Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 180281               July 01, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, 

vs.
JOEMARIE JALBONIAN alias "Budo", Accused-Appellant.

DECISION

DEL CASTILLO, J.:

"Well-settled is the rule that the testimony of a lone prosecution witness, as long as it is credible and
positive, can prove the guilt of the accused beyond reasonable doubt." 1

On appeal is the June 7, 2007 Decision2 of the Court of Appeals (CA) in Criminal Case No. CA-G.R. CR.
HC No. 00565 which affirmed with modification the March 5, 2003 Decision 3 of the Regional Trial Court
(RTC), Branch 61, Kabankalan City, Negros Occidental in Criminal Case No. 917 declaring appellant
Joemarie Jalbonian alias "Budo" (appellant) guilty beyond reasonable doubt of the crime of murder.

Factual Antecedents

On July 30, 1991, an Information4 for murder was filed against appellant, the accusatory portion of which
reads as follows:

That on or about the 26th day of January 1991, in the municipality of Ilog, province of Negros Occidental,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, who is still at-
large, armed with a bladed weapon, with evident premeditation, treachery and with intent to kill, did, then
and there, willfully, unlawfully, and feloniously attack, assault and stab one FORTUNATO QUINTANILLA,
JR., thereby inflicting [a] mortal stab wound [on] the back of the body of the latter, which caused the death
of said victim.

CONTRARY TO LAW.5

Appellant went into hiding for more than five years and was apprehended only on July 10, 1996. 6 During
his arraignment, he entered a plea of "not guilty". 7 Thereafter, trial ensued.

Evidence for the Prosecution

Barangay Chairman Oscar Valenciano (Valenciano) testified that at 9:00 a.m. of January 26, 1991, a
barangay assembly meeting was held in Balicotoc Elementary School, a public educational institution
located in Brgy. Balicotoc, Ilog, Negros Occidental. 8 After the meeting was adjourned at noon, the
participants including Valenciano left the school premises. 9

From a distance of about three-arms length, Valenciano saw appellant position himself behind Fortunato
Quintanilla, Jr.10 (Quintanilla), stab the latter on the back with a knife, and immediately run
away.11 Valenciano ordered Julio Gaston, a member of the Citizens Armed Forces Geographical Unit
(CAFGU), to chase appellant but the latter eluded arrest. 12
Quintanilla was brought by Valenciano to the nearest hospital but he died before reaching there. 13

The prosecution also intended to present as witness Dr. Ricardo P. Garrido, Rural Health Officer of Ilog,
Negros Occidental, but his testimony was dispensed with14 as the prosecution and the defense stipulated
on the existence of the death certificate15 issued by him indicating that the victim died on January 26, 1991
due to shock and hemorrhage resulting from a stab wound.

Recourse of the Defense

After the prosecution rested its case, appellant filed a Motion for Leave to File [a] Motion to Dismiss (by
way of Demurrer to Evidence).16 However, the trial court denied the motion in its Order dated May 14,
2002.17 Despite the denial, the defense did not present any evidence anymore.

Ruling of the Regional Trial Court

On March 5, 2003, the trial court rendered a Decision 18 convicting appellant of murder qualified by
treachery. It gave credence to the testimony of Valenciano who identified appellant as the perpetrator of
the crime and gave a detailed account of the stabbing incident. The trial court found that Valenciano had
no reason to falsely testify against the appellant and that his account as to how appellant stabbed the
victim was corroborated by the death certificate. In addition, the trial court considered appellant’s flight for
more than five years as indication of his guilt. The dispositive portion of the trial court’s Decision reads as
follows:

WHEREFORE, premises considered, the Court finds accused Joemarie Jalbonian guilty beyond
reasonable doubt of [the] crime of murder as charged[,] qualified by treachery and hereby sentences him
to a penalty of RECLUSION PERPETUA and to pay the heirs of the victim Fortunato Quintanilla, Jr. the
amount of ₱50,000.00 by reason of his death.

It is hereby ordered that the accused be immediately remitted to the National Penitentiary.

SO ORDERED.19

Appellant filed a Notice of Appeal,20 which the RTC approved in its Order21 of April 10, 2003. Pursuant
thereto, the records of the case were elevated to this Court. However, in view of our ruling in People v.
Mateo22 this case was remanded to the CA for intermediate review.

Ruling of the Court of Appeals

In its June 7, 2007 Decision,23 the CA affirmed appellant’s conviction but modified the RTC’s judgment by
ordering appellant to pay the heirs of the victim exemplary damages, viz:

WHEREFORE, in x x x view of the foregoing premises, the instant appeal is hereby DISMISSED and the
decision of the court a quo is hereby AFFIRMED with MODIFICATION in that accused-appellant
Joemarie Jalbonian is further ordered to pay the heirs of the deceased Fortunato Quintanilla, Jr.
exemplary damages in the amount of Twenty Five Thousand Pesos (₱25,000.00). The decision of the
trial court is AFFIRMED as to all other respects.

SO ORDERED.24

Hence, the appeal before us.

Assignment of Error
Appellant seeks his acquittal by assigning the lone error that:

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE

CRIME CHARGED DESPITE THE INSUFFICIENCY OF EVIDENCE TO PROVE HIS [GUILT] BEYOND
REASONABLE DOUBT.25

The Parties’ Arguments

Appellant assails the credibility of Valenciano and contends that the RTC erred in relying on the latter’s
testimony which was incredible and insufficient to prove his guilt. He posits that if Valenciano was indeed
following the victim, then the latter could not have seen the face of the attacker who must necessarily
position himself between him and the victim. And in order for the assailant to stab the victim from behind,
his back must be turned against Valenciano. Moreover, Valenciano’s testimony was not even
corroborated.26

Appellant likewise asserts that the fatal stab wound on the back of the victim is not by itself proof of
treachery. He maintains that there is nothing on record to prove that he stabbed the victim’s back to
ensure the execution of the crime or to deprive the victim of any chance to defend himself. 27

In its Brief,28 the People of the Philippines, through the Office of the Solicitor General (OSG), maintains
that Valenciano witnessed the commission of the crime since he was just a few meters away from the
victim when the latter was attacked in broad daylight. Also, it was easy for Valenciano to identify appellant
since the former was then the Barangay Chairman and, therefore, was familiar with the residents of the
barangay. The OSG likewise disputes appellant’s claim that Valenciano’s uncorroborated testimony
adversely affects his credibility. It argues that the testimony of a single witness, if truthful and credible, is
sufficient to convict an accused. Besides, the factual findings of the trial court, in the absence of showing
that they were reached arbitrarily or without sufficient basis, must be upheld. The OSG further argues that
the crime committed was murder qualified by treachery since the suddenness of the assault deprived the
victim of an opportunity to either fight or flee.29

Our Ruling

The appeal is unmeritorious.

The testimony of Valenciano as the lone witness for the prosecution suffices to establish appellant’s
culpability for the crime charged.

We are convinced that it was appellant who killed the victim. Valenciano clearly narrated the details of the
stabbing incident and positively identified appellant as the assailant. In a simple, spontaneous, and
straightforward manner, he testified as follows:

PROS. GATIA

At around 12:00 o’clock, x x x on January 26, 1991, can you remember where [y]ou were]?

WITNESS

There was an assembly meeting and there was an incident [that] happened. I was about to go home after
the assembly meeting [was] adjourned at 12:00 o’clock noon, sir.
Q

After your assembly meeting at Brgy. Balicotoc on January 26, 1991 was adjourned, where did you
proceed?

We were following each other from the place where the assembly meeting was held, sir.

What happened while you were going out from the school where the assembly meeting was held?

xxxx

WITNESS

I saw [the accused who was] following the victim Fortunato Quintanilla [stab] him[. I then] ordered the
CAFGU to [chase] the accused, sir.

xxxx

You said you saw somebody [position] himself at the back of Fortunato Quintanilla, Jr. and [stab] him,
who was this person who stabbed Fortunato Quintinilla, Jr.?

Joemarie Jalbonian, sir.

Are you referring to this Joemarie Jalbonian alias "Budo" whom you pointed out just awhile ago?

A
:

Yes, sir.

How far were you from Fortunato Quintanilla, Jr. when he was stabbed by Joemarie Jalbonian?

About three (3) extended arms length, sir.30

xxxx

What did you do with Fortunato Quintanilla, Jr. after he was stabbed?

I rushed for the transportation to bring the victim, but he did not [survive] because about five hundred
meters we walked, sir.31

It has been held that when a testimony is given in a candid and straightforward manner, there is no room
for doubt that the witness is telling the truth.32 Moreover, Valenciano’s testimony on the stabbing of the
victim was corroborated by the Certificate of Death33 attesting that the cause of death was a stab wound.

As to appellant’s argument that it was impossible for Valenciano to personally identify him as the assailant
since the victim and his attacker had their backs turned to Valenciano, we find the same unworthy of
credence.

Suffice it to say that the relative position of the witness from the victim and the assailant refers to a minor
detail that does not detract from his credibility. What is important is that Valenciano witnessed the
unfolding of the crime and was able to positively identify appellant as the culprit. 34 In addition and as
correctly pointed out by the OSG, Valenciano readily identified appellant because the latter used to reside
in the same barangay of which he was barangay captain. In fact, he testified as follows:

PROS. GATIA

Mr. Valenciano, do you know the accused in this case by the name of Joemarie Jalbonian?
WITNESS

Yes, sir.

Do you know this accused by face and by x x x name before January 26, 1991?

Yes, sir.

Why [do] you know him?

Because I was then a Barangay Captain [of Brgy. Balicotoc.] I [am familiar with almost all] the residents
there, sir.

So, in 1991 of January you were then Barangay Captain of Barangay Balicotoc?

Yes, sir.

If this Joemarie Jalbonian alias "Budo" is here inside the courtroom, can you point to him?

A
:

Yes, sir.

Please point to him?

INTERPRETER

The witness pointed to the person who stood up[,] and when asked[,] identified himself as Joemarie
Jalbonian y Mellendez.35

Also, the fact that Valenciano was just a few meters away from the victim and that the crime was
committed in broad daylight bolster Valenciano’s identification of appellant as the assailant.

Likewise untenable is appellant’s contention that Valenciano’s testimony cannot be relied upon since it
was not corroborated by other witnesses to the crime. Finding of guilt based on the testimony of a lone
witness is not uncommon.36 "For although the number of witnesses may be considered a factor in the
appreciation of evidence, preponderance is not necessarily with the greatest number and conviction can
still be had on the basis of the credible and positive testimony of a single witness. Corroborative evidence
is deemed necessary ‘only when there are reasons to warrant the suspicion that the witness falsified the
truth or that his observation had been inaccurate.’" 37 This is not obtaining in this case.

Moreover, appellant also failed to attribute any improper motive to Valenciano to falsely testify against
him. There was no evidence to establish that Valenciano harbored any ill-will against appellant or that he
had reasons to fabricate his testimony. In the absence of proof to the contrary, the presumption is that the
witness was not moved by any ill-will and was untainted by bias, and thus worthy of belief and
credence.38 Furthermore, appellant’s immediate departure from the scene of the crime and successful
effort to elude arrest until his apprehension more than five years later are not consistent with his claim of
innocence. Flight from the scene of the crime and failure to immediately surrender militate against
appellant’s contention of innocence "since an innocent person will not hesitate to take prompt and
necessary action to exonerate himself of the crime imputed to him." 39 1âwphi1

Under these circumstances, the rule that "where the prosecution eyewitness was familiar with both the
victim and the accused, and where the locus criminis afforded good visibility, and where no improper
motive can be attributed to the witness for testifying against the accused, then [his] version of the story
deserves much weight,"40 thus applies. We are therefore convinced that appellant’s culpability for the
killing of the victim was duly established by the testimony of the lone prosecution witness, Valenciano.

The crime committed by appellant is murder qualified by treachery.

Murder is the unlawful killing by the accused of a person, which is not parricide or infanticide, committed
with any of the attendant circumstances enumerated in Article 248 41 of the Revised Penal Code, one of
which is treachery.

The killing committed in this case is neither parricide nor infanticide and the same was attended with
treachery. "There is treachery when the offender commits any of the crimes against the person,
employing means, methods or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make." 42 "The
essence of treachery is that the attack comes without a warning and in a swift, deliberate, and
unexpected manner, affording the hapless, unarmed, and unsuspecting victim no chance to resist or
escape."43

In this case, treachery is evident from the fact that the victim could not have been aware of the imminent
peril to his life. He was unprepared for the sudden, unexpected and unprovoked attack on his person
when appellant stabbed his back with a knife then swiftly run away. Clearly, appellant’s execution of the
killing left the victim with no opportunity to defend himself or retaliate. 44

The Proper Penalty

Article 248 of the Revised Penal Code provides that the penalty for the crime of murder is reclusion
perpetua to death. As correctly imposed by the trial court and as affirmed by the CA, appellant must suffer
the prison term of reclusion perpetua, the lower of the said two indivisible penalties, due to the absence of
an aggravating circumstance attending the commission of the crime.

The Civil Liability

Appellant must indemnify the heirs of the victim since death resulted from the crime. The heirs of the
victim are entitled to an award of civil indemnity in the amount of ₱75,000.00, which is mandatory and is
granted without need of evidence other than the commission of the crime. 45 Hence, we increase the award
for civil indemnity made by the trial court and affirmed by the CA from ₱50,000.00 to ₱75,000.00. Also,
while the CA correctly ordered appellant to pay the heirs of the victim exemplary damages, the amount
awarded must be increased from ₱25,000.00 to ₱30,000.00 in line with current jurisprudence. 46

Aside from these, moral damages in the sum of ₱50,000.00 must likewise be awarded "despite the
absence of proof of mental and emotional suffering of the victim’s heirs. As borne out by human nature
and experience, a violent death invariably and necessarily brings about emotional pain and anguish on
the part of the victim’s family."47Moreover, while actual damages cannot be awarded since there was no
evidence of actual expenses incurred for the death of the victim, in lieu thereof, the sum of ₱25,000.00
may be granted, as it is hereby granted, by way of temperate damages "as it cannot be denied that the
heirs of the [victim] suffered pecuniary loss although the exact amount was not proved." 48 "This award is
adjudicated so that a right which has been violated may be recognized or vindicated, and not for the
purpose of indemnification."49 An interest at the legal rate of 6% percent from the finality of this judgment
until fully paid should also be awarded to the heirs of the victim. 50

WHEREFORE, the appeal is DISMISSED. The assailed June 7, 2007 Decision of the Court of Appeals in
CA-G.R. CR. HC No. 00565 is AFFIRMED with modifications in that (1) the awards of civil indemnity and
exemplary damages are increased to ₱75,000.00 and ₱30,000.00, respectively; (2) appellant Joemarie
Jalbonian alias "Budo" is ordered to pay the victim’s heirs the amounts of ₱50,000.00 as moral damages,
₱25,000.00 as temperate damages, and interest at the legal rate of six percent (6%) on all the amounts of
damages awarded, commencing from the date of finality of this Decision until fully paid.

Costs against appellant.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Baguio City

FIRST DIVISION

G.R. No. 187495               April 21, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, 

vs.
EDGAR JUMAWAN, Accused-Appellant.

DECISION

"Among the duties assumed by the husband are his duties to love, cherish and protect his wife, to
give her a home, to provide her with the comforts and the necessities of life within his means, to treat
her kindly and not cruelly or inhumanely. He is bound to honor her x x x; it is his duty not only to
maintain and support her, but also to protect her from oppression and wrong." 1

REYES, J.:

Husbands do not have property rights over their wives' bodies. Sexual intercourse, albeit within the
realm of marriage, if not consensual, is rape. This is the clear State policy expressly legislated in
Section 266-A of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353 or
the Anti-Rape Law of 1997.

The Case

This is an automatic review  of the Decision  dated July 9, 2008 of the Court of Appeals (CA) in CA-
2 3

G.R. CR-HC No. 00353, which affirmed the Judgment  dated April 1, 2002 of the Regional Trial
4

Court (RTC) of Cagayan de Oro City, Branch 19, in Criminal Case Nos. 99-668 and 99-669
convicting him to suffer the penalty of reclusion perpetua for each count.

The Facts

Accused-appellant and his wife, KKK,  were married on October 18, 1975. They Ii ved together since
5

then and raised their four (4) children  as they put up several businesses over the years.
6

On February 19, 1999, KKK executed a Complaint-Affidavit,  alleging that her husband, the accused-
7

appellant, raped her at 3 :00 a.m. of December 3, 1998 at their residence in Phase 2, Villa Ernesto,
Gusa, Cagayan de Oro City, and that on December 12, 1998, the accused-appellant boxed her
shoulder for refusing to have sex with him.

On June 11, 1999, the Office of the City Prosecutor of Cagayan de Oro City issued a Joint
Resolution,  finding probable cause for grave threats, less serious physical injuries and rape and
8

recommending that the appropriate criminal information be filed against the accused-appellant.

On July 16, 1999, two Informations for rape were filed before the RTC respectively docketed as
Criminal Case No. 99-668  and Criminal Case No. 99-669.  The Information in Criminal Case No.
9 10

99-668 charged the accused-appellant as follows:

That on or about 10:30 in the evening more or less, of October 9, 1998, at Gusa, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by
means of force upon person did then and there wilfully, unlawfully and feloniously have carnal
knowledge with the private complainant, her [sic] wife, against the latter[']s will.

Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.

Meanwhile the Information in Criminal Case No. 99-669 reads:

That on or about 10:30 in the evening more or less, of October 10, 1998, at Gusa, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by
means of force upon person did then and there wilfully, unlawfully and feloniously have carnal
knowledge with the private complainant, her [sic] wife, against the latter's will.

Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.

The accused-appellant was arrested upon a warrant issued on July 21, 1999.  On August 18, 1999,
11

the accused-appellant filed a Motion for Reinvestigation,  which was denied by the trial court in an
12

Order  dated August 19, 1999. On even date, the accused-appellant was arraigned and he entered
13

a plea of not guilty to both charges.

14

On January 10, 2000, the prosecution filed a Motion to Admit Amended Information  averring that
15

the name of the private complainant was omitted in the original informations for rape. The motion
also stated that KKK, thru a Supplemental Affidavit dated November 15, 1999,  attested that the true
16

dates of commission of the crime are October 16, 1998 and October 1 7, 1998 thereby modifying the
dates stated in her previous complaint-affidavit. The motion was granted on January 18,
2000.  Accordingly, the criminal informations were amended as follows:
17

Criminal Case No. 99-668:

That on or about October 16, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused by means of force upon person did
then and there wilfully, unlawfully and feloniously have carnal knowledge with the private
complainant, his wife, [KKK], against the latter's will.

Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997. 18

Criminal Case No. 99-669:

That on or about October 17, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused by means of force upon person did
then and there wilfully, unlawfully and feloniously have carnal knowledge with the private
complainant, his wife, [KKK], against the latter's will.

Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997. 19

The accused-appellant was thereafter re-arraigned. He maintained his not guilty plea to both
indictments and a joint trial of the two cases forthwith ensued.

Version of the prosecution

The prosecution's theory was anchored on the testimonies of KKK, and her daughters MMM and
000, which, together with pertinent physical evidence, depicted the following events:

KKK met the accused-appellant at the farm of her parents where his father was one of the laborers.
They got married after a year of courtship.  When their first child, MMM, was born, KKK and the
20

accused-appellant put up a sari-sari store.  Later on, they engaged in several other businesses -
21

trucking, rice mill and hardware. KKK managed the businesses except for the rice mill, which,
ideally, was under the accused-appellant's supervision with the help of a trusted employee. In reality,
however, he merely assisted in the rice mill business by occasionally driving one of the trucks to haul
goods. 22

Accused-appellant's keenness to make the businesses flourish was not as fervent as KKK's
dedication. Even the daughters observed the disproportionate labors of their parents.  He would
23

drive the trucks sometimes but KKK was the one who actively managed the businesses. 24

She wanted to provide a comfortable life for their children; he, on the other hand, did not acquiesce
with that objective.
25

In 1994, KKK and the accused-appellant bought a lot and built a house in Villa Ernesto, Gusa,
Cagayan de Oro City.  Three of the children transferred residence therein while KKK, the accused-
26

appellant and one of their sons stayed in Dangcagan, Bukidnon. She shuttled between the two
places regularly and sometimes he accompanied her.  In 1998, KKK stayed in Gusa, Cagayan De
27

Oro City most of the days of the week.  On Wednesdays, she went to Dangcagan, Bukidnon to
28

procure supplies for the family store and then returned to Cagayan de Oro City on the same day. 29

Conjugal intimacy did not really cause marital problems between KKK and the accused-appellant. It
was, in fact, both frequent and fulfilling. He treated her well and she, of course, responded with equal
degree of enthusiasm. However, in 1997, he started to be brutal in bed. He would immediately
30

remove her panties and, sans any foreplay, insert her penis in her vagina. His abridged method of
lovemaking was physically painful for her so she would resist his sexual ambush but he would
threaten her into submission. 31

In 1998, KKK and the accused-appellant started quarrelling usually upon his complaint that she
failed to attend to him. She was preoccupied with financial problems in their businesses and a bank
loan. He wanted KKK to stay at home because "a woman must stay in the house and only good in
bed (sic) x x x." She disobeyed his wishes and focused on her goal of providing a good future for the
children. 32

Four days before the subject rape incidents or on October 12, 1998, KKK and the accused-appellant
slept together in Cebu City where the graduation rites of their eldest daughter were held. By October
14, 1998, the three of them were already back in Cagayan de Oro City. 33

On October 16, 1998, the accused-appellant, his wife KKK and their children went about their nightly
routine. The family store in their residence was closed at about 9:00 p.m. before supper was taken.
Afterwards, KKK and the children went to the girls' bedroom at the mezzanine of the house to pray
the rosary while the accused-appellant watched television in the living room.  OOO and MMM then
34

prepared their beds. Soon after, the accused-appellant fetched KKK and bid her to come with him to
their conjugal bedroom in the third floor of the house. KKK complied. 35

Once in the bedroom, KKK changed into a daster and fixed the matrimonial bed but she did not lie
thereon with the accused-appellant and instead, rested separately in a cot near the bed. Her
reclusive behavior prompted him to ask angrily: "[W]hy are you lying on the c{o]t[?]", and to
instantaneously order: "You transfer here [to] our bed." 36

KKK insisted to stay on the cot and explained that she had headache and abdominal pain due to her
forthcoming menstruation. Her reasons did not appease him and he got angrier. He rose from the
bed, lifted the cot and threw it against the wall causing KKK to fall on the floor. Terrified, KKK stood
up from where she fell, took her pillow and transferred to the bed. 37

The accused-appellant then lay beside KKK and not before long, expressed his desire to copulate
with her by tapping his fingers on her lap. She politely declined by warding off his hand and
reiterating that she was not feeling well.
38

The accused-appellant again asserted his sexual yearning and when KKK tried to resist by holding
on to her panties, he pulled them down so forcefully they tore on the sides.  KKK stayed defiant by
39

refusing to bend her legs. 40

The accused-appellant then raised KKK's daster,  stretched her legs apart and rested his own legs
41

on them. She tried to wrestle him away but he held her hands and succeeded in penetrating her. As
he was carrying out his carnal desires, KKK continued to protest by desperately shouting: "[D]on 't
do that to me because I'm not feeling well." 42

With a concrete wall on one side and a mere wooden partition on the other enclosing the spouses'
bedroom, KKK's pleas were audible in the children's bedroom where MMM lay awake.
43

Upon hearing her mother crying and hysterically shouting: "Eddie, don't do that to me, have pity on
me,"  MMM woke up 000 who prodded her to go to their parents' room.  MMM hurriedly climbed
44 45

upstairs, vigorously knocked on the door of her parents' bedroom and inquired: "Pa, why is it that
Mama is crying?"  The accused-appellant then quickly put on his briefs and shirt, partly opened the
46

door and said: "[D]on 't interfere because this is a family trouble," before closing it again.  Since she
47

heard her mother continue to cry, MMM ignored his father's admonition, knocked at the bedroom
door again, and then kicked it.  A furious accused-appellant opened the door wider and rebuked
48

MMM once more: "Don't interfere us. Go downstairs because this is family trouble!" Upon seeing
KKK crouching and crying on top of the bed, MMM boldly entered the room, approached her mother
and asked: "Ma, why are you crying?" before asking her father: "Pa, what happened to Mama why is
it that her underwear is torn[?]" 49

When MMM received no definite answers to her questions, she helped her mother get up in order to
bring her to the girls' bedroom. KKK then picked up her tom underwear and covered herself with a
blanket.  However, their breakout from the room was not easy. To prevent KKK from leaving, the
50

accused-appellant blocked the doorway by extending his arm towards the knob. He commanded
KKK to "[S]tay here, you sleep in our room," when the trembling KKK pleaded: "Eddie, allow me to
go out." He then held KKK's hands but she pulled them back. Determined to get away, MMM leaned
against door and embraced her mother tightly as they pushed their way out. 51

In their bedroom, the girls gave their mother some water and queried her as to what
happened.  KKK relayed: "[Y]our father is an animal, a beast; he forced me to have sex with him
52

when I'm not feeling well." The girls then locked the door and let her rest." 53

The accused-appellant's aggression recurred the following night. After closing the family store on
October 17, 1998, KKK and the children took their supper. The accused-appellant did not join them
since, according to him, he already ate dinner elsewhere. After resting for a short while, KKK and the
children proceeded to the girls' bedroom and prayed the rosary. KKK decided to spend the night in
the room's small bed and the girls were already fixing the beddings when the accused-appellant
entered.

"Why are you sleeping in the room of our children", he asked KKK, who responded that she
preferred to sleep with the children.  He then scoffed: "Its alright if you will not go with me, anyway,
54

there are women that could be paid [P] 1,000.00." She dismissed his comment by turning her head
away after retorting: "So be it." After that, he left the room. 55

He returned 15 minutes later  and when KKK still refused to go with him, he became infuriated. He
56

lifted her from the bed and attempted to carry her out of the room as he exclaimed: "Why will you
sleep here[?] Lets go to our bedroom." When she defied him, he grabbed her short pants causing
them to tear apart.  At this point, MMM interfered, "Pa, don't do that to Mama because we are in
57

front of you."
58

The presence of his children apparently did not pacify the accused-appellant who yelled, "[E]ven in
front of you, I can have sex of your mother [sic J because I'm the head of the family." He then
ordered his daughters to leave the room. Frightened, the girls obliged and went to the staircase
where they subsequently heard the pleas of their helpless mother resonate with the creaking bed. 59

The episodes in the bedroom were no less disturbing. The accused-appellant forcibly pulled KKK's
short pants and panties. He paid no heed as she begged, "[D]on 't do that to me, my body is still
aching and also my abdomen and I cannot do what you wanted me to do [sic]. I cannot withstand
sex."60

After removing his own short pants and briefs, he flexed her legs, held her hands, mounted her and
forced himself inside her. Once gratified, the accused-appellant put on his short pants and briefs,
stood up, and went out of the room laughing as he conceitedly uttered: "[I]t s nice, that is what you
deserve because you are [a] flirt or fond of sex." He then retreated to the masters' bedroom. 61

Sensing that the commotion in their bedroom has ceased, MMM and OOO scurried upstairs but
found the door locked. MMM pulled out a jalousie window, inserted her arm, reached for the
doorknob inside and disengaged its lock. Upon entering the room, MMM and OOO found their
mother crouched on the bed with her hair disheveled. The girls asked: "Ma, what happened to you,
why are you crying?" KKK replied: "[Y}our father is a beast and animal, he again forced me to have
sex with him even if I don't feel well. " 62

Version of the defense

The defense spun a different tale. The accused-appellant's father owned a land adjacent to that of
KKK's father. He came to know KKK because she brought food for her father's laborers. When they
got married on October 18, 1975, he was a high school graduate while she was an elementary
graduate.

Their humble educational background did not deter them from pursuing a comfortable life. Through
their joint hard work and efforts, the couple gradually acquired personal properties and established
their own businesses that included a rice mill managed by the accused-appellant. He also drove
their trucks that hauled coffee, copra, or com. 63

The accused-appellant denied raping his wife on October 16 and 17, 1998. He claimed that on those
dates he was in Dangcagan, Bukidnon, peeling com. On October 7, his truck met an accident
somewhere in Angeles Ranch, Maluko, Manolo Fortich, Bukidnon. He left the truck by the roadside
because he had to attend MMM's graduation in Cebu on October 12 with KKK. When they returned
to Bukidnon on October 14, he asked KKK and MMM to proceed to Cagayan de Oro City and just
leave him behind so he can take care of the truck and buy some com. 64

Ryle Equia (Equia), the spouses' driver from January 1996 until June 1999 corroborated the above
claims. According to him, on October 16, 1998, the accused-appellant was within the vicinity of the
rice mill's loading area in Dangcagan, Bukidnon, cleaning a pick-up truck. On October 17, 1998, he
and the accused-appellant were in Dangcagan, Bukidnon, loading sacks of com into the truck. They
finished loading at 3 :00 p.m. The accused-appellant then instructed Equia to proceed to Maluko,
Manolo Fortich, Bukidnon while the former attended a fiesta in New Cebu, Kianggat, Dangcagan,
Bukidnon. At around 4:00 p.m., Equia, together with a helper and a mechanic, left for Maluko in
order to tow the stalled truck left there by the accused-appellant in October 7 and thereafter, bring it
to Cagayan de Oro City together with the separate truck loaded with com.

They arrived in Maluko at 7:00 p.m. and it took them three hours to turn the truck around and hoist it
to the towing bar of the other truck. At around 10:00 p.m., the accused-appellant arrived in Maluko.
The four of them then proceeded to Cagayan de Oro City where they arrived at 3 :00 a.m. of
October 18, 1998. The accused-appellant went to Gusa while the other three men brought the
damaged truck to Cugman. 65

The accused-appellant asserted that KKK merely fabricated the rape charges as her revenge
because he took over the control and management of their businesses as well as the possession of
their pick-up truck in January 1999. The accused-appellant was provoked to do so when she failed
to account for their bank deposits and business earnings. The entries in their bank account showed
the balance of ₱3,190,539.83 on October 31, 1996 but after only a month or on November 30, 1996,
the amount dwindled to a measly ₱9,894.88.  Her failure to immediately report to the police also
66

belies her rape allegations.67

KKK wanted to cover-up her extra-marital affairs, which the accused-appellant gradually detected
from her odd behavior. While in Cebu on October 12, 1998 for MMM's graduation rites, the accused-
appellant and KKK had sexual intercourse. He was surprised when his wife asked him to get a
napkin to wipe her after having sex. He tagged her request as "high-tech," because they did not do
the same when they had sex in the past. KKK had also become increasingly indifferent to him. When
he arrives home, it was an employee, not her, who opened the door and welcomed him. She prettied
herself and would no longer ask for his permission whenever she went out. 68

Bebs,  KKK's cousin and a cashier in their Bukidnon store, gave the accused-appellant several love
69

letters purportedly addressed to Bebs but were actually intended for KKK. 70

KKK had more than ten paramours some of whom the accused-appellant came to know as: Arsenio,
Jong-Jong, Joy or Joey, somebody from the military or the Philippine National Police, another one is
a government employee, a certain Fernandez and three other priests.  Several persons told him
71

about the paramours of his wife but he never confronted her or them about it because he trusted
her.72

What further confirmed his suspicions was the statement made by OOO on November 2, 1998. At
that time, OOO was listening loudly to a cassette player. Since he wanted to watch a television
program, he asked OOO to tum down the volume of the cassette player. She got annoyed,
unplugged the player, spinned around and hit the accused-appellant's head with the socket. His
head bled. An altercation between the accused-appellant and KKK thereafter followed because the
latter took OOO's side. During the argument, OOO blurted out that KKK was better off without the
accused-appellant because she had somebody young, handsome, and a businessman unlike the
accused-appellant who smelled bad, and was old, and ugly. 73

KKK also wanted their property divided between them with three-fourths thereof going to her and
one-fourth to the accused-appellant. However, the separation did not push through because the
accused-appellant's parents intervened.  Thereafter, KKK pursued legal separation from the
74

accused-appellant by initiating Barangay Case No. 00588-99 before the Office of Lupong
Tagapamayapa of Gusa, Cagayan de Oro City and thereafter obtaining a Certificate to File Action
dated February 18, 1999. 75

Ruling of the RTC

In its Judgment  dated April 1, 2002, the RTC sustained the version proffered by the prosecution by
76

giving greater weight and credence to the spontaneous and straightforward testimonies of the
prosecution's witnesses. The trial court also upheld as sincere and genuine the two daughters'
testimonies, as it is not natural in our culture for daughters to testify against their own father for a
crime such as rape if the same was not truly committed.

The trial court rejected the version of the defense and found unbelievable the accused-appellant's
accusations of extra-marital affairs and money squandering against KKK. The trial court shelved the
accused-appellant's alibi for being premised on inconsistent testimonies and the contradicting
declarations of the other defense witness, Equia, as to the accused-appellant's actual whereabouts
on October 16, 1998. Accordingly, the RTC ruling disposed as follows:

WHEREFORE, the Court hereby finds accused Edgar Jumawan "GUILTY" beyond reasonable
doubt of the two (2) separate charges of rape and hereby sentences him to suffer the penalty of
reclusion perpetua for each, to pay complainant [P]50,000.00 in each case as moral damages,
indemnify complainant the sum of (P]75,000.00 in each case, [P]50,000.00 as exemplary damages
and to pay the costs.

SO ORDERED. 77

Ruling of the CA

In its Decision  dated July 9, 2008, the CA affirmed in toto the RTC ruling. The CA held that Section
78

14, Rule 110 of the Rules of Criminal Procedure, sanctioned the amendment of the original
informations. Further, the accused-appellant was not prejudiced by the amendment because he was
re-arraigned with respect to the amended informations.

The CA found that the prosecution, through the straightforward testimony of the victim herself and
the corroborative declarations of MMM and OOO, was able to establish, beyond reasonable doubt,
all the elements of rape under R.A. No. 8353. The accused-appellant had carnal knowledge of KKK
by using force and intimidation.

The CA also ruled that KKK's failure to submit herself to medical examination did not negate the
commission of the crime because a medical certificate is not necessary to prove rape.

The CA rejected the accused-appellant's argument that since he and KKK are husband and wife with
mutual obligations of and right to sexual intercourse, there must be convincing physical evidence or
manifestations of the alleged force and intimidation used upon KKK such as bruises. The CA
explained that physical showing of external injures is not indispensable to prosecute and convict a
person for rape; what is necessary is that the victim was forced to have sexual intercourse with the
accused.

In addition, the CA noted that the fact that KKK and the accused-appellant are spouses only
reinforces the truthfulness of KKK's accusations because no wife in her right mind would accuse her
husband of having raped her if it were not true.

The delay in the filing of the rape complaint was sufficiently explained by KKK when she stated that
she only found out that a wife may charge his husband with rape when the fiscal investigating her
separate complaint for grave threats and physical injuries told her about it.

Finally, the CA dismissed the accused-appellant's alibi for lack of convincing evidence that it was
physically impossible for him to be at his residence in Cagayan de Oro City at the time of the
commission of the crimes, considering that Dangcagan, Bukidnon, the place where he allegedly
was, is only about four or five hours away. Accordingly, the decretal portion of the decision read:

WHEREFORE, in the light of the foregoing, the appealed Judgment is hereby AFFIRMED.

SO ORDERED. 79

Hence, the present review. In the Court Resolution  dated July 6, 2009, the Court notified the parties
80

that, if they so desire, they may file their respective supplemental briefs. In a Manifestation and
Motion  dated September 4, 2009, the appellee, through the Office of the Solicitor General,
81

expressed that it intends to adopt its Brief before the CA. On April 16, 2012, the accused-appellant,
through counsel, filed his Supplemental Brief, arguing that he was not in Cagayan de Oro City when
the alleged rape incidents took place, and the presence of force, threat or intimidation is negated by:
(a) KKK's voluntary act of going with him to the conjugal bedroom on October 16, 1998; (b) KKK's
failure to put up resistance or seek help from police authorities; and ( c) the absence of a medical
certificate and of blood traces in KKK's panties. 82

Our Ruling

I. Rape and marriage: the historical connection

The evolution of rape laws is actually traced to two ancient English practices of 'bride capture'
whereby a man conquered a woman through rape and 'stealing an heiress' whereby a man
abducted a woman and married her. 83

The rape laws then were intended not to redress the violation of the woman's chastity but rather to
punish the act of obtaining the heiress' property by forcible marriage  or to protect a man's valuable
84

interest in his wife's chastity or her daughter's virginity. 85

If a man raped an unmarried virgin, he was guilty of stealing her father's property and if a man raped
his wife, he was merely using his property. 86

Women were subjugated in laws and society as objects or goods and such treatment was justified
under three ideologies.

Under the chattel theory prevalent during the 6th century, a woman was the property of her father
until she marries to become the property of her husband.  If a man abducted an unmarried woman,
87
he had to pay the owner, and later buy her from the owner; buying and marrying a wife were
synonymous. 88

From the 11th century to the 16th century, a woman lost her identity upon marriage and the law
denied her political power and status under the feudal doctrine of coverture.89

A husband had the right to chastise his wife and beat her if she misbehaved, allowing him to bring
order within the family.
90

This was supplanted by the marital unity theory, which espoused a similar concept. Upon marrying,
the woman becomes one with her husband. She had no right to make a contract, sue another, own
personal property or write a will.
91

II. The marital exemption rule

In the 17th century, Sir Matthew Hale (Hale), a Chief Justice in England, conceived the irrevocable
implied consent theory that would later on emerge as the marital exemption rule in rape. He stated
that:

[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract the wife hath given up herself in this kind unto her
husband, which she cannot retract. 92

The rule was observed in common law countries such as the United States of America (USA) and
England. It gives legal immunity to a man who forcibly sexually assaults his wife, an act which would
be rape if committed against a woman not his wife.  In those jurisdictions, rape is traditionally
93

defined as "the forcible penetration of the body of a woman who is not the wife of the perpetrator." 94

The first case in the USA that applied the marital exemption rule was Commonwealth v.
Fogerty  promulgated in 1857. The Supreme Judicial Court of Massachusetts pronounced that it
95

would always be a defense in rape to show marriage to the victim. Several other courts adhered to a
similar rationale with all of them citing Hale's theory as basis. 96

The rule was formally codified in the Penal Code of New York in 1909. A husband was endowed with
absolute immunity from prosecution for the rape of his wife.  The privilege was personal and
97

pertained to him alone. He had the marital right to rape his wife but he will be liable when he aids or
abets another person in raping her. 98

In the 1970s, the rule was challenged by women's movements in the USA demanding for its abolition
for being violative of married women's right to be equally protected under rape laws.99

In 1978, the rule was qualified by the Legislature in New York by proscribing the application of the
rule in cases where the husband and wife are living apart pursuant to a court order "which by its
terms or in its effects requires such living apart," or a decree, judgment or written agreement of
separation. 100

In 1983, the marital exemption rule was abandoned in New York when the Court of Appeals of New
York declared the same unconstitutional in People v. Liberta  for lack of rational basis in
101

distinguishing between marital rape and non-marital rape. The decision, which also renounced
Hale's irrevocable implied consent theory, ratiocinated as follows:
We find that there is no rational basis for distinguishing between marital rape and nonmarital rape.
The various rationales which have been asserted in defense of the exemption are either based upon
archaic notions about the consent and property rights incident to marriage or are simply unable to
withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New
York statute to be unconstitutional.

Lord Hale's notion of an irrevocable implied consent by a married woman to sexual intercourse has
been cited most frequently in support of the marital exemption. x x x Any argument based on a
supposed consent, however, is untenable. Rape is not simply a sexual act to which one party does
not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and
frequently causes severe, long-lasting physical and psychic harm x x x. To ever imply consent to
such an act is irrational and absurd. Other than in the context of rape statutes, marriage has never
been viewed as giving a husband the right to coerced intercourse on demand x x x. Certainly, then,
a marriage license should not be viewed as a license for a husband to forcibly rape his wife with
impunity. A married woman has the same right to control her own body as does an unmarried
woman x x x. If a husband feels "aggrieved" by his wife's refusal to engage in sexual intercourse, he
should seek relief in the courts governing domestic relations, not in "violent or forceful self-help x x
x."

The other traditional justifications for the marital exemption were the common-law doctrines that a
woman was the property of her husband and that the legal existence of the woman was
"incorporated and consolidated into that of the husband x x x." Both these doctrines, of course, have
long been rejected in this State. Indeed, "[nowhere] in the common-law world - [or] in any modem
society - is a woman regarded as chattel or demeaned by denial of a separate legal identity and the
dignity associated with recognition as a whole human being x x x."  (Citations omitted)
102

By 1993, marital rape was a crime in all 50 states, with 17 of them, as well as the District of
Columbia, outlawing the act without exemptions. Meanwhile, the 33 other states granted some
exemptions to a husband from prosecution such as when the wife is mentally or physically impaired,
unconscious, asleep, or legally unable to consent. 103

III. Marital Rape in the Philippines

Interestingly, no documented case on marital rape has ever reached this Court until now. It appears,
however, that the old provisions of rape under Article 335 of the RPC adhered to Hale's irrevocable
implied consent theory, albeit in a limited form. According to Chief Justice Ramon C. Aquino,  a 104

husband may not be guilty of rape under Article 335 of Act No. 3815 but, in case there is legal
separation, the husband should be held guilty of rape if he forces his wife to submit to sexual
intercourse.105

In 1981, the Philippines joined 180 countries in ratifying the United Nations Convention on the
Elimination of all Forms of Discrimination Against Women (UN-CEDAW).  Hailed as the first
106

international women's bill of rights, the CEDAW is the first major instrument that contains a ban on
all forms of discrimination against women. The Philippines assumed the role of promoting gender
equality and women's empowerment as a vital element in addressing global concerns.  The country
107

also committed, among others, to condemn discrimination against women in all its forms, and
agreed to pursue, by all appropriate means and without delay, a policy of eliminating discrimination
against women and, to this end, undertook:

(a) To embody the principle of the equality of men and women in their national constitutions
or other appropriate legislation if not yet incorporated therein and to ensure, through law and
other appropriate means, the practical realization of this principle;
 (b) To adopt appropriate legislative and other measures, including sanctions where
appropriate, prohibiting all discrimination against women;

xxxx

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women. 108

In compliance with the foregoing international commitments, the Philippines enshrined the principle
of gender equality in the 1987 Constitution specifically in Sections 11 and 14 of Article II thereof,
thus:

Sec. 11. The State values the dignity of every human person and guarantees full respect for human
rights.

xxxx

Sec. 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men. The Philippines also acceded to adopt and
implement the generally accepted principles of international law such as the CEDA W and its allied
issuances, viz:

Article II, Section 2. The Philippines renounces war as an instrument of national policy, and adopts
the generally accepted principles of international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis
ours)

The Legislature then pursued the enactment of laws to propagate gender equality. In 1997, R.A. No.
8353 eradicated the stereotype concept of rape in Article 335 of the RPC.  The law reclassified rape
109

as a crime against person and removed it from the ambit of crimes against chastity. More particular
to the present case, and perhaps the law's most progressive proviso is the 2nd paragraph of Section
2 thereof recognizing the reality of marital rape and criminalizing its perpetration, viz:

Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall
extinguish the criminal action or the penalty imposed.

In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the
offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not
be extinguished or the penalty shall not be abated if the marriage is void ab initio.

Read together with Section 1 of the law, which unqualifiedly uses the term "man" in defining rape, it
is unmistakable that R.A. No. 8353 penalizes the crime without regard to the rapist's legal
relationship with his victim, thus:

Article 266-A. Rape: When And How Committed. - Rape is committed:

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

 b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though
none of the circumstances mentioned above be present.

The explicit intent to outlaw marital rape is deducible from the records of the deliberations of the 10th
Congress on the law's progenitor's, House Bill No. 6265 and Senate Bill No. 650. In spite of qualms
on tagging the crime as 'marital rape' due to conservative Filipino impressions on marriage, the
consensus of our lawmakers was clearly to include and penalize marital rape under the general
definition of 'rape,' viz:

MR. DAMASING: Madam Speaker, Your Honor, one more point

of clarification in the House version on Anti-Rape Bill, House Bill No. 6265, we never agreed to
marital rape. But under Article 266-C, it says here: "In case it is the legal husband who is the
offender... " Does this presuppose that there is now marital rape? x x x.

MR. LARA: x x x [I]n this jurisdiction, well, I only have a limited, very limited 17 years of private
practice in the legal profession, Madam Speaker, and I believe that I can put at stake my license as
a lawyer in this jurisdiction there is no law that prohibits a husband from being sued by the wife for
rape. Even jurisprudence, we don't have any jurisprudence that prohibits a wife from suing a
husband. That is why even if we don't provide in this bill expanding the definition of crime that is now
being presented for approval, Madam Speaker, even if we don't provide here for marital rape, even if
we don't provide for sexual rape, there is the right of the wife to go against the husband. The wife
can sue the husband for marital rape and she cannot be prevented from doing so because in this
jurisdiction there is no law that prohibits her from doing so. This is why we had to put second
paragraph of 266-C because it is the belief of many of us. x x x, that if it is true that in this jurisdiction
there is marital rape even if we don't provide it here, then we must provide for something that will
unify and keep the cohesion of the family together that is why we have the second paragraph.

MR. DAMASING: Madam Speaker, Your Honor, under the House version specifically House Bill No.
6265 our provision on a husband forcing the wife is not marital rape, it is marital sexual assault.

MR. LARA: That is correct, Madam Speaker.

MR. DAMASING: But here it is marital rape because there is no crime of sexual assault. So, Your
Honor, direct to the point, under Article 266-C, is it our understanding that in the second paragraph,
quote: "In case it is the legal husband who is the offender, this refers to marital rape filed against the
husband? Is that correct?

MR. LARA: No, Madam Speaker, not entirely, no. The answer is no.

MR. DAMASING: So if the husband is guilty of sexual assault, what do you call- it?

MR. LARA: Sexual assault, Madam Speaker.

MR. DAMASING: There is no crime of sexual assault, Your Honor, we have already stated that.
Because under 1 and 2 it is all denominated as rape, there is no crime of sexual assault. That is why
I am sorry that our House version which provided for sexual assault was not carried by the Senate
version because all sexual crimes under this bicameral conference committee report are all now
denominated as rape whether the penalty is from reclusion perpetua to death or whether the penalty
is only prision mayor. So there is marital rape, Your Honor, is that correct?

xxxx

MR. DAMASING: Madam Speaker, Your Honor, I am in favor of this. I am in favor of punishing the
husband who forces the wife even to 30 years imprisonment. But please do not call it marital rape,
call it marital sexual assault because of the sanctity of marriage. x x x.  (Emphasis ours)
110

HON. APOSTOL: In our version, we did not mention marital rape but marital rape is not excluded.

HON. ROCO: Yeah. No. But I think there is also no specific mention.

HON. APOSTOL: No. No. No. Silent lang 'yung marital rape.

xxxx

HON. ROCO: xx x [I]f we can retain the effect of pardon, then this marital rape can be implicitly
contained in the second paragraph. x x x So marital rape actually was in the House version x x x.
But it was not another definition of rape. You will notice, it only says, that because you are the lawful
husband does not mean that you cannot commit rape. Theoretically, I mean, you can beat up your
wife until she's blue. And if the wife complains she was raped, I guess that, I mean, you just cannot
raise the defense x x x[:] I am the husband. But where in the marriage contract does it say that I can
beat you up? That's all it means. That is why if we stop referring to it as marital rape, acceptance is
easy. Because parang ang marital rape, married na nga kami. I cannot have sex. No, what it is
saying is you're [the] husband but you cannot beat me up. x x x. That's why to me it's not alarming. It
was just a way of saying you're [the] husband, you cannot say when I am charged with rape x x x.

PRESIDING OFFICER SHAHAN!: All right, so how do you propose it if we put it in[?]

HON. ROCO: x x x [A]ll we are saying [is] that if you are the lawful husband does not mean you can
have carnal knowledge by force[,] threat or intimidation or by depriving your wife reason, a grave
abuse of authority, I don't know how that cannot apply. Di ba yung, or putting an instrument into the,
yun ang sinasabi ko lang, it is not meant to have another classification of rape. It is all the same
definition x x x.

xxxx

HON.ROCO: What is 266-F? x x x. Now if we can retain 266-F x x x, we can say that this rule is
implicit already in the first proviso. It implies na there is an instance when a husband can be charged
[with] rape x x x.

HON. ROXAS: Otherwise, silent na.

HON. ROCO: Otherwise, we are silent na. So parang i-delete natin ito. But it is understood that this
rule of evidence is now transport[ed], put into 266-F, the effect of pardon.

PRESIDING OFFICER APOSTOL: We will retain this effect of pardon. We will remove marital rape.
HON. ROCO: No, yun ang, oo we will remove this one on page 3 but we will retain the one on page
8, the effect of pardon. x x x [I]t is inferred but we leave it because after all it is just a rule of
evidence. But I think we should understand that a husband cannot beat at his wife to have sex. Di
ha? I think that should be made clear. x x x.

xxxx

HON. ROCO: x x x [W]e are not defining a crime of marital rape. All we are saying is that if you're
[the] legal husband, Jesus Christ, don't beat up to have sex. I almost want, you are my wife, why do
you have to beat me up.

So, ganoon. So, if we both justify it that way in the Report as inferred in proviso, I mean, we can face
up, I hope, to the women and they would understand that it is half achieved.

HON. ZAMORA: I think, Raul, as long as we understand that we are not defining or creating a new
crime but instead, we are just defining a rule of evidence. x x x.

HON. ROCO: Then, in which case we may just want to clarify as a rule of evidence the fact that he is
husband is not, does not negate. 111

CHAIRMAN LARA: x x x We all agree on the substance of the point in discussion. The only
disagreement now is where to place it. Let us clear this matter. There are two suggestions now on
marital rape. One is that it is rape if it is done with force or intimidation or any of the circumstances
that would define rape x x x immaterial. The fact that the husband and wife are separated does not
come into the picture. So even if they are living under one roof x x x for as long as the attendant
circumstances of the traditional rape is present, then that is rape. 112

PRESIDING OFFICER ANGARA-CASTILLO: Mr. Chairman, x x x [t]his provision on marital rape, it

does not actually change the meaning of rape. It merely erases the doubt in anybody's mind,
whether or not rape can indeed be committed by the husband against the wife. So the bill really
says, you having been married to one another is not a legal impediment. So I don't really think there
is any need to change the concept of rape as defined presently under the revised penal code. This
do[es] not actually add anything to the definition of rape. It merely says, it is merely clarificatory. That
if indeed the wife has evidence to show that she was really brow beaten, or whatever or forced or
intimidated into having sexual intercourse against her will, then the crime of rape has been
committed against her by the husband, notwithstanding the fact that they have been legally married.
It does not change anything at all, Mr. Chairman.

PRESIDING OFFICER APOSTOL: Yes, I think, there is no change on this x x x. 113

The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed by R.A. No.
9262,  which regards rape within marriage as a form of sexual violence that may be committed by a
114

man against his wife within or outside the family abode, viz:

Violence against women and their children refers to any act or a series of acts committed by any
person against a woman who is his wife, former wife, or against a woman with whom the person has
or had a sexual or dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result in or is likely to
result in. physical, sexual, psychological harm or suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is
not limited to, the following acts:
 A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman
or her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as

a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;

c) Prostituting the woman or child.

Statistical figures confirm the above characterization. Emotional and other forms of non-personal
violence are the most common type of spousal violence accounting for 23% incidence among ever-
married women. One in seven ever-married women experienced physical violence by their husbands
while eight percent (8%) experienced sexual violence. 115

IV. Refutation of the accused-appellant's arguments

The crux of the accused-appellant's plea for acquittal mirrors the irrevocable implied consent theory.
In his appeal brief before the CA, he posits that the two incidents of sexual intercourse, which gave
rise to the criminal charges for rape, were theoretically consensual, obligatory even, because he and
the victim, KKK, were a legally married and cohabiting couple. He argues that consent to copulation
is presumed between cohabiting husband and wife unless the contrary is proved.

The accused-appellant further claims that this case should be viewed and treated differently from
ordinary rape cases and that the standards for determining the presence of consent or lack thereof
must be adjusted on the ground that sexual community is a mutual right and obligation between
husband and wife. 116

The contentions failed to muster legal and rational merit.

The ancient customs and ideologies from which the irrevocable implied consent theory evolved have
already been superseded by modem global principles on the equality of rights between men and
women and respect for human dignity established in various international conventions, such as the
CEDAW. The Philippines, as State Party to the CEDAW, recognized that a change in the traditional
role of men as well as the role of women in society and in the family is needed to achieve full
equality between them. Accordingly, the country vowed to take all appropriate measures to modify
the social and cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices, customs and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.  One
117

of such measures is R.A. No 8353 insofar as it eradicated the archaic notion that marital rape cannot
exist because a husband has absolute proprietary rights over his wife's body and thus her consent to
every act of sexual intimacy with him is always obligatory or at least, presumed.
Another important international instrument on gender equality is the UN Declaration on the
Elimination of Violence Against Women, which was Promulgated  by the UN General Assembly
118

subsequent to the CEDA W. The Declaration, in enumerating the forms of gender-based violence
that constitute acts of discrimination against women, identified 'marital rape' as a species of sexual
violence, viz:

Article 1

For the purposes of this Declaration, the term "violence against women" means any act of gender-
based violence that results in, or is likely to result in, physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or in private life.

Article 2

Violence against women shall be understood to encompass, but not be limited to, the following:

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual
abuse of female children in the household, dowry-related violence, marital rape, female genital
mutilation and other traditional practices harmful to women, non-spousal violence and violence
related to exploitation;  (Emphasis ours)
119

Clearly, it is now acknowledged that rape, as a form of sexual violence, exists within marriage. A
man who penetrates her wife without her consent or against her will commits sexual violence upon
her, and the Philippines, as a State Party to the CEDA W and its accompanying Declaration, defines
and penalizes the act as rape under R.A. No. 8353.

A woman is no longer the chattel-antiquated practices labeled her to be. A husband who has sexual
intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a
fellow human being with dignity equal  to that he accords himself. He cannot be permitted to violate
120

this dignity by coercing her to engage in a sexual act without her full and free consent. Surely, the
Philippines cannot renege on its international commitments and accommodate conservative yet
irrational notions on marital activities  that have lost their relevance in a progressive society.
121

It is true that the Family Code,  obligates the spouses to love one another but this rule sanctions
122

affection and sexual intimacy, as expressions of love, that are both spontaneous and mutual  and 123

not the kind which is unilaterally exacted by force or coercion.

Further, the delicate and reverent nature of sexual intimacy between a husband and wife excludes
cruelty and coercion. Sexual intimacy brings spouses wholeness and oneness. It is a gift and a
participation in the mystery of creation. It is a deep sense of spiritual communion. It is a function
which enlivens the hope of procreation and ensures the continuation of family relations. It is an
expressive interest in each other's feelings at a time it is needed by the other and it can go a long
way in deepening marital relationship.  When it is egoistically utilized to despoil marital union in
124

order to advance a felonious urge for coitus by force, violence or intimidation, the Court will step in to
protect its lofty purpose, vindicate justice and protect our laws and State policies. Besides, a
husband who feels aggrieved by his indifferent or uninterested wife's absolute refusal to engage in
sexual intimacy may legally seek the court's intervention to declare her psychologically incapacitated
to fulfill an essential marital obligation.  But he cannot and should not demand sexual intimacy from
125

her coercively or violently.

Moreover, to treat marital rape cases differently from non-marital rape cases in terms of the
elements that constitute the crime and in the rules for their proof, infringes on the equal protection
clause. The Constitutional right to equal protection of the laws  ordains that similar subjects should
126

not be treated differently, so as to give undue favor to some and unjustly discriminate against others;
no person or class of persons shall be denied the same protection of laws, which is enjoyed, by
other persons or other classes in like circumstances. 127

As above discussed, the definition of rape in Section 1 of R.A. No. 8353 pertains to: (a) rape, as
traditionally known; (b) sexual assault; and (c) marital rape or that where the victim is the
perpetrator's own spouse. The single definition for all three forms of the crime shows that the law
does not distinguish between rape committed in wedlock and those committed without a marriage.
Hence, the law affords protection to women raped by their husband and those raped by any other
man alike.

The posture advanced by the accused-appellant arbitrarily discriminates against married rape
victims over unmarried rape victims because it withholds from married women raped by their
husbands the penal redress equally granted by law to all rape victims.

Further, the Court adheres to and hereby adopts the rationale in Liberta in rejecting the argument
akin to those raised by herein accused-appellant. A marriage license should not be viewed as a
license for a husband to forcibly rape his wife with impunity. A married woman has the same right to
control her own body, as does an unmarried woman.  She can give or withhold her consent to a
128

sexual intercourse with her husband and he cannot unlawfully wrestle such consent from her in case
she refuses.

Lastly, the human rights of women include their right to have control over and decide freely and
responsibly on matters related to their sexuality, including sexual and reproductive health, free of
coercion, discrimination and violence.  Women do not divest themselves of such right by contracting
129

marriage for the simple reason that human rights are inalienable. 130

In fine, since the law does not separately categorize marital rape and non-marital rape nor provide
for different definition or elements for either, the Court, tasked to interpret and apply what the law
dictates, cannot trudge the forbidden sphere of judicial legislation and unlawfully divert from what the
law sets forth. Neither can the Court frame distinct or stricter evidentiary rules for marital rape cases
as it would inequitably burden its victims and unreasonably and irrationally classify them differently
from the victims of non-marital rape.

Indeed, there exists no legal or rational reason for the Court to apply the law and the evidentiary
rules on rape any differently if the aggressor is the woman's own legal husband. The elements and
quantum of proof that support a moral certainty of guilt in rape cases should apply uniformly
regardless of the legal relationship between the accused and his accuser.

Thus, the Court meticulously reviewed the present case in accordance with the established legal
principles and evidentiary policies in the prosecution and resolution of rape cases and found that no
reversible error can be imputed to the conviction meted the accused-appellant.

The evidence for the prosecution was

based on credible witnesses who gave
equally credible testimonies

In rape cases, the conviction of the accused rests heavily on the credibility of the victim. Hence, the
strict mandate that all courts must examine thoroughly the testimony of the offended party. While the
accused in a rape case may be convicted solely on the testimony of the complaining witness, courts
are, nonetheless, duty-bound to establish that their reliance on the victim's testimony is justified.
Courts must ensure that the testimony is credible, convincing, and otherwise consistent with human
nature. If the testimony of the complainant meets the test of credibility, the accused may be
convicted on the basis thereof. 131

It is settled that the evaluation by the trial court of the credibility of witnesses and their testimonies
are entitled to the highest respect. This is in view of its inimitable opportunity to directly observe the
witnesses and their deportment, conduct and attitude, especially during cross-examination. Thus,
unless it is shown that its evaluation was tainted with arbitrariness or certain facts of substance and
value have been plainly overlooked, misunderstood, or misapplied, the same will not be disturbed on
appeal.132

After approximating the perspective of the trial court thru a meticulous scrutiny of the entire records
of the trial proceedings and the transcript of each witnesses' testimony, the Court found no
justification to disturb its findings.

Rather, the Court observed that KKK and her testimony were both credible and spontaneous. Hailed
to the witness stand on six separate occasions, KKK never wavered neither did her statements
vacillate between uncertainty and certitude. She remained consistent, categorical, straightforward,
and candid during the rigorous cross-examination and on rebuttal examination, she was able to
convincingly explain and debunk the allegations of the defense.

She vividly recounted how the accused-appellant forced her to have sex with him despite her refusal
on October 16, 1998. He initially ordered her to sleep beside him in their conjugal bed by violently
throwing the cot where she was resting. In order not to aggravate his temper, KKK obeyed. On the
bed, he insinuated for them to have sex. When she rejected his advances due to abdominal pain
and headache, his request for intimacy transformed into a stubborn demand. Unyielding, KKK held
her panties but the accused-appellant forcibly pulled them down. The tug caused the small clothing
to tear apart. She reiterated that she was not feeling well and begged him to stop. But no amount of
resistance or begging subdued him. He flexed her two legs apart, gripped her hands, mounted her,
rested his own legs on hers and inserted his penis into her vagina. She continued pleading but he
never desisted. 133

Her accurate recollection of the second rape incident on October 1 7, 1998 is likewise unmistakable.
After the appalling episode in the conjugal bedroom the previous night, KKK decided to sleep in the
children's bedroom. While her daughters were fixing the beddings, the accused-appellant barged
into the room and berated her for refusing to go with him to their conjugal bedroom. When KKK
insisted to stay in the children's bedroom, the accused-appellant got angry and pulled her up.
MMM's attempt to pacify the accused-appellant further enraged him. He reminded them that as the
head of the family he could do whatever he wants with his wife. To demonstrate his role as patriarch,
he ordered the children to go out of the room and thereafter proceeded to force KKK into sexual
intercourse. He forcibly pulled down her short pants and panties as KKK begged "Dont do that to
me, my body is still aching and also my abdomen and I cannot do what you wanted me to do. I
cannot withstand sex."  But her pleas fell on deaf ears. The accused-appellant removed his shorts
134

and briefs, spread KKK's legs apart, held her hands, mounted her and inserted his penis into her
vagina. After gratifying himself, he got dressed, left the room as he chuckled: "Its nice, that is what
you deserve because you are [a] flirt or fond of sex." 135

Entrenched is the rule that in the prosecution of rape cases, the essential element that must be
proved is the absence of the victim's consent to the sexual congress. 136
Under the law, consent is absent when: (a) it was wrestled from the victim by force, threat or
intimidation, fraudulent machinations or grave abuse of authority; or (b) the victim is incapable of
giving free and voluntary consent because he/she is deprived of reason or otherwise unconscious or
that the offended party is under 12 years of age or is demented.

Contrary to the accused-appellant's asseverations, KKK's consent was wrestled from her through
force and intimidation both of which were established beyond moral certainty by the prosecution
through the pertinent testimony of KKK, viz:

On the October 16, 1998 rape incident:

(Direct Examination)

ATTY. LARGO:

Q So, while you were already lying on the bed together with your husband, do you remember what
happened?

A He lie down beside me and asked me to have sex with him.

Q How did he manifest that he wanted to have sex with you?

A He put his hand on my lap and asked me to have sex with him but I warded off his hand.

Q Can you demonstrate to this Court how did he use his hand?

A Yes. "witness demonstrating on how the accused used his finger by touching or knocking her lap
which means that he wanted to have sex."

Q So, what did you do after that?

A I warded off his hand and refused because I was not feeling well. (at this juncture the witness is
sobbing)

Q So, what did your husband do when you refused him to have sex with you?

A He insisted and he pulled my pantie forcibly, that is why my pantie [sic] was tom.

Q Why, what did you do when he started to pull your pantie [sic]?

A I resisted and tried to hold my pantie [sic] but I failed, because he is so strong.

xx xx

Q So, when your pantie [sic] was tom by your husband, what else did he do?

A He flexed my two legs and rested his two legs on my legs.

Q So after that what else did he do?

A He succeeded in having sex with me because he held my two hands no matter how I wrestled but
I failed because he is stronger than me.

COURT: Make it of record that the witness is sobbing while she is giving her testimony.

ATTY. LARGO: (To the witness cont'ng.)

Q So, what did you do when your husband already stretched your two legs and rode on you and
held your two hands?

A I told him, "don't do that because I'm not feeling well and my whole body is aching."

Q How did you say that to your husband?

A I told him, "don't do that to me because I'm not feeling well."

Q Did you say that in the manner you are saying now?

xxxx

A I shouted when I uttered that words.

xxxx

Q Was your husband able to consummate his desire?

xxxx

A Yes, sir, because I cannot do anything. 137

(Cross-Examination)

ATTY. AMARGA;

Q Every time you have sex with your husband it was your husband normally remove your panty?

A Yes, Sir.

Q It was not unusual for your husband then to remove your panty because according to you he
normally do that if he have sex with you?

A Yes, Sir.

Q And finally according to you your husband have sex with you?

A Yes, Sir because he forcibly used me in spite of holding my panty because I don't want to have
sex with him at that time.

Q You did not spread your legs at that time when he removed your panty?
A Yes, Sir.

Q Meaning, your position of your legs was normal during that time?

A I tried to resist by not flexing my legs.

xxxx

Q At that time when your husband allegedly removed your panty he also remove your nightgown?

A No, Sir.

Q And he did pull out your duster [sic] towards your face?

A He raised my duster [sic] up.

Q In other words your face was covered when he raised your duster [sic]?

A No, only on the breast level. 138

On the October 17, 1998 rape incident:

(Direct Examination)

ATTY. LARGO

Q So, after your children went out of the room, what transpired?

A He successfully having sex with me because he pulled my short pant and pantie forcible.

Q So, what did you say when he forcibly pulled your short and pantie?

A I told him, "don't do that to me, my body is still aching and also my abdomen and I cannot do what
you wanted me to do. I cannot withstand sex."

Q So, what happened to your short when he forcibly pulled it down?

A It was tom.

Q And after your short and pantie was pulled down by your husband, what did he do?

A He also removed his short and brief and flexed my two legs and mounted on me and succeeded in
having sex with me. 139

The accused-appellant forced his wife when he knowingly overpowered her by gripping her hands,
flexing her legs and then resting his own legs thereon in order to facilitate the consummation of his
much-desired non-consensual sexual intercourse.

Records also show that the accused-appellant employed sufficient intimidation upon KKK. His
actuations prior to the actual moment of the felonious coitus revealed that he imposed his distorted
sense of moral authority on his wife. He furiously demanded for her to lay with him on the bed and
thereafter coerced her to indulge his sexual craving.

The fury the accused-appellant exhibited when KKK refused to sleep with him on their bed, when
she insisted to sleep in the children's bedroom and the fact that he exercises dominance over her as
husband all cowed KKK into submission.

The fact that KKK voluntarily went with the accused-appellant to their conjugal bedroom on October
16, 1998 cannot be stretched to mean that she consented to the forced sexual intercourse that
ensued. The accused-appellant was KKK's husband and hence it was customary for her to sleep in
the conjugal bedroom. No consent can be deduced from such act of KKK because at that juncture
there were no indications that sexual intercourse was about to take place. The issue of consent was
still irrelevant since the act for which the same is legally required did not exist yet or at least unclear
to the person from whom the consent was desired. The significant point when consent must be given
is at that time when it is clear to the victim that her aggressor is soliciting sexual congress. In this
case, that point is when the accused-appellant tapped his fingers on her lap, a gesture KKK
comprehended to be an invitation for a sexual intercourse, which she refused.

Resistance, medical certificate and blood traces.

We cannot give credence to the accused-appellant's argument that KKK should have hit him to
convey that she was resisting his sexual onslaught. Resistance is not an element of rape and the
law does not impose upon the victim the burden to prove resistance  much more requires her to
140

raise a specific kind thereof.

At any rate, KKK put up persistent, audible and intelligible resistance for the accused-appellant to
recognize that she seriously did not assent to a sexual congress. She held on to her panties to
prevent him from undressing her, she refused to bend her legs and she repeatedly shouted and
begged for him to stop.

Moreover, as an element of rape, force or intimidation need not be irresistible; it may be just enough
to bring about the desired result. What is necessary is that the force or intimidation be sufficient to
consummate the purpose that the accused had in mind  or is of such a degree as to impel the
141

defenseless and hapless victim to bow into submission. 142

Contrary to the accused-appellant's allusions, the absence of blood traces in KKK's panties or the
lack of a medical certificate do not negate rape. It is not the presence or absence of blood on the
victim's underwear that determines the fact of rape  inasmuch as a medical certificate is
143

dispensable evidence that is not necessary to prove rape. These details do not pertain to the
144

elements that produce the gravamen of the offense that is -sexual intercourse with a woman against
her will or without her consent.145

The accused-appellant harps on the acquittal ruling in People v. Godoy,  the evidentiary
146

circumstances of which are, however, disparate from those in the present case. In Godoy, the
testimony of the complainant was inherently weak, inconsistent, and was controverted by the
prosecution's medico-legal expert witness who stated that force was not applied based on the
position of her hymenal laceration. This led the Court to conclude that the absence of any sign of
physical violence on the victim's body is an indication of consent.  Here, however, KKK's testimony
147

is, as discussed earlier, credible, spontaneous and forthright.

The corroborative testimonies of

MMM and OOO are worthy of credence.
The accused-appellant's assertion that MMM and OOO's testimonies lacked probative value as they
did not witness the actual rape is bereft of merit. It must be stressed that rape is essentially
committed in relative isolation, thus, it is usually only the victim who can testify with regard to the fact
of the forced sexual intercourse.  Hence, the probative value of MMM and OOO's testimonies rest
148

not on whether they actually witnessed the rape but on whether their declarations were in harmony
with KKK's narration of the circumstances, preceding, subsequent to and concurrent with, the rape
incidents.

MMM and OOO's testimonies substantiated significant points in KKK's narration. MMM heard KKK
shouting and crying: "Eddie, don’t do that to me, have pity on me"  on the night of October 16, 1998
149

shortly after KKK and the accused-appellant went to their conjugal bedroom. When MMM went
upstairs to check on her mother, the accused-appellant admonished her for meddling. Frustrated to
aid her mother who persistently cried, MMM kicked the door so hard the accused-appellant was
prompted to open it and rebuke MMM once more. OOO heard all these commotion from the room
downstairs.

MMM then saw her mother crouched on the bed, crying, with her hair disheveled while her tom panty
lay on the floor. After a brief struggle with the accused-appellant, MMM and KKK were finally able to
escape and retreat to the children's bedroom where KKK narrated to her daughters: "[Y]our father is
an animal, a beast; he forced me to have sex with him when I'm not feeling well. "

KKK gave a similar narration to MMM and OOO the following night after the accused-appellant
barged inside the children's bedroom. The couple had an argument and when MMM tried to
interfere, the accused-appellant ordered her and OOO to get out after bragging that he can have sex
with his wife even in front of the children because he is the head of the family. The girls then stayed
by the staircase where they afterwards heard their mother helplessly crying and shouting for the
accused-appellant to stop.

Indeed, the testimonies of KKK, MMM and OOO coherently depicted that the accused-appellant,
through the use of force and intimidation, had non-consensual and forced carnal knowledge of his
wife, KKK on the nights of October 16 and 17, 1998.

KKK's helpless screams and pleas from inside the bedroom coupled with her verbal and physical
resistance were clear manifestations of coercion. Her appearance when MMM saw her on the bed
after the accused appellant opened the door on October 16, 1998, her conduct towards the accused-
appellant on her way out of the room, and her categorical outcry to her children after the two
bedroom episodes - all generate the conclusion that the sexual acts that occurred were against her
will.

Failure to immediately report to the

police authorities, if satisfactorily
explained, is not fatal to the
credibility of a witness.

The testimonies of KKK and her daughters cannot be discredited merely because they failed to
report the rape incidents to the police authorities or that KKK belatedly filed the rape charges. Delay
or vacillation by the victims in reporting sexual assaults does not necessarily impair their credibility if
such delay is satisfactorily explained. 150

At that time, KKK and her daughters were not aware that a husband forcing his wife to submit to
sexual intercourse is considered rape. In fact, KKK only found out that she could sue his husband for
rape when Prosecutor Benjamin Tabique, Jr. (Prosecutor Tabique) told her about it when she filed
the separate charges for grave threats and physical injuries against the accused-appellant. 151

It must be noted that the incidents occurred a year into the effectivity of R.A. No. 8353 abolishing
marital exemption in rape cases hence it is understandable that it was not yet known to a layman as
opposed to legal professionals like Prosecutor Tabique. In addition, fear of reprisal thru social
humiliation which is the common factor that deter rape victims from reporting the crime to the
authorities is more cumbersome in marital rape cases. This is in view of the popular yet outdated
belief that it is the wife's absolute obligation to submit to her husband's carnal desires. A husband
raping his own wife is often dismissed as a peculiar occurrence or trivialized as simple domestic
trouble.

Unfamiliarity with or lack of knowledge of the law criminalizing marital rape, the stigma and public
scrutiny that could have befallen KKK and her family had the intervention of police authorities or
even the neighbors been sought, are acceptable explanations for the failure or delay in reporting the
subject rape incidents.

The victim -S testimony on the

witness stand rendered
unnecessary the presentation of her
complaint-affidavit as evidence.

The failure of the prosecution to present KKK's complaint-affidavit for rape is not fatal in view of the
credible, candid and positive testimony of KKK on the witness stand. Testimonial evidence carries
more weight than the affidavit since it underwent the rudiments of a direct, cross, re-direct and re-
cross examinations. Affidavits or statements taken ex parte are generally considered incomplete and
inaccurate. Thus, by nature, they are inferior to testimony given in court.
152

Ill motive imputed to the victim

The ill motive, which the accused-appellant imputed to KKK, does not inspire belief as it is riddled
with loopholes generated by incongruent and flimsy evidence. The prosecution was able to establish
that the ₱3 Million deposit in the spouses' bank account was the proceeds of their loan from the
Bank of Philippine Islands (BPI). Exhibit J, which is a BPI ML instruction sheet dated October 31,
1996 in the amount of ₱3,149,840.63 is the same amount the accused-appellant claimed to have
entrusted to her wife. Although the accused-appellant denied being aware of such loan, he admitted
that approximately ₱3 Million was spent for the construction of their house. These pieces of
evidence effectively belie the accused appellant's allegation that KKK could not account for the
money deposited in the bank. 153

Anent, KKK's alleged extra-marital affairs, the accused-appellant failed to explain how Bebs could be
his wife KKK when the letter-sender greeted Bebs a "happy birthday" on October 28 while KKK's
birthday is June 23. The accused-appellant also did not present Bebs herself, being a more
competent witness to the existence of the alleged love letters for KKK. He likewise failed, despite
promise to do so, to present the original copies of such love letters neither did he substantiate KKK's
supposed extra-marital affairs by presenting witnesses who could corroborate his claims. Further,
the Court finds it unbelievable that an able man would not have the temerity to confront his wife who
has fooled around with 10 men - some of whom he has even met. The accused-appellant's erratic
statements on the witness stand are inconsistent with the theory of extra-marital romance making it
reasonable to infer that he merely made up those malicious stories as a desperate ploy to extricate
himself out of this legal quandary.
At best, the basis of the alleged illicit affairs of KKK were the accused-appellant's unfounded
suspicions that hold no evidentiary weight in law and thus incompetent to destroy KKK's credibility
and that of her testimony. In sum, the defense failed to present sufficiently convincing evidence that
KKK is a mere vindictive wife who is harassing the accused-appellant with fabricated rape charges.

Alibi

It must be stressed that in raising the irrevocable implied consent theory as defense, the accused-
appellant has essentially admitted the facts of sexual intercourse embodied in the two criminal
informations for rape. This admission is inconsistent with the defense of alibi and any discussion
thereon will thus be irrelevant.

At any rate, the courts a quo correctly rejected his alibi.

Alibi is one of the weakest defenses not only because it is inherently frail and unreliable, but also
because it is easy to fabricate and difficult to check or rebut. It cannot prevail over the positive
identification of the accused by eyewitnesses who had no improper motive to testify falsely. 154

For the defense of alibi to prosper, the accused must prove not only that he was at some other place
at the time of the commission of the crime, but also that it was physically impossible for him to be at
the locus delicti or within its immediate vicinity. Physical impossibility refers not only to the
geographical distance between the place where the accused was and the place where the crime
was committed when the crime transpired, but more importantly, the facility of access between the
two places. 155

Even granting in arguendo that the accused-appellant had indeed attended a fiesta in Dangcagan,
Bukidnon or was hauling com with Equia on the dates of commission of the crime, the same will not
easily exonerate him. The accused-appellant failed to adduce clear and convincing evidence that it
was physically impossible for him to be at his residence in Cagayan de Oro City at the time of the
commission of the crime. Dangcagan, Bukidnon can be traversed by about four or five hours from
Cagayan de Oro City, and even less by private vehicle which was available to the accused appellant
at any time.  Thus, it was not physically impossible for him to be at the situs criminis at the dates
156

and times when the two rape incidents were committed.

Between the accused-appellant's alibi and denial, and the positive identification and credible
testimony of the victim, and her two daughters, the Court must give weight to the latter, especially in
the absence of ill motive on their part to falsely testify against the accused-appellant.

Conclusion

All told, the presumption of innocence endowed an accused-appellant was sufficiently overcome by
KKK's clear, straightforward, credible, and truthful declaration that on two separate occasions, he
succeeded in having sexual intercourse with her, without her consent and against her will. Evidence
of overwhelming force and intimidation to consummate rape is extant from KKK's narration as
believably corroborated by the testimonies of MMM and OOO and the physical evidence of KKK's
tom panties and short pants. Based thereon, the reason and conscience of the Court is morally
certain that the accused-appellant is guilty of raping his wife on the nights of October 16 and 17,
1998.

Penalties
The Court affirms the penalty of reclusion perpetua, for each count of rape, meted upon the
accused-appellant for being in accord with Article 266-A in relation to 266-B of the RPC. Further, he
shall not be eligible for parole pursuant to Section 3 of R.A. No. 9346, which states that "persons
convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to
reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180,
otherwise known as the Indeterminate Sentence Law, as amended." 157

The Court sustains the moral damages awarded in the amount of ₱50,000.00. Moral damages are
granted to rape victims without need of proof other than the fact of rape under the assumption that
the victim suffered moral injuries from the experience she underwent. 158

The award of civil indemnity is proper; it is mandatory upon the finding that rape took
place.  Considering that the crime committed is simple rape, there being no qualifying circumstances
1âwphi1

attendant in its commission, the appropriate amount is ₱50,000.00  and not ₱75,000.00 as awarded
159

by the RTC.

To serve as an example for public good and in order to deter a similar form of domestic violence, an
award of ₱30,000.00 as exemplary damages is imperative. 160

The damages awarded shall earn legal interest at the rate of six percent (6%) per annum to be
reckoned from the date of finality of this judgment until fully paid.
161

A Final Note

Rape is a crime that evokes global condemnation because it is an abhorrence to a woman's value
and dignity as a human being. It respects no time, place, age, physical condition or social status. It
can happen anywhere and it can happen to anyone. Even, as shown in the present case, to a wife,
inside her time-honored fortress, the family home, committed against her by her husband who
vowed to be her refuge from cruelty. The herein pronouncement is an affirmation to wives that our
rape laws provide the atonement they seek from their sexually coercive husbands.

Husbands are once again reminded that marriage is not a license to forcibly rape their wives. A
husband does not own his wife's body by reason of marriage. By marrying, she does not divest
herself of the human right to an exclusive autonomy over her own body and thus, she can lawfully
opt to give or withhold her consent to marital coitus. A husband aggrieved by his wife's unremitting
refusal to engage in sexual intercourse cannot resort to felonious force or coercion to make her
yield. He can seek succor before the Family Courts that can determine whether her refusal
constitutes psychological incapacity justifying an annulment of the marriage.

Sexual intimacy is an integral part of marriage because it is the spiritual and biological communion
that achieves the marital purpose of procreation. It entails mutual love and self-giving and as such it
contemplates only mutual sexual cooperation and never sexual coercion or imposition.

The Court is aware that despite the noble intentions of the herein pronouncement, menacing
personalities may use this as a tool to harass innocent husbands. In this regard, let it be stressed
that safeguards in the criminal justice system are in place to spot and scrutinize fabricated or false
marital rape complaints and any person who institutes untrue and malicious charges will be made
answerable under the pertinent provisions of the RPC and/or other laws.

WHEREFORE, all the foregoing considered, the Decision dated July 9, 2008 of the Court of Appeals
in CA-G.R. CR-HC No. 00353 is hereby AFFIRMED with MODIFICATIONS. Accused-appellant
Edgar Jumawan is found GUILTY beyond reasonable doubt of two (2) counts of RAPE and is
sentenced to suffer the penalty of reclusion perpetua for each count, without eligibility for parole. He
is further ordered to pay the victim, KKK, the amounts of PS0,000.00 as civil indemnity, ₱50,000.00
as moral damages, and ₱30,000.00 as exemplary damages, for each count of rape. The award of
damages shall earn legal interest at the rate of six percent (6%) per annum from the finality of this
judgment until fully paid.

SO ORDERED.

THIRD DIVISION

G.R. No. 192233, February 17, 2016

PEOPLE OF THE PHILIPPINES, Plaintiff and Appellee, v.  SPO1 CATALINO

GONZALES, JR., Accused-Appellant.

DECISION

PEREZ, J.:

On appeal is the Decision1 of the Court of Appeals in CA-G.R. CR.-H.C. No. 02638,
affirming with modification the Judgment2 of the Regional Trial Court (RTC), Trece
Martirez City, Branch 23, convicting accused-appellant SPO1 Catalino Gonzales, Jr. for
the crime of Kidnapping for Ransom.

On 30 January 2006, appellant was charged with Kidnapping for Ransom in the
following Information:

That on December 28, 2005, at about 10:30 o'clock in the morning in the Municipality
of Tanza, Province of Cavite and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating, and mutually helping one another,
with threats and/or intimidation and through the use of force, did then and there,
willfully, unlawfully, and feloniously take, carry away, and deprive PETER TAN and his
son MICHAEL TAN, a minor of two . (2) years of age, of their respective liberties
against their will for the purpose of extorting money as in fact a demand for money in
the amount of Three Million (P3,000,000.00) Pesos, Philippine Currency, was demanded
as a condition for their safe release to their damage and prejudice.

With the attendance of the aggravating circumstance of abuse of authority

against SPO1 CATALINO GONZALES, PS1 NATHANIEL CAPITENEA and PO2
ARDEN G. LANAZA, being active members of the Philippine National Police.3

On arraignment, appellant entered a plea of not guilty. Trial ensued.

The victim Peter Tan (Tan) and his wife Huang Haitao (Haitao) lived in Retirees' Village
in Tanza, Cavite. They operated a stall in a market also in Tanza.
Haitao narrated in her Sworn Statement4 that in the morning of 28 December 2005,
Haitao left the house ahead of Tan and their two-year old son to go to the market.
When Haitao arrived at their stall, she tried calling Tan in his phone but the latter did
not answer. Finally, the call was answered by someone who introduced himself as a
National Bureau of Investigation (NBI) agent and who told Haitao that her husband was
arrested for illegal possession of shabu. Haitao immediately asked for her husband's
whereabouts but the alleged NBI agent hung up. Haitao then called Tan's phone again.
Before she could talk to her husband, someone snatched the phone away from Tan and
told her that someone would get in touch with her. At around 10:30 a.m., an unknown
Chinese man called up Haitao and informed her that her husband and son were
detained for possession of drugs, and that she should pay off the captors. That evening,
a man called Haitao and demanded P5,000,000.00 for the release of her husband and
son. The demand was lowered to P3,000,000.00. Haitao was ordered by the captor to
prepare the money and go to Luneta Park on the following day.

Haitao reported the incident to the Philippine Anti-Crime Emergency Response Unit
(PACER) of the Philippine National Police. The Luneta Park meeting did not push
through. Haitao still received various instructions from the captors to fetch her son until
the PACER received information that Haitao's son was in White Cross Children's Home.
Haitao was eventually reunited with her son.

On 15 January 2006, Haitao received a text message from an unidentified man who
claimed that he knew about Tan's kidnapping and demanded £30,000.00 from Haitao.
They met at McDonald's restaurant in Tanza, Cavite. When the man, later identified as
Edwin Torrente (Torrente) approached Haitao, he was arrested by PACER agents.

It turned out that Torrente was part of the group which forcibly took Tan and his son.
In exchange for the needed information, Torrente was placed under the Witness
Protection Program and was utilized as a state witness.

In his Sworn Statement,5 Torrente narrated that on 27 December 2005, he was

approached by appellant and told about a plan to arrest Tan, an alleged drug pusher in
Tanza, Cavite. At around 7:00 a.m. on 28 December 2005, Torrente received a text
message from appellant asking him to proceed to the Shell Gas Station along Coastal
Road in Imus, Cavite. Thereat, Torrente met appellant, his son, Joy Gonzales, Lt.
Capitanea, and nine other people. The group then proceeded to the Retirees' Village in
Tanza, Cavite to conduct a surveillance of the house of appellant. At around 11:00
a.m., the group left the village and went to a nearby Me Donald's restaurant to have
some snacks. After eating, the group went back to the village and chanced upon Tan
who was inside his Ford vehicle. They immediately blocked Tan's car, forced him and
his son to alight from the vehicle, and boarded them into another vehicle. Torrente then
went back to the gas station to get his motorcycle and proceeded to his house. On 31
December 2005, Torrente received a call from appellant informing him that Tan would
soon be released as negotiations were ongoing. Torrente admitted that he called Haitao
and asked for a meeting. When Torrente sensed the presence of policemen, he
immediately surrendered and voluntarily gave his statement.

Appellant denied the charges against him and proffered the defense of alibi. Appellant
claimed that on 28 December 2005, at 10:08 a.m., he was at the Land Bank of the
Philippines branch in Dasmarinas, Cavite to encash his check. After encashing his
check, appellant went home and stayed there until 8:00 p.m. to attend a party. On 31
December 2005, Torrente went to his house and together, they conducted a
surveillance against drug suspects.

On 17 January 2006, he planned to meet up with Torrente at the Shell Station along
Anabu Road in Imus, Cavite. When appellant arrived at the gas station, two armed men
alighted from their vehicles and poked their guns on him. Appellant was then forcibly
dragged into the vehicle. Appellant claimed that he was subjected to physical and
mental torture before he was brought to the PACER office.6

The branch manager of Land Bank, Mr. Edgar Deligero, corroborated appellant's alibi.
He acknowledged that a check under appellant's name was encashed on 28 December
2005 at 10:08 a.m. He noted that based on the bank's verification procedure, the
signature of appellant is valid and an identification document was presented by the
appellant. Hence, the bank manager confirmed that it was indeed appellant who
personally encashed the check.7

Appellant's daughter corroborated appellant's statement that he was tortured. Jocelyn

Gonzales witnessed his father's condition while the latter was detained in the PACER's
office. She also saw a first medical certificate and heard the DOJ prosecutor order a
second medical examination. Dr. Edilberto Antonio confirmed the issuance of two
medical certificates certifying the injuries suffered by appellant.

On 12 July 2006, the trial court rendered judgment finding appellant guilty beyond
reasonable doubt of the crime of Kidnapping for Ransom and sentencing him to suffer
the penalty of reclusion perpetua  and to pay P200,000.00 as exemplary damages.

Appellant challenged the trial court's decision affirming his conviction on the ground of
alleged discrepancies in the testimonies and statements of prosecution witnesses.
Appellant specifically pointed out the discrepancy in the time of the commission of the
crime. Appellant asserted that based on the statement of Haitao, the kidnapping
incident took place at around 10:30 a.m. while state witness Torrente, claimed that the
kidnapping occurred after 11:00 a.m. Furthermore, appellant insisted that Torrente's
claim that he and appellant were together from 7:30 a.m. up to after 11:00 a.m. on 28
December 2005 is inconsistent with the fact that appellant, as confirmed by the branch
manager, was at the Land Bank branch in Dasmarinas, Cavite at 10:08 a.m. to encash
a check. Based on these inconsistencies, appellant maintained that he should be
acquitted. Appellant also argued that the absence of the victim puts in serious doubt
the presence of the corpus delicti.

The Office of the Solicitor General (OSG), for its part, recommended that appellant be
held guilty of kidnapping for ransom. The OSG contended that there is no material
discrepancy as to time that would tend to create reasonable doubt as to appellant's
guilt. The OSG stressed that the corpus delicti in this case is the actual confinement,
detention and restraint on the victims. The OSG asserted that the prosecution has
proven that the detention of the victims was perpetrated by appellant, among others.

In a Decision8 dated 12 November 2009, the Court of Appeals affirmed the ruling of the
trial court.
The appellate court rejected appellants' defense of alibi and held that it cannot prevail
over the positive identification by the state witness. The appellate court also dismissed
the alleged disparities on the sworn statements and testimonies of prosecution
witnesses as trivial and minor details that do not detract in any way from the main
thrust of what the prosecution witnesses related in court.

On 7 July 2010, this Court required the parties to simultaneously file their respective
Supplemental Briefs.9 While the OSG manifested that it is adopting its brief earlier filed
before the Court of Appeals,10 appellant filed his Supplemental Brief11 reiterating that
the inconsistent statements of the prosecution witnesses with respect to the time of the
commission of the crime are so crucial to merit his acquittal. Appellant maintains that
he was at the bank at 10:08 a.m. Using this as a reckoning point, both of the
prosecution witnesses' claim of the time of kidnapping are erroneous. The disparity in
the statements of the prosecution witnesses creates a doubt in the guilt of the accused
which, according to appellant, should work for his acquittal.

The bone of contention in this case is whether the inconsistent statements of

prosecution witnesses with regard to the time of the commission of the crime will
exonerate appellant.

In People v. Delfin,12 a case involving simple rape, the Court held that where the
inconsistency is not an essential element of the crime, such inconsistency is
insignificant and cannot have any bearing on the essential fact testified to. In a case for
illegal sale and possession of dangerous drugs,13 the Court ruled that inconsistencies
and discrepancies in the testimony referring to minor details and not upon the basic
aspect of the crime do not diminish the witnesses' credibility. An inconsistency, which
has nothing to do with the elements of a crime, is not a ground to reverse a conviction.
In fact in People v. Macapanas,14 we added that these inconsistencies bolster the
credibility of the witness's testimony as it erases the suspicion of the witness having
been coached or rehearsed.

The alleged inconsistencies related to the time the kidnapping was committed. The
elements of kidnapping for ransom under Article 267 of the Revised Penal Code (RPC),
as amended, are as follows: (a) intent on the part of the accused to deprive the victim
of his liberty; (b) actual deprivation of the victim of his liberty; and (c) motive of the
accused, which is extorting ransom for the release of the victim.15 Time is not a
material ingredient in the crime of kidnapping. As long as all these elements were
sufficiently established by the prosecution, a conviction for kidnapping is in order.

At any rate, Torrente declared during the cross-examination that he tried to rectify the
error with regard to the time, thus:

CROSS-EXAMINATION OF THE WITNESS

CONDUCTED BY ATTY. MAPILE:
ATTY. MAPILE:
Q  Mr. Witness, you said you talked to the Prosecutor before taking to the witness
 stand, is it not?
WITNESS:
A Yes, sir. He explained to me that if I am telling the truth, sir.
Q  And he also explained to you the need of correcting paragraph 5 in your sworn
statement, is it not because of a typographical error? 
A  Yes, sir.
Q  And except for that error, you confirmed everything to be true and accurate on
figures and dates especially the time, am I right? 
A Yes, sir.
ATTY. MAPILE:
Q  And you have nothing, you have no desire subsequent to correct, to make any
further correction?
WITNESS:
A  I have, sir. With respect to time only.
Q What time are you talking about Mr. Witness? 
A  When Peter Tan was taken, it could be more or less 10:00 in the morning, sir.
Q Instead of what? What appears in your statement when he was abducted or
taken? 
A  No more, sir. He was abducted more or less 10:00 o'clock in the morning.
Q  You had occasion to read how many times your sworn statement before signing
it?
A  For about five (5) times, sir.
Q  Why did you notice for the first time that Number 5, question number 5 and
answer number 5 should be corrected? 
A For the third time, sir.
ATTY. MAPILE:
Q  And when was the time when you also discovered that the abduction was 10:00
o'clock instead of beyond 10:00 o'clock of December 28, 2005?
WITNESS:
A For the second time, sir.
Q  You mean for the second time, the second time that you read your statement? 
A  Yes, sir.
Q  When was that Mr. Witness? 
A Before I signed it, sir.
Q  Before you signed it, it was stated you did not forget the one who prepared your
statement? 
A I called the attention of the one who prepared, sir.
Q  But what he say?
A  According to the Investigator, they changed it already, sir.
Q So you did not sign that purported sworn statement, that sworn statement was
already changed?
COURT:
Let us make this clear counsel. As per statement given on January 17 and one
January 24.
ATTY. MAPILE:
I'm merely referring to the 17, Your Honor. 
COURT:
17. 
WITNESS:
A I did not, sir. 
ATTY. MAPILE:
Q  You did not because you pointed out the mistake? 
A  Yes, sir.
Q  When you refused to sign because you disclosed to get the error, did the
Investigator changed your statement?
A  Yes, sir.
PROSE. PARICO:
Your Honor, the witness answered earlier "Binago Na Po", that was his
statement, Your Honor.
 WITNESS:
A The sworn statement is the same, sir. 
ATTY. MAPILE:
Q  In short, they did not correct the error that.you pointed out? 
A  No, sir. I did not change it.
Q And despite pointing out the error, they did not change it anymore?
A  I do not know the reason, sir.16

Appellant now seeks to assail the testimony of Torrente as a "last-minute adjustment"

which weakens the testimony.

It has been consistently held that discrepancies and/or inconsistencies between a

witness' affidavit and testimony do not necessarily impair his credibility as affidavits are
taken ex parte and are often incomplete or inaccurate for lack or absence of searching
inquiries by the investigating officer. What is important is, in the over-all analysis of the
case, the trial court's findings and conclusions are duly supported by the evidence on
record.17

In this case, both the RTC and the Court of Appeals gave credit to Torrente's statement.
It is a well-settled rule that factual findings of the trial court regarding the credibility of
witnesses are accorded great weight and respect especially if affirmed by the Court of
Appeals. The Court shall not supplant its own interpretation of the testimonies for that
of the trial judge since he is in the best position to determine the issue of credibility of
witnesses.18

A concomitant issue is whether the corpus delicti was proven despite the non-

presentation of the kidnap victims during trial. Appellant stresses that the corpus
delicti was not proven because Tan19 could not be found.

Corpus delicti is the fact of the commission of the crime which may be proved by the
testimony of the witnesses who saw it.20 The corpus delicti in the crime of kidnapping
for ransom is the fact that an individual has been in any manner deprived of his liberty
for the purpose of extorting ransom from the victim or any other person.21

To prove the corpus delicti, it is sufficient for the prosecution to be able to show that
(1) a certain fact has been proven — say, a person has died or a building has been
burned; and (2) a particular person is criminally responsible for the act.22

The  fact of kidnapping has been duly proved by Haitao who categorically testified that
a kidnapping transpired, to wit:
PROSE. PARICO:

May i manifest, Your Honor, that while the witness is reading intensely the affidavit No.
8, she is continues crying, Your Honor.

COURT:

Okay, noted the manifestation of the counsel is granted that while witness is reading
paragraph No. 8 question and answer the witness is crying. Noted. Can you interpret in
Chinese?

WITNESS:

A  And when she went to the PalengkE, they were not in the same car. She went ahead and
then Peter and the son followed in another car with Plate No. PTY-955. She called her
husband five times and nobody was answering, sir. The husband was not answering the
cellphone, her cellphone and somebody answered a voice, the voice of a male, Filipino
voice. The man said that they arrested Peter, they are from NBI and they arrested him
because he has in possession one (1) kilo of shabu, sir. She said that she cannot believe
it. They are just telling lies. She could not believe that Peter Tan is in possession of
shabu and if Peter will be arrested why will be include my son. She said that she has a
business in the market doing glassware and houseware in Tanza, sir.
xxx
x
A  I called again the cellphone of Peter, sir. She got to talk on Peter at the cellphone and
Peter clearly told her in Chinese to ask them where is the child, a boy and quickly, they
cut the cellphone. So when she got to talk to the person on the other line, they answered
if he is Chinese or Filipino and she said she is Chinese and there somebody who speak
to her in Chinese, sir. The Chines[e] told her that his friend gave this Chinese her
cellphone number. The Chinese said that they arrested him because her husband has
shabu and had a case, sir. And the Chinese said that they are kidnapping the husband
and they wanted for ransom and the Chinese said that he is not going to help anymore
he wants to go home. He doesn't want to get involve. He doesn't want to get anymore
and he wants to go home. She asked again, what is really the case and please don't get
the child, don't involve the child in this case, in the case of her husband. She said she
was asking the other line where did they bring my husband and what office they
brought him to and if she knows the office, she is going to get a lawyer. Then she asked
them to return the child, her son back to her. The Chinese said that Yah, why did you
involve the child and after that switch off the cellphone, sir.23

Torrente, on the other hand, identified appellant as one of the captors.

Article 267 of the RPC provides that the penalty of death shall be imposed if the
kidnapping was committed for the purpose of extorting ransom, thus:
Art. 267. Kidnapping and serious illegal "detention. - Any private individual who shall
kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer
the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have.lasted more than three days.

2.  If it shall have been committed simulating public authority.

3.  If any serious physical injuries shall have been inflicted upon the person kidnapped
or detained; or if threats to kill him shall have been made.

4.  If the person kidnapped or detained shall be a minor, except when the accused is
any of the parents, female or a public officer;

The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances above-mentioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is

subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.

Pursuant to R.A. No. 9346, the penalty is correctly reduced to reclusion perpetua,
without eligibility for parole.

We observe that the lower courts failed to award civil indemnity and moral damages in
this case. Civil indemnity is awarded if the crime is qualified by circumstances
warranting the imposition of the death penalty.24 On the other hand, moral damages is
warranted. Under Article 2217 of the New Civil Code, moral damages include physical
suffering, mental anguish, fright, serious anxiety, wounded feelings, moral shock and
similar injury.

There is no doubt that Haitao suffered physical, mental and emotional trauma over the
kidnapping of Tan and her two-year old son.

In conformity with prevailing jurisprudence,25 the following amount of damages should

be imposed:

1) P100,000.00 as civil indemnity;

2) P100,000.00 as moral damages; and
3) P100,000.00 as exemplary damages.

In addition, interest at the rate of six percent (6%) per annum shall be imposed on all
the damages awarded, to earn from the date of the finality of the Court's Decision until
fully paid. chanrobleslaw

WHEREFORE, the appeal is DISMISSED. The appealed decision

is AFFIRMED with MODIFICATIONS that appellant SPO1 Catalino Gonzales, Jr. is
sentenced to suffer the penalty of reclusion perpetua, without eligibility for parole, and
to pay the family of the kidnap victim Peter Tan the following amounts: (1)
P100,000.00 as civil indemnity; (2) P100,000.00 as moral damages; and (3)
P100,000.00 as exemplary damages, all with interest at the rate of six percent
(6%) per annum from the date of finality of judgment until fully paid.

SO ORDERED. cralawlawlibrary

Republic of the Philippines

SUPREME COURT
Baguio City

FIRST DIVISION

G.R. No. 202704               April 2, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, 

vs.
JOEL ABAT y COMETA, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

Accused-appellant Joel Abat y Cometa (Abat) is now before Us on review after the Court of Appeals,
in its February 27, 2012 Decision  in CA-G.R. CR.-H.C. No. 04340, affirmed with modification as to
1

damages the September 8, 2009 Decision  of the Regional Trial Court (RTC) of the City of Calapan,
2

Oriental Mindoro, Branch 40, in Criminal Case No. C-6587.

The RTC found Abat guilty beyond reasonable doubt of the crime of rape under Article 266-A of the
Revised Penal Code,  and sentenced him to suffer the penalty of reclusion perpetua with all the
3

accessory penalties provided for by law. 4

On November 15, 2001, an Information  was filed before the RTC, charging Abat with the crime of
5

Rape allegedly committed as follows:

That on or about the 22nd day of September 2001, in Barangay San Narciso, Municipality of
Victoria, Province of Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, motivated by lust and lewd desire, and by means of force and
intimidation, willfully, unlawfully and feloniously did lie, and succeeded in having carnal knowledge of
one [AAA ], a fifteen (15)[-] year-old girl, his niece, against her will and without her consent, to the
6

damage and prejudice of the latter.

Contrary to Article 335 in relation to R.A. 7659 & 8353.

Abat pleaded not guilty to the charge upon his arraignment on January 30, 2002.  The pre-trial
7

conference was held and terminated on February 12, 2002,  after which, trial on the merits ensued.
8

The facts of the case, as adopted by the Court of Appeals, are as follows:
 Version of the Prosecution

On [September] 22, 2001, around [eight] o’clock in the evening, AAA was home with her parents and
siblings. [Abat,] (an uncle of AAA, being the half[-]brother of AAA’s father), with the permission of
AAA’s parents, brought AAA with him to the poblacion to buy medicine.

The two proceeded to the poblacion on board a tricycle driven by [Abat]. There, [Abat] left AAA in the
tricycle and proceeded to talk with his fellow tricycle drivers. Soon, AAA told [Abat] that she wanted
to go home. Instead of taking her home, [Abat] drove the vehicle to Malayas Bridge.

Upon reaching Malayas Bridge, [Abat] forced AAA to jump from the bridge. Frightened, AAA ran
towards the direction of the poblacion and shouted for help. [Abat] chased AAA and forced her to
board the tricycle. Then, he drove the tricycle to Barangay Malabo.

Upon reaching Barangay Malabo, [Abat] brought AAA to her grandfather’s nipa hut. [Abat]
undressed himself then laid AAA down on a bamboo bed. He went on top of her and started to
remove her shorts and underwear. AAA tried to fight [Abat] and slapped him. Because of this, [Abat]
boxed AAA on her thighs and continued to undress her. AAA tried to push [Abat] away by hitting him
with fist blows but her efforts were in vain. [Abat] inserted his penis into AAA’s vagina. AAA again
struggled and tried to push [Abat] away but he threatened to kill her and her family if she would tell
anybody about the "act." [Abat] then made a push and pull movement which caused AAA to feel
pain. After which, [Abat] ejaculated.

AAA was not able to go home that fateful night. [Abat] guarded her as she cried the whole night.

The following morning, around [ten] o’clock in the morning, [Abat] brought AAA home. When AAA’s
parents asked her where she slept, [Abat] replied that AAA slept in the house of her grandfather in
Barangay San Narciso. Afterwards, [Abat] left.

AAA kept silent on the matter because she was afraid that [Abat] will make good his threat.
However, [Abat] frequented the school where AAA was studying. On November 12, 2001, [Abat]
tried to force her to go to his house. Thus, in the evening, AAA informed her parents about the rape
incident and they went to Victoria Police Station to lodge a complaint against [Abat].

On November 14, 2001, Dr. Virginia R. Valdez, Municipal Health Officer of Victoria Oriental Mindoro
examined AAA. Dr. Valdez issued a Medical Certificate which stated that AAA has healed hymenal
lacerations at 2 o’clock and 7 o’clock positions which could be possibly caused by the insertion of a
hard object like an erect penis, medical instrumentation, exercise, horseback riding, masturbation or
by falling down. According to Dr. Valdez, the hymenal lacerations could have been sustained by the
victim for several days or months prior to her examination.

Because of rape, AAA, on April 24, 2002, gave birth to a baby girl. 9

Version of the Defense

On the other hand, [Abat] denied that he had sexual intercourse with AAA on September 22, 2001.
He declared that on July 20, 2001, he had sexual intercourse with AAA; that sometime on May 25,
2001, AAA slept in his house after attending a dance party in their barangay and AAA told him that
they had sex the previous night; that he was surprised when he saw the blanket stained with blood;
that out of confusion, he threw it in the river. They secretly kept the matter but eventually AAA
started asking [for] money and other things from him.
He and AAA considered themselves as lovers. She frequently visited him during Saturdays and
Sundays. AAA’s parents filed a case against him when they discovered she was pregnant[.] 10

[And] because of a misunderstanding between AAA’s parents and his mother regarding [a piece of]
property.11

Ruling ofthe RTC

Having found Abat guilty beyond reasonable doubt of the crime of Rape, the RTC on September 8,
2009, promulgated its Decision, the dispositive portion of which reads:

ACCORDINGLY, this Court finds herein accused Joel Abat y Cometa guilty beyond reasonable
doubt as principal of the crime of Rape punishable under Article 266-A of the Revised Penal Code
and said accused is hereby sentenced to suffer the penalty of Reclusion Perpetua with all the
accessory penalties as provided for by law. The accused is hereby ordered to pay the private
complainant the amount of ₱75,000.00 as civil indemnity and the amount of ₱50,000.00 as moral
and exemplary damages. 12

According AAA’s testimony full faith and credit, the RTC was not convinced with Abat’s defense of
denial and ill motive. It said that it was highly unlikely that AAA, his own niece would falsely charge
him of such a serious crime and go public with her ordeal just because of a misunderstanding
between him and her mother over a property. Moreover, the RTC found it striking that nobody
testified in his behalf, including his own family.
13

Challenging his conviction, Abat appealed to the Court of Appeals,  pleading for the reversal of his
14

conviction on the ground of reasonable doubt.

Ruling ofthe Court of Appeals

The Court of Appeals, however, found no error committed by the RTC, and affirmed Abat’s
conviction, modifying only the award of damages, to wit:

WHEREFORE, premises considered, the assailed Decision is hereby AFFIRMED with

MODIFICATION. As thus modified, accused-appellant is ordered to pay Php75,000.00 as moral
damages and Php30,000.00 as exemplary damages. 15

The Court of Appeals declared that the prosecution was able to establish all the elements of rape,
thus resulting in Abat’s conviction. It agreed with the RTC that AAA’s credible testimony was enough
to prove Abat’s guilt beyond reasonable doubt. 16

Issue

Aggrieved, Abat elevated  his case to this Court, with the same assignment of error he presented
17

before the Court of Appeals,  viz:

18

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE

THE PROSECUTION’S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 19

Abat is alleging that he and AAA had a romantic relationship, which eventually turned sour when
AAA started asking for money from him all the time. In support of this claim, he cites the birth date of
the baby, who was supposedly the product of his crime. Abat says that if the baby was born in April
2002, then his version of the story, that they had consensual sex in July 2001, is more credible than
her story of rape in September 2001; otherwise, the baby would have been premature. 20

Ruling ofthis Court

We find no reason to reverse Abat’s conviction.

In essence, Abat is questioning the lower courts’ reliance on AAA’s credibility, which led to his
conviction.

Credibility of AAA

When this Court is faced with the issue of credibility of witnesses, it follows a set of guidelines as
established in jurisprudence, viz:

First, the Court gives the highest respect to the RTC’s evaluation of the testimony of the witnesses,
considering its unique position in directly observing the demeanor of a witness on the stand. From its
vantage point, the trial court is in the best position to determine the truthfulness of witnesses.

Second, absent any substantial reason which would justify the reversal of the RTC’s assessments
and conclusions, the reviewing court is generally bound by the lower court’s findings, particularly
when no significant facts and circumstances, affecting the outcome of the case, are shown to have
been overlooked or disregarded.

And third, the rule is even more stringently applied if the CA concurred with the RTC. 21

This Court has time and again explained why the determination of a witness’ credibility appropriately
pertains to the trial court, to wit:

It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter
best undertaken by the trial court because of its unique opportunity to observe the witnesses
firsthand and to note their demeanor, conduct, and attitude under grilling examination. These are
important in determining the truthfulness of witnesses and in unearthing the truth, especially in the
face of conflicting testimonies. For, indeed, the emphasis, gesture, and inflection of the voice are
potent aids in ascertaining the witness’ credibility, and the trial court has the opportunity and can
take advantage of these aids. These cannot be incorporated in the record so that all that the
appellate court can see are the cold words of the witness contained in transcript of testimonies with
the risk that some of what the witness actually said may have been lost in the process of
transcribing. As correctly stated by an American court, "[t]here is an inherent impossibility of
determining with any degree of accuracy what credit is justly due to a witness from merely reading
the words spoken by him, even if there were no doubt as to the identity of the words. However artful
a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination,
something in his manner or bearing on the stand that betrays him, and thereby destroys the force of
his testimony. Many of the real tests of truth by which the artful witness is exposed in the very nature
of things cannot be transcribed upon the record, and hence they can never be considered by the
appellate court."22

In the case at bar, both the RTC and the Court of Appeals found AAA’s testimony to be
straightforward and credible.  This Court, thus, finds no reason to disturb the lower courts’
23

assessment of AAA’s testimony.

 Rape and Pregnancy

Abat argues that if it were true that he raped AAA in September 2001, then the baby girl AAA gave
birth to in April 2002, would have been born prematurely. Since the baby appeared to be healthy and
did not need any medical attention when she was born, she could not have possibly been the result
of the alleged rape in September 2001.

There is no merit in Abat’s contention. Reiterating the pronouncements in People v. Adora,  this
24

Court, in People v. Sta. Ana,  said:

25

"[A]uthorities in forensic medicine agree that the determination of the exact date of fertilization is
problematic. The exact date thereof is unknown; thus, the difficulty in determining the actual normal
duration of pregnancy." Citing a Filipino authority, the Court further elucidated: "The average
duration of pregnancy is 270 to 280 days from the onset of the last menstruation. There is, however,
no means of determining it with certainty. Evidence derived from pregnancy following a single coitus
is trustworthy, but inasmuch as some authorities consider more than two weeks as the life span of
the spermatozoa in the vaginal canal, it is hard to ascertain the exact date of fertilization. There is no
synchrony between coitus and fertilization." (Citations omitted).

In People v. Malapo,  this Court was faced with a similar issue when the accused therein, Malapo,
26

questioned his conviction for rape based on the fact that the baby boy, who was supposedly the fruit
of the rape he allegedly perpetrated on September 15, 1991, was only eight months and three days
old when he was born on May 18, 1992, contrary to the Medical Certificate submitted in evidence,
which states that the baby was full term when it was delivered.

This Court upheld Malapo’s conviction and explained its position as follows:

A textbook on pediatrics states that "Infants delivered before the thirty-seventh week of gestation
with a birth weight of less than 2,500 grams (American) or 2,275 grams (Filipino) are considered
premature." An infant can therefore be considered a full-term baby if it weighs more than 2,275
grams even if it is born before the thirty-seventh week which is less than 9.3 months. Since
according to the medical certificate (Exh. 1) Amalia’s baby weighed 2.4 kilograms or 2,400 grams, it
was a full-term baby even if it was born before the normal gestation period.

Article 166 of the Family Code provides:

Legitimacy of a child may be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife
within the first 120 days of the 300 days which immediately preceded the birth of the child
because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that
sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;
 (2) That it is proved that for biological or other scientific reasons, the child could not have
been that of the husband, except in the instance provided in the second paragraph of Article
164; . .

In the case at bar, it can be inferred that conception occurred at or about the time that accused-
appellant is alleged to have committed the crime, i.e., within 120 days from the commission of the
offense in September 1991. Pursuant to Art. 166 of the Family Code, accused-appellant can
overcome the presumption that Amalia’s child was begotten as a result of her having been raped in
September 1991 only if he can show either that it was physically impossible for him to have sexual
intercourse because of impotence or serious illness which absolutely prevents him from having
sexual intercourse or that Amalia had sexual intercourse with another man. However, accused-
appellant has not shown either of these.

xxxx

In any event, the impregnation of a woman is not an element of rape. Proof that the child was
fathered by another man does not show that accused-appellant is not guilty, considering the positive
testimony of Amalia that accused-appellant had abused her. As held in People v. Alib:

Under Article 335 of the Revised Penal Code, rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

(1) By using force or intimidation;

(2) When the woman is deprived of reason or otherwise unconscious; and

(3) When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.

It is therefore quite clear that the pregnancy of the victim is not required. For the conviction of an
accused, it is sufficient that the prosecution establish beyond reasonable doubt that he had carnal
knowledge of the offended party and that he had committed such act under any of the circumstances
enumerated above. Carnal knowledge is defined as the act of a man having sexual bodily
connections with a woman[.] (Citations omitted, emphases supplied).

Having stressed that pregnancy is not an element of the crime of rape, AAA’s pregnancy therefore is
totally immaterial to the resolution of this case.
27

Defenses of Denial and Ill Motive

Abat’s attempt to escape liability by denying the charge against him and coupling it with the
imputation of ill motive against AAA’s parents must be ignored. "Motives such as resentment, hatred
or revenge have never swayed this Court from giving full credence to the testimony of a minor rape
victim."  More so in this case, where the attribution of the improper motive is against AAA’s parents
28

and not her personally. We agree with the RTC when it said:

[T]he allegations of the accused that the private complainant might have filed the instant case
against him only because of a misunderstanding that ensued between the parents of the private
complainant and his mother regarding their property is too flimsy and insignificant for [AAA] to falsely
charge him of so serious a crime and to publicly disclose that she had been raped and then undergo
the concomitant humiliation, anxiety and exposure to a public trial. It is highly inconceivable that a
15[-]year[-]old girl like [AAA] and who is the niece of the accused would falsely charge him with a
serious crime of Rape if what she testified in Court were not the plain truth. Without vacillation, the
private complainant submitted herself for medical and genital examination and was confirmed by the
doctor who examined her that the private complainant sustained healed hymenal lacerations at 2
and 7 o’clock positions which may be caused by the insertion of a hard object like an erect penis. 1âwphi1

It is striking to note that nobody corroborated the testimonies of the accused denying the indictment
against him which this Court concluded that even his family and loved ones had abandoned him
during the times of his needs because they probably believed that the accusation of the private
complainant against him is true. 29

Furthermore, this Court has never favorably looked upon the defense of denial, which constitutes
self-serving negative evidence that cannot be accorded greater evidentiary weight than the positive
declaration of a credible witness.  To elucidate on the point, this Court, in People v. Espinosa,  held
30 31

that:

It is well-settled that denial, if unsubstantiated by clear and convincing evidence, is a self-serving

assertion that deserves no weight in law. Denial cannot prevail over the positive, candid and
categorical testimony of the complainant, and as between the positive declaration of the complainant
and the negative statement of the appellant, the former deserves more credence. (Citations omitted.)

Penalty and Damages

Since Abat admittedly was AAA’s uncle, being the half-brother of her father, Article 266-B of the
Revised Penal Code proves to be of relevance, to wit:

ART. 266-B. Penalties. - Rape under paragraph 1 of the next preceding article shall be punished by
reclusion perpetua.

xxxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim.

As both the minority of AAA and her relationship to Abat were sufficiently alleged in the Information
and proved by the prosecution, Abat should be convicted of qualified rape under Article 266-B of the
Revised Penal Code. However, in view of the provisions of Republic Act No. 9346, which prohibits
the imposition of the death penalty, the penalty of reclusion perpetua  without eligibility for parole,  is
32 33

the proper penalty to be imposed.

This Court affirms the awards of ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages, and
₱30,000.00 as exemplary damages, as increased by the Court of Appeals.  Pursuant to prevailing
34

jurisprudence,  the indemnity and damages awarded are further subject to interest at the rate of six
35

percent (6%) per annum from the date of finality of this judgment until fully paid.

WHEREFORE, premises considered, the decision of the Court of Appeals in CA-G.R. CR.-H.C. No.
04340, is hereby AFFIRMED with MODIFICATION. Accused-appellant JOEL ABAT y COMETA is
found GUILTY beyond reasonable doubt of the crime of Qualified Rape, and sentenced to reclusion
perpetua, in lieu of death, without eligibility for parole. He is ordered to pay the victim AAA, Seventy-
Five Thousand Pesos (₱75,000.00) as civil indemnity, Seventy-Five Thousand Pesos (₱75,000.00)
as moral damages, and Thirty Thousand Pesos (₱30,000.00) as exemplary damages, ALL with
interest at the rate of 6% per annum from the date of finality of this judgment. No costs.

SO ORDERED.

THIRD DIVISION

G.R. No. 214054, August 05, 2015

NG MENG TAM, Petitioner, v. CHINA BANKING CORPORATION, Respondent.

DECISION

VILLARAMA, JR., J.:

Before this Court is a direct recourse from the Regional Trial Court (RTC) via
petition1 for review on the question of whether Section 52 of the Judicial Affidavit Rule
(JAR) applies to hostile or adverse witnesses.  The petition seeks to annul and set aside
the May 28, 20143 and August 27, 20144 Orders of the RTC, Branch 139, Makati City in
Civil Case No. 08-1028.

This case stemmed from a collection suit filed by China Banking Corporation (China
Bank) against Ever Electrical Manufacturing Company Inc. (Ever), the heirs of Go Tong,
Vicente Go, George Go and petitioner Ng Meng Tam sometime in December 2008. 
China Bank alleged that it granted Ever a loan amounting to P5,532,331.63.  The loan
was allegedly backed by two surety agreements executed by Vicente, George and
petitioner in its favor, each for P5,000,000.00, and dated December 9, 1993 and May 3,
1995, respectively.  When Ever defaulted in its payment, China Bank sent demand
letters collectively addressed to George, Vicente and petitioner.  The demands were
unanswered.  China Bank filed the complaint for collection docketed as Civil Case No.
08-1028, which was raffled off to RTC Branch 62, Makati City.

In his Answer, petitioner alleged that the surety agreements were null and void since
these were executed before the loan was granted in 2004. Petitioner posited that the
surety agreements were contracts of adhesion to be construed against the entity which
drafted the same.  Petitioner also alleged that he did not receive any demand letter.

In the course of the proceedings, petitioner moved that his affirmative defenses be
heard by the RTC on the ground that the suit is barred by the statute of limitations and
laches.5 The motion was denied by the court.6 On appeal, the Court of Appeals (CA) in
its December 22, 2010 Decision7 ruled that a preliminary hearing was proper pursuant
to Section 6,8 Rule 16 of the Rules of Court due to the grounds cited by petitioner. 
There being no appeal, the decision became final and executory on August 28, 2011.9 redarclaw

On March 15, 2011, petitioner served interrogatories to parties10 pursuant to Sections

111 and 6,12 Rule 25 of the Rules of Court to China Bank and required Mr. George C.
Yap, Account Officer of the Account Management Group, to answer.

On June 22, 2011, George Yap executed his answers to interrogatories to parties.13 redarclaw

In the meantime, having failed mediation and judicial dispute resolution, Civil Case No.
08-1028 was re-raffled off to RTC Branch 139, Makati City.

Petitioner again moved for the hearing of his affirmative defenses.  Because he found
Yap’s answers to the interrogatories to parties evasive and not responsive, petitioner
applied for the issuance of a subpoena  duces tecum andad testificandum against
George Yap pursuant to Section 6,14 Rule 25 of the Revised Rules of Court.

On April 29, 2014, when the case was called for the presentation of George Yap as a
witness, China Bank objected citing Section 5 of the JAR.  China Bank said that Yap
cannot be compelled to testify in court because petitioner did not obtain and present
George Yap’s judicial affidavit.  The RTC required the parties to submit their motions on
the issue of whether the preparation of a judicial affidavit by George Yap as an adverse
or hostile witness is an exception to the judicial affidavit rule.15
redarclaw

Petitioner contended that Section 5 does not apply to Yap because it specifically
excludes adverse party witnesses and hostile witnesses from its application.  Petitioner
insists that Yap needed to be called to the stand so that he may be qualified as a hostile
witness pursuant to the Rules of Court.

China Bank, on the other hand, stated that petitioner’s characterization of Yap’s
answers to the interrogatories to parties as ambiguous and evasive is a declaration of
what type of witness Yap is.  It theorizes that the interrogatories to parties answered by
Yap serve as the judicial affidavit and there is no need for Yap to be qualified as a
hostile witness.

In its May 28, 2014 Order, the RTC denied for lack of merit petitioner’s motion to
examine Yap without executing a judicial affidavit.  The RTC in interpreting Section 5 of
the JAR stated: LawlibraryofCRAlaw

x x x  The aforementioned provision, which allows the requesting party to avail himself
of the provisions of Rule 21 of the Rules of Court finds applicability to: (a) a
government employee or official, or the requested witness, who is neither the witness
of the adverse party nor a hostile witness and (b) who unjustifiably declines to execute
a judicial affidavit or refuses without just cause to make the relevant books,
documents, or other things under his control available for copying, authentication, and
eventual production in court.

In the case at bar, witness George Yap is being utilized as an adverse witness for the
[petitioner].  Moreover, there was no showing that he unjustifiably declines to execute
a judicial affidavit.  In fact, it was [China Bank]’s counsel who insisted that said witness’
judicial affidavit be taken. Thus, Section 5 of the [JAR] which [petitioner] invoked to
exempt him from the Rule finds no application.  Unless there is contrary ruling on the
matter by the Supreme Court, this court has no choice but to implement the rule as
written.
On this note, this Court also finds no merit on the contention of [China Bank] that the
answer to the written interrogatories by witness George Yap already constitutes his
judicial affidavit. Inasmuch as the Court strictly implemented the [JAR] on the part of
[petitioner], so shall it rule in the same manner on the part of [China Bank].  As
correctly pointed out by [petitioner], the said answer to interrogatories does not comply
with Section 3 of the [JAR] which provides for the contents of the judicial affidavit.16

In essence, the RTC ruled that Section 5 did not apply to Yap since he was an adverse
witness and he did not unjustifiably decline to execute a judicial affidavit.  It stated:
LawlibraryofCRAlaw

In view of the foregoing, the motion of the [petitioner] that witness George Yap be
examined without executing a Judicial Affidavit is hereby DENIED FOR LACK OF
MERIT.17

Petitioner moved for reconsideration but it was denied by the RTC in its August 27,
2014 Order.18  The RTC reiterated its position and stated: LawlibraryofCRAlaw

It must be pointed out that the [petitioner] [was] the [one] who invoked the provisions
of Section 5 of the [JAR] to compel the attendance of witness George Yap and as such,
it is their duty to show the applicability of the said provisions to the case at bar.  As
stated in the challenged Order, Section 5 of the [JAR] finds applicability to: (a) a
government employee or official, or the requested witness, who is neither the witness
of the adverse party nor a hostile witness and (b) who unjustifiably declines to execute
a judicial affidavit or refuses without just cause to make the relevant books,
documents, or other things under his control available for copying, authentication, and
eventual production in court.  In the case at bar, [petitioner] [does] not deny that
witness George Yap is to be utilized as [his] adverse witness.  On this score alone, it is
clear that the provisions invoked do not apply.19

The RTC stressed that Section 5 of the JAR required the requested witness’ refusal to
be unjustifiable. It stated:
LawlibraryofCRAlaw

x x x the [JAR] requires that the refusal must be unjustifiable and without just cause. 
It must be pointed out that [China Bank]’s previous motions to quash the subpoena
was grounded on the claim that having already submitted to this court his sworn
written interrogatories, his being compelled to testify would be unreasonable,
oppressive and pure harassment. Thus, witness’ refusal to testify cannot be considered
unjustifiable since he raised valid grounds.20

Hence, this petition.

Petitioner contends that the RTC committed a grave error when it interpreted Section 5
to include adverse party and hostile witnesses.  Based on the wording of Section 5,
adverse party and hostile witnesses are clearly excluded.

China Bank asserts that Yap neither refused unjustifiably nor without just cause refused
to a judicial affidavit.  It cited the RTC’s August 27, 2014 Order where the court said
that Yap had answered the interrogatories and to compel him to testify in open court
would be “unreasonable, oppressive and pure harassment.”  Moreover, it stated that
based on the language used by Section 2 of the JAR the filing of judicial affidavits is
mandatory.

The petition is anchored on the following arguments: LawlibraryofCRAlaw

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED SEC. 5

OF THE [JAR] CONTRARY TO ITS WORDINGS.

II

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT INTERPRETED SEC. 5

[OF THE JAR] CONTRARY TO ITS PRACTICAL INTENTION AND COMMON SENSE.

III

RTC BR. 139-MAKATI COMMITTED AN ERROR OF LAW WHEN IT EFFECTIVELY

DISREGARDED THE RELEVANT RULES ON MODE OF DISCOVERY WHICH GOVERN THE
PRESENTATION OF ADVERSE WITNESSES.

IV

ON A POLICY LEVEL AND IN THE EVENT RTC BR. 139-MAKATI’S INTERPRETATION AND
APPLICATION OF SEC. 5 OF THE [JAR] IS CORRECT (I.E., THAT OPPOSING PARTY WHO
INTENDS TO PRESENT ADVERSE OR HOSTILE WITNESS MUST GET AND SUBMIT THAT
WITNESS’ JUDICIAL AFFIDAVIT NO MATTER WHAT) IT IS HUMBLY SUBMITTED, WITH
THE UTMOST INDULGENCE OF THE HONORABLE SUPREME COURT, THAT THE SAME
RULE BE IMPROVED OR AMENDED BY PROVIDING SANCTIONS IN THE EVENT THE
ADVERSE OR HOSTILE WITNESS REFUSES TO ANSWER OR EXECUTE JUDICIAL
AFFIDAVIT AS REQUIRED BY THE OPPOSING PARTY.21

We grant the petition.

THE JUDICIAL AFFIDAVIT RULE

APPLIES TO PENDING CASES

On September 4, 2012, the JAR was promulgated to address case congestion and
delays in courts.  To this end, it seeks to reduce the time needed to take witnesses’
testimonies.22  The JAR took effect on January 1, 2013 and would also apply to pending
cases pursuant to Section 12 to wit: LawlibraryofCRAlaw

Sec. 12. Effectivity. – This rule shall take effect on January 1, 2013 following its
publication in two newspapers of general circulation not later than September 15,
2012.  It shall also apply to existing cases.  (Emphasis supplied)
The Court En Banc gave public prosecutors in first and second level courts one year of
modified compliance.23  The JAR thus took full effect on January 1, 2014.

Here, parties were presenting their evidence for the RTC’s consideration when the JAR
took effect.  Therefore, pursuant to Section 12 the JAR applies to the present collection
suit.

SECTION 5 OF THE JAR DOES NOT

APPLY TO ADVERSE PARTY WITNESSES

The JAR primarily affects the manner by which evidence is presented in court.  Section
2(a) of the JAR provides that judicial affidavits are mandatorily filed by parties to a case
except in small claims cases.  These judicial affidavits take the place of direct testimony
in court.  It provides: LawlibraryofCRAlaw

Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. –  (a)
The parties shall file with the court and serve on the adverse party, personally or by
licensed courier service, not later than five days before pre-trial or preliminary
conference or the scheduled hearing with respect to motions and incidents, the
following:LawlibraryofCRAlaw

(1) The judicial affidavits of their witnesses, which shall take the place of such
witnesses’ direct testimonies; and

(2) The parties’ documentary or object evidence, if any, which shall be attached to the
judicial affidavits and marked as Exhibits A, B, C, and so on in the case of the
complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case of the
respondent or the defendant.

xxxx

Section 324  of the JAR enumerates the content of a judicial affidavit.

Under Section 10,25 parties are to be penalized if they do not conform to the provisions
of the JAR. Parties are however allowed to resort to the application of a subpoena
pursuant to Rule 21 of the Rules of Court in Section 5 of the JAR in certain situations. 
Section 5 provides: LawlibraryofCRAlaw

Sec. 5. Subpoena. – If the government employee or official, or the requested witness,

who is neither the witness of the adverse party nor a hostile witness, unjustifiably
declines to execute a judicial affidavit or refuses without just cause to make the
relevant books, documents, or other things under his control available for copying,
authentication, and eventual production in court, the requesting party may avail himself
of the issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the
Rules of Court. The rules governing the issuance of a subpoena to the witness in this
case shall be the same as when taking his deposition except that the taking of a judicial
affidavit shal1 be understood to be ex parte.
While we agree with the RTC that Section 5 has no application to Yap as he was
presented as a hostile witness we cannot agree that there is need for a finding that
witness unjustifiably refused to execute a judicial affidavit.

Section 5 of the JAR contemplates a situation where there is a (a) government

employee or official or (b) requested witness who is not the (1) adverse party’s witness
nor (2) a hostile witness.  If this person either (a) unjustifiably declines to execute a
judicial affidavit or (b) refuses without just cause to make the relevant documents
available to the other party and its presentation to court, Section 5 allows the
requesting party to avail of issuance of subpoena ad testificandum or duces
tecum under Rule 21 of the Rules of Court.  Thus, adverse party witnesses and hostile
witnesses being excluded they are not covered by Section 5.  Expressio unius est
exclusion alterius: the express mention of one person, thing, or consequence implies
the exclusion of all others.26 redarclaw

Here, Yap is a requested witness who is the adverse party’s witness.  Regardless of
whether he unjustifiably declines to execute a judicial affidavit or refuses without just
cause to present the documents, Section 5 cannot be made to apply to him for the
reason that he is included in a group of individuals expressly exempt from the
provision’s application.

The situation created before us begs the question: if the requested witness is the
adverse party’s witness or a hostile witness, what procedure should be followed?

The JAR being silent on this point, we turn to the provisions governing the rules on
evidence covering hostile witnesses specially Section 12, Rule 132 of the Rules of Court
which provides: LawlibraryofCRAlaw

SEC. 12.  Party may not impeach his own witness.  – Except with respect to witnesses
referred to in paragraphs (d) and (e) of Section 10, the party producing a witness is not
allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court

upon adequate showing of his adverse interest, unjustified reluctance to testify, or his
having misled the party into calling him to the witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party,
may be impeached by the party presenting him in all respects as if he had been called
by the adverse party, except by evidence of his bad character. He may also be
impeached and cross-examined by the adverse party, but such cross-examination must
only be on the subject matter of his examination-in-chief.

Before a party may be qualified under Section 12, Rule 132 of the Rules of Court, the
party presenting the adverse party witness must comply with Section 6, Rule 25 of the
Rules of Court which provides: LawlibraryofCRAlaw
SEC. 6.  Effect of failure to serve written interrogatories.  – Unless thereafter allowed by
the court for good cause shown and to prevent a failure of justice, a party not served
with written interrogatories may not be compelled by the adverse party to give
testimony in open court, or to give a deposition pending appeal.

In Afulugencia v. Metropolitan Bank & Trust Co.,27 this Court stated that “in civil cases,
the procedure of calling the adverse party to the witness stand is not allowed, unless
written interrogatories are first served upon the latter.”28  There petitioners Spouses
Afulugencia sought the issuance of a subpoena duces tecum and  ad testificandum to
compel the officers of the bank to testify and bring documents pertaining to the
extrajudicial foreclosure and sale of a certain parcel of land.  Metrobank moved to
quash the issuance of the subpoenas on the ground of non-compliance with Section 6,
Rule 25 of the Rules of Court.  In quashing the issuance of the subpoena, the Court
reminded litigants that the depositions are a mechanism by which fishing expeditions
and delays may be avoided. Further written interrogatories aid the court in limiting
harassment and to focus on what is essential to a case. The Court stated: LawlibraryofCRAlaw

One of the purposes of the above rule is to prevent fishing expeditions and needless
delays; it is there to maintain order and facilitate the conduct of trial.  It will be
presumed that a party who does not serve written interrogatories on the adverse party
beforehand will most likely be unable to elicit facts useful to its case if it later opts to
call the adverse party to the witness stand as its witness. Instead, the process could be
treated as a fishing expedition or an attempt at delaying the proceedings; it produces
no significant result that a prior written interrogatories might bring.

Besides, since the calling party is deemed bound by the adverse party’s testimony,
compelling the adverse party to take the witness stand may result in the calling party
damaging its own case. Otherwise stated, if a party cannot elicit facts or information
useful to its case through the facility of written interrogatories or other mode of
discovery, then the calling of the adverse party to the witness stand could only serve to
weaken its own case as a result of the calling party’s being bound by the adverse
party’s testimony, which may only be worthless and instead detrimental to the calling
party’s cause.

Another reason for the rule is that by requiring prior written interrogatories, the court
may limit the inquiry to what is relevant, and thus prevent the calling party from
straying or harassing the adverse party when it takes the latter to the stand.

Thus, the rule not only protects the adverse party from unwarranted surprises or
harassment; it likewise prevents the calling party from conducting a fishing expedition
or bungling its own case. Using its own judgment and discretion, the court can hold its
own in resolving a dispute, and need not bear witness to the parties perpetrating unfair
court practices such as fishing for evidence, badgering, or altogether ruining their own
cases. Ultimately, such unnecessary processes can only constitute a waste of the
court’s precious time, if not pointless entertainment.29(Citation omitted)

In this case, parties, with the approval of the Court, furnished and answered
interrogatories to parties pursuant to Rule 25 of the Rules of Court.  They therefore
complied with Section 6 of Rule 25 of the Rules of Court. Before the present
controversy arose, the RTC had already issued subpoenas for Yap to testify and produce
documents.  He was called to the witness stand when China Bank interposed its
objection for non-compliance with Section 5 of the JAR.  Having established that Yap, as
an adverse party witness, is not within Section 5 of the JAR’s scope, the rules in
presentation of adverse party witnesses as provided for under the Rules of Court shall
apply.  In keeping with this Court’s decision in Afulugencia, there is no reason for the
RTC not to proceed with the presentation of Yap as a witness.

In sum, Section 5 of the JAR expressly excludes from its application adverse party and
hostile witnesses.  For the presentation of these types of witnesses, the provisions on
the Rules of Court under the Revised Rules of Evidence and all other correlative rules
including the modes of deposition and discovery rules shall apply.

WHEREFORE, the petition is GRANTED.  The May 28, 2014 and August 27, 2014
Orders of the Regional Trial Court, Branch 139, Makati City are
hereby ANNULLED and SET ASIDE.

No pronouncement as to costs.

SO ORDERED. cralawlawlibrary

SECOND DIVISION

G.R. No. 190632, February 26, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff–Appellee, v. MANOLITO LUCENA Y

VELASQUEZ, ALIAS “MACHETE,” Accused–Appellant.

DECISION

PEREZ, J.:

The subject of this appeal is the Decision1 dated 24 August 2009 of the Court of Appeals
in CA–G.R. CR–H.C. No. 03371 affirming the Decision2 dated 30 April 2008 of the
Regional Trial Court (RTC) of Parañaque City, Branch 260, in Criminal Cases Nos. 03–
0763 to 03–0765, finding herein appellant Manolito Lucena y Velasquez alias “Machete”
guilty beyond reasonable doubt of three counts of rape, thereby sentencing him to
suffer the penalty of reclusion perpetua for each count and ordering him to pay
AAA3 the amount of P50,000.00 as moral damages and P50,000.00 as civil indemnity
also for each count.

Three (3) similarly worded Informations,4 all dated 24 June 2003 allege: 

That on or about the 28th day of April 2003, in the City of Parañaque, Philippines, and
within the jurisdiction of this Honorable Court, the above–named [appellant],
a Barangay Tanod Volunteer, who took advantage of his position to facilitate the
commission of the crime, by means of force, threat or intimidation and with the
use of a gun did then and there willfully, unlawfully and feloniously have carnal
knowledge of the complainant AAA, a minor, 17 years of age, against her will
and consent. (Emphasis and italics supplied). 

The appellant, assisted by counsel de oficio, pleaded NOT GUILTY to all the charges
against him.5 Thereafter, the cases were jointly tried. 

The prosecution presented AAA, the victim herself; and Dr. Merle Tan (Dr. Tan) of the
Child Protection Unit, University of the Philippines – Philippine General Hospital (UP–
PGH), who examined the victim. 

The testimonies of the above–named prosecution witnesses established that on 28 April

2003, at around 11:30 p.m., while AAA, who was then 17 years old, having been born
on 10 July 1986, was walking and chatting with her friends along one of the streets of
San Dionisio, Parañaque City, two (2) barangay tanods, one of whom is the appellant,
approached and informed them that they were being arrested for violating a city
ordinance imposing curfew against minors. AAA’s companions, however, managed to
escape, thus, she alone was apprehended.6 AAA was then ordered by the barangay
tanodsto board the tricycle. Afraid that she might spend the night in jail, AAA pleaded
with them and protested that she did not commit any offense as she was just chatting
with her friends. AAA’s plea, however, remained unheeded.7

AAA was then brought by the two (2) barangay tanods within the vicinity of the San
Dionisio Barangay Hall. Afterwards, one of them alighted from the tricycle and went
inside the barangay hall. The appellant, on the other hand, stayed in the tricycle to
guard AAA. After a while, the barangay tanod, the one who went inside
the barangay hall, returned. But, the appellant told the former that he will just be the
one to bring AAA back to her house.8

But, instead of escorting AAA back to her house, the appellant brought her
to Kabuboy Bridge in San Dionisio, Parañaque City. While on their way, the appellant
threatened AAA that he would kill her once she resists or jumps off the tricycle. Upon
arrival, the appellant ordered AAA to alight from the tricycle. AAA asked the appellant
what he would do with her but the former did not respond. The appellant then took out
the backseat of the tricycle and positioned it in a grassy area. He subsequently pointed
a gun at AAA and commanded her to lie down and to take off her clothes. The appellant
later put the gun down on the ground and inserted his penis into AAA’s vagina despite
the latter’s plea not to rape her. Satisfied, the appellant stopped. But, after a short
while, or after about five (5) minutes, the appellant, once again, inserted his penis into
AAA’s vagina. Thereafter, he stopped. On the third time, the appellant inserted again
his penis into AAA’s vagina. Fulfilling his bestial desire, the appellant stopped and finally
ordered AAA to dress up. The appellant even threatened AAA that he would kill her
should she tell anyone about what happened between them.9

The appellant, thereafter, directed AAA to board the tricycle. He then brought AAA in
front of a school in Parañaque City. But, before allowing AAA to get off, the appellant
repeated his threat to kill her should she tell anyone about the incident.10

The following day, AAA took the courage to seek the assistance of their barangay
kagawad, who simply advised her to just proceed to the barangayhall to lodge her
complaint against the appellant. AAA and her mother subsequently went to PGH, where
she was subjected to physical examination by Dr. Tan,11 which resulted in the following
findings: 

Tanner Stage 3, healing laceration[s] 3 and 5 o’clock area with petechiae, fresh
HYMEN laceration at 9 o’clock area with eccymosi at 8–10 o’clock area, Type of Hymen:
Crescentic
   
xxx  
   
Perianal Skin: fresh laceration[s] at 12 and 1 o’clock area. No
ANAL EXAMINATION
evident injury at the time of examination. 
   
xxx
 
IMPRESSIONS 
Disclosure of sexual abuse.
  Genital findings show clear Evidence Of Blunt Force Or Penetrating
Trauma.12 (Emphasis supplied).

AAA also went to the Coastal Road Police Headquarters, where she executed her sworn
statement accusing the appellant of rape. AAA was able to identify the appellant as her
assailant because the former was wearing a jacket emblazoned with “Barangay  Police,”
as well as a Barangay Identification Card, at the time of the incident.13

The appellant and Rodel Corpuz (Corpuz) took the witness stand for the defense. 

In the course of Corpuz’s direct examination, however, the parties made the following
stipulations: (1) that the [herein appellant] was the assigned barangay radio operator
on that date, [28 April 2003], and he stayed at the barangay hall from 12:00 midnight
to 5:00 a.m.; (2) that the witness was there up to 12:00 midnight, but at about past
12:00, he left and returned after two (2) hours, at 2:00 o’clock a.m.; and (3) that when
he woke up at 5:00 o’clock in the morning, the [appellant] was still there. With these
stipulations, Corpuz’s testimony was dispensed with.14

The appellant, for his part, could only muster the defenses of denial and alibi. He, thus,
offered a different version of the story. 

On 28 April 2003, the appellant claimed that he was on duty as a radio operator at
the barangay hall. His task as such was to receive complaints from the residents of
the barangay, as well as to receive calls from fellow barangayofficials who are in need
of assistance. On the same day, he received a call from his companion, who is also
a barangay tanod. He cannot, however, recall any unusual incident that transpired on
that day.15

The appellant admitted that he knew AAA as the one who lodged a complaint against
him but he denied that he knew her personally. He also vehemently denied the
following: (1) that he raped AAA; (2) that he was one of those barangay tanods who
apprehended AAA for violating the curfew ordinance of their barangay; and (3) that he
was the one driving the tricycle in going to the barangay hall. Instead, the appellant
claimed that after 12:00 midnight of 28 April 2003, he went home already. In fact, he
was shocked when he was arrested on 25 September 2003 as he did not commit any
crime.16

In its Decision dated 30 April 2008, the trial court, giving credence to the categorical,
straightforward and positive testimony of AAA, coupled with the medical findings of
sexual abuse, convicted the appellant of three (3) counts of rape as defined and
penalized under paragraph 1(a) of Article 266–A, in relation to Article 266–B, of the
Revised Penal Code of the Philippines, as amended. The trial court, thus, decreed: 

WHEREFORE, the Court finds the [herein appellant] MANOLITO

LUCENA y VELASQUEZ alias MACHETE, GUILTY beyond reasonable doubt of three
(3) counts of Rape (under Art. 266–a par. 1(a) in relation to Art. 266–B of the
RPC as amended by RA 8353) and is hereby sentenced to suffer the penalty
of reclusion perpetua for each count of Rape. In addition, the [appellant] is
ordered to pay [AAA] the amount of P50,000.00 as moral damages and
P50,000.00 as civil indemnity for each count.17 (Emphasis and italics theirs). 

The appellant appealed18 the trial court’s Decision to the Court of Appeals with the
following assignment of errors: 

I. 

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE [HEREIN APPELLANT] OF

RAPE DESPITE THE PROSECUTION’S FAILURE TO PROVE THE ELEMENT OF FORCE AND
INTIMIDATION.

II. 

GRANTING, ARGUENDO, THAT THE [APPELLANT] COMMITTED THE CRIME CHARGED,

THE TRIAL COURT GRAVELY ERRED IN CONVICTING HIM OF THREE (3) COUNTS OF
RAPE.19

After a thorough study of the records, the Court of Appeals rendered its now assailed
Decision dated 24 August 2009 sustaining appellant’s conviction for three (3) counts of
rape, as well as the damages awarded to AAA. In doing so, the Court of Appeals
explained that the facts revealed that the appellant succeeded thrice in inserting his
penis into AAA’s vagina. The said three (3) penetrations happened one after another at
an interval of five (5) minutes, wherein the appellant would take a rest after satiating
his lust and after regaining his strength would again rape AAA. Undoubtedly, the
appellant decided to commit those separate and distinct acts of sexual assault on AAA.
Thus, his conviction for three (3) counts of rape is irrefutable.20

Hence, this appeal.21

Both parties in their manifestations22 before this Court adopted their respective appeal
briefs23 filed with the Court of Appeals in lieu of Supplemental Briefs. 
In his Brief, the appellant contends that the prosecution failed to prove that force or
intimidation attended the commission of rape. Records revealed that AAA did not even
attempt to resist his alleged sexual advances over her person. Instead, AAA opted to
remain passive throughout her ordeal despite the fact that during the three (3)
episodes of their sexual intercourse he was unarmed and she, thus, had all the
opportunity to escape, which she never did. These reactions of AAA were contrary to
human experience, thus, cast serious doubts on the veracity of her testimony and on
her credibility as a witness. 

The appellant similarly argues that the result of AAA’s medical examination is quite
disturbing as it appears that her anal orifice was also penetrated by a hard object
though nothing was said to this effect in her testimony. 

The appellant likewise avers that he cannot be convicted of three counts of rape. The
intervening period of five (5) minutes between each penetration does not necessarily
prove that he decided to commit three separate acts of rape. He maintains that what is
of prime importance is that he was motivated by a single criminal intent. 

With the foregoing, the appellant believes that his guilt was not proven beyond
reasonable doubt; hence, his acquittal is inevitable. 

This Court holds otherwise. The conviction of the appellant, thus, stands but the
damages awarded in favor AAA must be modified. 

Primarily, in reviewing rape cases, this Court is guided with three settled 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, although innocent, to disprove;
(2) considering the intrinsic nature of the crime, only two persons being usually
involved, the testimony of the complainant should 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.24

Rape is a serious transgression with grave consequences both for the accused and the
complainant. Following the above principles, this Court is duty–bound to conduct a
thorough and exhaustive evaluation of a judgment of conviction for rape.25

After a careful scrutiny of the entire records, however, this Court finds no justifiable
reason to reverse the rulings of the lower courts. 

All the Informations in this case charged the appellant with rape under paragraph 1(a),
Article 266–A, in relation to paragraph 2, Article 266–B, of the Revised Penal Code, as
amended. These provisions specifically state: 

ART. 266–A. Rape; When and How Committed. – Rape is committed –

1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances: 

a) Through force, threat or intimidation; 

b) When the offended party is deprived of reason or otherwise unconscious; 

c) By means of fraudulent machination or grave abuse of authority; and d) When the

offended party is under twelve (12) years of age or is demented, even though none of
the circumstances mentioned above be present.

x x x x 

ART. 266–B. Penalties. – Rape under paragraph 1 of the next preceding article shall be
punished by reclusion perpetua.

Whenever the rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua to death. (Emphasis supplied). 

Certainly, carnal knowledge of a woman under any of the following instances

constitutes rape: (1) when force or intimidation is used; (2) when the woman is
deprived of reason or is otherwise unconscious; and (3) when she is under twelve (12)
years of age.26

The force and violence required in rape cases is relative and need not be overpowering
or irresistible when applied. For rape to exist, it is not necessary that the force or
intimidation be so great or be of such character as could not be resisted – it is only
necessary that the force or intimidation be sufficient to consummate the
purpose which the accused had in mind.27 Further, it should be viewed from the
perception and judgment of the victim at the time of the commission of the
crime. What is vital is that the force or intimidation be of such degree as to cow
the unprotected and vulnerable victim into submission. Force is sufficient if it
produces fear in the victim, such as when the latter is threatened with death. 28

In the case at bench, as can be gleaned from the transcript of stenographic notes and
as observed by the trial court, which the Court of Appeals sustained, AAA’s categorical,
straightforward and positive testimony revealed that the appellant was armed with a
gun and the same was pointed at her while she was ordered to lie down and to take off
her clothes, to which she acceded because of fear for her life and personal safety. The
appellant then put the gun down on the ground and successfully inserted his penis into
AAA’s vagina, not only once but thrice. This happened despite AAA’s plea not to rape
her. And, after satisfying his lust, the appellant threatened AAA that he would kill her
should she tell anyone about the incident. This same threat of killing AAA was first
made by the appellant while the former was still inside the tricycle on their way
to Kabuboy Bridge.29 It cannot be denied, therefore, that force and intimidation were
employed by the appellant upon AAA in order to achieve his depraved desires. 

While it is true that the appellant had already put the gun down on the ground the
moment he inserted his penis into AAA’s vagina and was actually unarmed on those
three (3) episodes of sexual intercourse, the same does not necessarily take away the
fear of being killed that had already been instilled in the mind of AAA. Emphasis must
be given to the fact that the gun was still within appellant’s reach, therefore, he could
still make good of his threat on AAA at anytime the latter would show any resistance to
his evil desires. AAA’s lack of physical resistance, therefore, is understandable and
would not in any way discredit her testimony. 
It must be borne in mind that when a rape victim becomes paralyzed with fear, she
cannot be expected to think and act coherently. Further, as has been consistently held
by this Court, physical resistance is not an essential element of rape and need
not be established when intimidation is exercised upon the victim, and, the latter
submits herself, against her will, to the rapist’s embrace because of fear for her life and
personal safety. The victim’s failure to shout or offer tenacious resistance did not make
voluntary her submission to the criminal acts of her aggressor. It bears stressing that
not every rape victim can be expected to act with reason or in conformity with the
usual expectations of everyone. The workings of a human mind placed under emotional
stress are unpredictable; people react differently. Some may shout, some may faint,
while others may be shocked into insensibility.30

In his attempt to ruin AAA’s credibility in order to exculpate himself from all the
charges, the appellant puts stress on the portion of the result of AAA’s medical
examination disclosing that even her anal orifice was also penetrated by a hard object,
which she never mentioned in her testimony. 

To the mind of this Court, such argument is flimsy and totally misplaced. It would not
even work to appellant’s advantage and would not in any way cast doubt on the
veracity of AAA’s testimony. As this Court has previously stated, a medical examination
and a medical certificate, albeit corroborative of the commission of rape, are not
indispensable to a successful prosecution for rape.31 Moreover, even though AAA made
no mention of any anal penetration, such omission would not change the fact that she
was, indeed, raped by the appellant. As succinctly found by both lower courts, AAA
categorically, straightforwardly, clearly and positively narrated her harrowing
experience in the hands of the appellant. She recounted in detail how the appellant
took advantage of her by bringing her to Kabuboy Bridge, where nobody was present;
commanding her to lie down and undress herself at a point of a gun; and successfully
inserting his penis into her vagina, not only once but thrice. AAA stated that after the
first penetration the appellant stopped. After about five minutes, however, the
appellant, once again, inserted his penis into her vagina. Thereafter, the appellant
stopped. For the third and last time, the appellant again inserted his penis into her
vagina. This narration was consistent with the rest of the medical findings showing
fresh hymenal lacerations on AAA’s vagina, which according to Dr. Tan is a clear
evidence of “blunt force or penetrating trauma” – a disclosure of sexual abuse. 

For his ultimate defense, the appellant puts forward denial and  alibi. Notably, these
defenses are totally inconsistent with his line of argument that the rape was committed
without force or intimidation thereby implying that the sexual intercourse between him
and AAA was consensual. 

Time and again, this Court has viewed denial and alibi as inherently weak defenses,
unless supported by clear and convincing evidence, the same cannot prevail over the
positive declarations of the victim who, in a simple and straightforward manner,
convincingly identified the appellant as the defiler of her chastity.32 Simply put, the
positive assertions of AAA that he raped her are entitled to greater weight. While denial
and alibi are legitimate defenses in rape cases, bare assertions to this effect cannot
overcome the categorical testimony of the victim,33 as in this case. 
Also, appellant’s alibi that on the night the rape incident happened, he was at
the barangay hall doing his job as radio operator and at 12:00 midnight he already
went home, failed to sufficiently establish that it was physically impossible for him to be
at the scene of the crime when it was committed. Moreover, the corroborating
testimony of defense witness Corpuz that the appellant left at about past 12:00
midnight, almost the same time the rape incident happened, and then returned after
two (2) hours, even bolster the possibility of the appellant’s presence at the scene of
the crime. 

This Court also notes that the appellant failed to show any ill–motive on the part of AAA
to testify falsely against him. This bolsters the veracity of AAA’s accusation since no
woman would concoct a tale that would tarnish her reputation, bring humiliation and
disgrace to herself and her family, and submit herself to the rigors, shame, and stigma
attendant to the prosecution of rape, unless she is motivated by her quest to seek
justice for the crime committed against her.34

In light of the foregoing, it is beyond any cavil of doubt that the appellant’s guilt for the
crime of rape has been proven beyond reasonable doubt. 

As to the number of rapes committed. The appellant, citing People v. Aaron (Aaron

Case),35 insists that he cannot be convicted of three (3) counts of rape despite the three
(3) penetrations because he was motivated by a single criminal intent. This Court finds
this contention fallacious. 

In the Aaron Case, the accused inserted his penis into the victim’s vagina; he then
withdrew it and ordered the latter to lie down on the floor and, for the second time, he
inserted again his penis into the victim’s vagina; the accused, thereafter, stood up and
commanded the victim to lie near the headboard of the makeshift bed and, for the third
time, he inserted again his penis into the victim’s vagina and continued making
pumping motions. From these sets of facts, this Court convicted the accused therein for
only one count of rape despite the three successful penetrations because there is no
indication in the records from which it can be inferred that the accused decided to
commit those separate and distinct acts of sexual assault other than his lustful
desire to change positions inside the room where the crime was committed.
This Court, thus, viewed that the three penetrations occurred during one continuing act
of rape in which the accused was obviously motivated by a single criminal intent. 

The circumstances in the present case, however, are far different from the Aaron Case.
Here, we quote with approval the observations of the Court of Appeals, which affirmed
that of the trial court, to wit: 

We agree with the trial court that the [herein appellant] should be convicted of three
(3) counts of rape. It appears from the facts that the [appellant] thrice succeeded in
inserting his penis into the private part of [AAA]. The three (3) penetrations occurred
one after the other at an interval of five (5) minutes wherein the [appellant] would
rest after satiating his lust upon his victim and, after he has regained his
strength, he would again rape [AAA]. Hence, it can be clearly inferred from the
foregoing that when the [appellant] decided to commit those separate and
distinct acts of sexual assault upon [AAA], he was not motivated by a single
impulse[,] but rather by several criminal intent. Hence, his conviction for three
(3) counts of rape is indubitable.36 (Emphasis supplied). 

This Court sustains the findings of both lower courts that, indeed, the three insertions
into AAA were in satiation of successive but distinct criminal carnality. Therefore, the
appellant’s conviction for three counts of rape is proper. 

As to penalty. The second paragraph of Art. 266–B of the Revised Penal Code, as

amended, provides that “[w]henever the rape is committed with the use of a deadly
weapon x x x the penalty shall be reclusion perpetua to death.” As it was properly
alleged and proved that the appellant used a gun in order to consummate his evil
desires, thus, both lower courts correctly imposed upon him the penalty of reclusion
perpetua for each count of rape. 

As to damages. Civil indemnity, which is mandatory in a finding of rape is distinct from

and should not be denominated as moral damages which are based on different jural
foundations and assessed by the court in the exercise of sound discretion.37 The award
of moral damages, on the other hand, is automatically granted in rape cases without
need of further proof other than the commission of the crime because it is assumed
that a rape victim has actually suffered moral injuries entitling her to such
award.38 Hence, this Court upholds the P50,000.00 civil indemnity and P50,000.00
moral damages, for each count of rape, that were awarded by both lower courts in
favor of AAA. 

In addition, this Court deems it proper to award exemplary damages in favor of AAA.
The award of exemplary damages is justified under Article 2230 of the Civil Code if
there is an aggravating circumstance, whether ordinary or qualifying.39 In this case,
since the qualifying circumstance of the use of a deadly weapon was present in the
commission of the crime, exemplary damages in the amount of P30,000.00, for each
count of rape, is awarded in favor of AAA. Moreover, in line with recent jurisprudence,
the interest at the rate of 6% per annum shall be imposed on all damages awarded
from the date of the finality of this judgment until fully paid.40

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA–G.R.

CR–H.C. No. 03371 dated 24 August 2009 finding herein appellant guilty beyond
reasonable doubt of three counts of rape is hereby AFFIRMED with
the MODIFICATIONS that: (1) the exemplary damages in the amount of P30,000.00,
for each count of rape, is awarded in favor of AAA; and (2) the appellant is ordered to
pay AAA the interest on all damages at the legal rate of 6% per annum from the date of
finality of this judgment. 

SO ORDERED.

G.R. No. 145993               June 17, 2003

PEOPLE OF THE PHILIPPINES, Appellee, 

vs.
RUFINO MALLARI y ILAG, Appellant.

DECISION
DAVIDE, JR., C.J.:

In its decision of 16 June 2000, in Criminal Case No. 9621-B, the Regional Trial Court, Branch 25, of
Biñan, Laguna, convicted appellant RUFINO MALLARI y ILAG of murder and sentenced him to
suffer the penalty of death for having fatally bumped Joseph Galang with an Isuzu Canter Elf truck.

On 12 December 1996, an information for Murder was filed against Rufino, the accusatory portion of
1 

which reads:

That on or about July 7, 1996, in the Municipality of Sta. Rosa, Province of Laguna, Philippines, and
within the jurisdiction of this Honorable Court, accused Rufino Mallari y Ilag, with intent to kill, with
evident premeditation, treachery and with the use of motor vehicle, did then and there willfully,
unlawfully, and feloniously hit and bump with his driven Brand New Isuzu Canter Elf with conduction
sticker number 33 LAB one Joseph Galang, thereby inflicting [on] him mortal wounds on the head
which directly cause[d] his death, to the damage and prejudice of his surviving heirs.

That the crime was committed by means of a motor vehicle as a qualifying circumstance.

CONTRARY TO LAW.

At his arraignment, Rufino pleaded not guilty to the crime charged. At the trial on the merits, the
prosecution presented as witnesses Liza Galang, Edgar Bawar, and Dr. Erwin Escal; while the
defense presented Rufino himself, Myrna Mallari, Dr. Divina Palarca, and Dr. Escal.

Liza Galang testified that on 7 July 1996 at around 4:00 p.m., her common-law husband Joseph
admonished Rufino and his brothers Ino and Felix Mallari not to drive fast while passing by Joseph’s
house. Rufino and his brothers, who were then hot-tempered, challenged Joseph to a fight. The
latter just ignored the challenge; and, instead he and his own brothers Radi and Manny asked
apology from Rufino. 2 

Later that afternoon, while Joseph and Liza were watching a basketball game at the barangay
basketball court, Rufino and his brothers, who were then carrying bladed weapons, arrived and
attempted to stab Joseph; but Joseph was able to run away. When they were not able to catch up
with him, Rufino boarded and drove the truck parked near the basketball court and continued
chasing Joseph until the truck ran over the latter, which caused his instantaneous death. 3 

Liza further testified that at the time of his death, Joseph was 37 years old. He was a foreman in a
construction firm with a daily income of ₱350 and also a carpenter and mason with a daily income of
₱250. She spent less than ₱20,000 for the coffin, tomb, funeral, and other expenses during the wake
of Joseph. 4 

Edgar Bawar, a friend of Joseph, testified that at 6:24 p.m. on 7 July 1996, while Joseph was
watching a basketball game, Rufino and his brothers Ino and Felix, who were carrying bladed
weapons, arrived and chased Joseph. Joseph ran away, and Rufino pursued him with the truck.
Upon catching up with him, Rufino bumped Joseph, as a result of which the latter died on the spot. 5 

Dr. Erwin Escal testified that the cause of death of Joseph, as stated in the Medico-Legal
Report, was "[c]rushing injury on the head secondary to vehicular accident." Joseph’s head was
6 

deformed with multiple skull fractures and lacerations and brain tissue evisceration. 7 
The defense had a different story. Rufino testified that on 7 July 1996 at around 6:30 p.m., while he
was driving a truck at a speed of eighty kilometers per hour, with his wife Myrna seated on the
passenger side, he saw Joseph on the road about four meters away from him. Rufino, who was then
on his way to the garage to park the truck, blew thrice the horn. But Joseph went to the middle of the
road and threw stones, which went through the windshield and hit Rufino on the chest. As a result
thereof, Rufino lost control of the truck, and ran over Joseph. Because of fear, Rufino did not alight
from the truck; instead, he proceeded to the municipal hall of Sta. Rosa, Laguna, where he
surrendered and was immediately detained. 8 

Myrna Mallari testified that prior to the incident in question, she saw Joseph at the basketball court.
He was apparently drunk and was carrying a "balisong." Much to her consternation, he gave her a
dagger look. Myrna reacted by simply crying and going inside her house. She corroborated Rufino’s
testimony that while Rufino was driving the truck, Joseph threw stones, which went through the
windshield and hit the chest of Rufino. As a result of which, Rufino had chest pains and vomited
9 

blood while in detention.

Dr. Divina Palarca testified that she examined Rufino on 29 October 1996 and found him to be
suffering from pulmonary tuberculosis, which possibly could have afflicted him six months prior to its
discovery. Dr. Escal confirmed the testimony of Dr. Palarca, as in fact, it was he who diagnosed the
10 

illness of Rufino. 11 

The trial court gave full credence to the testimonies of prosecution witnesses Liza Galang and Edgar
Bawar that Rufino deliberately bumped Joseph. Appreciating the qualifying circumstance of use of
motor vehicle, it convicted Rufino of murder and sentenced him to suffer the death penalty and to
pay the victim’s heirs ₱100,000 as compensatory damages; ₱75,000 as moral damages; ₱50,000 as
exemplary damages; and costs. 12 

The case is now before us on automatic review pursuant to Article 47 of the Revised Penal Code, as
amended.

In his Appellant’s Brief, Rufino imputes to the trial court the following errors:

… IN FINDING THAT THE INCIDENT WHICH KILLED JOSEPH GALANG WAS DONE BY
ACCUSED-APPELLANT WITH CRIMINAL INTENT AND MALICE.

II

… IN CONSIDERING THE USE OF A MOTOR VEHICLE AS A QUALIFYING CIRCUMSTANCE IN

THE IMPOSITION OF THE DEATH PENALTY.

III

… IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCE OF VOLUNTARY

SURRENDER. 13 

We note that in his prayer in the Appellant’s Brief, Rufino seeks his acquittal of the crime of murder,
or in the alternative, his conviction for homicide only. In his discussion of his first and second
assignments of error, however, Rufino does not seek his acquittal but merely the downgrading of his
crime from murder to homicide on the grounds that no evident premeditation was proved and that
the motor vehicle was merely incidental to the commission of the crime. In his third assignment of
error, Rufino argues that voluntary surrender should have been appreciated as a mitigating
circumstance in his favor, considering that after the bumping incident, he proceeded to the municipal
hall of Sta. Rosa, Laguna, where he was immediately detained.

In its Appellee’s Brief, the Office of the Solicitor General (OSG) seeks the affirmance of Rufino’s
conviction but argues that the penalty to be imposed on him should be reclusion perpetua only
because of the presence of the mitigating circumstance of voluntary surrender.

In view of the diametrically opposed versions of the prosecution and the defense, the resolution of
the present case hinges on the credibility of the witnesses who had come forward to testify. We have
long recognized that the assessment of the credibility of witnesses and their testimonies lies within
the province and competence of the trial court because it has the direct opportunity to observe the
witness’ attitude, demeanor, deportment, and manner of testifying, all of which aid in determining
14 

whether the witness is telling the truth or merely prevaricating. Thus, the trial court’s evaluation of
the credibility of witnesses is accorded great weight and respect and even finality by appellate
courts unless some fact or circumstance of weight and substance which could affect the result or
15 

disposition of the case was ignored, misapplied, misunderstood, or overlooked by the trial court or
when the finding of fact was reached arbitrarily or capriciously. We find no cogent reason to disturb
16 

the trial court’s assessment of the credibility of the witnesses and its factual findings as to what
actually happened, the same being amply supported by evidence.

Neither the prosecution nor the defense disputes two important facts: one, Joseph died instantly
after he was hit by the truck; and second, the truck was driven by Rufino. There being no question
on the identity of the person responsible for Joseph’s death, what is left to be resolved is whether
Rufino deliberately bumped Joseph with the truck he was driving.

The antecedent events show that, indeed, Rufino deliberately ran over Joseph. At around 4:00 p.m.
of 7 July 1996, when Rufino passed by Joseph’s house while driving the truck, he got angry when
Joseph admonished him not to drive at high speed in front of Joseph’s house. Rufino, already in a
fighting mood, challenged Joseph to a fight, but the latter just ignored it. To put an end to the
argument, Joseph and his brothers apologized to Rufino.

Apparently, Rufino was not appeased by the apology and continued to harbor ill-feelings against
Joseph. Rufino got the chance to vent his anger not long thereafter. At around 5:30 p.m., while
Joseph was watching a basketball game at the basketball court located beside Rufino’s house,
Rufino and his brothers Ino and Felix, carrying with them bladed weapons, attempted to stab
Joseph. But before they could do it, Joseph was able to run away. They chased Joseph, but were
unable to catch up with him. Instead of giving up on his evil design, Rufino went back to the
basketball court, boarded the truck parked nearby, and resumed his pursuit of Joseph. Upon seeing
Joseph on the road, Rufino hit him with the truck.

We note that the testimonies of Liza and Edgar were consistent with their respective sworn
statements, which they gave to the police investigator in the morning of 8 July 1996. Considering
17 

that less than twenty-four hours had elapsed from the time of the bumping incident, Liza and Edgar
could not have concocted a story to pin down Rufino for the death of Joseph. Thus, there is no
reason to doubt the veracity of the sworn statements and the testimonies of Liza and Edgar.

Moreover, the defense has not shown any reason why Edgar, who corroborated Liza’s testimony
about the incident, would perjure himself to pin down Rufino. Absent any evidence showing any
reason or motive for the prosecution witnesses to perjure, the logical conclusion is that no such
improper motive exists, and their testimonies are thus worthy of full faith and credit.
18 
In comparison, Rufino and Myrna gave inconsistent testimonies. Myrna wanted the court to believe
that her husband was in no way at fault by stating that Rufino was driving at a slow pace, while
19 

Rufino himself declared that he was driving at a speed of eighty kilometers per hour. Myrna’s
20 

attempt to cover up the misdeed of her husband is obvious; hence, the integrity of her declarations
becomes questionable.

Rufino himself made inconsistent statements. At first, in the course of the direct examination, Rufino
declared that prior to the bumping incident he saw Joseph pass by his house, walking in a zigzag
manner. This testimony was an attempt to give credence to his allegation that Joseph was drunk,
21 

which was why he threw stones at the truck for no reason at all. But when he was asked during his
cross-examination about his altercation with Joseph earlier that fateful day, Rufino made a complete
turnaround and declared that he saw Joseph for the first time at the place where he was run over. 22 

Moreover, the testimonies of Rufino and Myrna do not inspire belief for being improbable and not in
accord with human experience. It is axiomatic that for testimonial evidence to be credible, it should
come not only from the mouth of a credible witness, but should also be credible, reasonable, and in
accord with human experience. 23 

According to Rufino, he saw Joseph when the truck was four meters away from the latter and he
blew his horn three times. This is altogether unbelievable. At a speed of eighty kilometers per hour, a
four-meter distance could easily be covered by the truck in a split second, and there would be no
time for the driver to blow the horn before the impact. Much less could there be time for a person on
the road to pick up a stone and hurl the same to an oncoming truck. Thus, it is simply impossible that
Joseph was able to hurl a stone at the truck before he was run over.

Neither can we believe Rufino’s testimony that he first saw Joseph on the road when the truck was
just four meters away from him. According to Rufino, the road was clear because only Joseph and
the truck he was driving were on the road. He testified as follows:

Q Mr. Witness, when you saw for the first time Joseph Galang along the road, there was no other
vehicle from [the] opposite direction where you were heading?

A None, sir.

Q So that your driven vehicle and Joseph Galang were the only [ones] in that road?

A Yes, sir.

Q And the road could accommodate two (2) ten wheeler trucks?

A Yes, sir.

Q And you said likewise that when you first saw Joseph Galang, he was about four (4) meters away
from your driven vehicle?

A Yes, sir. 24 

From Rufino’s own testimony, it appears that his view was unobstructed. He could have seen
Joseph from afar and could therefore have avoided bumping the latter had he really wanted to.
Obviously, the stone-throwing incident was concocted by the defense as a last ditch effort to have
Rufino absolved from his criminal act. Unlike the prosecution witnesses who executed their sworn
statements on the morning after the subject incident, Rufino’s sworn statement was executed only
25 

on 15 August 1996, or more than one month after the incident. Thus, Rufino had enough time to
reflect and come up with a plot. Unfortunately for him, the story he concocted is so incredible that we
are not inclined to believe it.

To prove that Rufino’s driving ability was adversely affected by his illness, the defense presented a
medical certificate stating that Rufino was treated at the Sta. Rosa Community Hospital for "Minimal
26 

PTB, Bilateral with partial collapse of Right Upper Lobe" on 1 November 1996, or almost four months
after the bumping incident. That certificate is not competent evidence to prove that at the time,
Rufino was already suffering from pulmonary tuberculosis. But even granting arguendo that Rufino
was already suffering from said illness at the time of the incident, there is no evidence that it had
affected his driving ability to the extent that Rufino was no longer able to control the vehicle he was
driving.

In view of the foregoing, we affirm the trial court’s finding that Rufino deliberately bumped Joseph
with the truck he was driving.

Rufino’s culpability having been resolved, we now come to the penalty to be imposed. The trial court
imposed the death penalty on the ground that the qualifying circumstance of use of motor vehicle is
present. Rufino, however, argues that the use of a motor vehicle was only incidental, considering
that he resorted to it only to enable him to go after Joseph after he failed to catch up with the latter.
The fallacy of this argument is obvious.

The evidence shows that Rufino deliberately used his truck in pursuing Joseph. Upon catching up
with him, Rufino hit him with the truck, as a result of which Joseph died instantly. It is therefore clear
that the truck was the means used by Rufino to perpetrate the killing of Joseph.

The case of People v. Muñoz cited by Rufino finds no application to the present case. In the said
27 

case, the police patrol jeep was merely used by the accused therein in looking for the victim and in
carrying the body of the victim to the place where it was dumped. The accused therein shot the
victim, which caused the latter’s death. In the present case, the truck itself was used to kill the victim
by running over him. 1âwphi1

Under Article 248 of the Revised Penal Code, a person who kills another "by means of a motor
vehicle" is guilty of murder. Thus, the use of motor vehicle qualifies the killing to murder. The
28 

penalty for murder is reclusion perpetua to death. Since the penalty is composed of two indivisible
penalties, we shall apply Article 63(3) of the Revised Penal Code, which reads:

3. When the commission of the act is attended by some mitigating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied.

In the present case, the aggravating circumstances of evident premeditation and treachery, which
were alleged in the information, were not proved. What was proved was the mitigating circumstance
of voluntary surrender through the testimonies of Rufino and Myrna, which were not rebutted by the
prosecution.

We have held that for voluntary surrender to be appreciated as a mitigating circumstance, the
following requisites must concur: (1) the offender had not been actually arrested; (2) the offender
surrendered himself to a person in authority or to an agent of a person in authority; and (3) the
surrender was voluntary. A surrender is considered voluntary if it is spontaneous and shows the
29 
intention of the accused to submit himself unconditionally to the authorities because he either
acknowledges his guilt or wishes to save the government the trouble and expense necessarily
included for his search and capture. All these requisites are present in this case.
30 

In view of the absence of an aggravating circumstance and the presence of one mitigating
circumstance, reclusion perpetua, not death, should be the penalty to be imposed on Rufino.

We now discuss the damages to be awarded.

The trial court’s award of ₱100,000 compensatory damages is erroneous because it was without
basis. The records show that the prosecution presented only two receipts, for the amounts of
₱9,000 and ₱200 representing payment for the casket and funeral services, and the niche,
31  32 

respectively, or a total of ₱9,200. Only expenses supported by receipts and which appear to have
actually been expended in connection with the death of the victim should be allowed for actual
damages. Hence, the award of ₱100,000 should be reduced to ₱9,200.
33 

We sustain the court’s award of moral damages but at a reduced rate of ₱50,000, consistent with
recent jurisprudence. In cases of violent death, moral damages is awarded even in the absence of
proof because an untimely and violent death invariably brings about emotional pain and anguish on
the part of the victim’s family. In addition, the amount of ₱50,000 as indemnity for the death of
34  35 

Joseph should be awarded to his heirs.

The award of exemplary damages is proper in view of the qualifying aggravating circumstance of
use of a motor vehicle. However, the amount of ₱50,000 awarded by the trial court should be
reduced to ₱25,000 pursuant to current case law.

Finally, we note that the prosecution offered the testimony of the victim’s widow on the age and daily
income of her husband, without supporting the same with documentary evidence.

The rule is that documentary evidence should be presented to substantiate a claim for damages for
loss of earning capacity. By way of exception, damages therefore may be awarded despite the
absence of documentary evidence provided that there is testimony that the victim was either (1) self-
employed earning less than the minimum wage under current labor laws, and judicial notice may be
taken of the fact that in the victim’s line of work no documentary evidence is available; or (2)
employed as a daily-wage worker earning less than the minimum wage under current labor laws. 36 

There is no showing that the victim was self-employed or employed as a daily-wage worker with an
average daily income of less than the minimum wage provided under the labor laws in force at the
time of his death. In the absence of such proof, the exception cannot be applied to this case. Hence,
no award for loss of earning capacity can be granted in favor of the victim’s heirs.

WHEREFORE, the appealed decision of the Regional Trial Court, Branch 25, of Biñan, Laguna, in
Criminal Case No. 9621-B convicting appellant RUFINO MALLARI y ILAG of the crime of murder is
hereby AFFIRMED with the following modifications:

1. The penalty is reduced from death to reclusion perpetua;

2. The award of exemplary damages in the amount of ₱50,000 is reduced to ₱25,000, and
the awards of actual and moral damages are reduced to ₱9,200 and ₱50,000, respectively;
and
 3. Appellant Rufino Mallari y Ilag is further ordered to pay the heirs of Joseph Galang an
indemnity ex delictoin the amount of ₱50,000.

Costs de oficio.

SO ORDERED.

G.R. No. 213224

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, 

vs.
ROQUE DAYADAY y DAGOOC , Accused-Appellant.
1

DECISION

CAGUIOA, J.:

On appeal is the May 26, 2014 Decision  of the Court of Appeals (CA), Special Twenty-Third Division
2

in CA-G.R. CR-HC No. 00887-MIN, which affirmed the Decision  dated September 27, 2010 of the
3

Regional Trial Court (R TC) of Surallah, South Cotabato, Branch 26, in Criminal Case No. 4005-N.

The Facts

In an Information  filed with the RTC, accused-appellant Roque Dayaday y Dagooc (Roque) was
4

charged with the crime of Murder, the accusatory portion of which reads:

"That on or about the 27th day of October 2005 at around 10:00 o'clock in the evening thereof, at
Barangay Esperanza, Municipality of Norala, Province of South Cotabato, Philippines, within the
jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun and a
knife, with intent to kill, attended by treachery and evident premeditation, did then and there, willfully,
unlawfully and feloniously attack, assault and shoot for several times and stab one BASILIO
GALLENERO, hitting and inflicting upon the latter several mortal gunshot wounds on the different
parts of his body, and stab wound at the epigastric area of the victim's abdomen, which caused his
death shortly thereafter."

CONTRARY TO LAW, attended by aggravating circumstance of Illegal Possession of Firearms. 5

Upon arraignment, Roque pleaded not guilty to the offense charged. Thereafter, trial on the merits
ensued. The prosecution presented Alex Gallenero (Alex), the son of the victim, and Dr. Lanelita
Lanaria-Amido (Dr. Amido ), the Municipal Health Officer of Norala, South Cotabato, as witnesses
who testified to the following facts, to wit:

On the evening of October 27, 2005 at about 10 o'clock, Alex and his father, Basilio Gallenero
(Basilio), were walking home along the road in Barrio 3, Norala, South Cotabato  after attending a
6

wedding celebration at the house of Rodolfo Dayaday,  when suddenly, Roque shot the victim in the
7

back four (4) times, successively. Alex easily recognized Roque as the assailant because the place
was well lit and he was just about ten (10) meters away from Roque when the latter fired his
gun.   For fear of his life, Alex an away from the place of incident.   He reported the incident to his
8 9

uncle Petring Pinuela and to the police officers of Norala. 10

The postmortem report of Dr. Amido showed that the victim suffered four (4) gunshot wounds and
one (1) stab wound  and died due to cardiopulmonary arrest, probably secondary to multiple injuries
11

caused by the gunshot and stab wounds.  12

Roque, on the other hand, through the testimonies of Reynald Dayaday (Reynald) and Dennis
Blancada (Dennis), denied the accusation and interposed the defense of alibi.

Reynald, accused-appellant's brother, testified that on October 27, 2005, the night before the
wedding of his niece, he was at the house of his older Brother, Teodolfo Dayaday, at Barangay
Esperanza (Barrio 3), Norala, South Cotabato.  He was with Roque and seven (7) other people, who
13

were tasked to prepare the food for the wedding celebration. They were all together in the kitchen
from 5 o'clock in the evening to 3 o'clock in the morning.  14

Dennis testified that he was at Barangay Esperanza, Norala, South Cotabato on October 27, 2005
because he was invited to cook in the house of Teodolfo Dayaday.   He arrived there at 12 o'clock
15

noon but his duty started at 5 o'clock in the evening and ended at 3 o'clock in the morning the
following day.   He recalled that during those times that he was cooking, Roque never left the
16

kitchen. 17

Ruling of the RTC

Finding the positive testimony of Alex credible as against Roque's defense of alibi, the RTC
convicted Roque of the crime of murder and sentenced him accordingly. The dispositive portion of
the Decision  dated September 27, 2010 reads as follows:
18

WHEREFORE, premises all considered, the court finds the evidence of the prosecution sufficient to
sustain it in finding the accused criminally responsible of the crime charged.

Consequently, accused Roque Dayaday y Dago-oc is hereby found guilty beyond reasonable doubt
of the crime of Murder as he is charged in this case.

He is hereby sentenced to suffer the penalty of imprisonment of reclusion perpetua.

He is further ordered to pay the heirs of his deceased victim, Basilio Gallenero, the amount of
P75,000.00 as indemnity for his death; the amount of P50,000.00 as moral damages; the amount of
P30,000.00 as exemplary damages and the amount of P30,000.00 as reasonable actual expenses
for his wake and burial and the costs of suit.

SO ORDERED. 19

Aggrieved, Roque appealed to the CA by a Notice of Appeal dated October 28, 2010.  Both parties
20

accordingly filed their respective Briefs dated April 26, 2011  and November 22, 2011.
21 22

Ruling of the CA

The CA concurred with the RTC's finding on Alex's credibility and dismissed the alleged
inconsistencies in his testimony.   Moreover, the CA found Roque's defense of alibi very flimsy.
23

According to the CA, while the defense witnesses claimed that Roque was cooking at the time of the
commission, it was not physically impossible for Roque to be at the scene of the crime because the
place where he was allegedly cooking was in the same vicinity where the crime was committed.  24

The CA further ruled that while the prosecution failed to prove the aggravating circumstance of
evident premeditation, treachery was very patent in the instant case, which is sufficient to qualify the
crime to murder. Records showed that the victim was shot several times in the back while he was
walking, which means that he was defenseless at the time of the attack; and the fact that the stab
wound was located on the victim's abdomen would not preclude treachery because the victim was
already vulnerable due to the gunshot wounds. 25

Thus, on May 26, 2014, the CA rendered the assailed Decision  affirming Rogue's conviction, the
26

decretal portion of which reads:

WHEREFORE, the assailed Decision dated September 27, 2010 of the Regional Trial Court, Branch
26, Surallah, South Cotabato finding accused-appellant Roque Dayaday y Dagooc guilty beyond
reasonable doubt of the crime of Murder in Criminal Case No. 4005-N is AFFIRMED.

SO ORDERED. 27

Hence, this appeal.  28

In the Resolution dated January 28, 2015,  this Court required the parties to file their supplemental
29

briefs; but both parties manifested  that they would no longer file the pleadings and opted to replead
30

and adopt the arguments submitted before the CA.

Issue

Consequently, the only issue for the Court's consideration is whether the CA erred in affirming
Roque's conviction for the crime of murder.

The Court's Ruling

In the instant appeal, Roque essentially questions the credibility of Alex and the veracity of his
accusations. Roque insists that Alex is a biased witness considering his relationship with the victim.
He further avers that Alex exhibited a propensity to lie when he stated in his affidavit that there were
other witnesses who saw the commission of the crime, and later admitted in open court that he was
the sole witness to the crime. Roque also claims that the testimony of Alex that his father had been
shot four (4) times runs counter to the postmortem report of Dr. Amido, which indicates that there
were seven (7) gunshot wounds.

The appeal fails.

Time and again, the Court has held that when the issues involve matters of credibility of witnesses,
the findings of the trial court, its calibration of the testimonies, and its assessment of the probative
weight thereof, as well as its conclusions anchored on said findings, are accorded high respect, if not
conclusive effect. This is so because the trial court has the unique opportunity to observe the
demeanor of witnesses and is in the best position to discern whether they are telling the
truth.   Hence, it is a settled rule that appellate courts will not overturn the factual findings of the trial
31

court unless there is a showing that the latter overlooked facts or circumstances of weight and
substance that would affect the result of the case.   The foregoing rule finds an even more stringent
32

application where the findings of the RTC are sustained by the CA.  33
In the present case, both the RTC and CA found the testimony of Alex straightforward and worthy of
belief. Alex identified Roque as the one who shot his father at the back and his positive declaration
was never destroyed even after cross-examination in court.  34

For his part, Roque failed to identify any significant factor circumstance which would justify the
reversal of the RTC's and CA's findings on Alex's credibility.

The imputation of bias to Alex because of his relationship with the victim must necessarily fail.
In People v. Montemayor, the Court ruled that relationship by itself does not give rise to any
35

presumption of bias or ulterior motive, nor does it impair the credibility of witnesses or tarnish their
testimonies.   The relationship of a witness to the victim would even make his testimony more
36

credible, as it would be unnatural for a relative who is interested in vindicating the crime to charge
and prosecute another person other than the real culprit.   Relatives of victims of crimes have a
37

natural knack for remembering the faces of the attacker and they, more than anybody else, would be
concerned with obtaining justice for the victim by having the felon brought to justice and meted the
proper penalty. Where there is no showing of an improper motive on the part of the prosecution's
38

witnesses for testifying against the appellant, their relationship to the victim does not render their
testimony less credible.   In this case, since there is no showing of any ill or improper motive on the
39

part of Alex to testify against the accused, his relationship with the victim even made his testimony
more credible and truthful.

Furthermore, the alleged discrepancy between Alex's testimony and the postmortem report of Dr.
Amido as to the number of gunshot wounds is more imagined than real. As correctly pointed out by
the CA, the postmortem report showing that there are four (4) entry gunshot wounds and three (3)
exit wounds, which means that there are three (3) perforating gunshots and one (1) penetrating
gunshot, coincides with Alex's declaration that his father was shot four (4) times.39-a

The Court also agrees with the CA that the inconsistency between Alex's affidavit and his testimony
in open court as to whether there are other witnesses to the crime is immaterial to affect his
credibility, because it does not detract from the fact that Alex saw and identified Roque as the
assailant of his father.  In People v. Yanson,  the Court held:
40 41

x x x [T]his Court had consistently ruled that the alleged inconsistencies between the testimony
of a witness in open court and his sworn statement before the investigators are not fatal
defects to justify a reversal of judgment. Such discrepancies do not necessarily discredit the witness
since ex parte affidavits are almost always incomplete. A sworn statement or an affidavit does not
purport to contain a complete compendium of the details of the event narrated by the affiant. Sworn
statements taken ex parte are generally considered to be inferior to the testimony given in open
court.

xxxx

The discrepancies in [the witness]'s testimony do not damage the essential integrity of the
prosecution's evidence in its material whole. Instead, the discrepancies only erase suspicion that
the testimony was rehearsed or concocted. These honest inconsistencies serve to
strengthen rather than destroy [the witness]'s credibility. 42

Under Article 248  of the Revised Penal Code (RPC), murder is committed when: (1) a person was
43

killed; (2) the accused killed him; (3) the killing was with the attendance of any of the qualifying
circumstances enumerated in Article 248; and (4) the killing neither constitutes parricide nor
infanticide.
44
All elements of the crime of murder have been established in this case beyond reasonable doubt.

Through the testimony of Alex, the eyewitness to the crime, it was established that Basilio was killed
and it was Roque who had killed him. As to the presence of qualifying circumstances, the Court
sustains the CA's finding that treachery attended the killing of Basilio. There is treachery when a
victim is set upon by the accused without warning, as when the accused attacks the victim from
behind, or when the attack is sudden and unexpected and without the slightest provocation on the
part of the victim, or is, in any event, so sudden and unexpected that the victim is unable to defend
himself, thus insuring the execution of the criminal act without risk to the assailant. 
45

Here, the evidence unequivocally shows that the attack against Basilio, which came from behind,
was sudden, deliberate and unexpected. The victim was completely unaware of any threat to his life
as he was merely walking home with his son. The use of a firearm showed deliberate intent to kill
Basilio and the location and number of gunshot wounds rendered him defenseless and incapable of
retaliation. Hence, treachery was evident in the case at bar, sufficient to qualify the crime to Murder.

Penalty, Civil Indemnity and Damages

Under Article 248 of the RPC, the penalty for murder qualified by treachery is reclusion perpetua to
death. Considering that, apart from treachery, the aggravating circumstances of evident
premeditation and illegal possession of firearms, as alleged in the Information, were not duly proven,
the RTC correctly held that the proper imposable penalty is reclusion perpetua.

As to the award of damages, the Court deems it proper to modify the CA's award pursuant to the
Court's recent ruling in People v. Jugueta. Therefore, in addition to the amount of ₱30,000.00 as
46

reasonable actual expenses for the wake and burial and the costs of suit, the victim's heirs are
entitled to ₱75,000.00 as civil indemnity; ₱75,000.00 as moral damages; and ₱75,000.00 as
exemplary damages. All damages awarded shall earn interest at the rate of 6% per annum from
date of finality of this judgment until fully paid.

WHEREFORE, in view of the foregoing, the Appeal is

DISMISSED for lack of merit. The Decision dated May 26, 2014 of the Court of Appeals in CA-G.R.
CR-HC No. 00887-MIN, finding accused-appellant Roque Dayaday y Dagooc GUILTY beyond
reasonable doubt of the crime of Murder is hereby AFFIRMED with MODIFICATIONS in that the
award of civil indemnity, moral damages and exemplary damages are each increased to Seventy-
Five Thousand Pesos (₱75,000.00) and all monetary awards shall earn interest at the legal rate of
six percent (6%) per annum from the date of finality of this Decision until fully paid.

SO ORDERED.

G.R. No. 173824             August 28, 2008

PETER TARAPEN y CHONGOY, petitioner, 

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION
CHICO-NAZARIO, J.:

Assailed before Us is the Decision1 of the Court of Appeals in CA-G.R. CR No. 26636, dated 31 January
2006, which affirmed with modification the Decision2 of the Regional Trial Court (RTC) of Baguio City,
Branch 3, convicting petitioner Peter Chongoy Tarapen of the crime of Homicide. 

On 9 June 2000, petitioner was charged before the RTC of Baguio City with Frustrated Homicide for
attacking and assaulting James Lacbao Pangoden.3 The day after, the victim died from the injuries he
sustained. As a consequence, an amended information was filed on 13 June 2000 charging petitioner
with Homicide allegedly committed as follows: 

That on or about the 8th day of June, 2000, in the City of Baguio, Philippines, and within the
jurisdiction of the Honorable Court, the above-named accused, with intent to kill, did then and
there willfully, unlawfully and feloniously attack, and assault JAMES LACBAO PANGODEN, by
hitting his head twice with a steel shovel, thereby inflicting upon the latter: Cardio-respiratory
arrest secondary to cranio-cerebral injury, which directly caused his death. 4

The case was raffled to Branch 3. When arraigned on 15 June 2000, petitioner, with the assistance of
counsel de oficio, pleaded not guilty to the crime charged.5

On 10 October 2000, the pre-trial conference of the case was terminated with the trial court issuing its
pre-trial order.6

The prosecution presented the following witnesses, namely: (1) Patricia S. Pangoden 7; (2) Molly J.
Linglingen8; (3) Silmana Linglingen9; (4) Virginia Costales10; (5) Dr. Lindo Mensalvas11; (6) Dr. Rizal Leo
Cala12; and (7) Senior Police Officer (SPO) 2 Juanito Meneses II. 13

The collective testimonies of the witnesses revealed:

At around 7:00 to 7:30 in the morning of 8 June 2000, a dump truck driven by Jimmy Pugoy arrived at
Zandueta St., Baguio City, to collect garbage. He was accompanied by petitioner and Edmond Ferrer.
The garbage truck came from lower Zandueta St. and proceeded to upper Zandueta St. Upon reaching
the Hilltop Market, the truck turned around. During this time, vendors, including the victim James
Pangoden, Molly J. Linglingen, Silmana Linglingen and Virginia Costales were peddling their wares along
said street. Petitioner alighted from the truck and signaled to the driver to move slowly. Despite guiding
the truck, said vehicle ran over the eggplants being sold by Virginia Costales. Petitioner picked up the
vegetables and threw them towards the place where James was. This angered James because the
flowers he was selling were soiled. An exchange of words ensued between petitioner and
James.14 Petitioner went to the back of the dump truck and got a shovel. He then moved in front of the
truck where James was. While James was facing downwards, petitioner, coming from behind and holding
the shovel with two hands, struck James on the head with the same, causing him to fall to the ground in a
squatting position. As soon as James raised his head, petitioner hit the former’s head again with the
shovel.15 Petitioner then ran away. James was brought to the Baguio General Hospital & Medical Center
(BGHMC) in a taxi.

The wife of James, Patricia Pangoden, arrived at the BGHMC and saw her husband in the Emergency
Room. Dr. Rizal Leo Cala refused to operate on her husband, saying that it was already hopeless. She
then requested for the transfer of her husband to the Saint Louis University (SLU) Hospital. The request
was approved, and her husband was transferred to SLU Hospital at 1:30 p.m. James was operated on,
and Patricia was told that her husband had no more chance to live. She was advised to bring home
James; otherwise, they would just be spending so much. Patricia brought her husband to his hometown in
Namatugan, Sudipen, La Union, where he expired on 10 June 2000. 16
Patricia S. Pangoden testified on the events that happened to her husband from the time he was bought
to the hospital until the time he died. She also testified on the expenses she incurred as a result of the
incident.17

Molly J. Linglingen and Silmana Linglingen, mother and daughter, and co-vendors of James at Zandueta
St., testified that they saw petitioner get a shovel from the rear of the garbage truck, approach James
from behind, and hit him with it twice on the head. 

Virginia Costales recounted the events prior to her seeing James already slumped on the ground. She
narrated that when the garbage truck was going down Zandueta St., petitioner got off from the truck and
guided it. The truck ran over the eggplants she was selling. Petitioner picked them up and threw them to
where James was. James, she said, got angry because the flowers he was selling were soiled. Petitioner
and James exchanged words. While the two were exchanging words, she transferred her sack of
eggplants to a nearby place. It was then that she heard people shouting. When she turned around, she
saw James already slumped on the ground oozing with blood.

Dr. Lindo Mensalvas and Dr. Rizal Leo Cala, physicians at the SLU Hospital and BGHMC, respectively,
attended to the victim. They respectively issued a medico-legal certificate containing the injuries
sustained by the victim.18

SPO2 Juanito Meneses II, assigned at Police Community Precinct 1, Baguio City, was the investigator to
whom the case of petitioner was turned over. At around 10:00 a.m. of 8 June 2000, the Division Chief of
the General Services Office of Baguio City turned the petitioner over to him. SPO2 Meneses disclosed
that petitioner admitted to having inflicted injuries on the victim. The police officer disclosed that he did not
notice any injury on Peter’s body or face. He added that Peter did not request any medical treatment that
morning. He brought Peter to the BGHMC for possible identification, but the victim was still unconscious.
Upon going back to the police station, he took the statement of the victim’s wife. He likewise identified the
steel shovel19 allegedly used in killing the victim. 

The prosecution formally offered Exhibits "A" to "H," inclusive, with sub-markings which the trial court
admitted.20

For the defense, the following took the witness stand: (1) Jimmy Pugoy, 21 (2) petitioner Peter
Tarapen,22 (3) Edmond Ferrer,23 and (4) Dr. Maryjane Tipayno.24

The version of the defense as culled from these witnesses is as follows:

Jimmy Pugoy, petitioner Peter Tarapen and Edmond Ferrer are garbage collectors employed by the
General Services Office of the City of Baguio. At around 3:00 a.m. of 8 June 2000, they started collecting
garbage. At around 7:00 a.m., they arrived at Zandueta St. Half of said street was almost occupied by
vendors who were selling various goods. In order to collect garbage piled on said street, the truck driven
by Jimmy Pugoy had to go up the street then go down. While going down the street, Pugoy kept on
honking the truck’s horn, causing the vendors selling near the garbage pile to move away, but some of
their goods were left behind. Ferrer alighted and started filling up the garbage basket with the use of a
shovel. Peter saw a sack of eggplants pinned under the truck being removed by its owner. Peter helped
the old woman carry the sack to the side of the road when, all of a sudden, James punched him hard on
the right ear, causing him to fall and roll down the street. Peter ended up sitting on the ground. As he was
getting up with his hands raised, James punched him again. Peter protested, saying he did not do
anything wrong. James answered: "You people from the government are show-off[s]." Peter, still dizzy
while getting up and still with hands raised, was kicked by James on the left side of the body. Peter fell on
the road and rolled anew.25 Feeling very dizzy, Peter tried to pick up something to throw at James to stop
him, because he (Peter) thought James would kill him. At this moment, Edmond was coming to the aid of
Peter, who was in front of the truck. Edmond carried with him the shovel he used to collect garbage.
Edmond tried to help Peter stand. He put down the shovel on the ground. While in a sitting position, Peter
was able to get hold of the shovel and swing it, hitting James who was approaching him and about to
strike with a clenched fist. With the help of the shovel, Peter stood up and tried to leave. When James
followed Peter, the latter hit him again with the shovel. Peter saw James boarding a taxi. After feeling a
little better, Peter walked to his office and reported the matter to his supervisor.

Peter, accompanied by his supervisor, voluntarily surrendered to the police authorities. Per his request,
he was brought to the hospital where he met James’s wife who hit him on the back. To avoid trouble, he
was brought to the City Jail. Upon posting bail, he went to the hospital for treatment.

Jimmy Pugoy testified on what he allegedly saw that fateful morning. He recounted that while he was
maneuvering the garbage truck he was driving at Zandueta St., he saw petitioner Peter Tarapen go down
the truck and help an old woman, who was in front of the truck, carry a sack of eggplants. At that moment,
a person (James) went near Peter and suddenly punched him on the face, causing him to fall and roll
down the street. When Peter stood up with his hands raised, James punched him again on the face,
making the latter fall and roll again. Peter stood up a second time with his hands up. This time, he said,
James delivered a flying kick, which hit Peter on the stomach. Peter fell and rolled once more. After this,
Jimmy no longer saw what happened, because the people had gathered, and he parked the truck. After
parking the vehicle, what he saw was a man lying on the ground. He went back to the office and gave a
report.

Edmond Ferrer narrated that at around 7:00 a.m. of 8 July 2000, he was with Jimmy Pugoy and Peter
Tarapen at Zandueta St. collecting garbage. He was with Peter hanging at the back of the truck. When
the vehicle stopped, Peter alighted and went in front of the vehicle. Jimmy also went down, taking with
him the shovel and the garbage basket. While Peter was settling some things in front, he placed the
garbage inside the basket. After filling up the basket and before he could load it into the truck, he heard
people shouting in front of the vehicle. As there was a commotion, he proceeded to the front of the vehicle
carrying the shovel he was using. He saw Peter sitting on the ground shaking his head. He went near
Peter, put down the shovel and tried to help him stand up. A person approached and was about to hit
Peter, when the latter got hold of the shovel, swung it and hit this person. The person remained standing.
Peter was able to stand and was turning around to leave, but the person whom he hit with the shovel was
about to follow him in order to punch him. Peter hit this person one more time, causing the latter to fall
down. Seeing Peter leave, he also left.

Petitioner testified that at the time the incident subject of this case happened, he was in Zandueta St. to
collect garbage. He was riding the garbage truck driven by Jimmy Pugoy. Since the driver was
continuously blowing the horn of the vehicle, he went down the truck and saw a sack of eggplants under
the vehicle. The owner of the sack of eggplants approached him and asked him to help her. He helped
the old woman remove the sack under the truck and carry it to the side of the road. After that, he said
someone (James) punched him at the right side of the head, which caused him to fall and sit on the road.
As he was getting up with his hands raised, James said, "Nalastog kayo nga taga-gobierno," and then
punched him for the second time. He was a little dizzy and was again getting up when he was kicked on
the left side of his body. Feeling very dizzy, he tried to pick up something to throw at James. While sitting,
he got hold of a shovel which he swung, hitting James. Peter said he got up to run away, but James
followed him. It was then that Peter hit him again with the shovel. He went to their office and he was
accompanied by his supervisor in surrendering to the police. He added that he asked the policemen to
bring him to the hospital, because his ear was aching. It was on 16 July 2000 that he was able to have a
medical examination of his ears.

Dr. Maryjane Tipayno, physician at the BGHMC, testified that she performed an audio logic test on
petitioner on 16 June 2000. She found out that petitioner had mild hearing loss on the left ear and severe
hearing loss on the right ear.26 She said that the hearing condition of petitioner could not have been self-
inflicted. She explained that the hearing loss in both ears could have started years before. She added that
it was Dr. Vinluan who interviewed the petitioner, and that it was petitioner who told him that the hearing
loss in his right ear was due to a blunt trauma. 
After formally offering Exhibits "1" and "2" and with the admission thereof by the trial court, the defense
rested its case.27

As rebuttal witnesses, the prosecution presented Molly Linglingen, who said that petitioner was standing
up when he hit James twice on the head with a shovel. He explained that James was standing with his
back turned, when Peter came from behind and hit him. 28

On 20 June 2002, the trial court convicted petitioner of Homicide in a decision the dispositive portion of
which reads:

WHEREFORE, the Court finds accused Peter Tarapen GUILTY beyond reasonable doubt for the
crime of Homicide and he is hereby sentenced to suffer the penalty of imprisonment at the
National Penitentiary, Muntinlupa City from Fourteen (14) Years as Minimum to Twenty (20)
Years as Maximum. Peter Tarapen shall also indemnify private complainant Patricia Pangoden
the following amounts: One Hundred Ninety Five Thousand Eighty Pesos and 05/100
(P195,080.05), representing the expenses for hospitalization, funeral and burial; Moral Damages
to Patricia Pangoden in the amount of Three Hundred Thousand Pesos (P300,000.00) and Death
Indemnity of Fifty Thousand Pesos (P50,000.00), and Loss of Earning Capacity in the amount of
Three Million One Hundred Thirty Five Thousand Seven Hundred Twenty Pesos (P3,680,800.05),
plus costs of suit against the accused.29

The trial court gave credence to the testimonies of the prosecution witnesses Molly J. Linglingen, Silmana
Linglingen and Virginia Costales as against the testimonies of defense witnesses Jimmy Pugoy, petitioner
Peter Tarapen and Edmond Ferrer. The trial court found the prosecution’s version of the incident credible.
The trial court said Virginia Costales saw the first part of the incident, which was the heated argument
between petitioner and the victim involving the victim’s soiled goods, while Molly J. Linglingen and
Silmana Linglingen witnessed the second part of the incident when petitioner went to the back portion of
the garbage truck and got a shovel with which he hit the victim from the back, twice on the head, resulting
in his death. Having had the opportunity to observe them, it was convinced that they were telling the truth
vis-à-vis the defense witnesses who were lying, as can be seen from their hesitant answers and evasive
looks when they testified for the petitioner who was a co-employee.

The trial court likewise did not appreciate self-defense in favor of petitioner, who struck the unarmed
victim from the back, twice on the head. 

On 8 July 2002, petitioner filed a Motion for Reconsideration, 30 which the trial court denied on 16 July
2002.31 On 23 July 2002, petitioner filed a Notice of Appeal. 32 In an Order33 dated 29 July 2002, the trial
court, finding the notice of appeal to have been seasonably filed, forwarded the records of the case to the
Court of Appeals. 

On 31 January 2006, the Court of Appeals rendered a decision, affirming with modification the decision of
the trial court convicting petitioner Peter Chongoy Tarapen of the crime of Homicide, the decretal portion
reading:

WHEREFORE, in view of all the foregoing, the decision dated June 20, 2002 of Branch 3 of the
Regional trial Court of Baguio City in Criminal Case No. 17792-R finding accused-appellant Peter
Tarapen y Chongoy guilty beyond reasonable doubt of the crime of homicide is AFFIRMED with
modification. Accused-appellant is sentenced to suffer the penalty of eight (8) years of prision
mayor, AS MINIMUM, to fourteen (14) years of reclusion temporal, AS MAXIMUM,
and ordered to pay the heirs of the victim James Lacbao Pangoden the following
amounts: P51,549.25 in actual damages, P50,000.00 as moral damages, P50,000.00 as civil
indemnity and the sum of P1,960,200.00 representing lost earnings.34
On 8 March 2006, petitioner filed a Motion for Reconsideration, 35 on which the Office of the Solicitor
General (OSG) filed its Comment.36 On 6 July 2006, the Court of Appeals denied said motion. 37

On 31 August 2006, petitioner, via registered mail, filed a petition for review with this Court, seeking the
reversal of the decision of the Court of Appeals.38

In our Resolution39 dated 2 October 2006, respondent People of the Philippines, through the OSG, was
required to file its Comment on the petition. After three motions for extension to file comment on the
petition, which were granted by this Court, the OSG filed its Comment on 5 February 2007. 40 On 12 March
2007, petitioner was required to file a Reply to the Comment, which he did on 11 December 2007. 41

On 18 February 2008, the Court resolved to give due course to the petition for review on certiorari and
required the parties to submit their respective memoranda within thirty (30) days from notice. Petitioner
and respondent filed their respective memoranda on 2 May 2008 and 10 April 2008. 42

Petitioner assails his conviction, arguing that both trial courts: 

I. Erred in giving credence to the prosecution witnesses, despite the grave inconsistencies in their
testimonies and not considering the testimonies of the witnesses for the defense showing
manifest bias against the accused.

II. Erred in not acquitting the accused when the defense had sufficiently proved the existence of
facts proving that indeed the accused was defending himself from James Pangoden.

III. Erred in not acquitting the accused based on reasonable doubt. 43

On the first assigned error, petitioner contends that the testimonies of Molly and Silmana Linglingen that
there was no prior quarrel or exchange of words between petitioner and James before the former hit the
latter with a shovel, are contrary to human experience, because petitioner could not have taken the life of
James, whom he did not personally know, for no reason at all.

This contention is untenable.

A review of the testimonies of both Molly and Silmana Linglingen shows they never said that petitioner
and the victim did not have any prior quarrel or exchange of words before Peter hit James with the shovel.
What they said was that they never witnessed any quarrel or exchange of words between Peter and
James. They, however, declared in unison that they saw petitioner get a shovel from the back of the
garbage truck and, coming from behind, twice struck James on the head with it. Both Molly and Silmana
Linglingen never witnessed the events prior to Peter’s act of getting the shovel. This void was
substantially filled up by the testimony of Virginia Costales, who actually witnessed the altercation
between the petitioner and the victim. Through the testimony of Mrs. Costales, it became clear why
petitioner got the shovel, which he used in striking James twice on the head. By combining the
testimonies of the three ladies, a picture of the incident has been wholly painted. The rage that Peter had
in him was brought about by his squabble with James. The defense cannot, therefore, claim that Peter
took the life of James for no reason at all.

Petitioner brands Molly and Silmana Linglingen as biased witnesses, thus, unreliable, because they were
town mates and co-vendors of the victim. The fact that these two witnesses were the victim’s town mates
and co-vendors did not necessarily make them biased witnesses. It is well-settled that the mere
relationship of a witness to the victim does not impair the witness’ credibility. On the contrary, a witness’
relationship to a victim of a crime would even make his or her testimony more credible, as it would be
unnatural for a relative, or a friend as in this case, who is interested in vindicating the crime, to accuse
somebody other than the real culprit.44 A witness is said to be biased when his relation to the cause or to
the parties is such that he has an incentive to exaggerate or give false color to his statements, or to
suppress or to pervert the truth, or to state what is false. 45 To warrant rejection of the testimony of a
relative or friend, it must be clearly shown that, independently of the relationship, the testimony was
inherently improbable or defective, or that improper or evil motives had moved the witness to incriminate
the accused falsely.46

The friendship of Molly and Silmana Linglingen with the victim, per se, did not impair their credibility. We,
like both lower courts, are convinced that they were telling the truth. Moreover, the defense failed to show
any evidence that prosecution witnesses Molly and Silmana Linglingen had improper or evil motives to
testify falsely against petitioner. This being the case, their testimonies are entitled to full faith and credit.

The defense accuses the prosecution witnesses of deliberately suppressing material evidence favorable
to the petitioner. It thus argues that it may be safely presumed that such evidence, having been willfully
suppressed, would be adverse if produced.

We do not find any suppression of evidence by the prosecution. The defense failed to specify which
evidence was suppressed. It simply made a general statement that the prosecution witnesses allegedly
did not tell the truth and thus deliberately suppressed material evidence favorable to the petitioner. The
adverse presumption of suppression of evidence is not applicable when (1) the suppression is not willful;
(2) the evidence suppressed or withheld is merely corroborative or cumulative; (3) the evidence is at the
disposal of both parties; and (4) the suppression is an exercise of a privilege. 47 In the case at bar, the
prosecution witnesses who allegedly suppressed material evidence were presented in court and were
cross-examined by the defense counsel. How then can the defense claim there was suppression? The
defense counsel was able to question these witnesses, but failed to elicit the answer he wanted or
needed to hear for the exoneration of his client.

The defense attacks the credibility of Virginia Costales by pointing out that her testimony in court, that she
did not see petitioner and the victim engage in a fistfight, contradicts her declaration in her sworn
statement that that two engaged in a fistfight.

Such inconsistency will not discredit her. It is settled that certain discrepancies between declarations
made in an affidavit and those made on the witness stand seldom could discredit the declarant. Sworn
statements, being taken ex parte, are almost always incomplete and often inaccurate for various reasons,
sometimes from partial suggestion or for want of suggestion and inquiries. They are generally inferior to
the testimony of the witness given in open court. Our case law is unequivocal in saying that the testimony
of a witness prevails over an affidavit. In short, affidavits are generally subordinated in importance to
open-court declarations; or, more bluntly stated, whenever there is inconsistency between an affidavit and
the testimony of a witness in court, the testimony commands greater weight. 48 The Court has consistently
ruled that the alleged inconsistencies between the testimony of a witness in open court and his sworn
statement before the investigators are not fatal defects that would justify the reversal of a judgment of
conviction.49 In this case, when Mrs. Costales was confronted with this contradiction, she explained that
she never told the police that the petitioner and the victim had a fistfight. What she said was they had a
quarrel; that is, they faced each other and exchanged words.

The defense tries to destroy the version of Molly and Silmana Linglingen that the victim was hit from
behind by arguing that same is not corroborated by medical findings. Molly and Silmana Linglingen’s
claim that James was hit on the right side of the head was, according to the defense, negated by the
findings of Dr. Mensalvas that James suffered injuries on the "left frontoparietal and left frontotemporo
parietal" areas of his head. The findings of Dr. Mensalvas mean that James was facing Peter when hit by
the shovel contrary to the prosecution’s claim that James was hit by Peter from behind.

We do not agree.
The defense relies too much on the findings made by Dr. Lindo Mensalvas and completely omits the
findings made by Dr. Rizal Leo Cala. It must not be forgotten that the victim was brought to two hospitals
where the attending doctors issued separate medico-legal certificates. The medico-legal
certificate50 issued by Dr. Cala of the BGHMC was marked Exh. "D." The one issued by Dr. Mensalvas
was marked Exh. "C." 

On the witness stand, Dr. Cala read his findings as follows: 

"Skull Fracture" meaning there is a break in the skull bone, "Linear" which is a straight line
fracture, "parietal" area on the right side of the head, then we have "Epidural hematoma" it is a
blood clot at the right side of the head.51

When cross-examined, he explained his findings as follows:

q Both injuries you found were on the front parietal area?

a Yes, Sir.

q Will you please demonstrate to us?

a (Witness demonstrating by pointing to the right side of his head.)

q Doctor, while you were demonstrating, the linear fracture, is it perpendicular to the head?

a I am sorry but it was injury to the right side of the head, Sir.

q Only part of the right ear?

a Yes, sir.

q If I am facing you, it is on your?

a Right, Sir.

q Right side on your part. Did you find any injury on the left side?

a No, Sir.52

From the medico-legal certificate issued by Dr. Cala and with his testimony in court, it is clear that the
victim suffered injuries on the right side of his head. Thus, the claim of Molly and Silmana Linglingen that
the victim was struck from behind on the right side of his head is consistent with the findings of Dr. Cala.

Dr. Mensalvas, on the other hand, testified that the victim sustained four injuries, three of which were on
the left side of the head and one on the right side. The medical certificate he issued states that the victim
was confined for the following injuries:

1. ACCI; CEREBRAL CONTUSSION

2. EPIDURAL HEMATOMA, LEFT FRONTOPARIETAL AREA

3. SUTURED SCALP LACERATION, RIGHT TEMPOROPARIETAL AREA

 4. SCALP CONTUSSION, LEFT FRONTOTEMPORO PARIETAL AREA WITH UNDERLYING
LINEAR FRACTURE OF THE SKULL EXTENDING FROM THE LEFT FRONTAL TO THE LEFT
TEMPORAL BONE.53

The question now is: which medical findings should this Court believe?

This Court believes in the findings made by Dr. Cala as contained in the medico-legal certificate he issued
showing that the victim suffered injuries on the right side of his head, consistent with the declarations of
prosecution witnesses that the victim was, from behind, struck with a shovel twice on the right side of the
head. We give more weight to this medical certificate, because the same was issued by a government
doctor. By actual practice, only government physicians, by virtue of their oaths as civil service officials,
are competent to examine persons and issue medical certificates which will be used by the
government.54 As such, the medical certificate carries the presumption of regularity in the performance of
his functions and duties. Moreover, under Section 44, Rule 130, 55 Revised Rules of Court, entries in
official records made in the performance of official duty are prima facie evidence of the facts therein
stated. Dr. Cala’s findings that the victim sustained injuries on the right side of his head are, therefore,
conclusive in the absence of evidence proving the contrary, as in this case. We cannot consider the
contents of the medical certificate issued by Dr. Mensalvas sufficient to controvert the findings of Dr. Cala.
As held by this Court, an unverified medical certificate not issued by a government physician is
unreliable.56

Even assuming arguendo that we give more weight to the medical certificate issued by Dr. Mensalvas,
this does not mean that the testimonies of Molly and Silmana Linglingen shall be disbelieved. It is noted
that Dr. Mensalvas testified that the victim sustained a wound on the right side of his head, possibly
caused by a steel shovel.57 Such a finding is consistent with the claim of Molly and Silmana Linglingen
that the victim was hit on the right side of the head. Though there can be inconsistencies of the
testimonies of the witnesses with Dr. Mensalvas’s other findings (i.e., injuries on the left portion of the
head) this does not mean that we should totally doubt and discard the other portions of their testimonies. 

Well-settled is the rule that the testimony of a witness may be believed in part and disbelieved in another,
depending on the corroborative evidence or the probabilities and improbabilities of the case. Where a part
of the testimony of a witness runs counter to the medical evidence submitted, it is within the sound
discretion of the court to determine which portions of the testimony to reject as false and which to
consider worthy of belief.58

From the two medical certificates issued, what cannot be doubted is the fact that the victim sustained
head injuries, whether on the left or the right, which caused his demise.

We find the testimonies of the prosecution eyewitnesses more credible and convincing than those of the
defense eyewitnesses. When it comes to credibility, the trial court’s assessment deserves great weight
and is even conclusive and binding, if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe
directly the witnesses’ deportment and manner of testifying, the trial court is in a better position than the
appellate court to evaluate testimonial evidence properly. 59

The Court of Appeals further affirmed the findings of the RTC. In this regard, it is settled that when the
trial court’s findings have been affirmed by the appellate court, said findings are generally conclusive and
binding upon this Court. We find no compelling reason to deviate from their findings.

Petitioner claims that the trial court judge was not able to observe the demeanor of the prosecution
witnesses, because they were looking at the court interpreter when they were testifying. We find this
untenable. The trial court judge was emphatic in saying that he had the chance to see the face of the
witness while she testified.60
On the second and third assigned errors, petitioner admits killing James but invokes self-defense. He
claims that the victim was the unlawful aggressor and that he (petitioner) did not provoke the victim.

Article 11, paragraph (1) of the Revised Penal Code, provides for the elements and/or requisites in order
that a plea of self-defense may be validly considered in absolving a person from criminal liability, viz:

ART. 11. Justifying circumstances. – The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following
circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

Having admitted that he killed James, the burden of evidence that one acted in self-defense shifted to
petitioner. Like an alibi, self-defense is inherently weak, for it is easy to fabricate. 61 It is textbook doctrine
that when self-defense is invoked, the burden of evidence shifts to the accused to show that the killing
was justified, and that he incurred no criminal liability therefor. He must rely on the strength of his own
evidence and not on the weakness of the prosecution’s evidence, for, even if the latter were weak, it could
not be disbelieved after his open admission of responsibility for the killing. Hence, he must prove the
essential requisites of self-defense as aforementioned.62

Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense, whether
complete or incomplete.63 Unlawful aggression presupposes an actual, sudden, and unexpected attack, or
imminent danger thereof, and not merely a threatening or intimidating attitude. 64 There must be actual
physical force or a threat to inflict physical injury. In case of a threat, it must be offensive and positively
strong so as to display a real, not imagined, intent to cause injury. 65

We agree with the Court of Appeals that petitioner failed to clearly and convincingly prove self-defense,
whether complete or incomplete.

We confirm the observation of the trial court. A circumspect scrutiny of accused-appellant’s

version of what happened likewise leaves this Court unconvinced that he killed the victim James
Pangoden in self-defense.

First, accused-appellant’s claim that the victim James Pangoden, suddenly and without
provocation, boxed him on his right ear is simply unbelievable. By his own account, he (accused-
appellant) was at that moment helping a road vendor carry her sack of eggplants away from the
path of the truck. If this is true, then his testimony that James Pangoden attacked and boxed him
for no reason at all loses credibility. Testimonies to be believed must not only come from the
mouth of credible witnesses but should by themselves be credible, reasonable, and in accord with
human experience.

Second, it is likewise inconceivable how accused-appellant could have hit the victim James
Pangoden twice in the head while he (accused-appellant) was allegedly in a sitting position and
holding the shovel by the middle part of its shaft. Interestingly also, while accused-appellant and
his witness testified that he was in a "sitting" position when he hit James Pangoden with the
shovel, accused-appellant portrayed a different account when asked during cross-examination to
demonstrate how he hit the victim, viz:
Q: Now, how did you hit Pangoden with the shovel, demonstrate it to the Court. All right you can
step down from the witness stand (Witness demonstrating.)

For the record, witness was in a kneeling position when he got the shovel.

A: I was down on the ground, and I was groping (sic) to somebody and I was able to get hold of
the shovel, that was the time I swang (sic) it towards him.

Q: You have not demonstrated how you hit Pangoden with the shovel?

For the record, witness is in a kneeling position when he allegedly picked up the shovel holding it
in the middle part. With his two hands and swang (sic) it upwards towards his left.

For the record, accused held the shovel on the middle part of the shaft, your Honor, not on the
handle.

Third, it simply goes against the grain of human experience for the victim James Pangoden to
persist in his attack against accused-appellant after getting hit in the head with a steel shovel,
considering that he is unarmed and had nothing to match accused-appellant’s weapon on hand.
That James Pangoden still had the resolution and power for a second assault on accused-
appellant, after getting hit with a steel shovel in the head, flouts ordinary human capacity and
nature. In contrast, accused-appellant would claim that he "fell down" and "felt dizzy" after getting
boxed on the right side of his head by James Pangoden with his bare fist.

Fourth, accused-appellant himself admitted walking away from the crime scene immediately after
the incident. As we see it, this actuation on his part is contrary to his assertion of self-defense.
Flight strongly indicates a guilty mind and betrays the existence of a guilty conscience, for a
righteous individual will not cower in fear and unabashedly admit the killing at the earliest possible
opportunity if he were morally justified in doing so.

Finally, the nature and number of the fatal injuries inflicted upon James Pangoden negate
accused-appellant’s claim of self-defense. Said victim suffered cerebral contusion, epidural
hematoma, scalp laceration and skull fracture, which directly caused his death. If accused-
appellant hit the victim just to defend himself, it certainly defies reason why he had to aim for the
head and do it twice. Indeed, the nature, number and location of the wounds sustained by the
victim belie the assertion of self-defense since the gravity of said wounds is indicative of a
determined effort to kill and not just to defend.

xxxx

But even assuming arguendo that accused-appellant was able to establish the element of
unlawful aggression, still, this Court will rule out self-defense.

It is undisputed that James Pangoden was unarmed while accused-appellant was armed with a
steel shovel. There was no reasonable necessity for accused-appellant to use a steel shovel to
repel the attack of an unarmed man. Moreover, the eyewitnesses’ account of how accused-
appellant uncaringly threw the soiled eggplants towards the direction of James Pangoden’s goods
would negate the absence of sufficient provocation on the part of accused-appellant. Thus, the
second and third requisites for self-defense to be successfully invoked, namely, reasonable
necessity of the means employed to repel the attack and lack of sufficient provocation on the part
of the accused, are not present in this case. 66
We now go to the imposition of the penalty. We agree with the Court of Appeals when it appreciated in
favor of the petitioner the mitigating circumstance of voluntary surrender. It was established that a few
hours after the incident, petitioner submitted himself to his supervisors, who, in turn, surrendered him to
the police authorities. 

Petitioner is guilty of Homicide for having killed James Pangoden. The penalty for homicide under Article
249 of the Revised Penal Code is reclusion temporal. However, considering that there is one mitigating
circumstance and no aggravating circumstance in the commission of the crime, the imposable penalty,
following Article 64(2) of the Revised Penal Code, is reclusion temporal in its minimum period or within
the range of twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Applying the
Indeterminate Sentence Law, the maximum penalty to be imposed shall be taken from the minimum
period of reclusion temporal, while the minimum shall be taken from within the range of the penalty next
lower in degree, which is prision mayor or from six (6) years and one (1) day to twelve (12) years. 

The Court of Appeals sentenced petitioner to suffer the penalty of eight (8) years of prision mayor, as
minimum, to fourteen (14) years of reclusion temporal, as maximum. We find this to be in order. 

With respect to award of damages, the trial court awarded to the heirs of the victim the following
amounts: P195,080.05 as actual damages; P300,000.00 as moral damages; P50,000.00 as death
indemnity; and P3,135,720.00 for loss of earning capacity.

The Court of Appeals, except for the award of death indemnity, reduced the awards given by the trial
court as follows: P51,549.25 as actual damages; P50,000.00 as moral damages and P1,960,200.00 for
lost income. 

When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto
for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary
damages; and (5) temperate damages.67

Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the
commission of the crime.68 Under prevailing jurisprudence,69 the award of P50,000.00 to the heirs of the
victim as civil indemnity is in order.70

As to actual damages, the heirs of the victim are entitled thereto, because said damages amounting
to P51,549.25 were duly proved by receipts. It is necessary for a party seeking actual damages to
produce competent proof or the best evidence obtainable, such as receipts, to justify an award therefor. 71

Moral damages must also be awarded because these are mandatory in cases of murder and homicide,
without need of allegation and proof other than the death of the victim. 72 The award of P50,000.00 as
moral damages is in order.

The award of P25,000.00 as temperate damages in homicide or murder cases is proper when no
evidence of burial and funeral expenses is presented in the trial court. 73 Under Article 2224 of the Civil
Code, temperate damages may be recovered, as it cannot be denied that the heirs of the victim suffered
pecuniary loss, although the exact amount was not proved. 74 In the case on hand, temperate damages
cannot be awarded, because evidence of expenses for burial and funeral has been presented for which
actual damages have been awarded.

As regards exemplary damages, Article 2230 of the Civil Code allows the award thereof as part of the civil
liability when the crime was committed with one or more aggravating circumstances. 75 There being no
aggravating circumstance that accompanied the commission of the crime, exemplary damages cannot be
awarded.
The computation of the Court of Appeals with respect to lost earning capacity is correct. At the time of his
death, the victim was 31 years old. His gross annual income was P120,000.00 because he was
earning P10,000.00 monthly. Living expenses are estimated at 50% of the gross annual income. Loss of
earning capacity is computed by applying the following formula: 76

Net Earning = life expectancy x [Gross – living expenses

Capacity [2/3(80-age at death)] Annual (50% of GAI)]
Income
(GAI)

= [2/3(80-31)] x [(GAI) – (50% of GAI)]

= 2 (49)      x [P120,000 – P60,000]

   3

= [98/3] x [P60,000]

= [32.67] x [P60,000]

Net Earning = P1,960,200.00

Capacity of the
victim

WHEREFORE, all the foregoing considered, the decision of the Court of Appeals in CA-G.R. CR No.
26636, dated 31 January 2006, is AFFIRMED in toto. Costs against the petitioner.

SO ORDERED.

G.R. No. 178196             August 6, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
RUDY BUDUHAN y BULLAN and ROBERT BUDUHAN y BULLAN, defendants-appellants.

DECISION

CHICO-NAZARIO, J.:

Before Us is a review of the Decision1 of the Court of Appeals dated 29 December 2006 in CA-G.R. CR-
HC No. 01940, which affirmed with modifications the Decision 2 dated 24 July 2003 of the Regional Trial
Court (RTC) of Maddela, Quirino, Branch 38, in Criminal Case No. 38-18, finding accused-appellants
Robert Buduhan y Bullan and Rudy Buduhan y Bullan guilty of the special complex crime of robbery with
homicide with respect to the deceased Larry Erese, and of the crime of homicide with respect to the
deceased Romualde Almeron. The Court of Appeals ordered the payment of moral damages to the heirs
of said victims, in addition to the award already given by the trial court.

On 26 August 1998, an Information3 was filed against Robert Buduhan, Rudy Buduhan, Boy Guinhicna,
Boyet Ginyang and 3 John Does before the RTC of Maddela, Quirino, for the crime of Robbery with
Homicide and Frustrated Homicide. Docketed as Criminal Case No. 38-18, the accusatory portion of the
information provides:
 That on or about 10:40 o’clock in the evening of July 24, 1998 in Poblacion Norte, Municipality of
Maddela, Province of Quirino, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, four of them are armed and after first conspiring, confederating and
mutually helping one another and with force and violence did then and there willfully, unlawfully
and feloniously rob ROMUALDE ALMERON of his wallet and wrist watch and LARRY ERESE of
his wrist watch to the damage and prejudice of the said ROMUALDE ALMERON and LARRY
ERESE;

That on the occasion of the Robbery, the said accused, armed with firearms of different caliber
and after first conspiring, confederating and mutually helping one another did then and there
willfully, unlawfully and feloniously, shoot and fire upon ROMUALDE ALMERON, LARRY ERESE
and ORLANDO PASCUA resulting to their instanteneous (sic) death and the injuries to the
persons of FERNANDO PERA and GILBERT CORTEZ.

On 20 October 1998, the accused filed a Motion to Quash 4 the above information, alleging that the court
did not legally acquire jurisdiction over their persons. The accused contended they were neither caught in
flagrante delicto, nor did the police have personal knowledge of the commission of the offense at the time
when their warrantless arrests were effected.5

In an Order dated 25 August 1999, the RTC denied the above motion on the ground that the assertion of
lack of personal knowledge on the part of the arresting officers regarding the commission of the crime is a
matter of defense, which should be properly taken up during the trial. 6

When arraigned on 12 January 2000, the accused Rudy Buduhan, Robert Buduhan and Boyet Ginyang,
with the assistance of their counsel de oficio, entered their pleas of "Not Guilty" to the crime
charged.7 With respect to accused Boy Guinhicna, counsel for the accused informed the trial court of his
death and thus moved for the dismissal of the charges against him. 8

On the same date, the pre-trial conference was terminated and both parties agreed on the following
stipulation of facts, namely:

1. That the incident transpired at about 10:40 in the evening of July 24, 1998;

2. That the incident happened at Poblacion Norte, Maddela, Quirino;

3. That no firearm has been confiscated from any of the accused. 9

Upon the submission of accused Boy Guinhicna’s Certificate of Death, 10 the RTC dismissed the case
against him on 14 February 2000.11 Thereafter, trial of the case ensued. 

The prosecution presented the following witnesses: (1) Cherry Rose Salazar, an employee of the
establishment where the crime was committed12; (2) Senior Police Officer 1 (SPO1) Leo Saquing, a police
officer at the Maddela Police Station who investigated the crime committed 13; (3) Dr. Fernando T.
Melegrito, the medical examiner who conducted the autopsies on the bodies of the victims 14; (4) Myrna
Almeron, the widow of the victim Romualde Almeron15; and (5) Laurentino Erese, Sr., the father of the
victim Larry Erese.16

The defense, on the other hand, presented: (1) appellant Robert Buduhan 17; (2) accused Boyet
Ginyang18; (3) Police Inspector Ma. Leonora Chua-Camarao, a Forensic Chemist of the Philippine
National Police (PNP) Crime Laboratory at Camp Crame, Quezon City 19; (4) appellant Rudy Buduhan20;
and (5) Reynaldo Gumiho, an eyewitness who was allegedly present at the scene of the crime shortly
before the incident in question occurred.21
The People’s version of the incident as narrated by its principal witness, Cherry Rose Salazar (Cherry
Rose), is as follows:

On 24 July 1998, Cherry Rose was working as a guest relations officer at the RML Canteen, a beerhouse
and a videoke bar in Maddela, Quirino.22 At about 9:00 to 10:00 p.m., there were only two groups of men
inside the beerhouse.23 The group that went there first was that of the appellants, 24 which was composed
of Robert Buduhan, who was wearing a white T-shirt marked Giordano, 25 Rudy Buduhan, who was
wearing a red T-shirt,26 a man wearing a blue T-shirt,27 and another man wearing a blue T-shirt with a
black jacket.28 The second group was composed of Larry Erese and his companions Gilbert Cortez
(alias Abe) and Fernando Pera (alias Nanding).

At 10:40 p.m., while Cherry Rose was entertaining the group of Larry Erese, Robert approached them
and poked a gun at Larry.29 Immediately, the man wearing a blue T-shirt likewise approached Cherry
Rose’s Manager Romualde Almeron (aliasEddie), who was seated at the counter.30 The man in blue
poked a gun at Romualde and announced a hold-up. 31 Larry then handed over his wristwatch to Robert.
Instantaneously, all four men from Robert’s group fired their guns at Larry and Romualde, which caused
them to fall down.32 Abe and Nanding ran out of the RML Canteen when the shooting occurred, and
Cherry Rose hid below the table.33

SPO1 Leo T. Saquing34 testified that on 24 July 1998, at 11:00 p.m., he and SPO4 Alex M. Gumayagay
were detailed as duty investigators at the Maddela Police Station when Eddie Ancheta, a fireman,
reported to them a shooting incident at the RML Canteen in Barangay Poblacion Norte, Maddela, Quirino.
SPO1 Saquing and SPO4 Gumayagay then proceeded to the said place. About 50 meters from the scene
of the crime, they encountered four male individuals who were running away therefrom. 35 The policemen
immediately halted the men and asked them where they came from. When they could not respond
properly and gave different answers, the policemen apprehended them and brought them to the Maddela
Police Station for questioning and identification. 36 Afterwards, the policemen went back to the RML
Canteen to conduct an investigation therein.37 Later that night, the witnesses38 of the shooting incident
went to the police station and they positively pointed to the four persons, later identified as Robert
Buduhan, Rudy Buduhan, Boy Guinhicna and Boyet Ginyang, as the assailants in the said incident. 39

Dr. Fernando Melegrito,40 the Chief of Hospital at the Maddela Hospital, testified that he conducted the
autopsies on the bodies of the victims Romualde Almeron, Larry Erese and Orlando Pascua. 41 With
respect to Romualde, Dr. Melegrito found that the former sustained a gunshot wound 1/2 x 1/2 centimeter
in diameter, one inch above the right nipple, perforating the fourth rib of the right chest, penetrating the
superior aspect of the right lung, the aorta of the heart, the midportion of the left lung and exited through
the back, two inches below the lower portion of the left scapular region. 42 These findings were also
contained in Romualde Almeron’s Autopsy Report.43 From the nature of the wound, Dr. Melegrito
concluded that the victim was near and was in front of the assailant when he was fatally shot. 

As regards Larry Erese, Dr. Melegrito testified that said victim sustained a gunshot wound 1/2 x 1/2
centimeter in diameter in the sternal region of the chest, between the third left and right rib, perforating the
arch of the aorta of the heart and penetrating the subcutaneous tissue of the left lower back at the level of
the seventh rib, where a slug (bullet)44 was extracted.45 These findings were likewise contained in Larry
Erese’s Autopsy Report.46

Concerning the victim Orlando Pascua, Dr. Melegrito testified that the gunshot wound that the former
sustained resulted into a massive disruption of the lung. 47 As presented in Pascua’s Autopsy Report,48 the
gunshot wound was 1 x 1 inch in diameter, perforating the midportion of the fourth rib of the left chest,
macerating the three-fourth (3/4) portion of the left lung, and penetrating the subcutaneous tissues of the
left back at the level of the third and fourth ribs, then the fourth and fifth ribs where pellets were extracted
therein.
Myrna Almeron49 testified that as a result of the untimely death of her husband Romualde Almeron, which
fact was evidenced by a Death Certificate,50 she incurred expenses for funeral services in the amount
of P38,000.00 and expenses during her husband’s wake in the amount of P25,000.00. She also claimed
that during the night of the shooting incident, Romualde brought with him the amount of P50,000.00 in his
wallet, but the same was no longer recovered. Among these figures, however, Myrna Almeron was only
able to present a receipt for the expenses for funeral services 51 and only in the amount of P26,000.00. 

Laurentino Erese testified that during the wake of his deceased son, whose death was evidenced by a
Death Certificate,52he incurred funeral expenses for Larry in the amount of P18,000.00.53 From the wake
to the first death anniversary, the total expenses were claimed to be more or
less P100,000.00.54 However, only the receipt for the above funeral services55 was offered.

The prosecution did not present the other surviving victims in the shooting incident, namely Gilbert Cortez
and Fernando Pera. The latter were fearful of reprisals from unknown individuals. No evidence was
likewise adduced on their behalf. Also, the other employees who worked as guest relations officers in the
RML Canteen and who likewise witnessed the incident were said to have absconded already. 56

For the defense, appellant Robert Buduhan57 testified that on the evening of 24 July 1998, he was at their
boarding house in Poblacion, Maddela, Quirino, together with Rudy Buduhan, Boyet Ginyang, and Boy
Guinhicna. The group drank one bottle of San Miguel Gin, and then went to sleep. Unknown to him and
Guinhicna, Rudy and Ginyang still went out to continue their drinking sessions. While he was sleeping,
Ginyang arrived and woke him up. Ginyang told him that they had to go to the beerhouse where he
(Ginyang) and Rudy had been to because something might have happened to Rudy, as there was a fight
there. Robert, Ginyang and Guinhicna then proceeded to look for Rudy. On their way there, at the
junction of the National Highway, they encountered some policemen who asked them where they were
headed. When Robert said that they were looking for Rudy, the policemen told them to board the police
vehicle and the group was given a ride. As it turned out, Robert’s group was taken to the Municipal Jail of
Maddela where they were detained. The policemen went out to look for Rudy and they likewise put him in
jail. The following day, the policemen confiscated the shirts worn by the group. They were also taken to
Santiago City where paraffin tests were conducted. On the evening of 26 July 1998, the policemen went
to the jail with three ladies who were asked to identify Robert’s group. The ladies, however, did not
recognize Robert and his companions.

Boyet Ginyang58 testified that on 24 July 1998, at 10:00 p.m., he and Rudy went to a beerhouse in
Maddela, Quirino. After ordering some drinks and chatting, they suddenly heard gunshots from the
outside. Looking towards the direction of the sound, he saw somebody fall to the ground and at that point,
he and Rudy ran to get away from the place. While running towards their boarding house, Rudy was
stopped by an unknown armed person in a white T-shirt. When Ginyang reached the boarding house, he
roused appellant Robert and Guinhicna from their sleep and asked them to go with him and search for
Rudy. Upon reaching the junction at the National Highway, they were halted by a man who asked where
they were heading. After hearing their story, the man said they should wait for a vehicle that would help
them look for Rudy. When the vehicle arrived, he and the others were brought to the municipal jail.
Thereafter, Rudy was likewise picked up by the police and detained with the group. On the morning of 25
July 1998, three ladies were brought to the municipal jail to identify his group, but the former did not
recognize them. On the morning of 26 July 1998, Ginyang and his three companions were brought to
Santiago City where they were made to undergo paraffin testing. Afterwards, the group was brought back
to the municipal jail in Maddela, Quirino. Ginyang also testified that the policemen took the shirts they
wore on the night of 24 July 1998, but he could not remember when they did.

Police Inspector Maria Leonora Chua-Camarao59 testified that she was the one who conducted the
examination proper of the paraffin casts taken from Robert Buduhan, Rudy Buduhan, Boyet Ginyang and
Boy Guinhicna. She likewise brought before the trial court the original Letter Request 60 of the Maddela
Police Station for the conduct of paraffin casting; the Letter of Request 61 addressed to the Officer-in-
Charge the PNP Crime Laboratory in Region 2 for the conduct of paraffin examination; and the paraffin
casts of subjects Rudy, Ginyang, Guinhicna and Robert. 62 Police Inspector Chua-Camarao explained that
the purpose of conducting a paraffin test was to determine the presence of gunpowder residue in the
hands of a person through extraction using paraffin wax. The process involves two stages: first, the
paraffin casting, in which the hands of the subject are covered with paraffin wax to extract gunpowder
residue; and second, the paraffin examination per se, which refers to the actual chemical examination to
determine whether or not gunpowder residue has indeed been extracted. For the second stage, the
method used is the diphenyl amine test, wherein the diphenyl amine agent is poured on the paraffin casts
of the subject’s hands. In this test, a positive result occurs when blue specks are produced in the paraffin
casts, which then indicates the presence of gunpowder residue. When no such reaction takes place, the
result is negative. 

The findings and conclusion on the paraffin test that Police Inspector Chua-Camarao conducted were
contained in Physical Science Report No. C-25-9863 which yielded a negative result for all the four
accused. Nonetheless, the forensic chemist pointed out that the paraffin test is merely a corroborative
evidence, neither proving nor disproving that a person did indeed fire a gun. The positive or negative
results of the test can be influenced by certain factors, such as the wearing of gloves by the subject,
perspiration of the hands, wind direction, wind velocity, humidity, climate conditions, the length of the
barrel of the firearm or the open or closed trigger guard of the firearm. 64

Appellant Rudy Buduhan testified that at past 10:00 p.m. of 24 July 1998, he and Ginyang went to a
beerhouse. Shortly after ordering their drinks, they heard gunshots, and a person seated near the door
fell. They then ran towards the road.65 While running, an armed man wearing a white T-shirt held him,
while Ginyang was able to get away.66 After a while, the police arrived and they took him to the Maddela
police station where he was jailed along with Robert, Ginyang and Guinhicna. 67The rest of his testimony
merely corroborated the testimonies of Robert and Ginyang.

Reynaldo Gumiho (Reynaldo)68 testified that on the evening of 24 July 1998, he was in Poblacion,
Maddela, Quirino, for a business transaction involving the sale of a 6x6 truck with a certain alias Boy. At
about 8:00 p.m., Reynaldo and Boy proceeded to a beerhouse in Maddela. After settling with their drinks,
Reynaldo heard a group of five men near their table who were conversing and he recognized from the
accent of their voices that they were from Lagawe (Ifugao). One of the men then told him that they should
leave after finishing their drinks because the former were looking for someone who killed their relative.
Reynaldo disclosed that he recognized one of the persons whom he usually saw in Lagawe, and that the
group was composed of relatively tall people who were mostly wearing jackets. Not long after, Reynaldo
and Boy left the beerhouse so as not to get involved in any trouble. Two days after he left Maddela,
Reynaldo learned of the shooting incident in the beerhouse.

In a Decision dated 24 July 2003, the trial court found appellants guilty of the charges, the dispositive
portion of which reads:

WHEREFORE, premises considered, the court renders judgment as follows:

1) Finding accused Robert and Rudy, both surnamed Buduhan, GUILTY beyond reasonable
doubt of the special complex crime of Robbery with Homicide (Par. 1 Article 294 of the Revised
Penal Code) with respect to the deceased Larry Erese and sentences each of them to suffer the
penalty of reclusion perpetua; 

2) As to the victim Romualde Almeron, the court also finds them GUILTY beyond reasonable
doubt of Homicide (Article 249 of the Revised Penal Code) and sentences each of them to the
indeterminate penalty of 12 years of Prision Mayor as minimum to 20 years of Reclusion
Temporal as maximum;

However, they shall be entitled to a deduction of their preventive imprisonment from the term of
their sentences in accordance with Article 29 of the Revised Penal Code, as amended by R.A.
No. 6127.
 3) To pay jointly the heirs of Larry Erese the amount of P50,000.00 as civil indemnity, P25,000 as
exemplary damages, P18,000 as actual expenses and P5,000 as temperate damages; and the
heirs of Mr. Almeron: P50,000 as civil indemnity, P25,000 as exemplary damages, P38,000.00 as
actual expenses and P5,000.00 as temperate damages.

With costs against them.

However, with respect to accused Boyet Ginyang, the court ACQUITS him of the offense charged
since the prosecution had failed to overcome, with the required quantum of evidence, the
constitutional presumption of innocence. Consequently, the Chief of the BJMP, Cabarroguis,
Quirino, is hereby ordered to immediately release him from confinement unless being held for
some other lawful cause; and to make a report hereon within three (3) days from receipt hereof. 69

On 1 August 2003, the appellants filed a Notice of Appeal 70 raising questions of law and facts.

On 7 June 2004, the Court initially resolved to accept the appeal, docketed as G.R. No. 159843, 71 and
required the appellants to file their Brief.72

However, on 5 October 2005, we resolved to transfer the case to the Court of Appeals in view of our
ruling in People v. Mateo.73 The case was then docketed as CA-G.R. CR-HC No. 01940.

On 29 December 2006, the Court of Appeals rendered its decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the July 24, 2003 Decision of the Regional Trial Court of
Maddela, Quirino, Branch 38, in Civil Case No. 39-18, is hereby MODIFIED only in that, in
addition to the award already given by the trial court, in consonance with current jurisprudence,
the heirs of ERESE are also entitled to moral damages of P50,000 and in addition to the award
already given by the trial court, the heirs of ALMERON are also entitled to moral damages
of P50,000.00.

Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as amended by
A.M. No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004,
this judgment of the Court of Appeals may be appealed to the Supreme Court by notice of appeal
filed with the Clerk of Court of the Court of Appeals. 74

From the Court of Appeals, the case was then elevated to this Court for automatic review. In a
Resolution75 dated 5 September 2007, we required the parties to file their respective supplemental briefs,
if they so desired, within 30 days from notice.

In a Manifestation76 filed on 30 October 2007, the People informed the Court that it will no longer file a
supplemental brief, as the arguments raised by appellants had already been discussed in the brief 77 filed
before the Court of Appeals.

Appellants, on the other hand, filed their supplemental brief on 28 November 2007.

As a final plea for their innocence, appellants ask this Court to consider the following assignment of
errors:

I.

IN GIVING COMPLETE CREDENCE TO THE TESTIMONY OF THE PRINCIPAL WITNESS OF

THE PROSECUTION DESPITE THE PRESENCE OF FACTS TAINTING THE CREDIBILITY OF
THE WITNESS.
 II.

IN DISREGARDING THE DEFENSE OF THE APPELLANTS, WHICH WAS CORROBORATED

BY THE FINDINGS OF THE FORENSIC CHEMIST.

III.

IN FAILING TO MAKE A DIRECT RULING ON THE MOTION OF THE ACCUSED TO QUASH

THE INFORMATION ON THE GROUND THAT THE ARREST OF THE ACCUSED WITHOUT A
WARRANT OF ARREST IS ILLEGAL AS THERE WAS NO PERSONAL KNOWLEDGE OF THE
ARRESTING OFFICERS REGARDING THE COMMISSION OF THE CRIME.

To state differently, appellants argue that their guilt was not proven beyond reasonable doubt in view of
the trial court’s error in the appreciation of the evidence for and against them. They fault the trial court’s
over-reliance on the testimony of the prosecution’s main witness and its failure to consider the glaring
inconsistencies in Cherry Rose’s previous accounts of the shooting incident.

The appeal lacks merit.

Appellants insist that Cherry Rose is not a credible witness in view of the conflicting answers she gave in
her sworn statement before the police,78 in the preliminary investigation of the case and in her testimony
in open court. They contend that the trial court failed to scrutinize the entirety of the statements made by
Cherry Rose vis-à-vis the shooting incident.

Appellants called attention to the fact that during the preliminary investigation of the case, Cherry Rose
stated that a man wearing a white Giordano T-shirt shot Larry after Larry handed his
wristwatch.79 Thereafter, when Cherry Rose was asked whom she saw wearing a white Giordano T-shirt,
she pointed to Boy Guinhicna.80 With respect to appellant Robert Buduhan, Cherry Rose identified him as
the one who shot Orlando Pascua.81

In the testimony of Cherry Rose in open court, however, she identified appellant Robert as the man who
was wearing a white Giordano T-shirt and who shot Larry Erese. 82

Also, in Cherry Rose’s sworn statement before the police, she narrated that the group of the appellants,
consisting of five persons, was already inside the RML Canteen before the shooting incident
occured.83 However, in her direct examination, Cherry Rose stated that appellant Robert had only three
other companions.84

Finally, in the preliminary investigation, appellants pointed out that Cherry Rose unhesitatingly admitted
that Larry Erese was her intimate boyfriend and that was why she embraced him after the latter was
shot.85

In her cross-examination, however, Cherry Rose stated that Larry was only a customer and not her
boyfriend.86 When questioned about her prior statement about this fact given during the preliminary
investigation, Cherry Rose changed her answer and said that Larry was indeed her boyfriend. 87

Taking all these circumstances into account, appellants argue that, judging from the conflicting
statements of Cherry Rose, the identification of the accused is highly doubtful.

We are not persuaded.

As between statements made during the preliminary investigation of the case and the testimony of a
witness in open court, the latter deserves more credence. Preliminary investigations are commonly fairly
summary or truncated in nature, being designed simply for the determination, not of guilt beyond
reasonable doubt, but of probable cause prior to the filing of an information in court. It is the statements of
a witness in open court which deserve careful consideration. 88

In any event, Section 13, Rule 132 of the Revised Rules on Evidence, on the matter of inconsistent
statements by a witness, is revealing:

Section 13. How witness impeached by evidence of inconsistent statements. —  Before a witness

can be impeached by evidence that he has made at other times statements inconsistent with his
present testimony, the statements must be related to him, with the circumstances of the times
and places and the persons present, and he must be asked whether he made such statements,
and if so, allowed to explain them. If the statements be in writing they must be shown to the
witness before any question is put to him concerning them.

The rule that requires a sufficient foundation to be first laid before introducing evidence of inconsistent
statements of a witness is founded upon common sense and is essential to protect the character of a
witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements
referred to and to show that they were made by mistake, or that there was no discrepancy between them
and his testimony.89

In the present case, the statements made by Cherry Rose during the preliminary investigation with
respect to the identities of the accused were not related to her during the trial. Indeed, it is only during the
appeal of this case that appellants pointed out the supposed inconsistencies in Cherry Rose’s
identification of the appellants in order to destroy her credibility as a witness. No opportunity was ever
afforded her to provide an explanation. Without such explanation, whether plausible or not, we are left
with no basis to evaluate and assess her credibility, on the rationale that it is only when no reasonable
explanation is given by a witness in reconciling her conflicting declarations that she should be deemed
impeached.90

In this regard, what the defense brought to Cherry Rose’s attention during the trial were her contradictory
statements about her romantic relationship with Larry Erese. As a result of this confrontation, Cherry
Rose changed her answer. We rule, however, that this inconsistency relates only to an insignificant
aspect of the case and does not involve a material fact in dispute.

Inasmuch as the above-stated mandatory procedural requirements were not complied with, the credibility
of Cherry Rose as a witness stands unimpeached. As found by the trial court, the testimony of Cherry
Rose was straightforward throughout. The appellants were not able to adduce any reason or motive for
her to bear false witness against them. As a matter of fact, Cherry Rose testified during cross-
examination that she did not personally know appellant Robert, and that she had first seen him only
during the night when the shooting incident took place. 91

As the trial judge who penned the assailed decision did not hear the testimonies of the witnesses for the
prosecution,92 the rule granting finality to the factual findings of trial courts does not find applicability to the
instant case.93

After a careful review of the entire records of this case, the Court finds no reason to disagree with the
factual findings of the trial court that all the elements of the crime of Robbery with Homicide were present
and proved in this case.

Robbery with Homicide is penalized under Article 294, paragraph 1 of the Revised Penal Code, 94 which
provides:

Art. 294. Robbery with violence against or intimidation of persons-Penalties. – Any person guilty
of robbery with the use of violence against or intimidation of 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.

To warrant conviction for the crime of robbery with homicide, one that is primarily classified as a crime
against property and not against persons, the prosecution has to firmly establish the following elements:
(1) the taking of personal property with the use of violence or intimidation against the person; (2) the
property thus taken belongs to another; (3) the taking is characterized by intent to gain or animus
lucrandi; and (4) on the occasion of the robbery or by reason thereof, the crime of homicide, which is
therein used in a generic sense, is committed.95

In Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before,
during or after the robbery. It is immaterial that death would supervene by mere accident, or that the
victim of homicide is other than the victim of robbery, or that two or more persons are killed. Once a
homicide is committed by reason or on the occasion of the robbery, the felony committed is the special
complex crime of Robbery with Homicide.96

The original design must have been robbery; and the homicide, even if it precedes or is subsequent to the
robbery, must have a direct relation to, or must be perpetrated with a view to consummate, the robbery.
The taking of the property should not be merely an afterthought, which arose subsequently to the killing. 97

With respect to the elements of the crime, the following excerpts from the direct testimony of Cherry Rose
clearly illustrates the same, viz:

PROVINCIAL PROSECUTOR FERDINAND D. ORIAS –

Q:     At that night of July 24, 1998 at around 10:40 in the evening, what were you doing at RML
Canteen?

A:     I was entertaining a costumer sir. (nakatable)

xxxx

Q:     Who was that person who requested you to entertain him?

A:     Larry Erese sir.

Q:     Do you recall if this Larry Erese have a companions (sic) that time?

A:     Yes, sir.

Q:     Name them?

A:     Abe at Nanding sir.

Q:     That night while you were entertaining them, this three (3) what transpired next?

A:     An Ifugao approached us sir and he poke a gun at Larry Erese sir.

Q:     And what did Larry Erese do when a gun was poke at him?

A:     He gave his wrist watch sir.

Q:     To whom did Larry Erese gave his wrist watch?

A:     To the Ifugao who poke a gun at him sir.

x x x x 

Q:     Will you please go around and see if he is inside the courtroom and point at him?

A:     The witness is pointing to a man [seated] at the back bench of the court and when asked
about his name he answered Robert Buduhan.

xxxx

Q:     What was the attire of Robert Buduhan at that time?

A:     White T-shirt sir.

Q:     Can you name or can you recall any particular description of that T-shirt worn by Robert
Buduhan at that time?

xxxx

A:     It was marked with Giordano sir.

xxxx

Q:     When Robert Buduhan approached Larry Erese and Larry Erese gave his wrist watch, do
you recall if Robert Buduhan have a companions (sic) at that time?

A:     There was sir.

Q:     How many of them?

A:     Four (4) sir.

xxxx

Q:     Where are these companions of Robert Buduhan at the time Robert Buduhan poke a gun at
Larry Erese?

A:     The other one was there to my Manager [Romualde] Eddie Almeron sir.

Q:     What was the attire of this person who approached Eddie Almeron, your Manager?

A:     He was in blue sir.

xxxx

Q:     He wore blue T-shirt?

A:     Yes, sir.
xxxx

Q:     What about the other two (2) companions of Robert Buduhan where are they?

A:     They were inside sir.

Q:     The first of the two (2) what is the attire?

A:     Color red sir.

Q:     What about the last one?

A:     He was in blue T-shirt and with black jacket sir.

xxxx

Q:     The person in red T-shirt whom you claim the companion of Robert Buduhan, can you
identify him?

A:     Yes, sir.

xxxx

Q:     Stand and point at him?

A:     Witness pointed one of the accused sitting infront and when asked about his name he
answered Rudy Buduhan.

xxxx

Q:     You mention about a person wearing blue T-shirt who approached your Manager Eddie
Almeron. What did he do first before he approached your Manager if [any]?

A:     He poke a gun at our Manager sir.

Q:     What did he tell to you (sic) Manager if any while poking a gun?

A:     Holdup sir.

Q:     Are they simultaneous in approaching Larry Erese and Eddie Almeron, this person in blue
T-shirt and the accused Robert Buduhan?

A:     No, sir. Robert Buduhan approached first.

Q:     And then the person in blue T-shirt likewise approached Eddie Almeron?

A:     Yes, sir.

xxxx
Q:     What transpired first before Larry Erese gave his wrist watch. The announcement of holdup
or the giving of his wrist watch?

A:     The announcement of the holdup comes first sir.

Q:     When Larry Erese gave his watch to Robert Buduhan with Robert Buduhan poking a gun at
Larry Erese, what transpired next?

A:     They fired sir.

Q:     Who fired?

A:     All of them sir.

xxxx

Q:     You mentioned a while ago that Robert Buduhan poke a gun at Larry Erese?

A:     Yes, sir.

Q:     Do you know the caliber of the gun?

A:     It looks like a 38 but it is long sir.

Q:     You likewise mention that the person in blue T-shirt poke a gun at Eddie Almeron?

A:     Yes, sir.

Q:     What about the person in red?

A:     It looks like an armalite sir.

Q:     What about the person in blue T-shirt with black jacket?

A:     Armalite sir. 

Q:     When Rudy Buduhan fired his gun was there any person who was hit?

A:     There was sir.

Q:     Name that person?

A:     Larry Erese sir.

Q:     When the person in blue T-shirt who was poking a gun at Eddie Almeron fired his gun was
there any person who was hit?

A:     There was sir.

Q:     Who was that person who was hit?

 A:     Eddie Almeron sir.

xxxx

Q:     How far is Robert Buduhan from Larry Erese when Robert Buduhan fired his gun?

A:     He was arms like sir.

Q:     You mention also about a person in blue T-shirt fired a gun at Eddie Almeron. How far was
he from Eddie Almeron when he fired his gun?

A:     The witness pointed to a place in the courtroom.

xxxx

COURT –

About 2 to 3 meters?

PROVINCIAL PROSECUTOR FERDINAND D. ORIAS –

Yes, 2 to 3 meters.

xxxx

Q:     Do you know what happened to Larry Erese?

A:     Yes, sir.

Q:     Where is he now?

A:     He was dead already sir.

Q:     What about Eddie Almeron. Do you know what happened to him?

A:     He was also dead sir.98

Quite obvious from the foregoing testimony is that the act of appellant Robert and his companion in blue
T-shirt of poking their guns towards Larry and Romualde, respectively, and the announcement of a hold-
up were what caused Larry to give his watch to Robert. At this point, there already occurred the taking of
personal property that belonged to another person, which was committed with violence or intimidation
against persons. 

Likewise, the intent to gain may already be presumed in this case. Animus lucrandi or intent to gain is an
internal act, which can be established through the overt acts of the offender. 99 The unlawful act of the
taking of Larry’s watch at gunpoint after the declaration of a hold-up already speaks well enough for itself.
No other intent may be gleaned from the acts of the appellant’s group at that moment other than to divest
Larry of his personal property. 

The appellants acted in conspiracy in perpetrating the crimes charged. As found by the trial court,
conspiracy was proved by the concurrence of the following facts: that the four men were together when
they entered the RML canteen; that they occupied the same table; that they were all armed during that
time; that while the robbery was in progress, neither Rudy nor the one in blue T-shirt with black jacket
prevented the robbery or the killing of the victims; that all four fired their firearms when the robbery was
going on and that they fled all together and were seen running by the police before they were intercepted
just a few meters from the scene of the crime.

There is conspiracy when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. The same degree of proof necessary to prove the crime is required to
support a finding of criminal conspiracy. Direct proof, however, is not essential to show
conspiracy.100 Proof of concerted action before, during and after the crime, which demonstrates their unity
of design and objective is sufficient.101

As the fatal shooting of both Larry Erese and Romualde Almeron happened on the occasion of the
robbery and was subsequent thereto, both of the appellants must be held liable for the crime of Robbery
with Homicide on two counts.

The defense of appellants of alibi is at best weak when faced with the positive identification of the
appellants by the prosecution’s principal witness. It is elemental that for alibi to prosper, the requirements
of time and place must be strictly met. This means that the accused must not only prove his presence at
another place at the time of the commission of the offense but he must also demonstrate that it would be
physically impossible for him to be at the scene of the crime at that time. 102 In the present case, there was
absolutely no claim of any fact that would show that it was well nigh impossible for appellants to be
present at the locus criminis. In fact, they all testified that they were going towards the vicinity of the area
of the shooting incident when the police apprehended them.

The testimonies of Robert Buduhan and Boyet Ginyang were also markedly inconsistent on the material
date as to when the witnesses in the shooting incident identified them. Robert Buduhan testified that the
three lady witnesses came to identify them at the municipal jail on the evening of 26 July
1998.103 However, in the direct examination of Boyet Ginyang, he testified that said witnesses arrived on
the morning of 25 July 1998.104 This fact only tends to lend suspicion to their already weak alibi.

Appellants likewise cannot rely on the negative findings of Police Inspector Chua-Camarao on the paraffin
tests conducted in order to exculpate themselves. The said witness herself promptly stated that paraffin
test results are merely corroborative of the major evidence offered by any party, and they are not
conclusive with respect to the issue of whether or not the subjects did indeed fire a gun. As previously
mentioned, the positive and negative results of the paraffin test can also be influenced by certain factors
affecting the conditions surrounding the use of the firearm, namely: the wearing of gloves by the subject,
perspiration of the hands, wind direction, wind velocity, humidity, climate conditions, the length of the
barrel of the firearm or the open or closed trigger guard of the firearm.

Lastly, the persistent claim of appellants of the illegality of their warrantless arrest, due to the lack of
personal knowledge on the part of the arresting officers, deserves scant consideration. As aptly stated
in People v. Salazar,105 granting arguendothat appellants were illegally arrested, such arrest did not invest
these eyewitness accounts with constitutional infirmity as "fruits of the poisonous tree." Considering that
their conviction could be secured on the strength of the testimonial evidence given in open court, which
are not inadmissible in evidence, the court finds no reason to further belabor the matter.

A determination of the appropriate imposable penalties is now in order. 

The prescribed penalty for Robbery with Homicide under Article 294 of the Revised Penal Code, as
amended, is reclusion perpetua to death. In accordance with Article 63 of the Revised Penal Code, when
the law prescribes a penalty composed of two indivisible penalties, and there are neither mitigating nor
aggravating circumstances, the lesser penalty shall be applied. 

The RTC and the Court of Appeals thus correctly imposed the penalty of reclusion perpetua.
As regards the charge for the death of Orlando Pascua and the injuries sustained by Fernando Pera and
Gilbert Cortez, the trial court aptly held that the prosecution failed to substantiate the same. No witnesses
were presented to testify as to the circumstances leading to the said incidents, and neither were they
proved to be caused by the criminal actions of the appellants. 

The two courts below committed a mistake, however, in convicting the appellants separately of the crime
of Homicide for the death of Romualde Almeron. It bears stressing that in the special complex crime of
Robbery with Homicide, so long as the intention of the felon is to rob, the killing may occur before, during
or after the robbery. It is immaterial that death would supervene by mere accident, or that the victim of
homicide is other than the victim of robbery, or that two or more persons are killed. Once a homicide is
committed by reason or on the occasion of the robbery, the felony committed is the special complex crime
of Robbery with Homicide.106

As to the award of damages, we hold that the heirs of Larry Erese and Romualde Almeron are each
entitled to the amount of P50,000.00 as civil indemnity ex delicto. This award for civil indemnity is
mandatory and is granted to the heirs of the victim without need of proof other than the commission of the
crime. 107

We agree with the Court of Appeals’ grant of moral damages in this case even in the absence of proof for
the entitlement to the same. As borne out by human nature and experience, a violent death invariably and
necessarily brings about emotional pain and anguish on the part of the victim’s family. It is inherently
human to suffer sorrow, torment, pain and anger when a loved one becomes the victim of a violent or
brutal killing.108 The heirs of Erese and Almeron are thus entitled to moral damages in the amount
of P50,000.00 each.

On the award of actual damages, we hold that the heirs of Larry Erese are entitled to the award of
temperate damages for P25,000.00, in lieu of the lower amount of P18,000 that was substantiated by a
receipt. In People v. Villanueva,109 we have laid down the rule that when actual damages proven by
receipts during the trial amount to less than P25,000.00, the award of temperate damages for P25,000.00
is justified in lieu of actual damages of a lesser amount. Conversely, if the amount of actual damages
proven exceeds P25,000.00, then temperate damages may no longer be awarded. Actual damages
based on the receipts presented during trial should instead be granted.

However, with respect to the award of the amount of P38,000.00 to the heirs of Romualde Almeron, the
same is incorrect since the receipt presented therefor covers only the amount of P26,000.00. The award
of actual damages should be reduced accordingly. The grant of temperate damages to the heirs of
Almeron is thus deleted.

The award of exemplary damages is likewise deleted, as the presence of any aggravating circumstance
was neither alleged nor proved in this case.110

WHEREFORE, premises considered, the decision dated 29 December 2006 of the Court of Appeals in
CA-G.R. CR-HC No. 01940 is hereby MODIFIED as follows:

1. For the death of Larry Erese, appellants Robert Buduhan y Bullan and Rudy Buduhan y Bullan
are found GUILTYbeyond reasonable doubt of Robbery with Homicide and sentenced each to
suffer the penalty of reclusion perpetua.

2. For the death of Romualde Almeron, appellants Robert Buduhan y Bullan and Rudy Buduhan y
Bullan are found GUILTY beyond reasonable doubt of Robbery with Homicide and sentenced
each to suffer the penalty of reclusion perpetua.
 3. Appellants shall be entitled to a deduction of their preventive imprisonment from the term of
their sentences in accordance with Article 29 of the Revised Penal Code, as amended by
Republic Act No. 6127.

4. Appellants are ordered to indemnify jointly and severally the heirs of Larry Erese as follows:
(a) P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages; and (c) P25,000.00 as
temperate damages.

5. Appellants are ordered to indemnify jointly and severally the heirs of Romualde Almeron as
follows: (a) P50,000.00 as civil indemnity; (b) P50,000.00 as moral damages; and (c) P26,000.00
as actual damages.

6. For reasons herein stated, appellants are ACQUITTED of the separate crime of Homicide for
the death of Romualde Almeron.

No costs.

SO ORDERED.