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People vs Francisco Jumawan, et.al.

People vs Francisco Jumawan, et.al. G.R. Nos. 39303-39305 March 17, 1934

Facts:

On the basis of a written statement made by Vicente Recepeda on July 18, 1976, and an affidavit executed by Trinidad Alcantara on July 19, 1976, a complaint for murder was filed in the Municipal Court of Sariaya, Quezon, on July 19, 1976, by Station Commander Sisenando P. Alcantara, Jr. against Francisco Jumawan, Cesario Jumawan, Manuel Jumawan and Presentacion Jumawan for the death of Rodolfo Magnaye.

The lower court finds Cesario Jumawan, Presentacion Jumawan-Magnaye, Manuel Jumawan, and Francisco Jumawan guilty as principals beyond reasonable doubt of the crime of Murder as defined and punished under Art. 248 of the Revised Penal Code and hereby sentences each of them to suffer a penalty of life imprisonment and to indemnify jointly and severally the parents of the victim in the amount of Twenty-four Thousand (P24,000.00) Pesos.

It appears from the evidence adduced during the trial that Rodolfo Magnaye was married on 26 January 1974 to Presentacion Jumawan, one of the accused in the above entitled criminal case. Presentacion Jumawan-Magnaye left the conjugal home and stayed with her sister Sebastiana Jumawan. Rodolfo Magnaye, on the other hand, went and stayed with his mother Trinidad Alcantara.

The mother of Mrs. Presentacion Jumawan-Magnaye made several attempts to secure the signature of Rodolfo Magnaye on a document agreeing to a separation from his wife so that both he and his wife will be free to marry again but Rodolfo Magnaye persisted in refusing to sign said document.

On one occasion the mother of Mrs. Presentacion Jumawan-Magnaye even brought Rodolfo Magnaye and his mother to the Provincial Constabulary Command to ask for the assistance of Sgt. Mortilla to assist her daughter in securing a separation from Rodolfo Magnaye but they were told by Sgt. Mortilla that it cannot be legally done.

Issue:

W/O accused-appellants be liable of the crime of parricide or simply murder?

Held:

Presentacion should have been accused of parricide but as it is, since her relationship to the deceased is not alleged in the information, she, like the others, can be convicted of murder only qualified by abuse of superior strength. Although not alleged in the information, relationship as an aggravating circumstance should be assigned against the appellants. True, relationship is inherent in parricide, but Presentacion stands convicted of murder. And as to the others, the relationships of father- in-law and brother-in-law aggravate the crime. The penalty for murder with an aggravating circumstances is death. However, for lack of necessary votes, the penalty is reduced to

reclusion perpetua. The jugment of the court a quo is hereby affirmed in toto. No costs. So Ordered.

PEOPLE VS. GENOSA

That Marivic Genosa, the Appellant on the 15November1995, attacked and wounded his husband, which ultimately led to his death. According to the appellant she did not provoke her husband when she got home that night it was her husband who began the provocation. The Appellant said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, The Appelant had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995.

The Appellant testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. The Apellant said that the reason why Ben was violent and abusive towards her that night was because 'he was crazy about his recent girlfriend, Lulu Rubillos.

The Appellant after being interviewed by specialists, has been shown to be suffering from Battered Woman Syndrome. The appellant with a plea of self defense admitted the killing of her husband, she was then found guilty of Parricide, with the aggravating circumstance of treachery, for the husband was attacked while asleep.

ISSUES OF THE CASE:

Can Marivic Genosa be granted the Justifying circumstance of Self-defense, and can she be held liable for the aggravating circumstance of treachery?

No, Since self- defense since the existence of Battered woman syndrome, which the appellant has been shown to be suffering in the relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense. In the present case, however, according to the testimony of the appellant there was a sufficient time interval between the unlawful aggression of the husband and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their children's bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety.

Without continuous aggression there can be no self-defense. And absence of aggression does not warrant complete or incomplete self-defense.

No, There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make.

The circumstances must be shown as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence. Besides, equally axiomatic is the rule that when a killing is preceded by an

argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant.

In the present case, however it was not conclusively shown, that the appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her spouse. In the absence of any convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, the doubt should be resolved in her favor.

HELD:

The conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum.

ADDENDUM:

! When can BWS (Battered Woman Syndrome) as self defense be appreciated? ! Where the
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When can BWS (Battered Woman Syndrome) as self defense be appreciated?
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Where the brutalized person is already suffering from BWS, further evidence of actual
physical assault at the time of the killing is not required. Incidents of domestic battery
usually have a predictable pattern. To require the battered person to await an obvious,
deadly attack before she can defend her life "would amount to sentencing her to 'murder
by installment.' Still, impending danger (based on the conduct of the victim in previous
battering episodes) prior to the defendant's use of deadly force must be
shown. Threatening behavior or communication can satisfy the required imminence of
danger. Considering such circumstances and the existence of BWS, self-defense may be
appreciated.
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PEOPLE VS. ABARCA
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That on or about 15 th day of July 1984 in the city of Tacloban Leyte Philippines, the accused Francisco Abarca went to the bus station and travel to Dolores Eastern Samar to fetch his daughter in the morning. Unfortunately, the trip was delayed at 2 pm because of his failure to catch the trip plus the engine trouble which causes him to proceed at his father’s house, and then later went home. When he reaches home the accused caught his wife in the act of sexual intercourse with Khingsley Koh in the meantime his wife and Koh notice him, that makes her wife push her paramour and got his revolver. Abarca peeping above the built-in cabinet in their room jumped and ran away to look for a firearm at the PC soldier’s house to where he got the M-16 rifle. The accused lost his wife and Koh in vicinity at his house and immediately proceeded to a mahjong house where he caught the victim aimed and shoot Koh with several bullets on his different parts of his body causing Mr. Khingsley Koh’s instantaneous death. By that time, Arnold and Lina Amparado had inflicted multiple wounds due to stray bullets causing Mr. Amparado’s one and one-half month loss of working capacity including his serious hospitalization and the latter’s wife who had slighter physical injuries from the incident. The RTC hereby sentenced Abarca to

death for Murder with double Frustrated Murder and must indemnify the Amparado Spouses and Heirs of Kho.

3.

Holding

The Supreme Court modified the appealed decision of destierro to arresto mayor from the lower court sentencing four months and 21 days to six months of arresto mayor indemnifying Amparado spouses for expenses and damages.

4.

Reasoning

The accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, the rule presupposes that the act done amounts to a felony. The accused-appellant is totally free from any responsibility performing an illegal act when he fired shots at the victim but he cannot be entirely without fault. It appears that before firing at the deceased, he uttered warning words which is not enough of a precaution to absolve him for the injuries sustained by the Amparados. The acts of execution which should have produced the crimes of murders as a consequence, nevertheless did not produce it by reason of causes independent of his will; nonetheless, the Court finds negligence on his part. He is liable under the first part, second paragraph, of Article 365 that is less serious physical injuries through simple imprudence or negligence. For the separate injuries suffered by the Amparado spouses impose upon the accused-appellant arresto mayor in its medium and maximum period to being the graver penalty.

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PEOPLE VS. OYANIB

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Accused Manolito Oyanib y Mendoza appeals from the joint decision[1] of the Regional Trial Court, Branch 02, Iligan City finding him guilty beyond reasonable doubt of homicide and parricide and sentencing him to an indeterminate penalty[2] of six (6) months one day (1) to six (6) years of prision correccional as minimum to six (6) years one (1) day to eight (8) years ofprision mayor as maximum,[3] and to pay P50,000.00 civil indemnity and the costs for the death of Jesus Esquierdo, and to reclusion perpetua, to pay P50,000.00 and the costs for the death of his wife, Tita T. Oyanib.[4]

On September 11, 1995, Iligan City Prosecutor Ulysses V. Lagcao filed with the Regional Trial Court, Iligan City two (2) separate informations charging accused Manolito Oyanib y Mendoza with murder and parricide, as follows:

Criminal Case No. 6012

“That on or about September 4, 1995, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a deadly weapon to wit:

a hunting knife about six inches long and with intent to kill and evident premeditation and by means of treachery, did then and there willfully, unlawfully and feloniously attack, assault, stab and wound one Jesus Esquierdo, thereby inflicting upon him the following physical injuries, to wit:

Cardiorespiratory arrest

Hypovolemic shock irreversible

Multiple organ injury

Multiple stab wound chest & abdomen

and as a result thereof the said Jesus Esquierdo died.

“Contrary to and in violation of Article 248 of the Revised Penal Code with the aggravating circumstances (sic) of evident premeditation.”[5]

Criminal Case No. 6018

“That on or about September 4, 1995, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, having conceived and (sic) deliberate intent to kill his wife Tita Oyanib, did then and there willfully, unlawfully and feloniously and with evident premeditation, attack, assault, stab and wound his wife, as a result of said attack, the said Tita Oyanib died.

“Contrary to and in violation of Article 246 of the Revised Penal Code.”[6]

The prosecutor recommended no bail for the temporary liberty of accused Manolito Oyanib y Mendoza in both cases.

On September 11, 1995, accused voluntarily surrendered to the police authorities[7] and was immediately detained at the Iligan City Jail.[8]

On January 17, 1996, the trial court arraigned accused Manolito Oyanib y Mendoza by reading the informations against him and translating them into the Visayan dialect.[9] He pleaded not guilty to both charges.

As the two (2) cases arose from the same set of facts, the trial court conducted a joint trial.

Accused Manolito Oyanib y Mendoza (hereafter Manolito) and Tita T. Oyanib (hereafter Tita) were married on February 3, 1979[10] and had two (2) children, Desilor and Julius. They lived in Purok 1, Tambacan, Iligan City.

In 1994, due to marital differences, Manolito and Tita separated, with Manolito keeping custody of their two (2) children. Tita rented a room at the second floor of the house of Edgardo Lladas (hereafter Edgardo), not far from the place where her family lived.

At about 9:30 in the evening of September 4, 1995, while Edgardo and his family were watching TV at the sala located at the ground floor of their house at Purok 3-A, Tambacan, Iligan City, they heard a commotion coming from the second floor rented by Tita. The commotion and the noise lasted for quite some time. When it died down, Edgardo went upstairs to check.[11]

Upstairs, Edgardo saw Tita wearing a duster, bloodied and sprawled on the floor. He saw Manolito stabbing Jesus Esquierdo (hereafter Jesus) while sitting on the latter’s stomach. Jesus was wearing a pair of long black pants. When Edgardo asked Manolito what he was doing, accused told Edgardo not to interfere.

Thereafter, Edgardo left the house and called the police. Meanwhile, the neighbors brought Tita to the hospital. She died on the way to the hospital.[12]

SPO3 Eduard Tubil, police investigator, General Investigation Office, Iligan City Police Command, Precinct I, Poblacion, Iligan City said that at about 9:00 in the evening of September 4, 1995, while he was on duty, he received an information regarding a stabbing incident at the Llagas residence at Purok 3-A, Tambacan, Iligan City.[13]

At the crime scene, SPO3 Tubil saw the lifeless body of Jesus lying face up with several stab wounds in different parts of the body. Jesus was clad in t-shirt and long pants. From the crime scene, he recovered a knife. Afterwards, he went to Dr. Uy Hospital to check on Tita; he was informed that she was dead. Manolito was the suspect in the killing of Jesus and Tita.[14] The incident was recorded in the police blotter as Entry No. 137138.[15]

On September 5, 1995, Dr. Leonardo A. Labanon, Medico-Legal Officer, Iligan City examined the bodies of Jesus and Tita.[16] Jesus sustained multiple stab wounds, and those inflicted in the right and left chests and stomach were fatal.[17] The cause of death was “cardiorespiratory arrest, hypovolemic shock irreversible, multiple organ injury and multiple stab wound chest and abdomen.”[18]

Likewise, Tita sustained several stab wounds, with the fatal wounds inflicted in the left chest and right side of the abdomen. The cause of death was “cardiorespiratory arrest, hypovolemic shock and multiple stab wound.”[19]

As heretofore stated, in 1994, following a series of arguments, Manolito and Tita decided to live separately. Manolito retained custody of their two (2) children. Immediately after the separation, Tita stayed at her friend Merlyn’s house for two (2) months. Afterwards, she transferred to the Lladas residence, located at Purok 3, G. Tambacan, Iligan City, and rented the second floor.[20] The rented space consisted mainly of a sala with one adjoining room. It was arranged in a manner that if one enters the main entrance door, one is immediately led to the sala and from the sala, directly to the door of the adjoining room.

Despite their separation, Manolito tried to win Tita back and exerted all efforts towards reconciliation for the sake of the children. However, Tita was very reluctant to reconcile with Manolito.[21] In fact, she was very open about her relationship with other men and would flaunt it in front of Manolito. One time, he chanced upon his wife and her paramour, Jesus, in a very intimate situation by the hanging bridge at Brgy. Tambacan, Iligan City. [22] Manolito confronted Tita and Jesus about this. He censured his wife and reminded her that she was still his wife. They just ignored him; they even threatened to kill him.[23]

In the evening of September 4, 1995, after supper, his daughter Desilor handed Manolito a letter from the Iligan City National High School. The letter mentioned that his son Julius failed in two (2) subjects and invited his parents to a meeting at the school. Because he had work from 8:00 in the morning until 5:00 in the afternoon the next day, Manolito went to Tita’s house to ask her to attend the school meeting in his behalf.[24]

Upon reaching Tita’s rented place, he heard “sounds of romance” (kissing) coming from the inside. He pried open the door lock using a hunting knife. He caught his wife Tita and Jesus having sexual intercourse. Jesus was on top of Tita and his pants were down to his knees.

Upon seeing him, Jesus kicked Manolito in the cheek. Manolito immediately stabbed Jesus. Though Jesus was 5’9” in height and weighed about 70 kg., the suddenness of the assault caused him to lose his balance and fall down. Manolito took advantage of this

opportunity and stabbed Jesus in the stomach. Tita left the room upon seeing Manolito, only to come back armed with a Tanduay bottle. She hit Manolito in the head, while at the same time shouting “kill him Jake, kill him Jake.”[25]

In the commotion, Manolito stabbed Jesus, hitting him in the abdomen. Jesus fell down and Manolito stabbed him again. Meanwhile, Tita stabbed Manolito in the arm with the broken Tanduay bottle. This angered Manolito and he stabbed Tita in the left breast. He stabbed her three (3) more times in different parts of her body. Tita fell near the lifeless body of her paramour. It was at this point that Edgardo, the owner of the house Tita was renting, appeared from the ground floor and inquired about what had happened. Manolito told Edgardo not to interfere because he had nothing to do with it.

Thereafter, Manolito left the house of Edgardo and went to Kilumco, Camague, Iligan City and stayed at the wake of his friend’s neighbor. He threw away the knife he used in stabbing his wife and her paramour. At around 4:00 in the morning of the following day, he went to Camague Highway to catch a bus for Lentogan, Aurora, Zamboanga. While in Lentogan, he heard over radio DXIC that there was a call for him to surrender. He heeded the call and gave himself up to the police authorities in Precinct 2, Nonocan, Iligan

City.[26]

When asked why he was carrying a knife when he went to his wife’s place, Manolito said that he brought it for self-defense. Prior to the incident, he received threats from his wife and her paramour, Jesus, that they would kill him so they could live together.[27]

After trial, on May 26, 1997, the trial court promulgated a

guilty beyond reasonable doubt of the crimes charged. The dispositive portion reads:

joint

decision

finding accused

“WHEREFORE, in the light of the foregoing findings and pronouncements and having carefully observed the demeanor of witnesses, this Court hereby declares accused MANOLITO OYANIB y Mendoza GUILTY beyond reasonable doubt of the crime of Homicide (Crim. Case No. II-6012) and Parricide (Crim. Case No. II-6018) and appreciating the two (2) mitigating circumstances of passion or obfuscation and voluntary surrender without any aggravating circumstances to consider, this Court sentences accused Manolito Oyanib y Mendoza to suffer an imprisonment as follows:

“1) In Criminal Case No. II-6012:

To an Indeterminate Penalty ranging from SIX (6) MONTHS ONE (1) DAY to SIX (6) YEARS as Minimum to Six (6) YEARS ONE (1) DAY to EIGHT (8) YEARS as Maximum; to indemnify heirs of Jesus Esquierdo the sum of P50,000.00 as civil indemnity, and to pay the costs.

“2) In Criminal Case No. II-6018:

To RECLUSION PERPETUA pursuant to Republic Act No. 7659; to indemnify heirs of his wife P50,000.00 as civil indemnity and to pay the costs.

“It is likewise ordered that the aforesaid imprisonment is subject to the forty (40) years limitation prescribed in Article 70 of the Revised Penal Code.

“Accused is likewise entitled to full credit of his preventive imprisonment.

“SO ORDERED.

“Iligan City, Philippines, May 26, 1997.

“MAXIMO B. RATUNIL

“Presiding Judge”[28]

On June 17, 1997, accused Manolito Oyanib y Mendoza interposed an appeal from the joint decision of the trial court to the Supreme Court.[29]

Accused admitted the killings. He argued that he killed them both under the exceptional circumstances provided in Article 247 of the Revised Penal Code. He raised several errors allegedly committed by the trial court, which boiled down to the basic issue of whether accused is entitled to the exceptional privilege under Article 247 of the Revised Penal Code.[30] He questioned the trial court’s appreciation of the facts and the evidence, contending that it ignored and overlooked vital pieces of physical evidence material to the defense of the accused, like the photograph of the lifeless body of Jesus. Accused contends that the photograph graphically showed that Jesus’ pants were wide open, unzipped and unbuttoned, revealing that he was not wearing any underwear, lending credence to his defense that he caught his wife and her paramour in the act of sexual intercourse. On the other hand, the Solicitor General submitted that accused-appellant failed to discharge the burden of proving, by clear and convincing evidence, that he killed the victims under the exceptional circumstances contemplated in Article 247 of the Revised Penal Code. Hence, the trial court did not err in denying him the exempting privilege under the Article.[31]

We find the appeal meritorious.

At the outset, accused admitted killing his wife and her paramour. He invoked Article 247 of the Revised Penal Code as an absolutory and an exempting cause. “An absolutory cause is present ‘where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed.’”[32]

Having admitted the killing, it is incumbent upon accused to prove the exempting circumstances to the satisfaction of the court in order to be relieved of any criminal liability. Article 247 of the Revised Penal Code prescribes the following essential elements for such a defense: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; (2) that he kills any of them or both of them in the act or immediately thereafter; and (3) that he has not promoted or facilitated the prostitution of his wife (or daughter) or that he or she has not consented to the infidelity of the other spouse.[33] Accused must prove these elements by clear and convincing evidence, otherwise his defense would be untenable. “The death caused must be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the act of infidelity. Simply put, the killing by the husband of his wife must concur with her flagrant adultery.”[34]

There is no question that the first element is present in the case at bar. The crucial fact that accused must convincingly prove to the court is that he killed his wife and her paramour in the act of sexual intercourse or immediately thereafter.

After an assiduous analysis of the evidence presented and the testimonies of the witnesses, we find accused to have acted within the circumstances contemplated in Article 247 of the Revised Penal Code. Admittedly, accused-appellant surprised his wife and her lover in the act of sexual intercourse.

To the mind of the court, what actually happened was that accused chanced upon Jesus at the place of his wife. He saw his wife and Jesus in the act of having sexual intercourse. Blinded by jealousy and outrage, accused stabbed Jesus who fought off and kicked the accused. He vented his anger on his wife when she reacted, not in defense of him, but in support of Jesus. Hence, he stabbed his wife as well several times. Accused Manolito Oyanib y Mendoza surrendered to the police when a call for him to surrender was made.

The law imposes very stringent requirements before affording the offended spouse the opportunity to avail himself of Article 247, Revised Penal Code. As the Court put it in People v. Wagas:[35]

“The vindication of a Man’s honor is justified because of the scandal an unfaithful wife creates; the law is strict on this, authorizing as it does, a man to chastise her, even with death. But killing the errant spouse as a purification is so severe as that it can only be justified when the unfaithful spouse is caught in flagrante delicto; and it must be resorted to only with great caution so much so that the law requires that it be inflicted only during the sexual intercourse or immediately thereafter.”

WHEREFORE, the Court REVERSES the appealed decision of the Regional Trial Court, Branch 02, Iligan City in Criminal Cases Nos. II-6012 and II-6018. The Court sentences accused Manolito Oyanib y Mendoza to two (2) years and four (4) months of destierro. [36] He shall not be permitted to enter Iligan City, nor within a radius of one hundred (100) kilometers from Iligan City.[37]

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

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AGUIRRE VS. SECRETARY OF JUSTICE

FACTS:

On June 11,2002 petitioner Gloria Aguirre instituted a criminal complaint for the violation of Revised Penal Code particularly Articles 172 and 262, both in relation to Republic Act No. 7610 against respondents Pedro Aguirre, Olondriz,Dr. Agatep, Dr. Pascual and several John/Jane Doe alleging that John/Jane Doe upon the apparent instructions of respondents Michelina Aguirre-Olondriz and Pedro Aguirre actually scouted, prospected, facilitated solicited and/or procured the medical services of respondents Dr. Pascual and Dr. Agatep on the intended mutilation via bilateral vasectomy of Laureano Aguirre. Olondriz denied that the prospected, scouted, facilitated, solicited and/or procured any false statement mutilated or abused his common law brother, Laureano Aguirre. She further contends that his common law brother went through a vasectomy procedure but that does not amount to mutilation.Dr. Agatep contends that the complainant has no legal personality to file a case

since she is only a common law sister of Larry who has a legal guardian in the person of Pedro Aguirre. He further contends that Vasectomy does not inany way equate to castration and what is touched in vasectomy is not considered an organ in the context of law and medicine.The Assistant City Prosecutor held that the facts alleged did not amount to mutilation, the vasectomy operation did not deprived Larry of his reproductive organ.Gloria Aguirre then appealed to the Secretary of the DOJ but Chief State Prosecutor dismissed the petition stating that the Secretary of Justice may motu propio dismiss outright the petition if there is no showing of any reversible error in the questioned resolution.

ISSUE:

Whether or not the respondents are liable for the crime of mutilation

RULING:

No, the court held that Article 262 of the Revised Penal Code provides that Art. 262. Mutilation. The penalty of reclusion temporal to reclusion perpetual shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ for reproduction. Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods.

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A straightforward scrutiny of the above provision shows that the elements of mutilation under the first paragraph of Art.262 of the Revised Penal Code to be 1) that there be a castration, that is, mutilation of organs necessary for generation;

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and 2) that the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. According to the public prosecutor, the facts alleged did not amount to the crime of mutilation as defined and penalized above, i.e., The vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ,which is still very much part of his physical self.

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PEOPLE VS. ORITA

Facts: Ceilito Orita was accused of frustrated rape by the RTC. He appealed to the Court of Appeals for review. The accused poke a “balisong” to college freshman Cristina Abayan as soon as she got into her boarding house early morning after arriving from a party. She knew him as a frequent visitor of another boarder. She was dragged inside the house up the stairs while his left arm wrapped around her neck, and his right hand poking the Batangas knife to her neck. Upon entering her room, he pushed her in and got her head hit on the wall. He immediately undressed while still holding the knife with one hand, and ordered her to do the same. He ordered her to lie down on the floor and then mounted her. He asked her to hold his penis and insert it in her vagina, while still poking the knife to her. She followed, but the appellant could not fully penetrate her in such a position. Next, he laid down on his back and commanded her to mount him, but he cannot fully penetrate her. When Orita’s hands were both flat on the floor, complainant escaped naked. She ran from room to room as appellant pursued her, and finally jumped out through a window. She went to the municipal building nearby and knocked on the back door for there was no answer. When the door opened, the policemen inside the building saw her crying and naked. She was given a jacket for covering by the first policeman who saw her. The policemen dashed to her boarding house but failed to apprehend the accused. She was

brought to a hospital for physical examination. Her PE revealed that she is still a virgin, with abrasions on the left breast, left and right knees, and multiple pinpoint marks on her back, among others. The trial court convicted the accused of frustrated rape.

Crime Committed: Frustrated Rape Issue: Whether or not the frustrated stage applies to the crime of rape?

Contention of the Accused: The accused contends that there is no crime of frustrated rape.

The trial court erred in disregarding the substantial inconsistencies in the testimonies of

the

witnesses; and the trial court erred in declaring that the crime of frustrated rape was

committed by the accused. He was not able to fully penetrate in her. The accused also questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint. The accused used the Article 266 of the RPC to show that he is not guilty of frustrated rape, and Article 6 to stress the difference of consummated, frustrated, and attempted felonies.

Contention of the People: The victim's testimony from the time she knocked on the door of

the

municipal building up to the time she was brought to the hospital was corroborated by

Pat. Donceras. Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such spontaneous testimonies. The accused committed rape.

Ruling: The decision of the RTC is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape [consummated] and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the

offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. [Art. 266 and Art. 6]

We

have set the uniform rule that for the consummation of rape, perfect penetration is not

essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction.

 

PEOPLE VS. MANGALINO

This is an appeal from the decision of the Regional Trial Court of Manila, 1 in which the accused was convicted of statutory rape under Article 335, paragraph 3 of the Revised Penal Code, 2 and sentenced to suffer the penalty of reclusion perpetua and to pay the offended parties the sum of P50,000.00 as moral damages. The complaint signed by the father of the victim, Tomas Carlos y Valente states:

That on or about March 7, 1984, in the city of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge of the undersigned complainant's daughter Marichelle, a minor, 6 years of age, against her will and consent.

Contrary to Law.

The following facts are fully supported by the evidence on record, mainly the testimonies of the victim herself and her mother, Bernardine, Dr. Roberto V. Garcia, and Staff Sergeant Mario Oser, as well as the testimonies of the witnesses for the defense — Ramil las Dulce, Linda Ayroso, and the accused himself.

At about 10 or 11 o'clock in the morning of March 7, 1984, Marichelle Carlos, 6 years old and a Grade I pupil at the Moises Salvador Elementary School, Manila, was playing "takbuhan" alone at the first level (ground floor) of the two-story apartment of the accused, Semion Mangalino, 53, married to 55-year old Laura Gasmin, childless, a security guard by occupation, and residing at 1597-D Honradez Street, Sampaloc, Manila. 3 At the time of the incident, Laura was in Balayan, Batangas, having left the day before the incident. The accused and Marichelle's parents (Tomas and Bernardine Carlos) are neighbors, their respective rented apartments being almost opposite each other.

During the morning of March 7, 1984, Ramil las Dulce, a 16-year old high school student occupying the second floor of the apartment, for free and free board, too, a grandson of the accused (his mother, Edita Onadia who lived with him upstairs, being an adopted daughter of the accused), and Laura's nephew, Armando Ayroso, were allegedly playing chess 4 in the sala of the apartment. Ramil, a witness for the defense, testified that he did not hear or see the accused calling out to Marichelle and motioning her to go inside his bedroom or "sleeping quarters" at one end of the sala of the ground floor, opposite the kitchen.

Once inside the bedroom, the accused handed the girl a two peso bill (P2.00) 5 and told her not to tell anybody about his calling her to his bedroom. The girl assented. 6

Meanwhile, the victim's mother, Bernardine Carlos, 27, and a plain housewife, was looking for her daughter, who should be leaving for school by that time. She was informed by her sister Agnes, who was living next door, that the adopted daughter of the accused, Cielito, had told her that Marichelle was in their apartment. 11 Immediately, Michael, Agnes' four- year old son, was dispatched to fetch Marichelle.

Hearing the call of Michael, the victim put on her garments, and on the way home noticed that her jogging pants were wet. Upon reaching her house, Marichelle narrated to her mother what had happened, saying, "Si Mang Semion nilagay ang daliri niya sa pikpik ko," and "yong titi ni Mang Semion nilagay sa pikpik ko." 12

At about 2:30 that same day, an enraged Bernardine submitted her daughter to a physical and genital examination, 13 the results of which National Bureau of Investigation (NBI) Medico Legal Officer Roberto V. Garcia certified as follows:

No evidence (or) sign of any extragenital physical injury noted on the body of the subject at the time of examination.

Hymen, intact and its orifice, narrow.

Sign of recent genital trauma, present.

Dr. Garcia opined that the vestibular mucosa contusion could have been caused by a hard object like an erected penis and such bruises at such part of the girl's vagina if caused by an erected penis would be an indication of an unsuccessful penetration. He discounted the probability of an accident, like bumping at an edge of a chair, or any blunt object, since there was no contusion of the labia. 14

The confrontation between the victim and the accused took place when Staff Sergeant Mario Oser of the Waterfront Unit, Reaction Strike Force, Philippine Constabulary Metropolitan Command (P.C. Metrocom), who conducted the initial investigation, invited the accused to the P.C. Headquarters. There, Marichelle Identified Semion Mangalino as the man who had abused her.

The accused vehemently denied having ever abused Marichelle. He argued that the bruises in the complainant's vestibular mucosa may have been self-inflicted. Marichelle, who was constantly running about, might have bumped her pelvis against a chair, which explained the absence of signs of contusions in the labia.

Curiously, the young victim candidly testified that she felt no pain when the accused was allegedly trying to insert his penis into her vagina. She did not cry in pain nor shout for help when she was being abused. 15

Before the Court, the appellant assigned four errors in his brief which he claims the trial court committed, to wit:

ASSIGNMENT OF ERRORS

ERROR I

THE TRIAL COURT ERRED IN NOT FINDING THAT, CONSIDERING THE PLACE, THE TIME, AND THE PRESENCE OF SO MANY PEOPLE WITHIN THE IMMEDIATE VICINITY WHERE THE ALLEGED CRIME WAS COMMITTED, THE ACCUSED COULD NOT HAVE SEXUALLY ABUSED MARICHELLE G. CARLOS, THE COMPLAINING WITNESS HEREIN;

ERROR II

THE TRIAL COURT ERRED IN NOT FINDING THAT THE BRUISES THROUGH THE VESTIBULAR MUCOSA OF THE PRIVATE PART OF MARICHELLE G. CARLOS IS THE RESULT OF AN ACCIDENT, CONSIDERING THAT ON MARCH 7,1984, SHE WAS IN THE GROUND FLOOR OF THE APARTMENT OF HEREIN ACCUSED PLAYING — RUNNING AROUND "TAKBUHAN";

ERROR III

THE TRIAL COURT ERRED IN ORDERING THE ACCUSED TO PAY THE OFFENDED PARTIES, MARICHELLE G. CARLOS AND HER PARENTS, TOMAS CARLOS AND BERNARDINE GANLAC CARLOS, THE SUM OF P50,000.00 AS AND FOR DAMAGES;

ERROR IV

THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSED IS GUILTY OF THE CHARGE ALLEGED IN THE INFORMATION, INSTEAD OF ACQUITTING HIM WITH COSTS DE OFFICIO. 16

The defense vigorously argues against the probability of the rape having been committed on two points: 1) The commission of the crime was impossible, taking place as claimed, in

broad daylight, and 2) there were at least eight persons — including the accused and the complainant — on the ground floor where the rape was supposedly consummated.

The commission of the crime, submits the defense, was impossible, considering that it was allegedly committed at noontime, which would have readily exposed the act of rape to anyone glancing in the direction of the place where the suspect was abusing the victim.

On the second point, it is contended that the rape could not have been accomplished with so many persons present in the apartment. As it was, Ramil and Armando were playing chess near the front door of the apartment. Also, Linda Ayroso, 29, married to Armando, and a housewife, was washing laundry in the kitchen. Furthermore, the accused was cooking lunch also in the kitchen, and so could not have flitted from the kitchen to his room to execute his evil design without anyone noticing his absence.

The defense brings to our attention the physical layout of the apartment of the accused. The place where the alleged sexual abuse took place was not even a room, he asserts. The apartment had neither a door nor walls, and what divided the so-called room from the living room was a wooden folding divider which was full of holes, "butas-butas." 17

Finally, the accused assails the lower court's slapping of damages based on the claims of prosecution witnesses of suffering mental anguish, moral shock, and a "besmirched reputation." Since he did not commit the offense attributed to him, the award of P50,000.00 as moral damages is unwarranted. Consequently, he prays he must be exculpated.

We deny the appeal except the amount of the award of damages which we reduce to P20,000.00 conformably to prevailing jurisprudence.

We rule that statutory rape had been committed beyond the shadow of a doubt.

The gravamen of the offense of statutory rape as provided in Article 335, paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below 12 years of age. 18 Marichelle, a little over 6 years of age at the time, was raped. Beyond that, proof of intimidation or force used on her, or lack of it, is immaterial.

The findings of Dr. Roberto V. Garcia, the NBI Medico Legal officer, who testified for the People, conclude that rape could have been perpetrated. To reiterate, he certified the existence of indications of recent genital trauma. Under normal condition, the color of the vestibular mucosa is pinkish. The doctor found the vestibular mucosa of the victim to be dark red. 19 The forcible attempt of an erected penis to have complete penetration caused the 3 1/2-centimeter contusion prior to the hymen. The government doctor further discounted the probability of an accident, such as bumping the edge of a chair, or violent contact with a blunt object, as there was no contusion of the labia.

The penile-vaginal contact without penetration was due to the one- centimeter diameter opening of Marichelle's hymen. Usually, the average adult's hymen measures 2.8 to 3 centimeters in diameter, making it compatible to, or easily penetrable by, an average-size penis. The victim being of a tender age, the penetration could go only as deep as the labia. 20 In any case, the Court has consistently held that for rape to be committed, full penetration is not required. It is enough that there is proof of entrance of the male organ within the labia or pudendum of the female organ. 21 Indeed, even the slightest penetration is sufficient to consummate the crime of rape.

The relationship between the offender and the victim as neighbors remains unrebutted. This relationship has an important bearing on the medico-legal finding, because it explains

the absence of visible signs of physical injuries. 22 The close relationship of Semion Mangalino to Marichelle — as a nearby neighbor of the Carlos family — and the degree of respect that Semion may have had in Marichelle's life, helps explain why physical force was not employed. The mere size of the accused, a robust security guard, and 163 centimeters (five feet and four inches) in height, could have easily immobilized the victim who was at that time only one hundred eight centimeters tall and weighing 31.818 kilos (70 lbs.)

The attempt to discredit the prosecution's version as shown by the fact that Marichelle did not cry out or struggle against her attacker deserves scant consideration. The absence of hymenal laceration adequately explains why Marichelle did not feel any pain during the attempted sexual intercourse. Why would she struggle, when she did not even know that her chastity was being violated? As her mother testified, it was only upon realizing that she had been defiled did her daughter cry. From then on, she became "matatakutin' and "hindi na kumakain", she became nervous and had no appetite for food — symptoms of a state of anguish.

The simplicity of the testimony of Marichelle convinces us that she was telling the truth about her having been sexually abused.

Marichelle was a Grade I pupil when she was violated. She was in Grade II when she took the witness stand. In view of her very tender age and her little formal schooling, it is inconceivable for Marichelle to concoct a serious charge of rape, and to narrate, in unhesitating and simple terms, that she had been asked by the offender to go inside the room; that she was laid down after the accused had given her P2.00; that he removed her jogging pants and panty; that the accused kissed her and caressed her breasts, that "Mang Semion" inserted a finger into her genital, and later his sexual organ. At age 6, Marichelle would have been one of those "babes and sucklings" from whose mouths words of praise should have been perfected, but alas, she was instead compelled to relate in the presence of people, some of them complete strangers, in the police precinct and in court, her tragic story.

The heart of the matter is the violation of a child's incapacity to discern evil from good. As the behavior of the victim towards the accused during the commission of the crime and her testimony before police officers and in the court indicate, she had no awareness of the wrongfulness of the action of the accused who was old enough to be her grandfather. Her willingness to lie down on and accept the P2.00 given her by the accused, whom she looked up to as an elder person, a neighbor, and a friend of her family, indicate not naivete, but the absolute trust and confidence of the very young in an older person. She was incapable of reading malice or evil in his intentions. It is likely that it was only when she saw how distraught her mother was at her telling of her story and the flurry of police and judicial activity stirred up by her narration that her young and innocent mind was violently exposed to the reality of the existence of evil in the hearts of men. The moment of truth, dawning so violently upon young and innocent minds is contemptible. The older persons in the community should set themselves up as models of proper decorum and high moral purpose for young children; it is they who should guide the young, teach them, and nurture them in the way of the righteous. A 53-year-old man who instead corrupts and violates the purity and dignity of a minor is morally depraved and should be punished to the limits of the law.

It is even more difficult to conceive of Mrs. Bernardine Carlos trumping up a charge of the rape of her daughter and subject herself and her daughter to humiliation, to fear, and anxiety, and community censure that she and her daughter will have to bear for the rest of

their lives, 24 simply in consideration of P50,000.00, the amount asked for in moral damages.

The trial court's findings of facts which rely on the credibility of witnesses are entitled to respect, if not finality. A painstaking examination and review of the records of the case yield no fact or circumstance that would have contradicted the findings of the trial court.

The alleged inconsistencies refer to minor details and do not at all touch upon the basic aspects of the who, the how, and the when of the crime committed. Minor discrepancies in the testimonies of Marichelle and her mother are but natural, and even enhance their credibility as witnesses because these discrepancies indicate that the responses given were honest and unrehearsed. 25 In appreciation of the testimony of the victim, due regard must be accorded to her tender age.

The contention of the accused that he never left the kitchen is flawed. The facility of a quick tap to his room can not be discounted considering that kitchen where he was supposed to have been cooking was only a few meters away. That the presence of Ramil and Armando who were allegedly playing chess in the kitchen made the commission of the

crime impossible, even if were true, falls flat in the face of the game of chess being one that requires utmost concentration; that being so, it is logical for both players to be concentrating on the game when the accused lured Marichelle into the room. We hold that when Ramil, Armando, and Linda were engrossed in what they were doing, that the accused surreptitiously enticed Marichelle into his higaan, and that the short distance between the kitchen and the "room" — a mere distance of 5 to 6 meters — is no obstacle

to the satiation of his carnal lusting after the child.

The accused claims it was impossible for him to have raped the victim in the presence of other people, more so, in a place without privacy. We do not agree. Rape was in fact committed. It is quite possible for an experienced man, like the accused, to consummate rape in just one minute, without attracting the attention of the people inside the apartment. 26 Marichelle's complete innocence may have facilitated the perpetration of the clime, and the divider, although "butas-butas," was sufficient to conceal the commission of the bestial act.

In several instances, this Court held that rape can be committed even in places where

people congregate: in parks, along the road side, within school premises, and even inside

a house where there are other occupants. 27 The apartment of the accused was no exception. Lust is no respecter of time or place.

In fine, we hold that the trial court did not commit any reversible error in finding the accused-appellant guilty beyond reasonable doubt of the crime of statutory rape.

No amount of money can soothe the pain and anguish suffered by a victim of rape and her family. Still, we cannot impose the damages of P50,000.00 on the accused. As stated earlier, we reduce the amount to P20,000.00.

WHEREFORE, the appealled decision is AFFIRMED with the MODIFICATION above indicated.

Costs against the accused-appellant.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ., concur.

xxx xxx xxx

q (Asst. Fiscal Mercedes C. Salvania) Now, while you were playing will you tell this Honorable court where did you go after that?

Witness (Marichelle)

a While I was playing Mang Simeon called me madam.

Court

q Why, were you playing alone?

Witness

a Yes, your Honor.

Fiscal Salvania

q What were you playing?

Witness

a I was running around "takbuhan" madam.

Court

q Were you running outside or inside the house of the accused

Witness

a Inside the house of Semion Mangalino, your Honor.

Fiscal Salvania

q While you were playing inside the house of Semion Mangalino he called for you?

Witness

a

Yes, madam.

q

Why did he called (sic) for you?

Witness

a He called me and told me to go to his bedroom madam.

Fiscal Salvania

q When you were asked to go to his bedroom, did he give you anything?

Witness

a

Yes madam.

q

What did he give to you?

a

He gave me P2.00, madam.

Court

q Did you accept that P2.00?

Witness

a Yes, your Honor. Fiscal Salvania

q When you were asked to go inside the higaan of Semion Mangalino, did you go?

Witness

a

Yes, madam.

q

Now, when you went inside the higaan, what did he do to you?

a He inserted one of his fingers in my private part madam. Fiscal Salvania

q You stated that you were wearing jogging pant?

Witness

a

Yes, madam.

q

What happened to your jogging pant?

a

He first removed my jogging pant, madam.

q

After removing your jogging pant, did he removed (sic) anything in his clothes?

a

He did not removed (sic) anything in his clothes madam.

Court

q Beside the jogging pant you are (sic) wearing, were you also wearing a panty?

Witness

a Yes, your Honor. Fiscal Salvania

q What happen(ed) to your panty, did he remove?

Witness

a He also removed my panty madam. Fiscal Salvania

q What did he do with his finger?

Court

She said he inserted.

q Was one of the fingers of the accused inserted in your private part?

Witness

a

Yes, your Honor.

q

What did he do?

a

He kissed me your Honor.

q

Where did he kissed (sic) you?

a

In my breast your Honor.

Fiscal Salvania

q Did he remove your T-shirt?

Witness

a No madam.

xxx xxx xxx

Court

q Did Semion Mangalino removed (sic) his pant?

Witness

a He did not removed (sic) his pant your Honor.

xxx xxx xxx

q Do you know what is penis?

a Yes, your Honor.

q Did the accused put-out his penis while he was inserting his finger in your private part and kissing you in the breast?

a He put-out his penis while he was kissing and his one fingers (sic) inserted in my private part, your Honor.

q What did he do with his penis?

a He is inserting his penis in my private part, your Honor.

Court

q Was the accused able to insert his penis into your private part?

Witness

a He was not able, your Honor.

xxx xxx xxx

q How do you feel or did you feel pain while the accused was trying to insert his penis into your private part?

Witness

a

I did not feel anything, your Honor.

q

Did you feel pain?

a

I did not feel anything painful, your Honor.

q

Did you saw (sic) the penis of Semion Mangalino?

a Yes, your Honor.

q What was your position when Semion Mangalino was trying to insert his penis into your private part?

Witness

a I was lying down, your Honor.

Court

q Who put you lay (sic) down, was it yourself or what?

Witness

a

Semion Mangalino, your Honor.

q

Did you not cry?

a

I did not cry, your Honor.

q

Did you shout?

a

I did not shout, your Honor.

q Why, were there persons inside the house while Semion Mangalino was doing all these things to you?

a There were no other persons except myself and Semion Mangalino your Honor. 23

This is an appeal from the decision of the Regional Trial Court of Manila, 1 in which the accused was convicted of statutory rape under Article 335, paragraph 3 of the Revised Penal Code, 2 and sentenced to suffer the penalty of reclusion perpetua and to pay the offended parties the sum of P50,000.00 as moral damages. The complaint signed by the father of the victim, Tomas Carlos y Valente states:

xxx xxx xxx

That on or about March 7, 1984, in the city of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge of the undersigned complainant's daughter Marichelle, a minor, 6 years of age, against her will and consent.

Contrary to Law.

The following facts are fully supported by the evidence on record, mainly the testimonies of

the victim herself and her mother, Bernardine, Dr. Roberto V. Garcia, and Staff Sergeant

Mario Oser, as well as the testimonies of the witnesses for the defense — Ramil las Dulce, Linda Ayroso, and the accused himself.

At about 10 or 11 o'clock in the morning of March 7, 1984, Marichelle Carlos, 6 years old and a Grade I pupil at the Moises Salvador Elementary School, Manila, was playing

"takbuhan" alone at the first level (ground floor) of the two-story apartment of the accused, Semion Mangalino, 53, married to 55-year old Laura Gasmin, childless, a security guard by occupation, and residing at 1597-D Honradez Street, Sampaloc, Manila. 3 At the time of

the incident, Laura was in Balayan, Batangas, having left the day before the incident. The

accused and Marichelle's parents (Tomas and Bernardine Carlos) are neighbors, their respective rented apartments being almost opposite each other.

During the morning of March 7, 1984, Ramil las Dulce, a 16-year old high school student occupying the second floor of the apartment, for free and free board, too, a grandson of the accused (his mother, Edita Onadia who lived with him upstairs, being an adopted daughter of the accused), and Laura's nephew, Armando Ayroso, were allegedly playing chess 4 in the sala of the apartment. Ramil, a witness for the defense, testified that he did not hear or see the accused calling out to Marichelle and motioning her to go inside his bedroom or "sleeping quarters" at one end of the sala of the ground floor, opposite the kitchen.

Once inside the bedroom, the accused handed the girl a two peso bill (P2.00) 5 and told her not to tell anybody about his calling her to his bedroom. The girl assented. 6

The accused then laid Marichelle down, removed her jogging pants, and placed them beside her feet. 7 He kissed her and fondled her infantile breasts. 8 He inserted his finger into the private part of the victim, 9 and then forcibly and repeatedly introduced his sexual organ into her undeveloped genitalia, but in vain. 10

Meanwhile, the victim's mother, Bernardine Carlos, 27, and a plain housewife, was looking for her daughter, who should be leaving for school by that time. She was informed by her sister Agnes, who was living next door, that the adopted daughter of the accused, Cielito, had told her that Marichelle was in their apartment. 11 Immediately, Michael, Agnes' four- year old son, was dispatched to fetch Marichelle.

Hearing the call of Michael, the victim put on her garments, and on the way home noticed that her jogging pants were wet. Upon reaching her house, Marichelle narrated to her mother what had happened, saying, "Si Mang Semion nilagay ang daliri niya sa pikpik ko," and "yong titi ni Mang Semion nilagay sa pikpik ko." 12

At about 2:30 that same day, an enraged Bernardine submitted her daughter to a physical and genital examination, 13 the results of which National Bureau of Investigation (NBI) Medico Legal Officer Roberto V. Garcia certified as follows:

No evidence (or) sign of any extragenital physical injury noted on the body of the subject at the time of examination.

Hymen, intact and its orifice, narrow.

Sign of recent genital trauma, present.

Dr. Garcia opined that the vestibular mucosa contusion could have been caused by a hard object like an erected penis and such bruises at such part of the girl's vagina if caused by an erected penis would be an indication of an unsuccessful penetration. He discounted the probability of an accident, like bumping at an edge of a chair, or any blunt object, since there was no contusion of the labia. 14

The confrontation between the victim and the accused took place when Staff Sergeant Mario Oser of the Waterfront Unit, Reaction Strike Force, Philippine Constabulary Metropolitan Command (P.C. Metrocom), who conducted the initial investigation, invited

the accused to the P.C. Headquarters. There, Marichelle Identified Semion Mangalino as the man who had abused her.

The accused vehemently denied having ever abused Marichelle. He argued that the bruises in the complainant's vestibular mucosa may have been self-inflicted. Marichelle, who was constantly running about, might have bumped her pelvis against a chair, which explained the absence of signs of contusions in the labia.

Curiously, the young victim candidly testified that she felt no pain when the accused was allegedly trying to insert his penis into her vagina. She did not cry in pain nor shout for help when she was being abused. 15

Before the Court, the appellant assigned four errors in his brief which he claims the trial court committed, to wit:

ASSIGNMENT OF ERRORS

ERROR I

THE TRIAL COURT ERRED IN NOT FINDING THAT, CONSIDERING THE PLACE, THE TIME, AND THE PRESENCE OF SO MANY PEOPLE WITHIN THE IMMEDIATE VICINITY WHERE THE ALLEGED CRIME WAS COMMITTED, THE ACCUSED COULD NOT HAVE SEXUALLY ABUSED MARICHELLE G. CARLOS, THE COMPLAINING WITNESS HEREIN;

ERROR II

THE TRIAL COURT ERRED IN NOT FINDING THAT THE BRUISES THROUGH THE VESTIBULAR MUCOSA OF THE PRIVATE PART OF MARICHELLE G. CARLOS IS THE RESULT OF AN ACCIDENT, CONSIDERING THAT ON MARCH 7,1984, SHE WAS IN THE GROUND FLOOR OF THE APARTMENT OF HEREIN ACCUSED PLAYING — RUNNING AROUND "TAKBUHAN";

ERROR III

THE TRIAL COURT ERRED IN ORDERING THE ACCUSED TO PAY THE OFFENDED PARTIES, MARICHELLE G. CARLOS AND HER PARENTS, TOMAS CARLOS AND BERNARDINE GANLAC CARLOS, THE SUM OF P50,000.00 AS AND FOR DAMAGES;

ERROR IV

THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSED IS GUILTY OF THE CHARGE ALLEGED IN THE INFORMATION, INSTEAD OF ACQUITTING HIM WITH COSTS DE OFFICIO. 16

The defense vigorously argues against the probability of the rape having been committed on two points: 1) The commission of the crime was impossible, taking place as claimed, in broad daylight, and 2) there were at least eight persons — including the accused and the complainant — on the ground floor where the rape was supposedly consummated.

The commission of the crime, submits the defense, was impossible, considering that it was allegedly committed at noontime, which would have readily exposed the act of rape to anyone glancing in the direction of the place where the suspect was abusing the victim.

On the second point, it is contended that the rape could not have been accomplished with so many persons present in the apartment. As it was, Ramil and Armando were playing chess near the front door of the apartment. Also, Linda Ayroso, 29, married to Armando, and a housewife, was washing laundry in the kitchen. Furthermore, the accused was cooking lunch also in the kitchen, and so could not have flitted from the kitchen to his room to execute his evil design without anyone noticing his absence.

The defense brings to our attention the physical layout of the apartment of the accused. The place where the alleged sexual abuse took place was not even a room, he asserts. The apartment had neither a door nor walls, and what divided the so-called room from the living room was a wooden folding divider which was full of holes, "butas-butas." 17

Finally, the accused assails the lower court's slapping of damages based on the claims of prosecution witnesses of suffering mental anguish, moral shock, and a "besmirched reputation." Since he did not commit the offense attributed to him, the award of P50,000.00 as moral damages is unwarranted. Consequently, he prays he must be exculpated.

We deny the appeal except the amount of the award of damages which we reduce to P20,000.00 conformably to prevailing jurisprudence.

We rule that statutory rape had been committed beyond the shadow of a doubt.

The gravamen of the offense of statutory rape as provided in Article 335, paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below 12 years of age. 18 Marichelle, a little over 6 years of age at the time, was raped. Beyond that, proof of intimidation or force used on her, or lack of it, is immaterial.

The findings of Dr. Roberto V. Garcia, the NBI Medico Legal officer, who testified for the People, conclude that rape could have been perpetrated. To reiterate, he certified the existence of indications of recent genital trauma. Under normal condition, the color of the vestibular mucosa is pinkish. The doctor found the vestibular mucosa of the victim to be dark red. 19 The forcible attempt of an erected penis to have complete penetration caused the 3 1/2-centimeter contusion prior to the hymen. The government doctor further discounted the probability of an accident, such as bumping the edge of a chair, or violent contact with a blunt object, as there was no contusion of the labia.

The penile-vaginal contact without penetration was due to the one- centimeter diameter opening of Marichelle's hymen. Usually, the average adult's hymen measures 2.8 to 3 centimeters in diameter, making it compatible to, or easily penetrable by, an average-size penis. The victim being of a tender age, the penetration could go only as deep as the labia. 20 In any case, the Court has consistently held that for rape to be committed, full penetration is not required. It is enough that there is proof of entrance of the male organ within the labia or pudendum of the female organ. 21 Indeed, even the slightest penetration is sufficient to consummate the crime of rape.

The relationship between the offender and the victim as neighbors remains unrebutted. This relationship has an important bearing on the medico-legal finding, because it explains the absence of visible signs of physical injuries. 22 The close relationship of Semion

Mangalino to Marichelle — as a nearby neighbor of the Carlos family — and the degree of respect that Semion may have had in Marichelle's life, helps explain why physical force was not employed. The mere size of the accused, a robust security guard, and 163 centimeters (five feet and four inches) in height, could have easily immobilized the victim who was at that time only one hundred eight centimeters tall and weighing 31.818 kilos (70 lbs.)

The attempt to discredit the prosecution's version as shown by the fact that Marichelle did

not cry out or struggle against her attacker deserves scant consideration. The absence of

hymenal laceration adequately explains why Marichelle did not feel any pain during the attempted sexual intercourse. Why would she struggle, when she did not even know that

her chastity was being violated? As her mother testified, it was only upon realizing that she

had been defiled did her daughter cry. From then on, she became "matatakutin' and "hindi na kumakain", she became nervous and had no appetite for food — symptoms of a state

of anguish.

The simplicity of the testimony of Marichelle convinces us that she was telling the truth about her having been sexually abused.

xxx xxx xxx

q (Asst. Fiscal Mercedes C. Salvania) Now, while you were playing will you tell this Honorable court where did you go after that?

Witness (Marichelle)

a While I was playing Mang Simeon called me madam.

Court

q Why, were you playing alone?

Witness

a Yes, your Honor.

Fiscal Salvania

q What were you playing?

Witness

a I was running around "takbuhan" madam.

Court

q Were you running outside or inside the house of the accused

Witness

a Inside the house of Semion Mangalino, your Honor.

Fiscal Salvania

q While you were playing inside the house of Semion Mangalino he called for you?

Witness

a

Yes, madam.

q

Why did he called (sic) for you?

Witness

a He called me and told me to go to his bedroom madam.

Fiscal Salvania

q When you were asked to go to his bedroom, did he give you anything?

Witness

a

Yes madam.

q

What did he give to you?

a

He gave me P2.00, madam.

Court

q Did you accept that P2.00?

Witness

a Yes, your Honor.

Fiscal Salvania

q When you were asked to go inside the higaan of Semion Mangalino, did you go?

Witness

a

Yes, madam.

q

Now, when you went inside the higaan, what did he do to you?

a

He inserted one of his fingers in my private part madam.

Fiscal Salvania

q You stated that you were wearing jogging pant?

Witness

a

Yes, madam.

q

What happened to your jogging pant?

a

He first removed my jogging pant, madam.

q

After removing your jogging pant, did he removed (sic) anything in his clothes?

a

He did not removed (sic) anything in his clothes madam.

Court

q Beside the jogging pant you are (sic) wearing, were you also wearing a panty?

Witness

a Yes, your Honor.

Fiscal Salvania

q What happen(ed) to your panty, did he remove?

Witness

a He also removed my panty madam.

Fiscal Salvania

q What did he do with his finger?

Court

She said he inserted.

q Was one of the fingers of the accused inserted in your private part?

Witness

a

Yes, your Honor.

q

What did he do?

a

He kissed me your Honor.

q

Where did he kissed (sic) you?

a

In my breast your Honor.

Fiscal Salvania

q Did he remove your T-shirt?

Witness

a No madam.

xxx xxx xxx

Court

q Did Semion Mangalino removed (sic) his pant?

Witness

a He did not removed (sic) his pant your Honor.

xxx xxx xxx

q Do you know what is penis?

a Yes, your Honor.

q Did the accused put-out his penis while he was inserting his finger in your private part and kissing you in the breast?

a He put-out his penis while he was kissing and his one fingers (sic) inserted in my private part, your Honor.

q What did he do with his penis?

a He is inserting his penis in my private part, your Honor.

Court

q Was the accused able to insert his penis into your private part?

Witness

a He was not able, your Honor.

xxx xxx xxx

q How do you feel or did you feel pain while the accused was trying to insert his penis into your private part?

Witness

a

I did not feel anything, your Honor.

q

Did you feel pain?

a

I did not feel anything painful, your Honor.

q

Did you saw (sic) the penis of Semion Mangalino?

a Yes, your Honor.

q What was your position when Semion Mangalino was trying to insert his penis into your private part?

Witness

a I was lying down, your Honor.

Court

q Who put you lay (sic) down, was it yourself or what?

Witness

a

Semion Mangalino, your Honor.

q

Did you not cry?

a

I did not cry, your Honor.

q

Did you shout?

a

I did not shout, your Honor.

q Why, were there persons inside the house while Semion Mangalino was doing all these things to you?

a There were no other persons except myself and Semion Mangalino your Honor. 23

Marichelle was a Grade I pupil when she was violated. She was in Grade II when she took the witness stand. In view of her very tender age and her little formal schooling, it is inconceivable for Marichelle to concoct a serious charge of rape, and to narrate, in unhesitating and simple terms, that she had been asked by the offender to go inside the room; that she was laid down after the accused had given her P2.00; that he removed her jogging pants and panty; that the accused kissed her and caressed her breasts, that "Mang Semion" inserted a finger into her genital, and later his sexual organ. At age 6, Marichelle would have been one of those "babes and sucklings" from whose mouths words of praise should have been perfected, but alas, she was instead compelled to relate in the presence of people, some of them complete strangers, in the police precinct and in court, her tragic story.

The heart of the matter is the violation of a child's incapacity to discern evil from good. As the behavior of the victim towards the accused during the commission of the crime and her testimony before police officers and in the court indicate, she had no awareness of the wrongfulness of the action of the accused who was old enough to be her grandfather. Her willingness to lie down on and accept the P2.00 given her by the accused, whom she looked up to as an elder person, a neighbor, and a friend of her family, indicate not naivete, but the absolute trust and confidence of the very young in an older person. She was incapable of reading malice or evil in his intentions. It is likely that it was only when she saw how distraught her mother was at her telling of her story and the flurry of police and judicial activity stirred up by her narration that her young and innocent mind was

violently exposed to the reality of the existence of evil in the hearts of men. The moment of truth, dawning so violently upon young and innocent minds is contemptible. The older persons in the community should set themselves up as models of proper decorum and high moral purpose for young children; it is they who should guide the young, teach them, and nurture them in the way of the righteous. A 53-year-old man who instead corrupts and violates the purity and dignity of a minor is morally depraved and should be punished to the limits of the law.

It is even more difficult to conceive of Mrs. Bernardine Carlos trumping up a charge of the rape of her daughter and subject herself and her daughter to humiliation, to fear, and anxiety, and community censure that she and her daughter will have to bear for the rest of their lives, 24 simply in consideration of P50,000.00, the amount asked for in moral damages.

The trial court's findings of facts which rely on the credibility of witnesses are entitled to respect, if not finality. A painstaking examination and review of the records of the case yield no fact or circumstance that would have contradicted the findings of the trial court.

The alleged inconsistencies refer to minor details and do not at all touch upon the basic aspects of the who, the how, and the when of the crime committed. Minor discrepancies in the testimonies of Marichelle and her mother are but natural, and even enhance their credibility as witnesses because these discrepancies indicate that the responses given were honest and unrehearsed. 25 In appreciation of the testimony of the victim, due regard must be accorded to her tender age.

The contention of the accused that he never left the kitchen is flawed. The facility of a quick tap to his room can not be discounted considering that kitchen where he was supposed to have been cooking was only a few meters away. That the presence of Ramil and Armando who were allegedly playing chess in the kitchen made the commission of the

crime impossible, even if were true, falls flat in the face of the game of chess being one that requires utmost concentration; that being so, it is logical for both players to be concentrating on the game when the accused lured Marichelle into the room. We hold that when Ramil, Armando, and Linda were engrossed in what they were doing, that the accused surreptitiously enticed Marichelle into his higaan, and that the short distance between the kitchen and the "room" — a mere distance of 5 to 6 meters — is no obstacle

to the satiation of his carnal lusting after the child.

The accused claims it was impossible for him to have raped the victim in the presence of other people, more so, in a place without privacy. We do not agree. Rape was in fact committed. It is quite possible for an experienced man, like the accused, to consummate rape in just one minute, without attracting the attention of the people inside the apartment. 26 Marichelle's complete innocence may have facilitated the perpetration of the clime, and the divider, although "butas-butas," was sufficient to conceal the commission of the bestial act.

In several instances, this Court held that rape can be committed even in places where

people congregate: in parks, along the road side, within school premises, and even inside

a house where there are other occupants. 27 The apartment of the accused was no exception. Lust is no respecter of time or place.

In fine, we hold that the trial court did not commit any reversible error in finding the accused-appellant guilty beyond reasonable doubt of the crime of statutory rape.

No amount of money can soothe the pain and anguish suffered by a victim of rape and her family. Still, we cannot impose the damages of P50,000.00 on the accused. As stated earlier, we reduce the amount to P20,000.00.

WHEREFORE, the appealled decision is AFFIRMED with the MODIFICATION above indicated.

Costs against the accused-appellant.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Regalado, JJ., concur.

!

PEOPLE VS. ERINIA

This is an appeal from a judgment of the Court of First Instance of Manila finding the defendant guilty of the crime of consummated rape and sentencing him to suffer seventeen years, four months and one day of reclusion temporal, with the accessory penalties provided by law and to pay the costs.

The victim of the crime was a child of 3 years and 11 months old and the evidence is conclusive that the defendant endeavored to have carnal intercourse with her, but there may be some doubt whether he succeeded in penetrating the vagina before being disturbed by the timely intervention of the mother and the sister of the child. The physician who examined the genital organ of the child a few hours after the commission of the crime found a slight inflammation of the exterior parts of the organ, indicating that an effort had been made to enter the vagina, but in testifying before the court he expressed doubts as to whether the entry had been effected. The mother of the child testified that she found its genital organ covered with a sticky substance, but that cannot be considered conclusive evidence of penetration.

It has been suggested that the child was of such tender age that penetration was impossible; that the crime of rape consequently was impossible of consummation; and that, therefore, the offense committed should be treated only asabusos deshonestos. We do not think so. It is probably true that a complete penetration was impossible, but such penetration is not essential to the commission of the crime; it is sufficient if there is a penetration of the labia. In the case of Kenny vs. State ([Tex. Crim. App.], 79 S. W., 817; 65 L. R. A., 316) where the offended party was a child of the age of 3 years and 8 months the testimony of several physicians was to the effect that her labia of the privates of a child of that age can be entered by a man's male organ to the hymen and the defendant was found guilty of the consummated crime rape.

There being no conclusive evidence of penetration of the genital organ of the offended party, the defendant is entitled to the benefit of the doubt and can only be found guilty of frustrated rape, but in view of the fact that he was living in the house of the parents of the child as their guest, the aggravating circumstance of abuse of confidence existed and the penalty must therefore be imposed in its maximum degree.

The judgment appealed from is modified and the defendant-appellant is hereby found guilty of the crime of frustrated rape and is sentenced to suffer twelve years of prision

mayor, with the accessory penalties prescribed by law, and with the costs in both instances. So ordered.

Johnson, Street, Villamor, Romualdez and Villa-Real, JJ., concur.

!

Separate Opinions

MALCOLM, J., dissenting:

In my opinion, the accused is guilty of raping a child 3 years and 11 months of age. It is

consummated rape according to the evidence of record, the findings of the trial judge, and

our decisions. (People vs. Hernandez [1925], 49 Phil., 980; People vs. Oscar [1925], 48

Phil., 527.) The instant case is on all fours with the case of Kenney vs. State (65 L. R. A., 316), cited in the majority decision. In the Kenny case, the penalty was death, and here for this horrible crime, should be placed in the maximum degree or seventeen years, four months, and one day imprisonment, as imposed by the trial court. Accordingly, my vote is for affirmance of the judgment.

!

PEOPLE VS. CASTRO

This is an appeal interposed by the accused, Delfin Castro y Lozada, from the decision* of the Regional Trial Court of Pasay City, Branch 110, imposing upon him the penalty

of reclusion perpetua for statutory rape defined under Art. 335, paragraph 3 of the Revised

Penal Code.

On the witness stand, six (6) year old Diana Rose Castro narrated how, while playing with

a neighbor sometime on 4 October 1986, she was pulled by the accused inside a

bathroom, prevented from going out, and made to stand on the toilet bowl. Accused is a first cousin of Diana Rose's mother. Kuya Delfin, as Diana Rose referred to the accused, then put up her clothes, took off her panty, made her lean on the wall and, despite her

efforts to pull away he inserted his private part into her causing pain. Then she was told by

the accused to go home. At home, she refused to have her private part washed by her

Auntie Alice because it was hurting and painful. 1

Mrs. Jacinta Castro, Diana's grandmother, testified that on 6 October 1986, in her house at No. 1692, F. Muñoz, Tramo, Pasay City, she was asked by her husband to find out why Diana was crying. Her testimony follows. 2

COURT:

Q Was there anything unusual that happened on Oct. 6 particularly in your house?

A On Oct. 6 I was downstairs and there was a call by my husband.

xxx xxx xxx

FISCAL:

Q Now, what was the reason why your husband called you?

A He asked me to fine out why my granddaughter does not want to eat and just keeps on

crying.

Q

And what did you do wen (sic) your husband told you to see your granddaughter?

A

I went upstairs and found out what was wring (sic) with her whether she has fever.

Q

And what did you find out

A

At first she said she was complaining that her private property was painful and when I

investigated I discovered that it swollen (sic).

Q Then what happened after you found out that the private property of your granddaughter

was swollen?

A

I asked her why.

Q

(sic). And what did your granddaughter tell you?

A

At first she told me that "nasabit sa hiyero."

Q

And what did you do after that?

xxx xxx xxx

A What I did was to examine her carefully her private part; I lifted her two (2) legs and I

discovered that her private property was reddened as swollen.

Q

Did you ask her again what happened to her private property?

A

Yes, sir, she told me that she was invited by her Kuya Delfin to the bathroom.

Q

And what else did she tell you?

A

She told me that she was asked by her Kuya to stand on top of the toilet bowl and he

removed her panty and his (sic) Kuya Delfin also removed his pants.

Q What else did she tell you?

A She told me that his (sic) Kuya Delfin had sexual intercourse with her.

COURT:

Q

Did you ask Diane Castro how Delfin allegedly had sexual intercourse with her?

A

Yes, Your Honor.

Q

What did she answer?

A

She was standing and she was made to lean on the wall, Your

Because of Diana's revelation, the grandmother brought her to the National Bureau of Investigation for examination on 8 October 1986. 3

Dr. Roberto Garcia, the NBI medico-legal, had this explanation:

xxx xxx xxx

A Under the single heading of "genital examination" the more insignificant findings will be

the contused or bruised vetibular (sic) meaning the area inside the genital organ of the

subject person; the hymen of the subject person was noted to be bruised or contused

Q Now what do you mean when you say that the genital parts you mentioned were

contused or bruised?

A The area was noted to be purplish or red darker than the normal appearance of the said

portion being bruised or contused it would mean that this particular portion was subject to some amount of force or it could have come in contact with a hard object, the contract must have been done with a certain amount of force.

Q Under No. 2 of the conclusion of this report it reads—"signs of recent genital trauma,

present, consistent with the alleged date of infliction."

Would you explain this?

This witness meant that the appearance of the genital or prior of those mentioned was

seen by this witness which brought about the trauma and that it has to be recent, meaning

it could have been sustained by the subject person in a matter of days prior to the date of

the examination.

A

Now, was the hymen of the subject lacerated?

A

No, sir.

Q

Now this genital trauma which you said to have been suffered by the subject from what

could this injury or trauman (sic), what was the cause?

A

Any hard object would have produced this bruise or contusion.

Q

Now, this is a case of rape, Doctor, would you venture to state from what object this

could have been inflicted?

A

Under the normal course of events injuries of this nature involving this particular portion

of

the body of a female or woman is produced by the insertion of a male organ. 4

xxx xxx xxx

A sworn complaint for rape was filed against Delfin Castro y Lozada. It charged as follows:

That on or about the 4th day of October, 1986 in Pasay City, Philippines and within the jurisdiction of tills Honorable Court, the above named accused, Delfin Castro y Lozada, with lewd designs and taking advantage of his moral ascendancy over the undersigned

complainant who is his niece, did then and there wilfully, unlawfully and feloniously have sexual intercourse with or carnal knowledge of the undersigned. 5

Accused pleaded not guilty and posted bail for his provisional liberty.

Delfin's alibi begins on 3 October 1986 in 1692 Muñoz, Pasay City, where he lives two (2) houses away from complainant's. At about 12:00 P.M., Diana went to his house while he was taking a bath. She was crying and went inside the bathroom. When asked by the accused why, she replied that while going down the stairs, a dog whose two (2) hind legs were limping, chased her and so she tripped. The accused told Diana to go out because their dog might bite her. He proceeded to dress up and saw the victim playing outside.

In the morning of 4 October 1986, he woke up at about quarter to seven, 6 left the house at 7:30 7 took a jeep plying the Pasay-Taft- Luneta route, arrived in school (Adamson University) at 8:15 in the morning. He proceeded to see Dolores Rivera, a godsister who worked in the treasurer's office of the university to ask the latter to type a term paper which was due that day. After submitting the term paper, he treated his godsister to lunch. Around 1:00 o'clock in the afternoon, he went home.

Mrs. Teresita Castro's testimony dovetails with her son Delfin's saying that at around 12:30 P.M. on 4 October 1986, he arrived and ate lunch athome. 8 Mother and son talked of enmity between Mrs. Jacinta Castro, Diana's grandmother and their family. This rape case against Delfin is a result allegedly of the envy of Diana's said grandmother over his (Delfin's) fine scholastic performance. 9

Delfin further narrated that on or about 8 October 1986, he was invited to the Pasay Police Headquarters for questioning. While there, he was asked to undress, was blindfolded and beaten by around 7 to 10 policemen for about half an hour and made to admit that he raped Diana. Since he could no longer stand the torture, he told them that he used his small finger to touch her private part. 10 After the incident, Delfin left their house in order to avoid trouble; occasionally he would visit his parents. 11

Finding the testimony of Diana positive, clear and credible, the Regional Trial Court disregarded the alibi of the accused and convicted him. The trial court, inter alia, stated:

The accused's claim that he was, in the morning of October 4, 1986, at Adamson University waiting for his term paper engenders disbelief. By his evidence, he was enrolled at the Adamson University for the second semester of school 1986-1987 classes for which usually start in October. Term papers are usually submitted at the end of the semester, not at the beginning of the semester. In any event, Delfin was not shown that it was physically impossible for him to be at the place of the incident on October 4, 1986 as, by his evidence, he returned to his house after noontime, rested for a while, then left and returned again in the afternoon. His suggestion that Diana's genital bruises could have resulted from trippling down the stairs when she was chased by a limping dog is ridiculous. A dog whose two hind legs are limping chasing her (where did the dog come from?) while she was going down the stairs? Granted that were possible or that actually happened, the fall would cause abrasions, not hymenal contusions. Finally the defense's insinuation that Diana's grandmother Jacinta who was pictured to be supercilious and envious was behind the filing of this case is difficult to believe, there being no concrete proof thereof. Besides, it would be unthinkable for Jacinta to alienate her relations with all her in-laws, the Castros, who are staying in different houses of the same compound, by fabricating a charge against the accused.

Finally, the accused's flight from his house after the filing of the present case is not consistent with his professed innocence. He did not, according to him, have any good relationship with Diana's grandmother even before October 4, 1986. So what was he fleeing from? His answer, that he wanted to avoid trouble, tells it all

xxx xxx xxx

From the said decision sentencing him to suffer the penalty of reclusion perpetua and indemnify the victim in the amount of P20,000.00 by way of damages, the accused appealed to this Court pointing out the following alleged errors:

1.

there is no rape because —

a.

the hymen of the victim was not lacerated.

b.

the victim was allegedly standing while the crime was being committed.

c.

the victim is still a virgin.

2.

reliance on the conflicting testimony of the victim and not that of the accused.

A recent decision of this Court in a case of statutory rape observed that, usually, the average adult's hymen measures 2.8 to 3 centimeters in diameter, making it compatible with, or easily penetrable by an average size penis. The victim being of tender age, the penetration of the male organ could go only as deep as the labia. In any case, for rape to be committed, full penetration is not required. It is enough that there is proof of entrance of the male organ within the labia or pudendum of the female organ. Even the slightest penetration is sufficient to consummate the crime of rape. 12

Perfect penetration, rupture of the hymen or laceration of the vagina are not essential for

the offense of consummated rape. Entry, to the least extent, of the labia or lips of the

female organ is sufficient. 13 Diana's remaining a virgin does not negate rape.

Sexual intercourse in a standing position, while perhaps uncomfortable, is not improbable. The RTC decision explained:

For her account that she was made to stand on the toilet bowl made it easy for the accused to do the act as she was too small and their private parts would not align unless

she was elevated to a higher position. The suggestion of the defense counsel that a finger

could have been used is absurd. For if it were only a finger there would have been no

need to let Diana stand on the toilet bowl

.

. 14

The Solicitor General's brief, in turn, asserts that the position Diana was forced to take, made it easier for appellant to accomplish insertion of his organ than if Diana had been made to lie down. 15

Experience has shown that unfounded charges of rape have frequently been proffered by women actuated by some sinister, ulterior or undisclosed motive. Convictions in such

cases should not be sustained without clear and convincing proof of guilt, 16 considering

the gravity of the offense and the penalty it carries.

On the alleged sinister motive of Diana's grandmother engendered by envy, we find this incredulous. For, what grandmother would exact vengeance on her enemies at the perpetual humiliation and disrepute of her six (6) year old granddaughter?

Finally, the issue of credibility. Who among the contending parties is telling the truth? The prosecution's evidence is simple and straightforward. Appellant's alibi must fall. Claims of his scholastic achievements, assuming they are relevant, were unsubstantiated. His counsel did not even formally offer the exhibits attesting to his enrollment at Adamson University where he was supposed to have submitted in the morning of 4 October 1986 a term paper. His credibility is dubious; he was not able to even identify the topic of his alleged term paper. To discredit the victim he testified on her alleged propensity to tell lies. 17 The trial court, however, categorically held:

While Diana's testimony was in some instances flawed, the flaw was minor and only with respect to dates. She is a young girl. She sat at the witness stand four times, yet she survived the rigors of testifying, unwavering in her claim that she was raped. 18

Accused-appellant claims he was coerced and tortured by Pasay policemen to admit the rape, showing to the trial court bodily signs of said abuse. 19 Aside from his self-serving assertion, the truth of such allegation was not proven. Besides, this allegedly coerced admission of guilt cannot affect the prosecution's case which has been established by other positive evidence pointing to his guilt beyond reasonable doubt.

Finding no reversible error in the decision subject of this appeal, we affirm the same in its entirety.

WHEREFORE, the decision is AFFIRMED. Accused-appellant is sentenced to suffer the penalty of reclusion perpetua and to indemnify the victim, Diana Rose Castro in the amount of P30,000.00 in line with prevailing jurisprudence. Costs against the appellant.

SO ORDERED.

! Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur. ! PEOPLE VS. ATENTO !
!
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.
!
PEOPLE VS. ATENTO
!

Asked how she felt while she was being raped, the complainant replied: "Masarap." The trial judge believed her but just the same convicted the accused-appellant. The case is now before us.

The complainant is Glenda Aringo, who was sixteen years old at the time of the alleged offense. She is the neighbor of Cesar Atento, the herein accused-appellant, a 39-year old store-keeper with a wife and eight children. Her claim is that Atento raped her five separate times, the first sometime in April 1986.

She says that on that first occasion she went to Atento's store in Barangay 18, Minoro, Cabagñan, in Legazpi City to buy bread. Her parents were at work and Atento was alone in his house except for his three-year old daughter. Glenda claims Atento cajoled her into coming inside the house and then took her downstairs, where he succeeded in deflowering her. She says her maiden head ached and bled. Afterwards, he gave her P5.00.

Glenda speaks of four other times when he raped her. It was later (presumably because her hymen had healed) that she felt tickled by his manhood and described the act of coitus as "masarap." 1

The girl says she never told anybody about Atento's attacks on her because he had threatened her life. But she could not conceal her condition for long and after five months had to admit she was pregnant. She revealed the accused-appellant as the father of the foetus in her womb. The child was delivered on December 27, 1987, and christened Hubert Buendia Aringo.

Atento denies the charge against him, saying it was pure harassment concocted by a relative of the girl who wanted to eject him from the land where his house was erected. Insisting that Glenda was a girl of loose morals, he says he had twice seen her in sexual congress with a man and that she had once offered her body to his thirteen year old son for a fee of P5.00.

Glenda's description of the act of coitus as pleasurable would have destroyed the whole case against Atento but for one singular significant fact. The girl is a mental retardate.

Ascendo Belmonte, a clinical psychologist at Don Susano Rodriguez Memorial Mental Hospital, subjected the girl to a series of intelligence tests, to wit, the Wecslar adult intelligence scale, revised beta exam, standard progressive matrices, and the Bender visual motor gestalt test, with the following findings:

Glenda B. Aringo, who was born on June 18, 1970, is INTER ALIA with an intellectual capacity between the ages of nine (9) and twelve (12) years. As such, her intellectual functioning is within the mentally defective level. Her fund of information is inadequate, her judgment is unsound, her thinking and working capacity is poor. She is unable to distinguish essential from non-essential details. Her vocabulary is limited. Her capacity for her perceptual processes is unsatisfactory. She lacks the capacity for abstracting and synthesizing concepts. However, in the midst of all these, Glenda was found capable of telling the truth. 2

Benita Aringo, Glenda's mother, testified that her daughter reached only third grade and did not like to continue studying, preferring to play with children younger than she, even when she was already pregnant. After delivering her child, she would often leave its care to Benita, and play marbles with the children rather than feed her baby. Another relative, Caridad Aringo, testified that Glenda had the mentality of a 12-year old and was fond of rubber bands and playing cards.

The Court finds this to be the reason why, while a rape victim with normal intelligence, would have said that the attack on her caused her much physical pain and mental agony, Glenda naively declared that Atento's sexual organ in hers gave her much pleasure.

It is worth observing that Glenda's child was born on December, nine months after her rape in April, and that, according to the trial judge, there was a remarkable resemblance between Atento and the boy.

Article 335 of the Revised Penal Code provides:

Art. 335. When and how rape committed. –– Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious and

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

xxx xxx xxx

It has not been clearly established that Atento employed force or threat against Glenda to make her submit to his lust. Nevertheless, there is no question that Atento is guilty of rape upon Glenda under paragraph 2, because the girl was deprived of reason. Alternatively, he is liable under paragraph 3, because his victim had the mentality of a girl less than twelve years old at the time she was raped.

In People v. Atutubo, 3 this Court held:

It is not necessary under Article 335 for the culprit to actually deprive the victim of reason prior to the rape, as by the administration of drugs or by some other illicit method. Ms provision also applies to cases where the woman has been earlier deprived of reason by other causes, as when she is congenitally retarded or has previously suffered some traumatic experience that has lowered her mental capacity. In such situations, the victim is in the same category as a child below 12 years of age for lacking the necessary will to object to the attacker's lewd intentions.

In People v. Palma, 4 where a 14-year old mental retardate was another rape victim, we held that:

The crime committed by Palma is rape under Article 335(2) of the Revised Penal Code. Copulation with a woman known to be mentally incapable of giving even an imperfect consent is rape. Physical intimidation need not precede sexual intercourse considering the age, mental abnormality and deficiency of the complainant.

So also in People v. Sunga, 5 where the offended party was 23 years old with the mentality of a child about 8 to 9 years of age:

Because of her mental condition, complainant is incapable of giving consent to the sexual intercourse. She is in the same class as a woman deprived of reason or otherwise unconscious. Appellant therefore committed rape in having sexual intercourse with her.

In his authoritative work on Criminal Law, Chief Justice Aquino explains Paragraph 2 as follows. 6

in the rape of a woman deprived of reason or unconscious, the victim has no will. The absence of will determines the existence of the rape. Such lack of will may exist not only when the victim is unconscious or totally deprived of reason, but also when she is suffering some mental deficiency impairing her reason or free will. In that case, it is not necessary that she should offer real opposition or constant resistance to the sexual intercourse. Carnal knowledge of a woman so weak in intellect as to be incapable of legal consent constitutes rape. Where the offended woman was feeble-minded, sickly and almost an

idiot, sexual intercourse with her is rape. Her failure to offer resistance to the act did not mean consent for she was incapable of giving any rational consent.

The deprivation of reason need not be complete. Mental abnormality or deficiency is enough. Cohabitation with a feeble-minded, idiotic woman is rape.

The trial court, however, held Atento guilty of rape under Paragraph 3, citing People v. Asturias, 7 where it was held:

Assuming that complainant Vilma Ortega voluntarily submitted herself to the bestial desire of appellant still the crime committed is rape under paragraph 3 of Article 335 of the Revised Penal Code. This is so even if the circumstances of force and intimidation, or of the victim being deprived of reason or otherwise unconscious are absent. The victim has the mentality of a child below seven years old. If sexual intercourse with a victim under twelve years of age is rape, then it should follow that carnal knowledge with a seventeen- year old girl whose mental capacity is that of a seven year old child would constitute rape.

In coming to his conclusion, Judge Gregorio A. Consulta declared:

Given the low I.Q. of Glenda, it is impossible to believe that she could have fabricated her charges against the accused. She lacks the gift of articulation and inventiveness. She could not even explain with ease the meaning of rape, a term which she learned in the community. Even with intensive coaching, assuming that happened, on the witness stand where she was alone, it would show with her testimony falling into irretrievable pieces. But that did not happen. She proceeded, though with much difficulty, with childlike innocence. A smart and perspicacious person would hesitate to describe to the Court her sexual experiences as "tickling" and "masarap" for that would only elicit disdain and laughter. Only a simple-minded artless child would do it. And Glenda falls within the level of a 9-12 year old child. And Glenda was telling the truth!

There is no doubt that when she submitted herself to the accused later for subsequent intercourses, she was dominated more by fear and ignorance than by reason.

In any event, whether under paragraph 2 or under paragraph 3 of Article 335 of the Revised Penal Code, the accused-appellant deserves to be punished for the rape of Glenda Azingo.

The trial court found the accused-appellant guilty of rape as charged, meaning that he raped the victim five times, but we do not agree that the other four rapes have been conclusively proven. Otherwise, he would have to be punished for five separate rapes. Except for this and the civil indemnity, which is increased from P20,000.00 to P30,000.00, we agree with the sentence imposing on him the penalty of reclusion perpetua, the obligation to acknowledge and support Hubert Buendia Aringo as his own spurious child, and to pay the costs.

WHEREFORE, the appealed judgment is AFFIRMED as above modified. It is so ordered.

Narvasa, Gancayco, Griño-Aquiño and Medialdea, JJ., concur.

!

PEOPLE VS. CAMPUHAN

On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated rape[2] and allowed only attempted rape and consummated rape to remain in our statute books. The

instant case lurks at the threshold of another emasculation of the stages of execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would be considered consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is absurd.

In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential; any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labiaor lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ because not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt acts.[3] The inference that may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage.

But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry of the penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora, labia minora, etc.,[4] the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be gainsaid because where entry into the labia or the lips of the female genitalia has not been established, the crime committed amounts merely to attempted rape.

Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused - a reclusive life that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in light of the view of those who disagree with this ponencia?

On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of death,[5] hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659.

[6]

As may be culled from the evidence on record, on 25 April 1996, at around 4 o’clock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan,

went down from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her children’s room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already removed, while his short pants were down to his knees.

According to Corazon, Primo was forcing his penis into Crysthel’s vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their compound, to chase the accused. [8] Seconds later, Primo was apprehended by those who answered Corazon's call for help. They held the accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on Crysthel’s body as her hymen was intact and its orifice was only 0.5 cm. in diameter.

Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her.[9] He asserted that in truth Crysthel was in a playing mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor.

Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him.

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.

The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthel’s younger sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened within the family compound where a

call for assistance could easily be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of Crysthel’s private parts more than bolsters his innocence.

In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel’s vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge.[10] But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or thepudendum.

In People v. De la Peña[11] we clarified that the decisions finding a case for rape even if the attacker’s penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused

repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva,[12] or

that

[13] Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape.[14] As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of thepudendum constitutes consummated rape.

the

penis

of

the

accused

touched

the

middle

part

of

her

vagina.

The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora.[15]Jurisprudence dictates

that the labia majora must be entered for rape to be consummated,[16] and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.

Judicial depiction of consummated rape has not been confined to the oft-quoted "touching

of the female organ,"[17] but has also progressed into being described as "the introduction

of the male organ into the labia of the pudendum,"[18] or "the bombardment of the drawbridge."[19] But, to our mind, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion."

A review of the records clearly discloses that the prosecution utterly failed to discharge

its onus of proving that Primo’s penis was able to penetrate Crysthel’s vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter- genital contact between Primo and Crysthel. When asked what she saw upon entering her children’s room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus:

Q: How was Primo holding your daughter?

A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim).

It can reasonably be drawn from the foregoing narration that Primo’s kneeling position

rendered an unbridled observation impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primo’s penis supposedly reaching Crysthel’s external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements from Corazon’s sight, not to discount the fact that Primo’s right hand was allegedly holding his penis thereby blocking it from Corazon’s view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into

the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent.

Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the opportunity to fully witness his beastly act.

We are not persuaded. It is inconsistent with man’s instinct of self-preservation to remain where he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of Corazon’s

presence would have been to pull his pants up to avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal his evil design.

What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court -

Q: Did the penis of Primo touch your organ?

A: Yes, sir.

But when asked further whether his penis penetrated her organ, she readily said, "No." Thus -

Q: But did his penis penetrate your organ?

A: No, sir.[20]

This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primo’s penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration,[21] obviously induced by a question propounded to her who could not have been aware of the finer distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accusedtouched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel.[22] Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection.[23] On the contrary, Corazon even narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim.

Antithetically, the possibility of Primo’s penis having breached Crysthel’s vagina is belied by the child's own assertion that she resisted Primo’s advances by putting her legs close together;[24] consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible. [26] None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death.

Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining witness’ body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not negate the possibility

of contact, she clarified that there was no medical basis to hold that there was sexual contact between the accused and the victim.[27]

In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. All the elements of attempted rape - and only of attempted rape - are present in the instant case, hence, the accused should be punished only for it.

The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods.

WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Panganiban, J., in the result.