SECOND DIVISION

[G.R. No. 138033. February 22, 2006.]

JR. petitioner, vs . PEOPLE OF THE PHILIPPINES,

RENATO BALEROS, JR., PHILIPPINES
respondent.

DECISION

GARCIA J :
GARCIA, p

In this petition for review on certiorari, petitioner Renato Baleros, Jr. assails and seeks the
reversal of the January 13, 1999 decision 1 of the Court of Appeals (CA) in CA-G.R. CR No.
17271 as reiterated in its March 31, 1999 resolution 2 denying petitioner's motion for
reconsideration.
The assailed decision affirmed an earlier decision of the Regional Trial Court (RTC) of
Manila, Branch 2, in Criminal Case No. 91-101642 finding petitioner Renato Baleros, Jr. y
David (CHITO) guilty of attempted rape. 3
The accusatory portion of the information 4 dated December 17, 1991 charging petitioner
with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in
Manila and within the jurisdiction of this Honorable Court, the above-named
accused, by forcefully covering the face of Martina Lourdes T. Albano with a
piece of cloth soaked in chemical with dizzying effects, did then and there
willfully, unlawfully and feloniously commenced the commission of rape by lying
on top of her with the intention to have carnal knowledge with her but was unable
to perform all the acts of execution by reason of some cause or accident other
than his own spontaneous desistance, said acts being committed against her will
and consent to her damage and prejudice.

Upon arraignment on February 5, 1992, petitioner, assisted by counsel, pleaded "Not

Guilty." 5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them were
private complainant Martina Lourdes Albano (Malou), and her classmates, Joseph Bernard
Africa, Rommel Montes, Renato Alagadan and Christian Alcala. Their testimonies, as
narrated in some detail in the decision of the CA, established the following facts:
Like most of the tenants of the Celestial Marie Building (hereafter "Building", . . .)
along A.H. Lacson Street, Sampaloc, Manila, MALOU, occupying Room 307 with
her maid, Marvilou Bebania (Marvilou), was a medical student of the University of
Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30.
Outside, right in front of her bedroom door, her maid, Marvilou, slept on a folding
bed. IcHEaA

Early morning of the following day, MALOU was awakened by the smell of
chemical on a piece of cloth pressed on her face. She struggled but could not
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 move. Somebody was pinning her down on the bed, holding her tightly. She
wanted to scream for help but the hands covering her mouth with cloth wet with
chemicals were very tight (TSN, July 5, 1993, p. 33). Still, MALOU continued
fighting off her attacker by kicking him until at last her right hand got free. With
this . . . the opportunity presented itself when she was able to grab hold of his sex
organ which she then squeezed.

The man let her go and MALOU went straight to the bedroom door and roused
Marvilou. . . . . Over the intercom, MALOU told S/G Ferolin that: "may pumasok sa
kuarto ko pinagtangkaan ako" (Ibid., p. 8). Who it was she did not, however, know.
The only thing she had made out during their struggle was the feel of her
attacker's clothes and weight. His upper garment was of cotton material while
that at the lower portion felt smooth and satin-like (Ibid, p. 17). He . . . was
wearing a t-shirt and shorts . . . Original Records, p. 355).

To Room 310 of the Building where her classmates Christian Alcala, Bernard
Baptista, Lutgardo Acosta and Rommel Montes were staying, MALOU then
proceeded to seek help. . . . .

It was then when MALOU saw her bed . . . topsy-turvy. Her nightdress was stained
with blue . . . (TSN, July 5, 1993, pp. 13-14). Aside from the window with grills
which she had originally left opened, another window inside her bedroom was
now open. Her attacker had fled from her room going through the left bedroom
window (Ibid, Answers to Question number 5; Id), the one without iron grills which
leads to Room 306 of the Building (TSN, July 5, 1993, p. 6).

xxx xxx xxx

Further, MALOU testified that her relation with CHITO, who was her classmate . . .,
was friendly until a week prior to the attack. CHITO confided his feelings for her,
telling her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him.
. . . . (TSN, July 5, 1993, p. 22).

Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the
Building at 1:30 in the early morning of December 13, 1991, wearing a white t-shirt
with "'. . . a marking on the front of the T-shirt T M and a Greek letter (sic) SF' and
below the quoted letters the word '1946' 'UST Medicine and Surgery'" (TSN,
October 9, 1992, p. 9) and black shorts with the brand name "Adidas" (TSN,
October 16, 1992, p. 7) and requested permission to go up to Room 306. This Unit
was being leased by Ansbert Co and at that time when CHITO was asking
permission to enter, only Joseph Bernard Africa was in the room.
He asked CHITO to produce the required written authorization and when CHITO
could not, S/G Ferolin initially refused [but later, relented] . . . . S/G Ferolin made
the following entry in the security guard's logbook . . . .:

"0130H Baleros Renato Jr. is a visitor of Ansbert Co who has not have (sic)
a Request letter from our tenant of Unit #-306 Ansbert, but still I let him
inter (sic) for the reason that he will be our tenant this coming summer
break as he said so I let him sign it here

(Sgd.) Baleros Renato Jr."

(Exhibit "A-2")

That CHITO arrived at Room 306 at 1:30 A.M. of December 13, 1991 was
corroborated by Joseph Bernard Africa (Joseph), . . . .
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 xxx xxx xxx

Joseph was already inside Room 306 at 9 o'clock in the evening of December 12,
1991. . . . by the time CHITO's knocking on the door woke him up, . . . . He was
able to fix the time of CHITO's arrival at 1:30 A.M. because he glanced at the
alarm clock beside the bed when he was awakened by the knock at the door . . . .
TEHIaD

Joseph noticed that CHITO was wearing dark-colored shorts and white T-shirt
(Ibid., p. 23) when he let the latter in. . . . . It was at around 3 o'clock in the morning
of December 13, 1991 when he woke up again later to the sound of knocking at
the door, this time, by Bernard Baptista (Bernard), . . . .

. . . . With Bernard, Joseph then went to MALOU's room and thereat was shown by
Bernard the open window through which the intruder supposedly passed.

xxx xxx xxx

Later, at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally
able to talk to CHITO . . . . He mentioned to the latter that something had
happened and that they were not being allowed to get out of the building. Joseph
also told CHITO to follow him to Room 310.

CHITO did just that. He followed after Joseph to Unit 310, carrying his gray bag. . .
. . None was in Room 310 so Joseph went to their yet another classmate, Renato
Alagadan at Room 401 to see if the others were there. . . . .

People from the CIS came by before 8 o'clock that same morning . . . . They
likewise invited CHITO and Joseph to go with them to Camp Crame where the two
(2) were questioned . . . .

An occupant of Room 310 . . . Christian Alcala (Christian) recalled in Court that in

the afternoon of December 13, 1991, after their 3:30 class, he and his roommates,
Bernard Baptista and Lutgardo Acosta (Gary) were called to the Building and were
asked by the CIS people to look for anything not belonging to them in their Unit.
While they were outside Room 310 talking with the authorities, Rommel Montes
(Loyloy), another roommate of his, went inside to search the Unit. Loyloy found
(TSN, January 12, 1993, p. 6) a gray "Khumbella" bag cloth type (Ibid, pp. 44-45)
from inside their unit which they did not know was there and surrender the same
to the investigators. When he saw the gray bag, Christian knew right away that it
belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to
school inside the classroom (Ibid, p. 45).

In their presence, the CIS opened the bag and pulled out its contents, among
others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black Adidas
short pants, a handkerchief, three (3) white T-shirts, an underwear, and socks
(Ibid).

Christian recognized the t-shirt (Exhibit "D-4"), the Adidas short pants (Exhibit "D-
5"), and the handkerchief (Exhibit "D-3) to be CHITO's because CHITO had lent the
very same one to him . . . . The t-shirt with CHITO's fraternity symbol, CHITO used
to wear on weekends, and the handkerchief he saw CHITO used at least once in
December.

That CHITO left his bag inside Room 310 in the morning of December 13, 1991,
was what consisted mainly of Renato R. Alagadan's testimony.

xxx xxx xxx

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 The colored gray bag had a handle and a strap, was elongated to about 11/4 feet
and appeared to be full but was closed with a zipper when Renato saw it then
(Ibid, pp. 19-20). At that time Christian, Gary, Bernard, and Renato went back to
Room 310 at around 3 to 4 o'clock that afternoon along with some CIS agents,
they saw the bag at the same place inside the bedroom where Renato had seen
CHITO leave it. Not until later that night at past 9 o'clock in Camp Crame, however,
did Renato know what the contents of the bag were.

xxx xxx xxx

The forensic Chemist, Leslie Chambers, of the Philippine National Police Crime
Laboratory in Camp Crame, having acted in response to the written request of
PNP Superintendent Lucas M. Managuelod dated December 13, 1991, (Exhibit "C";
Original Records, p. 109.) conducted laboratory examination on the specimen
collated and submitted. . . . Her Chemistry Report No. C-487-91 (Exhibit "E"; Ibid., p.
112) reads in part, thus:

"SPECIMEN SUBMITTED:

xxx xxx xxx

1) One (1) small white plastic bag marked 'UNIMART' with the
following:

xxx xxx xxx

Exh 'C' — One (1) night dress colored salmon pink. EDATSI

2) One (1) small white plastic bag marked 'JONAS' with the following:

Exh. 'D' — One (1) printed handkerchief.

Exh. 'E' — One (1) white T-shirt marked 'TMZI'.

Exh. 'F' — One (1) black short (sic) marked 'ADIDAS'.

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of volatime (sic), non-volatile and/or metallic

poison on the above stated specimens.

FINDINGS:

Toxicological examination conducted on the above stated specimens gave

the following results:

Exhs. 'C' and 'D' — POSITIVE to the test for chloroform, a volatile
poison.

Exhs. 'A', 'B', 'E' and 'F' are insufficient for further analysis.

CONCLUSION:

Exhs. 'C' and 'D' contain chloroform, a volatile poison." 6 (Words in

bracket added)

For its part, the defense presented, as its main witness, the petitioner himself. He denied
committing the crime imputed to him or making at any time amorous advances on Malou.
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 Unfolding a different version of the incident, the defense sought to establish the following,
as culled from the same decision of the appellate court:
In December of 1991, CHITO was a medical student of . . . (UST). With Robert
Chan and Alberto Leonardo, he was likewise a member of the Tau Sigma Phi
Fraternity . . . . MALOU, . . ., was known to him being also a medical student at the
UST at the time.

From Room 306 of the Celestial Marie Building . . ., CHITO, wearing the prescribed
barong tagalog over dark pants and leather shoes, arrived at their Fraternity house
located at . . . Dos Castillas, Sampaloc, Manila at about 7 o'clock in the evening of
December 12, 1991. He was included in the entourage of some fifty (50) fraternity
members scheduled for a Christmas gathering at the house of their senior
fraternity brother, Dr. Jose Duran, at No. 3 John Street, North Greenhills, San Juan.
....

The party was conducted at the garden beside [the] swimming pool . . . . Soon
after, . . . the four (4) presidential nominees of the Fraternity, CHITO included, were
being dunked one by one into the pool. . . . .

. . . CHITO had anticipated his turn . . . and was thus wearing his t-shirt and long
pants when he was dunked. Perla Duran, . . ., offered each . . . dry clothes to
change into and CHITO put on the white t-shirt with the Fraternity's symbol and a
pair of black shorts with stripes. . . . .

Again riding on Alberto's car and wearing "barong tagalog over a white t-shirt with
the symbol TAU Sigma Phi, black short pants with stripe, socks and shoes" (TSN,
April 25, 1994, p. 15), CHITO left the party with Robert Chan and Alberto at more
or less past 1 A.M. of December 13, 1991 and proceeded to the Building which
they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling bag
containing "white t-shirt, sando, underwear, socks, and toothbrush (Ibid., pp. 17-
18) at room 306 in the afternoon of the previous day . . . .

At the gate of the Building, CHITO knocked and . . ., S/G Ferolin, looking at his
watch, approached. Because of this, CHITO also looked at his own watch and
saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin initially refused CHITO entry .
...

S/G Ferolin called Unit 306 . . . . When S/G Ferolin finally let him in, already about
ten (10) minutes had lapsed since CHITO first arrived (Ibid., p. 25). cDTCIA

CHITO went up the floor, found the key left for him by Joseph behind the opened
jalousie window and for five (5) minutes vainly tried to open the door until
Rommel Montes, . . . approached him and even commented: "Okey ang suot mo
ha, di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open the door of
Unit 306 . . . but was likewise unsuccessful. CHITO then decided to just call out to
Joseph while knocking at the door.

It took another (5) minutes of calling out and knocking before Joseph, . . ., at last
answered the door. Telling him, "Ikaw na ang bahala diyan" Joseph immediately
turned his back on CHITO and went inside the bedroom. CHITO, . . . changed to a
thinner shirt and went to bed. He still had on the same short pants given by Perla
Duran from the fraternity party (TSN, June 16, 1994, p. 20).

At 6 o'clock in the morning of December 13, 1991, CHITO woke up . . . . He was

already in his school uniform when, around 6:30 A.M, Joseph came to the room
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 not yet dressed up. He asked the latter why this was so and, without elaborating
on it, Joseph told him that something had happened and to just go to Room 310
which CHITO did.

At Room 310, CHITO was told by Rommel Montes that somebody, whom MALOU
was not able to identify, went to the room of MALOU and tried to rape her (TSN,
April 25, 1994, p. 36). . . . .

Joseph told him that the security guard was not letting anybody out of the
Building . . . . When two (2) CIS men came to the unit asking for Renato Baleros,
CHITO presented himself. Congressman Rodolfo B. Albano, father of MALOU,
then asked him for the key to Room 306. . . .
xxx xxx xxx

The CIS men looked inside the bedroom and on the windows. Joseph was told to
dress up and the two (2) of them, CHITO and Joseph, were brought to Camp
Crame.

When they arrived at Camp Crame . . ., Col. Managuelod asked Joseph inside his
room and talked to him for 30 minutes. . . . . No one interviewed CHITO to ask his
side.

xxx xxx xxx

Both CHITO and Joseph were taken to Prosecutor Abesamis who later instructed
them to undergo physical examination at the Camp Crame Hospital . . . . . At the
hospital, . . . CHITO and Joseph were physically examined by a certain Dr. de
Guzman who told them to strip . . . .

xxx xxx xxx

CHITO had left his gray bag containing, among others, the black striped short
pants lent to him by Perla Duran (Exhibit "8-A", Original Records, p. 345), inside
Room 310 at more/less 6:30 to 7 o'clock in the morning of December 13, 1991.
The next time that he saw it was between 8 to 9 P.M. when he and Joseph were
brought before Fiscal Abesamis for inquest. One of the CIS agents had taken it
there and it was not opened up in his presence but the contents of the bag were
already laid out on the table of Fiscal Abesamis who, however, made no effort to
ask CHITO if the items thereat were his.

The black Adidas short pants purportedly found in the bag, CHITO denied putting
in his gray bag which he had left at Room 306 in the early evening of December
12, 1991 before going to the fraternity house. He likewise disavowed placing said
black Adidas short pants in his gray bag when he returned to the apartment at
past 1:00 o'clock in the early morning of December 13, 1991 (TSN, June 16, 1994,
p. 24), nor when he dressed up at about 6 o'clock in the morning to go to school
and brought his gray bag to Room 310 (Ibid. 25). In fact, at any time on December
13, 1991, he was not aware that his gray bag ever contained any black short
Adidas pants (Ibid). He only found out for the first time that the black Adidas
short pants was alluded to be among the items inside his gray bag late in the
afternoon, when he was in Camp Crame. CaASIc

Also taking the witness stand for the defense were petitioner's fraternity brothers, Alberto
Leonardo and Robert Chan, who both testified being with CHITO in the December 12, 1991
party held in Dr. Duran's place at Greenhills, riding on the same car going to and coming
from the party and dropping the petitioner off the Celestial Marie building after the party.
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 Both were one in saying that CHITO was wearing a barong tagalog, with t-shirt inside, with
short pants and leather shoes at the time they parted after the party. 7 Rommel Montes, a
tenant of Room 310 of the said building, also testified seeing CHITO between the hours of
1:30 and 2:00 A.M. of December 13, 1991 trying to open the door of Room 306 while clad
in dark short pants and white barong tagalog.
On the other hand, Perla Duran confirmed lending the petitioner the pair of short pants with
stripes after the dunking party held in her father's house. 8 Presented as defense expert
witness was Carmelita Vargas, a forensic chemistry instructor whose actual
demonstration in open court showed that chloroform, being volatile, evaporates in thirty
(30) seconds without tearing nor staining the cloth on which it is applied. 9
On December 14, 1994, the trial court rendered its decision 1 0 convicting petitioner of
attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the foregoing, the Court
finds the accused Renato D. Baleros, Jr., alias "Chito", guilty beyond reasonable
doubt of the crime of attempted rape as principal and as charged in the
information and hereby sentences him to suffer an imprisonment ranging from
FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1) DAY of Prision Correccional, as
Minimum to TEN (10) YEARS of Prision Mayor as Maximum, with all the
accessory penalties provided by law, and for the accused to pay the offended
party Martina Lourdes T. Albano, the sum of P50,000.00 by way of Moral and
exemplary damages, plus reasonable Attorney's fees of P30,000.00, without
subsidiary imprisonment in case of insolvency, and to pay the costs.

SO ORDERED.

Aggrieved, petitioner went to the CA whereat his appellate recourse was docketed as CA-
G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed Decision dated January 13, 1999,
affirmed the trial court's judgment of conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate from the findings of
the court a quo, the decision appealed from is hereby AFFIRMED in toto. Costs
against appellant.

SO ORDERED. 1 1

Petitioner moved for reconsideration, but his motion was denied by the CA in its equally
assailed resolution of March 31, 1999. 1 2

Petitioner is now with this Court, on the contention that the CA erred —
1. In not finding that it is improbable for petitioner to have committed the
attempted rape imputed to him, absent sufficient, competent and
convincing evidence to prove the offense charged.

2. In convicting petitioner of attempted rape on the basis merely of

circumstantial evidence since the prosecution failed to satisfy all the
requisites for conviction based thereon.

3. In not finding that the circumstances it relied on to convict the petitioner

are unreliable, inconclusive and contradictory.
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 4. In not finding that proof of motive is miserably wanting in his case.

5. In awarding damages in favor of the complainant despite the fact that the
award was improper and unjustified absent any evidence to prove the
same. SAEHaC

6. In failing to appreciate in his favor the constitutional presumption of

innocence and that moral certainty has not been met, hence, he should be
acquitted on the ground that the offense charged against him has not been
proved beyond reasonable doubt.

Otherwise stated, the basic issue in this case turns on the question on whether or not the
CA erred in affirming the ruling of the RTC finding petitioner guilty beyond reasonable
doubt of the crime of attempted rape.
After a careful review of the facts and evidence on record in the light of applicable
jurisprudence, the Court is disposed to rule for petitioner's acquittal, but not necessarily
because there is no direct evidence pointing to him as the intruder holding a chemical-
soaked cloth who pinned Malou down on the bed in the early morning of December 13,
1991.
Positive identification pertains essentially to proof of identity and not per se to that of
being an eyewitness to the very act of commission of the crime. There are two types of
positive identification. A witness may identify a suspect or accused as the offender as an
eyewitness to the very act of the commission of the crime. This constitutes direct
evidence. There may, however, be instances where, although a witness may not have
actually witnessed the very act of commission of a crime, he may still be able to positively
identify a suspect or accused as the perpetrator of a crime as when, for instance, the latter
is the person or one of the persons last seen with the victim immediately before and right
after the commission of the crime. This is the second type of positive identification, which
forms part of circumstantial evidence. 1 3 In the absence of direct evidence, the
prosecution may resort to adducing circumstantial evidence to discharge its burden.
Crimes are usually committed in secret and under condition where concealment is highly
probable. If direct evidence is insisted under all circumstances, the prosecution of vicious
felons who committed heinous crimes in secret or secluded places will be hard, if not well-
nigh impossible, to prove. 1 4
Section 4 of Rule 133 of the Rules of Court provides the conditions when circumstantial
evidence may be sufficient for conviction. The provision reads:
Sec. 4. Circumstantial evidence, when sufficient — Circumstantial evidence is
sufficient for conviction if —

a) There is more than one circumstance;

b) The facts from which the inferences are derived are proven; and

c) The combination of all the circumstances is such as to produce a

conviction beyond reasonable doubt.

In the present case, the positive identification of the petitioner forms part of circumstantial
evidence, which, when taken together with the other pieces of evidence constituting an
unbroken chain, leads to only fair and reasonable conclusion, which is that petitioner
was the intruder in question.
question
We quote with approval the CA's finding of the circumstantial evidence that led to the
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 identity of the petitioner as such intruder:
Chito was in the Building when the attack on MALOU took place. He had access
to the room of MALOU as Room 307 where he slept the night over had a window
which allowed ingress and egress to Room 306 where MALOU stayed. Not only
the Building security guard, S/G Ferolin, but Joseph Bernard Africa as well
confirmed that CHITO was wearing a black "Adidas" shorts and fraternity T-shirt
when he arrived at the Building/Unit 307 at 1:30 in the morning of December 13,
1991. Though it was dark during their struggle, MALOU had made out the feel of
her intruder's apparel to be something made of cotton material on top and shorts
that felt satin-smooth on the bottom.

From CHITO's bag which was found inside Room 310 at the very spot where
witness Renato Alagadan saw CHITO leave it, were discovered the most
incriminating evidence: the handkerchief stained with blue and wet with some
kind of chemicals; a black "Adidas" satin short pants; and a white fraternity T-
shirt, also stained with blue. A different witness, this time, Christian Alcala,
identified these garments as belonging to CHITO. As it turned out, laboratory
examination on these items and on the beddings and clothes worn by MALOU
during the incident revealed that the handkerchief and MALOU's night dress both
contained chloroform, a volatile poison which causes first degree burn exactly like
what MALOU sustained on that part of her face where the chemical-soaked cloth
had been pressed. CSIcHA

This brings the Court to the issue on whether the evidence adduced by the prosecution has
established beyond reasonable doubt the guilt of the petitioner for the crime of attempted
rape.
The Solicitor General maintained that petitioner, by pressing on Malou's face the piece of
cloth soaked in chemical while holding her body tightly under the weight of his own, had
commenced the performance of an act indicative of an intent or attempt to rape the
victim. It is argued that petitioner's actuation thus described is an overt act contemplated
under the law, for there can not be any other logical conclusion other than that the
petitioner intended to ravish Malou after he attempted to put her to an induced sleep. The
Solicitor General, echoing what the CA said, adds that if petitioner's intention was
otherwise, he would not have lain on top of the victim. 1 5
Under Article 335 of the Revised Penal Code, rape is committed by a man who has carnal
knowledge or intercourse with a woman under any of the following circumstances: (1) By
using force or intimidation; (2) When the woman is deprived of reason or otherwise
unconscious; and (3) When the woman is under twelve years of age or is demented. Under
Article 6, in relation to the aforementioned article of the same 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. 1 6
Expounding on the nature of an attempted felony, the Court, speaking thru Justice Claro M.
Recto in People vs. Lamahang, 1 7 stated that "the attempt which the Penal Code punishes
is that which has a logical connection to a particular, concrete offense; that which is the
beginning of the execution of the offense by overt acts of the perpetrator, leading directly
to its realization and consummation." Absent the unavoidable connection, like the logical
and natural relation of the cause and its effect, as where the purpose of the offender in
performing an act is not certain, meaning the nature of the act in relation to its objective is
ambiguous, then what obtains is an attempt to commit an indeterminate offense, which is
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 not a juridical fact from the standpoint of the Penal Code. 1 8
There is absolutely no dispute about the absence of sexual intercourse or carnal
knowledge in the present case. The next question that thus comes to the fore is whether or
not the act of the petitioner, i.e., the pressing of a chemical-soaked cloth while on top of
Malou, constitutes an overt act of rape. CSTEHI

Overt or external act has been defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation, which if
carried out to its complete termination following its natural course, without being
frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense. 1 9
Harmonizing the above definition to the facts of this case, it would be too strained to
construe petitioner's act of pressing a chemical-soaked cloth in the mouth of Malou which
would induce her to sleep as an overt act that will logically and necessarily ripen into rape.
As it were, petitioner did not commence at all the performance of any act indicative of an
intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully
clothed and that there was no attempt on his part to undress Malou, let alone touch her
private part. For what reason petitioner wanted the complainant unconscious, if that was
really his immediate intention, is anybody's guess. The CA maintained that if the petitioner
had no intention to rape, he would not have lain on top of the complainant. Plodding on, the
appellate court even anticipated the next step that the petitioner would have taken if the
victim had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his victim, will have to come
later. His sexual organ is not yet exposed because his intended victim is still
struggling. Where the intended victim is an educated woman already mature in
age, it is very unlikely that a rapist would be in his naked glory before even
starting his attack on her. He has to make her lose her guard first, or as in this
case, her unconsciousness. 2 0

At bottom then, the appellate court indulges in plain speculation, a practice disfavored
under the rule on evidence in criminal cases. For, mere speculations and probabilities
cannot substitute for proof required to establish the guilt of an accused beyond
reasonable doubt. 2 1

In Perez vs. Court of Appeals, 2 2 the Court acquitted therein petitioner of the crime of
attempted rape, pointing out that:
. . . . In the crime of rape, penetration is an essential act of execution to produce
the felony. Thus, for there to be an attempted rape, the accused must have
commenced the act of penetrating his sexual organ to the vagina of the victim
but for some cause or accident other than his own spontaneous desistance, the
penetration, however, slight, is not completed.

xxx xxx xxx

Petitioner's act of lying on top of the complainant, embracing and kissing her,
mashing her breasts, inserting his hand inside her panty and touching her sexual
organ, while admittedly obscene and detestable acts, do not constitute attempted
rape absent any showing that petitioner actually commenced to force his penis
into the complainant's sexual organ. . . . .
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 Likewise in People vs. Pancho, 2 3 the Court held:
. . ., appellant was merely holding complainant's feet when his Tito Onio arrived at
the alleged locus criminis. Thus, it would be stretching to the extreme our credulity
if we were to conclude that mere holding of the feet is attempted rape.

Lest it be misunderstood, the Court is not saying that petitioner is innocent, under the
premises, of any wrongdoing whatsoever. The information filed against petitioner
contained an allegation that he forcefully covered the face of Malou with a piece of cloth
soaked in chemical. And during the trial, Malou testified about the pressing against her
face of the chemical-soaked cloth and having struggled after petitioner held her tightly and
pinned her down. Verily, while the series of acts committed by the petitioner do not
determine attempted rape, as earlier discussed, they constitute unjust vexation punishable
as light coercion under the second paragraph of Article 287 of the Revised Penal Code. In
the context of the constitutional provision assuring an accused of a crime the right to be
informed of the nature and cause of the accusation, 2 4 it cannot be said that petitioner was
kept in the dark of the inculpatory acts for which he was proceeded against. To be sure,
the information against petitioner contains sufficient details to enable him to make his
defense. As aptly observed by then Justice Ramon C. Aquino, there is no need to allege
malice, restraint or compulsion in an information for unjust vexation. As it were, unjust
vexation exists even without the element of restraint or compulsion for the reason that this
term is broad enough to include any human conduct which, although not productive of
some physical or material harm, would unjustly annoy or irritate an innocent person. 2 5 The
paramount question is whether the offender's act causes annoyance, irritation, torment,
distress or disturbance to the mind of the person to whom it is directed. 2 6 That Malou,
after the incident in question, cried while relating to her classmates what she perceived to
be a sexual attack and the fact that she filed a case for attempted rape proved beyond
cavil that she was disturbed, if not distressed by the acts of petitioner. SEHTIc

The penalty for coercion falling under the second paragraph of Article 287 of the Revised
Penal Code is arresto menor or a fine ranging from P5.00 to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the Regional
Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one entered
ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for attempted rape. Petitioner,
however, is adjudged GUILTY of light coercion and is accordingly sentenced to 30 days of
arresto menor and to pay a fine of P200.00, with the accessory penalties thereof and to
pay the costs.
SO ORDERED.
Puno, Sandoval-Gutierrez and Azcuna, JJ., concur.
Corona, J., is on leave.
Footnotes

1. Penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate

Justices Romeo A. Brawner (ret.) and Eloy R. Bello, Jr. (ret.); Rollo, pp. 198-237.
2. Id., p. 273.
3. Id., pp. 120-155.
4. Original Records, pp. 1-3.
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 5. Id., p. 42.
6. Rollo, pp. 201-212.
7. TSN, December 15, 1993, pp. 18-19; TSN, December 20, 1993, pp. 23-24.
8. TSN, January 17, 1994, pp. 7-10.

9. TSN, January 17, 1994, p. 24.

10. Rollo, pp. 120-155.
11. See Note #1, supra.
12. See Note #2, supra.

13. People vs. Cubcubin, Jr., 413 Phil. 249 (2001), citing People vs. Gallarde, 382 Phil. 718
(2000).

14. People vs. Sevileno, 425 SCRA 247 (2004), citing People vs. Navarro, 407 SCRA 221
(2003).

15. Comment, pp. 20-21; Rollo, pp. 302-303.

16. People vs. Campuhan, 385 Phil. 912 (2000).
17. 61 Phil. 703, 705 (1935).
18. Ibid.
19. Reyes, The Revised Penal Code, 1998 Edition, p. 91.
20. Rollo, pp. 222-223.
21. People vs. Canlas, et al., 423 Phil. 665 (2001).
22. 431 Phil. 786 (2002).

23. 416 SCRA 506 (2003).

24. Sec. 14(2), Art. III.

25. Aquino, Revised Penal Code, 1997 ed., Vol. III, p. 81.
26. Ibid., citing People vs. Lilian Gozum, CA 54 O.G. 7409; People vs. Reyes, 60 Phil. 369
[1934].

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