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On December 21, 1993, at around 1:00 o’clock in the morning, AAA and BBB went to sleep. Less
than an hour later, AAA was awakened when she felt that somebody was on top of her. Norberto was
mashing her breast and touching her private part. AAA realized that she was divested of her clothing and
that she was totally naked. Norberto ordered her not to scream or she’ll be killed. AAA tried to push Norberto
away and pleaded to have pity on her but her please fell on deaf ears. She fought back and kicked Norberto
twice. Norberto was not able to pursue his lustful desires. Norberto offered her money and told her not to
tell the incident to her mother otherwise, she will be killed. AAA went out of the tent to seek help from Jess
(the house boy) but she failed to wake him up. Thirty minutes later, when AAA returned to their tent, she
saw Norberto touching the private parts of BBB. AAA saw her companion awake but her hands were
shaking. AAA and BBB narrated to Jess the incident that took place that early morning. AAA and BBB
asked the people around where they can find the municipal building and an old woman pointed to them the
place. In the evening of December 21, 1993, AAA and BBB went straight to the municipal hall where they
met a policeman by the name of "Sabas". They told Sabas the sexual advances made to them by Norberto.
Norberto was summoned to the police station where he personally confronted his accusers. When
Norberto’s wife, Belinda, arrived at the police station, an argument ensued between them.


Whether or not the acts performed by the petitioner constituted attempted rape.


No. There is an attempt, according to Article 6 of the Revised Penal Code, when the offender
commences the commission of a felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other than this own spontaneous
desistance. In attempted rape, the concrete felony is rape, but the offender does not perform all the acts of
execution of having carnal knowledge. If the slightest penetration of the female genitalia consummates
rape, and rape in its attempted stage requires the commencement of the commission of the felony directly
by overt acts without the offender performing all the acts of execution that should produce the felony, the
only means by which the overt acts performed by the accused can be shown to have a causal relation to
rape as the intended crime is to make a clear showing of his intent to lie with the female. The petitioner
climbed on top of the naked victim, and was already touching her genitalia with his hands and mashing her
breasts when she freed herself from his clutches and effectively ended his designs on her.

It is obvious that the fundamental difference between attempted rape and acts of lasciviousness is
the offender’s intent to lie with the female. In rape, intent to lie with the female is indispensable, but this
element is not required in acts of lasciviousness. Attempted rape is committed, therefore, when the
"touching" of the vagina by the penis is coupled with the intent to penetrate. The intent to penetrate is
manifest only through the showing of the penis capable of consummating the sexual act touching the
external genitalia of the female. Without such showing, only the felony of acts of lasciviousness is

Based on Article 336 of the Revised Penal Code, the felony of acts of lasciviousness is
consummated when the following essential elements concur, namely: (a) the offender commits any act of
lasciviousness or lewdness upon another person of either sex; and (b) the act of lasciviousness or lewdness
is committed either (i) by using force or intimidation; or (ii) when the offended party is deprived of reason or
is otherwise unconscious; or (iii) when the offended party is under 12 years of age.

The intent to commit rape should not easily be inferred against the petitioner, even from his own
declaration of it, unless he committed overt acts directly leading to rape. In People v. Bugarin, the accused
was held liable only for acts of lasciviousness because the intent to commit rape "is not apparent from the
act described," and the intent to have sexual intercourse with her was not inferable from the act of licking
her genitalia. The Court also pointed out that the "act imputed to him cannot be considered a preparatory
act to sexual intercourse.


indeterminate sentence of three (3) months of arresto mayor, as the minimum, to two (2) years, four (4)
months and one day of prision correccional, as the maximum; ORDERS him to pay moral damages of
₱30,000.00 and civil indemnity of ₱20,000.00 to the complainant, with interest of 6% per annum on such
awards reckoned from the finality of this decision until full payment; and DIRECTS him to pay the costs of


In four (4) separate Informations, Ireno was charged by the Office of the City Prosecutor of Las
Piñas City with four (4) counts of Rape under Paragraph 2, Article 266-A of the RPC, as amended, in
relation to R.A. No. 7610, for inserting his tongue and his finger into the genital of his minor daughter, AAA.

The prosecution established that in 1998, AAA and her mother left their house in Candelaria,
Quezon to spend the Christmas with accused-appellant in Las Piñas City. They stayed in the house of a
certain Lola Jean, the godmother in the wedding of her parents, at Sta. Cecilia Subdivision, Las Piñas City.
AAA was inside a room lying in bed one afternoon while her younger brothers were playing outside the
house and her mother was not home. Accused-appellant entered the room. He approached her, rolled her
shirt upward, and removed her shorts and panty. She tried to resist by putting her clothes back on, but her
father’s strength prevailed. Accused-appellant touched and caressed her breasts. He licked her vagina then
inserted his finger into it. In the evening of the same day, the accused-appellant raped AAA again in the
same manner and under the same circumstances. AAA did not tell her mother that she was raped because
accused-appellant threatened to kill her mother by placing the latter’s body in a drum and have it cemented
if she would report the incidents. In December 1999, AAA was raped by accused-appellant for the third time
when he went to Candelaria, Quezon. In a single day, AAA was raped for the fourth and fifth time. While
spending the afternoon inside her father’s room at the car-wash station, he removed her shorts and panty
then proceeded to touch and insert his finger into her vagina. Accused-appellant repeated the same sexual
assault shortly thereafter. AAA again did not report these incidents for fear that her mother would be killed
and cemented inside a drum.

On January 26, 2001, AAA complained of severe abdominal pain which prompted her mother to
take her to Gregg Hospital in Sariaya, Quezon. AAA was transferred to the Quezon Memorial Hospital in
Lucena City where Dr. Melissa De Leon performed on her a physical examination. The results revealed
that there was a healed superficial laceration at the 9 o’clock position on the hymen of AAA. This medical
finding forced AAA to reveal to her mother all the incidents of rape committed by accused-appellant. AAA’s
mother took her to the Police Headquarters of Sariaya, Quezon to file a complaint for rape against accused-
appellant. AAA’s mother also took her to the office of the National Bureau of Investigation in Legaspi City
where she executed a sworn statement against accused-appellant.


Whether the accused is guilty of the crime of rape?


Yes. To determine the innocence or guilt of the accused in rape cases, the courts are guided by
three well-entrenched principles: (1) an accusation of rape can be made with facility and while the
accusation is difficult to prove, it is even more difficult for the accused, though innocent, to disprove; (2)
considering that in the nature of things, only two persons are usually involved in the crime of rape, the
testimony of the complainant should be scrutinized with great caution; and (3) the evidence for the
prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness
of the evidence for the defense.

After perusing the testimony of the victim, AAA, the prosecution has indubitably established that
Ireno was the one who sexually assaulted her. AAA categorically narrated that Ireno sexually abused her
on several occasions and even threatened AAA that he would kill her mother if she would report the
incidents. Time and again, this Court has consistently held that in rape cases, the evaluation of the credibility
of witnesses is best addressed to the sound discretion of the trial judge whose conclusion thereon deserves
much weight and respect because the judge had the direct opportunity to observe them on the stand and
ascertain if they were telling the truth or not.

It is well entrenched in this jurisdiction that when the offended parties are young and immature girls,
as in this case, courts are inclined to lend credence to their version of what transpired, considering not only
their relative vulnerability, but also the shame and embarrassment to which they would be exposed if the
matter about which they testified were not true. A young girl would not usually concoct a tale of defloration;
publicly admit having been ravished and her honor tainted; allow the examination of her private parts; and
undergo all the trouble and inconvenience, not to mention the trauma and scandal of a public trial, had she
not in fact been raped and been truly moved to protect and preserve her honor, and motivated by the desire
to obtain justice for the wicked acts committed against her.

Having found Ireno guilty beyond reasonable doubt of Rape Through Sexual Assault in Criminal
Case Nos. 03-0254, 03-0256, and 03-0257 and Acts of Lasciviousness in Criminal Case No. 03-0255, shall
proceed to determine the appropriate penalties imposable for each offense.

WHEREFORE, premises considered, the Decision of the Court of Appeals, dated March 31, 2009
in CA-G.R. CR-H.C. No. 03133, is AFFIRMED with MODIFICATIONS:

1. In Criminal Case Nos. 03-0254, 03-0256, and 03-0257, IRENO BONAAGUA y BERCE is hereby
sentenced to suffer the indeterminate penalty of ten (10) years of prision mayor, as minimum, to seventeen
(17) years and four (4) months of reclusion temporal, as maximum, for each count. He is likewise ordered
to pay AAA the amounts of ₱30,000.00 as civil indemnity, ₱30,000.00 as moral damages, and ₱30,000.00
as exemplary damages for each count of Qualified Rape Through Sexual Assault or a total of ₱90,000.00
for each count.

2. In Criminal Case No. 03-0255, IRENO BONAAGUA y BERCE is meted to suffer the indeterminate penalty
of thirteen (13) years, nine (9) months and eleven (11) days of reclusion temporal, as minimum, to sixteen
(16) years, five (5) months and ten (10) days of reclusion temporal, as maximum. In addition to moral
damages and fine, he is likewise ordered to pay ₱20,000.00 as civil indemnity and ₱15,000.00 as
exemplary damages.


On or about the 25th day of April 2000, in the city of Muntinlupa, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd design, with force, intimidation
and grave abuse of confidence, accused being employed as a driver in the business of the father of
[AAA],1 a six (6) year old minor, did then and there willfully, unlawfully and feloniously insert his finger inside
the latter’s vagina against the will and consent of the said complainant. In the early afternoon of April 25,
2000 after her parents had left for work. She was then six (6) years old. At home with her on that day was
the maid and accused-appellant, who was reapplying as family driver. As she was playing with the water
hose in the garage, her dress got wet forcing her to repair to her room to change. Accused-appellant
followed. Once inside the room, accused-appellant tried to undress her, tightly held her hands, and told her
to lie in the bed. He thereupon pulled her panties down. In reaction, she pulled it up but accused-appellant
quickly pulled it down again. It was at this moment when accused-appellant touched her vagina with his
fingers and kissed her on the left cheek. He repeatedly assured her of being her friend and that they were
just playing the mother-and-father roles. She ran to her parents’ room and locked the door. Accused-
appellant followed but left after AAA ignored his insistence to continue with the father-mother game. In the
evening, AAA told her parents about her ordeal, after which they reported the matter to barangay officials
and the police. AAA was then asked to undergo a medical examination.


Whether or not the accused is guilty of rape.


No. Absent any showing of the actual insertion of the finger in the private part of the child, there
can be no consummated rape. Thus, the failure of the prosecution to establish accused-appellant’s guilt for
rape notwithstanding, this Court finds him liable for the lesser crime of acts of lasciviousness. This latter
crime is considered an offense included or subsumed in the rape charge. In Dulla v. Court of
Appeals and People v. Bon, the Supreme Court convicted the accused with the crime of acts of
lasciviousness even though the information charged the crime of rape.

The touching of a female’s sexual organ, standing alone, is not equivalent to rape, not even an
attempted one. In People v. Campuhan explains:

x x x 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. x x x

x x x Jurisprudence dictates that the labia majora must be entered for rape to be consummated,
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.

By analogy, we hold that for a charge for rape by sexual assault prosper, there should be evidence of at
least the slightest penetration of the sexual organ and not merely a brush or graze of its surface. This is in
consonance with Article 266-A, paragraph 2 of the Revised Penal Code, as amended by Republic Act No.
8353, which provides:
Art. 266-A. Rape; when and how committed. –Rape is committed–

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall
commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice,
or any instrument or object, into the genital or anal orifice of another person.

WHEREFORE, the appeal is DENIED. The CA Decision dated June 29, 2007 in CA-G.R. CR-H.C. No.
00651 finding accused-appellant Roger Mendoza y Dela Cruz guilty of acts of lasciviousness and imposing
upon him the penalty defined therein is AFFIRMED.


Prosecution witnesses extant from their testimonies categorically assert that around 6:30 P.M.
children of neighbors were near the store of the grandparents of Yvonne Traya. Incidentally, there was a
brown out that evening hence candle was used. The daughter and nephew of her aunt Bebeth were
quarelling about the possession of a flashlight until the glass got lost. Accused or "Boy" Astorga, went near
and asked her daughter Jane what happened. Glenda or Bebeth grabbed her baby and went home.
Accused told Yvonne to go with him to buy candy. She did not answer and accused immediately grabbed
and hold her hand. Accused placed his hand on her shoulder and covered his mouth. Yvonne was only
eight (8) years old on 29 December 1991 when she was brought by the accused allegedly to buy candy.
Accused never went inside the store to buy candy. Instead she held and dragged Yvonne until they went
inside the compound of Maco Elementary School. They were walking inside the perimeter fence, holding
closely the child. Later, there being no person around the gate, accused brought her out to the highway
and walked towards the direction of Tagum. Yvonne asked him where they were going and accused
answered that they were going home. She told him that they were already on the opposite direction because
her grandparent's house is at Binuangan, while their route was going towards Tagum. Notwithstanding the
assertion of Yvonne that they were on the wrong direction, accused placed his hands on her shoulder and
dragged her. She cried and protested that she must go home. Accused did not heed her plea and while
she was forced to walk she continued crying. While accused and Yvonne were walking in the situation as
described, somewhere near the Luponlupon bridge they met some group of men. The group were
suspicious about the man who was bringing a child. The group decided to follow them. Accused hurriedly
walked fast with Yvonne, and to prevent from being overtaken, he carried the victim and ran. They were
chased. After a distance of half a kilometer they were overtaken. Edwin Fabila declared that Jonathan, one
of his companions with others in chasing, asked the accused where they were bound. He answered towards
Binuangan. The group noticed something suspicious because their destination was already towards Tagum
which is an opposite direction to Binuangan. When asked who is the child, accused answered Traya.
Jonathan one of those who chased knew the family. He got from the accused Yvonne who showed some
resistance. The group brought her home at Binuangan. Likewise, accused was also brought by them to
Yvonne's home.


Whether or not it was kidnapping or coercion.


The felony committed in this case is grave coercion under Article 286 of the same code. Grave
coercion or coaccion grave has three elements: (a) that any person is prevented by another from doing
something not prohibited by law, or compelled to do something against his or her will, be it right or wrong;
(b) that the prevention or compulsion is effected by violence, either by material force or such a display of it
as would produce intimidation and, consequently, control over the will of the offended party; and (c) that
the person who restrains the will and liberty of another has no right to do so or, in other words, that the
restraint is not made under authority of a law or in the exercise of any lawful right. When appellant forcibly
dragged and slapped Yvonne, he took away her right to go home to Binuangan. Appellant presented no
justification for preventing Yvonne from going home, and we cannot find any. Appellant Astorga tricked
Yvonne to go with him by telling her that they were going to buy candy. When Yvonne recognized the
deception, she demanded that she be brought home, but appellant refused and instead dragged her toward
the opposite direction against her will. While it is unclear whether Appellant Astorga intended to detain or
"lock up" Yvonne, there is no question that he forced her to go with him against her will. In Rosemarie de
la Cruz, Victim Whiazel voluntarily went with accused. Furthermore, the accused in that case failed to
consummate the crime of kidnapping because of the timely intervention of the victim's neighbor.
WHEREFORE, the appeal is hereby PARTIALLY GRANTED. Appellant is CONVICTED only of
grave coercion and is sentenced to six (6) months of arresto mayor. Unless he is being detained for any
other valid cause, his IMMEDIATE RELEASE is herewith ordered, considering that he has more than
served the maximum penalty imposable upon him. That director of prisons is DIRECTED to inform this
Court, within five days from receipt of this Decision, of the actual date the appellant is released. No costs.