FIRST DIVISION

[G.R. No. 128105. January 24, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUDRING VALDEZ, ALLEN VALDEZ, JOSE TABOAC, JR. and AMANDITO T. TABION, accused. LUDRING VALDEZ, accused-appellant. DECISION
PARDO, J.:

The case before the Court is an appeal from the decision[1] of the Regional Trial Court, Pangasinan, Branch 45, Urdaneta convicting Ludring Valdez and Jose Taboac, Jr., of murder, sentencing them to reclusion perpetua and to pay jointly and severally the heirs of the deceased Eusebio Ocreto in the amount of P50,000.00, as indemnity for the death of the victim, P20,000.00 as actual damages, P200,000.00 as moral damages, and costs. On May 17, 1993, Assistant Provincial Prosecutor Jaime V. Veniegas of Pangasinan filed with the Regional Trial Court, Pangasinan, an information charging Ludring Valdez, Jose Taboac, Jr., Allan Valdez, and Amandito T. Tabion with murder, committed as follows:

That on or about the 9th day of January, 1993, in the evening, at barangay Sto. Domingo, municipality of Urdaneta, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with big stone (Boulder) and sharp pointed bladed weapons, conspiring, confederating and mutually helping one another, with deliberate intent to kill, with treachery and evident premeditation, taking advantage of superior strength and nighttime, did then and there willfully, unlawfully and feloniously attack, assault, kick, hit with big stone (boulder), stab, Eusebio Ocreto in the vital parts of his body and head inflicting upon him fatal injuries and decapitate him, which directly caused his death, to the damage and prejudice of his heirs. The crime was committed by the accused with the aggravating circumstances of use of superior strength, nightime and cruelty, by decapitating the victim. CONTRARY to Art. 248, par. 6, Revised Penal Code.[2]
At the arraignment on April 21, 1994, accused Ludring Valdez and Jose Taboac, Jr., pleaded not guilty.[3] Accused Amandito Tabion reportedly died, but no certificate of death was submitted

to the court. Accused Allan Valdez, son of accused Ludring Valdez, remained at large. Subsequently, trial on the merits ensued. The facts are as follows: On January 9, 1993, at around 11:00 in the evening, Amanda Tabion, public school teacher, was in her house in Sto. Domingo, Urdaneta, Pangasinan, when she heard a motorcycle stop in front of her house and loud voices outside. One of the voices sounded as if someone was being tortured, so Amanda went out of her house to investigate. Amanda stepped out to the back of her house and saw four men surrounding Eusebio Ocreto, whom she knew since childhood. Wondering what the men were up to, Amanda hid behind a plant and watched them. Moonlight illuminated the four accused, Allan Valdez, Ludring Valdez, Itong Tabion and Jose Taboac, Jr. Amanda recognized them from a distance of 10 meters. Accused Ludring Valdez, who was facing Amanda, repeatedly hit Eusebio Ocreto on the head and body, using large stones or boulders. The other accused looked on. Eusebio remained lying on the ground, unmoving. After a few seconds, accused Ludring Valdez stopped hitting Eusebio. Thereafter, the four accused carried the body of Eusebio on their shoulders and boarded a tricycle. They headed towards the provincial road leading to Nancayasan, Urdaneta, Pangasinan. Amanda returned to her house, shivering with fear. She learned the following morning that Eusebio Ocreto was missing. On January 10, 1993, at 5:00 in the afternoon, the headless body of a man was found. It was brought immediately to the funeral parlor for autopsy. Dr. Ramon Gonzales, municipal health officer of Urdaneta, Pangansinan,[4] conducted a postmortem examination of the body which policemen identified as Eusebio Ocretas. Dr. Gonzales observed that the victim sustained thirteen stab wounds at the back of the body and opined that the different sizes of the wounds showed that they might have been inflicted by two or more assailants.[5] He was not able to determine which of the stab wounds were fatal because of the decapitation. He was not able to examine the head of the deceased.[6] The decapitated head of Eusebio Ocreto was discovered two days afterwards. It was buried one foot deep, more than one hundred meters away from where the body of the victim was found. When it was dug up, it was in a state of decomposition. The place where the victim was attacked and assaulted was fifty meters away from where his head was found, and fifteen meters away from where the body was located.[7] Accused Ludring Valdez denied the accusations and testified[8] that on January 9, 1993, he was at the house of Gregorio Saculles in Barangay Sto. Domingo, San Manuel, Pangasinan. The daughter of Saculles was getting married, so the friends of the father of the bride gathered to celebrate. At around 9:00 in the evening, after consuming several bottles of beer, accused Ludring Valdez left the party, together with Renato Rebebes, Juanito Tabion, Gil Tabion, Jose Taboac, Jr. and Allan Valdez. They rode a tricycle and parted ways at the crossing of Sto. Domingo, Urdaneta, Pangasinan. Afterwards, accused Ludring Valdez and his son, Allan, walked approximately fifty meters to their house. They reached their house at around 10:00 in the evening. Accused Ludring Valdez went to sleep and did not leave his house thereafter.

The following day, accused Ludring Valdez, Jose Taboac, Jr., Amandito Tabion, Allan Valdez, Vilma Valdez and Remedios Romero rode a tricycle to San Manuel, Pangasinan, to attend the wedding ceremony of Saculles daughter. The ritual began at 9:00 in the morning and ended two hours later. After the ceremony, they proceeded to the house of Gregorio Saculles to eat and drink more beer. The reception ended at around 2:00 in the afternoon. They returned to Sto. Domingo, Urdaneta, Pangasinan at around 3:00 in the afternoon. They stayed in the house of accused Ludring Valdez until 4:00 in the afternoon. When his friends left, accused Ludring Valdez stayed home. It was only on January 10, 1993 that accused Ludring Valdez learned of Eusebio Ocretos death. He knew the deceased because they used to attend town occasions such as birthday parties. He claimed to have a good relationship with the deceased, not having any misunderstanding, quarrel or animosity with each other. He knew Amanda Tabion who testified against him and alleged that they were not on speaking terms even before the incident. He claimed that Amanda hated him because of his financial success with the cattle market and his meager donation of five pesos to her daughters solicitation envelope at one time. On March 14, 1993, he went to Ilocos Sur with his son, Allan Valdez, because they were suspected of killing Eusebio Ocreto. He stayed in Ilocos for several months, fearful of the threats of relatives of the deceased against his life.[9] Accused Jose Taboac, Jr. dispensed with the presentation of his evidence and submitted the case for decision.[10] On March 7, 1996, the trial court rendered a decision, the dispositive portion of which states:

WHEREFORE, the Court renders judgment, declaring the accused LUDRING VALDEZ and JOSE TABOAC, JR., GUILTY beyond reasonable doubt of the crime of MURDER and hereby sentences them to suffer imprisonment of RECLUSION PERPETUA EACH and to pay jointly and severally the heirs of the deceased Eusebio Ocreto, the following: P50,000.00 as indemnity for the death of the victim; P20,000.00 as actual damages; P200,000.00 as moral damages and to pay the costs. SO ORDERED.[11]
Only accused Ludring Valdez filed an appeal.[12] In his appellants brief, accused-appellant Ludring Valdez contends that the trial court should not have given credence to the testimony of prosecution witness Amanda Tabion, imputing ill-motive on her part against him.[13] In numerous cases, the Court has stated that it will not interfere with the trial courts assessment of the credibility of witnesses, in the absence of any indication or showing that the trial court overlooked some material facts or gravely abused its discretion.[14] This case is no exception. Amanda Tabion was in a position to witness the incident, considering her proximity to the scene of the crime, her familiarity with accused-appellant, and the illumination provided by the

moonlight over accused-appellant. Though subjected to rigorous cross-examination, she neither faltered in her positive identification of accused-appellant nor did she give any statements materially inconsistent with her entire testimony. The motive imputed to her is too trivial to be taken seriously. We find her testimony worthy of credit. Accused-appellant alleges that the trial court should have credited his alibi. However, for alibi to prosper, accused-appellant must prove that he was somewhere else when the crime was committed and that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission.[15] The distance from the house of Gregorio Sacolles to the scene of the crime is only 200 meters. Such distance does not preclude the accused-appellant from being at the place of the crime at the time of its commission. Moreover, accused-appellants own alibi placed him at the scene of the crime on the date in question precisely around the time of the killing, for he admitted at he was at the crossing of Sto. Domingo, Urdaneta, Pangasinan approximately an hour before the victims death. Although the witness failed to see the actual killing, circumstantial evidence in this case established accused-appellants involvement in the death of the victim. Circumstantial evidence suffices for sustaining a conviction if the following requisites are present: (1) there must be more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[16] In this case, the prosecution witness saw him stoning the victim and later was one of the persons carrying the body of the deceased to a place nearby. The body of the deceased was found at the place where the accused-appellant was on the night in question, near the place where the head of the deceased was found. Accused-appellant admitted that he was in the vicinity of the crime scene on that fateful night. Also, the victim was last seen alive in the company of the accused-appellant. Hence, considering the pieces of evidence pointing to accused-appellant as the person who committed the crime charged, he must be held liable for the death of the victim. The question now is whether accused-appellant should be charged with homicide or murder. The trial court found that the killing was attended with cruelty, because the deceased was stoned, stabbed and beheaded. We agree. There is cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him unnecessary physical pain in the consummation of the criminal act.[17] The test is whether accused-appellant deliberately and sadistically augmented the wrong by causing another wrong not necessary for its commission or inhumanly increased the victims suffering or outraged or scoffed at his person or corpse.[18] In this case, evidence showed that the deceased was inflicted with numerous wounds before he was killed. Such acts increased the victims suffering and caused unnecessary physical pain before his death. Considering that the crime occurred on January 9, 1993, before the effectivity of Republic Act No. 7659 which amended the Revised Penal Code, the prescribed penalty for murder in this case is reclusion temporalin its maximum period to death.[19] In the absence of aggravating or mitigating circumstances, the medium period, or reclusion perpetua shall be imposed.[20] The amounts awarded as indemnity for the victims death and actual damages supported by receipts are sustained. However, moral damages awarded may be reduced to fifty thousand pesos (P50,000.00), keeping in mind that the purpose for awarding moral damages is not to enrich the heirs of the victim but to compensate them for injuries to their feelings.[21]

WHEREFORE, the Court affirms the decision of the Regional Trial Court, Pangasinan, Branch 45, Urdaneta convicting accused-appellant Ludring Valdez of murder, sentencing him to reclusion perpetua, and to pay the heirs of the victim Eusebio Ocreto the amount of fifty thousand (P50,000.00) pesos as indemnity for the death of the victim, the amount of twenty thousand (P20,000.00) pesos as actual damages, the amount of fifty thousand (P50,000.00) pesos as moral damages and the costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

EN BANC

[G.R. No. 132676. April 4, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JAIME CARPO, OSCAR IBAO, WARLITO IBAO and ROCHE IBAO, accusedappellants. DECISION
PER CURIAM:

The accused might as well have borrowed the famous line of Shakespeare How this world is given to lying![1] - when they impute error to the trial court for relying on the testimony of a single witness in convicting them of multiple murder complexed with attempted murder for the death of Florentino Dulay, Norwela Dulay and Nissan Dulay, and the wounding of Noemi Dulay.[2] The challenged testimony of witness Ruben Meriales follows:[3] On 25 August 1996 at about 8:00 o'clock in the evening while he was watching television with his family his dogs barked. His mother who was apprehensive that their cow might be stolen prodded him to check the disturbance. To allay her fears he stood up, took his flashlight and trudged the unpaved path towards his cow that was tied to a mango tree. Then the noise grew louder thus arousing his suspicion that something was really wrong. After transferring his cow nearer to his house, he went inside the kitchen, stood atop the concrete washbasin, hid himself behind the bamboo slats and peeped outside to observe. The darkness helped conceal him from outside view while the light from the two (2) bulbs positioned at about three (3) meters from where he stood filtered through the slats and illumined the surroundings. There was also moon in the sky.

A few minutes later, he saw barangay captain Jaime Carpo together with Warlito Ibao suspiciously stooping near his barn. He knew Jaime and Warlito very well. Jaime was his uncle and Warlito lived in his neighborhood. Warlito's son Roche was also there; he was standing by the mango tree. They were all looking in the direction of Florentino Dulay's house which was about a meter to the south from where he was. He also saw Oscar Ibao, another son of Warlito, striding towards Dulay's hut. As soon as he reached the hut Oscar lifted the sawali mat near the wall and hurled something inside. Oscar then scurried off towards the nearby creek with Roche following him. Seconds later, a loud explosion shook the entire neighborhood and Teresita Dulay's screams broke into the night. Ruben Meriales, rushed outside. He ran towards Florentino's hut but was deterred by darkness. He returned home to take his flashlight and raced back to lend aid to Teresita. Inside the hut he was stunned by the terrifying gore that greeted him - a bloodied Florentino cradled in the arms of his weeping widow, Norwela and Nissan lying side by side on a cot both doused in blood, and a motionless Norma whose head was oozing with blood. Realizing the exigency of the situation, he left the crime scene to borrow the jeepney of Brgy. Kagawad Edgardo Marquez for the hapless victims. The neighbors milling around at once gave up hope on Florentino so that only Norwela, Nissan and Noemi were loaded in the jeepney and rushed to the Eastern Pangasinan District Hospital. On their way, Norwela who had injuries on her chest and lower appendage died. Nissan who was five (5) years old and the youngest of the victims died later due to "shock from pains" caused by the shrapnel wounds in her left shoulder, abdomen and lower extremities.[4] Noemi luckily survived. Her attending physician, Dr. Emiliano Subido, testified that Noemi was semi-conscious and vomiting although ambulatory at the time he examined her. But due to the seriousness of her wounds and the hospital's lack of facilities she was taken to another hospital in Dagupan City.[5] In the course of their investigation, the policemen questioned the people who might have witnessed the carnage. Fearful however that the culprits would return, Ruben Meriales refused to give any statement but intimated to Police Officer Guillermo Osio that he would go to the police station after the burial. On 4 September 1996, or a week later, Ruben kept his promise and went to the police station where he gave his statement to Police Officer Osio. He named Jaime Carpo, Warlito lbao, Oscar lbao and Roche Ibao as the perpetrators of the crime. He further said that Florentino was killed because he was about to testify against Roche Ibao for the murder of his brother Delfin Meriales.[6] On 3 October 1996, solely on the basis of Ruben's testimony, a criminal complaint for the murder of Florentino Dulay and his two (2) daughters Norwela, and Nissan as well as the frustrated murder of his daughter Noemi was filed against Jaime Carpo,

Warlito Ibao, Oscar Ibao and Roche Ibao. Warrants for their immediate arrest were issued by the municipal circuit trial court. On 25 October 1996 Jaime Carpo was taken into custody by the police, while Roche Ibao eluded arrest until 9 December 1996 when he was apprehended by police officers in La Union. With Roche's arrest, Oscar and Warlito realized the futility of hiding and surrendered themselves to the National Bureau of Investigation (NBI) in La Union. At the trial, the prosecution presented Ruben, Noemi, Dr. Rosalina O. Victorio, Dr. Emiliano Subido and Police Officers Virgilio dela Cruz, Jovencio Tapac and Guillermo Osio as witnesses. Police Officer Osio testified that on the night of 25 August 1996 after receiving a report of an explosion in Brgy. Baligayan, he together with Police Officers Julius Aurora, Ricardo Lugares and Jovencio Tapac immediately responded. They were able to gather several grenade shrapnels and a grenade shifting lever from the crime scene. He spoke with the weeping Teresita Dulay who told him that she suspected the accused of having perpetrated the assault. He likewise conferred with Ruben Meriales who named the same set of suspects and who promised to give his statement to the police after the funeral. After speaking with Teresita and Ruben, he summoned his colleagues to go with him to Warlito Ibao's house which was just across the road. Warlitos house was dark and its front door was locked. He called out but there was no answer. They then proceeded to Oscar's house which was also padlocked and unoccupied. He went to Roche's house and peeped inside before they left.[7] Against their positive identification by Ruben, the four (4) accused interposed alibi claiming that they were somewhere else when the Dulay hut was blasted. They likewise assailed Ruben's testimony for being a fabrication and insisted that he lied to get back at them because Roche was a suspect in the killing of his brother Delfin Meriales. Jaime and his wife Veronica Carpo were one in testifying that in the evening of 25 August 1995 Jaime was at home in Brgy. Libsong, a hundred and fifty (150) meters away from the house of the Dulays in Brgy. Baligayan. When he heard the loud explosion, he summoned his tanods to check whether the blast happened within their barangay. When he learned that the explosion occurred in the adjoining Brgy. Baligayan, he went home to sleep. Brgy. Baligayan is separated from his barangay by a creek and could be reached in ten (10) minutes. However, on the night of the incident, the creek was neck deep such that one had to make a detour through a mountainous route for about thirty (30) minutes to reach Brgy. Baligayan.[8] Jaime testified that Ruben implicated him because the latter was angry at him. Ruben's grudge supposedly started when Jaime sided with the Ibaos in the murder case instituted by the Merialeses against Roche for the death of Delfin

Meriales. As a matter of fact on 10 December 1996 while he was incarcerated at the Balungao District Jail, Ruben supposedly visited him asking his forgiveness for having named him as one of the perpetrators of the crime. Ruben subsequently pleaded with him to reveal the names of those responsible but when he claimed ignorance, Ruben left in a huff. Warlito, Oscar and Roche Ibao testified that on the night of the explosion their family was having a farewell party for the family's only girl Maribel Ibao who was leaving for Hongkong. They heard the blast but they did not bother to check. They denied having heard the police officers call for them an hour after the explosion. Roche further asserted that he did not have a house in Brgy. Baligayan as reported because he lived with his parents-in-law in Brgy. Libsong. However, on the night of the blast, he slept at his parents' house as all of his siblings and their families were there. He only learned of the bloodbath the following morning when they went home to his in-laws. His wife Jovelyn corroborated his testimony in the same manner that Remedios supported the story of her husband Warlito.[9] In convicting Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche Ibao of the multiple murder of Florentino, Norwela and Nissan Dulay and the attempted murder of Noemi Dulay the trial Court gave full credit to the testimony of Ruben. [10] It accepted his straightforward testimony and ruled that "at no instance throughout the twin testimonies of Meriales did the Court notice a twitch of falsehood on his lips."[11] Accordingly, in accordance with Sec. 6, RA 7659, and Art. 48 of The Revised Penal Code the trial court imposed upon all of the accused the supreme penalty of death and ordered them to solidarily indemnify the heirs of the deceased as well as Noemi Dulay in the amount of P600,000.00.[12] Forthwith, the case was elevated to this Court for automatic review. After the filing of briefs, the accused filed an Addendum to Appellant's Brief urging that the favorable results of their lie detector tests with the NBI be admitted into the records.[13] A lie detector test is based on the theory that an individual will undergo physiological changes, capable of being monitored by sensors attached to his body, when he is not telling the truth. The Court does not put credit and faith on the result of a lie detector test inasmuch as it has not been accepted by the scientific community as an accurate means of ascertaining truth or deception.[14] The explosion by means of a hand grenade on the night of 25 August 1996 resulting in the death of Florentino, Norwela and Nissan Dulay and in the wounding of Noemi Dulay is an admitted fact. The identity of the perpetrators, as tenaciously questioned by the accused, depends upon the credibility of Ruben Meriales. In this appeal, accused-appellants challenge the veracity of the testimony of Ruben Meriales primarily on two (2) grounds: first, Ruben's testimony in court is

different from and is contradictory to his affidavit of 4 October 1996; and second, Ruben is not a disinterested witness because he has a grudge against the Ibaos. Consistent with giving due deference to the observations of the trial court on credibility of witnesses, we agree with the court a quo when it believed Ruben Meriales more than the defense witnesses.[15] Indeed, the trial court is best equipped to make an assessment of witnesses, and its factual findings are generally not disturbed on appeal unless it has overlooked, misunderstood or disregarded important facts,[16] which is not true in the present case. The twin arguments therefore raised by accused-appellants against the testimony of Ruben Meriales are devoid of merit. A scrutiny of the records reveals that his testimony is not inconsistent with his affidavit of 4 October 1996 inasmuch as the former merely supplied the details of the event which the latter failed to disclose. But assuming that there was any inconsistency, it is settled that whenever an affidavit contradicts a testimony given in court the latter commands greater respect. [17] Such inconsistency is unimportant and would not even discredit a fallible witness. [18] The mere fact that Ruben admitted harboring resentment against the Ibaos for the murder of his brother Delfin does not confirm that he fabricated his story. His frankness in admitting his resentment against the Ibaos should even be considered in his favor.[19] There is likewise nothing unnatural in Ruben's attitude of concealing himself behind the kitchen wall instead of warning the Dulays of the looming danger to their lives. It is a well-known fact that persons react differently to different situations there may be some who will respond violently to an impending danger while there may be others who will simply assume a cravenly demeanor. In this case, Ruben was ruled by his fear rather than by his reason, but for this alone, his credibility should not be doubted. Apropos Jaime's imputation that Ruben had admitted to him while in jail that he lied in his testimony, we find this accusation farcical as nothing was ever offered in support thereof. The lone corroborative testimony, which was that of Roche, does not inspire belief since Roche himself admitted overhearing the conversation while Jaime together with other prisoners was constructing a hut outside of his cell at about three (3) meters away. As correctly hinted by the prosecution, the noise generated by the construction made it unlikely for Roche to hear conversations three (3) meters away.[20] The defense proffered by the accused is alibi. But this is futile. By his own admission, Jaime was only a hundred and fifty (150) meters away from the scene of the crime. In fact, it would only take him thirty (30) minutes, at the most, to be at the place of the Dulays. More so for the Ibaos who acknowledged that they were having a party just a stone's throw away from the crime scene at the time of the explosion. Curiously though, if they were indeed reveling inside their house on that fateful night, then we

cannot comprehend why they did not go out to investigate after hearing the blast. Besides, it was rather strange for the Ibaos not to have joined their neighbors who had instantaneously milled outside to view the mayhem. Their conduct indeed betrayed them. Further, the immediate flight and tarriance of the Ibaos to La Union until Roche's arrest cannot but demonstrate their guilt and desire to evade prosecution.[21] The trial court also correctly ruled that accused-appellants conspired in perpetrating the offense charged. From the detailed account of Ruben, Jaime and Warlito positioned themselves near the hay barn while Roche casually stood by the mango tree. As observed by the trial court, the presence of Jaime, Warlito and Roche inescapably gave encouragement and a sense of security to Oscar, the group's preceptor. Surely, the latter was emboldened to commit the crime knowing that his co-conspirators were not far behind. Under the doctrine enunciated in People v. Tayo,[22] the crime committed may otherwise be more approriately denominated as murder qualified by explosion rather than by treachery. However, since it was treachery that is alleged in the Information and appreciated by the trial court, the explosion of the grenade which resulted in the death of Florentino, Norwela and Nissan, and the wounding of Noemi can only be multiple murder complexed with attempted murder.[23] The crime committed against Noemi Dulay was correctly denominated by the trial court as attempted murder considering that none of her injuries was fatal. Her attending physician even made conflicting statements in the assessment of her wounds, to wit: although he said that Noemi could have died from the shrapnel wound in her head, he specifically ruled out the possibility of "intercerebral hemorrhage"[24] and despite the seriousness of the possible complications of her injuries she would suffer from physical incapacity for only ten (10) to fourteen (14) days. As none of her wounds was severe as to cause her death, accused-appellants not having performed all the acts of execution that would have brought it about, the crime is only attempted murder.[25] Since the three (3) murders and attempted murder were produced by a single act, namely, the explosion caused by the hurling of a grenade into the bedroom of the Dulays, the case comes under Art. 48 of The Revised Penal Code on complex crimes. Article 48 provides that the penalty for the more serious crime, which in the present case is reclusion perpetua to death, should be applied in its maximum period. As the crime was complexed, the death penalty was properly imposed by the trial court. At this point, we take exception to the court a quo's award of damages in the "negotiated amount of P600,00.00." It appears that under the auspices of the trial

court counsel for the defense entered into an oral compromise with the public prosecutor, which was subsequently ratified by the private complainant, limiting the amount of civil liability to P600,000.00. We note the discourse between the court and the counsel for both parties regarding the award.
PROS. CORPUZ: x x x x (W)e would like to enter into stipulation the civil aspect of the case. COURT: Are the accused confident that they could be acquitted in this case? Atty Sanglay? ATTY. SANGLAY: I think so, your Honor. COURT: What about Atty. Rafael? ATTY. RAFAEL: We are confident, your Honor. COURT: All right. So you can easily stipulate. First of all, how much do you want Fiscal? PROS. CORPUZ: P1,282,740.00, your Honor x x x x COURT: x x x x Agree gentlemen of the defense? ATTY. SANGLAY: P600,000.00, your Honor. COURT: Do you agree Fiscal? PROS. CORPUZ: Yes, your Honor. COURT: All right so P600,000.00 is the agreed liquidated amount in case of conviction without necessarily having to interpret this stipulation as admission of guilt on the part of any of the accused. All right so we will dispense with the testimony on the civil aspect x x x x COURT: x x x x Are you the private complainant in this case? TERESITA DULAY: Yes, sir. COURT: If the accused get convicted and I will hold them severally liable for you of damages in the liquidated sum of P600,000.00 as agreed upon by the counsel, will you be satisfied? x x x x TERESITA: Yes, sir. COURT: So let that be of record. Will you sign the note so that there will be evidence. (At this juncture private complainant Teresita Dulay affixed her signature at the bottom right margin of the stenographic notes page 2 hereof).[26]

Article 1878 of the Civil Code and Sec. 23 of Rule 138 of the Rules of Court set forth the attorney's power to compromise. Under Art. 1878 of the Civil Code, a special power of attorney is necessary "to compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive objections to the venue of an action or to abandon a prescription already acquired." On the other hand, Sec. 23, Rule 138 of the Rules of Court provides, "(a)ttorneys have authority to bind their clients in any case by any agreement in relation thereto made in writing, and in taking appeal, and in all matters of ordinary judicial procedure, but they cannot, without special authority, compromise their clients' litigation or receive anything in discharge of their clients' claims but the full amount in cash."

The requirements under both provisions are met when there is a clear mandate expressly given, by the principal to his lawyer specifically authorizing the performance of an act.[27] It has not escaped our attention that in the present case counsel for both parties had no special power of attorney from their clients to enter into a compromise. However, insofar as Teresita was concerned, she was apprised of the agreement and in fact had signed her name as instructed by the court, thereby tacitly ratifying the same. As for accused-appellants, the aforecited dialogue between the court and counsel does not show that they were ever consulted regarding the proposed settlement. In the absence of a special power of attorney given by accusedappellants to their counsel, the latter can neither bind nor compromise his clients' civil liability. Consequently, since Atty. Sanglay and Atty. Rafael had no specific power to compromise the civil liability of all accused-appellants, its approval by the trial court which did not take the precautionary measures to ensure the protection of the right of accused-appellants not to be deprived of their property without due process of law, could not legalize it. For being violative of existing law and jurisprudence, the settlement should not be given force and effect. In light of the foregoing, the award of damages must be set aside and a new one entered with all the circumstances of the case in mind. For the death of Florentino, Norwela and Nissan Dulay, civil indemnity at P50,000.00 each or a total amount of P50,000.00 is awarded to their heirs. This is in addition to the award of moral damages at an aggregate amount of P150,000.00 for their emotional and mental anguish. With respect to Noemi, an indemnity of P30,000.00 would be just and proper. All taken, an award of P330,000.00 is granted. Four (4) members of the Court maintain their position that RA 7659, insofar as it prescribes the death penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be accordingly imposed. WHEREFORE, the assailed Decision of the trial court finding accusedappellants JAIME CARPO, OSCAR IBAO, WARLITO IBAO and ROCHE IBAO GUILTY of the complex crime of multiple murder with attempted murder and sentencing them to the supreme penalty of death is AFFIRMED with the MODIFICATION that they are ordered to pay the heirs of the deceased Florentino, Norwela and Nissan, all surnamed Dulay, P50,000.00 as death indemnity and P50,000.00 as moral damages for each death or an aggregate amount of P300,00.00. In addition, accused-appellants are ordered to pay Noemi Dulay P30,000.00 as indemnity for her attempted murder. Costs against accused- appellants. In accordance with Sec. 25 of RA 7659, amending Art. 83 of The Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith

forwarded to the Office of the President for possible exercise of executive clemency or pardoning power. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur.

SECOND DIVISION

[G.R. No. 125901. March 8, 2001]

EDGARDO A. TIJING and BIENVENIDA R. TIJING, petitioners, vs. COURT OF APPEALS (Seventh Division) and ANGELITA DIAMANTE, respondents. DECISION
QUISUMBING, J.:

For review is the decision of the Court of Appeals dated March 6, 1996, in CAG.R. SP No. 39056, reversing the decision of the Regional Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr., allegedly the child of petitioners. Petitioners are husband and wife. They have six children. The youngest is Edgardo Tijing, Jr., who was born on April 27, 1989, at the clinic of midwife and registered nurse Lourdes Vasquez in Sta. Ana, Manila. Petitioner Bienvenida served as the laundrywoman of private respondent Angelita Diamante, then a resident of Tondo, Manila. According to Bienvenida in August 1989, Angelita went to her house to fetch her for an urgent laundry job. Since Bienvenida was on her way to do some marketing, she asked Angelita to wait until she returned. She also left her four-month old son, Edgardo, Jr., under the care of Angelita as she usually let Angelita take care of the child while Bienvenida was doing laundry. When Bienvenida returned from the market, Angelita and Edgardo, Jr., were gone. Bienvenida forthwith proceeded to Angelitas house in Tondo, Manila, but did not find them there. Angelitas maid told Bienvenida that her employer went out for a stroll and told Bienvenida to come back later. She returned to Angelitas house after three days, only to discover that Angelita had moved to another place. Bienvenida

then complained to her barangay chairman and also to the police who seemed unmoved by her pleas for assistance. Although estranged from her husband, Bienvenida could not imagine how her spouse would react to the disappearance of their youngest child and this made her problem even more serious. As fate would have it, Bienvenida and her husband reconciled and together, this time, they looked for their missing son in other places. Notwithstanding their serious efforts, they saw no traces of his whereabouts. Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez, allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy, Bulacan. Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for the first time after four years. She claims that the boy, who was pointed out to her by Benjamin Lopez, a brother of the late Tomas Lopez, was already named John Thomas Lopez.[1] She avers that Angelita refused to return to her the boy despite her demand to do so. Bienvenida and Edgardo filed their petition for habeas corpus with the trial court in order to recover their son. To substantiate their petition, petitioners presented two witnesses, namely, Lourdes Vasquez and Benjamin Lopez. The first witness, Vasquez, testified that she assisted in the delivery of one Edgardo Tijing, Jr. on April 27, 1989 at her clinic in Sta. Ana, Manila. She supported her testimony with her clinical records.[2]The second witness, Benjamin Lopez, declared that his brother, the late Tomas Lopez, could not have possibly fathered John Thomas Lopez as the latter was sterile. He recalled that Tomas met an accident and bumped his private part against the edge of a banca causing him excruciating pain and eventual loss of his child-bearing capacity. Benjamin further declared that Tomas admitted to him that John Thomas Lopez was only an adopted son and that he and Angelita were not blessed with children.[3] For her part, Angelita claimed that she is the natural mother of the child. She asserts that at age 42, she gave birth to John Thomas Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban in Singalong, Manila. She added, though, that she has two other children with her real husband, Angel Sanchez. [4] She said the birth of John Thomas was registered by her common-law husband, Tomas Lopez, with the local civil registrar of Manila on August 4, 1989. On March 10, 1995, the trial court concluded that since Angelita and her common-law husband could not have children, the alleged birth of John Thomas Lopez is an impossibility.[5] The trial court also held that the minor and Bienvenida showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person who is the natural child of petitioners. The trial court decreed:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered GRANTING the petition for Habeas Corpus, as such, respondent Angelita Diamante is ordered to immediately release from her personal custody minor John Thomas D. Lopez, and turn him over and/or surrender his person to petitioners, Spouses Edgardo A. Tijing and Bienvenida R. Tijing, immediately upon receipt hereof. Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the decision of this Court by assisting herein petitioners in the recovery of the person of their minor son, Edgardo Tijing Jr., the same person as John Thomas D. Lopez. SO ORDERED.[6] Angelita seasonably filed her notice of appeal.[7] Nonetheless, on August 3, 1994, the sheriff implemented the order of the trial court by taking custody of the minor. In his report, the sheriff stated that Angelita peacefully surrendered the minor and he turned over the custody of said child to petitioner Edgardo Tijing.[8] On appeal, the Court of Appeals reversed and set aside the decision rendered by the trial court. The appellate court expressed its doubts on the propriety of the habeas corpus. In its view, the evidence adduced by Bienvenida was not sufficient to establish that she was the mother of the minor. It ruled that the lower court erred in declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person,[9] and disposed of the case, thus: IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10, 1995 is hereby REVERSED, and a new one entered dismissing the petition in Spec. Proc. No. 94-71606, and directing the custody of the minor John Thomas Lopez to be returned to respondent Angelita Diamante, said minor having been under the care of said respondent at the time of the filing of the petition herein. SO ORDERED.[10] Petitioners sought reconsideration of the abovequoted decision which was denied. Hence, the instant petition alleging:
I

THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECLARED THAT THE PETITIONERS ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE QUESTION OF FILIATION THAT THE PETITIONERS HAD LIKEWISE PROVEN.
II

THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT DISMISSING THE PETITION FOR HABEAS CORPUS AND DIRECTING THAT THE CUSTODY OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN TO THE SAME MINOR AS EDGARDO R. TIJING, JR., BE RETURNED TO THE PRIVATE RESPONDENT.[11] In our view, the crucial issues for resolution are the following:
(1) Whether or not habeas corpus is the proper remedy? (2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person and is the son of petitioners?

We shall discuss the two issues together since they are closely related. The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. [12] Thus, it is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose of determining the right of custody over a child.[13] It must be stressed too that in habeas corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions including those as to identity of the person. In this case, the minors identity is crucial in determining the propriety of the writ sought. Thus, it must be resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the same minor named John Thomas Lopez, whom Angelita insists to be her offspring. We must first determine who between Bienvenida and Angelita is the minors biological mother. Evidence must necessarily be adduced to prove that two persons, initially thought of to be distinct and separate from each other, are indeed one and the same.[14] Petitioners must convincingly establish that the minor in whose behalf the application for the writ is made is the person upon whom they have rightful custody. If there is doubt on the identity of the minor in whose behalf the application for the writ is made, petitioners cannot invoke with certainty their right of custody over the said minor. True, it is not the function of this Court to examine and evaluate the probative value of all evidence presented to the concerned tribunal which formed the basis of its impugned decision, resolution or order.[15] But since the conclusions of the Court of Appeals contradict those of the trial court, this Court may scrutinize the evidence on

the record to determine which findings should be preferred as more conformable to the evidentiary facts. A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is sufficient to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr. First, there is evidence that Angelita could no longer bear children. From her very lips, she admitted that after the birth of her second child, she underwent ligation at the Martinez Hospital in 1970, before she lived with Tomas Lopez without the benefit of marriage in 1974. Assuming she had that ligation removed in 1978, as she claimed, she offered no evidence she gave birth to a child between 1978 to 1988 or for a period of ten years. The midwife who allegedly delivered the child was not presented in court. No clinical records, log book or discharge order from the clinic were ever submitted. Second, there is strong evidence which directly proves that Tomas Lopez is no longer capable of siring a son. Benjamin Lopez declared in court that his brother, Tomas, was sterile because of the accident and that Tomas admitted to him that John Thomas Lopez was only an adopted son. Moreover, Tomas Lopez and his legal wife, Maria Rapatan Lopez, had no children after almost fifteen years together. Though Tomas Lopez had lived with private respondent for fourteen years, they also bore no offspring. Third, we find unusual the fact that the birth certificate of John Thomas Lopez was filed by Tomas Lopez instead of the midwife and on August 4, 1989, four months after the alleged birth of the child. Under the law, the attending physician or midwife in attendance at birth should cause the registration of such birth. Only in default of the physician or midwife, can the parent register the birth of his child. The certificate must be filed with the local civil registrar within thirty days after the birth.[16] Significantly, the birth certificate of the child stated Tomas Lopez and private respondent were legally married on October 31, 1974, in Hagonoy, Bulacan, which is false because even private respondent had admitted she is a common-law wife.[17] This false entry puts to doubt the other data in said birth certificate. Fourth, the trial court observed several times that when the child and Bienvenida were both in court, the two had strong similarities in their faces, eyes, eyebrows and head shapes. Resemblance between a minor and his alleged parent is competent and material evidence to establish parentage.[18] Needless to stress, the trial courts conclusion should be given high respect, it having had the opportunity to observe the physical appearances of the minor and petitioner concerned.

Fifth, Lourdes Vasquez testified that she assisted in Bienvenidas giving birth to Edgardo Tijing, Jr., at her clinic. Unlike private respondent, she presented clinical records consisting of a log book, discharge order and the signatures of petitioners. All these considered, we are constrained to rule that subject minor is indeed the son of petitioners. The writ of habeas corpus is proper to regain custody of said child. A final note. Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test[19] for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UPNSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage.[20] Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge.[21] Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress. [22] Though it is not necessary in this case to resort to DNA testing, in future it would be useful to all concerned in the prompt resolution of parentage and identity issues. WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals is REVERSED and decision of the Regional Trial Court is REINSTATED. Costs against the private respondent. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

THIRD DIVISION

[G.R. No. 140011-16. March 12, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, TAQUIO MORATA y BIDOL, accused-appellant. DECISION

GONZAGA-REYES, J.:

vs. EUSTAQUIO

In a Decision dated July 28, 1999, the Regional Trial Court, Branch 63, Calabaga, Camarines Sur, convicted accused-appellant Eustaquio Morata (accused-appellant) of the two charges of rape out of the six rape charges filed against him by the victim, his sister-in-law, Marites Alamani (Marites). Accused-appellant now seeks exoneration from the two rape charges. The two charges of rape for which accused-appellant was convicted are embodied in these Informations in Criminal Case No. RTC98 220 and Criminal Case No. RTC98 224, which respectively read as follows:

INFORMATION The undersigned 4th Assistant Provincial Prosecutor of Camarines Sur upon a sworn complaint of the offended party Marites Alamani accuses EUSTAQUIO TAQUIO MORATA Y BIDOL of the crime of RAPE, defined and penalized under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, committed as follows: That during the month of April, 1997 at Barangay Antipolo, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Marites Alamani y Balimbing, an 11-year old (sic) minor, against her will and to her damage and prejudice. ACTS CONTRARY TO LAW.[1] INFORMATION The undersigned 4th Assistant Provincial Prosecutor of Camarines Sur upon a sworn complaint of the offended party Marites Alamani accuses EUSTAQUIO TAQUIO MORATA Y BIDOL of the crime of RAPE, defined and penalized under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, committed as follows: That on the 9th day of June, 1997 at midnight at Barangay Antipolo, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Marites Alamani y Balimbing, an 11-year old (sic) minor, against her will and to her damage and prejudice. ACTS CONTRARY TO LAW.[2]

Upon arraignment, accused-appellant pleaded not guilty. During trial, the prosecution presented Victoria Tagum, a social worker of the Lingap Center, Sorsogon, Sorsogon who conducted counseling sessions with the victim and prepared the case study report; Marites, the victim herself; Dr. Salvador V. Betito, Jr. (Dr. Betito), the physician who examined the victim; and Maria Myrna Sarate, another social worker. The defense for its part presented accusedappellant himself, Salve Morata, the sister-in-law of accused-appellant and Shirley Abiog, who knows both accused-appellant and Maritess. The Office of the Solicitor General (OSG) recounts the version of the prosecution of the rapes allegedly perpetrated by accused-appellant against the then 11-year-old victim in this manner:

Sometime in April 1997, about midnight, in appellants house, private complainant was roused from her sleep by the former who was in the act of undressing her. She was gripped with fear. Appellant ordered her to keep quiet and she did not have a choice as he gagged her by putting a handkerchief in her mouth. Her moves were also restrained as appellant held her hands and lay on top of her. Appellant then inserted his penis into private complainants vagina, causing pain in her genitalia. He warned her not to tell anybody about what had just happened. Then, appellant left private complainant, who was so scared. (TSN, June 26, 1998, pp. 3-7). Little did she know that her harrowing experience would be repeated many times over within the next couple of months. At a subsequent time, again about midnight in the house of appellant, private complainant was lying down when he approached her. He was holding an air rifle which he poked at her. Private complainant naturally got scared. After appellant undressed her and himself, he lay on top of her and attempted to insert his penis into her vagina. His sexual organ, however, touched only the outer part of her genitalia. Shortly, appellant left private complainant, crying in a corner. (TSN, June 26, 1998, pp. 8-11). At another time, private complainant was left home with appellant and his eldest child, Joey. Emma[3] left the house early in the morning of that day to bring her younger child to the physician. Appellant again attempted to force himself on private complainant but she was able to bite his ear causing him to stop what he was doing and leave. (TSN, June 26, 1998, pp. 12-13). There was also a time when appellant approached private complainant while she was cleaning the house. He lifted her, making her lie on the floor in a room. Both of them were wearing shorts. Positioning himself on top of private complainant, appellant was in the course of removing her clothes, as he in fact had pushed down her shorts below the waistline. His dastardly act, however, was interrupted by Joey, who hit him at the buttocks with a coconut stalk. (TSN, June 26, 1998, pp. 14-17).

Appellant subjected private complainant to his vile sexual designs on other occasions, the last sexual intercourse he had against her will occurring on June 9, 1997. It was then midnight when he took the liberty of entering the bedroom of private complainant and again forced himself on her. (TSN, June 26, 1998, pp. 22-23).[4]
Accused-appellant maintained that he did not rape Marites and interposed the defense of denial. On the alleged dates of the rapes, April 1997 and June 9, 1997, accused-appellant claimed that he went to sleep at 7:00 p.m. and wake up 6:00 a.m. the next day. Accusedappellant attributed to another person the rapes committed against Marites. Allegedly, it was Mariano Espartines, also a brother-in-law of Marites, who brought Marites to a grassy place and defiled her. Accused-appellant imputed ill motive on the part of Marites for filing the charges of rape against him. According to accused-appellant, he once spanked Marites after he found out that it was she who had tied a rope around his left ankle with the end of the rope tied to the post of the bed while he was asleep. After trial, the court a quo rendered the now assailed decision the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, for failure of the prosecution to prove beyond reasonable doubt the guilt of the accused in Crim. Cases Nos. RTC98-219, 221, 222 and 223, accused Eustaquio Morata is hereby ACQUITTED of the offense charged. The prosecution having proven the guilt of the accused beyond reasonable doubt in Crim. Cases Nos. RTC98-220 and 224, the accused Eustaquio Morata is hereby found guilty of the offense of rape. He is hereby sentenced to suffer the following penalties: 1. In Crim. Case No. RTC98-220, he is sentenced to suffer the penalty of Reclusion Perpetua and to indemnify the victim Marites Alamani the amount of P50,000.00; 2. In Crim. Case No. RTC98-224, he is sentenced to suffer the penalty of Relcusion Perpetua and to indemnify the victim Marites Alamani the amount of P50,000.00; 3. No pronouncement as to costs. SO ORDERED.[5]
In this appeal, accused-appellant anchors his prayer for an acquittal on this lone assignment of error:

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF TWO (2) COUNTS OF RAPE.[6]
Accused-appellant calls attention to the pronouncement of the trial court that he was charged with six counts of rape and was being acquitted of four and convicted of only two. Accusedappellant then argues that he should have been consequently acquitted of the two other remaining

charges because Marites narrated only four of the alleged rapes. The following portions of the direct testimony of Marites supposedly proves his claim:
Pros. Cu: Q: You have already told us at least 4 incidents which has (sic) a bearing in there (sic) cases. Marites Alamani, do you still have other complaints against Eustaquio Morata aside from these cases which you have already related? No more, sir.

A:

Pros. Cu: That would be all, your Honor. (TSN, June 26, 1998, pp. 18-19)[7]

Accused-appellant limits his arguments in this appeal for the reversal of the assailed judgment of conviction to the foregoing premise. He concludes that his acquittal should have been forthcoming considering that there is no other remaining evidence against him. The appeal is partially meritorious. The testimonies of witnesses must be examined in their entirety and must not be merely selected to conveniently suit the claims of a party. In this case, while Marites narrated in her testimony only four of the six counts of rape, two of these four instances of rape she testified on included the rape incidents in April 1997 and on June 9, 1997 for which accused-appellant was convicted. Admittedly, during direct examination, Marites was unable to recall the exact dates when the rapes occurred, except for the year, which is 1997. However, on cross-examination, she affirmed some portions of the sworn statements she had previously made, statements that pertain specifically to the rapes committed in April 1997 and on June 9, 1997. The confirmation of Marites in open court that the rapes happened in April 1997 and on June 9, 1997 weakens the contention of accused-appellant that these two charges are part of the four charges for which the trial court acquitted him. More importantly, the trial court clearly set out in its decision the respective criminal charges for which accused-appellant was being acquitted and convicted. The trial court expressly declared that it was acquitting accused-appellant from the rape charges in Criminal Case Nos. RTC 98-219, 221, 222 and 223 on the ground that the prosecution failed to prove beyond reasonable doubt the guilt of the accused.[8] Equally categorical was the ruling of the trial court holding accused-appellant guilty of the rapes charged in Criminal Case Nos. RTC 98-220 and 224, the prosecution having proven beyond reasonable doubt the guilt of accusedappellant.[9]Criminal Case Nos. RTC 98-220 and 224 respectively cover the rapes that occurred in April 1997 and on June 9, 1997. Thus, accused-appellant cannot claim that the appealed cases are included in the four rape charges for which he was acquitted considering that Marites testified on the two rape charges now under review and the trial court made it quite clear as to which particular cases he was being convicted for. In convicting accused-appellant, the trial court accorded great weight to the testimony of Marites. While the testimony of Marites is far from being perfect in all details, the imperfections tend to reinforce the unrehearsed character of her testimony. The fact that Marites consistently pointed to accused-appellant as the one who raped her undermines the defense of accused-

appellant consisting merely of bare denial. Denial is an intrinsically weak defense which must be buttressed by strong evidence of non-culpability to merit credence.[10] Furthermore, between an affirmative testimony and a negative testimony, the former is considered far stronger than the latter, especially so when it comes from the mouth of a credible witness.[11] Accused-appellants attempt to ascribe ill motive on the part of Marites for filing the charges is a feeble one. It is inconceivable for Marites, a child victim, to have woven an intricate story of defilement if only to allegedly get even with accused-appellant for spanking her because of a prank she had played on him. It bears stressing that when it comes to the issue of credibility, the trial court judge is in the best position to rule on this matter considering that he has the vantage point of observing first hand the demeanor and deportment of the witnesses.[12] In the absence of proof that the trial court had overlooked or disregarded arbitrarily certain facts and circumstances of significance in the case, as in the case at bar, its appreciation of the credibility of witnesses will not be altered on review.[13] It must also be pointed out that Marites was only twelve years old when she testified. We have held that when the offended parties are young and immature girls from the ages of twelve to sixteen, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability but also the shame and embarrassment to which they would be exposed by court trial if the matter about which they testified is not true.[14] Based on the evidence on hand, the trial court correctly convicted accused-appellant of the first incident of rape that occurred in April 1997. The following portions of the testimony of Marites narrates the first incident of rape, viz:
PROS. CU: The purpose for which we offer the testimony of Marites Alamani is to prove that on several occasions she was raped by herein accused Eustaquio Morata your Honor. The first incident occurred way back in the month of April, 1997; the other incident your Honor, occurred in the year 1997 also but which the witness seemed to have not a good recollection as to the specific dates when this occurred but the witness had a vivid recollection of the last incident of rape against her which might have happened sometime June 1997, your Honor. The present witness will also testify that force and intimidation attended the commission of the rape incidents your Honor. Lastly, your Honor, she will testify on all other points which are material to the main purpose for which we offer her testimony. With the permission of the Honorable Court. COURT: Proceed. PROS. CU: Do you know Eustaquio Morata, Marites Alamani? A: Q: A: Q: Yes, sir. Why do you know him? He is my brother-in-law. And do you know Eustaquio Moratas wife?

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q:

Yes, sir. Who is the wife of Eustaquio Morata? Ate Emma. How are you related to this Ate Emma? She is my sister (sic) sir. Do you live with your Ate Emma sometime April 1997? Yes, sir. Presently, Marites Alamani, under whose care are you now? DSWD. Do you know the person of Victoria Tagum? No, sir. Do you know the Social Welfare officer who is in charge to (sic) you at the DSWD Center for Girls at Sorsogon? Yes, sir. Mama Vicky. Do you know the real complete name of Mama Vicky? No, sir. Marites Alamani, what is your complaint if any against Eustaquio Morata? He undress (sic) me sir. And in what place did that happen Marites Alamani? At our house sir. Where, exactly? In Antipolo. Timambac, are your referring to that place? Yes, sir. When this incident happened, was it in the morning, afternoon or in the evening?

ATTY. TAYER: Objection. The question is leading. COURT: Sustained. PROS. CU: Q: A: Q: What time was it in your estimate that this incident took place? Midnight. This took place on April 1997?

ATTY. TAYER: Objection, your Honor, leading. COURT: Sustained. Q: A: Q: A: A: A: Q: A: Q: A: Q: When did this happen Marites Alamani? I cannot remember anymore sir. What about the year, was it this year or last year? Last year sir, 1997. (sic) Tell us Miss Marites Alamani, immediately before you were undress (sic) by Eustaquio Morata on that night, what if anything were you doing? I was sleeping sir. So, when you were undress (sic) by Eustaquio Morata, what if anything did he tell you? He told me sir to keep quiete (sic) because my ate (sic) might be awakened. And what if anything did you feel when you were told that way? I felt pain. Now, Marites Alamani, when you were being undressed (sic) by Eustaquio Morata what if anything did you feel?

ATTY. TAYER: Make it of record that the witness find (sic) a hard time in answering the question. A: I got scared sir.

PROS. CU: Q: A: Q: What if anything did Eustaquio Morata do after you were undressed already? He placed himself on top of me sir. And when he placed himself on top of you (sic) was he still wearing his dress or not?

ATTY. TAYER: Leading. COURT: Sustained. PROS. CU: Q: A: Q: A: When Eustaquio Morata placed himself on top of you, what if anything did you do next? He was (sic) inserting his penis into my vagina. Was he able to insert his penis into your vagina? Only a little sir.

Q: A: Q:

What if anything did you feel when he has slightly penetrated his penis into your private organ? It is (sic) painful sir. In what part is (sic) it painful?

PROS. CU: I think the presence of Atty. Tayer is . . . COURT: The voice of the witness is very low, that is why Atty. Tayer is there. WITNESS: A: My vagina.

PROS. CU: Q: Now, why did you not shout Marites Alamani when accused Eustaquio Morata placed himself on top of you and inserted slightly his penis into your vagina?

ATTY. TAYER: Objection, there is no basis. It is only presuming that the witness did not shout, when there is no testimony that she did not shout. COURT: Lay the basis. PROS. CU: Q: A: Q: A: Q: A: Q: A: When he undressed you and he placed (sic) on top of you, (sic) inserted his penis slightly into your vagina, did you shout? I could not shout sir (sic) because there was a hankie placed on my mouth. Who placed that hankie on your mouth? Eustaquio Morata, sir. Do you still recall how this hankie (sic) tied on your mouth? Yes, sir. Marites Alamani, using this hankie as a medium, please demonstrate to us how this hankie (sic) placed by Eustaquio Morata in your mouth? The hankie was used to gag my mouth.

ATTY. TAYER: Q: As remembered by this representation, the witness just placed the folded handkerchief and placed it on her mouth parallel to the lips and while the handkerchief is being handled by the hands of the witness in the opposite direction.

PROS. CU: Q: Was this handkerchief tied around your mouth and jaw?

ATTY. TAYER:

The handkerchief was tied around his ... COURT: Witness may answer. WITNESS: A: Yes, sir.

PROS. CU: Q: A: Q: A: Q: A: Q: Who tied it? He, sir. What is the name of this person who tied this hankie on your mouth? Eustaquio Morata, sir. How long do you think was Eustaquio Morata on top of you (sic) inserting his penis into your vagina? Not very long sir. And did you cry?

ATTY. TAYER: Objection, your Honor. Leading. COURT: Sustained. PROS. CU: Q: A: What if anything was happening to you when Eustaquio Morata undressed you, placed (sic) on top of you and inserted his penis into your vagina? I could not move because my hands were being held by him.

PROS. CU: Q: A: Q: A: Q: A: Q: And immediately before Eustaquio Morata left you, what if anything did he tell you? That if ever I told anybody about what happened to me he will kill me. Having been threatened by Eustaquio Morata that if you tell what happened to you on that night, he will kill you, what if anything did you feel when he said that to you? I got scared sir. If Eustaquio Morata is around in court can you be able to identify him? Yes, sir. Please point at Eustaquio Morata whom you alleged undress (sic) you, placed (sic) on top of you and slightly inserted his penis into your vagina?

INTERPRETER: Witness pointed to the person who when asked his name answered Eustaquio Morata.[15]

True, Marites affirmed on cross-examination a portion of her affidavit wherein she stated that there was no penile penetration in the rape that took place in April 1997. However, Marites confirmed on direct examination that accused-appellant slightly inserted his penis into her vagina and that she felt pain. The affirmation of Marites on cross-examination that she had made said statements in her affidavit cannot prevail over her testimony in open court detailing the consummation of this first incident of rape. Sworn statements or affidavits are generally subordinated in importance to open court declaration because the former are often executed when an affiants mental faculties are not in such a state as to afford the affiant a fair opportunity of narrating in full the incident which has transpired.[16] More so in this case when the affiant is a child. It can be reasonably assumed that at the time Marites executed her affidavit she was not aware of the extent of the penetration; nonetheless, her straightforward testimony in court indicates that the rape passed the stage of consummation. It is doctrinal that penetration, no matter how slight, or the mere introduction of the male organ into the labia of the pudenda constitutes carnal knowledge.[17] Hence, even if the penetration in this case is only slight, the fact that Marites felt pain points to the conclusion that the rape was consummated.[18] This conclusion is supported by the testimony of Dr. Betito, the medico-legal who examined Marites. Dr. Betito testified that Marites vaginal orifice easily admitted two fingers when it would have been difficult to insert a foreign object in the sexual organ of a girl her age. Based on these findings, Dr. Betito concluded that Marites has had sexual intercourse[19] and that she could have lost her virginity on the first incident of rape.[20] However, we are constrained to acquit accused-appellant in Criminal Case No. RTC-98 224, the case covering the last rape allegedly committed by accused-appellant against Marites on June 9, 1997. We have searched in vain for evidence to prove that accused-appellant defiled Marites on said date but the records simply fail to support a finding of conviction. First, the testimony of Marites narrating the last incident of rape does little to establish the crime charged. Marites testified that accused-appellant was unable to undress her as Joey, her nephew, interrupted them and struck accused-appellants butt with a coconut stalk.[21] When asked what happened next, Marites merely answered No more sir.[22] Clearly, the precipitate interruption of Joey foiled the attempt of accused-appellant to rape Marites. Second, we cannot convict accused-appellant for the June 9, 1997 charge of rape if the sole basis is the affirmation of Marites on cross-examination that she executed an affidavit stating that from June 1 to 9, 1997, accused-appellant entered her bedroom and repeatedly had sexual intercourse with her. What Marites merely affirmed was the fact that she executed said affidavit; however, to prove the guilt of accused-appellant beyond reasonable doubt for the June 9, 1997 rape of Marites, would require more than an affirmation. Nor can we inferentially conclude that the two other rapes narrated by Marites refer to the June 9, 1997 rape charge when Marites could not recall when these two alleged episodes of rape took place. To do so would amount to a conviction by conjecture. We cannot over emphasize the basic tenet that in criminal cases, the prosecution has the burden of proving every element of the crime charged specifically carnal knowledge in rape cases. For the June 9, 1997 charge of rape, the failure of the prosecution to prove beyond reasonable doubt that accused-appellant had carnal knowledge of Marites on this specific date is fatal to the conviction of accused-appellant. We are precluded from ruling for a conviction when the evidence fails to support the specific allegations in the Information. True, time is not an

essential element of the crime of rape.[23] However, the date assumes importance when it creates serious doubt on the commission of the rape or the sufficiency of the evidence for purposes of conviction, as in the case at bar.[24] The conviction of accused-appellant for the April 1997 rape charge does not carry with it the penalty of death because only the minority of the victim was alleged in the Information while the relationship of accused-appellant with the victim was not alleged. The twin special qualifying circumstances of the victims age and the relationship between the victim and the culprit are part of the seven modes of committing rape introduced by Republic Act 7659, the proper allegation of which would warrant the imposition of the death penalty.[25] For the rape to be qualified as heinous, both the circumstances of the minority of the victim and her relationship with the offender must be alleged in the information.[26] The Office of the Solicitor General correctly pointed out that the award of damages by the trial court consisting only of civil indemnity in the amount of P50,000.00 for each count of rape is not in line with current rulings. Aside from the P50,000.00 civil indemnity, moral damages in the amount of P50,000.00 must be automatically granted in rape cases, separate and distinct from the indemnity.[27] Hence, in addition to the P50,000.00 indemnity awarded by the trial court in Crim. Case No. RTC-98 220, Marites is also entitled to moral damages worth P50,000.00. WHEREFORE, the appealed judgment is AFFIRMED insofar as it found accusedappellant Eustaquio Taquio Morata y Bidol guilty beyond reasonable doubt of the crime of rape in Criminal Case No. RTC-98 220, and sentencing him to suffer the penalty of reclusion perpetua, but it is MODIFIED in that he is ordered to pay civil indemnity to Marites Alamani in the amount of P50,000.00 and another P50,000.00 as moral damages. Accused-appellant is ACQUITTED of the rape charged in Criminal Case No. RTC-98 224 for the failure of the prosecution to prove beyond reasonable doubt the guilt of accused-appellant. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

SECOND DIVISION

[G.R. No. 136731. January 18, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR ROBLES y COMBATE, accused-appellant. DECISION
MENDOZA, J.: This is an appeal from the decision,[1] dated April 14, 1998, of the Regional Trial Court, Branch 12, Lipa City, finding accused-appellant Cesar Robles y Combate guilty of murder and sentencing him to suffer the penalty of reclusion perpetua, to indemnify the heirs of Antonio

Lumbera in the amount of P50,000.00 for his death, and to pay to the said heirs the amount of P44,000.00 as actual damages, P20,000.00 as moral damages, and the costs. The information[2] against the accused-appellant alleged:

That on or about the 4th day of April, 1987 at about 11:30 a.m. at P. Torres Street, Lipa City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, while armed with bladed weapon (balisong), with intent to kill, without justifiable cause, with treachery and evident premeditation, did then and there willfully, unlawfully, and feloniously attack, assault and stab with said deadly weapon one ANTONIO LUMBERA suddenly and without warning, thereby inflicting upon the latter stab wound on the abdomen which directly caused his death. CONTRARY TO LAW.
When arraigned, accused-appellant pleaded not guilty,[3] where-upon trial was held. The prosecution presented as witnesses Naxinsino Lumbera, the attending physician Dr. Nemesio K. Villa, and Josefa Robles. Accused-appellant testified in his own behalf. Lumbera is a nephew[4] of the deceased. He testified that on April 4, 1987, at 11:30 a.m., he was at a jeepney terminal on P. Torres St., Lipa City, waiting for a ride home to San Francisco, Lipa City. According to him, he saw the victim Antonio Lumbera hanging on to the rear portion of a jeepney which was bound for San Celestino when accused-appellant Cesar Robles came from behind and stabbed him (the victim) once on his right chest with a balisong and then ran away.[5] Lumbera claimed he was four meters away from the victim when the incident happened. According to him, his uncle fell to the ground and was later taken to the Villa Hospital in Lipa City by other onlookers. After going to the hospital, he went to the barrio to inform their relatives of the incident.[6] Dr. Nemesio Villa attended to the victim. The victim was operated on, but he went into cardiac arrest and died shortly thereafter.[7] Dr. Villa testified ten years after the incident. For this reason, he said that in testifying he was relying on what remained of the medical records of the case and that, based on these records, the victim died of two stab wounds: one on the left chest wall and the other at the back, to the left of the posterior mid-line.[8] The victims widow, Josefa Robles, testified as to the amount spent on funeral expenses. However, all she could present was a list she dictated to her daughter. She could not show any receipt as proof of the alleged transactions. As already stated, accused-appellant testified in his defense. He denied having killed Antonio Lumbera. He claimed that at 7:30 in the morning on April 4, 1987, he was in Dallas Mountain in Labo, Camarines Norte, mining for gold. His daily schedule was going home to Barangay Masalong, Labo, Camarines Norte at 11:30 for lunch and returning to the mine at 1:30 in the afternoon.[9] Accused-appellant claimed that to go from Labo, Camarines Norte to Lipa City and back would take about one day of travel.[10] Accused-appellant claimed that he and Naxinsino Lumbera, the sole eyewitness, were not in good terms. According to accused-appellant, Naxinsino harbored some resentment against him

because Naxinsino used to buy coconuts harvested from the land of accused-appellants father, but because he was unable to pay a huge debt incurred in 1996, accused-appellant took his place as buyer of coconuts. On April 14, 1998, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, the court finds the accused, CESAR ROBLES y COMBATE, guilty beyond reasonable doubt, as principal by direct participation, of the crime of Murder, as defined and penalized under Article 248 of the Revised Penal Code and sentences him to suffer the penalty of Reclusion Perpetua, to indemnify the heirs of Antonio Lumbera in the amount of P50,000.00 for his death, to pay the amount of P44,000.00, as actual damages, to pay the amount of P20,000.00 as moral damages and to pay the costs.[11]
Accused-appellant contends that the trial court erred: (1) in giving credence to the testimony of Naxinsino Lumbera; (2) in rejecting the defense of alibi interposed by him which is more credible; and (3) assuming arguendo that accused-appellant killed the victim, in holding that there is sufficient evidence to prove that the killing was attended by the qualifying circumstance of treachery so as to render him liable for murder. We find this appeal to be well taken. First. Naxinsino Lumberas testimony says too little too late. Lumbera did not give any statement to the police despite the fact that he allegedly saw the killing of his uncle. For ten years he kept quiet about the incident. Although he explained it was because he was afraid, there is no evidence that accused-appellant or anyone acting for the latter ever threatened Lumbera. The Solicitor General argues that the natural reluctance of a witness to get involved in a criminal case and to provide information to the authorities is a matter of judicial notice. He cites the decision in People v. Villanueva,[12] in which it was held that an eyewitness account cannot be disregarded by reason of the delay in its reporting so long as the delay is justified. He also invokes the ruling in People v. Villamor[13] that fear of reprisal is a sufficient explanation for the delay of a witness in divulging what he knows about the commission of a crime. However, there are material differences between the cases cited and the case at bar. In Villamor, in which the witness took four years to disclose what he knew of the crime, it was shown that he came forward when accused-appellant was arrested and charged. On the other hand, in Villanueva the witness testified one year after the incident owing to fear of the two accused who were members of the police. In the foregoing cases, the Court noted the straightforward testimonies of the witnesses which were consistent with the physical evidence. The report of the medico-legal expert regarding the nature and location of the wounds sustained by the victims confirmed the testimony of both witnesses. But, in this case, the physical evidence and the testimony of the attending physician are inconsistent with the testimony of the alleged eyewitness. Thus, Lumbera testified that accused-appellant struck the victim once in his right chest before running away. However, the attending physician testified based on the medical records that the victim

died of two fatal stab wounds, one inflicted on the lower left chest wall penetrating the abdominal cavity and the other on the back, to the left of the posterior mid-line.[14] Even if Naxinsino Lumbera only mistook the location of the stabbing and the number of wounds inflicted on the victim, his account of the events still is highly suspect. The assailant, whom Lumbera said came from behind, would have to be in a very awkward position to inflict such wounds as the victim was hanging on from the rear portion of a running jeepney.[15] On the other hand, Dr. Villa himself, when asked to tell the court the position of the victim in relation to the assailant, said: The assailant if right handed could be in front of the victim and with his right hand he could possibly stab the victim in his left side because I am not a witness to the actual event, it is possible also he could be on the side or even to the left or back if he twist(s) his right hand and stab his side it is very difficult for me to say which one.[16] As no other witness was presented to prove that accused-appellant committed the offense charged, his conviction by the trial court must be considered without any basis. Second. We note in passing an affidavit executed by one Nolito Bautista on April 20, 1987 which tends to corroborate the testimony of Naxinsino Lumbera. However, this affidavit was not offered in evidence, nor was Bautista presented as a witness. The affidavit is thus hearsay,[17] and, what is more, cannot be considered in this case. That the affidavit formed part of the record of the preliminary investigation does not justify its being treated as evidence because the record of the preliminary investigation does not form part of the records of the case in the Regional Trial Court, Branch 12. To be considered part of the records of this case, the record of the preliminary investigation must be introduced as evidence during trial.[18] The prosecution having failed to present Nolito Bautista as a witness, his sworn statement given during the preliminary investigation is inadmissible and deserves no consideration at all. Third. Accused-appellants testimony is not without inconsistencies. When he testified on February 2, 1998, he could recall with certainty all that he did more than ten years before, on April 4, 1987, although nothing spectacular was supposed to have occurred. And yet when asked about other matters, such as when he changed residences, he had a very poor recollection of such dates and events. His alibi is not entitled to credit, as he presented no one to corroborate his claim that, at 11:30 a.m., on April 4, 1987, he was in Labo, Camarines Norte working in the mines. Nevertheless, having ascertained the affidavit of Nolito Bautista to be inadmissible, and considering the conflicting testimonies of prosecution witnesses Naxinsino Lumbera and Dr. Nemesio Villa, we hold that the prosecution failed to present sufficient evidence to warrant the conviction of accused-appellant. Our legal culture demands the presentation of proof beyond reasonable doubt before any person may be convicted of any crime and deprived of his life, liberty, or even property. It is not sufficient for a conviction that the evidence establishes a strong suspicion or a probability of guilt. Before an accused can be convicted, the hypothesis of his guilt must flow naturally from the facts proved and must be consistent with all of them.[19] WHEREFORE, the decision of the Regional Trial Court of Lipa City, Branch 12, finding accused-appellant Cesar Robles y Combate guilty of murder and sentencing him to suffer the

penalty of reclusion perpetua is REVERSED and accused-appellant is ACQUITTED on the ground of reasonable doubt. The Director of the Bureau of Prisons is hereby directed to forthwith cause the release of accused-appellant unless the latter is lawfully held for another cause and to inform the Court accordingly within ten (10) days from receipt hereof. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur. EN BANC [G.R. No. 135109-13. December 18, 2000] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE PAJO y BAGTONG and IMELDA LIQUIGAN y KASIBAYAN, accused-appellants. DECISION PER CURIAM: Jose Pajo y Bagtong was found guilty beyond reasonable doubt and convicted of three counts of rape and two counts of acts of lasciviousness in Criminal Cases Nos. 97-233, 97-664 to 97-667 while his co-accused, Imelda Liquigan y Kasibayan, was found guilty beyond reasonable doubt as an accomplice of the crime of rape in Criminal case No. 97-664 by the Regional Trial Court (RTC) of xxx.. Due to the imposition of the death penalty in Criminal Cases Nos. 97-233, 97-664 and 97-665, the Decision[i][1] of the RTC dated July 6, 1998 imposing the death penalty therein is now before us on automatic review. On February 21, 1997, an Information[ii][2] for rape was filed against the accused Jose Pajo y Bagtong (PAJO) upon the complaint of his daughter, AAA[iii][3] committed as follows: "The undersigned Assistant Prosecutor upon prior sworn statement of AAA, a minor, assisted by her Aunt CCC, a copy of which is hereto attached as Annex "A", accuses JOSE PAJO y BAGTONG of the crime of Rape (Art. 335, R.P.C., in relation to R.A. 7610), committed as follows: That on or about the 31st day of January 1997, in the City of XXX, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of said AAA, a 13 year old minor, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with the said AAA, without her consent and against her will, to her damage and prejudice." The case was docketed as Criminal Case No. 97-233. Upon arraignment, the accused with the assistance of counsel entered a plea of not guilty.[iv][4] Thereafter, trial ensued. During the pendency of the trial, four more informations were filed against PAJO upon the complaint of AAA and his other daughter, BBB, as follows:

In Criminal Case No. 97-664, PAJO together with his co-accused Imelda Liquigan y Kasibayan were charged, as principal and accomplice respectively, with the crime of rape commited against AAA as follows: "The undersigned Assistant Prosecutor upon prior sworn statement of AAA, a minor, assisted by her Aunt CCC, a copy of which is hereto attached as Annex "A", accused JOSE PAJO Y BAGTONG as principal and IMELDA LIQUIGAN Y KASIBAYAN as accomplice, of the crime of Rape in relation to R.A. 7610, committed as follows: That in or about during the month of August 1996, in the City of xxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, JOSE PAJO, being the father of said AAA, a 13 year old minor by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with the said AAA, without her consent and against her will while accused Imelda Liquigan cooperated in the said act, by holding her legs open, to facilitate the commission thereof by accused Jose Pajo y Bagtong, to her damage and prejudice." In Criminal Case No. 97-665, PAJO was charged with the crime of rape committed against AAA as follows: "The undersigned Assistant Prosecutor upon prior sworn statement of AAA, a minor, assisted by her Aunt CCC, a copy of which is the crime of Rape (Art. 355, RPC in relation to R.A. 7610, committed as follows: That on or about the 18the day of September 1996, in the City of xxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of said AAA, a 13 year old minor, by means of force, violence and intimidation did then and there willfully, unlawfully and feloniously have carnal knowledge with the said AAA, without her consent and against her will, to her damage and prejudice." In Criminal Case No. 97-666, PAJO was charged with the crime of acts of lasciviousness committed against BBB as follows: "The undersigned Assistant Prosecutor on the basis of the sworn statement of BBB, 12 years old, assisted by her Aunt CCC, a copy of which is hereto attached as Annex "A", accuses JOSE PAJO y BAGTONG of the crime of Acts of Lasciviousness, in relation to Sec. 5 (b), Article III, R.A. 7610, committed as follows: That in or about the month of August 1996, in the City of xxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there willfully, unlawfully and feloniously commits acts of lasciviousness upon one BBB, a 12 year old minor, by then and there ordering her to hold and suck his sex organ against her will and consent, to her damage and prejudice." In Criminal case No. 97-667, PAJO was charged with the crime of acts of lasciviousness committed against AAA as follows: "The undersigned Assistant Prosecutor on the basis of the sworn statement of AAA, 13 years old, assisted by her Aunt CCC, a copy of which is hereto attached as Annex 'A",

accuses JOSE PAJO y BAGTONG of the crime of Acts of Lasciviousness in relation to Sec. 5 (b), Article III, R.A. 7610, committed as follows: That on or about the 15th day of November 1996, in the City of xxx, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon one AAA, a 13 year old minor, by then and there touching and holding her vagina, against her will and consent, to her damage and prejudice." On June 4, 1997, both PAJO and his co-accused Imelda Liquigan y Kasibayan (LIQUIGAN) with the assistance of counsel pleaded not guilty to the crimes charged.[v][5] Subsequently, on June 23, 1997, Judge DDD ordered the consolidation of Criminal Cases Nos. 97-664, 97-665, 97-666, 97-667 with Criminal Case No. 97-233.[vi][6] The trial court stated the facts of the case viz: "Accused JOSE is an ex-convict. He served a prison term for the crime of theft. Accused IMELDA is his live-in partner. Complainants AAA and BBB are the minor children of JOSE with EEE. AAA is now 14 years old while BBB is 12. (Exhibits "I" and "J"). their natural mother left them when they were still very young. Upon being released from prison, JOSE moved in with IMELDA at their present residence at xxx. Subsequently, JOSE took back AAA and BBB from his brother who took care of them while he was in prison. The family occupied the room at the 2nd floor of their house. The ground floor is rented out to some boarders. At night, JOSE and IMELDA, together with their two-year old baby would sleep together in bed while AAA and BBB would sleep on the floor. At times, only a curtain would separate the bed from the floor where the sisters would be sleeping. JOSE drinks a lot and is frequently drunk. He would usually drink two bottles of beer before going to bed. On February 18, 1997, CCC had a chance to talk to BBB, her niece. BBB then confided to CCC how their father had been molesting her and her sister (AAA). The following day, CCC and FFF, their youngest brother brought BBB and AAA to the barangay center. There, they related the ordeal of the two sisters. The Complaint Center, in turn, notified the Office of the Department of Social Welfare and Development (DSWD). With DSWD Social Workers, the group of CCC proceeded to Police Precinct No.7 at xxx city and sought police assistance for the arrest of JOSE and IMELDA. The two

suspects were arrested and their case referred to the Station Investigation Division of the xxx Police. SPO1 Lilia Hogar and Police Inspector Angelita Alvarico of the Women's Desk Section, investigated the complaint. The written statements of AAA and BBB were taken (Exhibits "A" and "B"). thereafter, AAA was referred to the National Bureau of Investigation and PNP Crime Laboratory for examination (TSN, March 17, 1997). On February 20, 1997, the Final Investigation Report was issued by SPOI Lilia Hogar with the recommendation that the complaint of AAA and BBB be referred to the City Prosecutor for proper disposition (Exhibit "C"). After inquest, the preliminary investigation, the xxx Prosecution Office filed with the Court three informations for Rape against JOSE (Criminal Case Nos. 97-233, 97-664 and 97-665) and 2 counts of Acts of Lasciviousness (Criminal Case Nos. 97-666 and 97-667). IMELDA was indicted as an accomplice in the charge for rape in Criminal Case No.97-664. AAA narrated in court how she and her younger sister BBB have been molested by their father on different occasions between August 1996 to January 1997. She testified that the first incident occurred in the night of August 18, 1996. They were all inside their common sleeping area. She was already fearful as her father was them again drunk. JOSE and IMELDA were already without clothes and in bed when her father called her. She was ordered to undress and to climb in bed. BBB has been ordered by JOSE to stand guard at their door. Once in bed, JOSE told IMELDA to spread open AAA s legs. JOSE then called BBB to come near and to suck his penis so he could have an erection. BBB obeyed her father's command. Thereupon, JOSE laid on top of AAA while IMELDA was holding her legs apart. AAA felt her lower abdomen moving up and down. She told her father that she was hurting already. But still, he did not withdraw his penis. After a while, JOSE told IMELDA to lie down. JOSE then withdrew from AAA and went on top of IMELDA. While JOSE and IMELDA were copulating, JOSE told AAA to suck IMELDA's breast. The abominable scene finally stopped when they heard some noises outside. AAA further testified that this incident was repeated on September 18, 1996. She was then watching a VHS tape at their uncle's place when her father told her to go upstairs to their room. Inside their room, JOSE and IMELDA started to take off their clothes. JOSE ordered AAA to take off hers too. Her father was again drunk. He laid on top of her while IMELDA held her legs apart.

JOSE would even slap IMELDA whenever she fails to hold AAA's legs apart. Again, the detestable incident ended with JOSE and IMELDA having sexual intercourse. The father again molested AAA in November 1996. AAA though could not remember the exact date. She testified that she woke up one night when she felt someone touching her most private part. She discovered her father beside her on the floor. She became upset. Her father withdrew her hand. Fortunately for AAA, her father desisted from pursuing his woeful intentions. JOSE climbed back to his bed and slept beside IMELDA. According to AAA, the last incident happened on January 31, 1997 at about 12:00 o'clock in the evening. She was awaken (sic) by someone tapping her feet. It was her father again. She was told to go the bathroom downstairs. She thought she would just be asked to fetch water. When she entered the bathroom, her father was already there and naked. She was told to remove her shorts and underwear. Her father was drunk again. AAA was told to lean back on the wall and open her legs. Thereupon, JOSE proceeded to penetrate AAA. Then she felt pain, and deep inside her she wished her father would die so that her ordeal would stop. Her father stopped when he heard their dog barking. He then instructed her daughter to bring a pail of water upstairs. JOSE then woke up IMELDA and told her to prepare coffee. Thereafter, IMELDA told AAA to go back to sleep. AAA went to sleep with IMELDA massaging JOSE. (TSN, April 28, 1997, pp. 18-39; April 30, 1997, pp. 2-22; August 11, 1997, pp. 11-34; August 15, 1997, pp. 3- 15). BBB, the other victim, narrated too in Court how she and her sister were molested by her father and his live-in partner in August 1996. She was only 12 years old then. They were all inside their one-room quarters. Her father was drunk. She was told to stand guard at their door by her father. later, she was called by her father to the bed and ordered to suck his penis so he could have an erection. AAA was already in bed and without clothes, and so was her father. JOSE then laid on top of AAA while IMELDA was holding AAA's legs apart. In the meantime, BBB was again told to stand guard at the door (TSN, August 18, 1997, pp. 2-33). AAA and BBB are one in telling the Court that they are fearful of their father, especially when he is drunk. They were often beaten up by their father should they refuse or fail to obey his command or wishes. They strongly believe too that their father is on drugs.

Dr. Tomas Suguitan, the Medico-legal Officer from the PNP Crime laboratory, identified his report on the examination conducted on BBB (Exhibit "C"). He confirmed that the "subject is in non-virgin state physically" with "deep healed laceration at 6 o'clock and shallow healed lacerations at 3, 7 and 10 o'clock" in her fleshy-type hymen. However, the prosecution failed to clarify what appears to be a contradictory report rendered by the NBI Medico-legal Division (Exh. "D") showing that subject's hymen is "intact and its orifice small (2.0 cm. in diameter) as to preclude complete penetration by an average sized adult male organ in full erection without producing genital injury". Further, in Exhibit "C", witness Suguitan found no external signs of application of any form of violence". While in Exhibit "D", "physical injuries were noted on the body of the subject at the time of examination", consisting of, - scar, brownish 0.8 x 0.3 cm., left temple area; scars brownish, two (2) in number, one is 1.0 x 0.3 cm., the other 1.0 x 0.4 cm. left leg, upper 3rd, anterior aspect, and scar, reddish, 4.0 x 6.0 cms. right gluteal area. Prosecution witnesses CCC and SPO1 lilia Hogar testified too in court. CCC narrated how she discovered the sexual abuse committed by her brother JOSE and IMELDA on her nieces (TSN, March 17, 1997, pp. 2-17). SPO1 Hogar testified on the investigation conducted by the Criminal Investigation Division of the XXX Police Station on the complaint lodged by the victims (TSN, April 23, 1997, pp. 2-19). Accused JOSE AND IMElDA denied the imputations against them. They advanced the following reasons as possible motive for the false accusations, to wit a) He (JOSE) chastised AAA and BBB for "stealing" P2,000.00 in school; b) His brother and sister are interested in having possession of their house; and c) His brother and sister are envious of his work entitled "Destiny Philippines 2000" which he allegedly tried to have then President Fidel Ramos and Vice President Joseph Estrada be interested in."[vii][7] On July 6, 1998 the RTC rendered a decision finding both accused guilty beyond reasonable doubt of the crimes charged. The dispositive portion of the decision reads: "WHEREFORE, the Court finds Jose Pajo y Bagtong and Imelda Liquigan y Kasibayan GUILTY beyond reasonable doubt of the offenses charged. Accordingly, accused Jose Pajo y Bagtong is hereby sentenced to suffer the following penalties, 1. DEATH for consummated rape as charged in Criminal Case No. 97-97-233; 2. DEATH for consummated rape as charged in Criminal Case No. 97-664; 3. DEATH for consummated rape as charged in Criminal Case No. 97-665;

4. TEN (10) YEARS & ONE (1) DAY of prision mayor as minimum to SEVENTEEN (17) YEARS & FOUR (4) MONTHS of reclusion temporal as maximum for acts of lasciviousness as charged in Criminal Case No. 97-666; and 5. TEN (10) YEARS & ONE (1) DAY of prision mayor as minimum to SEVENTEEN (17) YEARS & FOUR (4) MONTHS of reclusion temporal as maximum for acts lasciviousness as charged in Criminal Case No.97-667. Accused Imelda Liquigan y Kasibayan is hereby sentenced to a prison term of TWELVE (12) YEARS & ONE (1) DAY to FOURTEEN (14) YEARS & EIGHT (8) MONTHS of reclusion temporal as an accomplice in the crime of rape as charged in Criminal Case No. 97-664. Jose Pajo y Bagtong is ORDERED to INDEMNIFY complainants AAA Joy Pajo and BBB Joy Pajo in the amount of P50,000.00 each for each count of rape and acts of lasciviousness committed, and to pay the costs. SO ORDERED."[viii][8] At the outset, we resolve to dismiss the appeals in Criminal Cases Nos. 97-666 and 97667, wherein the RTC convicted PAJO of two counts of acts of lasciviousness and sentenced him to ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum for each count, considering that PAJO failed to file notices of appeal for said cases. Under Section 1 (b), Rule 122 of the Rules on Criminal Procedure, the appeal of a judgment rendered by the regional trial court in its original jurisdiction sentencing the accused to other than life imprisonment[ix][9] or death must be taken to the Court of Appeals by the filing of a notice of appeal with the court which rendered the judgment or order appealed from, and by serving a copy thereof on the adverse party.[x][10] We likewise dismiss the appeal of PAJO's co-accused, LIQUIGAN, for the reason that she similarly failed to file a notice of appeal of the judgment convicting her as an accomplice to the crime of rape in Criminal case No. 97-664. The appeal to the Supreme Court in cases where the penalty imposed is life imprisonment [xi][11] or where a lesser penalty is imposed but involving offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed shall be by filing a notice of appeal with the court which rendered the judgment or order appealed from, and by serving a copy thereof upon the adverse party.[xii][12] Inasmuch as both PAJO and LIQUIGAN have taken no appeal with respect to these cases, they became final and executory after the lapse of fifteen (15) days, the period for perfecting an appeal.[xiii][13] On the other hand, Criminal Cases Nos. 97-233, 97-664 and 97-665 are now before this Court on automatic review in view of the imposition of the death penalty. It is only in cases where the accused is sentenced to death when the appeal of the decision to the Supreme Court is automatic.[xiv][14] We thus limit our discussion to Criminal Cases Nos. 97-233, 97-664 and 97- 665 where the death penalty was imposed on PAJO.

In his brief, PAJO assigns the following error allegedly committed by the RTC: "THE LOWER COURT ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY OF THE CRIMES CHARGED, WITHOUT THEIR GUILT HAVING BEEN PROVED BEYOND ASHADOW OF A DOUBT.[xv][15] PAJO maintains that the prosecution failed to establish his guilt beyond reasonable doubt. In support of this claim, PAJO asserts that: 1. In her testimony, AAA was uncertain as to whether or not her father penetrated her on August 18, 1996. 2. He merely used his two daughters to arouse him in order for him to "trigger" his libido and "to put in action and activate his admitted onset of impotency" caused by his state of alcoholism in order to satisfy the passion of his live-in partner. 3. It is unlikely that he committed the alleged rapes and acts of lasciviousness because they admittedly transpired inside their house and in the presence of all the other members of the family. There was no evidence on record to prove that PAJO was sick of some form of medical perversion or that showed him to be of such a detestable human nature. 4. It is unbelievable that it took AAA exactly six (6) months and one (1) day or after being assaulted three times and only after her younger sister, BBB revealed the commission of the crime against her that she revealed the assaults committed against her by her father. 5. AAA and BBB filed the cases against their own father due to the improper suggestions and desire for revenge of their aunt and uncle (the brother and sister of PAJO) who reared and took care of AAA and BBB. 6. Had the cases been filed with the noblest intention of seeking justice, then it would have been for the best interest of the two children to include LIQUIGAN as co-principal in the alleged crimes of rape and not merely as an accomplice to the rape allegedly committed on August 18, 1996. 7. There is an irreconcilable conflict between the findings of the physical examination conducted on AAA by the National Police Commission - Philippine National Police Crime Laboratory Group (PNP) and that conducted by the National Bureau of Investigation (NBI) contained in the two medical reports[xvi][16] submitted to the RTC. The report of the PNP showed that there was no external signs of application of any form of violence while in the NBI report, physical injuries were noted on the body of AAA at the time of her examination. Further, the NBI report showed that the hymen ofAAA was intact and its orifice small as to preclude complete penetration by an averaged sized adult male organ in full erection without producing genital injury. Based on the foregoing arguments, PAJO prays for his acquittal for failure of the prosecution to prove his guilt beyond reasonable doubt.[xvii][17]

After a meticulous review of the case, we resolve to affirm the judgment of the RTC. The prosecution convincingly established the commission of the three rapes by PAJO against AAA through her testimony wherein she identified the accused-appellant PAJO as her father and narrated the manner by which he thrice raped her sometime in August 1996, September 18, 1996 and January 31, 1997. AAA first testified in Criminal Case No. 97-233 to prove the rape committed on January 31, 1997 as follows: "PUBLIC PROSECUTOR: Could I request the assistance of Court Interpreter. And do you know the accused Mr. Pajo in this case? WITNESS: Yes, Sir. PUBLIC PROSECUTOR: Why do you know him? WTNESS: Because he is my father, Sir. PUBLIC PROSECUTOR: Could you point your father, Mr. Pajo, if he is here in this court INTERPRETER: Witness, is pointing to a male person seated on the second row wearing a yellow T-shirt who response in the name of Jose Pajo. PUBLIC PROSECUTOR: Why did you file this complaint against your father? WITNESS: Because I don't want him to attack me more than 4 times, Sir. PUBLIC PROSECUTOR: Let's go to specific, on January 31, 1997 at 12:00 in the evening, could you recall, where were you? WITNESS: I was in the house sleeping, Sir. PUBLIC PROSECUTOR:

Kindly tell the court where is your house located, street, number or city? WITNESS:
xxx

PUBLIC PROSECUTOR: Okay, while you were sleeping inside your house, at xxx, could you recall any unusual incident, occur? WITNESS: Yes, Sir. PUBLIC PROSECUTOR: Kindly, tell the court what was the unusual incident which occurred? WITNESS: My father arrived and he woke me up by tapping me on my feet and he whispered and told me to go down to the bathroom, so I went down to the bathroom thinking that he would ask me to fetch water and as I went inside the bathroom he was already naked. PUBLIC PROSECUTOR: What else happened after you went down to the bathroom and saw your father already naked? WITNESS: As he told me, he instructed me to remove my short and my panty, Sir. PUBLIC PROSECUTOR: Did you follow the order of your father to remove your panty and short? WITNESS: Yes, Sir. PUBLIC PROSECUTOR: Why did you follow the order of your father to remove your underwear? WITNESS: Because, I was afraid of him. PUBLIC PROSECUTOR:

Why are you afraid of him? WITNESS: Because, whenever he is drunk, he spanks us, he electrocutes us, he even tie cord around our neck, Sir. PUBLIC PROSECUTOR: This things that your father did to you, since when did it start to happen to you? ATTY. OLIVA: At this state, Your Honor, I would like to put strike off, the case being heard on January 31, 1997 was immediately. COURT: Answer may remain on record. It is part of the narration being made by the witness as to how all this things happen. PUBLIC PROSECUTOR: I would like to make it clear to counsel, that I am only doing this January 31, 1997 incident. However, the other incident could not be entouched specially the elements thereof, only this January 31, 1997 incident. ATTY. OLIVA: We submit, Your Honor. WITNESS: The first time, my father treated me harshly, when he frustrate me when I was sleeping he kept confitting (sic) me with the pillow on my face and then covering it. PUBLIC PROSECUTOR: Could you recall what was that incident, more or less the date and the year? WITNESS: Yes, Sir. August of 1996. PUBLIC PROSECUTOR: In what place did it occur? WITNESS: In the house, Sir of xxx City. PUBLIC PROSECUTOR:

Likewise, a while ago, you mentioned or referred that on the word "PINAPARUSAHAN KAMI", to whom are you referring, aside from you? WITNESS: My sister and I, Sir, are the one being maltreated. PUBLIC PROSECUTOR: What is the name of your, sister? WITNESS: BBB, Sir. PUBLIC PROSECUTOR: How old is she? WITNESS: She is 12 years old, Sir. PUBLIC PROSECUTOR Aside from the sister of yours, do you have any brothers and sister? WITNESS: I have another brother who is in xxx, Sir . PUBLIC PROSECUTOR: Why is he in xxx? WITNESS: My aunties and my uncles told me that my mother left my father, because my father always hurt my mother. PUBLIC PROSECUTOR: Could you know more or less, when did your mother left your father? WITNESS: They told me that I was very young and small, Sir at that time when she left us. PUBLIC PROSECUTOR: AAA, this residence you mentioned at xxx, when this incident occurred, who are the persons staying the house?

WITNESS: My Tita CCC and my uncle GGG, Sir. PUBLIC PROSECUTOR: Lets go back to the incident on January 31, 1997, in the evening, kindly tell the court what happen (sic) after you followed the order of your father to remove your panty and short? What happened next, if any? WITNESS: When I took off my short and panty he told me to SUMANDAL DAW PO AKO SA DINGDING and he was trying to insert his penis, Sir. PUBLIC PROSECUTOR: While he was trying to insert his penis on your vagina, what did you do? WITNESS: I was in standing position and when I told him that It hurts, he does not want to remove it, Sir. PUBLIC PROSECUTOR: What was hurting you? WITNESS: In my vagina, Sir. There was an object going up and down. PUBLIC PROSECUTOR: What was this object going up and down inside your vagina? WITNESS: All I felt, Sir, it was very painful and there was something going up and down in my vagina. PUBLIC PROSECUTOR: Did the accused Mr. Pajo, was he able to insert his penis to your vagina? WITNESS: Yes, sir. PUBLIC PROSECUTOR: For how long, did he insert his penis to your vagina?

WITNESS: I could not remember it, Sir. PUBLIC PROSECUTOR: What did you do during the time he was inserting his penis to your vagina? WITNESS: I kept silent. I was thinking and I kept it to my mind that I hope, he die to stop him from doing like this. PUBLIC PROSECUTOR: Madam Witness, could you stand up and could you demonstrate, what was your position inside the bathroom when accused fit you on the wall? INTERPRETER: Witness demonstrating leaning of the courtroom wall and mentioned that accused instructed her to open her legs. PUBLIC PROSECUTOR: How about your two hands, where was in position at the time when the accused was forcing you at the wall and insert his penis in your vagina? WITNESS: The accused instructed me to put my hands over his back. PUBLIC PROSECUTOR: Ms. Witness, after that, he was able to insert his penis to your vagina, what did he do? WITNESS: He heard our dog bark loudly and then he instructed me to get a pail of water, Sir."[xviii][18] After the cases were ordered consolidated, AAA again testified on the two prior rapes committed against her by PAJO. The pertinent portions of AAA's testimony are quoted hereunder: "Q: How many times were you raped by your father? A: Three (3) times, Sir. Q: Let's go to specific, when was the first time that your father raped or abused you? A: The first incident did my father abuse me was on August.

Q: On what year, AAA? A: 1996, Sir. Q: In what place where you abused by your father? A: At xxx. Q: Could you recall more or less what was the time? A: around 8:00 o'clock in the evening. Q: Kindly narrate briefly what happened during the night of August 18, 1996 at your house? A: Everybody at that time were in the house. And my father called me and he told me to remove my short and panty. Q: You said, 'EVERYBODY', who were the persons in your house? A: My father, my mother, my sister BBB and my two (2) year old sister and myself, Sir. Q: By the way, your referred to your Mama, what is the name of your Mama? A: Imelda Liquigan, Sir. Q: Is she inside the Courtroom? A: Yes, Sir. COURT INTERPRETER: Witness is pointing to a female person seated on the second row wearing a yellow shirt and as mentioned by the witness-she is Imelda Laquigan. PUBLIC PROSECUTOR: Q: What's the name of your father? A: Jose Bagtong Pajo, Sir. A: Is he inside the Courtroom? A: Yes, Sir. COURT INTERPRETER: Witness is pointing to a male person wearing a yellow shirt and seated on the second row and as mentioned by the witness- he is Jose Pajo. PUBLIC PROSECUTOR: Q: By the way, is Imelda is your natural mother?

A: No, Sir. Q: Why do you call her Mama? Q: Where is your natural mother? A: She is in xxx, Sir. She got separated with my father, Sir. Q: When was that? A: When we were still small, Sir. Q: When did Imelda come to your house? A: I could not recall, Sir because we were not staying at that house when Mama Imelda arrived. Q: Let's go back to the night of August 18, 1996 incident, when your father ordered you to undress, where was your father at that time? What portion of the house? A: She was also at the bed, Sir. Q: How about BBB, your sister, where was she at that time? A: She was told by my father to watch the door, Sir. Q: Did you follow the order of your father to undress? A: Yes, Sir. Q: What kind of dress were you wearing at that time? A: I was just wearing T -Shirt, Sir. Q: Did you remove our T-shirt at that time? A: I removed my T-Shirt when I was about to lay down, Sir. Q: How about your underwear, did you also remove your underwear? A: Yes, Sir. Q: Why did you follow the order of your father? A: Because he was drunk at that time and I'm afraid to him whenever he is drunk, Sir. Q: Why, What does he do to you when he is drunk? A: Because when he is drunk he hits us on the heads, Sir. Q: After undressing, you went to the bed with your father, what else happened after that?

A: My father told my Mama to spread my legs. Q: Did, you are referring to Imelda, did Imelda indeed spread or open your legs as told by your father? A: Yes, Sir. Q: Imelda, your Mama and Jose Pajo were both lying at the bed at that time when he ordered you to open your legs or Imelda opened your two thighs. A: Yes, Sir. Q: AAA, what were they wearing at that time Jose and Imelda? A None, Sir. Q: You mean all of them are already naked at that time? A. Yes, Sir. Q: How about you, when Imelda open your legs, you were also naked? A: Yes, Sir. Q: What else happened after Imelda open your legs at that time? A: Before my father inserted his penis of my genital, my father called upon BBB my sister. Q: Did BBB follow the order of your father? A: Yes, Sir. Q: What did your father ordered BBB to do if any at that time? A: My father told my sister BBB 'come here and suck my penis I just want to know if you could give me an erection. Q: Did BBB follow the order of your father? A: Yes, Sir. Q: After that what else happened? A: After my sister suck my father's penis he inserted his penis to my vagina. Q: What was your position at that time that your father inserted his penis to your vagina? A: I was lying down on the bed while my Mama Imelda was holding my legs apart.

Q: How about your father, what was his position when he inserted his penis to your vagina when you are lying on the bed and your two legs were open by your Mama Imelda? A: My father was lying on top of me while he was inserted (sic) his penis to my vagina. Q: Was he able to insert his penis to your vagina? A: I am not sure anymore, Sir, if he penetrated me. All I felt was my lower abdomen going up and down, Sir. Q: While he was inserting his penis to your vagina, why did you not resist? A: He kept on whispering that I may not be noisy or else something happen to me, Sir. Q: Where was BBB at that time that your father inserted his penis to your vagina? A: He told BBB to go back to that door. Q: How long did your father inserted his penis in your vagina? A: I could no longer recalled how long it took but I told him that it already hurts and at that time he is still not remove yet his penis and after sometime he inserted his penis to Mama Imelda Q: Where was Imelda at that time that your father inserted his penis in your vagina? A: At that time my Mama Imelda was behind my father while she was holding my legs apart and then my father told her to lie down and that is the time that his penis inserted to my Mama Imelda. Q: After that, when your father went to Imelda and inserted his penis, what did you do? A: He told me to suck the breast of my Mama Imelda. Q: Did you suck the breast of your Mama Imelda? A: No, Sir. I only touched her breast. Q: You mean, AAA you touch the breast of Imelda by your lips? A: Yes, Sir. Q: How long? A: I remove it whenever my father would tell me. Q: After touching the breast of Imelda with your lips, what else happened? A: Natigil po iyong pag-ano ng Papa ko dahil po sa ingay sa labas. Q: Okay, let's go to another incident. After that night on August 18, 196 when the first rape by your father and Imelda assisting him, did this incident occurred?

A: Yes, Sir. Q: When was that incident again occurred? A: September, Sir. Q: September, of what year or month? A: 1996, Sir. COURT: September 1996. A: Yes, Your Honor. September 18, 196 before I had my menstruation on the 23rd, Your Honor. It was September 18, 1996 the second incident. COURT: The second incident was September 18, 1996. PUBLIC PROSECUTOR: Kindly again narrate and tell the Court how were you abused by your father on September 18, 1996? A: At that time my Mama Imelda and my father were upstairs and I and my two other sisters were watching VHS downstairs at my uncle's place, Sir. Q: What time was that? A: Evening, Sir. Q: What time, give time? A: Around 8:00 o'clock in the evening, Sir. Q: Who were again the persons insider your house? A: Me and my mother. Q: And this two year old baby of Imelda was also inside your house? A: Yes, Sir. She was with us. Q: The three of you including the two year old girl and BBB were watching VHS inside your house? A: We were watching VHS at my uncle's house, Sir. Q: Where is your uncle's house located? A: -My father's house is a two storey house and my uncle's means at the ground floor.

Q: While you were watching VHS together with your sisters, what else happened after that? A: My father called me and told me to go upstairs. Q: And did you follow the order to go upstairs? A: Yes, Sir. Q: What happened if anything when you went upstairs? A: He told me to remove my panty and short, Sir. Q: Where was your father at that time, what portion of the house? A: My father and my Mama Imelda were laid down on the bed. Q: Where these two people wearing anything at that time? A: They removed their clothes, Sir. Q: How about you, did you remove your clothes as ordered by your father? A: Yes, Sir. Q: By the way, what were you wearing at that time? A: 'Wala na po'. Q: What did you remove? A: Panty, short and T -Shirt. Q: Why did you follow again the order of your father? A: He was drunk. Q: What he do to you when he was drunk? A: He again told my Mama Imelda to open my legs, Sir. Q: What else happened after that? A: My father lay down on top of me and whenever my Mama Imelda wasn't spreading my legs my father slap Mama Imelda. Q: That night of September 18, 1996, did Jose Pajo your father slap Imelda? A: Yes, Sir. Q: At the time does Imelda was spreading your legs, what did you do? A: I was just lying down on the bed, Sir.

Q: You did not try to resist? A: I could not resist, Sir because I am very afraid at that time. Q: After your father Jose Pajo slap Imelda what else happened after that? A: When my Mama Imelda the way she open my legs that is the time my father penetrated me and when I was hurting already my Mama Imelda laid down on top of me while my father was behind my Mama I melda . Q: What was your father doing to your Mama Imelda at that time in that position? A: While my father's penis was inside Mama Imelda's vagina he was ordering me to also insert my fingers inside the vagina of Mama Imelda. Q: What else happened after that? A: While my other hand was inside Mama Imelda's vagina, my other hand was holding the breast of her. Q: What else happened after that? A: 'May naramdaman po akong bumulwak sa ari nilang dalawa, kulay puti na mabaho'. Q: What else happened after that? A: They still didnt stop what they were doing, Sir. They only stop when the lights went off. Q: AAA, after that September 18, 1996, incident, did this special abuse again happened to you? A: It's a different thing, Sir. Q: On what date or time? A: November, Sir. Q: Of what year? A: The end of November, Sir. Q: In what place did I occur? A: Still in our house, Sir. Q: What was that incident? A: I was sleeping at that time and my father laid beside me. Q: What time did it happen? A: Past 9:00 o'clock, Sir, almost 10:00.

Q: In the evening? A: Yes, Sir. Q: In what portion or place of the house? A: Upstairs, Sir. Q: In the bed of your father? A: No, Sir on the floor. Q: Who were the persons at that time? A: My mama Imelda ad my two year old sister were on the bed and I and my sister BBB were on the floor. Q: What did your father do to you? A: He held my vagina, Sir. Q: What were you wearing at that time or did you wear at that time? A: There was, Sir. Q: What were you wearing at that time? A: Panty, short and t-shirt. Q: What were you doing at that time? before your father held your vagina? A: I was sleeping, Sir. Q: And, what did you do when you noticed that your father was holding our vagina. A: I was upset, Sir. Q: What else happened after that? A: May father off his hand and he went back beside Mama Imelda. Q: What did your father do after that to Imelda? A: They slept, Sir. Q: After that November 5, 1996. did it occur again this sexual abuse? A: January, Sir. Q: January of what year? A: 1997. A: That was the incident which your earlier testified?

A: Yes, Sir. PUBLIC PROSECUTOR: For the record, Your Honor, she testified on that January 31, 1997. COURT: In that testimony, case number is? PUBLIC PROSECUTOR: 97-233 accused Jose Pajo only, Your Honor."[xix][19] The testimony of AAA is corroborated fully by the testimony of her younger sister, BBB, who was also a victim of PAJO's sexual assault.[xx][20] The denial of PAJO cannot prevail over the categorical testimony of AAA and BBB that he raped the former. There was no showing that they were motivated to falsely implicate him in the commission of such a heinous crime and the absence of convincing evidence showing any improper motive on the part of the principal witnesses for the prosecution strongly tends to sustain the conclusion that no such improper motive exists, and that their testimonies are worthy of full faith and credit.[xxi][21] Moreover, it is long settled by jurisprudence that the determination of the competence and credibility of a child to testify rests primarily with the trial judge who sees the witness, notices her manner, her apparent possession or lack of intelligence, as well as her understanding of the obligation of an oath.[xxii][22] The findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect unless the court a quo overlooked substantial facts and circumstances, which if considered, would materially affect the result of the case.[xxiii][23] 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 complainant's testimony.[xxiv][24] In the present case, we find no cogent basis to disturb the trial court's finding disregarding the testimonies of the defense witnesses and upholding the credibility of the complainants AAA and BBB who stood firm on their assertions and remained unfaltering in their testimony on the unfortunate incidents. PAJO's claim that there was no evidence to show that he was sick of some form of medical perversion or that showed him to be of such detestable human nature to enable him to rape AAA in the presence of other persons deserves no sympathy. It has been repeatedly held that lust is no respecter of time or place.[xxv][25] Besides, the mere act of a father of raping his daughter is abhorrent and this Court strongly condemns the perverse acts committed by PAJO against his daughters and is appalled by his defense that he merely used them to arouse him in order for him to "trigger" his libido and "to put in action and activate his admitted onset of impotency" caused by his state of alcoholism to enable him to satisfy the passion of his live-in partner.[xxvi][26] The bestiality

in man whose conscience has been seared by his insatiable greed for lust shows no respect for blood or close kinship with his victim.[xxvii][27] PAJO's claim that AAA and BBB filed the cases against their own father due to the improper suggestions and desire for revenge of their aunt and uncle is not believable. PAJO's and LIQUIGAN's bare assertion that the cases were filed against him to allegedly get back at him for scolding AAA and BBB for stealing two thousand (P2,000.00) from their teacher and that his brother and sister were allegedly envious of him because they wanted his house and because he was being commissioned by the then President Fidel V. Ramos to write a book entitled Destiny 2000 is uncorroborated and is highly unbelievable. It has been consistently held that no member of a rape victim's family would dare encourage the victim to publicly expose the dishonor to the family unless the crime was in fact committed.[xxviii][28] Given the circumstances of the resent case, it is most unlikely that AAA nor her aunt, CCC who happens to be the sister of PAJO, would subjectAAA to the embarrassment and stigma incident to a rape trial if the charges were not true. Pajo's inistence that LIQUIGAN should have been charged as a co-principal in all three rapes and not merely an accomplice to one rape, does not affect the culpability of PAJO for the crimes charged and is not enough reason to acquit him. In criminal prosecutions, it is the prosecution that determines the charges to be filed and how the legal and factual elements in the case shall be utilized as components of the information. [xxix][29] It is basically the fiscal's function to the fiscal to determine what degree of complicity to the commission of a crime a person should be charged with, whether as principal, accomplice or accessory. PAJO makes much of the fact that it took AAA exactly six (6) months and one (1) day or after being assaulted three times and only after her younger sister, BBB revealed the commission of the crime against her that she revealed the assaults committed against her by her father. However, this Court has time and again ruled that the fact that the failure of the complainant to report the rape to the immediate members of her family or to the police does not detract from her credibility for her hesitation can be attributed to her age and the moral ascendancy of the accused and his threats against the former.[xxx][30] We find this to be true in the present case. Finally, the alleged inconsistency between the findings of the medical examinations conducted on AAA contained in the medical reports prepared by the PNP[xxxi][31] and the NBI[xxxii][32] is not sufficient to warrant the reversal of the judgment of conviction. The overwhelming evidence consisting of the testimonies of both AAA and BBB, which were thoroughly consistent with each other, is sufficient to establish PAJO's guilt beyond reasonable doubt. Moreover, the inconsistency between the two medical reports only gives rise to the question of whether AAA was subjected to force and violence as shown by the presence of external signs of physical injuries. Even assuming that no physical injuries were found on AAA's body, such does not negate that PAJO raped her nor does it render the evidence submitted by the prosecution insufficient to establish the element of force or violence. When a father commits rape against his own daughter, the former's moral ascendancy and influence over the latter substitutes for violence or intimidation.[xxxiii][33]

In sum, AAA's clear and straightforward testimony, as corroborated by that of BBB, leads to the inescapable conclusion that the crimes of rape have been committed and PAJO is guilty of these crimes. Article 335 of the Revised Penal Code, as amended by Republic Act No.7659, provides: "The death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree or the common-law spouse of the parent of the victim." The three informations charging, PAJO with three counts of rape clearly alleged that he had carnal knowledge with his daughter, AAA, who was 13 years old at the time of the rapes as shown by her certificate of live birth[xxxiv][34] having been born on April 13, 1983. Her birth certificate likewise shows that PAJO is her father. Moreover, the prosecution presented AAA's aunt, CCC, who testified that AAA was her niece and that she was the daughter of PAJO who is her brother.[xxxv][35] Moreover, PAJO in his testimony admitted that AAA was his daughter.[xxxvi][36] The concurrence of minority of the AAA and her relationship to PAJO, having been alleged in the information and duly proved with certainty and clearness as the crime itself during trial, constrains the Court to affirm the conviction of PAJO of three counts of qualified rape, justifying the imposition of the death penalty for each count on him. As to PAJO's civil liability, we award AAA the amounts of P75,000.00 as civil indemnity and P50,000.00 as moral damages for each count of rape considering that the crime was committed under circumstances which justify the imposition of the death penalty in accordance with prevailing jurisprudence.[xxxvii][37] Four justices of the Court maintain that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. WHEREFORE, the appealed decision of the Regional Trial Court finding the accused JOSE PAJO y BAGTONG guilty beyond reasonable doubt of three counts of qualified rape in Criminal Cases Nos. 97-233, 97-664 and 97-665 is AFFIRMED. The accusedappellant is hereby sentenced to DEATH and he is further ordered to pay the victim, AAA, the amounts of P75,000.00 as civil indemnity and P50,000.00 as moral damages for each count of rape. The appeals of JOSE PAJO y BAGTONG in Criminal Cases Nos. 97-666 and 97-667 and the appeal of IMELDA LIQUIGAN y KASIBAYAN in Criminal Case No. 97-664 are hereby DISMISSED and the decisions therein are final and executory. Upon finality of this decision, let certified true copies thereof as well as the records of this case be forthwith forwarded to the Office of the President for possible exercise of his pardoning power.

No pronouncement as to costs. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, JJ., concur.

FIRST DIVISION

[G.R. No. 141060. September 29, 2000]

PILIPINAS BANK, petitioner, vs. COURT OF APPEALS, HON. ELOY R. BELLO, In his capacity as Presiding Judge, RTC-Manila, Branch 15, And MERIDIAN ASSURANCE CORPORATION, respondents. DECISION
KAPUNAN, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, assailing the Decision of the Court of Appeals, Sixth Division, dated July 30, 1999 in CA-G.R. S.P. No. 29749 which dismissed petitioner Pilipinas Bank's petition for certiorari, and the Resolution, dated September 17, 1999 denying petitioner's Urgent Motion for Extension of Time to file Motion for Reconsideration, Manifestation and Motion to Admit Motion for Reconsideration.
[1] [2] [3]

The facts of the case are as follows: On January 8, 1995, petitioner obtained from private respondent Meridian Assurance Corporation a Money Securities and Payroll Comprehensive Policy which was effective from January 13, 1985 to January 13, 1986. On November 25, 1985, at about 9:15 a.m., while the policy was in full force and effect, petitioner's armored vehicle bearing Plate No. NBT 379 which was on its way to deliver the payroll withdrawal of its client Luzon Development Bank ACLEM Paper Mills, was robbed by two armed men wearing police uniforms along Magsaysay Road, San Antonio, San Pedro, Laguna. Petitioner's driver, authorized teller and two private armed guards were on board the armored vehicle when the same was robbed. The loss suffered by petitioner as a result of the heist amounted to P545,301.40.

Petitioner filed a formal notice of claim under its insurance policy with private respondent on December 3, 1985, invoking Section II of the Policy which states: Section II-MONEY AND SECURITIES OUTSIDE PREMISES The Company will subject to the Limits of this Section as hereinafter provided indemnify the insured against loss by any cause whatsoever occuring (sic) outside the premises of Money and Securities in the personal charge of a Messenger in transit on a Money Route x x x.
[4]

and the warranty/rider attached to the Policy which provides thatWARRANTED that in respect of PILIPINAS BANK Head Office and all its branches, pick-up and/or deposits and withdrawals without the use of armored car, company car, or official's car shall be covered by this policy. x x x
[5]

Private respondent denied petitioner's claim and averred that the insurance does not cover the deliveries of the withdrawals to petitioner's clients. Petitioner thereafter filed a complaint against private respondent with the Regional Trial Court of Manila. Private respondent filed a motion to dismiss which was later granted by the RTC. Petitioner then moved to reconsider the trial court's order, but the same was denied. Aggrieved, petitioner filed a petition for certiorari with the Court of Appeals assailing the RTC's order dismissing the complaint. The appellate court granted the petition and remanded the case to the RTC for further proceedings. Private respondent filed with this Court a petition for review of the appellate court's decision, but the same was dismissed in a Resolution dated July 5, 1989.
[6]

After the case was remanded to the RTC and the latter set the case for pre-trial, petitioner filed its Pre-Trial Brief, stating among others, that it would present as one of its witnesses Mr. Cesar R. Tubianosa to testify on the existence and due execution of the insurance policy, particularly on the negotiations that were held prior to the execution thereof, including negotiations that led to the attachment warranties, to prove that the loss subject of petitionerss claim is covered by the Policy. Petitioner identified the issues of the case as follows:
1. Whether or not the loss due to the hold-up/robbery is covered by the Insurance Policy;

2. In the affirmative, whether or not, defendant is liable to plaintiff for said loss, inclusive of other damages prayed for in the Complaint.

On September 18, 1991, when petitioner was about to present Mr. Tubianosa to testify, private respondent objected and argued that said witness testimony regarding the negotiations on the terms and conditions of the policy would be violative of the best evidence rule. However, private respondents objection was overruled and Tubianosa was allowed to take the stand. Private respondent again objected to the questions regarding the negotiations on the terms and conditions on the policy, and the trial court sustained the objection in part and overruled it in part by allowing petitioner to adduce evidence pertaining to the negotiations other than what appears in the insurance policy. Tubianosas testimony was completed on said date. On June 18, 1992, petitioner filed a Motion to Recall Witness, praying that it be allowed to recall Tubianosa to testify on the negotiations pertaining to the terms and conditions of the policy before its issuance to determine the intention of the parties regarding the said terms and conditions. Private respondent objected thereto, on the ground that the same would violate the parol evidence rule. The RTC issued an Order dated July 24, 1999, denying petitioners motion to recall Tubianosa to the witness stand, ruling that the same would violate the parol evidence rule. Petitioners motion for reconsideration was also denied by the lower court. On December 21, 1992, petitioner filed a petition for certiorari with the Court of Appeals assailing the aforementioned Orders of the RTC. In its Decision dated July 30, 1999, the appellate court dismissed the petition and held that there was no grave abuse of discretion on the part of respondent judge. It held that there is no ambiguity in the provisions of the Policy which would necessitate the presentation of extrinsic evidence to clarify the meaning thereof. The Court of Appeals also stated that petitioner failed to set forth in its Complaint a specific allegation that there is an intrinsic ambiguity in the insurance policy which would warrant the presentation of further evidence to clarify the intent of the contracting parties. Hence, the present petition. We find no cogent reason to disturb the findings of the Court of Appeals. Petitioners Complaint merely alleged that under the provisions of the Policy, it was entitled to recover from private respondent the amount it lost during the heist. It did not allege therein that the Policys terms were ambiguous or failed to express the true agreement between itself and private

respondent. Such being the case, petitioner has no right to insist that it be allowed to present Tubianosas testimony to shed light on the alleged true agreement of the parties, notwithstanding its statement in its Pre-Trial Brief that it was presenting said witness for that purpose. Section 9, Rule 130 of the Revised Rules of Court expressly requires that for parol evidence to be admissible to vary the terms of the written agreement, the mistake or imperfection thereof or its failure to express the true agreement of the parties should be put in issue by the pleadings.
[7]

As correctly noted by the appellate court, petitioner failed to raise the issue of an intrinsic ambiguity, mistake or imperfection in the terms of the Policy, or of the failure of said contract to express the true intent and agreement of the parties thereto in its Complaint. There was therefore no error on the part of the appellate court when it affirmed the RTCs Order disallowing the recall of Tubianosa to the witness stand, for such disallowance is in accord with the rule that when the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors-in-interest, no evidence of such other terms other than the contents of the written agreement.
[8]

The rationale behind the foregoing rule was explained in Ortanez vs. Court of Appeals, where we stated:
[9]

The parol evidence herein introduced is inadmissible. First, private respondents oral testimony on the alleged conditions, coming from a party who has an interest in the outcome of the case, depending exclusively on human memory, is not as reliable as written or documentary evidence. Spoken words could be notoriously undesirable unlike a written contract which speaks of a uniform language. Thus, under the general rule in Section 9 of Rule 130 of the Rules of Court, when the terms of an agreement were reduced to writing, as in this case, it is deemed to contain all the terms agreed upon and no evidence of such terms can be admitted other than the contents thereof. xxx.
[10]

WHEREFORE, the instant petition is hereby DENIED. The Decision of the Court of Appeals is hereby AFFIRMED. SO ORDERED. Davide, Jr., JJ., concur. C.J., (Chairman), Puno, Pardo, and Ynares-Santiago,

SECOND DIVISION

[G.R. No. 129667. July 31, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERIC BAID Y OMINTA, accused-appellant. DECISION
MENDOZA, J.:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 95, Quezon City, finding accused-appellant Eric Baid y Ominta guilty of the crime of rape against Nieva Garcia y Saban, a mental patient, and sentencing him to suffer the penalty of reclusion perpetua and to pay the victim the amount of P50,000.00 as moral damages. The information against accused-appellant, based on the complaint filed by the offended woman and her mother, alleged -

That on or about the 22nd day of December 1996, in Quezon City, Philippines, the said accused by means of force and intimidation, to wit: by then and there [willfully], unlawfully and feloniouslyundressing one NIEVA GARCIA y SABAN, a mental patient suffering [from] schizophrenia and put himself on top of her, and thereafter have carnal knowledge with the undersigned complainant against her will and without her consent. CONTRARY TO LAW.[2]
When arraigned, accused-appellant entered a plea of not guilty, whereupon trial of the case on the merits proceeded. The prosecution presented three witnesses, namely, the complainant, Dr. Herminigilda Salangad, the complainant's attending psychiatrist, and Dr. Emmanuel Reyes, the medico-legal officer who examined the complainant. Complainant is a 27-year old single woman, who was diagnosed as having suffered from schizophrenia since 1988. In December 1996, she was confined at the Holy Spirit Clinic in Cubao, Quezon City because of a relapse of her mental condition. [3] On the other hand, accused-appellant was a nurse-aide of said clinic. On December 22, 1996, at around 3 a.m., accused-appellant sneaked into the patients' room. He woke the complainant up and offered her a cigarette, at the same time touching her foot. Complainant took the cigarette. As she smoked it, accusedappellant caressed her. Apparently, she was aroused, because she afterward removed her pants. It turned out she was not wearing any underwear. Accused-appellant also removed his pants and the two had sexual intercourse. Afterwards, they transferred under the bed and continued their sexual intercourse. Complainant said she felt

accused-appellant had an orgasm. A female patient who had been awakened tried to separate the two, and, as she failed to do so, she went out to call the two nurses on duty. The nurses responded but, when they arrived, accused-appellant had left, while complainant had already put on her pants.[4] Complainant was brought later during the day before Dr. Emmanuel Reyes for medico-legal examination. She told him what happened. Dr. Reyes reduced her narration of the incident into writing[5] and then gave her a physical examination. His report stated:[6]

FINDINGS: GENERAL AND EXTRAGENITAL: Fairly developed, and coherent female subject. Breasts are hemispherical with pale brown areola and nipples from which secretions could be pressed. Abdomen is flabby and soft. GENITAL: There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pale brown labia minora presenting in between. On separating the same disclosed an abraided posterior fourchette and an elastic, fleshy-type hymen with deep healed lacerations at 3, 6 and 9 o'clock. External vaginal orifice offers moderate resistance to the introduction of the examining finger and the virgin-sized speculum. Vaginal canal is wide with flattened rugosities. Cervix is normal in size, color and consistency. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of application of any form of violence. REMARKS: Vaginal and peri-urethral smears are negative for gram negative diplococci and for spermatozoa.
Dr. Reyes said the fresh abrasion, located at 6 o'clock posterior of the complainant's genitalia, could have been recently caused by a hard blunt object, such as an erect penis during sexual intercourse, or by the insertion of a finger. Dr. Reyes found that complainant was suffering from mental illness and that she had lapses in the course of her interview.[7]

Accused-appellant testified in his behalf. He stated that he had been a nurse-aide of the Holy Spirit Clinic since September 18, 1995. His job was to watch the patients, especially when they become violent. He also fetched them from their homes. He admitted that he knew the complainant but claimed he did not know the reason for her confinement. He denied the allegations against him. He testified that, on the date and time referred to by the complainant, he was asleep in the nurse-aide quarters located about ten meters from the room where complainant was staying. He admitted, however, that to go to the patients' room, he did not have to pass by the nurses' station. He said he knew that, at the time in question, there were two nurses on duty and ten patients in the room. He described the patients' room as having an area of about eight by five square meters with wooden beds arranged one foot apart from each other.[8] Accused-appellant was questioned by the trial court. He testified that on December 22, 1996, he was on duty from 4 p.m. to 12 midnight. He was a stay-in nurse-aide of the clinic. He stated that the clinic consisted of two floors and five rooms. The room where complainant and the other patients were staying and his quarters were both on the ground floor of the building. He admitted that the clinic was for the mentally ill and that, as a nurse-aide, he was supposed to know the status of every patient and his job was to watch them and pacify them whenever they become violent. He said he was very well acquainted with the behavior of the patients considering the length of time he had been working in the clinic. He claimed, however, that he did not specifically know from what ailment complainant was suffering, but only that she was undergoing treatment because of mental deficiency.[9] On cross-examination, accused-appellant admitted that he knew it was prohibited to give cigarettes to patients. He further admitted that, as a nurse-aide, he could enter the patients' room anytime to check their condition and see to it that the lights were turned off when they were not needed. He further stated that he was not investigated by the police when he was invited to their headquarters.[10] On June 20, 1997, the trial court rendered its decision, [11] the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding the accused Eric Baid y Ominta GUILTY beyond reasonable doubt of the crime of rape defined in and penalized by Art. 335 of the Revised Penal Code, as amended by Rep. Act 7659, and hereby sentences the said accused to suffer the penalty of reclusion perpetua. The accused is further ordered to indemnify the victim Nieva Garcia y Saban the amount of P50,000.00, as moral damages. IT IS SO ORDERED.
Accused-appellant contends that the trial court erred in convicting him of rape.[12] Complainant is suffering from schizophrenia, a psychotic disorder of unknown etiology, characterized by disturbance in thinking involving a distortion of the usual

logical relations between ideas, a separation between the intellect and the emotions so that the patient's feelings and his or her manifestations seem inappropriate to his or her life situation, and a reduced tolerance for the stress of interpersonal relations so that the patient retreats from social intercourse into his or her own fantasy life and commonly into delusions and hallucinations, and may, when untreated or unsuccessfully treated, go on to marked deterioration or regression in his or her behavior though often unaccompanied by further intellectual loss.[13] The following are the symptoms of schizophrenia:
A. Characteristic symptoms: Two (or more) of the following, each present for a significant portion of time during a 1-month period (or less if successfully treated): (1) delusions (2) hallucinations (3) disorganized speech (e.g., frequent derailment or incoherence) (4) grossly disorganized or catatonic behavior (5) negative symptoms, i.e., affective flattening, alogia, or avolition

Note: Only one criterion A symptom is required if delusions are bizarre or hallucinations consist of a voice keeping up a running commentary on the person's behavior or thoughts, or two or more voices conversing with each other.
B. Social/occupational dysfunction: For a significant portion of the time since the onset of the disturbance, one or more major areas of functioning such as work, interpersonal relations, or self-care are markedly below the level achieved prior to the onset (or when the onset is in childhood or adolescence, failure to achieve expected level of interpersonal, academic, or occupational achievement). C. Duration: Continuous signs of the disturbance persist for at least 6 months. This 6month period must include at least 1 month of symptoms (or less if successfully treated) that meet criterion A (i.e., active-phase symptoms) and may include periods of prodromal or residual symptoms. During these prodromal or residual periods, the signs of the disturbance may be manifested by only negative symptoms or two or more symptoms listed in criterion A present in an attentuated form (e.g., odd beliefs, unusual perceptual experiences). D. Schizoaffective and mood disorder exclusion: Schizoaffective disorder and mood disorder with features have been ruled out because either (1) no major depressive, manic, or mixed episodes have occurred concurrently with the active-phase symptoms; or (2) if mood symptoms, their total duration has been brief relative to the duration of the active and residual periods. E. Substance/general medical condition exclusion: The disturbance is not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition. F. Relationship to a pervasive developmental disorder: If there is a history of autistic disorder or another pervasive developmental disorder, the additional diagnosis of

schizophrenia is made only if prominent delusions or hallucinations are also present for at least a month (or less if successfully treated).[14]

Schizophrenia is classified into five subtypes, namely, paranoid, disorganized (hebephrenic), catatonic, undifferentiated, and residual.[15] Dr. Herminigilda Salangad, the complainant's attending psychiatrist and consultant at the Medical Center in Muntinlupa, the Perpetual Help Medical Center, the Philippine National Police, and the Holy Spirit Clinic, was presented as an expert witness. According to her, complainant was, at the time of the incident, suffering from an undifferentiated type of schizophrenia, described as having the characteristic symptoms of schizophrenia but does not fit the profile for paranoid, disorganized, or catatonic schizophrenia. Dr. Salangad stated that complainant seemed to shift from one type of schizophrenia to another. Complainant was catatonic when she first treated her, a situation where the patient shows waxy flexibility (e.g., when a limb is repositioned, that limb remains in that position for a prolonged period of time as if the patient is made of wax), mutism or agitation, and the patient mimics words and actions during examination. Later, complainant became paranoid, i.e., suspicious, hostile and aggressive. She also manifested a behavior where she mumbled and smiled to herself.[16] It is contended that as complainant is a schizophrenic, her testimony should not have been given credence by the trial court. It is argued that: (1) there were serious inconsistencies between her sworn statement and her testimony in court; (2) the prosecution failed to present witnesses to corroborate her testimony; (3) complainant failed to identify accused-appellant; (4) the results of the medico-legal examination were negative for spermatozoa; (5) the healed lacerations showed that complainant had sexual intercourse seven days before the alleged incident; and (6) the probability was that her allegations of rape were merely a product of her fantasy.[17] We disagree. Notwithstanding her mental illness, complainant showed that she was qualified to be a witness, i.e., she could perceive and was capable of making known her perceptions to others.[18] Her testimony indicates that she could understand questions particularly relating to the incident and could give responsive answers to them. Thus she testified:
PROSECUTION: (to the witness) Q A Q A Q Miss Nieva Garcia, are you still confined at the Holy Spirit Clinic, Los Angeles St., Cubao, Quezon City? Not anymore, sir. On December 22, 1996, do you know whether you are at the Holy Spirit Clinic, Los Angeles St., Cubao, Quezon City? Yes, sir. Why were you there, Miss Witness?

A Q A Q A

My mother asked me if I want to be confined at the Holy Spirit Clinic and I chose to be confined at the Holy Spirit because during that time, I was then taking my medicine. At around three o'clock in the morning of December 22, 1996, do you know where were you? Yes, I was lying on the bed inside the Holy Spirit Clinic. And while lying on the bed, inside the Holy Spirit Clinic, do you know what happened then, Miss Witness? At that time, there was a person shorter than the person (witness pointing to the person dressed in yellow t-shirt whose name when asked, answered the name Eric Baid) and that person is smaller than the person inside the courtroom was disturbing "kinakalabit" another person inside the room. And what happened after that first man entered the room at the Holy Spirit Clinic? The girl was trying to avoid the other person because at that time, the accused Eric Baid was entering the room. And what happened after Eric Baid entered the room? When Eric Baid entered the room as if he knew me already and he asked me, "Nieva, gusto mo ng sigarilyo?", at the same time, Eric Baid was touching my foot.

Q A Q A

ATTY. VENTURANZA: I would just want to manifest that the witness while testifying, she was smiling. PROSECUTION: (to the witness) Q A Q A And after he asked you whether you like a stick of cigarette and touched your foot, what happened next, Madam Witness? I said yes. And what happened next after you said yes, I liked cigarette? After that, he caressed me.

COURT: (to the witness) Q A How did he caress you? He went on top of me.

COURT: (to the prosecutor) Go ahead. PROSECUTION: (to the witness) Q A How about the other man who entered earlier, what happened him? The smaller person went in and out of our room twice, the first time that he went, he touched the other woman beside me on the foot but the woman resisted and shouted. After that, the second time, the other man went inside the room, he touched the other woman but the woman shouted and that smaller one went outside of the room. When Eric Baid placed himself on top of you, where was that other man?

He was no longer there. .

PROSECUTION: (to the witness) Q A Q A Q A Q A Q A Q A Q A When Eric Baid was already on top of you, do you know if the small man entered again your room? No, sir. And then, what happened when Eric Baid placed himself on top of you? I agreed. Agreed to what? I agreed to the sex. You mean to say that you and Eric Baid has sexual intercourse while on top of your bed? Yes, sir. And what happened during the sexual intercourse while both of you were on top of the bed? Somebody was awakened and told me, "Hoy, asawa mo ba iyan? Kinukubabawan ka." and I answered no. And was Eric Baid, was he able to consummate that sexual intercourse, Miss Witness? Yes, sir. And more or less, how long did the sexual intercourse last, Miss Witness? Around three to five minutes.

COURT: (to the witness) Q A Q A Q A Q A Q A Q A Q Why, was he able to insert his private organ into your private organ? Yes, your Honor. What did he do when he was able to insert his private organ into your private organ? As if his orgasm suddenly appeared. Do you understand when you say as if his orgasm suddenly appeared? They are like what they call, your Honor, as if "naiputok". And what did he do when according to you "naiputok"? As if it was okay for him. You were wearing an underwear? None, your Honor. You were actually naked? I was wearing pants but I have no panty. But who removed your pants?

A Q A Q A

I was the one, your Honor. What about Eric Baid, what was he wearing? He was also wearing pants. Who removed the pants of Eric Baid? He was the one.[19]

When complainant was questioned on cross and redirect examination, she explained how she was able to identify accused-appellant, to wit:
ATTY. SALATANDRE: Q A Q A Q A Q A Q A Q A Q A Q A You said a while ago that when the sex affair happened it was dark so all throughout you did not see the face of the accused? During that time it was dark but the latter part when he opened the light, I saw his face, sir. When the light was opened, he was about to leave the room? About to leave, sir. He was already facing the door? Yes, Sir. And you were at his back left inside the room? No, Sir. Where were you then? I was just inside the room in my bed not at his back, sir. You were already on your bed when he was about to leave the room? Yes, Sir. At that time that sex affair transpired between you and the accused, you did not even know his name? Yes, Sir. You were only told later on about this person? Yes, Sir.

ATTY. SALATANDRE: (to the Court) That will be all, Your Honor. COURT: Any redirect? PROSECUTION: Yes, your Honor. COURT:

Go ahead. PROSECUTION: Q A Q A Q A Q A Q A Q A You said that you were only able to identify the accused when he put on the lights, when he was about to leave the room, how far were you from the accused? This distance, sir. (parties stipulated a distance of four meters, more or less) You said that you saw his face at that time? Yes, sir. And before this incident of December 22, 1996, were there any other occasion that he had any sexual intercourse with you? None, sir. And you often saw him as attendant in that clinic? Yes, sir. And when you said that room was dark, is it totally dark or was it only a little dark? Little light, sir. It was a little bit dark and a little bit light. (medyo may ilaw) So the time that you had sexual intercourse with the accused at that time, you can identify the face of this person? Yes, sir.

COURT: (to the witness) Q A Q A You said that medyo may ilaw, where was the light emanating at about 3:00 in the morning? From the window outside, the room can be illuminated through the window, Your Honor. So when the light came from outside, was the source from the moon, from the bulb of the Meralco post or from another light coming from another building or house? It is the light actually coming from the ceiling of the building of the clinic which was outside the window, Your Honor.[20]

Though she may have exhibited emotions inconsistent with that of a rape victim ("inappropriate affect") during her testimony, such as by smiling when answering questions, her behavior was such as could be expected from a person suffering from schizophrenia. Otherwise, complainant was candid, straightforward, and coherent. Furthermore, aside from the testimony of Dr. Salangad on complainant's consciousness and memory,[21] it is established that schizophrenic persons do not suffer from a clouding of consciousness and gross deficits of memory.[22] It has long been settled that a person should not be disqualified on the basis of mental handicap alone.[23] With regard to the alleged inconsistencies between complainant's sworn statement[24] and her testimony as to the number of times she and accused-appellant had sexual intercourse and where they did the same, an examination of the evidence for the prosecution, particularly complainant's sworn statement and her interview with the examining medico-legal officer, shows that accused-appellant had sexual

intercourse with her in different positions at various places in the same room. When complainant testified, she stated that, aside from the fact that accused-appellant had sexual intercourse with her on her bed, he made her transfer later under the bed. Be that as it may, complainant has consistently established in all of her statements that he had sexual intercourse with her on her bed. Whether or not he had sex with her near the window and while facing him is of no moment and does not negate the finding of rape. Whatever may be the inconsistencies in her testimony, they are minor and inconsequential. They show that complainant's testimony was unrehearsed, and rather than diminish the probative value of her testimony, they reinforce it.[25] In the case at bar, the rape of complainant occurred in a room where other patients were sleeping. This circumstance, it is argued, is antithetical to the possibility of the commission of rape. As this Court has repeatedly said, lust is no respecter of time and place and the crime of rape can be consummated even when the malefactor and the victim are not alone.[26] The plausibility of an allegation of rape does not depend on the number of witnesses presented during the trial, so much so that, if the testimonies so far presented clearly and credibly established the commission of the crime, corroborative evidence would only be a mere surplusage.[27] In this case, the trial court gave credence to the testimonies of the prosecution witnesses on the basis of which it adjudged accusedappellant guilty. In the absence of bias, partiality, and grave abuse of discretion on the part of the presiding judge, his findings as to their credibility are entitled to utmost respect as he had the opportunity to observe their demeanor on the witness stand. [28] Nor does the absence of spermatozoa in the genitalia of complainant destroy the finding of rape since ejaculation is never an element thereof. [29] What consummates the felony is the contact of the penis of the perpetrator, however slight, to the vagina of his victim without her consent.[30] Neither is it required that lacerations be found in the victim's hymen. We have held that a medical examination is not a requisite for a rape charge to prosper as long as the victim categorically and consistently declares that she has been defiled.[31] In this case, aside from complainant's positive testimony, the medical examination of the complainant showed an abrasion on her labia minora, indicating that she had recent sexual intercourse.[32] That the deep healed lacerations found on the complainant's genitalia may have been caused seven days prior to December 22, 1996 is immaterial and irrelevant considering that she is a non-virgin. Accused-appellant also claims that complainant could have been hallucinating in alleging that she had sexual intercourse with him on December 22, 1996. In answer, suffice it to say that complainant was steadfast and consistent in stating that she was raped by accused-appellant. She maintained her allegation of rape when she was physically examined by the medico-legal officer, when she made her statement to the police and again when she testified in court.[33] Accused-appellant assails the trial court's finding of lack of consent on the part of the complainant to the sexual act. As the facts show, complainant herself admitted that she agreed to have sex with him after he gave her a stick of cigarette. However, it should be stressed that complainant was in no position to give her consent. As Dr. Salangad said in her testimony:

COURT: Q If you claim that the private complainant is suffering from this kind of illness, schizophrenia, and manifests behavior to the effect that she can not be active during lucid intervals now if she is suffering from this kind or mental state, can she give an intelligent consent considering that the private complainant is already above 20 years of age? In her case, I would say no, Your Honor. I will rephrase my question. Because when I asked to give an intelligent consent, you might be referring to acts that are very important to her like, for example, "do you want to eat?" of course, she will give an intelligent consent. "Do you want to sleep?" of course, she will give an intelligent consent? Yes, Your Honor. But things that would destroy her honor or reputation like for example having sex with her, can she give an intelligent consent? No, Your Honor. In other words, she would not know the consequences of her consenting to such a proposal to have sex? Yes, Your Honor. .... ATTY. SALATANDRE: Q A Q A Q A She can not give an intelligent consent to sex, your patient? Yes, sir. Meaning she will just agree? She has said so when I asked her. She was just offered a cigarette. Meaning if she opens her legs, she does not understand what she was doing? She probably knew what she was doing but when we say an intelligent consent, she has weighed the pros and cons on an action and its future significance and also based on the upbringing, sir. That she was on top of the bed, then the accused allegedly opened the zipper of his pants and pulled down the pants up to his knees and placed himself on top of the patient and tried to insert his organ to her organ and the girl said she agreed to it because she likes it, does it mean all those things that transpired she does not know or understand what was happening? She knew what was happening but there is a difference in her judgment, in her discernment. A child can be asked to lie down and knows that somebody was on top of him or her and that is the thing of being aware. But the judgment of the consent itself, the significance, the effect, we all know that a normal person does not do these unless he or she contemplates it. I just do not know if I am correct, my interpretation about what you are saying is that physically they are doing that, meaning the organ of the accused was inserted into the

A Q

A Q A Q A

organ of the patient allegedly but the girl did not resist, the girl did not comment whatsoever because she did not understand what is happening? COURT: No, she did not say that she did not understand what was happening, she can not discern. A Let me give you a little information. In the psychological state of mentally ill patients, the basic instinct of a person is very prominent. They respond, they eat and they can have sex, that is normal and they are just responding on the level of their basic instinct. When you are a mature person or a normal person and you have attained maturity and clearness of mind, you now, of course, try to put things into their proper perspective, socially and morally, that is where upbringing and education come in. I would say that the patient's case, she is more responding in an instinctual level without the use of intellect.[34]

Accused-appellant questions in this appeal the qualifications of Dr. Salangad as an expert witness. However, he cannot do this now as he did not raise any objection to Dr. Salangad's qualifications in the trial court. On the contrary, he even cross-examined her on the matters on which she testified. In accordance with Rule 132, 36, objections not timely raised are deemed waived. The fact that Dr. Salangad was hired by the family of complainant to give expert testimony as a psychiatrist did not by that fact alone make her a biased witness and her testimony unworthy of consideration. As has been said:

. . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they choose upon such testimonies in accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion.[35]
It has not been shown in this case that the trial court abused its discretion in appreciating the testimony of Dr. Salangad so as to justify setting aside its findings. Art. 335 of the Revised Penal Code, as amended by R.A. No. 7659, 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) (2) (3) By using force or intimidation; When the woman is deprived of reason or otherwise unconscious; and When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. ....

To warrant a conviction for rape under paragraph (2) of Art. 335, a woman need not be proven as completely insane or deprived of reason. The phrase "deprived of reason" has been construed to include those suffering from mental abnormality or deficiency or some form of mental retardation, those who are feebleminded although coherent. [36] That the complainant was suffering from schizophrenia at the time of the rape is shown by the fact that she was in the clinic precisely because of such illness and by her behavior at the trial, during which she would smile for no reason at all while answering the questions. Though she may not have totally lost her memory, it was shown that she was suffering from an impairment of judgment, which made her incapable of giving, an intelligent consent to the sexual act. It has been held that where the rape victim is feeble-minded, the force required by the statute is the sexual act itself. [37] Even assuming then that the complainant consented to have sexual intercourse with accused-appellant, the copulation would fall under the third paragraph of Art. 335 of the Revised Penal Code in view of the fact that complainant was mentally ill. Sexual intercourse with an insane, deranged, or mentally deficient, feebleminded, or idiotic woman is rape, pure and simple.[38] At any rate, complainant said in her sworn statement that she was afraid of accused-appellant because of the nature of his job as a nurse-aid. Thus she stated:
28. Tanong : Ikaw ba ay natatakot kay Eric? Sagot : Kaunti lang, dahil sa trabaho niya.[39]

As Dr. Salangad explained:

ATTY. SALATANDRE: . Q Meaning that when she was asked on page 2 "Tanong 27 Q - Ikaw ba ay tinakot o sinaktan ni Eric? S - Hindi naman po." This is her own answer, nobody threatened her at that time? Yes, sir, but may I add. There was no direct threat but in her situation she was brought there for confinement and treatment and for safekeeping. She is in a situation wherein the attendants and the nurses are all authorities around her, who dictate what to do. I

believe that there was some kind of threat or force in that level, although there was no direct threat in the action. COURT: Q A In the mind of Nieva Garcia, who were those that might be threatening to her? The accused somehow had made the threat. Because in their daily activity, the attendants and nurses dictate the things to do, they follow, they are bosses in the clinic, they are in that kind of situation always, Your Honor. That explains your presence during the investigation? To assist her in order that she is not afraid and in response to earlier question of counsel if the patient was directly threatened or intimidated during the act, I am giving you a general situation in an institution, in this kind of institution. Sometimes they are restrained if they go out of line, they are ones who restrain them, the attendants and the nurses do these, Your Honor.[40]

Q A

As already stated, accused-appellant invoked alibi in his defense. He claimed that, at the time of the incident, he was in his quarters at the Holy Spirit Clinic sleeping. For the defense of alibi to be believed, the following requisites must be met: (a) his presence at another place at the time of the perpetration of the offense must be proven; and (b) it was physically impossible for him to be at the scene of the crime. [41] Accused-appellant's testimony itself demonstrates the untenability of his alibi. First, his declaration that he was in another room of the clinic is uncorroborated. Second, the room in which he said he was sleeping at that time of the incident was only a few meters away from the patients' room where complainant was confined. Third, he admitted that, as a nurse-aide, he was allowed to enter the patients' room anytime for purposes of checking on the patients. Above all, his alibi cannot be given credence because complainant has pointed to him as the culprit of the rape. In cases in which the accused-appellant was identified by the victim herself who harbored no ill motive against him, the defense of alibi was rejected.[42] The trial court correctly awarded moral damages in the amount of P50,000.00, in accordance with our recent rulings that moral damages may be awarded in rape cases without any need of proof of moral suffering. However, in addition, civil indemnity in the amount of P50,000.00 should have been awarded the complainant consistent with the ruling that rape victims are entitled to such an award without need of proof except the fact of the commission of the offense.[43] On the other hand, the plea of the prosecution that the indemnity should be raised to P75,000.00 cannot be granted because such amount is awarded only in cases of qualified rape. In this case, there were no qualifying circumstances raising the penalty to death.[44] WHEREFORE, the decision of the Regional Trial Court, Branch 95, Quezon City is AFFIRMED with the modification that, in addition to the award of P50,000.00 for moral damages made by the trial court, complainant should be indemnified in the amount of P50,000.00. SO ORDERED. Quisumbing, Buena, and De Leon, Jr., JJ., concur.

Bellosillo, J., (Chairman), on leave.

SECOND DIVISION

[G.R. No. 136113. August 23, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILLIE QUIBIDO, RUEL QUIBIDO, and JOHN DOE, (All At Large) RODOLFO MONTEMAYOR ALIAS DOLFO, accused appellant. DECISION
DE LEON, JR., J.:

Before us on appeal is the Decision[1] of the Regional Trial Court of Calapan City, Oriental Mindoro, Branch 40, in Criminal Case No. C-3971, convicting herein appellant, Rodolfo Montemayor, and his co-accused, Ruel Quibido, of the crime of robbery with homicide. The lifeless body of Sofio Verguela was discovered inside his house in Bagong Silang, Victoria, Oriental Mindoro, lying face down on the floor in a pool of blood, in the early morning of February 16, 1993. His head was bashed with a blunt instrument fracturing the skull and exposing parts of his brain tissues. It was also discovered that one (1) blanket, one (1) radio and a wallet containing undetermined amount of money, all belonging to the victim, were missing.[2] On February 24, 1993, Luciano M. Vergara and Pedrito B. de Lara executed separate sworn statements before PO3 Herbert Tabernero of the Victoria, Oriental Mindoro police. Vergara stated in his sworn statement that he saw Willie Quibido, Jr., Ruel Quibido, a certain alias Dolfo, and another unidentified person, acting suspiciously while in the act of coming out of the house of the victim, at about the same time the killing incident happened at 9:00 oclock in the evening on February 15, 1993. On the other hand, de Lara was able to recognize from the group Willie Quibido, Jr. only.[3] Consequently, the accused Willie Quibido, Jr., Ruel Quibido, a John Doe and a Peter Doe were charged with the crime of robbery with homicide, defined and penalized under Article 294, paragraph 1 of the Revised Penal Code, in an information that reads:

That on or about the 15th day of February 1993, at around 9:00 oclock in the evening, in Barangay Bagong Silang, Municipality of Victoria, Province of Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, taking advantage of the darkness of the night, with evident premeditation and by means of violence, did then and there wilfully,

unlawfully and feloniously enter the house of SOFIO VERGUELA also known as SOFIO VERGUERA and once inside, wilfully, unlawfully and feloniously, with the use of violence, with intent to gain and against the will and consent of the owner thereof, took and carried away one (1) radio, one (1) blanket, one (1) wallet and undetermined amount of money all belonging to the latter, to the damage and prejudice of the said owner in the value of properties aforementioned; That on the occasion of said robbery and for the purpose of enabling them to take, steal and carry away the properties above-mentioned, the herein accused, in pursuance of their conspiracy and taking advantage of their superior strength, did then and there wilfully, unlawfully, feloniously and treacherously, with intent to kill and evident premeditation, attack, assault and hit on the head with a hard object the said SOFIO VERGUELA also known as SOFIO VERGUERA, thereby inflicting on the latter severe brain injury due to skull fracture resulting in his untimely death. CONTRARY TO LAW.
Willie Quibido, Jr. was never apprehended and remains at large up to the present. Herein appellant Rodolfo Montemayor who was initially denominated as John Doe in the information in this case, and his co-accused, Ruel Quibido, were arrested on August 29, 1994 and September 5, 1994, respectively. Upon being arraigned on September 28, 1994, Rodolfo Montemayor, alias Dolfo, and Ruel Quibido, [4] both assisted by counsel de oficio, separately entered the plea of Not guilty. Meanwhile, Emil Berganio was arrested by the police on November 11, 1994. After having agreed to testify in favor of the prosecution, Berganios name was not included in the information as one of the accused in this case. On the same date of his arrest, his sworn statement[5] was taken and which he subscribed and sworn to before Oriental Mindoro Chief Assistant Provincial Prosecutor Nicolas B. Senoren. The evidence of the prosecution shows that on February 15, 1993 at around 5:00 oclock in the afternoon the appellant, Rodolfo Montemayor alias Dolfo, and a certain Bokno invited Emil Berganio, a barrio mate in Barangay Antonino, Victoria, Oriental Mindoro, to join them to go out of town in search for employment. Emil went with Dolfo and Bokno upon learning that they were supposed to leave early on the following morning after they shall have allegedly collected a debt, to be used for their fare to Batangas, from a certain person in Barangay Bagong Silang, Victoria, Oriental Mindoro.[6] While walking alongside the NIA irrigation canal, the trio met Boknos brother, Ruel Quibido, and his wife at a waiting shed. The group then boarded a passenger jeepney that took them to the neighboring Barangay Macatoc. From Barangay Macatoc, they proceeded on foot to the nearby Barangay Bagong Silang.[7]

As planned earlier, Ruel, Bokno and Dolfo entered a two (2) storey house in Barangay Bagong Silang, Victoria, Oriental Mindoro at around 9:00 oclock in the evening. Emil remained outside the house presumably as look out, while Ruels wife was left outside the fence. From a distance of about three (3) arms length, Emil saw Ruel through the light emanating from a gas lamp inside the house, demanded money from an old man, whose name Emil later learned as Sofio Verguela, while Dolfo was pointing his airgun at him. When the old man replied that he had no money, Ruel hit him on the head with the shotgun which he earlier carried inside a sack, and then Bokno stabbed him. After the old man fell on the floor, Ruel took his wallet, while the others took his radio, before they hurriedly left for Poblacion, Victoria, Oriental Mindoro. [8] After a few hours, the group rode the bus at the public market in Victoria, Oriental Mindoro en route to Calapan City. Upon reaching Calapan City, they dropped by the house of Ruel Quibidos mother for a few minutes before they boarded the boat at the pier bound for Batangas. They stayed in the house of Ruel Quibidos parents-in-law in Nasugbu, Batangas for more than one (1) month. Subsequently, they moved to Metro Manila in the house of Ruel Quibidos uncle in Quezon City where they stayed for more than two (2) months after which Emil decided to return home in Victoria, Oriental Mindoro ahead of his companions.[9] Emil disclosed to the police his knowledge involving the killing of Sofio Verguela when he was arrested on November 11, 1994, upon the advice of his father, after he was assured by the police of immunity from the instant criminal case.[10] Dr. Ruben A. Quimosing, M.D., Municipal Health Officer of Victoria, oriental, Mindoro during the time material to the instant case, conducted the post mortem examination on the body of the victim, Sofio Verguela. The autopsy report dated February 16, 1993 and signed by Dr. Ruben A. Quimosing shows the following findings:

Skull, open Brain tissue, avulsed, with laceration Cause of death: Severe brain injury due to skull fracture.[11]
Dr. Quimosing testified in court that the single blow sustained by the victim on the frontal left portion of his head which fractured the skull caused severe brain injury that inevitably resulted to his instantaneous death. The blow may have been inflicted with the use of any hard object while the victim and the assailant were facing each other. [12] The defense denied any liability for the crime of robbery with homicide. Apellant Rodolfo Montemayor testified that on February 15, 1993 and during the period prior thereto, he shared a house with his brother, Randy Montemayor, in Barangay Loyal, Victoria, Oriental Mondoro which is about twenty (20) kilometers of mountainous terrain from Barangay Bagong Silang of the same town. From Barangay Loyal, one had to pass by the town proper in order to reach, in two (2) hours, Barangay Bagong Silang with the use of a motor vehicle. If a person were to travel on foot, the distance between the two (2) barangays can be covered in about five (5) hours.[13]

On February 15, 1993, at around 9:00 o'clock in the evening, Rodolfo played "dama" in the house of his neighbor, Benjamin Grimaldo. He went home to sleep only after 10:00 o'clock in the evening.[14] The appellant denied using the alias name "Dolfo".[15] He likewise denied that he knew Willie Quibido, Jr. and Ruel Quibido on February 15, 1993. Rodolfo heard of their names through their sister, Rowena Quibido, whom he met in Minas, Victoria, Oriental Mindoro only on May 4, 1993, and who became his common-law wife on May 31, 1993.[16] On August 26, 1994, at 9:00 o'clock in the morning, Rowena and Rodolfo visited the house of the former's parents in Danggari, Victoria, Oriental Mindoro. Willie Quibido, Sr. and his wife, Rosita, including their sons, Jojo and Ruel Quibido, were present on the said occasion. At around 9:00 o'clock in the evening, a police team headed by a certain Magnayon raided the house of Willie Quibido, Sr. The police failed to arrest Willie Quibido, Sr. and his sons, Jojo and Ruel, for the reason that they had left earlier toward the forest at around 8:00 o'clock in the evening. Rodolfo and Rosita denied to the police having any knowledge on the whereabouts of Willie Quibido, Sr. and his sons,[17] namely, accused Willie Quibido, Jr. and Ruel Quibido. After the police had departed, appellant Rodolfo Montemayor and Rowena took Rosita to a relative in Poblacion, Victoria, Oriental Mindoro inasmuch as she needed to take medicine. On August 27, 1994, the three (3) proceeded to Barangay Loyal, Victoria, Oriental Mindoro. However, a person carrying a letter arrived and invited them to the police detachment for investigation. Upon arrival at the police detachment in Malayas, Victoria, Oriental Mindoro, the appellant was asked by Magnayon, who earlier headed the team that raided the house of Willie Quibido, where they could possibly find Willie Quibido and his sons Jojo and Ruel. When he answered in the negative, Magnayon warned that he (appellant) may be implicated in the crime.[18] On August 28, 1994, at around 3:00 o'clock in the afternoon, a certain Diego and Emil Berganio arrived at the Malayas police detachment. Magnayon introduced the appellant,, as the "son-in-law of Willie Quibido, Sr. and brother-in-law of Ruel Quibido", before Diego and Emil had a conversation with Magnayon inside the latter's office.[19] Thereafter, the appellant was brought to the PNP headquarters in Calapan City, Oriental Mindoro. Incidentally, after learning from a neighbor on February 16, 1993 of the death of Sofio Verguela, defense witness Pedrito B. de Lara went to see Sonny de Ocampo, who is the late Verguela's son-in-law, to inform him of what he saw on the evening of February 15, 1993 when the victim was purportedly killed. Pedrito related to Sonny that he met Willie Quibido, Jr. and Ruel Quibido together with two (2) other persons on February 15, 1993 at around 9:00 o'clock in the evening along the road in Barangay Bagong Silang, Victoria, Oriental Mindoro which was about fifty (50) meters away from the house of his father-in-law. He was on his way home after watching television in the house of his uncle while Willie Quibido, Jr., Ruel Quibido together with two (2) other persons were heading towards the opposite direction. He inquired where they were going (Saan ang lakad n'yo?) but nobody answered from the group inasmuch as they were walking hurriedly. Pedrito did not know the two (2) other companions of Willie

Quibido, Jr. and Ruel Quibido although he saw their faces when he focussed his flashlight on them. He declared on the witness stand that appellant Rodolfo Montemayor was not one of the companions of the Quibido brothers. [20] In addition, Pedrito recalled that four (4) days prior to the killing of Sofio Verguela, Willie Quibido, Jr. invited him to join in robbing the store of a certain Angeles Vergara whose house was located directly across the house of the victim in Barangay Bagong Silang. Pedrito refused. He did not report the incident to the police authorities however, for the reason that he did not wish to offend Willie Quibido, Jr. who was a childhood friend.[21] After analyzing the evidence, the trial court found as follows:

It is clear from the testimony of prosecution witness Emil Berganio that he was certain that said accused Rodolfo Montemayor alias "Dolfo" poked an airgun at the victim, while accused Ruel Quibido demanded money, and when the victim replied to have no money, Ruel Quibido hit the victim with a shotgun while accused only named "Bokno" stabbed him. In the face of the foregoing clear and positive identification of accused Rodolfo Montemayor, alias "Dolfo" as one of those who robbed and killed Sofio Verguela, his defense of alibi clearly appears nothing but a mere concoction a fabrication designed to exculpate him of the crime charged. It is also striking to note that the defense did not even present in Court Benjamin Grimaldo to corroborate the testimonies given by accused Rodolfo Montermayor that the latter was playing "dama" with the former when the incident happened. This cast a grave doubt as to the veracity and truthfulness of the testimonies given by accused Rodolfo Montemayor. xxx the Court is more inclined to believe the testimonies given by prosecution witness Emil Berganio, whose veracity can hardly be assailed and had narrated in detail the facts of hove the crime was committed. Said witness was able to clearly identify the accused Ruel Quibido, Willie Quibido (Jr.) and Rodolfo Montemayor alias "Dolfo" as the perpetrators of the crime charged. From the clear evidence presented by the prosecution, accused Ruel Quibido did not put up a defense; instead, he opted to escape from detention. His escape even during the pendency of the case, is therefore a clear indication of his guilt,
Hence, it ruled thus:

ACCORDINGLY, finding herein accused RUEL QUIBIDO and RODOLFO MONTEMAYOR alias "Dolfo" guilty beyond reasonable doubt of the complex crime of "Robbery with Homicide" punishable under Article 294(1) of the Revised Penal Code, and there being no mitigating nor aggravating circumstance present in this case, said accused are hereby sentenced to suffer the penalty of "RECLUSION PERPETUA" with all the accessory penalties provided by law, and to indemnify the heirs of the victim Sofio Verguela the amount of Fifty Thousand Pesos (P50,000.00) as moral and exemplary damages and to pay the costs.
Appellant Rodolfo Montemayor interposed the following assignment of errors:
I.

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH HOMICIDE DESPITE INSUFFICIENCY OF EVIDENCE.
II

THE COURT A QUO GRAVELY ERRED GIVING FULL WEIGHT AND CREDENCE TO THE INCREDIBLE TESTIMONY OF EMIL BERGANIO AND IN NOT APPRECIATING THE DEFENSE INTERPOSED BY THE ACCUSED APPELLANT.
The trial court accorded full faith and credence to the testimony of the lone prosecution witness, Emil Berganio. On the other hand, appellant Rodolfo Montemayor contends in his appeal 1) that the execution of Emil Berganio's sworn statement after his arrest on November 11, 1994 cast serious doubt on his credibility; 2) that the physical evidence on record contradicts the testimony of Emil Berganio on material points; 3) that Berganio's testimony is highly incredible inasmuch as it contradicts human experience; and 4) that defense witness Pedrito de Lara categorically stated that the appellant was not one of the two companions of Willie Quibido, Jr. and Ruel Quibido in the evening of February 15, 1993.[22] Consequently, the fate of the instant appeal rests on the determination of the credibility of prosecution witness Emil Berganio. It is a well-settled rule that testimonial evidence to be believed must not only proceed from the mouth of a credible witness but must foremost be credible in itself.[23] The test to determine the value or credibility of testimony of a witness is whether or not such is in conformity with common knowledge and consistent with the experience of mankind.[24] Prosecution witness Emil Berganio confessed that he was in the company of herein appellant Rodolfo Montemayor alias Dolfo, Willie Quibido, Jr. and Ruel Quibido when they robbed and killed Sofio Verguela inside his house. in Bagong Silang, Victoria,

Oriental Mindoro in the evening of February 15, 1993. However, the fact that he may have been a co-conspirator in the commission of the offense is not in itself sufficient to dilute the credibility of, much less a ground to disregard altogether, his testimony. The general rule is that the testimony of a co-conspirator is not sufficient for conviction unless supported by other evidence. The reason is that it comes from a polluted source. It must be received with caution because, as is usual with human nature, a culprit, confessing a crime, is likely to put the blame as far as possible on others rather than himself.[25] By way of exception, the testimony of a co-conspirator may, even if uncorroborated, be sufficient as when it is shown to be sincere in itself, because given unhesitatingly and in a straightforward manner, and is full of details which by their nature could not have been the result of deliberate afterthought.[26] Admittedly, Emil Berganio agreed to testify for the prosecution upon advice of his father after having been assured of immunity from the instant criminal complaint by the prosecution. True to his undertaking, Emil narrated during the trial in a candid and straightforward manner, a detailed account of the facts and circumstances before, during and after the commission of the crime, subject of the instant criminal case. In the course of his testimony, Emil clearly and positively identified in court the accused Ruel Quibido and herein appellant, Rodolfo Montemayor, as among the persons who robbed and killed Sofio Verguela.[27] He was consistent in his testimony and did not waver even during the extensive and rigorous cross-examination of the defense counsel, thus giving the Court a clear impression that he was sincere and credible. The trial court correctly rejected the defense of alibi of the appellant for the reason that he was positively identified by prosecution eyewitness Emil Berganio who does not appear to have any motive against him to fabricate evidence. [28] Also, the distance of the alleged whereabouts of the appellant in relation to the scene of the crime does not preclude any doubt on the physical impossibility of his presence at the locus criminis or its immediate vicinity at the time of its commission.[29] Hence, it has been established beyond reasonable doubt by the evidence on record that herein appellant Rodolfo Montemayor and his co-accused, Ruel Quibido and a certain Bokno, together with prosecution witness Emil Berganio went to Barangay Bagong Silang, Victoria, Oriental Mindoro in the late afternoon of February 15, 1993. Upon arrival thereat at 9:00 o'clock in the evening, Rodolfo, Ruel and Bokno entered the house of Sofio Verguela as earlier planned. Emil remained outside the house presumably to act as a look out. Ruel demanded money from Sofio while Rodolfo was pointing his airgun at him. Subsequently, Ruel hit Sofio's head with a shotgun when the latter who was an old man refused, stating that he had no money. They then divested Sofio of his wallet and radio before heading for the Victoria Public Market in Victoria, Oriental Mindoro en route to Calapan City. The group stayed for more than one (1) month in Nasugbu, Batangas before moving to Quezon City, Metro Manila. After more than two (2) months, Emil returned to Victoria, Oriental Mindoro where he was arrested by the police on November 11, 1994.

Appellant Rodolfo Mantemayor contends that Emil Berganio could not have possibly witnessed the killing on February 15, 1993 of Sofio Verguela, whose lifeless body was found by the police Inside his room on the following day, inasmuch as according to Berganio, he remained outside the house. Appellant also contends that contrary to the testimony of Berganio to the effect that Bokno stabbed Sofio Verguela, the autopsy report dated February 16, 1993, did not reflect a finding of any stab wound on the body of the said victim. The above contentions of appellant are inadequate to overturn the established fact that Emil Berganio was in the company of the appellant and his co-accused in Barangay Bagong Silang, Victoria, Oriental Mindoro in the evening of February 15, 1993 when they robbed and killed Sofio Verguela inside his house. While Emil remained outside the house presumably to serve as a look out, his relative position was merely three (3) arms length away from the scene of the crime. Considering the proximity of his location and the illumination emanating from a gas lamp inside the house, it was not impossible for him to see the crime that was then unfolding. Likewise, the apparent discrepancy between the testimony of Emil Berganio that Bokno stabbed Sofio and the negative findings on the matter in the autopsy report is not sufficient to erode the credibility of his said testimony. Such misappreciation of Bokno's individual participation in the crime becomes immaterial in view of the fact that the prosecution witness has shown clearly and convincingly during the trial that he was aware of the violence that was being perpetrated by the appellant and his co-accused against Sofio Verguela in furtherance of their evil conspiracy. Emil testified in court that prior to the commission of the crime, Rodolfo and Ruel were respectively armed with an airgun and a shotgun. Rodolfo and his co-accused even discussed their plan[30]before entering the house of Sofio Verguela against the latter's will in Barangay Bagong Silang, Victoria, Oriental Mindoro. The appellant also contends that it was unlikely for Emil Berganio to have joined the appellant and Bokno, whom he admitted were not close acquaintances, after being invited to join them to go out of town allegedly to search for employment. This contention is bereft of merit for the reason that Bokno is a barrio mate [31] of Emil in Barangay Antonino, Victoria, Oriental Mindoro; and that he personally knew Bokno's brother, Ruel Quibido, who is also one of the accused in the case at bench. That Emil erroneously referred to Ruel Quibido's wife as Rowena, when the said name allegedly refers to Quibido's sister, who is the appellant's common-law-wife, is quite a minor detail that has no adverse bearing on his credibility.[32] Lastly, the testimony of defense witness Pedrito de Lara that herein appellant was not one of the two (2) companions of Willie Quibido, Jr. and Ruel Quibido appears doubtful or unreliable in view of the fact that it was dark when he met them by chance in the evening of February 15, 1995. According to him, he was able to focus his flashlight at them for about sixty (60) seconds only inasmuch as they were in a hurry and avoided any conversation with him. In fact, he only recognized Willie Quibido, Jr. and Ruel Quibido[33] whom he already knew from childhood.

In view of the foregoing, the guilt of the appellant for the crime of robbery with homicide was established beyond reasonable doubt. Article 294 (1) of the Revised Penal Code provides:

ART. 294. Any person guilty of robbery with the use of violence against or any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson.

Notably, the aggravating circumstances of treachery, nocturnity and dwelling attended the commission of the robbery and the killing of Sofio Verguela on the occasion thereof. Still, the proper imposable penalty is reclusion perpetua considering that at the time of the commission of the crime on February 15, 1993, the imposition of the death penalty was legally proscribed. WHEREFORE, the appealed Decision of the Regional Trial Court of Calapan City, Oriental Mindoro, Branch 40, is AFFIRMED. The appellant, Rodolfo Montemayor, is hereby sentenced to suffer the penalty of reclusion perpetua and to pay to the heirs of the victim Soflo Verguela, the amount of P50,000.00 by way of civil indemnity ex delicto in addition to the amount of P50,000.00 as exemplary damages and to restore to the said heirs the stolen items belonging to the victim. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

[G.R. No. 130590. October 18, 2000]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RANILLO PONCE HERMOSO alias ALLAN, accused-appellant. DECISION
Per Curiam:

For review is the decision[1] of the Regional Trial Court, Branch 19, Pagadian City, finding accused-appellant Ranillo Ponce Hermoso, alias Allan, guilty of rape with homicide and sentencing him to suffer the penalty of death with all the accessory penalties prescribed by law and to indemnify the heirs of the victim, Glery P. Geoca, in the amount of P500,000.00 as actual damages, P750,000.00 as moral damages, and P500,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency.

The amended information[2] against accused-appellant alleged That on June 2, 1996 at about 9:30 oclock in the evening at Barangay Little Baguio, Municipality of Imelda, Province of Zamboanga del Sur, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Glery Geoca, a minor, seven (7) years of age, against the latters will and on said occasion and by reason of the rape, the said Glery Geoca died as a result of personal violence inflicted upon her by the accused. Act contrary to Article 335 of the Revised Penal Code as amended by R.A. No. 7659. On September 11, 1996, accused-appellant, assisted by counsel, was arraigned during which the information was read to him in the Cebuano dialect which he confirmed to have understood.He then entered a plea of not guilty. He was informed by the trial court of the names of the five prosecution witnesses and their respective addresses. Then the case was tried. The prosecution presented six witnesses, namely, Josephine Gonzales, Naciansino Hermoso, Sonny Boy Altamera, Joveniano Pansacala, Ireneo Geoca, father of the victim, and Dr. Atilano A. Ocampos, Chief of Hospital I of the Alicia District Hospital in Alicia, Zamboanga del Sur. The prosecution also offered the following object and documentary evidence, to wit: the wallet (Exh. A) of accused-appellant containing his personal identification, such as Social Security System I.D. Card No. 0462677-7 (Exh. B), a photocopy of his SSS personal record (Exh. D), and his Community Tax Certificate No. 18046043 (Exh. E); five sweepstakes tickets bearing No. 236458 with April 21, 1996 as draw date (Exh. C); a picture of Miss Limpac (Exh. F), niece of Naciansino Hermoso, with a dedication at the back of the picture reading Love, take care, good health, good luck, God Bless You; a small picture (Exh. G); another picture (Exh. H); a picture of accused-appellants younger sister (Exh. I) a picture of his younger brother named Benjie (Exh. J); a group picture (Exh. K); and two coins (Exh. L) - a P1.00 coin and a P0.10 coin; the birth certificate of the victim Glery P. Geoca (Exh. M, with sub-markings) showing her date of birth as September 12, 1988; and a Certification issued by Dr. Atilano A. Ocampos (Exh. N and its submarkings) on the postmortem examination conducted on the victim. The prosecution evidence shows the following: At about 6:00 p.m. of June 2, 1996, Ireneo Geoca, father of the victim Glery P. Geoca, became worried as his daughter had not come home from

the Little Baguio Elementary School in Imelda, Zamboanga del Sur where she was in Grade II. Ireneo Geoca sent his other daughter Girlie Geoca to look for the victim. When the victim failed to be home at 7:00 p.m., Ireneo Geoca sought the help of the barangay officials and his neighbors.[3] In response, Barangay Captain Sonny Boy Altamera organized a search team composed of barangay tanods and other civilians. On their way to look for Glery, Altamera and his party met Josephine Gonzales who told them that she saw the victim in the company of accused-appellant at about 5:30 p.m. of that day as they passed by her house. The two were walking toward the house of one Helen Dabasol, according to the witness. Altamera was likewise informed by Lilia Bartido, who owned a nearby store, that she saw accused-appellant handing some candies to the victim at about 6:00 p.m. of that day.[4] Altamera and his party, therefore, proceeded to the house of accusedappellant where he met Federico Hermoso, father of the accusedappellant. Altamera informed the elder Hermoso that Glery was missing and that she was last seen with his son. Altamera was allowed inside the house but he did not find accused-appellant. He later found accused-appellant under a tree, about 10 meters away from the house. Accused-appellant denied knowledge of the whereabouts of the missing girl. At about 9:30 a.m., with the consent of his family, accused-appellant was taken by Altamera to his house. Accused-appellant was accompanied by Federico Hermoso, Ernesto Pardillo, Jave Tamac, and some neighbors.[5] At about 12:30 a.m. of June 3, 1996, Naciansino Hermoso and his group went to the house of Altamera bringing with them a mans wallet, which Naciansino said he found on a grassy area in Barangay Little Baguio. The wallet contained, among other things, accused-appellants SSS identification card, a photocopy of his SSS personal record, his Community Tax Certificate No. 18046043, five sweepstakes tickets, pictures of accused-appellants younger brother and sister, and two coins.[6] Naciansino turned over the wallet and its contents to Barangay Captain Altamera. Upon seeing his wallet, accused-appellant admitted raping and killing Glery P. Geoca and pointed out the place where the body of the victim could be found, which is about 200 meters away from where the wallet was discovered. A team led by Joveniano Pansacala found the body of the victim at about 1:00 a.m. of that day. The body showed signs that Glery had been subjected to violence and raped. Accused-appellant was thereafter turned over to the police. In the meantime, upon instructions of the mayor, the body of the victim was examined.[7] Per her Certificate of Death,[8] the cause of Glery P. Geocas death was cardio-respiratory failure, the antecedent cause was rape and the

underlying cause was asphyxia by strangulation. Dr. Atilano A. Ocampos, who conducted an autopsy on the body on June 3, 1996, found the following:
= Multiple punctuate hematoma temporal right, abrasions inner canthi, bilateral; hematoma 8 inches in length, 1 inch in width, semi-circular, temporo-frontal area, face left, extending to the zygomztic area; multiple abrasions of buccal mucosa upper and lower lips = Multiple abrasions 1x1 in diameter, average, neck = Circular hematoma 2x3 in diameter, bilateral, mammary glands = Massive hematoma 3x3 in diameter, circular, lateral arm left; linear abrasions multiple, forearm right = Abrasion 1 centimeter diameter 5th finger, left, dorsum = Multiple abrasion lateral and medial aspect upper extending right = Hematoma massive vulva and mons pubis = Hematoma moderate 2 in number anterior thigh, right = Hematoma 1x 1 in diameter middle anterior shin, left = Linear abrasion 1 inch postero-lateral, level of the 10th posterior rib = Linear abrasion 6 inches in length running oblique lumbo-sacral area, posterior =Massive hematoma 4 inches in diameter level of the 10th thoracic vertebrae =Hematoma labia minora right upper quadrant = Laceration, entroitus, ruptured hymen = Hematoma cervix left, laceration vaginal canal right[9]

Dr. Ocampos testified that the body was in a state of rigor mortis when he examined it. The victim sustained contusions and multiple hematoma and was thereafter choked to death. He opined that the hymenal laceration could have been caused by pressure or trauma such as sexual intercourse.[10] After the prosecution had offered its testimonial and documentary evidence, accused-appellant filed a demurrer to which the prosecution filed a reply. On January 9, 1997, the trial court denied accused-appellants demurrer to evidence for lack of merit. On March 17, 1997, the defense manifested in open court that accusedappellant was changing his plea from not guilty to guilty. Defense counsel Atty. Pablito Pielago, Jr. informed the trial court that he had prepared for trial but accused-appellant insisted on changing his plea even after being told of the consequences of pleading guilty to the charge, including the probability that he would be sentenced to death should he be found guilty. Accordingly, the trial court issued an order on the same day stating:

When the above-entitled case was called for continuation of trial for the purpose of presenting evidence of accused Ranillo Ponce Hermoso alias Allan, Prosecutor Edilberto Absin appeared for the state in collaboration with private prosecutor Atty. Marcial Empleo, while Atty. Pablito Pielago, Jr., appeared as counsel de oficio for the accused. In open court, Atty. Pablito Pielago, Jr., Manifested that the accused has intimated to him on his desire to change his plea of Not Guilty to one of GUILTY. When asked by the Court whether he has explained to the accused of the seriousness of the crime he is charged, Atty. Pablito Pielago, Jr., confirmed to the Court that he has explained in detail to the accused on the seriousness of the charge he is facing, but he still insisted on his desire to admit his guilt. In fact, according to Atty. Pielago, he went to the extent of telling the accused that it is possible that the Court may render the penalty of death, but accused insisted on his desire to change his plea of Not Guilty to one of Guilty. With such manifestation of Atty. Pielago, the Court called on the accused and asked him through the interpreter in Cebuano dialect, which he confirmed to have known and understood, on his desire to change his plea of Not Guilty to one of Guilty, and in open court, in the presence of his counsel, the public prosecutor and the private prosecutor, accused voluntarily admitted his guilt of the charge filed against him in this case. WHEREFORE, with such desire of the accused to change his plea from Not Guilty to one of Guilty, let him be arraigned anew. SO ORDERED.[11] The defense then informed the court that it was not presenting any evidence, for which reason the case was considered submitted for decision. On June 10, 1997, the trial court rendered its decision, the dispositive portion of which reads: WHEREFORE, this Court hereby finds accused RANILO PONCE HERMOSO alias Allan guilty beyond reasonable doubt of the crime of RAPE WITH HOMICIDE, and sentences him to the ultimate penalty of DEATH, with all the accessory penalties prescribed by law, and orders him to pay the heirs of Glery Geoca the sum of P500,000.00 as actual damages, P750,000.00 as moral damages and P500,000.00 as exemplary damages without subsidiary imprisonment in case of insolvency. No pronouncement as to costs. SO ORDERED.[12]

Pursuant to Rule 122, section 10 of the Rules on Criminal Procedure, the case was elevated to this Court for automatic review in view of the imposition of the death penalty on accused-appellant. Accused-appellant maintains that, based on the evidence of the prosecution, his guilt has not been shown beyond reasonable doubt. Reiterating the grounds for his demurrer to the evidence, he contends that while Josephine Gonzales said she saw the victim and accused-appellant and other children pass by her house as they went towards the house of her neighbor Helen Rabasol, there was no testimony showing that he was the perpetrator of the crime. Accused-appellant also denies the testimony of Naciansino Hermoso who claimed to have found the wallet belonging to accused-appellant while looking for Glery P. Geoca. Accused-appellant avers that the wallet does not constitute direct evidence to link him to the crime. Naciansino Hermoso and accused-appellants father are brothers. Accused-appellant claims that Naciansino had a grudge against accused-appellants father because the latter had been occupying and cultivating the agricultural land of their parents to the exclusion of Naciansino. Accused-appellant alleges that Naciansino sought revenge towards accused-appellants father by testifying against accusedappellant.Accused-appellant alleges that the testimonies of Joveniano Pansacala, Dr. Atilano A. Ocampos, and Ireneo Geoca are hearsay evidence and do not prove his guilt. He argues that his confession is inadmissible in evidence because it was given without counsel while he was under custodial investigation by Barangay Captain Sonny Boy Altamera. These contentions are without merit. To be sure, a perusal of the records show that the trial court accepted accused-appellants plea of guilty to a capital offense without making a searching inquiry to determine whether he understood the consequences of his plea. This is contrary to Rule 116, section 3 of the Rules on Criminal Procedure which makes it the duty of the court, when an accused pleads guilty to a capital offense, to undertake the following: (1) conduct a searching inquiry into the voluntariness of the plea and the accuseds comprehension of the consequences thereof; (2) require the prosecution to prove the guilt of the accused and the precise degree of his culpability; and (3) ask the accused if he desires to present evidence on his behalf and allow him to do so if he desires.[13] To constitute a searching inquiry, the questioning must focus on (1) the voluntariness of the plea, and (2) whether the accused understood fully the consequences of his plea.[14] The judge must be convinced that in pleading guilty, the accused is truly guilty by requiring the accused to narrate the

events leading to the crime, making him re-enact it, or asking him to supply missing details. In the present case, the records show that the trial court did not observe these safeguards to ensure that the plea of guilty is not improvidently made. There was no affidavit presented nor statement made in court to show why accused-appellant changed his plea from Not guilty to guilty. The records merely contain an order, dated March 17, 1997,[15] allowing accusedappellant to be arraigned anew, the Certificate of Arraignment, dated March 17, 1997,[16] and the order, likewise dated March 17, 1997, making accusedappellants plea of guilt of record. This last order states: Accused Ranillo Ponce Hermoso alias Allan having manifested in court duly assisted by his counsel to change his plea of Not Guilty to one of Guilty, the Court arraigned him anew by reading the Information in Cebuano dialect, and in open court, duly assisted by Atty. Pablito Pielago, Jr., his counsel de oficio, accused entered the plea of Guilty, changing in effect his original plea of Not Guilty. WHEREFORE, in view of the foregoing, and the Court having been satisfied on the voluntariness of the change of plea of Guilty from one of Not Guilty by accused Ranillo Ponce Hermoso, consider the above-entitled case as deemed submitted for decision. SO ORDERED.[17] In the case of People vs. Nadera,[18] we explained the importance of the trial court conducting a searching inquiry, thus: The warnings given by the trial court in this case fall short of the requirement that it must make a searching inquiry to determine whether accused-appellant understood fully the import of his guilty plea. As has been said, a mere warning that the accused faces the supreme penalty of death is insufficient. (People v. Estomaca, 326 Phil. 429 (1996)). For more often than not, an accused pleads guilty upon bad advice or because he hopes for a lenient treatment or a lighter penalty. The trial judge must erase such mistaken impressions. (People v. Bello, G.R. Nos. 130411-14, October 13, 1999) He must be completely convinced that the guilty plea made by the accused was not made under duress or promise of reward. The judge must ask the accused the manner the latter was arrested or detained, and whether he was assisted by counsel during the custodial and preliminary investigations. In addition, the defense counsel should also be asked whether he conferred with the accused and completely explained to him the meaning and the consequences of a plea of guilt. Furthermore, since the age, educational attainment and socio-economic status of the accused may reveal insights

for a proper verdict in the case, the trial court must ask questions concerning them. (People v. Estomaca, supra) In this case, absent any showing that these questions were put to accused-appellant, a searching inquiry cannot be said to have been undertaken by the trial court. However, although accused-appellants plea of guilty was improvidently made, there is no need to remand the case to the lower court for the reception of evidence in view of the fact that there exists other evidence on which accused-appellants conviction may be based. Independently of his plea, there is sufficient evidence showing that accused-appellant indeed committed the crime with which is charged. First. In the absence of eyewitnesses to the crime, a case of rape with homicide poses difficulty of proving by direct evidence the culpability of the accused because the victim can no longer testify. In such a case, the evidence necessarily must be circumstantial.[19] Under Rule 133, section 4 of the Rules on Evidence, circumstantial evidence is sufficient to sustain a conviction if (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all circumstances is such as to produce conviction beyond reasonable doubt.[20] As has been said, facts and circumstances consistent with guilt and inconsistent with innocence constitute evidence which, in weight and probative force, may surpass even direct evidence in its effect upon the court.[21] In this case, there is circumstantial evidence pointing to accused-appellant as the author of the crime of rape with homicide, to wit: 1. Accused-appellant was seen with the victim Glery P. Geoca by Josephine Gonzales and Lilia Bartido between 5:30 to 6:00 p.m. of June 2, 1996; 2. A wallet belonging to accused-appellant and containing the latters identification cards and other personal effects was found near the scene of the crime; 3. The body of the victim was found at about 1:00 a.m. of June 3, 1996 at the exact location pointed by accused-appellant; 4. The grass in the place where the accused-appellants wallet was found had been trampled upon as if there was a fight of pigs (maora ug gibugno-an ug baboy), suggesting that a struggle took place between the accusedappellant and the victim, as a result of which accused-appellant dropped his wallet;

5. The postmortem examination conducted by Dr. Atilano A. Ocampos at 6:30 p.m. of June 3, 1996 showed hematoma and abrasions on different parts of the victims body indicating that she had been strangled and lacerations on her hymen indicating that she had been sexually abused. Second. Accused-appellant confessed to Barangay Captain Sonny Boy Altamera that he had raped and killed the victim. Accused-appellant contends, however, that his confession before Barangay Captain Altamera is inadmissible. Article III, section 12 of the Constitution provides: (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel, preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 shall be inadmissible in evidence against him. The question in this case is whether the confession given to the barangay captain was made while accused-appellant was under custodial interrogation. It will be recalled that accused-appellant had been pointed to by Josephine Gonzales and Lilia Bartido as the person Glery P. Geoca was with shortly before the latter disappeared. Accordingly, the barangay captain and his men looked for him in his house and, when they did not find him there, they continued their search until they found him under a tree. When they finally found him, they interrogated him in his house and, failing to get anything from him, took him to the barangay captains house where they continued questioning him. There, Naciansino produced a mans wallet containing the personal effects of accused-appellant. At that point, accusedappellant broke down and confessed to the crime. The investigation had thus ceased investigation of an unsolved crime. It had accused-appellant so much so that he was case therefore comes within the purview of to be a general exploratory begun to focus on the guilt of no longer allowed to leave. This Article III, section 12, paragraph

(1). It is distinguishable from cases in which we found the confession to have been given under circumstances not constituting custodial interrogation. In People vs. Andan,[22] the confession of the accused which he gave to the municipal mayor was held to be admissible in evidence because it was shown that the mayor was a confidant of the accused and he did not act as a law enforcement officer when he heard the confession of the accused. We held that constitutional procedures on custodial investigation do not apply to a spontaneous statement not elicited through questioning by the authorities but given in an ordinary manner whereby the accused orally admit having committed the crime. In another case, People vs. Marra,[23] the accused, a security guard of the Lindas Ihaw-Ihaw restaurant, was charged with murder. A policeman, who received a report of a shooting incident, proceeded to the scene of the crime together with three other officers. They found the accused in a restaurant. When they asked whether he was the security guard of the restaurant, he answered in the affirmative. After answering several questions, he told the policemen that he was the security guard pointed to by a witness; that his tour of duty was from 7:00 p.m. of the preceding day to 6:00 a.m. of the following day; that he was on duty at around 2:30 a.m. of March 7, 1992 when the victim was shot; and that the firearm issued to him was in his house. Upon the request of the policemen to see the firearm, he took them to his house and showed them a .38 caliber revolver which he took from inside an aparador. The revolver had five bullets and one spent shell. The policemen smelled gunpowder from the barrel of the gun. They asked accused when he last fired the gun but the latter denied he ever did so. Then a police investigator asked him point-blank why he shot the victim. At first the accused denied the accusation, but when told that someone saw him shoot the victim, he admitted having done so although he claimed he had acted in self-defense. In that case, we ruled that the confession made by the accused was admissible because the inquiry had not yet reached a stage wherein the police considered the accused as a particular suspect. The police were just looking into a number of possibilities, having been merely informed that the suspect was wearing what could be a security guards uniform. The case at bar is a far cry from these cases. As accused-appellants confession was made without the assistance of counsel, we hold that it is inadmissible in evidence under Article III, section 12, paragraphs (1) and (3) of the Constitution. However, it appears that the defense failed to object, as required by Rule 132, section 36, immediately when Altamera was presented as a witness for the prosecution or when specific questions concerning the

confession were asked. Having failed to do so, accused-appellant is deemed to have waived his right to object to the inadmissibility of Altameras testimony. It is noteworthy that accused-appellants confession is corroborated by the corpus delicti. He in fact was even the one who informed the search team of the exact location where the body of the victim could be found. It is not necessary that an eyewitness should testify on having seen the accused committing the crime or seeing him under circumstances indicating that he committed the crime in order to hold the accused liable under his own confession.[24] Third. Nor was it shown that the prosecution witnesses, particularly Barangay Captain Altamera and his men, had any ill motive to testify falsely against accused-appellant. In fact, the father of accused-appellant was the kumpadre of Altamera.[25] Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.[26] The trial judges evaluation of the testimony of witnesses is generally accorded not only the highest degree of respect but also finality, unless some circumstances of weight and substance, which could change the result of the case, have been ignored or misunderstood. As the trial judge had the opportunity to observe the witness on the stand, he was in a vantage position to assess his demeanor and determine whether or not he was telling the truth.[27] Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, provides that, when by reason or on the occasion of the rape of a woman under 12 years of age, a homicide is committed, the penalty shall be death. Being a single indivisible penalty an the only penalty prescribed by law for the crime of rape with homicide, the Court is constrained to apply the same regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime in accordance with Article 63 of the Revised Penal Code. Four (4) Members of the Court, although maintaining their adherence to the separate opinions in People vs. Echegaray[28] that R.A. No. 7659, insofar as it prescribed 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. With respect to the civil liability of accused-appellant, the trial court awarded the heirs of the victim P500,000.00 as actual damages, P750,000.00 as moral damages, and P500,000.00 as exemplary damages, without subsidiary imprisonment in case of insolvency.

These awards are excessive. In accordance with our current rulings,[29] the indemnity for the death of the victim Glery P. Geoca should be P100,000.00. On the other hand, the award of P750,000.00 as moral damages must be reduced to P50,000.00, also in line with recent cases.[30] Moral damages are awarded to the heirs of the victim in a criminal proceeding by reason of the death of the victim as a consequence of the rape without the need for pleading or proving the basis thereof. The purpose of the award is not to enrich the heirs of the victim but to compensate them for the injuries to their feelings. Finally, the award of P500,000.00 for exemplary damages must be disallowed, there being no aggravating circumstances which attended the commission of the crime.[31] WHEREFORE, the decision of the Regional Trial Court, Branch 19, Pagadian City finding accused-appellant Ranillo Ponce Hermoso, alias Allan, guilty of rape with homicide and sentencing him to suffer the penalty of death is AFFIRMED with the MODIFICATION that accused-appellant is ordered to indemnify the heirs of the victim Glery P. Geoca in the amount of P100,000.00 as civil indemnity and P50,000.00 as moral damages. In accordance with Section 25 of R.A. No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forwarded to the Office of the President for possible exercise of pardoning power. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago, and De Leon, Jr., JJ., concur FIRST DIVISION [G.R. No. 124391. July 5, 2000] PEOPLE of the PHILIPPINES, plaintiff-appellee, vs. ELMER YPARRAGUIRE y SEPE, accused-appellant. DECISION YNARES-SANTIAGO, J.: After his indictment and trial, accused-appellant appeals from his conviction for the crime of rape of a mental retardate. Pursuant to Republic Act No. 8353, the Anti-Rape Law of 1997, rape is a crime against person which may
[1] [2]

be prosecuted de oficio. However, considering that the alleged rape was committed in 1994, which was prior to the effectivity of R.A. 8353, we apply the old law and treat rape as a private crime. The facts as narrated by the trial court are: "On March 24, 1994, at about 11:00 oclock in the evening, while complainant Charmelita D. Ruina, an invalid and mentally retarded, was on her bed at the store of her mother at the Public Market at Carrascal, Surigao del Sur, where she and her mother lived, accused Elmer Yparraguirre alias "Lalo" entered her room, the door of which was not locked because her mother went to the store of her elder sister. Upon getting inside, he undressed himself and approached the Complainant who was apparently awake. He caressed her and sucked her breasts. She shouted for help but nobody came to rescue her, perhaps because it was late already in the evening and her voice was not loud enough to be heard at the distance as, in fact, it could be heard at only about three to five meters away x x x. Accused told her to keep quiet and when she put up some limpy resistance, he boxed her. He then removed her panty went on top of her and inserted his manhood into her most private part. She felt pain. After raping her, he left her room. Soon her mother, Sanselas Leongas Ruina, arrived. She reported to her the incident. The following morning, accused went back to the store and apologized for what he did and promised not to do it again. But his plea would not mollify Sanselas. She took the complainant to the Madrid (Surigao del Sur) District Hospital for physical examination. Dr. Carlo P. Altrecha recorded the following findings in the Medical Certificate that he issued on March 26, 1994: POLIO MYELITIS-MENTALLY RETARDED PPE: n ABRASION, AT THE LEVEL OF THE MIDCLAVICULAR AREA, BOTH, LEFT AND RIGHT. n CONTUSION, BOTH BREAST, LEFT AND RIGHT. n CONTUSION, AT THE LEVEL OF THE 8TH THORACIC RIB, ME-AXILLARY LINE, RIGHT. GENITALIA:

n LABIA MAJORA: NO CONGESTION, NO HEMATOMA. n LABIA MINORA: CONGESTED, SLIGHT SWOLLEN. n VAGINAL ORIPICE: CONGESTED, SLIGHT SWOLLEN HYMEN NOT INTACT. n VAGINAL SMEAR FOR THE PRESENCE OF SPERMATOZOA: NO SPERMATOZOA SEEN."

[3]

Appellant did not testify in court but instead relied on the lone testimony of his father, who alleged that the complaint for rape was filed as a result of a "misunderstanding" between appellant and the mother of the victim. In this appeal, the basic issue raised by appellant is that the trial court never acquired jurisdiction over the case because the complaint was signed and filed by the chief of police and not by the complainant. Appellants contention has no merit. Section 5, Rule 110 of the Rules on Criminal Procedure provides in part: "The offense of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above-named persons, as the case may be. In case the offended party dies or becomes incapacitated before she could file the complaint and has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf. The offended party, even if she were a minor, has the right to initiate the prosecution for the above offenses, independently of her parents, grandparents or guardian, unless she is incompetent or incapable of doing so upon grounds other than her minority. Where the offended party who is a minor fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to the parents, grandparents or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the immediately preceding paragraph."

Pursuant to the afore-quoted provision, the offended party can initiate a prosecution for rape even if she is a minor, unless she is incompetent or incapable of doing so upon grounds other than her minority. Although the victim in this case is no longer a minor, it is undisputed that she is a mental retardate and suffering from physical deformity. No woman would come out in the open, inform the authorities of the injustice done to her, make a statement of what had happened unless her purpose is to redress the wrong done against her honor. Once the violation of the law becomes known through a direct original participation initiated by the victim, the requirements of Article 344 of the Revised Penal Code (RPC), to the effect that the offense of rape "shall not be prosecuted except upon a complaint filed by the offended party or her parents," are satisfied. Said provision is not determinative of the jurisdiction of courts over the private offenses because the same is governed by the Judiciary law, not the Revised Penal Code which deals with the definition of felonies and their punishment. Stated differently, the complaint required in Article 344 is but a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. Such condition was imposed out of consideration for the offended woman and her family who might prefer to suffer the outrage in silence rather than go through with the scandal of a public trial. The complaint simply starts the prosecutory proceeding but does not confer jurisdiction on the court to try the case because the overriding consideration in determining whether the condition precedent in Article 344 has been complied with is the intent of the aggrieved party to seek judicial redress for the affront committed.
[4] [5] [6]

Article 344 was not enacted for the specific purpose of benefitting the accused. When it is said that the requirement in Article 344 (that there should be a complaint of the offended party or her relatives) is jurisdictional, what is meant is that it is the complaint that starts the prosecutory proceeding. It is not the complaint which confers jurisdiction in the court to try the case. The courts jurisdiction is vested in it by the Judiciary Law.
[7]

Going now to the merits of the case, the gravamen of the crime of rape is the sexual congress of a woman by force and without consent. These elements have been proven beyond reasonable doubt to concur in this case. The evidence shows that appellant boxed the victim in the neck and slapped her on the face while she was alone and lying in bed on that fateful night. When she shouted for help, appellant told her to keep quiet. Appellant then began sucking her breasts and her vagina. Then he removed her panty and forcibly had sexual intercourse with the mentally retarded victim causing pain in her
[8]

private part. Her testimony in the oral deposition confirms the statements she made in the vernacular in her affidavit earlier executed. Thus, P Unsa may imong guibuhat paghikita nimo niadtong tawo nga miduol kanimo. T Misinggit ako. P Unsay guibuhat niadtong tawo sa imong pagsinggit? T Iyang guitampa ang akong baba, dayon mipatong siya kanako. P Unsay sunod nga guibuhat niadtong tawo sa dihang mipatong na siya kanimo? T Iyang guidun-an ang akong tiyan, apan kay mikisikisi man ako iyang guisumbag ang akong kilid dayon guihubo ang akong baro ug guisunod usab dayon ang akong pante. P Unsay sunod nga guibuhat niadtong tawo kanimo sa tapos niya paghubo sa imong baro ug imong pante? T Iya akong gui-iyot senyor. P Unsay imong guibuhat sa dihang guiiyot sa tawo? T Misinggit ako senyor apan guipagngan ang akong baba busa mikisikisi ako apan guisumbag na usab ug maoy nakapalipong kanako. (Italics supplied).
[9]

The victims narrations are corroborated by the medical findings of the physician who examined her and found that her labia minora was "congested, slight swollen", and her hymen no longer intact. She also suffered abrasions and contusions on both breasts and near her right armpit, which may have been caused by the blows. In rape, it is not essential that the force employed in accomplishing the crime be so great or of such character or could not be resisted. Force in rape is relative, depending on the age, size and strength of the parties. In the same manner, intimidation must be viewed in the light of the victims perception and judgment at the time of the commission of the crime and not by any hard and
[10]

fast rule. The victim was a mental retardate and suffering from physical disability when appellant employed force by boxing and slapping her. And when she shouted for help he intimidated her to keep her quiet. The fact that the victim did not offer a tenacious resistance is immaterial considering her physical nature she is an invalid and unable to rise from the bed unassisted. Physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself, against her will, to the rapists advances because of fear for her life and personal safety. Although the victim shouted for help, her voice could be heard only as far as three to five meters away. This negates the contention of the father of appellant that the rape could not have been committed because the locus criminis of the crime was only about fifteen meters away from the passengers terminal where there were people passing. In any case, it has been consistently ruled that rape can be committed even in places where people congregate, in parks along the roadsides, in a house where there are other occupants, in the same room where other members of the family are sleeping, and even in places which to many would appear unlikely and high risk venues for its commission. For rape to be committed, it is not necessary for the place to be ideal, or the weather to be fine for rapists bear no respect for locale and time when they carry out their evil deed.
[11] [12] [13] [14] [15] [16] [17]

On the alleged misunderstanding that appellant had with the victims mother which allegedly prompted the mother to file the rape case against him, suffice it to say that no mother would expose her own daughter to embarrassment and humiliation as well as to the trouble, inconvenience, ridicule and scandal concomitant with a public trial if such was not the truth and had not her intention been to bring the culprit to the folds of justice. No mother, virtuous or not, will voluntarily and without compelling reasons put her own daughter to shame and humiliation if she were not motivated by an honest desire to have her daughters transgressor punished accordingly. Besides, it is unnatural for a parent to use her offspring as an engine of malice, especially if it will subject a daughter to embarrassment.
[18] [19] [20]

In an apparent attempt to free himself from liability, appellant on the very same night after the assault, asked forgiveness from the victims mother and promised that the same will never be repeated. Yet, no mother can just let pass an indignity committed against one of her own blood. It is easy to forgive, but justice for her would be no less than punishment. Moreover, a plea for forgiveness may be considered analogous to an attempt to compromise, which offer of compromise by the appellant may be received in evidence as

an implied admission of guilt pursuant to Section 27, Rule 130 of the Rules on Evidence.
[21]

With respect to the monetary awards, the P50,000.00 "damages" granted by the trial court should be properly denominated as moral damages, which is allowed even if there was no proof during the trial as basis therefor. The mental and physical suffering of the victims injury is inherently concomitant with and necessarily resulting from the odious crime which per se warrants the award of moral damages. In addition thereto, the complainant is also entitled to a civil indemnity of P50,000.00 which is outrightly awarded to rape victims being in the category of actual or compensatory damages and because the rape herein is not effectively qualified by any circumstance under which the death penalty is authorized by present amended law.
[22] [23] [24] [25] [26]

WHEREFORE, the decision of the trial court finding accused-appellant guilty beyond reasonable doubt of the crime of Rape is AFFIRMED. Further, appellant is ORDERED TO PAY the complainant fifty thousand pesos (P50,000.00) as civil indemnity in ADDITION to the fifty thousand pesos (P50,000.00) moral damages. SO ORDERED Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

THIRD DIVISION

[G.R. No. 133001. December 14, 2000]

PEOPLE OF THE PHILIPINES, plaintiff-appellee, vs. EMERSON TAN y BEYAOU (Boy Tan), ANTONIO BUCE y MARQUEZ and RUBEN BURGOS y CRUZ, accused-appellants. DECISION
MELO, J.:

In almost every case involving a buy-bust operation, the accused puts up the defense of frame-up. Since the frame-up theory, like alibi, is easily concocted, the Court usually views such a claim with disfavor. In this particular case, however, accused-appellants avowals as to their innocence ring true.

Before us for review is the decision dated February 10, 1998, of the Regional Trial Court of the Third Judicial Region (Branch 12, Malolos, Bulacan), penned by Judge Crisanto Concepcion, finding accused-appellants Emerson Tan, Antonio Buce, and Ruben Burgos guilty of violating Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended. The dispositive portion of said decision provided:

WHEREFORE, finding each of herein three (3) accused guilty as charged in the information beyond reasonable doubt as principal, there being no aggravating or mitigating circumstance found attending the commission of the offense so charged, each is hereby sentenced to suffer the penalty of reclusion perpetua and a fine of P500,000.00 as so provided in Republic Act No. 7659, Sec. 14 thereof, amending section 15, Article III of Republic Act No. 6425, as amended, and to pay the costs of the proceedings. In the service of their sentence, each accused, being a detention prisoner, shall be credited with the full time during which he has undergone preventive imprisonment, pursuant to Art. 29 of the Revised Penal Code. The subject methamphetamine Hydrochloride, otherwise known as shabu, marked in evidence as Exhibit J-5, is hereby ordered confiscated and forfeited in favor of the Government to be turned over to the Dangerous Drugs Board immediately for destruction without delay, after photographic pictures thereof are taken and attached to the record of this case. SO ORDERED. (Rollo, p. 39).
The Information filed against accused-appellants on July 4, 1997 charged:

That on or about the 28th day of April, 1997 in Meycauayan, Bulacan and within the jurisdiction of this Honorable Court, the above-named accused, confederating and mutually helping one another, did then and there willfully, unlawfully and knowingly sell and deliver approximately 886.9 grams of methamphetamine hydrochloride, otherwise known as shabu to an agent of the National Bureau of Investigation who posed as a poseur-buyer, in violation of the above-cited law. Contrary to law. (Rollo, p. 5.)

Upon their arraignment on July 29, 1997, the three pleaded Not Guilty to the charge. Trial thereafter ensued, with the prosecution presenting as witnesses Intelligence Agent Martin Soriano, Special Investigator Pio Palencia, and Forensic Chemist Maryann Aranas. Their version as to the events that transpired is as follows: NBI Intelligence Agent Martin Soriano testified that at about 4 P.M. of April 27, 1997, he met with Alice del Rosario, an informant of his, in Project 6, Quezon City. The latter apprised him of the drug trafficking activities of a certain Boy Tan in Bulacan. Immediately after receiving this information, Soriano, together with Special Investigator Pio Palencia and Intelligence Agent Allan Santiago, planned a buy-bust operation. They told del Rosario to get in touch with the aforesaid Boy Tan for a possible drug deal. Del Rosario told them that she had to speak to another person, an informant of hers, to do so. That same day, del Rosario was able to arrange a meeting with her informant, to be held at 11 P.M. of that day at the San Francisco Steak House in West Avenue, Quezon City. At 11 P.M., Soriano and del Rosario went to said restaurant where they met the latters informant. NBI agents Palencia and Santiago stayed outside in a car parked opposite the restaurant. Soriano haggled with del Rosarios informant until they agreed that the former would purchase a kilo of shabu from Boy Tan for P600,000.00. Soriano already had with him in a knapsack P600,000, of which two P500 bills had been dusted with flourescent powder. Between 1 and 1:30 A.M. of April 28, 1997, del Rosarios informant told them that he had talked to his boss, Boy Tan, on his cellular phone and that he had already arranged for the delivery of one kilo of shabu. Soriano, del Rosario, and del Rosarios informant then went out of San Francisco Steak House, boarded the latters car, and drove to Meycauayan, Bulacan. They arrived at No. 58, Jupiter Street, Sto. Nio, Meycauayan at around 2:10 or 2:15 A.M. All this time, the vehicle was being tailed by Palencia and Santiago. Soriano, del Rosario, and del Rosarios informant went inside the house to wait for Boy Tan to deliver the shabu. Palencia and Santiago, on the other hand, parked on Neptune, a street perpendicular to Jupiter. At around 3:45 to 4 A.M., three persons arrived, one on board a Nissan taxi; the other two, in a private car. The three entered the house were they were introduced to Soriano as Boy, Antonio, and Ruben. Boy asked Soriano if he had the money. Soriano answered, Yes, it is here in the knapsack, unzipping the knapsack and showing the latter the money. Soriano then asked for the shabu. Boy gave him a gift-wrapped box. Soriano opened the box and found a plastic bag containing crystalline substance. After checking that it was, indeed, shabu, Soriano gave the money to Boy, who, together with Antonio, and Ruben started counting the same. When they had gotten halfway, Soriano pressed his radio transceiver, which he had concealed under his clothing, to alert Palencia and Santiago that the transaction had been consummated. He then pulled out his gun, introduced himself as an NBI agent and placed the three under arrest. Palencia and Santiago, upon their arrival, handcuffed the three suspects.

After securing the shabu and the money in a plastic bag, Soriano, Palencia, and Santiago brought the three prisoners to the National Bureau of Investigation. The three were identified at the NBI as accused-appellants Emerson Tan, Antonio Buce, and Ruben Burgos. At around 7 P.M. of April 28, 1997, Forensic Chemist Maryann Aranas tested accused-appellants for flourescent powder. All three tested positive, specks being found on the dorsal and palmar sides of their hands, as well as on all their fingers. The crystalline substance delivered by accused-appellants to Soriano, weighing 886.9 grams, was also found to be shabu by Forensic Chemist Aranas. On the other hand, the defense claimed that what actually transpired is as follows: Accused-appellant Antonio Buce testified that on the evening of April 26, 1997, he was about to turn in his taxi when he chanced upon Roy Espinosa, a long-time friend, near Sampo Restaurant in West Avenue. The latter invited him to eat at said restaurant, which Buce accepted. After eating, Espinosa invited Buce to go with him to Project 4. Agreeing, Buce called up Ronaldo Manalo, the operator of the taxi, and asked permission to return the taxi at 12 midnight rather than the usual 10 P.M. However, when Buce and Espinosa arrived at Project 4, they were accosted by several armed men and brought to a safehouse in Project 6. The armed men mauled Buce, stopping only when Buce told them that he was a mere taxi driver. Thereafter, Buce was blindfolded and led to a room. He met accused-appellants Tan and Burgos, whom he had not seen before, in the afternoon of the next day when the two were brought to the safehouse. Accused-appellant Burgos, on the other, testified that he was a kristo, a bet-taker at cockfights, as well as a horserace aficionado. He was acquainted with accusedappellant Tan because the latter was also into cockfighting. He met Roy Espinosa, his kumpadre for the past ten years, on April 20, 1997 at the San Lazaro Hippodrome. Espinosa mentioned during this meeting that he was selling his ownertype jeep for P70,000.00. On April 23, 1997, Burgos met Tan at the San Juan Coliseum. He mentioned to Tan that he had a friend who was selling an owner-type jeep. Tan said that he was interested in buying the jeep so that he would have a vehicle to use when he went to cockfights, as his car usually got scratched when he used the same to go to cockfights. Burgos said that the jeep could be inspected at Espinosas house at 58 Jupiter Street, Sto. Nio, Meycauayan, Bulacan. They agreed to go to Meycauayan on April 27, 1997 to inspect the jeep. On April 27, 1997, however, Burgos went ahead to Espinosas residence in Meycauayan since he had to collect a racing debt of Espinosa while Tan still had a business meeting that morning. Burgos arrived at 58 Jupiter Street at around 11 A.M. When he entered the house, he saw Espinosa handcuffed in a corner. Then several armed men who introduced themselves as NBI agents handcuffed and frisked him. They questioned him about shabu. Burgos noticed three boxes, one gift-wrapped, lying on a billiard table. Accused-appellant Tan, on the other hand, testified that he rented a Toyota Corolla on April 26, 1997 for use in going to Bulacan. He also obtained the services of

Hernando Reyes, a neighbor, to drive him there. At noon of April 27, 1997, he also fetched Melanie Martin at the latters residence in Malabon so that the latter could serve as a guide, it being the first time for accused-appellant Tan to go to Meycauayan, Bulacan. Tan, Martin, and Reyes arrived at 58 Jupiter Street, Sto. Nio, Meycauayan, Bulacan at around 2:30 oclock in the afternoon. When Tan, Martin, and Reyes entered the house, they were apprehended by several armed men who claimed to be NBI agents. One of the armed men, later identified as Soriano, showed a plastic bag containing white powder to Tan and asked him if he was engaged in drug trafficking, which the latter answered in the negative. After about thirty minutes, Tan, Burgos, Espinosa, and Martin were blindfolded, brought out of the house and taken to the NBI safehouse in Project 6. It was there that they met Antonio Buce. Soriano told accused-appellants that they can obtain their freedom for P400,000.00, advising Tan to call up his relatives to raise the money. Jose Orillaza, a businessman, testified that his friend Emerson Tan called him up at around 5 oclock in the afternoon of April 27, 1997 to borrow P400,000.00. He was unable to give the amount to Tan because it was a Sunday and all banks were closed. Later that afternoon Melanie Martin was allowed to go home. She was brought to SM City North Edsa. Upon being freed, Melanie went home to Malabon, arriving there at around 8 P.M. She narrated the incident to her father. Worried, Melanies father called up his brother-in-law, Arnel Prades, and requested the latter to accompany them in reporting the matter to the authorities. Melanie also called up Emily Tan, the sister of accused-appellant Emerson Tan, and Jose Orillaza to tell them about Emerson Tans apprehension. Melanie Martin, along with her father and Arnel Prades, met Emily Tan and Jose Orillaza in Greenhills at around 10 oclock in the evening of April 27, 1997. Concluding that Tan had been kidnapped, the group proceeded to Camp Crame to report the incident. Since the officer-in-charge was not around, they reported the incident to the DILG-PARAC office in Quezon City. Meanwhile, accused-appellant Tan was unable to produce the P400,000.00 demanded by Soriano, hence it was decided that accused-appellants be brought to the National Bureau of Investigation in Taft, Manila. At around 1 oclock in the afternoon of April 28, 1997, the three were blindfolded and brought out of the safehouse in Project 6. On the way to the NBI, accused-appellants claimed that something was smeared on their hands. Their blindfolds were removed as they were passing Welcome Rotonda. Accused-appellants arrived at the NBI at around 3 or 4 oclock in the afternoon, where they were booked and their hands tested for flourescent powder. As earlier intimated, accused-appellants were found guilty by the trial court. Undaunted, accused-appellants now appeal to this Court, claiming that the trial court grievously erred in refusing to consider substantive evidence showing their innocence of the crime charged. Accused-appellants claims have merit. It may be noted that the testimony given by the witnesses for the prosecution and that of the defense are diametrically opposed to each other. In resolving such conflict,

dealing as it does with the credibility of witnesses, the usual rule is for this Court to respect the findings of the trial court considering that it was in a better position to decide the question, having heard the witnesses themselves and having observed their deportment and manner of testifying during the trial (People vs. Aquino, 284 SCRA 369 [1998]). Nonetheless, the factual findings of the trial court may be reversed if by the evidence on record or lack of it, it appears that the trial court erred (People vs. Lagao, 286 SCRA 610 [1998]). This is such a case, the prosecution evidence lacking sufficient foundation to prove accused-appellants guilt beyond reasonable doubt. The elements necessary in every prosecution for the illegal sale of shabu are: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor (People vs. Zheng Bai Hui, G.R. No. 127580, August 22, 2000). To prove these elements, Intelligence Agent Soriano testified that he was apprised by his informant, Alice del Rosario, about the drug trafficking activities of a certain Boy Tan. To get in touch with Boy Tan, Alice del Rosario had to contact an informant of hers. It was this informant who haggled with Soriano as to the quantity and the value of the shabu to be purchased. Likewise, it was this informant who arranged for the delivery of the shabu and who brought Soriano to Meycauayan. Yet, the NBI agents only arrested accused-appellants, not Alice del Rosarios informant. It must be noted that Sorianos informant was Alice del Rosario, not the person they met in San Francisco Steak House. If we are to accept the veracity of Sorianos version of events, del Rosarios informant was acting as an agent of Boy Tan in selling shabu and would, therefore, be equally guilty of sellingshabu as accused-appellants. Yet he was not arrested by Soriano. While he entered No. 58 Jupiter Street with Soriano and Alice del Rosario to await Boy Tan, there is nothing on the record to indicate that he escaped therefrom when Soriano announced the arrest. The only plausible reason that explains his nonarrest would be if he was also an informant of Soriano. But if he was an informant of Soriano, then there would have been no need for him to meet with Soriano and haggle with the latter. In other words, if he was an informant of Soriano, a simple phone call to Boy Tan that he had a prospective buyer would have sufficed and the group could have just as easily proceeded to Meycauayan, Bulacan to arrest the latter upon his delivery of the shabu. There would have been no need to stage an elaborate charade as meeting at San Francisco Steak House and haggling with Soriano over the price. Likewise, the prosecution failed to produce evidence that the two P500 bills were dusted with flourescent powder prior to the buy-bust operation. Soriano, in his crossexamination disclosed that there had to be a written request addressed to the Forensic Chemist Division in order to have money dusted for buy-bust operations. No such request was presented in court. Moreover, upon examination under ultraviolet light, the two bills used in the April 28, 1997 alleged buy-bust operation had the date March 5, 1997 written on them in flourescent powder. NBI Agent Llander Sinagub testified that he brought the two P500 bills in question to the Forensic Chemist Division for dusting on March 5, 1997, or 54 days before the alleged buy-bust operation. In fact, when crossexamined as to when the money was dusted, Soriano could not recall when the P500

bills where dusted with flourescent powder. It was also disclosed that the marked money had already been used 2 or 3 times before the April 28, 1997 buy-bust operation but no effort had been done to redust the money after they had been used. Soriano testified thus:
Q: These P500 bills presented to you earlier, you claimed that you used them 2 or 3 times other than in this case. Did you exert any effort to redust this money with flourescent powder after they had been used on three separate cases? No, sir. (tsn, October 7, 1997, p. 31.)

A:

Moreover, when accused-appellants hands were examined by Forensic Chemist Aranas for flourescent powder, their fingers, palms and even the back of their hands tested positive for flourescent powder. Firstly, one does not use the back of ones hands when counting money. Secondly, 54 days had elapsed from the time the bills had been dusted to the time of the buy-bust operation. It confounds this Court as to how flourescent powder could have copiously attached to accused-appellants hands despite such an interval of time and the fact that said bills had been used in two or three previous operations without redusting. As to the shabu allegedly delivered by Tan, this was marked by Soriano MCS-0427-97 after he had arrested accused-appellants. It may be noted that the delivery of the shabu allegedly occurred in the early morning of April 28, 1997. It is, thus, surprising, to say the least, that Soriano marked the bag of shabu with his initials and the date April 27, 1997, when the delivery of theshabu and the arrest was made on April 28, 1997. All these material inconsistencies, however, pale in the light of the most damning evidence against accused-appellants culpability. According to the prosecution, accused-appellants Tan, Buce and Burgos delivered almost a kilo of shabu to poseurbuyer Soriano in the early hours of April 28, 1997. Yet, according to the police blotter of the PARAC DILG, at 11:00 P.M. of April 27, 1997, a certain Melanie Martin reported that accused-appellant Tan had been apprehended by an unknown police unit at around 2 oclock in the afternoon of April 27, 1997. The PARAC DILG police blotter reads as follows:

April 27, 1997 11:00 P.M. APPEARANCE OF REPORTEE (Re: Alleged Drug Operation) On the above date and time Melanie Martin y Oniol, 16, single, native of Manila and a resident of Phase 2, Blk. I, Lot 34 Area 3, Pampano St., Dagat-Dagatan, Malabon, M.M., together with her father, Leonardo Martin and one PO3 Arnel Prades, Jr., Sta. 7, WPD, in connection with the above alleged Drug Operation wherein said reportee and her boyfriend, one Emerson Tan y Beyaoyu, 47, M, businessman, native of Manila and a resident of 17 Gen.

Guttierez St., Little Baguio, San Juan, M.M., were alleged apprehended by Drug operatives from unknown unit at Meycauayan, Bulacan. Based on the narration of reportee they were brought at a certain place blindfolded, presumably its an office and alleged subject operative unit were digging about drug operation. The reportee was freed or allowed to go home while a man who was handcuffed and her boyfriend was left at the said office wherein reportee stated there was a one kilo of shabu and the name of one MARTIN C. SORIANO. More or less 10:00 P.M. last night her boyfriend called up and told her that he needs P400,000.00 pesos for what reason and the place where the money should be brought was not mentioned by her boyfriend. Incident occurred 2:00 P.M., 27 April 1997, from the residence of reportee they directly drived to Meycauayan, Bulacan wherein her boyfriend were obviously awaited and was apprehended. Until this writing, 2:40 A.M., 28 April 1997, the whereabout or location of her boyfriend is unknown. Reportee was advised to keep in touch with this office for any development of the case. For further investigation and follow-up. (Original Records, p. 21-23.)
The defense presented PNP Police Officer Eduardo Quiman who testified that he was the police officer on duty at the PARAC DILG in the evening of April 27, 1997. Quiman confirmed that he was the one who had written the above-cited entry in the PARAC DILG blotter and that it was Martin who reported the same to him at 11 P.M. of April 27, 1997. Quimans testimony stands unrebutted by the prosecution. Melanie Martin also testified that she was with Emerson Tan when the latter was arrested by Soriano and his group in the afternoon of April 27, 1997. The above blotter entry belies Sorianos claim that Tan was arrested in the early hours of April 28, 1997 since Melanie Martins report to the DILG of accused-appellant Tans arrest precedesby five hours the time of Tans arrest, as claimed by the NBI agents. As adverted to at the very beginning hereof, the claim of frame-up is a common and standard line of defense which is invariably viewed by this Court with disfavor, it being capable of easy concoction and difficult to prove. Clear and convincing evidence is required to prove the defense of frame-up because in the absence of proof of any intent on the part of the police authorities to falsely impute such a serious crime against accused-appellants, the presumption of regularity in the performance of official duty, as well as the principle that findings of the trial court on the credibility of witnesses are

entitled to great respect, must prevail over the claims of accused-appellants that they have been framed-up. However, given the evidence adduced by accused-appellants, this Court holds that accused-appellants have clearly and convincingly overcome the presumption that agents Soriano and Palencia performed their duties in a regular and proper manner. In fact, it seems that Soriano and Palencia are hiding behind the mantle of regularity of official functions in pursuit of their own dubious ends. Besides, the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt. In People v. Gireng (241 SCRA 11 [1995]), this Court stated that by the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. Thus, the courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses (People vs. Pagaura, 267 SCRA 17 [1997]). Needless to state, the lower court should have exercised the utmost diligence and prudence in deliberating upon accused-appellants guilt. It should have given more serious consideration to the pros and cons of the evidence offered by both the defense and the State and many loose ends should have been settled by the trial court in determining the merits of the present case (People vs. Sevilla, G.R. No. 124027, September 5, 2000). Lastly, it is hornbook doctrine that if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction (People vs. Ferras, 289 SCRA 94 [1998]). In sum, given the evidence and the attendant circumstances, we entertain grave doubts as to the culpability of accused-appellants and our minds cannot rest easy upon the certainty of their guilt. IN VIEW THEREOF, the appealed decision is hereby SET ASIDE and accusedappellants Emerson Tan, Antonio Buce, and Ruben Burgos are hereby ACQUITTED on grounds of reasonable doubt. Their release from detention is hereby ordered forthwith, unless they are detained for some other lawful cause. SO ORDERED. Vitug, Panganiban, and Gonzaga-Reyes, JJ., concur.

THIRD DIVISION

[G.R. No. 138046. December 8, 2000]

PEOPLE OF THE PHILIPPINES, appellee, vs. RAFAEL D. TORRES, JR., appellant. DECISION
PANGANIBAN, J.: Due process demands that the procedure for the identification of criminal suspects be free from impermissible suggestion. In the present case, appellant failed to show that there was such an irregularity.
The Case

Rafael D. Torres Jr. appeals the February 22, 1999 Decision[1] of the Regional Trial Court of Quezon City (Branch 104), finding him guilty of murder and sentencing him to reclusion perpetua. In an Information[2] dated January 2, 1989, Assistant City Prosecutor Virgilio M. Gilera charged appellant with murder allegedly committed as follows:

That on or about the 16th day of December, 1987, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously, attack, assault and employ personal violence upon the person of LUISITO ANGELES Y LOPEZ, by then and there shooting him with a revolver of unknown caliber on the different parts of his body thereby inflicting upon said Luisito Angeles y Lopez mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs in such amount as may be awarded under the provisions of the Civil Code.
When arraigned on January 22, 1996,[3] appellant, assisted by Atty. Teodoro M. Jumamil, pleaded not guilty.[4] After trial in due course, the court a quo rendered its assailed Decision, the dispositive portion of which reads as follows:

WHEREFORE, the Court hereby renders judgment finding the accused, RAFAEL D. TORRES, Jr., guilty beyond reasonable doubt of the crime of MURDER defined and penalized in Article 248 of the Revised Penal Code, for the killing of Luisito Angeles on December 16, 1987 with the attendant circumstances of treachery and evident premeditation, and imposing on him the penaltyreclusion perpetua, as well as ordering him to pay the heirs of Luisito Angeles the following: P50,000.00 as indemnity for death, P95,000.00

as actual damages, P150,000.00 by way of lost earnings and P20,000.00 as moral damages.
[5]

In view of the penalty involved, the appeal was filed directly with this Court. [6]
The Facts Version of the Prosecution

In its Brief,[7] the Office of the Solicitor General presents the prosecutions version of the facts as follows:

At 5:30 AM of December 16, 1987, prosecution witness Lincoln Leyretana was on his way to work on board a passenger jeepney along Dapdap St. corner Aurora Boulevard, Quezon City (p. 4-5, TSN, July 8, 1996). Aside from prosecution witness Lincoln Leyretana, there were thirteen other passengers on board the passenger jeepney (Ibid). Suddenly, Luisito Angeles, a passenger of the Jeepney, was shot twice at close range by the person seat[ed] next to the prosecution witness Lincoln Leyretana (ibid). Thereafter, the assailant alighted from the passenger jeepney and shot again the victim twice (p. 7, ibid). Prosecution witness Lincoln Leyretana saw the assailant board another passenger jeepney [in front] of the Aurora Market, Quezon City (p. 8, ibid). Meanwhile, prosecution witness Lincoln Leyretana, together with several other male passengers and the driver, brought Luisito Angeles to the nearest hospital where Luisito Angeles was pronounced dead on arrival (ibid). From the hospital, prosecution witness Lincoln Leyretana and several other passengers of the jeepney proceeded to the police station where they gave their sworn statements to the police (ibid). The investigation of the shooting incident was handled by SPO3 Juan Dacillo. On February 6, 1988, prosecution witness Lincoln Leyretana accompanied the group of SPO3 Juan Dacillo to Marikina City where appellant was allegedly seen by another prosecution witness, Carmelita Mendoza (ibid). He saw appellant riding a passenger bus and pinpointed him to the police authorities (ibid). The police officers followed the passenger bus and boarded the same. They apprehended appellant who introduced himself as a police officer. [O]n the afternoon of February 8, 19[8]8, appellant escaped.

On January 5, 1989, an Information charging appellant [with] murder was filed. On December 13, 1995, appellant was arrested in Nueva Ecija.
Version of the Defense

In his Brief,[8] appellant interposes denial and alibi and relates his version of the facts in this wise:

Appellant categorically and emphatically denied the charge and invoked the defense of alibi, claiming that he was at his place of work in Pasig on the date and time of the incident complained of, x x x work attendance [on which] was confirmed by the defense witness, SPO1 Arsenio Eugenio, and that he [did] not know the person of Luisito Angeles. Appellant likewise proved that Luis Angeles (father of the deceased) and Carmelita Angeles Mendoza (aunt of the deceased) were once in the place of appellants friend, Priscilla De Guzman; that when appellant pacified them while they were arguing about their business, Luis Angeles got mad at him, telling him not to intervene; that at the police station on 6 February 1998, appellant heard Mr. Leyretana saying to SPO3 Dacillo malayo naman sa hitsura doon sa sketch but the latter replied, ituro mo na lang; that appellant left the police station after being pinpointed by Mr. Leyretana because nobody minded him; that appellant was arrested on his birthday, 13 December 1995, at Nueva Ecija; and that when the appellant was in jail, a man took pictures of him many times while Mr. Leyretana and Carmelita Mendoza visited him.
Trial Courts Ruling

Rejecting appellants defense, the trial court gave full faith and credence to the testimony of the lone eyewitness. It ruled thus:

This Court finds no substantial imperfection in the testimony of Mr. Leyretana who saw the accused and observed the manner in which he killed the victim who was in a defenseless state on board a passenger jeepney, as well as in the testimony of Carmelita Mendoza whose account of the earlier circumstances involving the accused from 4:00 a.m. of December 16, 1987 until the victim went out of their house proves the act manifestly indicating the determination to make possible the succeeding incident witnessed by Mr. Leyretana.

Accused interposes alibi as a defense which cannot prevail over his positive identification by an eyewitness, Lincoln Leyretana, who has no motive to falsely testify. Moreover, it was not sufficiently established that it was physically impossible for accused to be in the scene of the crime at Aurora Boulevard, Quezon City, at 5:30 a.m., the time complained of. Then, too, it bears noting that while it was the direct testimony of the accused that he was at his place of work in Pasig on December 16, 1987, he also testified on cross examination that he reported for work on December 16, 1987 at 7:00 a.m.
xxx xxx xxx

Accused seeks to exculpate himself by saying that Police Officer Juan Dacillo prodded Lincoln Leyretana to point to him as the perpetrator of the crime even if his face was different from the cartographic sketch. Accused testified thus:
Q A Q A What happened when Mr. Leyretana arrived at the Quezon City Police Station? I heard what Mr. Leyretana was saying Malayo naman sa hitsura doon sa sketch and Dacillo told him Ituro mo na lang. Did Leyretana comply? Yes, sir. (TSN, Rafael Torres, May 25, 1998, p. 18)

No motive was shown by accused why Police Officer Juan Dacillo would prod Mr. Leyretana to point to him as the culprit. Moreover, Mr. Leyretana rebutted the testimony of the accused, as follows:
Q Mr. witness, accused Rafael Torres testified last May 25, 1998 particularly on page 26 denying the accusation against him, meaning that he was not present when the incident occurred. What can you say to this? That is not true, sir. What is the truth, Mr. witness? The truth, sir, is that I saw him in the place of the incident [and] that he was the one who shot the victim, sir. And he also testified last May 25, 1998 on page 18, he stated that when you arrived at the Quezon City Police Station, you uttered the following word, which I quote: Malayo naman sa hitsura doon sa sketch. What can you say to this? This is not also true. (TSN, Lincoln Leyretana, September 8, 1998, pp. 3-4)

A Q A Q

Prior to the identification of the accused at the police line up, Mr. Leyretana pointed to the accused as the person who shot the victim while boarding the jeep on February 6, 1998. Police Officer Juan Dacillo then followed the jeep which accused had boarded. However accused, sensing that he was being

followed, transferred to a passenger bus where he was apprehended by the group of Police officer Juan Dacillo. It is not unnatural for an eyewitness of a heinous crime to strive to see the face of the culprit and to observe the manner in which the crime was committed, and thereafter to cooperate with the police authorities for the sole purpose of bringing the culprit to justice.
[9]

Assignment of Errors

Appellant submits that the trial court erred in the following ways:

I The trial court gravely erred: a.) b.) In convicting the appellant despite lack of positive identification; In failing to give credence to appellants defense of alibi;

c.) In convicting the appellant despite lack of proof beyond reasonable court; d.) In not acquitting the appellant; and

Assuming arguendo that the killing of the victim may be validly imputed [to] the appellant, the trial court gravely erred: a.) In appreciating the qualifying aggravating circumstances of treachery and evident premeditation; b.) In awarding the amount of P150,000.00 for actual damages despite lack of proof, and c.) In imposing the penalty of reclusion perpetua.
[10]

In the main, the Court will determine the sufficiency of the prosecution evidence regarding the identification of the author of the crime.
The Courts Ruling

The appeal is not meritorious.

Main Issue Identification of the Culprit

Appellant asserts that the prosecutions lone eyewitness made not only a hazy identification of the suspect but also a highly contradictory testimony. [11] The former firmly assails the highly suggestive identification procedure during which the latter pinpointed him to the police.
Identification Made During the Incident

Generally, the Supreme Court accords great respect to the factual conclusions of trial courts, because they had the opportunity to observe the witnesses demeanor.[12] However, the rule does not apply here because one judge heard the testimony of the eyewitness and another[13] penned the assailed Decision.[14] Hence, the Court scrutinized the testimonies of the witnesses, but found no reason to reverse or modify the trial courts factual findings. The evidence on record shows that Lincoln Leyretana, the lone prosecution eyewitness, was able to identify appellant because the former had seen the latter during the incident. Leyretana testified in this wise:[15]
Q A Q A Will you kindly tell the Court, Mr. Witness, what was that unusual incident that happened? I witnessed a gunshooting, sir. Will you kindly tell the Court, Mr. Witness, what was that shooting incident which you witnessed? I boarded a passenger jeep and I was sitting two (2) seats away from the back of the driver. I noticed the uneasiness of the person beside me and that time I was also uneasy because I was wearing a fatigue also. What was that shooting incident which you have just stated before this Court? When we came out [of] a street near St. Joseph church, there was a man who alighted from the jeep. Then passing at the back of the jeep, this man suddenly pulled his gun and shot a certain man who [was] the victim in this case. How many shots did you hear when this man who was seated beside you shot at the victim by the name of Luisito Angeles? Before he was able to alight, he was able to sh[o]ot the victim two (2) times, sir. Were there other shots that were made after than shooting incident? After the first two (2) shots, I thought the suspect [would] run, but instead he again went around the jeep and looked around and when he was immediately [in front of] the victim, he again [shot] him twice.

Q A

Q A Q A

Even before the shooting, Leyretana had already noticed appellant seated next to him, acting uneasily. A few minutes later, while alighting from the vehicle, appellant shot the victim. Once outside, the former turned around and shot the latter two more times. At that moment, appellant was directly facing not only the victim inside the jeepney, but also the other passengers. Hence, although there was commotion at the time, appellants image was etched in the memory of the eyewitness. Appellants contention that it was still dark at the time is not convincing. It was established that there was sufficient illumination coming from a light inside the jeepney.[16] Just as unacceptable is the challenge to the reliability of the identification made by Leyretana, whose description of the court interpreter would allegedly fit a lot of other individuals. We need only to stress that the eyewitness, even under grueling cross-examination, did not waver in asserting that appellant was the culprit. Furthermore, we reject the argument that there was serious doubt on the testimony of Leyretana because he had not immediately volunteered information to the police.[17] Witnesses are commonly reluctant to involve themselves in criminal actions, and the Court has held that this reluctance is insufficient to affect their credibility. [18] Appellant also cited other inconsistencies in the testimony of Leyretana. These, however, pertained to minor and insignificant details, which did not materially affect the substance of his testimony that he had seen appellant shoot the victim.
Suggestive Identification Procedure

Due process demands that the procedure for the identification of criminal suspects be free from impermissible suggestion.[19] Indeed, the corruption of out-ofcourt identification contaminates the integrity of in-court identification during the trial.[20] Appellant contends that there was suggested identification, because at the precinct where [Leyretanas] statement was taken, he was told by Pfc. Dacillo that the suspect was already apprehended and that he [would] be asked to identify him.[21] Appellant implicitly argues that Leyretana would not have pinpointed the former, had the latter not been told that the suspect had already been apprehended. Appellants argument is not supported by the records. True, policemen fetched Leyretana from his house, so that he could confirm the identity of the culprit. However, we find nothing in the acts of the law enforcers that would constitute any impermissible suggestion. They did not coach or suggest to Leyretana to point to appellant. The witness did so on his own. In fact, the policemen took him to a busy intersection where he pointed to appellant, who was about to board a bus. Indeed, appellant was not presented alone to Leyretana. This was clear from the latters testimony, which we quote:[22]
A I was brought to Marikina and when they reached a place where the suspect was supposed to hang around, I pointed to him even without alighting from the jeep and so he was pursued by the policemen and apprehended inside the bus.

ATTY. JUMAMIL: Q A Q A Q A Q A So, you were inside a jeep when you pointed to the suspect, is that correct? It was a private vehicle, sir. Whose car was it, if you know? If I am not mistaken, it belongs to the lawyer. You were told, were you told by Pfc. Dacillo that that is the suspect, is that him? No, sir. You were told, were you told by the lawyer of the victims family that that is the suspect, is that him? No, sir. (Italics supplied.)

Leyretanas account was corroborated by Pfc. Juan A. Dacillo, who testified thus: [23]
Q A Will you please tell the Court the circumstances as to how this identification made by the witness Lincoln Leyretana [of] the accused happened? We went there early in the morning between 5:30 or 6:00 a.m. We positioned ourselves in a far distance near that corner where passengers usually board a passing jeepney or a passing bus. The witness is with us in the car waiting for the suspect or the male person that may take a ride on that corner. The event happened so fast that Sir, sir, yong sumasakay, yon yon. x x x. (sic) Who made such pronouncements (referring to the quoted statement, earlier quoted statement)? Leyretana, Your Honor.

Q A

Leyretana repeated his earlier assertions after the policemen included appellant in a lineup. Clearly, there was no impermissible suggestion from the law enforcers. Significantly, it was not shown that there was any undue motive on the part of the police officers to incriminate appellant, who was also a policeman. Absent such showing, they are presumed to have performed their duties regularly.[24] The present case should be distinguished from Natividad v. Court of Appeals,[25] in which the witnesses were fetched by police officers and brought to the place where the accused was apprehended. The Court narrated the factual antecedents as follows:

The record shows that on January 25, 1972, three police officers fetched Primavera, Galvadores and Soliman in a jeep and they proceeded to the office of the Allied Brokerage Corporation. Primavera, et al. and a police officer stayed behind in the jeep and the two police officers looked for Natividad inside the Allied Brokerage Corporation office in order to invite him for interrogation at the MMP Headquarters. Outside said office, one of the police officers threatened Natividad, for he desisted from joining them while Primavera, et al. watched from inside the jeep. Thereafter, they all proceeded together to the MMP Headquarters where the police officers directed

Natividad to join a line-up of ten (10) men. Then, the police officers called the two women (Primavera and Galvadores) and the man (Soliman) and asked them to make the identification. It can thus be readily seen that at the premises of the Allied Brokerage Corporation office, the police officers literally paraded Natividad before Primavera et al. whom they purposely fetched from the Manila Christian Guesthome to see Natividad. (Emphasis supplied)
In Natividad, there was impermissible suggestion because the policemen let the witness know from the start who their suspect was. In the present case, while the police already had a suspect, they did not reveal his identity to Leyretana. In fact, it was the witness himself who pointed out the culprit to them.
Right to Counsel During Police Lineup

Appellant also argues that the identification made by Leyretana during the police lineup was inadmissible, because the former was not assisted by counsel at the time. [26] The argument contradicts settled jurisprudence. The Court has held that the assistance of counsel is not essential during a police lineup. Thus, the Court ruled in People v. Pavillare:[27]

x x x. The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature. It has also been held that an uncounseled identification at the police line-up does not preclude the admissibility of an incourt identification.
Appellants Flight

Further militating against the cause of appellant was his flight. The records show that he escaped from the police station after his arrest. He explained that [w]hen nobody minded me, I already left the place.[28] At the time, he already knew that he would be charged. Instead of defending his innocence, he escaped from the law, even if it meant being AWOL from his post as a policeman. Clearly, his flight evinced his guilt.
Collateral Issues

Appellants Alibi

Appellant insists that he was in his office in Pasig City when the crime was committed. This argument scarcely deserves consideration. The well-settled rule is that alibi is a weak defense, which cannot prevail over the positive identification of the accused by a credible witness,[29] as in this case.
Treachery and Evident Premeditation

We agree with the trial court that the killing was qualified by treachery. This qualifying circumstance is appreciated when the attack was executed in such a manner as to ensure the offenders safety from any defense or retaliatory act of the offended party.[30] In the present case, appellant shot the unsuspecting victim point-blank inside the jeepney. Not content, once outside, the former shot the latter two more times. We disagree with the ruling, however, that evident premeditation was present. The prosecution failed to establish the following elements of this aggravating circumstance: (a) the time when the accused determined to commit the crime, (b) an act manifestly indicating that the accused clung to that determination, and (c) a lapse of time between the determination and the execution sufficient to allow the accused to reflect upon the consequences of the act.[31] That appellant had been seen near the victims house a few minutes before the shooting did not by itself establish evident premeditation.
Proper Penalty And Civil Liabilities

Be that as it may, the trial court correctly sentenced appellant to reclusion perpetua. When the crime was committed in 1987, the penalty for murder was reclusion temporal, in its maximum term, to death. There being no aggravating or mitigating circumstance, the penalty should be imposed in its medium term, which is reclusion perpetua.[32] The trial court correctly awarded the amount of P50,000 as indemnity ex delicto. Pursuant to current jurisprudence,[33] this is awarded without need of proof other than the commission of the crime. We also sustain the awards of P95,500 as actual damages and P20,000 as moral damages, for these were supported by evidence. We disagree, however, with the award of P150,000 for loss of earning capacity. The amount of indemnity for such loss is based on the income at the time of death and the probable life expectancy of the victim. It should also be stressed that this indemnity refers to the victims total earnings minus the necessary living expenses. In computing this award, the Court has used the following formula:

2/3 x (80 - age of the victim at the time of death) x (reasonable portion of the annual net income which would have been received as support by the heirs)
[34]

In the present case, it was shown that the victim, a mechanical engineer, was 35 years old and earning P20,000 a month (or an annual income of P240,000) when he was killed. Under the circumstances, we believe that the amount of necessary living expenses should be fixed at P10,000 a month. Applying the above formula, the indemnity in the present case should be computed as follows:

= 2/3 x (80 35) x (P240,000 P120,000) = 2/3 x 45 x P120,000 = P3,600,000.

WHEREFORE, the appeal is hereby DENIED and the assailed Decision AFFIRMED, with the sole modification that the heirs of the victim are awarded P3,600,000 as indemnity for the lost earnings of the deceased, in addition to the other amounts awarded by the trial court. Costs against appellant. SO ORDERED. Melo, (Chairman), Vitug, and Gonzaga-Reyes, JJ., concur.

SECOND DIVISION

[G.R. No. 127495. December 22, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOLITO BORAS Y DOE, accused-appellant. DECISION
BUENA, J.: For allegedly raping a six year-old girl, Nolito Boras was convicted of statutory rape by the Regional Trial Court of Libmanan, Camarines Sur and was sentenced to suffer the penalty of reclusion perpetua, and to pay P50,000.00 as civil indemnity. Hence, this appeal questioning his conviction. On December 13, 1991, while Melanie Medallas parents were sleeping in their house at Barangay Bahay, Libmanan, Camarines Sur, she remained downstairs playing alone. At around 9 oclock in the morning of that day, Nolito Boras, herein accusedappellant, went to her and invited her to go with him. Since she is familiar with the accused-appellant as neighbor, she was cajoled to go with him. When they arrived at a guava tree near the coconut plantation, which is about 15 meters from her house, accused-appellant told her magkitoan[1] which means we will have sex. Obeying the

instruction of accused-appellant, she removed her panty. Thereafter, she was placed on top and in-between accused-appellants legs[2] who then inserted his penis into her vagina. While accused-appellant was satisfying his salacious desire, Cirilo Guirela, the victims uncle arrived. When she saw her uncle Cirilo, she ran away. Thereafter, Cirilo told Jesus Amenia, brother-in-law of accused-appellant, that the latter raped his niece. Jesus Amenia got angry with the accused-appellant then proceeded home with the latter. On December 14, 1991, Cirilo reported the matter to the Barangay Captain [3] and was advised to report the incident to the police authority of Libmanan, Camarines Sur.[4] The police advised the examination of the victim at the Libmanan District Hospital. On December 15, 1991, Dr. Cynthia S. Algery of Libmanan District Hospital examined the six-year-old victim. The examination revealed hymenal laceration at 3 oclock caused by any organ which is inserted into the vagina, like a penis, and hypremia of the introitus (redness found at the entrance of the vagina). [5] While being examined, the doctor asked the victim what happened and the victim described the person who raped her.[6] On February 12, 1992, an information for the crime of rape was filed against Nolito Boras y Doe alleging-

That on or about the 13th day of December 1991, at about 9:00 oclock in the morning, at Brgy. Bahay, Municipality of Libmanan, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with lewd design, with violence and force, intimidation and with grave abuse of confidence, did then and there willfully, unlawfully and feloniously have carnal knowledge with Melanie Medalla, a six (6) years old (sic), against her will and the offended party suffered damages. ACTS CONTRARY TO LAW.
[7]

Upon arraignment on May 18, 1992, the accused, assisted by counsel, pleaded not guilty. At the trial, on December 22, 1992, counsel for the accusedappellant manifested in court that he noticed something strange with the accused-appellant and asked that the latter be examined by a psychiatrist to determine his mental fitness. The trial court advised the counsel to file a formal motion for the examination of the accused. Thereafter trial ensued. On June 16, 1993, the defense presented accused-appellant. When asked about his personal circumstances, he answered that his name is Diosdado Macapagal;[8] that he does not know the name of his father and his mother; that he does not know whether he has a brother and sister; that he does not know Tinagis Penal Farm where he is presently confined; that he does not know how he was able to come to court and who escorted him. On such note, the trial court issued an Order setting forth the foregoing declarations, with further pronouncement that accused-appellant in all appearances

seems to be normal but is feigning insanity. Thus, the Provincial Warden of Tinagis Penal Farm was directed to bring accused-appellant to Don Susano Rodriguez Mental Hospital at Cadlan, Pili, Camarines Sur for necessary physical and mental examination and observation in order to determine whether he is insane or not, and whether he has the necessary faculties to undergo trial. The Chief of Susano Rodriguez Mental Hospital was directed to admit and conduct the necessary examination and submit a written report to the trial court on the mental condition of the accused within 15 days after the last examination/treatment. Pending the submission of the report, the hearing was suspended. After the issuance of the aforementioned Order, accused-appellant rendered two songs, one after another, after the trial court requested him.[9] On May 2, 1995, the Bicol Regional Hospital - Department of Psychiatry submitted its report on the mental status of Nolito Boras remarking that accused-appellant was coherent and relevant and that he was free of psychotic signs and symptoms. The remarks further stated that accused-appellant knows the case filed against him and that his anxiety or apprehension was due to fears of being incarcerated in jail. [10] After trial, judgment was rendered convicting accused-appellant, thus -

WHEREFORE, premises considered, the court finds and so holds that the accused Nolito Boras is found guilty of the offense of statutory rape of Melanie Medalla, a six (6) year old girl at the time of the rape and, therefore, sentences him to suffer the penalty of reclusion perpetua and is ordered to pay Melanie Medalla the amount of P50,000.00 for indemnity. No pronouncement as to cost. SO ORDERED.
[11]

Accused-appellant now appeals questioning his conviction for rape, assigning as error the admission of Exhibit B, which is a photocopy of the certificate of livebirth of the victim. Initially, to avoid criminal liability, accused-appellant feigned insanity. To bolster such imagined dementia, accused-appellant offered his fathers testimony declaring that accused-appellant was afflicted with a mental defect since childhood. As observed by the trial court, accused-appellant is normal. In this regard, the trial courts observation of the demeanor and deportment of witnesses, as a rule, will not be interfered with, considering that the behavior, gesture, inflection of voice and manner of responding to questions propounded to witnesses are best available to the trial court. It is not appropriate to calibrate anew such observations on the basis alone of the cold transcript of stenographic notes unless such findings are clearly shown to be arbitrary. In fact, the trial court was not remiss in its duty in determining the mental capacity of accusedappellant when it ordered accused-appellants confinement in a hospital for medical and psychiatric evaluation which examination revealed that accused-appellant is sane and coherent. The foregoing steps clearly demonstrate that the judge had sufficiently and effectively satisfied the two components of insanity test that will effectively guarantee accused-appellants right to a fair trial, which are: (1) whether the defendant is

sufficiently coherent to provide counsel with information necessary or relevant to constructing a defense and (2) whether he is able to comprehend the significance of the trial and his relation to it.[12] Accused-appellant was convicted under Article 335 of the Revised Penal Code[13]which provides that rape is committed by having carnal knowledge of a woman under twelve years of age, thus-

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.
x x x xxx x x x

In statutory rape, there are two elements that must be established prior to conviction of this crime, namely: (1) that the accused had carnal knowledge of a woman and (2) that the woman is below twelve years of age.[14] As to the first element, accused-appellant denied having sexual contact with the victim and challenges the latters credibility. After a thorough review of the records of this case, we find the victims testimony credible. From the victims narration, it was clear that there was sexual intercourse. The victim even demonstrated in court how she was raped by the accused-appellant in squatting position by holding her hips. [15] She narrated that she felt pain and when she was crying, accused-appellant stopped thrusting his organ. She declared that she was not able to shout because during the sexual contact, accused-appellant was covering her mouth.[16] Her credible testimony alone suffices to establish accused-appellants guilt.[17] In rape, mere touching by the males organ, or instrument of sex, of the labia of the pudendum of the females private part is sufficient to consummate rape.[18] But when the victim is below 12 years old, sexual contact of the males sex organ with the womans private part consummates rape and it is not required to prove force, intimidation, or consent. [19] The victims declarations were corroborated by the testimony of her uncle who witnessed the bestial act. Such testimonies were further supported by the medical findings of Dr. Algery who examined the victim two days after the incident. The medical report shows that there was penetration by the male organ into her genitalia. The victim even testified to other occasions of rape committed against her by accused-appellant prior to December 13, 1991.[20] However, accused-appellant cannot be convicted for the alleged rapes committed other than the one charged in the information. A rule to the contrary will violate accused-appellants constitutional rights to be informed of the nature and cause of the accusation against him. [21] Such other alleged

rapes committed which are not alleged in the information may be taken only as proof of specific intent or knowledge, plan, system or scheme.[22] Anent the second element as to the age of the victim when the crime was committed, accused-appellant questions the admission of the photocopy of the birth certificate of the child invoking Section 3, Rule 130. Accused-appellant argues that the failure of the prosecution to prove the circumstances that will warrant the admission in evidence of the said photocopy, renders the same inadmissible and he cannot be convicted of statutory rape since the age of the victim was not proven with reasonable certainty. It is clear from the records that complainant Melanie Medalla was born on October 23, 1985.[23] Besides, under Section 36, Rule 132 of the Rules of Court, objection to evidence offered orally must be made immediately after the offer is made. In the case at bar, the photocopy of the birth certificate was formally offered in evidence and marked as Exhibit B. It was offered to prove (a) the fact of birth of the victim, and (b) the fact that the victim was below twelve years old when she was ravished on December 13, 1991. The defense objected to the purpose for which Exhibit B was being offered,[24] but did not object to the presentation of the photocopied birth certificate which is merely treated as a secondary evidence. Having failed to raise a valid and timely objection against the presentation of this secondary evidence the same became a primary evidence,[25] and the same is deemed admitted and the other party is bound thereby. Even so, if the evidence objected to was not received, it would not have varied the conclusion arrived at by the court as to the correct age of the victim considering that the victim and her mother testified as to her age. [26] The testimony of the mother as to the age of her child is admissible in evidence for who else would be in the best position to know when she delivered the child. Besides, the court could very well assess whether or not the victim is below twelve years old by simply looking at her physique and built. It must be stressed that in dealing with rape cases of children, especially those below twelve years of age, due care must be observed by the trial court in handling the victim. In fact, more often than not, the grueling experience in the trial court in the course of direct and cross-examination is more traumatic than the fact of rape itself. On such occasions, mishandling of victims lead to psychological imbalances which, if not properly treated by medical experts will lead to an abnormal behavioral response against the idea of sex itself and disturbed interaction with the opposite sex or of the same sex. The frightful experience of rape committed to children who are bereft of mundane wiles[27] necessitates the highest degree of tact, patience and diplomacy. No woman, especially a child of tender years would exactly remember step-by-step the sexual intercourse in the hands of the maniacal beast. It is enough that the child was able to explain in her own way that there was sexual intercourse. By subjecting her into explaining whether she was forced or intimidated is excessive. For proof of force and intimidation is unnecessary in statutory rape. Considering that there is a medical report substantiating the allegations made by the victim, the manner of examination of the victim must be tempered. Especially in this case, since the child is only six years old who remains uncorrupted. In rape, mere touching of males organ to the pudendum of females organ is enough to consummate the crime. Whether the organ was fully erect

or not, to a child of six years of age, slight penetration consummates rape. Thus, asking questions likeQ: Did you have any opportunity at that time when you were raped to hold the penis of Nolito Boras? A: No, Sir. Q: At the time, when you were raped by Nolito Boras, was his penis hard or soft? A: Hard, sir[28]

and
Q: Did you see your Uncle Cerilo Guirela after the accused Nolito Boras stop pushing and pulling his penis to your vagina or while he was still in the process of pushing and pulling his penis to your vagina? A: Nolito Boras was not yet finished pushing and pulling his penis to my vagina.[29]

are unnecessary, uncalled for and excessive queries. Imputation of rape against a neighbor cannot be concocted with ease for malicious reasons by parents of a six-yearold child because it would cause more harm than good. Aside from the traumatic experience of rape, the victims story of defloration must withstand not only the examination in court but also the medical examination of the victims private parts by a licensed physician. Lastly, at the time of the commission of rape on December 13, 1991, the victim was only six (6) years old. Statutory rape committed in 1991 is punishable by reclusion perpetua. The present law provides that when the crime of rape is committed against a child below seven (7) years of age, death penalty shall be imposed. Considering that the retroactive application[30]of the law will be unfavorable to accused-appellant, the latter is fortunate enough to be meted only the penalty of reclusion perpetua. Had it been committed after the enactment of the new law, this Court will not hesitate to impose the penalty of death. The award of P50,000.00 representing civil indemnity is proper. In addition thereto, accused-appellant shall pay P50,000.00[31] representing moral damages without necessity of proof other than the fact of rape plus P20,000.00 as exemplary damages. Exemplary damages may be awarded if the crime was committed with one or more aggravating circumstances. In this case, abuse of confidence should be appreciated as an aggravating circumstance. The victim trusted accused-appellant in going with him upon the latters invitation on account of her familiarity with him as their neighbor. WHEREFORE, the trial courts judgment convicting accused-appellant of statutory rape is hereby AFFIRMED subject to the MODIFICATION that accused-appellant is ordered to pay P50,000.00 as moral damages and P20,000.00 as exemplary damages IN ADDITION to the P50,000.00 civil indemnity awarded by the trial court. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.

EN BANC

[G.R. No. 135405. November 29, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JHONNETTEL MAYORGA y LUMAGUE alias Puroy, accused-appellant. DECISION
BELLOSILLO, J.: Ravishers of the young, chaste and uninitiated are an ignominious breed of evil men. They are filthier than the slime where they belong, so that even their banishment to Hades for all eternity would be too low a price to pay for the innocent young lives they ruin and destroy. The case at bar, involving a sexual assault upon a child of tender years who had been orphaned by her mother and forsaken by her father, apostrophizes the havoc these despicable and evil beasts can forge. The version of the prosecution,[1] as sustained by the trial court, is that at about five o'clock in the afternoon of 24 June 1995, in Barangay Zone I, Sitio Paraiso, Pinamalayan, Oriental Mindoro, five-year old Leney Linayao was playing by the seashore. Suddenly, she was approached by the accused Jhonnettel Mayorga y Lumague alias Puroy who asked her to buy for him a bottle of gin commonly known as "bagets." He then brought the child to a marshy area ("lalao") nearby where he boxed her on the face and chest and wrung her neck until she fainted. By the time Leney recovered consciousness, Puroy had already raped her and then disappeared. Leney, bleeding and muddied, stood up and walked away to the direction of Matuod-tuod where her family lived. On her way home she met Macaria M. Gonzales who immediately brought her to a certain Kapitan Lunario.[2] Lunario, in turn, asked Richard Magboo, Nicodenes Magboo and Raquel Laogo to take the child to the barangay hall where she narrated her experience to the barangay tanods gathered in the hall. The tanods brought Leney to the clinic of Dr. Roberto Ngo who examined and attended to her. At about this time, Leneys grandmother, Alfonsa Magculang, together with some men started looking for her. While searching they met Puroy's cousin, Edwin Lumague, who told them that Leney was raped by Puroy and was "dead" when abandoned. According to Edwin, while he was preparing to join the search, Puroy dissuaded him from going and confided to him that "iyong bata si Leney ay napagtripan niya at nilitik niya."[3] With Edwin leading the way, they immediately repaired to where Leney was supposedly taken by Puroy. But she was not there. The search party proceeded to the military detachment to report the matter. There they were told by Richard Magboo that Leney had been taken by the barangay tanods to Dr. Ngos clinic.

Alfonsa rushed to Dr. Ngos clinic and found Leney lying prostrate with her vagina and anus bleeding. Dr. Ngo advised her to take the child to the provincial hospital for further examination. Finally, at around eight o'clock in the evening, Puroy was picked up by the police and brought to the PC barracks by the barangay tanods who heard Edwins account. Afterwards, Puroy was transferred to the police station.[4] On 27 June 1995 Dr. Cristina Gonzales physically examined Leney at the provincial hospital. Dr. Gonzales found that Leney sustained "hematoma, right eye; contusion hematoma, right temporal area; multiple abrasions: right shoulder, left anterior chest, left thigh and leg, upper back. External genitalia: complete hymenal lacerations at 3, 5, 7 & 10 o'clock positions with erythematous borders, with a 1 cm. perineal laceration with purulent discharge. Internal examination: vagina admits 1 finger with ease. Laboratory examination: cervico-vaginal smear for the presence of spermatozoa revealed NEGATIVE result."[5] Jhonnettel Mayorga alias Puroy was accordingly charged with statutory rape of a child five (5) years of age. At the trial, the prosecution presented Alfonsa Magculang, Dr. Cristina Gonzales, Leney and Renato Gamilla, one of the barangay tanods who brought Leney to Dr. Ngos clinic. After the prosecution had rested, Puroy with leave of court filed a demurrer to evidence,[6] which was denied by the trial court. Thereafter, the defense presented the accused as its lone witness who claimed that the imputation against him was a lie. He claimed that at the time of the supposed rape he was "patay lasing." He narrated that at about three o clock in the afternoon of the day in question he was with Manuel Erebe and Rico Erebe at the seashore drinking gin in celebration of the feastday of Saint John the Baptist. After consuming a few bottles of gin he blacked out. When he awoke at seven oclock in the evening, he found that he was alone and so he decided to go home. He was met by Edwin who told him that policemen were looking for him and that he was a suspect in the rape of Leney, his neighbor. But he denied these accusations and went home to sleep. After an hour, he was awakened by the police, arrested and brought to the PC barracks.[7] The trial court did not sustain Puroy's defense of alibi. Edwins testimony was also not given credence on the ground that it was hearsay and was violative of the constitutional rights of the accused. Solely on account of Leneys testimony, the court a quo found the accused guilty beyond reasonable doubt as principal in the crime of RAPE as defined and penalized under Art. 335 of the Revised Penal Code, as amended by RA 7659, and sentenced him to suffer the supreme penalty of DEATH plus the accessory penalties provided by law, and to indemnify the victim Leney Linayao the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs.[8] Forthwith, the case was elevated to this Court for automatic review. In his brief, accused concedes that his defense of alibi is inherently weak. Nonetheless, he faults the trial court for convicting him despite the failure of the prosecution to establish his guilt beyond reasonable doubt. He elaborates that, first,

Leneys testimony should not be given credence since she had been coached by her grandmother; and second, Edwins testimony was given under compulsion of threat and does not deserve credit. On the claim that Leney was a "tutored witness," accused capitalizes on certain portions of the victims testimony regarding the circumstances surrounding the rape Q: You will agree with me that your Lola told you that when asked how you were raped, your Lola told you to make the sign which you have just demonstrated a while ago? A: Yes, sir. Q: Your Lola also told you to say before this Honorable Court that Puroy inserted his penis on your vagina? A: Yes, sir. Q: So it was your Lola who informed you to testify in the manner you did? A: Yes, sir. Q: So, it is now true, that all you have testified before this Court were taught to you by your Lola? A: Yes, sir. Q: You could not be mistaken about that and you will not change your answer in any other circumstances? A: Yes, sir.[9]

Accused further asserts that he was being falsely charged by his cousin Edwin because the latter was threatened by the complainant that he would be implicated in the rape charge unless he testified against the accused. This appeal primarily hinges on the issue of credibility of witnesses. We have held that except for compelling reasons, we cannot disturb the manner the trial courts have calibrated the credence of witnesses because of their direct opportunity to observe the witnesses on the stand and detect if they were telling the truth. [10] As trial courts, they can best appreciate the verbal and non-verbal communication made by witnesses which cannot, with precise accuracy, be placed on the records. The argument that Leney has lost her credibility since she admitted that she had been coached by her grandmother has no merit. The victim, an innocent and guileless five-year old when the crime was committed against her, cannot be expected to recall every single detail and aspect of the brutal experience that she went through in the hands of the accused. Besides, at the time of her testimony she had stopped schooling and did not have the gift of articulation. It is but fair that she be guided through by her grandmother in recounting her harrowing experience which happened two (2) years before she testified. In a similar case, we held, "assuming that she was indeed tutored on what to say on the witness stand, it is worthy to note that when she testified, she was alone; hence, any traces of inconsistency would have easily been detected. More importantly, the complainant took the witness stand x x x to narrate her harrowing experience, and in all

of those instances, she underwent intensive cross-examination from the defense but her testimony never wavered nor faltered."[11] We realize how extremely painful it was for Leney to reveal that she had been raped. Her attempt to demonstrate before the court the accused's success in having carnal knowledge of her spoke of her utter innocence and naivet. Her painful cries[12] were eloquent testimonies of an anguish too grievous for a young girl to bear. Indeed, it is simply hard to conceive that a girl of her character would be able to weave such a sordid tale. At this juncture, we take exception to the pronouncement made by the court below that "the testimony of Edwin Lumague that accused Jhonnettel Mayorga conveyed to him that 'May napagtripan akong bata. (Nalitik daw po niya ang bata)' could not be given credence and therefore inadmissible, both as violative of the constitutional rights of the accused and as hearsay evidence."[13] The lower court's ruling that the admission of the declaration of the accused would constitute a violation of his constitutional right is misplaced. His declaration was not made under custodial investigation; hence, it does not come within the gamut of Sec. 12, Art. III, of the 1987 Constitution.[14] Nor is there merit to the courts finding that Edwins testimony was hearsay. This is a misinterpretation of the hearsay rule. It must be pointed out that the statement to him of the accused constitutes an extrajudicial admission.[15] This admission can be received against the accused since it is not within the purview of the hearsay rule. Wigmore explains that the hearsay rule is intended to give the parties a right to object to the introduction of a statement not made under oath and not subject to crossexamination. Its purpose is to afford a party the privilege, if he desires it, of requiring the declarant to be sworn and subjected to questions. Wigmore then adds that where the evidence offered are his statements, the purpose does not apply, and so the hearsay rule does not likewise apply, as "he does not need to cross-examine himself."[16] In the face of Edwin's testimony that the accused had made the admission, it becomes imperative for the latter to disprove it. His explanation that Edwin was coerced to testify against him is at best a futile attempt to prop a tottering defense. The allegation can be no better than pure speculation as nothing was offered to support it. On the other hand, it is indeed incredible that Edwin could be frightened by the threat of a five-year old child. The defense of alibi set up by the accused is equally untenable. The rule is that the defense of alibi when not supported by clear and convincing evidence deserves no weight in law as it can be easily fabricated or contrived. It cannot be given evidentiary value than the affirmative testimony of credible witnesses who harbor no ill motives against the accused, for as between a categorical testimony on one hand, and a bare denial on the other, the former is generally held to prevail.[17] All told, the guilt of the accused for the rape of Leney Linayao has been conclusively established. But, the penalty of death was erroneously imposed. Under Art. 335 of the Revised Penal Code, as amended by RA 7659, death shall be imposed "when the victim is . . . a child below seven (7) years old." In the instant case, the Information

charging the accused with rape alleged the circumstance that the victim, Leney Linayao, was five (5) years of age. However, it is significant to note that the prosecution failed to present her birth certificate. Although the victims age was not contested by the defense, proof of age is critical considering that the victims age at the time of the rape was just two (2) years less than seven (7) years. Given the similarities in physical features and attributes between a five-year old child and a seven-year old, an independent proof of age is necessary to convince this Court that the victim was indeed below seven (7) years of age when she was raped, in order to justify the imposition of the death penalty. The evidence on record shows that other than the testimonies of the victim and her grandmother, no independent proof was presented to show that Leney was below seven (7) years of age when raped. As such, the lower court should have imposed the penalty of reclusion perpetua and not death. Further, inasmuch as the rape was not qualified by any of the circumstances under which the death penalty should be imposed, the civil indemnity to be awarded to complaining witness Leney Linayao should remain at P50,000.00. However, considering the trauma she suffered, we deem it proper to award her moral damages of P50,000.00 although no proof of such entitlement was presented, which is not necessary after all. In one case[18] this Court held -

Under the Civil Code, every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same (Art. 20) and (a)ny person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damages (Art. 21). x x x x Courts have hitherto awarded moral damages in rape cases only when it has been proven during the trial that the victim or his heirs suffered physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. These are sacramental words and phrases which courts routinely look for in awarding moral damages. If none of these is alleged and proven, moral damages would normally be withheld. One look at the records of a rape case would, however, readily reveal that these factors are evident in each tearful narration of a victims harrowing tale. Never mind if the exact words do not appear therein. The fact remains that any victim of rape, regardless of age, status, social or professional position, religious orientation, or sexual preference, would suffer physical pain, emotional outrage, mental anxiety and fright. Her feelings, not to speak of her reputation, would definitely be permanently scarred x x x x Although, admittedly, the picayune damages awarded in these instances could not even allay the true misery of a rape victim, the knowledge that the man responsible for it would have to literally pay for his misdeed, on top of having to spend time in prison, could assuage somewhat the pain inflicted.

April Dino was mercilessly plucked from childhood and rudely thrust into a world that, like her, has lost its innocence. She will no longer be thrilled by the ancient rituals of courtship, marriage and procreation. It is very probable that she will be unable to sustain lasting and meaningful relationships with the opposite sex x x x x In time, her physical wounds will heal but the scars left by the accused-appellant on her pubescent mind and heart will forever throb and hurt. For his transgressions, he must be made to pay.
WHEREFORE, the assailed Decision of the trial court finding accused JHONNETTEL MAYORGA Y LUMAGUE guilty of rape is AFFIRMED with the modification that the penalty of death is reduced to reclusion perpetua. In addition to the civil indemnity of P50,000.00, accused is further ordered to pay complaining witness Leney Linayao P50,000.00 for moral damages, plus the costs. SO ORDERED. Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 108854 June 14, 1994 MA. PAZ FERNANDEZ KROHN, petitioner, vs. COURT OF APPEALS and EDGAR KROHN, JR., respondents. Cruz, Durian, Agabin, Atienza, Alday and Tuason for petitioner. Oscar F. Martinez for private respondent.

BELLOSILLO, J.: A confidential psychiatric evaluation report is being presented in evidence before the trial court in a petition for annulment of marriage grounded on psychological incapacity. The witness testifying on the report is the husband who initiated the annulment proceedings, not the physician who prepared the report. The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on privileged communication between physician and patient, seeks to enjoin her husband from disclosing the

contents of the report. After failing to convince the trial court and the appellate court, she is now before us on a petition for review on certiorari. On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint Vincent de Paul Church in San Marcelino, Manila. The union produced three children, Edgar Johannes, Karl Wilhelm and Alexandra. Their blessings notwithstanding, the relationship between the couple developed into a stormy one. In 1971, Ma. Paz underwent psychological testing purportedly in an effort to ease the marital strain. The effort however proved futile. In 1973, they finally separated in fact. In 1975, Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz prepared and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November 1978, presenting the report among others, he obtained a decree ("Conclusion") from the Tribunal Metropolitanum Matrimoniale in Manila nullifying his church marriage with Ma. Paz on the ground of "incapacitas assumendi onera conjugalia due to lack of due discretion existent at the time of the wedding and thereafter." 1 On 10 July 1979, the decree was confirmed and pronounced "Final and Definite." 2 Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial Court) of Pasig, Br. II, issued an order granting the voluntary dissolution of the conjugal partnership. On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz before the trial court. 3In his petition, he cited the Confidential Psychiatric Evaluation Report which Ma. Paz merely denied in her Answer as "either unfounded or irrelevant." 4 At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the contents of the Confidential Psychiatric Evaluation Report. This was objected to on the ground that it violated the rule on privileged communication between physician and patient. Subsequently, Ma. Paz filed a Manifestation expressing her "continuing objection" to any evidence, oral or documentary, "that would thwart the physician-patient privileged communication rule," 5 and thereafter submitted a Statement for the Record asserting among others that "there is no factual or legal basis whatsoever for petitioner (Edgar) to claim 'psychological incapacity' to annul their marriage, such ground being completely false, fabricated and merely an afterthought." 6 Before leaving for Spain where she has since resided after their separation, Ma. Paz also authorized and instructed her counsel to oppose the suit and pursue her counterclaim even during her absence. On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the introduction of the confidential psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz' Statement for the Record. 8 On 4 June 1991, the trial court issued an Order admitting the Confidential Psychiatric Evaluation Report in evidence and ruling that
. . . the Court resolves to overrule the objection and to sustain the Opposition to the respondent's Motion; first, because the very issue in this case is whether or not the respondent had been suffering from psychological incapacity; and secondly, when the said psychiatric report was referred to in the complaint, the respondent did not object thereto on the ground of the supposed privileged communication between patient and physician. What was raised by the respondent was that the said psychiatric report was irrelevant. So, the Court feels that in the interest of justice and for the purpose of determining whether the respondent as alleged in the petition was suffering from psychological incapacity, the said psychiatric report is very material and may be testified to by petitioner (Edgar Krohn, Jr.) without prejudice on the part of the respondent to

dispute the said report or to cross-examination first the petitioner and later the psychiatrist who prepared the same if the latter will be presented. 9

On 27 November 1991, the trial court denied the Motion to Reconsider Order dated June 4, 1991, and directed that the Statement for the Record filed by Ma. Paz be stricken off the record. A subsequent motion for reconsideration filed by her counsel was likewise denied. Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a Decision promulgated 30 October 1992, the appellate court dismissed the petition for certiorari. 10 On 5 February 1993, the motion to reconsider the dismissal was likewise denied. Hence, the instant petition for review. Petitioner now seeks to enjoin the presentation and disclosure of the contents of the psychiatric report and prays for the admission of her Statement for the Record to form part of the records of the case. She argues that since Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician from testifying on matters which he may have acquired in attending to a patient in a professional capacity, "WITH MORE REASON should be third person (like respondent-husband in this particular instance) be PROHIBITED from testifying on privileged matters between a physician and patient or from submitting any medical report, findings or evaluation prepared by a physician which the latter has acquired as a result of his confidential and privileged relation with a patient." 12 She says that the reason behind the prohibition is
. . . to facilitate and make safe, full and confidential disclosure by a patient to his physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. 13

She further argues that to allow her husband to testify on the contents of the psychiatric evaluation report "will set a very bad and dangerous precedent because it abets circumvention of the rule's intent in preserving the sanctity, security and confidence to the relation of physician and his patient." 14 Her thesis is that what cannot be done directly should not be allowed to be done indirectly. Petitioner submits that her Statement for the Record simply reiterates under oath what she asserted in her Answer, which she failed to verify as she had already left for Spain when her Answer was filed. She maintains that her "Statement for the Record is a plain and simple pleading and is not as it has never been intended to take the place of her testimony;" 15 hence, there is no factual and legal basis whatsoever to expunge it from the records. Private respondent Edgar Krohn, Jr., however contends that "the rules are very explicit: the prohibition applies only to a physician. Thus . . . the legal prohibition to testify is not applicable to the case at bar where the person sought to be barred from testifying on the privileged communication is the husband and not the physician of the petitioner." 16 In fact, according to him, the Rules sanction his testimony considering that a husband may testify against his wife in a civil case filed by one against the other. Besides, private respondent submits that privileged communication may be waived by the person entitled thereto, and this petitioner expressly did when she gave her unconditional consent to the use of the psychiatric evaluation report when it was presented to the Tribunal Metropolitanum Matrimoniale which took it into account among others in deciding the case and declaring their

marriage null and void. Private respondent further argues that petitioner also gave her implied consent when she failed to specifically object to the admissibility of the report in her Answer where she merely described the evaluation report as "either unfounded or irrelevant." At any rate, failure to interpose a timely objection at the earliest opportunity to the evidence presented on privileged matters may be construed as an implied waiver. With regard to the Statement for the Record filed by petitioner, private respondent posits that this in reality is an amendment of her Answer and thus should comply with pertinent provisions of the Rules of Court, hence, its exclusion from the records for failure to comply with the Rules is proper. The treatise presented by petitioner on the privileged nature of the communication between physician and patient, as well as the reasons therefor, is not doubted. Indeed, statutes making communications between physician and patient privileged are intended to inspire confidence in the patient and encourage him to make a full disclosure to his physician of his symptoms and condition. 17 Consequently, this prevents the physician from making public information that will result in humiliation, embarrassment, or disgrace to the patient. 18 For, the patient should rest assured with the knowledge that the law recognizes the communication as confidential, and guards against the possibility of his feelings being shocked or his reputation tarnished by their subsequent disclosure. 19 The physician-patient privilege creates a zone of privacy, intended to preclude the humiliation of the patient that may follow the disclosure of his ailments. Indeed, certain types of information communicated in the context of the physician-patient relationship fall within the constitutionally protected zone of privacy, 20 including a patient's interest in keeping his mental health records confidential. 21 Thus, it has been observed that the psychotherapist-patient privilege is founded upon the notion that certain forms of antisocial behavior may be prevented by encouraging those in need of treatment for emotional problems to secure the services of a psychotherapist. Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of Appeals 22 clearly lays down the requisites in order that the privilege may be successfully invoked: (a) the privilege is claimed in a civil case; (b) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; (d) the information was necessary to enable him to act in that capacity; and, (e) the information was confidential and, if disclosed, would blacken the reputation (formerly character) of the patient. In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report. Counsel for petitioner indulged heavily in objecting to the testimony of private respondent on the ground that it was privileged. In his Manifestation before the trial court dated 10 May 1991, he invoked the rule on privileged communications but never questioned the testimony as hearsay. It was a fatal mistake. For, in failing to object to the testimony on the ground that it was hearsay, counsel waived his right to make such objection and, consequently, the evidence offered may be admitted. The other issue raised by petitioner is too trivial to merit the full attention of this Court. The allegations contained in the Statement for the Records are but refutations of private respondent's declarations which may be denied or disproved during the trial.

The instant appeal has taken its toll on the petition for annulment. Three years have already lapsed and private respondent herein, as petitioner before the trial court, has yet to conclude his testimony thereat. We thus enjoin the trial judge and the parties' respective counsel to act with deliberate speed in resolving the main action, and avoid any and all stratagems that may further delay this case. If all lawyers are allowed to appeal every perceived indiscretion of a judge in the course of trial and include in their appeals depthless issues, there will be no end to litigations, and the docket of appellate courts will forever be clogged with inconsequential cases. Hence, counsel should exercise prudence in appealing lower court rulings and raise only legitimate issues so as not to retard the resolution of cases. Indeed, there is no point in unreasonably delaying the resolution of the petition and prolonging the agony of the wedded couple who after coming out from a storm still have the right to a renewed blissful life either alone or in the company of each other. 23 WHEREFORE, the instant petition for review is DENIED for lack of merit. The assailed Decision of respondent Court of Appeals promulgated on 30 October 1992 is AFFIRMED. SO ORDERED. Cruz, Davide, Jr., Quiason and Kapunan, JJ., concur. Republic of the Philippines SUPREME COURT Baguio City FIRST DIVISION G.R. No. 137660 March 28, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLOS L. ALCANTARA, accused-appellant. PARDO, J.: Defilement of a child causes trauma that not only destroys her future, it painfully mars a young of this country. We are faced with a crime committed by a stepfather against his wifes daughter by a prior marriage, violating the trust reposed in him and robbing an innocent child of her future. Rosalie Gonzales was a Grade 5 student of Pangpang, Sorsogon, Sorsogon. On February 13, 1996, she testified that her stepfather, Carlos L. Alcantara, had been sexually abusing her since 1988, when she was six (6) years old.1 The last incident occurred on November 19, 1991.
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She recounted that while the rest of the family slept at night, the accused would go to where she was sleeping, and then rape her. Rosalie tried to call for help but Carlos covered her mouth and threatened to kill her if she would tell anyone about the incident. She felt severe pain all over her body and would wake up the following morning with a swollen sexual organ.

The sexual abuse was repeated several times. Rosalie did not inform her mother because she was afraid of the threats. Sometime in 1994, Rosalies sister, Daisy, told Rosalie that accused intended to abuse her as well. Rosalie decided to inform her mother, Salvacion, about the sexual abuse. On October 13, 1994, Rosalie submitted herself to a medical examination by Dr. Salve Bermundo Sapinoso of the Castilla Rural Health Unit. Dr. Sapinoso found that Rosalies vaginal opening admitted two fingers freely and had old lacerations at 9:00 oclock to 1:00 oclock position,2 compatible with rape involving the insertion of a hardened penis into the private organ of the victim. On November 17, 1994, Maximino R. Ables, Assistant Provincial Prosecutor of Sorsogon, filed with the Regional Trial Court, Sorsogon an information for rape against Carlos L. Alcantara, as follows: "The undersigned Assistant Provincial Prosecutor accused CARLOS ALCANTARA of La Union, Castilla, Sorsogon, of RAPE, defined and penalized under Article 335 of the Revised Penal Code, committed as follows: "That sometime in the year 1988, while the victim was only 6 years old, and the following years thereafter up to 1991 at Barangay La Union, Municipality of Castilla, Province of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, did then and there, willfully, unlawfully and feloniously, by means of force and intimidation, have sexual intercourse with one Rosalie Gonzales, his step daughter against her will and consent."3 Upon arraignment on February 13, 1995, the accused pleaded not guilty.4 The facts are as follows: Salvacion Alcantara had five children with her deceased husband. Rosalie Gonzales was one of them. Sometime in 1986, Salvacion started living with accused Carlos L. Alcantara.5 Sometime in 1988, when Rosalie was just about six (6) years of age, Carlos started the series of abuse against Rosalie in a small nipa hut owned by Carlos father in law. Rosalie did not report the rape to her mother because Carlos threatened to kill her if she told anyone. Sometime in 1990, Salvacion and Carlos got married. In the evening of November 19, 1991, Carlos raped Rosalie for the last time at their house in La Union, Castilla, Sorsogon. Rosalie was beside her elder sister, Daisy, when Carlos went to where they were sleeping, held her hand, placed his other hand on her mouth and went on top of her, preventing her from waking up his sister. While undressing her, he covered her mouth with his hand, preventing her from calling for assistance. He then placed his finger in her sex organ and then subsequently inserted his penis into her private parte.6 Carlos threatened Rosalie with death if she told anybody what happened.7

Sometime in October 1994, Daisy (Rosalies elder sister) informed Rosalie that Carlos threatened to abuse her too. Rosalie informed her mother immediately.8 When Salvacion learned about the incident, she could not believe that her husband was capable of abusing her child so she approached Rosalies schoolteacher, Teresita Yumol. Yumol suggested that they go to the doctor so that Salvacion would believe that the abuse was real. On October 13, 1994, at about 1:45 p.m., Yumol brought Salvacion and Rosalie to Cumadcad to see a doctor.9 Dr. Salve Sapinoso examined Rosalie and found that her hymen in the genitalia had an old laceration. In examining the hymen as compared to the face of a watch, the old laceration was at 9:00 oclock to 1:00 oclock position. The vaginal opening admitted of two (2) fingers freely without feeling pain possibly due to the insertion of a hardened object to her private part.10 On the same day, October 13, 1994, Salvacion filed with the Municipal Trial Court, Castilla, Sorsogon a criminal complaint11 against her husband. During the trial, Daisy left their house and could not be served with subpoena. Thus, she was not presented as a witness. On July 27, 1998, the trial court rendered a decision the dispositive portion of which reads: "WHEREFORE, based on the foregoing premises, the guilt of the accused Carlos Alcantara having been proved by evidence beyond reasonable doubt, this court hereby sentenced (sic) the accused to suffer an imprisonment of Reclusion Perpetua, to indemnify the complainant the amount of P50,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs. "SO ORDERED. "Given in Chamber this 27th of July 1998, at Sorsogon, Sorsogon, Philippines. "HONESTO A. VILLAMOR "Judge."12 On August 27, 1998, the accused filed a notice of appeal.13 On July 12, 1999, we accepted the appeal.14 Accused Carlos maintains that the trial court erred in not acquitting him on the ground that his guilt has not been proved beyond reasonable doubt. Carlos argument hinged on three points. First, he was innocent because he "denies strongly the accusation"15 and that it was unlikely for him to commit such a serious charge against Rosalie whom he treated as his own dear child.16 He contended that the allegations of the prosecution are well-nigh fabrications. He pointed out that the prosecution failed to present Daisy Gonzales in court.

Second, Rosalie testified that accused Carlos ravished her when her siblings were around. Carlos argued that Rosalie must have been telling a lie since he could not have done the crime when they were not alone.17 Third, his wifes motive in filing the complaint against him was jealousy. Accused Carlos alleged that his wife always fought him due to ill feelings against him.18 We are not convinced. All the defenses of accused Carlos L. Alcantara are self-serving. We cannot discount the evidence presented by the prosecution just because of his denial, uncorroborated by any other evidence. His allegations cannot stand against the solid testimony of the victim. A child of tender years narrated a story worthy of belief since her account of the details of her abuse was well supported by the testimony of the doctor who examined her. She was not concocting a story about her own defloration. Only one who has been subjected to such ravishing could give a testimony like that of Rosalie. The testimony of Rosalies sister, Daisy Gonzales, was not necessary to convict the accused beyond a reasonable doubt. Time and again we have ruled that the testimony of the victim alone, if credible, will suffice to sustain a conviction.19 Further, the doctrine is well settled that testimonies of child-victims of rape are given full weight and credit,20 since when a child says she has been raped, she says in effect all that is necessary to show that rape was indeed committed.21 Lust is no respecter of time and precinct and is known to happen in most unlikely places such as in parks, along roadsides, within school premises or even in occupied or small rooms.22 There is no rule that rape can be done only in seclusion.23 It is a common judicial experience that rapists are not deterred from committing their odious act by the presence of people nearby.24 In one case, we said that rape was committed in the same room while the rapists spouse was asleep, or in the same room where other family members also slept.25 Thus, it is not unlikely that accused could rape his stepdaughter in the same room where the victims siblings were also sleeping. The claim that his wife charged him with rape of her own child because she had ill feelings against him is not worthy of belief. We find it unthinkable that a mother would sacrifice her own daughter, concoct a story about her defloration, allow an examination of her daughters sexual organs and subject her to public trial just because she was jealous of her husband or she felt bad about something her husband did. The Court has held that this act wasunnatural since no mother in her right mind would stoop so low.26 As to the award of indemnity, moral damages may be awarded to the victim of rape in addition to the civil Indemnity.27 Civil indemnity, which is mandatory upon the finding of rape, is distinct from and must not be denominated as moral damages which are based on different jural foundation.28 In People vs. Baygar,29 we held that the grant of moral damages is automatically made in rape cases without need of proof for it is assumed that the complainant has sustained mental, physical and psychological sufferings. WHEREFORE, we AFFIRM the decision of the Regional Trial Court, Sorsogon, Sorsogon, Branch 53 in Criminal Case Number 94-3820 finding accused-appellant Carlos L. Alcantara guilty beyond reasonable doubt of RAPEdefined and penalized under Article 335 of the Revised Penal Code, and

sentencing him to reclusion perpetuawith modification that the accused-appellant shall pay the additional amount of fifty thousand pesos (P50,000.00) as moral damages.
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Costs against accused-appellant. SO ORDERED. Davide, Jr., Puno, Kapunan, and Ynares-Santiago, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 100910 July 25, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LORETO SALANGGA and LAURETO LOPEZ, accused. LORETO SALANGGA, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellants.

REGALADO, J.: Accused-appellant Loreto Salangga, alias "Dodong," and Laureto Lopez, alias "Retoy," were haled to court as conspirators in the rape and killing of a fifteen-year old barrio lass named Imelda Talaboc, allegedly committed in Magsaysay, Davao del Norte on or about July 18, 1987. 1 Assisted by counsel de oficio, both accused pleaded not guilty during their arraignment. After trial, judgment was rendered by said trial court on February 21, 1991 finding appellant Salangga guilty of attempted rape with homicide, imposing upon him the penalty of reclusion perpetua but with full credit for his preventive imprisonment, and ordering him to pay P30,000.00 as indemnity to the heirs of the victim. Accused Laureto Lopez was acquitted for failure of the prosecution to prove his guilty beyond reasonable doubt. 2 It appears that in the late afternoon of July 18, 1987, in Sitio Ogsing, Barangay Tacul, Magsaysay, Davao del Sur, Imelda Talaboc was sent by her mother to fetch water from the spring, or "bugac," the only source of water in the vicinity. Imelda left with two one-gallon containers. At around 5:30 to 6:30 of the same afternoon, when the dusk of twilight was enveloping the area, one Ricky Monterde, a friend and brother in faith of the Talaboc family, who resided only two

hundred meters away from the latter's residence, likewise went to fetch water. On his way, he saw appellant Salangga walking about three meters ahead of Imelda. He noticed that appellant kept glancing back towards Imelda who was carrying water containers. Trailing the girl was accused Lopez who was walking behind her at a distance of about twenty fathoms. 3 On the same occasion, Lenie Alingay, a twelve-year old elementary student residing at Sitio Ogsing, was on her way home from her grandfather's house. She recounted that she met Imelda at the downhill crossing leading towards the barrio. Lenie explained that she was about four meters away from Imelda, while the latter was following appellant and walking about two meters behind him. As Imelda came abreast with Lenie, the former asked the latter if she was going to school on Monday. Then, as Lenie proceeded on her way home, she saw that Lopez who was sitting on a rice paddy suddenly stood up and followed Imelda. At about the same time, Lenie also saw Ricky Monterde fetching water from the spring. When Bernardo Talaboc, father of Imelda, came home from work, he was informed by his wife that Imelda, whom she sent to the "bugac" earlier, was missing. Talaboc set out to look for Imelda. On his way to the spring, he came upon two water containers left standing at a spot about four hundred meters away from their house. 4 His search for Imelda led Talaboc to the house of Ricky who told him that he had earlier seen Imelda on her way home with appellant walking ahead of her. Ricky then accompanied Talaboc and his son to the house of thebarangay captain, Severino Laput, to whom they reported Imelda's disappearance. Thereafter, together with the members of his household and some neighbors, they continued looking for Imelda. At around 8:00 o'clock that same night, they found the corpse of Imelda lying in the bushes about twenty meters away from where the water containers were earlier found. Imelda was found with her clothes on but her panty was missing. Her face was disfigured by physical blows, she had been stabbed by a knife, and her eyes were gouged out. The searching party brought home the body of the victim. Talaboc went to see Lenie Alingay and her family to inquire whether they witnessed any unusual happening that fatal afternoon, since the "bugac" is only about twenty meters away from their house. Lenie told him about her brief encounter with Imelda, as earlier narrated. Appellant and Lopez were arrested that same night at around 8:00 o'clock, after the corpse of Imelda had been found, upon the orders of Barangay Captain Laput based on the information given by Ricky and Lenie implicating the two of them. They both became the main suspects responsible for the grievous fate of Imelda, as they were the persons last seen with her before the tragedy. The soldiers of the 46th Infantry Brigade of the Philippine Army took them into custody. At the army detachment, said suspects were bodily searched. According to the prosecution, the soldiers recovered from appellant a piece of lady's underwear, later identified by Talaboc to be that of his daughter, Imelda. Afterwards, both suspects were ordered to undress. The prosecution claims that appellant's body bore what looked like bite marks and scratches, but none was found on the body of Lopez. The following morning, the suspects were brought to the office of Station Commander Manuel Macabutas in the municipal hall where both were investigated by P/Sgt. Mario Gataber of the Magsaysay Police Station. Appellant scrawled his quivery signature on an unsworn statement, 5 handwritten by some other person, wherein he admitted the crime charged, except that he was not able to consummate his bestial desire because Imelda fought very hard against him. 6

The defense had a different version to tell. It was claimed that on July 18, 1987, at about 9:00 P.M. while appellant was repairing a wall in his kitchen, some members of the 46th Infantry Brigade and Lopez came to his house. He was informed that Barangay Captain Laput was requesting for their presence at his house. Both accused complied with the request and went to the residence of Laput. The latter asked them if they were responsible for the death of Imelda and they vehemently denied any participation in the crime. The accused were then brought to the 46th Infantry Brigade Headquarters where they were allegedly subjected to severe physical beatings by the soldiers. Unable to bear the maltreatment any further, they were compelled to admit the earlier accusations against them. The next day, a strong and painful kick in the stomach was inflicted on appellant by one of his custodians for refusing to carry a lady's underwear and a pair of blue slippers in his pocket, which items were later identified by Talaboc as belonging to his daughter. Consequently, he carried the same with him when they were brought to the Magsaysay Municipal Hall where they were investigated by Sgt. Gataber. Afterwards, appellant was asked to sign a document, explained to him as having something to do with his food, to which importing the unlettered appellant acceded. Unfortunately, the document turned out to be his supposed statement admitting his guilt for attempting to rape Imelda and subsequently killing her. 7 Appellant Loreto Salangga has now come before us, through counsel de oficio, contending that the trial court erred in convicting him of the crime charged on the basis of insufficient circumstantial evidence. Section 5, Rule 113 of the Rules of Court provides that a peace officer or a private person may, without a warrant, arrest a person when (a) in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) an offense has in fact just been committed and he has personal knowledge of the facts indicating that the person to be arrested has committed it; and (c) the person to be arrested is a prisoner who has escaped. In cases falling under paragraphs (a) and (b) thereof, the person to be arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Section 7, Rule 112. From these provisions, it is not hard to conclude that appellant was arrested in violation of his fundamental right against unjustified warrantless arrest. On the night he was arrested, he was in his house peacefully attending to some domestic chores therein. It cannot be suggested that he was in any way committing a crime or attempting to commit one. Also, the soldiers had no personal knowledge of the crime he was being charged with, nor was he a fugitive from the law. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law. 8 Bernardo Talaboc testified that both accused were frisked and asked to undress before him, some soldiers of the 46th Infantry Brigade, and Barangay Captain Laput inside the Army detachment. If he is to be believed, that body search incredibly yielded a lady's panty from the pocket of appellant and which underwear he identified as that of his daughter. It would surely have been the height of stupidity for appellant to be keeping on his person an incriminating piece of evidence which common sense dictates should have been destroyed or disposed of. For that matter, according to Barangay Captain Laput before whom appellant was brought shortly after his apprehension and who was also present therein, nothing was taken from said appellant. 9

In any event, the underwear allegedly taken from the accused is inadmissible in evidence, being a so-called "fruit of a poisonous tree." Likewise, there is definitely an improbability in the claim of Talaboc that he was able to recognize the underwear of his daughter. It is an a typical and abnormal situation under Filipino customs for a father to be familiar with the underwear of his daughter. This is highly improbable, and it is plain common sense that improbabilities must be carefully scrutinized and not readily accepted. Again, during the initial investigation of Barangay Captain Laput on July 23, 1987 before Sgt. Gataber, nothing was ever mentioned regarding the supposed scratches and bite marks allegedly found on the chest of appellant. The truth is that these matters were mentioned in the trial court only after about two and a half years from the arrest of appellant. It is indeed strange that such vital evidence conspicuously found on the body of appellant, if true, could be omitted in the sworn statement of Laput 10 which was taken four days after the alleged discovery. He and the investigator could not have been unaware that the supposed scratches and bite marks were obviously relevant in this kind of crime, more particularly to prove the reported struggle of the victim against her unknown killer. The aforesaid testimony of Laput thus suffers from serious flaws attendant to its taking which accordingly taint its credibility. The long delay in his disclosure bolsters the suspicion that such testimony is biased, if not fabricated. Laput's claim that he revealed the aforesaid facts to Sgt. Gataber 11 is belief by his own sworn statement. It is true, and we was have so held, that sworn statements executed before police officers are usually incomplete and contain data which are inconsistent with the facts narrated by the witnesses to said officers. For this reason, courts have generally brushed aside, as inconsequential, contradictions in the sworn statement of a witness and his testimony as long as these dwell only on minor and reconcilable matters. 12 However, the aforesaid allegations on the supposed scratches and bite marks on the body of appellant can by no means be considered as minor or trivial matters. The prosecution, in fact, relies heavily thereon to support its theory of the case. Since every circumstance must be taken into consideration in passing upon the guilt or innocence of the accused, it becomes crucial for his eventual acquittal when such discrepancies touch on substantial and irreconcilable facts, as when the omission in the sworn statement concerns an important detail which the affiant would not have failed to mention, and which omission could accordingly affect his credibility. 13 We are not persuaded by the theory that the accused waived their right against the said unreasonable search and seizure, simply because they did not object thereto. To constitute waiver, it must appear, firstly, that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such right; and, lastly, that said person had an actual intention to relinquish the right. 14 Courts understandably indulge every reasonable presumption against waiver of fundamental safeguards and do not deduce acquiescence in the loss of elementary rights. 15 Coming now to Sgt. Gataber's testimony, we find that the same seriously undermines the case for the People. On the witness stand, he recited the rights of an accused but apparently none of these were granted to or applied in his investigation of appellant. This is partly explained by the fact that he had a wrong, if not a weird, perception or understanding regarding a "person under custodial interrogation," his duty to apprise such person of his rights, and the right of that person to counsel, as demonstrated below. Q How would you say that a person is under custodial interrogation? A When the accused is assisted by a counsel of his own choice.

xxx xxx xxx Q In other words, if the accused is not assisted by counsel in the investigation he is not under custodial interrogation, is that what you mean? A Yes. Q In other words, (in) this particular case, you considered this investigation on accused Salangga as not under custodial interrogation because he was not assisted by counsel? A Yes, because that is not the proper custodial interrogation. Q In other words, on that day that you conducted the investigation, you did not apprise him of his rights to have counsel? A I apprised him but there was no available lawyer in our place but I considered his statement is true. Q Will you please go over this statement if you can find a portion wherein you apprised the declarant of his right to counsel? A I did not apprise because of some circumstantial facts. Q What are these circumstantial facts A I did not bother to write the rights of the accused. Q Did you not find it important . . . because this case it quite serious? A I made that question and interrogation in my office but I was doubtful whether that would be acceptable in Court because that question and answer was not subscribed and sworn to before the municipal judge. xxx xxx xxx Q In other words, you did not tell him that the government can provide him counsel if he cannot afford one? A Yes. Q You did not tell him that? A I told him that if you cannot afford to have a counsel, the government will give you one. Q Did you place that in your question and interview?

A No. Q Why did you not place that in your question and interview? A Because my question and interview which I made before him is not acceptable. xxx xxx xxx Q Because you thought that Salangga was under custodial interrogation of the Police Station of Magsaysay at the time . . . why did you not require him to have counsel of his own choice as you have attended a lot of seminars? A That is the reason why because there is no available lawyer in our place. Q And you are aware about Atty. Mat(i)as Acquiatan? A Yes, but sometimes he is out of Magsaysay. Q And despite that fact, you did not find ways and means to contact the CLAO or Atty. Acquiatan in order to assist Salangga in the interview? A There were several lawyers which I approached to assist the suspect but they refused and at that time I also approached Atty. Acquiatan and he advised me to see the lawyer of CLAO. Q But in this particular case, you never tr(ied) to approach Atty. Acquiatan to assist accused Salangga? A No. Q Neither did you approach the lawyer of CLAO in that particular interview?
A No." 16

It is consequently evident that since appellant was not assisted by any counsel during his custodial investigation, his supposed incriminatory statement is inadmissible and cannot be considered in the adjudication of this case. Oddly enough, even Sgt. Gataber was skeptical as to the validity of the statement he took from appellant. 17 The rule, of course, is that no in-custody investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person in his behalf or appointed by the court upon petition either of the detainee himself or by someone in his behalf. 18 While the right to counsel may be waived, such waiver must be effected voluntarily, knowingly and intelligently. Further, waiver must be with the assistance of counsel. 19 The absence of counsel at that stage makes the statement, in contemplation of law, involuntary, even if it was otherwise voluntary in a non-technical sense.

With the Court now unanimously upholding the exclusionary rule in toto, the constitutional mandate is given full force and effect. This constitutional edict has been proved by historical experience to be the practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive part of the military and police officers to disregard such basic rights. This is of special public importance and serves as a shield in the remote provinces and rural areas to the people who have no access to courts for prompt and immediate relief from violations of their rights. 20 Section 5 of Rule 133 provides that when no direct evidence is available, circumstantial evidence will suffice when the following requirements are present: (a) there are more than one circumstance, (b) the facts from which the inferences are derived are proven, and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Furthermore, before conviction can be had upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion of all others, as the author of the crime. 21 A meticulous and closer inquiry into the records reveals that there is really but one sole circumstance upon which the court relied in its decision, that is, that Imelda was seen trailing behind appellant by a few meters on the path towards her house. The prosecution presented two witnesses on this very same fact but the testimony thereon of two witnesses cannot convert one circumstance into two. All other "circumstances" under the prosecution's theory, such as the underwear allegedly found in appellant's pocket, the supposed scratches and bite marks on his body, and his dubious confession to Sgt. Gataber are all products of an illegal process, aside from their questionable veracity. Assuming arguendo that appellant was seen walking in front of Imelda about two hours before the discovery of the death of the latter, such fact could not lead a prudent man to conclude that appellant was the one responsible for the misfortune that befell the victim. Also, Sgt. Gataber believed that Lenie Alingay and Ricky Monterde could shed light on the case and so he claimed to have taken their statements, but, surprisingly, no sworn statements were executed by them. Later, he retracted what he said, announcing instead that he actually referred the taking of the statements to Sgt. Saraum, but he could not remember if the statements, if thereafter taken, were attached to the records. 22 We reject the People's hypothesis on the alleged "confession" of appellant to a certain Pastor Juan Tapic. The records reveal that there was a statement of appellant merely saying that he and Lopez were suspects in the rape and death of Imelda but never did he say that they were the ones responsible for such crime. Also, if the prosecution really believed that the appellant truly admitted to Pastor Tapic his participation in the crime, it is puzzling that said pastor was not called by the prosecution to take the witness stand. A party's failure to produce evidence, which if favorable would naturally have been produced, is open to the inference that the facts were unfavorable to his case. 23 Verily, that failure to present Pastor Tapic can only mean that the prosecution itself doubted what appellant precisely meant when he said that there are two of them, that is, himself and Lopez. We also note that while the prosecution presented a medical certificate 24 to prove the alleged rape, it failed to present the physician to affirm it. In the absence of the doctor's testimony, the contents thereof are hearsay. 25 At any rate, even if the physician had been presented there was in fact no need for him to make that affirmation since the conviction of appellant is based merely on his supposed inculpatory statement which has no probative value for having been taken in violation of explicit constitutional mandates and proscriptions.

Well-entrenched is the rule that the findings of facts of trial courts carry great weight for these courts enjoy the advantage of having observed the demeanor of the witnesses on the witness stand and, therefore, can discern if these witnesses are telling the truth or not. However, likewise well-settled are the exceptions thereto, which are when (1) the conclusion is a finding based entirely on speculations, (2) the inference made is manifestly mistaken, absurd or impossible, (3) there is a grave abuse of discretion, and (4) the finding is based on a misapprehension of the facts. 26 The evidentiary bases for the conclusions of the lower court having been demonstrated to be either incompetent in law or incredible in fact, the exceptive circumstances have to be given full sway. The prosecution's evidence regrettably leaves much to be desired, unfortunately as a consequence of faulty investigative work in the first place. This Court must, however, be guided by a rule of long standing and consistency that if the inculpatory facts and circumstances are capable of one or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. 27 In our criminal justice system, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt. This determinant, with the constitutional presumption of innocence which can be overthrown only by the strength of the prosecution's own evidence proving guilt beyond reasonable doubt, irresistibly dictate an exoneration in this case. It is indeed a bitter truth for the victim's family to face, that human justice seems to have failed then due to the foregoing confluent factors. We deeply commiserate with them and sincerely hope that, somehow and in God's own time, divine retribution shall be visited upon the evil author of this human tragedy. WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accusedappellant Loreto Salangga is hereby ACQUITTED and ordered to be immediately released unless there are other grounds for his continued detention, with costs de oficio. SO ORDERED. Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 103737 December 15, 1994 NORA S. EUGENIO and ALFREDO Y. EUGENIO, petitioners, vs. HON. COURT OF APPEALS and PEPSI-COLA BOTTLING COMPANY OF THE PHILIPPINES, INC., respondents. Public Attorney's Office for petitioners. Romualdo M. Jubay for private respondent.

REGALADO, J.: Private respondent Pepsi-Cola Bottling Company of the Philippines, Inc. is engaged in the business of manufacturing, making bottling and selling soft drinks and beverages to the general public. Petitioner Nora S. Eugenio was a dealer of the soft drink products of private respondent corporation. Although she had only one store located at 27 Diamond Street, Emerald Village, Marikina, Metro Manila, Eugenio had a regular charge account in both the Quezon City plant (under the name "Abigail Minimart" *) as well as in the Muntinlupa plant (under the name "Nora Store") of respondent corporation. Her husband and co-petitioner, Alfredo Y. Eugenio, used to be a route manager of private respondent in its Quezon City plant. On March 17, 1982, private respondent filed a complaint for a sum of money against petitioners Nora S. Eugenio and Alfredo Y. Eugenio, docketed as Civil Case No. Q-34718 of the then Court of First Instance of Quezon City, Branch 9 (now Regional Trial Court, Quezon City, Branch 97). In its complaint, respondent corporation alleged that on several occasions in 1979 and 1980, petitioners purchased and received on credit various products from its Quezon City plant. As of December 31, 1980, petitioners allegedly had an outstanding balance of P20,437.40 therein. Likewise, on various occasions in 1980, petitioners also purchased and received on credit various products from respondent's Muntinlupa plant and, as of December 31, 1989, petitioners supposedly had an outstanding balance of P38,357.20 there. In addition, it was claimed that petitioners had an unpaid obligation for the loaned "empties" from the same plant in the amount of P35,856.40 as of July 11, 1980. Altogether, petitioners had an outstanding account of P94,651.00 which, so the complaint alleged, they failed to pay despite oral and written demands. 1 In their defense, petitioners presented four trade provisional receipts (TPRs) allegedly issued to and received by them from private respondent's Route Manager Jovencio Estrada of its Malate Warehouse (Division 57), showing payments in the total sum of P80,500.00 made by Abigail's Store. Petitioners contended that had the amounts in the TPRs been credited in their favor, they would not be indebted to Pepsi-Cola. The details of said receipts are as follows: TPR No. Date of Issue Amount
500320 600 Fulls returned 5/6/80 P23,520.00 500326 600 Fulls returned 5/10/80 23,520.00 500344 600 Fulls returned 5/14/80 23,520.00 500346 Cash 5/15/80 10,000.00 2

Total P80,560.00 Further, petitioners maintain that the signature purporting to be that of petitioner Nora S. Eugenio in Sales Invoice No. 85366 dated May 15, 1980 in the amount of P5,631.00, 3 which was included in the computation of their alleged debt, is a falsification. In sum, petitioners argue that if the aforementioned amounts were credited in their favor, it would be respondent corporation which would be indebted to them in the sum of P3,546.02 representing overpayment. After trial on the merits, the court a quo rendered a decision on February 17, 1986, ordering petitioners, as defendants therein to jointly and severally pay private respondent the amount of P74,849.00, plus 12% interestper annum until the principal amount shall have been fully paid, as well as P20,000.00 as attorney's fees. 4 On appeal in CA-G.R. CV No. 10623, the Court of Appeals

declared said decision a nullity for failure to comply with the requirement in Section 14, Article VIII of the 1987 Constitution that decisions of courts should clearly and distinctly state the facts and the law on which they are based. The Court of Appeals accordingly remanded the records of the case to the trial court, directing it to render another decision in accordance with the requirements of the Constitution. 5 In compliance with the directive of the Court of Appeals, the lower court rendered a second decision on September 29, 1989. In this new decision, petitioners were this time ordered to pay, jointly and severally, the reduced amount of P64,188.60, plus legal interest of 6% per annum from the filing of the action until full payment of the amount adjudged. 6 On appeal therefrom, the Court of Appeals affirmed the judgment of the trial court in a decision promulgated on September 27, 1991. 7 A motion for the reconsideration of said judgment of respondent court was subsequently denied in a resolution dated January 23, 1992. 8 We agree with petitioners and respondent court that the crux of the dispute in the case at bar is whether or not the amounts in the aforementioned trade provisional receipts should be credited in favor of herein petitioner spouses. In a so-called encyclopedic sense, however, our course of action in this case and the denouement of the controversy therein takes into account the jurisprudential rule that in the present recourse we would normally have restricted ourselves to questions of law and eschewed questions of fact were it not for our perception that the lower courts manifestly overlooked certain relevant factual considerations resulting in a misapprehension thereof. Consequentially, that position shall necessarily affect our analysis of the rules on the burden of proof and the burden of evidence, and ultimately, whether the proponent of the corresponding claim has preponderated or rested on an equipoise or fallen short of preponderance. First, the backdrop. It appears that on August 1, 1981, private respondent through the head of its Legal Department, Atty. Antonio N. Rosario, sent an inter-office correspondence to petitioner Alfredo Eugenio inviting him for an interview/interrogation on August 3, 1981 regarding alleged "nonpayment of debts to the company, inefficiency, and loss of trust and confidence." 9 The interview was reset to August 4, 1981 to enable said petitioner to bring along with him their union president, Luis Isip. On said date, a statement of overdue accounts were prepared showing that petitioners owed respondent corporation the following amounts:
Muntinlupa Plant Nora's Store Trade Account P38,357.20 (as of 12/3/80) 10 Loaned Empties P35,856.40 (as of 7/11/81) 11 Quezon City Plant Abigail Minimart Regular Account P20,437.40 (as of 1980) 12 Total P94,651.00

A reconciliation of petitioners' account was then conducted. The liability of petitioners as to the loaned empties (Muntinlupa plant, Nora Store) was reduced to P21,686.00 after a reevaluation of the value of the loaned empties.13 Likewise, the amount of P5,631.00 under Invoice No. 85366, which was a spurious document, was deducted from their liability in their trade account with the Muntinlupa plant. 14 Thereafter, Eugenio and Isip signed the reconciliation sheets reflecting these items:

Muntinlupa Plant Nora Store Trade Account P32,726.20 15 Loaned Empties P21,686.00 16 Quezon City Plant Abigail Minimart Trade Account P20,437.20 17 Total P74,849.40

After the meeting, private respondent alleged that petitioner Alfredo Y. Eugenio requested that he be allowed to retire and the existing accounts be deducted from his retirement pay, but that he later withdrew his retirement plan. Said petitioner disputed that allegation and, in fact, he subsequently filed a complaint for illegal dismissal. The finding of labor arbiter, later affirmed by the Supreme Court, showed that this petitioner was indeed illegally dismissed, and that he never filed an application for retirement. In fact, this Court made a finding that the retirement papers allegedly filed in the name of this petitioner were forged. 18 This makes two falsified documents to be foisted against petitioners. With their aforesaid accounts still unpaid, petitioner Alfredo Y. Eugenio submitted to Atty. Rosario the aforementioned four TPRs. Thereafter, Atty. Rosario ordered Daniel Azurin, assistant personnel manager, to conduct an investigation to verify this claim of petitioners. According to Azurin, during the investigation on December 4, 1981, Estrada allegedly denied that he issued and signed the aforesaid TPRs. 19 He also presented a supposed affidavit which Estrada allegedly executed during that investigation to affirm his verbal statements therein. Surprisingly, however, said supposed affidavit is inexplicably dated February 5, 1982. 20 At this point, it should be noted that Estrada never testified thereafter in court and what he is supposed to have done or said was merely related by Azurin. Now, on this point, respondent court disagreed with herein petitioners that the testimony on the alleged denial of Jovencio Estrada regarding his signatures on the disputed TPRs, as well as his affidavit dated February 5, 198221 wherein he affirmed his denial, are hearsay evidence because Estrada was not presented as a witness to testify and be cross-examined thereon. Except for the terse statement of respondent court that since petitioner Alfredo Eugenio was supposedly present on December 4, 1981, "(t)he testimony of Jovencio Estrada at the aforementioned investigation categorically denying that he issued and signed the disputed TPRs is, therefore, not hearsay," 22 there was no further explanation on this unusual doctrinal departure. The rule is clear and explicit. Under the hearsay evidence rule, a witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception, except as otherwise provided in the Rules. 23 In the present case, Estrada failed to appear as a witness at the trial. It was only Azurin who testified that during the investigation he conducted, Estrada supposedly denied having signed the TPRs. It is elementary that under the measure on hearsay evidence, Azurin's testimony cannot constitute legal proof as to the truth of Estrada's denial. For that matter, it is not admissible in evidence, petitioners' counsel having seasonably objected at the trial to such testimony of Azurin as hearsay. And, even if not objected to and thereby admissible, such hearsay evidence has no probative value whatsoever. 24 It is true that the testimony or deposition of a witness deceased or unable to testify, given in a former case or proceeding, judicial or administrative, involving the same parties and subject matter, may be given in evidence against the adverse party who had the opportunity to cross-examine him. 25 Private respondent cannot, however, seek sanctuary in this exception to the hearsay evidence rule.

Firstly, the supposed investigation conducted by Azurin was neither a judicial trial nor an administrative hearing under statutory regulations and safeguards. It was merely an inter-office interview conducted by a personnel officer through an ad hoc arrangement. Secondly, a perusal of the alleged stenographic notes, assumingarguendo that these notes are admissible in evidence, would show that the "investigation" was more of a free-flowing question and answer type of discussion wherein Estrada was asked some questions, after which Eugenio was likewise asked other questions. Indeed, there was no opportunity for Eugenio to object, much less to cross-examine Estrada. Even in a formal prior trial itself, if the opportunity for cross-examination did not exist therein or if the accused was not afforded opportunity to fully crossexamine the witness when the testimony was offered, evidence relating to the testimony given therein is thereafter inadmissible in another proceeding, absent any conduct on the part of the accused amounting to a waiver of his right to cross-examine. 26 Thirdly, the stenographer was not even presented to authenticate the stenographic notes submitted to the trial court. A copy of the stenographic report of the entire testimony at the former trial must be supported by the oath of the stenographer that it is a correct transcript of his notes of the testimony of the witness as a sine qua non for its competency and admissibility in evidence. 27 The supposed stenographic notes on which respondent corporation relies is unauthenticated and necessarily inadmissible for the purpose intended. Lastly, although herein private respondent insinuated that Estrada was not presented as a witness because he had disappeared, no evidence whatsoever was offered to show or even intimate that this was due to any machination or instigation of petitioners. There is no showing that his absence was procured, or that he was eloigned, through acts imputable to petitioners. In the case at bar, except for the self-serving statement that Estrada had disappeared, no plausible explanation was given by respondent corporation. Estrada was an employee of private respondent, hence it can be assumed that it could easily trace or ascertain his whereabouts. It had the resources to do so, in contradistinction to petitioners who even had to seek the help of the Public Attorney's Office to defend them here. Private respondent could not have been unaware of the importance of Estrada's testimony and the consequent legal necessity for presenting him in the trial court, through coercive process if necessary. Obviously, neither is the affidavit of Estrada admissible; it is likewise barred as evidence by the hearsay evidence rule. 28 This is aside from the fact that, by their nature, affidavits are generally not prepared by the affiants themselves but by another who uses his own language in writing the affiant's statements, which may thus be either omitted or misunderstood by the one writing them. 29 The dubiety of that affidavit, as earlier explained, is further underscored by the fact that it was executed more than two months after the investigation, presumably for curative purposes as it were. Now, the authenticity of a handwriting may be proven, among other means, by its comparison made by the witness or the court with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge. 30 The alleged affidavit of Estrada states". . . that the comparison that was made as to the authenticity of the signature appearing in the TPRs and that of my signature showed that there was an apparent dissimilarity between the two signatures, xerox copy of my 201 File is attached hereto as Annex 'F' of this affidavit. 31 However, a search of the Folder of Exhibits in this case does not reveal that private respondent ever submitted any document, not even the aforementioned 201 File, containing a specimen of the signature of Estrada which the Court can use as a basis for comparison. Neither was any document containing a specimen of Estrada's signature presented by private respondent in the formal offer of its exhibits. 32

Respondent court made the further observation that "Estrada was even asked by Atty. Azurin at said investigation to sign three times to provide specimens of his genuine signature." 33 There is, however, no showing that he did, but assuming that Estrada signed the stenographic notes, the Court would still be unable to make the necessary comparison because two signatures appear on the right margin of each and every page of the stenographic notes, without any indication whatsoever as to which of the signatures is Estrada's. The whole document was marked for identification but the signatures were not. In fact, although formally offered, it was merely introduced by the private respondent "in order to show that Jovencio Estrada had been investigated and categorically denied having collected from Abigail Minimart and denying having signed the receipts claimed by Alfredo Eugenio to be his payment," 34 and not for the purpose of presenting any alleged signature of Estrada on the document as a basis for comparison. This is a situation that irresistibly arouses judicial curiosity, if not suspicion. Respondent corporation was fully aware that its case rested, as it were, on the issue of whether the TPRs were authentic and which issue, in turn, turned on the genuineness of Estrada's signatures thereon. Yet, aside from cursorily dismissing the non-presentation of Estrada in court by the glib assertion that he could not be found, and necessarily aware that his alleged denial of his signatures on said TPRs and his affidavit rendered the same vulnerable to the challenge that they are hearsay and inadmissible, respondent corporation did nothing more. In fact, Estrada's disappearance has not been explained up to the present. The next inquiry then would be as to what exactly is the nature of the TPRs insofar as they are used in the day-to-day business transactions of the company. These trade provisional receipts are bound and given in booklets to the company sales representatives, under proper acknowledgment by them and with a record of the distribution thereof. After every transaction, when a collection is made the customer is given by the sales representative a copy of the trade provisional receipt, that is, the triplicate copy or customer's copy, properly filled up to reflect the completed transaction. All unused TPRs, as well as the collections made, are turned over by the sales representative to the appropriate company officer. 35 According to respondent court, "the questioned TPR's are merely 'provisional' and were, as printed at the bottom of said receipts, to be officially confirmed by plaintiff within fifteen (15) days by delivering the original copy thereof stamped paid and signed by its cashier to the customer. . . . Defendants-appellants (herein petitioners) failed to present the original copies of the TPRs in question, showing that they were never confirmed by the plaintiff, nor did they demand from plaintiff the confirmed original copies thereof." 36 We do not agree with the strained implication intended to be adverse to petitioners. The TPRs presented in evidence by petitioners are disputably presumed as evidentiary of payments made on account of petitioners. There are presumptions juris tantum in law that private transactions have been fair and regular and that the ordinary course of business has been followed. 37 The role of presumptions in the law on evidence is to relieve the party enjoying the same of the evidential burden to prove the proposition that he contends for, and to shift the burden of evidence to the adverse party. Private respondent having failed to rebut the aforestated presumptions in favor of valid payment by petitioners, these would necessarily continue to stand in their favor in this case. Besides, even assuming arguendo that herein private respondent's cashier never received the amounts reflected in the TPRs, still private respondent failed to prove that Estrada, who is its duly authorized agent with respect to petitioners, did not receive those amounts from the latter. As correctly explained by petitioners, "in so far as the private respondent's customers are concerned, for as long as they pay their obligations to the sales representative of the private respondent using the latter's official receipt, said payment extinguishes their obligations." 38 Otherwise, it would

unreasonably cast the burden of supervision over its employees from respondent corporation to its customers. The substantive law is that payment shall be made to the person in whose favor the obligation has been constituted, or his successor-in-interest or any person authorized to receive it. 39 As far as third persons are concerned, an act is deemed to have been performed within the scope of the agent's authority, if such is within the terms of the power of attorney, as written, even if the agent has in fact exceeded the limits of his authority according to an understanding between the principal and his agent. 40 In fact, Atty. Rosario, private respondent's own witness, admitted that "it is the responsibility of the collector to turn over the collection." 41 Still pursuing its ruling in favor of respondent corporation, the Court of Appeals makes the following observation:
. . . Having allegedly returned 600 Fulls to the plaintiff's representative on May 6, 10, and 14, 1980, appellant-wife's Abigail Store must have received more than 1,800 cases of soft drinks from plaintiff before those dates. Yet the Statement of Overdue Account pertaining to Abigail Minimart (Exhs. "D", "D-1" to "D-3") which appellant-husband and his representative Luis Isip signed on August 3, 1981 does now show more than 1,800 cases of soft drinks were delivered to Abigail Minimart by plaintiff's Quezon City Plant (which supposedly issued the disputed TPRs) in May, 1980 or the month before." 42

We regret the inaccuracy in said theory of respondent court which was impelled by its sole and limited reliance on a mere statement of overdue amounts. Unlike a statement of account which truly reflects the day-to-day movement of an account, a statement of an overdue amount is only a summary of the account, simply reflecting the balance due thereon. A statement of account, being more specific and detailed in nature, allows one to readily see and verify if indeed deliveries were made during a specific period of time, unlike a bare statement of overdue payments. Respondent court cannot make its aforequoted categorical deduction unless supporting documents accompanying the statement of overdue amounts were submitted to enable easy and accurate verification of the facts. A perusal of the statement of overdue accounts shows that, except for a reference number given for each entry, no further details were volunteered nor offered. It is entirely possible that the statement of overdue account merely reflects the outstanding debt of a particular client, and not the specific particulars, such as deliveries made, particularly since the entries therein were surprisingly entered irrespective of their chronological order. Obviously, therefore, one can not use the statement of overdue amounts as conclusive proof of deliveries done within a particular time frame. Except for its speculation that petitioner Alfredo Y. Eugenio could have had easy access to blank forms of the TPRs because he was a former route manager no evidence whatsoever was presented by private respondent in support of that theory. We are accordingly intrigued by such an unkind assertion of respondent corporation since Azurin himself admitted that their accounting department could not even inform them regarding the persons to whom the TPRs were issued. 43 In addition, it is significant that respondent corporation did not take proper action if indeed some receipts were actually lost, such as the publication of the fact of loss of the receipts, with the corresponding investigation into the matter. We, therefore, reject as attenuated the comment of the trial court that the TPRs, which Eugenio submitted after the reconciliation meeting, "smacks too much of an afterthought." 44 The reconciliation meeting was held on August 4, 1981. Three months later, on November, 1981, petitioner Alfredo Y. Eugenio submitted the four TPRs. He explained, and this was not disputed, that

at the time the reconciliation meeting was held, his daughter Nanette, who was helping his wife manage the store, had eloped and she had possession of the TPRs. 45 It was only in November, 1981 when petitioners were able to talk to Nanette that they were able to find and retrieve said TPRs. He added that during the reconciliation meeting, Atty. Rosario assured him that any receipt he may submit later will be credited in his favor, hence he signed the reconciliation documents. Accordingly, when he presented the TPRs to private respondent, Atty. Rosario directed Mr. Azurin to verify the TPRs. Thus, the amount stated in the reconciliation sheet was not final, as it was still subject to such receipts as may thereafter be presented by petitioners. On the other hand, petitioners claimed that the signature of petitioner Nora S. Eugenio in Sales Invoice No. 85366, in the amount of P5,631.00 is spurious and should accordingly be deducted from the disputed amount of P74,849.40. A scrutiny of the reconciliation sheet shows that said amount had already been deducted upon the instruction of one Mr. Coloma, Plant Controller of Pepsi-Cola , Muntinlupa Plant. 46 That amount is not disputed by respondent corporation and should no longer be deducted from the total liability of petitioner in the sum of P74,849.40. Since petitioners had made a payment of P80,560.00, there was consequently an overpayment of P5,710.60. All told, we are constrained to hold that respondent corporation has dismally failed to comply with the pertinent rules for the admission of the evidence by which it sought to prove its contentions. Furthermore, there are questions left unanswered and begging for cogent explanations why said respondent did not or could not comply with the evidentiary rules. Its default inevitably depletes the weight of its evidence which cannot just be taken in vacuo, with the result that for lack of the requisite quantum of evidence, it has not discharged the burden of preponderant proof necessary to prevail in this case. WHEREFORE, the judgment of respondent Court of Appeals in C.A. G.R. CV No. 26901, affirming that of the trial court in Civil Case No. Q-34718, is ANNULLED and SET ASIDE. Private respondent Pepsi-Cola Bottling Company of the Philippines, Inc. is hereby ORDERED to pay petitioners Nora and Alfredo Eugenio the amount of P5,710.60 representing overpayment made to the former. SO ORDERED. Narvasa, C.J. and Puno, J., concur. Mendoza, J., took no part. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-26193 January 27, 1981 PEOPLE OF THE PHILIPPINES, plaintiff, vs. RODULFO SABIO, alias "PAPU", defendant.

MELENCIO-HERRERA, J:

Automatic review of the death penalty imposed upon the accused Rodulfo Sabio alias "Papu", by the Court of First Instance of Cebu, Branch II, in Criminal Case No. V-10804 for Robbery with Homicide. On October 5, 1965, at about 5:00 o'clock in the morning, in Barrio Looc, Argao, Cebu, Catalino Espina, 80-years old, single, owner of a small sari-sari store located in his house was found on the second floor of his dwelling wounded on the forehead, from which injury he died three days later. Prosecution witness JESUSA BIRONDO a fish vendor, testified that at about 5:00 o'clock in the morning of October 5, 1965, as she was preparing to go to the seashore, she heard a shout for help coming from the house of her neighbor, Catalino Espina, which was located just across the street from her house. She recognized the voice as Catalino's. When she looked out of the window she saw the accused Rodulfo Sabio, who is nicknamed "Papu", coming out of the door of the store at the victim's house. The accused was wearing a black shirt with sleeves up to the elbow and dark trousers. She had known the accused since his birth because his house is located at the seashore in Barrio Looc, just about 40 meters from her own house, and she is familiar with his appearance because she used to see him everyday passing by her house or at the seashore. Jesusa felt scared so she retreated from the window. Then she shouted for help. Shortly thereafter, she saw from her window that many persons, about 50 to 100 neighbors, went to Catalino's house. The following day after the incident, or on October 6, 1965, Jesusa told Police Sergeant Jesus Alberca about what she heard and saw. She executed a sworn statement on the same date. 1 CAMILO SEMILLA, a 27-year-old fisherman and grand- nephew of the victim, who had lived with the latter since childhood, left Catalino's house at past 4:00 o'clock in the early morning of October 5, 1965 to go fishing. At the seashore, he waited for somebody to help him drag his boat to the sea from the elevated support on which it was hoisted. The first person he saw was the accused, Rodulfo Sabio, who came running past him about 6 meters away, towards his (Sabio's) house. The accused was wearing a black T-shirt with sleeves reaching beyond the elbow and long "maong" pants. Witness Camilo demonstrated that the accused had his two hands tucked inside his shirt in front of the stomach while running. Minutes later, a certain Enok Calledo arrived and told Camilo to go home because his granduncle "Noy Ino" had cried for help. When Camilo reached home, he saw "Ino" (the victim) lying wounded upstairs. He was moaning and was able to speak only when bis head was raised. When Camilo called the victim's name, the latter responded and told Camilo to fetch a policeman. Calo noticed that the merchandise in the store were in disarray and the tin can called "barrio, which he knew had contained the cash sales for Sunday and Monday of about P8.00 because they counted the money the previous night, was lying empty on the floor. When police officers Paulino Fuentes and Pedro Burgos arrived, Patrolman Fuentes asked "Manoy Ino" questions which, together with the answers, he wrote on a page torn from a calendar hanging somewhere in the room. 2 Patrolman Fuentes then instructed Camilo to take the victim to the town dispensary at Argao, Cebu, where he was treated. But because the victim's condition was considered serious he was immediately transferred to the Southern Islands Hospital where he died three days later. 3 PAULINO FUENTES, a policeman assigned at the municipal building of Argao, Cebu, received a report at about 5:30 o'clock in the morning of October 5, 1965, that Ino Espina was hacked in barrio Looc He and another policeman, Pedro Burgos, proceeded to the victim's house where he saw the latter lying on the floor, wounded and bleeding on the forehead. Patrolman Fuentes asked the victim who had hacked him and the latter answered that it was "Papu" Sabio, son of Menes According to said Patrolman, the person referred to was the accused, who, as well as his parents, have been known to the witness for the past three years. Patrolman Fuentes asked the victim why "Papu" hacked him and the latter answered that "Papu" had demanded money from him. Patrolman Fuentes also asked the victim how much money he had lost but the latter was not able to answer that question. Sensing that the wound was serious since it was bleeding profusely Patrolman Fuentes decided to take down the statement of the victim. He detached a leaf from a calendar and wrote down on it the questions he propounded as well as the answers of the victim. He then had it

thumbmarked by the victim with the latter's own blood as no ink was available. Present at the time were Pedro Burgos, another police officer, and Camilo Semilla, the grandnephew. Patrolman Fuentes himself and Pedro Burgos signed as witnesses. Reproduced hereunder in full is the said statement: Antemortem P Kinsa may ngalan nimo. T Catalino Espina P Taga diin man ikao. T Taga Looc, Argao, Cebu P Kinsa may nag tikbas kanimo kon nagtulis kanimo T Si Rudolfo (Pafo) Sabyo nga anak ni Menez nga taga Looc. P Kon ikao mamatay kinsa may responsabli sa imong kamatayan. T Si Pafo Sabyo ro gayod ang responsabli sa akong kamatayon P Imo ba kining permahan o tamlaan sa imong todlo? T Oo Catalin o Espina (Thum bmarke d) Wit: 1. (Sgd.) Paulino Fuentes
2. (Sgd.) Pedro Burgos 4

The English translation reads: Q What is your name? A Catalino Espina Q From where are you?

A From Look, Argao, Cebu. Q Who slashed you and robbed you? A Rodulfo Sabio (Papu) the son of Menez from Look Q If you will die, who is responsible for your death? A Only Papu Sabio is responsible for my death. Q Are you going to sign this or affix your fingerprint? A Yes. Browni sh fingerpr int mark and across it is written the word CATAL INO ESPIN A. Wit: 1. (Sgd.) Paulino Fuentes
2. (Sgd.) Pedro Burgos 5

Thereafter, Patrolman Fuentes advised Camilo Semilla to bring the victim to the hospital. Patrolman Fuentes observed that the things of Catalino and the store items like canned sardines were all in disarray while the tin can ("barro") was already opened. 6 On October 5, 1965, DR. MELITA REMOTIGUE ANO resident physician at the Southern Islands Hospital, Surgery Department, found that the victim had suffered "compound fracture on the skull, bilateral at the front parietal area" with "laceration and cerebral contusion." From the nature of the injuries, she opined that the same could have been inflicted by a sharp instrument or by a bolo, and although the laceration was not too deep as to cause instaneous death, the injury was fatal because it had injured the brain. 7

The prosecution also offered in evidence and as part of the cross-examination of the accused a letter dated February 17, 1966 of the Cebu Provincial Warden, 8 showing that the accused had been previously convicted by final judgment and had served sentence for two previous crimes of Theft committed in the years 1963 and 1964. Testifying in his defense the accused RODULFO SABIO, 18 years old, a fisherman, claimed that in the evening of October 4, 1965, he was at home listening to the radio till past 9:00 o'clock after which he went to sleep until about 6:00 o'clock in the morning of the next day, October 5, 1965, when he was awakened by his younger brother who said that certain policemen were looking for him. The policemen took him to the municipal building and incarcerated him without asking any question. He was released the next day, October 6, but was arrested again on November 24, 1965 at P. del Rosario Street in Cebu City. The accused admitted that he knew witness, Camilo Semilla, because they were neighbors he denied that Camilo had seen him running by the seashore at about 5:00 o'clock in the morning of October 5, 1965 because at that time he was still asleep at home. The accused also admitted knowing witness, Jesusa Birondo but alleged that she could not have seen him coming out of the door of the house of Ino Espina at about 5:00 o'clock in the morning of October 5, 1965 because at that time he was still asleep at home. 9 Defense witness JACINTO MENDEZ corroborated the accused defense of alibi by testifying that in the evening of October 4, 1965, he slept in the house of Hermogenes Sabio, father of the accused, because he and Hermogenes had planned to go fishing the following morning. In the house he saw the accused and the other children of Hermogenes. When he woke up at 5:00 o'clock in the morning of the following day, October 5, he saw that the accused and the other children were all in the house. He repaired the nets after waking up, then went out to sea with Hermogenes at about 7:00 o'clock and came back at past 8:00 in the morning. 10 In a Decision dated April 29, 1966, the trial Court found the accused guilty of the crime of Robbery with Homicide attend by the aggravating circumstances of disregard of respect due to the victim, an octogenarian and recidivism, without any mitigating circumstance, and sentenced him to death; to indemnify the heirs of the deceased in the amount of P6,000.00; and to pay the costs. The trial Court, however, recommended that in view of the youthful age of the accused, the death penalty be commuted to life imprisonment. In this appeal, the defense has made the following: Assignment of Errors I. The lower Court erred in concluding that the felony of Robbery with Homicide, instead of only Homicide, had been established by the evidence; II. The lower Court erred in admitting Exhibit "A" of the prosecution as an Antemortem declaration of the victim; III. The lower Court erred in giving credence to the testimony of Jesusa BIRONDO witness for the prosecution;
IV. The lower Court erred in finding that the defendant- appellant was the perpetrator of the crime. 11

1. We find merit in the contention that only the crime of Homicide had been committed. The evidence indicative of robbery consisted merely of the testimony of witness Camilo Semilla who declared as follows:

Q. How far was Rodulfo Sabio when he passed by you running that moment? A. About six meters from me. Q. Did you notice while he passed by you running, if he was holding anything? A. Yes, he had his hands inside his shirt. xxx xxx xxx Q. What did you notice inside the house upon your arrival from the seashore? A. I saw that the ("barro") was already empty, lying on the ground, and the merchandise items were in disorder. Q. Do you know what things were placed in that thing or tin can which you call barro A. It contained the cash sales. Q. That "barro" which you mentioned, where was it before you left the house to go to the shore that dawn? A. Beside the bed of lno Q. You said that tin can or 'barro' where the cash sales were kept was beside the bed, do you know more or less the amount placed therein? A. About P8.00. Q. How do you know that tin can had P8.00 inside? A. Because the previous night we counted the money. Q. The P8.00 was the sales for how many days?
A. That was the sales for Sunday and Monday.
12

and that of Patrolman Fuentes, to wit: Q. When you were inside the house of Catalino Espina, what else did you find in the course of your investigation? A. I saw that the things of Catalino Espina and the stands where the items for sale were displayed were all in disarray.

xxx xxx xxx Q. What other conversation did you have with Catalino Espina after that first question? A. I asked him why Papu hacked him, and the victim answered that Papu demanded money from him. Q. Could we say that the answer of the deceased Catalino Espina was outright after the question? A. Yes, sir. Q. Even with the second question, is that correct? A. Yes, sir. Q. Will you please let us know the third question? A. I asked him how much money he lost, and he was not able to answer that question. Q. Do you know why he did not answer that question? A. I think he did not answer that because when he was hacked he had not yet given money to Papu. xxx xxx xxx Q. You stated in the direct examination that the things in the house of the deceased Catalino Espina were in disarray, is that correct A. Yes, sir. Q. Will you please state before the Honorable Court the things that were disarrayed when you went up the house of the deceased?
A. The canned sardines were disarrayed, others had dropped to the ground; the barro was 13 already opened, and other things in the store were in topsy-turvy state.

Plainly, the evidence supportive of the charge of robbery is at best circumstantial and does not establish beyond reasonable doubt that the accused had carried away personal- ty belonging to the offended party. There was no eyewitness to the alleged robbery, nor was any part of the alleged missing object recovered. The consummation of the robbery cannot be inferred nor presumed from the circumstance that the accused was seen running "with his hands inside his shirt", or that the "barrio", alleged to have contained cash amounting to about P8.00, was seen on the floor, open and empty, or that the things and merchandise inside the house were in disarray People vs. Labita et al., [99 Phil. 1068, unreported case]). A conviction for Robbery with Homicide requires that the robbery itself be proven as conclusively as any other essential element of a crime (People vs. Pacala, 58 SCRA 370 [1974]), it not being enough to infer said robbery from mere suspicion and presumption (U.S. vs. Alasaas 40 Phil. 878, 881).

Where there was no eyewitness to the alleged robbery, and the evidence merely shows that after the killing some of the things inside the house where the killing took place, were missing, it cannot be presumed that the accused killers committed robbery. It is necessary to prove intent to rob. This necessarily includes evidence to the effect that the accused carried away the effects or personalty of the offend- ed party. In the absence of evidence that the accused carried away the missing objects, they cannot be convicted of robbery. 14(Emphasis supplied)

Nor can the dying declaration of the victim which, in part, reads: Q. Who slashed you and robbed you? A. Rodulfo Sabio (Papu) the son of Menez from Lo-ok. be admitted to establish the fact of robbery. The admission of dying declarations has always been strictly limited to criminal prosecutions for homicide or murder 15 as evidence of the cause and surrounding circumstances of death. 16 2. Next, the defense questions the admissibility of Exhibit "A" of the prosecution as an antemortem statement arguing that there is no evidence showing that when the declaration was uttered the declarant was under a consciousness of an impending death; that, in fact, the victim had hopes of recovery or his first word to Camilo Semilla was for the latter to fetch the police. Defense counsel argues further that there are doubts as to when said Exhibit "A" was thumb-marked because, although it was already in existence in the morning of October 5, 1965, as alleged by Patrolman Fuentes, the accused was never confronted with the document when he was taken in to custody by the police for the first time from the morning of October 5 to October 6, 1965, thereby implying that the document did not yet exist at that time. The arguments advanced are unavailing. The seriousness of the injury on the victim's forehead which had affected the brain and was profusely bleeding; the victim's inability to speak until his head was raised; the spontaneous answer of the victim that "only Papu Sabio is responsible for my death"; and his subsequent demise from the direct effects of the wound on his forehead, strengthen the conclusion that the victim must have known that his end was inevitable. That death did not ensue till three days after the declaration was made will not alter its probative force since it is not indispensable that a declarant expires immediately thereafter. It is the belief in impending death and not the rapid succession of death, in point of fact, that renders the dying declaration admissible. 17 Further, the fact that the victim told his grandnephew Camilo Semilla to fetch the police, does not negative the victim's feeling of hopelessness of recovery but rather emphasizes the realization that he had so little time to disclose his assailant to the authorities. The mere failure of the police to confront the accused cused with the antemortem declaration the first time the latter was arrested and incarcerated from October 5 to October 6, 1965, neither militates against the fact of its execution considering that it was evidence that the police was under no compulsion to disclose. 3. The credibility of witness Jesusa Birondo is also assail ed by the defense alleging firstly, that it is unbelievable that she could have really Identified the accused as the person who came out of the victim's house considering that the distance from her window to that house was 17 meters, and at 5:00 a.m. on October 5, 1965, it was still dark and raining secondly, there is a glaring divergence between her testimony at the trial and her statement at the preliminary investigation, which statement was suppressed and not made known to the trial Court; thirdly, said witness was uncertain as to when she actually brought to the attention of the authorities the matter of her having seen the accused; and finally, the defense asks if it were true that the accused had been Identified by said

witness to the Chief of Police even before the accused was taken into custody, why was not the accused confronted with such fact? For one who has known the accused since the latter's infancy and who is very familiar with the accused's appearance because she sees him almost everyday passing by her house or at the seashore where the accused has his house, it is not incredible that Jesusa Birondo recognized the accused, at side view, even, at a distance of 17 meters (which was the trial Court's estimate of the distance between Catalino Espina's house and that of Jesusa Birondo as described by the accused) at 5:00 o'clock in the morning and even if it were raining. Besides, Jesusa's description of the clothes that the accused was wearing was corroborated by Camilo Semilla, who also saw the accused that same morning. The alleged divergence between Jesusa's statement at the preliminary investigation and her testimony at the trial neither merits serious consideration since an affidavit, "being taken ex parte is almost always incomplete and often inaccurate." 18 Besides, the discrepancies pointed out by the defense, to wit: whether or not Jesusa saw what the accused did after leaving the house of the victim and whether or not she went down from her house after the incident, refer to minor details or collateral matters which do not destroy the effectiveness of her testimony. Further, the, discrepancy as to the exact date when the witness actually disclosed to the authorities her having seen the accused on the morning of the incident, is also a minor detail which does not detract from the reliability of her Identification of the accused. Moreover, the defense has not shown any ulterior motive on the part of witness Jesusa Birondo that would make her implicate and testify falsely against the accused, who was a neighbor and an acquaintance. 4. In the fourth and last assignment of error, the defense decries the speed with which the trial Court decided the case, alleging that the Decision was prepared and signed on April 29, 1966, or one day after the close of trial on April 28, 1966, and was read to the accused on April 30, 1966, without benefit of a transcript of stenographic notes nor memoranda of the parties, so that the trial Court could not have seriously considered the merits of the case or must have prejudged it even before the trial ended. That contention is belied, however, by the detailed findings of facts in the Decision of the trial Court duly supported by the transcript of stenographic notes now on record. Finally, the defense contends that the guilt of the accused has not been established beyond reasonable doubt. The alibi put up by the accused, however, crumbles under the positive Identification by witnesses Jesusa Birondo and Camilo Semilla and the dying declaration of the victim, aside from the fact that because of the proximity of the house of the accused to that of the victim, it was not impossible for the accused to have been at the scene of the crime. In summation the accused is guilty only of Homicide, attended by the aggravating circumstances of disregard of respect due the offended party on account of his age, and dwelling Recidivism is not to be considered because of our finding that the crime of Robbery has not been conclusively established. The penalty imposable for the crime of Homicide, attended by aggravating with no mitigating circumstances, isreclusion temporal in its maximum period or seventeen (17) years, four (4) months and one (1) day to twenty (20) years. 19 WHEREFORE, we find the accused, Rodulfo Sabio alias "Papu", guilty of the crime of Homicide and hereby sentence him to an indeterminate penalty of twelve (12) years of prision mayor as minimum, to twenty (20) years ofreclusion temporal as maximum; to indemnify the heirs of the deceased, Catalino Espina in the amount of P12,000.00; and to pay the costs. SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion Jr., Fernandez, Guerrero and De Castro, JJ., concur. Barredo, * J., took no part.

FIRST DIVISION

[G.R. No. 152044. July 3, 2003]

DOMINGO LAGROSA and OSIAS BAGUIN, petitioners, vs. THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS,respondents. DECISION
YNARES-SANTIAGO, J.:

This is a petition for review of the decision of the Court of Appeals in CAG.R. No. 67308, which affirmed the Resolution of the Regional Trial Court of Tagbilaran City, Branch 2, denying petitioners Application for Probation, and its Order denying petitioners Motion for Reconsideration.
[1] [2]

The undisputed facts are as follows. On October 29, 1996, the Regional Trial Court of Tagbilaran City, Branch 2, rendered a decision in Criminal Case No. 8243, finding petitioners Domingo Lagrosa and Osias Baguin guilty of violation of Section 68 of P.D. 705, as amended (The Revised Forestry Code), for having in their possession forest products without the requisite permits. The trial court sentenced them to suffer the indeterminate penalty of imprisonment from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum. Petitioners Motion for Reconsideration of the decision was denied by the trial court on November 21, 1996.
[3] [4] [5]

Petitioners appealed their conviction to the Court of Appeals, where it was docketed as CA-G.R. CR No. 20632. On March 14, 2000, the appellate court affirmed the conviction of the petitioners, with the modification as to the penalty imposed, which was reduced to an indeterminate penalty ranging from six (6) months and one (1) day of prision correccional, as minimum, to one (1)
[6]

year, eight (8) months and twenty one (21) days of prision correccional, as maximum. The decision became final and executory on April 12, 2000.
[7]

On August 29, 2001, petitioners filed an Application for Probation with the trial court, which, as mentioned at the outset, was denied. Petitioners motion for reconsideration was likewise denied by the trial court. Hence, petitioners filed a petition for certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 67308. On January 11, 2002, the Court of Appeals rendered the assailed decision affirming the questioned resolutions of the trial court.
[8] [9]

Hence this petition, raising the following arguments:

1) That Section 4 of Presidential Decree No. 968, as amended by PD No. 1990, is very absurd and illogical considering that petitioners were not given the opportunity to apply for probation when they were convicted by the Regional Trial Court of Bohol, Branch 2, because the penalty imposed by said court is more than six (6) years and therefore non-probationable. That the first opportunity for herein petitioners to apply for probation was when the Court of Appeals modified the sentence imposed by the Regional Trial Court of Bohol, Branch 2, from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, to six (6) months and one (1) day to one (1) year, eight (8) months and twenty one (21) days as maximum which is clearly probationable. 2) That the ruling of this Honorable Supreme Court in the case of Pablo Francisco versus Court of Appeals, et al., G.R. No. 108747, is not applicable to the instant case because in the saidFrancisco case the accused therein can apply for probation because the penalty imposed by the lower court was already probationable but the accused instead appealed the decision but in the case of herein petitioners they cannot apply for probation when they were convicted because the penalty imposed by the lower court was more than six (6) years and therefore non-probationable. 3) That the decision of the Court of Appeals herein sought to be reviewed is clearly contrary to the purpose of the Probation Law.[10]

The law that is at the heart of this controversy is Presidential Decree No. 968, also known as the Probation Law, as amended by P.D. 1990, the pertinent provision of which reads: SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. (underscoring ours)

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. Under Section 9 (a) of the Probation Law, offenders who are sentenced to serve a maximum term of imprisonment of more than six years are disqualified from seeking probation. It should be noted that before P.D. 968 was amended by P.D. 1990, the accused was allowed to apply for probation even after he had already filed an appeal, as long as he had not yet begun to serve his sentence.
[11]

Petitioners contend that they should be allowed to apply for probation even if they had already appealed the decision of the trial court. They argue that their case should be considered an exception to the general rule which excludes an accused who has appealed his conviction from the benefits of probation. In the case at bar, the trial court sentenced petitioners to a maximum term of eight years, which was beyond the coverage of the Probation Law. They only became eligible for probation after the Court of Appeals modified the judgment of the trial court and reduced the maximum term of the penalty imposed on them to one year, eight months and twentyone days. They submit that the ruling in the case of Francisco v. CA is not applicable because in that case, the accused appealed their conviction notwithstanding the fact that the maximum term of the prison sentence imposed on them by the trial court was less than six years.
[12] [13] [14]

In its Comment, the Office of the Solicitor General reiterates the express provision of P.D. 968 prohibiting the grant of probation to those who have appealed their convictions. It argues that, even if the petitioners have appealed for the purpose of reducing an incorrect penalty, this fact does not serve to remove them from the prohibition in Section 4 of P.D. 968 for the law makes no such distinction.
[15] [16]

There is no question that petitioners appealed from the decision of the trial court. This fact alone merits the denial of petitioners Application for Probation. Having appealed from the judgment of the trial court and having applied for probation only after the Court of Appeals had affirmed their conviction, petitioners were clearly precluded from the benefits of probation.
[17]

However, petitioners now ask us not to apply the letter of the law, claiming that their situation should be considered an exception to the rule. Their petition is without merit.

Petitioners repeatedly assert that their application for probation was made at the first opportunity, undoubtedly invoking the fourth whereas clause of P.D. 1990, which reads: WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct and delay the administration of justice, but should be availed of at the first opportunity by offenders who are willing to be reformed and rehabilitated; x x x. To bolster this assertion, petitioners claim that what prompted them to appeal the decision of the trial court was the erroneous penalty imposed by the trial court.
[18]

Petitioners are not being very candid. In their appellants brief filed in CAG.R. CR No. 20632, they raised the following assignment of errors:
I

THAT THE LOWER COURT ERRED IN FINDING BOTH ACCUSED GUILTY OF THE OFFENSE CHARGED BECAUSE THE EVIDENCE AGAINST THEM LACKS MORAL CERTAINTY.
II.

IF EVER ACCUSED ARE GUILTY, THE LOWER COURT ERRED IN IMPOSING THE PROPER PENALTY AS PROVIDED BY LAW. The fact that petitioners put the merits of their conviction in issue on appeal belies their claim that their appeal was prompted by what was admittedly an incorrect penalty. Certainly, the protestations of petitioners connote a profession of guiltlessness, if not complete innocence, and do not simply assail the propriety of the penalties imposed. For sure, petitioners never manifested that they were appealing only for the purpose of correcting a wrong penalty to reduce it to within probationable range. Hence, upon interposing an appeal, more so after asserting their innocence therein, petitioners should be precluded from seeking probation. By perfecting their appeal, petitioners ipso facto relinquished the alternative remedy of availing of the Probation Law, the purpose of which is simply to prevent speculation or opportunism on the part of an accused who, although already eligible, does not at once apply for probation, but did so only after failing in his appeal.
[19]

Although it has been suggested that an appeal should not bar the accused from applying for probation if the appeal is solely to reduce the penalty to within the probationable limit may be equitable, we are not yet prepared to accept this proposition, specially given the factual circumstances of this
[20]

case. Had the petitioners appeal from the decision of the trial court raised the impropriety of the penalty imposed upon them as the sole issue, perhaps this Court would have been more sympathetic to their plight. Unfortunately, their misrepresentation has led to their own undoing. WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of Appeals dated January 11, 2002 in CA-G.R. No. 67308, which affirmed the Resolution of the Regional Trial Court of Tagbilaran City, Branch 2, denying petitioners Application for Probation, and its Order denying petitioners Motion for Reconsideration, is AFFIRMED. Costs against the petitioners. SO ORDERED. Davide, Jr., C.J., (Chairman), Carpio, and Azcuna, JJ., concur. Vitug, J., I reiterate my separate (dissenting) opinion in Francisco vs. CA (243 SCRA 384, 399)

EN BANC

[G.R. No. 152154. November 18, 2003]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. HONORABLE SANDIGANBAYAN (SPECIAL FIRST DIVISION), FERDINAND E. MARCOS (REPRESENTED BY HIS ESTATE/HEIRS: IMELDA R. MARCOS, MARIA IMELDA [IMEE] MARCOS-MANOTOC, FERDINAND R. MARCOS, JR. AND IRENE MARCOS-ARANETA), AND IMELDA ROMUALDEZ MARCOS, respondents.
RESOLUTION
CORONA, J.:

Before us are motions dated August 1, 2003, August 2, 2003 and August 25, 2003 of respondents Imelda R. Marcos, Irene Marcos-Araneta, Ma. Imelda Marcos and Ferdinand R. Marcos, Jr., respectively, seeking reconsideration of our decision dated July 15, 2003 which ordered the forfeiture in favor of the Republic of the Philippines of the Swiss deposits in escrow at the Philippine

National Bank (PNB) in the estimated US$658,175,373.60 as of January 31, 2002.

aggregate

amount

of

Respondent Imelda Marcos, in her motion for reconsideration, asks this Court to set aside the aforesaid decision dated July 15, 2003, premised on the following grounds:
I
THE DECISION OF THIS HONORABLE COURT EFFECTIVELY DEPRIVED RESPONDENT OF HER CONSTITUTIONALLY ENSHRINED RIGHT TO DUE PROCESS ON THE FOLLOWING GROUNDS: A. FORFEITURE PROCEEDINGS UNDER R.A. 1379, IN RELATION TO THE EXECUTIVE ORDERS ARE CRIMINAL/PENAL IN NATURE, HENCE, RESPONDENT HAS ALL THE RIGHTS IN FAVOR OF THE ACCUSED UNDER THE CONSTITUTION; AND THE PROSECUTION HAS THE BURDEN OF PROVING RESPONDENT'S GUILT BEYOND REASONABLE DOUBT. B. CONSIDERING THE CRIMINAL/PENAL NATURE OF THE PROCEEDINGS, THE DENIALS RAISED BY RESPONDENT IN HER ANSWER WERE SUFFICIENT TO TRAVERSE THE ALLEGATIONS IN THE PETITION FOR FORFEITURE. C. THE PROSECUTION HAD FAILED TO ESTABLISH EVEN A PRIMA FACIE CASE AGAINST RESPONDENT, MUCH LESS PROVEN ITS CASE FOR FORFEITURE BEYOND REASONABLE DOUBT. D. EVEN ASSUMING THAT THE PROSECUTION WAS ABLE TO ESTABLISH A PRIMA FACIE CASE, A SUMMARY JUDGMENT CANNOT BE RENDERED IN FORFEITURE PROCEEDINGS. RESPONDENT HAS THE RIGHT TO BE GIVEN THE OPPORTUNITY TO OVERTHROW THE DISPUTABLE PRESUMPTION. E. THE FACTUAL FINDING THAT THE FOUNDATIONS INVOLVED IN THE INSTANT FORFEITURE PROCEEDINGS ARE CONSIDERED BUSINESSES, AND WERE MANAGED BY RESPONDENT TOGETHER WITH HER LATE HUSBAND, WILL PERNICIOUSLY AFFECT THE CRIMINAL PROCEEDINGS FILED BY THE REPUBLIC AGAINST RESPONDENT.

II
THE DECISION OF THE SUPREME COURT, WHICH IMPROPERLY CONVERTED THE SPECIAL CIVIL ACTION INTO A REGULAR APPEAL, DIVESTED RESPONDENT OF HER RIGHT TO APPEAL THE CASE ON THE MERITS, THEREBY DEPRIVING HER OF DUE PROCESS. A. THE RESOLUTION DATED 31 JANUARY 2002 RAISED BEFORE THIS HONORABLE COURT ON A PETITION FOR CERTIORARI, WAS OBVIOUSLY A MERE INTERLOCUTORY ORDER. THE DECISION OF THIS HONORABLE COURT SHOULD NOT HAVE DELVED ON THE MERITS OF THE CASE, IN DIRECT VIOLATION OF RESPONDENTS RIGHT TO APPEAL, WHICH IS EXPRESSLY CONFERRED BY THE RULES.

Respondent Imelda Marcos further alleges that our July 15, 2003 decision will prejudice the criminal cases filed against her.

Respondents Ferdinand, Jr. and Imee Marcos also pray that the said decision be set aside and the case be remanded to the Sandiganbayan to give petitioner Republic the opportunity to present witnesses and documents and to afford respondent Marcoses the chance to present controverting evidence, based on the following:
I
THE LETTER AND INTENT OF RA 1379 FORBID/PRECLUDE SUMMARY JUDGMENT AS THE PROCESS TO DECIDE FORFEITURE UNDER RA 1379. THUS, IT PROVIDES FOR SPECIFIC JURISDICTIONAL ALLEGATIONS IN THE PETITION AND MANDATES A WELL-DEFINED PROCEDURE TO BE STRICTLY OBSERVED BEFORE FORFEITURE JUDGMENT MAY BE RENDERED.

II

SUMMARY JUDGMENT IN THE DECISION UNDER RECONSIDERATION DIMINISHES/MODIFIES OR REPEALS VIA JUDICIAL LEGISLATION SUBSTANTIVE RIGHTS OF RESPONDENTS GRANTED AND GUARANTEED BY RA 1379 AND IS THEREFORE UNCONSTITUTIONAL.
III

THE DECISION IS CONSTITUTIONALLY INVALID FOR FAILURE TO EXPRESS CLEARLY AND DISTINCTLY THE TRUE/GENUINE STATEMENT OF FACTS (ADDUCED AFTER TRIAL/ PRESENTATION OF EVIDENCE) ON WHICH IT IS BASED.
IV

THE LAW(S) ON WHICH THE DECISION IS BASED IS/ARE NOT APPLICABLE/PROPER AND/OR ARE FORCEFULLY STRAINED TO JUSTIFY THE UNWARRANTED CONCLUSIONS REACHED, VIOLATIVE OF CONSTITUTIONAL AND STATUTORY INJUNCTIONS.
V

THERE BEING A DEPRIVATION OF DUE PROCESS, THE COURT AXIOMATICALLY OUSTED ITSELF OF JURISDICTION. HENCE, THE DECISION IS VOID.
VI ASSUMING SUMMARY JUDGMENT IS APPLICABLE AND PROPER, IT IS NOT WARRANTED UNDER THE PREMISES.

VII

ASSUMING THAT A SUMMARY JUDGMENT IS PROPER, THE AVERMENTS OF THE PETITION FORFEITURE ARE INCOMPLETE AND INCONCLUSIVE TO COMPLY WITH THE REQUISITE IMPERATIVES. JUDGMENT VIOLATES THE CONDITIONS SINE QUA NON TO BE OBSERVED TO RENDER A VALID DECISION OF FORFEITURE UNDER RA 1379.

VIII
THE STATEMENT OF OPERATIVE FACTS/FACTUAL NARRATION AS WELL AS THE CONCLUSIONS REACHED IN THE DECISION ARE CONTRADICTED OR REFUTED BY THE PLEADINGS OF THE PARTIES, THE JUDICIAL ADMISSIONS OF PETITIONER, THE PROCEEDINGS BEFORE SANDIGANBAYAN AND THE ORDERS ISSUED.

Respondent Irene Araneta, in her motion for reconsideration, merely reiterates the arguments previously raised in the pleadings she filed in this Court and prays that the Courts decision dated July 15, 2003 be set aside. In its consolidated comment dated September 29, 2003, the Office of the Solicitor General argues that:
I
THE MOTIONS FOR RECONSIDERATION DO NOT RAISE ANY NEW MATTER AND WERE FILED MANIFESTLY TO DELAY THE EXECUTION OF THE DECISION DATED JULY 15, 2003.

II
SUMMARY JUDGMENT IS APPLICABLE TO A PETITION FOR FORFEITURE, AS LONG AS THERE IS NO GENUINE FACTUAL ISSUE WHICH WOULD CALL FOR TRIAL ON THE MERITS.

III
THE DECISION DATED JULY 15, 2003 OF THIS HONORABLE COURT CLEARLY EXPRESSED THE FACTS ON WHICH IT IS BASED, MOST OF WHICH WERE ADMITTED BY PRIVATE RESPONDENTS IN THEIR PLEADINGS SUBMITTED TO THE SANDIGANBAYAN AND IN THE COURSE OF THE PROCEEDINGS.

IV
CERTIORARI IS THE APPROPRIATE AND SPEEDY REMEDY OF PETITIONER REPUBLIC, GIVEN THE GRAVE ABUSE OF DISCRETION COMMITTED BY RESPONDENT SANDIGANBAYAN IN TOTALLY REVERSING ITS OWN DECISION DATED SEPTEMBER 19, 2000 AND IN ISSUING THE SUBJECT RESOLUTION DATED JANUARY 31, 2002, AND CONSIDERING THAT THE CASE IS IMBUED WITH IMMENSE PUBLIC INTEREST, PUBLIC POLICY AND DEEP HISTORICAL REPERCUSSIONS.

V
A FORFEITURE PROCEEDING UNDER REPUBLIC ACT NO. 1379 IS CIVIL AND NOT CRIMINAL IN NATURE.

VI
THE DECISION DATED JULY 15, 2003 OF THIS HONORABLE COURT WILL NOT PREJUDICE THE CRIMINAL ACTIONS FILED AGAINST RESPONDENT IMELDA R. MARCOS FOR VIOLATION OF THE ANTI-GRAFT AND CORRUPT PRACTICES ACT.

On October 6, 2003, respondents Marcos, Jr. and Imee Marcos filed a motion for leave to file a reply to petitioner Republic's consolidated comment, which this Court granted. On October 22, 2003, they filed their reply to the consolidated comment. As the aforequoted issues are interwoven, the Court shall discuss them together. At the outset, we note that respondents, in their motions for reconsideration, do not raise any new matters for the Court to resolve. The arguments in their motions for reconsideration are mere reiterations of their contentions fully articulated in their previous pleadings, and exhaustively probed and passed upon by the Court. SUMMARY JUDGMENT IN FORFEITURE PROCEEDINGS Respondent Marcoses argue that the letter and intent of RA 1379 forbid and preclude summary judgment as the process to decide forfeiture cases under the law. It provides for specific jurisdictional allegations in the petition and mandates a well-defined procedure to be strictly observed before a judgment of forfeiture may be rendered. According to respondents, Section 5 of RA 1379 requires the court to set a date for hearing during which respondents shall be given ample opportunity to explain, to the satisfaction of the court, how they acquired the property. They contend that the proceedings under RA 1379 are criminal in character, thus they have all the rights of an accused under the Constitution such as the right to adduce evidence and the right to a hearing. They claim that it is petitioner which has the burden of proving respondents' guilt beyond reasonable doubt and that forfeiture of property should depend not on the weakness of their evidence but on the strength of petitioner's. Accordingly, respondents maintain that, due to the criminal nature of forfeiture proceedings, the denials raised by them were sufficient to traverse all the allegations in the petition for forfeiture. The issue of the propriety of summary judgment was painstakingly discussed and settled in our July 15, 2003 decision:

A summary judgment is one granted upon motion of a party for an expeditious settlement of the case, it appearing from the pleadings, depositions, admissions and affidavits that there are no important questions or issues of fact posed and, therefore, the movant is entitled to a judgment as a matter of law. A motion for summary judgment is premised on the assumption that the issues presented need not be tried either because these are patently devoid of substance or that there is no genuine issue as to any pertinent fact. It is a method sanctioned by the Rules of Court for the prompt disposition of a civil action where there exists no serious controversy. Summary judgment is a procedural devise for the prompt disposition of actions in which the pleadings raise only a legal issue, not a genuine issue as to any material fact.
[1]

IS SUMMARY JUDGMENT IN FORFEITURE PROCEEDINGS A VIOLATION OF DUE PROCESS? The principal contention now of respondent Marcoses is limited to their argument that our aforementioned decision effectively deprived them of their constitutionally enshrined right to due process. According to respondents, RA 1379 is penal in substance and effect, hence, they are entitled to the constitutional safeguards enjoyed by an accused. Respondents further argue that the reinstatement of the decision of the Sandiganbayan dated September 19, 2000, which ordered the forfeiture of the properties subject of the instant case by summary judgment, diminished or repealed, by judicial legislation, respondents rights guaranteed by RA 1379 for failure to set a date for hearing to benefit respondents. We disagree. Due process of law has two aspects: substantive and procedural due process. In order that a particular act may not be impugned as violative of the due process clause, there must be compliance with both substantive and the procedural requirements thereof.
[2]

In the present context, substantive due process refers to the intrinsic validity of a law that interferes with the rights of a person to his property. On the other hand, procedural due process means compliance with the procedures or steps, even periods, prescribed by the statute, in conformity with the standard of fair play and without arbitrariness on the part of those who are called upon to administer it.
[3] [4]

Insofar as substantive due process is concerned, there is no showing that RA 1379 is unfair, unreasonable or unjust. In other words, respondent

Marcoses are not being deprived of their property through forfeiture for arbitrary reasons or on flimsy grounds. As meticulously explained in the July 15, 2003 decision of the Court, EO No. 1 created the PCGG primarily to assist then President Corazon Aquino in the recovery, pursuant to RA 1379, of vast government resources amassed and stolen by former President Ferdinand Marcos, his immediate family, relatives, close associates and other cronies. These assets were stashed away here and abroad.
[5]

A careful study of the provisions of RA 1379 readily discloses that the forfeiture proceedings in the Sandiganbayan did not violate the substantive rights of respondent Marcoses. These proceedings are civil in nature, contrary to the claim of the Marcoses that it is penal in character. In Almeda Sr., et al. vs. Perez, et al., we suggested a test to determine whether the proceeding for forfeiture is civil or criminal:
[6]

. . . Forfeiture proceedings may be either civil or criminal in nature, and may be in rem or in personam. If they are under a statute such that if an indictment is presented the forfeiture can be included in the criminal case they are criminal in nature, although they may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged the proceeding is of a civil nature; and under statutes which specifically so provide, where the act or omission for which the forfeiture is imposed is not also a misdemeanor, such forfeiture may be sued for and recovered in a civil action. (37 CJS, Forfeiture, Sec. 5, pp. 15-16) In the case of Republic vs. Sandiganbayan and Macario Asistio, Jr., this Court categorically declared that:
[7]

The rule is settled that forfeiture proceedings are actions in rem and therefore civil in nature. The proceedings under RA 1379 do not terminate in the imposition of a penalty but merely in the forfeiture of the properties illegally acquired in favor of the State. Section 6 of said law provides: x x x If the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall become property of the State x x x

The procedure outlined in the law leading to forfeiture is that provided for in a civil action: xxx xxx xxx

Sec. 3. The petition The petition shall contain the following information: (a) The name and address of the respondent.

(b) The public office or employment he holds and such other public offices or employments which he has previously held. (c) The approximate amount of property he has acquired during his incumbency in his past and present offices and employments. (d) A description of said property, or such thereof as has been identified by the Solicitor General. (e) The total amount of his government salary and other proper earnings and incomes from legitimately acquired property, and (f) Such other information as may enable the court to determine whether or not the respondent has unlawfully acquired property during his incumbency. xxx xxx xxx

Sec. 4. Period for the answer. The respondent shall have a period of fifteen days within which to present his answer. In short, there is a petition, then an answer and lastly, a hearing. The preliminary investigation required prior to the filing of the petition, in accordance with Section 2 of the Act, is expressly provided to be similar to a preliminary investigation in a criminal case. The similarity, however, ends there for, if the investigation were akin to that in a criminal case but all the other succeeding steps were those for a civil proceeding, then the process as a whole is definitely not criminal. Were it a criminal proceeding, there would be, after preliminary investigation, a reading of the information, a plea of guilty or not guilty, a trial and a reading of judgment in the presence of respondents. But these steps, as above set forth, are clearly not provided for in the law.

Prescinding from the foregoing discussion, save for annulment of marriage or declaration of its nullity or for legal separation, summary judgment is applicable to all kinds of actions.
[8]

The proceedings in RA 1379 and EO No. 14 were observed in the prosecution of the petition for forfeiture. Section 1 of EO No.14-A, dated August 18, 1986, amending Section 3 of EO No.14, provides that civil suits to recover unlawfully acquired property under RA 1379 may be proven by preponderance of evidence. Under RA 1379 and EO Nos. 1 and 2, the Government is required only to state the known lawful income of respondents for the prima facie presumption of illegal provenance to attach. As we fully explained in our July 15, 2003 decision, petitioner Republic was able to establish this prima facie presumption. Thus, the burden of proof shifted, by law, to the respondents to show by clear and convincing evidence that the Swiss deposits were lawfully acquired and that they had other legitimate sources of income. This, respondent Marcoses did not do. They failed or rather, refused to raise any genuine issue of fact warranting a trial for the reception of evidence therefor. For this reason and pursuant to the State policy to expedite recovery of ill-gotten wealth, petitioner Republic moved for summary judgment which the Sandiganbayan appropriately acted on. Respondents also claim that summary judgment denies them their right to a hearing and to present evidence purposely granted under Section 5 of RA 1379. Respondents were repeatedly accorded full opportunity to present their case, their defenses and their pleadings. Not only did they obstinately refuse to do so. Respondents time and again tried to confuse the issues and the Court itself, and to delay the disposition of the case. Section 5 of RA 1379 provides: The court shall set a date for a hearing which may be open to the public, and during which the respondent shall be given ample opportunity to explain, to the satisfaction of the court, how he has acquired the property in question. And pursuant to Section 6 of the said law, if the respondent is unable to show to the satisfaction of the court that he has lawfully acquired the property in question, then the court shall declare such property forfeited in favor of the State. Respondent Marcoses erroneously understood hearing to be synonymous with trial. The words hearing and trial have different meanings and connotations. Trial may refer to the reception of evidence and

other processes. It embraces the period for the introduction of evidence by both parties. Hearing, as known in law, is not confined to trial but embraces the several stages of litigation, including the pre-trial stage. A hearing does not necessarily mean presentation of evidence. It does not necessarily imply the presentation of oral or documentary evidence in open court but that the parties are afforded the opportunity to be heard. A careful analysis of Section 5 of RA 1379 readily discloses that the word hearing does not always require the formal introduction of evidence in a trial, only that the parties are given the occasion to participate and explain how they acquired the property in question. If they are unable to show to the satisfaction of the court that they lawfully acquired the property in question, then the court shall declare such property forfeited in favor of the State. There is no provision in the law that a full blown trial ought to be conducted before the court declares the forfeiture of the subject property. Thus, even if the forfeiture proceedings do not reach trial, the court is not precluded from determining the nature of the acquisition of the property in question even in a summary proceeding.
[9]

Due process, a constitutional precept, does not therefore always and in all situations require a trial-type proceeding. The essence of due process is found in the reasonable opportunity to be heard and submit ones evidence in support of his defense. What the law prohibits is not merely the absence of previous notice but the absence thereof and the lack of opportunity to be heard. This opportunity was made completely available to respondents who participated in all stages of the litigation.
[10]

When the petition for forfeiture was filed at the Sandiganbayan, respondent Marcoses argued their case and engaged in all of the lengthy discussions, argumentation, deliberations and conferences, and submitted their pleadings, documents and other papers. When petitioner Republic moved for summary judgment, respondent Marcoses filed their demurrer to evidence. They agreed to submit the case for decision with their opposition to the motion for summary judgment. They moved for the reconsideration of the Sandiganbayan resolution dated September 19, 2000 which granted petitioner Republics motion for summary judgment (which was in fact subsequently reversed in its January 31, 2002 resolution.) And when the case finally reached this Court, respondent Marcoses were given, on every occasion, the chance to file and submit all the pleadings necessary to defend their case. And even now that the matter has been finally settled and adjudicated, their motion for reconsideration is being heard by this Court.

For twelve long years, respondent Marcoses tried to stave off this case with nothing but empty claims of lack of knowledge or information sufficient to form a belief, or they were not privy to the transactions, or they could not remember (because the transactions) happened a long time ago or that the assets were lawfully acquired. And they now allege deprivation of their right to be heard and present evidence in their defense? It would be repulsive to our basic concepts of justice and fairness to allow respondents to further delay the adjudication of this case and defeat the judgment of this Court which was promulgated only after all the facts, issues and other considerations essential to a fair and just determination had been judiciously evaluated. Petitioner Republic has the right to a speedy disposition of this case. It would readily be apparent to a reasonable mind that respondent Marcoses have been deliberately resorting to every procedural device to delay the resolution hereof. There is justice waiting to be done. The people and the State are entitled to favorable judgment, free from vexatious, capricious and oppressive delays, the salutary objective being to restore the ownership of the Swiss deposits to the rightful owner, the Republic of the Philippines, within the shortest possible time. The respondent Marcoses cannot deny that the delays in this case have all been made at their instance. The records can testify to this incontrovertible fact. It will be a mockery of justice to allow them to benefit from it. By their own deliberate acts not those of the Republic or anybody else they are deemed to have altogether waived or abandoned their right to proceed to trial. Respondent Imelda R. Marcos likewise asserts that the factual finding that the foundations involved in the instant forfeiture proceedings were businesses managed by her and her late husband, will adversely affect the criminal proceedings filed by the Republic against her. The contention is bereft of merit. The criminal cases referred to by said respondent are actions in personam, directed against her on the basis of her personal liability. In criminal cases, the law imposes the burden of proving guilt on the prosecution beyond reasonable doubt, and the trial judge in evaluating the evidence must find that all the elements of the crime charged have been established by sufficient proof to convict. But a forfeiture proceeding is an action in rem, against the thing itself instead of against the person. Being civil in character, it requires no more than a preponderance of evidence. And by preponderance of evidence is meant that the evidence as a whole adduced by one side is superior to that of the other. Hence, the factual findings of this Court in its decision dated July
[11] [12]

15, 2003 will, as a consequence, neither affect nor do away with the requirement of having to prove her guilt beyond reasonable doubt in the criminal cases against her. One final note. We take judicial notice of newspaper accounts that a certain Judge Manuel Real of the US District Court of Hawaii issued a global freeze order on the Marcos assets, including the Swiss deposits. We reject this order outrightly because it is a transgression not only of the principle of territoriality in public international law but also of the jurisdiction of this Court recognized by the parties-in-interest and the Swiss government itself. WHEREFORE, the motions for reconsideration are hereby DENIED with FINALITY. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Carpio, J., no part.

FIRST DIVISION

[G.R. No. 149808. November 27, 2003]

PEOPLE OF THE LOPEZ, appellant.

PHILIPPINES, appellee, DECISION

vs.

BENJAMIN

YNARES-SANTIAGO, J.:

Appellant Benjamin Lopez was charged before the Regional Trial Court of Panabo, Davao, Branch 34, in Criminal Case No. 97-196 with the crime of rape in an Information which reads:
[1]

That on or about August 16, 1997, in the municipality of Carmen, Province of Davao, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with long firearm and batangas knife, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of Louvella Gillen y Manulat, a 15 year old girl, against her will.

CONTRARY TO LAW. On arraignment, appellant pleaded not guilty. Trial on the merits ensued. The prosecution presented as witnesses Louvella Gillen, Jonathan Gaita and Dr. Eleanor Salva while the defense presented Guillermo Garbino, Crestito Ellar, Rolando Deocampo, Bonifacio Geraldo and the accused himself. The facts: On August 16, 1997 at 11:00 p.m., complainant Louvella Gillen, Rene Sarita, Jonathan Gaita and a certain Tata were walking towards San Francisco, Panabo, Davao after attending a barrio fiesta. They stopped to take a short rest at Mabuhay National High School. Suddenly, a tall, mediumbuilt and barefoot man appeared from nowhere carrying a long firearm. He was sporting a moustache and was wearing a black t-shirt and short pants with a jacket tied around his waist. The man, who turned out to be appellant, pointed the gun at them and told Louvellas companions to leave. He threatened to shoot them if they will not heed his instructions, so Rene, Jonathan and Tata were constrained to flee for safety and leave behind Louvella with the intruder. Appellant pointed the gun at Louvellas back and forced her to walk towards Puyad Farms, a banana plantation nearby. Louvella begged appellant to let her go but to no avail. Upon reaching the banana plantation, appellant forced Louvella to undress. She tried to fight back, but appellant pressed a knife at her back. He then forcibly removed Louvellas undergarments, fondled her breasts, kissed her neck, and succeeded in having sexual intercourse with her. On August 18, 1997, Louvella went to Dr. Eleanor Salva to undergo a gynecological examination. Dr. Salva found that Louvella suffered recent abrasions on the right upper portion and lower portion of her labia majora, about two to three days old. She concluded that Louvella was indeed a victim of rape. That same day, Louvella executed an Affidavit-Complaint at the Carmen Police Station against appellant for rape.
[2]

Appellant denied the charge against him. He averred that from 7:00 p.m. to midnight of August 16, 1997, he was in the vicinity of the basketball court where an amateur singing contest was being held. After midnight, he went home together with Guillermo Garbino and Leonardo Corcuera. On their way home, they met Louvella who informed them that she was raped near the

school by a man who was wearing short pants and mask. According to appellant, he even gave Louvella a glass of water and also requested a passerby to accompany her to Dalisay Village where she lives. Cristito Ellar, whose house was about ten meters away from the place where the singing contest was held, testified that on August 16, 1997 from around 10:30 p.m. to 12:30 a.m., appellant was near the vicinity of the basketball court and that he never saw him leave. He admitted, however, that there is a banana plantation nearby which can be reached in five minutes from the basketball court. Another defense witness, Rolando Deocampo, testified that on the night of the incident, he saw appellant at the multi-purpose hall discharging his duties as a Civilian Volunteer Organization member. He left the multi-purpose hall at around 12:30 a.m. and, while on his way home, he met Louvella who was visibly distraught. He asked her what the matter was but the latter ignored him and proceeded towards the multi-purpose hall. Guillermo Garbino also testified that on the night of the incident he saw appellant near the vicinity of the multi-purpose hall and he even asked him to get rattan chairs from the house of ex-barangay captain Leonardo Corcuera. After the amateur singing contest, he went home with other persons, including appellant. On their way home, they met Louvella, who told them that she was raped by someone she could not identify because he was wearing a black bonnet. Bonifacio Geraldo testified that he was the one who took down Louvellas statement in the blotter wherein she stated that she failed to identify the person who raped her because he was wearing a bonnet and that it was nighttime. On June 6, 2001, the trial court rendered a decision, the dispositive portion of which reads:
[3]

WHEREFORE, the Court finds Benjamin Lopez with having raped Louvella Gillen and sentences him to suffer the penalty of reclusion perpetua, to pay Louvella Gillen indemnity ex delicto of P50,000.00 and moral damages of P50,000.00 and to suffer accessories provided by law. SO ORDERED. Hence, this appeal, raising the following assignment of errors:
1. The lower court erred in holding that the victim Louvella Gillen positively and repeatedly identified Benjamin Lopez as her rapist; and

2. The lower court erred in holding that the presumption of innocence in favor of the accused has been overcome.

More specifically, appellant cites the inconsistency between Louvellas claim that she could identify her rapist through his physical appearance, moustache and voice, and her admission that she only learned for the first time the name of Benjamin Lopez after the incident and she never spoke to him before. We are not convinced. We simply cannot discount the possibility that Louvella could recognize appellant by his voice considering that appellant and Louvellas mother worked in the same banana plantation. At one time or another, Louvella must have heard appellant speak and therefore recognized his voice. Besides, the most natural reaction of victims of violence is to strive to see the appearance of the perpetrator of the crime and observe the manner in which the crime is being committed. A person may be identified not only by his face or voice but also by his physique. Louvellas failure to initially identify her rapist by name is not fatal considering that she subsequently and satisfactorily established his identity by means of his physique and voice.
[4] [5]

In any case, the issue of whether appellant was identified as the perpetrator of the crime is a question of credibility. It is well-entrenched in this jurisdiction that factual findings of the trial court on the credibility of witnesses and their testimonies are entitled to the highest respect and will not be disturbed on appeal in the absence of any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance that would have affected the result of the case. Having seen and heard the witnesses themselves and observed their behavior and manner of testifying, the trial judge was in a better position to determine their credibility.
[6]

By way of defense, appellant could only interpose alibi. The twin requirements for the defense of alibi to be plausible are: first, they must prove that they were nowhere in the vicinity of the crime at the time of its commission; they must prove that they were somewhere else instead; second, they must prove that it was highly impossible for them to be present at the crime scene at the time of its occurrence. Where there is even the least chance for the accused to be present at the crime scene, the defense of alibi will not hold water. At the time of the commission of the crime, it is undisputed that appellant was only one hundred to two hundred meters away from the crime scene. He thus failed to prove the physical impossibility of his being present at the place where the crime was committed. Appellants alibi therefore deserves no consideration at all.
[7] [8]

Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, which was the law in effect at the time of the commission of the crime, provided: 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 and intimidation; xxx xxx xxx

The crime of rape shall be punished by reclusion perpetua. The trial court correctly imposed the penalty of reclusion perpetua on appellant. It likewise properly awarded the amount of P50,000.00 as civil indemnity which is mandatory upon a finding of rape as well as the award of P50,000.00 as moral damages which needs no proof since it is presumed that the rape victim suffered moral injuries.
[9] [10]

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Panabo City, Branch 34, in Criminal Case No. 97-196, finding appellant Benjamin Lopez guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua and to pay P50,000.00 as civil indemnity and P50,000.00 as moral damages, is AFFIRMEDin toto. Costs de oficio. SO ORDERED. Davide, JJ., concur. Jr., C.J., (Chairman), Panganiban, Carpio and Azcuna,

SECOND DIVISION

[G.R. No. 150382. October 2, 2003]

PEOPLE OF THE BASITE, appellant.

PHILIPPINES, appellee, DECISION

vs.

EDDIE

BELLOSILLO, J.:

EDDIE BASITE was convicted by the trial court of simple rape, sentenced to reclusion perpetua and ordered to pay complaining witness P50,000.00 as civil indemnity and P50,000.00 as moral damages. He now appeals his conviction.
[1]

Sonia Pa-ay, a polio victim, was at the time of the rape nineteen (19) years old and a student of midwifery at the Cordillera College, Buyagan, La Trinidad, Benguet. On 1 September 1996 at around 10:30 in the morning, Sonia was in Natuel, Buguias, Benguet, on her way to her parents home in Tinoc, Ifugao, to get her allowance. As she was walking, she met Eddie Basite who was headed towards the opposite direction. They passed by each other. A few seconds later, Sonia heard footsteps behind her. When she looked back she saw Eddie Basite following her. He reached her, held her by both hands and told her to go down with him. Sonia resisted. But the accused Eddie Basite pulled out a knife from his waistband, thrust it at her neck and threatened to stab her if she continued to resist. He ordered her to lie down on the ground and out of fear she obeyed. The accused undressed himself and forcibly removed Sonias pants and underwear. He placed himself on top of her, inserted his penis into her vagina and made a push and pull movement. Sonia felt pain in her vagina. She resisted but the accused threatened to stab her. When he was through with the sexual assault, he warned her not to relate the incident to anyone or else he would stab her. Sonia pleaded with the accused to allow her to go home. Upon seeing that the accused had laid down his knife beside her head while he was putting on his clothes, Sonia grabbed the knife and stabbed him on the left shoulder. Wounded, the accused ran away. Sonia tried to put on her clothes, but losing her balance she rolled down the cliff and lost consciousness. When she recovered, she felt pain all over her body and could not find her bearings in her weakened state. She fell asleep and woke up at around midnight. She made her way up the mountain by the light of the moon. She reached the place where she was raped and rested for a while until she decided to continue on her way to her parents house in Tinoc, Ifugao. Along the way she passed by a house where she was offered camote to eat. While she was eating some soldiers arrived and offered to accompany her home. On their way they met four (4) men, one of whom turned out to be a brother of the accused who identified Eddie Basite as the person described

by Sonia. He proposed that they go to the place where the rape allegedly took place. When they reached the crime scene Sonia found her bag and retrieved it. The brother asked Sonia to go with him to Abatan to see Eddie and talk to him and their relatives but she refused. Sonia proceeded instead to Monsoyohoy to wait for her uncle Nazario Habungan who, she learned earlier, was going home and would pass by Monsoyohoy. As she was walking towards Monsoyohoy she met her uncle Nazario and other relatives on the way and she narrated her ordeal to them. Together with some companions they proceeded to the Abatan Police Station to report the incident and to file a complaint. As they were passing through Bot-oan on their way to Abatan they saw Eddie alighting from a yellow Ford Fiera. He appeared to have injured his right hand. Nazario approached the accused and held him by the shoulder and told him to go with them to Abatan. Eddie pushed Nazarios arm and ran away. Nazario and his companions gave chase and caught up with the accused.
[2]

Gilbert Sacla, testifying for the prosecution, said that he saw Nazario and his companions run after the accused. Since he was then the Barangay Captain of Bot-oan, Gilbert called a stop to the commotion. He learned that Eddie was being accused of having molested Sonia. Gilbert brought Eddie to the police station. The accused went with him willingly.
[3]

At the police station, Sonia was advised to undergo medical examination. She went to the Abatan Emergency Hospital for the physical examination, and to the Lutheran Hospital for the laboratory tests. She was issued a medical certificate. The following day, 3 September 1996, Sonia filed her Sworn Statement and a criminal complaint was formally lodged with the Fiscals Office against Eddie Basite.
[4] [5]

On 2 October 1996 an Information for Rape was filed against the accused who pleaded not guilty when arraigned. A Motion for Bail was filed but it was denied.
[6] [7]

The prosecution presented Dr. Relante Raper of the Abatan Emergency Hospital who testified on the medical findings he made upon examination of Sonia Pa-ay. When Sonia presented herself for examination, Dr. Raper observed that her clothes were muddy. He found mud on her right breast and on her pubic hair. There were multiple healing scratches and contusions on her arms, legs and inner thighs which could have been caused by the application of an external force or the impact of a fall. Internal examination revealed that there were no lacerations, scratches or bleeding on the perineal area and her hymen was intact. The vagina admitted one (1) finger with difficulty. A whitish mucoid discharge found over the labia minora was sent to

the Lutheran Hospital for microscopy. Examination of the discharge yielded negative for sperm. Dr. Raper clarified that it was possible, even for a married woman, to have an intact hymen since there are some hymen that are very elastic.
[8] [9] [10]

The accused denied having raped Sonia. To support his defense, the accused presented two (2) witnesses, Lidot Lacbao and Dr. Ronald Bandonill. Lidot Lacbao recalled that in the early morning of 2 September 1996 he received complainant Sonia Pa-ay in his home and offered her camote to eat. The girl was limping. She had scratches on her arms and legs and her clothes were muddy. The girl told him that she had slept in the forest and that she met a man who accosted her but that she stabbed him. Lidot asked her if she had been raped. She replied that she had not been raped since she stabbed the man and if she did not, he would have done something to her.
[11]

The accused presented Dr. Ronald Bandonill of the NBI-CAR, Baguio City, as an expert witness to dispute the findings of prosecution witness Dr. Relante Raper. Based on Dr. Rapers findings that there was no bleeding or scratches inside the genitalia and that the injuries were only outside the genital area and on the upper and lower extremities of Sonia, Dr. Bandonill opined that there was no insertion into the vagina and there was no physical contact or sexual intercourse. Otherwise, the genital area would have shown signs of trauma such as inflammation, redness, swelling and even bleeding if the hymen was the type that was easily lacerated. Dr. Bandonill added that the Medico-Legal Certificate issued by Dr. Raper was incomplete and incomprehensive and not compatible with standard Medico-Legal Reports of the NBI in rape cases.
[12] [13]

The trial court agreed with Dr. Bandonill that the Medico-Legal Certificate issued by Dr. Raper was insufficient to conclude that sexual intercourse actually took place, since it failed to indicate whether the labia and vagina of private complainant were thoroughly examined to determine sexual contact. However, it still found the accused guilty beyond reasonable doubt of the crime charged based on Sonias spontaneous, forthright and positive testimony identifying the accused as the person who raped her.
[14]

Accused-appellant assails the decision of the trial court. He argues that the trial court already entertained reasonable doubt as to his guilt when it ruled that the Medico-Legal Certificate issued by Dr. Raper was incomprehensive and inconclusive as to the occurrence of sexual contact between him and complainant. Accused-appellant reasons that the court a quo should have taken this point in his favor and acquitted him. Furthermore, the credibility of private complainant is suspect as her testimony is

inconsistent with the testimonies of the other witnesses, particularly Lidot Lacbao and Dr. Raper. Sonias testimony, if related to the testimonies of these two witnesses, would supposedly establish the untrustworthiness of her version of the events. Sonia allegedly confessed to Lidot Lacbao that she had not been raped by accused-appellant, and that she had stabbed her assailant before he could do anything wrong to her. Sonias declarations that she felt pain and blood in her vagina are belied by the medical finding that her hymen is intact. Dr. Raper also found that there were multiple healed scratches and contusions on her arms and legs which may have been caused by her fall, but it is doubtful that these wounds would have been healed the very next day when she was examined by the doctor. The trial court allegedly erred in not taking these testimonies into consideration and relying solely on the declarations of Sonia, and in disregarding Dr. Bandonills expert testimony, especially in view of its ruling that the Medico-Legal Certificate was inadequate to prove the alleged sexual intercourse. The accused fails to persuade us. In rape offenses, the lone testimony of the complainant, if credible, straightforward, convincing and otherwise consistent with human nature and the ordinary course of things, may stand to convict the accused. The credibility of the complainants testimony is of utmost significance. In this case the trial court gave credence and full probative weight to the testimony of Sonia Pa-ay.
[15]

We have consistently held that this Court will not disturb the findings of the trial court as to the credibility of witnesses. The trial court can best evaluate the credibility of witnesses and their testimonies because of its opportunity to observe the witnesses and their demeanor, conduct and attitude especially under cross-examination. Its assessment is respected unless certain facts of substance and value were overlooked which, if considered, might affect the result of the case.
[16]

There is nothing on record that would impel us to deviate from the findings and conclusion of the trial court. Sonia Pa-ay testified in a categorical, straightforward and consistent manner. As observed by the trial court, she tearfully narrated the details of the sexual abuse she suffered at the hands of accused-appellant and the circumstances leading and subsequent thereto. She unwaveringly and positively identified Eddie Basite as her defiler without any purpose other than to seek justice for the crime committed against her. Accused-appellant failed to impute any motive against complainant that would tarnish her credibility at the witness stand.
[17] [18]

Accused-appellant harps on the fact that the trial court discounted the Medico-Legal Certificate issued by Dr. Raper. This allegedly shows reasonable doubt as to the fact of sexual intercourse between accusedappellant and private complainant. On this matter, jurisprudence holds that even without a medical examination, the accused may still be convicted of rape as long as the testimony of the complainant meets the test of credibility and resolutely points to the accused as the author of the crime. A medical certificate is not indispensable to prove rape.
[19]

The defense further avers that Sonias testimony of rape is inconsistent with the findings of Dr. Raper that there were no lacerations in her vagina and that her hymen was intact. But the absence of fresh lacerations in the vagina does not prove that private complainant was not sexually abused. For rape to be consummated, rupture of the hymen is not necessary, nor is it essential that the vagina sustains a laceration. Research in medicine even points out that negative findings are of no significance, since the hymen may not be torn despite repeated coitus. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina, is sufficient to warrant conviction. In this case, Sonia categorically testified that accused-appellant inserted his penis into her vagina and she felt pain when he did so.
[20] [21]

Sonias testimony is also alleged to be inconsistent with Lidot Lacbaos statement that she denied having been abused by the man who accosted her. If we look at the records however, Lidot Lacbaos statement would be inconsistent with the attitude of disclosure that Sonia so far had with the other people she met after the rape incident. Sonia related what had happened to her, i.e., she had been raped by accused, to the soldiers who came to the house and who offered to accompany her home to report the incident to the barangay, and to the four (4) men she and the soldiers met while on their way. One of the four (4) men was accuseds brother, who himself identified the accused and offered to bring Sonia to his relatives to talk things over. She later met her uncle and told him she had been raped. Lidot Lacbaos testimony becomes doubtful when viewed against the whole of complainants behavior after the rape and her testimony during trial.
[22] [23] [24]

As to the opinions of defense expert witness Dr. Bandonill, it is important to note that the testimony of expert witnesses must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it. It has been said of expert testimonies [25]

Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they may choose upon such testimonies in accordance with the facts

of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which deserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect. The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of abuse of discretion.
[26]

Dr. Bandonills expertise in the medical examination of rape victims was displayed in court. He clearly explained the external and internal changes that happen to a womans body after consensual intercourse and rape, and what findings may be had in the examination of a rape victim. Dr. Bandonills opinion on the rape case is based on the findings made by Dr. Raper in his Medico-Legal Certificate. He did not personally examine private complainant. Based on the Medico-Legal Certificate alone, Dr. Bandonill surmised that there was no sexual contact between accused-appellant and complainant. He was however also of the view that the physical examination and Medico-Legal Certificate of Sonia Pa-ay were incomplete and not comprehensive as compared to the required Medical Report of the NBI. As the trial court found, the Certificate failed to indicate whether the labia and vagina of the private complainant were thoroughly examined to determine if sexual contact took place.
[27] [28]

That the trial court considered Dr. Bandonills expert testimony to rule on the sufficiency of the Medico-Legal Certificate issued by Dr. Raper does not mean that the court a quo doubted accused-appellants guilt. The trial court merely used Dr. Bandonills testimony to determine for itself if that MedicoLegal Certificate would satisfactorily show the results of a complete and thorough physical examination of Sonia Pa-ay, consistent with the physical examinations being conducted by the NBI and Dr. Bandonill. Accused-appellant finally contends that the trial court should have considered the mitigating circumstance of voluntary surrender in his favor. He explains that he voluntarily surrendered to then Barangay Captain Gilbert Sacla, and willingly went with him and complainants relatives to the police station in Abatan. We are not persuaded.

A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because he acknowledges his guilt, or he wishes to save them the trouble and expense necessarily incurred in his search and capture. If none of these two (2) reasons impelled the accused to surrender, because his surrender was obviouslymotivated more by an intention to insure his safety, his arrest being inevitable, the surrender is not spontaneous.
[29]

The conduct of accused-appellant after the commission of the offense, of running away after having been stabbed by private complainant and of fleeing from complainants relatives when they tried to bring him to the authorities, do not show voluntary surrender as contemplated under the law. It appears that accused-appellant willingly went to the police authorities with Gilbert Sacla only to escape the wrath of private complainants relatives who were pursuing him and who appeared to be thirsting for his blood. In the instant case, the guilt of accused-appellant Eddie Basite has been proved beyond reasonable doubt. Paragraph 1 of Art. 335 of The Revised Penal Code punishes with reclusion perpetua an accused who has carnal knowledge of a woman with the use of force or intimidation. The use of a deadly weapon, which would otherwise have qualified the crime, is not alleged in the Information, hence even if proved, may not be appreciated against accused-appellant. WHEREFORE, the assailed Decision of the court a quo finding accusedappellant EDDIE BASITE guilty of simple rape and sentencing him to reclusion perpetua and to pay complaining witness Sonia Pa-ay the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages is AFFIRMED. Costs against accused-appellant. SO ORDERED. Quisumbing, Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

THIRD DIVISION

[G.R. No. 128882. October 2, 2003]

PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL AYUDA, appellant. DECISION

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 4th 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 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.
[1]

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) 2) 3) to a penalty of Reclusion Perpetua; to indemnify Gloriphine Seno the amount of P30,000.00; and to pay the costs.

SO ORDERED.
Appellant, in his brief, submits the following assignments of error:

I. II.

THE LOWER COURT ERRED IN FINDING THAT RAPE WAS COMMITTED. THE LOWER COURT ERRED IN FINDING THE TESTIMONY OF GLORIPHINE SENO TO BE FORTHRIGHT, POSITIVE AND EMPHATICALLY UNSULLIED BY INCONSISTENCIES, CONTRADICTIONS OR MENDACITIES. THE LOWER COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF GLORIPHINE THAT SHE WAS THREATENED WITH A GUN BY ACCUSED AND THEN RAPED.

III.

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. 2.

By using force or intimidation; 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:

xxx
PROSECUTOR PAG-ONG ON DIRECT EXAMINATION: xxx Q A Q A Q A Q A Q A On May 4, 1993, at about 2:00 oclock in the early dawn, can you still remember where were you? I was going home with my younger sister, sir. Who is that younger sister of yours? Jonelyn Seno, sir. Where did you come from by the way at that time? From the dancing hall, sir. You mean you attended the benefit dance on May 3, 1993? Yes, sir. Up to the early dawn of May 4, 1993? We were already going home in the early dawn, sir. xxx Q While you were on your way home from the dancing hall together with your younger sister, what happened if there was any?

I was accompanied by Joel Ayuda, sir. xxx

Q A Q A

x x x. Are you referring to Joel Ayuda, the accused in this case? Yes, sir. If Joel Ayuda is in the courtroom now, will you kindly point at him? 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 A Q A

When the accused approached and accompanied you, where did you go? He told me to stop at the waiting shed and at the waiting shed he pointed to me his gun, sir. At what portion of your body was the gun pointed? Here, sir, at my right cheek. xxx

Q A

Now, after accused Joel Ayuda pointed his gun to you, what happened next? He dragged me to the grassy place, sir. xxx

Q A Q A

What happened when you were brought to the grassy place? He told me to undress, sir. Who removed your dress. He, sir. xxx

Q A Q A Q A Q A Q A Q

What was your dress during that time? Polo, sir. Were you wearing trousers? A polo and a trouser, sir. Which was removed by the accused, your polo or your trouser? He first removed my trouser, sir. After he removed your trouser, what did the accused do to you? He removed my panty, sir. What happened to your panty which was removed by the accused Joel Ayuda? It was torn, sir. 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?

xxx A Because my menstruation just ended, sir. xxx Q A Q After your long pants and two panties were removed by the accused Joel Ayuda, what did he do to you? He made me lie down and placed himself on top of me, sir. Before he placed himself on top of you, what did the accused Joel Ayuda do to his pants? xxx A He removed his pants. xxx Q A While he was on top of you, what was he doing? He made a push and pull movement, sir. xxx Q A Q Aside from the push and pull movement that he made, what did he do to you? He pointed his gun to me, sir. Aside from that, what did the accused Joel Ayuda do with his penis? xxx COURT: The best way to be done here is to let the witness explain the meaning of sakyodsakyod. Q A What do you mean by the sakyod-sakyod, Miss Seno? 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. xxx PROSECUTOR PAG-ONG: Q After the accused Joel Ayuda inserted his penis to your vagina, what did he do next? xxx A The gun was pointed to me, sir.

Q A Q A Q A Q A Q A Q A

How long did the sexual intercourse committed by the accused take? Only a few minutes, sir. Could it be five (5) minutes? Maybe, sir. What did you feel when the accused inserted his penis to your vagina? Painful, sir. When the accused inserted his penis to your vagina, what did you do? I cried, sir. Why did you cry? Because I was abused, sir. While the accused Joel Ayuda was on top of you performing the sexual intercourse, where was his firearm? He held the gun with his left hand and used it as support (gitukod).

COURT: Q A What did he do with his gun? He pointed it to my face, your Honor. xxx Q After accused Joel Ayuda raped you, what happened next? xxx 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. In People 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. Puno, (Chairman), Panganiban, and Carpio-Morales, JJ., concur. Corona, J., on leave.

SECOND DIVISION

[G.R. No. 122765. October 13, 2003]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. EDGARDO VARGAS Y LUCERO, appellant. DECISION
CALLEJO, SR., J.:

This is an appeal from the Decision of the Regional Trial Court, Branch 38, Iloilo City, finding appellant Edgardo Vargas y Lucero guilty of murder, sentencing him to suffer the penalty ofreclusion perpetua, and to pay the heirs of SPO1 Alfredo Dan Cocjin y Magnaye the sum of P22,785.00 as actual damages, and P50,000.00 as civil indemnity ex delicto, and the costs of the suit.
[1]

Job Bieren, a laborer and a resident of Sto. Domingo, Barotac, Iloilo, had been dishonorably discharged from the Philippine Constabulary for being absent without going on official leave. At around 1:00 p.m. on January 4, 1992, he went to the basketball court located in the town plaza of Banate, Iloilo. He had earlier agreed to meet his friend Clark Batzar, for a game of basketball. Job waited for an hour or so, but Clark did not show up. Job decided to leave the place and proceeded to the house of Jose Vargas located at Zona Sur, Banate, Iloilo, to watch the daily double, an illegal local gambling game. He passed through the fence at the back door of the house, and arrived thereat at around 2:30 p.m. Among the people in the house were Edgardo Dodoy Vargas, who had been appointed as Commander of the Civilian Volunteers Organization by his cousin Mayor Jonathan Sanico, and SPO1 Alfredo Dan Cocjin, who had just been transferred from the Banate to the Barotac Viejo Police Station.
[2]

Job gravitated to the balcony while waiting for the games to start. Suddenly, there was a commotion and pandemonium ensued. People fled

from the house. Job saw Edgardo as the latter collared SPO1 Cocjin with his left arm and with his right hand pointed a pistol at the policemans right temple. Job was about five meters away. Edgardo dragged SPO1 Cocjin away from the house, through a narrow passageway leading to the national highway. Edgardo then shot SPO1 Cocjin in the head. Edgardo stepped away from the fallen victim, and fired another shot, hitting SPO1 Cocjin at the back. Warlito Buloy Bagcal, who was outside the fence asked Edgardo, Doy, nga-a gin tira mo gid si Dan? (Doy, why did you shoot Dan?). Edgardo saw Job, and the latter was petrified. Job hurriedly left the place, passing through the back way.
[3] [4]

Dr. Rustum Larawan, a resident of Barangay Poblacion, Banate, Iloilo, reported the shooting incident to the Banate Police Station. Police investigators arrived at the scene of the incident and conducted an on-thespot investigation. SPO3 Dominador Badinas, Jr. made a sketch of the crime scene, showing the victim lying on the edge of the national highway, face up, about 93 feet away from the bamboo fence fronting the house of Jose Vargas. SPO3 Badinas, Jr. saw a trail of bloodstains, from the bamboo fence leading to the narrow passageway at the edge of the highway. Pictures of the crime scene were also taken. Despite proddings from the police investigators, no one came forward to give any details about the identity of the perpetrator or the circumstances surrounding the shooting. The shooting incident was thereafter entered in the police blotter.
[5] [6] [7]

Municipal Health Officer Dr. Ricardo H. Jaboneta performed an autopsy of the cadaver and submitted a necropsy report of his findings, thus: POSTMORTEM FINDINGS Pallor, integuments and nailbeds. Abrasion: (1) 1.5 x 1.0 cms., forearm, left side, posterior aspect, 2.0 cms. below elbow; (2) 0.6 x 0.7 cms. dorsum of right hand, over 2nd metacarpo-phalangeal joint. Contusion, 4.0 x 4.0 cms., arm, left side, lateral aspect, middle third, 12.5 cms. above left elbow. Wound, gunshot: (1) ENTRANCE, ovaloid, 0.7 x 0.5 cm., oriented upwards and backwards, edges, sutured, surrounded by abrasion collar, 0.5 cm. on its widest portion at infero-anterior border and powder burn with an area of 25.0 x 21.0 cms., temporal region, right side, 7.0 cms. from anterior midline, 155.0 cms. from right heel, directed from right to left, upwards and backwards, penetrating skull, causing punch-in fracture, right temporal bone with linear extension backwards to posterior

portion of right temporal bone and lesser wing of vomer, upwards and backwards to left parietal bone via right parietal bone into cranial cavity, lacerating right temporal lobe, medulla, and left temporal of the brain causing punch-out fracture, left temporal bone with linear extension upwards to left parietal bone and finally make an EXIT, stellate in shape, 0.7 x 0.8 cm., temporal region, left side, 14.5 cms. from anterior midline, 156.0 cms. from left heel; (2) ENTRANCE, ovaloid, 0.5 x 0.6 cm., oriented upwards and medially, edges, sutured, inverted, back, left side, 7.0 cms. from posterior midline, 115.0 cms. from left heel, directed upwards medially forwards, penetrating abdominal wall, causing punch-in fracture, 6th rib, left side, along paravertebral line into abdominal cavity, penetrating left ileopsoas muscle at the level of 6th thorasic (sic) vertebra where a copper fragment lodged and recovered, penetrating thru and thru, abdominal aorta, mesentery, anterior edge of left lobe, liver into rectus abdominal muscle where a copper fragment lodged and recovered at left epigastric region. Subarachnoidal hemorrhage, massive, extensive. Hemothorax, left side, 1200 cc., clotted blood. Lungs, voluminous, congested, cripitous. Heart, covered with minimal amount of fatty tissues. Ventricular chambers, empty. Coronary arteries, patent. Other visceral organs, pale. Stomach, full, rice and beans, partly digested. CAUSE OF DEATH: Massive brain laceration secondary to gunshot wound on the head. R E MA R K S: Body, previously embalmed. Date report submitted: 10 January 1992.
[8]

Job opted not to report the shooting incident to the police authorities or to the NBI because he did not want to be involved. Job also felt that Edgardo knew very influential people, including Mayor Sanico. However, in August of 1992, Job had a change of heart and decided to reveal what he knew about the shooting incident to the police authorities of Sta. Barbara, Iloilo. On August 2, 1992, Job arrived at the Office of the Investigation Section of 324th PNP Mobile Field Force Company, District II, Brgy. San Sebastian, Sta. Barbara, Iloilo, and disclosed what he knew about the killing of SPO1 Cocjin on January 4, 1992. He gave a sworn statement to SPO3 Dwight Maluda, identifying Edgardo as the assailant.
[9]

An Information for murder was filed against Edgardo, which reads:

The Provincial Prosecutor of Iloilo, through the undersigned, accuses EDGARDO VARGAS Alias Dodoy of the crime of MURDER, committed as follows: That on or about January 4, 1992, in the Municipality of Banate, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and decided purpose to kill, armed with a short firearm, with treachery and without any justifiable cause or motive, did then and there willfully, unlawfully and feloniously assault, attack and shoot SPO1 DAN COCJIN with the weapon accused was then provided, hitting the victim on the head, which caused his instantaneous death. CONTRARY TO LAW.
[10]

During the arraignment, Edgardo, assisted by counsel, pleaded not guilty to the charge. Edgardo denied the charge against him. He testified that he had been appointed by his cousin, then Municipal Mayor Jonathan Sanico as Chief of the Civilian Volunteers Organization, through an Office Order dated February 5, 1991. His duties as such included giving assistance in monitoring sea vessels plying within the municipalitys area of responsibility, and enforcing the law when necessary. The volunteers used a patrol boat in their sea patrols.
[11] [12]

The appellant averred that he and the victim were goods friends. They had drinking sessions, and even dined together during then Vice-Mayor Nemesio Babes birthday party held on December 29, 1989. In fact, they even had a picture taken together during the said occasion. On January 4, 1992, he was on duty patrolling as a civilian volunteer of the Department of Agricultures Bantay Dagat program. He was with three other companions: Jonas Vargas, Arnel Deduyo and Rico Deduyo. They patrolled the seas of Banate, about two kilometers from the shoreline. Their patrol duty lasted until about 5:00 p.m. Edgardo was unarmed at the time.
[13] [14] [15]

Edgardo learned of the shooting incident at around 5:00 p.m. of January 4, 1992. He was so incensed at the brutal slaying of his friend, that he wanted to avenge the latters death. He immediately proceeded to find their team leader Ciriaco Botero, to request that a gun be issued to him, to enable him to hunt down whoever shot the victim. However, he failed to locate Ciriaco Botero.
[16]

Edgardo further testified that Job only wanted to get back at him because he, as civilian volunteer of the Bantay Dagat, had caught Job while engaged in dynamite fishing near the artificial reefs of Banate. They exchanged heated

words. Edgardo lost control of himself and slapped Job when the latter called him bolay-og. However, Job did not retaliate.
[17]

In November 1991, Edgardo again caught Job engaged in dynamite fishing. Edgardo berated Job, but did not file any charges against him. On May 1, 1992, Edgardo lost his job and left for Sapi-an, Capiz, leaving his family in Banate. When he learned in November 1992 that the RTC of Iloilo City issued a warrant for his arrest, he surrendered to the court and posted a bail bond for his provisional liberty. Jose Vargas testified that there was no daily double being held in his house on January 4, 1992. He was not related to Edgardo. He had not seen Job in his house when the shooting incident occurred. When he asked a person about the shooting, he was told that a car had just passed by. He saw Edgardo in the latters house at 5:00 p.m. that day. Policemen arrived to investigate the shooting incident, and when he was asked who shot the victim, he replied that he did not know. Moreover, Job was employed by Mayor Bacus, the official who took over for Mayor Sanico.
[18]

Warlito Bagcal testified that on January 4, 1992, he was at Barangay dela Paz and arrived at the Poblacion of Banate, Iloilo at around 2:00 to 2:30 p.m. He heard an explosion. He learned from a tricycle driver that SPO1 Cocjin had been shot. He then started his motorcycle and proceeded to the place of the shooting, where he found SPO1 Cocjin lying prostrate on the ground. He saw Juan Vargas within the vicinity, but Job was nowhere near the place.
[19] [20] [21] [22]

On February 10, 1995, the trial court rendered judgment, finding the appellant guilty beyond reasonable doubt of the crime charged. The decretal portion of the decision reads: WHEREFORE, the accused, Edgardo Vargas y Lucero, whose true name he claims to be Edgar is hereby found guilty beyond reasonable doubt for the crime of Murder penalized under Article 248 of the Revised Penal Code and is hereby sentenced to suffer a penalty of Reclusion Perpetua and to pay the heirs of SPO1 Alfredo Dan Cocjin y Magnaye the sum of P22,785.00 as actual damages and P50,000.00 as civil indemnity arising from such death. The accused being out on bail, his property bail bond is hereby cancelled. He shall remain in detention and shall not be subject to any bail pending finality of herein judgment. Cost against the accused.

SO ORDERED.

[23]

The appellant now comes before this Court, ascribing to the court a quo the following errors: I. THE HON. TRIAL COURT ERRED TO APPRECIATE THE TESTIMONY OF THE POLICE INVESTIGATOR AND BELIEVE THE TESTIMONY OF A PLANTED WITNESS OF THE PROSECUTION. II. THAT GRAVE MISAPPREHENSION OF FACTS WERE [sic] COMMITTED BY THE HON. TRIAL COURT WHEN THE CONVICTION OF THE ACCUSED WAS BASED ON CONJECTURES AND NOT BY THE PROOFS AS PROVEN. III. THAT CONSEQUENTLY, THE HON. TRIAL COURT SERIOUSLY ERRED IN SENTENCING THE ACCUSED OF RECLUSION PERPETUA BECAUSE THE ALLEGED POSITIVE IDENTIFICATION BY THE SOLE PROSECUTION WITNESS DEMOLISHES THE DEFENSE OF ALIBI OF THE ACCUSED.
[24]

The appellant argues that the trial court ignored the fact that when the police investigated the shooting incident, nobody came forward to identify him as the culprit. He asserts that the prosecutions eyewitness, Job Bieren, was a planted witness. Jobs testimony is too incredible to be believed because it took him all of seven months after the shooting incident to give his statement and to identify the appellant as the assailant. The appellant also argues that the prosecution failed to formally offer Jobs testimony in evidence; thus, the trial court likewise erred when the said testimony was considered and given credence and probative weight. The appellant insists that the trial court erred when it rejected his defense of alibi. The appeal is without merit. The appellants contention that the public prosecutor failed to offer Jobs testimony as mandated by Section 35, Rule 132 of the Revised Rules of Court is belied by the records. The rule adverted to reads: SEC. 35. When to make offer. As regards the testimony of a witness, the offer must be made at the time the witness is called to testify. . . . The party calling a witness must give a gist of the proposed testimony to enable the court and the adverse party to determine its relevancy to the issues at hand.
[25]

The transcript of the stenographic notes taken when Job testified show that the public prosecutor indeed offered Jobs testimony, thus:
Interpreter: Witness: Please state your name, age, civil status, residence and occupation. Job Bieren, thirty-four (34) years old, married, a laborer, resident of Sto. Domingo, Barotac Viejo, Iloilo.

Fiscal Cabalum: I would like to present the testimony of this witness being an eyewitness considering that he was an eyewitness to the killing of the victim SPO1 Alfredo Dan Cocjin by the accused sometime on January 4, 1992, at Brgy. Zona Sur, Banate, Iloilo.[26]

The appellant did not object to Jobs testimony when the public prosecutor offered it. Instead, the appellant cross-examined the witness The appellant did not protest when the prosecutor faultily offered its documentary and physical evidence and rested its case. The appellant even offered testimonial evidence to controvert Jobs testimony. It is now too late in the day for the appellant to assail, for the first time in this Court, the public prosecutors failure to offer the testimony of a witness before direct examination.
[27]

Job cannot be blamed for leaving the situs criminis rather than helping out the victim. It bears stressing that the appellant was armed with a gun, while Job was not. Job feared for his life. Moreover, although Job knew the victim, they were not even friends. This Court has held that not every witness to a crime can be expected to act reasonably and conformably to the expectation of mankind. In some instances, witnesses to a crime do not give succor to the victim due to fear for their personal safety. Self-preservation is still recognized as the most fundamental human instinct.
[28]

While it may be true that Job did not report the killing for some months, this does not necessarily affect his credibility. It is not unusual for a witness to show some reluctance about getting involved in a criminal case and such reticence of most people is of judicial notice. The length of delay is not as significant and pivotal as the reason of explanation of the delay, which must be sufficient and convincing.
[29] [30]

Job cannot be faulted for keeping silent and opting not to report to the police authorities the fact that he saw the appellant shoot the victim, and that he did so only seven months thereafter. Municipal Mayor Jonathan Sanico, the appellants cousin, appointed the latter as head of the Civilian Volunteers Organization under the Office of the Mayor Fearing retaliation from the appellant, the mayor and his henchmen, Job hesitated, not wanting to be involved in the incident. He was afraid to divulge to the police authorities that he witnessed the commission of the crime. It was only after Mayor Sanico lost in the election and was replaced that Job divulged what he knew about the

shooting incident. Moreover, the appellant had left Banate. The peril to his life having diminished considerably, Job found it safe to come out and report what he knew about the killing. We agree with the ruminations of the trial court, to wit: With respect to the delay of Job Bieren to report to concerned authority on what he saw and identify the accused as the assailant for more than seven months after its commission, the court finds such delay to have been sufficiently explained by said witness. He testified that he was afraid to come out to the open because they are in power and they might run after him. Obviously, he was referring to Mayor Jonathan Sanico, then the incumbent mayor of Banate, who is the first cousin of the accused. Besides, the accused was the head of the Bantay Dagat project of the local government, and a member of the CVO as he profess, with an issued firearm. In fact, the case was investigated by the Provincial Command of the Philippine National Police stationed at Sta. Barbara, Iloilo, and the criminal complaint was filed by SPO2 Hari Decena and not the local police of the Municipality of Banate. The reluctance of people out in the rural areas to report the occurrence of crime or other unusual events to the public authorities is well known. More so in this case since the accused is working with the local government under a Municipal Mayor who is his relative, the possibility of vengeance is great.
[31]

Job can hardly, if at all, be classified as a planted witness. The fact is that his testimony is corroborated by the physical evidence on record. Dr. Ricardo H. Jabonetas necropsy report shows that the victim sustained two gunshot wounds. He found powder burns on the body of the victim. Job testified that he heard a gunshot and saw the appellant pointing a pistol on the victims right temple with his right hand. He saw the appellant shoot the victim anew at the back, after the victim was dragged from the bamboo fence of Jose Vargas house to the edge of the highway. Indeed, the victim was found sprawled on the edge of the national highway. The policemen found a trail of bloodstains along the narrow passageway, to the edge of the road. This corroborates the testimony of Job, that the gunshot he heard coming from the highway was a second shot. The appellant must have already shot the victim before Job saw the appellant with his gun pointed at the victims head. Job even quoted Warlito Bagcal asking the appellant: Doy, why did you shoot Dan? There is no evidence on record that Job nurtured any ill motive to prevaricate and falsely testify that Warlito Bagcal was at the situs criminis. The presumption is that Job was not so actuated; hence, his testimony must be given credence and full probative weight.
[32]

The trial court gave credence and full probative weight to the testimony of Job and disbelieved those of Vargas and Bagcal, thus:

The cause of the prosecution draws its strength on the positive identification of Job Bieren, pinpointing to the accused as the one who shot the victim, Dan Cocjin. The principal prosecution witness remained steadfast in his testimony that he saw how the accused collared the victim, brought him out of the fence of Jose Vargas and shot him at the back. Job Bieren could not have been mistaken as to the identity of the accused as the assailant because he knew him even before the incident and he saw the accused at a distance of five (5) meters from him in broad daylight. In fact, the distance of six (6) arms-length was held sufficient to exclude any doubt in the identification of the accused. At the witness stand, he positively identified the accused as Dan Cocjins assailant. The court finds the testimony of Job Bieren worthy of credit. His testimony is clear and positive. It satisfies the court beyond reasonable doubt. Such positive identification demolish the alibi of the accused that he was at the sea on team patrol when the crime was committed. ...
[33]

The legal aphorism is that the findings of facts of the trial court, its calibration of the testimonies of witnesses and its assessment of the probative weight thereof are accorded high respect if not conclusive effect. This is precisely because of the trial courts unique advantage of observing and monitoring at close range the demeanor, deportment and misconduct of the said witnesses, unless it overlooked, ignored or misappreciated cogent facts and circumstances of substance, which, if considered, will change the outcome of the case.
[34]

In this case, we find no reason to deviate from the findings of the trial court, including its finding that appellants alibi is barren of factual basis: The alibi of the accused is unconvincing. The accused alleged he was out on routine sea patrol about two (2) kilometers from the Municipal Hall which usually take them about fifteen to thirty minutes to travel. The distance of the Municipal Hall to the scene of the crime is only about half a kilometer according to the accused. With such a distance, it is not impossible for him to be at the scene of the crime and go out on sea patrol after the commission thereof. Al[i]bi is the weakest defense an accused can concoct, In order to prosper, it must be so convincing as to preclude any doubt that the accused could not have been physically present at the place of the crime or its vicinity at the time of its commission. In the face of positive identification of the accused by prosecution witness, Job Bieren, an alibi crumbles like a sand fortress.
[35]

Other than his sole testimony, the appellant failed to adduce clear and convincing evidence to prove his alibi. He could have presented official records that he was on sea patrol on January 4, 1992, but failed to do so. He even failed to present any of his companions while on patrol to corroborate his testimony. The appellants contention that Job testified against him because he had confronted Job twice for dynamite fishing, in violation of Presidential Decree No. 704, as amended, is hard to believe. The appellant admitted that he did not even file any criminal complaint against Job for such crimes. If indeed, Job was caught fishing with the use of dynamite, the appellant should have charged Job for violation of P.D. No. 704, as amended. The appellant did not do so, and even failed to explain such failure. We likewise do not believe that Job would testify and implicate the appellant in the killing of the victim simply because the appellant slapped him. In fine, we affirm the decision of the trial court, finding the appellant guilty beyond reasonable doubt of murder, and sentencing him to reclusion perpetua. With regard to the civil liability of the appellant, the trial court awarded the heirs of the victim the amount of P22,785.00 in actual damages, as supported by receipts, and P50,000.00 as civil indemnity arising from SPO1 Alfredo Dan Cocjins death. However, the trial court failed to award moral damages. The Court finds that the decision of the trial court should be modified, since the heirs of SPO1 Alfredo Dan Cocjin are also entitled to moral damages in the amount of P50,000.00.
[36]

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Iloilo City, Branch 38, finding appellant Edgardo Vargas y Lucero guilty of murder, and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law is AFFIRMED with MODIFICATION. The appellant is ordered to pay the heirs of the victim SPO1 Alfredo Dan Cocjin P22,785.00 as actual damages; P50,000.00 as civil indemnity; and P50,000.00 as moral damages. SO ORDERED. Bellosillo, JJ.., concur. (Chairman), Quisumbing, Austria-Martinez, and Tinga,

EN BANC

[G.R. Nos. 142553-54. July 1, 2003]

PEOPLE OF THE SAYANA, appellant.

PHILIPPINES, appellee, vs. DECISION

ALBERT

PUNO, J.:

Before us for automatic review is the Decision[1] of the Regional Trial Court of Malolos, Bulacan, Branch 21, sentencing Albert Sayana to the supreme penalty of death for two counts of qualified rape. Appellant was charged with two counts of rape committed against Cheska Angelika de Dios, the daughter of his common-law wife, Alma de Dios. The Informations alleged:

Criminal Case No. 456-M-99 That on or about the 4th day of October 1998, in the municipality of Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, who was the common-law husband of the victims mother did then and there willfully (sic), unlawfully and feloniously, by means of force, threat and intimidation and with lewd designs, have carnal knowledge of Cheska Angelika de Dios y Ely, an 11-year old girl, against her will and without her consent. Contrary to law.
[2]

Criminal Case No. 457-M-99 That in or about the month of March 1997, in the municipality of Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, who was the common-law husband of the mother of the victim, did then and there willfully, unlawfully and feloniously, by means of force, threat and intimidation and with lewd designs, have carnal knowledge of Cheska Angelika de Dios y Ely, an 11-year old girl, against her will and without her consent. Contrary to law.
[3]

The prosecution evidence showed that some time in March 1997, appellant forced himself upon the daughter of his common-law wife, eleven-year old Cheska Angelika de Dios. The deed took place in their residence at Maria Lourdes Subdivision, Tabang, Plaridel, Bulacan. Cheska recounted that after dinnertime, while her mother was out of the house, appellant undressed her, laid on top of her, and made an up and down movement while he kissed her neck. She felt pain in her private part. She tried to scream but appellant covered her mouth. After the act, appellant wiped her private part, and proceeded to the bathroom to wash himself. Fear prevented Cheska from telling

her mother about the incident as she had often witnessed how appellant would beat her mother.[4] According to Cheska, appellant again violated her in the evening of October 4, 1998. As before, appellant undressed her and placed himself on top of her. Cheska felt an up and down movement, his private part touching hers. At the same time, appellant would kiss her on the neck. She felt pain in her private part. Cheska also tried to free herself from his hold but appellant pinned her hands. He also prevented her from shouting by covering her mouth. After satisfying his lust, appellant wiped Cheskas private part, and then went to the bathroom to wash.[5] Cheskas aunt, Erlinda Obuyes, told the court that Cheskas mother called her on the phone on October 5, 1998, asking her to fetch her and her children at their residence in Bulacan as appellant had mauled her. Erlinda brought Alma and her children to her home in Las Pias, Metro Manila. After two days, however, appellant came to get Alma and the children. Alma went with appellant, together with their two children, but left Cheska to the care of Erlinda. Erlinda sought the help of their other sister, Arlene Dy, to enroll Cheska at Isabelo Elementary School in Tondo, Manila so that she could continue her studies. In mid-October, while Cheska was in the bathroom, Erlinda noticed a foul-smelling yellowish substance on Cheskas underwear. Erlinda brought Cheska to a midwife, then to a gynecologist, Dr. Nieves Montinola, who advised her to bring the young girl to the National Bureau of Investigation (NBI) for examination. At the NBI, however, Erlinda did not allow Cheska to be examined because the examining officer wanted to insert a tube measuring 4 centimeters in diameter and 1 foot in length into her nieces genitalia. Cheska eventually admitted to Erlinda that appellant had abused her.[6] Upon advice of her brother, Erlinda brought Cheska to the Bulacan Provincial Crime Laboratory Office for examination. Dr. Manuel Aves, a medico-legal officer at said office, examined Cheska on October 31, 1998. The examination revealed:[7]

GENERAL AND EXTRA-GENITAL : PHYSICAL BUILT MENTAL STATUS BREAST ABDOMEN : : : : Budding Flat, soft No signs of physical injury Heavy

PHYSICAL INJURIES : GENITAL :

The vulva is erythematous : Absent

PUBIC HAIR

LABIA MAJORA LABIA MINORA HYMEN :

: :

Coaptated Light pinkish Superficial laceration healed at 12 oclock

The hymen is elastic w/diameter of 1.2 to 1.5 cm. EXTERNAL VAGINAL ORIFICE : The orifice w/ less resistance upon inserting prominent examining finger

VAGINAL CANAL CERVIX

: : rugosities smooth

PERI-URETHRAL AND VAGINAL SMEARS: NEGATIVE for spermatozoa REMARKS : The subject is in non-virgin state on time of exam.

Dr. Aves explained that the erythematous vulva was a sign that there was manipulation in that area. He also stated that the vaginal laceration could have been due to either: intercourse, masturbation or instrumentation. Dr. Aves also observed that the diameter of the hymen was too wide for Cheskas age. He said that this could have been caused by penetration of the organ, either by instrument, or using of fingers or object, or intercourse.[8] For his part, appellant interposed denial and alibi. He claimed that it was impossible for him to rape Cheska in March 1997 as he was residing in Bataan at that time while Cheska and her mother were residing in Manila. They moved to Bulacan only in October 1997. He likewise denied having raped Cheska in the evening of October 4, 1998 because at that time, he was working in Malolos town proper. He was employed as delivery driver at Chowking, Malolos Poblacion. On that day, he left the house and went to work at 3:00 in the afternoon and returned home past 11:00 in the evening. [9] Appellant swore that he treated Cheska as his own child and he did not have the heart to molest her. He belied the testimony of Erlinda Obuyes that he was mauling Cheskas mother, Alma. He narrated that on October 5, 1998, Erlinda went to their house in Bulacan to get Alma and the children and brought them to her home in Las Pias. The following day, Alma went to see him and asked him to take them back. But because he was busy, he found time to fetch them only after four days. By that time, Arlene Dy had already taken Cheska in her custody. Appellant, together with Alma and their two children, returned to their home in Plaridel, Bulacan. They lived together as

husband and wife until his parents took him back to Bataan on October 20, 1998. Appellant alleged that Almas sisters might have concocted the charges against him for several reasons. One, they were opposed to his relationship with Alma because they were cousins. Two, he disapproved of Almas habit of going to her sisters in Manila whenever they would quarrel. He said that Almas sisters resented this because it was Alma whom they would often instruct to procure illegal drugs to sustain their drug habit. Three, he knew of the sisters vice and he once threatened to expose them to Arlene Dys husband who was providing financial support to the entire family. Four, he knew of Arlene Dys illicit affair with another man and the fact that she had killed her former driver. And fifth, during one of his fights with Alma, he threatened to reveal to the authorities the whereabouts of their father who was wanted for murder. [10] Appellants alibi was corroborated by his father, Fausto Sayana, and their neighbor, Dominador Rivera, and also by his time card. Fausto Sayana and Dominador Rivera both testified that appellant lived with his parents in Morong, Bataan from February to August, 1997.[11] Appellants time card, on the other hand, showed that on October 4, 1998, he reported for work at 3:20 pm and went off duty at 9:18 pm.[12] The defense also presented Cheskas school record[13] showing that in October 1997, she transferred from A. Aquino Elementary School to Tabang Elementary School as grade II pupil. The following school year, she enrolled in third grade at Tabang Elementary School but again transferred to another school in October 1998. Another evidence proferred by the defense was the Medico-Legal Report executed by Dr. Annabelle Soliman, Medico Legal Officer at NBI who examined Cheska on October 28, 1998. Her findings indicate:[14]

GENERAL PHYSICAL EXAMINATION: Height: 144.0 cms. Weight: 100 lbs.

Fairly nourished, conscious, coherent, cooperative, ambulatory. Breast, infantile. Areolae, light brown, measures 2.5 cms. in diameter. Nipples, flat, light brown, measures 0.5 cm. in diameter. No extragenital physical injury noted. GENITAL EXAMINATION: Pubic hair, no growth. Labia majora, minora, coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, short, thin, intact. Hymenal orifice measures 1.2 cm. in diameter. Vaginal walls and rugosities cannot be reached by examining finger. CONCLUSIONS:

No evident signs of extragenital physical injury noted on the body of the subject at the time of examination. Hymen, intact and its orifice small (1.2 cm. in diameter) as to preclude complete penetration by an average-sized adult male organ in full erection without producing hymenal injury.
Giving more weight to Cheskas testimony, the trial court found appellant guilty of the charges and meted him the death penalty, thus:

All premises considered, the Court finds and so holds the accused Albert Sayana to be GUILTY beyond reasonable doubt of the crimes of Rape in Criminal Case No. 456M-99 and Criminal Case No. 457-M-99. Accordingly, he is hereby sentenced to suffer the supreme penalty of Death by lethal injection on both counts. Further, he is hereby ordered to indemnify the complaining witness Cheska Angelica de Dios in the sum ofP75,000.00 in each of the two cases. With costs against the accused. SO ORDERED.
[15]

Appellant raised the following arguments in his brief:

1. 2. 3.

The trial court misappreciated the findings of the medico-legal, Dr. Aves and disregarded the findings of the medico-legal, Dr. Soliman. The trial court erred in failing to appreciate the inconsistencies in the statement and declarations of the complainant. The trial court erred in finding that the Prosecution has established the moral certainty sufficient to overcome the innocence of the accused beyond doubt, despite the contradictions and inconsistencies of her declarations and her witness and impossibility of her story. The trial court erred in completely disregarding the defense of the accused. The trial court erred in failing to consider that complainant and her aunt were ill-motivated.
[16]

4. 5.

We reverse the decision of the trial court.

In reviewing rape cases, the Court has always been guided by the following principles: (1) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the person accused, though innocent, to disprove the charge; (2) considering that, in the nature of things, only two persons are usually involved in the crime of rape, the testimony of the complainant must be scrutinized with great caution; and (3) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense.[17] The gravamen in the crime of rape is carnal knowledge. The prosecution must prove beyond reasonable doubt that the accused had sexual contact with the alleged victim. This, the prosecution failed to do in this case. While the complainant testified that appellant forced her into sexual intercourse on two occasions, the physical evidence clouds her testimony. Records show that the complainant was examined by several doctors. However, only the reports of the last two doctors who examined her were offered as evidence. The report of Dr. Annabel Soliman, Medico-Legal Officer of the NBI shows that there were no signs of injury in complainants genitalia. In a later examination, however, conducted by Dr. Manuel Aves of the Bulacan Provincial Crime Laboratory Office, a healed superficial hymenal laceration at 12:00 position was found. Dr. Aves explained that the location of the laceration excludes sexual intercourse as possible cause thereof. Dr. Aves explained that lacerations found on the upper portion of the hymen are normally caused by instrumentation but not by sexual contact. Dr. Aves testified as follows on direct examination: xxx
Q: Will you please tell us, on the basis of this medico legal report, what were your findings in your examination? A: There are two stages of examining the victim. One is extragenital and two is genital area. In the extragenital, there was (sic) no remarkable findings. The vulva is erythematous, the full area of the genital area is inflamed, congested. There is absence of pubic hair, the labia majora is captated (sic) which is normal, the labia minora is light pinkish which is normal color and then on the hymen I noted a superficial laceration, healed at 12 oclock position and then it is also elastic with a diameter of 1.2 to 1.5 cm. which is too wide for her at her age and then the external orifice, there is a less resistance upon inserting rugositis (sic) then the cervix is smooth, negative for spermatozoa with the remarks that the subject is in a non-virgin state during the time of examination.

Q: Mr. Witness, what could be (sic) caused this vulva to become erythematous? A: There is a sign of manipulation on that area, sir.

xxx[18] On cross-examination, Dr. Aves ruled out penile penetration as possible cause of the hymenal laceration, and submitted that it was more probably caused by instrumentation, thus: xxx

Q: Now, you have this finding here superficial laceration healed at 12 oclock position, in laymans language, what do you mean here when you say 12 oclock? A: It is the position of the laceration. For example, that clock, the 12 oclock is on the upper portion, the 6 oclock position is the lower position, sir.

Q: On the basis of your experience, when you had examined the patients in connection with rape cases, is it normal in rape case that the laceration is 12 oclock or at the 6 oclock position? A: If there were (sic) sexual intercourse or penetration of the vagina, the most common of the laceration is the lower portion 5, 6, 7 oclock position, sir.

Q: When you said the most common laceration if there was sexual intercourse is 5, 6, 7 oclock position, it is unusual to have laceration at 12 oclock position? A: There is no penile penetration on that part. It might be insertion of the finger or any instrument, sir. If the laceration is 6 oclock, I said if the laceration is located at the lower portion of the area of the hymen, the most common cause is sexual intercourse or penile penetration, sir.

Q: And what do you attribute usually to the presence of the laceration at 12 oclock position? A: Usually it might be caused by insertion of fingers or any instrument, sir. Q: Would you say that such is more common with respect to the 12 oclock position? A: Yes, sir.

Q: Than sexual intercourse? A: Yes, sir.

Q: But you are precluding the possibility that it was due to penile penetration? A: Yes, sir.

Atty. Ramos: Q: Doctor, the purported laceration that you found to (sic) Cheska Angelica is at 12 oclock, you did not find any laceration at 6 oclock area? A: It is only at the 12 oclock position, sir.

Court: Q: Is it not a fact that there are some hymenal elasticity if there is sexual intercourse, (sic) you cannot find laceration? A: Yes, sir.

Atty. Ramos: Q: Mr. Witness, in the case of sexual intercourse, when a man is on top of a woman and making an up and down movement of the penis, you will agree that it is 6 oclock position would be the possible laceration? A: Yes, sir, it is common.

Q: And before the 12 oclock position could be affected, (sic) it should be the 6 oclock position in an up and down movement? A: Usually it is the 6 oclock position the most common, sir.

Q: On the basis of your findings, Doctor, what could be the cause of your finding of the laceration at 12 oclock position could it be sexual intercourse or manipulation? A: In this particular case, it is manipulation, sir.

Q: In this case? A: Yes, Your Honor.

Q: Why do you say that? A: Because the position of the laceration of the hymen, sir.

Q: The extent of the laceration? A: Yes, sir, it is too shallow.

xxx[19] The explanation given by Dr. Aves who testified for the prosecution itself, plus the fact that complainant underwent several gynecological examinations before she went to the Bulacan Provincial Crime Laboratory Office discount the credibility of the latters testimony that she has been raped. We are not unmindful of the Courts ruling that the absence of laceration in the hymen does not preclude the existence of rape and that when a woman states that she has been raped, she states all that is necessary to prove the offense. These principles, however, do not in themselves support a conviction. They must be weighed with the presumption of innocence of the accused. To support a finding of guilt, it is necessary that the complainants story be believable in itself.[20] In this case, we find complainants testimony to be unclear and marked by some doubtful allegations. For one, she failed to establish that they were already living with appellant in Tabang, Plaridel, Bulacan in March 1997, the alleged time of the commission of the first offense. She testified on direct examination that they were already residing in Tabang, Plaridel, Bulacan in March 1997. Her testimony, however, was impugned by her school records which showed that she went to school in A. Aquino Elementary School in Tondo, Manila as Grade II pupil until October 1997. It was only in October 1997 when she transferred to Tabang Elementary School in Bulacan. On cross examination, it appeared that she was unsure of the time when they moved to appellants house in Bulacan, thus: xxx

Atty. Ramos:
Cheska Angelica, last time you stated that before you lived in Plaridel, Bulacan, you were in Manila? A: Yes, sir.

Q: And you would agree with me that your address in Manila is at Solis Street, Tondo, Manila? A: Yes, sir.

Q: And you left that place sometime in October 1997? A: No, sir.

Court: When was it when you and your family transferred to (sic) Tondo to Plaridel? A: Month of January. I forgot the year and date.

xxx
Court: In Tondo, did you go to school? A: Yes, sir.

Q: What grade? A: Grade I and kinder.

Atty. Ramos: Did you not start your grade II in Tondo? A: No, sir.

Court: So, you started schooling for grade II in Tabang and not in Tondo? A: I started my grade II in Tondo and I stopped then and transferred to Tabang, Plaridel.

Atty. Ramos: And you continued your grade II in Tabang, Plaridel because at that time, you transferred your residence from Tondo to Tabang? A: Yes, sir.

Q: You transferred your grade II in Tabang, Plaridel, Bulacan sometime in January when you transferred to Plaridel? A: (no answer.)

Court: The Court will propound the question. When you were in grade II, can you recall whether it was Christmas before or after Christmas when you transferred to Tabang and ultimately you conducted your grade II in the elementary school of the latters plac(e)? A: Before Christmas, your Honor.

Atty. Ramos:

A while ago, you said that it was in the month of January when you transferred your residence from Tondo to Plaridel, now are you saying that that was also the month when you transferred to Plaridel and enrolled in Grade II? A: Yes, sir.

Court: Why did you say that you transferred before Christmas, what can you say about that? A: Before Christmas.

Q: Do you understand (what) the month of January is? A: (no answer.)

Court: The Court would like to apprise you that the month of January comes after Christmas? A: Yes, sir.

Q: So, why is it that earlier, you said that you transferred in January; whereas, in the latter part when you were asked by the Court, you said you transferred before Christmas and of course, before Christmas, did you mean that was before January when you transferred? A: I do not know.

Q: The child maybe in (sic) confused, because there were transfer of residence and transfer of school. Now, the time that you transferred, was it from the place, from the grade II in Tondo to grade II in Tabang? A: Both, your Honor.

xxx[21] The time when complainant moved to Bulacan is a material fact that must be clearly established by the prosecution because appellant could not have committed the offense if it were true that complainant was still in Manila and appellant was in Bataan at the alleged time of its commission. In addition, we observe that complainants narration of how appellant allegedly ravished her on two occasions were incredibly identical, as if lifted from a single script. We have held in several cases that the lone uncorroborated testimony of the complainant is sufficient to warrant a conviction, provided that such is credible, natural, convincing and consistent with human nature and the normal course of things. However, we have also held that the testimony of the complainant should not be received with precipitate credulity but with utmost caution. The test for determining the credibility of complainants testimony is whether it is in conformity with common knowledge and consistent with the experience of mankind. Whatever is repugnant to these standards becomes incredible and lies outside judicial cognizance.[22] Complainants testimony in this case fails to satisfy the test of credibility.

Moreover, it appears that complainants aunts have sufficient motive to concoct falsehoods against appellant. The latter mentioned several reasons why they resented him and the prosecution never refuted these allegations. The records show that these charges were filed against appellant upon the prompting of complainants aunts. In rape cases, it is the primordial duty of the prosecution to present its case with clarity and persuasion to the end that conviction becomes the only logical and inevitable conclusion. Proof beyond reasonable doubt is required. Although the law does not demand absolute certainty of guilt, it nonetheless requires moral certainty to support a judgment of conviction. Where the inculpatory facts admit of several interpretations, one consistent with accuseds innocence and another with his guilt, the evidence thus adduced fails to meet the test of moral certainty and it becomes the constitutional duty of the Court to acquit the accused.[23] Such is the case here. IN VIEW WHEREOF, appellant Albert Sayana is ACQUITTED. The Director of the Bureau of Corrections is hereby ordered to immediately release appellant from the New Bilibid Prison and to report to this Court compliance with this order within five (5) days from receipt hereof. SO ORDERED. Davide, Jr., C.J., Bellosillo, Vitug, Panganiban, Ynares-Santiago, SandovalGutierrez, Carpio, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Quisumbing, J., on leave. Austria-Martinez, J., on official leave.

EN BANC

[G.R. No. 128109. November 19, 2003]

PEOPLE OF THE ESPERAS, appellant.

PHILIPPINES, appellee, DECISION

vs. VENO

PANGANIBAN, J.:

Appellant cannot be convicted of qualified rape, because the Informations did not allege his relationship with the victim. Moreover, the latters exact age at the time the crimes were committed was not proven by the prosecution.

The Case

For automatic review before this Court is the October 18, 1996 Joint Judgment [1] of the Regional Trial Court (RTC) of Palawan, Branch 52, in Criminal Case Nos. 12552, 12707 and 12708, finding Veno Esperas guilty beyond reasonable doubt of three counts of rape. The decretal portion of the Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused VENO ESPERAS guilty beyond reasonable doubt as principal of three counts of rape as charged in: A. B. CRIMINAL CASE NO. 12,552; CRIMINAL CASE NO. 12,707; and

C. CRIMINAL CASE NO. 12,708; and as the commission of each of the offenses had been attended by the qualifying circumstance that, the offenses charged were committed against a victim below 18 years of age, and by an offender who is related to the offended party within the second degree of affinity, the accused is hereby sentenced to three (3) counts of death - one for each of the above entitled Criminal Cases in the manner prescribed by law; to pay the offended party and complainant Emie R. Adier civil indemnity of P50,000,00 for each of the three (3) offenses charged.
[2]

In three separate Informations -- one dated August 29, 1995; and two, November 7, 1995 -- Prosecutor Reynaldo R. Guayco charged appellant as follows:

Criminal Case No. 12552 That on August 4, 1995, at about 5:00 oclock in the afternoon, at Sitio Landing, Municipality of San Vicente, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, VENO ESPERAS, with violence, threat and intimidation by using a knife and with lewd design, did then and there, wilfully, unlawfully and feloniously have carnal knowledge with EMIE R. ADIER, a girl of 15 years of age, against her will and consent to her damage and prejudice.
[3]

Criminal Case No. 12707 That on the 4th day of August, 1995, at about 5:30 oclock in the afternoon, at Sitio Landing, Barangay New Agutaya, Municipality of San Vicente, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused with lewd design and by means of force, threat and intimidation with the use of a knife, did then and there, wilfully, unlawfully and feloniously have carnal

knowledge with one, EMIE R. ADIER, a girl of 15 years of age, a minor, against her will and consent.
[4]

Criminal Case No. 12708 That on the 4th day of August, 1995, at about 6:00 oclock in the afternoon, at Sitio Landing, Barangay New Agutaya, Municipality of San Vicente, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused with lewd design and by means of force, threat, and intimidation with the use of a knife, did then and there, wilfully, unlawfully and feloniously have carnal knowledge with one, EMIE R. ADIER, a girl of 15 years of age, a minor, against her will and consent.
[5]

Upon his arraignment on November 10, 1995,[6] appellant, with the assistance of counsel,[7] pleaded not guilty to all the charges. After trial in due course, the court a quo rendered the assailed judgment.

The Facts Version of the Prosecution In its Brief, the Office of the Solicitor General (OSG) presents the prosecutions version of the facts in the following manner:

In the morning of August 4, 1995, while the victim Emie Adier was cooking breakfast, her brother-in-law, appellant Veno Esperas, arrived and requested her to buy medicine for his fighting cocks and to bring it to his house after attending her class. Emie, who was then a fifteen-year old barrio lass, had cordial relations with appellant who is the husband of her sister Elnora. Emie bought the medicine after attending school. She then proceeded to appellants house at Sitio Landing, Barangay New Agutaya, San Vicente, Palawan, which is about two (2) kilometers away from her school. Only appellant was at home because his wife, the victims sister, was away teaching at the far away town of Caruray, San Vicente, Palawan, where she and her child stayed during weekdays. Upon her arrival around 5:00 in the afternoon, the victim called the appellant and told him that she already bought the medicine he requested. Appellant appeared and went down the stairs. While she was handing the medicine to him, appellant immediately held her hand, pulled her up the stairs and dragged her inside the house.

When inside the house, appellant hastily pointed a ten-inch jungle knife on Emies neck. The victim cried and shouted but appellant immediately covered her mouth with his hand. The victim told appellant not to proceed with his intentions because she treated him as her own brother but appellant told her not to treat him as her brother. Her pleas went unheeded. Appellant pushed Emie to lie down and proceeded to undress her of her uniform and underwear with his other hand. She kicked and struggled but she did not succeed in resisting appellant. Appellant thereby undressed. He then embraced and kissed the victim from her face to her vagina. Appellant placed his finger on her private part and while lying on top of the victim, inserted his organ to her vagina. The hapless victim felt pain. After about [ten] seconds, appellant removed his organ from the victims vagina and rested on top of her for 30 minutes. After resting, he again pointed his knife at Emies neck. She boxed and kicked appellant but she could not resist his strength. Appellant again inserted his organ to her genitalia and made a push and pull motion. After ravishing the victim, appellant sat and rested beside her. Emie attempted to run but appellant grabbed her and prevented her from running. In pain and feeling very weak, Emie was unable to escape. For the third time, he again poked the knife on Emies neck and once more placed his organ inside her vagina. He ravished her for ten minutes. After satisfying his lechery, appellant ordered the victim to dress up. Appellant forewarned the victim not to tell anybody, otherwise, Hindi ako aatras, papatayin ko kayong lahat. The victim who was hardly able to stand slowly dressed herself and headed home. She reached her house around 6:30 in the evening. She saw her parents and siblings but she was unable to immediately disclose her ordeal because she feared for their lives. In the succeeding days, however, her mother noticed that she looked weak and did not eat regularly. She confided to her mother three days after the incident. The victims mother went to the police. Emie executed three (3) complaints against appellant. The doctor who examined her days after the incident found that she suffered lacerations in her genitalia. The medical certificate dated August 10, 1995, signed by Dr. Ruthelma Gejon stated: Grossly Female genitalia Noted healed laceration at 3, 8 and 11 oclock Admits one finger with tenderness Negative for spermatozoa

Based on her findings, the doctor concluded that the lacerations could have been caused by penetration or trauma. (Citations omitted)
[8]

Version of the Defense Appellant interposes the defense of denial. His version of the facts is as follows:

The accused-appellant is a simple farmer, aged 25 years at the time of trial. His marriage to Elnora in 1993 was blessed with a child. Elnora teaches in a far place, which needs crossing the sea by pumpboat. During schooldays, Elnora and the child stay at her place of teaching assignment, leaving the accused-appellant alone at home to attend to their other concerns. Their house is a one-room nipa shack with a floor made of bamboo slats. Early in the morning of 4 August 1995, the accused-appellant went to the house of the accuser and asked her, being the younger sister of her wife, to buy some medicine for his fighting cocks, and to bring it to his house after class that day. As told, the accuser bought the medicine and brought it to the house of accused-appellant after class. Upon reaching the house of accused-appellant, she called out to him. She was on the ground, reaching out to him the medicine with her right hand. The accused-appellant was at the topmost part of stairs of his house. The floor of the house or nipa shack is about one meter from the ground. Thus, in the direct examination of the accuser.
Q. Is the flooring elevated from the ground? A. Yes, sir, about a meter high.

While the accuser was in the act of giving the medicine to the accused-appellant, the latter took hold of her right hand with his left hand, forcibly pulling her up the stairs of his house, and while facing her directly, covered her mouth with his hand as she was shouting loudly even while she was still outside the house. The accusedappellant allegedly dragged her into his house, and when they were inside the house, pulled out from a scabbard tucked at the right side of his waist a jungle knife, poking the right side of her neck. Even with a knife poked at her neck, she continued to shout. The accused-appellant forcibly pushed her to the floor, and the accused-appellant while holding the knife with one hand, undresse[d] her totally, removing her blouse, skirt, bra and panty with his free hand, even as she was continuously shouting for help, with her back pressed against the floor. She was boxing, pushing, and kicking

the accused-appellant. But still the accused-appellant succeeded in sexually abusing her. At the time of the alleged sexual assault she was menstruating. But she felt and touched blood in her vagina only after the third sexual intercourse. The accused-appellant removed her palda while he was on top of her. As the accused-appellant removed her panty, the waistline of her panty got torn (although this was not presented as exhibit by the prosecution). On the second count of [the] alleged rape, the accuser testified that before raping her the second time, the accused-appellant poked the jungle knife to her neck. And while the accused-appellant was poking the jungle knife to her neck, she again boxed him and kicked him but she could not resist his strength. The prosecution did not formally offer to prove that the accuser was a minor. The prosecution reserved the presentation of the birth certificate but never presented it in evidence. (Citations omitted)
[9]

Ruling of the Trial Court The RTC convicted appellant of three counts of rape for the following reasons. First, more than his negative assertion, it was complainants positive testimony that was given more weight.Second, the physical evidence -- the medical examination of complainant six days after the incident and the testimony of the examining physician -- was deemed to have corroborated the formersassertion that appellant had ravished her. The trial court discarded the denial proffered by appellant, saying that no woman, especially of tender age, would concoct a story of defloration, allow an examination of her private parts, and expose herself and her family to a public trial, if she was not moved by the desire to have her ravisher punished. Moreover, because the close and cordial relations between her and appellant would be adversely affected by the filing of the charges, only the desire to seek justice could have motivated her and her mother to file the charges, against him. Hence, this automatic review before us.[10]

The Issues Appellant raises the following errors for our consideration:

1.01.

The trial court gravely erred in according credence to the testimony of the accuser, the scenes depicted in her testimony being highly improbable and inconsistent with physical laws and human behavior. The trial court gravely erred in imposing the death penalty on the accused-appellant as the qualifying circumstances of minority was not sufficiently proven, and that of relationship was not pleaded in the information. The trial court erred in finding that the physical evidence culled from the physicians physical/medical examination of the accuser six days after the alleged rape was consistent with the latters complaint of rape. The trial court gravely erred in ruling that the defense of denial by the accused is inherently weak, without putting to scrutiny the contradictory and improbable testimony of the accuser. The trial court gravely erred in holding appellant liable to pay his accuser the sum of Fifty Thousand Pesos (P50,000.00) as civil indemnity.
[11]

1.02.

1.03.

[1.04.]

[1.05.]

Simply put, the main arguments of appellant are as follows: 1) the circumstances surrounding the offense charged are highly improbable; (2) the commissions of rape cannot be drawn from the physical evidence presented by the prosecution; and (3) the trial court erred in appreciating the minority of the victim and her relationship with him. The Courts Ruling We affirm the conviction of appellant for three counts of rape, but reduce the penalty for each count to reclusion perpetua for the failure of the Informations to allege his relationship with the victim and for the failure of the prosecution to prove her exact age.

First Issue: Probability of Circumstances Appellant questions why complainant did not sustain injuries despite the resistance she was supposed to have put up against him -- boxing and kicking him while loudly shouting for help. Such struggle should have caused bodily injuries not confined only to the genitalia. Abrasions, hematoma or contusions should have resulted if he had indeed

forcibly pulled her from the ground up to his house, which was about a meter above the ground. Moreover, a mark or cut would have been left on her neck, if he had truly poked a knife at it. He adds as improbable the failure of his neighbors to hear her cries if she truly shouted for help. Among them was Ely Peralta who testified that she was inside her house, which was about 10 meters away from his, yet she did not hear any shouts at the time. Allegedly unable to fathom why complainant and her mother would fabricate the charges against him despite his cordial relations with them, he contends that the trial court should not have applied the rule that no decent woman would file a rape charge if she was not motivated by the desire to seek justice. We reject his arguments. The assigned errors, being essentially factual, may readily be explained upon a careful review of the records. First, the records do not show whether the victim suffered other bodily injuries. During the trial, questions on this matter were limited to the lacerations of her genitalia. As to other injuries, none was propounded to her, her mother or the examining physician. Second, appellant did not pull the victim from the ground while he was still inside his nipa house. She clearly testified that he had gone down the stairs; gripped her hand; and dragged her from there, up the stairs, and into the house. [12] It was not improbable that the whole process left her unscathed, assuming that she was. Third, his claim that the victim did not suffer injuries when he poked a knife at her neck is of no moment. It must be clarified that the word poke in the transcript was interchangeably used with the word pointed,[13] which indicates that it was a rough translation of the Filipino word tinutok. Naturally, a knife that does not touch the skin would not cause injury. Nonetheless, the presence of injuries is not vital to establishing the guilt of appellant. The alleged absence of external injuries on the victim does not detract from the fact that rape was committed.[14] Even, assuming arguendo that there were no signs of other bodily injuries, the occurrence of rape is still not negated, since their absence is not an essential element of the crime.[15] Neither is the fact of the rape weakened by the claim of appellant that none of his neighbors heard any shout for help from the victim. As can be gleaned from the records, he quickly halted her shouts by covering her mouth with his hand and poking a knife at her neck.[16] He also warned her that he would kill her if she made any noise.[17] From time to time he silenced her succeeding shouts [18] until she eventually became too weak to make any noise.[19] Thus, the circumstances surrounding the rapes are not implausible, as appellant would like this Court to believe. These are immaterial, as they refer to explainable details that have nothing to do with the essential fact of the commission of the crime of rape -- carnal knowledge through force or intimidation.

Appellants denial cannot overcome the victims positive assertion. Mere denial, if unsubstantiated by clear and convincing evidence, has no weight in law and cannot be given greater evidentiary value than the positive testimony of a rape victim. [20] Time and time again this Court has said that when a woman -- more so when she is a minor -says she has been raped, she says in effect all that is required to prove the ravishment.[21] Furthermore, appellant failed to show any ill motive, on the part of the victim and her mother, to fabricate such a story. A witness testifying candidly, trustworthily and consistently -- without any ill motive -- is surely more credible than an appellant who simply denies the charge.[22] Where there is no evidence to show any improper motive on the part of the rape victim to testify falsely against the accused or to implicate him falsely in the commission of a crime, the logical conclusion is that the testimony is worthy of full faith and credence.[23] The victim recounted how appellant -- armed with a knife -- defiled her thrice on that fateful day:
FISCAL ESTOLANO (cont) What else did he remove from his body? A Q A Q A He removed his pants and brief. After removing his brief, what did he do? He again pointed the knife to me. And what happened next? While he was pointing the knife, I continued pushing him, but I cannot resist his strength.

xxx
Q A Q A What happened next? He placed his finger inside my vagina. Then what happened next? He inserted his organ to my vagina.

xxx xxx

FISCAL ESTOLANO (cont) What was his position when he inserted his penis inside your vagina? A Q A He was on top of me. After inserting his penis to your vagina, what did you feel? I felt pain.

Q A

After inserting his penis to your vagina, what did you do and while he was on top of you? He is still pointing the knife to my neck.[24]

xxx

xxx xxx

"Q When you said rested, what do you mean by rested? A Q A He was resting. Where was his penis while resting? Where did he rest? On top of me.

COURT (to witness) Did he sleep on top of you? A No, sir.

FISCAL ESTOLANO (cont) While the accused was resting, what did you do? A While he was resting I kept on boxing him.

[FISCAL ESTOLANO] (to witness) Was the penis still inside your vagina? A Q A No more, sir. How long did Veno Esperas rest? For 30 minutes.

COURT (to witness) On top of you he rested for 30 minutes? A Yes, sir.

FISCAL ESTOLANO (cont) Why did you say that he was resting there? A Q A Because at that time he was no longer moving. No longer moving his what? He is no longer moving his body.

Q A Q A

After resting for 30 minutes, what did Veno Esperas do? He again point a jungle knife on my neck. What did you do when he pointed the jungle knife to your neck? I again boxed him and kicked him but I cannot resist his strength.

FISCAL ESTOLANO (cont) What happened next? A Q A Q A Q A He again inserted his male organ to my vagina. What did you feel when he inserted his penis inside your vagina? I felt pain. How long did the penis stay inside your vagina? For 10 minutes. While his penis was inside your vagina, what was he doing? He was then kissing me.

xxx
FISCAL ESTOLANO (cont) After 10 minutes what did Veno Esperas do? A Q A He again rested himself.

xxx xxx

When you said he rested, what was his position when resting? He was sitting beside me.

FISCAL ESTOLANO (cont) How about you, what did you do since his body was no longer on top of you? A Q A Q A Q When he was resting I was about to run away but he immediately held my hand, so I was not able to run. How long did Veno Esperas rest? For 10 minutes. After he rested what happened next? He again inserted his penis to my vagina. How was he able to insert his penis inside your vagina when you said he was sitting beside you and you were about to run away?

While he rested, he again raped me.[25]

It is a hornbook doctrine that that the competence and the credibility of witnesses are best determined by the trial court[26] because of its unique opportunity to observe their deportment while testifying.[27] Binding and conclusive on this Court are its factual findings, absent any arbitrariness or oversight of facts or circumstances of weight and substance.[28] In the present case, the courta quo gave more credence to the positive testimony of the victim, and we find no reason to set aside its factual findings.

Second Issue: Physical Evidence Appellant contends that the physical evidence from the medical examination is not consistent with the finding of rape. He argues that the examining physician should not have concluded hastily that complainant had been raped, because the medical findings merely showed that her genitalia was positive for lacerations. He adds that such lacerations are not conclusive of the commission of rape. Allegedly, although the examination was intended to determine its factual truth, the physician should not have rendered the conclusion that complainant had indeed been raped. He further alleges that the doctor was not even an expert witness, having commenced medical practice only a year after she passed her licensure examination. Moreover, her previous examinations on more than 10 rape victims supposedly resulted in inconclusive findings. We disagree with appellant. While vaginal lacerations alone cannot establish rape, they are corroborative of its commission. The straightforward and unwavering testimony of the victim, coupled with her vaginal lacerations, proved that rape was committed, and that he was the perpetrator. It was the totality of evidence -- not the mere presence or absence of those lacerations -- that established his culpability for the offense charged.

Third Issue: Minority and Relationship Appellant claims that the RTC imposed on him the penalty of death, because the trial court had appreciated the minority of the victim and his alleged relationship by affinity to her. We are persuaded.

Minority of the Victim Not Proven Beyond Reasonable Doubt

We agree with appellant that the minority of the victim was not proven beyond reasonable doubt. The prosecution failed to present her birth certificate despite its reservation to present it during the trial. It must be noted that the rapes were committed prior to the effectivity of RA No. 8353, otherwise known as The Anti-Rape Law of 1997. Applicable, then is the old provision -- Section 11 of RA No. 7659 -- which reads as follows:

SEC. 11. Article 335 of the same Code is hereby amended to read as follows:
xxx xxx xxx

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.
xxx xxx xxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of the parent of the victim.
Minority not having been sufficiently established, the trial court committed reversible error in appreciating it as a qualifying circumstance; as such, it must be proved with equal certainty and clearness as the crime itself. Required, therefore, is independent proof of the age[29] of the victim, such as, her birth certificate or her mothers testimony.[30] The victim testified that she was born on August 14, 1979, and was thus 15 years old on the date of the trial.[31] On the other hand, her mother testified that she was born in September 1979.[32] These conflicting -- albeit casual -- testimonies cast a serious doubt on the victims exact age at the time of rape. In People v. Brigildo,[33] the Court held that minority as a qualifying circumstance under Section 11 of RA No. 7659 had not been properly proven when the testimony of the mother as to the true age of the victim contradicted that of the latter. The Court was thus constrained to reduce to reclusion perpetua the penalty of death imposed by the trial court. Appellants Relationship by Affinity to the Victim

Another error committed by the RTC was its appreciation of the qualifying circumstance of relationship of appellant with the victim. He is allegedly her brother-inlaw, but because this fact was not alleged in the Informations, it should not have been used by the trial court to qualify the crime. Well-settled is the rule that the relationship of the perpetrator with the victim must be duly alleged in order to justify the imposition of the death penalty. [34] If the offender is merely a relation not a parent, ascendant, step-parent, guardian, or common law spouse of the mother of the victim -- the specific relationship must be alleged in the information, i.e., that he is a relative by consanguinity or affinity [as the case may be] within the third civil degree.[35]

Civil Liability In addition to indemnity ex delicto, the victim should be awarded moral damages in the sum of P50,000.[36] This Court has granted the same to victims of rape without need of proof other than the fact of rape, which by itself shows the factual bases for the award. Also, exemplary damages of P25,000[37] is proper, since the prosecution was able to prove the relationship of appellant with the victim. Even if not alleged in the Information, their proven relationship is sufficient basis for this civil liability.[38] WHEREFORE, the Joint Judgment promulgated on October 18, 1996 by the Regional Trial Court of Palawan, finding appellant guilty of three counts of qualified rape, is MODIFIED. He is found GUILTY of three counts of SIMPLE RAPE only, and for each count he is sentenced to three (3) terms of reclusion perpetua. Furthermore, for each count of rape he is ordered to pay the victim moral damages of P50,000 and exemplary damages of P25,000, in addition to the P50,000 civil indemnity imposed by the RTC for each count. SO ORDERED. Davide, Jr., C.J., Puno, Vitug, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

SECOND DIVISION

[G.R. No. 134727. February 19, 2001]

CESAR BARRERA, petitioner, PHILIPPINES, respondent.

vs. PEOPLE

OF

THE

DECISION

DE LEON, JR., J.:

This is a petition for review on certiorari of the Decision[1] of the Court of Appeals[2] dated March 25, 1998 in C.A. G.R. CR No. 19650, and its Resolution[3] dated July 24, 1998 denying the motion for reconsideration. The petitioner, Cesar Barrera, and his erstwhile co-accused, Domingo Lazo and Celedonio Itape, were charged with the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, in an Information that reads: That on or about May 24, 1981 in the evening at Brgy. Mayapa, Calamba, Laguna and within the jurisdiction of this Honorable Court, the above named accused, conspiring, confederating and jointly helping with (sic) each other, with evident premeditation and treachery, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault and stab one Mario Anacay with a deadly weapon (knife) thereby inflicting upon the latter serious stab wounds at the back which immediately caused his death, to the damage and prejudice of the surviving heirs of the victim Mr. Mario Anacay. That the crime was committed with the aggravating circumstances of nighttime, evident premeditation and treachery in the commission thereof. CONTRARY TO LAW. Upon being arraigned on November 9, 1981, the three accused, assisted by counsel, separately entered the plea of Not guilty to the charge in the information. Thereafter, trial on the merits ensued. It appears from the evidence adduced that the victim, Mario Anacay, and his companion, Jojo Fernandez, were setting up a beto-beto stall when they met the group of herein petitioner Cesar Barrera, Domingo Lazo and Celedonio Itape, near the fair ground (periahan) on the eve of the fiesta in Barangay Mayapa, Calamba, Laguna on May 24, 1981. Barera confronted Anacay about Domingo Lazo's cousin whom Anacay allegedly stabbed in Silang Cavite. As Anacay turned to leave with Fernandez, Barrera suddenly stabbed Anacay once on the back thereby causing the victim to fall on the ground. Afraid that he might also be stabbed, Fernandez ran away to seek help from their other companions.[4] Police officers Cosme Malabanan, Juanito Fajardo and Eugenio Banaag went to the scene of the crime in Barangay Mayapa, Calamba, Laguna after receiving a report of the stabbing incident. Thereafter, they proceeded to the Canlubang Estate Hospital in Laguna where the victim was brought earlier.

At the hospital, police officer Malabanan interrogated the victim, Anacay, who declared that Cesar Dictado, Doming and Dolong were his attackers. The declaration of the victim was put down in writing which he thumbmarked with his own blood. Anacay believed that he was going to die (Mamatay po ako.) when asked by police officer Malabanan how he felt as a result of his stab wound.[5] Anacay also mentioned to prosecution witness, Lauro Ejeda, the same names of Cesar Dictado, Doming and Dolong as his attackers. Ejeda knew that Anacay was referring to Cesar Barrera, Celedonio Itape and Domingo Lazo whom he had known for a long time because they were engaged in the same business of beto-beto. Upon the request of Anacay, Ejeda accompanied the policemen back to Barangay Mayapa in Calamba, Laguna and helped them identify the victims attackers. Doming (Domingo Lazo) and Dolong (Celedonio Itape) voluntarily surrendered to the policemen while the petitioner attempted to evade arrest but was prevented by Ejeda.[6] Meanwhile, the victim was transferred to the Philippine General Hospital in Manila where he died on May 25, 1981 due to shock secondary to stab wound in the back.[7] Petitioner Cesar Barrera denied that he stabbed Mario Anacay in the evening of May 24, 1981. He claimed that on the said occasion he was busy attending to his beto-beto business when a commotion occurred at the fair ground. Nevertheless, he never left his place and that he learned only later what actually happened when people began talking about the stabbing incident.[8] On January 26, 1998, the trial court rendered its decision convicting herein petitioner of the crime of homicide but acquitting his two (2) co-accused of the crime charged in the information. The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered1. CONVICTING Cesar Barrera but only for homicide, the prosecution having proved his guilt beyond reasonable doubt. He shall be sentenced to an indeterminate jail term of ten (10) years and one (1) day of prision mayor as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum. He shall indemnify the heirs of Anacay the amount of P50,000.00 and shall be credited for time spent in jail. 2. ACQUITTING accused Domingo Lazo and Celedonio Itape, the quantum of proof for their conviction not having been met. SO ORDERED.

Aggrieved by the decision of the trial court, the petitioner appealed to the Court of Appeals. On March 25, 1998, the Court of Appeals rendered its decision affirming the decision of the trial court. After his motion for reconsideration was denied on July 24, 1998 by the appellate court, the petitioner filed with this Court the instant petition for review on certiorari containing the following assignments of error, to wit:
I

THE HON. COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR WHEN IT RULED THAT PETITIONERS DENIAL OF THE CRIME CHARGED CANNOT PREVAIL OVER THE POSITIVE TESTIMONY OF THE PROSECUTION WITNESS JOJO FERNANDEZ, DESPITE THE FACT THAT FACTS AND CIRCUMSTANCES EXIST WHICH RENDER THE IDENTIFICATION OF THE PETITIONER AS BOUBTFUL AND CANNOT BE THE BASIS OF HIS CONVICTION.
II

A DOCUMENT CONSISTING OF AN AFFIDAVIT HEREIN SUBMITTED WHICH ACCOMPANIES THE INSTANT PETITION IF ADMITTED WILL CERTAINLY EXCULPATE THE ACCUSED-PETITIONER OF THE CRIME CHARGED.
III

THE HON. COURT OF APPEALS COMMITTED A SERIOUS REVERSIBLE ERROR WHEN IT ACCORDED CREDENCE TO THE TESTIMONY OF PROSECUTION WITNESS JOJO FERNANDEZ DESPITE THE FACT THAT HIS TESTIMONY IS FULL OF CONTRADICTIONS AND INCONSISTENCIES WHICH CLEARLY IMPAIR HIS CREDIBILITY.
IV

THE HON. COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN NOT ACQUITTING THE ACCUSED-PETITIONER OF THE CRIME CHARGED, ESPECIALLY CONSIDERING THAT HIS CO-ACCUSED, DOMINGO LAZO AND CELEDONIO ITAPE, WERE ACQUITTED BY THE TRIAL COURT, THEIR GUILT NOT HAVING BEEN PROVED BEYOND REASONABLE DOUBT, AND THE ABOVE-MENTIONED AFFIDAVIT EXCULPATING THE ACCUSED OF THE CRIME CHARGED.

In substance, the petitioner contends that there is doubt as to his identity as the perpetrator of the crime inasmuch as the victim, Mario Anacay, himself identified his attackers as "Cesar Dictado, Doming and Dolong." The said dying declaration of the victim was confirmed by a prosecution witness, police officer Cosme Malabanan who investigated the victim in the hospital where he was brought after the stabbing incident. Petitioner's contention is not impressed with merit. Prosecution eyewitness Jojo Fernandez positively identified the petitioner, Cesar Barrera, as the same person whom he saw stabbed Mario Anacay on the evening of May 24, 1981. Fernandez categorically declared on the witness stand that he was able to recognize petitioner Barrera for the reason that he (Fernandez) was with the victim, and the premises were well-lighted when the victim was stabbed by the petitioner. Regardless of whatever name Anacay may have known his attacker, the same is not sufficient to overturn the fact that petitioner Barrera was positively identified by prosecution eyewitness, Jojo Fernandez, as the perpetrator of the crime. Besides, another prosecution witness, Lauro Ejeda testified during the trial that he knew Cesar Dictado, who was referred to by Anacay in his dying declaration as his attacker, to be the same person as the herein petitioner, Cesar Barrera, whom he (Ejeda) had known for a long time.[9] Consequently, the defense of denial by the petitioner pales in the light of the categorical identification made by the prosecution eyewitness, Jojo Fernandez. Positive identification where categorical and consistent and without any showing of ill-motive on the part of the eyewitness testifying on the matter, as in the case at bar, prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law.[10] Petitioner assails the testimony of prosecution eyewitness Jojo Fernandez for being allegedly incredible. He contends that it would be contrary to human experience for the victim, who used to operate beto-beto business in Canlubang, Laguna, to put up his beto-beto stall in Brgy. Mayapa, Calamba, Laguna only on the eve of the fiesta; that it was highly improbable for the petitioner to exact revenge on Anacay when it was Domingo Lazo whose cousin was stabbed by the victim; that if Fernandez were indeed an eyewitness to the crime, he would not have deserted the wounded Anacay who was his kumpadre; and that his non-flight from the scene of the crime until the police officers arrived and arrested him and his erstwhile coaccused indicated his innocence. The above contentions refer to factual matters which have already been raised by the petitioner and thoroughly passed upon by the Court of Appeals in its Decision dated March 25, 1998 and hence do not warrant a review [11] by this Court. We quote with approbation the appellate courts disquisition, thus:

The arguments are, if not without basis in fact, clearly insubstantial and inconsequential. The fact, as testified to by Jojo Fernandez, that the three (3) accused and the victim and Jojo Fernandez set up their beto-beto tables at 10:00 oclock in the evening on the very day of the fiesta is not cause for disbelieving the testimony of the prosecution eyewitness Jojo Fernandez. While it is true that it is customary to put up the beto-beto stands on the eve of the fiesta, such customary practice does not make incredible that the three (3) accused, the victim and Fernandez put up their beto-beto stands at 10:00 oclock in the evening on the very day of the fiesta. After all, beto-beto stands are not difficult or expensive to put up and the decision to put them up naturally depends on the volume of the crowd or beto-beto players, even if already on the very night of the fiesta. That Fernandez and the victim are compadres does not by itself render the testimony of the former inadmissible or devoid of probative value. Fernandezs testimony that he was at the crime scene and was a witness to the crime is credible. That Fernandez volunteered to be a prosecution witness and that Anacay was his compadre did not render Fernandezs testimony unreliable, because his testimony, independent of their relationship, is not inherently improbable and neither is there proof that he might have been compelled by improper or evil motive in pointing to the accused-appellant as the assailant. We also have to reject appellants contention with respect to the lack of motive on his part to stab the victim. It is well-established rule that proof of motive is not crucial where the identity of the accused has been amply established. The fact that Fernandez ran away upon seeing the stabbing incident and did not help the fallen victim is not difficult to understand. Fernandez explained in his testimony why he ran away. He explained that he was overcome by fear that he would be stabbed next. Finally, it is argued that all three (3) accused did not leave the peryahan even after the stabbing. To quote from a decision of the Supreme Court, Appellants pretended innocence is clearly non sequitur to his decision not to flee. Apart from the fact that there is no case law holding that non-flight is a conclusive proof of innocence, the argument does not hold weight in the light of the positive identification of the appellant.[12] In a desperate attempt to escape criminal liability, the petitioner presented at this late stage an Affidavit[13] dated September 3, 1998 allegedly executed by a certain Elena de Sagun vda. de Gatdula. The affidavit states, in substance, that affiant Gatdula met and befriended petitioner Cesar Barrera and his wife on June 1, 1996; that she learned from the petitioner of his conviction for the death of Mario Anacay;

that she recalled and informed the Barrera couple of her alleged late husbands admission to the killing on May 24, 1981 of a certain person by the name of Mario Anacay; that she had no opportunity then to give her statement on the matter; and that she decided to do it now allegedly for the sake of truth and justice to petitioner. The said affidavit of Elena de Sagun vda. de Gatdula is patently hearsay, and therefore, carries no probative value.[14] It appears therein that she learned of the identity of the alleged culprit when her husband, who died in 1983, purportedly admitted to her having killed Mario Anacay on May 24, 1981. In other words, she had no personal knowledge of the killing of Mario Anacay except for the information allegedly revealed to her by her late husband. It is an established doctrine that when the evidence is based on what was supposedly told the witness, the same is without any evidentiary value or weight, being patently hearsay.[15] WHEREFORE, the instant petition is hereby denied for lack of merit. SO ORDERED. Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

SECOND DIVISION

[G.R. No. 132159. January 18, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR GIVERA y GAROTE, accused-appellant. DECISION
MENDOZA, J.:

This is an appeal from the decision[1] of the Regional Trial Court, Branch 102, Quezon City finding accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon y Arrivas and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law, to indemnify the heirs of the deceased in the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs of the suit. The information in this case, dated April 10, 1995, charged as follows:

That on or about the 2nd day of May, 1993, in Quezon City, Philippines, the said accused [CESAR GIVERA], conspiring together, confederating with EPEFANIO GAYON y GERALDE[2] and ARTURO GAYON y GERALDE, and mutually helping one another who were charged with the same offense at the Regional Trial Court of

Quezon City, Branch 104, and docketed as Criminal Case No. Q-93-44315, did, then and there, willfully, unlawfully and feloniously, with intent to kill, taking advantage of superior strength, with evident premeditation and treachery, attack, assault, and employ personal violence upon the person of EUSEBIO GARDON y ARRIVAS, by then and there stabbing him with a knife hitting him on the different parts of his body, and striking him with a piece of stone on the head, thereby inflicting upon him serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of EUSEBIO GARDON y ARRIVAS. CONTRARY TO LAW.[3]
Accused-appellant pleaded not guilty during his arraignment on April 10, 1996, whereupon he was tried. Accused-appellants companions, namely Epifanio Gayon, Arturo Gayon, and Maximo Givera, were separately prosecuted and found guilty of murder by the Regional Trial Court, Branch 104, Quezon City in a decision, dated June 6, 1994, in Crim. Case No. Q-93-44315. The three were sentenced to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law, to indemnify the heirs of the deceased the sum of P100,000.00 without subsidiary imprisonment in case of insolvency and to pay the costs of the suit. On appeal to this Court, the decision of the trial court was affirmed with modification. The dispositive portion of the decision reads:

WHEREFORE, the judgment appealed from is MODIFIED. We instead find accused-appellants EPIFANIO GAYON, ARTURO GAYON and MAXIMO GIVERA guilty beyond reasonable doubt of MURDER committed with grave abuse of superior strength and imposes upon each of them the penalty of reclusion perpetua with the accessory penalties provided by law, and ordering them to indemnify the heirs of the deceased Eusebio Gardon in the amount of P100,000.00. Costs against accused-appellants.[4]
For the prosecution, the victims daughter Milagros Gardon and his niece Melinda Delfin were presented as witnesses. On the other hand, only accused-appellant testified in his defense. The incident took place at about 4 p.m. on May 2, 1993 at Purok IV, Area 5, Laura St., Old Balara, in Diliman, Quezon City. Milagros Gardon testified on direct examination:[5]
Q: A: Q: A: Q: Particularly about 4:00 p.m., were you at your residence at that time? Yes, sir. And what were you doing there at that time? I was in the house because I was watching my father, sir. What was your father doing at that time?

A: Q: A: Q: .... A: Q: ....

I let him go to sleep because he was a little bit drunk, and I was watching him so that he will not go outside. Why do you say you were watching him so that he would not anymore go out? Because he was warned by [accused-appellant Cesar Givera] that if he goes outside, he will kill my father. At that time and place while you were watching your father, what else happened if any?

[O]ur house was being stoned. Who was stoning your house? Could you tell us who was throwing stones to your house?

COURT: She mentioned that because her father was not coming out of the house, the accused started stoning the house. Q: A: Q: A: Q: A: Q: A: Q: A: Who was stoning your house? Cesar Givera, sir. Was he alone at that time? They were in a group, sir, but he was the only one stoning the house. And the other one, who was already arrested, by the name of Onying went inside the house. You said a while ago that there was somebody with Cesar who went to your house, could you recall that somebody? Onying [Epifanio Gayon], sir. You said he was already nakakulong? Yes, sir. Now, what happened after this person Cesar and the other one Onying went inside the house? Onying asked my father to go out of the house while Cesar was stoning the house. Onying led my father out of the house, and when they were already outside, Cesar was waiting for them. Then Cesar scampered away and my father followed him. Cesar caused my father to run after him until they reached the place where there was another person, and that person stabbed my father. So how many persons in all have you seen? They were four in all, sir.

Q: A: .... Q: ....

What did these 4 persons do when her father was with them if any?

A:

Cesar was stoning the house. Then Onying got my father from the house. Turing [Arturo Gayon] told the other one to stab my father while the one who stabbed my father was waiting under the bridge.

.... Q: A: What happened to your father after you said he was stabbed or mauled? After he was stabbed, the person who stabbed him ran away, sir.

On cross-examination, Milagros Gardon said:[6]

Q: A: Who else were with you at that time? My brother and sister, sir.

Q: They were Laura Gardon and Leonardo Gardon, correct? A: Q: A: .... Q: A: Q: A: .... Q: This Onying [Epifanio Gayon] suddenly entered your house, correct? A: Q: A: Q: A: .... Q: A: Q: A: Q: A: At that time were you in a position so as to see him actually effect his entrance through the front door? Yes, sir. Why? Where were you at that time? I was in the sala, sir. You were in the sala right next to your father, is that correct? Yes, sir. Yes, sir. He was alone when he entered your house, correct? Yes, sir. How did he effect his entrance in your house? He went inside directly, sir. And you were watching TV at that time, correct? Yes, sir. And then suddenly you heard stones being thrown on the roof of your house, is that correct? Yes, sir. Yes, sir. And your father inside the house because he was already resting after having been from a drinking spree, correct? Yes, sir.

Q: A: .... Q: A: Q: A: Q: A: .... Q: A:

And likewise with your two other companions Laura and Leonardo, they were situated right near to your father, correct? Yes, sir.

Now, when this Onying entered the house, did he call out the name of your father if you can remember? Yes, sir. And your father, did he give any response thereto? Yes, sir. What was his response if any? He asked Onying if he need anything. And Onying asked him to go out with him.

And your father stood up and joined Onying in going out of the house? Yes, sir.

.... Q: Then you together with your two other companions got back to watching the television show is that correct? A: Q: A: Q: A: Q: A: .... Q: A: Q: A: .... Q: A: Q: A: And where was Laura hit? At her left shoulder, sir. And how many stones if you know hit Laura? Only one, sir, because while they were stoning they were running away. Was Onying also hit by any of those stones? No, sir. Only my father and my sister. What is the name of that sister of yours who was also hit? Laura Gardon, sir. No, sir. But you stayed inside the house, you and your two other companions? No, sir. Now, thereafter you heard stones thrown again towards your house, is that correct? Yes, sir. But just the same, you did not peep out through any opening of your house for safety? We were already outside when they were stoning the house. We followed him outside.

Q: A: Q: A: Q: A: .... Q: A: .... Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:

Who were these people running away? Onying and Cesar, sir. Are you saying that Onying also stoned your father? No, sir. Because he was right next by your father at that time, that is why he was not at all stoning your father, correct? He was boxing him.

You saw Cesar Givera actually stoning towards the direction of your father, is that what you mean? Yes, sir.

And your father followed Cesar Givera, is that what you mean? Yes, sir. Likewise, with Onying, he followed Cesar Givera? Yes, sir. And they ran quite a distance, correct? Yes, sir. And then you lost sight of them yes or no? No, sir. But you stayed in the house, correct? No, sir. I was outside the house. When the incident happened, I was already outside the house. But because you did not state that you also followed your father as he ran after Cesar, does that mean that you just stayed in front of your house? We stopped because we already saw the place where my father was stabbed, that is why we did not follow them. How far did they get, using as reference the front door of your house? How far did they get as they ran away? About fifteen meters away, sir. Did they not turn corners? It is straight, sir. They only made a turn after the stabbing incident, sir.

Q: They turned a corner after your father was stabbed? A: Q: Yes, sir, because they ran away, sir. Only one of the accused stabbed your father, correct?

A: Q: A: Q: A:

Yes, sir. And who was this? Bingo Givera [Maximo Givera], sir. Did you actually see him stab your father? Yes, sir.

On re-direct examination, Milagros said:[7]

Q: A: .... Q: .... A: Q: A: He was also at the same place, sir. And the other 3 accused Arturo Gayon and Efipanio Gayon, could you tell us where they were when Maximo was stabbing your father? They were also at that place, sir. Now, when you saw Maximo Givera stab your father, where was Cesar at that time? Madam witness, you said a while ago that you saw while your father was stabbed, and the name of that person is Onying who stabbed your father? Maximo Givera, sir.

Melinda Delfin, niece of the victim, corroborated the testimony of Milagros Gardon. She said:[8]
Q: A: Q: A: Q: At about 4:00 p.m. of May 4, 1993, could you tell us where you were at that time? Yes, sir, I was about to reach the house of Eusebio Gardon. What was your purpose in going there? Eusebio Gardon called me up because he has just come from Bicol and he will give me rice. You said you were about to arrive at the residence of Eusebio Gardon at 4:00 p.m. on May 4, 1993, what did you notice or observe when you were about to arrived at that place of his residence? I saw Onying [Epifanio Gayon] with his hand on the shoulder of Eusebio Gardon going out of their yard. (Nakita ko si Onying akbay akbay si Eusebio Gardon palabas sa bakuran nila.) .... Q: A: What else did you notice? When I came out of the gate I saw Cesar Givera boxed Eusebio Gardon. (Paglabas ko ng bakuran nakita ko si Cesar na sinalubong ng suntok si Eusebio Gardon.) .... Q: What else did you see aside from the fact that you saw Cesar Givera boxing Eusebio Gardon?

A:

A:

Cesar boxed him and also Onying boxed him, they both helped each other in boxing Eusebio Gardon, and then they back to the house of Eusebio Gardon and my uncle followed them. Not quite far, Bingo [Maximo Givera] and Turing [Arturo Gayon] were there.

.... Q: A: Q: A: Q: A: Q: A: Q: A: .... Q: A: .... Q: You said earlier that you saw Cesar Givera and Epifanio Givera threw stones towards the victims house, is that true? And what happened to Eusebio Gardon, whom you said was boxed, mauled and then stabbed? He was lying down under the bridge for about thirty (30) minutes, and then his children arrived. And what happened when you said this Bingo was there? Onying and Cesar gave fistic blows to Eusebio Gardon and he was also stabbed by Bingo, and they were also kicking Eusebio Gardon. Eusebio Gardon was boxed by Onying and Cesar Givera? Yes, sir. And stabbed by? Bingo, sir. Actually, how many persons were there when [Eusebio] Gardon was stabbed and being boxed? I saw four of them, sir. Would you made these four (4)? Turing, Bingo, Cesar and Onying.

PROSECUTOR CONCHA: Excuse me, Your Honor, the witness said she saw that fellow by the name of Onying and Cesar boxing - - ? WITNESS: Suntok, bato at sipa. ATTY. MASCALAS: Q: A: Q: A: Q: A: Q: Where did you see them doing these acts on Eusebio? Outside the premises, sir. Whose premises? The premises of Eusebio Gardon, sir. Did you not say earlier that Onying came out with Eusebio Gardon from the latters house? I saw Onying, akbay-akbay niya.. You even saw Onying embracing Eusebio Gardon, correct?

A:

Yes, sir. ....

Q: A: Q: A: .... Q: A: Q: A: .... Q: A: Q: A: .... Q: A:

Were there stones being hurled to Onying and Eusebio? Yes, sir. Did you see who were throwing those stones? It was Cesar, sir.

Did you see if Gardon was hit by any of these stones? Yes, sir. And you also saw Onying hit by stones, correct? No, sir.

Who boxed your uncle? Cesar, sir. Are you saying that Cesar while throwing stones to your uncle was so close to him that he was able to box him? Because they were advancing towards my uncle and Onying. They were going towards them.

And when they were able to come near, how near did Cesar get to your uncle? Maybe three to four meters, sir.

Q: That was when Cesar boxed your uncle? A: Q: A: .... Q: A: Q: A: And then Cesar Givera ran away and your uncle gave chase? Yes, sir. And upon reaching the bridge which is about fifteen (15) meters away from the victims house, you saw Bingo stabbed your uncle? Yes, sir. Not yet, sir. When did Cesar box your uncle? When they come near to my uncle.

Q: There were only -- You said that there were only four (4) persons in that place where your uncle was stabbed and those persons do not include Milagros Gardon? A: Q: No, sir. Because Milagros Gardon was still in their house?

A: Q: A: Q: A: Q: A: .... Q: A: Q: A:

She was already outside their house. She was outside their house -- although outside their house she was still inside the premises of their lot? She was still inside, but she saw the incident. And that premises of the victim was about 15 meters away from the bridge where the alleged incident took place? Yes, sir. Were you also with Milagros Gardon at the time that stabbing was done? We were not together but I was approaching their house.

So you were also about 15 meters away from the bridge where the alleged incident took place? Yes, sir. And that is your distance when you were claiming that you saw this incident? It was just a little less. (Makalampas lang ng konti).

.... Q: A: Q: A: .... Q: A: Q: A: Q: A: Q: A: You said that it was Bingo who stabbed the victim Eusebio Gardon. You said that you saw it? Yes, sir. What was Cesar Givera doing when the victim was stabbed by Bingo? They were kicking and boxing my uncle. Givera was doing that? I was asking you about Cesar Givera? He was boxing and kicking my uncle. Who, Eusebio Gardon, the victim? Yes, sir. It was Turing Gayon [Arturo Gayon] whom you heard shout: Sige, todasin na yan! Yes, sir. And it was Bingo [Maximo Givera] whom you saw stabbed your uncle? Yes, sir.

To prove the fact and cause of death of Eusebio Gardon, the prosecution presented in evidence the testimony[9] of medico-legal officer, P/Maj. Florante Baltazar, given in Criminal Case No. Q-93-44315. The testimony shows that the victim sustained one fatal stab wound possibly caused by a single bladed weapon.[10] In addition, he sustained abrasions in his lower chin, possibly hitting a rough surface, as well as an incised wound caused by a bladed weapon, on his posterior middle left arm.[11] The stab wound appears to be fatal because it pierced the

pericardium and left ventricle of the heart, which could be the immediate effect of hemorrhage, shock and eventual death of the victim.[12] A death certificate[13] evidencing the death of the victim was presented by the prosecution. Accused-appellant testified in his behalf. He was a resident of Laura St., Old Balara, Quezon City at the time of the incident. He denied any involvement in the killing of the victim who was his relative by affinity.[14] Accused-appellant claimed that at the time of the incident on May 2, 1993, at around 4:00 p.m., he was having a drink in his cousins house, some 30 meters away from the victims house. On the other hand, Maximo Givera and Arturo Gayon were in the victims house also having drinks. Accused-appellant said he was fetched by his cousin, Recto Gardon, because Maximo and the victim Eusebio Gardon were having an altercation. He went to pacify the protagonists and then led the victim to his house. Without his knowledge, however, Eusebio went back and again engaged Maximo in a fist fight, as a result of which the victim Eusebio was knocked down. Accused-appellant said he was going to help the victim get up, but he saw the victims son, Ronilo Gardon, coming with a bolo. He, therefore, ran away and left the victim behind. He added, that he did not see if his three companions did anything more than box the victim.[15] Accused-appellant said he learned that the victim had died only two days after the incident.[16] Accused-appellant was arrested on May 4, 1996 at the East Avenue Medical Center. He stated that the children of the victim implicated him in the killing of Eusebio Gardon only because he was present when the incident happened.[17] On August 29, 1997, the trial court rendered its decision finding accused-appellant guilty of murder. The dispositive portion of its decision reads:[18]

WHEREFORE, judgment is hereby rendered finding the accused Cesar Givera guilty beyond reasonable doubt of the crime of murder as charged. The accused is hereby sentenced to reclusion perpetua, with the accessory penalties of the law, and to indemnify the heirs of the deceased in the amount of P50,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. SO ORDERED.
Hence, this appeal. Accused-appellants sole assignment of error is that

DUE TO THE PRESENCE OF REASONABLE DOUBT, THE COURT A QUO HAS COMMITTED AN ERROR IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIME CHARGED
The appeal has no merit. First. The prosecution presented evidence which shows beyond reasonable doubt that accused-appellant and his companions (Epifanio Gayon, Arturo Gayon, and Maximo Givera), all of whom were convicted of murder in another case, were responsible for the killing of Eusebio

Gardon on May 2, 1993. Milagros Gardons testimony, an excerpt from which is quoted at the beginning of this opinion, is spontaneous, detailed, and consistent. The defense tried to discredit through cross examination, but, as shown earlier, the defense only succeeded in enabling her to give further details of her testimony in chief. There are apparent lapses in the testimony of Milagros, as when she testified that she knew at the very beginning that it was accused-appellant who was stoning their house when in fact, as she admitted, she only knew this because the victim said so. Moreover, it may be doubted whether the victims other daughter, Laura, was hit by the stones hurled by accused-appellant as she came out of their house, since the door of the house was so narrow that only one person at a time could pass through it. Nonetheless, a close reading of the records will show that indeed it was accused-appellant who was stoning the house because when the witness followed the victim outside, she saw accused-appellant throwing stones at their house. She then saw accused-appellant hitting the victim with stones. In the process, Laura was also hit. In any event, these discrepancies are minor and insignificant and do not detract from the substance of her testimony. This Court has time and again said 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 their credibility because they discount the possibility of their being rehearsed testimony.[19] Thus, according to Milagros Gardon, accused-appellant taunted the victim and challenged him to come out of the house. After succeeding in drawing the victim out of his house, accusedappellant and his companions ganged up on him, kicking and pummeling him and finally stabbing him. Milagros testimony belies accused-appellants claim that he was merely trying to pacify the victim and Maximo Givera and that he ran away because the victims son, armed with a bolo, charged at him (accused-appellant). There was no reason for the victims son to want to attack accused-appellant, if the latter was merely trying to help the victim. Nor is it probable that accused-appellant did not see what his companions did to the victim aside from giving him fist blows and kicks, because according to accused-appellant, he ran away shortly after they had attacked the victim. As accused-appellant said he saw the assailants run way, this could only be after they had been done with their victim. The defense also tries to discredit the testimony of the other prosecution witness, Melinda Delfin. It is contended that, contrary to her claim, she was not really present at the incident. For this purpose, it is pointed out that she failed to give a sworn statement regarding said incident to the police. The contention has no merit. As Melinda explained, she did not give a statement to the police because she was told they would call on her later for her statement. Melinda testified:[20]
Q: The police did not get your statement because you did not tell them that you were an eyewitness and if it is true, correct? A: Q: No, sir. You were only asked by your relatives - - You testified in this case in the sala of Judge Asuncion after the children of the victim asked you to? Correct?

A: Q: A: Q: A:

They did not tell me. I voluntarily testified, sir, because I saw the incident. What do you mean by saying that you voluntarily testified? Did you just come to court and asked the court to take you as witness in this case? No, sir, because in the police station the police told me that they will not take my statement. They will just ihahabol na lang ako. Did you not inquire from them why your statement will not longer be taken and what do you mean by that ihahabol na lang ikaw? I did not ask because I do not know anything about that. That was the first time that incident happened to my life.

It is noteworthy that both Milagros Gardon and Melinda Delfin knew accused-appellant and the other assailants, and that in fact some of them are related to the witnesses. Accused-appellant has not shown that these witnesses were motivated by ill will against him. As correctly observed by the trial court:[21]

[T]he court has no reason to doubt the testimonies of the prosecution witnesses. In the first place, accused Cesar Givera has not shown any motive on the part of the prosecution witnesses to testify as they did against said accused. Second, accused Cesar Givera and the other accused in this case are all residing within the vicinity where the crime was committed, and are even related by affinity to the deceased. There is, therefore, no reason to doubt their identification by the prosecution witnesses.
All things considered, we think the trial court correctly dismissed accused-appellants claim and gave credence to the testimonies of the prosecution witnesses. From the fact that the victim died and that accused-appellant and his companions were the last persons seen with the victim before he died, it can be concluded that they are responsible for the victims death. Second. The allegations of conspiracy in the information have been established. The victim was at home sleeping after coming from a drinking session, when the accused-appellant and his companions stoned his house to force him to come out. When they failed, one of them, Epifanio (Onying) Gayon, went inside the victims house and told him to come out. Disoriented because he was drunk, the victim went with Onying. Once the victim was outside, accused-appellant pelted him with stones, while Onying started raining fistic blows on him. Then Onying and accused-appellant ran away to lure him to go toward the bridge where the other two, Arturo Gayon and Maximo Givera, were waiting. When the victim reached the place, he was attacked by the gang. He was kicked and boxed by Onying and when Arturo shouted Sige todasin na yan!, Maximo stabbed the victim. The evidence thus clearly and convincingly shows a coordinated action by the group in the execution of the crime. In conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim. What is important is that all participants performed specific acts with such closeness and coordination as to unmistakably indicate a common purpose or design to bring about the death of the victim. The act of each conspirator in furtherance of the

common purpose is in contemplation of law the act of all. Consonant with this legal principle, accused-appellant is guilty of the crime of murder as if he himself dealt the deathblow that sent the victim to his grave.[22] Third. However, evident premeditation cannot be appreciated in this case. Where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be appreciated.[23] But in an implied conspiracy, such as in this case, evident premeditation cannot be appreciated in the absence of proof as to how and when the plan to kill the victim was hatched or what time elapsed before it was carried out, so that it cannot be determined if the accused had sufficient time between its inception and its fulfillment dispassionately to consider and accept the consequences. There should be a showing that the accused had the opportunity for reflection and persisted in effectuating his criminal design which the prosecution failed to establish in the case at bar.[24] Nor can the qualifying circumstance of treachery be taken into account. The trial court held:[25]

. . . [T]reachery will also be deduced from the evidence on record. The deceased was unarmed when he was stabbed by on Maximo Givera and boxed and kicked by accused Cesar Givera and two other accused. . . . From the evidence adduced, accused Givera and Epifanio Gayon taunted and provoked the deceased by throwing stones at him and then lured him to run after them towards the bridge where the other accused were lying in wait ready to pounce on the deceased without risk to themselves as the deceased was then defenseless.
Treachery is the deliberate and unexpected attack on the victim, without any warning and without giving him an opportunity to defend himself or repel the initial assault. For treachery to be appreciated, it must be shown to be present at the inception of the attack, otherwise, even if present at a subsequent stage, it cannot be considered.[26] In the instant case, the victim cannot be said to have been totally oblivious of the impending attack by all the group of accusedappellant. He thus had every opportunity to escape from the attack. In fact, his daughter Milagros testified that prior to the stoning incident, the victim had been threatened with harm by accused-appellant the moment he went out of his house, which is why she stayed beside her father to make sure he did not go out of the house. Indeed, the victim had been forewarned of the danger posed by accused-appellant and his group. Moreover, by coming out of his house and running after two of the assailants, the victim showed that he was prepared for the attack by accused-appellant and his gang and could have been hardly surprised when he was actually attacked. Treachery must be proven by convincing evidence. The fact that the victim may have been surprised because he had not expected that he would be outnumbered when he saw two other attackers waiting for him under the bridge is not sufficient to show that the victim was completely unaware of the attack that might come from his assailants.[27]

However, the presence of the qualifying circumstance of abuse of superiority was correctly appreciated in this case. The victim was unarmed and was clearly outnumbered by the four assailants, with one of them armed with a knife.[28] Fourth. Accused-appellant claims that his arrest at the East Avenue Medical Center on May 4, 1996 was made without a warrant. This is not true. He was arrested by virtue of a warrant issued by the court on April 27, 1995. However, as the records show, the warrant of arrest was returned unserved by the arresting officer on June 7, 1995 as accused-appellant could not be found. He was finally found only on May 4, 1996. Now, no alias warrant of arrest is needed to make the arrest. Unless specifically provided in the warrant, the same remains enforceable until it is executed, recalled or quashed. The ten-day period provided in Rule 113, 4 is only a directive to the officer executing the warrant to make a return to the court.[29] At any rate, accused-appellant must be deemed to have waived his right to object thereto because he failed to move for the quashal of the information before the trial court, entered a plea of not guilty and participated in the trial.[30] As this Court has held, any objection involving a warrant of arrest or procedure in the acquisition by the court of jurisdiction over the person of an accused must be made before he enters his plea, otherwise the objection is deemed waived.[31] On the matter of the admissibility of the testimony of the medico-legal taken in the first case, involving the three other accused for the death of the same victim, offered in evidence in the case at bar, this Court must declare the same inadmissible. As correctly contended by the defense, because they did not have the opportunity to cross-examine Dr. Baltazar, his testimony cannot be used in evidence against accused-appellant. Indeed, where the opposing party failed to cross-examine a witness, this Court in several cases held:[32]

Oral testimony may be taken into account only when it is complete, that is, if the witness has been wholly cross-examined by the adverse party or the right to crossexamine is lost wholly or in part thru the fault of such adverse party. But when crossexamination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent.
Still and all, the fact and cause of death of the victim had been sufficiently proved by the accounts of the two eyewitnesses, corroborated by the offer in evidence of the death certificate of the victim. Fifth. The award of damages by the trial court in favor of the victim should be modified. Aside from the award of P50,000.00 as indemnity, the heirs of Eusebio Gardon are entitled to an award of P50,000.00 as moral damages irrespective of proof thereof.[33] WHEREFORE, the decision of the Regional Trial Court, Branch 102, Quezon City finding accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon y Arrivas and sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law is AFFIRMED with the MODIFICATION that, in addition to the amount of P50,000.00 to be paid as indemnity, accused-appellant is hereby ordered to pay to the heirs of Eusebio Gardon amount of P50,000.00 as moral damages, plus the costs of the suit. SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

EN BANC

[G.R. No. 141767. April 2, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HILARION TEVES y CANTOR, accused-appellant. DECISION
DE LEON, JR., J.:

Before us on automatic review is the Decision[1] of the Regional Trial Court of Binan, Laguna, Branch 25, in Criminal Case No. 9620-B convicting the appellant, Hilarion C. Teves, of the crime of parricide and sentencing him to suffer the supreme penalty of death. The lifeless body of Teresita Teves y Capuchino was found by a group of barangay tanods in Barangay Macabling, Santa Rosa, Laguna in the late evening of August 25, 1996. The body of the victim bore strangulation marks around the neck and a stab wound just below the left armpit. During the investigation of the case, the husband of the victim, herein appellant, Hilarion C. Teves, was identified as the driver of the passenger jeep that was allegedly met by the barangay tanods shortly before they chanced upon the dead body of the victim on that fateful evening of August 25, 1996. It was also gathered by the police that the spouses purportedly had misunderstanding prior to the incident. On December 3, 1996, Hilarion Teves y Cantor was charged with the crime of parricide defined and penalized under Article 246 of the Revised Penal Code, as amended, in an Information[2] that reads: That on or about August 25, 1996, in the Municipality of Santa Rosa, Province of Laguna, Philippines and within the jurisdiction of this Honorable Court, accused HILARION TEVES y CANTOR, while conveniently armed with a deadly weapon, with intent to kill his wife TERESA CAPUCHINO y TEVES (sic) with whom he was united in lawful wedlock, did then and there wilfully, unlawfully and feloniously stab and strangle the said TERESA CAPUCHINO TEVES with the aforesaid deadly weapon, stabbing the latter on the left side of her chest causing her instantaneous death, to the damage and prejudice of her surviving heirs.

CONTRARY TO LAW. Upon being arraigned on January 13, 1997, herein appellant, assisted by his counsel, entered the plea of Not guilty to the charge as contained in the Information. Thereafter, trial on the merits ensued. It appears from the evidence adduced by the prosecution that on August 25, 1996 at around 10:30 oclock in the evening four (4) barangay tanods, namely: Milagros Tayawa, Jerry Pantilla, Angel Lapitan and Jose Bello, were patrolling on board a barangay patrol vehicle in Barangay Macabling, Santa Rosa, Laguna. Milagros was behind the steering wheel. From the old national highway, they entered the NIA road which was an isolated dirt road seldom used by commuters due to its narrow width. There were no houses and streetlights along the immediate vicinity as the road was bound by an irrigation canal on one side and a stretch of rice field on the other. Subsequently, they met a passenger jeep that was coming from the opposite direction. Milagros had to maneuver backward to accommodate the other vehicle.[3] As the patrol vehicle advanced, the barangay tanods saw a body of a woman lying on the left side of the NIA road. The womans white polo shirt was raised above the chest exposing her right breast and a small wound just below her armpit; while her black pants were lowered down to her knees. Upon ascertaining that the woman was dead, Milagros and her companions immediately informed their chief before proceeding to the Santa Rosa, Laguna Police Station to report the incident. [4] The police examined the cadaver, and then took the sworn statement [5] of Milagros Tayawa on the same evening of August 25, 1996. Dr. Erwin Escal, medico-legal officer, conducted the autopsy on the body of Teresa Teves upon the request of PO2 Tony Gangano. Dr. Escal identified in court the Autopsy Report[6] which shows the following findings: Post Mortem Examination: Fairly developed, fairly nourished female cadaver in rigor mortem with post mortem lividity at the dependent portion of the body. Palpabral conjunctive are pale. Lips and nail beds are cyanotic. There are petechial hemorrhages on the face and neck and subconjunctival hemorrhage on the left lateral conthal region. Head, Neck, Trunk and Extremeties:
1. Hematoma 0.5 x 0.5 cm. mid-pariento occipital area left. 2. Hematoma 0.5 x 0.5 cm. parieto occipital area right.

3. Contusion hematoma right lateral neck, measuring 6 cm. x 0.1 cm. 4. Punctured wound triangular in shape at the mid-axillary line, left pectoralis region measuring 1 x 0.5 x 0.5 cm., non-penetrating. 5. Contusion hematoma 12 x 4 cm. right lateral abdominal region. 6. Abrasion 4 x 2 cm. right lumbar region. 7. Area of contusion hematoma with abrasion right buttocks measuring 7 x 6 cm.

On opening up: The scalp was deflicted to expose the skull and was sawing it off coronally. No skull fracture noted and the brain was grossly normal. Conclusion: The cause of death is asphyxia by strangulation. According to Dr. Escal, the victim could have been strangled (binigti) with the use of a constricting material which may be a wire, a rope or a nylon cord and that the victim may have been dead for not less than thirty-six (36) hours when it was brought to him for autopsy examination at 5:00 oclock in the afternoon on August 26, 1996. [7] On August 29, 1996 Milagros was invited to the Santa Rosa, Laguna Police Station by the PNP Provincial Director, Supt. Arthur Castillo, to identify a certain person and a passenger jeep in connection with the incident on August 25, 1996. She remembered the person, who turned out to be the husband of the victim, herein appellant Hilarion C. Teves, as the driver of the passenger jeep that they met on the NIA road in Barangay Macabling, Santa Rosa, Laguna shortly before they chanced upon the body of a dead woman later identified as Teresa C. Teves. She recognized the appellant when their respective vehicles momentarily stopped facing each other with their headlights switched on. She had also seen the appellant while the latter was sitting on a bench at the back of the Santa Rosa, Laguna Police Station when she came to verify the status of the case on August 27, 1996. Milagros likewise recognized the passenger jeep[8] as the same vehicle being driven by the appellant when they met on the NIA road in the late evening of August 25, 1996. Milagros explained that she instructed her fellow barangay tanods to train their flashlight on its direction after the passenger jeep sped away and she read partly the plate number at the back as DJN 6 which she wrote on a cigarette foil[9] (palara). She also noted the distinguishing features of the passenger jeep such as: a) the maroon paint on the bumper; b) the small lights attached to the bumper; and c) the green reflectorized paints on the bumper. After identifying the appellant and the passenger jeep, Milagros executed another sworn statement[10] before the police.

Upon his detention on the same date of August 29, 1996, the appellant allegedly requested the aunt of the victim, Maria Alulod, who was present at the Santa Rosa, Laguna Police Station, to send his Tata Enteng (Vicente Alulod) to the police station and to bring money for a certain barangay tanod of Barangay Macabling so that his sentence for the commission of the crime would be reduced.[11] Vicente turned down the request as he noted during the wake of Teresa that Hilarion was not actually sorry for his wifes death although he appeared worried (balisa).[12] It also appears that before her untimely demise, Teresa was able to confide with an aunt, Paula Beato Dia, that she had a marital problem. Paula counseled her that it was natural for any husband and wife to have occasional problems. She even suggested to Teresa to seek the advice of her Tata Felix.[13] In July 1996 Teresa approached her uncle, Felix Padua, to seek the latters advice concerning her marital problem. Apparently, her husband, herein appellant Hilarion Teves, proposed that they live separately. He also wanted to secure an arrangement regarding the custody of their children and his wifes consent regarding the disposition of their house and lot. Teresa could not recall any serious reason for her husbands behavior but she surmised that the appellant resented her comment that his peers were all dalaga and binata. Since Felix was busy at that time, he advised Teresa to visit him on another occasion so that they could discuss her problem thoroughly.[14] In the same month of July, Teresa and the appellant went to the house of Felix Padua in Santa Rosa, Laguna. When asked about their problem, the appellant disclosed that he could no longer put up with Teresas jealousy that often caused him embarrassment before his friends. Felix tried to explain that it was common between any husband and wife to get jealous and that appellant should realize that his wife simply loved him very much. However, the appellant would not listen and even imputed that his wife had a bad character.[15] On July 20, 1996 Paula Beato Dia learned from Teresa that the couple had finally decided to live separately after conferring with their Tata Felix. On July 30, 1996 Teresa informed Paula that the appellant became violent (nagwala) over her refusal to sell their properties. Paula then, advised her niece to bring the matter to the barangay officials.[16] The evidence of the defense shows that the appellant stayed in their house during the day on August 25, 1996. He helped his wife, Teresa, washed their clothes. In the afternoon, he watched basketball game on the television and also helped his children with their school assignments. He started to ply the Binan-Cabuyao route with his passenger jeep at 6:30 oclock in the evening as it was his usual schedule. Before leaving however, he told his wife that he would spend the night in the house of his uncle Caloy in Barangay Tagapo, Santa Rosa, Laguna.[17] It appears that the daughter

of his uncle Caloy celebrated her debut which the appellant and his children attended on August 24, 1996. When the party ended, he was requested by the family to help in returning some of the borrowed equipment on the following day. Teresa also left the house at about 8:30 oclock in the evening on the same day allegedly to confer with somebody. She instructed her daughter, Leizel, not to lock the door when they go to sleep. Leizel saw her mother board a tricycle behind the driver, inasmuch as there were already two passengers in its sidecar. [18] Teresa was also seen by another tricycle driver, a certain Edwin Carapatan, at around 9:00 oclock in the evening while she was on board a tricycle behind the driver which was bound for the town proper. Both even greeted each other.[19] Meanwhile due to heavy traffic, the appellant managed to ply his route 2 times only after which he proceeded to the house of his Tiyo Caloy in Barangay Tagapo, Santa Rosa, Laguna. Upon arrival at exactly 8:30 oclock in the evening, the appellant ate his supper. Thereafter, they arranged the things for him to bring home on the following day. Before going to sleep, the appellant joined the family in watching basketball game on the television until the same was over at 10:00 oclock in the evening.[20] When the appellant arrived home in Barangay Sinalhan, Santa Rosa, Laguna on August 26, 1996, he was informed by his youngest child that his wife was not around. According to appellant, he thought that his wife left early on that day to look for a job. He learned that his wife left the house at 8:30 oclock in the previous evening upon arrival of his second eldest daughter, Lalaine, from school at 12:00 oclock noon.[21] The appellant and his neighbors searched for Teresita in the entire afternoon but in vain. At 10:00 oclock in the evening, he heard of talks that a body of a dead woman was found in Barangay Balibago, Santa Rosa, Laguna. He went to Santa Rosa, Laguna Police Station together with a certain Lebong Dia and was instructed by the police to proceed to Funeraria Lim after hearing his description of his wife. At 11:30 in the evening, he saw the dead body of his wife at the funeral parlor which he brought home after midnight.[22] On August 27, 1996, the appellant went back to the police station in Santa Rosa, Laguna where he was initially informed by a certain police officer Laurel that his wife might be a victim of gang rape. However, he learned later that he was a suspect in the killing of his wife when he was investigated by the police. On August 29, 1996, he returned to the police station in Santa Rosa, Laguna upon being informed that Supt. Arthur Castillo would investigate the case. Three (3) barangay tanods, namely: Angel Lapitan, Milagros Tayawa and Gerry Pantilla were present in the police station. Castillo requested them to identify the appellant;

however, none of the three (3) was able to recognize him. The appellant was asked to sit behind the steering wheel of his passenger jeep and was even ordered to wave his hand while pictures of him were being taken. Subsequently, Castillo urged the three (3) barangay tanods to take a good look at the appellant to refresh their memory after which he asked: Ano sa tingin niyo? When no response from the tanods was forthcoming, Castillo again asked: Hindi pa ba ninyo nakikilala yan? After putting his hand on the shoulder of Barangay Tanod Milagros Tayawa, the latter remarked: Parang kahawig niya. Thereafter, Col. Castillo ordered the appellants arrest.[23] On December 7, 1999, the trial court rendered a Decision, the dispositive portion of which reads: WHEREFORE, this court finds accused Hilarion Teves y Cantor, GUILTY beyond reasonable doubt of the crime of Parricide, defined and penalized under Article 246 of the Revised Penal Code, restored in R.A. No. 7659, Imposing Death Penalty on Certain Heinous Crimes, and there being present the aggravating circumstances the herein accused killed his wife (a) during nighttime; (b) in an uninhabited place; and (c) with the use of a motor vehicle (jeepney), hereby imposes upon him the DEATH PENALTY and orders him to indemnify the heirs of Teresa Teves the sum of P100,00.00, as moral damages. The Provincial Jail Warden of Santa Rosa, Laguna is hereby ordered to transfer accused Hilarion Teves y Cantor to the National Penitentiary, New Bilibid Prison, Muntinlupa City, immediately upon receipt hereof. SO ORDERED. Aggrieved by the decision, Hilarion C. Teves appealed to this Court raising the following assignment of errors:
I

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF PARRICIDE AS CHARGED IN CRIMINAL CASE NO. 9620B DESPITE FAILURE OF THE PROSECUTION TO PROVE THE MATERIAL ALLEGATIONS IN THE INFORMATION.
II

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT DESPITE THE INCOHERENCE, INCREDIBILITY AND INADEQUACY IN WEIGHT AND VALUE OF THE CIRCUMSTANTIAL EVIDENCE RELIED UPON.

III

THE TRIAL COURT ERRED IN CONCLUDING THAT THE ACCUSED IS THE PERPETRATOR OF THE CRIME CHARGED BASED ON THE TESTIMONIES OF MILAGROS TAYAWA AND MARIA ALULOD WHICH ARE INCREDIBLE BASED ON COMMON OBSERVATION AND HUMAN EXPERIENCE.
IV

THE TRIAL COURT LIKEWISE ERRED IN INTERPRETING THE EQUIVOCAL TESTIMONY OF DR. EDWIN ESCAL IN FAVOR OF GUILT AND AGAINST THE INNOCENCE OF THE ACCUSED.
V

THE TRIAL COURT ERRED IN DISREGARDING THE DEFENSE OF ALIBI.

VI

THE TRIAL COURT ERRED IN APPRECIATING THE PRESENCE OF AGGRAVATING CIRCUMSTANCES. In his brief,[24] the appellant contends, in essence, that the prosecution failed to establish the identity of the perpetrator of the crime. Under the factual milieu of the case, Milagros could not have recognized the vehicle and its driver which she allegedly met on August 25, 1996. He also contends that the testimonies of prosecution witnesses Felix Padua and Paula Beato Dia to the effect that the appellant and his wife had a misunderstanding were basically anchored on mere suspicion. Moreover, the alleged implied admission by the appellant of his alleged guilt before Maria Alulod, who is an aunt of the victim is incredible as it contradicts common human experience. Lastly, the testimony of Dr. Edwin Escal suggests that several malefactors may be responsible for the killing of the victim. The facts of this case clearly show that nobody had actually witnessed the killing of the victim, Teresita Teves, in the evening of August 25, 1996. To prove its case of parricide against the appellant, the prosecution relied on circumstantial evidence. In order to convict an accused based on circumstantial evidence, it is necessary that: 1) there is more than one circumstance; 2) the facts from which the inferences are derived are proven; and 3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[25] In other words, circumstantial evidence is sufficient to support a conviction where the multiple circumstances are proven and are consistent with the hypothesis that the accused is guilty and at the same time inconsistent with the hypothesis that the accused is innocent as well as

incompatible with every rational hypothesis except that of guilt on the part of the accused.[26] In convicting the appellant of the crime of parricide based on circumstantial evidence, the trial court found that the testimonies of the prosecution witnesses were credible and sufficient. It is well-settled rule that the trial judges assessment of the credibility of witnesses testimonies is accorded great respect on appeal.[27] Appellate courts will generally not disturb the factual findings of the trial courts since the latter are in a better position to weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying, unless it is found that the trial courts have overlooked certain facts of substance and value that, if considered, might affect the result of the case.[28] After thorough review, however, we find sufficient basis to warrant the reversal of the assailed judgment of conviction. The trial court relied on the identification made by Milagros Tayawa during the trial of this case in finding that the appellant was the person driving the passenger jeep that was allegedly met by the four (4) barangay tanods along the NIA road in Barangay Macabling, Santa Rosa, Laguna in the late evening of August 25, 1996 shortly before they accidentally found the dead body of Teresita Teves. We note, however, the irregular manner by which the pre-trial identification of the appellant and his passenger jeep during the custodial investigation on August 29, 1996 was made by Milagros. At that time, the appellant, who was already a suspect in his wifes murder, was alone inside the investigation room of the Santa Rosa, Laguna Police Station and without his counsel. He was also ordered by Supt. Castillo to board his passenger jeep, extend part of his body outside of the vehicle while waving his hand, as if doing some kind of a re-enactment, to be observed by Milagros and two (2) other barangay tanods namely: Jerry Pantilla and Angel Lapitan. We agree with the Solicitor Generals observation that the pre-trial identification in which the prosecution witness was made to identify the suspect (herein appellant) in a one-on-one confrontation, was pointedly suggestive, generated confidence where there was none, activated visual imagination and, all told, subverted the identification of the appellant by the witness. This method of identification is as tainted as an uncounseled confession and thus, falls within the same ambit of the constitutionally entrenched protection.[29] Besides, there is reason to doubt the reliability of the said testimony of Milagros Tayawa. Milagros allegedly recognized the appellant when their respective vehicles momentarily stopped facing each other while their headlights were switched on. In the ocular inspection conducted during the trial on July 2, 1997, it was demonstrated that the two (2) vehicles were initially twenty and one-half (20 ) feet apart when they stopped facing each other. When the barangay patrol vehicle backed off to

accommodate the passenger jeep, the two (2) vehicles were thirty-six and one-half (36 ) feet apart, at which distance the trial court made the observation that the man behind the steering wheel was not cognizable in broad daylight.[30] If the man on the drivers seat was not cognizable in broad daylight, this court is not convinced that an accurate identification of the driver of the passenger jeep, who was allegedly met by the barangay tanods at around 10:30 oclock in the evening on August 25, 1996, can be made even from a distance of twenty and one-half (20 ) feet by the prosecution witness. It must be pointed out that the two (2) vehicles were then passing along an isolated dirt road where there were no houses and streetlights in the immediate vicinity. Under the circumstances, clear visibility was practically improbable, if not impossible, from a distance. There is more reason to doubt the reliability of the testimony of Milagros Tayawa upon consideration of the sworn statement[31] that she gave before the police authorities during the investigation of this case. Her sworn statement contains a narration of the circumstances leading to the discovery of Teresitas dead body. Significantly, no mention was made therein that she had seen the driver of the passenger jeep that they allegedly met in the late evening of August 25, 1996 on the NIA road, much less described his face or his other physical features. It is absurd to believe that Milagros forgot or the police investigators had been so negligent as to overlook this omission in her affidavit. In the first place, the purpose of the investigation was to elicit basic information about the killing, such as the identity of the perpetrator thereof. It was only during the custodial investigation on August 29, 1996 that Milagros claimed in her subsequent affidavit[32] that she had seen the driver of the same passenger jeep after the irregular one-on-one confrontation with the appellant and after unwarranted suggestions had been made to the said witness by the police officer. Notably, the prosecution failed to present the testimony of the other barangay tanods who were likewise present during the incident on August 25, 1996 to corroborate the testimony of Milagros. This is not difficult to understand considering that the statements elicited from Angel Lapitan during the investigation of the case run counter to the testimony that she gave during the trial, to wit:
Tanong: Nakilala ba ninyo ang nagmamaneho at nakuha ba ninyo ang plaka nito? Sagot: Hindi namin nakilala ang driver dahil patay ang kanyang ilaw sa loob at ng aming ilawan and kanyang likuran ay walang plaka.[33]

Due to the above statement of Angel Lapitan before the police investigator, even the testimony of Milagros Tayawa that she recognized the passenger jeep of the appellant as the same vehicle that they met along the NIA road shortly before having accidentally discovered the dead body of the victim, was also rendered doubtful. Besides, the passenger jeep of the appellant had been impounded at the

Santa Rosa, Laguna Police Station since August 27, 1996 or two (2) days before the pre-trial identification of the said vehicle.[34] We also doubt the testimony of Maria Alulod for being contrary to common human experience. It would be highly unlikely and contrary to common sense for the appellant to admit his guilt before this witness, who is an aunt of the victim, while vehemently denying to the police authorities any participation for the death of his wife. It is well-settled rule that evidence, to be worthy of credit, must not only proceed from a credible source but must, in addition, be credible in itself. [35] The motive that allegedly drove the appellant to kill his wife, as testified by prosecution witnesses Felix Padua and Paula Dia, is not convincing. Both prosecution witnesses simply stated in general terms that the appellant and his wife were having a family problem out of the latters jealous attitude and that they decided to separate. These prosecution witnesses failed to furnish any specific incident to the effect that Teresita had actually feared for her life or that appellant had become so desperate as to will the death of his wife. At the most, their testimonies simply manifest a suspicion of appellants responsibility for the crime. Needless to state, however, suspicion no matter how strong can not sway judgment.[36] On the other hand, the victims daughter, Leizel Teves, testified that her family was a normal and happy family. Leizels testimony was corroborated by the victims cousin, Minerva Diaz, who testified that the Teves family was a harmonious and happy family.[37] Additionally, Rosita Barreto, a friend of the Teves family and a neighbor for over seventeen (17) years, attested that the relations of the appellant and his wife were generally smooth.[38] Even if we would assume that the testimonies of the prosecution witnesses were true, it can not be reasonably inferred therefrom that the appellant is responsible for killing his wife in the absence of any other circumstance that could link him to the said killing. To be sure, motive is not sufficient to support a conviction if there is no other reliable evidence from which it may reasonably be adduced that the accused was the malefactor.[39] In view of the foregoing, we cannot sustain the appealed judgment of the trial court in the case at bar. The prosecution miserably failed to establish the circumstantial evidence to prove its case against the appellant beyond reasonable doubt. Consequently, we need not pass upon the merits of his defense of alibi. [40] It is well-entrenched rule in criminal law that the conviction of an accused must be based on the strength of the prosecutions evidence and not on the weakness or absence of evidence of the defense.[41] WHEREFORE, the appeal is GRANTED. The assailed Decision in Criminal Case No. 9620-B is reversed and set aside. The appellant Hilarion Teves y Cantor is

acquitted of the crime of parricide on the ground of reasonable doubt. Unless convicted for any other crime or detained for some lawful reason, appellant Hilarion Teves y Cantor is ordered released immediately. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and SandovalGutierrez, JJ., concur. Puno J., on official leave.

EN BANC

[G.R. Nos. 132635 & 14387275. February 21, 2001]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LAMBERTO VELASQUEZ, accused-appellant. DECISION
MENDOZA, J.:

This is an appeal from the decision,[1] dated February 12, 1998, of the Regional Trial Court, Branch 59, Angeles City, convicting accused-appellant Lamberto Velasquez of (1) acts of lasciviousness committed against his granddaughter Aira Velasquez and sentencing him to suffer imprisonment from 12 years and 1 day of reclusion temporal minimum, as minimum, to 17 years of reclusion temporal medium, as maximum, and to indemnify Aira Velasquez in the amount of P30,000.00; and (2) rape of his stepdaughter Mary Joy Ocampo and sentencing him to suffer the penalty of death and to indemnify Mary Joy Ocampo in the amount ofP50,000.00. In another case for acts of lasciviousness, accused-appellant was acquitted, while two other ones, also for acts of lasciviousness, were dismissed by the court for lack of jurisdiction. In Criminal Case No. 97-307, it was alleged

That sometime in the month of April, 1997, Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the grandfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of AIRA G. VELASQUEZ, a girl of 2 years of age, by inserting his finger into Airas vagina, by means of force and against the will of the said complainant.

ALL CONTRARY TO LAW.[2]

In Criminal Case No. 97-308, the charge was

That sometime in the month of October, 1994, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of MARY JOY D. OCAMPO, then 13 years old, by inserting his finger into Mary Joys vagina, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.[3]
In Criminal Case No. 97-309, it was alleged

That sometime in the month of April, 1997, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of MARY JOY D. OCAMPO, a girl of 16 years of age, by then and there kissing her, caressing and fondling her private parts, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.[4]
In Criminal Case No. 97-310, it was recited

That sometime in the month of March, 1997, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being the grandfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of KIMBERLY O. VELASQUEZ, a girl of 2 years of age, by inserting his finger into Kimberlys vagina, by means of force and against the will of the said complainant. ALL CONTRARY TO LAW.[5]
In Criminal Case No. 97-311, it was alleged

That sometime in the month of October, 1994, in Brgy. Dau, Municipality of Mabalacat, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the stepfather of the complainant, with lewd design and taking advantage of the innocence and tender age of the victim, did then and there willfully, unlawfully and feloniously have carnal knowledge with one MARY JOY D. OCAMPO, then 13 years old, by means of force and against her will and consent. ALL CONTRARY TO LAW.[6]
Accused-appellant pleaded not guilty to the charges against him,[7] whereupon the cases were consolidated and jointly tried. The prosecution presented Mary Joy Ocampo, Angelina Velasquez, Ma. Regail Velasquez, Mary Grace Velasquez, Dr. Edwin Manson, and NBI medico-legal officer Dr. Dominic Aguda as witnesses. On the other hand, the defense presented accused-appellant, Adelaido Velasquez, Sonia Velasquez, Mario Manarang, Rochelle Velasquez, Renato Cruz, and Roberto Velasquez as its witnesses. The evidence for the prosecution is as follows: Accused-appellant Lamberto Velasquez married Caridad Guevarra on March 14, 1965 and begot six children by her, namely, Randy, Rochelle,[8] Regail, Ranold, Renel,[9] and Ryan. During their marriage, he lived in common-law relation with Dolores Cabinan, by whom he had five children, namely, Robert, Rhea,[10] Roan, Roel, and Judan. He lived with Dolores and their children for more than eight years in a house which they rented from Eladio Dungca.[11] After Dolores died in 1984,[12] accused-appellant lived in common-law relation with Eladios married daughter, Angelina.[13] Angelina already had three children by her husband Roberto Ocampo, namely, Mary Grace, Mary Joy, and Edward.[14] She begot two more children by accused-appellant, named Raymond and Raygel. In 1987, accused-appellants wife, Caridad, died of cancer.[15] On November 8, 1989, accused-appellant married Angelina Dungca[16] and brought his children by Caridad and Dolores to live with them in Angelinas three-bedroom house at 5069 New York Street, Don Cornelio, Dau, Mabalacat, Pampanga.[17] In October 1994, Mary Joy Ocampo, then 13 years of age, slept in a room she shared with accused-appellant, her mother Angelina, and her two half-brothers, Raygel, 12, and Raymond, 5. When she woke up in the morning, she found accused-appellant beside her on the floor, her mother having left for the market. Accused-appellant kissed her on the mouth and the breasts. Then he raised her shirt, pulled down her shorts and underwear, and kissed her private parts. Afterward, accused-appellant inserted his middle finger into Mary Joys vagina. Mary Joy felt a sharp pain and tried to resist by kicking accused-appellant, which made the latter remove his finger although he continued kissing her. Accused-appellant then left, but not before warning her to keep quiet and not to tell anyone what he had done to her.[18] Mary Joy ran to the bathroom and examined herself. Her underwear had bloodstains, and her vagina was bleeding. She felt pain when she washed herself. Her mother returned as she was about to go to school, but because of fear of accused-appellant she said nothing.[19]

Two weeks later, still in the month of October, while Mary Joy was watching television alone in the living room, accused-appellant approached her and, though she tried to evade him, he succeeded in forcing her to their room. He lowered her shorts and underwear, raised her shirt and bra, and started kissing her. Then he inserted his middle finger into her vagina and later had sexual intercourse with her. Mary Joy cried out in pain, prompting him to stop, although he continued kissing and fondling her.[20] Up to April 1997, accused-appellant continuously molested Mary Joy, sometimes forcing her to masturbate him and at other times licking her vagina.[21] Regail Velasquez, accused-appellants daughter by Caridad, has a daughter named Aira. On April 16, 1997, at 3 oclock in the afternoon, while Regail was folding clothes, Aira walked into the room crying. Aira complained that her grandfather did something to her, which she demonstrated by opening her right leg and moving one of her right fingers toward her vagina.[22] Regail did not want to believe her daughter and thought that her father was just joking with the latter. However, Aira started to cry. In the days that followed, she noticed that Aira complained of pain in her vagina while taking a bath. When Regail asked her why her vagina hurt, Aira said it was because of the things her grandfather had been doing to her vagina, showing her mother what had been done to her.[23] On April 28, 1997, Regail noticed pus coming out of Airas vagina. She also noticed that her daughter was running a fever, and that her vagina was red and swollen. She took Aira to Dr. Lydia Buyboy, a private physician, who told her that her daughter had lacerations in her vaginal area and that she had probably been fingered. However, the doctor declined to give a medical certificate as she did not want to get involved in any case.[24] Regail went home and told her stepmother everything. Angelina cried as she could not believe what she had been told. Remembering that a similar thing had happened to her sister-inlaws daughter, Regail talked to Mary Grace. Mary Grace Ocampo Velasquez, Angelinas daughter, married Ranold Velasquez, accusedappellants son by Caridad and Regails brother. Mary Grace testified that she had been molested by her father when she was nine years old. She recalled when, as a new couple, Angelina and accused-appellant spent the night at an aunts house in San Fernando, Pampanga. Mary Grace was with them. According to Mary Grace, accused-appellant went to her side, raised her clothes, and fondled her breasts. His hands went lower. She was unable to resist accused-appellants advances because of his strength and threats. To prevent a recurrence of the event, Mary Grace moved out of their house and went to live with her aunt in Angeles City.[25] Kimberly was around Airas age, and Regail remembered hearing that pus had also come out of the childs vagina. When she told her about Dr. Buyboys findings, Mary Grace lost no time and took Kimberly to Dr. Buyboy, who made the same findings.[26] That evening, Mary Grace told her husband Ranold about the doctors examination and findings. But they did not know what to do. They could not talk to accused-appellant as he was always drunk and they were afraid of him.[27] On April 30, 1997, a despedida was held for Angelinas sister Loida Kellow, who was leaving for the United States. On that occasion, Regail told her aunt about Airas and Kimberlys ordeal. Angelina was brought in. They also called Mary Joy who, after drinking

beer, began to tell everything. Mary Grace and Regail were summoned, and eventually they pieced together accused-appellants pattern of abuse. They decided to file a case against him. Early the next morning, Angelina and Loida went to the police station to make a report. They then went back to the house, fetched the children, and brought them to Dr. Lydia Buyboy for medical examination. However, Dr. Buyboy refused to examine the children. They next went to the Mabalacat District Hospital. Meeting the same rejection, they went to the Department of Social Welfare and Development (DSWD), where they obtained the assistance of a certain Mrs. Dimabuyu. They proceeded to the Ospital ng Angeles where, with Mrs. Dimabuyus help, they were able to prevail on Dr. Edwin Manson to conduct a physical examination of Aira, Kimberly, and Mary Joy. However, Dr. Manson told them that Sige, titingnan ko sila pero walang magandang resulta akong maibibigay sa inyo.[28] After the examination, they went home. Accused-appellant was no longer there. They gathered their things and, with their relatives, checked in at the Monte Carlo Hotel in Dau, Mabalacat. There were over 40 of them. They went back to the Mabalacat Police Station and gave their statements.[29] They stayed at the Monte Carlo Hotel for over four days. When they returned home, accused-appellant had not returned. On May 9, 1997, at Loidas prompting, they went to the National Bureau of Investigation (NBI) for another physical examination. NBI medico-legal officer Dr. Dominic Aguda reported the following findings on Aira Velasquez:

GENERAL PHYSICAL EXAMINATION: (Aira Velasquez) Height: 82 cms. Weight: _____ Fairly nourished/developed, conscious, coherent, ambulatory subject Breasts - underdeveloped, immature No extragenital physical injury noted on the subject. GENITAL EXAMINATION: Pubic hair - absent; Labia majora and minora, underdeveloped, coaptated; Hymennal opening - barely admits the tip of the small finger Hymen - short, thin, with old healed incomplete lacerations at 11 and 5 oclock position, corresponding to the walls of a clock; Fourchetteclassically V-shaped. CONCLUSIONS: 1. No evidence of extragenital findings noted on the subject at the time of examination. 2. Genital findings compatible with penetration of an object, on or about the alleged date of commission.[30]
On the other hand, Mary Joy Ocampos medical examination yielded the following results:

GENERAL PHYSICAL EXAMINATION: (Mary Joy Ocampo)

Height: 410 Weight: 90 lbs. Well developed/nourished, conscious, coherent, ambulatory subject Breasts, developed, hemispherical, doughy, areolae, light brown, 2.0 cms. in diameter. Nipples, protruding, 0.9 cm. in diameter. GENITAL EXAMINATION: Pubic hair - thick, fully grown; Labia majora and minora -coaptated, Fourchette, V-shaped, tense. Vestibular mucosa, pinkish. Hymen-short, thin, with old healed lacerated wound complete at 11, 6 oclock; incomplete at 4, 9 oclock position, corresponding to the face of a clock. Hymenal orifice - admits a tube, 2.0 cms. in diameter with slight resistance. Vaginal walls - moderately tight. Rugosities - deep CONCLUSIONS: 1. No extragenital physical injuries noted on the subject at the time of examination. 2. The above described genital findings are compatible with sexual intercourse with man, on or about the alleged date of commission.[31]
The defense then presented the following evidence: In 1965, accused-appellant worked as a photographer/laboratory technician in the Audio Visual American Company at Clark Air Field. In August 1967, as a result of a reduction of the labor force, he was forced to leave the company and thereafter worked as a jeepney driver until 1982 when he was reinstated.[32] In 1988, he was transferred to the Department of Defense Police, with the rank of major, earning P560.00 a day. He worked at Clark Air Field in January 1991.[33] At that time, he was living with Angelina. They earned a living as fish dealers while receiving financial help from relatives abroad.[34] Accused-appellant remembered having met Angelina Dungca for the first time in the middle of 1984. Toward the end of that year, he started courting her, because he thought that her marriage was void as it had been performed by a barangay captain. It was only when he was already detained at the Angeles City Jail that he asked his brother to verify the legal status of Angelina Dungcas previous marriage.[35] Accused-appellant denied the allegations against him.[36] He said there were always several people in their house at any time, and so it was impossible for him to have an opportunity to molest any of the complainants.[37] Accused-appellant believed that Mary Joy had accused him because he always noticed whenever she came home late and scolded her.[38] As for Mary Grace Ocampos complaint, accused-appellant claimed he was in fact the one who caught Kimberly playing with her organ and that he reported this to Kimberlys parents.[39] Accused-appellant believes that Regail filed the complaint against him because he had scolded her and punished her when she went out on a date with a married man, and again when she went out with her cousin after she had married Meryll Robertson.[40] As to Roan, accused-appellant claimed he never molested her.[41] Of his granddaughter Aira, accused-appellant said:[42]

COURT: How about this Aira, the daughter of Regale Velasquez, did you take care of your granddaughter Aira? A Yes, sir. Si Aira ay nagpunta sa amin noong galing siya sa mga auntie niya sa Mabalacat at ang nanay niya sometimes in January dahil pakakasal nga siya sa Amerikano. Noong napunta sa amin si Aira, si Aira ay isang maldita at lumalaban ng bata. Madaldal ang batang iyan. Ano man ang gawin mo sa kanya marunong nang magsinungaling. Kunin niya o mo ang pera at tanungin mo kung sino ang kumuha ng pera, ang sasabihin niyan si Tatay. Paluin mo maski hindi ikaw ang kumuha ng pera, ang sasabihin si tatay. Paluin mo maski hindi ikaw ang pumalo sasabihin niyan si Tatay. Pero may insidenteng nangyari diyan noong nagdumi siya sa labas, wala siyang panty. Sabi ko, pumasok ka sa loob at mag-panty ka dahil maraming sasakyang dumadaan diyan. Umasta siyang paganoon. Pinalo ko siya ng flies wiper (sic).

COURT: That was the reason why she pointed to you? A Maari po. Hindi lang po iyon. Noong sinasawata kong lumalaban siyang paganoon, sabi ko pumasok kat mag-panty, kinuha ko ang lighter. Sabi ko, susunugin ko iyan pekpek mo kako. Lumalaban pa at pinalo ko. Doon tumakbo siyang umiiyak. And you did what you threatened? No, sir. Pinalo ko lang ng flies wiper (sic). And Aira was then only less than two (2) years old? Opo. Madaldal na po iyan maski bata pa.

Q A Q A

On April 30, 1997, during Loida Kellows despedida, he was drinking with his friends when he developed a headache and decided to sleep. At around 10 oclock in the evening, he was awakened by his son Renel who gave him glass of bitter liquid to drink. The drink contained sleeping pills.[43] After taking one sip, he set it aside. When he woke up the next morning, he looked for his
family, but they were not around. He got home at 8 oclock in the evening, but there was still no sign of them. [44]

The following day, he went to Manila. He pawned his watch and ring and bought a ticket on the Super Ferry 10. At 9 oclock that evening, he sailed for Cebu and stayed with his eldest son, Rolando Velasquez.[45] Three weeks later, he learned of the cases filed against him from the newspapers and television. However, because he had no job and no money, he was unable to return to Pampanga to clear his name. He was found in Cebu and arrested in July.[46] Accused-appellants younger brother, Adelaido Velasquez, a teacher by profession, testified that accused-appellant Lamberto Velasquez is a man of good repute and moral character. They respect and obey him.[47] Sonia Velasquez, a younger sister of accused-appellant, described the latter as a brave and strict man with a loud voice. She also testified that he is a karate instructor, and could hurt another by merely holding him. According to her, Angelina Dungca had disclosed to her and to Adelaido accused-appellants abuses, but she never got around to confronting him.[48] Rochelle, accused-appellants daughter by his first wife, also described her father as a disciplinarian. She testified that while her father was still married to her mother Caridad, he

divided his time between her mother and Dolores. When Dolores died, her father lived with Angelina Dungca but occasionally visited her mother Caridad. She said that her sister Regail had told her what accused-appellant had done to Aira. Her brother Ranold Velasquez and sister-in-law Mary Grace Velasquez also told her that Kimberly had been molested by their father. Angelina and Loida then suggested that their father should be killed. As her brothers Ranold, Renel, and Roberto did not agree, Angelina and Loida decided to leave the house and escape from Lamberto Velasquez. [49] Renato Cruz, Rochelles husband, testified that, from the window in their house, he saw accused-appellant being given a drink containing a sleeping pill. He also testified that Loida and Angelina wanted accused-appellants children to cover their fathers mouth with a pillow while he was asleep, but they did not have the courage to do so.[50] Roberto Velasquez, another son of Lamberto Velasquez, also testified for his father, saying that her aunt Loida ordered his brothers to kill their father but Renel did not agree and suggested instead to give him sleeping tablets.[51] Mario Manarang, a barangay councilman of Dau, Mabalacat, Pampanga and a long-time friend and neighbor of Lamberto Velasquez, testified that he used to play cards and mahjong almost everyday after lunch with the Velasquez family. He admitted having asked Angelina Velasquez to have the cases dismissed and to settle things peacefully, but the latter refused. He was not familiar with the former women in accused-appellants life, only with Angelina, and admitted that, though he gambled with accused-appellant almost everyday, he was not very familiar with his friends family life.[52] On April 14, 1998, the trial court rendered a decision,[53] the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. In Criminal Case No. 97-310, for insufficiency of evidence, the accused is hereby ACQUITTED of the crime charged in the Complaint; 2. Criminal Cases No. 97-308 and Criminal Case No. 97-309 are hereby DISMISSED for lack of jurisdiction; 3. In Criminal Case No. 97-307, the accused is found GUILTY beyond reasonable doubt of the crime of Acts of Lasciviousness and is hereby sentenced to suffer imprisonment ranging from twelve (12) years and one (1) day of reclusion temporal minimum as minimum to seventeen (17) years of reclusion temporal medium as maximum; 4. In Criminal Case No. 97-311, the accused is found GUILTY beyond reasonable doubt of the crime of Incestuous Rape and is hereby sentenced to suffer the supreme penalty of DEATH.

Accused Lamberto Velasquez is further ordered to indemnify the victim Mary Joy Ocampo in Criminal Case No. 97-311 the sum of P50,000.00 and Aira Velasquez in Criminal Case No. 97-307 the sum of P30,000.00.
For review in these proceedings, therefore, is the trial courts decision in Criminal Case No. 97-307 for acts of lasciviousness against accused-appellants granddaughter Aira Velasquez, and in Criminal Case No. 97-811 for rape against his stepdaughter Mary Joy Ocampo. Accusedappellant assigns the following errors as having been committed by the trial court:
I The trial court erred in denying the accused of his right to preliminary investigation. II. The trial court erred in admitting the testimony of Regail Velasquez even if it is hearsay evidence and polluted testimony. III. The trial court erred in holding there was rape on October, 1994 and erred in giving credibility to Mary Joy Ocampos testimony despite her unbeli[e]vable and inconsistent testimonies. The trial court erred in not giving credence to the testimonies of Lamberto Velasquez, Adelaido Velasquez, Sonia Velasquez, Mario Manarang, Roselle VelasquezCruz, Renato Cruz and Roberto Velasquez.

IV.

First. Accused-appellants claim that he was deprived of the right to a preliminary investigation deserves scant consideration. As the Solicitor General points out in his brief for the appellee:

It is an established jurisprudence that the issue of lack of or a defective preliminary investigation should be raised before or during trial and such statutory right to a preliminary investigation is deemed waived when appellant, as in this case, failed to claim it before plea (People vs. Paras, 56 SCRA 248). Moreover, in appellants arguments, it is unclear whether this alleged motion for preliminary investigation which was denied by the trial court was anchored on the lack of it or merely a defect thereon or a mere motion for reinvestigation. When it does not appear from the record that a preliminary investigation was not granted the accused, it must be presumed that the proceedings in the trial court were in accordance with law. So that where no objection has been made at the trial, appellant must be taken to have waived his right to a preliminary investigation if in fact he was not given the benefit thereof. Failing to raise the issue of lack of preliminary investigation during the trial, appellant is now estopped to raise this issue (for) the first time on appeal. At any rate, absence of preliminary investigation merely affects the regularity of the proceedings but does not affect the trial courts jurisdiction or impair the validity of the information.[54]
Indeed, under Rule 112, 7(3) of the Revised Rules of Criminal Procedure, requests for preliminary investigation must be made to the trial court within five days from the time the accused learns of the filing of complaint or information. Here, the complaints against accused-

appellant were filed in the Regional Trial Court of Angeles on May 22, 1997.[55] By his own admission, accused-appellant learned of the filing thereof shortly thereafter, when he heard of the same on television and read it in the newspapers in Cebu City. Yet, he did not ask for preliminary investigation until September 3, 1997. The trial court, therefore, correctly denied his motion, thus:

[I]t appearing that the accused was indeed aware of the filing of the charges against him several months ago before the Office of the City Prosecutor and that instead of participating in the said preliminary investigation, he went into hiding and [was] arrested only recently after the cases were filed against him several months ago, the accuseds motion for reinvestigation and to defer arraignment was denied in open court. Upon being arraigned, the accused assisted by his counsel pleaded NOT GUILTY to all the charges filed against him.[56]
The case of People v. Rolito Go,[57] which accused-appellant invokes, is different because there the accused asked the public prosecutors office for preliminary investigation on the same day the information for murder was filed in the trial court. In contrast, accused-appellant Lamberto Velasquez waited until he was arrested and brought to court before invoking his right to a preliminary investigation. He is obviously late in invoking his right. The presumption is that an investigation had been held but accused-appellant could not be found. Failing to invoke his right to a preliminary investigation during the trial, accused-appellant is deemed to have waived the same. Second. The trial court based its conviction of accused-appellant for acts of lasciviousness against Aira Velasquez on the testimony of Regail Velasquez, Airas mother, who testified on what her daughter had told her. Aira herself was not presented in court, being a mere child of two and a half years old. To aapreciate Regails testimony, the relevant portion of the same should be quoted:
Q A Q A Q A Q A Q In the month of April 1997 at about 3:00 oclock in the afternoon, do you recall where were you? Opo. Where were you then on that time and day? Nasa kuwarto po ako nagtutupi ako ng sinampay. While you were doing all those things, do you recall of any unusual incident that came into your personal knowledge? Opo. Umakyat po sa kuwarto si Aira. Umiiyak po siya na nagsasabi siya sa akin na inaano po siya ng tatay ko, minomolestiya. What exactly did you notice when Aira went up to your room and reported this matter to you? Sinabi niya sa akin kung paano inaano ng tatay ko. Binukaka niya iyong isa niyang paa tapos inaano ang daliri sa ari niya. What do you mean by inaano?

Tinutusok ang daliri. (Witness demonstrating how it was done by exactly opening her right foot and her finger pointing to her vagina and doing to and fro movement)

PROS. PORNILLOS: You mean to tell us, she demonstrated how the act was done? A Q A Yes, sir. Will you please stand up and demonstrate how Aira demonstrated what was done to her? Ganoon nga po. (Witness demonstrating by raising her right foot with the right finger pointing to her sex organ doing to and from movement towards her vagina) Q A Q A Did you come to know from her who was doing that? Opo. What did you receive from Aira was the one who was doing that? Tatay ko daw po. Ang tawag niya sa tatay ko ay tatang. . . . . Q Who is this Tatay or Tatang you are referring to? Siya po, si Lamberto Velasquez. (Witness pointing to Lamberto Velasquez) COURT: When was that when your daughter came to you? WITNESS: April po iyon. April 16, 3:00 oclock in the afternoon. COURT: How old was Aira then? WITNESS: 2 years old and 4 months, po. Q A Q A Q A Q 2 years old and 4 months? Opo. She went to you crying? Opo. What were the exact word uttered by that Aira? Mama, Mama sabi niya tapos umiiyak po siya, tapos sabi ko, ninano ka? I-tatang, itatang. Bakit ninanu na kang tatang sabi ko. She was crying with tears flowing from her eyes?

A Q A Q A

Opo. When she uttered, Mama what did you say? Ninanu ka. (What happened to you) What did Aira tell you? Si Tatang kakayan na ku pu.

INTERPRETER: Tatang is doing something on me. COURT: Then what happened next? WITNESS: Tinanong ko siya kung ano ang ginawa sa kanya, Binukaka ang paa. (Witness demonstrating that she slightly opened her foot and her finger pointing to her vagina making to and fro movement) COURT: Then what happened next? WITNESS: Sinabi ko sa kanya baka niloloko ka lang, tapos umiiyak po siya. COURT: She was crying? WITNESS: Iyon nga po. Inaano daw po ng tatay ko, masakit daw ang ari niya. Q A Q A What is the exact word? Masakit ang pek-pek ko. (My vagina hurts) Then what did you do next? Hindi ko gaanong pinansin dahil baka binibiro lang siya ng tatay ko.

PROS. PORNILLOS: After that you said you did not mind the same because you said he was just joked upon or teased. After that April 16, 1997, what did you find out next? WITNESS: Noong sumunod na iyon, araw-araw ko siyang pinapaliguan dumadaing po siya, masakit daw ang kanyang ari, tapos tinanong ko siya kung bakit dahil wala naman akong alam na dahilan na ikakasakit ng ari niya. Iyon nga po laging sinasabi sa akin na inaano daw ng tatay ko. COURT: Ano ang eksaktong salita ng bata.

WITNESS: Sabi niya. I-tatang kasi, kinayi ne pu ing pekpek ku kaya masakit ya. WITNESS (Interpretation) (Tatang is doing something on me on my vagina) COURT: Did you ask her what her tatang did to her vagina? WITNESS: Opo. Ganoon din po dinemonstrate kung paano. Q A Q A The answer, she will demonstrate? Opo. How? Binuka iyong isang paa. Ginanon o. (Witness demonstrating how it was done by slightly opening her right foot or raising her foot and by using her right finger pointing to her vagina with a to and fro movement) Q A Q A Q A Q A What did you notice on the vagina of your daughter? My lumalabas na nana. Did you inspect the vagina? Opo. Pulang-pula tapos may lumalabas na nana sa vagina. When you notice this nana on the vagina of your daughter, what action did you take, if any? Nilalagnat po siya noon, tapos dinala ko siya sa doctor Pinatignan ko po siya. Dinala ko kay Dra. Lydia Buyboy Sa private doctor, po. What happened at the clinic of Dra. Buyboy? Sinabi niya na may laceration iyong ari ng anak ko tapos may impeksiyon po siya.[58]

As the Solicitor General contends, Airas acts and statements constitute exceptions to the hearsay rule because they were part of the res gestae. The inculpatory and spontaneous statements were: (1) Si Tatang kakayan na ku pu. (Tatang (accused-appellant) has been doing something to me.) (2) I-tatang kasi, kinayi ne pu ing pekpek ku kaya masakit ya. (Because Tatang has been doing something to my private part, that is why it hurts.) (3) She showed her mother her private part, which was swollen and oozing with pus, and then she gestured, by slightly opening or raising her right foot and using her right finger, to show what accusedappellant had done to it. In People v. Cloud,[59] Josephine Aguilar was at the emergency room of a hospital to have some stitches removed from her daughter's head when she saw a boy being carried by a man, followed by an old woman who was shouting hysterically. The boys face was swollen and bruised and his body covered with dry blood. The old woman, apparently the boys grandmother, cried and repeatedly screamed, "Pinatay siya ng sariling ama!" (He was killed by his own father.) The old woman told the people inside the emergency room that the boy's father

had beaten him up, tied his hands, and stabbed him. On the question of the admissibility of Mrs. Aguilars testimony, this Court ruled:

Insofar as the statements of Rufina Alconyes are concerned, they are admissible as part of the res gestae, they having been caused by and did result from the startling, if not gruesome, occurrence that she witnessed; and these were shortly thereafter uttered by her with spontaneity, without prior opportunity to contrive the same. The report made thereof by Josephine Aguilar is not hearsay since she was actually there and personally heard the statements of Alconyes which she recounted in court. Her account of said statements of Alconyes are admissible under the doctrine of independently relevant statements, with respect to the tenor and not the truth thereof, since independent of the truth or falsity of the same they are relevant to the issue on the cause of the death of the victim.[60]
We hold, therefore, that Airas statements and acts constitute res gestae, as it was made immediately subsequent to a startling occurrence, uttered shortly thereafter by her with spontaneity, without prior opportunity to contrive the same. Regails account of Airas words and, more importantly, Airas gestures, constitutes independently relevant statements distinct from hearsay and admissible not as to the veracity thereof but to the fact that they had been thus uttered. Under the doctrine of independently relevant statements, regardless of their truth or falsity, the fact that such statements have been made is relevant. The hearsay rule does not apply, and the statements are admissible as evidence. Evidence as to the making of such statement is not secondary but primary, for the statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such a fact.[61] Accused-appellant seeks to discredit the testimony of Regail Velasquez by attempting to prove that she is a woman of loose morals. We fail to see, however, how proof of her past relationships with other men can have any bearing on her credibility as a witness in her daughters trial. As the trial court reminded accused-appellants counsel, the witness is not the accused in this case.[62] Regails testimony is buttressed by Dr. Agudas testimony and medico-legal report. While he admitted that the pus in the vagina could be caused by an infection, bad hygiene, or improper urination, he also said the infection could have been caused by the insertion of the finger. Dr. Aguda testified:
WITNESS: I am referring to the findings of the hymen. Since an examination of the hymen, it was found out that there is an incomplete laceration at 11 o'clock and 5 oclock position. Meaning that there was an object that forcefully entered into the hymenal opening causing the incomplete laceration. Q: A: Like what? Finger but not erected penis.[63]

Accused-appellant also questions the fact that when Aira was examined on May 9, 1997, Dr. Aguda discovered an old healed laceration, which usually indicates that the injury was inflicted

more than one month prior to the examination, whereas the date of the alleged molestation was on April 16, 1997, one week short of a month. This discrepancy was already explained by Dr. Aguda to the satisfaction of the trial court. According to the doctor, the medical classifications and periods were based on adult cases, whereas Aira was a little child with a very small hymen, and the laceration was very superficial. Understandably, then, the results varied slightly. [64] The Court is not unaware of the caution to be observed when circumstantial evidence is to be considered as inculpatory indicia in a criminal prosecution. That is why it has spent an unusual amount of time and effort to reflect upon all the circumstances which the lower court accepted as an unbroken chain of events, reinforced by corroboration and yielding a conclusion of guilt, all consonant with the requisites therefor.[65] But, in this case, the chain of facts cannot but produce an inference consistent with guilt and not with innocence. It is highly unlikely that a child of Airas age would be able to concoct such a depraved tale and compliment it with such disturbing gestures with only the fantastic intention of implicating her grandfather. To sum up, the following circumstances establish accused-appellants guilt: Regails account of her daughters words and actions, her personal knowledge of the pus discharged from her daughters vagina and the NBI medico-legal report confirming it, and accused-appellants bare denials, compounded with his unexplained flight to Cebu, bringing little more with him than the clothes on his back.[66] Taken together, these are sufficient to convince us of the truth of the allegations against accused-appellant. The rule is settled that we give due deference to the observations of trial courts on questions of credibility of witnesses since they have a better opportunity for observation than appellate courts. For this reason, the trial courts evaluation of testimonial evidence is accorded great respect.[67] Aira is a two-year old child. The penalty imposable for acts of lasciviousness against children under 12 years of age should be that provided by R.A. 7610, which is reclusion temporal in its medium period. Accused-appellant is Airas grandfather. His relationship to his victim aggravates the crime, and, as provided by R.A. 7610, Section 31, the penalty shall be imposed in the maximum period when the perpetrator is an ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity. Hence, the maximum period of reclusion temporal medium should be imposed. Applying the provisions of the Indeterminate Sentence Law, the minimum of the penalty to be imposed should be reclusion temporal minimum.[68] In Criminal Case No. 97-307, the trial court sentenced accused-appellant to suffer a prison term ranging from 12 years and 1 day of reclusion temporal minimum, as minimum, to 17 years of reclusion temporalmedium, as maximum, and to indemnify complainant Aira Velasquez in the amount of P30,000.00. This is correct, and we, therefore, affirm it. Third. The trial court convicted accused-appellant for the rape of Mary Joy Ocampo based on her testimony and the physical evidence presented. Indeed, the accused may be convicted solely on the basis of the testimony of the rape victim, if such testimony is credible, natural, convincing, and consistent with human nature and the normal course of things. We adhere to this principle in the case at bar.

Accused-appellant questions the credibility of Mary Joy Ocampo because of a three-year delay in reporting the alleged rape. Delay in reporting an incident of rape is not necessarily an indication that the charge is fabricated.[69] In these cases, the delay was caused by fear. It is apparent from the testimony of witnesses, both of the prosecution and of the defense, that accused-appellant was a man to be feared. He brooked no disobedience even from his own brothers and sisters and was so feared that, even when his life and his freedom were gravely threatened, nobody, not even his own brother, was willing to wake him and confront him with the accusations. His wife, his children, and close relatives fled their home and lived in a hotel for four days to escape his ire. Physically, he was intimidating. He is a black belter in karate and, according to his own sisters testimony, he could hurt a person merely by holding his hand. In fact, accused-appellant threatened Mary Joy with harm if she told anyone what accused-appellant had done to her.[70] It is, therefore, easy to see why Mary Joy kept her silence. Accused-appellant contends that there were several inconsistencies in the testimony of Mary Joy Ocampo. As the trial court said, however:

Similarly, Mary Joys alleged inconsistent testimonies as to whether or not she knew Jesus Tootsie Mendoza or Robertson is inconsequential. At any rate, Mary Joy clarified these points: 1. If this Robertson is a family name, she knew (him) as the person who will marry her sister (p. 41, tsn, December 31, 1997). 2. As to Jesus Mendoza alias Tootsie, Mary Joy claims that she does not know Jesus Mendoza although her mother declared that Mary Joy knew Tootsie Mendoza. It is apparent that Mary Joy knew of a Tootsie Mendoza, but not a Jesus Mendoza. So, also, Mary Joys alleged inconsistent testimony as to whether her mother was in the market or asleep in the house when she was raped is readily explicable or reconcilable. Mary Joy testified that the first time Lamberto inserted his finger on her sexual organ, her mother was in the market and when appellant finally succeeded in inserting his sexual organ into Mary Joys, nobody was at home except her other brothers who were asleep. Evidently, in both instances, Mary Joys mother was not in the house.[71]
Inconsistencies on minor or inconsequential matters do not impair the essential integrity of the prosecutions evidence as a whole, nor detract from the witnesses testimony. On the contrary, they strengthen rather than weaken the credibility of the prosecution witnesses because they erase the suspicion of a rehearsed testimony.[72] A rape victim cannot be expected to keep an accurate account of her traumatic experience. Discrepancies could be caused by the natural fickleness of human memory.[73]

Mary Joys testimony is corroborated by medical findings of hymenal lacerations, which the trial court found meritorious. Dr. Aguda testified on cross examination:
ATTY. CLEMENTE: You mentioned about this conclusion that the above description genital findings were compatible on sexual intercourse with a man on or about the alleged date of commission. When you said date or commission when was that? A As I stated earlier, the types of laceration were old and healed and it [is] possible that those laceration[s] were made on the victim at the time of the commission of the crime. As relayed to me it started on October 1994 up to April 1997, it is possible. You mentioned that the described findings were possible with sexual intercourse with a man and you confirmed to this Honorable court that the most logical object that entered the female organ of Mary Jane was the penis of a man? Yes an erected penis, sir. In degree of compatibility, how much percent sure that it is an erected penis that entered the female organ of Mary Joy? 80%, sir. . . . . Q A So the most probable is male organ? Yes, sir.[74]

A Q A

On the other hand, accused-appellant merely makes a bare denial of the charges against him. Yet, despite the fact that he had no money and no extra clothes to bring with him for a long trip, he hastily left for Cebu City. His only excuse was that masama ang loob ko[75] and that he feared for his life. He did not, however, report the alleged attempt on his life, nor did he surrender himself to the Cebu authorities when he learned of the cases filed against him. Accused-appellant said that there was always a large number of people in their house, such that he would have had no opportunity to commit the crimes charged against him. Rape has been known to be committed in places ordinarily considered as unlikely. The scene of the rape is not always nor necessarily isolated or secluded. It can be committed in places where people congregate, in parks, along the roadside, within school premises, inside an occupied house, and even in a room where other members of the family are sleeping. Among couples with big families who live in cramped quarters, the presence of other members of the family is not necessarily a deterrent to the commission of this crime.[76] In this case, it is not impossible for the rape to have taken place inside a small room with five occupants therein, including accused-appellant and Mary Joy. Nor is there merit in accused-appellants claim that Angelina instigated their children to file these cases so she can be free to marry an American. As we have observed, it is unnatural for a parent, especially a mother, to use her offspring as an engine of malice and expose her daughters to the pity attached to rape victims simply for a stab at a better life. [77] Besides, accusedappellants children are already grown up, and Regail is not even Angelinas daughter. At the time of the trial, Regail was 28, Mary Joy was 17, and Mary Grace, who testified on Airas behalf and admitted she too had been molested as a child, was 20, lived in another house, and

had a family of her own. It is inconceivable that they would concoct a story of defloration and expose either themselves or their daughters to public trial unless they were motivated by the desire to have the culprit apprehended and punished.[78] Fourth. The penalty imposed by the trial court on accused-appellant in Criminal Case No. 97-311 must be modified. Art. 335 of the Revised Penal Code, as amended by 11 of R.A. 7659, provides in pertinent part:

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.
The concurrence of the minority of the victim and her relationship to the offender being a special qualifying circumstance, which increases the penalty (distinguished from a generic aggravating circumstance which only affects the period of the penalty), should be alleged in the information, consistent with the constitutional right of the accused to be informed of the nature and cause of the accusation against him. In People v. Manggasin,[79] the information charged the accused with the rape of his stepdaughter but the evidence showed that the accused and the complainants mother were not married but had merely been living in common-law relationship. The accused was convicted of simple rape only. Thus, although a common-law husband is subject to punishment by death in case he commits rape against his wifes daughter, nevertheless the death penalty cannot be imposed on accused-appellant in this case because the relationship alleged in the information in Criminal Case No. 97-311 against him is different from that actually proven. Accordingly, accused-appellant must be held liable only for simple rape and sentenced to reclusion perpetua as the proper penalty. In this case, the information in the Criminal Case No. 97-311 alleged that accused-appellant, who is the stepfather of the complainant, succeeded in having carnal knowledge of the latter, who was then 13 years old. However, while it appears that accused-appellant married Angelina Dungca on November 8, 1989 (Exh. F), the Court has serious doubts about the validity of their marriage, considering that Angelinas previous marriage to Roberto Ocampo, the father of Mary Joy Ocampo, was still subsisting at that time. In fact, Mary Joy admitted that her father Roberto Ocampo was still alive when her mother contracted her second marriage. As to the civil liability of accused-appellant, the Court finds that the award of P50,000.00 for civil indemnity is in order. In addition, however, he should be ordered to pay P50,000.00 as moral damages which requires no proof because it is assumed that the victim has suffered moral injuries entitling her to such an award.[80] WHEREFORE, in Criminal Case No. 97-307, the decision of the Regional Trial Court, Branch 59, Angeles City, finding accused-appellant Lamberto Velasquez guilty of acts of lasciviousness and sentencing him to suffer the penalty of imprisonment ranging from 12 years and 1 day of reclusion temporal minimum, as minimum, to 17 years of reclusion

temporal medium, as maximum, and ordering him to indemnify Aira Velasquez in the sum of P30,000.000, is hereby AFFIRMED. In Criminal Case No. 97-311, the decision of the same court finding accused-appellant Lamberto Velasquez guilty of rape and sentencing him to death is hereby MODIFIED. Accusedappellant Lamberto Velasquez is found guilty beyond reasonable doubt of simple rape and sentenced to reclusion perpetua and ordered to pay P50,000.00 in moral damages in addition to the amount of P50,000.00 as civil indemnity ordered by the trial court to be paid by him. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.