1. G.R. No. 121099. February 17, 1999.

FIDEL T. SALAMERA, petitioner, vs. SANDIGANBAYAN, FIRST DIVISION, respondent.

Criminal Law; Malversation; Public Officers; One essential element of the crime of malversation is that a
public officer must take public funds, money or property, and misappropriate it to his own private use or
benefit—there must be asportation of public funds or property, akin to the taking of another’s property in
theft.—One essential element of the crime of malversation is that a public officer must take public funds,
money or property, and misappropriate it to his own private use or benefit. There must be asportation of
public funds or property, akin to the taking of another’s property in theft. The funds, money or property
taken must be public funds or private funds impressed with public attributes or character for which the
public officer is accountable.

Same; Same; Same; Elements of Malversation.—“The elements of malversation, essential for the
conviction of an accused, under the above penal provisions are that—“(a) the offender is a public officer;
“(b) he has the custody or control of funds or property by reason of the duties of his office; “(c) the funds
or property involved are public funds or property for which he is accountable; and “(d) he has
appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence
permitted, the taking by another person of, such funds or property.”

Same; Same; Same; Where there is no reason to surrender or confiscate a privately owned gun, its
turnover to a public officer does not invest the gun with public character sufficient to consider such gun as
public property—consequently, the public officer’s failure to return the gun after demand by the private
owner does not constitute a prima facie evidence of malversation.—The question may be asked: Did
Antonio’s surrender of the gun to petitioner mayor invest the gun with public character sufficient to
consider the gun as public property for which the mayor is accountable? We believe not. There was no
reason to surrender or confiscate the gun. It was duly licensed to Ponciano Benavidez. The license is not
transferable. Antonio could not validly possess the gun. He should have returned the gun to Ponciano, the
licensed owner or surrendered it to the local police or to the Constabulary Provincial Commander. By
turning over the gun to petitioner mayor, the gun did not become public property because it was not
intended for public use or purpose nor was it lawfully seized. The gun continued to be private property,
that is why the gun owner rightfully asked for its return to him, not to be turned over to the public coffer
or treasury. Petitioner’s failure to return the gun after demand by the private owner did not constitute a
prima facie evidence of malversation. The property was private and the one who demanded its return was
a private person, not a person in authority. The presumption of conversion will not apply.

Same; Same; Same; A public official not responsible for public funds or property and without authority to
safeguard the same can not be convicted of malversation.—A respected author in Criminal Law wrote
“Malversation can only be committed by a public official who has charge of public funds or property by
virtue of his official position. A public official not responsible for public funds or property and without
authority to safeguard the same can not be convicted of malversation.”

Same; Same; Same; The legal presumption of malversation created by a demand for restitution of public
funds or property is not applicable where the gun was private property and a public officer entitled to its
possession did not make a demand for its return.—What is more, the gun was confiscated by a police
officer at a checkpoint in Quezon City. The policeman should have turned over the confiscated gun to the
Constabulary Firearm and Explosive Unit, in Camp Crame, Quezon City. Instead, he returned the gun to a
security aide of petitioner mayor, as a “favor” to the mayor. The security aide died in the meantime, and,
apparently, the gun got lost. Assuming that the loss was due to petitioner’s fault or negligence, he is not
criminally liable for malversation through negligence because there was no evidence of conversion of
public funds or property to the use or benefit of the accused. The legal presumption of malversation
created by a demand for restitution of public funds or property is not applicable because the gun was
private property and a public officer entitled to its possession did not make the demand for its return.

Same; Same; Evidence; Judicial Notice; It is a grievous error for a court to take judicial notice of the
market value of a gun—the value must be proved in evidence as a fact, as the court can not take judicial
notice of a disputed fact.—One more point. Admittedly, there was no evidence submitted to the court of
the value of the gun to enable the court to fix the penalty to be imposed on the accused. Assuming that
petitioner malversed the gun, in malversation, the penalty for the offense is dependent on the value of the
public funds, money or property malversed. In this case, the Sandiganbayan did not base the penalty on
the minimum value of the gun in the absence of evidence of its true worth. It took judicial notice of its
market value and estimated its “reasonable value” at P5,000.00. This is a grievous error. The
Sandiganbayan could not take judicial notice of the value of the gun. It must be duly proved in evidence
as a fact. The court can not take judicial notice of a disputed fact. The court may take judicial notice of
matters of public knowledge, or which are capable of unquestionable demonstration, or ought to be
known to judges because of their judicial functions. Otherwise, the court must receive evidence of
disputed facts with notice to the parties. This is an innovation introduced in the Revised Rules of
Evidence the Supreme Court adopted on July 1, 1989, which should not be unknown to the lower courts.
The new rule of evidence governs this case, since it was decided in 1995, six years after its effectivity.
Salamera vs. Sandiganbayan, 303 SCRA 217, G.R. No. 121099 February 17, 1999

PARDO, J.:

The case is an appeal via certiorari taken by petitioner from a decision of the Sandiganbayan and its
resolution convicting him of malversation of public property defined and penalized in Article 217 in
relation to Article 217 of the Revised Penal Code, and appreciating the mitigating circumstance of full
restitution, imposing upon him the indeterminate sentence of two (2) years four (4) months and one (1)
day of prision correccional, as maximum; to six (6) years and one (1) day of prision mayor, as maximum;
the penalty of perpetual special disqualification, and a fine of P5,000.00, the value of the .38 Cal. Smith &
Wesson revolver, with Serial No. 879886.

We reverse.

The facts may be related as follows:

On February 2, 1988, petitioner was elected to and assumed the position of mayor of the municipality of
Casiguran, province of Aurora.

Later that month, he received from Casiguran Barangay Captain 1 Antonio Benavidez one .38 Caliber
Smith & Wesson Revolver, with Serial No. 879886. The gun was owned by and licensed to Ponciano
Benavidez, an uncle of Antonio, who mortgaged it to him. Petitioner placed the gun in an attache case.
After about a week, petitioner together with his security men, went to Manila, and brought with them the
attache case with the gun in it. On their return to the province, their car was stopped at a spot checkpoint
in Quezon City, where Pat. Alfredo B. Villanueva of the Quezon City Police saw the revolver. On
petitioner's instruction, his security men surrendered the gun to police officer Villanueva.

Back in the municipality of Casiguran, Ponciano Benavidez, the licensed owner of the gun claimed it
from petitioner. The latter informed Ponciano that the gun was confiscated by the Quezon City Police.

On September 30, 1988, Ponciano Benavidez filed with the office of the Provincial Prosecutor of Aurora
a complaint for theft against petitioner and Antonio Benavidez.

On December 13, 1988, Ponciano Benavidez filed with the Department of Local Government, an
administrative complaint against petitioner for abuse of authority, ignorance of the law and conduct
unbecoming of a public servant.

On January 20, 1989, the Provincial Prosecutor of Aurora dismissed the case for theft.

On April 6, 1989, complainant Ponciano Benavidez filed a complaint for theft against petitioner with the
Office of the Ombudsman in Manila.

On August 21, 1990, during the investigation of the administrative case by the Sangguniang Panlalawigan
of Aurora, complainant Ponciano Benavidez executed an affidavit of desistance acknowledging that
petitioner had paid the value of the gun, and withdrawing the administrative case and the criminal case he
filed against petitioner with the Ombudsman.

On August 22, 1990, the Sangguniang Panlalawigan approved a resolution dismissing the administrative
case against petitioner.

On March 9, 1992, the Ombudsman approved the filing by Special Prosecution Officer Prospero G.
Pelayo of an information against petitioner for malversation of public funds, which was duly filed on
March 12, 1992, with the Sandiganbayan, Manila.

On March 30, 1992, the Sandiganbayan issued a warrant of arrest. On March 30, 1992, petitioner posted a
cash bail of P20,000.00, which he deposited with the provincial treasurer of Aurora, duly approved by
Regional Trial Court Judge Filemon N. Tan of Baler, Aurora. 2

Upon arraignment on June 1, 1992, before the Sandiganbayan, First Division, petitioner entered a plea of
not guilty, and accordingly, the court scheduled the case for pre-trial conference.

Meantime, on or about August 14, 1992, petitioner was able to contact Pat. Villanueva in Camp Karingal,
Quezon City. The latter said that he returned the gun to Patrolman Orgas, one of petitioner's security men
on the very next day after he had confiscated it. Unfortunately, Pat. Orgas did not inform petitioner about
the recovery of the gun, and, at the time Villanueva so informed petitioner, Pat. Orgas had died.
At the pre-trial conference held on August 28, 1992, the prosecution and the accused (petitioner herein)
assisted by counsel de parte, entered into a stipulation of facts signed by them, as follows:

1. At all times relevant to this case, the accused was the

Mayor of the Municipality of Casiguran, Aurora;

2. That in the exercise of his functions as Mayor, the

accused had the occasion to confiscate one .38 caliber
Smith & Wesson revolver with Serial No. 879886 from
Barangay Captain Antonio Benavidez;

3. This weapon was actually owned by Ponciano

Benavidez, the value of which the parties have not
agreed upon;

4. That the accused confiscated this weapon in the

performance of his official functions and was, therefore,
in custody thereof in his capacity as such;

5. That demand was made from the accused by Ponciano

Benavidez sometime in June of 1988 to produce the
above-mentioned firearm but the accused failed to do so;

6. That at a subsequent time, the accused and Ponciano

Benavidez went to the offices of the Quezon City Police
Department in search of this weapon;

7. That there has been restitution of the value of the

firearm by the accused to the complaining witness
Ponciano Benavidez although there is disagreement as to
the amount of the restitution;

8. That the following affidavits were executed:

a. By complaining witness Ponciano

Benavidez indicating his desistance
from further prosecution thereof for
reasons stated therein;

b. By Alfredo Villanueva of the Quezon

City Police Department purporting to
describe the circumstances under which
he allegedly confiscated the weapon in
question from the accused Mayor.
Further to the above stipulations, the Government now marks the following exhibit which is admitted by
the accused:

Exhibit "A" — a xerox copy of the License to Carry Firearm No. 0188490, issued by
Necesitas Katigbak of the Firearm and Explosives Unit, to Ponciano Benavidez involving
.38 caliber Smith & Wesson revolver with SN 879886.

The accused for his part has marked the following exhibits:

Exhibit "1" — The Order of the Fiscal dated January 20, 1989, dismissing the charge of
Theft, which is Annex "1" to the Supplemental Affidavit;

Exhibit "2" — The administrative complaint filed by the complaining witness dated
December 13, 1988, which is Annex "2" to the Supplemental Affidavit;

Exhibit "3" — The Complaint for the filing of the case before the Ombudsman on April
6, 1989, which is Annex "3" to the Supplemental Affidavit;

Exhibit "4" — The investigation before the Sangguniang Panlalawigan dated August 21,
1990 at Baler, Aurora, wherein the owner of the gun submitted his affidavit of desistance
and admitting therein that he was paid for the loss of the gun, which is Annex "4" to the
Supplemental Affidavit;

Exhibit "5" — the Affidavit of Desistance executed by the owner of the gun dated August
21, 1990, marked as Annex "5" to the Supplemental Affidavit, wherein the owner of the
gun admitted that he verified the loss of the gun to be true and also admitted that the
equivalent amount in cash and in kind for the .38 caliber revolver was paid to him, for
which he promised to dismiss the criminal case and the administrative case.

Exhibit "6" — the Minutes of the Sanggunian Panlalawigan of Aurora dated August 22,
1990, which decided to dismiss the administrative case, which is marked as Annex "6" to
the Supplemental Affidavit;

Exhibit "7" — the Resolution of the Investigating Fiscal for the Ombudsman dated
February 24, 1992, which is marked as Annex "7" to the Supplemental Affidavit;

Exhibit "8" — the Resolution of the Ombudsman, which is marked as Annex "8" to the
Supplemental Affidavit;

Exhibit "9" — a copy of the Order of Arrest issued by the Sandiganbayan, marked as
Annex "9" to the Supplemental Affidavit;

Exhibit "10" — the payment of the Bond for the provisional release of the accused,
marked as Annex "10" to the Supplemental Affidavit;
 Exhibit "11" — the Joint Affidavit of the Chairman of the Sangguniang Panlalawigan and
a certain Angelito Salamera stating that they were present when payment was made for
the gun to the owner, which is marked as Annex "11" to the Supplemental Affidavit;

Exhibit "12" — the Affidavit executed by Alfonso Villanueva dated August 14, 1992,
wherein he admitted that he had confiscated the gun at a checkpoint in Quezon City,
which is marked as Annex "12" to the Supplemental Affidavit;

Exhibit "13" — the Affidavit executed by Antonio Benavidez dated July 30, 1989, which
is marked as Annex "13" to the Supplemental Affidavit.

On June 30, 1993, the prosecution formally presented as its evidence Exhibit "A" 3 and upon the
admission thereof, rested its case.

On the other hand, the defense presented two (2) witnesses including petitioner.

After the testimony of the witnesses on July 21, 1993, the court gave the defense counsel ten (10) days to
formally offer his evidence in writing. In time, the defense formally offered its exhibits, and on Septepber
6, 1993, the court admitted all exhibits except Exhibits 11 and 13, which were rejected for being hearsay.

On February 17, 1995, more than a year after the case was submitted for decision, the Sandiganbayan
promulgated its decision, the decretal portion of which narrated in the opening paragraph of this opinion.

On March 3, 1995, petitioner filed a motion for reconsideration of the decision; However, on July 5,
1995, the Sandiganbayan denied the motion.

Hence, this appeal.

On October 4, 1995, the Court required respondent to file its comment on the petition. On January 4,
1996, the Office of the Special Prosecutor filed its comment on the petition for review. On January 30,
1996, the Solicitor General also filed his comment.

We give due course to the petition.

To begin with, petitioner is charged with malversation under Article 217 in relation to Article 222 of the
Revised Penal Code, providing as follows:

Art. 217. Malversation of public funds or property — Presumption of malversation. — Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate
the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall
permit any other person to take such public funds or property, wholly or partially, or shall otherwise be
guilty of the misappropriation of malversation of such funds or property, shall suffer:
 1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two hundred
pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount
involved is more than 200 pesos but does not exceed 6,000 pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period, if the amount involved is more than 6,000 pesos but is less than 12,000
pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount
involved is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum period to reclusion
perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or equal to
the total value of the property embezzled.

The failure of a public officer to duly forthcoming any public funds or property with
which he is chargeable, upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal uses. (As
amended by Rep. Act No. 1060, approved June 12, 1954).

Art. 222. Officers included in the preceding provisions. — The provisions of this chapter
shall apply to private individuals who, in any capacity whatever, have charge of any
insular, provincial or municipal funds, revenues, or property and to any administrator or
depository of funds or property attached, seized or deposited by public authority, even if
such property belongs to a private individuals.

One essential element of the crime of malversation is that a public officer must take public funds, money
or property, and misappropriate it to his own private use or benefit. There must be asportation of public
funds money or property, akin to the taking of another's property in theft. The funds money or property
taken must be public funds or private funds impressed with public attributes or character for which the
public officer is accountable.

In this case, Antonio Benavidez voluntarily turned over the gun, a .38 caliber Smith & Wesson revolver,
to petitioner mayor of the town of Casiguran, Aurora. Antonio surrendered the gun to the mayor. The gun
was duly licensed. It was not seized or confiscated. Antonio obtained possession of the gun from
Ponciano Benavidez, an uncle of his, who was the owner and licensee of the gun. Ponciano mortgaged it
to Antonio.

The elements of malversation, essential for the conviction of an accused, under the above penal
provisions are that —
 (a) the offender is a public officer;

(b) he has the custody or control of funds or property by

reason of the duties of his office;

(c) the funds or property involved are public funds or

property for which he is accountable; and

(d) he has appropriated, taken or misappropriated, or has

consented to, or through abandonment or negligence
permitted, the taking by another person of, such funds or
property. 4

The question may be asked: Did Antonio's surrender of the gun to petitioner mayor invest the gun with
public character sufficient to consider the gun as public property for which the mayor is accountable?
There was no reason to surrender or confiscate the gun. It was duly licensed to Ponciano Benavidez. The
license is not transferable. Antonio could not validly possess the gun. He should have returned the gun to
Ponciano, the licenced owner or surrendered it to the local police or to the Constabulary Provincial
Commander. By turning over the gun to petitioner mayor, the gun did not become public property
because it was not intended for public use or purpose nor was it lawfully sized. The gun continued to be
private property, that is why the gun owner rightfully asked for its return to him, not to be turned over to
the public coffer or treasury. Petitioner's failure to return the gun after demand by the private owner did
not constitute a prima facie evidence of malversation. The property was private and the one who
demanded its return was a private person, not a person in authority. The presumption of conversion will
not apply.

A respected author in Criminal Law wrote "Malversation can only be committed by a public official who
has charge of public funds or property by virtue of his official position. A public official not responsible
for public funds or property and without authority to safeguard the same can not be convicted of
malversation." 5

What is more, the gun was confiscated by a police officer at a checkpoint in Quezon City. The policeman
should have turned over the confiscated gun to the Constabulary Firearm and Explosive Unit, in Camp
Crame, Quezon City. Instead, he returned the gun to a security aide of petitioner mayor, as a "favor" to
the mayor. The security aide died in the meantime, and, apparently, the gun got lost. Assuming that the
loss was due to petitioner's fault or negligence, he is not criminally liable for malversation through
negligence because there was no evidence of public funds or property to the use or benefit of the accused.
The legal presumption of malversation created by a demand for restitution of public funds or property is
not applicable because the gun was private property and a public officer entitled to its possession did not
make the demand for its return.

The presumption takes the place of affirmative proofs showing the actual conversation. It obviates the
necessity of proving acts of conversation; a thing most extremely difficult to do. If in a particular case a
demand was made upon an accountable public official to produce the funds in his custody and he failed to
do so, the presumption thereby arising would render unnecessary further proof of conversation. The
disappearance of public funds in the hands of the accountable public officer is prima facie evidence of its
conversation. Here, there is no presumption of conversion nor evidence of actual conversion.

Nevertheless, petitioner made restitution of the value of the value of the gun to the private owner,
Ponciano Benavidez. Obviously, petitioner did not malverse the gun by dolo or culpa to his private use or
benefit.

One more point. Admittedly, there was no evidence submitted to the court of the value of the gun to
enable the court to fix the penalty to be imposed on the accused. Assuming that petitioner malversed the
gun, in malversation, the penalty for the offense is defendent on the value of the public funds, money or
property malversed. In this case, the Sandiganbayan did not base the penalty on the minimum value of the
gun in the absence of evidence of its true worth. It took judicial notice of its market value and estimated
its "reasonable value" at P5,000.00. This is a grievous error.

The Sandiganbayan could not take judicial notice of the value of the gun. It must be duly proved in
evidence as a fact. The court can not take judicial notice of a disputed fact. The court may take judicial
notice of matters of public knowledge, or which are capable of unquestionable demonstration, or ought to
be known to judges because of of their judicial functions. Otherwise, the court must receive evidence of
disputeds facts with notice to the parties. This is an innovation introduced in the Revised Rules of
Evidence the Supreme Court adopted on July 1, 1989, which should not be unknown to the lower
courts. 9 The new rule of evidence governs this case, since it was decided in 1995, six years after its
effectivity.

WHEREFORE, the Court hereby REVERSES the appealed decision and resolution of the Sandiganbayan
in its Criminal Case No. 17563, and ACQUITS the accused Fidel Salamera y Torres, with costs de oficio.

The Court orders the Sandiganbayan to forthwith cancel the cash bail of the accused, and immediately
reimburse the amount to him.

SO ORDERED.
2. G.R. Nos. 135695-96. October 12, 2000.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. TOMAS TUNDAG, accused-appellant.

Alibis and Denials; Alibi and denial hardly counts as a worthy and weighty ground for exculpation in a
trial involving an accused’s freedom and his life.—Appellant’s defense of alibi and denial is negative and
self-serving. It hardly counts as a worthy and weighty ground for exculpation in a trial involving his
freedom and his life. Against the testimony of private complainant who testified on affirmative matters,
such defense is not only trite but pathetic. Denial is an inherently weak defense, which becomes even
weaker in the face of the positive identification by the victim of the appellant as the violator of her honor.
Indeed, we find that private complainant was unequivocal in charging appellant with ravishing her. The
victim’s account of the rapes complained of was straightforward, detailed, and consistent. Her testimony
never wavered even after it had been explained to her that her father could be meted out the death penalty
if found guilty by the court.

Criminal Law; Rape; In a prosecution for rape, the complainant’s credibility is the single most important
issue.—In a prosecution for rape, the complainant’s credibility is the single most important issue. The
determination of the credibility of witnesses is primarily the function of the trial court. The rationale for
this is that the trial court has the advantage of having observed at first hand the demeanor of the witnesses
on the stand and, therefore, is in a better position to form an accurate impression and conclusion. Absent
any showing that certain facts of value have clearly been overlooked, which if considered could affect the
result of the case, or that the trial court’s finding are clearly arbitrary, the conclusions reached by the court
of origin must be respected and the judgment rendered affirmed.

Same; Same; Filing a case for incestuous rape is of such a nature that a daughter’s accusation must be
taken seriously—it goes against human experience that a girl would fabricate a story which would drag
herself as well as her family to a lifetime of dishonor, unless that is the truth.—Such allegation of a family
feud, however, does not explain the charges away. Filing a case for incestuous rape is of such a nature
that a daughter’s accusation must be taken seriously. It goes against human experience that a girl would
fabricate a story which would drag herself as well as her family to a lifetime of dishonor, unless that is the
truth, for it is her natural instinct to protect her honor. More so, where her charges could mean the death
of her own father, as in this case.

Same; Same; Qualified Rape; Elements.—Section 335 of the Revised Penal Code, as amended by Section
11 of R.A. No. 7659, penalizes rape of a minor daughter by her father as qualified rape and a heinous
crime. In proving such felony, the prosecution must allege and prove the elements of rape: (1) sexual
congress; (2) with woman; (3) by force or without her consent and, in order to warrant the imposition of
capital punishment, the additional elements that; (4) the victim is under 18 years of age at the time of the
rape and (5) the offender is a parent of the victim.

Same; Same; Same; Judicial Notice; Words and Phrases; Judicial notice is the cognizance of certain facts
which judges may properly take and act on without proof because they already know them.—Judicial
notice is the cognizance of certain facts which judges may properly take and act on without proof because
they already know them. Under the Rules of Court, judicial notice may either be mandatory or
discretionary.
Same; Same; Same; Same; In this case, judicial notice of the age of the victim is improper, despite the
defense counsel’s admission, thereof acceding to the prosecution’s motion.—In this case, judicial notice
of the age of the victim is improper, despite the defense counsel’s admission thereof acceding to the
prosecution’s motion. As required by Section 3 of Rule 129, as to any other matters such as age, a hearing
is required before courts can take judicial notice of such fact. Generally, the age of the victim may be
proven by the birth or baptismal certificate of the victim, or in the absence thereof, upon showing that said
documents were lost or destroyed, by other documentary or oral evidence sufficient for the purpose.

Same; Same; Same; The minority of the victim must be proved with equal certainty and clearness as the
crime itself.—In several recent cases, we have emphasized the need for independent proof of the age of
the victim, aside from testimonial evidence from the victim or her relatives. In People v. Javier, we
stressed that the prosecution must present independent proof of the age of the victim, even though it is not
contested by the defense. The minority of the victim must be proved with equal certainty and clearness as
the crime itself. In People v. Cula, we reiterated that it is the burden of the prosecution to prove with
certainty the fact that the victim was below 18 when the rape was committed in order to justify the
imposition of the death penalty. Since the record of the case was bereft of any independent evidence
thereon, such as the victim’s duly certified Certificate of Live Birth, accurately showing private
complainant’s age, appellant could not be convicted of rape in its qualified form. In People v. Veloso, the
victim was alleged to have been only 9 years of age at the time of the rape. It held that the trial court was
correct when it ruled that the prosecution failed to prove the victim’s age other than through the testimony
of her father and herself.

Same; Same; Same; The failure to sufficiently establish victim’s age by independent proof is a bar to
conviction for rape in its qualified form.—Considering the statutory requirement in Section 335 of the
Revised Penal Code as amended by R.A. No. 7659 and R.A. No. 8353, we reiterate here what the Court
has held in Javier without any dissent, that the failure to sufficiently establish victim’s age by independent
proof is a bar to conviction for rape in its qualified form. For, in the words of Melo, J., “independent
proof of the actual age of a rape victim becomes vital and essential so as to remove an ‘iota of doubt’ that
the case falls under the qualifying circumstances” for the imposition of the death penalty set by the law.

Same; Same; Same; The father-daughter relationship has been treated by Congress in the nature of a
special circumstance which makes the imposition of the death penalty mandatory.—The award of
exemplary damages separately is also in order, but on a different basis and for a different amount.
Appellant being the father of the victim, a fact duly proved during trial, we find that the alternative
circumstance of relationship should be appreciated here as an aggravating circumstance. Under Article
2230 of the New Civil Code, exemplary damages may be imposed when the crime was committed with
one or more aggravating circumstances. Hence, we find an award of exemplary damages in the amount of
P25,000.00 proper. Note that generally, in rape cases imposing the death penalty, the rule is that
relationship is no longer appreciated as a generic aggravating circumstance in view of the amendments
introduced by R.A. Nos. 7659 and 8353. The father-daughter relationship has been treated by Congress in
the nature of a special circumstance which makes the imposition of the death penalty mandatory.
However, in this case, the special qualifying circumstance of relationship was proved but not the minority
of the victim, taking the case out of the ambit of mandatory death sentence. Hence, relationship can be
appreciated as a generic aggravating circumstance in this instance so that exemplary/damages are called
for. In rapes committed by fathers on their own daughters, exemplary damages may be imposed to deter
other fathers with perverse tendency or aberrant sexual behavior from sexually abusing their own
daughters.

QUISUMBING, J.:

For automatic review is the judgment of the Regional Trial Court of Mandaue City, Branch 28, in
Criminal Cases Nos.DU-6186 and DU-6203, finding appellant Tomas Tundag guilty of two counts of
incestuous rape and sentencing him to death twice.
On November 18, 1997, private complainant Mary Ann Tundag filed with the Mandaue City
Prosecutors Office two separate complaints for incestuous rape. The first complaint, docketed as Criminal
Case No. DU-6186, alleged:

That on or about the 5th day of September, 1997, in the City of Mandaue, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being the father of complainant MARY
ANN TUNDAG, who is a 13-year-old girl, with deliberate intent, did then and there wilfully, unlawfully
and feloniously have sexual intercourse with the said offended party against the latters will.

CONTRARY TO LAW.[1]

The other, docketed as Criminal Case No. DU-6203, averred:

That on or about the 7th day of November, 1997, in the City of Mandaue, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, being the father of complainant MARY
ANN TUNDAG, who is a 13-year-old girl, with deliberate intent, did then and there wilfully, unlawfully
and feloniously have sexual intercourse with the said offended party against the latters will.

CONTRARY TO LAW.[2]

Upon arraignment appellant, assisted by counsel de parte, pleaded Not Guilty to the charges.
The two cases were consolidated and a joint trial ensued.
Appellants defense was bare denial. He claimed that private complainant had fabricated the rape
charges against him since he and his daughter, had a quarrel when he accordingly reprimanded her for going
out whenever he was not at home.[3]
Appellant did not present any witness to reinforce his testimony.
On August 31, 1998, the trial court rendered its decision, thus:

WHEREFORE, foregoing premises considered, Joint Judgment is hereby rendered, to wit:

I. In Criminal Case No. DU-6186 -

a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt for the crime of rape,
said accused is hereby sentenced to the penalty of death;

b) To indemnify the offended party Mary Ann Tundag the following amounts:

(1) P50,000.00 by reason of the commission of the offense of rape upon her; and

(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in relation to Articles 2217
and 2230 of the New Civil Code for the pain and moral shock suffered by her and for the commission of
the crime of rape with one qualifying aggravating circumstance; and

c) To pay the costs.

II. In Criminal Case No. DU-6203 -

a) Finding the herein accused TOMAS TUNDAG guilty beyond reasonable doubt for the crime of rape,
said accused is hereby sentenced to the penalty of death;

b) To indemnify the offended party Mary Ann Tundag the following amounts:

(1) P50,000.00 by reason of the commission of the offense of rape upon her; and

(2) Another P50,000.00 as moral and exemplary damages under Article 2219 in relation to Articles 2217
and 2230 of the New Civil Code for the pain and moral shock suffered by her and for the commission of
the crime of rape with one qualifying aggravating circumstance; and

(3) To pay the costs.

SO ORDERED.[4]

In its judgment, the court below gave credence to complainants version of what accused did to her.

The evidence for the prosecution as adduced during the trial on the merits clearly shows that private
complainant Mary Ann Tundag is a 13 year old girl who does not know how to read and write and has an
IQ of 76% which is a very low general mental ability and was living with her father, the herein accused,
at Galaxy Compound, Mandaue City.

xxx

That on September 5, 1997 at about 10:00 oclock in the evening, she was in the house together with her
father. But before she went to sleep, her father was already lying down on the mat while herself (sic) just
lied down at his head side which was not necessarily beside him. However, when she was already
sleeping, she noticed that her father who was already undressed was beside her and was embracing
her.Then, he undressed her which she resisted but her father used a knife and told her that he would kill
her if she shouts and after that, he inserted his penis into her vagina and told her not to shout or tell
anyone.In effect, his penis penetrated her genital, which made her vagina bleed and was very painful.

That when the penis of her father was already inserted in her vagina, her father was all the time asking by
saying (sic) : Does it feel good? And at the same time, he was laughing and further, told her that a woman
who does not marry can never enter heaven and he got angry with her when she contradicted his
statement.

That while the penis of her father was inside her vagina and (he) was humping over her, she felt intense
pain that she cried and told him to pull it out but did not accede and in fact, said: Why will I pull it out
when it feels so good(?)

That after removing his penis from her vagina and after telling her that she could not go to heaven if she
did not get married, her father just stayed there and continued smoking while she cried.

That in the evening of November 7, 1997, she was at home washing the dishes while her father was just
smoking and squatting. That after she finished washing the dishes, she lied (sic) down to sleep when her
father embraced her and since she does not like what he did to her, she placed a stool between them but he
just brushed it aside and laid down with her and was able to take her womanhood again by using a very
sharp knife which he was holding and was pointing it at the right side of her neck which made her afraid.

That in the early morning of the following day, she left her fathers place and went to her neighbor by the
name of Bebie Cabahug and told her what had happened to her, who, in turn, advised her to report the
matter to the police, which she did and accompanied by the policemen, she went to the Southern Islands
Hospital where she was examined and after her medical examination, she was brought back by the police
and was investigated by them.[5]

Appellants claim that the complainants charges were manufactured did not impress the trial court,
which found him twice guilty of rape. Now before us, appellant assails his double conviction, simply
contending that:[6]

THE TRIAL COURT HAS COMMITTED AN ERROR IN NOT ABSOLVING THE ACCUSED-
APPELLANT OF THE CRIMES CHARGED IN THE INFORMATIONS DESPITE THE PRESENCE
OF REASONABLE DOUBT TO EXCULPATE HIM OF THE SAME.

Appellant flatly denies that the incidents complained of ever took place. He contends that on
September 5, 1997, he was working as a watch repairman near Gals Bakery in Mandaue City Market and
went home tired and sleepy at around 11:00 oclock that evening. On November 7, 1997, he claims he was
at work. In his brief, he argues that it was impossible for him to have raped his daughter because when the
incidents allegedly transpired, he went to work and naturally, being exhausted and tired, it is impossible for
him to do such wrongdoings.[7]
The Office of the Solicitor General disagrees with appellant and urges the Court to affirm the trial
courts decision, with the recommendation that the award of damages and indemnity ex delicto be modified
to conform to prevailing jurisprudence.
 Considering the gravity of the offense charged as a heinous crime and the irreversibility of the penalty
of death imposed in each of these cases before us, the Court leaves no stone unturned in its review of the
records, including the evidence presented by both the prosecution and the defense. Conviction must rest on
nothing less than a moral certainty of guilt.[8] But here we find no room to disturb the trial courts judgment
concerning appellants guilt, because his defense is utterly untenable.
Appellants defense of alibi and denial is negative and self-serving. It hardly counts as a worthy and
weighty ground for exculpation in a trial involving his freedom and his life. Against the testimony of private
complainant who testified on affirmative matters,[9] such defense is not only trite but pathetic. Denial is an
inherently weak defense, which becomes even weaker in the face of the positive identification by the victim
of the appellant as the violator of her honor.[10] Indeed, we find that private complainant was unequivocal
in charging appellant with ravishing her. The victims account of the rapes complained of was
straightforward, detailed, and consistent.[11] Her testimony never wavered even after it had been explained
to her that her father could be meted out the death penalty if found guilty by the court.[12]
In a prosecution for rape, the complainants credibility is the single most important issue. [13] The
determination of the credibility of witnesses is primarily the function of the trial court. The rationale for
this is that the trial court has the advantage of having observed at first hand the demeanor of the witnesses
on the stand and, therefore, is in a better position to form an accurate impression and conclusion.[14] Absent
any showing that certain facts of value have clearly been overlooked, which if considered could affect the
result of the case, or that the trial courts finding are clearly arbitrary, the conclusions reached by the court
of origin must be respected and the judgment rendered affirmed.[15]
Moreover, we note here that private complainants testimony is corroborated by medical findings that
lacerations were present in her hymen. The examination conducted by Dr. Bessie Acebes upon the private
complainant yielded the following results:

Genitalia: grossly female

Pubic Hairs: scanty

Labia Majora: coaptated

Labia Minora: -do-

Fourchette: U-shaped

Vestibule: pinkish

Hymen: + old healed laceration at 3 and 9 oclock position(s).

Orifice: admits 2 fingers with ease

Vagina:

Walls: pinkish
 Ruganities: prominent

Uterus: small

Cervix: closed

Discharges: Mucoid, minimal

Smears:

Conclusions: sperm identification (-)

Gram staining of vaginal disc.[16]

Dr. Acebes testified that her findings of healed hymenal lacerations in the complainants private parts
meant a history of sexual congress on her part.[17] According to her, the lacerations may have been caused
by the entry of an erect male organ into complainants genitals. The examining physician likewise pointed
out that previous coitus may be inferred from complainants U-shaped fourchette since the fourchette of a
female who has not yet experienced sexual intercourse is V-shaped.[18] While Dr. Acebes conceded under
cross-examination, that the existence of the datum U-shape(d) fourchette does not conclusively and
absolutely mean that there was sexual intercourse or contact because it can be caused by masturbation of
fingers or other things,[19] nonetheless, the presence of the hymenal lacerations tends to support private
complainants claim that she was raped by appellant.
Appellant next contends that his daughter pressed the rape charges against him because she had
quarreled with him after he had castigated her for misbehavior. He stresses that the prosecution did not
rebut his testimony regarding his quarrel or misunderstanding with private complainant. He urges us to
consider the charges filed against him as the result of his frequent castigation of her delinquent behavior. [20]
Such allegation of a family feud, however, does not explain the charges away. Filing a case for
incestuous rape is of such a nature that a daughters accusation must be taken seriously.It goes against human
experience that a girl would fabricate a story which would drag herself as well as her family to a lifetime
of dishonor, unless that is the truth, for it is her natural instinct to protect her honor.[21] More so, where her
charges could mean the death of her own father, as in this case.
Appellant likewise points out that it was very unlikely for him to have committed the crimes imputed
to him considering that he and his wife had ten children to attend to and care for.This argument, however,
is impertinent and immaterial. Appellant was estranged from his wife, and private complainant was the only
child who lived with him.[22] As pointed out by the Solicitor General, appellant was thus free to do as he
wished to satisfy his bestial lust on his daughter.[23]
Nor does appellants assertion that private complainant has some psychological problems and a low IQ
of 76 in any way favor his defense. These matters did not affect the credibility of her testimony that
appellant raped her twice. We note that the victim understood the consequences of prosecuting the rape
charges against her own father, as shown by the following testimony of the victim on cross-examination:
 Q : Were you informed that if, and when your father will be found guilty, your father will be sentenced
to death?
A : Yes.
Q : Until now you wanted that your father will be sentenced by death?
A (Witness nodding.)
xxx
Q : I will inform you, Miss Witness, that you have filed two cases against your father and in case your
father would be found guilty, two death sentences will be imposed against him?
A: Yes.
Q: With that information, do you still want this case would proceed?
A: I want this to proceed.[24]
Indeed, appellant is guilty. But is the penalty of death imposed on him correct?
Section 335 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659,[25] penalizes rape
of a minor daughter by her father as qualified rape[26] and a heinous crime. In proving such felony, the
prosecution must allege and prove the elements of rape: (1) sexual congress; (2) with woman; (3) by force
or without her consent[27] and in order to warrant the imposition of capital punishment, the additional
elements that: (4) the victim is under 18 years of age at the time of the rape and (5) the offender is a parent
of the victim.[28]
In this case, it was sufficiently alleged and proven that the offender was the victims father.[29] But the
victims age was not properly and sufficiently proved beyond reasonable doubt. She testified that she was
thirteen years old at the time of the rapes. However, she admitted that she did not know exactly when she
was born because her mother did not tell her. She further said that her birth certificate was likewise with
her mother. In her own words, the victim testified - [30]
COURT TO WITNESS
Q: When were you born?
A: I do not know.
Q: You do not know your birthday?
A: My mama did not tell me exactly when I asked her.
COURT: Proceed.
FISCAL PEREZ: For our failure to secure the Birth Certificate Your Honor, may we just request for
judicial notice that the victim here is below 18 years old.
ATTY. SURALTA: Admitted.
Judicial notice is the cognizance of certain facts which judges may properly take and act on without
proof because they already know them.[31] Under the Rules of Court, judicial notice may either be
mandatory or discretionary. Section 1 of Rule 129 of the Rules of Court provides when court shall take
mandatory judicial notice of facts -

SECTION 1. Judicial notice, when mandatory. - A court shall take judicial notice without the introduction
of evidence, of the existence and territorial extent of states, their political history, forms of government
and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their
seals, the political constitution and history of the Philippines, the official acts of the legislative, executive
and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical
divisions.

Section 2 of Rule 129 enumerates the instances when courts may take discretionary judicial notice of
facts -

SEC. 2. Judicial notice, when discretionary. - A court may take judicial notice of matters which are of
public knowledge, or are capable of unquestionable demonstration or ought to be known to judges
because of their judicial functions.

Thus, it can be considered of public knowledge and judicially noticed that the scene of the rape is not
always nor necessarily isolated or secluded for lust is no respecter of time or place. The offense of rape can
and has been committed in places where people congregate, e.g. inside a house where there are occupants,
a five (5) meter room with five (5) people inside, or even in the same room which the victim is sharing with
the accuseds sister.[32]
The Court has likewise taken judicial notice of the Filipinas inbred modesty and shyness and her
antipathy in publicly airing acts which blemish her honor and virtue.[33]
On the other hand, matters which are capable of unquestionable demonstration pertain to fields of
professional and scientific knowledge. For example, in People v. Alicante,[34] the trial court took judicial
notice of the clinical records of the attending physicians concerning the birth of twin baby boys as premature
since one of the alleged rapes had occurred 6 to 7 months earlier.
As to matters which ought to be known to judges because of their judicial functions, an example would
be facts which are ascertainable from the record of court proceedings, e.g. as to when court notices were
received by a party.
With respect to other matters not falling within the mandatory or discretionary judicial notice, the court
can take judicial notice of a fact pursuant to the procedure in Section 3 of Rule 129 of the Rules of Court
which requires that -

SEC. 3. Judicial notice, when hearing necessary. - During the trial, the court, on its own initiative, or on
request of a party, may announce its intention to take judicial notice of any matter and allow the parties to
be heard thereon.

After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a
party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter is
decisive of a material issue in the case.
 In this case, judicial notice of the age of the victim is improper, despite the defense counsels admission,
thereof acceding to the prosecutions motion. As required by Section 3 of Rule 129, as to any other matters
such as age, a hearing is required before courts can take judicial notice of such fact. Generally, the age of
the victim may be proven by the birth or baptismal certificate of the victim, or in the absence thereof, upon
showing that said documents were lost or destroyed, by other documentary or oral evidence sufficient for
the purpose.
Thus, in People v. Rebancos, 172 SCRA 426 (1989), the victim was below 12 and we found that the
rape committed was statutory rape. The mother testified that her daughter was born on October 26, 1974,
and so was only 9 years old at the time of the rape on February 12, 1984. Although no birth certificate was
presented because the victims birth had allegedly not been registered, her baptismal certificate was duly
presented. Hence, we ruled that the mothers testimony coupled with the presentation of the baptismal
certificate was sufficient to establish that the victim was below 12 at the time of the rape.
However, in People v. Vargas, 257 SCRA 603 (1996), we ruled that appellant can only be convicted
of simple rape, and not statutory rape, because of failure of the prosecution to prove the minority of the
victim, who was allegedly 10 years old at the time of the rape. The prosecution failed to present either the
birth or baptismal certificate of the victim. Also there was no showing that the said documents were lost or
destroyed to justify their non-presentation. We held that testimony of the victim and her aunt were hearsay,
and that it was not correct for the trial court to judge the age of the victim by her appearance.
In several recent cases, we have emphasized the need for independent proof of the age of the victim,
aside from testimonial evidence from the victim or her relatives. In People v. Javier,[35] we stressed that the
prosecution must present independent proof of the age of the victim, even though it is not contested by the
defense. The minority of the victim must be proved with equal certainty and clearness as the crime
itself. In People v. Cula,[36] we reiterated that it is the burden of the prosecution to prove with certainty the
fact that the victim was below 18 when the rape was committed in order to justify the imposition of the
death penalty. Since the record of the case was bereft of any independent evidence thereon, such as the
victims duly certified Certificate of Live Birth, accurately showing private complainants age, appellant
could not be convicted of rape in its qualified form. In People v. Veloso,[37] the victim was alleged to have
been only 9 years of age at the time of the rape. It held that the trial court was correct when it ruled that the
prosecution failed to prove the victims age other than through the testimony of her father and herself.
Considering the statutory requirement in Section 335 of the Revised Penal Code as amended by R.A.
No. 7659 and R.A. No. 8353, we reiterate here what the Court has held in Javier without any dissent, that
the failure to sufficiently establish victims age by independent proof is a bar to conviction for rape in its
qualified form. For, in the words of Melo, J., independent proof of the actual age of a rape victim becomes
vital and essential so as to remove an iota of doubt that the case falls under the qualifying circumstances
for the imposition of the death penalty set by the law.
In this case, the first rape was committed on September 5, 1997 and is therefore governed by the death
penalty law, R.A. 7659. The penalty for the crime of simple rape or rape in its unqualified form under Art.
335 of the Revised Penal Code, as amended by Sec. 11 of R.A. 7659, is reclusion perpetua. The second
rape was committed on November 7, 1997, after the effectivity of R.A. 8353, also known as the Anti-Rape
Law of 1997, which took effect on October 22, 1997. The penalty for rape in its unqualified form remains
the same.
 As to civil indemnity, the trial court correctly awarded P50,000.00 for each count of rape as civil
indemnity. However, the award of another P50,000.00 as moral and exemplary damages under Article 2219
in relation to Articles 2217 and 2230 of the Civil Code for each count is imprecise. In rape cases, the
prevailing jurisprudence permits the award of moral damages without need for pleading or proof as to the
basis thereof.[38] Thus, pursuant to current jurisprudence, we award the amount of P50,000.00 as moral
damages for each count of rape.
The award of exemplary damages separately is also in order, but on a different basis and for a different
amount. Appellant being the father of the victim, a fact duly proved during trial, we find that the alternative
circumstance of relationship should be appreciated here as an aggravating circumstance. Under Article
2230 of the New Civil Code, exemplary damages may be imposed when the crime was committed with one
or more aggravating circumstances. Hence, we find an award of exemplary damages in the amount of
P25,000.00 proper. Note that generally, in rape cases imposing the death penalty, the rule is that relationship
is no longer appreciated as a generic aggravating circumstance in view of the amendments introduced by
R.A. Nos. 7659 and 8353. The father-daughter relationship has been treated by Congress in the nature of a
special circumstance which makes the imposition of the death penalty mandatory.[39] However, in this case,
the special qualifying circumstance of relationship was proved but not the minority of the victim, taking
the case out of the ambit of mandatory death sentence. Hence, relationship can be appreciated as a generic
aggravating circumstance in this instance so that exemplary damages are called for. In rapes committed by
fathers on their own daughters, exemplary damages may be imposed to deter other fathers with perverse
tendency or aberrant sexual behavior from sexually abusing their own daughters.[40]
WHEREFORE, the judgment of the Regional Trial Court of Mandaue City, Branch 28, in Criminal
Case Nos. DU-6186 and DU-6203, is hereby MODIFIED as follows: appellant Tomas Tundag is found
guilty of two (2) counts of simple rape; and for each count, sentenced to reclusion perpetua and ordered to
pay the victim the amount of P50,000.00 as indemnity, P50,000.00 as moral damages, and P25,000.00 as
exemplary damages.
No pronouncement as to costs.
SO ORDERED.
3. G.R. No. 138471. October 10, 2002.*

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL PRUNA y RAMIREZ or

ERMAN PRUNA y RAMIREZ, accused-appellant.

Witnesses; As a general rule, when a witness takes the witness stand, the law, on ground of public policy,
presumes that he is competent.—As a general rule, when a witness takes the witness stand, the law, on
ground of public policy, presumes that he is competent. The court cannot reject the witness in the absence
of proof of his incompetency. The burden is, therefore, upon the party objecting to the competency of a
witness to establish the ground of incompetency.

Same; Child Witnesses; No precise minimum age can be fixed at which children shall be excluded from
testifying—the intelligence, not the age, of a young child is the test of the competency as a witness.—
Section 21 of Rule 130 of the Rules on Evidence enumerates the persons who are disqualified to be
witnesses. Among those disqualified are “[c]hildren whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are examined and relating them truthfully.” No
precise minimum age can be fixed at which children shall be excluded from testifying. The intelligence,
not the age, of a young child is the test of the competency as a witness. It is settled that a child, regardless
of age, can be a competent witness if he can perceive and, in perceiving, can make known his perception
to others and that he is capable of relating truthfully the facts for which he is examined.

Same; Same; In determining the competency of a child witness, the court must consider his capacity (a) at
the time the fact to be testified to occurred such that he could receive correct impressions thereof, (b) to
comprehend the obligation of an oath, and (c) to relate those facts truly to the court at the time he is
offered as a witness; The question of competency of a child-witness rests primarily in the sound discretion
of the trial court.—In determining the competency of a child witness, the court must consider his capacity
(a) at the time the fact to be testified to occurred such that he could receive correct impressions thereof;
(b) to comprehend the obligation of an oath; and (c) to relate those facts truly to the court at the time he is
offered as a witness. The examination should show that the child has some understanding of the
punishment which may result from false swearing.

The requisite appreciation of consequences is disclosed where the child states that he knows that it is
wrong to tell a lie, and that he would be punished if he does so, or that he uses language which is
equivalent to saying that he would be sent to hell for false swearing. A child can be disqualified only if it
can be shown that his mental maturity renders him incapable of perceiving facts respecting which he is
being examined and of relating them truthfully. The question of competency of a child-witness rests
primarily in the sound discretion of the trial court. This is so because the trial judge sees the proposed
witness and observes his manner of testifying, his apparent possession or lack of intelligence, as well as
his understanding of the obligation of an oath. Since many of the witness’ manners cannot be
photographed into the record, the finding of the trial judge will not be disturbed or reversed unless from
what is preserved it is clear that such finding was erroneous.

Same; Same; The most natural reaction for victims of criminal violence to have a lasting impression of
the manner in which the crime was committed and the identity of the person responsible therefor.—We
are not persuaded by appellant’s assertion that LIZETTE should not be allowed to testify two years after
the alleged rape “when the interplay of frail memory combines with the imagination of earlier years.” It
must be noted that it is a most natural reaction for victims of criminal violence to have a lasting
impression of the manner in which the crime was committed and the identity of the person responsible
therefor. In a string of cases, we have said that the testimony of a rape victim who is of young or tender
age is credible and deserves full credit, especially where no motive is attributed to the victim that would
make her testify falsely against the accused. Indeed, a girl of such age as LIZETTE would not concoct a
story of defloration; allow the examination of her private parts; and undergo the expense, trouble,
inconvenience, and the trauma of a public trial unless she was in fact raped.

Same; Evidence; Hearsay Rule; Words and Phrases; The term “hearsay” as used in the law on evidence,
signifies evidence which is not founded upon the personal knowledge of the witness from whom it is
elicited and which consequently does not depend wholly for its credibility and weight upon the
confidence which the court may have in him; The reason for the exclusion of hearsay evidence is that the
party against whom the hearsay testimony is presented is deprived of the right or opportunity to cross-
examine the person to whom the statements are attributed.—The term “hearsay” as used in the law on
evidence, signifies evidence which is not founded upon the personal knowledge of the witness from
whom it is elicited and which consequently does not depend wholly for its credibility and weight upon the
confidence which the court may have in him; its value, if any, is measured by the credit to be given to
some third person not sworn as a witness to that fact, and consequently not subject to cross-examination.
If one therefore testifies to facts which he learned from a third person not sworn as a witness to those
facts, his testimony is inadmissible as hearsay evidence. The reason for the exclusion of hearsay evidence
is that the party against whom the hearsay testimony is presented is deprived of the right or opportunity to
cross-examine the person to whom the statements are attributed. Moreover, the court is without
opportunity to test the credibility of hearsay statements by observing the demeanor of the person who
made them.

Same; Same; Same; The mother’s testimony on the incident related to her by her daughter cannot be
disregarded as hearsay evidence where the daughter herself was sworn as a witness to the fact testified by
the mother.—In the instant case, the declarant (LIZETTE) herself was sworn as a witness to the fact
testified to by Jacqueline. The appellant even cross-examined her (LIZETTE). Moreover, the trial court
had the opportunity to observe her manner of testifying. Hence, Jacqueline’s testimony on the incident
related to her by her daughter cannot be disregarded as hear-say evidence.

Criminal Law; Rape; A rape victim can easily identify her assailant especially if he is known to her
because during the rape, she is physically close to her assailant that enables her to have a good look at the
latter’s physical features.—When LIZETTE was put in the witness stand, she unhesitatingly identified
PRUNA, their neighbor, as the one who defiled her. A rape victim can easily identify her assailant
especially if he is known to her because during the rape, she is physically close to her assailant that
enables her to have a good look at the latter’s physical features. LIZETTE testified that on 3 January 1995
PRUNA, whom she called Boy, laid her in a grassy area and inserted his penis into her genitalia. When a
girl or a woman says that she has been raped she says in effect all that is necessary to show that rape was
truly committed. She is not expected to remember all the ugly details of the outrage committed against
her. And when her testimony passes the test of credibility, the accused can be convicted on the basis
thereof, for in most cases it is the only evidence that can be offered to establish his guilt.

Same; Same; The absence of fresh lacerations does not preclude the finding of rape, especially when the
victim is of tender age—rape is consummated by the slightest penile penetration of the labia or pudendum
of the female.—By and large, the medical evidence lends credence to LIZETTE’s testimony that PRUNA
inserted his penis into her vagina. The Medico-Legal Report shows that there was hyperemia or reddening
of the vaginal opening of LIZETTE. As opined by Dr. Quiroz, who was presented as an expert witness,
hyperemia can be caused by the insertion of a hard object like penis and finger. The presence of sperm
cells in the vaginal canal and urine of LIZETTE is also a mute testimony of the sexual contact that further
strengthens LIZETTE’s claim of rape. This Court is not oblivious of the finding that no laceration was
found in LIZETTE’s organ despite the fact that she was examined immediately after she was raped. We
have already ruled, however, that the absence of fresh lacerations does not preclude the finding of rape,
especially when the victim is of tender age. Well-settled is the rule that rape is consummated by the
slightest penile penetration of the labia or pudendum of the female. The presence of hyperemia in
LIZETTE’s vaginal opening and the existence of sperm cells in her vaginal canal and urine are clear
indications that PRUNA’s organ indeed touched the labia or pudendum of LIZETTE.

Same; Same; Alibi; For alibi to prosper, it must be proved that during the commission of the crime, the
accused was in another place and that it was physically impossible for him to be at the crime scene.—The
trial court correctly disregarded the defense of alibi raised by the accused. We have consistently held that
for alibi to prosper, it must be proved that during the commission of the crime, the accused was in another
place and that it was physically impossible for him to be at the crime scene. Just like denial, alibi is an
inherently weak defense; and unless supported by clear and convincing evidence, the same cannot prevail
over the positive declaration of the victim. We have also held that when alibi is established only by the
accused, his relatives, or close friend, the same should be treated with strictest scrutiny.

Same; Same; No mother in her right mind would use her offspring as an engine of malice.—The defense,
through Carlito, attempted to impute motive to Jacqueline in filing against PRUNA the charge of rape.
According to him, LIZETTE’s grandparents, the Sulits, wanted to buy the place of the PRUNA family,
but the latter refused. Aside from the fact that such testimony was not corroborated, said motive, if at all,
is too flimsy to be even considered. No mother in her right mind would use her offspring as an engine of
malice. She would not subject her child to the humiliation, disgrace, and even the stigma attendant to a
prosecution for rape unless she is motivated by the desire to bring to justice the person responsible for her
child’s defilement.

Same; Same; Qualified Rape; Birth Certificates; The minority of the victim must be proved with equal
certainty and clearness as the crime itself—the failure to sufficiently establish the victim’s age is fatal and
consequently bars conviction for rape in its qualified form; A person’s age is best proved by the birth
certificate.—Article 335, seventh paragraph, no. 4, of the Revised Penal Code, as amended by Republic
Act No. 7659, provides that the death penalty shall be imposed if the crime of rape is committed against a
“child below seven (7) years old.” We have held that in such a case the minority of the victim must be
proved with equal certainty and clearness as the crime itself. The failure to sufficiently establish the
victim’s age is fatal and consequently bars conviction for rape in its qualified form. A person’s age is best
proved by the birth certificate. But is the presentation of the victim’s birth certificate a sine qua non
requirement to prove her age for the appreciation of minority either as an element of the crime or as a
qualifying circumstance? Recent jurisprudence has conflicting pronouncements.

Same; Same; Same; Same; Guidelines in Appreciating Age, Either as Element of the Crime or as a
Qualifying Circumstance.—In order to remove any confusion that may be engendered by the foregoing
cases, we hereby set the following guidelines in appreciating age, either as an element of the crime or as a
qualifying circumstance. 1. The best evidence to prove the age of the offended party is an original or
certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live
birth, similar authentic documents such as baptismal certificate and school records which show the date of
birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is
shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the
victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify
on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If
the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7
years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she
is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be
proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victim’s mother or relatives concerning the victim’s age, the
complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused. 5.
It is the prosecution that has the burden of proving the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding age shall not be taken against him. 6. The trial
court should always make a categorical finding as to the age of the victim.

Same; Same; Same; Penalties; Death Penalty; The severity of the death penalty, especially its irreversible
and final nature once carried out, makes the decision-making process in capital offenses aptly subject to
the most exacting rules of procedure and evidence; That the defense invoked the complainant’s tender age
for purposes of questioning her competence to testify is not necessarily an admission that she was below 7
years of age when the accused raped her.—For PRUNA to be convicted of rape in its qualified form and
meted the supreme penalty of death, it must be established with certainty that LIZETTE was below 7
years old at the time of the commission of the crime. It must be stressed that the severity of the death
penalty, especially its reversible and final nature once carried out, makes the decision-making process in
capital offenses aptly subject to the most exacting rules of procedure and evidence. In view of the
uncertainty of LIZETTE’s exact age, corroborative evidence such as her birth certificate, baptismal
certificate or any other authentic document should be introduced in evidence in order that the qualifying
circumstance of “below seven (7) years old” is appreciated against the appellant. The lack of objection on
the part of the defense as to her age did not excuse the prosecution from discharging its burden. That the
defense invoked LIZETTE’s tender age for purposes of questioning her competency to testify is not
necessarily an admission that she was below 7 years of age when PRUNA raped her on 3 January 1995.
Such being the case, PRUNA cannot be convicted of qualified rape, and hence the death penalty cannot
be imposed on him.
Same; Same; Same; Statutory Rape; The testimony of the complain-ant’s mother that the latter was 3
years old at the time of the commission of the crime is sufficient for purposes of holding the accused
liable for statutory rape, or rape of a girl below 12 years of age.—However, conformably with no. 3(b) of
the foregoing guidelines, the testimony of LIZETTE’s mother that she was 3 years old at the time of the
commission of the crime is sufficient for purposes of holding PRUNA liable for statutory rape, or rape of
a girl below 12 years of age. Under the second paragraph of Article 335, as amended by R.A. No. 7659, in
relation to no. 3 of the first paragraph thereof, having carnal knowledge of a woman under 12 years of age
is punishable by reclusion perpetua. Thus, the penalty to be imposed on PRUNA should be reclusion
perpetua, and not death penalty. People vs. Pruna, 390 SCRA 577, G.R. No. 138471 October 10, 2002

DECISION
DAVIDE, JR., C.J.:

A rosebud that had been snuffed out of its fragrance long before it could even blossom into a flower.
Such is the case of Lizette Arabelle Gonzales (hereafter LIZETTE), who had been defiled at a very tender
age. She was at the time voiding her body waste at their neighbors backyard, but that did not deter herein
appellant from imposing his lechery on her. Indeed, lust is no respecter of time and place.[1]
On 27 January 1995, an information[2] for rape was filed against accused-appellant Manuel Pruna y
Ramirez or Erman Pruna y Ramirez (hereafter PRUNA), the accusatory portion of which reads:

That on or about January 3, 1995 at Sitio Tabing-ilog, Brgy. Panilao, Pilar, Bataan, Philippines, and
within the jurisdiction of this Honorable Court, the said accused thru force and intimidation, did then and
there willfully, unlawfully and feloniously lie and succeed to have sexual intercourse with the offended
party, Lizette Arabelle Gonzales, a 3-year-old minor girl, against the will and consent of the latter, to her
damage and prejudice.

Upon motion of PRUNAs counsel, the Public Attorneys Office (PAO), the Information was amended
changing the name of the accused from Manuel Pruna y Ramirez to Erman Pruna y Ramirez, which was
the name reflected in his birth certificate.[3] However, when he testified in court, he stated that his name
was Manuel Pruna; and in the minutes of the court proceedings, he signed the name Manuel Pruna.
On 27 November 1995, upon the Motion to Put the Accused Under Psychiatric or Mental
Examination[4] filed by PRUNAs counsel on the ground that he could not secure from PRUNA a coherent
answer to even simple questions, the trial court ordered that the accused be brought to the National Mental
Hospital in Mandaluyong City for psychiatric or mental examination.[5]Accordingly, the trial was
suspended, and PRUNA was sent to the National Center for Mental Health (NCMH), Mandaluyong City.
On 28 June 1996, the trial court received a telegram[6] from the NCMH stating that PRUNA was in
fair condition. The NCMH later submitted to the trial court a report[7] on the psychiatric evaluation of
PRUNA with a recommendation to put him back to jail for the resumption of court proceedings. The report
also stated that PRUNA narrated that while he and his friends were under the bridge sniffing rugby and
drinking alcohol, they saw a 3-year-old girl defecating in the river bank; that they called her; and, upon the
order of his friends he placed her on his lap and attempted to caress her sensitive parts. Said report was not,
however, offered in evidence by the prosecution or the defense.
The prosecution presented five witnesses, whose testimonies can be summed up as follows:

Jacqueline Gonzales, the mother of LIZETTE, testified that on 3 January 1995, at 9:30 a.m., she was
fetching water from the artesian well located ten meters away from her house, while LIZETTE was
defecating at the back of the house of their neighbor Gloria Tolentino. Jacqueline then carried her pail of
water and went back to her house. Since LIZETTE was not home yet, Jacqueline headed toward the place
where the former was moving her bowel. She looked for LIZETTE but did not find her. It was when
Jacqueline was already returning to her house that she saw LIZETTE from behind -- red-faced, crying,
and appeared to be very frightened. When asked where she came from, LIZETTE answered that she was
brought by a certain Boy to the grassy area at the back of Glorias house where she was sexually molested
(or kinantot in the Tagalog dialect). LIZETTE then pulled her mother and led her to the house of PRUNA,
which was about eight meters away from their house. PRUNA, the only one known in their community as
Boy, was not there. Jacqueline forthwith requested her mother-in-law to report the matter to the police,
while Jacqueline and LIZETTE went to the Bataan Provincial Hospital.[8]

Jacqueline further declared that at the time of the alleged rape, LIZETTE was 3 years old, but at the
time Jacqueline testified on 17 October 1995, LIZETTE was 4 years old. LIZETTEs last birthday was on
19 April 1995.[9]
LIZETTE testified that she knew PRUNA whom he called Boy. She pointed to him inside the
courtroom. According to her, PRUNA laid her down in a grassy area and inserted his penis into her
vagina. When the presiding judge asked her whether she knew that it is a sin to tell a lie, she answered in
the affirmative.[10]
Dr. Emelita Quiroz, an obstetrician and gynecologist at the Bataan Provincial Hospital, testified that
on 3 January 1995, she conducted a complete physical examination on LIZETTE and took wet smear
specimen from her vaginal wall through scraping. The specimen was sent to the laboratory for analysis by
a medical technologist. Further, she requested a urinalysis for LIZETTE.[11] The Medico-Legal
Report[12] prepared by Dr. Quiroz reveals the following findings:

Essentially normal PE-Findings

Infantile areola & nipples

Flat breasts (-) hematoma

(-) pubic hair

Labia minora and majora well coaptated

Hymenal ring intact (+) hyperemia (-) laceration

(Vaginal Opening)
LABORATORY RESULT:

WET SMEAR: KOH - Negative for T-Vaginalis

NSS- Negative for fungi

SPERM ANALYSIS -POSITIVE for sperm cells

Gram staining-few, epithelial cells seen, no other microorganism

URINALYSIS: RBC-3-7-/hpf epithelial cells few.

WBC-0-2

Although not stated in the Medico-Legal Report of Dr. Quiroz, the urinalysis report[13] includes a
positive finding for sperm cells. Dr. Quiroz explained that the presence of sperm cells in the vaginal canal
signified that sexual intercourse and ejaculation had occurred on the person of the patient. There was no
laceration; but there was hyperemia, which means reddening of the tissue around the vaginal
opening. Among the causes of hyperemia is the insertion of a hard object like penis and finger.[14]
Teresita Magtagnob, the medical technologist who conducted the laboratory examinations and
prepared the corresponding reports,[15] testified that sperm cells were found in the wet smear specimen and
urine taken from LIZETTE.[16]
SPO2 Romeo D. Bunsoy, a member of the Philippine National Police assigned at the Pilar Municipal
Station, testified that on 3 January 1995 the parent of the minor rape victim filed a complaint against
PRUNA. He referred the matter to the desk officer to have it blottered. Upon his advise, the minor was
brought to the hospital for examination. When they returned from the hospital, he took their
statements. Later, he conducted an ocular inspection and investigation at the alleged place of the incident
and caused the place to be photographed, which showed that the grasses were flattened. He inquired from
the people in the neighborhood, and one of them answered that he saw the minor being brought by PRUNA
to the place where the minor was found. When PRUNA was brought to their station by four barangay
tanods of Panilao, Pilar, Bataan, SPO2 Bunsoy tried to converse with him, but the former did not give any
reply.[17]
On the part of the defense, Carlito Bondoc and PRUNA took the witness stand.
Carlito testified that on 3 January 1995, he fetched water at the public artesian well together with
Jacqueline. After having drawn water from the well, Jacqueline called her daughter, who was then
defecating on the road near the river; and they both went home. After a while, the parents of LIZETTE
shouted that their daughter was raped, and then they proceeded to the house of PRUNA and accused him
of having raped the child. Carlito asserted that PRUNA could not have raped LIZETTE because he
(PRUNA) was in his house from the time that LIZETTE was moving her bowel up to the time that her
mother went to the house of PRUNA. Carlito knew that PRUNA was at home because the former was also
in the latters house to have coffee. Carlito and the Sulit family thereafter brought PRUNA to the barangay
hall. Since the barangay captain was not around, they brought PRUNA to the municipal building to prove
that he was innocent.[18]
PRUNA denied having raped LIZETTE. He claimed that in the morning of 3 January 1995, he was in
his house preparing coffee for Carlito. After Carlito left, several men arrived and boxed him for reasons not
known to him. Carlito and the latters friend then brought him to the barangay hall. There, LIZETTEs father
boxed him. He was thereafter brought to the Pilar Municipal Jail. There, the mother of the child threw at
him the lid cover of a kettle. He was also asked by the police to take off his clothes and lie flat; then he was
mauled. Thereafter, he was told to put his feet between the grills, and he was made to masturbate. Worse,
his testes were burned with cigarette butts. Every night, he was asked to kneel on a chair and was hit with
a 2x 2 piece of wood.[19]
After trial, PRUNA was convicted by the trial court of the crime of rape in its qualified form and
sentenced to suffer the supreme penalty of death and to indemnify the victim in the sum of P50,000, plus
costs.[20] Hence, this automatic review.
In his Appellants Brief,[21] PRUNA attributed to the trial court the following errors:
I

IN RELYING ON THE TESTIMONY OF JACQUELINE S. GONZALES, THE MOTHER OF THE

CHILD, THAT THE LATTER WAS THREE (3) YEARS OLD WHEN THE ALLEGED RAPE
OCCURRED WHEN THE BEST EVIDENCE THEREFOR IS THE BIRTH CERTIFICATE OF THE
CHILD.

II

IN RELYING ON THE HEARSAY TESTIMONY OF JACQUELINE S. GONZALES AS TO THE

ALLEGED RAPE OF HER CHILD.

III
IN ADMITTING AND RELYING ON THE TESTIMONY OF COMPLAINANT[ ] CHILD WHO WAS
ONLY THREE (3) YEARS OLD WHEN THE ALLEGED RAPE OCCURRED EVEN AS SHE WAS
ONLY FIVE (5) YEARS OLD WHEN SHE TESTIFIED.
IV

IN CONVICTING THE ACCUSED ON DUBIOUS EVIDENCE.

The Office of the Solicitor General (hereafter OSG) seeks the affirmation of the trial courts decision
with the modification that an additional award of P50,000 as moral damages be granted in favor of the
offended party.
As culled from the arguments of the parties, the issues to be resolved in this case are as follows:
(1) Whether LIZETTE was a competent and credible witness considering that she was allegedly
only 3 years old when the alleged rape occurred and 5 years old when she testified;
 (2) Whether Jacquelines testimony as to the declarations of LIZETTE is hearsay;
(3) Whether the failure of the prosecution to present Gloria Tolentino as a witness is fatal;
(4) Whether appellants guilt has been proved beyond reasonable doubt;
(5) Whether the qualifying circumstance of minority has been duly proved as to justify the
imposition of the death penalty.
We shall resolve these issues in seriatim.

I. LIZETTEs Competency and Credibility as a Witness

Appellant disputes the competency of LIZETTE to testify by reason of her tender age. When LIZETTE
was called to testify, his counsel interposed a vigorous objection to the admission of her testimony because
of her tender age. The trial court noted the objection and allowed her to testify; thus:
DIRECT EXAMINATION BY
PROS. LUMABAS:
Do you know Manuel Pruna?
A Yes, sir.
Q How do you call Manuel Pruna?
A Boy, sir.
Q Where is he?
A There, sir. (Witness pointing to a person wearing blue T-shirt, who when asked, gave his name
as Manuel Pruna)
PROS. LUMABAS:
What did Manuel Pruna or Boy do to you?
A Inihiga niya ako and inserted his penis to my vagina, sir.
Q And in what place did he do this to you?
A In the grassy area, sir.
Q After he inserted his penis to your vagina, what happened next?
ATTY. BALUYOT:
The witness for quite sometime could not answer the question.
PROS. LUMABAS:
I think that will be all for the witness.[22]
 After which, the defense counsel manifested that he would not cross-examine her and that he intended
to file a motion for her disqualification as a witness.[23] The court then proceeded to ask her a few questions,
thus:
COURT :
Do you know what will happen to a child if she is not telling the truth?
A Sa lupa.
Q Do you know that it is a sin to tell a lie?
A Yes, sir.
Q The witness is excused considering the manifestation of Atty. Baluyot that he will be filing a
written motion for the striking out of the testimony of the witness considering her tender
age.[24]
No such motion is extant on the records. At the next hearing, the defense counsel cross-examined
LIZETTE, as follows:
ATTY. BALUYOT:
On January 3, 1995, in the morning where were you?
A I was in the grassy area, sir.
Q In that grassy area there were other children with you playing?
A None, sir.
Q You were then removing[sic] your bowel, is it not?
A Yes, sir.
Q Then while removing your bowel you saw your mother pass[ ] by, is it not?
A Yes, sir.
Q She was then carrying a pail to fetch some water, is it not?
A Yes, sir.
Q The water from where she will fetch is [sic] a few meter[s] away from you, is it not?
A Near, sir.
ATTY. BALUYOT:
Considering that the grassy place where you were then discharging your bowel is beside a street?
A Yes, sir.
Q And you saw your mother bringing a pail of water towards your house after her pumping from
the well, is it not?
A Yes, sir.
 Q When she passed by she likewise saw you, is it not?
A Yes, sir.
Q Then how far were you from your house when you were discharging your bowel? Please
demonstrate the distance?
A Up to that door, sir.
Q From that position you were at the grass you could see your house, is it not?
A Yes, sir.
Q Could you tell the Honorable Court how long did it take you to discharge your bowel?
A For a short period of time, sir.
(Sandali lang po.)[25]
As a general rule, when a witness takes the witness stand, the law, on ground of public policy, presumes
that he is competent. The court cannot reject the witness in the absence of proof of his incompetency. The
burden is, therefore, upon the party objecting to the competency of a witness to establish the ground of
incompetency.[26]
Section 21 of Rule 130 of the Rules on Evidence enumerates the persons who are disqualified to be
witnesses. Among those disqualified are [c]hildren whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are examined and relating them truthfully.
No precise minimum age can be fixed at which children shall be excluded from testifying. The
intelligence, not the age, of a young child is the test of the competency as a witness. [27] It is settled that a
child, regardless of age, can be a competent witness if he can perceive and, in perceiving, can make known
his perception to others and that he is capable of relating truthfully the facts for which he is examined. [28]
In determining the competency of a child witness, the court must consider his capacity (a) at the time
the fact to be testified to occurred such that he could receive correct impressions thereof; (b) to comprehend
the obligation of an oath; and (c) to relate those facts truly to the court at the time he is offered as a
witness.[29] The examination should show that the child has some understanding of the punishment which
may result from false swearing. The requisite appreciation of consequences is disclosed where the child
states that he knows that it is wrong to tell a lie, and that he would be punished if he does so, or that he uses
language which is equivalent to saying that he would be sent to hell for false swearing. [30] A child can be
disqualified only if it can be shown that his mental maturity renders him incapable of perceiving facts
respecting which he is being examined and of relating them truthfully.[31]
The question of competency of a child-witness rests primarily in the sound discretion of the trial
court. This is so because the trial judge sees the proposed witness and observes his manner of testifying,
his apparent possession or lack of intelligence, as well as his understanding of the obligation of an
oath.[32] Since many of the witness manners cannot be photographed into the record, the finding of the trial
judge will not be disturbed or reversed unless from what is preserved it is clear that such finding was
erroneous.[33]
 In this case, appellant questions the competency of LIZETTE as a witness solely on the ground of her
age. He failed to discharge the burden of showing her mental immaturity. From the above-quoted
testimony, it can be gleaned that LIZETTE had the capacity of observation, recollection, and
communication[34] and that she could discern the consequence of telling a lie.We, therefore, sustain the trial
court in admitting her testimony and according it great weight.
We are not persuaded by appellants assertion that LIZETTE should not be allowed to testify two years
after the alleged rape when the interplay of frail memory combines with the imagination of earlier years. It
must be noted that it is a most natural reaction for victims of criminal violence to have a lasting impression
of the manner in which the crime was committed and the identity of the person responsible therefor.[35]
In a string of cases, we have said that the testimony of a rape victim who is of young or tender age is
credible and deserves full credit,[36] especially where no motive is attributed to the victim that would make
her testify falsely against the accused.[37] Indeed, a girl of such age as LIZETTE would not concoct a story
of defloration; allow the examination of her private parts; and undergo the expense, trouble, inconvenience,
and the trauma of a public trial unless she was in fact raped.[38]

II. The Alleged Hearsay Testimony of Jacqueline Gonzales

Contrary to appellants contention, Jacquelines testimony that LIZETTE told her that appellant laid her
in the grassy area and inserted his penis into her vagina is not covered by the hearsay evidence rule, which
finds application when the declarant does not testify. This rule, as enunciated under Section 36, Rule 130
of the Rules on Evidence, provides that a witness can testify only to those facts which he knows of his
personal knowledge except as otherwise provided in the Rules of Court.
The term hearsay as used in the law on evidence, signifies evidence which is not founded upon the
personal knowledge of the witness from whom it is elicited and which consequently does not depend wholly
for its credibility and weight upon the confidence which the court may have in him; its value, if any, is
measured by the credit to be given to some third person not sworn as a witness to that fact, and consequently
not subject to cross-examination.[39] If one therefore testifies to facts which he learned from a third person
not sworn as a witness to those facts, his testimony is inadmissible as hearsay evidence.[40]
The reason for the exclusion of hearsay evidence is that the party against whom the hearsay testimony
is presented is deprived of the right or opportunity to cross-examine the person to whom the statements are
attributed.[41] Moreover, the court is without opportunity to test the credibility of hearsay statements by
observing the demeanor of the person who made them.[42]
In the instant case, the declarant (LIZETTE) herself was sworn as a witness to the fact testified to by
Jacqueline. The appellant even cross-examined her (LIZETTE). Moreover, the trial court had the
opportunity to observe her manner of testifying. Hence, Jacquelines testimony on the incident related to her
by her daughter cannot be disregarded as hearsay evidence.
Even assuming that the aforementioned testimony of Jacqueline is hearsay, its non-admission would
not save the day for the appellant. Such testimony is not indispensable, as it merely serves to corroborate
LIZETTEs testimony that PRUNA laid her down in the grass and inserted his private organ into hers. As
discussed earlier, LIZETTEs testimony, which was found to be credible by the trial court, is sufficient basis
for conviction.
At any rate, Jacquelines testimony is proof of the victims conduct immediately after the rape. It shows
that LIZETTE immediately revealed to her mother the rape incident and the identity of her defiler. As will
be discussed later, such conduct is one of the earmarks of the truth of the charge of rape.

III Non-Presentation of Gloria Tolentino as a Witness

Appellant harps on the prosecutions failure to put on the witness stand Gloria Tolentino, who was
listed as a witness and executed an affidavit on 4 January 1995 that she saw the appellant carrying and
bringing LIZETTE to a grassy area at the back of her house.
It is undisputed that at the time the case was called for trial, Gloria had already moved out of her
residence in Panilao, Pilar, Bataan, and could not be found anymore. In any event, as opined by the OSG,
her intended testimony could be dispensed with, as it would only be corroborative of LIZETTEs testimony
that Pruna brought her to a grassy area.

IV. Sufficiency of the Prosecutions Evidence Against Appellant

When LIZETTE was put in the witness stand, she unhesitatingly identified PRUNA, their neighbor,
as the one who defiled her. A rape victim can easily identify her assailant especially if he is known to her
because during the rape, she is physically close to her assailant that enables her to have a good look at the
latters physical features.[43]
LIZETTE testified that on 3 January 1995 PRUNA, whom she called Boy, laid her in a grassy area
and inserted his penis into her genitalia. When a girl or a woman says that she has been raped she says in
effect all that is necessary to show that rape was truly committed. [44] She is not expected to remember all
the ugly details of the outrage committed against her.[45]And when her testimony passes the test of
credibility, the accused can be convicted on the basis thereof, for in most cases it is the only evidence that
can be offered to establish his guilt.[46]
Likewise, LIZETTEs mother testified that right after the incident LIZETTE disclosed what happened
to her and readily identified PRUNA as the culprit. She even led her mother to the house of
PRUNA.[47] Thereafter, the two went to the police authorities to report the incident, and then to the hospital
for LIZETTEs medical examination.
By and large, the medical evidence lends credence to LIZETTEs testimony that PRUNA inserted his
penis into her vagina. The Medico-Legal Report shows that there was hyperemia or reddening of the vaginal
opening of LIZETTE. As opined by Dr. Quiroz, who was presented as an expert witness, hyperemia can be
caused by the insertion of a hard object like penis and finger.[48] The presence of sperm cells in the vaginal
canal and urine of LIZETTE is also a mute testimony of the sexual contact that further strengthens
LIZETTEs claim of rape.
 This Court is not oblivious of the finding that no laceration was found in LIZETTEs organ despite the
fact that she was examined immediately after she was raped. We have already ruled, however, that the
absence of fresh lacerations does not preclude the finding of rape,[49] especially when the victim is of tender
age.[50] Well- settled is the rule that rape is consummated by the slightest penile penetration of the labia or
pudendum of the female.[51] The presence of hyperemia in LIZETTEs vaginal opening and the existence of
sperm cells in her vaginal canal and urine are clear indications that PRUNAs organ indeed touched the labia
or pudendum of LIZETTE.
In a nutshell, the following overwhelmingly establish the truth of the charge of rape: (a) the spontaneity
of the identification by LIZETTE of PRUNA as the rapist; (b) her immediate revelation to her mother of
the dastard act committed against her; (c) her act of leading her mother to appellants house right after the
incident; (d) the prompt filing of the complaint before the authorities; (e) LIZETTEs submission to medical
examination; (f) the hyperemia in her private part; and (g) the presence of sperm cells in her vaginal canal
and urine.
The trial court correctly disregarded the defense of alibi raised by the accused. We have consistently
held that for alibi to prosper, it must be proved that during the commission of the crime, the accused was in
another place and that it was physically impossible for him to be at the crime scene. Just like denial, alibi
is an inherently weak defense; and unless supported by clear and convincing evidence, the same cannot
prevail over the positive declaration of the victim.[52] We have also held that when alibi is established only
by the accused, his relatives, or close friends, the same should be treated with strictest scrutiny.[53]
Carlito, who was admittedly a close friend of appellants parents, corroborated PRUNAs testimony that
he (PRUNA) was in his house during the time that LIZETTE was raped. It is, however, an established fact
that the place where the rape occurred was just a few meters away from the house of PRUNA. Thus, there
was no physical impossibility for PRUNA to be in the grassy area to consummate the crime of rape.
The defense, through Carlito, attempted to impute motive to Jacqueline in filing against PRUNA the
charge of rape. According to him, LIZETTEs grandparents, the Sulits, wanted to buy the place of the
PRUNA family, but the latter refused.[54] Aside from the fact that such testimony was not corroborated, said
motive, if at all, is too flimsy to be even considered. No mother in her right mind would use her offspring
as an engine of malice. She would not subject her child to the humiliation, disgrace, and even the stigma
attendant to a prosecution for rape unless she is motivated by the desire to bring to justice the person
responsible for her childs defilement.[55]

V. Sufficiency of Evidence of LIZETTEs Minority and Propriety of the Imposition of the Death
Penalty

The commission of the crime of rape by PRUNA having been duly established by the prosecution, we
now come to the question of the penalty to be meted upon him.
Article 335, seventh paragraph, no. 4, of the Revised Penal Code, as amended by Republic Act No.
7659, provides that the death penalty shall be imposed if the crime of rape is committed against a child
below seven (7) years old. We have held that in such a case the minority of the victim must be proved with
equal certainty and clearness as the crime itself. The failure to sufficiently establish the victims age is fatal
and consequently bars conviction for rape in its qualified form.[56]
A persons age is best proved by the birth certificate. But is the presentation of the victims birth
certificate a sine qua non requirement to prove her age for the appreciation of minority either as an element
of the crime or as a qualifying circumstance? Recent jurisprudence has conflicting pronouncements.
In the following cases, no birth certificate was presented and this Court ruled that the age of the victim
was not duly proved by the prosecution:

1. In People v. Vargas,[57] the testimonies of the victim and her aunt that the former was 10 years old at
the time of the rape were not considered proof of her age for being hearsay. This Court also observed that
the victim could easily be mistaken for a child below 12 years of age, and hence it was not correct to
judge the victims age by her appearance. We held: The difference of two or three years in age may not
always be readily apparent by mere physical manifestations or appearance.

2. In People v. Javier,[58] the victim was alleged to be 16 years old, and the accused did not contest her
age. Ratiocinating that in this age of modernism, there is hardly any difference between a 16-year-old girl
and an 18-year-old one insofar as physical features and attributes are concerned, this Court held that an
independent proof of the actual age of a rape victim is vital and essential so as to remove an iota of doubt
that the victim is indeed under 18 years of age as to fall under the qualifying circumstances enumerated in
R.A. No. 7659.

3. In People v. Brigildo,[59] aside from the failure of the prosecution to present the offended partys birth
certificate or other equally acceptable official document concerning her age, the testimonies on record
were not clear as to her exact age. The victim declared that she was 11 years old when she testified in
court a year after the incident, while her mother claimed that she was around 15 years old at the time of
the commission of the crime. The informations even alleged a different age. Hence, this Court refused to
appreciate the qualifying circumstance of minority because of the uncertainty regarding her age.

4. In People v. Tipay,[60] the offended party was alleged in the information to be under 16 years of age. No
independent evidence was presented to prove it. This Court recognized that the minority of a victim who
may be below the age of 10 is quite manifest and may be taken judicial notice of by the court. But when
the victim is between the crucial years of 15 and 17 where minority may seem to be dubitable due to one's
physical appearance, the prosecution should prove the fact of minority with certainty. The lack of
objection on the part of the accused concerning the victims age does not excuse the prosecution from
discharging its burden.

5. In People v. Cula,[61] the victim was alleged in the complaint to be 16 years old when the rape was
committed, but no evidence at all was presented to prove her age. We held that the failure of the accused
to deny such allegation cannot make up for the failure of the prosecution to prove with certainty the
victims minority. Because of the lacuna in the prosecutions evidence, coupled with the trial courts failure
to make a categorical finding of minority of the victim, we declined to consider the qualifying
circumstance of minority.
6. In People v. Veloso,[62] the victim was alleged to be 9 years of age when she was raped. Citing People
v. Vargas,[63] this Court refused to consider the testimonies of the victim and her father as sufficient proof
of her age.

7. In People v. Pecayo,[64] the victim simply stated during the beginning of her direct examination that she
was 14 years old and that she was born on 13 January 1983. We held that the victims casual testimony as
to her age is not enough, and that the lack of denial on the part of the accused does not excuse the
prosecution from proving her age through competent evidence such as a duly certified certificate of live
birth, baptismal certificate, or some other authentic document showing her age.

8. In People v. Tundag,[65] the victim testified that she was 13 years of age when she was raped, but she
did not know exactly when she was born. Unable to secure a copy of her birth certificate, the prosecution
moved that judicial notice be taken of the fact that she was below 18 years old at the time of the
rape. Despite the admission by the defense of such fact, this Court held that the age of the victim is not a
matter of judicial notice, whether mandatory or discretionary. Under Section 3, Rule 129 of the Rules on
Evidence, a hearing is required before such fact can be taken judicial notice of by courts.

9. In People v. Geraban,[66] the victims testimony was categorical in declaring that she was 15, but her
mothers testimony regarding her age was not clear. We thus declared that the prosecution failed to
discharge the burden of proving minority.

10. In People v. Liban[67] and People v. Llandelar,[68] the only evidence adduced to prove the minority of
the victims was the victims bare testimony that they were 10 and 16 years old, respectively. This Court
held that while the declaration of a victim as to her age, being an exception to the hearsay proscription,
would be admissible under the rule on pedigree, the question on the relative weight that may be accorded
to it is another matter. The prosecution should present the victims birth certificate or, in lieu thereof, any
other documentary evidence, like a baptismal certificate, school records, and documents of similar nature,
or credible testimonial evidence that can help establish the age of the victim. Neither the obvious minority
of the victim nor the absence any contrary assertion from the defense can exonerate the prosecution from
its burden. Judicial notice of the issue of age without the requisite hearing under Section 3 of Rule 129 of
the Rules on Evidence would not be sufficient compliance with the law.

11. In People v. Alvarado,[69] the victim testified that she was 14 years old at the time of the rape, and this
was confirmed by the accused, who was victims father. The victims mother, however, testified as to her
date of birth which showed that she was 13 years of age at the time of the commission of the crime. For
this doubt as to the victims age, the accused was held guilty of simple rape only and meted the penalty of
reclusion perpetua, and not death penalty.

On the other hand, in the following cases, we ruled that the age of the rape victim was sufficiently
established despite the failure of the prosecution to present the birth certificate of the offended party to
prove her age:

1. In People v. Rafales,[70] the testimony of the victim and her mother that the former was only 10 years
old when she was raped, which was not denied by the accused, was deemed sufficient to prove her age for
the purpose of determining whether the accused could be held guilty of statutory rape, which is carnal
knowledge of a woman below 12 years of age.

2. In People v. De la Cruz,[71] the testimony of the mother alone that her two daughters were both 14 years
old at the time of the rape incidents was deemed sufficient because there was no reason to doubt the
testimony of the mother, who had personal knowledge of the ages of her children. Moreover, said
testimony was never challenged by the accused and stood unrebutted by any other evidence.

3. In People v. Bali-balita,[72] the victims testimony as to her age, which was corroborated by her half-
sister, was deemed sufficient. We noted that the victim testified in court four months after the rape, and
hence it was not difficult for the trial court to take judicial notice that she was under 18 years of age.

4. In People v. Velasco,[73] the minority of the victim was deemed established by (a) the complainant
herself, who was held to be competent to testify on her age, as it constituted family tradition; (b) the open
admission of the accused that the victim was a 12-year-old minor; and (c) the categorical finding of the
trial court that she was a minor of a little over twelve years.

5. In People v. Remudo,[74] the trial court appreciated the qualifying circumstance of minority on the
strength of (a) the offended partys testimony as to the date of her birth, which showed that she was 13
years old at the time of the rape, and (b) the admission of said date of birth by the accused who was the
victims brother.

6. In People v. LLanita[75] the only evidence presented by the prosecution to establish that the victim was
below 7 years old at the time of the alleged rape was the victims own testimony. Although hearsay
because she could not have personal knowledge of the date of her birth but could only acquire knowledge
thereof from her parents or relatives, said testimony was held admissible for being an assertion of family
tradition regarding pedigree. Her testimony and the accuseds admission that she was 5 years old during
the commission of the crime were held sufficient to establish her age.

7. In People v. Agustin,[76] the victims testimony that she was 14 years old at the time of the rape
incidents, coupled with the express admission of her age by the accused who was her father, sufficiently
proved her minority.

8. In People v. Esuela,[77] the testimony of the victims mother that the victim was 13 years of age at the
time of the rape was held sufficient to establish minority for the reason that as a mother she was in the
best position to know when she delivered her child. Also considered were the victims own testimony
regarding her age, as well as the observation of the trial court that she could not have been more than 18
years old when she testified.

In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the
following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance.
1. The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.
 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate
and school records which show the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family
either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the
exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence
shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than
7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less
than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less
than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims
mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is
expressly and clearly admitted by the accused.[78]
5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding age shall not be taken against him.
The trial court should always make a categorical finding as to the age of the victim.
In the present case, no birth certificate or any similar authentic document, such as a baptismal
certificate of LIZETTE, was presented to prove her age. In imposing the death penalty, the trial court
ratiocinated in this wise:

In the instant case, the victim, Lizette Arabelle Gonzales, was a 3-year-old minor girl as alleged in the
information and the defense did not contest her age and as a matter of fact was questioning her
qualification to testify because of her tender age when she testified two (2) years later in Court. The
victims Medico-Legal Certificate date[d] January 3, 1995 established the fact that at the time of the
commission of the rape on January 3, 1995, the child was only 3 years old.[79]

It thus appears that the trial courts finding that LIZETTE was 3 years old when she was raped was
based on the Medico-Legal Report prepared by Dr. Quiroz, as well as on the fact that the defense did not
contest her age and even questioned her qualification to testify because of her tender age.
However, the Medico-Legal Report relied upon by the trial court does not in any way prove the age of
LIZETTE, for there is nothing therein which even mentions her age. Only testimonial evidence was
presented to establish LIZETTEs age. Her mother, Jacqueline, testified on 17 October 1995 as follows:
Q. Now, on January 3, 1995 at about 9:30 in the morning, do you still recall where you were?
A. Yes, sir.
 Q. Where were you at that particular date and time?
A. I was fetching water from an artesian well beside the house of my neighbor, sir.
Q. Where was this daughter of yours then when you were fetching water?
A. My daughter was discharging her bowel who was then at the back of the house of our neighbor,
sir.
How old is your daughter Lizette Arabelle Gonzales?
A. Three years old, sir.
Q. At the time that she was discharging her bowel, how old [was] she?
A. Three years old, sir. She is four years old now.
Q. When was her last birthday?
A. April 19, 1995, sir.[80]
Likewise, LIZETTE testified on 20 November 1996, or almost two years after the incident, that she
was 5 years old.[81] However, when the defense counsel asked her how old she was on 3 January 1995, or
at the time of the rape, she replied that she was 5 years old. Upon further question as to the date she was
born, she could not answer.[82]
For PRUNA to be convicted of rape in its qualified form and meted the supreme penalty of death, it
must be established with certainty that LIZETTE was below 7 years old at the time of the commission of
the crime. It must be stressed that the severity of the death penalty, especially its irreversible and final nature
once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting
rules of procedure and evidence.[83]
In view of the uncertainty of LIZETTEs exact age, corroborative evidence such as her birth certificate,
baptismal certificate or any other authentic document should be introduced in evidence[84] in order that the
qualifying circumstance of below seven (7) years old is appreciated against the appellant. The lack of
objection on the part of the defense as to her age did not excuse the prosecution from discharging its
burden. That the defense invoked LIZETTEs tender age for purposes of questioning her competency to
testify is not necessarily an admission that she was below 7 years of age when PRUNA raped her on 3
January 1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence the death
penalty cannot be imposed on him.
However, conformably with no. 3(b) of the foregoing guidelines, the testimony of LIZETTEs mother
that she was 3 years old at the time of the commission of the crime is sufficient for purposes of holding
PRUNA liable for statutory rape, or rape of a girl below 12 years of age. Under the second paragraph of
Article 335, as amended by R.A. No. 7659, in relation to no. 3 of the first paragraph thereof, having carnal
knowledge of a woman under 12 years of age is punishable by reclusion perpetua. Thus, the penalty to be
imposed on PRUNA should be reclusion perpetua, and not death penalty.
As regards the civil liability of PRUNA, the indemnity in the amount of P50,000 awarded by the trial
court is not sufficient. In accordance with recent jurisprudence, LIZETTE should also be awarded moral
damages in the amount of P50,000 without need of pleading or proof because the mental, physical and
psychological trauma suffered by her is too obvious.[85]
WHEREFORE, the decision of the Regional Trial Court, Branch 1, Balanga, Bataan, in Criminal
Case No. 6044 is hereby AFFIRMED with the modification that accused Manuel Pruna y Ramirez or
Erman Pruna y Ramirez is held guilty beyond reasonable doubt of statutory rape, and not qualified rape,
and is sentenced to suffer reclusion perpetua and to pay the victim Lizette Arabelle Gonzales the sum
of P50,000 as moral damages in addition to the indemnity of P50,000.
Costs de oficio.
SO ORDERED.