Republic of the Philippines The Provincial Prosecutor of Biñan, Laguna filed an
SUPREME COURT Information charging Ricalde of rape through sexual assault:
Manila
SECOND DIVISION
G.R. No. 211002 January 21, 2015
RICHARD RICALDE, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
LEONEN, J.:
Even men can become victims of rape.
Before us is a criminal case for rape through sexual assault
committed against a 10-year-old boy. Accused Richard Ricalde
(Ricalde) was charged with rape as described under the
second paragraph of Section 266-A of the Revised Penal Code,
committed "[b ]y 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." 1
This is a Petition for Review2 assailing the Court of Appeals’
August 28, 2013 Decision3 affirming Ricalde’s conviction for
rape through sexual assault and January 15, 2014
Resolution4 denying reconsideration.
That on or about January 31, 2002, in the Municipality of Sta.
Rosa, Province of Laguna, Philippines, and within the
jurisdiction of this Honorable Court, accused Richard Ricalde,
prompted with lewd design, did then and there willfully,
unlawfully and feloniously inserting [sic] his penis into the
anus of XXX who was then ten (10) years of age against his will
and consent, to his damage and prejudice.
CONTRARY TO LAW.5
Ricalde pleaded not guilty during his arraignment on August
21, 2002.6 The prosecution presented the victim (XXX),7 his
mother, and the medico-legal as witnesses, while the defense
presented Ricalde as its sole witness.8
The facts as found by the lower courts follow.
On January 30, 2002, XXX requested his mother to pick up
Ricalde at McDonald’s Bel-Air, Sta. Rosa at past 8:00
p.m.9 Ricalde, then 31 years old,10 is a distant relative and
textmate of XXX, then 10 years old.11
After dinner, XXX’s mother told Ricalde to spend the night at
their house as it was late.12 He slept on the sofa while XXX
slept on the living room floor.13
It was around 2:00 a.m. when XXX awoke as "he felt pain in his
anus and stomach and something inserted in his anus."14 He
saw that Ricalde "fondled his penis."15 When Ricalde returned
to the sofa, XXX ran toward his mother’s room to tell her what
happened.16 He also told his mother that Ricalde played with
his sexual organ.17
XXX’s mother armed herself with a knife for self-defense when
she confronted Ricalde about the incident, but he remained
silent.18 She asked him to leave.19
XXX’s mother then accompanied XXX to the barangay hall
where they were directed to report the incident to the Sta.
Rosa police station.20 The police referred them to the
municipal health center for medical examination.21 Dr. Roy
Camarillo examined22 XXX and found no signs of recent
trauma in his anal orifice23 that was also "NEGATIVE for
[s]permatozoa."24
On February 4, 2002, XXX and his mother executed their
sworn statements at the Sta. Rosa police station, leading to
the criminal complaint filed against Ricalde.25
Ricalde denied the accusations.26 He testified that he met XXX
during the 2001 town fiesta of Calaca, Batangas and learned
that XXX’s mother is the cousin of his cousin Arlan
Ricalde.27 He and XXX became textmates, and XXX invited him
to his house.28 On January 30, 2002, XXX’s mother picked him
up to sleep at their house.29 He slept at 10:00 p.m. on the
living room sofa while XXX slept on the floor.30 He denied the
alleged rape through sexual assault.31
Decision32
The Regional Trial Court in its dated June 20, 2011
found Ricalde guilty beyond reasonable doubt of rape through
sexual assault:
WHEREFORE, this Court finds accused Richard Ricalde guilty
beyond reasonable doubt of the crime of rape by sexual
assault and, accordingly, sentences him to suffer the penalty
of imprisonment ranging from four (4) years, two (2) months
and one (1) day of prision correccional as minimum, to eight
(8) years of prision mayor as maximum. Accused is ordered to
pay [XXX] the sums of 50,000.00 as moral damages and
50,000.00 as civil indemnity.
SO ORDERED.33
The Court of Appeals in its Decision34 dated August 28, 2013
affirmed the conviction with the modification of lowering the
amounts of damages awarded:
WHEREFORE, the Decision dated 20 June 2011 of Branch 34 of
the Regional Trial Court of Calamba, Laguna, in Crim. Case No.
11906-B, is AFFIRMED but with MODIFICATION as to the
award of damages. Accused-appellant RICHARD RICALDE is
ordered to pay the victim civil indemnity in the amount of
Thirty Thousand (30,000.00) Pesos and moral damages
likewise in the amount of Thirty Thousand (30,000.00) Pesos,
both with interest at the legal rate of six (6%) percent per
annum from the date of finality of this judgment until fully
paid.35
Ricalde filed this Petition praying for his acquittal.36
Petitioner argues the existence of reasonable doubt in his
favor. First, the medico-legal testified that he found "no
physical signs or external signs of recent trauma [in XXX’s]
anus,"37 or any trace of spermatozoa.38 He contends that
physical evidence "ranks high in [the court’s] hierarchy of
trustworthy evidence." 39
Second, XXX did not categorically say that a penis was inserted
into his anal orifice, or that he saw a penis or any object being
inserted into his anal orifice.40 XXX was also able to
immediately push him away.41 Thus, no push and pull
movement happened that would explain XXX’s alleged
stomach ache.42 Petitioner submits that the alleged stomach
ache was an attempt to aggravate the charge against him.43
Petitioner argues that XXX’s inconsistent testimony raises
reasonable doubt on his guilt.44 XXX claimed that he
immediately pushed petitioner away, but in another instance,
he testified as follows: "I felt that he was inserting his penis
inside my anus because I was even able to hold his penis. He
was also playing with my penis."45 XXX also stated in his
salaysay that "the penis reached only the periphery of his anal
orifice."46
Third, XXX testified that after he had pushed petitioner away,
he saw that petitioner was wearing pants with the zipper
open.47 Petitioner submits that performing anal coitus while
wearing pants with an open zipper poses a challenge — the
risk of injuring the sexual organ or having pubic hair entangled
in the zipper. 48 Petitioner argues that the court must consider
every circumstance favoring the innocence of an accused.49
Assuming he committed an offense, petitioner contends that
the court should have applied the "variance doctrine" in
People v. Sumingwa,50 and the court would have found him
guilty for the lesser offense of acts of lasciviousness under
Article 336 of the Revised Penal Code.51 The petition then
enumerated circumstances showing possible homosexual
affections between petitioner and XXX.52 These include the
fact that they were textmates and that petitioner played with
XXX’s penis.53
Petitioner argues that this masturbation could have caused an
irritation that XXX mistook as penetration.54 XXX could also
have mistaken the "overreaching fingers as a male organ
trying to enter his [anus]."55 Assuming these acts took place,
these would only be considered as acts of lasciviousness.56
The People of the Philippines counters that the prosecution
proved beyond reasonable doubt all elements of the crime
charged.
The Comment57 discussed that it is neither improbable nor
contrary to human experience that XXX’s mother allowed her
son to be left alone with a stranger.58 Petitioner was not a
complete stranger, and she could not have foreseen such
abuse since "rape by sexual assault or any form of sexual
abuse of a boy by a grown man is fairly uncommon in our
culture."59
Petitioner’s reliance on the medico-legal’s findings deserves
scant consideration.60 The Comment quoted People v.
Penilla61 in that "[a] medical examination of the victim is not
indispensable in a prosecution for rape inasmuch as the
victim’s testimony alone, if credible, is sufficient to convict the
accused of the crime."62 In any case, the medico-legal testified
on the sphincter’s flexibility and how an insertion into the anal
orifice would not necessarily cause injury.63
Lastly, the prosecution established all elements of rape
through sexual assault based on XXX’s clear and categorical
testimony.64 Petitioner’s defense of mere denial cannot
outweigh positive testimony.65 Consequently, petitioner’s
contention that the incident only amounts to acts of
lasciviousness lacks merit.66
The issue before us for resolution is whether the prosecution
proved beyond reasonable doubt petitioner Richard Ricalde’s
guilt for the crime of rape through sexual assault.
We affirm petitioner’s conviction with modification on the
penalty imposed.
The Anti-Rape Law of 199767 classified rape as a crime against
persons68 and amended the Revised Penal Code to include
Article 266-A on rape through sexual assault:
Article 266–A. Rape; When and How Committed.—Rape is
Committed—
1) By a man who shall have carnal knowledge of a
woman under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of
reason or otherwise unconscious;
c) By means of fraudulent machination or grave
abuse of authority; and
d) When the offended party is under twelve
(12) years of age or is demented, even though
none of the circumstances mentioned above be
present;
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. (Emphasis supplied)
Rape under the second paragraph of Article 266-A is also
known as "instrument or object rape,"69 "gender-free
rape,"70 or "homosexual rape."71 The gravamen of rape
through sexual assault is "the insertion of the penis into
another person’s mouth or anal orifice, or any instrument or
object, into another person’s genital or anal orifice."72
Jurisprudence holds that "the findings of the trial court, its
calibration of the testimonies of the witnesses, and its
assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded respect if
not conclusive effect."73
The trial court found that XXX’s "straightforward, unequivocal
and convincing testimony"74 sufficiently proved that petitioner
committed an act of sexual assault by inserting his penis into
XXX’s anal orifice.75 There was no showing of ill motive on the
part of XXX to falsely accuse petitioner.76 The Court of Appeals
accorded great weight to the trial court’s findings and
affirmed petitioner’s conviction.77
No cogent reason exists for this court to overturn the lower
courts’ findings.
First, petitioner’s argument highlighting alleged
inconsistencies in XXX’s testimony fails to convince.
In a long line of cases,78 this court has given full weight and
credit to the testimonies of child victims. Their "[y]outh and
immaturity are generally badges of truth and sincerity."79 XXX,
then only 10 years old, had no reason to concoct lies against
petitioner.80
This court has also held that "[l]eeway should be given to
witnesses who are minors, especially when they are relating
past incidents of abuse."81
Petitioner contends that XXX did not categorically say that a
penis was inserted into his anal orifice, or that he saw a penis
or any object being inserted into his anal orifice.
This contradicts petitioner’s earlier statement in his
appellant’s brief82 that "[a]lthough it is true that the Supreme
Court, in a long line of cases, did not rule out the possibility of
rape in cases where the victim remained physically intact at
the time she or he was physically examined, still, it bears
stressing that in the instant case, the private complainant
testified that the accused-appellant’s penis fully penetrated
his anus."83
The trial court also quoted portions of the transcript of XXX’s
testimony in that he "felt something was inserted in [his]
anus."84
Q: That early morning of January 31, 2002, while you
were sleeping at your house, do you recall any unusual
incident that happened to you?
A: Yes sir, I felt something was inserted in my anus.
....
Q: When you said that you felt something was inserted
in your anus, what did you do?
A: I felt that he was inserting his penis inside my anus
because I was even able to hold his penis. He was also
playing with my penis.
Q: So when you said he was inserting his penis to your
anus and he was even playing with your private part,
who is this person you are referring to as "he"?
A: Richard, sir.85
In People v. Soria,86 this court discussed that a victim need not
identify what was inserted into his or her genital or anal
orifice for the court to find that rape through sexual assault
was committed:
We find it inconsequential that "AAA" could not specifically
identify the particular instrument or object that was inserted
into her genital. What is important and relevant is that indeed
something was inserted into her vagina. To require "AAA" to
identify the instrument or object that was inserted into her
vagina would be contrary to the fundamental tenets of due
process.87
Second, petitioner’s reliance on the medico-legal’s finding of
no recent trauma in XXX’s anal orifice, or any trace of
spermatozoa, lacks merit. The absence of spermatozoa in
XXX’s anal orifice does not negate the possibility of an
erection and penetration. This result does not contradict the
positive testimony of XXX that the lower courts found
credible, natural, and consistent with human nature.
This court has explained the merely corroborative character of
expert testimony and the possibility of convictions for rape
based on the victim’s credible lone testimony.88
In any case, the medico-legal explained that his negative
finding of trauma in the anal orifice does not remove the
possibility of an insertion considering the flexibility of the
sphincter:
Q: Now, a while ago you testified that he was sodomized and
your findings states [sic] that you did not find any congestion
or abrasion, can you explain to this court why you stated in
your findings that you did not find any congestion or
abrasion?
A: Again, based on my examination[,] there were no external
signs of recent trauma to the anus. It should be realized that
the sphincter, that is the particular portion of the anus
controlling the bowel movement, it exhibits a certain flexibility
such that it can resist any objected [sic] inserted and that area
is very vascular, meaning to say, it is rich in blood supply, such
that any injuries would be healed in 24 hours or less than 24
hours, sir?89
Lastly, we address petitioner’s invocation of the "variance
doctrine" citing People v. Sumingwa.90 Section 4 in relation to
Section 5 of Rule 120 of the Rules on Criminal Procedure
provides for the "variance doctrine":
SEC. 4. Judgment in case of variance between allegation and
proof.—When there is variance between the offense charged
in the complaint or information and that proved, and the
offense as charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the offense
proved which is included in the offense charged, or of the
offense charged which is included in the offense proved.
SEC. 5. When an offense includes or is included in another.—
An offense charged necessarily includes the offense proved
when some of the essential elements or ingredients of the
former, as alleged in the complaint or information, constitute
the latter. And an offense charged is necessarily included in
the offense proved, when the essential ingredients of the
former continue or form part of those constituting the latter.
In Sumingwa, the accused in Criminal Case Nos. 1649 and
1654 was charged with qualified rape but was convicted for
the lesser offense of acts of lasciviousness committed against
a child under Article III, Section 5(b) of Republic Act No.
761091 since "there was no penetration, or even an attempt to
insert [the accused’s] penis into [the victim’s] vagina."92
In the instant case, no variance exists between what was
charged and what was proven during trial. The prosecution
established beyond reasonable doubt all elements of the
crime of rape through sexual assault.
XXX testified that he "felt something was inserted [into his]
anus."93 The slightest penetration into one’s sexual organ
distinguishes an act of lasciviousness from the crime of rape.
People v. Bonaagua94 discussed this distinction:
It must be emphasized, however, that like in the crime of rape
whereby the slightest penetration of the male organ or even
its slightest contact with the outer lip or the labia majora of
the vagina already consummates the crime, in like manner, if
the tongue, in an act of cunnilingus, touches the outer lip of
the vagina, the act should also be considered as already
consummating the crime of rape through sexual assault, not
the crime of acts of lasciviousness. Notwithstanding, in the
present case, such logical interpretation could not be applied.
It must be pointed out that the victim testified that Ireno only
touched her private part and licked it, but did not insert his
finger in her vagina. This testimony of the victim, however, is
open to various interpretation, since it cannot be identified
what specific part of the vagina was defiled by Ireno. Thus, in
conformity with the principle that the guilt of an accused must
be proven beyond reasonable doubt, the statement cannot be
the basis for convicting Ireno with the crime of rape through
sexual assault.95 (Emphasis supplied)
People v. Bonaagua considers a woman’s private organ since
most if not all existing jurisprudence on rape involves a
woman victim. Nevertheless, this interpretation can apply by
analogy when the victim is a man in that the slightest
penetration to the victim’s anal orifice consummates the
crime of rape through sexual assault.
The gravamen of the crime is the violation of the victim’s
dignity. The degree of penetration is not important. Rape is an
"assault on human dignity."96
People v. Quintos97 discussed how rape causes incalculable
damage on a victim’s dignity, regardless of the manner of its
commission:
The classifications of rape in Article 266-A of the Revised Penal
Code are relevant only insofar as these define the manners of
commission of rape. However, it does not mean that one
manner is less heinous or wrong than the other. Whether rape
is committed by nonconsensual carnal knowledge of a woman
or by insertion of the penis into the mouth of another person,
the damage to the victim’s dignity is incalculable. Child sexual
abuse in general has been associated with negative
psychological impacts such as trauma, sustained fearfulness,
anxiety, self-destructive behavior, emotional pain, impaired
sense of self, and interpersonal difficulties. Hence, one
experience of sexual abuse should not be trivialized just
because it was committed in a relatively unusual manner.
"The prime purpose of [a] criminal action is to punish the
offender in order to deter him and others from committing
the same or similar offense, to isolate him from society,
reform and rehabilitate him or, in general, to maintain social
order." Crimes are punished as retribution so that society
would understand that the act punished was wrong.
Imposing different penalties for different manners of
committing rape creates a message that one experience of
rape is relatively trivial or less serious than another. It attaches
different levels of wrongfulness to equally degrading acts.
Rape, in whatever manner, is a desecration of a person’s will
and body. In terms of penalties, treating one manner of
committing rape as greater or less in heinousness than
another may be of doubtful constitutionality.
However, the discriminatory treatment of these two acts with
the same result was not raised in this case. Acknowledging
that every presumption must be accorded in favor of accused
in criminal cases, we have no choice but to impose a lesser
penalty for rape committed by inserting the penis into the
mouth of the victim.98 (Citations omitted)
We affirm petitioner’s conviction but modify the penalty
imposed by the lower court to the penalty under Article III,
Section 5(b) of Republic Act No. 7610 known as the "Special
Protection of Children Against Child Abuse, Exploitation and
Discrimination Act":99
SEC. 5. Child Prostitution and Other Sexual Abuse.— Children,
whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution
and other sexual abuse.
The penalty of reclusion temporal in its medium period to
reclusion perpertua shall be imposed upon the following:
....
(b) Those who commit the act of sexual intercourse or
lascivious conduct with a child exploited in prostitution or
subjected to other sexual abuse: Provided, That when the
victim is under twelve (12) years of age, the perpetrators shall
be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case maybe:
Provided, That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; (Emphasis supplied)
The Implementing Rules and Regulations of Republic Act No.
7610 defines "lascivious conduct": [T]he intentional touching,
either directly or through clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks, or the introduction of
any object into the genitalia, anus or mouth, of any person,
whether of the same or opposite sex, with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person, bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person.100
In People v. Chingh,101 the accused was charged with rape "for
inserting his fingers and afterwards his penis into the private
part of his minor victim[.]"102 The Court of Appeals found the
accused guilty of two counts of rape: statutory rape and rape
through sexual assault.103 This court modified the penalty
imposed for rape through sexual assault to the penalty
provided in Article III, Section 5(b) of Republic Act No. 7610,
discussing as follows:
It is undisputed that at the time of the commission of the
sexual abuse, VVV was ten (10) years old. This calls for the
application of R.A. No. 7610, or "The Special Protection of
Children Against Child Abuse, Exploitation and Discrimination
Act," which defines sexual abuse of children and prescribes
the penalty therefor in Section 5(b), Article III, to wit:
....
In this case, the offended party was ten years old at the time
of the commission of the offense. Pursuant to the above-
quoted provision of law, Armando was aptly prosecuted under
paragraph 2, Article 266-A of the Revised Penal Code, as
amended by R.A. No. 8353, for Rape Through Sexual Assault.
However, instead of applying the penalty prescribed therein,
which is prision mayor, considering that VVV was below 12
years of age, and considering further that Armando’s act of
inserting his finger in VVV’s private part undeniably amounted
to lascivious conduct, the appropriate imposable penalty
should be that provided in Section 5 (b), Article III of R.A. No.
7610, which is reclusion temporal in its medium period.
The Court is not unmindful to the fact that the accused who
commits acts of lasciviousness under Article 366, in relation to
Section 5 (b), Article III of R.A. No. 7610, suffers the more
severe penalty of reclusion temporal in its medium period
than the one who commits Rape Through Sexual Assault,
which is merely punishable by prision mayor. This is
undeniably unfair to the child victim. To be sure, it was not the
intention of the framers of R.A. No. 8353 to have disallowed
the applicability of R.A. No. 7610 to sexual abuses committed
to children. Despite the passage of R.A. No. 8353, R.A. No.
7610 is still good law, which must be applied when the victims
are children or those "persons below eighteen (18) years of
age or those over but are unable to fully take care of
themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or
mental disability or condition."104 (Emphasis supplied,
citations omitted)
Thus, "for Rape Through Sexual Assault under paragraph 2,
Article 266-A, [the accused Chingh was] sentenced to suffer
the indeterminate penalty of twelve (12) years, ten (10)
months and twenty-one (21) days of reclusion temporal, as
minimum, to fifteen (15) years, six (6) months, and twenty
(20) days of reclusion temporal, as maximum."105
The imposable penalty under Republic Act No. 7610, Section
5(b) "for lascivious conduct when the victim is under twelve
(12) years of age shall be reclusion temporal in its medium
period." This penalty is higher than the imposable penalty of
prision correccional for acts of lasciviousness under Article 336
of the Revised Penal Code.
In enacting Republic Act No. 7610, the legislature intended to
impose a higher penalty when the victi m is a child.
The fact that XXX was only 10 years old when the incident
happened was established by his birth certificate, and this was
admitted by the defense.106 His age of 10 years old was
alleged in the Information.107 The higher penalty under
Republic Act No. 7610, as discussed in People v. Chingh,
applies in this case.
Having sex with a 10-year-old is child abuse and is punished by
a special law (Republic Act No. 7610). It is a progression from
the Revised Penal Code to provide greater protection for
children. Justice Velasco suggests that this is not so. He
anchors his view on his interpretation that Republic Act No.
7610 requires a showing that apart from the actual coerced
sexual act on the 10-year-old, the child must also be exploited
by prostitution or by other sexual acts. This view is inaccurate
on grounds of verba legis and ratione legis.
The first paragraph of Article III, Section 5 of Republic Act No.
7610 clearly provides that "children . . . who . . . due to the
coercion . . . of any adult . . . indulge in sexual intercourse . . .
are deemed to be children exploited in prostitution and other
sexual abuse." The label "children exploited in . . . other sexual
abuse" inheres in a child who has been the subject of coercion
and sexual intercourse.
Thus, paragraph (b) refers to a specification only as to who is
liable and the penalty to be imposed. The person who engages
in sexual intercourse with a child already coerced is liable.
It does not make sense for the law not to consider rape of a
child as child abuse. The proposal of Justice Velasco implies
that there has to be other acts of a sexual nature other than
the rape itself that will characterize rape as child abuse. One
count of rape is not enough. Child abuse, in his view, is not yet
present with one count of rape.
This is a dangerous calculus which borders on judicial
insensitivity to the purpose of the law. If we adopt his view, it
would amount to our collective official sanction to the idea
that a single act of rape is not debilitating to a child. That a
single act of rape is not a tormenting memory that will sear
into a child’s memory, frame his or her view of the world, rob
him or her of the trust that will enable him or her to have full
and diverse meaningful interactions with other human beings.
In my view, a single act of sexual abuse to a child, by law, is
already reprehensible. Our society has expressed that this is
conduct which should be punishable. The purpose and text of
the law already punish that single act as child abuse.
Rape is rape. Rape of a child is clearly, definitely, and
universally child abuse.
Justice Velasco further observes that the right to due process
of the accused will be violated should we impose the penalty
under Republic Act No. 7610. I disagree.
The Information was clear about the facts constitutive of the
offense. The facts constitutive of the offense will suggest the
crime punishable by law. The principle is that ignorantia legis
non excusat. With the facts clearly laid out in the Information,
the law which punishes the offense should already be clear
and the accused put on notice of the charges against him.
Additionally, there is no argument that the accused was not
represented by counsel. Clear from the records is the entry
and active participation of his lawyer up to and including this
appeal.
On the award of damages, we maintain the amount of
30,000.00 in favor of XXX as a victim of rape through sexual
assault, consistent with jurisprudence.108
This court has stated that "jurisprudence from 2001 up to the
present yields the information that the prevailing amount
awarded as civil indemnity to victims of simple rape
committed by means other than penile insertion is
₱30,000."109

This statement considered the prevailing situation in our

jurisprudence where victims of rape are all
women.1âwphi1However, as in this case, men can also
become victims of rape through sexual assault, and this can
involve penile insertion.

WHEREFORE, the Court of Appeals Decision in CA-G.R. C.R. No.

34387 dated August 28, 2013 is AFFIRMED with
MODIFICATION in that for rape through sexual assault under
Article 266-A, paragraph 2, accused-appellant Richard Ricalde
is sentenced to suffer the indeterminate penalty of twelve
(12) years, ten (10) months and twenty-one (21) days of
reclusion temporal, as minimum, to fifteen (15) years, six (6)
months and twenty (20) days of reclusion temporal, as
maximum. He is ordered to pay the victim civil indemnity in
the amount of ₱30,000.00 and moral damages likewise in the
amount of ₱30,000.00, both with interest at the legal rate of
6% per annum from the date of finality of this judgment until
fully paid.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice
G.R. No. 138033 February 22, 2006
RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato
Baleros, Jr. assails and seeks the reversal of the January 13,
1999 decision1 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 information4 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.
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 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. xxx. 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.
xxx.
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) ΣΦ’ 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), ….
xxx xxx xxx
Joseph was already inside Room 306 at 9 o’clock in the
evening of December 12, 1991. xxx 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 ….
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), ….
xxx. 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. xxx. 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. xxx.
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.
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.
2) One (1) small white pl astic 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.
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. xxx.
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. xxx.
xxx 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. xxx .
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 …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally let
him in, already about ten (10) minutes had lapsed since CHITO
first arrived (Ibid., p. 25).
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 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). xxx.
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. xxx.
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.
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.
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
decision10 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 Correctional, 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.11
Petitioner moved for reconsideration, but his motion was
denied by the CA in its equally assailed resolution of March 31,
1999.12
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.
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.
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.13 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.14
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.
We quote with approval the CA’s finding of the circumstantial
evidence that led to the 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.
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.15
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.16
Expounding on the nature of an attempted felony, the Court,
speaking thru Justice Claro M. Recto in People vs.
Lamahang,17 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 not
a juridical fact from the standpoint of the Penal Code.18
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.1avvphil.net
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.19
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.20
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.21
In Perez vs. Court of Appeals,22 the Court acquitted therein
petitioner of the crime of attempted rape, pointing out that:
xxx. 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. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, 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 petitioner Renato D. Baleros, Jr. of the charge for attempted
constitute unjust vexation punishable as light coercion under rape. Petitioner, however, is adjudged GUILTY of light coercion
the second paragraph of Article 287 of the Revised Penal and is accordingly sentenced to 30 days of arresto menor and
Code. In the context of the constitutional provision assuring to pay a fine of ₱200.00, with the accessory penalties thereof
an accused of a crime the right to be informed of the nature and to pay the costs.
and cause of the accusation,24 it cannot be said that petitioner
was kept in the dark of the inculpatory acts for which he was SO ORDERED.
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.25 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.26 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.

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 ₱5.00 to ₱200.00 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
EN BANC
[G.R. No. 133926. August 6, 2003]
PEOPLE OF THE PHILIPPINES, appellee, vs. RUBEN DALISAY Y
HERNANDEZ, appellant.
DECISION
SANDOVAL-GUTIERREZ, J.:
For automatic review is the Decision[1] dated May 5, 1998, of
the Regional Trial Court, Branch 4, Pallocan, Batangas City, in
Criminal Case No. 8776 convicting Ruben Dalisay y Hernandez,
appellant, of statutory rape, and imposing upon him the
supreme penalty of death. He was further ordered to
indemnify the victim, Ma. Lanie Dalisay (Lanie for brevity), his
own daughter, the sum of P200,000.00 as moral and
exemplary damages and to pay the costs.
On February 10, 1997, a criminal complaint was filed with the
said court by Lanie against appellant, her own father, alleging
as follows:
That on or about the 26th day of September 1996, at Barangay
Pulong Anahao, Municipality of Mabini, Province of Batangas,
Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, by means of force and
intimidation, did then and there willfully, unlawfully and
feloniously lay and have carnal knowledge with the said Ma.
Lanie Dalisay, daughter of the accused and below twelve (12)
years old, against her will and consent.
Contrary to law.[2]
Upon arraignment, appellant pleaded not guilty to the crime
charged. Trial ensued thereafter.
Lanies testimony is as follows: On September 26, 1996, she
was 11 years old, having been born on September 26,
1985.[3] Her mother, Celestina Dalisay, has been working
abroad, leaving her and her two siblings, Luz and Ruben,
under appellants care. They reside in Barangay Pulong
Anahao, Mabini, Batangas.
In the evening of September 26, 1996, appellant arrived home
from work.[4] Lanie was then lying on bed when suddenly he
removed her pants and underwear. She resisted but he boxed
her on her thigh.[5] So when he told her to hold his penis, she
fearfully obliged. Then he touched her vagina and licked
it. Thereafter, while in a kneeling position, he placed his penis
at the entrance of Lanies vagina and inserted his private organ
into hers. He then proceeded to make push and pull
movements (nakanyog).[6] Lanie felt pain, but she did not
complain because she was afraid of him.[7] When she held
appellants penis and tried to remove it, something sticky came
out. Appellant then wiped his penis and Lanies vagina with a
blanket. After that, he again licked her vagina, wiped it and
went to sleep.[8]
Lanie further testified that appellant has sexually abused her
since she was in grade III, or in 1994. She estimated that he
had raped her seventeen (17) times, although she could no
longer remember the exact dates when they took place.[9] She
did not tell anyone about those previous incidents because
she was afraid he would harm her, as he used to do in the
past.[10]
The following day, September 27, Lanie went to school and
pretended as if nothing happened. However, her Grade V
teacher, Luminada Sangcate, noticed that Lanie looked
depressed that day. When she inquired, Lanie answered that
she was raped (hinalay) by her father.[11] Immediately,
Luminada reported the matter to the school principal who, in
turn, relayed the same to their Barangay Chairman. On
September 30, 1996, a meeting was held among the Barangay
Chairman, the school principal, and appellants brother,
Feliciano Dalisay, who all conferred with Lanie[12] and decided
to bring her to the Mabini Police Station where she executed
an affidavit on the incident.[13]
Incidentally, Lanies sister, Luz, also filed a complaint for acts of
lasciviousness against appellant. Both sisters were brought to
the Lingap Center of Mabini for temporary custody pending
the resolution of their cases.[14]
Lucila Bacay, a Social Worker at Mabini, testified that on
October 4, 1996, she interviewed the appellant and he
admitted that he raped Lanie. He explained though that he
could not understand why he did it to his own daughter.[15]
For his part, appellant denied the charge, claiming that his
wifes relatives instigated Lanie to file the complaint against
him because they wanted to take from him the custody of his
children which he resented.[16]
Dr. Emma Panaligan, Medico-Legal Officer of the Batangas
Regional Hospital, testified that on September 30, 1996, she
examined Lanie after the latter complained that she was
raped by the appellant. She confirmed her Medico-Legal
Certificate dated October 2, 1996,[17] stating that Lanies
external genitalia is infantile and has a non-gaping labia
majora; that her hymen is intact, and no sperm cell was seen
during the examination.[18] She explained that the normal size
of the penis of an adult person could not fully penetrate
Lanies vagina considering the small size and the condition of
her external genitalia.[19]
On May 5, 1998, the trial court rendered the assailed Decision
convicting appellant of statutory rape, the dispositive portion
of which reads:
Premises considered and upon the evidence, accused Ruben
Dalisay y Hernandez is found Guilty beyond reasonable doubt
of Statutory Rape as charged in the criminal complaint filed by
her minor daughter Ma. Lanie Dalisay and defined and
penalized under Article 335 of the Revised Penal Code, as
amended by Republic Act No. 7659. Wherefore, he is
sentenced to suffer the capital punishment of Death to be
made and exacted in the manner provided for under existing
law which is by lethal injection. He is further directed to
indemnify complainant Ma. Lanie Dalisay with the sum of Two
Hundred Thousand Pesos (P200,000.00) as moral and
exemplary damages and to pay the costs.
SO ORDERED.[20]
Hence, this automatic review.
In his brief, appellant claims that the trial court erred:
I
x x x in giving full weight and credence to private complainants
testimony, which is insufficient to establish the commission of
the offense by the appellant; and
II
x x x in failing to appreciate in appellants favor the testimony
of Dr. Emma Panaligan who physically examined the private
complainant.
The trial court convicted appellant of statutory rape because
he had carnal knowledge of Lanie who was below 12 years of
age when the crime was committed.
The law governing the instant case is Article 335 of the
Revised Penal Code, as amended by Republic Act No.
7659,[21] which partly provides:
Article 335. When and how rape is 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 or is
demented.
The crime of rape shall be punished by reclusion perpetua.
xxx
Based on the above-quoted provisions, the essential elements
of statutory rape are: (1) the offender had carnal knowledge
of a woman; and (2) the woman is below 12 years of age.[22]
The trial court found Lanies testimony credible and
trustworthy, thus:
x x x suffice it to state that the demeanor of the complainant,
Ma. Lanie Dalisay, as she gave her testimony has led this court
to give her utmost credibility. She was barely eleven years of
age and the manner by which she courageously gave evidence
to what her father had done to her showed no taint
whatsoever that she was not telling the truth. Her tears which
flowed from her eyes as she narrated the gift from hell which
her father gave her on the very night of her birthday
accentuated the truth of her unfortunate and devilish ordeal x
x x.[23]
In a prosecution for rape, the complainants credibility
becomes the single most important issue, and when her
testimony satisfies the test of credibility, an accused may be
convicted solely on the basis thereof.[24]
Indeed, Lanies testimony has sufficiently and convincingly
proved that appellant had carnal knowledge of her on the
night in question. Her candid and straightforward testimony,
punctuated by her tears when she narrated how she was
sexually ravished by her very own father, are earmarks of a
truthful witness and thus, must be given full faith and
credit.[25] Lanie described how appellant raped her, thus:
Q: Now, on September 26, 1996 in the evening while you
were in bed, do you remember if there was anything done to
you by your father?
A: He inserted his organ to my organ, sir.
Q: And, that was inside your house?
A: Yes, sir.
Q: And, where is your house located at that time?
A: At Barangay Pulong Anahao, Mabini, Batangas, sir.
Q: Now, before your father was inserting his private organ to
you, were you wearing any underwear?
A: None, sir.
Q: Why?
A: Because he removed it first, sir.
Q: How about your pants, did you wear your pants at that
time?
A: Yes sir, but it was also removed by my father.
Q: Now, was the place where you were undressed by your
father lighted?
A: It was dark, sir.
Q: And, how did you know that the private organ of your
father was being inserted in you?
A: Because my father asked me to hold his organ, sir.
Q: Did you hold his organ when he told you that?
A: Yes, sir.
Q: And, after it was held by you, what did he do next?
A: He touched also my organ, sir.
Q: And, what else did he do, if any?
A: After touching my private organ he licked it (nilawayan at
hinimud).
PROS. JUDIT:
May we request that the Tagalog answer of the witness be
incorporated to the record.
Q: After doing that (nilawayan at hinimud), what else did he
do?
A: He inserted his organ into my organ, sir.
Q: Was his private part able to penetrate yours?
A: In the entrance, sir.
Q: And what did you feel when his private organ was
inserted to you?
A: It was painful, sir.
Q: Did you complain to your father?
A: I cannot complain, sir.
Q: Why?
A: Because Im afraid (natatakot po ako), sir.
PROS. JUDIT:
May we request to put on record that when the witness
answered natatakot po ako, she was teary eyed, Your Honor.
xxx
Q: And was this the first time that your father inserted his
penis to you on September 26, 1996, or was there any other
incident?
A: There were other times, sir.
Q: And previous to this incident, how many times if you can
recall?
A: What I estimated was seventeen (17) times, sir.
Q: And, since when did he first do this to you?
A: When I was still in grade 3, sir.
COURT:
Do you mean to say when you were still in grade 3 your father
had already inserted his penis to your organ?
A: Yes, Your Honor.[26] (Emphasis ours)
Upon cross-examination, Lanie remained steadfast in her story
that appellant sexually ravished her against her will on the
night in question.
On Cross-examination:
ATTY. ASILO:
Q: Was there somebody else who told you to file this instant
case against your father?
A: None, sir.
COURT:
You are saying that the filing of this case against your father Q: Was it your father who undressed you or you undressed
was of your own initiative? yourself when told by your father?

A: Yes, sir. A: It was my father who was trying to remove my pants and
panty and I tried to pull them up and resisted.
ATTY. ASILO:
Q: But despite your resistance your father was able to
Q: You were lying down while your father was inserting his remove your pants and panty?
private organ to your private organ?
A: Yes, sir. My father was able to remove my pants and panty
A: Yes, sir. because he boxed me on my thigh.

Q: And what was the relative position of your father when he Q: And, is it correct that your father told you to hold his
was inserting his private organ to your private organ? private organ before he inserted the same to your private
organ?
A: He was kneeling down, sir.
A: Yes, sir.
COURT:
Q: And did you obey your father?
Did he say anything to you before he inserted his penis to your
organ? A: Yes, sir. I followed him because if not he will again box me
on my thigh.
A: None, sir.
Q: But you stated that your father had inserted his penis
ATTY. ASILO: slightly to your private organ?

Q: But before he inserted his penis to your private organ, you A: The tip of his private organ was inserted in my private
stated that your father told you to undress yourself? organ, sir.

A: Yes, sir. Q: And, your father was moving while the tip of his organ
was inside your private organ, is that correct?
A: Yes, sir.
Q: And could you describe before this Honorable Court the
movement of your father while the tip of his organ was
penetrating your private organ?
A: Siya po ay nakanyog, sir.
Q: For how long did your father remain in that movement?
A: Quite long, sir.
Q: And, when your father was inserting his private organ to
your organ you were still holding his penis, is that correct?
A: Yes, sir. I was holding his penis because I was trying to pull
it out.
Q: And, was there something which came out from the penis
of your father while the same was inserted in your private
organ?
A: Yes, sir.
Q: And could you tell to this Honorable Court what was that
something which came out from your fathers private organ.
A: It was something sticky, sir.
Q: Did it come out while his private organ was being inserted
or while the same was outside your private organ?
A: When that sticky thing came out, his private organ was
outside mine and then he removed it, sir.
COURT:
After that, what happened?
A: He stopped, sir.[27]
xxx
On Re-cross examination:
Q: And you still maintain your answer that nobody among
your relatives from the mother side asked you or initiated you
to file this case against your father because of personal grudge
against him?
A: No, sir. It was my own decision that this case was filed
against my father.[28] (Emphasis ours)
Lanie was fully aware that if her father would be convicted of
the crime charged, he would be sentenced to death. Yet, she
remained firm in her testimony and wanted him to be
penalized with death, thus:
COURT:
Do you know the gravity of the offense charged to your
father?
A: Yes, sir.
Q: Do you know that if your father is found guilty he might be
sentenced to death?
A: Yes, sir.
Q: Do you want your father to die?
A: Yes, sir.[29]
Certainly, such statements could only be expressed by an
aggrieved daughter who values the sanctity of her
womanhood more than the life of his father. We have held
that a rape victims testimony is entitled to great weight
especially when she accuses her own father or a close relative
of having ravished her.[30] For there can be ascribed no greater
motivation for a woman abused by her own kin than that
innate yearning of the human spirit to declare the truth to
obtain justice.[31]
Appellant would like us to believe that Lanies charge against
him was instigated by his parents-in-law who want to have the
custody of his children.
We are not swayed by appellants bare claim. We find no
reason to disturb the lower courts finding that Lanies story is
credible. It is inconceivable that she would falsely testify
against her own father if the charge were not true. Rape is not
an ordinary crime that can easily be manufactured.[32] When a
victim says she was raped, she says in effect all that is
necessary to show that the crime was committed. Not a few
offenders in rape cases attributed the charges brought against
them to family feuds, resentment or revenge, but such alleged
motives cannot prevail over the positive and credible
testimonies of complainants who remained steadfast
throughout the trial.[33]
Moreover, appellant contends that since Lanies hymen is
intact and that there was no spermatozoa in her
genitalia[34] when Dr. Emma Panaligan examined her on
September 30, 1997, he could not have committed the crime.
We disagree. It was sufficiently and convincingly established
by the prosecution that appellant had carnal knowledge of
Lanie against her will, as clearly shown by her testimony
quoted earlier. The presence of either hymenal laceration or
spermatozoa on Lanies private part is not an essential element
of rape.[35] In People vs. Parcia,[36] we held that the absence of
sperm does not disprove the charge of rape. Likewise, in
People vs. Regala,[37] we ruled that an intact hymen does not
necessarily prove absence of sexual intercourse. Similarly,
in People vs. Rafales,[38] we declared:
x x x. For rape to be committed, entrance of the male organ
within the labia or pudendum of the female organ is
sufficient. Rupture of the hymen or laceration of the vagina
are not essential. Entry to the least extent of the labia or the
lips of the female organ is sufficient, the victim remaining
virgin does not negate rape.
As testified to by Lanie, the tip of appellants penis
was inserted[39] into her vagina,[40] as a result of which she felt
pain. In other words, there was no full penetration, and this
explains why her hymen remained intact. Nonetheless, carnal
knowledge was consummated by the entry of the tip of
appellants private organ into the labia or pudendum of
Lanies genitalia.[41] It is well-settled that full penetration is not
required to consummate carnal knowledge, as proof of
entrance showing the slightest penetration of the male organ
within the labia or pudendum of the female organ is
sufficient.[42] We now come to the second element of
statutory rape, i.e., that the woman is under 12 years of age.
In People vs. Pruna,[43] we specified the guidelines in
determining the sufficiency of evidence of the victims age as
an element of the crime or as a qualifying circumstance, thus:
1. The best evidence to prove the age of the offended party is
an original or certified true copy of the certificate of live
birth of such party.
2. In the absence of a certificate of live birth, similar
authentic documents such as baptismal certificate and school
records which show the date of birth of the victim would
suffice to prove age.
3. If the certificate of live birth or authentic document is
shown to have been lost or destroyed or otherwise
unavailable, the testimony, if clear and credible, of
the victims mother or a member of the family either by
affinity or consanguinity who is qualified to testify on
matters respecting pedigree such as the exact age or date of
birth of the offended party pursuant to Section 40, Rule 130 of
the Rules on Evidence shall be sufficient under the following
circumstances:
a. If the victim is alleged to be below 3 years of age and what
is sought to be proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what
is sought to be proved is that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what
is sought to be proved is that she is less than 18 years old.
4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victims mother or relatives
concerning the victims age, the complainants testimony will
suffice provided that it is expressly and clearly admitted by
the accused.
5. It is the prosecution that has the burden of proving the age
of the offended party. The failure of the accused to object to
the testimonial evidence regarding age shall not be taken
against him.
6. The trial court should always make a categorical finding as
to age of the victim. (Emphasis ours)
In the present case, the trial court made the following finding:
From the evidence of both parties, the following facts appear
to be uncontroverted, to wit:
(a) That the complainant is an eleven year-old Grade V
student and the eldest daughter of the accused.
x x x[44]
Such finding as to Lanies age is erroneous since it is
based solely on Lanies testimony that she was 11 years old
when appellant raped her on September 26, 1996.[45] In Pruna,
cited earlier, we held that the best evidence to prove Lanies
age is the original or certified true copy of her certificate of
live birth, or, in its absence, an authentic baptismal certificate
or school records showing her age. However, the prosecution
failed to present any of such documents. Neither was it shown
that they were lost, destroyed or unavailable at the time of
the trial. Also, the prosecution did not present Lanies mother
or relatives to testify concerning her age. Lanies testimony
alone is not sufficient to prove her actual age considering that
appellant did not expressly and clearly admit the same as
required in Pruna. And the fact that there was no objection
from the defense regarding the victims age could not be taken
against him since it is the prosecution that has the burden of
proving her age.
In view of the failure of the prosecution to prove Lanies age as
alleged in the information, we hold that appellant cannot be
convicted of statutory rape. Nonetheless, he should be
convicted of simple rape under paragraph 1 of Article 335 of
the Revised Penal Code, as amended, quoted earlier, and
sentenced accordingly to reclusion perpetua, considering that
he had carnal knowledge of Lanie through force or
intimidation. She testified that she was afraid of the appellant
and succumbed to his bestial desires because he boxed her on
her thigh.
indemnity is mandatory. If the death penalty is imposed, the
indemnity ex delicto should be P75,000.00. Where, as here,
the death penalty is not decreed, the victim should be entitled
to P50,000.00 only.[46]
In line with current jurisprudence, moral damages is fixed
at P50,000.00 without need of pleading or proof of basis
therefor.[47] In addition, exemplary damages of P25,000.00 is
awarded to deter fathers with aberrant sexual behavior.[48]
WHEREFORE, the Decision dated May 5, 1998, of the Regional
Trial Court, Branch 4, Batangas City, in Criminal Case No. 8776,
is hereby MODIFIED in the sense that appellant RUBEN
DALISAY Y HERNANDEZ is found GUILTY beyond reasonable
doubt of simple rape, and is hereby sentenced to suffer the
penalty of reclusion perpetua and to pay the victim Ma. Lanie
Dalisay P50,000.00 as civil indemnity, P50,000.00 as moral
damages, and P25,000.00 as exemplary damages.
Costs de oficio.

The damages awarded by the trial court in favor of the

complainant must be corrected. We have consistently ruled
that upon a finding of the fact of rape, the award of civil

THIRD DIVISION
[G.R. No. 144035. September 27, 2001]
PEOPLE OF THE PHILIPPINES, appellee, vs. VICENTE BASQUEZ
y MANZANO, appellant.
DECISION
PANGANIBAN, J.:
Judges are not mere boxing referees, whose only task is to
watch the bout and decide the results. They are duty-bound to
conduct an orderly trial and an expeditious presentation of
the evidence. In the performance of their responsibility, they
may ask questions that would elicit the facts of the issues
involved, clarify ambiguous remarks by witnesses, and address
the points that are overlooked by counsel.[1]
The Case
Before the Court is an appeal by Vicente Basquez, challenging
the April 10, 2000 Judgment[2] of the Regional Trial Court of
Davao City (Branch 17), in Criminal Case No. 42148-98. The
dispositive portion of the said Decision, which found him
guilty of rape, reads as follows:
WHEREFORE finding the evidence of the prosecution, more
than sufficient, to prove the guilt of accused beyond
reasonable doubt of the offense charged, pursuant to Art. 335
of the Revised Penal Code as amended by Rep. Act 7659 as
amended, it being established from the evidence of the
prosecution, the complainant is only 7 years old or exactly 6
years[,] 7 months and 24 days, the extreme penalty of Death
notwithstanding, cannot be imposed for want of aggravating
circumstance in the commission of the offense charged but
accused, Vicente Basquez y Manzano is sentenced, to suffer
the penalty of reclusion perpetua, together with all accessory
penalty as provided for by law and to pay complainant by way
of civil indemnity, the amount of P50,000.00 and another
amount of P50,000.00, by way of moral damages, for the
injury suffered by complainant in her young life, inhumanely
committed with and unnecessar[ily] resulting from the odious
crime of rape by accused to warrant per se an award of moral
damages, without the requirement of proof of mental and
physical suffering. (PP vs. Prades GR No. 127759, promulgated
on July 30, 1998) with cost de oficio.[3]
The Information,[4] dated November 11, 1998, charged
appellant as follows:
That on or about x x x November 4, 1998, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable
Court, the above-mentioned accused, by means of force and
intimidation, did then and there willfully, unlawfully and
feloniously have carnal knowledge [of] the complainant Jiggle
Jilt R. dela Cerna, who is seven (7) years old, against her will.[5]
When arraigned on February 4, 1999, appellant pleaded[6] not
guilty after the Information was read and interpreted to him in
the Visayan dialect, which he fully understood.[7] On pretrial,
he manifested through counsel that he would not plead guilty
to a lesser offense or enter into any stipulations or
admissions.[8] After the prosecution rested its case, he filed a
demurrer to evidence with prior leave of court.This plea was
subsequently denied.[9] Trial continued and the lower court,
thereafter, promulgated its assailed Decision.
The Facts
Prosecutions Version
In its Brief,[10] the Office of the Solicitor General presents the
prosecutions version of the facts as follows:
[O]n the afternoon of November 4, 1998, around 4:00 oclock,
Jiggle Jilt dela Cerna, six (6) years 7 months and 24 days old,
was on her way home from Dumanlas Elementary School,
Buhangin, Davao City where she was a Grade One (I) student.
While casually walking, Jiggle was waylaid by a man wearing x
x x short pants and white T-shirt (whom she later identified as
the appellant) who was drinking outside a store along her
way.
The appellant blocked her way and pulled her by the belt of
her dress. She was then dragged towards the direction of the
houses at the back of the school and was brought inside an
unoccupied dilapidated house. Upon reaching the said house,
her hands, feet and body were tied with a tieback.
Jiggle, young as she [was], could do nothing but to struggle
and cry.
At this point, her attacker undressed himself, untied Jiggle,
had her lie down and put himself on top of her. The appellants
hands then started groping all over her young and fragile body
and forced himself inside her. Jiggle, despite the excruciating
pain, kicked appellant repeatedly in an effort to free herself
from him. Appellant, however, continued forcing his penis
inside x x x her vagina.
Around 5:00 p.m. or an hour after when the appellant had
consummated his vile and lewd act of raping the innocent
child, he (appellant) left her with her body still tied. With her
school bag just beside her, Jiggle mustered enough courage
and strength to take a pair of scissors from it and cut the
remaining tiebacks tied at her body.
The following day, Jiggle, traumatized by the assault and rape
committed by the appellant, refused to go to school for fear of
seeing the appellant again. She later narrated her horrifying
experience to her grandmother Segundina dela Cerna with
whom she was living. She could do nothing but to cry her
anger out upon learning of her granddaughters fate. She then
reported the incident to the Buhangin Police and submitted
her granddaughter to a medical examination.
The Medical Examination conducted on Jiggle by Dr. Danilo
Ledesma, Medico Legal of the City Health Office, disclosed
that the hymen [was] intact and its orifice small as to preclude
complete penetration by an average sized male organ in
erection without causing hymen[al] injury. The same medical
report stated that the patient was positive for spermatozoa in
the opening of the vagina including the parts surrounding the
urethra.
On November 9, 1998, SPO2 Miguel Foma, together with
another member of the PNP and several members of the
Buhangin Barangay Police headed by Jose Despe, conducted a
follow up investigation of the alleged rape. The group, through
the initiative of the barangay police, proceeded to the house
of a certain Virgie dela Corta where the appellant was
reported to be living.
The appellant was subsequently invited by the police at the
Police station No. 5 of Buhangin, Davao.
Unknown to the appellant, while the investigation was going
on, he was subsequently identified by Jiggle who was then
present but was covered by a piece of plywood in order to
hide her.[11] (citations omitted)
Defenses Version
The defense of appellant, on the other hand, consisted of alibi
and denial. The trial court summed up his version of the
facts,[12] as follows:
On November 4, 1998, he was at Guerrero St., particularly at
the vulcanizing shop of one named Jeck Jeck Pinsoy at
Guerrero Street, Davao City.
On November 4, 1998, he was helping in the store of his sister
but Jeck-Jeck Pinsoy requested him, to help in the butchering
and roasting of a pig, in preparation [for] her birthday.
They started butchering the pig at 3:00 p.m., and finished the
roasting of the pig at 6:00 p.m., along with his other
companions in the butchering and roasting of the pig[. D]uring
said period, he saw Jeck-Jeck Pinsoy, who used to go down to
the place where they were working and verified their
problem, in the butchering and roasting of the pig for her
birthday.
The party started at 7:00 p.m. up to dawn, the following day
November 5, 1998.
Meanwhile on November 9, 1998 at about 9:00 p.m., at
Guerrero Street, Davao City, there were policemen who
arrived looking for him, accompanied by his in-law, a certain
Mike Vidanes, who told him, a case of rape was filed against
him.
His in-law told him, to [go] along with the policemen of
Buhangin Police Station[. D]espite his hesitation, he finally
agreed to [go] with them, in compliance with the advise of his
in-law.
Upon arrival at Buhangin Police Station, he was required to sit
down without any counsel and he was confronted with a little
girl who was asked, whether he was the one who raped
her[. T]he girl answered, no.
He [was] only about [t]hree (3) meters away from the girl, who
was confronted with him.
He identified pictures, showing the place he was brought [to]
marked Exh. 5 and [with] submarkings for the accused[. L]ater
after the grandmother of the girl asked the girl, whether
accused [was] the one who raped her, complainant answered,
[n]o.
Thereafter he was handcuffed and put inside the detention
cell but later his handcuff was removed.
Since November 8, 1998, he was detained, up to the
present.[13]
Trial Courts Ruling
The trial court ruled that the prosecution was able to prove
the guilt of appellant beyond reasonable doubt. It gave
superior weight to the positive identification given by the
victim who had pointed to him as the person who had raped
her. Furthermore, it deemed as biased the testimony of the
witness whom appellant had relied upon to prove that the
victims identification of the latter was erroneous.[14]
Hence, this appeal.[15]
The Issues
Appellant submits that the court a quo committed the
following errors:
I The participation of judges in the conduct of trials cannot be
That the trial Judge showed manifest bias and partiality
against the accused by virtually acting as PROSECUTOR, and
using the authority of his position in making up for the
shortcomings of the prosecutor;
II
That the trial Court ERRED in holding that prosecution witness,
Purok Leader and Barangay Policeman Jose Despe, was
patently bias[ed] and partial in favor of accused;
III
That the trial Court erred in not holding that the rapist as
described by the victim, did not match the description of
accused;
IV
That the trial Court erred in convicting the accused.[16]
The Courts Ruling
The appeal is devoid of merit.
First Issue: Bias and Partiality of the Trial Judge
Appellant contends that the trial judge showed manifest bias
and partiality against him by acting as a virtual prosecutor. We
differ.
condemned outrightly. They cannot be expected to
remain always passive and stoic during the proceedings. After
all, they are not prohibited from asking questions when
proper and necessary. In fact, this Court has repeatedly ruled
that judges must be accorded a reasonable leeway in asking
questions to witnesses as may be essential to elicit relevant
facts and to bring out the truth.[17]
Stated differently, "questions designed to clarify points and to
elicit additional relevant evidence are not improper. Also, the
judge, being the arbiter, may properly intervene in the
presentation of evidence to expedite and prevent unnecessary
waste of time.[18]
Very illuminating on this point is the ruling of this Court in
1914 in United States v. Hudieres, which we quote:
The first assignment of error has its basis in the claim of
counsel that the trial judge went to unjustifiable lengths in
examining some of the witnesses called for the defense. It is
very clear, however, from a review of the whole proceedings
that the only object of the trial judge in propounding these
questions was to endeavor as far as possible to get at the
truth as to the facts which the witnesses were testifying [to].
The right of a trial judge to question the witnesses with a view
to satisfying his mind upon any material point which presents
itself during the trial of a case over which he presides is too
well established to need discussion. The trial judges in this
jurisdiction are judges of both the law and the facts, and they
would be negligent in the performance of their duties if they
permitted a miscarriage of justice as a result of a failure to
propound a proper question to a witness which might develop
some material fact upon which the judgment in the case
should turn. So in a case where a trial judge sees that the
degree of credit which he is to give the testimony of a given
witness may have an important bearing upon the outcome,
there can be no question that in the exercise of a sound
discretion he may put such questions to the witness as will
enable him to formulate a sound opinion as to the ability or
the willingness of the witness to tell the truth. The questions
asked by the trial judge in the case at bar were in our opinion
entirely proper, their only purpose being to clarify certain
obscure phases of the case; and while we are inclined to agree
with counsel that some of the observations of the trial judge
in the course of his examination might well have been
omitted, there is no reason whatever to believe that the
substantial rights of the defendants were in [any wise]
prejudiced thereby.[19]
Appellant alleges that the trial judge took up the cudgels for
the prosecution virtually assuming the role of a prosecutor.[20]
On the contrary, a trial judge may examine some of the
witnesses for the defense for the purpose of ferreting out the
truth and getting to the bottom of the facts. That he does so
would not justify the charge that he assisted the prosecution
with the evident desire to secure a conviction, or that he
intimidated the witnesses.[21]
Verily, trial magistrates are judges of both the law and the
facts. They would be negligent in the performance of their
duties if they permit a miscarriage of justice through their
failure to propound questions that have some material
bearing upon the outcome. In the exercise of sound
discretion, they may ask such questions as will enable them to
formulate sound opinions on the ability or the willingness of
witnesses to tell the truth. They may even examine or cross-
examine these witnesses.[22] They may seek to draw out
relevant and material testimonies, even if such evidence may
tend to support or rebut the position taken by one or the
other party.[23] Even if the clarificatory questions they
propound happen to reveal certain truths that tend to destroy
the theory of one of the parties, bias is not necessarily
implied.[24]
In the present case, there was an effort by the trial judge to
arrive at the truth and to do justice to both parties. It would
be a distorted concept of due process if, in pursuance of that
valid objective, he is to be accused of unfairness. His
inquisitiveness did not unduly harm appellants substantial
rights. Rather, the questions he propounded to the witnesses
showed his intention to elicit the truth. This conduct is
expected of judges who, conscious of their responsibilities as
magistrates, propound questions to witnesses who give
incomplete and obscure answers.
Second Issue: Partiality of Prosecution Witness
Appellant argues that the trial court erred in declaring as
biased Prosecution Witness Jose Despes testimony which
favored the defense.
We are not persuaded. We find no cogent reason to disturb
the trial courts assessment of the testimony of Despe. Its
declaration that he was biased and partial to appellant was
neither arbitrary nor baseless. The age-old rule is that the task
of assigning values to the testimonies of witnesses and
weighing their credibility is best left to the trial court, which
had firsthand impressions of their demeanor and
conduct.[25] The trial court observed:
The transcript of stenographic notes of the proceedings from
pages 35 up to 42 on clarificatory questions of the court on
Jose Despe, revealed said witness was evasive in trying to hide
his apparent predilection in favor of accused by going around
the bush, in answer to the questions of the court, glaringly
declarative of his apparent intention, to exonerate the
accused of the offense charged.
In fact although presented as witness for the prosecution, the
extent and tenor of his testimony can be considered[. H] he is
indeed a witness for accused disguise[d] as prosecution
witness, to divert his true and correct inclination, in favor of
accused.
It was only upon critical questions of the court, to unmask his
true color and attachment, that his testimony was given
proper and correct affiliation, in favor of accused.[26]
Time and time again, this Court has iterated the principle that
where the culpability or the innocence of the accused hinges
on the credibility of the witnesses and the veracity of their
testimonies, the findings of trial courts are given the highest
degree of respect. After all, trial judges have an excellent
chance to personally observe the declarants on the witness
stand, an opportunity that is not equally available to appellate
courts.[27]
Moreover, it was the testimony of appellant that provided the
link between him and Despe, as the following shows:
Court: You said that Despe is your close friend?
Basquez: Yes. Q: You said, you were going home after attending to your class
at Dumanlas Elementary School. While on your way home,
Court: In fact he is the leader of the barangay police in what happened, if any?
Dumanlas?
A: I was waylaid by him.
Basquez: Yes.
Q: Who is that him [you are] referring to?
Court: And you were one of his errand boy[s]?
A: Yes, sir.
Basquez: Yes.[28]
Q: If that person you are referring to is in court, can you
This admission in court belies appellants claim that Despe and identify him?
accused do not know each other.[29]
A: Yes, sir.
Third Issue: Error in the Description of the Accused
Q: That person [whom] you pointed [to] as the one who
Appellant assails the victims description of her rapist as one waylaid you, what [was] he wearing at that time?
who sported a big stomach and a balding head. He claims he is
not dark-skinned, does not have a big belly and neither does A: He was wearing short pants.
he have a balding head.[30]
Q: [What] about his attire on the other portion of his body,
It should be clarified, at the outset, that it was Witness Jose can you recall?
Despe who, quoting the victim, said that the one who raped
her was dark-skinned, [a] skin-head, with hallow scalp on top A: T-shirt.
with big belly and with cutex on his fingernails.[31]
Q: Can you recall the color of the t-shirt?
That the appearance of appellant differs from the description
given by the victim does not necessarily affect her credibility A: Yes, sir.
as a witness. It must be remembered that she positively
identified him, not only during the investigation conducted by Q: What was the color?
the police on November 9, 1998, but also during the trial. We
quote from her testimony: A: White.[32]
xxxxxxxxx
Q: You know who is that man, whom you said molested you?
A: Yes, your Honor.
Q: Why do you know him?
A: Because I used to see him.
Q: If that man is in court, can you point [to] him?
A: That man. (witness pointed to accused, Vicente Basquez).
Q: Do you know the house of that man?
A: I do not know.
Q: But you said you know him? Where did you see him before
he molested you?
A: In the store.[33]
Moreover, the trial court noted the fact that appellant had a
bulging stomach when he testified in court.[34] There was no
equivocation on this point. The other alleged discrepancies are
minor. To a young child, brown complexion may be the same
as dark skin, and having a balding head may refer to a long
forehead. More important, minor discrepancies, if any, will
not detract from the fact that complainant categorically
identified appellant as her assailant and vividly narrated the
sexual assault committed against her.
An error-free testimony cannot be expected from children of
tender years, most especially when they are recounting details
of harrowing experiences, those that even adults would rather
bury in oblivion.[35] To be sure, complainants testimony may
not be described as flawless, but its substance, veracity and
weight were hardly affected by the triviality of her alleged
inconsistencies. On the contrary, the supposed inconsistencies
may have even reinforced her credibility, as they had probably
arisen from the naivete of a seven-year old child, confused
and traumatized by the bestial act done upon her person.
Appellant likewise submits that the victim failed to
immediately identify him during the police investigation, and
had merely been pointed out to her.[36]
We are not convinced. As already discussed, appellant was
positively identified by the victim. The reason for the latters
initial failure to identify the former as her assailant was
sufficiently explained by the trial court, as follows:
Although the confrontation was marred [by the] alleged,
testimony of Jose Despe, a Purok Leader at Buhangin,
Dumanlas, Davao City a Head of the Barangay Police by
disputing the identification of accused by complainant, in the
presence of her grandmother, who when asked whether the
accused was the one who abused her, she answered for about
3 to 4 times, he was not the one; the situation and
circumstances of said identification was done when
complainant was still confused, afraid and uncertain of the
support of Jose Despe who apparently, as found by the court,
was wittingly partial [to the] accused, during the alleged
confrontation.
Moreover, during the confrontation in the Police Station of
Buhangin, Davao City, the [complainants] view of x x x [the]
accused was obstructed by a plywood made by Jose Despe, to
cover and separate complainant [from the] accused, intended
to hide the complainant.[37]
Fourth Issue: Absence of Penetration
Although there had been no complete penetration of the
victims vagina by appellants penis, contact between then was
not ruled out by the doctor who testified in this case. In fact,
he found the victims vagina positive for spermatozoa.[38] In his
testimony, the doctor declared:
Q: In your examination you refer[red] to a statement that the
penetration may not be full but you are positive it [maybe]
partial?
A: Yes, it could be only between two lips of the genitalia of the
victim and he ejaculated just outside.
xxxxxxxxx
Q: But certainly, there is a kissing of female organ and male
organ?
A: Yes.[39]
Existing rulings on rape do not require complete or full
penetration of the victims private organ. Neither is the
rupture of the hymen necessary. The mere introduction of the
penis into the labia majora of the victim's genitalia engenders
the crime of rape.[40] Hence, it is the "touching" or "entry" of
the penis into the labia majora or the labia minora of the
pudendum of the victim's genitalia that consummates
rape.[41] Penile invasion necessarily entails contact with the
labia. Even the briefest of contacts, without laceration of the
hymen, is deemed to be rape.[42]
Finally, appellant tries to escape liability by advancing the
defense of alibi. He testified that he was at a neighbors house,
helping in the butchering and roasting of a pig.[43] The trial
court easily dismissed his contention in this wise:
There is no evidence to show, accused was required to stay in
the premises, all the time from 3:00 to 6:00 p.m., on said date
because the birthday celebrant herself, ha[d] no way of
assuring accused stayed in the premises, all the time more
than merely seeing to it accused was around helping in the
work, without certainty of the presence of accused, during the
entire period of the work.
Moreover, it is not denied from 11:00 up to 2:00 p.m., accused
was not in the house of Pinsoy, helping in the preparation of
her birthday.[44]
In any event, alibi is the weakest of all defenses, because it is
easy to concoct and difficult to disprove. For alibi to prosper, it
is not enough to prove that the defendant was somewhere
else when the crime was committed; he must likewise
demonstrate that it was physically impossible for him to have
been at the scene of the crime at the time.[45] Furthermore,
alibi cannot prevail over the positive and unequivocal
identification of appellant by complainant. Categorical and
consistent positive identification, absent any showing of ill
motive on the part of the eyewitness testifying on the matter,
prevails over the appellant's defense of denial and alibi.
Unless substantiated by clear and convincing proof, such
defense is negative, self-serving, and undeserving of any
weight in law.[46]

WHEREFORE, the appeal is DENIED. We AFFIRM the assailed

Decision finding VICENTE M. BASQUEZ guilty beyond
reasonable doubt of the crime of rape and sentencing him
to reclusion perpetua and to pay the victim P50,000 as
indemnity ex delicto and another P50,000 as moral damages.
Costs against appellant.

SO ORDERED.
FIRST DIVISION
[G.R. No. 143838. May 9, 2002]
ADELMO PEREZ y AGUSTIN, petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
KAPUNAN, J.:
This is a petition for review on certiorari seeking to reverse
and set aside the Decision, dated December 16, 1999, of the
Court of Appeals in CA-G.R. CR No. 19971 affirming the
conviction of petitioner Adelmo Perez y Agustin for the crime
of Attempted Rape.
The Information filed against petitioner with the Regional Trial
Court, Branch 2 of Balanga, Bataan reads:
That on or about April 14, 1988 in Morong, Bataan, Philippines
and within the jurisdiction of this Honorable Court, the said
accused did then and there willfully, unlawfully and
feloniously, by means of force and intimidation, commence
the commission of the crime of rape upon Julita Tria y Balagao
directly by overt acts, to wit:
That the said accused, without the permission of anyone,
entered the room of Julita Tria and once inside, embraced and
kissed her on the neck, held and mashed her breast and
compelled her to lie down, and thereafter kissed her lips and
neck and with the intent of having carnal knowledge with her,
touched her sex organ and tried to remove her panties
thereby commencing [t]he commission of the crime of Rape
directly by overt acts but said accused did not accomplish his
purpose, that is, to have a carnal knowledge with her, it was
not because of his spontaneous and voluntary desistance but
because the said Julita Tria succeeding in resisting his criminal
attempt and also due to the timely arrival of her mother to
the damage and prejudice of the said Julita Tria y Balagao.
CONTRARY TO LAW.[1]
At his arraignment, with the assistance of counsel, petitioner
pleaded not guilty. Trial ensued.
To buttress its case against petitioner, the prosecution
presented the testimonies of Eufemia Tria, mother of the
complainant, Julita Tria, the complainant, and Dr. Emmanuel
Cortez-Asuncion. As culled from the decision of the CA, these
witnesses testified as follows:
Eufemia Tria, in her testimony, gave an account of the incident
that took place in the morning of April 14, 1988. She was then
washing clothes outside their house when she heard someone
cry Inay. She then peeped into their window which was just a
few meters from where she was and there saw her daughter
Julita lying flat on a bamboo bed with her skirt raised. She saw
accused Adelmo on top of Julita with her hands pinned
down. As accused was kissing her daughter in the neck, his
buttocks were moving in an up and down motion while her
daughter was fighting back and struggling to break
free. Eufemia then rushed straight to the room where she
found accused hiding under the bamboo bed. She then
ordered the accused to come out which he did. She thought of
hacking the accused with the bolo which she found hanging on
the wall but realized that she could not do it and instead
dragged the accused out of the house and brought him to his
parents house to tell them what happened.
Complainant Julita Tria testified that in the morning of April
14, 1988, after she was through with washing the dishes, she
proceeded to the bedroom to store away their,
beddings. Suddenly, out of nowhere, accused appeared pulled
her by the hand, embraced her from behind and held her
breasts. At this juncture, he pulled her to the bamboo bed,
positioned himself on top of her and placed her hands behind
her as he kissed her lips and neck. She tried to avoid his kisses
by moving her head from side to side. As she was pinned by
accuseds vise-like grip, accused then managed to insert his
right hand inside her t-shirt and bra and squeezed
nipples. Thereafter, he tried to raise her balloon-like skirt with
his right hand, inserted it inside her panty and held her private
part while making up and down motions. Accused then
retorted Sige na, pagbigyan mo na ako. It was at this point
when she cried out Inay. Shortly thereafter, her mother
entered the room and found the accused under the bamboo
bed.
Complainant further testified that it was not the first time that
accused assaulted her. On March 25, 1988, while she was in
the kitchen doing the dishes, accused suddenly appeared at
her back with unzipped shorts and bare torso, embraced her
and warned her not to make a sound or else he would kill
her. He then jumped out of the window and fled. She did not
tell anybody about this incident for fear that accused will
make good his promise.
Dr. Emmanuel Cortez-Asuncion who conducted the medical
examination on the complainant, testified as to the extent of
injuries sustained by her and that the slight physical injuries
could have been caused by attempted rape (TSN, September
16, 1988).[2]
For its part, the defense presented as its witnesses Junar Perez
and petitioner. They testified as follows:
Junar Perez is a ten (10) year old grade IV honor pupil who at
the time of the incident was on vacation at his grandmothers
place. In the morning of April 14, 1988, he was playing with his
cousins near the house of his Auntie Feming (Julitas mother)
when he got thirsty and asked for a drink in the latters
house. There he saw Julita and accused conversing while
seated on a bench near the door. He also saw Eufemia
washing clothes a few meters away from Julita and the
accused. He did not hear any noise in the house.
Accused Adelmo Perez declared that he was in Julitas house
that morning of April 14, 1988 upon her prodding for him to
come over as he would often do. When Junar had left the
house, he invited Julita to the room where they could not be
seen by her mother, there they embraced and kissed, he then
inserted his hand inside her clothes, held her breast and
slowly laid her on the bamboo bed. Shortly thereafter, her
mother called Julita so she stood up but later returned and
they again resumed embracing and kissing after which they
laid down on the bamboo bed and he was able to place
himself on top of her. He sensed that someone had entered
the house and so stood up and hid under the bed upon Julitas
advice. He denied that the acts done were against Julitas
will. In fact, he claimed that he and Julita were already
becoming intimate.[3]
After the prosecution and the defense presented their
respective evidence, the trial court rendered judgment finding
petitioner guilty of attempted rape. The dispositive portion of
the trial courts decision reads:
WHEREFORE, judgment is hereby rendered convicting the
accused, Adelmo Perez y Agustin, of the crime of ATTEMPTED
RAPE, the prosecution having proved his guilt beyond
reasonable doubt. Said accused is hereby sentenced to jail
term of two (2) years, four (4) months and one (1) day
of prision correccional as minimum to eight (8) years and one
(1) day of prision mayor as maximum. He shall be credited
with time spent under detention.
SO ORDERED.[4]
Aggrieved, petitioner appealed to the CA. The appellate court,
finding the appeal to be unmeritorious, affirmed petitioners
conviction. The dispositive portion of the assailed decision
reads:
WHEREFORE, the judgment herein appealed from is hereby
AFFIRMED in toto. Costs against appellant.
SO ORDERED.[5]
Petitioner now comes to this Court assailing the decision of
the CA. Petitioner raises the following issues:
I
WAS THE CRIME COMMITTED BY THE PETITIONER ATTEMPTED
RAPE OR ACTS OF LASCIVIOUSNESS; and
II
DID THE PROSECUTION PRESENT THE QUANTUM OF PROOF
NECESSARY TO ESTABLISH THE GUILT OF THE PETITIONER
BEYOND REASONABLE DOUBT.
The petition is partly meritorious. The issues shall be discussed
jointly as they are interrelated.
To exculpate himself, petitioner impugns the credibility of the
complainant. Petitioner contradicts the complainants
allegations as he (petitioner) insists that what transpired
between them was a consensual act.
It is well settled in this jurisdiction that the determination of
credibility of witnesses is properly within the domain of the
trial court as it is in the best position to observe their
demeanor and bodily movements.[6] The trial court in this case
found the witnesses for the prosecution and their version of
the incident more credible as it made these findings:
No woman would ordinarily complain to the police and
concoct a story that an uncle attempted to rape her, or
subject herself to medical examination of her private parts,
unless righteous indignation compelled her. This was
particularly reinforced by the fact that she submitted herself
thereto that afternoon of the same day, accompanied by her
father and mother.
Julitas and her mothers accounts were clear, spontaneous,
natural and credible as weighed against the flimsy excuse of
the accused.
The physician admitted that the physical injuries suffered by
Julita could have been caused by attempted rape.
Julita would not have shouted, Inay if she liked and consented
to what her uncle was doing to her. The intact hymen of Julita
also disproves the accuseds declaration that they were getting
intimate. He himself refused to call themselves lovers.
The intention to force Julita to submit to sexual intercourse
has been proved by these pieces of evidence which have not
been refuted or disproved: he suddenly kissed, embraced and
dragged her to the bamboo bed where he continued to kiss
her lips and neck; then squeezed her nipples and mashed her
breast by inserting his hand in her panty and held her vagina,
doing the up and down movement as he held her hands under
her with his left hand; he unzipped his short pants; put out his
penis while on top of her, as Julita struggled, kicked and
pushed (after he [sic] hands were freed) to extricate
herself. The medical certificate found physical injuries in the
neck and navel which could have been caused by blunt force,
FORCE WOULD HAVE BEEN UNNECESSARY IF JULITA
CONSENTED TO THESE ACTS.[7]
These findings of the trial court had been affirmed by the
CA. The Court is not inclined to deviate from these courts
findings that petitioner, against the will of the complainant,
performed sexual acts on the latter. However, a careful review
of the records of the case shows that the crime committed by
petitioner was acts of lasciviousness not attempted rape.
Under Article 6 of the Revised Penal Code, there is an attempt
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 his own spontaneous
desistance. In the crime of rape, penetration is an essential act
of execution to produce the felony.[8] 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.
There is no showing in this case that petitioners sexual organ
had even touched complainants vagina nor any part of her
body. The complainant testified as follows:
Q: After Adelmo Perez embraced you by the way you
demonstrated, what else did Adelmo Perez do?
A: He pulled me towards the bamboo bed (papag).
Q: How did he pull you towards the bamboo bed?
A: While he was embracing me.
Q: He pulled you towards the wooden bed while he was A: He was lying face down on me.
holding you or embracing you in that position you are
demonstrating? Q: When you said Adelmo Perez succeeded in lying down in
the wooden papag, what was the position of your feet?
A: Yes, sir.
A: They were hanging from the edge of the papag your honor.
xxx
xxx
Q: While you were sitting on the lap of the accused Adelmo
Perez, what else did Adelmo Perez do to you? Q: And while your two hands were at your back, the way you
demonstrated where was Adelmo Perez?
A: He laid me face up on the papag or on the wooden bed, sir.
A: He was on top of me, sir.
Q: Did he manage to lay you down on the wooden papag?
Q: And what was he doing?
A Yes, your honor.
A: He was kissing me on my lips and my neck, sir.
xxx
Q: And while Adelmo Perez was kissing you, what did you do,
Q: How were you positioned in (sic) the wooden bed or papag if you did anything?
after Adelmo Perez succeed in lying you down?
A: I was trying to avoid his face sir by moving my face.
A: I was lying face up your Honor.
xxx
xxx
Q: What exactly did you want to do with that movement?
Q: And while you were in that position or nakatihaya po ako,
what else did Adelmo Perez do? A: I was trying to avoid his face by moving my face, so that he
could not kiss me and I was trying to extricate myself.
A: He placed himself on top of me, sir.
Q: So what you were trying to avoid is his face?
Q: What was his position?
A: Yes, your honor.
Q: You mean his right hand was free but it was not doing
anything?
A: It was moving your Honor.
Q: But it was not doing anything aside from merely moving?
A: His right hand was doing something.
Q: While the right hand of Adelmo Perez was inside your bra
and squeezing your nipple, what else did he do?
A: He took his hand off from the inside of my T-shirt and he
tried to raise my skirt, sir.
xxx
Q: And while the accused Adelmo Perez tried to raise your
skirt, what else did you do?

Q: Precisely you were asked. A: He inserted his hand inside my panties and held my vagina,
sir.
A: He inserted his right hand inside my T-shirt and inside my
bra. Q: What did he use in holding your vagina?

Q: And after, when the right hand of Adelmo Perez was inside A: Right hand, sir.
your bra, what did he do or what was his right hand doing
inside your bra? Q: And when he held your vagina, what did his right hand do
with your vagina?
A: He was mashing my nipple, sir.
A: He held it, sir.
Q: Which nipples?
xxx
A: Both nipples, Your Honor.
Q: What happened next?
Q: You mean your brassier was not detached but his hand was
inside, between your brassier and the nipple? A: After he held my vagina he told me Sige na, pagbigyan mo
na ako and that was the time I shouted.
A: Yes, Your Honor.
xxx
Q: What did you say when you shouted?
A: I said Inay (The witness shouted).[9]
Petitioners acts 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 complainants sexual organ. Rather,
these acts constitute acts of lasciviousness. The elements of
said crime are: (1) that the offender commits any act of
lasciviousness or lewdness; (2) that it is done (a) by using force
and intimidation or (b) when the offended party is deprived of
reason or otherwise unconscious, or (c) when the offended
party is under 12 years of age; and (3) that the offended party
is another person of either sex.[10]
All these elements are present and have been sufficiently
established in this case. Petitioner clearly committed lewd acts
against the complainant. Moreover, petitioner employed force
when he committed these acts on the complainant. In fact, as
found by the trial court, there were bruises on complainants
neck and navel which belie petitioners claim that the
complainant consented to these acts.
Although the information filed against petitioner was for
attempted rape, he can be convicted of acts of lasciviousness
because the crime of acts of lasciviousness is included in
rape.[11]
The penalty for acts of lasciviousness is prision
correccional.[12] There being no aggravating or mitigating
circumstance alleged and proven in this case, the penalty
prescribed by law shall be imposed in its medium
period,[13] i.e., from 2 years, 4 months and 1 day to 4 years and
2 months. Applying the Indeterminate Sentence Law, said
penalty shall constitute the maximum term, while the
minimum shall be within the range of the penalty next lower
to that prescribed by the Revised Penal Code for the
offense, i.e., arresto mayor or 1 month and 1 day to 6
months. Petitioner is hereby sentenced to suffer the penalty
of 6 months of arresto mayor, as minimum, to 4 years and 2
months of prision correccional, as maximum.
WHEREFORE, the Decision, dated December 16, 1999, of the
Court of Appeals in CA-G.R. CR No. 19971 is hereby
MODIFIED. Petitioner Adelmo Perez y Agustin is found guilty
beyond reasonable doubt of the crime of acts of
lasciviousness, as defined and penalized under Article 336 of
the Revised Penal Code, and sentenced to suffer the
indeterminate penalty of 6 months of arresto mayor, as
minimum, to 4 years and 2 months of prision correccional, as
maximum.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Ynares-
Santiago, and Austria-Martinez, JJ., concur.