G.R. No.

L-50905 September 23, 1982

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO JUMAWAN alias "KIKO", CESARIO JUMAWAN alias "SARIO", MANUEL
JUMAWAN
alias
"OWEL"
and
PRESENTACION
JUMAWAN-MAGNAYE
alias
"ESEN" accused-appellants.

imprisonment and to indemnify jointly and severally the parents of the victim in the
amount of Twenty-four Thousand (P24,000.00) Pesos.
The case is now before this Court on appeal.
The brief of the appellants gives the following:
STATEMENT OF FACTS

ABAD SANTOS, J.:

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

The Accused:
Francisco Jumawan is the father of his co-accused, namely, Cesario Jumawan,
Manuel Jumawan and Presentacion Jumawan.
Presentacion Jumawan was married to Rodolfo Magnaye.
Death of Rodolfo Magnaye:

The affidavit of Trinidad Alcantara clearly states that her son Rodolfo Magnaye was married to
Presentacion Jumawan albeit they had been living separately from each other. (During the trial
Presentacion admitted her marriage to Rodolfo. See t.s.n., pp. 811-812.) The Station
Commander can perhaps be excused for not accusing Presentacion of parricide but when the
case was elevated to the Court of First Instance of Quezon where it was docketed as Criminal
Case No. 1408, the Provincial Fiscal perpetuated the mistake by filing an information for murder
against all the accused. The information reads:
The undersigned Provincial Fiscal accuses CESARIO JUMAWAN alias 'Sario,'
MANUEL JUMAWAN alias 'Owel', FRANCISCO JUMAWAN alias 'Kiko' and
PRESENTACION JUMAWAN alias 'ESEN', of the crime of murder, defined and
punished under Article 248 of the Revised Penal Code, committed as follows:
That on or about the 19th day of June 1976, in the Municipality of Sariaya, Province of
Quezon, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with a bolo (gulukan), conspiring and confederating together
and mutually helping one another, with intent to kill and with evident premeditation and
treachery, taking advantage of their superior strength, did then and there wilfully,
unlawfully and feloniously attack, assault and stab with the said bolo one Rodolfo
Magnaye alias 'Digo', thereby inflicting upon the latter a stab wound on the chest,
which directly caused his death.
After a long trial and 1,211 pages of stenographic transcript, the trial court rendered the following
judgment:
Wherefore, the Court finds Cesario Jumawan, Presentacion Jumawan-Magnaye,
Manuel Jumawan, and Francisco Jumawan guilty as principals beyond reasonable
doubt of the crime of Murder as defined and punished under Art. 248 of the Revised
Penal Code and hereby sentences each of them to suffer a penalty of life

As described by the lower court, '... when Rodolfo Magnaye did not return home in
(that) evening of 19 June 1976, his mother (Trinidad Alcantara) went to the public
market to look for him on the following day. She met four (4) children who told her that
they saw a man near the water. They accompanied her to the place and she
recognized the dead man as her son Rodolfo Magnaye. She then proceeded to the
police headquarters to report the matter. ...' (page 5, Judgment).
For the death of Rodolfo Magnaye, the accused stand charged of the crime of
MURDER.
The People's brief, on the other hand, merely reproduces the trial court's findings of facts as
follows:
It appears from the evidence adduced during the trial that Rodolfo Magnaye was
married on 26 January 1974 to Presentacion Jumawan, one of the accused in the
above entitled criminal case. Presentacion Jumawan-Magnaye left the conjugal home
and stayed with her sister Sebastiana Jumawan. Rodolfo Magnaye, on the other
hand, went and stayed with his mother Trinidad Alcantara.
The mother of Mrs. Presentacion Jumawan-Magnaye made several attempts to
secure the signature of Rodolfo Magnaye on a document agreeing to a separation
from his wife so that both he and his wife will be free to marry again but Rodolfo
Magnaye persisted in refusing to sign said document.
On one occasion the mother of Mrs. Presentacion Jumawan-Magnaye even brought
Rodolfo Magnaye and his mother to the Provincial Constabulary Command to ask for

the assistance of Sgt. Mortilla to assist her daughter in securing a separation from
Rodolfo Magnaye but they were told by Sgt. Mortilla that it cannot be legally done.

accompanied her to the place and she recognized the dead man as her son Rodolfo
Magnaye. She then proceeded to the police headquarters to report the matter.

Between 5:00 and 6:00 o'clock in the afternoon of 19 June 1976 while Trinidad
Alcantara was in her house, her son Rodolfo Magnaye was dressing up and told her
that he was going to the public market because his wife asked him to fetch her. He
asked his mother to prepare food because they are going to talk about their lives. He
left home at about 6:00 o'clock in the evening.

The two Patrolmen Baera and Albufera went to the place and they saw the dead man
without a shirt and wearing black pants with white shoes. They noticed a stab wound
on the lower portion of the right breast. The dead man was lying face up.

At about 9:30 o'clock in the evening of 19 June 1976 one Mr. Vicente Recepeda came
from the Aglipayan fiesta in Sariaya, Quezon and after eating at the Sariling Atin
eating place he went to the former BLTB station at Sariaya, Quezon. While he was
infront of the public market on the way to the former BLTB station he heard the noise
of pigs being butchered and being in the business of buying pigs and chicken he went
to the direction of [the] slaughter house to inquire about the prices of pigs and chicken.
Before reaching the slaughter house he heard the noise (sic) of a person being
attacked by three (3) persons and a woman inside a store which was lighted. He saw
accused Francisco Jumawan holding the hands of Rodolfo Magnaye while accused
Manuel Jumawan was behind Rodolfo Magnaye with his arm around the neck of
Rodolfo Magnaye while Cesario Jumawan was infront of Rodolfo Magnaye with his left
hand holding the collar of Rodolfo Magnaye and in his right hand he was holding a
small pointed bolo with which he stabbed Rodolfo Magnaye below the right nipple.
At about 11:00 o'clock in that evening a certain Mr. Policarpio Trinidad who also came
from the Aglipayan fiesta in Sariaya, Quezon was waiting infront of a gasoline station
across the old station of the BLTB waiting for a ride home when he saw Cesario
Jumawan and Manuel Jumawan with Rodolfo Magnaye between them while they
were crossing the national highway towards the south to a road opposite the Emil
Welding Shop. They went on walking after crossing the highway. At that time the head
of Rodolfo Magnaye was bowed infront while his two (2) arms were on the shoulder of
Cesario and Manuel Jumawan. Rodolfo Magnaye was not walking.
At about 11:45 o'clock in the evening of 19 June 1976 Presentacion JumawanMagnaye reported to Patrolman Marcial Baera and Patrolman Albufera that the store
of Bastiana (Sebastiana) Jumawan where she works is threatened to be robbed by
Rodolfo Magnaye. When asked by Patrolman Baera Presentacion Jumawan-Magnaye
denied being related to Rodolfo Magnaye. He went to investigate the reported attempt
to rob the store of Sebastiana Jumawan and he saw one of the panels used to close
the store was destroyed but nothing appears to have been taken from the store.
Presentacion Jumawan-Magnaye and her companions Tita Daez and Anabelle
Jumawan told Patrolman Baera that they will file charges against Rodolfo Magnaye.
Patrolman Baera entered the report of Presentacion Jumawan-Magnaye in the police
record book.
When Rodolfo Magnaye did not return home in that evening of 19 June 1976, his
mother (Trinidad Alcantara) went to the public market to look for him on the following
day. She met four (4) children who told her that they saw a man near the water. They

In the afternoon of the same day Patrolman Loreto Galeon went to the store of
Sebastiana Jumawan located at the public market of Sariaya to follow up the
investigation of the reported attempted robbery case against Magnaye. He asked the
storekeeper for permission to look at the wood panels which are used to close the
store. He found traces of blood in one of the wooden panels. He reported what he saw
to Sgt. Labitigan when he returned to the police headquarters.
The following day he was ordered by the chief of police to look again at the wooden
panel with traces of blood but he saw that the wooden panels were already planed
('kinatam') and the traces of blood could no longer be seen.
On 23 June 1976, Patrolman Rodrigo Cedonio was ordered to look for Tita Daez in
Barrio Mamala Sariaya, Quezon because Tita Daez was allegedly in the store at the
time of the alleged attempted robbery and at the time Rodolfo Magnaye was allegedly
killed.
Patrolman Cedonio was informed by the mother of Tita Daez that she had not gone
to her home at barrio Mamala. She accompanied Patrolman Cedonio in trying to
locate Tita Danez. They first went to the store of Sebastiana Jumawan which turned
out to be closed on that day. They then went at Muntingbayan, Tayabas, Quezon
where they were able to find Tita Danez together with Francisco Jumawan, Bienvenido
Jumawan and Rosita Abratiga.
Mr. Cesario Jumawan, one of the accused in the above entitled criminal case and a
brother-in-law of the victim, set up the defense of alibi when he testified that between
3:00 and 4:00 o'clock in the afternoon of 19 June 1976 he was at Barrio Sampaloc,
Sariaya, Quezon which is more or less three (3) kilometers away from the poblacion of
Sariaya, Quezon. He went home to Barrio Pili of the same town early in the afternoon
of the following day. He did not go anywhere else since 3:00 to 4:00 o'clock in the
afternoon of 19 June 1976 up to and until he returned to Barrio Pili.
Mr. Manuel Jumawan, another accused in the above entitled criminal case who is also
a brother-in-law of the victim, likewise set up the defense of alibi when he testified that
on 19 June 1976 he was in his house at Barrio Pili, Sariaya, Quezon which is about
five (5) kilometers from the poblacion of Sariaya, Quezon. He went to bed at about
7:00 o'clock in the evening of 19 June 1976. He woke up at about 6:30 o'clock in the
morning.
He further claims that he suffers from an abnormality of the left arm which he cannot
raise in a normal way and that he was suffering from said disability since childhood
when he fell from a cow continuously up to the present.

Said accused presented a medical certificate, Exhibit 7, issued by Dr. Concepcion

dela Merced, a radiologist of the National Orthopedic Hospital certifying to the fact that
Manuel Jumawan is negative for fracture dislocation and that he suffers from a
deformity of the proximal and left humerous probably from a previous fracture. There
is no showing that Manuel Jumawan is incapable of raising his left arm around the
neck of Rodolfo Magnaye whose actual height was not established by the evidence
nor was Dr. Concepcion dela Merced presented to testify on her findings.
Presentacion Jumawan-Magnaye claims that in the evening of 19 June 1976 she was
in the store of Sebastiana Jumawan together with Anabelle Jumawan and Tita Daez
when she heard a person who wanted to enter the store. She shouted 'thieves'
('magnanakaw'). In response to her shouts several people arrived and chased the
person who wanted to enter the store. She then went to the house of Sebastiana
Jumawan where hats are being made and where her father Francisco Jumawan was
staying that night.
While she was in the house where her father was staying, their adjoining neighbor, a
certain Mateo Diamante informed her that the person being chased by several men
was Rodolfo Magnaye. She, however, did not talk with any of the person who chased
her husband nor does she know any of them. She then went with her father, Francisco
Jumawan, to report the matter to the police whom they met at the Filipina Restaurant.
While Presentacion Jumawan-Magnaye gave the name of Rodolfo Magnaye as the
suspect in the attempted robbery, she did not reveal to the investigating policemen
that he was her husband even if she was asked why they knew his name, neither did
she inform the police that her husband was chased by several persons nor did she
give the direction where her husband supposedly ran.

SUBJECTIVELY AND UNFAIRLY ON SUPPOSED WEAKNESS OF THE EVIDENCE

FOR THE DEFENSE.
THE CONSTITUTIONAL GUARANTEE THAT THE ACCUSED ARE PRESUMED
INNOCENT OF THE CRIME CHARGED AND ARE ENTITLED TO A RIGHT TO A DAY
IN COURT CANNOT BE OVERTURNED BY THE DOCTRINE THAT APPELLATE
COURTS ARE NOT PRONE TO DISTURB THE FINDINGS OF THE TRIAL COURT
WITH RESPECT TO THE CREDIBILITY OF WITNESSES.
THE LOWER COURT ERRED IN NOT FINDING AND TAKING INTO SERIOUS
ACCOUNT THE FATAL WEAKNESSES OF THE EVIDENCE FOR THE
PROSECUTION IN TERMS OF IMPROBABILITIES, GROSS INCONSISTENCIES
AND IRRECONCILABLE CONTRADICTIONS.
THE LOWER COURT ERRED IN GIVING CREDIT AND CREDENCE TO THE
TESTIMONIES OF THE STAR PROSECUTION WITNESS CONSIDERING THE
GLARING WEAKNESS THEREOF, EVEN AS THE LOWER COURT CONVENIENTLY
DENIED THE DEFENSE REASONABLE OPPORTUNITY OF THE PROSECUTION
WITNESSES.
THE LOWER COURT ERRED IN ITS ERRONEOUS APPROACH TO AND
APPLICATION OF THE PRINCIPLES CONCERNING THE DEFENSE OF ALIBI IN
THE CASE AT BAR. SPECIALLY IN THE LIGHT OF THE FACT THAT THERE WAS
NO POSITIVE IdENTIFICATION OF ACCUSED AND ALSO THAT THE
PROSECUTION FAILED TO EFFECTIVELY REBUT THE DEFENSES OF ALIBI
WHICH WOULD HAVE BEEN EASY TO DO IF SUCH DEFENSES WERE REALLY
CONCOCTIONS.

The two policemen, Patrolmen Baera and Albufera, actually went to the store of
Sebastiana Jumawan and after looking at the store, these two patrolmen told
Presentacion Jumawan-Magnaye that because nothing happened they will continue
the investigation on the next day.

The foregoing assignment of errors can be reduced to the simple proposition whether the
evidence against the accused, independent of their alibis, has overcome the presumption of
innocence in their favor and created a moral certainty as to their guilt.

None of those who allegedly chased her husband that evening was even presented as
a witness.

Except for Vicente Recepeda and Policarpio Trinidad, the appellants do not question the
credibility of the witnesses for the prosecution. Hence, the testimony of these witnesses
deserves scrutiny.

Mr. Francisco Jumawan, who is the father of his three (3) other co-accused, likewise
set up the defense of alibi when he testified that in the evening of 19 June 1976 at
about 8:00 o'clock more or less he was alone in the house of Sebastiana Jumawan
situated near the former garage of the BLTB in Sariaya, Quezon and that he was
awakened only when his daughter Presentacion woke him up to ten him that someone
was trying to enter the store of Sebastiana Jumawan.
In a brief which is more noteworthy for legal rhetoric rather than a critical analysis of the
evidence, the appellants claim that the trial court committed the following errors:
THE LOWER COURT ERRED IN NOT FOCUSING OBJECTIVELY AND
IMPARTIALLY THE EVIDENCE FOR THE PROSECUTION EVEN AS IT FOCUSED

Vicente Recepeda was 67 years old, jobless and a resident of Lucena City when he first testified
on April 29, 1977. He testified that on June 19, 1976, he went to Sariaya, Quezon, to attend the
Aglipayan fiesta; he arrived there at about 5:00 o'clock and thereafter did the following: listened
to the music and singing, went to the Aglipayan church and the "perya," ate at a restaurant, and
walked to the public market where there was a former BLTB station. While he was waiting for a
trip to Lucena, he heard the shriek of pigs being killed so he walked toward the butchers for the
purpose of asking the price of pigs since he was then engaged in the business of buying and
selling pigs. In fact, at one time Rodolfo Magnaye, the deceased, tied the feet of a pig which he
had bought. He was not able to talk to the butchers because an unusual event intervened which
in his own words was:

Q. At about 9:30 o'clock in the evening of June 19, 1976, do you remember where
were you?

A. Yes, sir.

A. Yes sir.

Q. Will you please look around the courtroom and point to Presentacion Jumawan if
she is here.

Q. Where were you on that particular date and hour?

A. She is here sir.

A. I was in the public market of Sariaya, Quezon, sir.

Q. Please point her out to this Honorable Court.

Q. While you were in the market of Sariaya, Quezon, on that particular date and hour,
do you remember if there was any unusual incident that you witnessed?

A. That one sir.

ATTY. ALCALA:

A. There was, sir.

Q. What was that unusual incident that happened on that particular place and hour?

May we respectfully ask if your honor please that the person pointed to by the witness
Identify herself.

A. I saw a person being attacked by three persons, sir.

COURT:

Q. What else did you see there on that particular occasion, aside from a person being
attacked by three persons?

Ask the person to Identify herself.

INTERPRETER:

A. There was a woman who ordered the three persons to stab and kill the person
being attacked by these three persons, sir.
Q. Where in particular in the public market of Sariaya, Quezon did you see this
incident happen?
A. Inside the store within the public market of Sariaya, Quezon, sir.
Q. Did you recognize, or did you come to know these three persons whom you said
were inside the store within the public market of Sariaya, Quezon at about 9:30 o'clock
in the evening of June 19, 1976?
A. I recognize their faces, sir.
Q. Did you come to know their names later on?
A. Yes sir.
Q. What is the name of the woman whom you said was there on that particular
occasion?
A. Presentacion Jumawan, sir.
Q. If you will see that Presentacion Jumawan again, will you be able to Identify her?

What is your name?

A. Presentacion Jumawan.
INTERPRETER:
The person pointed to by the witness your honor, Identified herself as Presentacion
Jumawan.
ATTY. ALCALA:
And what is the name of the person whom you said was being attacked by the three
men on that particular occasion inside the store?
A. Rodolfo Magnaye, sir.
Q. And what are the names of the three persons attacking Rodolfo Magnaye, will you
please state it before this Honorable Court?
A. Yes, sir, one is Francisco Jumawan, Manuel Jumawan and the other one is Cesario
Jumawan.

Q. That Francisco Jumawan whom you said was one of the persons attacking Rodolfo
Magnaye, on that particular occasion, will you be able to recognize him if you will see
him again?

ATTY. ALCALA:
May we ask Your Honor that the person pointed to by the witness be made to Identify
himself.

A. Yes, sir.
COURT:
Q. If this Francisco Jumawan is inside the courtroom, will you please point him out
before this Honorable Court?

Ask the person pointed to by the witness to Identify himself.

A. Yes, sir.

INTERPRETER:

Q. Please do so.

What is your name?

A. That one sir.

A. Manuel Jumawan.

ATTY. ALCALA:

INTERPRETER:

Your honor please may we ask that the person pointed to by the witness Identify
himself.

The person pointed to by the witness Your Honor Identified himself as Manuel
Jumawan.

COURT:

Q. And that person whom you mentioned is named Cesario Jumawan, will you be able
to Identify him if you will him again?

Ask the Identity of the person pointed to by the witness.

A. Yes, sir.
INTERPRETER:
What is your name?

Q. Please look around the courtroom and point to this Honorable Court the person
whom you said is Cesario Jumawan.

A. Francisco Jumawan.

That one sir.

INTERPRETER:

ATTY. ALCALA:

The person pointed to by the witness your honor Identify himself as Francisco
Jumawan.

May we request your honor that the person pointed to by the witness Identify himself.
COURT:

Q. And that person whom you said the name as Manuel Jumawan will you be able to
recognize him if you will see him again?

Ask the person pointed to by the witness to Identify himself.

A. Yes, sir.

INTERPRETER:

Q. Please look around the courtroom and point out to this Honorable Court if Manuel
Jumawan is here inside the courtroom.

What is your name?

A. Yes, sir, that one.

A. Cesario Jumawan.

INTERPRETER:

A. He was hit by the stab, sir.

The person pointed to by the witness Identify himself as Cesario Jumawan Your
Honor.

Q. Where was Rodolfo Magnaye hit by the stab of Cesario Jumawan on that
occasion?

Q. On that occasion what was Francisco Jumawan doing at that time you saw him?

A. Under the right nipple, sir. Below the right nipple.

A. He was standing besides Rodolfo Magnaye and holding his hands.

Q. What did Rodolfo Magnaye do on that particular occasion after he was hit?

Q. Who was holding his hands?

A. He said, why did you stab me.

A. Francisco Jumawan was holding the hands of Rodolfo Magnaye, sir.

Q. What did you do after that?

Q. How about Manuel Jumawan, what was he doing?

A. I left, sir.

A. Manuel Jumawan was at the back of Rodolfo Magnaye with his arm around the
neck of Rodolfo Magnaye, sir.

Q. While you were walking away did you hear anything?

.A. Yes, sir.

Q. How about Cesario Jumawan what was he doing on that particular occasion?
Q. What did you hear?
A. He was in front of Rodolfo Magnaye, his left hand is holding the collar of Rodolfo
Magnaye and his right hand holding a bolo, sir.
Q. How about Presentacion Jumawan, what was she doing on that particular
occasion?
A. She was standing inside the store ordering the three persons to stab and kill
Rodolfo Magnaye, sir.
Q. What happened when Presentacion Jumawan give that order?
A. Rodolfo Magnaye was stabbed, sir.
Q. Who stabbed Rodolfo Magnaye on that occasion?
A. Cesario Jumawan, sir.
Q. At that time that Cesario Jumawan stabbed Rodolfo Magnaye on that particular
occasion, what were Francisco Jumawan and Manuel Jumawan doing.?

A. A voice of a woman shouting, thief, thief.

Q. What did you do when you heard the shout of a woman?
A. I hurriedly walked away, sir.
Q. Did you finally came to know what happened to Rodolfo Magnaye as a result of
that incident?
A. Yes, sir.
Q. What happened to him?
A. He died, sir. (t.s.n., pp. 494-509.)

A. Francisco Jumawan was holding the hands of Rodolfo Magnaye with his arms
around the neck of Rodolfo Magnaye, sir.

Policarpio Trinidad was 28 years old and a laborer at the time he first testified on June 27, 1977.
He testified that he knew Manuel Jumawan, Cesario Jumawan and Rodolfo Magnaye; that on
June 19, 1976, at about 11:00 p.m., he was in Sariaya, Quezon, near the old station of the
BLTB; and on that occasion he saw the aforesaid persons thus:

Q. What happened to Rodolfo Magnaye when he was stabbed by Cesario Jumawan

on that occasion?

Q. Will you please describe before this Honorable Court their position when you saw
them?

A. Their hands were on the shoulders of each other.

Q. And who was in the middle?
A. Rodolfo Magnaye, sir.
Q. Will you please tell this Honorable Court the appearance of Rodolfo Magnaye when
you saw him being in the middle of Cesario Jumawan and Manuel Jumawan on that
occasion?
A. His head falls and his two hands were on the shoulder of Cesario Jumawan and
Manuel Jumawan.
Q. Did you see where these persons were going on that particular occasion when you
said you saw them?
ATTY. CUARTOY
Objection Your Honor, that has already been answered, that they are going out of the
old BLTB station.

The testimony of Vicente Recepeda linked to that of Trinidad Alcantara and Policarpio Trinidad
shows that the four appellants conspired and cooperated in the assassination of Rodolfo
Magnaye.
The victim and his wife had a rendezvous in the evening of June 19, 1976, in order to discuss
the fate of their marriage. While it is not known if they actually conversed, the purpose of the
rendezvous was in fact accomplished; the marriage was terminated by the murder of the
husband.
The report to the police by Presentacion that Rodolfo Magnaye had attempted to rob the store of
Sebastiana Jumawan was a crude diversionary tactic to enable Cesario and Manuel to transfer
the cadaver to another place.
The alibis of Francisco, Cesario and Manuela are for naught.
Francisco claimed that in the evening of June 19, 1976, he was in the house of Sebastiana
Jumawan, not in her store. Cesario said that while his residence was Barrio Pili, Sariaya, on the
night of June 19, 1976, he and his wife were in Barrio Sampaloc, Sariaya, visiting his brother
Benigno Jumawan and they did not return to Pili until the next day. Manuel said that on the night
of June 19, 1976, he was in his house at Barrio Pili.

COURT:
Witness may answer.
A. They cross the highway, sir.
Q. In what particular place did they go when they cross the highway?

These alibi cannot prevail for the following reasons: (a) Francisco, Cesario and Manuel were
positively Identified to be at the scene of the crime by Vicente Recepeda and Cesario and
Manuel were similarly Identified by Policarpio Trinidad; and (b) the places where they claimed to
be were not far from the scene of the crimeso that it was not impossible fro them to be there.
Sebastiana Jumawan's house where Francisco was supposed to be is within walking distance
from the former's store. Barrio Sampaloc, where Cesario claimed he was, is only about three
kilometers from the poblacion of Sariaya. Barrio Pili, where Manuel said he slept that night, is
about five kilometers from the same poblacion.

A.. They went to the road opposite the Emil Welding Shop, sir.
Q. Did you see on that particular occasion whether Rodolfo Magnaye was walking?

Presentacion should have been accused of parricide but as it is, since her relationship to the
deceased is not alleged in the information, she, like the others, can be convicted of murder only
qualified by abuse of superior strength.

A. He was not walking and he cannot step his feet, sir.

Q. When they went to that place, near the Emil Welding Shop, did they go any further?
A. They proceeded walking, sir.

Although not alleged in the information, relationship as an aggravating circumstance should be

assigned against the appellants. True, relationship is inherent in parricide, but Presentacion
stands convicted of murder. And as to the others, the relationships of father-in-law and brotherin-law aggravate the crime. (Aquino, Penal Code, Vol. I. p. 406 [1976].)

Q. Where did you go upon seeing them?

The penalty for murder with an aggravating circumstances is death. However, for lack of
necessary votes, the penalty is reduced to reclusion perpetua.

A. I went directly to my house, sir.

WHEREFORE, the jugment of the court a quo is hereby affirmed in toto. No costs.

(t.s.n., pp. 628-631.)

SO ORDERED.

G.R. No. L-47941 April 30, 1985

the land which he was then farming in said municipality of Siruma, Camarines Sur, a town very
far from the place of his in-laws where his wife desired their family to transfer to.

THE
PEOPLE
OF
THE
vs.
JAIME TOMOTORGO y ALARCON, defendant-appellant.

PHILIPPINES, plaintiff-appellee,

ALAMPAY, J.:
Jaime Tomotorgo y Alarcon, the accused-appellant in this case, appeals from the decision
rendered on December 22, 1977, by the Court of First Instance of Camarines Sur, Branch IV, in
Criminal Case No. 403 of said court finding him guilty of the crime of parricide for having killed
his wife Magdalena de los Santos. The dispositive portion of said judgment reads, as follows:
WHEREFORE, in view of the foregoing considerations, the accused Jaime Tomotorgo
y Alarcon is hereby condemned to suffer the penalty of reclusion perpetua and to
indemnify the heirs of the deceased Magdalena delos Santos in the sum of
P12,000.00 without subsidiary imprisonment, plus costs. And considering the
circumstances under which the offense was committed, the court hereby recommends
executive clemency for him, after serving the minimum of the medium penalty of
prision mayor.
Let copy of this decision be furnished, his Excellency, the President of the Philippines,
and the Chairman of the Board of Pardons and Parole.
SO ORDERED.
Given at Naga City, this 22nd day of December, 1977.
SGD.
Judge (Rollo, pg. 10)

ALFREDO

S.

REBUENA

The facts of this case as recited in the decision of the trial court and in the appellee's brief stand
uncontroverted and undisputed. From the evidence submitted it is disclosed that the victim,
Magdalena de los Santos, was the wife of the herein accused. Several months prior to the
occurrence of the fatal incident on June 23, 1977, Magdalena de los Santos had been
persistently asking her husband to sell the conjugal home which was then located at Sitio
Dinalungan, Barangay Cabugao, Municipality of Siruma, Camarines Sur. She wanted their family
to transfer to the house of her husband's in-laws which is in the town of Tinambac, Camarines
Sur. (TSN, pp. 6-10, December 13, 1977). Accused Tomotorgo would not accede to his wife's
request. He did not like to abandon the house wherein he and his wife were then living.
Furthermore, he had no inclination to leave because he has many plants and improvements on

On June 23, 1977, at about seven o'clock in the morning, the accused left his home to work on
his farm Upon his return at about nine o'clock that same morning. He found his wife and his
three-month old baby already gone. He proceeded to look for both of them and sometime later
on, on a trail about two hundred (200) meters from their home, he finally saw his wife carrying
his infant son and bringing a bundle of clothes. He asked and pleaded with his wife that she
should return home with their child but she adamantly refused to do so. When appellant sought
to take the child from his wife, the latter threw the baby on the grassy portion of the trail hereby
causing the latter to cry. This conduct of his wife aroused the ire of the herein accused. Incensed
with wrath and his anger beyond control, appellant picked lip a piece of wood nearby and started
hitting his wife with it until she fell to the ground complaining of severe pains on her chest.
Realizing what he had done, the accused picked his wife in his arms and brought her to their
home. He then returned to the place where the child was thrown and he likewise took this infant
home. Soon thereafter, Magdalena de los Santos died despite the efforts of her husband to
alleviate her pains.
After the accused changed the dress of his wife, he reported the tragic incident to the Barangay
Captain of their place who brought him to Policeman Arellosa to whom the accused surrendered.
He also brought with him the piece of wood he used in beating his wife.
Charged with the crime of parricide, the accused at his arraignment on November 24, 1977, with
assistance from his counsel de-oficio, pleaded not guilty to the said offense. However, when his
case was called for trial on December 13, 1977, his counsel manifested to the court that after his
conference with the accused, the latter expressed a desire to change his previous plea of not
guilty to that of guilty. Accordingly, and upon motion by the counsel of the accused and without
objection on the part of the prosecution, the trial court allowed the accused to withdraw his
original plea. Upon being re-arraigned, the accused entered a plea of guilty. He confirmed the
manifestations made by his counsel to the court regarding his desire to change his initial plea.
He expressed his realization of the gravity of the offense charged against him and the
consequences of his plea. His counsel was then permitted by the court to establish the
mitigating circumstances which were then invoked in favor of the accused.
After the accused had testified and upon his plea given in open court, the court below found him
guilty of the crime of parricide, but with three mitigating circumstances in his favor, namely:
voluntary surrender, plea of guilty, and that he acted upon an impulse so powerful as naturally to
have produced passion and obfuscation.
With the imposition by the court below of the penalty of reclusion perpetua on the herein
accused and the subsequent denial of his motion for reconsideration of the judgment rendered
against him, the accused through his counsel filed a notice of appeal to this Court.
In his appeal, accused argues and contends that the lower court erred:
1. In disregarding its own findings of fact which showed manifest lack of intent to kill;

2. In disregarding the provisions of Article 49 of the Revised Penal Code which

prescribes the proper applicable penalty where the crime committed is different from
that intended;
3. In not following the mandatory sequence of procedures for determining the correct
applicable penalty;
4. In denying the appellant the benefits of the Indeterminate Sentence Law.
(Appellant's Brief, pg. 1, pars. 1-4)
We find no merit in the appeal of the accused herein which assails only the correctness of the
penalty imposed by the trial court on him.
Appellant submits that the penalty for the felony committed by him which is parricide being
higher than that for the offense which he intended to commit, and which he avers to be that of
physical injuries only, the provisions of Article 49 of the Revised Penal Code which relate to the
application of penalties should have been observed and followed by the trial court. The said
provision of law which accused invokes provides that:
ART. 49. Penalty to be imposed upon the principals when the crime committed is
different from that intended in cases in which the felony committed is different from
that which the offender intended to commit, the following rules shag be observed;
1. If the penalty prescribed for the felony committed be higher than that corresponding
to the offense which the accused intended to commit, the penalty corresponding to the
latter shall be imposed in its maximum period.

The trial court itself found "that the accused is entitled to three (3) mitigating
circumstances with no aggravating circumstances, namely: voluntary surrender, plea
of guilty, and obfuscation. We submit that the plea of guilty, which, as we had shown
earlier, was improvidently made, should no longer be considered. This leaves only two
mitigating with no aggravating. Sufficient compliance with the law. Hence, an
automatic lowering of the penalty by one degree, or to reclusion temporal medium
This being a case where a period constitutes the entire range of the penalty
prescribed, and therefore, also a degree. (Appellant's Brief, pp. 8-9)
Appellant maintains the belief that he should be punished only for the offense he intended to
commit which he avers to be serious physical injuries, qualified by the fact that the offended
party is his spouse. Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the Revised
Penal Code and as his wife is among the persons mentioned in Art. 246 of the same code,
appellant contends that the penalty imposable should then be reclusion temporal in its medium
and maximum periods. On this mistaken premise, appellant therefore claims that the penalty
prescribed by law for his offense is divisible and he should thus be entitled to the benefits of the
Indeterminate Sentence Law.
These contentions of the accused are manifestly untenable and incorrect. Article 4 of the
Revised Penal Code expressly states that criminal liability shall be incurred by any person
committing a felony (delito) although the wrongful act be different from that which he intended
and that the accused is liable for all the consequences of his felonious acts.
The reference made by the accused to Article 263 of the Revised Penal Code which prescribes
graduated penalties for the corresponding physical injuries committed is entirely misplaced and
irrelevant considering that in this case the victim died very soon after she was assaulted. It will
be, therefore, illogical to consider appellant's acts as falling within the scope of Article 263 of the
Revised Penal Code. The crime committed is parricide no less.

xxx xxx xxx

Continuing, appellant argues in his appeal brief submitted to this Court, that:
xxx xxx xxx
The felony actually committed, parricide. has a higher penalty (reclusion perpetua to
death) than the felony intended, qualified physical injuries (reclusion temporal medium
and maximum). Hence, since the penalty corresponding to the felony intended shall
be imposed in its maximum period, the prescribed penalty is therefore reclusion
temporal maximum. This is a divisible penalty.
Under Article 64, sub-par. 5, of the Penal Code,
When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the number
and nature of such circumstances.

We are in complete accord with and we sustain the ruling made by the courts below that the
accused is not entitled to the benefits of the Indeterminate Sentence Law. The court sustains the
submissions of the appellee that
... Article 49 of the Revised Penal Code does not apply to cases where more serious
consequences not intended by the offender result from his felonious act because,
under Article 4, par. I of the same Code, he is liable for all the direct and natural
consequences of his unlawful act. His lack of intention to commit so grave a wrong is,
at best mitigating (Article 13, par. 3).
Article 49 applies only to cases where the crime committed is different from that
intended and where the felony committed befalls a different person (People vs.
Albuquerque, 59 Phil. 150).
Article 246 of the Revised Penal Code punished parricade with the penalty of
reclusion perpetua to death, which are two indivisible penalties. As the commission of
the act was attended by mitigitating circumstances with no aggravating circumstances,
the lesser penalty, which is reclusion perpetua, should be imposed (People vs.
Laureano, et al., 71 Phil. 530; People vs. Francisco, 78 Phil. 697; People vs.
Belarmino, 91 Phil. 118) Appellee's Brief, pp. 6-7). (Emphasis supplied)

We hold that the fact that the appellant intended to maltreat the victim only or inflict physical
imjuries does not exempt him from liability for the resulting and more serious crime committed.
In the case of People vs. Climaco Demiar, 108 Phil. 651, where the accused therein had choked
his mother in a fit of anger because the latter did not prepare any food for him, it was ruled that
hte crime committed by Demiar is parricide (Article 246, Revised Penal Code), the deceased
victim of his criminal act being his legitimate mother. Said crime was declared as punishable with
reclusion perpetua to death. As the mitigating circumstance of alck of intent to commit so grave
a wrong. (Article 13 (3 Id.) The penalty imposed on the herein accused is therefore correct in the
light of the relevant provisions of law and jurisprudence.
The trial court in its consideration of this case had added a recommendation that "executive
clemency be extended to the accused-appellant after his service of the minimum of the medium
penalty of prison mayor." The Solicitor General likewise concludes and prays in the People's
Brief that in view of the circumstances which attended the commission of the offense, a
recommendation for the commutation of the penalty would be appropriate. (Appellee's Brief, pg.
7). This Court is constrained to take note that the accused-appellant is said to have been in
detention since June 23, 1977 or for more than seven years already. This Court can do no less
than express its hope that hte accused-appellant can be now extended an absolute or
conditional pardon by the President of the Republic of the Philippines or that there be a
commutation of his sentence so that he may qualify and be eligible for parole.
WHEREFORE, the appealed judgment is hereby affirmed without any pronouncement as to
costs.
Considering the circumstances which attended the commission of the offense, the manifest
repentant attitude of the accused and his remorse for his act which even the trial court made
particular mention of in its decision and the recommendation made by the Office of the Solicitor
General as well as number of years that the accused-appellant had been imprisoned, this Court
can do no less than recommend that executive clemency be extended to the accused-appellant,
Jaime Tomotorgo y Alarcon, or that his sentence be commuted so that he can now qualify and
be considered eligible for parole. This recommendation of the Court should be promptly brought
to the attention of the President of the Republic of the Philippines by the proper authorities in
whose custody the herein accused has been placed.
Aside from this, let copy of this decision be furnished the Office of the President of the Republic
of the Philippines and the Chairman of the Board of Pardons and Parole.
SO ORDERED.

G.R. No. 74433 September 14, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRANCISCO ABARCA, accused-appellant.
This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the
accused-appellant Francisco Abarca to death for the complex crime of murder with double
frustrated murder.
The case was elevated to this Court in view of the death sentence imposed. With the approval of
the new Constitution, abolishing the penalty of death and commuting all existing death
sentences to life imprisonment, we required the accused-appellant to inform us whether or not
he wished to pursue the case as an appealed case. In compliance therewith, he filed a
statement informing us that he wished to continue with the case by way of an appeal.
The information (amended) in this case reads as follows:
The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the
crime of Murder with Double Frustrated Murder, committed as follows:
That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent to kill and with evident premeditation, and with treachery, armed with
an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and
feloniously attack and shot several times KHINGSLEY PAUL KOH on the different
parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot
wounds which caused his instantaneous death and as a consequence of which also
caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the
different parts of their bodies thereby inflicting gunshot wounds which otherwise would
have caused the death of said Lina Amparado and Arnold Amparado, thus performing
all the acts of execution which should have produced the crimes of murders as a
consequence, but nevertheless did not produce it by reason of causes independent of
his will, that is by the timely and able medical assistance rendered to Lina Amparado
and Arnold Amparado which prevented their death. 1
On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states
accurately the facts as follows:
Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit
relationship. The illicit relationship apparently began while the accused was in Manila
reviewing for the 1983 Bar examinations. His wife was left behind in their residence in
Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984).
On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the
morning of that date he went to the bus station to go to Dolores, Eastern Samar, to
fetch his daughter. However, he was not able to catch the first trip (in the morning). He

went back to the station in the afternoon to take the 2:00 o'clock trip but the bus had
engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then
proceeded to the residence of his father after which he went home. He arrived at his
residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the
afternoon (pp. 8-9, tsn, Id.).
Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act
of sexual intercourse. When the wife and Koh noticed the accused, the wife pushed
her paramour who got his revolver. The accused who was then peeping above the
built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.).
The accused went to look for a firearm at Tacloban City. He went to the house of a PC
soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's firearm, an
M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find
his wife and Koh there. He proceeded to the "mahjong session" as it was the
"hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at
Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and
Lina Amparado who were occupying a room adjacent to the room where Koh was
playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn, Sept.
24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock
and hemorrhage as a result of multiple gunshot wounds on the head, trunk and
abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was
hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17,
1984; see also exh. C). His wife, Lina Amparado, was also treated in the hospital as
she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a
salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of
his wounds. He spent P15,000.00 for medical expenses while his wife spent Pl,000.00
for the same purpose (pp. 24-25, tsn, Id. ). 2
On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion
whereof reads as follows:
WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt
of the complex crime of murder with double frustrated murder as charged in the
amended information, and pursuant to Art. 63 of the Revised Penal Code which does
not consider the effect of mitigating or aggravating circumstances when the law
prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to
death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000,
complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand
Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to
pay the costs.
It appears from the evidence that the deceased Khingsley Paul Koh and defendant's
wife had illicit relationship while he was away in Manila; that the accused had been
deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his
reasoning faculties and deprived him of the capacity to reflect upon his acts.
Considering all these circumstances this court believes the accused Francisco Abarca

is deserving of executive clemency, not of full pardon but of a substantial if not a

radical reduction or commutation of his death sentence.

The accused-appellant assigns the following errors committed by the court a quo:

Though quite a length of time, about one hour, had passed between the time the accusedappellant discovered his wife having sexual intercourse with the victim and the time the latter
was actually shot, the shooting must be understood to be the continuation of the pursuit of the
victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall
kill any of them or both of them . . . immediately" after surprising his spouse in the act of
intercourse, does not say that he should commit the killing instantly thereafter. It only requires
that the death caused be the proximate result of the outrage overwhelming the accused after
chancing upon his spouse in the basest act of infidelity. But the killing should have been actually
motivated by the same blind impulse, and must not have been influenced by external factors.
The killing must be the direct by-product of the accused's rage.

I.IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING
A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE;

It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v.
Araque, 6 we said:

Let a copy of this decision be furnished her Excellency, the President of the
Philippines, thru the Ministry of Justice, Manila.
SO ORDERED. 3

II.IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE
OF TREACHERY. 4
The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining
death inflicted under exceptional circumstances, complexed with double frustrated murder.
Article 247 reads in full:
ART. 247. Death or physical injuries inflicted under exceptional circumstances. Any
legally married person who, having surprised his spouse in the act of committing
sexual intercourse with another person, shall kill any of them or both of them in the act
or immediately thereafter, or shall inflict upon them any serious physical injury, shall
suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be exempt from
punishment.
These rules shall be applicable, under the same circumstances, to parents with
respect to their daughters under eighteen years of age, and their seducers, while the
daughters are living with their parents.
Any person who shall promote or facilitate prostitution of his wife or daughter, or shall
otherwise have consented to the infidelity of the other spouse shall not be entitled to
the benefits of this article.
We agree with the Solicitor General that the aforequoted provision applies in the instant case.
There is no question that the accused surprised his wife and her paramour, the victim in this
case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of
passionate outburst. Article 247 prescribes the following elements: (1) that a legally married
person surprises his spouse in the act of committing sexual intercourse with another person; and
(2) that he kills any of them or both of them in the act or immediately thereafter. These elements
are present in this case. The trial court, in convicting the accused-appellant of murder, therefore
erred.

xxx xxx xxx

As may readily be seen from its provisions and its place in the Code, the abovequoted article, far from defining a felony, merely provides or grants a privilege or
benefit amounting practically to an exemption from an adequate punishment to a
legally married person or parent who shall surprise his spouse or daughter in the act
of committing sexual intercourse with another, and shall kill any or both of them in the
act or immediately thereafter, or shall inflict upon them any serious physical injury.
Thus, in case of death or serious physical injuries, considering the enormous
provocation and his righteous indignation, the accused who would otherwise be
criminally liable for the crime of homicide, parricide, murder, or serious physical injury,
as the case may be is punished only with destierro. This penalty is mere
banishment and, as held in a case, is intended more for the protection of the accused
than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries
other than serious are inflicted, the offender is exempted from punishment. In effect,
therefore, Article 247, or the exceptional circumstances mentioned therein, amount to
an exempting circumstance, for even where death or serious physical injuries is
inflicted, the penalty is so greatly lowered as to result to no punishment at all. A
different interpretation, i.e., that it defines and penalizes a distinct crime, would make
the exceptional circumstances which practically exempt the accused from criminal
liability integral elements of the offense, and thereby compel the prosecuting officer to
plead, and, incidentally, admit them, in the information. Such an interpretation would
be illogical if not absurd, since a mitigating and much less an exempting circumstance
cannot be an integral element of the crime charged. Only "acts or omissons . . .
constituting the offense" should be pleaded in a complaint or information, and a
circumstance which mitigates criminal liability or exempts the accused therefrom, not
being an essential element of the offense charged-but a matter of defense that must
be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106,
Rules of Court; U.S. vs. Campo, 23 Phil., 368.)
That the article in question defines no crime is made more manifest when we consider
that its counterpart in the old Penal Code (Article 423) was found under the General
Provisions (Chapter VIII) of Title VIII covering crimes against persons. There can, we
think, hardly be any dispute that as part of the general provisions, it could not have
possibly provided for a distinct and separate crime.

xxx xxx xxx

We, therefore, conclude that Article 247 of the Revised Penal Code does not define
and provide for a specific crime, but grants a privilege or benefit to the accused for the
killing of another or the infliction of serious physical injuries under the circumstances
therein mentioned. ... 7
xxx xxx xxx
Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended
for his protection. 8
It shall likewise be noted that inflicting death under exceptional circumstances, not being a
punishable act, cannot be qualified by either aggravating or mitigating or other qualifying
circumstances, We cannot accordingly appreciate treachery in this case.
The next question refers to the liability of the accused-appellant for the physical injuries suffered
by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accusedappellant shot the victim. The Solicitor General recommends a finding of double frustrated
murder against the accused-appellant, and being the more severe offense, proposes the
imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised
Penal Code. This is where we disagree. The accused-appellant did not have the intent to kill the
Amparado couple. Although as a rule, one committing an offense is liable for all the
consequences of his act, that rule presupposes that the act done amounts to a felony. 9
But the case at bar requires distinctions. Here, the accused-appellant was not committing
murder when he discharged his rifle upon the deceased. Inflicting death under exceptional
circumstances is not murder. We cannot therefore hold the appellant liable for frustrated murder
for the injuries suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally free from any responsibility.
Granting the fact that he was not performing an illegal act when he fired shots at the victim, he
cannot be said to be entirely without fault. While it appears that before firing at the deceased, he
uttered warning words ("an waray labot kagawas,") 10that is not enough a precaution to absolve
him for the injuries sustained by the Amparados. We nonetheless find negligence on his part.
Accordingly, we hold him liable under the first part, second paragraph, of Article 365, that is, less
serious physical injuries through simple imprudence or negligence. (The records show that
Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing, with
respect to Lina Amparado, as to the extent of her injuries. We presume that she was placed in
confinement for only ten to fourteen days based on the medical certificate estimating her
recovery period.) 12
For the separate injuries suffered by the Amparado spouses, we therefore impose upon the
accused-appellant arresto mayor (in its medium and maximum periods) in its maximum
period, arresto to being the graver penalty (than destierro). 13
WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-appellant is
sentenced to four months and 21 days to six months of arresto mayor. The period within which

he has been in confinement shall be credited in the service of these penalties. He is furthermore
ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for
hospitalization expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning
capacity. No special pronouncement as to costs.
IT IS SO ORDERED.

G.R. No. L-32103 September 28, 1984

PEOPLE
OF
vs.
JOSE BUENSUCESO, RODOLFO
JOSON, defendants-appellants.

THE
AGUILAR,

PHILIPPINES, plaintiff-appellee,
CONRADO

IZON

and

ERNESTO

MELENCIO-HERRERA, J.:
This is an appeal from the Decision of the then Court of First Instance of Bataan, sitting in
Balanga, in Criminal Case No. 6182, convicting Jose BUENSUCESO, Rodolfo AGUILAR,
Conrado IZON and Ernesto JOSON, all members of the police force of Dinalupihan, Bataan, of
Murder, and sentencing "said accused each to suffer the penalty of RECLUSION PERPETUA; to
jointly and severally indemnify the heirs of the deceased Pariseo Tayag in the amount of
P12,000.00; and each to pay the proportionate costs." 1
The Information filed against said four accused together with two other policeman, Eduardo
MALLARI and Fidel DE LA CRUZ, charged them with Murder as follows:
That on April 21, 1967 at about 5:00 o'clock in the afternoon at Dinalupihan, Bataan,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
accused by conspiring, confederating and helping one another, with intent to kill,
treachery and by taking advantage of their official positions and superior strength,
using their service revolvers did then and there willfully, unlawfully and feloniously
shoot one PARESEO TAYAG Y ANGELES hitting him in the different parts of his
body inflicting upon his person several gunshot wounds which caused his death to
the damage and prejudice of his heirs. 2
After pleas of not guilty and after due trial, accused BUENSUCESO SUCESO, AGUILAR, IZON
and JOSON were found guilty of Murder and, as aforestated, were sentenced to suffer reclusion
perpetua.
MALLARI and DE LA CRUZ were both absolved on reasonable doubt. 3
Three separate Briefs were filed: the first was for IZON and JOSON; the other was for
BUENSUCESO; and the third one was for AGUILAR. The Solicitor General filed a consolidated
Brief.

shoulder of the other, going towards the municipal building (pp. 22-24, tsn, July 25,
1967). Pat. Aguilar was trying to take the fan knife of Tayag, but could not take it
because Tayag prevented him from taking it by gripping it with his right hand and
swaying it left and right as ff playing (p. 24, tsn, Id.). Tayag did not want to , the give
knife because he was not making any trouble (p. 25, tsn., Id.). At the suggestion of
Pat. Aguilar, Tayag readily agreed to go to the office of the chief of police (pp. 25, 26,
tsn, Id.).
When they arrived in the said office, there were two persons there, namely, Enrique
Mallo and Pat. Eduardo Mallari (p. 27, t.s.n. Id.). Pat. Mallari was then the municipal
guard and in uniform (p 8, tsn., July 26, 1967). Subsequently, a heated argument took
place between Pat. Aguilar and Tayag arising from the latter's refusal to give his fan
knife to the former (p. 28, tsn July 25, 1967). later on, Pat. Fidel de la Cruz appeared
at the doorway (pp. 30, 32, tsn Id.).
Thereafter , when Tayag was about to leave the office, Chief of Police Adriano Canlas
arrived and inquired what the trouble was an about (p. 31, tsn, Id.). Pat. Aguilar
answered that the two of them (Aguilar and Canlas) had been cursed by Tayag (p. 32,
tsn Id.). Tayag asserted that he did not curse either of them, but that Aguilar was to
force him to give up his knife (p. 32, tsn, Id.). Thereafter Tayag hurriedly left the office.
He was followed by Pat. Aguilar, Mallari and de la Cruz who walked fast, with Aguilar
and Mallari holding guns (p. 33, tan, Id.). After having gone out of the building, Pat.
Aguilar fired his gun upward (p. 34, tsn, Id.).
Hearing the shot, Tayag turned about, then retreated backwards until he reached the
fence of the plaza (Id.). When Tayag was near the wooden fence about a knee high,
Pat. Aguilar aimed his gun at Tayag and fired, hitting him above the right knee (pp. 34,
36, tsn, Id.). Tayag continued to run towards his house followed by de la Cruz without
a gun (p. 36, tsn, Id.). Pat. Mallari went to the waiting shed to intercept Tayag (Id.).
Pat. Mallari had a gun at that time (p. 37, tsn, Id.). Pat. Aguilar followed Mallari in the
shed and they took opposite sides of the road, that is, Rizal Street, in front of the
Catholic Church (Id.). Then there were several successive gun shots, more or less
nine in number (p. 39 tsn, tsn, Id.).
After the commotion, Tayag was seen lying prostrate near the back of a jeep parked at
the corner of Rizal and San Juan Streets, about 60 meters away from the municipal
building (p. 38, tsn. Id.). Pat. de la Cruz took the knife from Tayag and gave it to Pat.
Jose Buensuceso (p. 39, tsn, Id.), who at the precise moment had his revolver tucked
in its holster (p. 42, tsn, Id.). Pat. Conrado Izon and Pat. Ernesto Jose were also seen
in the immediate vicinity of the crane scene by witness Apolonio Salvador ( Id.).
Witness did not know, however, where Pat. Izon and Joson came from (p. 45, tsn, Id.).
Both had their guns in their holsters (Id.).

The prosecution synthesized the occurrence as follows:

Between 5:00 and 6:00 o'clock in the afternoon of April 21, 1967, while prosecution
witness Apolonio Salvador was in his small store beside the market near the municipal
building of Dinalupihan Bataan, he saw Patrolman Rodolfo Aguilar and Pariseo Tayag
con. conversing as they were walking side by side, each resting his hand on the

Later, at about 5:50 that afternoon of April 21, 1967, Sgt. Romualdo-Espiritu of the
P.C. stationed at Balanga Bataan, arrived at the corner of Rizal and San Juan Bautista
streets in Dinalupihan (pp. 1, 2, tsn, July 26, 1967). He noticed a commotion in the
plaza and as a peace officer he inquired from people around what was going on (p. 2,
tsn, July 26, 1967). He was told that a certain person was shot (Id.). He went to the

place where people were converging and found Pariseo Tayag dead lying down on a
pool of blood, some 10 to 15 yards from the corner of Rizal and San Juan Bautista
Streets (Id.). He ordered that deceased be brought to the municipal health center
where a cursory inspection of the cadaver was made by the Municipal Health Officer,
Dr. Sta. Maria (Id.) and photographs (Exhs. "F" and "G", p. 6, tan, Id.) taken of the
deceased (p. 5, tsn, Id.).
Thereafter, he proceeded to the municipal building and investigated (p. 2, tsn, Id.).
Upon learning that some police officers were involved he investigated the suspects.
He first saw Pat. Aguilar who was then recounting the incident to Pat. de la Cruz ( Id.).
He asked for his service pistol inspected the cylinder and found three (3) empty shells
and three (3) live ammunitions (Id.). He smelled the barrel Of the gun and found out
that it had been fired (Id.). Then he proceeded to the office of the chief of police (p. 3,
tsn, Id.) Moments later, Pat. Buensuceso arrived (Id.). He asked for Buensuceso's
service revolver, inspected the cylinder, and found four (4) empty shells and two (2)
live ammunitions (Id.). He smelled the barrel of the gun and found that it also had
been fired. He also asked for the service revolver of Pat. de la Cruz but the latter
manifested that he had no firearm at the time but pointed to Pat. Mallari from whom he
(Pat. de la Cruz) got a pistol while they were on the ground door of the municipal
building (Id.).
Sgt. Espiritu then proceeded to the Patrol base or detachment of the 161st PC Co. at
Layac Dinalupihan, Bataan and from there he reported the incident by calling up
headquarters in Balanga, Bataan (Id.), and at the same time asked for investigators to
come over (Id.). Later on, while Sgt. Espiritu was preparing an on-the-spot report in
the office of the Dinalupihan Police Dept. Capt. Antonio Resurreccion of the 161st PC
Co. arrived with his investigators (Id.). Sgt. Espiritu turned over to Capt. Resurreccion
the revolvers of Aguilar and Buensuceso, which are both Smith and Wesson Cal. 38,
Sgt. Espiritu Identified in court as Exhibit "C"a Smith and Wesson cal. 38 revolver, with
Serial No. K-617092 as belonging to Pat. Buensuceso, and as Exhibit 'D' the other
revolver with Serial No. C-73130, Cal. 38, as belonging to Pat. Aguilar (p. 4, tsn, July
26, 1967).
Jose Penaflor, Acting Chief of Police of Dinalupihan, Bataan (pp 12, 13, 14, tsn, Id.)
and the municipal treasurer, Ludovico Simpao (pp. 17, 18, tsn, Id.), testified that on
the basis of the memorandum receipt and records in their offices (Exhibits "H", "I",
"J"), the respective firearms issued to the policemen of Dinalupihan, Bataan, bear the
following serial numbers:
Eduardo
(Exh. H-1; J-4)

Mallari

Serial

No.

L-

597615

Conrado
(Exh. H-5; 1-1)

Izon

Serial

1. Entrance located at the scapular region, left, directed forward slightly upward and
medially; ...
2. Entrance located at the infrascapular region, left, * * * directed forward, upward and
medially; * * * ...
3. Entrance located at the thigh, right, distal 3rd, antero-lateral aspect, *** directed
backward, downward and laterally; ...
4. Entrance located at the leg, right, proximal ward, antero-lateral aspect * * * directed
upward, backward and laterally; * * * fracturing communitedly the upper 3rd of the tibia
and a slug was recovered at a point at the level of the knee, * * *
Dr. Cunanan testified that gunshot wound No. 4 is not a through and though wound,
but instead the bullet was recovered with its course at Exhibits Q-3 and S (pp. 7, 8,
tsn, Aug. 15, 1967). The bullet is preserved in their office and the photo of the slug is
shown in Exhibits T and T-1 (p. 8, tsn, Id.). He explained that gunshot wounds Nos. 1
and 2 were inflicted by a .38 caliber bullet (p. 8, tsn, Id.), while wound No. 3 may have
been inflicted by a .32 or .38 cal. bullet. Wound No. 1 must have been fired by an
assailant behind and to the left of the victim (p. 9, tsn, Id.). The shot causing Wound
No, 2 must have been fired by an assailant while in the same position when Wound
No. 1 was inflicted on the victim. Wound No. 3 is located on the lower extremity which
is movable part of the body and could be inflicted on the victim assuming different
positions. Wound No. 4 could be inflicted when the victim was lying down and
assailant was in a lower position than the victim both standing erect face to face.
Wounds No. 1 and 2 were fatal. Wound No. 1 involves the heart and lungs and Wound
No. 2 involves the lungs, spleen and the liver (pp. 9, 10, tsn, Id.).
Lunges diphenylamine tests were made on the dorsal aspect of both hands of the
accused from the wrist joint to the fingertips, which produced the following results, to
wit:
Chemistry Report No. G-67-204-Conrado Izon
Left Hand Positive

Buensuceso

Ernesto
(Exh. H-4; J-3)

Joson

Serial

No.

K-617092
Right Hand Negative

Serial

No.

K-617201

73534

The deceased Pariseo Tayag died of gunshot wounds as found by Dr. Ceferino
Cunanan, a medico-legal officer of the National Bureau of Investigation. His findings
and conclusions are reflected in his necropsy report No. N-67-445 (Exh. L; p. 5, tsn.,
Aug. 15, 1967), as follows:

Rodolfo Aguilar Serial No.C 73130

Jose
(Exh H-3; J-3)

No.

Chemistry Report No. G-67-203-Fidel de la Cruz

Negative results

from De la Cruz, smelled it, then handed it back to De la Cruz, saying: "It was not
fired".

Chemistry Report No. G-67-202-Ernesto Joson

Left Hand Positive
Right Hand Negative
Chemistry Report No. G-67-200 Eduardo Mallari
Negative results.
Filemon Mamaril, Supervising Ballistician and Chief, Forensic Ballistic of the National
Bureau of Investigation, who conducted a ballistic examination of the firearms and
shells and ammunitions received from the office of the provincial fiscal of Bataan in
connection with this case, rendered his Ballistic Reports Nos. B-41-867 and B-44-867
(Exh. V, pp. 4, 5, tsn, April 17, 1968).
Exhibit W which is a deformed jacketed bullet which was received from Dr. Cunanan
(p. 6, tsn, Id.), showed that it was fired from the Smith and Wesson revolver, Cal. 38,
bearing Serial No. K-617092 (p. 7, tsn, Id.). He also found that the empty shells, Exhs.
"Y", "Y-1" and "Y-2" and "Y-3" were fired from the revolver marked Exh. "C" (Id.). The
three empty shells, Exhs. "Y-4", "Y-5" and "Y-6" were fired from a Smith and Wesson
revolver, Cal. 38, with Serial No. C-73130 (pp. 123, 124, tsn., April 18, 1969) marked
Exh. "D" (p. 4, tsn., July 26, 1967). 4

Another defense witness, Corazon Cruz, a waitress, testified that the deceased together with
some companions had drunk beer inside Freddie's Restaurant before the shooting incident. After
her testimony, the defense without presenting the other accused on the witness stand, offered its
evidence and submitted the case for decision.
Accused-appellants, in their respective Briefs, assigned the following errors:
1) By IZON and JOSON:
I
THE LOWER COURT ERRED IN HOLDING THE APPELLANTS
CONRADO IZON AND ERNESTO JOSON GUILTY OF THE CRIME
CHARGED IN THE INFORMATION PENALIZED UNDER ARTICLE 248 OF
THE REVISED PENAL CODE.
II
THE LOWER COURT LIKEWISE ERRED IN FINDING THE APPELLANTS
IZON AND JOSON AS CO. PRINCIPAL IN THE COMMISSION OF THE
CRIME.
2) By BUENSUCESO:

The testimony of one of the accused, Eduardo MALLARI, in his defense was summarized by the
Trial Court thus:
In his defense, the accused Eduardo Mallari testified that at about 5:30 o'clock in the
afternoon of April 21, 1967, he closed the office of the Chief of Police on the 2nd floor
of the municipal building. Then he went down to the office of the Deputy Chief of
Police on the ground floor. While descending to the ground floor, he saw a person in
the office of the Deputy Chief of Police facing Cpl. Aguilar. The person was holding a
knife and cursing the Chief of Police. Suddenly the person raised his right hand with
the knife stating, "You can only get this from me, Aguilar, when I am already dead."
Then the person and Aguilar pursued one another around the table, the person with a
knife as the pursuer. He saw the person pushed aside Aguilar and stabbed him but
Aguilar was not hit. Thereupon Aguilar ran towards the outside of the building. The
person followed Aguilar. At this juncture Pat. Fidel de la Cruz arrived. De la Cruz
asked Mallari what happened. As De la Cruz and Mallari were conversing, Mallari
heard a shot fired outside the building. Thereupon, De la Cruz grabbed Mallari's gun
and rushed outside the building. Mallari also ran outside of the building. He saw the
person, whom he later recognized as Pariseo Tayag, running away. He heard other
shots, not less than five of them. He was short distance from the main door of the
municipal building and he saw a commotion of the people. Fidel de la Cruz returned
Mallari's gun after the shooting and when they were already inside the building.
Thereafter Sgt. Romualdo Espiritu of the P.C. arrived. Sgt. Espiritu got Mallari's gun

I
THE LOWER COURT ERRED IN GIVING UNDUE CREDENCE TO THE
NECROPSY REPORT EXHIBIT L) OF DR. CEFERINO CUNANAN AND
THE BALLISTICS REPORT (EXHIBIT V) OF THE BALLISTICIAN FILEMON
MAMARIL, AS WELL AS THEIR TESTIMONIES AND IN RELYING
THEREON OR MAKING THE SAME AS ITS BASIS FOR CONCLUDING
THAT THE SLUG (EXHIBIT W) WHICH WAS ALLEGEDLY RECOVERED
FROM THE KNEE OF THE ALLEGED VICTIM WAS FIRED FROM THE
REVOLVER (EXHIBIT C) OF THE APPELLANT JOSE BUENSUCESO.
II
THE TRIAL COURT ERRED IN RULING THAT THE TWO FATAL WOUNDS
WHICH CAUSED THE INSTANTANEOUS DEATH OF THE ALLEGED
VICTIM WERE INFLICTED BY BULLETS FIRED FROM THE GUNS OF
THE APPELLANTS JOSE BUENSUCESO, RODOLFO AGUILAR,
CONRADO IZON and ERNESTO JOSON.
III

THE COURT BELOW ERRED IN CONVICTING THE APPELLANT JOSE

BUENSUCESO FOR MURDER NOTWITHSTANDING ITS OWN FINDING
THAT THERE WAS NO CONSPIRACY ESTABLISHED BY THE
PROSECUTION, ASIDE FROM THE FACT THAT THERE WAS
ABSOLUTELY NO EVIDENCE ON RECORD TO SHOW THAT HE
ACTUALLY PARTICIPATED IN THE KILLING OF THE VICTIM.

(Exhibit "C") issued to BUENSUCESO; that the four (4) empty shells (Exhibits "Y", "Y-1", "Y-2",
and "Y-3") were fired also from BUENSUCESO's firearm; while the three (3) other empty shells
(Exhibits "Y-4", "Y-5", and "Y-6") were fired from AGUILAR's Smith & Wesson revolver, cal. 38,
with Serial No. C-73130 (Exhibit "D"). 9
Fifth, the Chemistry Reports on the paraffin tests showed the following
results, particularly in respect of IZON and JOSON:

3) By AGUILAR:
Chemistry Report No. G-67-204 Conrado Izon
I
Left Hand Positive
THE LOWER COURT ERRED IN HOLDING THAT THERE WAS
TREACHERY, MORE SPECIFICALLY ON THE PART OF DEFENDANT
AGUILAR THAT WOULD QUALIFY THE CRIME TO MURDER.
II
THE LOWER COURT ERRED IN HOLDING THAT THE ACCUSED
AGUILAR THOUGH ACTING INDEPENDENTLY SHOULD BE LIKEWISE
HELD LIABLE AS THE REST OF THE ACCUSED FOR THE DEATH OF
THE VICTIM.

Right Hand Negative

Chemistry Report No. G-67-203 Fidel de la Cruz
Negative Results.
Chemistry Report No. G-67-202 Ernesto Joson
Left Hand Positive

III
Right Hand Negative
THE LOWER COURT ERRED IN NOT HOLDING THAT DEFENDANT WAS
MERELY ACTING IN LEGITIMATE SELF-DEFENSE WHEN HE INFLICTED
THE WOUND ON THE VICTIM.

Chemistry Report No. G-67-200 Eduardo Mallari

Negative Results. 10 (Emphasis ours)

The assigned errors find no support from the evidence on record.

Firstly, all four appellants were seen by Apolonio Salvador, one of the prosecution eyewitnesses,
to have been present at the crime scene at the nine of the incident, armed with .38 caliber
service revolvers. 5

The positive finding, insofar as IZON and JOSON are concerned, confirm prosecution witness
Apolonio Salvador's declaration that they were in the vicinity of the crime at the time of its
occurrence. Although they had their guns in their holsters when Salvador saw them the fact
remains that, upon examination, their left hands were positive for nitrates.

Secondly, the autopsy conducted on the body of the victim showed that he died as a result of
four (4) gunshot wounds, 6 two of which were fatal. 7 The examining physician testified that the
wounds were inflicted by .38 cal. revolvers and that a deformed bullet, also .38 cal., which
caused wound No. 4, was recovered (Exhibit "W" ).

AGUILAR's plea of self-defense is evidently unmeritorious. AGUILAR followed the victim right
after the latter hurriedly left the office of the Chief of Police. Once outside the building, AGUILAR
fired his gun upward. And when the victim turned around and retreated backwards, AGUILAR
fired upon him hitting him above the right knee.

Thirdly, upon an on-the-spot inspection by PC Sgt. Romualdo Espiritu soon after the incident, he
found that the service pistol of AGUILAR had been fired and that its cylinder contained three (3)
empty shells and three (3) live ammunitions. Similarly, he smelled the barrel of BUENSUCESO's
revolver and found that it, too, had been fired and that its cylinder had four (4) empty shells, and
two live ammunitions. 8

If, as contended, the victim had thrust his knife at AGUILAR inside the Municipal Building malting
the former the unlawful aggressor, to be sure, the incident would have happened there and then
and not some 60 meters away from the building. We discredit AGUILAR's testimony that it was
the victim who had pursued him rather than the other way around.

Fourthly, ballistic examination disclosed that the deformed jacketed bullet recovered from the
knee of the victim was fired from a .38 cal. Smith & Wesson revolver, with Serial No. K-617092,

BUENSUCESO's contention that there is serious doubt that the body autopsied was that of the
victim hardly deserves even passing consideration.

All told, there is ample evidence establishing that AGUILAR, BUENSUCESO, IZON, and JOSON
had fired their guns at the victim hitting him on different parts of his body. True, it has not been
established as to which wound was inflicted by each accused. However, as this Court has held,
where the victim died as a result of wounds received from several persons acting independently
of each other, but it has not been shown which wound was inflicted by each assailant, all of the
assailants are liable for the death of the victim. 11
The crime is Murder, qualified by treachery. The victim was already retreating backwards until he
reached the fence of the town plaza when AGUILAR fired his revolver at the former hitting him
above the right knee. 12Notwithstanding that he was already hit and wounded, and possibly
immobilized, he was still subjected to successive shots as shown by the wounds that he had
received, even at his back. Certainly, the means employed by the accused-appellants tended
directly and specially to insure the execution of the crime without risk to themselves arising from
any defense which the victim might have made. 13
The killing of the victim was aggravated by abuse of superior strength as shown by the number
of assailants, which circumstance, however, is absorbed by treachery. 14 No other
circumstances modify the commission of the crime.
WHEREFORE, the judgment appealed from is hereby AFFIRMED, except that the indemnity to
the victim's heirs is hereby increased to P30,000.00. 15 With proportionate costs.
SO ORDERED.

G.R. No. L-74324 November 17, 1988

Let the preventive imprisonment of Pugay be deducted from the principal penalty.

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
FERNANDO PUGAY y BALCITA, & BENJAMIN SAMSON y MAGDALENA, accusedappellants.

Cost against both accused.

SO ORDERED (p. 248, Records).
Not satisfied with the decision, both accused interposed the present appeal and assigned the
following errors committed by the court a quo:

MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate, FERNANDO PUGAY y BALCITA and BENJAMIN
SAMSON y MAGDALENA were charged with the crime of MURDER in Criminal Case No. L175-82 of the Court of First Instance (now Regional Trial Court) of Cavite, under an information
which reads as follows:

1. THE COURT A QUO ERRED IN UTILIZING THE STATEMENTS OF ACCUSEDAPPELLANTS IN ITS APPRECIATION OF FACTS DESPITE ITS ADMISSION THAT
THE ACCUSED-APPELLANTS WERE NOT ASSISTED BY A COUNSEL DURING
THE CUSTODIAL INVESTIGATION.

That on or about May 19, 1982 at the town plaza of the Municipality of Rosario,
Province of Cavite, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping and assisting
one another, with treachery and evident premeditation, taking advantage of their
superior strength, and with the decided purpose to kill, poured gasoline, a combustible
liquid to the body of Bayani Miranda and with the use of fire did then and there,
wilfully, unlawfully and feloniously, burn the whole body of said Bayani Miranda which
caused his subsequent death, to the damage and prejudice of the heirs of the
aforenamed Bayani Miranda.

2. THE COURT A QUO ERRED IN NOT FINDING THAT THE SUPPRESSION BY

THE PROSECUTION OF SOME EVIDENCE IS FATAL TO ITS CASE.

That the crime was committed with the qualifying circumstance of treachery and the
aggravating circumstances of evident premeditation and superior strength, and the
means employed was to weaken the defense; that the wrong done in the commission
of the crime was deliberately augmented by causing another wrong, that is the burning
of the body of Bayani Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded not guilty to the offense charged. After trial, the
trial court rendered a decision finding both accused guilty on the crime of murder but crediting in
favor of the accused Pugay the mitigating circumstance of lack of intention to commit so grave a
wrong, the dispositive portion of which reads as follows:
WHEREFORE, the accused Fernando Pugay y Balcita and Benjamin Samson y
Magdalena are pronounced guilty beyond reasonable doubt as principals by direct
participation of the crime of murder for the death of Bayani Miranda, and appreciating
the aforestated mitigating circumstance in favor of Pugay, he is sentenced to a prison
term ranging from twelve (12) years of prision mayor, as minimum, to twenty (20)
years of reclusion temporal, as maximum, and Samson to suffer the penalty
of reclusion perpetua together with the accessories of the law for both of them. The
accused are solidarily held liable to indemnify the heirs of the victim in the amount of
P13,940.00 plus moral damages of P10,000.00 and exemplary damages of
P5,000.00.

3. THE COURT A QUO ERRED IN LENDING CREDENCE TO THE INCREDIBLE

TESTIMONY OF EDUARDO GABION WHO WAS ONE OF THE MANY SUSPECTS
ARRESTED BY THE POLICE (Accused-appellants' Brief, p. 48, Rollo).
The antecedent facts are as follows:
The deceased Miranda, a 25-year old retardate, and the accused Pugay were friends. Miranda
used to run errands for Pugay and at times they slept together. On the evening of May 19, 1982,
a town fiesta fair was held in the public plaza of Rosario, Cavite. There were different kinds of
ride and one was a ferris wheel.
Sometime after midnight of the same date, Eduardo Gabion was sitting in the ferris wheel and
reading a comic book with his friend Henry. Later, the accused Pugay and Samson with several
companions arrived. These persons appeared to be drunk as they were all happy and noisy. As
the group saw the deceased walking nearby, they started making fun of him. They made the
deceased dance by tickling him with a piece of wood.
Not content with what they were doing with the deceased, the accused Pugay suddenly took a
can of gasoline from under the engine of the ferns wheel and poured its contents on the body of
the former. Gabion told Pugay not to do so while the latter was already in the process of pouring
the gasoline. Then, the accused Samson set Miranda on fire making a human torch out of him.
The ferris wheel operator later arrived and doused with water the burning body of the deceased.
Some people around also poured sand on the burning body and others wrapped the same with
rags to extinguish the flame.
The body of the deceased was still aflame when police officer Rolando Silangcruz and other
police officers of the Rosario Police Force arrived at the scene of the incident. Upon inquiring as

to who were responsible for the dastardly act, the persons around spontaneously pointed to
Pugay and Samson as the authors thereof.
The deceased was later rushed to the Grace Hospital for treatment. In the meantime, the police
officers brought Gabion, the two accused and five other persons to the Rosario municipal
building for interrogation. Police officer Reynaldo Canlas took the written statements of Gabion
and the two accused, after which Gabion was released. The two accused remained in custody.
After a careful review of the records, We find the grounds relied upon by the accused-appellants
for the reversal of the decision of the court a quo to be without merit.
It bears emphasis that barely a few hours after the incident, accused-appellants gave their
written statements to the police. The accused Pugay admitted in his statement, Exhibit F, that he
poured a can of gasoline on the deceased believing that the contents thereof was water and
then the accused Samson set the deceased on fire. The accused Samson, on the other hand,
alleged in his statement that he saw Pugay pour gasoline on Miranda but did not see the person
who set him on fire. Worthy of note is the fact that both statements did not impute any
participation of eyewitness Gabion in the commission of the offense.

Accused-appellants also attack the credibility of the eyewitness Gabion alleging that not only
was the latter requested by the mother of the deceased to testify for the prosecution in exchange
for his absolution from liability but also because his testimony that he was reading a comic book
during an unusual event is contrary to human behavior and experience.
Gabion testified that it was his uncle and not the mother of the deceased who asked him to
testify and state the truth about the incident. The mother of the deceased likewise testified that
she never talked to Gabion and that she saw the latter for the first time when the instant case
was tried. Besides, the accused Pugay admitted that Gabion was his friend and both Pugay and
the other accused Samson testified that they had no previous misunderstanding with Gabion.
Clearly, Gabion had no reason to testify falsely against them.
In support of their claim that the testimony of Gabion to the effect that he saw Pugay pour
gasoline on the deceased and then Samson set him on fire is incredible, the accused-appellants
quote Gabion's testimony on cross-examination that, after telling Pugay not to pour gasoline on
the deceased, he (Gabion) resumed reading comics; and that it was only when the victim's body
was on fire that he noticed a commotion.
However, explaining this testimony on re-direct examination, Gabion stated:

While testifying on their defense, the accused-appellants repudiated their written statements
alleging that they were extracted by force. They claimed that the police maltreated them into
admitting authorship of the crime. They also engaged in a concerted effort to lay the blame on
Gabion for the commission of the offense.
Thus, while it is true that the written statements of the accused-appellants were mentioned and
discussed in the decision of the court a quo, the contents thereof were not utilized as the sole
basis for the findings of facts in the decision rendered. The said court categorically stated that
"even without Exhibits 'F' and 'G', there is still Gabion's straightforward, positive and convincing
testimony which remains unaffected by the uncorroborated, self-serving and unrealiable
testimonies of Pugay and Samson" (p. 247, Records).
Accused-appellants next assert that the prosecution suppressed the testimonies of other
eyewitnesses to the incident. They claim that despite the fact that there were other persons
investigated by the police, only Gabion was presented as an eyewitness during the trial of the
case. They argue that the deliberate non- presentation of these persons raises the presumption
that their testimonies would be adverse to the prosecution.
There is no dispute that there were other persons who witnessed the commission of the crime.
In fact there appears on record (pp. 16-17, Records) the written statements of one Abelardo
Reyes and one Monico Alimorong alleging the same facts and imputing the respective acts of
pouring of gasoline and setting the deceased on fire to the accused-appellants as testified to by
Gabion in open court. They were listed as prosecution witnesses in the information filed.
Considering that their testimonies would be merely corroborative, their non-presentation does
not give rise to the presumption that evidence wilfully suppressed would be adverse if produced.
This presumption does not apply to the suppression of merely corroborative evidence (U.S. vs.
Dinola, 37 Phil. 797).<re||an1w> Besides, the matter as to whom to utilize as witness is for
the prosecution to decide.

Q. Mr. Gabion, you told the Court on cross-examination that you were reading comics
when you saw Pugay poured gasoline unto Bayani Miranda and lighted by Samson.
How could you possibly see that incident while you were reading comics?
A. I put down the comics which I am reading and I saw what they were doing.
Q. According to you also before Bayani was poured with gasoline and lighted and
burned later you had a talk with Pugay, is that correct?
A. When he was pouring gasoline on Bayani Miranda I was trying to prevent him from
doing so.
Q. We want to clarify. According to you a while ago you had a talk with Pugay and as a
matter of fact, you told him not to pour gasoline. That is what I want to know from you,
if that is true?
A. Yes, sir.
Q. Aside from Bayani being tickled with a stick on his ass, do you mean to say you
come to know that Pugay will pour gasoline unto him?
A. I do not know that would be that incident.
Q. Why did you as(k) Pugay in the first place not to pour gasoline before he did that
actually?
A. Because I pity Bayani, sir.

Q. When you saw Pugay tickling Bayani with a stick on his ass you tried according to
you to ask him not to and then later you said you asked not to pour gasoline. Did
Pugay tell you he was going to pour gasoline on Bayani?

arising from any act that may be committed by his companions who at the time were making fun
of the deceased. We agree with the Solicitor General that the accused is only guilty of homicide
through reckless imprudence defined in Article 365 of the Revised Penal Code, as amended.
In U.S. vs. Maleza, et. al. 14 Phil. 468, 470, this Court ruled as follows:

A. I was not told, sir.

Q. Did you come to know..... how did you come to know he was going to pour gasoline
that is why you prevent him?
A. Because he was holding on a container of gasoline. I thought it was water but it
was gasoline.
Q. It is clear that while Pugay was tickling Bayani with a stick on his ass, he later got
hold of a can of gasoline, is that correct?
A. Yes, sir.
Q. And when he pick up the can of gasoline, was that the time you told him not to pour
gasoline when he merely pick up the can of gasoline.
A. I saw him pouring the gasoline on the body of Joe.
Q. So, it is clear when you told Pugay not to pour gasoline he was already in the
process of pouring gasoline on the body of Bayani?
A. Yes, sir (Tsn, July 30, 1983, pp. 32-33).
It is thus clear that prior to the incident in question, Gabion was reading a comic book; that
Gabion stopped reading when the group of Pugay started to make fun of the deceased; that
Gabion saw Pugay get the can of gasoline from under the engine of the ferris wheel; that it was
while Pugay was in the process of pouring the gasoline on the body of the deceased when
Gabion warned him not to do so; and that Gabion later saw Samson set the deceased on fire.
However, there is nothing in the records showing that there was previous conspiracy or unity of
criminal purpose and intention between the two accused-appellants immediately before the
commission of the crime. There was no animosity between the deceased and the accused
Pugay or Samson. Their meeting at the scene of the incident was accidental. It is also clear that
the accused Pugay and his group merely wanted to make fun of the deceased. Hence, the
respective criminal responsibility of Pugay and Samson arising from different acts directed
against the deceased is individual and not collective, and each of them is liable only for the act
committed by him (U.S. vs. Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog, et. al. 37 Phil. 1371).
The next question to be determined is the criminal responsibility of the accused Pugay. Having
taken the can from under the engine of the ferris wheel and holding it before pouring its contents
on the body of the deceased, this accused knew that the can contained gasoline. The stinging
smell of this flammable liquid could not have escaped his notice even before pouring the same.
Clearly, he failed to exercise all the diligence necessary to avoid every undesirable consequence

A man must use common sense and exercise due reflection in all his acts; it is his duty
to be cautious, careful, and prudent, if not from instinct, then through fear of incurring
punishment. He is responsible for such results as anyone might foresee and for acts
which no one would have performed except through culpable abandon. Otherwise his
own person, rights and property, all those of his fellow-beings, would ever be exposed
to all manner of danger and injury.
The proper penalty that the accused Pugay must suffer is an indeterminate one ranging from
four (4) months of arresto mayor, as minimum, to four (4) years and two (2) months of prision
correccional, as maximum. With respect to the accused Samson, the Solicitor General in his
brief contends that "his conviction of murder, is proper considering that his act in setting the
deceased on fire knowing that gasoline had just been poured on him is characterized by
treachery as the victim was left completely helpless to defend and protect himself against such
an outrage" (p. 57, Rollo). We do not agree.
There is entire absence of proof in the record that the accused Samson had some reason to kill
the deceased before the incident. On the contrary, there is adequate evidence showing that his
act was merely a part of their fun-making that evening. For the circumstance of treachery to
exist, the attack must be deliberate and the culprit employed means, methods, or forms in the
execution thereof which tend directly and specially to insure its execution, without risk to himself
arising from any defense which the offended party might make.
There can be no doubt that the accused Samson knew very well that the liquid poured on the
body of the deceased was gasoline and a flammable substance for he would not have
committed the act of setting the latter on fire if it were otherwise. Giving him the benefit of doubt,
it call be conceded that as part of their fun-making he merely intended to set the deceased's
clothes on fire. His act, however, does not relieve him of criminal responsibility. Burning the
clothes of the victim would cause at the very least some kind of physical injuries on his person, a
felony defined in the Revised Penal Code. If his act resulted into a graver offense, as what took
place in the instant case, he must be held responsible therefor. Article 4 of the aforesaid code
provides, inter alia, that criminal liability shall be incurred by any person committing a felony
(delito) although the wrongful act done be different from that which he intended.
As no sufficient evidence appears in the record establishing any qualifying circumstances, the
accused Samson is only guilty of the crime of homicide defined and penalized in Article 249 of
the Revised Penal Code, as amended. We are disposed to credit in his favor the ordinary
mitigating circumstance of no intention to commit so grave a wrong as that committed as there is
evidence of a fact from which such conclusion can be drawn. The eyewitness Gabion testified
that the accused Pugay and Samson were stunned when they noticed the deceased burning
(Tsn, June 1, 1983, pp. 16-17).<re||an1w>
The proper penalty that the accused Samson must suffer is an indeterminate one ranging from
eight (8) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as
maximum.

The lower court held the accused solidarily liable for P13,940.00, the amount spent by Miranda's
parents for his hospitalization, wake and interment. The indemnity for death is P30,000.00.
Hence, the indemnity to the heirs of the deceased Miranda is increased to P43,940.00.
Both accused shall be jointly and severally liable for the aforesaid amount plus the P10,000.00
as moral damages and P5,000.00 as exemplary damages as found by the court a quo.
Accordingly, the judgment is affirmed with the modifications above-indicated. Costs against the
accused-appellants.
SO ORDERED.

G.R. No. L-50884 March 30, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FILOMENO SALUFRANIA, defendant-appellant.
PADILLA, J.:
In an information, dated 7 May 1976, Filomeno Salufrania y Aleman was charged before the
Court of First Instance of Camarines Norte, Branch I, with the complex crime of parricide with
intentional abortion, committed as follows:
That on or about the 3rd day of December, 1974, in Tigbinan, Labo, Camarines Norte,
Philippines, and within the jurisdiction of the Honorable Court the accused Filomeno
Salufrania y Aleman did then and there, willfully, unlawfully, and feloniously attack,
assault and use personal violence on MARCIANA ABUYO-SALUFRANIA, the lawfully
wedded wife of the accused, by then and there boxing and stranging her, causing
upon her injuries which resulted in her instantaneous death; and by the same criminal
act committed on the person of the wife of the accused, who was at the time 8 months
on the family way, the accused likewise did then and there willfully, unlawfully, and
feloniously cause the death of the child while still in its maternal womb, thereby
committing both crimes of PARRICIDE and INTENTIONAL ABORTION as defined and
punished under Art. 246 and Art. 256, paragraph I, of the Revised Penal Code, to the
damage and prejudice of the heirs of said woman and child in the amount as the
Honorable Court shall assess.
CONTRARY TO LAW
Upon arraignment, the accused, assisted by counsel de officio, pleaded not guilty to the offenses
charged.
After trial the lower court rendered a decision ** dated 9 August 1978, the dispositive part of
which states:
WHEREFORE, finding the accused Filomeno Salufrania y Aleman guilty beyond
reasonable doubt, of the complex crime of Parricide with Intentional Abortion, he is
hereby sentenced to suffer the penalty of DEATH, to indemnify the heirs of the
deceased Marciano Abuyo in the sum of P12,000.00 and to pay the costs. "For
unselfish, valuable and exemplary service rendered by counsel de oficio, Atty.
Marciano C. Dating, Jr., a compensation of P500.00 is hereby recommended for him
subject to the availability of funds
SO ORDERED.
The accused having been sentenced to suffer the penalty of death, this case is on automatic
review before this Court.
At the trial in the court a quo, the prosecution presented the following witnesses: Dr. Juan L.
Dyquiangco Jr., Pedro Salufrania and Narciso Abuyo.
Dr. Juan L. Dyquiangco Jr., who was then Rural Health Officer of Talisay, Camarines Norte,
testified that, after passing the Board Examination, he was employed as a Resident Physician of
La Union Provincial Hospital, then as Junior Resident Physician of Bethane Hospital in San
Fernando, La Union and that later, he joined the government service, starting from 1968 up to
the time of the trial; that as a Doctor of Medicine, he had performed about ten (10) post mortem
examinations; that he was called upon by the Municipal Judge of Talisay to examine the corpse
of Marciana Abuyo-Salufrania that was exhumed from its grave in the Municipal Cemetery of
Talisay at around 11:00 o'clock in the morning of 11 December 1974; that his post
mortem examination lasted from 12:30 o'clock to 2:00 o'clock in the afternoon of the same day.
He reduced his findings of injuries into writing. (Exhibit "A"), which, together with their probable
cause, as testified to by him, are as follows:

Dr. Dyquiangco testified that after conducting the post mortem examination, he issued a
certification thereof (Exhibit "A"); that he issued a death certificate (Exhibit "B") for the deceased
Marciano Abuyo-Salufrania, bearing the date of 5 December 1974, made on the basis of the
information relayed by a certain Leonila Loma to his nurse before the burial, without mentioning
the cause of death; that the cause of death, as cardiac arrest, was indicated on said death
certificate only after the post mortem examination on 11 December 1974.
The other witness for the prosecution was Pedro Salufrania, son of herein appellant and of the
deceased. The lower court's decision states that, by reason of interest and relationship, before
Pedro Salufrania was allowed to testify against his father-accused Filomeno Salufrania, he was
carefully examined by the prosecuting officer and the defense counsel under the careful
supervision of the court a quo, to determine whether, at his age of 13 years old, he was already
capable of receiving correct impressions of facts and of relating them truly and, also, whether he
was compelled and/or threatened by anybody to testify against his father-accused. 1
The lower court found Pedro Salufrania to be determined and intelligent. He convincingly
declared that he was not threatened by any of his uncles on his mother's side to testify against
his father, because it was true that the latter killed his mother. Then, formally testifying as the
prosecution's lone eyewitness, he stated that his father Filomeno Salufrania and his mother
Marciana Abuyo quarrelled at about 6:00 o'clock in the evening of 3 December 1974, in their
small house at a far away sitio in barrio Tigbinan, Labo, Camarines Norte; that during said
quarrel, he saw his father box his pregnant mother on the stomach and, once fallen on the floor,
his father strangled her to death; that he saw blood ooze from the eyes and nose of his mother
and that she died right on the spot where she fell.
Pedro Salufrania further testified that after killing his mother, the accused- appellant went out of
the house to get a hammock; that his brother Alex and he were the only ones who witnessed
how the accused killed their mother because his sister and other brothers were already asleep
when the horrible incident happened; that his brothers Celedonio, Danilo and sister Merly woke
up after the death of their mother and kept watch at their mothers body while their father was
away; that their father arrived early the next morning with the hammock and after placing their
dead mother on the hammock, the accused carried her on his shoulder and brought the cadaver
to the house of his sister Conching, located at a populated section of Tigbinan that from Tigbinan
the corpse was transferred to Gabon, Talisay, Camarines Norte for burial.
Continuing his testimony, Pedro Salufrania stated that he is now living with his uncle Eduardo
Abuyo and had refused and still refused to live with his father-accused, because the latter has
threatened to kill him and his other brothers and sister should he reveal the true cause of his
mother's death.
The third witness for the prosecution was Narciso Abuyo, a resident of Gabon, Talisay,
Camarines Norte. He testified that the accused Filomeno Salufrania and his sister, the deceased
Marciana Abuyo, were lawfully wedded husband and wife as evidenced by a marriage contract
(Exhibit "C"). He declared that his sister was more or less seven (7) months pregnant when she
died; that he first came to know about his sister's death on 4 December 1974 thru his nephews
Pedro and Alex Salufrania who first informed him that their mother died of stomach ailment and
headache; that he went to Tigbinan to request for the body of his sister so that it may be buried
in Talisay, Camarines Norte and, as intended, Marciana Abuyo was buried in the Talisay
Cemetery on 6 December 1974.
Narciso Abuyo also declared that after the burial of Marciana Abuyo, the three (3) children of his
deceased sister went to his house and refused to go home with their father Filomeno Salufrania;
that when asked for the reason why, his nephew Alex Salufraa told him that the real cause of
death of their mother was not stomach ailment and headache, rather, she was boxed on the
stomach and strangled to death by their father; that immediately after learning of the true cause
of death of his sister, he brought the matter to the attention of the police authorities of Talisay,
Camarines Norte, who investigated Alex and Pedro Salufirania and later, to that of the Office of
the Provincial Fiscal of Camarines Norte.
The defense had for witnesses Geronimo Villan, Juanito Bragais, Angeles Liling Balce and the
accused Filomeno Salufrania.

Geronimo Villan testified that he was a neighbor of Filomeno Sulfrania. He declared that
Marciana Abuyo died at around 6:00 o'clock in the morning of 4 December 1974 in her house at
Sitio Kapagisahan Tigbinan Labo, Camarines Norte; that he happened to pass by said house
because his attention was attracted by the bright light in the fireplace and he saw Filomeno
Salufrania boiling "ikmo" and garlic as medicine for his wife who was about to deliver a child; that
he helped the accused by applying "ikmo" to the different parts of the body of Marciana Abuyo
and by administering the native treatment known as "bantil", that is, by pinching and pulling the
skin with two fingers of his closed fist; that when the condition of Marciana Abuyo worsened, he
told Filomeno Salufrania to go and get Juanita Bragais who is known as a healer but the latter
arrived at about 7:00 o'clock in the morning of 4 December 1974 and that at that time Marciana
Abuyo was already dead.
Witness Juanita Bragais testified that he was fetched by Felipe Salufrania, another son of
Filomeno Salufrania at about 6:00 o'clock in the morning of 4 December 1974. He further
testified that when he reached the house of the Salufranias, Marciana Abuyo was already dead
so he just helped Filomeno Salufrania in transferring the body of his wife to the house of the
latter's brother-in-law at Tigbinan, Labo, Camarines Norte.

The appellant assigns the following errors allegedly committed by the trial court:
I
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF THE
TESTIMONY OF AN INCOMPETENT WITNESS, AND ON INCONSISTENT AND
INSUFFICIENT EVIDENCE OF THE PROSECUTION, THEREBY VIOLATING THE RULE THAT
THE ACCUSED IS ENTITLED TO AN ACQUITTAL UNLESS HIS GUILT IS SHOWN BEYOND
ANY REASONABLE DOUBT.
II
ASSUMING ARGUENDO THAT THE EVIDENCE FOR THE PROSECUTION IS CREDIBLE
AND SUFFICIENT, THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE
COMPLEX CRIME OF PARRICIDE WITH INTENTIONAL ABORTION.
III
THE TRIAL COURT ERRED IN DISCREDITING THE EVIDENCE FOR THE ACCUSED.

Angeles Liling Balce, who claimed to be a former resident of Kapagisahan Tigbinan, Labo,
Camarines Norte testified that she arrived in the house of Filomeno Salufrania at about 6:00
o'clock in the morning of 4 December 1974 after being called by one of the latter's sons; that she
saw Marciana still in a coma lying on the lap of her husband who informed her that Marciana
was suffering from an old stomach ailment.

Appellant alleges that the trial court failed to determine the competence of Pedro Salufrania
before he was allowed to testify. Since Pedro was allegedly a child of tender age, being only
thirteen (13) years old when he testified, and only eleven (11) years old when the offense
charged occurred, he is presumed incompetent under Rule 130 Sec. 19 (b) of the Revised Rules
of Court, which includes among those who cannot be witnesses:

The accused Filomeno Salufrania admitted that he was that lawful husband of the deceased
Marciana Abuyo; that at around 9:00 o'clock in the morning of 3 December 1974, Marciana
arrived home from Talisay where she had earlier stayed for about a week; that she was hungry
upon her arrival, so he allegedly cooked their food and after eating their lunch, he proceeded to
his work while his wife rested in their house; that when he returned home at 3:00 o'clock in the
afternoon of that same day, his wife complained to him of stomach pain and he was told to
prepare the beddings because she was already sleepy; that at about 4:00 o'clock in the morning
of 4 December 1974, he was awakened by his wife who was still complaining of stomach pain,
and that she asked for a drink of hot water; that while he was boiling water, Geronimo Villan
arrived and assisted him in administering to his wife the native treatments known as "hilot" or
massaging and "banti" that Geronimo Villan and Francisco Repuya alternately applied "bantil" to
his wife but when her condition worsened, he woke up his children, Pedro and Alex to fetch Rico
Villanueva who might be able to ,save the life of their mother; that his children left and returned
without Rico Villanueva but the latter arrived a little later.

Children who appear to the court to be of such tender age and inferior
capacity as to be incapable of receiving correct impressions of the facts
respecting which they are examined, or of relating them truly.

Accused-appellant then went on to say that he sent for Juanito Bragais but the latter was not
able to cure his wife, since the latter was already dead when he arrived; that after the death of
his wife, he ordered his children to get the hammock of Kaloy Belardo whose house was about
two (2) kilometers away from their house, and upon the arrival of the hammock, he placed the
body of his wife thereon and brought it to the house of his sister Consolacion Salufrania in
Tigbinan; that while the corpse of Marciana Abuyo was at Tigbinan he sent Chiding and his elder
son to inform the brothers and sisters of his wife at Talisay about her death and that Leonila
Abuyo and Salvador Abuyo came; that he informed the Barangay Captain of Tigbinan of the
cause of death of his wife; that upon the suggestion of the brothers and sisters of Marciana
Abuyo, especially Salvador Abuyo, the body of their sister was brought home to Talisay and
thereafter buried at the Talisay Cemetery; that there was no quarrel between him and his wife
that preceded the latter's death, and that during the lifetime of the deceased, they loved each
other; that after her burial, his son Pedro Salufrania was taken by his brother-in-law Narciso
Abuyo and since then, he was not able to talk to his son until during the trial; and that at the time
of death of his wife, aside from the members of his family, Geronimo Villan Francisco Repuya
and Liling Angeles Balce were also present.
The case was considered submitted for decision by the trial court on 18 July 1978. As
aforestated, the trial court found the appellant guilty of the crimes charged and sentenced him to
the penalty of death.

Therefore, according to appellant, for failure of the trial court to determine Pedro's competence,
the presumption of incompetency was not rebutted and Pedro's testimony should not have been
admitted. Moreover, appellant stresses that there is no basis for the trial court's finding that
Pedro is intelligent.
Appellant's contention is without merit. The record shows that the trial court determined Pedro
Salufrania's competency before he was allowed to testify under oath. 2 The trial court's
conclusion that Pedro was intelligent and competent is fully supported by Pedro's
responsiveness to the questions propounded to him when he was already under oath:
A. Did you go here in court to testify voluntarily?
Q. Yes, Your Honor.
A. Were you not forced by your uncle to testify in his
case?
Q. No, I was not forced by my uncle.
xxx xxx xxx
A. The accused is your father?
Q. Yes, sir.
A. Do you love him?
Q. No, sir.
A. Your father is accused now of crime which carries
the penalty of death, are you still willing to testify
against him?
xxx xxx xxx
Q. Why did you say that you don't love your father

A. Because he killed my mother.

Q. And that is the reason why you hate your father
now?
A. Yes, sir. (tsn., pp. 3, 7,17, Nov. 12, 1976).
Pedro's strong sense of moral duty to tell the truth, even though it should lead to his father's
conviction, shows that he fully appreciated the meaning of an oath, which likewise proves that
he was no longer a child of tender years at the time of his testimony.
Appellant also alleges that, since Pedro changed his answer from no to yes when he was asked
whether he was threatened by his uncle to testify against his father, shows that Pedro was lying
and proves that he did not appreciate the meaning of an oath at all. 3
Again, this contention is without merit, Pedro became confused when the trial court ordered that
the original question be reformed. Pedro's confusion is apparent from the fact that when asked
the third time, he affirmed his first answer,
Q. Isn't it that your uncle threatened you with bodily
harm if you will not give statement before the police?
A. No, sir.
xxx xxx xxx
Q. But later you actually went with your uncle to the
police because you were threatened by him with bodily
harm if you will not follow him?
A. Yes, sir.
Q. Is it true that your uncle threatened you with bodily
harm if you will not give statement to the police?
A. No, sir. (tsn., pp. 6, 7, Nov. 12, 1976)
Appellant next lists the following alleged inconsistencies to discredit the testimony of Pedro.
First, Pedro testified on direct examination that his mother died in the evening of December 3.
while on cross-examination he said that she died in the morning of December 4. It must be
noted that he affirmed twice during cross-examination that his mother died on December 3, just
as he had testified during direct examination. Significantly, he did not mention December 4 as
the date when she died, as appellant would make it appear. Pedro merely answered 'yes' to the
question "And isn't it that your mother died in the early morning on that day (December 4) and
not on the evening of December 3?" 4 Thus, Pedro's answer could have resulted only from a
misapprehension of the a question, and for no other reason.
Second, appellant alleges that Pedro testified on direct examination that he saw appellant leave
the house to get a hammock after strangling the victim and then came back the following
morning. However, upon cross-examination, Pedro testified that appellant left at noon or in the
afternoon of December 4. Moreover, Pedro allegedly testified on re-direct that he saw appellant
sleep beside the dead body of his mother. Again Pedro misapprehended the question
propounded to him. Ajudicious reading of the transcript will bear this out:
Q. When did your father leave to get the hammock?
A. In the afternoon.
Q. That may be when the body was brought to Talisay.
When your father, rather, when you said that your father
left to get a hammock so that your mother may be
brought to Tigbinan what time was that?
A. About 12:00 o'clock noon. (Tsn, p. 16, Nov. 12, 1976)

One may discern that the court itself noticed that there was a missapprehension when it
commented "that maybe when the body was brought to Talisay" after Pedro answered "In the
afternoon". When Pedro answered "about 12:00 noon' he must have been referring to the time
when appellant carried his dead wife to Tigbinan. It must be noted that the question was so
worded that it could have misled Pedro to think that what was being asked was the time when
appellant brought his dead wife to Tigbinan. In fact, there is nothing inconsistent with Pedro's
testimony that he saw his father leave in the evening of December 3 and again saw him asleep
and thus not noticed appellant's coming back after securing a hammock and sleeping beside the
deceased. Pedro was therefore telling the truth when he said that, upon waking up, he saw his
father sleeping beside his dead mother. By then, appellant had already returned with the
hammock.
Third, Pedro allegedly testified on direct examination that the corpse was carried to Tigbinan in
the morning of December 4, while on cross-examination, he said it was in the evening. 5 It must
be pointed out that Pedro merely answered "yes" to a question purportedly mentioning the time
when the victim's body was transferred to Tigbinan. The question is as follows: "The corpse of
your mother was brought to the Tigbinan proper when the vigil was had in the evening of
December 4, is that right?" It is to be noted that the question's thrust is whether or not the
victim's body was brought to Tigbinan. The time it was brought was merely incidental. Thus,
Pedro may not have paid attention to the part of the question involving time. Moreover, the
phrase "in the evening" may have referred either to the time of transport of the body or to the
vigil, which could have definitely confused Pedro.
Fourth, Pedro allegedly testified on direct examination that he, together with his brothers and
sister, kept vigil beside their mother's dead body that night, while on cross-examination, he
testified that they just kept lying down and pretended to sleep. 6 There is nothing inconsistent
here. The children could have kept vigil while lying down with their deceased mother.
Appellant further cites other alleged improbabilities to discredit Pedro's testimony. Appellant
contends that it was improbable for Pedro to have seen the attack on his mother since he
testified that the room was dimly lighted, and that, while the attach was going on, he closed his
eyes pretending to sleep. 7 This contention is without merit. Even though the room was dimly
lighted, Pedro was only two (2) meters away from his parents; thus, he could easily see, as he
saw, the attack on his mother. 8 Also, although he pretended to be asleep, it was unlikely that he
kept his eyes closed all the while, as he was aware that a fight was going on. Rather, it was to
be expected that he had his eyes open and, thus, he saw the heinous crime unfold and
ultimately consumated.
Appellant alleges that he does not believe that it was fear of him that caused the delay in
Pedro's divulging the real cause of his mother's death until 10 December 1974. According to
appellant, such fear could no longer have influenced Pedro from December 6, the date he
started to live separately from him. This contention is untenable. Even though Pedro started to
live separately from his father from December 6, it cannot be said that the influence of
appellant's threat suddenly ceased from that time. It must be noted that Pedro was young and
was still very much under appellant's influence and control. The thought and memory of his
father's viciousness were still too fresh even after three days from his mother's death. The fear
that he too could be killed by appellant in like manner must have deterred him from divulging the
truth earlier.
Appellant also alleges that it was improbable for Pedro to have just watched the killing of his
mother. This contention is untenable. At that moment, when his mother was being assaulted and
strangled, Pedro must have been so shocked as to be rendered immobile and powerless to do
anything. This is a normal reaction in such a situation. Besides, it is a fact of life that different
people react differently to the same types of situations. 9 One cannot overlook that there is no
standard form of behaviour when one is confronted by a shocking occurrence. 10
Appellant next alleges that since the prosecution has failed without satisfactory explanation to
present Pedro's brother Alex who is alleged to be also an eyewitness to the killing of the victim, it
is presumed that Alex's testimony would be adverse to the prosecution if presented. This
contention is without merit. First, Alex, who is younger than Pedro by 3 years, may not have

been competent to testify due to his tender age. Second, even assuming that he was competent
to testify, his testimony could be merely corroborative. Corroboration is not necessary in this
case because the details of the crime have already been testified to by Pedro with sufficient
clarity. The failure to present all the eyewitnesses to an act does not necessarily give rise to an
unfavorable presumption, especially when the testimony of the witness sought to be presented
is merely corroborative. 11 Witnesses are to be weighed, not numbered, and it is a well
established rule that the testimony of a single witness, even if uncorroborated, but positive and
credible, is sufficient to support a conviction. 12 In any event, it is not for the appellant to say how
many witnesses the prosecution should have presented. 13
The inconsistencies magnified by appellant in the testimony of Pedro Salufrania have been
satisfactorily explained. In fact, some of them are not material since they neither touch upon the
manner of death of the victim nor question the identity of the killer, both of which were
unwaveringly testified upon by Pedro. Thus, with the alleged inconsistencies and improbabilities
explained away, Pedro's testimony remains unperturbed. Even if there were discrepancies, such
discrepancies were minor and may be considered as earmarks of verisimilitude. 14
The trial court's assessment of Pedro's testimony, as quoted hereunder, deserves more than
passing consideration:
... The testimony of eye-witness Pedro Salufrania, 13-year old son of the
victim Marciana Abuyo and her killer-spouse Filomeno Salufrania, appears
to be very clear, convincing and truthful. It is vivid as to the details of the
horrible occurence that took place at about 6:00 o'clock in the evening of
December 3, 1974 in their small house at a far away sitio of Tigbinan, Labo,
Camarines Norte, resulting in the untimely and cruel death of her (sic)
mother. He and his brother Alex were the only eyewitnesses to the gory
crime committed by their father. The credibility of this witness (Pedro
Salufrania) and his testimony was invested when, despite rigid crossexamination, the veracity of his testimony in chief was not impeached. He
remained firm and on the verge of crying, when he pointed an accusing
finger at his father during the trial. He was unshaken notwithstanding a long
and detailed cross-examination. And, there is reason to bestow complete
credence to his testimony because he had the opportunity to closely
observe how his father had deliberately and cruelly ended the life of his
mother. Despite his tender age and apparent childish innocence, this Court
believes that he can clearly perceive and perceiving, make known his
perception, precluding the possibility of coaching or tutoring by someone.
His declaration as to when, where and how the horrible incident complained
of happened is the believable version. 15
Appellant questions the competence of Dr. Dyquiangco as an expert witness, since this is the
first time that the doctor conducted an autopsy on a cadaver which had been buried for about a
week. It must be noted, however, that although this was the doctor's first autopsy under
circumstances present in this case, he had, however, conducted similar postmortem examinations on ten (10) other occasions. This would constitute sufficient experience.
Significantly, appellant did not object to the doctor's expression of medical opinions during the
trial. Being an expert in his field, the doctor is presumed to have taken all pertinent factors into
consideration with regard to the autopsy, including embalming and the state of the cadaver's
decomposition. Dr. Juan Dyquiangco Jr., was a disinterested witness in the case, and a
reputable public official in whose favor the presumption of regularity in the performance of official
duties must be applied.
Appellant further alleges that the findings of Dr. Dyquiangco and the testimony of Pedro
Salufrania do not tally. Suffice it to say that the Court finds no inconsistencies between the
findings of Dr. Dyquiangco and Pedro Salufrania's testimony. Both are consistent on material
points. Thus, the Court sees no reason to disturb the conclusions reached by the trial court
insofar as their credibility and the appellant's guilt are concerned.

Appellant's third assignment of error alleges that the trial court erred in discrediting his evidence
simply because the testimonies of the defense witnesses were consistent on material points.
Moreover, there is no showing, according to the appellant, that said testimonies were rehearsed
so as to dovetail with each other.
This contention is without merit. The Court notes, first of all, that appellant did not even bother to
discuss his defense in order to refute the massive evidence against him. This is tantamount to
an admission that he could not adequately support his version of Marciana Abuyo's death. The
trial court's reasons for rejecting the defense version, as hereunder quoted, are tenable and
sound. Thus
On the contrary, the testimonies of defense witnesses Geronimo Villan,
Angeles Liling Balce and the accused Filomeno Salufrania suspiciously
dove-tailed in every detail as to when, where and how .Marciana Abuyo died
at 6:00 o'clock in the morning of 4 December 1974, in their house at sitio
Kapagisahan Tigbinan Labo, Carnarines Norte, of stomach pain. On these
points, these witnesses and the accused made statements which seemed to
be very fresh and clear in their minds, despite the lapse of four long years.
Their exact and uniform declarations on these points, their phenomenal
recollections, without sufficient special or uncommon reason to recall,
rendered their testimonies unconvincing. If at all, their testimonies appeared
to this Court to be an eleventh hour concoction. And, as defense witnesses,
after observing them and their declarations on the witness stand, they
appeared to the Court to be untruthful and unreliable. For, despite the
synchronization of time when, the place where and how the incidence
happened, their testimonies on other material points revealed their tendency
to exaggerate and their propensity to falsehood, thus-Aside from the
accused Filomeno Salufrania, there are three other witnesses for the
defense Geronimo Villan Angeles Liling Balce and Juanita Bragais. There is
nothing in the testimony of Juanito Bragais because he did not witness how
and when Marciana Abuyo died. Francisco Repuya, who was also alleged
by Filomeno Salufrania to be present when Marciana Abuyo died, did not
testify. Accused Filomeno Salufrania never claimed that he summoned for
Angeles Liling Balce. According to him Angeles Liling Balce was not present
during the moment of death of Marciana Abuyo, for she was fetched by him
only after the death of his wife. Logically, therefore, there is no basis for the
presentation of Angeles Liling Balce that she was present during the
moment of death of Marciana Abuyo. She was merely play-acting.
Geronimo Villan who claimed he passed-by the house of Filomeno
Salufrania and saw the latter boiling water with "ikmo" and garlic, as
medicine for his wife Marciana Abuyo, who was about to give birth was
discredited by accused himself who declared he was merely boiling water
for the hot drink of his wife, who was suferring from her old stomach ailment.
In like manner, witness Geronimo Villan discredited the accused Filomeno
Salufrania, about the presence of Francisco Repuya, who allegedly
alternated with Geronimo Villan in applying the native treatments of 'hilot'
and 'bantil' to Marciana Abuyo, when throughout his testimony he
(Geronimo Villan) never mentioned the presence of Francisco Repuya.
After closely observing defense witnesses Geronimo Villan and Angeles
Liling Balce, this Court is convinced that their testimonies and accounts of
the incident are fabricated, untruthful and not worth of credence. Certainly,
they were not present immediately before and during the moment of death
of Marciana Abuyo. ...
Added to these, there is one scandalous circumstance, which to the mind of
this Court, betrays the guilty conscience of the accused. If there was nothing
revealing in the face of the deceased Marciana Abuyo, why was her face
covered by a piece of cloth by the accused. ...

Trial judges are in the best position to ascertain the truth and detect falsehoods in the testimony
of witnesses. This Court will normally not disturb the findings of the trial court on the credibility of
witnesses, in view of its advantage in observing first hand their demeanor in giving their
testimony. 16 Such rule applies in the present case.
Lastly, appellant alleges that, assuming he indeed killed his wife, there is no evidence to show
that he had the intention to cause an abortion. In this contention, appellant is correct. He should
not be held guilty of the complex crime of Parricide with Intentional Abortion but of the complex
crime of Parricide with Unintentional Abortion. The elements of Unintentional Abortion are as
follows:
1. That there is a pregnant woman.
2. That violence is used upon such pregnant woman without intending an
abortion.
3. That the violence is intentionally exerted.
4. That as a result of the violence the foetus dies, either in the womb or after
having been expelled therefrom. 17
The Solicitor General's brief makes it appear that appellant intended to cause an abortion
because he boxed his pregnant wife on the stomach which caused her to fall and then strangled
her. We find that appellant's intent to cause an abortion has not been sufficiently established.
Mere boxing on the stomach, taken together with the immediate strangling of the victim in a
fight, is not sufficient proof to show an intent to cause an abortion. In fact, appellant must have
merely intended to kill the victim but not necessarily to cause an abortion.
The evidence on record, therefore, establishes beyond reasonable doubt that accused Filomeno
Salufrania committed and should be held liable for the complex crime of parricide with
unintentional abortion. The abortion, in this case, was caused by the same violence that caused
the death of Marciana Abuyo, such violence being voluntarily exerted by the herein accused
upon his victim.
It has also been clearly established (a) that Marciana Abuyo was seven (7) to eight (8) months
pregnant when she was killed; (b) that violence was voluntarily exerted upon her by her husband
accused; and (c) that, as a result of said violence, Marciana Abuyo died together with the foetus
in her womb. In this afternoon, Article 48 of the Revised Penal Code states that the accused
should be punished with the penalty corresponding to the more serious came of parricide, to be
imposed in its maximum period which is death. However, by reason of the 1987 Constitution
which has abolished the death penalty, appellant should be sentenced to suffer the penalty of
reclusion perpetua.
WHEREFORE, as modified, the judgment appealed from is AFFIRMED. Accused-appellant is
hereby sentenced to suffer the penalty of reclusion perpetua. The indemnity of P12,000. 00
awarded to the heirs of the deceased Marciana Abuyo is increased to P30,000.00 in line with the
recent decisions of the Court. With costs against the appellant,
SO ORDERED.

G.R. No. 88724

April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No.
83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information
filed in the said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath
by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape
committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house
at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the
jurisdiction of this Honorable Court, above named accused with lewd designs and by
the use of a Batangas knife he conveniently provided himself for the purpose and with
threats and intimidation, did, then and there wilfully, unlawfully and feloniously lay with
and succeeded in having sexual intercourse with Cristina S. Abayan against her will
and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After
the witnesses for the People testified and the exhibits were formally offered and admitted, the
prosecution rested its case. Thereafter, the defense opted not to present any exculpatory
evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its
decision, the dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA
@ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt,
with the aggravating circumstances of dwelling and nightime (sic) with no mitigating
circumstance to offset the same, and considering the provisions of the Indeterminate
Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS and ONE
(1) DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR,
maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand
(P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay
costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p.
102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant
found guilty of the crime of rape, and consequently, sentenced to suffer imprisonment
of reclusion perpetua and to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29,
1988 decision and forwarded the case to this Court, considering the provision of Section 9,
paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3,
subparagraph 1 of the Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):

Complainant Cristina S. Abayan was a 19-year old freshman student at the St.
Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine
Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house.
Her classmates had just brought her home from a party (p. 44, tsn, May 23, 1984).
Shortly after her classmates had left, she knocked at the door of her boarding house
(p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She
then recognized appellant who was a frequent visitor of another boarder (pp. 89, ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since
the door which led to the first floor was locked from the inside, appellant forced
complainant to use the back door leading to the second floor (p. 77, ibid). With his left
arm wrapped around her neck and his right hand poking a "balisong" to her neck,
appellant dragged complainant up the stairs (p. 14, ibid). When they reached the
second floor, he commanded her to look for a room. With the Batangas knife still
poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall.
With one hand holding the knife, appellant undressed himself. He then ordered
complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off
her bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his
penis and insert it in her vagina. She followed his order as he continued to poke the
knife to her. At said position, however, appellant could not fully penetrate her. Only a
portion of his penis entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this
position, only a small part again of his penis was inserted into her vagina. At this
stage, appellant had both his hands flat on the floor. Complainant thought of escaping
(p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and
climbed the partition. When she saw him inside the room, she ran to another room.
Appellant again chased her. She fled to another room and jumped out through a
window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in
front of the boarding house, and knocked on the door. When there was no answer,
she ran around the building and knocked on the back door. When the policemen who
were inside the building opened the door, they found complainant naked sitting on the
stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and
wrapped it around her. When they discovered what happened, Pat. Donceras and two
other policemen rushed to the boarding house. They heard a sound at the second
floor and saw somebody running away. Due to darkness, they failed to apprehend
appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial
Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a
Medical Certificate (Exhibit "A") which states:
Physical Examination Patient is fairly built, came in with loose clothing
with no under-clothes; appears in state of shock, per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.

Breast Well developed, conical in shape with prominent nipples; linear

abrasions below (L) breast.
Back Multiple pinpoint marks.
Extremities Abrasions at (R) and (L) knees.
Vulva No visible abrasions or marks at the perineal area or over the
vulva, errythematous (sic) areas noted surrounding vaginal orifice,
tender, hymen intact; no laceration fresh and old noted; examining finger
can barely enter and with difficulty; vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the
accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore
casted doubt to its candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies
which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far
from being badges of fabrication, the inconsistencies in their testimonies may in fact be
justifiably considered as manifestations of truthfulness on material points. These little deviations
also confirm that the witnesses had not been rehearsed. The most candid witnesses may make
mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility
(People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the
testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as
adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of
Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact,
complete uniformity in details would be a strong indication of untruthfulness and lack of
spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one
of the alleged inconsistencies deserves a little discussion which is, the testimony of the victim
that the accused asked her to hold and guide his penis in order to have carnal knowledge of her.
According to the accused, this is strange because "this is the only case where an aggressor's
advances is being helped-out by the victim in order that there will be a consumation of the act."
(p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended
there. The victim testified further that the accused was holding a Batangas knife during the
aggression. This is a material part of the victim's testimony which the accused conveniently
deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial
court on the credibility of witnesses should be accorded the highest respect because it has the
advantage of observing the demeanor of witnesses and can discern if a witness is telling the
truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's
finding regarding the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be
desired as to the sincerity of the offended party in her testimony before the court. Her
answer to every question profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication hungry and thirsty for
the immediate vindication of the affront to her honor. It is inculcated into the mind of
the Court that the accused had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show
that rape was committed provided her testimony is clear and free from contradiction and her

sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987,
153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People
v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not
only state that she was raped but she testified convincingly on how the rape was committed. The
victim's testimony from the time she knocked on the door of the municipal building up to the time
she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as
indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the
unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear
abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior
neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof
of struggle against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court
even inspected the boarding house and was fully satisfied that the narration of the scene of the
incident and the conditions therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry
the weight of both accused and offended party without the slightest difficulty, even in
the manner as narrated. The partitions of every room were of strong materials,
securedly nailed, and would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et
al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p.
55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the
ground which was correctly estimated to be less than eight (8) meters, will perhaps
occasion no injury to a frightened individual being pursued. Common experience will
tell us that in occasion of conflagration especially occuring (sic) in high buildings,
many have been saved by jumping from some considerable heights without being
injured. How much more for a frightened barrio girl, like the offended party to whom
honor appears to be more valuable than her life or limbs? Besides, the exposure of
her private parts when she sought assistance from authorities, as corroborated, is
enough indication that something not ordinary happened to her unless she is mentally
deranged. Sadly, nothing was adduced to show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We
ruled that:
What particularly imprints the badge of truth on her story is her having been rendered
entirely naked by appellant and that even in her nudity, she had to run away from the
latter and managed to gain sanctuary in a house owned by spouses hardly known to
her. All these acts she would not have done nor would these facts have occurred
unless she was sexually assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to
corroborate the allegations in the complaint and the non-presentation of the medico-legal officer
who actually examined the victim. Suffice it to say that it is up to the prosecution to determine
who should be presented as witnesses on the basis of its own assessment of their necessity
(Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R.
No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually
examined the victim, the trial court stated that it was by agreement of the parties that another
physician testified inasmuch as the medico-legal officer was no longer available. The accused
did not bother to contradict this statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall
flat on its face. Some were not even substantiated and do not, therefore, merit consideration. We
are convinced that the accused is guilty of rape. However, We believe the subject matter that
really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper.
The trial court was of the belief that there is no conclusive evidence of penetration of the genital
organ of the victim and thus convicted the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of
rape:
Art. 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, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.
xxx

xxx

xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a
woman (Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. Consummated felonies
as well as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the
acts of execution which would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.
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.
Correlating these two provisions, there is no debate that the attempted and consummated
stages apply to the crime of rape.1wphi1 Our concern now is whether or not the frustrated
stage applies to the crime of rape.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim
he actually attains his purpose and, from that moment also all the essential elements of the
offense have been accomplished.Nothing more is left to be done by the offender, because he
has performed the last act necessary to produce the crime. Thus, the felony is consummated. In
a long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v.
Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996,
August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of
rape, perfect penetration is not essential. Any penetration of the female organ by the male organ
is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or
laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there
is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al.,
53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission of a felony directly by overt acts.
Taking into account the nature, elements and manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be
committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eria 50 Phil.
998 [1927] where We found the offender guilty of frustrated rape there being no conclusive
evidence of penetration of the genital organ of the offended party. However, it appears that this
is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions.
Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act
No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which
provides, in its penultimate paragraph, for the penalty of death when the rape is attempted
orfrustrated and a homicide is committed by reason or on the occasion thereof. We are of the
opinion that this particular provision on frustrated rape is a dead provision. The Eria
case, supra, might have prompted the law-making body to include the crime of frustrated rape in
the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the
victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that
the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact,
he tossed back to the offended party the answer as to whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as
interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of
uncertainty whether there was penetration or not. It is true, and the Court is not
oblivious, that conviction for rape could proceed from the uncorroborated testimony of
the offended party and that a medical certificate is not necessary (People v. Royeras
People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot
be applicable to the instant case. The testimony of the offended party is at variance
with the medical certificate. As such, a very disturbing doubt has surfaced in the mind
of the court. It should be stressed that in cases of rape where there is a positive
testimony and a medical certificate, both should in all respect, compliment each other,
for otherwise to rely on the testimony alone in utter disregard of the manifest variance
in the medical certificate, would be productive of mischievous results.

The requisites of a frustrated felony are: (1) that the offender has performed all the acts of
execution which would produce the felony and (2) that the felony is not produced due to causes
independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil.
209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is
readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside
cause from performing all of the acts which should produce the crime. In other words,
to be an attempted crime the purpose of the offender must be thwarted by a foreign
force or agency which intervenes and compels him to stop prior to the moment when
he has performed all of the acts which should produce the crime as a consequence,
which acts it is his intention to perform. If he has performed all of the acts which
should result in the consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential element which
distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been performed
which should result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of the acts
which should produce the crime. He is stopped short of that point by some cause
apart from his voluntary desistance.

The alleged variance between the testimony of the victim and the medical certificate does not
exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous
(which means marked by abnormal redness of the skin due to capillary congestion, as in
inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the
genital organ of the victim. He merely testified that there was uncertainty whether or not there
was penetration. Anent this testimony, the victim positively testified that there was penetration,
even if only partially (pp. 302, 304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx

xxx

xxx

Q What do you mean when you said comply, or what act do you referred (sic) to, when
you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis
of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167
SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v.
Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's
testimony is merely corroborative and is not an indispensable element in the prosecution of this
case (People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the
accused because after a thorough review of the records, We find the evidence sufficient to prove
his guilt beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death.
The trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the
proper imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987
Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989,
that the cited Constitutional provision did not declare the abolition of the death penalty but
merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not
imposed the death penalty whenever it was called for under the Revised Penal Code but instead
reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February
14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3,
is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112
SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People
v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused
Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.

G.R. No. 79011 February 15, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SEMION MANGALINO y LUMANOG, accused-appellant.
The Office of the Solicitor General for plaintiff-appellee.

the accused), and Laura's nephew, Armando Ayroso, were allegedly playing chess 4 in the sala
of the apartment. Ramil, a witness for the defense, testified that he did not hear or see the
accused calling out to Marichelle and motioning her to go inside his bedroom or "sleeping
quarters" at one end of the sala of the ground floor, opposite the kitchen.
Once inside the bedroom, the accused handed the girl a two peso bill (P2.00) 5 and told her not
to tell anybody about his calling her to his bedroom. The girl assented. 6

Adriatico T. Bruno for accused-appellant.

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

SARMIENTO, J.:

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

This is an appeal from the decision of the Regional Trial Court of Manila, 1 in which the accused
was convicted of statutory rape under Article 335, paragraph 3 of the Revised Penal Code, 2 and
sentenced to suffer the penalty of reclusion perpetua and to pay the offended parties the sum of
P50,000.00 as moral damages. The complaint signed by the father of the victim, Tomas Carlos y
Valente states:
xxx xxx xxx
That on or about March 7, 1984, in the city of Manila, Philippines, the said
accused did then and there wilfully, unlawfully and feloniously lie with and
have carnal knowledge of the undersigned complainant's daughter
Marichelle, a minor, 6 years of age, against her will and consent.
Contrary to Law.
The following facts are fully supported by the evidence on record, mainly the testimonies of the
victim herself and her mother, Bernardine, Dr. Roberto V. Garcia, and Staff Sergeant Mario Oser,
as well as the testimonies of the witnesses for the defense Ramil las Dulce, Linda Ayroso,
and the accused himself.
At about 10 or 11 o'clock in the morning of March 7, 1984, Marichelle Carlos, 6 years old and a
Grade I pupil at the Moises Salvador Elementary School, Manila, was playing "takbuhan" alone
at the first level (ground floor) of the two-story apartment of the accused, Semion Mangalino, 53,
married to 55-year old Laura Gasmin, childless, a security guard by occupation, and residing at
1597-D Honradez Street, Sampaloc, Manila. 3 At the time of the incident, Laura was in Balayan,
Batangas, having left the day before the incident. The accused and Marichelle's parents (Tomas
and Bernardine Carlos) are neighbors, their respective rented apartments being almost opposite
each other.
During the morning of March 7, 1984, Ramil las Dulce, a 16-year old high school student
occupying the second floor of the apartment, for free and free board, too, a grandson of the
accused (his mother, Edita Onadia who lived with him upstairs, being an adopted daughter of

Hearing the call of Michael, the victim put on her garments, and on the way home noticed that
her jogging pants were wet. Upon reaching her house, Marichelle narrated to her mother what
had happened, saying, "Si Mang Semion nilagay ang daliri niya sa pikpik ko," and "yong titi ni
Mang Semion nilagay sa pikpik ko." 12
At about 2:30 that same day, an enraged Bernardine submitted her daughter to a physical and
genital examination, 13 the results of which National Bureau of Investigation (NBI) Medico Legal
Officer Roberto V. Garcia certified as follows:
No evidence (or) sign of any extragenital physical injury noted on the body
of the subject at the time of examination.
Hymen, intact and its orifice, narrow.
Sign of recent genital trauma, present.
Dr. Garcia opined that the vestibular mucosa contusion could have been caused by a hard
object like an erected penis and such bruises at such part of the girl's vagina if caused by an
erected penis would be an indication of an unsuccessful penetration. He discounted the
probability of an accident, like bumping at an edge of a chair, or any blunt object, since there
was no contusion of the labia. 14
The confrontation between the victim and the accused took place when Staff Sergeant Mario
Oser of the Waterfront Unit, Reaction Strike Force, Philippine Constabulary Metropolitan
Command (P.C. Metrocom), who conducted the initial investigation, invited the accused to the
P.C. Headquarters. There, Marichelle Identified Semion Mangalino as the man who had abused
her.

The accused vehemently denied having ever abused Marichelle. He argued that the bruises in
the complainant's vestibular mucosa may have been self-inflicted. Marichelle, who was
constantly running about, might have bumped her pelvis against a chair, which explained the
absence of signs of contusions in the labia.
Curiously, the young victim candidly testified that she felt no pain when the accused was
allegedly trying to insert his penis into her vagina. She did not cry in pain nor shout for help
when she was being abused. 15
Before the Court, the appellant assigned four errors in his brief which he claims the trial court
committed, to wit:
ASSIGNMENT OF ERRORS
ERROR I
THE TRIAL COURT ERRED IN NOT FINDING THAT, CONSIDERING THE
PLACE, THE TIME, AND THE PRESENCE OF SO MANY PEOPLE
WITHIN THE IMMEDIATE VICINITY WHERE THE ALLEGED CRIME WAS
COMMITTED, THE ACCUSED COULD NOT HAVE SEXUALLY ABUSED
MARICHELLE G. CARLOS, THE COMPLAINING WITNESS HEREIN;
ERROR II
THE TRIAL COURT ERRED IN NOT FINDING THAT THE BRUISES
THROUGH THE VESTIBULAR MUCOSA OF THE PRIVATE PART OF
MARICHELLE G. CARLOS IS THE RESULT OF AN ACCIDENT,
CONSIDERING THAT ON MARCH 7,1984, SHE WAS IN THE GROUND
FLOOR OF THE APARTMENT OF HEREIN ACCUSED PLAYING
RUNNING AROUND "TAKBUHAN";
ERROR III
THE TRIAL COURT ERRED IN ORDERING THE ACCUSED TO PAY THE
OFFENDED PARTIES, MARICHELLE G. CARLOS AND HER PARENTS,
TOMAS CARLOS AND BERNARDINE GANLAC CARLOS, THE SUM OF
P50,000.00 AS AND FOR DAMAGES;
ERROR IV
THE TRIAL COURT ERRED IN FINDING THAT THE ACCUSED IS GUILTY
OF THE CHARGE ALLEGED IN THE INFORMATION, INSTEAD OF
ACQUITTING HIM WITH COSTS DE OFFICIO. 16
The defense vigorously argues against the probability of the rape having been committed on two
points: 1) The commission of the crime was impossible, taking place as claimed, in broad

daylight, and 2) there were at least eight persons including the accused and the complainant
on the ground floor where the rape was supposedly consummated.
The commission of the crime, submits the defense, was impossible, considering that it was
allegedly committed at noontime, which would have readily exposed the act of rape to anyone
glancing in the direction of the place where the suspect was abusing the victim.
On the second point, it is contended that the rape could not have been accomplished with so
many persons present in the apartment. As it was, Ramil and Armando were playing chess near
the front door of the apartment. Also, Linda Ayroso, 29, married to Armando, and a housewife,
was washing laundry in the kitchen. Furthermore, the accused was cooking lunch also in the
kitchen, and so could not have flitted from the kitchen to his room to execute his evil design
without anyone noticing his absence.
The defense brings to our attention the physical layout of the apartment of the accused. The
place where the alleged sexual abuse took place was not even a room, he asserts. The
apartment had neither a door nor walls, and what divided the so-called room from the living
room was a wooden folding divider which was full of holes, "butas-butas." 17
Finally, the accused assails the lower court's slapping of damages based on the claims of
prosecution witnesses of suffering mental anguish, moral shock, and a "besmirched reputation."
Since he did not commit the offense attributed to him, the award of P50,000.00 as moral
damages is unwarranted. Consequently, he prays he must be exculpated.
We deny the appeal except the amount of the award of damages which we reduce to
P20,000.00 conformably to prevailing jurisprudence.
We rule that statutory rape had been committed beyond the shadow of a doubt.
The gravamen of the offense of statutory rape as provided in Article 335, paragraph 3 of the
Revised Penal Code is the carnal knowledge of a woman below 12 years of age. 18 Marichelle, a
little over 6 years of age at the time, was raped. Beyond that, proof of intimidation or force used
on her, or lack of it, is immaterial.
The findings of Dr. Roberto V. Garcia, the NBI Medico Legal officer, who testified for the People,
conclude that rape could have been perpetrated. To reiterate, he certified the existence of
indications of recent genital trauma.Under normal condition, the color of the vestibular mucosa is
pinkish. The doctor found the vestibular mucosa of the victim to be dark red. 19 The forcible
attempt of an erected penis to have complete penetration caused the 3 1/2-centimeter contusion
prior to the hymen. The government doctor further discounted the probability of an accident,
such as bumping the edge of a chair, or violent contact with a blunt object, as there was no
contusion of the labia.
The penile-vaginal contact without penetration was due to the one- centimeter diameter opening
of Marichelle's hymen. Usually, the average adult's hymen measures 2.8 to 3 centimeters in
diameter, making it compatible to, or easily penetrable by, an average-size penis. The victim
being of a tender age, the penetration could go only as deep as the labia. 20 In any case, the
Court has consistently held that for rape to be committed, full penetration is not required. It is

enough that there is proof of entrance of the male organ within the labia or pudendum of the
female organ. 21Indeed, even the slightest penetration is sufficient to consummate the crime of
rape.

Witness

The relationship between the offender and the victim as neighbors remains unrebutted. This
relationship has an important bearing on the medico-legal finding, because it explains the
absence of visible signs of physical injuries. 22 The close relationship of Semion Mangalino to
Marichelle as a nearby neighbor of the Carlos family and the degree of respect that
Semion may have had in Marichelle's life, helps explain why physical force was not employed.
The mere size of the accused, a robust security guard, and 163 centimeters (five feet and four
inches) in height, could have easily immobilized the victim who was at that time only one
hundred eight centimeters tall and weighing 31.818 kilos (70 lbs.)

Court

a I was running around "takbuhan" madam.

q Were you running outside or inside the house of the

accused
Witness
a Inside the house of Semion Mangalino, your Honor.

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

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

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

a Yes, madam.
q Why did he called (sic) for you?

xxx xxx xxx

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

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

Witness (Marichelle)
Fiscal Salvania
a While I was playing Mang Simeon called me madam.
q When you were asked to go to his bedroom, did he
give you anything?

Court
q Why, were you playing alone?

Witness
a Yes madam.

Witness

q What did he give to you?

a Yes, your Honor.

a He gave me P2.00, madam.

Fiscal Salvania
q What were you playing?

Court

q Did you accept that P2.00?

Witness

a Yes, your Honor.

Fiscal Salvania

a Yes, your Honor.

Fiscal Salvania

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

Witness

q When you were asked to go inside the higaan of

Semion Mangalino, did you go?

a He also removed my panty madam.

Fiscal Salvania

Witness
q What did he do with his finger?
a Yes, madam.
Court
q Now, when you went inside the higaan, what did he
do to you?

She said he inserted.

a He inserted one of his fingers in my private part

madam.
Fiscal Salvania

q Was one of the fingers of the accused inserted in your

private part?
Witness

q You stated that you were wearing jogging pant?

a Yes, your Honor.

Witness

q What did he do?

a Yes, madam.

a He kissed me your Honor.

q What happened to your jogging pant?

q Where did he kissed (sic) you?

a He first removed my jogging pant, madam.

a In my breast your Honor.

q After removing your jogging pant, did he removed

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

Fiscal Salvania
q Did he remove your T-shirt?
Witness

Court

a No madam.
q Beside the jogging pant you are (sic) wearing, were
you also wearing a panty?

Witness

xxx xxx xxx

Court

q Did Semion Mangalino removed (sic) his pant?

a I did not feel anything painful, your Honor.

Witness

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

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

a Yes, your Honor.

xxx xxx xxx

q What was your position when Semion Mangalino was

trying to insert his penis into your private part?
q Do you know what is penis?
Witness
a Yes, your Honor.
a I was lying down, your Honor.
q Did the accused put-out his penis while he was
inserting his finger in your private part and kissing you
in the breast?

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

a He put-out his penis while he was kissing and his one

fingers (sic) inserted in my private part, your Honor.

Witness

q What did he do with his penis?

a Semion Mangalino, your Honor.

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

Honor.

q Did you not cry?

a I did not cry, your Honor.

Court
q Was the accused able to insert his penis into your
private part?
Witness
a He was not able, your Honor.

q Did you shout?

a I did not shout, your Honor.
q Why, were there persons inside the house while
Semion Mangalino was doing all these things to you?
a There were no other persons except myself and
Semion Mangalino your Honor. 23

xxx xxx xxx

q How do you feel or did you feel pain while the
accused was trying to insert his penis into your private
part?
Witness
a I did not feel anything, your Honor.
q Did you feel pain?

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

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

innocence may have facilitated the perpetration of the clime, and the divider, although "butasbutas," was sufficient to conceal the commission of the bestial act.
In several instances, this Court held that rape can be committed even in places where people
congregate: in parks, along the road side, within school premises, and even inside a house
where there are other occupants. 27The apartment of the accused was no exception. Lust is no
respecter of time or place.
In fine, we hold that the trial court did not commit any reversible error in finding the accusedappellant guilty beyond reasonable doubt of the crime of statutory rape.
No amount of money can soothe the pain and anguish suffered by a victim of rape and her
family. Still, we cannot impose the damages of P50,000.00 on the accused. As stated earlier, we
reduce the amount to P20,000.00.
WHEREFORE, the appealled decision is AFFIRMED with the MODIFICATION above indicated.

It is even more difficult to conceive of Mrs. Bernardine Carlos trumping up a charge of the rape
of her daughter and subject herself and her daughter to humiliation, to fear, and anxiety, and
community censure that she and her daughter will have to bear for the rest of their
lives, 24 simply in consideration of P50,000.00, the amount asked for in moral damages.
The trial court's findings of facts which rely on the credibility of witnesses are entitled to respect,
if not finality. A painstaking examination and review of the records of the case yield no fact or
circumstance that would have contradicted the findings of the trial court.
The alleged inconsistencies refer to minor details and do not at all touch upon the basic aspects
of the who, the how, and the when of the crime committed. Minor discrepancies in the
testimonies of Marichelle and her mother are but natural, and even enhance their credibility as
witnesses because these discrepancies indicate that the responses given were honest and
unrehearsed. 25 In appreciation of the testimony of the victim, due regard must be accorded to
her tender age.
The contention of the accused that he never left the kitchen is flawed. The facility of a quick tap
to his room can not be discounted considering that kitchen where he was supposed to have
been cooking was only a few meters away. That the presence of Ramil and Armando who were
allegedly playing chess in the kitchen made the commission of the crime impossible, even if
were true, falls flat in the face of the game of chess being one that requires utmost
concentration; that being so, it is logical for both players to be concentrating on the game when
the accused lured Marichelle into the room. We hold that when Ramil, Armando, and Linda were
engrossed in what they were doing, that the accused surreptitiously enticed Marichelle into
his higaan, and that the short distance between the kitchen and the "room" a mere distance
of 5 to 6 meters is no obstacle to the satiation of his carnal lusting after the child.
The accused claims it was impossible for him to have raped the victim in the presence of other
people, more so, in a place without privacy. We do not agree. Rape was in fact committed. It is
quite possible for an experienced man, like the accused, to consummate rape in just one minute,
without attracting the attention of the people inside the apartment. 26 Marichelle's complete

Costs against the accused-appellant.

SO ORDERED.

G.R. Nos. L-44859-60 April 27, 1984

THE
PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
ABELARDO BALBUENA and JUANITO TORRES, accused-appellants.

Upon arraignment, both accused, assisted by counsel, waived the reading of the information and
entered the plea of not guilty. Upon motion of the Fiscal, on the ground that the complainant in
both cases is one and the same person, the court conducted a joint trial of the two cases.
The evidence of the prosecution as summarized in the People's Brief established that: t.
hqw

The Solicitor General for plaintiff-appellee.

Luciano D. Valencia for accused-appellants.

GUERRERO, J.:+.wph!1
Appeal from the decision of the Court of First Instance of Rizal, Branch XII, Caloocan City,
promulgated on August 6, 1976, in Criminal Cases Nos. C-6848 (75) and C-6849 (75) convicting
herein accused Abelardo Balbuena and Juanito Torres for the crime of RAPE and sentencing
each of them to suffer in each case the penalty of reclusion perpetua and to pay the costs.
The two separate informations dated November 20, 1975 filed by Asst. City Fiscal Romeo C.
Cortes upon the complaint of the offended party, Elvira Polintan, single, 20 years of age, a senior
criminology student of the Philippine College of Criminology, against the two accused, read as
follows:
CRIMINAL CASE NO. C-6848 (75) t.hqw
That on or about the 28th day of August, 1975, in the City of Caloocan,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused Abelardo Balbuena y Garcia, conspiring and confederating with
Juanito Torres y Villanueva, by means of force, did then and there wilfully,
unlawfully and feloniously have carnal knowledge of the complainant Elvira
Polintan against the latter's win and consent.
Contrary to law.
CRIMINAL CASE NO. C-6849 (75) t.hqw
That on or about the 28th day of August, 1975, in the City of Caloocan,
Philippines and within the jurisdiction of this Honorable Court, the said
accused Juanito Torres y Villanueva, conspiring and confederating with
Abelardo Balbuena y Garcia, by means of force, did then and there willfully,
unlawfully and feloniously have carnal knowledge of the complainant Elvira
Polintan against the latter's win and consent.
Contrary to law.

On August 28, 1975, at around 10:00 o'clock in the evening, complainant

Elvira Polintan was in an apartment located at P. Zamora St., Caloocan City,
talking with appellant Juanito Torres, a friend of long standing (pp. 1-2,
t.s.n., Feb. 10, 1976). After a while, some friends of Torres arrived. Torres
and his friends agreed to drink liquor. They invited Elvira Polintan to join
them (p. 2, t.s.n., Id.). Because Elvira had not seen appellant Torres for
quite sometime, she accepted the invitation. They decided to hold the
drinking party at the apartment of appellant Abelardo Balbuena which was
also situated at P. Zamora St., Caloocan City, and adjacent to the house of
appellant Juanito Torres (Ibid.). The ground floor of Balbuena's apartment
was formerly a billiard hall but was no longer used as such (p. 10, t.s.n., Id.).
Inside the billiard hall where the drinking party was held, Torres introduced
Balbuena to Elvira Polintan (lbid.). Aside from the two appellants and Elvira
Polintan there were three other male persons in the group (p. 2, t.s.n., Id.).
They drank gin. (lbid.)
After Elvira Polintan consumed a half glass of gin, she felt dizzy (Ibid.). She
asked permission from the group that she would take a rest. She lay down
in a bench inside the billiard hall (p. 5, t.s.n., Feb. 24, 1976). Then, appellant
Balbuena undressed the complainant by removing her pants and briefs (pp.
4, 19, 21, t.s.n., Id.) and spread her legs wide apart (p. 22, t.s.n., Id.). At this
juncture, appellant Torres was holding Elvira's hands. Balbuena then went
on top of the billiard table (p. 16, t.s.n., Feb. 24, 1976). In the meantime,
complainant feebly tried to extricate herself even as appellant Balbuena
kept on threatening her and her family with death if she would not yield her
body to him (Ibid.). Finally, Balbuena succeeded in having carnal knowledge
with complainant (pp. 22-23, t.s.n., Id.).
After appellant Balbuena had satisfied his lustful desires, he went down the
billiard table. Immediately thereafter, appellant Torres went up the billiard
table. Appellant Balbuena held complainant's hands (p. 4, t.s.n., Feb. 16,
1976). Despite complainant's continued struggle by twisting her body and
kicking her feet, she simply could not overpower the appellants, so that
appellant Torres also succeeded in consummating the sexual act with her
(p. 5, t.s.n., Id.). In the course of the sexual act, appellant Balbuena covered
the mouth of complainant to prevent her from shouting (p. 5, t.s.n., Id.). After
she was raped, she sat down on the corner and cried. Appellant Balbuena
told her "remember what I told you (referring to the threat that he will kill
complainant and her parents)." (Ibid.). After about five minutes and when
the attention of the appellants were distracted, complainant ran away and
proceeded to her house. (Ibid.).

On October 19, 1975, she related her sad experience to her mother (p. 7,
t.s.n., Feb. 10, 1976). The following day, October 20, 1975, she went to the
police headquarters at Caloocan City and gave a statement (Exhibit "A")
narrating the incident of August 28, 1975 (p. 6, t.s.n., Id.). Also on October
20, 1975, she filed a complaint (Exhibits "B" and "C") for rape in the City
Fiscal's Office at Caloocan City against the appellants.
On the same date, complainant was examined by Dr. Maximo Reyes,
medico-legal officer of the National Bureau of Investigation who issued a
medical certificate (Exhibit "D", p. 46, rec.) with the following findings:
General Physical Examination: t.hqw
Height: 156 cm. Weight: 96 lbs.
Normally developed, fairly nourished,
coherent, cooperative subject.

conscious,

Breast fully developed, hemispherical and soft. Areola,

dark brown, 3.0 cm. in diameter.
No evident sign of extragenital physical injury noted on
the body of the subject.
Genital Examination: t.hqw
Pubic hairs, fully grown and abundant. Labia majora
and minora both gaping. Fourchette, lax Vestibular
mucosa, pinkish. Hymen, thick, moderately wide, with
multiple natural notches and a healed superficial
laceration at 5:00 o'clock position corresponding to the
face of the watch; edges beginning to round up and
hardly coeptable Hymenal orifice originally annular and
admits a tube 3.0 cm. in diameter with moderate
resistance. Rugosities, shallow, and vaginal walls lax.
CONCLUSIONS: t.hqw

Accused Juanito Torres testified that he had known, the complainant for the past three years
prior to the alleged commission of rape as she used to be with him in going places and having
occasional drinking sprees of beer, gin and coke, "pagka may katuwaan", with a group of male
companions; 2 that at about 4:00 o'clock in the afternoon of August 28, 1975, he saw
complainant and requested her to accompany him to his cousin who resides at Gen. Luna
Street, Caloocan City, to request his cousin to write a letter for him, and she acceded to come
along; 3 that however, he went alone to see his cousin while complainant stayed behind at the
fire department and then he went home without her at about 6:00 o'clock in the afternoon of the
same day. 4
In denying any participation in the rape charge, accused Torres disclaimed his presence at the
drinking party held inside the billiard hall. He denied that he usually drives a public utility jeepney
from the corner of 10th Avenue, Rizal Avenue Extension, up to Biglang-Awa from 6:00 o'clock in
the evening up to 12:00 o'clock midnight. 5 He declared further that complainant, a tomboy, had
a previous amorous relation with his cousin, Rhodora Torres, and that she maintains a grudge
against him for advising his cousin to part ways with her which resulted in the separation of his
cousin and the complainant. 6 He said that after August 28, 1975, he had on seven or nine
occasions seen the complainant who when greeted simply ignored him. 7
On the other hand, accused Abelardo Balbuena also denied the accusation of rape against him
and his participation at the drinking spree with complainant. He testified that he first met
complainant upon being introduced to each other on August 28, 1975 at his father's billiard hall
situated at P. Zamora Street, Caloocan City; that after conversing with her for about five minutes,
he left complainant in the company of three male companions and that they had a drinking spree
at the billiard hall. They went to the upper floor of their house to eat supper and only came down
later to ask her and her companions what time they would leave the house, to which she
answered that it would not take long, and immediately thereafter he went upstairs again to do
something else. 8
As indicated earlier, both accused were found guilty and sentenced in each case to suffer the
penalty of reclusion perpetua and to pay the costs.
Appealing to this Court, accused-appellants submit the following assignment of errors:t.
hqw
I
The lower court erred in not declaring Elvira Polintan as an incredible
complaining witness in her narration of being raped by the accused.

1. No evident sign of extragenital physical injury noted

on the body of the subject.

II

2. She could have had sexual intercourse with a man

on or about the alleged date of commission. 1

The lower court erred in not declaring Elvira Polintan as a willing victim in
the crime of rape, hence, the element of force is absolutely wanting.

Both accused-appellants rest their defense on denial and alibi.

In raising the first assigned error, appellants contend that the lower court should have declared
complainant Elvira Polintan as an incredible witness in her narration of being raped by the
accused, pointing out that there was a delay of more than one month before the incident was

reported to the police authorities; that complainant used to go with male friends, imbibing
alcoholic beverages; that no bodily injuries were noted in the medical certificate (Exhibit "D");
that her dress or underwear was not torn and that she was able to give a detailed description of
what transpired during the night including the acts and movements of the appellants.
On the question of delay which the defense submits to be construed to mean that the Court
should doubt the very existence of the commission of the crime, We agree and affirm the ruling
of the trial court that the delay in filing the complaint was reasonable. The reasoning of the Court
that "(i)t is not easy for a Filipina to easily decide whether to come out in the open in a situation
where public contempt and ridicule would result in the prosecution of a case. The very fact that
she came forward in the case is persuasion that the act had been committed. The complainant
stands to gain nothing with her revelation and the consequent punishment of the accused," is
well-grounded, considering the inate modesty of Filipina womanhood and the inherent
reluctance of the Filipino family to be exposed to the rigors of a long drawn out trial scandalizing
the family's good name and honor.
It is quite true that the unexplained delay in the filing of a criminal complaint for rape may result
in an adverse inference against the complainant's sincerity and credibility, as in People vs.
Pimentel, 118 SCRA 695, where the formal complaint was lodged against appellant after the
lapse of 39 days and the Court said it taxes one's credibility that complainant could be able, after
a long period of time, to feign a composed and serene posture after the harrowing experience
she had undergone. But that is not true in the instant case. The victim herein has rendered a
credible and satisfactory account for her delay in reporting the incident to her mother and in
seeking the help of the authorities. The complainant unequivocably testified that she was fearful
over the threats of the accused-appellants that they would kill her and her parents should she
report the matter to the police, especially so since she resides near the houses of the accusedappellants and she has to pass their houses in going out. 9She also expressed her worry that her
ongoing classes at school would be disrupted upon her filing of the complaint. 10 The fear and
the shock engendered by the threats as well as her desire to avoid further shame is more than
sufficient to restrain the offended party from immediately exposing her sad experience. 11
We reject appellants' contention that complainant Elvira Polintan is an incredible witness
because she used to go with male friends, imbibing alcoholic beverages. This is not unusual,
considering that complainant is admittedly a "'tomboy". As observed by the trial court, the
demeanor of the complainant at the witness stand shows: t.hqw
Admittedly, the complainant is a 'tomboy'. Her appearance is most
revealing. She is not exactly ugly. These considerations notwithstanding,
and perusing the background leading to the incidents in question, it cannot
be disputed that the two accused were at the time of the incident, drunk.
Such being their state, it is not-improbable to say that the physical
appearance of the woman would not bar these persons from the
commission of the offense. (See CFI Decision)
And neither the absence of any injury being noted in the medical certificate nor that her dress or
underwear was not torn supports appellants' submission that complainant is an incredible
witness. The absence of any injury is explained by the fact that the physical examination of the
victim was made after more than one month had elapsed from the commission of the crime and
moreover, We find no evidence that complainant was injured in her struggle to resist the acts of

the accused. And there was no torn dress or underwear because she was then wearing pants
and brief at the time of the incident. 12
The general rule on the credibility of the victim's testimony in a rape case is well-stated in People
vs. Pimentel, 118 SCRA 695 where the Court, speaking through Justice Escolin, held as
follows: t.hqw
In weighing the testimony of the complainant in an accusation for rape, the
rule often applied by the courts is that the testimony of the victim, whose
chastity has not been questioned, is generally accorded credence because
such offended party would not have fabricated facts that could bring shame
and dishonor on her. Nor would she disclose her humiliating experience at a
public trial, and thus give rise to gossip and slander, unless her motive was
to bring to justice the person who grievously wronged her.
Such a rule has been established because the detestable crime of rape in which a man shows
his most heinous side is one of the hardest to prove. Indeed, the testimony of the victim most
often is the only one available to prove directly its commission and corroboration by other
witnesses would in certain cases place a serious doubt as to the probability of its commission.
When a woman testifies that she has been raped, she says all that need to be said to signify that
this crime has been committed. (U.S. vs. Ramos, 1 Phil. 81).
In its decision, the trial court said that it "has gone at length with the testimony of Elvira Polintan
in order to determine whether the same is conclusive, logical and probable. The complainant
when she testified before the court to narrate what had happened on the night of August 28,
1975, appeared to be credible as a witness, and her account of the incident likewise left in the
judicial mind an affirmative answer whether a woman of complainant's stature could be the
object of this heinous offense." The court further added: "Then too, the complainant narrated the
incident in a straight forward and convincing manner and despite the lengthy cross-examination
to which she has been put too, she was steadfast in the fact that she was the victim of rape.
Moreover, the very fact that she came out forward in this case is in itself a silent but persuasive
evidence of an outrage done upon her honor. Considering these "evidences on record," there is
nothing in the defense evidence which points out convincingly why Elvira Polintan should
"corrupt the truth and put the lives of these two accused in jeopardy."
This finding of the trial court on the credibility of the complaining witness is entitled to the highest
respect upon this Tribunal, and We will not disturb the same.
Moreover, We find no reason, and none is advanced by appellant Balbuena why complainant
should implicate him in the case considering that he came to know the complainant for the first
time during the incident. The motive imputed by appellant Torres to the complainant in
implicating the appellant in the charge of rape which is that Torres told his cousin, Rhodora
Torres, to sever her relationship with complainant, is indeed too flimsy to be accepted because
the crime of rape exposes not only the accused but also the complainant to public ridicule and
shame.
We agree with the trial court in its conclusion that "(t)he sum total of all the foregoing
considerations is the fact that the court believes that essential elements constitutive of the crime
of rape had been established by the prosecution peradventure of doubt."

The defense of the accused is one of denial as pointed out earlier in this decision, which is
inherently weak, and more than that, the testimony of the accused Torres that he was with the
complainant on August 28, 1975 at about 4:00 o'clock in the afternoon and not in the evening, is
itself belied by the other accused Balbuena who admitted that Torres was present at the drinking
spree on August 28, 1975. And in addition to the above contradiction, the defense of the
accused is wanting in material corroboration.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment of conviction against the
accused-appellants Abelardo Balbuena y Garcia and Juanito Torres v Villanueva and the penalty
of reclusion perpetua in Criminal Case No. C-6848 and Criminal Case No. C-6849 for each of
the accused is hereby AFFIRMED. Costs de oficio.

As to the second assigned error, We find the same to be without merit. Complainant is a
"tomboy" and as such, she is sexually attracted to persons of her own sex rather than to the
male specie. She would not willingly submit herself to a sexual intercourse with a male person
as suggested by the appellants. The evidence is clear that appellants employed force in
consummating the crime of rape. From the bench where she was lying down, she was pulled to
the billiard table and bodily raised on top of the table where she was forced to lie down. Both
accused held her at the wrist and one of them held her by the feet. She fought and struggled
with them (nagpapapalag). On top of the billiard table, Torres held both of her hands while
Balbuena laid on top of her and sexually abused her. After that, Balbuena went down from the
table and Torres climbed while the other held both of the victim's hands and similarly, Torres was
able to rape her.

Makasiar (Chairman), Aquino, De Castro and Escolin, JJ., concur.

SO ORDERED.1wph1.t

Concepcion, Jr., J., I vote for acquittal.

That the guilt of the accused for the crime of rape has been proved beyond reasonable doubt is
clear and the decision being in accordance with law and the evidence, the same must be
affirmed.
G.R. No. 91490

May 6, 1991

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

PEOPLE
OF
THE
PHILIPPINES,
vs.
DELFIN CASTRO y LOZADA, defendant-appellant.

plaintiff-appellee,

The
Solicitor
General
Eduardo I. Advincula for defendant-appellant.

plaintiff-appellee.

for

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

xxx

xxx

xxx

xxx

xxx

FISCAL:
xxx

Q Now, what was the reason why your husband called you?
PADILLA, J.:

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

This is an appeal interposed by the accused, Delfin Castro y Lozada, from the decision* of the
Regional Trial Court of Pasay City, Branch 110, imposing upon him the penalty of reclusion
perpetua for statutory rape defined under Art. 335, paragraph 3 of the Revised Penal Code.

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

On the witness stand, six (6) year old Diana Rose Castro narrated how, while playing with a
neighbor sometime on 4 October 1986, she was pulled by the accused inside a bathroom,
prevented from going out, and made to stand on the toilet bowl. Accused is a first cousin of
Diana Rose's mother. Kuya Delfin, as Diana Rose referred to the accused, then put up her
clothes, took off her panty, made her lean on the wall and, despite her efforts to pull away he
inserted his private part into her causing pain. Then she was told by the accused to go home. At
home, she refused to have her private part washed by her Auntie Alice because it was hurting
and painful. 1

Q And what did you find out

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

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

A At first she said she was complaining that her private property was painful and when
I investigated I discovered that it swollen (sic).
Q Then what happened after you found out that the private property of your
granddaughter was swollen?
A I asked her why.
Q (sic). And what did your granddaughter tell you?
A At first she told me that "nasabit sa hiyero."
Q And what did you do after that?
xxx

xxx

xxx

A What I did was to examine her carefully her private part; I lifted her two (2) legs and I
discovered that her private property was reddened as swollen.

A Under the normal course of events injuries of this nature involving this particular
portion of the body of a female or woman is produced by the insertion of a male
organ. 4

Q Did you ask her again what happened to her private property?
A Yes, sir, she told me that she was invited by her Kuya Delfin to the bathroom.
Q And what else did she tell you?
A She told me that she was asked by her Kuya to stand on top of the toilet bowl and
he removed her panty and his (sic) Kuya Delfin also removed his pants.
Q What else did she tell you?
A She told me that his (sic) Kuya Delfin had sexual intercourse with her.
COURT:
Q Did you ask Diane Castro how Delfin allegedly had sexual intercourse with her?
A Yes, Your Honor.
Q What did she answer?
A She was standing and she was made to lean on the wall, Your Honor. . .
Because of Diana's revelation, the grandmother brought her to the National Bureau of
Investigation for examination on 8 October 1986. 3
Dr. Roberto Garcia, the NBI medico-legal, had this explanation:
xxx

xxx

xxx

A Under the single heading of "genital examination" the more insignificant findings will
be the contused or bruised vetibular (sic) meaning the area inside the genital organ of
the subject person; the hymen of the subject person was noted to be bruised or
contused . . .
Q Now what do you mean when you say that the genital parts you mentioned were
contused or bruised?

xxx

xxx

xxx

A sworn complaint for rape was filed against Delfin Castro y Lozada. It charged as follows:
That on or about the 4th day of October, 1986 in Pasay City, Philippines and within the
jurisdiction of tills Honorable Court, the above named accused, Delfin Castro y
Lozada, with lewd designs and taking advantage of his moral ascendancy over the
undersigned complainant who is his niece, did then and there wilfully, unlawfully and
feloniously have sexual intercourse with or carnal knowledge of the undersigned. 5
Accused pleaded not guilty and posted bail for his provisional liberty.
Delfin's alibi begins on 3 October 1986 in 1692 Muoz, Pasay City, where he lives two (2)
houses away from complainant's.1wphi1 At about 12:00 P.M., Diana went to his house while he
was taking a bath. She was crying and went inside the bathroom. When asked by the accused
why, she replied that while going down the stairs, a dog whose two (2) hind legs were limping,
chased her and so she tripped. The accused told Diana to go out because their dog might bite
her. He proceeded to dress up and saw the victim playing outside.
In the morning of 4 October 1986, he woke up at about quarter to seven, 6 left the house at
7:30 7 took a jeep plying the Pasay-Taft- Luneta route, arrived in school (Adamson University) at
8:15 in the morning. He proceeded to see Dolores Rivera, a godsister who worked in the
treasurer's office of the university to ask the latter to type a term paper which was due that day.
After submitting the term paper, he treated his godsister to lunch. Around 1:00 o'clock in the
afternoon, he went home.
Mrs. Teresita Castro's testimony dovetails with her son Delfin's saying that at around 12:30 P.M.
on 4 October 1986, he arrived and ate lunch at home. 8 Mother and son talked of enmity
between Mrs. Jacinta Castro, Diana's grandmother and their family. This rape case against
Delfin is a result allegedly of the envy of Diana's said grandmother over his (Delfin's) fine
scholastic performance. 9

A The area was noted to be purplish or red darker than the normal appearance of the
said portion being bruised or contused it would mean that this particular portion was
subject to some amount of force or it could have come in contact with a hard object,
the contract must have been done with a certain amount of force.

Delfin further narrated that on or about 8 October 1986, he was invited to the Pasay Police
Headquarters for questioning.1wphi1 While there, he was asked to undress, was blindfolded
and beaten by around 7 to 10 policemen for about half an hour and made to admit that he raped
Diana. Since he could no longer stand the torture, he told them that he used his small finger to
touch her private part. 10 After the incident, Delfin left their house in order to avoid trouble;
occasionally he would visit his parents. 11

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

trauma, present, consistent with the alleged date of infliction."

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

Would you explain this?

This witness meant that the appearance of the genital or prior of those mentioned was
seen by this witness which brought about the trauma and that it has to be recent,
meaning it could have been sustained by the subject person in a matter of days prior
to the date of the examination.
A Now, was the hymen of the subject lacerated?
A No, sir.
Q Now this genital trauma which you said to have been suffered by the subject from
what could this injury or trauman (sic), what was the cause?
A Any hard object would have produced this bruise or contusion.
Q Now, this is a case of rape, Doctor, would you venture to state from what object this
could have been inflicted?

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

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

xxx

xxx

From the said decision sentencing him to suffer the penalty of reclusion perpetua and indemnify
the victim in the amount of P20,000.00 by way of damages, the accused appealed to this Court
pointing out the following alleged errors:
1. there is no rape because
a. the hymen of the victim was not lacerated.
b. the victim was allegedly standing while the crime was being committed.
c. the victim is still a virgin.
2. reliance on the conflicting testimony of the victim and not that of the accused.
A recent decision of this Court in a case of statutory rape observed that, usually, the average
adult's hymen measures 2.8 to 3 centimeters in diameter, making it compatible with, or easily
penetrable by an average size penis. The victim being of tender age, the penetration of the male
organ could go only as deep as the labia. In any case, for rape to be committed, full penetration
is not required. It is enough that there is proof of entrance of the male organ within the labia or
pudendum of the female organ. Even the slightest penetration is sufficient to consummate the
crime of rape. 12
Perfect penetration, rupture of the hymen or laceration of the vagina are not essential for the
offense of consummated rape. Entry, to the least extent, of the labia or lips of the female organ
is sufficient. 13 Diana's remaining a virgin does not negate rape.
Sexual intercourse in a standing position, while perhaps uncomfortable, is not improbable. The
RTC decision explained:
. . . For her account that she was made to stand on the toilet bowl made it easy for the
accused to do the act as she was too small and their private parts would not align
unless she was elevated to a higher position. The suggestion of the defense counsel
that a finger could have been used is absurd. For if it were only a finger there would
have been no need to let Diana stand on the toilet bowl.. . . 14
The Solicitor General's brief, in turn, asserts that the position Diana was forced to take, made it
easier for appellant to accomplish insertion of his organ than if Diana had been made to lie
down. 15
Experience has shown that unfounded charges of rape have frequently been proffered by
women actuated by some sinister, ulterior or undisclosed motive. Convictions in such cases
should not be sustained without clear and convincing proof of guilt, 16 considering the gravity of
the offense and the penalty it carries.
On the alleged sinister motive of Diana's grandmother engendered by envy, we find this
incredulous. For, what grandmother would exact vengeance on her enemies at the perpetual
humiliation and disrepute of her six (6) year old granddaughter?
Finally, the issue of credibility. Who among the contending parties is telling the truth? The
prosecution's evidence is simple and straightforward. Appellant's alibi must fall. Claims of his
scholastic achievements, assuming they are relevant, were unsubstantiated. His counsel did not
even formally offer the exhibits attesting to his enrollment at Adamson University where he was
supposed to have submitted in the morning of 4 October 1986 a term paper. His credibility is
dubious; he was not able to even identify the topic of his alleged term paper. To discredit the

victim he testified on her alleged propensity to tell lies.

held:

17

The trial court, however, categorically

While Diana's testimony was in some instances flawed, the flaw was minor and only
with respect to dates.1wphi1She is a young girl. She sat at the witness stand four
times, yet she survived the rigors of testifying, unwavering in her claim that she was
raped. 18
Accused-appellant claims he was coerced and tortured by Pasay policemen to admit the rape,
showing to the trial court bodily signs of said abuse. 19 Aside from his self-serving assertion, the
truth of such allegation was not proven. Besides, this allegedly coerced admission of guilt cannot
affect the prosecution's case which has been established by other positive evidence pointing to
his guilt beyond reasonable doubt.
Finding no reversible error in the decision subject of this appeal, we affirm the same in its
entirety.
WHEREFORE, the decision is AFFIRMED. Accused-appellant is sentenced to suffer the penalty
of reclusion perpetua and to indemnify the victim, Diana Rose Castro in the amount of
P30,000.00 in line with prevailing jurisprudence. Costs against the appellant.
SO ORDERED.

G.R. No. 84728

April 26, 1991

PEOPLE
OF
vs.
CESAR ATENTO accused-appellant.

THE

The
Solicitor
General
Public Attorney's Office for accused-appellant.

PHILIPPINES, plaintiff-appellee,

for

plaintiff-appellee.

marbles with the children rather than feed her baby. Another relative, Caridad Aringo, testified
that Glenda had the mentality of a 12-year old and was fond of rubber bands and playing cards.
The Court finds this to be the reason why, while a rape victim with normal intelligence, would
have said that the attack on her caused her much physical pain and mental agony, Glenda
naively declared that Atento's sexual organ in hers gave her much pleasure.
It is worth observing that Glenda's child was born on December, nine months after her rape in
April, and that, according to the trial judge, there was a remarkable resemblance between Atento
and the boy.
Article 335 of the Revised Penal Code provides:

CRUZ, J.:
Asked how she felt while she was being raped, the complainant replied: "Masarap." The trial
judge believed her but just the same convicted the accused-appellant. The case is now before
us.
The complainant is Glenda Aringo, who was sixteen years old at the time of the alleged offense.
She is the neighbor of Cesar Atento, the herein accused-appellant, a 39-year old store-keeper
with a wife and eight children. Her claim is that Atento raped her five separate times, the first
sometime in April 1986.
She says that on that first occasion she went to Atento's store in Barangay 18, Minoro,
Cabagan, in Legazpi City to buy bread. Her parents were at work and Atento was alone in his
house except for his three-year old daughter. Glenda claims Atento cajoled her into coming
inside the house and then took her downstairs, where he succeeded in deflowering her. She
says her maiden head ached and bled. Afterwards, he gave her P5.00.
Glenda speaks of four other times when he raped her. It was later (presumably because her
hymen had healed) that she felt tickled by his manhood and described the act of coitus as
"masarap."1
The girl says she never told anybody about Atento's attacks on her because he had threatened
her life. But she could not conceal her condition for long and after five months had to admit she
was pregnant. She revealed the accused-appellant as the father of the foetus in her womb. The
child was delivered on December 27, 1987, and christened Hubert Buendia Aringo.
Atento denies the charge against him, saying it was pure harassment concocted by a relative of
the girl who wanted to eject him from the land where his house was erected. Insisting that
Glenda was a girl of loose morals, he says he had twice seen her in sexual congress with a man
and that she had once offered her body to his thirteen year old son for a fee of P5.00.
Glenda's description of the act of coitus as pleasurable would have destroyed the whole case
against Atento but for one singular significant fact. The girl is a mental retardate.
Ascendo Belmonte, a clinical psychologist at Don Susano Rodriguez Memorial Mental Hospital,
subjected the girl to a series of intelligence tests, to wit, the Wecslar adult intelligence scale,
revised beta exam, standard progressive matrices, and the Bender visual motor gestalt test, with
the following findings:
Glenda B. Aringo, who was born on June 18, 1970, is INTER ALIA with an intellectual
capacity between the ages of nine (9) and twelve (12) years. As such, her intellectual
functioning is within the mentally defective level. Her fund of information is inadequate,
her judgment is unsound, her thinking and working capacity is poor. She is unable to
distinguish essential from non-essential details. Her vocabulary is limited. Her capacity
for her perceptual processes is unsatisfactory. She lacks the capacity for abstracting
and synthesizing concepts. However, in the midst of all these, Glenda was found
capable of telling the truth.2
Benita Aringo, Glenda's mother, testified that her daughter reached only third grade and did not
like to continue studying, preferring to play with children younger than she, even when she was
already pregnant. After delivering her child, she would often leave its care to Benita, and play

Art. 335. When and how rape committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the
circumstances mentioned in the two next preceding paragraphs shall be present.
xxx

xxx

xxx

It has not been clearly established that Atento employed force or threat against Glenda to make
her submit to his lust. Nevertheless, there is no question that Atento is guilty of rape upon
Glenda under paragraph 2, because the girl was deprived of reason. Alternatively, he is liable
under paragraph 3, because his victim had the mentality of a girl less than twelve years old at
the time she was raped.
In People v. Atutubo,3 this Court held:
It is not necessary under Article 335 for the culprit to actually deprive the victim of
reason prior to the rape, as by the administration of drugs or by some other illicit
method. Ms provision also applies to cases where the woman has been earlier
deprived of reason by other causes, as when she is congenitally retarded or has
previously suffered some traumatic experience that has lowered her mental capacity.
In such situations, the victim is in the same category as a child below 12 years of age
for lacking the necessary will to object to the attacker's lewd intentions.
In People v. Palma,4 where a 14-year old mental retardate was another rape victim, we held that:
The crime committed by Palma is rape under Article 335(2) of the Revised Penal
Code.1wphi1 Copulation with a woman known to be mentally incapable of giving
even an imperfect consent is rape. Physical intimidation need not precede sexual
intercourse considering the age, mental abnormality and deficiency of the
complainant.
So also in People v. Sunga,5 where the offended party was 23 years old with the mentality of a
child about 8 to 9 years of age:
Because of her mental condition, complainant is incapable of giving consent to the
sexual intercourse. She is in the same class as a woman deprived of reason or
otherwise unconscious. Appellant therefore committed rape in having sexual
intercourse with her.
In his authoritative work on Criminal Law, Chief Justice Aquino explains Paragraph 2 as follows. 6
. . . in the rape of a woman deprived of reason or unconscious, the victim has no will.
The absence of will determines the existence of the rape. Such lack of will may exist
not only when the victim is unconscious or totally deprived of reason, but also when
she is suffering some mental deficiency impairing her reason or free will. In that case,
it is not necessary that she should offer real opposition or constant resistance to the

sexual intercourse. Carnal knowledge of a woman so weak in intellect as to be

incapable of legal consent constitutes rape. Where the offended woman was feebleminded, sickly and almost an idiot, sexual intercourse with her is rape. Her failure to
offer resistance to the act did not mean consent for she was incapable of giving any
rational consent.
The deprivation of reason need not be complete. Mental abnormality or deficiency is
enough. Cohabitation with a feeble-minded, idiotic woman is rape.
The trial court, however, held Atento guilty of rape under Paragraph 3, citing People v.
Asturias,7 where it was held:
Assuming that complainant Vilma Ortega voluntarily submitted herself to the bestial
desire of appellant still the crime committed is rape under paragraph 3 of Article 335 of
the Revised Penal Code. This is so even if the circumstances of force and
intimidation, or of the victim being deprived of reason or otherwise unconscious are
absent. The victim has the mentality of a child below seven years old. If sexual
intercourse with a victim under twelve years of age is rape, then it should follow that
carnal knowledge with a seventeen-year old girl whose mental capacity is that of a
seven year old child would constitute rape.
In coming to his conclusion, Judge Gregorio A. Consulta declared:
. . . Given the low I.Q. of Glenda, it is impossible to believe that she could have
fabricated her charges against the accused. She lacks the gift of articulation and
inventiveness. She could not even explain with ease the meaning of rape, a term
which she learned in the community. Even with intensive coaching, assuming that
happened, on the witness stand where she was alone, it would show with her
testimony falling into irretrievable pieces. But that did not happen. She proceeded,
though with much difficulty, with childlike innocence. A smart and perspicacious person
would hesitate to describe to the Court her sexual experiences as "tickling" and
"masarap" for that would only elicit disdain and laughter. Only a simple-minded artless
child would do it. And Glenda falls within the level of a 9-12 year old child. And Glenda
was telling the truth!
There is no doubt that when she submitted herself to the accused later for subsequent
intercourses, she was dominated more by fear and ignorance than by reason.
In any event, whether under paragraph 2 or under paragraph 3 of Article 335 of the Revised
Penal Code, the accused-appellant deserves to be punished for the rape of Glenda Azingo.
The trial court found the accused-appellant guilty of rape as charged, meaning that he raped the
victim five times, but we do not agree that the other four rapes have been conclusively proven.
Otherwise, he would have to be punished for five separate rapes. Except for this and the civil
indemnity, which is increased from P20,000.00 to P30,000.00, we agree with the sentence
imposing on him the penalty of reclusion perpetua, the obligation to acknowledge and support
Hubert Buendia Aringo as his own spurious child, and to pay the costs.
WHEREFORE, the appealed judgment is AFFIRMED as above modified. It is so ordered.

[G.R. No. 129433. March 30, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita [1] finally did away with frustrated rape [2] and allowed
only attempted rape and consummated rape to remain in our statute books. The instant case
lurks at the threshold of another emasculation of the stages of execution of rape by considering
almost every attempt at sexual violation of a woman as consummated rape, that is, if the
contrary view were to be adopted. The danger there is that that concept may send the wrong
signal to every roaming lothario, whenever the opportunity bares itself, to better intrude with
climactic gusto, sans any restraint, since after all any attempted fornication would be considered
consummated rape and punished as such. A mere strafing of the citadel of passion would then
be considered a deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had carnal
knowledge of the victim since by it he attained his objective. All the elements of the offense were
already present and nothing more was left for the offender to do, having performed all the acts
necessary to produce the crime and accomplish it. We ruled then that perfect penetration was
not essential; any penetration of the female organ by the male organ, however slight, was
sufficient. The Court further held that entry of the labia or lips of the female organ, even without
rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for
consummated rape. We distinguished consummated rape from attempted rape where there
was no penetration of the female organ because not all acts of execution were performed as the
offender merely commenced the commission of a felony directly by overt acts. [3] The inference
that may be derived therefrom is that complete or full penetration of the vagina is not required for
rape to be consummated. Any penetration, in whatever degree, is enough to raise the crime to
its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into
the labia or lips of the female organ, even if there be no rupture of the hymen or laceration of the
vagina, to warrant a conviction for consummated rape. While the entry of the penis into the lips
of the female organ was considered synonymous with mere touching of the external genitalia,
e.g., labia
majora, labia
minora,
etc.,[4] the
crucial
doctrinal
bottom
line
is
that touching must be inextricably viewed in light of, in relation to, or as an essential part of, the
process of penile penetration, and not just mere touching in the ordinary sense. In other words,
the touching must be tacked to the penetration itself. The importance of the requirement of
penetration, however slight, cannot be gainsaid because where entry into the labia or the lips of
the female genitalia has not been established, the crime committed amounts merely to
attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been committed
either in its attempted or in its consummated stage; otherwise, no substantial distinction would
exist between the two, despite the fact that penalty-wise, this distinction, threadbare as it may

seem, irrevocably spells the difference between life and death for the accused - a reclusive life
that is not even perpetua but only temporal on one hand, and the ultimate extermination of life
on the other. And, arguing on another level, if the case at bar cannot be deemed attempted but
consummated rape, what then would constitute attempted rape? Must our field of choice be thus
limited only to consummated rape and acts of lasciviousness since attempted rape would no
longer be possible in light of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by
the court a quo to the extreme penalty of death,[5] hence this case before us on automatic review
under Art. 335 of the Revised Penal Code as amended by RA 7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in the
afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went
down from the second floor of their house to prepare Milo chocolate drinks for her two (2)
children. At the ground floor she met Primo Campuhan who was then busy filling small plastic
bags with water to be frozen into ice in the freezer located at the second floor. Primo was a
helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the drinks, she
heard one of her daughters cry, "Ayo'ko, ayo'ko!"[7] prompting Corazon to rush upstairs.
Thereupon, she saw Primo Campuhan inside her childrens room kneeling before Crysthel
whose pajamas or "jogging pants" and panty were already removed, while his short pants were
down to his knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she cursed
the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her
blows and pulled up his pants. He pushed Corazon aside when she tried to block his path.
Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle
who were living within their compound, to chase the accused. [8] Seconds later, Primo was
apprehended by those who answered Corazon's call for help. They held the accused at the back
of their compound until they were advised by their neighbors to call the barangay officials
instead of detaining him for his misdeed. Physical examination of the victim yielded negative
results. No evident sign of extra-genital physical injury was noted by the medico-legal officer on
Crysthels body as her hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence
and assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will
against him for his refusal to run an errand for her. [9] He asserted that in truth Crysthel was in a
playing mood and wanted to ride on his back when she suddenly pulled him down causing both
of them to fall down on the floor. It was in this fallen position that Corazon chanced upon them
and became hysterical. Corazon slapped him and accused him of raping her child. He got mad
but restrained himself from hitting back when he realized she was a woman. Corazon called for
help from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente
punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards
the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to
explain as he reasoned out that the accusation was not true. But Vicente kicked him instead.
When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his

back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon
him to take Primo to the barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him
guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay
his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He
argues that her narration should not be given any weight or credence since it was punctured
with implausible statements and improbabilities so inconsistent with human nature and
experience. He claims that it was truly inconceivable for him to commit the rape considering that
Crysthels younger sister was also in the room playing while Corazon was just downstairs
preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the
fact that the episode happened within the family compound where a call for assistance could
easily be heard and responded to, would have been enough to deter him from committing the
crime. Besides, the door of the room was wide open for anybody to see what could be taking
place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid
description of the alleged sexual contact when from where she stood she could not have
possibly seen the alleged touching of the sexual organs of the accused and his victim. He
asserts that the absence of any external signs of physical injuries or of penetration of Crysthels
private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that
she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas
and panty were supposedly "already removed" and that Primo was "forcing his penis into
Crysthels vagina." The gravamen of the offense of statutory rape is carnal knowledge of a
woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel
was only four (4) years old when sexually molested, thus raising the penalty, from reclusion
perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended
party being below seven (7) years old. We have said often enough that in concluding that carnal
knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is
the rupture of the hymen necessary; the mere touching of the external genitalia by the penis
capable of consummating the sexual act is sufficient to constitute carnal knowledge. [10] But the
act of touching should be understood here as inherently part of the entry of the penis into
the labias of the female organ and not mere touching alone of the mons pubis or the pudendum.
In People v. De la Pea[11] we clarified that the decisions finding a case for rape even if the
attackers penis merely touched the external portions of the female genitalia were made in the
context of the presence or existence of an erect penis capable of full penetration. Where the
accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which
could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on
the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his
penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt
his organ on the lips of her vulva,[12] or that the penis of the accused touched the middle part of
her vagina.[13] Thus, touching when applied to rape cases does not simply mean mere epidermal
contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external
layer of the victims vagina, or the mons pubis, as in this case. There must be sufficient and
convincing proof that the penis indeed touched the labias or slid into the female organ, and not
merely stroked the external surface thereof, for an accused to be convicted of consummated
rape.[14] As the labias, which are required to be "touched" by the penis, are by their

natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the
penis is to attain some degree of penetration beneath the surface, hence, the conclusion that
touching the labia majora or the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the
perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal
orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is
instantly visible within the surface. The next layer is the labia majora or the outer lips of the
female organ composed of the outer convex surface and the inner surface. The skin of the outer
convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin
skin which does not have any hair but has many sebaceous glands. Directly beneath the labia
majora is the labia minora.[15] Jurisprudence dictates that the labia majora must be entered for
rape to be consummated,[16] and not merely for the penis to stroke the surface of the female
organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of
the pudendum is not sufficient to constitute consummated rape. Absent any showing of the
slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the
penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of
lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the
female organ,"[17] but has also progressed into being described as "the introduction of the male
organ into the labia of the pudendum,"[18] or "the bombardment of the drawbridge."[19] But, to our
mind, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as
earlier stated, a "strafing of the citadel of passion."
A review of the records clearly discloses that the prosecution utterly failed to discharge
its onus of proving that Primos penis was able to penetrate Crysthels vagina however slight.
Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her
daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact
between Primo and Crysthel. When asked what she saw upon entering her childrens room
Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel
without explaining her relative position to them as to enable her to see clearly and sufficiently, in
automotive lingo, the contact point. It should be recalled that when Corazon chanced upon
Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described
thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the
accused is pinning down the victim, while his right hand is holding his penis
and his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos kneeling position rendered
an unbridled observation impossible. Not even a vantage point from the side of the accused and
the victim would have provided Corazon an unobstructed view of Primos penis supposedly
reaching Crysthels external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since
the legs and arms of Primo would have hidden his movements from Corazons sight, not to
discount the fact that Primos right hand was allegedly holding his penis thereby blocking it from
Corazons view. It is the burden of the prosecution to establish how Corazon could have seen

the sexual contact and to shove her account into the permissive sphere of credibility. It is not
enough that she claims that she saw what was done to her daughter. It is required that her claim
be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot
conclude without any taint of serious doubt that inter-genital contact was at all achieved. To hold
otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over
the constitutional right of the accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her
timely appearance, thus giving her the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-preservation to remain where
he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have
already been discovered or witnessed by no less than the mother of his victim. For, the normal
behavior or reaction of Primo upon learning of Corazons presence would have been to pull his
pants up to avoid being caught literally with his pants down. The interval, although relatively
short, provided more than enough opportunity for Primo not only to desist from but even to
conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the
question of the court Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus Q: But did his penis penetrate your organ?
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that enshrouds the question of
whether rape in this case was consummated. It has foreclosed the possibility of Primos
penis penetrating her vagina, however slight. Crysthel made a categorical statement denying
penetration,[21] obviously induced by a question propounded to her who could not have been
aware of the finer distinctions between touching and penetration. Consequently, it is improper
and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as
underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult
interpretation that because the penis of the accused touched her organ there was sexual entry.
Nor can it be deduced that in trying to penetrate the victim's organ the penis of the
accused touched the middle portion of her vagina and entered the labia of her pudendum as the
prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel.
[22]
Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded
with an erection.[23] On the contrary, Corazon even narrated that Primo had to hold his penis with
his right hand, thus showing that he had yet to attain an erection to be able to penetrate his
victim.

Antithetically, the possibility of Primos penis having breached Crysthels vagina is belied by the
child's own assertion that she resisted Primos advances by putting her legs close together;
[24]
consequently, she did not feel any intense pain but just felt "not happy" about what Primo did
to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where
penetration was not fully established, the Court had anchored its conclusion that rape
nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal
finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping
with redness, or the hymenal tags were no longer visible.[26] None was shown in this case.
Although a child's testimony must be received with due consideration on account of her tender
age, the Court endeavors at the same time to harness only what in her story appears to be true,
acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that
even on the basis of the testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no
external signs of physical injuries on complaining witness body to conclude from a medical
perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the
absence of complete penetration of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was sexual contact between the
accused and the victim.[27]
In cases of rape where there is a positive testimony and a medical certificate, both should in all
respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter
disregard of the manifest variance in the medical certificate, would be productive of unwarranted
or even mischievous results. It is necessary to carefully ascertain whether the penis of the
accused in reality entered the labial threshold of the female organ to accurately conclude that
rape was consummated. Failing in this, the thin line that separates attempted rape from
consummated rape will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the
offender commences the commission of rape directly by overt acts, and does not perform all the
acts of execution which should produce the crime of rape by reason of some cause or accident
other than his own spontaneous desistance. All the elements of attempted rape - and only of
attempted rape - are present in the instant case, hence, the accused should be punished only
for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for
the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees
lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty
(20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or
aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be
taken from the medium period of reclusion temporal, the range of which is fourteen (14) years,
eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum
shall be taken from the penalty next lower in degree, which is prision mayor, the range of which
is from six (6) years and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN
Y BELLO guilty of statutory rape and sentencing him to death and to pay damages
is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an

indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision
mayormedium as minimum, to fourteen (14) years ten (10) months and twenty (20) days
of reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.

[G.R. No. 124736. September 29, 1999]

The doctrine declared in People vs. Garcia, and its reiteration in People vs. Ramos,
People vs. Ilao,[7] and People vs. Medina,[8] came only after almost a year from the
promulgation of the instant case.
[6]

PEOPLE

OF
THE
PHILIPPINES, plaintiff-appellee,
IGLOSO, accused-appellant.

vs.

ROMEO

GALLO

RESOLUTION
PER CURIAM:
The penalty imposed upon accused-appellant Romeo Gallo y Igloso by the Regional Trial
Court, Branch 68, of Binangonan, Rizal, after finding him guilty beyond reasonable doubt of the
crime of qualified rape, was affirmed by this Court in its decision promulgated on 22 January
1998.
On 24 August 1999, accused-appellant filed a Motion to Re-open Case (with Leave of
Court) seeking a modification of the death sentence to reclusion perpetua. Accused-appellant
proffers that the reduction sought by him would be in line with the new Court rulings which
annunciate that the seven attendant circumstances introduced in Section 11 of Republic Act No.
7659 partake of the nature of qualifying circumstances that must be pleaded in the indictment in
order to warrant the imposition of the penalty.
The Court in the case of People vs. Garcia,[1] speaking through then, Justice Florenz D.
Regalado, ratiocinated that the additional attendant circumstances introduced by R.A. 7659
should be considered as special qualifying circumstances distinctly applicable to the crime of
rape and, if not pleaded as such, could only be appreciated as generic aggravating
circumstances.[2]
The Information filed against accused-appellant reads:
That on or sometime in the period of May, 1994 in the Municipality of Cardona, Province of Rizal,
Philippines and within the jurisdiction of this Honorable Court, the above named accused, with
lewd designs and by means of force or intimidation, did then and there willfully, unlawfully and
feloniously have sexual intercourse with a 13 year old girl, Marites Gallo y Segovia.[3]
The above indictment has not specifically alleged that accused-appellant is the victims
father; accordingly, accused-appellants relationship to the victim, although proven during the
trial, cannot be considered to be a qualifying circumstance.[4]
The next crucial point is whether the Court must now apply retroactively the Garcia
doctrine to the conviction of accused-appellant.
The Court has had the opportunity to declare in a long line of cases that the tribunal
retains control over a case until the full satisfaction of the final judgment conformably with
established legal processes. It has the authority to suspend the execution of a final judgment or
to cause a modification thereof as and when it becomes imperative in the higher interest of
justice or when supervening events warrant it.[5]

The Office of the Solicitor General, when requested to comment on the aforesaid
24th August 1999 motion of accused-appellant, had this to state:
Judicial decisions applying or interpreting the law or the Constitution shall form part of the legal
system of the land (Article 8, Civil Code of the Philippines). Medina, which has the force and
effect of law, forms part of our penal statutes and assumes retroactive effect, being as it is,
favorable to an accused who is not a habitual criminal, and notwithstanding that final sentence
has already been pronounced against him (Article 22, Revised Penal Code).
Indeed, by operation of law, appellant is rightfully entitled to the beneficial application
of Medina. Accordingly, the Office of the Solicitor General hereby joins appellants prayer for
reduction of his sentence from death to reclusion perpetua.
The Court agrees with the Office of the Solicitor General in its above observations and
sees merit in its stand to join accused-appellant in praying for a modification of the sentence
from death to reclusion perpetua.
WHEREFORE, the motion to re-open the case is GRANTED and the decision sought to
be reconsidered is MODIFIED by imposing on accused-appellant the penalty of reclusion
perpetua in lieu of the death penalty and ordering him to indemnify the victim the amount of
P50,000.00.
Considering that the records of all cases where the death penalty is imposed are
forwarded to the Office of the President in accordance with Section 25 of R.A. 7659, the Court
directs the Clerk of Court to furnish the Office of the President with a copy of this resolution for
appropriate guidance.
SO ORDERED.

[G.R. No. 123544. July 29, 1999]

PEOPLE

OF
THE
PHILIPPINES, plaintiff-appellee, vs.
GUEVARRA, accused-appellant.

RAUL

BERANA

party of a relative, had stayed overnight. On the same day, their mother fetched Elena and
accompanied her to the Provincial Hospital for medical examination. The medical examination
conducted revealed the following findings:
P.E.

DECISION
Vagina admits one finger
ROMERO, J.:
(+) Hymenal Laceration at 6:00 o'clock and 9 o'clock positions
In this sordid tale of defloration, a man is saved from the gallows for failure of the
prosecution to adduce clear and positive proof of his relationship with the complainant.
Before us on automatic review is a decision rendered by the Regional Trial Court of Naga
City, Branch 25, imposing the supreme penalty of death on herein accused-appellant, Raul
Berana y Guevarra for the crime of rape.[1]
The facts of the case are as follows:

Gram Staining Result:

-gram (+) bacilli = many
-pus cells = few
-epithelial cells = many

On June 2, 1994 at around 2:00 o'clock in the morning, 14-year old Maria Elena Jarcia
was sleeping with her four-year old niece in one of the two rooms in a house her family was
renting at Bayawas Street, Naga City when she was awakened by her brother-in-law, herein
accused-appellant, Raul Berana. Complainant recognized him because light was filtering in from
a nearby window. Berana pointed a "buntot page" at her neck and warned her not to make any
noise, otherwise she would be killed.

NOTE: Gram stains smear shows presence of spermatozoa[3]

The terrified girl was made to lie down while accused-appellant raised her duster and
proceeded to remove her shorts and her underwear, after which he mashed her breast and lay
on top of her. The hapless girl was again threatened not to make any noise otherwise he would
kill her. Complainant tried to cover her breasts with her arms but accused-appellant pushed her
arms aside. As he inserted his organ into her womanhood, Elena felt excruciating pain. He
began kissing her and made several push and pull movements, after which, the victim felt
something liquid in her organ. Accused-appellant sat down and warned her not to talk to anyone
about the incident.

On June 3, 1994, an information was filed before the Regional Trial Court of Naga City,
Branch 25, against accused-appellant for the crime of rape, allegedly committed as follows:

After having been examined, Elena and her mother proceeded to the Sabang Police
station in Naga City to report the incident. Thereafter, accused-appellant was apprehended by
the police.

That on or about June 2, 1994, in the city of Naga, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused by means of force, did then and there willfully,
unlawfully and feloniously, have sexual intercourse with the herein complaining witness, MARIA
ELENA JARCIA Y DE LOS MARTINEZ, a minor, 14 years of age.
CONTRARY TO LAW

His bestial lust not having been satisfied, accused-appellant lay on top of her for the
second time, fondled her breast and made push and pull movements. At around 2:30 o'clock in
the morning, accused-appellant left after warning her that only the two of them must know about
the incident. During the entire time that the accused-appellant was raping her, the poor girl was
weeping and trembling with fear because he repeated his threats to kill her should she make any
noise. Complainant, before having identified in court Exhibit A as the "buntot page" used by
accused-appellant, described it as "long with some protruding parts and with long and pointed
tip"[2]
After the accused-appellant left, Elena put on her clothes and went to the adjacent room to
report the incident to her sister, Ma. Ana. When Ana heard the grim story, she lost no time in
hurrying to Camaligan, Camarines Sur where their parents , having been invited to a birthday

On June 6, 1994, an amended information was filed against accused-appellant which

reads:
That on or about June 2, 1994, in the City of Naga, Philippines and within the jurisdiction of this
Honorable Court, the abovenamed accused, a relative of the offended party within the third civil
degree, by means of force and intimidation, did there and then, willfully, unlawfully and
feloniously have sexual intercourse with herein complaining witness MARIA ELENA JARCIA Y
DE LOS MARTINEZ, a minor, 14 years of age, to her damage and prejudice.
CONTRARY TO LAW

Upon arraignment, accused-appellant entered a plea of not guilty.

On October 12, 1994, the prosecution again sought the amendment of the information
filed in accordance with the mandate of Section 5, Rule 110 of the Revised Rules on Criminal
Procedure relating to de oficio offenses which require the offended party's express conformity to
the filing of the information.
On October 17, 1994, accused-appellant entered plea of not guilty to the re-amended
information.
Accused-appellant does not deny having sexual intercourse with the complainant but,
however, maintains that Elena consented to it. According to accused-appellant, at around 1:30
o'clock in the morning of June 2, 1994, he had difficulty sleeping, so he took a walk and decided
to visit his daughter at the house in Bayawas Street. When he arrived at the said place, he sat
on the stairs at the rear of the house.While seated, he heard someone calling, "Mama." He
recognized the voice as Elena's so he answered, "this is not your mama, this is your
manoy,"[4] On hearing these words, complainant opened the door and approached accusedappellant to ask him where her mother was, whereupon, accused-appellant told her that her
parents might not return home because her father got drunk at a birthday party of a relative in
Camaligan. He then asked Elena if his daughter was already asleep. Upon having been
informed that his daughter had just fallen asleep, accused-appellant bade Elena goodbye but
the girl, invited him to stay for the night so that he could keep watch over her and his
daughter. Accused-appellant accepted her invitation since he was very tired. When he entered
the room, Elena followed him and locked the door.Seeing his daughter sleeping soundly on a
mat, he picked her up and moved her away from the middle to the left side so as not to disturb
her. Elena turned off the light from the gas lamp and lifted the mosquito net to prepare for bed.
At this point, she reminded the accused-appellant of the sum of money which she had
been asking him some time. When told that he had no money, complainant allegedly started to
caress and embrace accused-appellant while at the same time insisting that he give her the
money. When he reiterated that he had no money, complainant took hold of his hand and placed
it on her breast. Complainant allegedly was wearing only an undershirt and panty at the
time. Accused-appellant, feeling "hot", decided, and succeeded in having sex with her. During
the sexual intercourse, Elena told him, "It is painful, manoy." but accused-appellant tried to
assuage the pain, saying that it is painful only during the first time. [5] Afterwards, accusedappellant sat beside Elena and engaged her in conversation. Elena allegedly asked him to help
her when she completes high school. When accused-appellant promised to help her on
condition that she will be serious in her studies, Elena rose from her lying position and embraced
him. He kissed her on the lips, touched her breasts and asked her again for sex. Complainant
allegedly smiled and told him, "To my sister, you could only do it one (sic) but to me you will
make it two,"[6] They had sex for the second time in the early morning of June 2, 1994. Accusedappellant left the room at around 2:30 o'clock in the morning. While answering a call of nature
near a santol tree outside the house, he heard Ma. Ana ask Elena, "What did your manoy do to
you?", to which the latter answered, "None, none." Accused-appellant heard nothing more as he
decided to go on his way.[7]
Accused-appellant narrated that prior to the incident, or specifically on December 1993, he
was alone in the same room, reading an adult magazine when Elena arrived. She saw what he
was reading and remarked that she had read the same magazine also. Embarassed, accused-

appellant turned away and went near the window to continue his reading. Complainant, in the
meantime, removed her school uniform leaving only her "sando" and her panty on. She
approached accused-appellant and told him of the interesting parts in the magazine. When he
told her that he had already seen them and was just reviewing the magazine, she told him,
"Manoy, there are parts there which are beautiful." He then showed her the adult magazine and
asked her to point out where these were. Elena placed her arms on his shoulders as she obliged
him. When she embraced him, accused-appellant responded by embracing her back. He felt
"hot" and placed his hand on her cheek then began touching her breast also. However, she
turned her lips away so he ended kissing her cheek instead. Elena responded by kissing his
cheek in turn. Accused-appellant, this time, kissed her lips and touched her breasts. They
moved away from the window to avoid unwitting voyeurs. Somebody soon arrived and
interrupted them so Elena became flustered and accused-appellant left. They maintained no
relationship after the incident.
The trial court did not give credence to the testimony of accused-appellant and on
November 27, 1995, rendered a decision, the dispositive portion of which reads as follows:
PREMISES CONSIDERED, this court finds accused-appellant guilty beyond reasonable doubt
of the crime of rape defined and punishable under the provisions of Article 335 of the Revised
Penal Code, as amended by Republic Act No. 7659 which provides
The death penalty shall be imposed when the crime of rape is committed with any of the
following circumstances
1. When the victim is under eighteen (18) years of age and the offender is a x x x relative by
consanguinity or affinity within the third civil degree.
The accused being the husband of the victim's sister, is related by affinity to his victim within the
third civil degree, the court hereby imposes upon Raul Berana y Guevarra to suffer DEATH
PENALTY , to pay Ma. Elena M. Jarcia, the amount of P50,000 by way of damages and to pay
the costs.
In this automatic review of the decision rendered by the trial court, accused-appellant
raises the following issues:
I. The trial court erred when it convicted herein accused-appellant despite the
absence of any clear and convincing evidence demonstrating the alleged use of
force.
II. The trial court erred when it convicted herein accused-appellant despite serious
lapses and material inconsistencies in the testimony of the private complainant.
III. The trial court erred when it convicted herein accused-appellant despite the
prosecution's failure to adduce clear proof of all the attendant qualifying
circumstances of the crime charged

IV. The trial court erred when it convicted herein accused-appellant based on a
misplaced conclusion that herein accused-appellant allegedly admitted
committing the offense charged
We shall deal with the issues raised seriatim.
Regarding the first issue, accused-appellant contends that the trial court's finding that he
had forcible sexual intercourse with the complainant was based solely on the results of the
medical examination conducted by the prosecution's witness, Dr. Humilde Janaban on Elena. In
support of his contention, appellant cites the following excerpt from the trial court's decision:
A careful perusal of the evidence adduced during the trials conducted in this case, show that the
medical certificate of June 2, 1994 which was identified by Dra. Ma. Humilde B. Janaban,
showing that the victim, private complainant Ma. Elena M. Jarcia suffered "Hymenal laceration
at 6:00 o'clock and 9:00 o'clock positions in her private part which could have been caused by
sexual intercourse and /or by the intervention of a blunt object by thrusting and then pulling then
thrusting again of a hard blunt object and the presence of spermatozoa confirms the testimony
of Ma. Elena Jarcia that she was sexually molested makes such testimony credible. To the
mind of the court this [sic] findings are significant to the effect that sexual intercourse
was involuntary or through threat and duress. The absence of any kind of external injury in
the body of the victim other then those found in her organ is of no consequence.
Accused-appellant alleges that Elena encouraged his advances and the sexual
intercourse was consensual. He asserts that while the hymenal laceration and the presence of
spermatozoa prove the fact of sexual intercourse, they do not ipso facto prove that such act was
committed by means of force, in line with our pronouncement in People vs. Godoy [8] that, "Even
granting ex gratia argumenti that the medical report and the laceration corroborated the
complainant's assertion that there was sexual intercourse, of course the same cannot be said as
to the alleged use of force. It has been held that such corroborative evidence is not considered
sufficient, since proof of facts constituting one element of the crime is not corroborative proof of
facts necessary to constitute another equally important element of the crime."

with a blunt instrument is materially different from her testimony in court that accused-appellant
carried with him a "buntot page".
Accused-appellant's assertion that the medical record is bereft of any proof corroborating
complainant's testimony that she bled after she was raped hardly consideration. The underwear
of the complainant which was presented and admitted in court as evidence bore traces of blood.
[9]
Moreover, the absence of any sign of physical bleeding on the part of the complainant does
not necessarily mean that there was no forcible sexual intercourse. For one thing, complainant
was threatened with a "buntot page" poked at her neck at the time. Then too, accusedappellant's threat was sufficient enough to intimidate a young girl of 14 to force her to submit to
his baser instincts. It must be noted that proof of external injuries inflicted on the complainant is
not indispensable in a prosecution for rape committed with force or violence. The law does not
impose upon a rape victim the burden of proving resistance. Physical resistance need not be
established in rape case when intimidation is exercised upon her and she submits herself
against her will to the rapist's lust because of fear of life and personal safety. [10] When a woman
testifies that she was raped, she says in effect all that is necessary to show that said crime has
been committed.
Accused-appellant, however, would have us believe that the sexual intercourse was
consensual since complainant herself testified during trial that he asked her for a second time
during the night in question. While complainant did state during trial that, "After the first incident,
he sat down and he again asked me to give him for the second time," [11] complainant also stated
that she was then crying and trembling with fear. Considering the continuing threat on her life if
she makes an outcry, complainant had no choice but to accede to the desire of accusedappellant. That he asked her for sex does not necessarily imply that she gave her consent when
he succeded in ravishing her again. It is indeed preposterous that a young woman, untrained in
the ways of the world and of men would initiate and encourage his advances, as accusedappellant claims, considering especially that he is the husband of her older sister.

Accused-appellant's contention is misplaced. The trial court's finding of rape in the case at
bar, was not based solely on the medical findings showing hymenal laceration and the presence
of spermatozoa in the victim's organ. While the excerpt quoted by the accused-appellant from
the questioned decision gives the impression that the trial court considered the hymenal
laceration and the presence of spermatozoa in the victim's organ as proof of forcible sexual
intercourse, the decision read in its entirety shows otherwise. The trial court merely considered
the medical findings as corroborative evidence for the complainant's testimony that accusedappellant had sexual intercourse with her. Complainant was forced to accede to accusedappellant's advances because he poked a "buntot page" at her neck and threatened to kill her
should she make any noise. With such repeated threats, the hapless girl eventually broke down
and cried.

Accused-appellant nevertheless insists that complainant's testimony does not merit

credence because of inconsistencies in her statement regarding the weapon used by the
accused-appellant to threaten her on the night of the incident. We are not unaware that
complainant stated in her affidavit that accused-appellant was armed with a blunt instrument in
contrast with her testimony in court that accused-appellant was armed with a "buntot page." It
must be borne in mind, however, that discrepancies between an affidavit and testimony in court
occur more often than not since an affidavit is not prepared by the affiant herself but by another
who uses his own language in writing the affiant's statement. It might not be amiss to note, at
this point, that the instrument which was submitted by complainant to the police and later
identified in court as the "buntot page" used by the accused-appellant was described by the
Chief of Police in his letter to the prosecutor as "one (1) blunt instrument with black handle. [12] "
In the case of People vs. Empleo [13], we had occasion to state that, "the contradiction between
the affidavit and the testimony of the witness may be explained by the fact that an affidavit will
not always disclose all the facts and will oftentimes and without design incorrectly describe,
without the deponent detecting it, some of the occurrences narrated."

Accused-appellant maintains, however, that complainant's testimony is too full of material

inconsistencies to deserve belief. For instance, although complainant alleged that she bled after
the coitus, the medical examination revealed otherwise; complainant's testimony in court that
accused-appellant asked her for sex a second time belies her allegation that accused-appellant
forced himself on her; complainant's statement in her affidavit that accused-appellant was armed

We find merit, however, in accused-appellant's contention that the prosecution failed to

adduce clear and positive proof of the qualifying circumstance of relationship between accusedappellant and complainant. It should be noted that the relationship between accused-appellant
and the complainant qualifies the crime from rape punishable by reclusion perpetua to rape
punishable by death under Republic Act No. 7659. Under Article 335 of the Revised Penal Code

as amended by R.A. No. 7659, the death penalty shall be imposed if the crime of rape is
committed with any of the following attendant circumstances:

Q: Whose name is that?

A: Rosa Jarcia, sir[16]

xxx
1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common law spouse of the parent of the victim.
Affinity is defined as "the relation which one spouse because of marriage has to blood
relatives of the other. The connection existing, in consequence of marriage between each of the
married persons and the kindred of the other. The doctrine of affinity grows out of the canonical
maxim that marriage makes husband and wife one. The husband has the same relation by
affinity to his wife's blood relatives as she has by consanguinity and vice versa." [14]
Consequently, to effectively prosecute accused-appellant for the crime of rape committed
by a relative by affinity within the third civil degree, it must be established that a) he is legally
married to complainant's sister and b) complainant and accused-appellant's wife are full or half
blood siblings.
The prosecution tried to establish the relationship of accused-appellant to the complainant
by asking her the following during trial:
xxx
Q: By the way, do you know the accused in this case by the name of Raul

Based on abovementioned testimonies, as

complainant's parent's addressing them as "mama
inyong manugang, Raul"[17]the trial court convicted
relative by affinity within the third civil degree, under
Penal Code, as amended by Republic Act No. 7659.

well as accused-appellant's letter to the

at papa," and his use of the phrase, "ang
him of the crime of rape committed by a
the provisions of Article 335 of the Revised

Considering that the relationship of accused-appellant to complainant qualifies the crime

of rape punishable by reclusion perpetua to rape punishable by death, it is but proper that a
more stringent proof of relationship between the offender and the offended party must be
established by the prosecution. Corollarily, a clearer proof of relationship between the
complainant and the spouse of accused-appellant must be presented. The relationship of
accused-appellant and the complainant, is not adequately substantiated since it is merely based
on testimony of the complainant, her mother's testimony and the accused-appellant's use of the
words, "mama at papa" in his letters. Needless to say, the evidence presented are not sufficient
to dispel doubts about the true relationship of accused-appellant and the complainant, to the
benefit of which the accused is entitled. Where the life of an accused-appellant hangs in the
balance, a more exacting proof must be adduced.
Accused-appellant, in his last submission, insists that the trial court erred in convicting him
based solely on a misplaced conclusion that he admitted the offense charged based on the four
(4) letters he sent to the parents of the complainant, one of which states:
Ma, Pa, patawarin niyo na ako, alam ko na hindi niyo basta-basta mapapatawad ang nagawa ko
pero paano naman po ang kinabukasan nang mga apo at anak ko.[18]

A: Yes, I know him, sir

Q: Why do you know him?
A: He is the husband of my sister[15]
Complainant's mother also testified:
xxx
Q: Do you know the accused in this case, Raul Berana y Guevarra?

Accused-appellant asserts that the letters, in no way, indicate an admission of guilt on his
part. In support of his contention, accused-appellant cites the case of United States vs.
Maqui[19] where it was held that an accused may show that an offer of compromise on his part
was not made under a consciousness of guilt but merely to avoid the inconvenience of
imprisonment or for some other reason which would justify a claim by the accused that an offer
to compromise was not in truth an admission of his guilt and an attempt to avoid the legal
consequences which would ordinarily ensue therefrom.
We are not convinced. The tenor of the letters sent by the accused-appellant to the
parents of the complainant, while not explicitly admitting the forcible sexual intercourse, could
hardly be considered an admission made merely to avoid the inconvenience of
imprisonment. Consider the following excerpts:

A: Yes, I know him , sir.

Mama at Papa,
Q: Why do you know him?
A: Because he is the husband of my daughter

Masakit man sa inyo ang nagawa ko. Pero nagsasabi ako sa inyo ng totoo. Nang maganap ang
insidenteng iyon. Wala ako sa sarili kong pagkatao. At wala akong matandaan sa nangyari (sic)
[20]

And
xxx
Ma, pa, hindi ko kayo sinusumbatan. Dahil wala naman po akong dapat isumbat sa
inyo. Napakabait ninyo sa kain. Ewan ko nga lang kung bakit ko nagawa iyon. Kung totoo
talagang ako nasa sarili kong pagkatao.[21]
Despite his claim that complainant initiated and consented to the sexual intercourse,
accused-appellant in his letter never made mention of this fact but has, instead, unceasingly
asked for forgiveness from the parents of the complainant, short of admitting categorically the
offense charged. Clearly, the unsolicited letters of the accused-appellant cannot be construed as
an offer of compromise to avoid the inconvenience of imprisonment but a plea of mercy to save
him from the gallows.
In view of the fact that relationship between accused-appellant and the complainant was
not properly established, we are constrained to reduce the penalty imposed by the lower court

from death to reclusion perpetua. Accused-appellant is, however, ordered to pay civil
indemnity ex delicto in the amount of P50,000 and the P50,000 imposed by the lower court shall
constitute moral damages. The fact that the complainant has suffered the trauma of mental,
physical and psychological suffering which constitutes the bases for moral damages is too
obvious to still require the recital thereof at the trial by the victim since the court itself assumes
and even acknowledges such agony on her part as gauge of her credibility.[22]
WHEREFORE, the decision of the Regional Trial Court of Naga City, Branch 25, finding
accused-appellant Raul Berana y Guevarra guilty beyond reasonable doubt of rape is
AFFIRMED with the modification that accused-appellant is sentenced to suffer the penalty
of reclusion perpetua. Accused-appellant is ordered to pay complainant Ma. Elena M. Jarcia the
sum of P50,000 by way of civil indemnity and P50,000 as moral damages. Costs against
accused-appellant.
SO ORDERED.