.00.
[32]
As regards the
award of moral damages, the same should likewise be reduced to P50,000.00, consistently with controlling
jurisprudence. Moral damages are awarded in rape cases without need of pleading or proof.
[33]

WHEREFORE, in view of the foregoing, the judgment of the Regional Trial Court of Malolos, Bulacan, Branch 21, in
Criminal Case No. 1246-M-99, finding appellant Dante Ilagan guilty beyond reasonable doubt of the crime of Rape,
is AFFIRMED with MODIFICATIONS. Appellant is sentenced to suffer the penalty of reclusion perpetua and is ordered to
pay the private offended party, Mylene Ilagan, the amounts of P50,000.00 as civil indemnity and P50,000.00 as moral
damages.
Costs de oficio.
SO ORDERED.












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

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

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

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

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






EN BANC
[G.R. Nos. 148139-43. October 15, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. HERMENIO (HERMINIO) CANOY, appellant.
D E C I S I O N
PER CURIAM:
Den Canoy is the eldest of four (4) children of the spouses Rebecca Roche and accused Hermenio
[1]
Canoy. Den was
born on 29 December 1982 as shown by her birth certificate.
[2]
Her father worked as a welder at the Philippine
Phosphate Fertilizer Corporation (PHILPHOS) while her mother was a plain housewife. Together with her brothers
Christopher and Jake and sister Richie, the family lived in a one (1)-storey house in Brgy. Libertad, Isabel, Leyte.
In 1994, Den occupied one of the two (2) bedrooms of the house with her father, mother and younger sister, while
her two (2) brothers shared the other room. One evening that year Den woke up to find her father, who usually slept
next to her, inserting his finger into her vagina. She felt pain but did not resist; instead, she cried and uttered Pa dont,
its painful.
[3]
Her mother and sister were unaware of what was happening as they were both sound asleep. The next day
she did not reveal what occurred to her to her mother. When she did so months later, her mother would not believe
her.
One evening in the summer of 1996, while everyone was sleeping, her father removed her short pants and
underwear and then his own short pants and brief, and mounted her. He touched her breast and placed his penis on top
of her vagina. Again, she simply cried and did not repel the aggression. She was in grade six (6) at that time. When her
father finished abusing her, he warned her not to tell her mother or their family would be torn apart. Den did as she was
told and kept the whole incident to herself.
Subsequently, another bedroom was added to their house, which was to be occupied by her father. In 1998, Karen
and Liezel, Herminio Canoys illegitimate daughters and Dens half sisters, came to live with them in Brgy.
Isabel. Sometime in April 1998, at about six oclock in the morning, her father told her mother to buy bread. While her
mother was away, he called Den to his room and undressed her. Her mother, who found the bakery still closed at that
hour, unexpectedly returned and walked into her husbands room just as he was removing Dens panty and was staring
at her vagina. When asked what he was doing to their daughter, Herminio answered that he just wanted to see Dens
vagina as she was already a lady. While her parents quarreled, Den could do nothing but cry.
At about nine oclock that same morning, Rebecca who was exasperated with her husband, left for Cebu taking Den
with her. The two (2) stayed with Rebeccas sister. There Den confided again to her mother the perverted acts of her
father but the latter could not do anything. In fact, when they returned to Brgy. Libertad two (2) weeks later, her parents
reconciled and continued to live together.
In the morning of 31 May 1998 the accused sent his wife to the market accompanied by their sons. He then called
Den inside his room after she finished cooking for him. He held her arms and led her to his room after which he
proceeded to remove his daughters pants and underwear and touched her body. He made her lie down and removed
his pants and brief and inserted his penis into her vagina. Cowed by her fear of him, Den did not complain nor resist him.
She did not utter any word. She could only weep in pain.
Her father stayed on top of her for some time but removed his penis when he was about to ejaculate. His lust sated, he
put on Dens clothes and again warned her not to tell anyone otherwise there would be trouble. Thus, Den kept her
silence when her mother arrived home at lunchtime. Den was reluctant to tell anyone about the ordeal she suffered in
the hands of her father because of fear. Den described him as being isog - a term in her dialect, which means brave,
temperamental and belligerent.
[4]
He also maltreated her and her siblings by frequently boxing, slapping, kicking and
whipping them.
From the 16th to the 18th of February 1999 Den did not return home from school. Her mother had to look for her
only to find her with one of her classmates. It was also that time when Dens teachers called for her mother and
informed her that Den had revealed to them that she was raped by her father several times.
Rebecca then confronted her husband but he completely denied Dens accusations. Upon the advice of Dens
teachers, Rebecca allowed Den to stay with her aunt but her father found this out and took her home. Sadly, Rebecca
failed to report the matter to the barangay captain or to any of her relatives and made no other move to protect her
daughter from her husband.
On 20 February 1999, Den was again subjected to her fathers lechery. It was about nine oclock in the evening
when Den found herself alone with her father in his room. He pulled her body, touched her breasts and thereafter
removed her shorts and panty.
When she protested, he pinched her back causing the skin to bleed. Her father succeeded in inserting his penis into
her vagina while she cried and tried her best to ease the pain. He was on top of her for quite some time until he
ejaculated outside her vagina. Once again, he reminded her not to tell her mother to avoid trouble.
Finally, unable to bear her fathers abuses and finding no help from her mother, Den went alone to the Department
of Social Work and Development on 24 February 1999 to report the molestations of her father. She was examined by the
Municipal Health Officer of Isabel, Dr. Refelina Cerillo, that same day and was found to have an erythema at the mid-
proximal part of the posterior chest and hymenal lacerations at the seven (7), ten (10) and eleven (11) oclock
positions.
[5]
The examining physician was positive that she had had previous sexual intercourse or previous trauma.
[6]

On 26 February 1999 Den reported her fathers abuses to the police authorities of Isabel.
[7]
Soon after, five (5)
Informations were filed before the Regional Trial Court of Ormoc City against Herminio Canoy:
[8]
for the act of inserting a
finger inside Dens vagina which occurred in 1996 he was charged with Acts of Lasciviousness (Crim. Case No. 5603-0);
for the incident which occurred in April 1998, he was charged with Attempted Rape (Crim. Case No. 5601-0); for the
qualified rape incident which occurred in the summer of 1996 (Crim. Case No. 5602-0); for the qualified rape of 31 May
1998 (Crim. Case No. 5600-0); and, for the qualified rape of 20 February 1998 (Crim. Case No. 5599-0).
After arraignment, the trial court conducted a joint trial on the merits. The prosecution presented Dr. Refelina
Cerilla, Municipal Health Officer of Isabel; SPO1 Lamberto Matuguina, Jr., property custodian and designated female
officer of the PNP in Isabel; Rebecca Canoy, mother of Den; Julieta Gubalane, Municipal Civil Registrar, and Den Canoy,
the victim.
The defense was denial and alibi. Accused claimed that Den merely fabricated the charges to get back at him for the
frequent beatings he gave her; for scolding her when she skipped classes and did not come home for three (3) days; and
for allowing his illegitimate daughters to live with them. He presented as his witnesses his illegitimate daughter Liezel
Canoy and his brother Gilbert Canoy as well as Ricardo Bargo, Personnel Supervisor of PHILPHOS, who was the time-
keeper of the rank-and-file employees.
In its joint Decision
[9]
of 9 February 2001 the trial court found the accused guilty of Acts of Lasciviousness in Crim.
Case No. 5603-0, Acts of Lasciviousness in Crim. Case No. 5601-0 instead of Attempted Rape, and Acts of Lasciviousness
also in Crim. Case No. 5602-0 instead of Qualified Rape as charged in the Information. The trial court found him guilty
only of the crimes of Acts of Lasciviousness instead of as charged in the Information, after finding that the circumstances
obtaining in both cases did not show that there was any intent to have sexual intercourse; in Crim. Case No. 5601-0, he
was fully dressed and was found to have been only gazing at his daughters vagina, while in Crim. Case No. 5602-0, he
merely placed his genitals on top of the victims. In each of these cases, the court a quo imposed an indeterminate
sentence of two (2) months and one (1) day of arresto mayor minimum as minimum, to six (6) months and one (1) day
of prision correccional minimum as maximum, and pay the victim, Den Canoy, P20,000.00 as indemnity and P20,000.00
as moral damages.
[10]

The trial court also convicted the accused of two (2) counts of Qualified Rape in Crim. Cases Nos. 6500-0 and 5599-0
and sentenced him to death in each case and to pay the victim P50,000.00 as indemnity and another P50,000.00 as
moral damages also in each case.
[11]

In assailing the Decision of the court a quo, appellant Hermenio Canoy insists that the evidence of the prosecution
is weak and insufficient to establish his guilt for all the five (5) cases. Noting that the conviction of the trial court is
grounded primarily on the testimony of the complaining witness, appellant now endeavors to show the contradictions
and inconsistencies in her statements which, he contends, undermine her credibility.
First, appellant points out that with respect to the incident in the summer of 1996, which was the subject of Crim.
Case No. 5602-0, Den Canoy testified on 2 March 2000 that appellant had already inserted his penis into her vagina. Yet,
she testified on 3 April 2000 that he merely placed his penis on top of her vagina. Second, appellant observes that Den
gave several conflicting statements as to their sleeping arrangement in 1998 and the exact room where the sexual
molestation took place in 1996. Third, he directs our attention to the conduct of the complainant after she was molested
on the evening of 20 February 1999, observing that according to her she mingled normally with her family shortly after
she was defiled by her father. Appellant argues that such conduct is improbable following a traumatic ordeal and tends
to show the falsity of his daughters accusations.
The contentions of appellant have no merit, for which reason his conviction must be affirmed. It is a long-settled
rule in criminal jurisprudence that when the issue is one of credibility of witnesses, an appellate court will normally not
disturb the factual findings of the trial court
[12]
in the absence of a clear showing that the court had failed to appreciate
facts and circumstances which if taken into account, would materially affect the result of the case.
[13]
The trial courts
evaluation of the testimonies of witnesses is accorded great respect because it had the opportunity to observe the
demeanor and conduct of witnesses on the stand.
[14]

In the case before us, we find no satisfactory factual basis that would move us to doubt the trustworthiness of the
complainants recital as to abandon the findings of the trial court. The supposed inconsistencies in the testimonies of
the complainant cited by the appellant refer to minor and peripheral details which do not go into the elements of the
crime. It is an oft-repeated rule in criminal cases that minor inconsistencies in the statement of a witness do not affect
his credibility.
[15]
On the contrary, they strengthen rather than weaken the witness credibility as they erase any
suspicion of a rehearsed testimony.
[16]

As to the first specified inconsistent or contradictory statements, we believe that the complainant merely corrected
an earlier inaccurate account when she declared that her father placed his organ on top of hers and did not insert it
during the 1996 incident. Rather than evincing a falsehood as appellant suggests, we believe that the inconsistency does
not detract from the veracity of her whole narration. We recognize that the complainant had to testify on several
incidents of molestations which occurred on separate occasions. Considering her state of distress at having to recount
each incident during trial, it is not unusual that she would confuse the details of one incident for another. This Court has
held that error-free testimony cannot be expected of a rape victim for she may not be able to remember and recount
every ugly detail of the harrowing experience and the appalling outrage she went through especially so since she might
in fact be trying not to recall the same, as they are too traumatic and painful to remember.
[17]
Lapses in the testimony of
the witness should be expected especially when the case involves a victim who has been subjected to multiple rapes at a
tender age.
Moreover, Dens clarification that no penetration occurred at this time was consistent with the declarations she
made in her sworn statement
[18]
before the police investigator dated 26 February 1999. This bolsters the inference that
the complainant merely had a difficult time recollecting the particulars of her ordeal.
As regards the alleged inconsistencies in complainants testimony on their sleeping arrangement, we find them to
be totally inconsequential. The debate as to the where the occupants of the house slept cannot negate the testimonies
of the prosecution witnesses which have been consistent on the fact that the victim slept next to the appellant in 1996
when he committed the sexual abuses. Nor do they find any relevance to the unlawful acts committed in 1998 and 1999
that were perpetrated during daytime or before the family went to sleep.
Appellant contends that the demeanor of the complainant in the aftermath of the rape of 20 February 1999 was
inconsistent with normal human conduct and behavior. We have repeatedly ruled that different people react differently
to the same situation, and not every victim of a crime can be expected to act reasonably and conformably to the
expectations of everyone.
[19]
It is not therefore unusual for the victim to normally carry on after half an hour of the
sexual molestation, particularly since she had been cautioned by her father not to squeal to her mother to avoid trouble.
Furthermore, an examination of the testimony of the victim also showed that while she may have taken her dinner with
the rest of her family without displaying any peculiar reaction, she admitted she was mad at her father for what he
had done to her earlier.
[20]

We must brush aside as flimsy the appellants insistence that the charges were merely concocted by his daughter to
punish him for bringing in his illegitimate daughters to live with them and for maltreating her. It is unthinkable for a
daughter to accuse her own father, to submit herself for examination of her most intimate parts, put her life to public
scrutiny and expose herself, along with her family, to shame, pity or even ridicule not just for a simple offense but for a
crime so serious that could mean the death sentence to the very person to whom she owes her life,
[21]
had she really not
have been aggrieved.
[22]
Nor do we believe that the victim would fabricate a story of rape simply because she wanted to
exact revenge against her father, appellant herein, for allegedly scolding and maltreating her.
The trial court correctly disregarded appellants defense of denial and alibi as these cannot prevail over the positive
and categorical declarations of his daughter indicting him for the crimes. Besides, the alibi of his being at his place of
work does not inspire belief as it did not preclude the possibility of his being at the crime scene at the time the
molestations occurred since the distance between his house and his workplace was only six (6) kilometers and travel
time between these places was just 30 minutes by bus.
[23]
As we have repeatedly held, for alibi to prevail, the accused
must establish by clear and positive evidence that it was physically impossible for him to have been at the scene of the
crime when it happened, not merely that he was somewhere else.
[24]

As for Den, she gave a clear and candid narration of how the sexual transgressions were committed. Her
truthfulness is more than manifest in her comportment during the trial. The record shows that she broke down and
cried on the witness stand while recounting the details of the dastardly acts her father perpetrated upon her, prompting
the court to call a recess to enable her to recover her composure and later to order a continuance so that her
examination had to be continued on another date. Also serving to reinforce her story are the medical report and the
testimony of the examining physician who found healed lacerations in her hymen and an erythema on her back which is
consistent with her testimony that appellant pinched her back during the last sexual abuse.
We find the evidence presented by the prosecution to be adequate to support the conviction of appellant for the
three (3) counts of Acts of Lasciviousness in Crim. Cases Nos. 5603-0, 5601-0 and 5602-0 and thus affirm the
indeterminate sentence of two (2) months and one (1) day of arresto mayor minimum as minimum, to six (6) months
and one (1) day of prision correccional minimum as maximum imposed by the trial court in each case.
The guilt of the appellant was likewise proved beyond reasonable doubt for the rapes committed on 31 May 1998
and 20 February 1999 which are the subject of Crim. Cases Nos. 6500 and 5599-O. Under Sec. 11 of RA 7659, however,
the qualifying circumstances of minority and the relationship between the accused and the victim must be specifically
alleged in the Informations and duly proved during the trial with equal certainty as the crime itself to warrant the
imposition of the death penalty.
In this case, the Informations for Crim. Cases Nos. 6500-0 and 5599-0 alleged that the complainant was sixteen (16)
years old at the time of the commission of the offenses and the daughter of the appellant. During trial, the prosecution
presented a birth certificate proving that Den was born on 29 December 1982 and so was only fifteen (15) years old on
31 May 1998 and sixteen (16) years old on 20 February 1999. The same birth certificate also shows that appellant is the
father of the complainant. In addition, the appellant admitted at the pre-trial conference that Den was his
daughter. Accordingly, the imposition of the death penalty upon the appellant in Crim. Cases Nos. 6500-0 and 5599-0 is
proper.
As for damages, this Court affirms the award of P20,000.00 in moral damages for each count of Acts of
Lasciviousness pursuant to Art. 2219 of the New Civil Code but the award of P20,000.00 in civil indemnity is deleted for
want of legal basis.
In line with recent jurisprudence on qualified rape, we increase the civil indemnity and moral damages. Den Canoy
is entitled to P75,000.00 in civil indemnity
[25]
and another P75,000.00 as moral damages
[26]
for each count of rape
considering that the crime was committed under circumstances justifying the death penalty. Exemplary damages in each
case of rape at P25,000.00 must likewise be awarded to deter other fathers with perverse or aberrant sexual behavior
from sexually abusing their daughters.
[27]

Three (3) members of this Court, although maintaining their adherence to the separate opinions expressed
in People v. Echegaray that RA 7659, insofar as it prescribes the penalty of death, is unconstitutional, nevertheless
submit to the ruling of the majority that the law is constitutional and that the death penalty should accordingly be
imposed.
WHEREFORE, the joint Decision of the court a quo finding appellant Hermenio (Herminio) Canoy guilty of three (3)
counts of Acts of Lasciviousness in Crim. Cases Nos. 5601-0, 5602-0 and 5603-0 and sentencing him to suffer the
indeterminate term of two (2) months and one (1) day of arresto mayor minimum as minimum, to six (6) months and
one (1) day of prision correccional minimum as maximum for each count of Acts of Lasciviousness, and of two (2) counts
of Qualified Rape in Crim. Cases Nos. 6500-0 and 5599-0 and sentencing him to suffer the supreme penalty of death for
each count of qualified rape is AFFIRMED with the following MODIFICATIONS:
(a) In Crim. Cases Nos. 5601-0, 5602-0 and 5603-0, the appellant is ordered to pay the complaining witness
only moral damages in the amount of P20,000.00 for each count of Acts of Lasciviousness; and
(b) In Crim. Cases Nos. 6500-0 and 5599-0, the appellant is ordered to pay the complaining witness
p75,000.00 as civil indemnity, another P75,000.00 as moral damages, and an additional amount of p25,000.00 as
exemplary damages for each count of Qualified Rape.
In accordance with Art. 83 of The Revised Penal Code, as amended by RA 7659, Sec. 25, upon finality of this
Decision, let certified true copies of the records of these cases be forwarded to the President of the Philippines for the
possible exercise of her pardoning power.
SO ORDERED.











FIRST DIVISION
[G.R. No. 151858. November 27, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. JOSELITO PASCUA y TEOPE, appellant.
D E C I S I O N
YNARES-SANTIAGO, J.:
Appellant Joselito Pascua y Teope was charged before the Regional Trial Court of San Pablo City, Branch 32 in
Criminal Case No. 12575-SP(00) with the crime of rape in an information
[1]
which reads:
That sometime in the month of August, 2000, in the City of San Pablo, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the accused above-named, with lewd design and by means of force and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of one ALMA AGAPAY,
against her will and consent.
The mental disability of the victim shall be appreciated as aggravating circumstance.
Contrary to law.
Appellant pleaded not guilty. Trial on the merits then ensued.
Sometime in August, 2000, complainant Alma Agapay, a 22-year old mental retardate, was on the railroad tracks
near their house at DaangBakal, Public Market, San Pablo City when appellant approached her and said, I dont know
you but I know your mother. He then pulled Almaand brought her inside an old abandoned train car. He tied her
hands above her head and made her lie down on the floor covered with a flattened carton box. He removed her dress
and panties, after which he also undressed. While holding a knife with his right hand, he kissed her then inserted his
penis into her vagina, causing it to bleed. Alma felt pain. She shouted and tried to fight back but her efforts were in vain
since she could not move her right arm due to a stroke she suffered before. After raping her three or four times,
appellant threatened to kill her and her mother if she would tell anybody what happened.
A month later, Almas mother, Trinidad Agapay, noticed that her daughter was behaving strangely. When she
asked her what was wrong, the latter confessed that she had been raped by appellant. Trinidad brought Alma to the
police authorities where they filed a complaint for rape against appellant.
Alma was thereafter brought to Dr. Ma. Arlene Bicomong Cuervas, a physician at the San
Pablo City District Hospital. However, Dr.Cuervas only conducted a partial medical examination on Alma because she
refused to undergo internal examination since it was painful. Dr.Cuervas found that Alma sustained hematoma on
the hypogastric area measuring about 6 x 3 cm.
In his defense, appellant denied the charge against him. He testified that he does not know Alma or her
mother, Trinidad. However, he admitted seeing her sometimes in the public market but did not pay much attention to
her as he was always busy working at the Philippine National Railways (PNR) train station.
On August 29, 2001, the trial court rendered a decision,
[2]
the dispositive portion of which reads:
WHEREFORE, the guilt of the accused having been established beyond reasonable doubt for the crime of Rape, the Court
hereby sentences the accused to suffer the penalty of Reclusion Perpetua and to pay the costs.
The accused is further ordered to indemnify the victim the sum of P50,000.00 as moral damages.
SO ORDERED.
Hence, this appeal. In his Brief, appellant raises the following assignment of errors:
I
THE TRIAL COURT GRAVELY ERRED IN CONSIDERING THE INCREDULOUS TESTIMONY OF THE PRIVATE
COMPLAINANT.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT FOR THE CRIME OF RAPE
DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
[3]

In reviewing rape cases, the Court has always been guided by three well-entrenched principles: (a) that an
accusation of rape can be made with facility; it is difficult to prove but more difficult for the person accused, though
innocent, to disprove; (b) that in view of the intrinsic nature of the crime which usually involves two persons, the
complainants testimony must be scrutinized with extreme caution; and (c) that the evidence for the prosecution must
stand or fall on its own merits and cannot be allowed to draw strength from the weakness of evidence of the
defense. Accordingly, the primordial consideration in a determination concerning the crime of rape is the credibility of
the complainants testimony.
[4]
In rape cases, the accused may be convicted solely on the testimony of the victim,
provided it is credible, natural, convincing and consistent with human nature and the normal course of things.
[5]

Significantly, the trial court found Alma to be credible when it observed, thus:
It is undisputed that the victim is a retardate or suffering from a sort of mental deficiency. Her manner of testifying as
well as deportment in Court bespeak of her mental defect. However, the Court has observed that she could perceive
and make known or express her perceptions to others. In the instant case, she clearly explained her perceptions of what
happened when she was ravished sexually by the accused. Her behaviour at the witness stand pointing to the accused
as the one who raped her and requested that accused be brought to the police and be sentenced to death were clearly
expressed in a straightforward manner, thus the Court was impressed of her positive identification of the accused.
x x x In the instant case, the Court similarly considers the conduct of the victim where after the incident she was
described to have remained silent in one place of their house, unable to eat and has become thinner which invited the
attention of her mother and prompted to ask the victim why she was behaving that way and why she was getting
thinner and thinner. She was constrained to reveal to her mother what the accused had done to her and without much
ado, the mother sought the help of a neighbor to report the matter to a nearby PSAF Office. This complaint to the PSAF
Office led to the investigation of the case.
[6]

Appellant cites the alleged discrepancy or inconsistency between Almas testimony that she was raped three (3)
times causing her to bleed dalawang buong dugo, on the one hand, and the medico-legal findings and the testimony
of the examining physician that there was no abrasion or spermatozoa, that the hymen remains intact with no laceration
and that there is a possibility that a penis has not touched the labia of Almas vagina, on the other hand.
A cursory examination of the transcripts, however, shows Dr. Cuervas in fact testified that appellants penis could
have touched Almas vagina but was not inserted because there was no laceration.
[7]
Case law has it that a freshly
lacerated hymen is not an essential element of rape. Mere touching, no matter how slight of the labia or lips of the
female organ by the male genitalia even without rapture or laceration of the hymen is sufficient to consummate rape.
[8]

For the same reason, the medical finding that the hymen of the victim is still intact does not negate rape. Full
penetration is not required, as proof of entrance showing the slightest penetration of the male organ within
the labia or pudendum of the female organ is sufficient. In proving sexual intercourse, it is enough that there is the
slightest penetration of the male organ into the female sex organ.
[9]

In any case, Almas testimony that she bled cannot be completely disproved by the finding that her hymen was
intact with no laceration considering that there was no internal examination conducted to determine the vaginal
canal (sic), the presence of fluid in the vaginal canal, for the uterus and ovaries to be assessed.
[10]
What was conducted
was only a partial and external examination.
We have consistently held that a medical examination of the victim is not indispensable to a prosecution for
rape. It is merely corroborative in character and not indispensable. The accused may be convicted even solely on the
basis of her testimony if credible, natural, convincing and consistent with human nature and the course of things.
[11]

Besides, we have held time and again that a few discrepancies and inconsistencies in the testimonies of witnesses
referring to minor details and not in actuality touching upon the central fact of the crime do not impair the credibility of
the witnesses. Instead of weakening their testimonies, such inconsistencies tend to strengthen the witnesses credibility
because they discount the possibility of their being rehearsed.
[12]

It has been held in a long line of cases that the findings of the trial court on the credibility of witnesses and their
testimonies are accorded great respect. It is the trial judge who sees the behavior and demeanor of the witness in
court. The evaluation or assessment made by the trial court acquires greater significance in rape cases because from the
nature of the offense, the only evidence that can oftentimes be offered to establish the guilt of the accused is the
victims testimony.
[13]

In contrast, appellant could only offer denial in his defense. It is well-settled that denial, if unsubstantiated by clear
and convincing evidence, is a self-serving assertion that deserves no weight in law. Between the categorical and positive
assertions of the prosecution witnesses and the negative averments of the accused which are uncorroborated by
reliable and independent evidence, the former indisputably deserve more credence and are entitled to greater
evidentiary weight.
[14]

Besides, appellants bare denial of the crime charged is inherently weak. It cannot prevail over the positive, candid
and categorical testimony of the private complainant, whose credibility was upheld by the trial court. Between the
positive declarations of the prosecution witnesses and the negative statements of the appellant, the former deserves
more credence. Denials must be buttressed by strong evidence of non-culpability.
[15]
Appellant failed in this regard.
Moreover, appellant cannot point to any motive as to why Alma would file a complaint for rape against him. In the
absence of any evidence to show that the witness was actuated by any improper motive, his identification of the
appellant as the author of the crime shall be given full faith and credit.
[16]

Rape is punishable by reclusion perpetua, pursuant to Article 266-B of the Revised Penal Code. The mental
condition of the victim cannot be appreciated to aggravate the crime and to warrant the death penalty. Under Article
266 (10) of the Revised Penal Code, the rape shall be qualified when the offender knew of the mental disability,
emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime. Being
in the nature of a qualifying circumstance, this should be specifically alleged in the Information. The allegation therein
of the mental disability of the victim is insufficient. What should be alleged is the knowledge by the offender of such
mental disability.
[17]
Thus, appellant can only be convicted of simple rape.
The trial court ordered appellant to indemnify the victim P50,000.00 as moral damages only. The award of moral
damages is in line with current case law. Moral damages in the amount of P50,000.00 are awarded in rape cases
without need of proof other than the fact of the rape itself, because it is assumed that the victim has suffered moral
injuries entitling her to such award.
[18]

In addition, the trial court should have also ordered appellant to pay the victim P50,000.00 as civil indemnity ex
delicto. In People v.Padrigone,
[19]
citing People v. Belga,
[20]
we held that civil indemnity is mandatory upon the finding of
the fact of rape; it is distinct from and should not be denominated as moral damages which are based on
different jural foundations and assessed by the court in the exercise of sound discretion.
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of San Pablo City, Branch 32, finding
appellant Joselito Pascua y Teope guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the
penalty of reclusion perpetua and ordering him to pay the victim, Alma Agapay, the amount of P50,000.00 as moral
damages, is AFFIRMED with the MODIFICATION that appellant is further ordered to pay the victim the amount of
P50,000.00 as civil indemnity ex delicto.
Costs de oficio.
SO ORDERED.
















EN BANC
[G.R. No. 133926. August 6, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. RUBEN DALISAY Y HERNANDEZ, appellant.
D E C I S I O N
SANDOVAL-GUTIERREZ, J.:
For automatic review is the Decision
[1]
dated May 5, 1998, of the Regional Trial Court, Branch 4, Pallocan, Batangas
City, in Criminal Case No. 8776 convicting Ruben Dalisay y Hernandez, appellant, of statutory rape, and imposing upon
him the supreme penalty of death. He was further ordered to indemnify the victim, Ma. Lanie Dalisay (Lanie for brevity),
his own daughter, the sum of P200,000.00 as moral and exemplary damages and to pay the costs.
On February 10, 1997, a criminal complaint was filed with the said court by Lanie against appellant, her own father,
alleging as follows:
That on or about the 26
th
day of September 1996, at Barangay Pulong Anahao, Municipality of Mabini, Province of
Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force
and intimidation, did then and there willfully, unlawfully and feloniously lay and have carnal knowledge with the said
Ma. Lanie Dalisay, daughter of the accused and below twelve (12) years old, against her will and consent.
Contrary to law.
[2]

Upon arraignment, appellant pleaded not guilty to the crime charged. Trial ensued thereafter.
Lanies testimony is as follows: On September 26, 1996, she was 11 years old, having been born on September 26,
1985.
[3]
Her mother, Celestina Dalisay, has been working abroad, leaving her and her two siblings, Luz and Ruben, under
appellants care. They reside in Barangay Pulong Anahao, Mabini, Batangas.
In the evening of September 26, 1996, appellant arrived home from work.
[4]
Lanie was then lying on bed when
suddenly he removed her pants and underwear. She resisted but he boxed her on her thigh.
[5]
So when he told her to
hold his penis, she fearfully obliged. Then he touched her vagina and licked it. Thereafter, while in a kneeling position,
he placed his penis at the entrance of Lanies vagina and inserted his private organ into hers. He then proceeded to
make push and pull movements (nakanyog).
[6]
Lanie felt pain, but she did not complain becauseshe was afraid of
him.
[7]
When she held appellants penis and tried to remove it, something sticky came out. Appellant then wiped his
penis and Lanies vagina with a blanket. After that, he again licked her vagina, wiped it and went to sleep.
[8]

Lanie further testified that appellant has sexually abused her since she was in grade III, or in 1994. She estimated
that he had raped her seventeen (17) times, although she could no longer remember the exact dates when they took
place.
[9]
She did not tell anyone about those previous incidents because she was afraid he would harm her, as he used to
do in the past.
[10]

The following day, September 27, Lanie went to school and pretended as if nothing happened. However, her Grade
V teacher, Luminada Sangcate, noticed that Lanie looked depressed that day. When she inquired, Lanie answered that
she was raped (hinalay) by her father.
[11]
Immediately, Luminada reported the matter to the school principal who, in
turn, relayed the same to their Barangay Chairman. On September 30, 1996, a meeting was held among the Barangay
Chairman, the school principal, and appellants brother, Feliciano Dalisay, who all conferred with Lanie
[12]
and decided to
bring her to the Mabini Police Station where she executed an affidavit on the incident.
[13]

Incidentally, Lanies sister, Luz, also filed a complaint for acts of lasciviousness against appellant. Both sisters were
brought to the Lingap Center of Mabini for temporary custody pending the resolution of their cases.
[14]

Lucila Bacay, a Social Worker at Mabini, testified that on October 4, 1996, she interviewed the appellant and he
admitted that he raped Lanie. He explained though that he could not understand why he did it to his own daughter.
[15]

For his part, appellant denied the charge, claiming that his wifes relatives instigated Lanie to file the complaint
against him because they wanted to take from him the custody of his children which he resented.
[16]

Dr. Emma Panaligan, Medico-Legal Officer of the Batangas Regional Hospital, testified that on September 30, 1996,
she examined Lanie after the latter complained that she was raped by the appellant. She confirmed her Medico-Legal
Certificate dated October 2, 1996,
[17]
stating that Lanies external genitalia is infantile and has a non-gaping labia
majora; that her hymen is intact, and no sperm cell was seen during the examination.
[18]
She explained that the
normal size of the penis of an adult person could not fully penetrate Lanies vagina considering the small size and the
condition of her external genitalia.
[19]

On May 5, 1998, the trial court rendered the assailed Decision convicting appellant of statutory rape, the dispositive
portion of which reads:
Premises considered and upon the evidence, accused Ruben Dalisay y Hernandez is found Guilty beyond reasonable
doubt of Statutory Rape as charged in the criminal complaint filed by her minor daughter Ma. Lanie Dalisay and defined
and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659. Wherefore, he is
sentenced to suffer the capital punishment of Death to be made and exacted in the manner provided for under existing
law which is by lethal injection. He is further directed to indemnify complainant Ma. Lanie Dalisay with the sum of Two
Hundred Thousand Pesos (P200,000.00) as moral and exemplary damages and to pay the costs.
SO ORDERED.
[20]

Hence, this automatic review.
In his brief, appellant claims that the trial court erred:
I
x x x in giving full weight and credence to private complainants testimony, which is insufficient to establish the
commission of the offense by the appellant; and
II
x x x in failing to appreciate in appellants favor the testimony of Dr. Emma Panaligan who physically examined the
private complainant.
The trial court convicted appellant of statutory rape because he had carnal knowledge of Lanie who was below 12
years of age when the crime was committed.
The law governing the instant case is Article 335 of the Revised Penal Code, as amended by Republic Act No.
7659,
[21]
which partly provides:
Article 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any
of the following circumstances:
1. By using force 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.
x x x
Based on the above-quoted provisions, the essential elements of statutory rape are: (1) the offender had carnal
knowledge of a woman; and (2) the woman is below 12 years of age.
[22]

The trial court found Lanies testimony credible and trustworthy, thus:
x x x suffice it to state that the demeanor of the complainant, Ma. Lanie Dalisay, as she gave her testimony has led this
court to give her utmost credibility. She was barely eleven years of age and the manner by which she courageously gave
evidence to what her father had done to her showed no taint whatsoever that she was not telling the truth. Her tears
which flowed from her eyes as she narrated the gift from hell which her father gave her on the very night of her
birthday accentuated the truth of her unfortunate and devilish ordeal x x x.
[23]

In a prosecution for rape, the complainants credibility becomes the single most important issue, and when her
testimony satisfies the test of credibility, an accused may be convicted solely on the basis thereof.
[24]

Indeed, Lanies testimony has sufficiently and convincingly proved that appellant had carnal knowledge of her on
the night in question. Her candid and straightforward testimony, punctuated by her tears when she narrated how she
was sexually ravished by her very own father, are earmarks of a truthful witness and thus, must be given full faith and
credit.
[25]
Lanie described how appellant raped her, thus:
Q: Now, on September 26, 1996 in the evening while you were in bed, do you remember if there was
anything done to you by your father?
A: He inserted his organ to my organ, sir.
Q: And, that was inside your house?
A: Yes, sir.
Q: And, where is your house located at that time?
A: At Barangay Pulong Anahao, Mabini, Batangas, sir.
Q: Now, before your father was inserting his private organ to you, were you wearing any underwear?
A: None, sir.
Q: Why?
A: Because he removed it first, sir.
Q: How about your pants, did you wear your pants at that time?
A: Yes sir, but it was also removed by my father.
Q: Now, was the place where you were undressed by your father lighted?
A: It was dark, sir.
Q: And, how did you know that the private organ of your father was being inserted in you?
A: Because my father asked me to hold his organ, sir.
Q: Did you hold his organ when he told you that?
A: Yes, sir.
Q: And, after it was held by you, what did he do next?
A: He touched also my organ, sir.
Q: And, what else did he do, if any?
A: After touching my private organ he licked it (nilawayan at hinimud).
PROS. JUDIT:
May we request that the Tagalog answer of the witness be incorporated to the record.
Q: After doing that (nilawayan at hinimud), what else did he do?
A: He inserted his organ into my organ, sir.
Q: Was his private part able to penetrate yours?
A: In the entrance, sir.
Q: And what did you feel when his private organ was inserted to you?
A: It was painful, sir.
Q: Did you complain to your father?
A: I cannot complain, sir.
Q: Why?
A: Because Im afraid (natatakot po ako), sir.
PROS. JUDIT:
May we request to put on record that when the witness answered natatakot po ako, she was teary
eyed, Your Honor.
x x x
Q: And was this the first time that your father inserted his penis to you on September 26, 1996, or was there
any other incident?
A: There were other times, sir.
Q: And previous to this incident, how many times if you can recall?
A: What I estimated was seventeen (17) times, sir.
Q: And, since when did he first do this to you?
A: When I was still in grade 3, sir.
COURT:
Do you mean to say when you were still in grade 3 your father had already inserted his penis to your organ?
A: Yes, Your Honor.
[26]
(Emphasis ours)
Upon cross-examination, Lanie remained steadfast in her story that appellant sexually ravished her against her will
on the night in question.
On Cross-examination:
ATTY. ASILO:
Q: Was there somebody else who told you to file this instant case against your father?
A: None, sir.
COURT:
You are saying that the filing of this case against your father was of your own initiative?
A: Yes, sir.
ATTY. ASILO:
Q: You were lying down while your father was inserting his private organ to your private organ?
A: Yes, sir.
Q: And what was the relative position of your father when he was inserting his private organ to your private
organ?
A: He was kneeling down, sir.
COURT:
Did he say anything to you before he inserted his penis to your organ?
A: None, sir.
ATTY. ASILO:
Q: But before he inserted his penis to your private organ, you stated that your father told you to undress
yourself?
A: Yes, sir.
Q: Was it your father who undressed you or you undressed yourself when told by your father?
A: It was my father who was trying to remove my pants and panty and I tried to pull them up and resisted.
Q: But despite your resistance your father was able to remove your pants and panty?
A: Yes, sir. My father was able to remove my pants and panty because he boxed me on my thigh.
Q: And, is it correct that your father told you to hold his private organ before he inserted the same to your
private organ?
A: Yes, sir.
Q: And did you obey your father?
A: Yes, sir. I followed him because if not he will again box me on my thigh.
Q: But you stated that your father had inserted his penis slightly to your private organ?
A: The tip of his private organ was inserted in my private organ, sir.
Q: And, your father was moving while the tip of his organ was inside your private organ, is that correct?
A: Yes, sir.
Q: And could you describe before this Honorable Court the movement of your father while the tip of his
organ was penetrating your private organ?
A: Siya po ay nakanyog, sir.
Q: For how long did your father remain in that movement?
A: Quite long, sir.
Q: And, when your father was inserting his private organ to your organ you were still holding his penis, is that
correct?
A: Yes, sir. I was holding his penis because I was trying to pull it out.
Q: And, was there something which came out from the penis of your father while the same was inserted in
your private organ?
A: Yes, sir.
Q: And could you tell to this Honorable Court what was that something which came out from your fathers
private organ.
A: It was something sticky, sir.
Q: Did it come out while his private organ was being inserted or while the same was outside your private
organ?
A: When that sticky thing came out, his private organ was outside mine and then he removed it, sir.
COURT:
After that, what happened?
A: He stopped, sir.
[27]

x x x
On Re-cross examination:
Q: And you still maintain your answer that nobody among your relatives from the mother side asked you or
initiated you to file this case against your father because of personal grudge against him?
A: No, sir. It was my own decision that this case was filed against my father.
[28]
(Emphasis ours)
Lanie was fully aware that if her father would be convicted of the crime charged, he would be sentenced to
death. Yet, she remained firm in her testimony and wanted him to be penalized with death, thus:
COURT:
Do you know the gravity of the offense charged to your father?
A: Yes, sir.
Q: Do you know that if your father is found guilty he might be sentenced to death?
A: Yes, sir.
Q: Do you want your father to die?
A: Yes, sir.
[29]

Certainly, such statements could only be expressed by an aggrieved daughter who values the sanctity of her
womanhood more than the life of his father. We have held that a rape victims testimony is entitled to great weight
especially when she accuses her own father or a close relative of having ravished her.
[30]
For there can be ascribed no
greater motivation for a woman abused by her own kin than that innate yearning of the human spirit to declare the
truth to obtain justice.
[31]

Appellant would like us to believe that Lanies charge against him was instigated by his parents-in-law who want to
have the custody of his children.
We are not swayed by appellants bare claim. We find no reason to disturb the lower courts finding that Lanies
story is credible. It is inconceivable that she would falsely testify against her own father if the charge were not
true. Rape is not an ordinary crime that can easily be manufactured.
[32]
When a victim says she was raped, she says in
effect all that is necessary to show that the crime was committed. Not a few offenders in rape cases attributed the
charges brought against them to family feuds, resentment or revenge, but such alleged motives cannot prevail over the
positive and credible testimonies of complainants who remained steadfast throughout the trial.
[33]

Moreover, appellant contends that since Lanies hymen is intact and that there was no spermatozoa in her
genitalia
[34]
when Dr. Emma Panaligan examined her on September 30, 1997, he could not have committed the crime.
We disagree. It was sufficiently and convincingly established by the prosecution that appellant had carnal
knowledge of Lanie against her will, as clearly shown by her testimony quoted earlier. The presence of either hymenal
laceration or spermatozoa on Lanies private part is not an essential element of rape.
[35]
In People vs. Parcia,
[36]
we held
that the absence of sperm does not disprove the charge of rape. Likewise, in People vs. Regala,
[37]
we ruled that an
intact hymen does not necessarily prove absence of sexual intercourse. Similarly, in People vs. Rafales,
[38]
we declared:
x x x. For rape to be committed, entrance of the male organ within the labia or pudendum of the female organ is
sufficient. Rupture of the hymen or laceration of the vagina are not essential. Entry to the least extent of the labia or
the lips of the female organ is sufficient, the victim remaining virgin does not negate rape.
As testified to by Lanie, the tip of appellants penis was inserted
[39]
into her vagina,
[40]
as a result of which she felt
pain. In other words, there was no full penetration, and this explains why her hymen remained intact. Nonetheless,
carnal knowledge was consummated by the entryof the tip of appellants private organ into the labia or pudendum of
Lanies genitalia.
[41]
It is well-settled that full penetration is not required to consummate carnal knowledge, as proof of
entrance showing the slightest penetration of the male organ within the labia or pudendum of the female organ is
sufficient.
[42]
We now come to the second element of statutory rape, i.e., that the woman is under 12 years of age.
In People vs. Pruna,
[43]
we specified the guidelines in determining the sufficiency of evidence of the victims age as
an element of the crime or as a qualifying circumstance, thus:
1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live
birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school
records which show the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or
consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the
offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances:
a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years
old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or relatives
concerning the victims age, thecomplainants testimony will suffice provided that it is expressly and clearly admitted by
the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to
object to the testimonial evidence regarding age shall not be taken against him.
6. The trial court should always make a categorical finding as to age of the victim. (Emphasis ours)
In the present case, the trial court made the following finding:
From the evidence of both parties, the following facts appear to be uncontroverted, to wit:
(a) That the complainant is an eleven year-old Grade V student and the eldest daughter of the accused.
x x x
[44]

Such finding as to Lanies age is erroneous since it is based solely on Lanies testimony that she was 11 years old
when appellant raped her on September 26, 1996.
[45]
In Pruna, cited earlier, we held that the best evidence to prove
Lanies age is the original or certified true copy of her certificate of live birth, or, in its absence, an authentic baptismal
certificate or school records showing her age. However, the prosecution failed to present any of such
documents. Neither was it shown that they were lost, destroyed or unavailable at the time of the trial. Also, the
prosecution did not present Lanies mother or relatives to testify concerning her age. Lanies testimony alone is not
sufficient to prove her actual age considering that appellant did not expressly and clearly admit the same as required
in Pruna. And the fact that there was no objection from the defense regarding the victims age could not be taken
against him since it is the prosecution that has the burden of proving her age.
In view of the failure of the prosecution to prove Lanies age as alleged in the information, we hold that appellant
cannot be convicted of statutory rape. Nonetheless, he should be convicted of simple rape under paragraph 1 of Article
335 of the Revised Penal Code, as amended, quoted earlier, and sentenced accordingly to reclusion perpetua,
considering that he had carnal knowledge of Lanie through force or intimidation. She testified that she was afraid of the
appellant and succumbed to his bestial desires because he boxed her on her thigh.
The damages awarded by the trial court in favor of the complainant must be corrected. We have consistently ruled
that upon a finding of the fact of rape, the award of civil indemnity is mandatory. If the death penalty is imposed, the
indemnity ex delicto should be P75,000.00. Where, as here, the death penalty is not decreed, the victim should be
entitled to P50,000.00 only.
[46]

In line with current jurisprudence, moral damages is fixed at P50,000.00 without need of pleading or proof of basis
therefor.
[47]
In addition, exemplary damages of P25,000.00 is awarded to deter fathers with aberrant sexual behavior.
[48]

WHEREFORE, the Decision dated May 5, 1998, of the Regional Trial Court, Branch 4, Batangas City, in Criminal Case
No. 8776, is hereby MODIFIED in the sense that appellant RUBEN DALISAY Y HERNANDEZ is found GUILTY beyond
reasonable doubt of simple rape, and is hereby sentenced to suffer the penalty of reclusion perpetua and to pay the
victim Ma. Lanie Dalisay P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary
damages.
Costs de oficio.
SO ORDERED.




















THIRD DIVISION
[G.R. No. 128882. October 2, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL AYUDA, appellant.
D E C I S I O N
SANDOVAL-GUTIERREZ, J.:
Appeal from the Decision dated August 5, 1996 of the Regional Trial Court, Branch 7, Bayugan, Agusan del Sur, in
Criminal Case No. 634 convicting Joel Ayuda of rape and sentencing him to reclusion perpetua.
The Information charges Joel Ayuda as follows:
That on or about the 4
th
day of May, 1993 at about 2:00 oclock early dawn, more or less in the premises and vicinity
particularly at Barangay Maygatasan, Bayugan, Agusan del Sur, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with 3516 caliber pointed at the face of the victim, and by force, threats and
intimidation with lewd design, did then and there willfully, unlawfully and feloniously succeed in having sexual
intercourse with one GLORIPIN
[1]
SENO, a woman nineteen (19) years of age, of good reputation, against her will and
consent, to the damage and prejudice of the said victim consisting of moral, actual and compensatory damages.
CONTRARY TO LAW, Article 335 of the Revised Penal Code.
Upon arraignment, appellant Joel Ayuda, assisted by counsel, pleaded not guilty to the crime charged.
The evidence for the prosecution shows that in the evening of May 3, 1993, private complainant Gloriphine Seno, a
19-year old lass, attended a benefit dance held at the drier of Lorenzo Campilan situated at Purok 1, Maygatasan,
Agusan del Sur. At around 2:00 oclock in the early dawn, Gloriphine and her sister, Jocelyn Seno, while on their way
home, met appellant Joel Ayuda. At that instance, Jocelyn walked ahead, accompanied by Clodualdo Joy Estores,
while Gloriphine and appellant were left behind. Then appellant ordered Gloriphine to stop at a waiting shed. There he
pointed his 3516 caliber revolver at her right cheek and dragged her to a grassy spot about 30 to 40 meters
away. Appellant commanded her to undress and lie down, as he removed his pants and placed himself on top of her. He
inserted his penis inside her vagina, making a push and pull movement. She felt pain. She could not shout because he
continually poked his gun at her. Afterwards, he threatened to kill her, her parents and relatives should she reveal the
incident to anyone. But on her way home, she met Clodualdo and revealed to him her excruciating experience. They
later parted ways when they met her mother, sister and cousin. Upon reaching their house, Gloriphine immediately
threw away at the trash bin her blood-stained sanitary napkin. Later that same day (May 4, 1993), she reported the
incident to the Bayugan Police Station. After the investigation, she executed an affidavit dated May 5, 1993.
Gloriphine was examined by Dr. Romeo Cedeo at the Bayugan Community Hospital, Bayugan, Agusan del Sur. He
issued a medical certificate dated May 4, 1993 stating that the victim sustained linear skin abrasion on her right forearm,
slight swelling of her vulva, lacerated wound about 1 cm. on her right labia minora, and hymenal laceration and
bruising.
[2]

Appellant vehemently denied the rape charge, contending that Gloriphine has been his sweetheart since 1988 or
1989, and that what transpired between them that early dawn of May 4, 1993 was a sexual tryst.
On August 5, 1996, the trial court rendered a Decision, the dispositive portion of which reads:
WHEREFORE, viewed from the above perceptions, this Court finds accused Joel Ayuda guilty beyond reasonable doubt
of the crime of Rape pursuant to Article 335 of the Revised Penal Code. He is accordingly sentenced:
1) to a penalty of Reclusion Perpetua;
2) to indemnify Gloriphine Seno the amount of P30,000.00; and
3) to pay the costs.
SO ORDERED.
Appellant, in his brief, submits the following assignments of error:
I. THE LOWER COURT ERRED IN FINDING THAT RAPE WAS COMMITTED.
II. THE LOWER COURT ERRED IN FINDING THE TESTIMONY OF GLORIPHINE SENO TO BE FORTHRIGHT,
POSITIVE AND EMPHATICALLY UNSULLIED BY INCONSISTENCIES, CONTRADICTIONS OR MENDACITIES.
III. THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF GLORIPHINE THAT SHE WAS
THREATENED WITH A GUN BY ACCUSED AND THEN RAPED.
IV. THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED DUE TO REASONABLE DOUBT.
The basic issue for our resolution is whether the prosecution has established appellants guilt beyond reasonable
doubt.
The law applicable to the case at bar is Article 335 of the Revised Penal Code which provides:
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.
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.
x x x. (Underscoring ours)
The elements of rape under the above provision are: (1) the offender had carnal knowledge of the victim; and
(2) such act was accomplished through the use of force or intimidation; or when the victim is deprived of reason or
otherwise unconscious; or when the victim is under 12 years of age.
An extract from Gloriphines testimony, quoted hereunder, indubitably shows that appellant had carnal knowledge
of her through force and intimidation, thus:
x x x
PROSECUTOR PAG-ONG ON DIRECT EXAMINATION:
x x x
Q On May 4, 1993, at about 2:00 oclock in the early dawn, can you still remember where were you?
A I was going home with my younger sister, sir.
Q Who is that younger sister of yours?
A Jonelyn Seno, sir.
Q Where did you come from by the way at that time?
A From the dancing hall, sir.
Q You mean you attended the benefit dance on May 3, 1993?
A Yes, sir.
Q Up to the early dawn of May 4, 1993?
A We were already going home in the early dawn, sir.
x x x
Q While you were on your way home from the dancing hall together with your younger sister, what
happened if there was any?
A I was accompanied by Joel Ayuda, sir.
x x x
Q x x x. Are you referring to Joel Ayuda, the accused in this case?
A Yes, sir.
Q If Joel Ayuda is in the courtroom now, will you kindly point at him?
A That person, sir.
(Witness pointing to a man wearing violet T-shirt who answered the name of Joel Ayuda when he was
asked as to what is his name [sic])
Q When the accused approached and accompanied you, where did you go?
A He told me to stop at the waiting shed and at the waiting shed he pointed to me his gun, sir.
Q At what portion of your body was the gun pointed?
A Here, sir, at my right cheek.
x x x
Q Now, after accused Joel Ayuda pointed his gun to you, what happened next?
A He dragged me to the grassy place, sir.
x x x
Q What happened when you were brought to the grassy place?
A He told me to undress, sir.
Q Who removed your dress.
A He, sir.
x x x
Q What was your dress during that time?
A Polo, sir.
Q Were you wearing trousers?
A A polo and a trouser, sir.
Q Which was removed by the accused, your polo or your trouser?
A He first removed my trouser, sir.
Q After he removed your trouser, what did the accused do to you?
A He removed my panty, sir.
Q What happened to your panty which was removed by the accused Joel Ayuda?
A It was torn, sir.
Q There are two panties here that were attached to the records of the case. Will you please explain to this
Honorable Court why there are two panties?
x x x
A Because my menstruation just ended, sir.
x x x
Q After your long pants and two panties were removed by the accused Joel Ayuda, what did he do to you?
A He made me lie down and placed himself on top of me, sir.
Q Before he placed himself on top of you, what did the accused Joel Ayuda do to his pants?
x x x
A He removed his pants.
x x x
Q While he was on top of you, what was he doing?
A He made a push and pull movement, sir.
x x x
Q Aside from the push and pull movement that he made, what did he do to you?
A He pointed his gun to me, sir.
Q Aside from that, what did the accused Joel Ayuda do with his penis?
x x x
COURT:
The best way to be done here is to let the witness explain the meaning of sakyod-sakyod.
Q What do you mean by the sakyod-sakyod, Miss Seno?
A Iya kong gikayat.
ATTY. GOC-ONG:
May I request, Your Honor, that all the answers of the witness which are in the Visayan dialect be
interpreted.
COURT:
She was asked by the Court the meaning of sakyod-sakyod and she said he placed his penis inside her
vagina. That is the explanation there.
x x x
PROSECUTOR PAG-ONG:
Q After the accused Joel Ayuda inserted his penis to your vagina, what did he do next?
x x x
A The gun was pointed to me, sir.
Q How long did the sexual intercourse committed by the accused take?
A Only a few minutes, sir.
Q Could it be five (5) minutes?
A Maybe, sir.
Q What did you feel when the accused inserted his penis to your vagina?
A Painful, sir.
Q When the accused inserted his penis to your vagina, what did you do?
A I cried, sir.
Q Why did you cry?
A Because I was abused, sir.
Q While the accused Joel Ayuda was on top of you performing the sexual intercourse, where was his firearm?
A He held the gun with his left hand and used it as support (gitukod).
COURT:
Q What did he do with his gun?
A He pointed it to my face, your Honor.
x x x
Q After accused Joel Ayuda raped you, what happened next?
x x x
A He threatened me not to tell the incident to anybody and if I will do so he will kill me including my parents
and relatives.
x x x
[3]

The trial court found Gloriphines testimony credible since it was forthright, positive and emphatically unsullied by
inconsistencies; and that being credible, her testimony is sufficient to sustain a conviction. It is doctrinally settled that
the factual findings of the trial court, especially on the credibility of the rape victim, are accorded great weight and
respect and will not be disturbed on appeal. This is so because the trial court has the advantage of observing the victim
through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion, the sudden
pallor of a discovered lie, the tremulous mutter of a reluctant answer, the forthright tone of a ready reply, the furtive
glance, the blush of conscious shame, the hesitation, the yawn, the sigh, the candor or lack of it, the scant or full
realization of the solemnity of an oath, or the carriage and mien. This rule, however, admits of exceptions, as where
there exists a fact or circumstance of weight and influence that has been ignored or misconstrued by the court, or where
the trial court has acted arbitrarily in its appreciation of the facts. We do not find any of these exceptions in the case at
bar.
[4]

In his brief, appellant desperately attempts to discredit Gloriphine credibility by pointing flaws in her
testimony. According to him, she could not categorically determine where he pointed his gun whether it was to her
neck or face. She contradicted herself by admitting later that she did not inform the doctor she was raped by
appellant. She could not also remember whether she wore her yellow panty first or the orange one (which had traces of
a mans semen). And she could not intelligently explain why she threw away her blood-stained sanitary napkin.
An impeccable recollection cannot reasonably be expected from the victim of a horrendous crime, such that minor
contradictions in her testimony are perceived to enhance, rather than detract from, her credibility.
[5]
Thus,
inconsistencies and discrepancies which refer to minor matters are irrelevant to the elements of the crime and cannot
be considered as grounds for acquittal.
[6]

A close scrutiny of the transcripts of the proceedings shows that the supposed flaws or inconsistencies bear on
relatively minor points and, even taken as a whole, they fail to debunk the gravamen of the accusation that
appellant had carnal knowledge of the complainant through force or intimidation.
Neither are we persuaded by appellants claim that he and Gloriphine are sweethearts and that what transpired
between them that early dawn of May 4, 1993 was a consensual sex. He presented witnesses who declared that they
saw Gloriphine sitting on his lap on May 4, 1993; and that in another occasion, they saw him coming out of her house at
12:00 oclock midnight.
We are not convinced. A sweetheart defense, to be credible, should be substantiated by some documentary or
other evidence of the relationship like mementos, love letters, notes, pictures and the like.
[7]
Here, no such evidence
was ever presented by appellant.
Assuming that appellant and Gloriphine are sweethearts, it does not mean that he could not rape her. Such a
relationship is not a guaranty that he will not assault and tarnish that which she holds so dearly and trample upon her
honor and dignity. Indeed, a sweetheart can be forced to engage in sexual intercourse against her will.
[8]

Considering that appellant committed the crime with the use of a firearm, a deadly weapon, the penalty imposable
upon him is reclusion perpetua to death, pursuant to Article 335 of the Revised Penal Code, quoted earlier. Corollarily,
Article 63 of the same Code provides:
Art. 63. Rules for the application of indivisible penalties. In all cases in which the law prescribes a single indivisible
penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have
attended the commission of the deed.
In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be
observed in the application thereof:
1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall
be applied.
2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser
penalty shall be applied.
3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied.
4. When both mitigating and aggravating circumstances attended the commission of the act, the courts shall
reasonably allow them to offset one another in consideration of their number and importance, for the purpose of
applying the penalty in accordance with the preceding rules, according to the result of such
compensation. (Underscoring ours)
In People vs. Alfredo Baroy,
[9]
we held: Where no aggravating circumstance is alleged in the information and
proven during the trial, the crime of rape through the use of a deadly weapon may be penalized only with reclusion
perpetua, not death.
In the present case, there is neither aggravating nor mitigating circumstance that attended the commission of the
crime. Thus, the trial court correctly imposed upon appellant the lesser penalty of reclusion perpetua.
With respect to the civil liability of the appellant, we observe that the trial court awarded the victim
only P30,000.00 as civil indemnity. The prevailing jurisprudence is that where, as here, the death penalty is not
imposed, the victim should be entitled to P50,000.00 as indemnity ex delicto. Such award is mandatory upon the finding
of the fact of rape.
[10]

We likewise award the victim moral damages which, in line with current jurisprudence, is fixed at P50,000.00
without need of pleading or proof of basis thereof.
[11]
This is so because the anguish and the pain she has to endure are
evident. In our culture, which puts a premium on the virtue of purity or virginity, rape stigmatizes the victim more than
the perpetrator.
[12]
In addition, exemplary damages of P25,000.00 is awarded to her because the rape was committed
with the use of a deadly weapon. In People vs. Sorongon,
[13]
we held:
Likewise, the award of exemplary damages is justified. The circumstance of use of a deadly weapon was duly alleged in
the information and proven at the trial. InPeople vs. Edem (G.R. No. 130970, February 27, 2002), we awarded exemplary
damages in the amount of P25,000.00 in a case of rape committed with the use of a deadly weapon.
WHEREFORE, the appealed Decision dated August 5, 1996 of the Regional Trial Court, Branch 7, Bayugan, Agusan
del Sur, in Criminal Case No. 634 is hereby AFFIRMED with MODIFICATION in the sense that appellant JOEL AYUDA is
ordered to pay complainant Gloriphine Seno P50,000.00 as civil indemnity, P50,000.00 as moral damages,
and P25,000.00 as exemplary damages.
SO ORDERED.




















SECOND DIVISION
[G.R. No. 142740. August 6, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO TAMPOS Y AGUSTIN, accused-appellant.
D E C I S I O N
QUISUMBING, J.:
On appeal is the decision
[1]
dated January 3, 2000 of the Regional Trial Court of Davao City, Branch 17, in Criminal
Case No. 42,631-99. Appellant ROBERTO TAMPOS Y AGUSTIN was convicted of statutory rape and sentenced to suffer
the penalty of reclusion perpetua.
Appellant was charged in an information
[2]
containing the following allegations:
The undersigned, at the instance of the offended party HAPPYLEN ORTEGA Y RIOS, whose affidavit hereto attached and
form part of this Information accuses the above-named accused of the crime of STATUTORY RAPE, under Art. 335, Par. 3
of the Revised Penal Code in relation to R.A. 7610 and R.A. 7659 and R.A. 8313 it being a heinous offense, committed as
follows:
That on or about February 18, 1999, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court,
the above-mentioned accused, by means of force and intimidation, did then and there wilfully, unlawfully and
feloniously have carnal knowledge with the complainant HAPPYLEN ORTEGA Y RIOS, who is six (6) years old, against her
will.
CONTRARY TO LAW.
Assisted by counsel on arraignment, appellant pleaded not guilty to the charge. At the trial, the prosecution
presented five witnesses, namely private complainant Happylen Ortega, her mother Lady Lewin Ortega, security guard
George Amigable, Ms. Benaranda V. Orosco, and Dr. Samuel Cruz.
Complainant HAPPYLEN
[3]
ORTEGA testified
[4]
that on February 18, 1999, while on her way to the house of an Uncle
George, she noticed appellant Roberto Tampos staring at her. She knew Tampos and even knew where he
lived.
[5]
Appellant suddenly pulled her by the right wrist and, using his two hands, lifted and carried her. Appellant
brought her to an unlighted area at the back of Almendras Gym where a junked ambulance
[6]
was parked. Appellant
then forced complainant to lie on the plywood flooring and proceeded to remove her short pants. She was not wearing
any panty at that time. Appellant then removed his own short pants and brief. It was then that she was raped.
[7]
While
placing himself on top of Happylen, appellants erect penis was placed in her vagina. Complainant illustrated this by
thrusting her right forefinger towards a circle formed by the fingers of her other hand.
[8]

According to Happylen, appellant covered her mouth to prevent her from shouting. He warned her not to tell her
parents about what he did, otherwise, appellant would kill her.
[9]
Appellant then stood up to urinate and it was then that
the guard on duty at the Almendras gym apprehended him. At first, Happylen did not tell her mother about what
happened but eventually had to since her Auntie Betty and two of the latters children saw her and they had already
related the incident to her mother. Her mother accompanied her to the police where she executed an affidavit detailing
what had happened. They also went to the doctor where Happylen submitted herself to a medical examination.
During cross-examination, complainant testified that appellants penis did not penetrate her organ.
[10]
On re-direct,
however, she said that there was actual contact of the penis and her vagina.
[11]
When asked to point to the part of her
body that was touched by the penis, complainant pointed to a part a little above the vagina.
On query by the court, however, Happylen clarified that appellants organ did not pass her vagina but only its
lower portion. She stated that it was not on the middle but on the lower portion or on the lower tip of the vagina.
[12]

GEORGE AMIGABLE
[13]
was the security guard on duty at the Almendras Gym when the incident occurred. He
testified that on February 18, 1999, at past 7:00 p.m., while he was roving around the compound of Almendras Gym,
two women reported to him that a child was being raped in the junked ambulance. He rushed to said place and found
appellant and complainant both standing up. The witness saw appellant putting his shirt on.
[14]
He then asked the
appellant and the child their names which they promptly gave him. The girl appeared to be normal but then she cried
when she told him that appellant had raped her.
[15]
He held appellant at once, to prevent him from running away. The
other security guard on duty assisted him. He turned over custody of appellant to PO3 Romeo Autor,
[16]
a policeman
living nearby. Thereafter, the girls parents arrived.
Complainants mother, LADY LEWIN
[17]
ORTEGA
[18]
testified that her daughter was only six years and nine months at
the time of the incident. She presented Happylens Birth Certificate,
[19]
indicating that the child was born on July 4,
1992. Mrs. Ortega knew appellant because he had been a neighbor for three months.
[20]
The children in the area were
likewise familiar with appellant since he used to hang out in the vicinity of the chapel where the children usually
played.
[21]

A witness told Mrs. Ortega about the rape. Later on, Happylen also told her about it.
[22]
The child was crying while
relating to her what she suffered at the hands of appellant.
[23]
Mrs. Ortega then assisted her daughter in filing a
complaint with the police and accompanied her to the doctor for physical examination.
BENARANDA
[24]
V. OROSCO
[25]
also testified for the prosecution. On the date and time in question, she was asked by
one Beatriz
[26]
Danuco to accompany the latter to the Almendras Gym. Betty said her son Marvin told her there was a
little girl at the gym and a man was doing something bad to her.
[27]
Upon reaching the back of the gym, and from a
distance of about 4-5 meters, they saw appellant Roberto Tampos. The witness demonstrated how appellant was
bending up and down.
[28]
She did not actually see the child at that time because it was dark.
[29]
Thereafter, a security
guard arrived and she went home. When she returned to the gym, appellant was already being held by the security
guard and surrounded by many people. It was only then that she saw Happylen.
Dr. SAMUEL CRUZ
[30]
testified that he conducted the physical/medical examination of complainant on February 19,
1999 or a day after the incident. His findings were reduced to writing as follows:
GENITAL EXAMINATION
Pubic hair, no growth. Labia majora and minora, gaping. Fourchette, tense. Vestibule, pinkish, smooth. Hymen, thick,
tall, intact. Hymenal orifice, annular, 0.5 cm. in diameter. Vaginal walls and rugosities, cant be reached by examining
finger.
CONCLUSIONS:
1.) No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination.
2.) Hymen, intact and its orifice, small as to preclude complete penetration by an average-sized male organ in erection
without causing hymenal injury.
REMARKS: Semenology: Positive for Spermatozoa
[31]

According to Dr. Cruz, his findings indicated that no male organ had penetrated the childs vagina, otherwise,
hymenal lacerations would have been present.
[32]
However, he stated that this would not negate the possibility of partial
penetration or of contact between the penis and the vagina. Further, Dr. Cruz testified that he took a sample from the
opening of the vagina by dabbing a cotton swab therein. Upon laboratory examination
[33]
of the sample conducted by a
medical technologist, it was found to be positive for spermatozoa.
The lone testimony of the appellant was presented in his defense.
ROBERTO TAMPOS
[34]
testified that he did not know complainants name, but he recognized her only by face. He
admitted that he was with complainant at around 6:00 to 7:00 p.m. of February 18, 1999.
[35]
He saw her playing on the
road leading to the back of Almendras Gym at around 6:00 p.m., while he was on his way to the house of his
foreman.
[36]
He said he was a bit drunk at the time.
[37]
He brought her to the back of Almendras
Gym, made her sit on a plywood near the junk vehicle and gave her P1.00.
[38]
People were passing by at the time.
He placed the girl on his lap and in the process touched her side. He admitted that he intended to touch the girl and
then masturbate, which was what actually happened. He slipped his penis out at the side of his brief and shorts.
Appellant denied removing Happylens shorts but said he only lowered them.
[39]
He then saw the girls vagina but denied
that he ever touched it. He did not place himself on top of the girl when he masturbated. He only knelt beside her while
Happylen lay on the plywood. He touched the girls thigh but not her private parts. As he was ejaculating, he actually
touched Happylens hips. He directed his semen above the hips of the girl.
[40]
Nothing more happened after that. He
then left the girl behind and went home. However, he was immediately apprehended by the security guard of
Almendras Gym, brought to the guards office, and taken to the barangay captain.
After trial, the RTC rendered its assailed decision, thus:
WHEREFORE, finding the evidence of the prosecution more than sufficient to prove the guilt of accused beyond
reasonable doubt of the offense charged, accused ROBERTO TAMPOS is sentenced to suffer a penalty of RECLUSION
PERPETUA and to pay the additional amount of P50,000.00 as moral damages to Lady Lewin Ortega, another amount
of P50,000.00 as civil indemnity together with all accessory penalties as provided for by law. (PP vs. Romeo Ambray y
Luterio GR 127177 promulgated on February 25, 1999; PP vs. Melanio Bolatete y Melon GR 127570 promulgated on
February 25, 1999).
SO ORDERED.
[41]

Aggrieved, appellant interposed the present appeal, with the following assignment of errors:
I
THE LOWER COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
OF RAPE NOTWITHSTANDING THE TESTIMONY OF THE CHILD HERSELF THAT THE ACCUSED PENIS (sic) DID
NOT GO INSIDE HER VAGINA BUT MERELY ON HER NAVEL, ABOVE HER VAGINA AND THE LOWER PORTION
OF HER VAGINA.
II
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE TESTIMONY OF ACCUSED-APPELLANT THAT
HE MERELY MASTURBATED AND THIS FACT IS CONSISTENT WITH THE MEDICAL FINDINGS ON THE PHYSICAL
EXAMINATION OF THE GIRL RIGHT AFTER THE INCIDENT AS WELL AS TO THE TESTIMONY OF THE OTHER
WITNESSES PRESENTED BY THE PROSECUTION.
[42]

More specifically, the issues are: (1) whether appellant had carnal knowledge of complainant; and (2) whether
the penalty imposed on appellant is appropriate.
Appellant is charged of STATUTORY RAPE under paragraph 3 of Article 335 of the Revised Penal Code. The two
elements of statutory rape are: (1) that the accused had carnal knowledge of a woman; and (2) that the woman is below
12 years of age.
[43]
Article 335 of the Revised Penal Code is now in Article 266-A, par. 1-d, in view of the amendments
introduced by R.A. 8353. Statutory rape is committed by having carnal knowledge of a woman under par. d, when the
offended party is under 12 years of age.
In this case, the victims age is undisputed. She is below 12 years old. Her Birth Certificate shows that she was born
on July 4, 1992. Thus, on February 18, 1999, Happylen was exactly six (6) years, seven (7) months and fourteen (14) days
old. Her mother confirmed this in open court. Hence, the issue is whether there is sufficient evidence to prove carnal
knowledge between appellant and Happylen beyond reasonable doubt.
Appellant submits that, assuming arguendo that Happylens testimony were true, he could not be convicted of rape
but only acts of lasciviousness. He insists that there was no penetration of the vagina. He points out that the medical
findings show that the hymen was intact and, had there been penetration, hymenal lacerations would have been
present. Appellant contends that the acts described do not constitute carnal knowledge as the essential element of
rape. He sticks to his claim that he merely masturbated. He adds that he only held on to the hips of complainant at
that time, without touching her private parts.
For the State, the Office of the Solicitor General argues for the affirmation of the trial courts judgment finding
appellant guilty of rape. However, the OSG recommends that the penalty of death be imposed on appellant instead
of reclusion perpetua only.
Considering the evidence on record, we are one with the trial court in giving credence to the testimonies of the
complainant and the other prosecution witnesses. The trial courts assessment of the credibility of witnesses is entitled
to great respect on appeal, for it had the opportunity to closely observe the witnesses demeanor and deportment on
the witness stand.
[44]
The trial court found that the complainant acted without malice in reporting the alleged abuses of
accused on her person. In contrast, according to the trial court, appellants unsubstantiated and self-serving denial
could not hold up against the positive declaration and frank manner by which the victim recounted her ordeal.
[45]
A
careful scrutiny of the records leads us to the same conclusion, that the prosecution witnesses and their testimonies are
logical and more credible than that of the defense. We have no hesitation in rejecting the testimony of the appellant for
being less than candid and truthful.
Instructive is complainants testimony, which we find worth excerpting, to detail what appellant did to her:
DIRECT EXAMINATION
x x x
Q: Now, Hapilyn Ortega, tell the court, how did he rape you?
A: He placed his organ to me. (witness demonstrating her right forefinger thrusting it towards the circle of
her other finger as if penetrating inside).
Q: What was the position of the accused when he inserted his penis to your private part?
A: His penis erected.
Q: Precisely, was he on top of you at that time?
A: Yes, sir.
x x x
Q: Going back to the testimony, that his penis (sic) the accused inserted his penis to your vagina, in the course
of sexual contact made to you by the accused, what did you feel if any, coming from the penis of the
accused?
A: I cried.
Q: The question is what did you observe if any, coming from the penis of the accused?
A: None.
x x x
CROSS EXAMINATION
Q: You testified that earlier, that you were raped by the accused by placing his organ to your organ, is that
correct?
A: Yes, sir.
Q: Was the penis of the accused able to penetrate your organ?
A: No, sir.
Q: Now, when he (sic) accused removed your shortpants, what did the accused do with his penis?
A: He let it out.
Q: Did he hold his penis? Did he push and pull it with his hands?
A: No.
x x x
RE-DIRECT
Q: Hapilyn Ortega, you said the organ of the accused did not penetrate your organ, do you mean to say that
there was an actual contact of the penis in your vagina?
A: Yes, sir.
x x x
RE-CROSS
Q: Can you point out to this court, what portion is that which was touched by the penis of the accused?
A: (witness pointing to her vagina).
x x x
COURT:
Q: Hapilyn Ortega, you testified before, you are pointing in your finger like this, is that correct?
A: Yes, sir.
Q: You are referring to the one of your finger like this, as the organ of the accused?
A: Yes, sir.
Q: And the one you are forming in your finger a ring symbolizes your vagina?
A: Yes, sir.
Q: Now, when the accused raped you, is it that his organ passes to your vagina?
A: No.
Q: Where is that part in your vagina here in your circle that the penis of the accused was pointed?
A: To the lower portion.
Q: It did not go inside here?
A: Yes, not on the middle but on the lower portion.
Q: Where in this vagina where the penis of accused penetrated?
A: Lower portion.
Q: Only on the lower tip of the vagina?
A: Yes sir.
[46]

From the foregoing, we resolve the crucial issue: Did the acts described above constitute the essential requisite of
carnal knowledge in a case of rape?
In People v. Lerio,
[47]
we stated:
In the context it is used in the Revised Penal Code, carnal knowledge, unlike its ordinary connotation of sexual
intercourse, does not necessarily require that the vagina be penetrated or that the hymen be ruptured (6 WORDS AND
PHRASES 273 citing Walker v. State, 273 S.W. 2d 707, 711, 197 Tenn. 452). The crime of rape is deemed consummated
even when the mans penis merely enters the labia or lips of the female organ (People vs. Cabebe, G.R. No. 125910, May
21, 1998) or, as once so said in a case, by the mere touching of the external genitalia by a penis capable of
consummating the sexual act. (People v. De la Pea, 233 SCRA 573 cited in People v. Castromero, 280 SCRA 421.)
Appellants counsel, in his brief, admits that the foregoing testimony of Happylen clearly demonstrated that
appellants penis, indeed, touched the victims vagina.
[48]
However, he contends that, much like the case of People v.
Campuhan,
[49]
the touching was merely an epidermal contact or a slight brush or a scrape of the penis on the external
layer of the victims vagina or the mons pubis. To bolster defense counsels claim that there was no penetration, he cites
the result of the medical examination that shows no extragenital injury and no hymenal lacerations.
Complainant herself testified that there was no penetration of her organ. However, she indicated at least two areas
where the penis of the appellant touched her vagina: (1) the one she pointed to above her vagina; and (2) the lower
portion or lower tip of the vagina. But even if we consider only the second spot, the lower portion or tip of her vagina,
which she categorically indicated during counsels examination and upon inquiry by the court, in our view, sexual
contact has been indubitably established. That appellants penis only touched the lower tip of the victims vagina
without any resulting external genital injury or laceration of the hymen would not preclude a finding of rape.
In several cases, we have held that rupture of the hymen or vaginal lacerations are not necessary for rape to be
consummated.
[50]
An intact hymen does not negate a finding that the victim was raped. To commit the crime of rape the
rupture of the hymen is not indispensable.
[51]

Significantly, in a number of cases
[52]
we held that where penetration was not fully established, the Court had
anchored its conclusion that the rape was nevertheless committed 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 majora was already gaping with redness,
or the hymenal tags were no longer visible.
[53]

Thus, contrary to appellants assertion, we are convinced that appellants penis came in contact with complainants
vagina in a way much more intense than mere epidermal contact or a slight brush or a scrape of the penis which the
defense wants us to accept. The victim felt pain in her sexual organ;
[54]
the doctor found both the labia
majora and minora to be gaping.
[55]
These, in our view, are external indicia of carnal knowledge.
As we stated in People v. Ayo:
[56]

While it may be granted that penetration may not have been accomplished as the girls hymen was shown to have
remained intact and the orifice too small to preclude full penetration, jurisprudence recognizes that slight penetration of
the labia by the male organ still constitutes rape. It is sufficient that there be entrance of the male organ within the labia
of the pudendum. Absence of hymenal laceration does not disprove sexual abuse especially when the victim is of tender
age. Mere touching, no matter how slight, of the labia or lips of the female organ by the male genital, even without
rupture or laceration of the hymen, is sufficient to consummate rape.
The presence of appellants spermatozoa in her genitalia, established by medical evidence, adds to the credibility of
the prosecutions stance that carnal knowledge did take place.
Jurisprudence requires that, to be considered consummated rape, an erect penis capable of penetration
[57]
must
have touched, at the very least, the area of the labia of the pudendum. In the present case, Happylen testified that
contact was made on the lower tip of her vagina. A six-year- old girl might have difficulty pinpointing which part of her
vagina was actually touched. But Happylen had no such difficulty. Clearly, there was sexual contact, for spermatozoa
was found present in her vagina. The trial court is convinced as we are that the lower tip of her vagina testified to by
complainant as the point touched by appellants organ is the vaginal opening or the area between the labia through
which the semen (spermatozoa) traveled and therein found the following day when the gynecological examination was
performed.
Now, as to the imposable penalty in this case. The OSG contends that the trial court erred in imposing on appellant
the penalty of reclusion perpetua. The OSG argues that the offense committed is the heinous offense of child-rape,
where the victim is less than seven years old. Hence, the OSG recommends that the penalty should be death.
At the outset, we find that the appellant is being charged of STATUTORY RAPE as defined in Art. 335, Paragraph 3 of
the Revised Penal Code, as amended. This provision 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.
[58]

The phrase under twelve years of age makes the offense STATUTORY RAPE as well understood in our
jurisdiction. It is punishable byreclusion perpetua, a single indivisible penalty, under Art. 266-B, RPC, now. In our view,
the constitutional right of the accused to be informed of the charges against him would be violated if, as the OSG argues,
we should convict him on the basis of a provision of law, R.A. 8353, the Anti-Rape Law of 1997, which imposes
death. True, the information mentions confusedly Art. 335 of the Revised Penal Code, in relation to R.A. 7610, R.A.
7659 and R.A. 8313, it being a heinous offense. Note that the information does not mention R.A. 8353. The visible
emphasis of the present charge, clearly, is on STATUTORY RAPE, which the Prosecutor spelled in capital letters.
The Information first and foremost refers to the crime of rape defined in Paragraph 3 of Article 335 of the Revised
Penal Code, now Article 266-A, where the woman is under twelve years of age, which is statutory rape. It is this
specific provision of the Code, favorable in this context to the appellant that we should apply. To convict an accused of a
higher or more serious offense than that specifically charged in the complaint or information on which he is tried would
be an outright violation of his basic rights.
[59]
It is well settled that an accused may only be convicted of a crime charged
against him in the information or those necessarily included therein.
[60]
The information herein charging STATUTORY
RAPE could not be validly converted to a charge of CHILD-RAPE. The latter charge constitutes a greater offense
punishable by death, quite distinct from statutory rape. Having been specifically arraigned on the charge of STATUTORY
RAPE, appellant could not after trial be held to answer for child-rape. To do so would raise infractions of due process and
other guarantees in favor of appellant, particularly his right to be informed, and not misinformed, of the offense
charged.
Moreover, the severity of death penalty, especially its irreversible and final nature once carried out, makes the
decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence.
[61]
The
OSGs prayer to increase appellants culpability to a capital offense cannot, in our view, be granted now without also
fracturing our present Revised Rules of Criminal Procedure. For now, in Rule 110 made effective on December 1,
2000,
[62]
we find strict requirements for the State Prosecutor to observe faithfully, thus:
Sec. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the
statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.
Sec. 9. Cause of accusation. The acts or omissions complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in
the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged
as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.
The prosecution must avoid ambiguity, vagueness or uncertainty as to what offense is being charged. The
allegation in the information states that the appellant is being charged with the crime of STATUTORY RAPE, under Art.
335, Par. 3 of the Revised Penal Code. Mention of its relation to R.A. 7610, R.A. 7659 and R.A. 8313 it being a heinous
offense... need not confuse us. It should not now appear that alternative offenses are charged, which could void the
information. To forestall that eventuality, the charge should be read as referring to statutory rape and no other
kind. Given that charge, we agree with the trial courts imposition of reclusion perpetua as the appropriate penalty on
appellant. Prudence counsels us to avoid pronouncing a sentence of death where law and the evidence do not clearly
and indubitably call for it.
As to damages, civil indemnity of P50,000 and moral damages in the amount of P50,000 are also properly awarded
in favor of private complainant, on the ground that victims of rape suffer psychological and moral injuries sufficient to
justify the award, without necessity of further proof.
[63]

WHEREFORE, the assailed decision of the Regional Trial Court of Davao City, Branch 17, is AFFIRMED. Appellant
ROBERTO TAMPOS Y AGUSTIN is declared GUILTY of statutory rape, and he is sentenced to RECLUSION PERPETUA with
all its accessory penalties. The appellant is likewise ordered to pay private complainant, Happylen Ortega, the sum of
FIFTY THOUSAND PESOS (P50,000.00) as civil indemnity and another FIFTY THOUSAND PESOS (P50,000.00) as moral
damages, together with the costs.
SO ORDERED.