G.R. No.

137520-22 May 9, 2002

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ALFREDO BAROY and FELICISIMO NACIONAL, appellant.

PANGANIBAN, J.:

Where no aggravating circumstance is alleged in the information and proven during the trial, the
crime of rape through the use of a deadly weapon may be penalized only with reclusion perpetua,
not death.

The Case

Before us for automatic review is the January 20, 1999 Decision1 of the Regional Trial Court of
Parañaque City (Branch 259) in Criminal Case Nos. 98-355/7, finding Alfredo Baroy and Felicisimo
Nacional guilty beyond reasonable doubt of three (3) counts of qualified rape and sentencing them to
death for each offense. The dispositive portion of the assailed Decision reads as follows:

"WHEREFORE, PREMISES CONSIDERED, this Court finds accused Alfredo Baroy and
Felicisimo Nacional GUILTY beyond reasonable doubt [of] the crime of rape (three counts) in
Crim. Case Nos. 98-355/7 as defined and penalized under Republic Act. 8353 Art. 266-A
and Art. 266 B through the use of force[,] threat or intimidation with a deadly weapon upon
the person of Emeliza Bueno with the aggravating circumstances of nightime and
confederation and there being no mitigating circumstances, both accused are hereby
sentenced [for] each count of rape (three counts) the penalty of DEATH by lethal injection
and to suffer the accessory penalties provided by law specifically Art. 40 of the RPC. For the
civil liability each accused is hereby further condemned to indemnify the private complainant
the amount of P50,000.00 in each of the three counts of rape in line with existing
jurisprudence; P50,000.00 each for three counts for moral damages and P50,000.00 each
for exemplary damages for each count."2

With the assistance of their counsel de oficio,3 appellants pleaded not guilty during their arraignment
on April 16, 1998.4 In three (3) separate identically worded Informations,5 they were accused of
sexually assaulting Emeliza Bueno allegedly as follows:

"That on or about the 2nd day of March[,] 1998 in the Municipality of Paranaque, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court[,] the above-named
accused ALFREDO GORRE BAROY, conspiring and confederating with accused
FELICISIMO HAMTIG NACIONAL, by means of force and intimidation, with the use of a
chisel, did then and there willfully, unlawfully and feloniously have carnal knowledge of one
Emeliza Bueno, against her will and consent."6

The Facts

Version of the Prosecution

The prosecution's version of the factual antecedents of the case are presented by the Office of the
Solicitor General (OSG) as follows:
 "Sometime on March 2, 1998 at around 2:30 in the morning, Emeliza Bueno, a guest
relations officer of Ringo Japanese Karaoke Bar in Pasay Road, Makati, left the place of her
work and proceeded to her home in Camella, Parañaque. While on board a tricycle along
U.N. St., Better Living Subd., two armed men who later on were identified as appellants
Alfredo Baroy and Felicisimo Nacional blocked the path being traversed by the tricycle.
Then, they asked money from the driver and pulled Emeliza out from the tricycle.

"The tricycle driver however was able to escape but appellants succeeded in taking Emeliza
to a vacant lot. There, Emeliza begged for mercy but her pleas fell on deaf ears. She
struggled to get loose but appellants overpowered her. Baroy took off her pants and
underwear and pointing a chisel towards the victim succeeded in having carnal knowledge
with her while Nacional served as a lookout.

"After Baroy finished raping Emeliza, Nacional took turn in raping her. Afterwards, Nacional
left leaving behind Baroy who raped Emeliza x x x for the second time. 1âwphi1.nêt

"The tricycle driver Alfredo Vinuya who was able to escape proceeded to the guardhouse of
Better Living Subd. at 1618 Levitown and informed the guards of the incident. Vinuya was
able to convince the security guards to accompany him to the place of the incident to look for
the victim. When they searched the place, one of the security guards noticed that someone
went out of the bushes and there, they saw the victim Emeliza and appellant Baroy. The
guards apprehended Baroy while Vinuya boarded the victim to his tricycle. Baroy was taken
to the Barangay Hall and thereafter to the police station where the police learned from him
the place where Felicisimo Nacional could be arrested."7 (Citations omitted)

Version of the Defense

On the other hand, appellants give the following account:

"On the part of accused Felicisimo Nacional, it appeared that he was working as a stay-in
driver of a certain Mr. Vicente Saldana with residence at Betterliving Subdivision. On the
early morning of March 1, 1998, he delivered some garments at Taytay, Rizal and went back
after lunch. At around 1:30 p.m., he drove for Mr. Saldana, who went to several factories and
they returned home at around 10:00 o' clock in the evening. At around 11:00 p.m., he again
drove for Mr. Saldana, who went to his friend in Merville. On the same night, he had a
drinking spree with Alfredo Baroy at a Videoke Bar. He left earlier, since he had work the
next day. He rode in a tricycle to his employer's house, however, when he arrived the door
was already closed. He went to the guard house in order to sleep there. He was awaken(ed)
when someone kicked the folding bed in which he was sleeping and he was arrested by the
police. He was being accused of committing rape. He denied the charge and stated that the
only time he saw the victim was in the courtroom.

"On the part of accused Afredo Baroy, it appeared that he was working for a certain Atty.
Galicia as caretaker of his chickens. He met the accused Nacional, when the latter went to
their barracks and asked him if he wants to work as a delivery boy. On March 1, 1998 at
around 10:00 p.., they had a drinking spree (in) a store at Singapore Street. Nacional invited
him to a nearby farm in order for a drink, however it was already closed, so they went back to
his barracks. While they were walking at around 11:00 p.m. they passed by a videoke and
they had a drinking and singing session. They rode a tricycle and disembarked at U.N.
Avenue where he slept in a nearby store which was already closed. Nacional left and
blocked a passing tricycle. Nacional asked him to guard the driver and the former pulled
down the woman passenger after which he took her to a vacant lot. While Nacional was
 pulling the woman towards the vacant lot, Baroy returned to the store. He heard the woman
crying and asking for help, so he went to the place and saw the woman lying down with her
pants pulled down. Nacional had already left. He helped the woman to put on her pants and
asked her what happened, but she could not speak. He accompanied the woman in waiting
for a tricycle in order to take her home. The first tricycle which passed by did not stopped
[sic]. The second one stopped and turned out to be the tricycle earlier blocked by Nacional.
The said tricycle was loaded with barangay tanods, who thinking that he will escape, started
to beat him and apprehended him."8

Ruling of the Trial Court

The RTC gave full credence to the positive and unequivocal testimony of complainant that
appellants had taken turns in raping her. Corroborating her testimony was the tricycle driver, who
said that appellants had forcibly taken her from his vehicle after holding him up. The RTC found the
denial by appellants, who had given conflicting statements regarding their participation in the crime,
"totally bereft of merit, self-serving and not deserving of any credibility." 9

Hence, this automatic review.10

The Issues

In their Brief, appellants submit the following assignment of errors for our consideration:

"I

The court a quo gravely erred in finding the accused-appellants guilty beyond reasonable
doubt of three (3) counts of rape.

"II

The court a quo gravely erred in considering the existence of nightime and confederation as
aggravating circumstances.

"III

The court a quo gravely erred in not appreciating the privilege mitigating circumstance of
minority in favor of accused-appellant Alfredo Baroy."11

The Court's Ruling

The appeal is partly meritorious; the penalty should be reduced to reclusion perpetua.

Main Issue:

Sufficiency of the Prosecution's Evidence

Appellants assert that the evidence presented by the prosecution was insufficient to establish their
guilt beyond reasonable doubt. They point to some alleged flaws and inconsistencies in the
testimonies of the prosecution witnesses, particularly with respect to the exact location of the scene
of the crime and the recovery of the chisel used in its commission. According to them, highly doubtful
is the claim of the victim that she was raped on a vacant lot about 10 "arms length" away from the
place where the tricycle was blocked, because neither the victim nor any of the accused was
supposedly found in that place when the tricycle driver and the security guards returned there.

Likewise, appellants harp on the supposed contradictory statements of the prosecution witnesses
with regard to where the chisel was actually recovered. They argue that these inconsistencies and
contradictions render the prosecution evidence unreliable and insufficient to warrant a conviction.

We are not persuaded. We have carefully scrutinized the records of the case. Contrary to the
assertion of appellants, the prosecution was able to establish clearly their acts of rape as well as
their participation in its commission. The alleged inconsistencies on matters relating to where exactly
the rapes were committed and where the chisel was recovered are minor details that do not form
part of the elements of the crime charged. By no means can we disturb the findings and conclusions
of the trial court on the basis of these contentions which do not in any way contradict or, at the very
least, cast serious doubt on the rape charge.

Whether the rapes were committed within the vicinity where the tricycle was stopped or at a
considerable distance therefrom is of no moment in proving the existence of the crime. Likewise,
regardless of whether the chisel was recovered from the crime scene or from Appellant Baroy does
not obscure, much less contravene, the unequivocal and undeniable fact that appellants had carnal
knowledge of the victim against her will by means of force and intimidation.

Inconsistencies in minor details and collateral matters do not affect the weight, the substance or the
veracity of a witness' testimony as a whole12 with respect to material and important facts.13 Such
inconsistencies even serve to strengthen rather than destroy one's credibility.14

Verily, to be crucial to or determinative of the culpability of the accused, the discrepancies should
touch on significant facts.15 As long as there is consistency in the positive identification of the
accused and in the narration of the principal occurrence, the credibility of a witness is not
impaired.16 And the testimony of the rape victim deserves full faith and credit provided it is plain,
straightforward, to the point, and unflawed by any material or significant inconsistency. 17

To be sure, the victim narrated the libidinous transgressions committed against her by appellants,
her sordid experience of violence and sexual abuse in their hands, as follows:

"Q Upon going home to Camella, do you recall of any incident that happened? In the
morning of March 2?

A Yes, sir. Noong papauwi na po ako, hinarang po 'yong tricycle na sinasakyan ko.

Q Where?

A At UN Avenue.

Q Do you recall who blocked the tricycle you were riding in at that time?

A Yes, sir.

Q Please look around the courtroom and point to this Honorable Court the persons who
blocked the tricycle you were riding in?

A The two of them, sir.

 (WITNESS POINTED TO TWO MALE PERSONS INSIDE THE COURTROOM WHO
WHEN ASKED THEIR NAMES ANSWERED AS ALFREDO BAROY AND
FELICISIMO NACIONAL)

Q You said they blocked the tricycle you were riding in, how did they block it?

A Pinara nila ang tricicle na sinasakyan ko.

Q After that, what happened?

A Hinold-up po nila 'yong tricycle driver. Hiningi po 'yong pera tapos tinatanong po nila
kung ano 'yong pasahero. Nang makita po nilang babae, sabi nila ibaba daw po dahil
papatayin nila ang driver at ibababa nila ang sakay na babae.

Q Were they bringing anything with them at that time?

A The small one had a chisel and Nacional had a stone.

ATTY. MACASAET:

Your Honor, since the evidence custodian is not around, may we reserve the identification
and marking of the chisel. What did they tell you when they blocked the tricycle driver?

A Hinohold-up po nila ang tricycle driver, hinihingi nila ang pera.

Q Did the tricycle driver give the money?

A Yes, sir.

Q After that, what happened next?

A Tapos po nang makita nila na ang pasahero ng tricycle driver ay babae, pinababa po
nila ako.

Q Paano ka nila pinababa?

A They pulled me down.

Q Do you know who pulled you down?

A Nacional, sir.

Q After he pulled you [down], what did he do?

A The tricycle driver was able to run and I was left behind and they brought me to the
vacant lot.

Q How did they bring you to the vacant lot?

A Hinila po nila ako, hawak-hawak po ang magkabila kong braso.

Q While they were pulling you, were you saying anything to them?

A Yes, sir.

Q What?

A Nagmamakaawa po ako sa kanila.

Q What exactly did you tell them?

A Sabi ko po huwag po nila akong galawin dahil binigay ko na po lahat ng pera ko, lahat
ng gamit ko pero hindi po nila ako pinakinggan.

Q When you were at the vacant lot, what happened next?

A Nagmamakaawa po ako sa kanila pero hindi nila ako pinakinggan tapos ni-rape na po
nila ako.

Q Paano nila isinagawa ang pangre-rape sa iyo?

A Hinubaran po ako ng damit.

Q Who undressed you?

A Baroy, the small one?

Q What was done to you after you were undressed?

A Ginahasa na po ako.

Q While you were being raped by them, did you struggle?

A Opo pero lalaki po sila at malakas kaya wala po akong nagawa.

Q While you were being raped by Baroy, where was the other one?

A Nakabantay po sa paligid, nagmamasid po na baka po may dumating.

Q You said they had with them chisel and stone, while you were being raped, were they
still bringing those items?

A Yes, sir.

Q Sino ang mga may hawak n'on?

A Baroy was holding the chisel and Nacional was holding the stone.

Q What happened next after Baroy raped you?

 A Nacional followed, he also raped me.

Q How did he rape you?

A Pinuwersa po nila ako.

Q How did they force you?

A They held my hands and then the two of them raped me.

Q While you were being raped, were you telling them something?

A Nagmamakaawa po ako sa kanila pero wala po silang naririnig, nagbibingi-bingihan po

sila.

Q What happened next, after you were raped by Nacional?

A Umalis po si Nacional, naiwan po 'yong maliit, hinihilahila po ako dahil dadalhin daw po
ako sa manukan at doon ako yayariin.

Q When you heard the word 'yayariin', what do you understand by that, 'yayariin ka sa
manukan?'

A I will be killed."18

As can be gleaned from the foregoing testimony, the victim rendered a clear, coherent and
consistent account of the rape incidents and positively identified appellants as the perpetrators.
Indeed, she could not have been motivated by any persuasion other than to prosecute the real
culprits who had violated her. As a rule, a rape victim will not come out in the open if her motive is
not to seek redress and obtain justice.19 Neither would she allow herself to suffer the social scourge
and the psychological stigma of rape if her testimony as to the identities of the perpetrators are false
or fabricated. It is an accepted doctrine that in the absence of improper motive on the part of the
victim of rape to falsely testify against the accused, her testimony deserves utmost credence. 20

On the other hand, appellants present divergent accounts that only reflect the feigned and perfidious
nature of their testimonies. Appellant Nacional denies having had any knowledge of the
circumstances leading to the rape incidents; Appellant Baroy, however, readily admits their
participation therein, pointing to his co-appellant as the one who had raped the victim as follows:

"Q S[o] bale kayong dalawa ni Nacional, naglalakad doon sa United Nations Avenue?

A Opo.

Q Pagkatapos hinarang ninyo iyong tricycle, na ang hawak mo ay paet?

A Opo.

Q Ang hawak naman ni Nacional ay bato?

A Opo.
Q Tapos hiningi ninyo iyong pera?

A Opo.

xxx xxx xxx

Q So hinarang n'yo nga iyong tricycle at pinalalabas n'yo iyong pera ng tricycle driver di
ba?

A Opo.

Q At dahil walang maibigay na pera iyong driver, inundayan n'yo ng saksak iyong driver,
di ba?

A Hindi po. Sinilip ni Nacional iyong laman ng sidecar. Pinabantayan naman niya sa akin
iyong driver.

Q At nakita niya iyong babae?

A Opo.

Q At pinilit n'yong pinababa iyong babae?

A Opo. Tapos iyong babae, humawak siya doon sa sidecar. Tapos hinila niya.

Q Ayaw sumama ng babae, pero pinipilit n'yo naman siyang pababain. Kundi popukpokin
ng bato, ganun' ba?

A Hindi ho. Hinila lang niya.

Q Pero kitang-kita mo sa mukha ng babae na takot na takot?

A Opo.

Q At walang nagawa iyong babae kundi sumama na dahil sa takot, ganu'n ba?

A Opo.

Q At dinala na ninyo sa may bakanteng lote, kayong dalawa?

A Si Nacional po ang nagdala.

Q Hindi ba't ikaw ang nagdala sa kanya roon?

A Hindi po, dinala po siya ni Nacional.

Q Hindi ba't ikaw ang gumamit doon sa babae dahil nakatutuk iyong paet sa kanya?

A Hindi po. Wala pong nakatutok sa kanya.

 Q Hindi ba ginamit mo rin iyong babae ng dalawang ulit?

A Hindi po nandun' lang po ako sa tindahan.

Q Hindi po.

A Nakailang beses si Nacional gamitin iyong babae, na puwersahin iyong babae?

Q Isang beses lang po.

A Paano mo nalaman na isang beses lang daw?

Q Kasi iyon po ang sinabi nya sa akin."21

The denials resorted to by appellants are not supported by clear and convincing
evidence.22 Moreover, their discordant and irreconcilable testimonies only indicate a tendency to
prevaricate and a desperate attempt to distort an otherwise unequivocal factual scenario established
by the prosecution. Bare denials by the accused, unsubstantiated by convincing evidence, are not
enough to engender reasonable doubt in the light of sufficiently telling proof of guilt presented by the
prosecution.23 When the latter's evidence convincing connects the crime and the culprit, the
probative value of denial becomes quite negligible.24

It is well-settled that denial, if unsubstantiated by clear and convincing evidence, is a negative self-
serving assertion that deserves no weight in law.25 Between the positive assertions of the
prosecution witnesses and the negative averments of the accused, the former indisputably deserve
more credence and are entitled to greater evidentiary weight.26 Thus, the categorical statements of
the prosecution witnesses must perforce prevail over the bare denials of appellants. 27

Indeed, the Court will not interfere with the judgment of the trial court in passing upon the credibility
of the witnesses or the veracity of their testimonies unless a material fact or circumstance has been
overlooked which, if considered, would affect the outcome of the case. 28

Second and Third Issues:

Qualifying and Aggravating Circumstances

The trial court found appellants guilty of three (3) counts of qualified rape – with the use of a deadly
weapon as the qualifying circumstance – the prescribed penalty for which is reclusion perpetua to
death. In imposing the maximum penalty of death, it considered the aggravating circumstances of
nighttime and confederation. Now appellants question the appreciation of these circumstances and
argue that the imposition of the death penalty was erroneous and unjustified. We agree.

It is worthy to note that confederation is not enumerated as an aggravating circumstance under

Article 14 of the Revised Penal Code. Like conspiracy which must be alleged in and not merely
inferred from the information, confederation is but a mode of incurring criminal liability and may not
be considered criminal in itself unless specifically provided by law.29 Nether may confederation be
treated as an aggravating circumstance in the absence of any law defining or classifying it as
such.30 Thus, the trial court erred in appreciating it for the purpose of imposing the maximum penalty.

On the other hand, nighttime is considered an aggravating circumstance only when it is deliberately
sought to prevent the accused from being recognized or to ensure their escape. There must be proof
that this was intentionally sought to ensure the commission of the crime, and that appellants took
advantage of it. In the instant case, there is paucity of evidence that nighttime was purposely and
deliberately sought by appellants.31

The records reveal that they did not utilize the circumstance of nighttime to conceal their identities,
as there was sufficient illumination at the scene of the crime that enabled both the tricycle driver and
the victim to recognize them easily.32 Moreover, the fact that they committed the crime at nighttime
did not at all facilitate it or ensure their escape, considering that they were immediately apprehended
soon after. Clearly then, they did not specifically or purposely seek the cover of darkness, which was
merely incidental, in the advancement of their criminal pursuit.

Nocturnity is not aggravating when, other than the time, there is nothing on record or even in the
testimonies of the witnesses from which it may be inferred that the accused particularly took
advantage of the darkness of the night to facilitate their criminal design. 33 Certainly, the mere fact
that the offense was committed at night will not suffice to sustain a finding of nocturnity. 34

Where rape is alleged and proven to have been committed with a deadly weapon and by two
persons, it is held to be qualified rape (due to the use of such weapon) with the aggravating
circumstance of superior strength (there being two rapists acting in concert).35 However, like
nighttime and confederation, the use of superior strength was not alleged in the Information. Under
the present Rules,36 aggravating circumstances must be alleged; otherwise, they cannot be
appreciated. Being favorable to the accused, this new procedure may be given retroactive effect. 37

Furthermore, the trial court likewise overlooked the mitigating circumstance of intoxication. A perusal
of the records of the case, as well as the testimonies of the witnesses of both the prosecution and
the defense, shows that appellants were indeed intoxicated when they committed the crime. Amidst
the maze of absurdly disjunctive statements they made, the only semblance of consistency was in
their consumption of several bottle of beer prior to the incident.

While Appellant Baroy38 stated in his testimony that they had drunk about eight (8) bottles of beer,
Appellant Nacional39 admitted to having downed seven (7). Moreover, the tricycle driver affirmed this
fact in his testimony when he said that appellants' eyes were flaring when they blocked the path of
the tricycle.40 Indeed, under normal circumstances, a glass of beer is not so intoxicating as to
diminish a man's rational capacity.41 But in this case, the quantity consumed by appellants could
certainly have affected their capacity to realize or contemplate the wrongfulness of their actions. 1âwphi1.nêt

Article 15, paragraph 3 of the Revised Penal Code, explicitly provides as follows:

"The intoxication of the offender shall be taken into consideration as a mitigating

circumstance when the offender has committed a felony in a state of intoxication, if the same
is not habitual or subsequent to the plan to commit said felony; but when the intoxication is
habitual or intentional, it shall be considered as an aggravating circumstance."

Intoxication, according to this article, is mitigating if not habitual or subsequent to the plan to commit
the felony; having been accidental and prior to any criminal resolve, it was more out of impulse or
delusion born of alcohol that the offender committed the crime.42

Drunkenness or intoxication is mitigating if accidental, not habitual or intentional; that is, not
subsequent to the plan to commit the crime.43 To be mitigating, the state of intoxication of the
accused must be proved or established by sufficient evidence.44 But if intoxication is proved, then in
the absence of truth to the contrary, it is presumed to be unintentional or not habitual.45 In People v.
Vega,46 the Court ruled that intoxication was present when the rape was committed, because the
evidence had not established that the drunkenness of the accused was intentional or habitual.

Hence, this mitigating circumstance should be appreciated where the accused committed the felony
in a state of intoxication, and there was no sufficient proof that it was habitual or subsequent to the
plan to commit the felony.47 Furthermore, a finding of this circumstance has the effect of decreasing
the penalty, as long as it meets these twin requiremens.48 This finding buttresses our opinion
that reclusion perpetua, not death, is the proper penalty.

In regard to the minority claimed by Appellant Baroy, an examination of the records of the case
shows that when the presiding judge inquired about his age, he admitted to having been coached by
his mother to lie about it. He testified thus:

"Q Sa iyong mukha, ang tingin ng husgado ay 20 anyos ka nang mahigit. Ano ba talaga
ang totoo sa kapanganakan mo?

A Kasi sabi po sa akin ng nanay ko, pag daw may nagtanong sasabihin ko ang birthday
ko ay January 19.

Q Ano'ng taon iyon?

A Hindi ko po alam.

Q Di ba ang sabi mo ngayong umaga 17 years old ka?

A Opo.

Q Pero doon sa Piskalya sinabi mong 18 years old ka.

A Opo.

Q Bakit ganun' ang sinabi mo doon sa pulis, na 18 years old ka na?

A Kasi ho noong nakakulong na ako, dinalaw ako ng nanay ko. Tapos sabi sa akin ng
nanay ko pag tinanong daw kung ilang taon na ako ay sasabihin kong 17 years old
ako."49 (Italics ours)

Having been obviously fabricated, minority cannot be appreciated as a mitigating circumstance.

Finally, we take note of the observation of the trial court regarding the deviousness and the criminal
propensity of Appellant Baroy, as well as its recommendation as to the appropriate penalty to be
imposed. We quote from its ruling:

"x x x. One final word on accused Baroy, this Court has observed hundred, nay even
thousands of persons suspected or accused of having committed crimes but never has
anyone made an imprint of deviousness as said accused and if for any reason he is able to
escape the claws of death for his pernicious acts, then the court recommends that he be not
given a day of freedom more than what is necessary to make him pay for his crime." 50

WHEREFORE, the appeal is PARTLY GRANTED; the appealed Decision is hereby AFFIRMED,
with the MODIFICATION that the penalty of death to reclusion perpetua for each count of rape. The
civil awards are also AFFIRMED, consistent with prevailing jurisprudence.51 No pronouncement as to
costs.

SO ORDERED.

Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Ynares-Santiago, De
Leon, Jr., Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.