THIRD DIVISION [G. R. No. 170723, March 03, 2008] GLORIA PILAR S. AGUIRRE, Petitioner, vs.

SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA S. AGUIRRE-OLONDRIZ, PEDRO B. AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B. PASCUAL, Respondents. DECISION

CHICO-NAZARIO, J.:

In this petition for review on certiorari[1] under Rule 45 of the Rules of Court, as amended, petitioner Gloria Pilar S. Aguirre (Gloria Aguirre) seeks the reversal of the 21 July 2005 Decision[2] and 5 December 2005 Resolution,[3] both of the Court of Appeals in CA-G.R. SP No. 88370, entitled Gloria Pilar S. Aguirre v. Secretary of the Department of Justice, Michelina S. Aguirre-Olondriz, Dr. Juvido Agatep, Dra. Marissa B. Pascual, Pedro B. Aguirre and John and Jane Does. The Court of Appeals found no grave abuse of discretion on the part of the Secretary of the Department of Justice (DOJ) when the latter issued the twin resolutions dated 11 February 2004 [4] and 12 November 2004,[5] respectively, which in turn affirmed the 8 January 2003 Resolution[6] of the Office of the City Prosecutor (OCP) of Quezon City. The Assistant City Prosecutor for the OCP of Quezon City recommended the dismissal of the criminal complaint, docketed as I.S. No. 02-12466, for violation of Articles 172 (Falsification by Private Individuals and Use of Falsified Documents) and 262 (Mutilation), both of the Revised Penal Code, in relation to Republic Act No. 7610, otherwise known as Child Abuse, Exploitation and Discrimination Act, for insufficiency of evidence. The case stemmed from a complaint filed by petitioner Gloria Aguirre against respondents Pedro B. Aguirre (Pedro Aguirre), Michelina S. Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr. Marissa B. Pascual (Dr. Pascual) and several John/Jane Does for falsification, mutilation and child abuse. The antecedents of the present petition are: Laureano Larry Aguirre[7] used to be a charge of the Heart of Mary Villa, a child caring agency run by the Good Shepherd Sisters and licensed by the Department of Social Work and Development (DSWD). Sometime in 1978, respondent Pedro Aguirre; the latters spouse, Lourdes S. Aguirre (Lourdes Aguirre); and their four daughters, who included petitioner Gloria Aguirre and respondent Olondriz, came to

know Larry, who was then just over a year old. The Aguirres would have Larry spend a few days at their home and then return him to the orphanage thereafter. In June 1980, Larry, then two years and nine months of age, formally became the ward of respondent Pedro Aguirre and his spouse Lourdes Aguirre by virtue of an Affidavit of Consent to Legal Guardianship executed in their favor by Sister Mary Concepta Bellosillo, Superior of the Heart of Mary Villa. On 19 June 1986, the Aguirre spouses guardianship of Larry was legalized when the Regional Trial Court (RTC), Branch 3 of Balanga, Bataan, duly appointed them as joint co-guardians over the person and property of Larry. As Larry was growing up, the Aguirre spouses and their children noticed that his developmental milestones were remarkably delayed. His cognitive and physical growth did not appear normal in that at age 3 to 4 years, Larry could only crawl on his tummy like a frog x x x;[8] he did not utter his first word until he was three years of age; did not speak in sentences until his sixth year; and only learned to stand up and walk after he turned five years old. At age six, the Aguirre spouses first enrolled Larry at the Colegio de San Agustin, Dasmarias Village, but the child experienced significant learning difficulties there. In 1989, at age eleven, Larry was taken to specialists for neurological and psychological evaluations. The psychological evaluation[9] done on Larry revealed the latter to be suffering from a mild mental deficiency.[10] Consequent thereto, the Aguirre spouses transferred Larry to St. John Ma. Vianney, an educational institution for special children. In November of 2001, respondent Dr. Agatep, a urologist/surgeon, was approached concerning the intention to have Larry, then 24 years of age, vasectomized. Prior to performing the procedure on the intended patient, respondent Dr. Agatep required that Larry be evaluated by a psychiatrist in order to confirm and validate whether or not the former could validly give his consent to the medical procedure on account of his mental deficiency. In view of the required psychiatric clearance, Larry was brought to respondent Dr. Pascual, a psychiatrist, for evaluation. In a psychiatric report dated 21 January 2002, respondent Dr. Pascual made the following recommendation: [T]he responsibility of decision making may be given to his parent or guardian.[11] the full text of which reads PSYCHIATRY REPORT 21 January 2002

GENERAL DATA LAUREANO AGUIRRE, 24 years old, male, high school graduate of St. John [Marie Vianney], was referred for psychiatric evaluation to determine competency to give consent for vasectomy.

CLINICAL SUMMARY Larry was adopted at age 3 from an orphanage and prenatal history is not known to the adoptive family except that abortion was attempted. Developmental milestones were noted to be delayed. He started to walk and speak in single word at around age 5. He was enrolled in Colegio de San Agustin at age 6 where he showed significant learning difficulties that he had to repeat 1st and 4th grades. A consult was done in 1989 when he was 11 years old. Neurological findings and EEG results were not normal and he was given Tecretol and Encephabol by his neurologist. Psychological evaluation revealed mild to moderate mental retardation, special education training was advised and thus, he was transferred to St. John Marie Vianney. He finished his elementary and secondary education in the said school. He was later enrolled in a vocational course at Don Bosco which he was unable to continue. There has been no reported behavioral problems in school and he gets along relatively well with his teachers and some of his classmates. Larry grew up with a very supportive adoptive family. He is the youngest in the family of four sisters. Currently, his adoptive parents are already old and have medical problem and thus, they could no longer monitor and take care of him like before. His adoptive mother has Bipolar Mood Disorder and used to physically maltreat him. A year ago, he had an episode of dizziness, vomiting and headaches after he was hit by his adoptive mother. Consult was done in Makati Medical Center and several tests were done, results of which were consistent with his developmental problem. There was no evidence of acute insults. The family subsequently decided that he should stay with one of his sisters to avoid similar incident and the possibility that he would retaliate although he has never hurt anybody. There has been no episode of violent outburst or aggressive behavior. He would often keep to himself when sad, angry or frustrated. He is currently employed in the company of his sister and given assignment to do some photocopying, usually in the mornings. He enjoys playing billiards and basketball with his nephews and, he spends most of his leisure time watching TV and listening to music. He could perform activities of daily living without assistance except that he still needs supervision in taking a bath. He cannot prepare his own meal and never allowed to go out and run errands alone. He does not have friends and it is only his adoptive family whom he has significant relationships. He claims that he once had a girlfriend when he was in high school who was more like a best friend to him. He never had sexual relations. He has learned to smoke and drink alcohol few years ago through his cousins and the drivers. There is no history of abuse of alcohol or any prohibited substances. MEDICAL STATUS EXAMINATION The applicant was appropriately dressed. He was cooperative and he had intermittent eye contact. Speech was spontaneous, soft, and relevant. He responded to questions in single words or simple sentences. He was anxious specially at the start of the interview, with full affect appropriate to mood and thought content. There was no apparent thought or perceptual disturbance. No suicidal/homicidal thoughts elicited. He was oriented to time, place and person. He has intact remote and recent memory.

He could do simple calculation. He could write his name and read simple words. His human figure was comparable to a 7-8 year old. He demonstrated fair judgment and poor insight. He had fair impulse control. PSYCHOLOGICAL TESTS Psychological tests done on March 6, 1990 (Dr. Lourdes Ledesma) and on August 4, 2000 (Dr. Ma. Teresa Gustilo- Villaosor) consistently revealed mild to moderate mental deficiency. SIGNIFICANT LABORATORY EXAMS RESULTS CT scan done 09 January 2001 showed nonspecific right deep parietal subcortical malacia. No localized mass lesion in the brain. MRI done on 10 January 2001 showed bilateral parietal x x x volume loss, encephalomalacia, gliosis and ulegyria consistent with sequela of postnatal or neonatal infarcts. Ex-vacuo dilatation of the atria of lateral ventricles associated thinned posterior half of the corpus callosum. ASSESSMENT AND RECOMMENDATION Axis I None Axis II Mental Retardation, mild to moderate type Axis III None Axis IV None at present Axis V Current GAF = 50-60 Larrys mental deficiency could be associated with possible perinatal insults, which is consistent with the neuroimaging findings. Mental retardation associated with neurological problems usually has poorer prognosis. Larry is very much dependent on his family for his needs, adaptive functioning, direction and in making major life decisions. At his capacity, he may never understand the nature, the foreseeable risks and benefits, and consequences of the procedure (vasectomy) that his family wants for his protection. Thus, the responsibility of decision making may be given to his parent or guardian. Marissa B. Pascual, M.D. Psychiatrist[12] Considering the above recommendation, respondent Pedro Aguirres written consent was deemed sufficient in order to proceed with the conduct of the vasectomy. Hence, on 31 January 2002, respondent Dr. Agatep performed a bilateral vasectomy on Larry. On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirres eldest child, instituted a criminal complaint for the violation of the Revised Penal Code, particularly Articles 172 and 262, both in relation to Republic Act No. 7610 against respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr. Pascual and

several John/Jane Does before the Office of the City Prosecutor of Quezon City. The Complaint Affidavit,[13] docketed as I.S. No. 02-12466, contained the following allegations: 2. x x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners specializing in urology and psychiatry respectively; while respondent Pedro B. Aguirre is my father; Michelina S. AguirreOlondriz is my sister, and the victim Laureano Larry Aguirre xxx is my common law brother. JOHN and JANE DOES were the persons who, acting upon the apparent instructions of respondents Michelina Aguirre-Olondriz and/or Pedro B. Aguirre, actually scouted, prospected, facilitated, solicited and/or procured the medical services of respondents Dra. Pascual and Dr. Agatep vis--vis the intended mutilation via bilateral vasectomy of my common law brother Larry Aguirre subject hereof. xxxx 4. Sometime in March 2002, however, the Heart of Mary Villa of the Good Shepherd Sisters was furnished a copy of respondent Dra. Pascuals Psychiatry Report dated 21 January 2004 by the DSWD, in which my common law brother Larry was falsely and maliciously declared incompetent and incapable of purportedly giving his own consent to the MUTILATION VIA BILATERAL VASECTOMY intended to be performed on him by all the respondents. xxxx 6. Based on the foregoing charade and false pretenses invariably committed by all of the respondents in conspiracy with each other, on 31 January 2002, my common law brother Larry Aguirre, although of legal age but conspiratorially caused to be declared by respondents to be mentally deficient and incompetent to give consent to his BILATERAL VASECTOMY, was then intentionally, unlawfully, maliciously, feloniously and/or criminally placed thereafter under surgery for MUTILATION VIA BILATERAL VASECTOMY x x x, EVEN WITHOUT ANY AUTHORIZATION ORDER from the GUARDIANSHIP COURT, nor personal consent of Larry Aguirre himself. In addition to the above, the complaint included therein an allegation that v. x x x without a PRIOR medical examination, professional interview of nor verification and consultation with my mother, Lourdes Sabino-Aguirre, respondent Dra. Pascual baselessly, fraudulently and with obvious intent to defame and malign her reputation and honor, and worse, that of our Sabido family, falsely concluded and diagnosed, via her falsified Psychiatry Report, that my mother Lourdes Sabido-Aguirre purportedly suffers from BIPOLAR MOOD DISORDER x x x.

To answer petitioner Gloria Aguirres accusations against them, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual submitted their respective Counter-Affidavits.

In her defense,[14] respondent Olondriz denied that she prospected, scouted, facilitated, solicited and/or procured any false statement, mutilated or abused her common-law brother, Larry Aguirre. Further, she countered that: 3. x x x While I am aware and admit that Larry went through a vasectomy procedure, there is nothing in the Complaint which explains how the vasectomy amounts to a mutilation. xxxx 5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not participate in any way in the alleged mutilation. 6. Neither did I procure or solicit the services of the physician who performed the vasectomy, Dr. Juvido Agatep x x x. It was my father, Pedro Aguirre, Larrys guardian, who obtained his services. I merely acted upon his instructions and accompanied my brother to the physician, respondents Dra. Marissa B. Pascual x x x. xxxx 10. Neither does the Complaint explain in what manner the Complainant is authorized or has any standing to declare that Larrys consent was not obtained. Complainant is not the guardian or relative of Larry. While she argues that Larrys consent should have been obtained the Complaint does not dispute the psychiatrists findings about Larrys inability to give consent. xxxx 13. x x x the Complaint does not even state what alleged participation was falsified or the portion of the psychiatric report that allegedly states that someone participated when in fact that person did not so participate. xxxx 15. Again, I had no participation in the preparation of the report of Dr. Pascual x x x. xxxx 17. x x x the Complaint does not dispute that he (Larry) is mentally deficient or incompetent to give consent. xxxx 19. x x x I verified that the effect of a vasectomy operation was explained to him (Larry) by both respondent doctors.

20. x x x I accompanied Larry and obeyed my father on the belief that my father continues to be the legal guardian of Larry. I know of no one else who asserts to be his legal guardian x x x. [15] Alleging the same statement of facts and defenses, respondent Pedro Aguirre argues against his complicity in the crime of mutilation as charged and asserts that: 5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not participate in any way in the alleged mutilation.[16] Nevertheless, he maintains that the vasectomy performed on Larry does not in any way amount to mutilation, as the latters reproductive organ is still completely intact.[17] In any case, respondent Pedro Aguirre explains that the procedure performed is reversible through another procedure called Vasovasostomy, to wit: 8. I understand that vasectomy is reversible through a procedure called Vasovasostomy. I can also state with confidence that the procedure enables men who have undergone a vasectomy to sire a child. Hence, no permanent damage was caused by the procedure. Respondent Pedro Aguirre challenges the charge of falsification in the complaint, to wit: 14. x x x I did not make it appear that any person participated in any act or proceeding when that person did not in fact participate x x x. xxxx 16. x x x I had no participation in the preparation of the report of Dra. Pascual. She arrived at her report independently, using her own professional judgment x x x. xxxx 31. What I cannot understand about Petitas Complaint is how Larry is argued to be legally a child under the definition of one law but nonetheless and simultaneously argued to be capacitated to give his consent as fully as an adult.[18] Respondent Pedro Aguirre further clarifies that co-guardianship over Larry had been granted to himself and his wife, Lourdes Aguirre, way back on 19 June 1986 by the Regional Trial Court, Branch 3 of Balanga, Bataan. Respondent Pedro Aguirre contends that being one of the legal guardians, consequently, parental authority over Larry is vested in him. But assuming for the sake of argument that Larry does have the capacity to make the decision concerning his vasectomy, respondent Pedro Aguirre argues that petitioner Gloria Aguirre has no legal personality to institute the subject criminal complaint, for only Larry would have the right to do so. Just as the two preceding respondents did, respondent Dr. Agatep also disputed the allegations of facts stated in the Complaint. Adopting the allegations of his co-respondents insofar as they were material to

the charges against him, he vehemently denied failing to inform Larry of the intended procedure. In his counter-statement of facts he averred that: (b) x x x I scheduled Larry for consultative interview x x x wherein I painstakingly explained what vasectomy is and the consequences thereof; but finding signs of mental deficiency, x x x I advised his relatives and his nurse who accompanied him to have Larry examined by a psychiatrist who could properly determine whether or not Larry x x x can really give his consent, thus I required them to secure first a psychiatric evaluation and clearance prior to the contemplated procedure. (c) On January 21, 2002, I was furnished a copy of a psychiatric report prepared by Dr. Marissa Pascual x x x. In her said report, Dr. Pascual found Larry to suffer from mental retardation, mild to moderate type and further stated that at his capacity, he may never understand the nature, the foreseeable risks and benefits and consequences of the procedure (vasectomy) x x x, thus the responsibility of decision making may be given to his parent or guardian x x x. (d) x x x I was likewise furnished a copy of an affidavit executed by Pedro Aguirre stating that he was the legal guardian of Larry x x x Pedro Aguirre gave his consent to vasectomize Larry x x x. (e) Only then, specifically January 31, 2002, vasectomy was performed with utmost care and diligence.[19] In defense against the charge of falsification and mutilation, respondent Dr. Agatep argued that subject complaint should be dismissed for the following reasons: 1. The complainant has no legal personality to file this case. As mentioned above, she is only a common law sister of Larry who has a legal guardian in the person of Pedro Aguirre, one of the herein respondents x x x. 2. x x x [t]he allegations in the complaint clearly centers on the condition of complainants mother, Lourdes Aguirre, her reputation, and miserably fails to implicate the degree of participation of herein respondent. x x x xxxx (b) Falsification. x x x I strongly aver that this felony does not apply to me since it clearly gives reference to co- respondent, Dr. Marissa Pascuals Psychiatry Report, dated January 21, 2002, in relation with her field of profession, an expert opinion. I do not have any participation in the preparation of said report, x x x neither did I utilized (sic) the same in any proceedings to the damage to another. x x x I also deny using a falsified document x x x. (c) Mutilation. x x x Vasectomy does not in anyway equate to castration and what is touched in vasectomy is not considered an organ in the context of law and medicine, it is quite remote from the penis x x x.

(d) Child Abuse. x x x the complaint-affidavit is very vague in specifying the applicability of said law. It merely avers that Laureano Larry Aguirre is a child, and alleges his father, Pedro Aguirre, has parental authority over him x x x.[20] Similarly, respondent Dr. Pascual denied the criminal charges of falsification and mutilation imputed to her. She stands by the contents of the assailed Psychiatric Report, justifying it thus: x x x My opinion of Larry Aguirres mental status was based on my own personal observations, his responses during my interview of him, the results of the two (2) psychological tests conducted by clinical psychologists, the results of laboratory tests, including a CT Scan and MRI, and his personal and family history which I obtained from his sister, Michelina Aguirre-Olondriz x x x. 5. x x x the reference in my report concerning Mrs. Lourdes Aguirre is not a statement of my opinion of Mrs. Aguirres mental status, x x x. Rather, it is part of the patients personal and family history as conveyed to me by Mrs. Aguirre- Olondriz. 6. x x x An expression of my opinion, especially of an expert opinion, cannot give rise to a charge for falsification. A contrary opinion by another expert only means that the experts differ, and does not necessarily reflect on the truth or falsity of either opinion x x x. 7. x x x I never stated that I examined Mrs. Aguirre, because I never did x x x. 8. I had no participation in the surgery performed on Larry Aguirre except to render an opinion on his capacity to give informed consent to the vasectomy x x x. 9. Without admitting the merits of the complaint, I submit that complainants are not the proper persons to subscribe to the same as they are not the offended party, peace officer or other public officer charged with the enforcement of the law violated x x x.[21] The Assistant City Prosecutor held that the circumstances attendant to the case did not amount to the crime of falsification. He held that [T]he claim of the complainant that the Psychiatric Report was falsified, because consent was not given by Larry Aguirre to the vasectomy and/or he was not consulted on said operation does not constitute falsification. It would have been different if it was stated in the report that consent was obtained from Larry Aguirre or that it was written therein that he was consulted on the vasectomy, because that would mean that it was made to appear in the report that Larry Aguirre participated in the act or proceeding by giving his consent or was consulted on the matter when in truth and in fact, he did not participate. Or if not, the entry would have been an untruthful statement. But that is not the case. Precisely (sic) the report was made to determine whether Larry Aguirre could give his consent to his intended vasectomy. Be that as it may, the matter of Larrys consent having obtained or not may nor be an issue after all, because complainants (sic) herself alleged that Larrys mental condition is that of a child, who can not give consent. Based on the foregoing consideration, no falsification can be established under the circumstances.[22]

Even the statement in the Psychiatric Report of respondent Dr. Pascual that Lourdes Aguirre had Bipolar Mood Disorder cannot be considered falsification since The report did not state that Lourdes Aguirre was in fact personally interviewed by respondent Dr. Pascual and that the latter concluded that Lourdes Aguirre has Bipolar Mood Disorder. The report merely quoted other sources of information with respect to the condition of Lourdes Aguirre, in the same manner that the fact that Lourdes Aguirre was physically abusing Larry Aguirre was also not of Dra. Pascual personal knowledge. But the fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without saying that if the author of the report is not guilty, then with more reason the other respondents are not liable.[23] Respecting the charge of mutilation, the Assistant City Prosecutor also held that the facts alleged did not amount to the crime of mutilation as defined and penalized under Article 262 of the Revised Penal Code, i.e., [t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self. He ratiocinated that: While the operation renders him the inability (sic) to procreate, the operation is reversible and therefore, cannot be the permanent damage contemplated under Article 262 of the Revised Penal Code.[24] The Assistant City Prosecutor,[25] in a Resolution[26] dated 8 January 2003, found no probable cause to hold respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual liable for the complaint of falsification and mutilation, more specifically, the violation of Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Accordingly, the Assistant City Prosecutor recommended the dismissal of petitioner Gloria Aguirres complaint for insufficiency of evidence. The dispositive portion of the resolution reads: WHEREFORE, it is recommended that the above-entitled case be dismissed for insufficiency of evidence.[27] On 18 February 2003, petitioner Gloria Aguirre appealed the foregoing resolution to the Secretary of the DOJ by means of a Petition for Review.[28] In a Resolution dated 11 February 2004, Chief State Prosecutor Jovencito R. Zuo, for the Secretary of the DOJ, dismissed the petition. In resolving said appeal, the Chief State Prosecutor held that: Under Section 12, in relation to Section 7, of Department Circular No. 70 dated July 3, 2000, the Secretary of Justice may, motu proprio, dismiss outright the petition if there is no showing of any reversible error in the questioned resolution or finds the same to be patently without merit.

We carefully examined the petition and its attachments and found no error that would justify a reversal of the assailed resolution which is in accord with the law and evidenced (sic) on the matter. [29] Petitioner Gloria Aguirres Motion for Reconsideration was likewise denied with finality by the DOJ in another Resolution dated 12 November 2004. Resolute in her belief, petitioner Gloria Aguirre went to the Court of Appeals by means of a Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court, as amended. On 21 July 2005, the Court of Appeals promulgated its Decision dismissing petitioner Gloria Aguirres recourse for lack of merit. The fallo of the assailed decision reads: WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE and accordingly DISMISSED for lack of merit. Consequently, the assailed Resolutions dated February 11, 2004 and November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466 are hereby AFFIRMED.[30] Petitioner Gloria Aguirres motion for reconsideration proved futile as it was denied by the appellate court in a Resolution dated 5 December 2005. Hence, the present petition filed under Rule 45 of the Rules of Court, as amended, premised on the following arguments: I.

THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND REVERSIBLE ERRORS OF LAW WHEN IT CONCLUDED, BASED PURPORTEDLY ON THE INTERNET WHICH RUNS AMUCK WITH OUR SYSTEM OF THE RULE OF LAW AND THE EVIDENCE ON RECORD, THAT BILATERAL VASECTOMY IS PURPORTEDLY 100% REVERSIBLE BY A FUTURE MEDICAL PROCEDURE HENCE NOT AMOUNTING TO MUTILATION, X X X; AND xxxx II.

WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND REVERSIBLE ERRORS OF LAW WHEN IT REFUSED TO DIRECT THE INDICTMENT OF THE PRIVATE RESPONDENTS FOR MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE OF SUFFICIENT PROBABLE CAUSE THEREFOR X X X.[31] The foregoing issues notwithstanding, the more proper issue for this Courts consideration is, given the facts of the case, whether or not the Court of Appeals erred in ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when the latter affirmed the public

prosecutors finding of lack of probable cause for respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual to stand trial for the criminal complaints of falsification and mutilation in relation to Republic Act No. 7610. In ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction, the Court of Appeals explained that: Evidently, the controversy lies in the permanency of sterilization as a result of a vasectomy operation, and the chances of restoring fertility with a reversal surgery x x x. We sustain the DOJ in ruling that the bilateral vasectomy performed on Larry does not constitute mutilation even if intentionally and purposely done to prevent him from siring a child. xxxx Sterilization is to be distinguished from castration: in the latter act the reproductive capacity is permanently removed or damaged.[32] It then concluded that: The matter of legal liability, other than criminal, which private respondents may have incurred for the alleged absence of a valid consent to the vasectomy performed on Larry, is certainly beyond the province of this certiorari petition. Out task is confined to the issue of whether or not the Secretary of Justice and the Office of the City Prosecutor of Quezon City committed grave abuse of discretion in their determining the existence or absence of probable cause for filing criminal cases for falsification and mutilation under Articles 172 (2) and 262 of the Revised Penal Code.[33] Petitioner Gloria Aguirre, however, contends that the Court of Appeals and the DOJ failed to appreciate several important facts: 1) that bilateral vasectomy conducted on petitioners brother, Larry Aguirre, was admitted[34]; 2) that the procedure caused the perpetual destruction of Larrys reproductive organs of generation or conception;[35]3) that the bilateral vasectomy was intentional and deliberate to deprive Larry forever of his reproductive organ and his capacity to procreate; and 4) that respondents, in conspiracy with one another, made not only one but two (2) untruthful statements, and not mere inaccuracies when they made it appear in the psychiatry report[36] that a) Larrys consent was obtained or at the very least that the latter was informed of the intended vasectomy; and b) that Lourdes Aguirre was likewise interviewed and evaluated. Paradoxically, however, petitioner Gloria Aguirre does not in any way state that she, instead of respondent Pedro Aguirre, has guardianship over the person of Larry. She only insists that respondents should have obtained Larrys consent prior to the conduct of the bilateral vasectomy. In contrast, the Office of the Solicitor General (OSG), for public respondent DOJ, argues that the conduct of preliminary investigation to determine the existence of probable cause for the purpose of filing (an) information is the function of the public prosecutor.[37] More importantly, the element[s] of

castration or mutilation of an organ necessary for generation is completely absent as he was not deprived of any organ necessary for reproduction, much less the destruction of such organ.[38] Likewise, in support of the decision of the Court of Appeals, respondents Pedro Aguirre and Olondriz assert that, fundamentally, petitioner Gloria Aguirre has no standing to file the complaint, as she has not shown any injury to her person or asserted any relationship with Larry other than being his common law sister; further, that she cannot prosecute the present case, as she has not been authorized by law to file said complaint, not being the offended party, a peace officer or a public officer charged with the enforcement of the law. Accordingly, respondents Pedro Aguirre and Olondriz posit that they, together with the other respondents Dr. Agatep and Dr. Pascual, may not be charged with, prosecuted for and ultimately convicted of: 1) mutilation x x x since the bilateral vasectomy conducted on Larry does not involve castration or amputation of an organ necessary for reproduction as the twin elements of the crime of mutilation x x x are absent[39]; and 2) falsification x x x since the acts allegedly constituting falsification involve matters of medical opinion and not matters of fact,[40] and that petitioner Gloria Aguirre failed to prove damage to herself or to any other person. Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not mutilation. He elucidates that vasectomy is merely the excision of the vas deferens, the duct in testis which transport semen[41]; that it is the penis and the testis that make up the male reproductive organ and not the vas deferens; and additionally argues that for the crime of mutilation to be accomplished, Article 262 of the Revised Penal Code necessitates that there be intentional total or partial deprivation of some essential organ for reproduction. Tubes, seminal ducts, vas deferens or prostatic urethra not being organs, respondent Dr. Agatep concludes, therefore, that vasectomy does not correspond to mutilation. Anent the charge of falsification of a private document, respondent Dr. Agatep asseverates that he never took part in disclosing any information, data or facts as contained in the contentious Psychiatric Report. For her part, respondent Dr. Pascual insists that the assailed Psychiatry Report was the result of her independent exercise of professional judgment. Rightly or wrongly, (she) diagnosed Larry Aguirre to be incapable of giving consent, based on interviews made by the psychiatrist on Larry Aguirre and persons who interacted with him.[42]And supposing that said report is flawed, it is, at most, an erroneous medical diagnosis. The petition has no merit. Probable cause has been defined as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.[43] The term does not mean actual and positive cause nor does it import absolute certainty.[44] It is merely based on opinion and reasonable belief;[45]that is, the belief that the act or omission complained of constitutes the offense charged. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of

guilt.[46] The executive department of the government is accountable for the prosecution of crimes, its principal obligation being the faithful execution of the laws of the land. A necessary component of the power to execute the laws is the right to prosecute their violators,[47] the responsibility of which is thrust upon the DOJ. Hence, the determination of whether or not probable cause exists to warrant the prosecution in court of an accused is consigned and entrusted to the DOJ. And by the nature of his office, a public prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. Put simply, public prosecutors under the DOJ have a wide range of discretion, the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by (public) prosecutors.[48] And this Court has consistently adhered to the policy of noninterference in the conduct of preliminary investigations, and to leave to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the filing of an information against the supposed offender.[49] But this is not to discount the possibility of the commission of abuses on the part of the prosecutor. It is entirely possible that the investigating prosecutor may erroneously exercise the discretion lodged in him by law. This, however, does not render his act amenable to correction and annulment by the extraordinary remedy ofcertiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction. [50] Prescinding from the above, the courts duty in an appropriate case, therefore, is confined to a determination of whether the assailed executive determination of probable cause was done without or in excess of jurisdiction resulting from a grave abuse of discretion. For courts of law to grant the extraordinary writ of certiorari, so as to justify the reversal of the finding of whether or not there exists probable cause to file an information, the one seeking the writ must be able to establish that the investigating prosecutor exercised his power in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is not enough.[51] Excess of jurisdiction signifies that he had jurisdiction over the case but has transcended the same or acted without authority. [52] Applying the foregoing disquisition to the present petition, the reasons of the Assistant City Prosecutor in dismissing the criminal complaints for falsification and mutilation, as affirmed by the DOJ, is determinative of whether or not he committed grave abuse of discretion amounting to lack or excess of jurisdiction. In ruling the way he did that no probable cause for falsification and mutilation exists - the Assistant City Prosecutor deliberated on the factual and legal milieu of the case. He found that there was no

sufficient evidence to establish a prima facie case for the crimes complained of as defined and punished under Articles 172, paragraph 2, and 262 of the Revised Penal Code in relation to Republic Act No. 7610, respectively. Concerning the crime of falsification of a private document, the Assistant City Prosecutor reasoned that the circumstances attendant to the case did not amount to the crime complained of, that is, the lack of consent by Larry Aguirre before he was vasectomized; or the fact that the latter was not consulted. The lack of the two preceding attendant facts do not in any way amount to falsification, absent the contention that it was made to appear in the assailed report that said consent was obtained. That would have been an untruthful statement. Neither does the fact that the Psychiatric Report state that Lourdes Aguirre has Bipolar Mood Disorder by the same token amount to falsification because said report does not put forward that such finding arose after an examination of the concerned patient. Apropos the charge of mutilation, he reasoned that though the vasectomy rendered Larry unable to procreate, it was not the permanent damage contemplated under the pertinent provision of the penal code. We agree. Grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the DOJ and the Assistant City Prosecutor was not shown in the present case. In the present petition, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual are charged with violating Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Article 172, paragraph 2 of the Revised Penal Code, defines the crime of falsification of a private document, viz Art. 172. Falsification by private individuals and use of falsified documents. The penalty of prision correccional in its medium and maximum periods and a fine of not more than 5,000 pesos shall be imposed upon: xxxx 2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article. Petitioner Gloria Aguirre charges respondents with falsification of a private document for conspiring with one another in keeping Larry in the dark about the foregoing (vasectomy) as the same was concealed from him by the respondents x x x,[53] as well as for falsely concluding and diagnosing Lourdes Aguirre to be suffering from Bipolar Mood Disorder. A scrutiny, however, of Article 171 of the Revised Penal Code which defines the acts constitutive of falsification, that is Art. 171. x x x shall falsify a document by committing any of the following acts: 1. Counterfeiting or imitating any handwriting, signature, or rubric;

2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; 4. Making untruthful statements in a narration of facts; 5. Altering true dates; 6. Making any alteration or intercalation in a genuine document which changes its meaning; 7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; or 8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book. vis--vis the much criticized Psychiatric Report, shows that the acts complained of do not in any manner, by whatever stretch of the imagination, fall under any of the eight (8) enumerated acts constituting the offense of falsification. In order to properly address the issue presented by petitioner Gloria Aguirre, it is necessary that we discuss the elements of the crime of falsification of private document under the Revised Penal Code, a crime which all the respondents have been accused of perpetrating. The elements of said crime under paragraph 2 of Article 172 of our penal code are as follows: 1) that the offender committed any acts of falsification, except those in par. 7, enumerated in Article 171; 2) that the falsification was committed in any private document; and 3) that the falsification caused damage to a third party or at least the falsification was committed with intent to cause such damage. Under Article 171, paragraph 2, a person may commit falsification of a private document by causing it to appear in a document that a person or persons participated in an act or proceeding, when such person or persons did not in fact so participate in the act or proceeding. On the other hand, falsification under par. 3 of the same article is perpetrated by a person or persons who, participating in an act or proceeding, made statements in that act or proceeding and the offender, in making a document, attributed to such person or persons statements other than those in fact made by such person or persons. And the crime defined under paragraph 4 thereof is committed when 1) the offender makes in a document statements in a narration of facts; 2) he has a legal obligation to disclose the truth of the facts narrated by him; 3) the facts narrated by the offender are absolutely false; and 4) the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person. Applying the above-stated elements of the crime to the case at bar, in order that respondent Dr. Pascual, and the rest acting in conspiracy with her, to have committed the crime of falsification under par. 3 and 4 of Article 171 of the Revised Penal Code, it is essential that that there be prima

facie evidence to show that she had caused it to appear that Larry gave his consent to be vasectomized or at the very least, that the proposed medical procedure was explained to Larry. But in the assailed report, no such thing was done. Lest it be forgotten, the reason for having Larry psychiatrically evaluated was precisely to ascertain whether or not he can validly consent with impunity to the proposed vasectomy, and not to obtain his consent to it or to oblige respondent Dr. Pascual to explain to him what the import of the medical procedure was. Further, that Larrys consent to be vasectomized was not obtained by the psychiatrist was of no moment, because nowhere is it stated in said report that such assent was obtained. At any rate, petitioner Gloria Aguirre contradicts her very own allegations when she persists in the contention that Larry has the mental age of a child; hence, he was legally incapable of validly consenting to the procedure. In the matter of the supposed incorrect diagnosis of Lourdes Aguirre, with regard to paragraph 2 of Article 171 of the Revised Penal Code, we quote with approval the succinct statements of the Assistant City Prosecutor: [T]he fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without saying that if the author of the report is not guilty, then with more reason the other respondents are not liable.[54] As to the charge of mutilation, Art. 262 of the Revised Penal Code defines the crime as Art. 262. Mutilation. The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ for reproduction. Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods. A straightforward scrutiny of the above provision shows that the elements [55] of mutilation under the first paragraph of Art. 262 of the Revised Penal Code to be 1) that there be a castration, that is, mutilation of organs necessary for generation; and 2) that the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. According to the public prosecutor, the facts alleged did not amount to the crime of mutilation as defined and penalized above, i.e., [t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self. Petitioner Gloria Aguirre, however, would want this Court to make a ruling that bilateral vasectomy constitutes the crime of mutilation. This we cannot do, for such an interpretation would be contrary to the intentions of the framers of our penal code.

A fitting riposte to the issue at hand lies in United States v. Esparcia,[56] in which this Court had the occasion to shed light on the implication of the term mutilation. Therein we said that: The sole point which it is desirable to discuss is whether or not the crime committed is that defined and penalized by article 414 of the Penal Code. The English translation of this article reads: "Any person who shall intentionally castrate another shall suffer a penalty ranging from reclusion temporal to reclusion perpetua." The Spanish text, which should govern, uses the word "castrare," inadequately translated into English as "castrate." The word "capar," which is synonymous of "castrar," is defined in the Royal Academic Dictionary as the destruction of the organs of generation or conception. Clearly it is the intention of the law to punish any person who shall intentionally deprived another of any organ necessary for reproduction. An applicable construction is that of Viada in the following language: "At the head of these crimes, according to their order of gravity, is the mutilation known by the name of 'castration' which consists of the amputation of whatever organ is necessary for generation. The law could not fail to punish with the utmost severity such a crime, which, although not destroying life, deprives a person of the means to transmit it. But bear in mind that according to this article in order for 'castration' to exist, it is indispensable that the 'castration' be made purposely. The law does not look only to the result but also to the intention of the act. Consequently, if by reason of an injury or attack, a person is deprived of the organs of generation, the act, although voluntary, not being intentional to that end, it would not come under the provisions of this article, but under No. 2 of article 431." (Viada, Codigo Penal, vol. 3, p. 70. See to same effect, 4 Groizard, Codigo Penal, p. 525.) Thus, the question is, does vasectomy deprive a man, totally or partially, of some essential organ of reproduction? We answer in the negative. In the male sterilization procedure of vasectomy, the tubular passage, called the vas deferens, through which the sperm (cells) are transported from the testicle to the urethra where they combine with the seminal fluid to form the ejaculant, is divided and the cut ends merely tied.[57] That part, which is cut, that is, the vas deferens, is merely a passageway that is part of the duct system of the male reproductive organs. The vas deferens is not an organ, i.e., a highly organized unit of structure, having a defined function in a multicellular organism and consisting of a range of tissues.[58] Be that as it may, even assuming arguendo that the tubular passage can be considered an organ, the cutting of the vas deferens does not divest or deny a man of any essential organ of reproduction for the simple reason that it does not entail the taking away of a part or portion of the male reproductive system. The cut ends, after they have been tied, are then dropped back into the incision.[59] Though undeniably, vasectomy denies a man his power of reproduction, such procedure does not deprive him, either totally or partially, of some essential organ for reproduction. Notably, the ordinary usage of the term mutilation is the deprivation of a limb or essential part (of the body),[60] with the operative expression being deprivation. In the same manner, the word castration is defined as the removal of the testies or ovaries.[61] Such being the case in this present petition, the bilateral vasectomy done on Larry could not have amounted to the crime of mutilation as defined and punished under

Article 262, paragraph 1, of the Revised Penal Code. And no criminal culpability could be foisted on to respondent Dr. Agatep, the urologist who performed the procedure, much less the other respondents. Thus, we find sufficient evidence to explain why the Assistant City Prosecutor and the DOJ ruled the way they did. Verily, We agree with the Court of Appeals that the writ of certiorari is unavailing; hence, should not be issued. It is once more apropos to pointedly apply the Courts general policy of non-interference in the conduct of preliminary investigations. As it has been oft said, the Supreme Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case.[62] The courts try and absolve or convict the accused but, as a rule, have no part in the initial decision to prosecute him.[63] The possible exception to this rule is where there is an unmistakable showing of a grave abuse of discretion amounting to lack or excess of jurisdiction that will justify judicial intrusion into the precincts of the executive. But that is not the case herein. WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed 21 July 2005 Decision and 5 December 2005 Resolution, both of the Court of Appeals in CA-G.R. SP No. 88370 are hereby AFFIRMED. Costs against petitioner Gloria Aguirre. SO ORDERED. Ynares-Santiago, (Chairperson), Austria-Martinez, Corona, and Reyes, JJ., concur.

EN BANC [G.R. Nos. 144907-09. September 17, 2002] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MANUEL GUTIERREZ, accused-appellant. DECISION BELLOSILLO, J.: VENUS RAMOS went to see her sister Analiza de la Cruz in her house in the family compound at Tibag, Baliuag, Bulacan, on 20 June 1999. Venus' other sister, Lorelie de la Cruz, lived next door with their cousin, accused Manuel Gutierrez, in the family's two (2)-storey ancestral home. At around 2:30 in the afternoon while Venus was watching television she heard some noise coming from the second floor of the old family home. She rushed there but was immediately greeted upstairs with a gruesome scenario. Her sister Lorelie was being stabbed mercilessly from behind by their cousin Manuel Gutierrez. Terrified, Venus retreated and dashed downstairs where she met her sister Analiza. Upon learning of the incident, Analiza rushed back to her house next door. Venus ran towards the gate of the compound in an effort to seek help from the neighbors. When she looked back she chanced upon the accused also stabbing her cousin Rializa Trabel. The accused next turned his ire on Rializa's mother, Lilian Trabel, whom he struck on the ear with a kitchen knife although the latter was able to evade further harm by seeking refuge inside her house. Lilian survived the attack, but Rializa and Lorelie died even before they could receive medical attention. Accused Manuel Gutierrez was arrested a few hours after the carnage and was accordingly charged with double murder for the death of Lorelie dela Cruz and Rializa Trabel and with attempted murder for the wounding of Lilian Trabel. The accused initially entered a plea of "Not Guilty" but after the prosecution had presented its first witness, he changed his plea to "Guilty." Before accepting his plea of guilt, the trial court inquired whether he understood fully the meaning of his plea of guilt and the consequences thereof. After convincing the court that he understood his plea of guilt and its consequences, the accused maintained his plea of guilt explaining that he desperately wanted to give his relatives serenity and peace of mind. Thus the trial court continued with the reception of the evidence for the prosecution to determine the proper imposable penalty. Lilian Trabel narrated in between sobs how her daughter Rializa was stabbed to death by the accused Manuel Gutierrez. She said that Rializa was roused from her sleep upon hearing some noise from a neighbor's house and then darted through her main door. She followed Rializa but as they were about to step out of the house they were met by the accused who was already in a belligerent mood. Without saying a word the accused suddenly stabbed Rializa who could only shout "Jojo, huwag!"Thereupon, the accused turned his wrath on her and stabbed her on the head with a kitchen knife. Then she ran back to her house and locked the door for safety. Once inside, she kept calling out for her daughter Rializa but she did not get any response.

Thereafter, accused Manuel Gutierrez was convicted of two (2) counts of murder and one (1) count of serious physical injuries. The court a quo appreciated the presence of treachery as Lorelie was assaulted from behind with the accused holding on to her hair. Considering that the assault happened within the victims own house, the trial court opined that there was every reason to believe that it was sudden and unexpected. Treachery was likewise found to have attended the killing of Rializa since it was made upon an unsuspecting victim who did not have any opportunity to defend herself or to avoid the attack. On the other hand, for the asault on Lilian Trabel, the trial court held the accused liable only for serious physical injuries as her wounds required only a month to heal.[1] Consequently, the accused was sentenced twice to suffer the penalty of death for the killing of Lorelie dela Cruz and Rializa Trabel, and to an indeterminate prison term of four (4) months of arresto mayor as minimum to two (2) years and four (4) months of prision correcional as maximum for the attack upon Lilian Trabel resulting in serious physical injuries. The accused was further ordered to indemnify the heirs of Lorelie dela Cruz and Rializa Trabel P100,000.00 and Lilian Trabel P5,000.00 as actual damages. These cases were elevated to us on automatic review in view of the penalty of death imposed twice upon the accused by the court a quo. The accused does not deny his guilt. He faults the trial court for appreciating the qualifying circumstance of treachery in the killing of Lorelie and Rializa. He insists that insofar as the stabbing of Lorelie is concerned, Venus Ramos admittedly did not witness the commencement of the attack thus defeating the prosecutions bid to establish treachery as an aggravating circumstance. The accused also argues that treachery cannot be appreciated in the killing of Rializa as the evidence shows that the assault upon her was thought of only seconds after the killing frenzy. On the part of the government, the Solicitor General asserts that a plea of guilt amounts to a judicial confession of all the material facts alleged in the Information, and by pleading guilty to the charges alleged in the Information, the accused admits not only the commission of the crime but also the attendant aggravating circumstances alleged therein. Thus, the accused cannot now be heard to complain that the trial court wrongly appreciated treachery in convicting him of two (2) counts of murder. The Solicitor Generals argument is already pass. We are reminded of People v. Derilo[2] where after enumerating the perils posed by the rule equating a guilty plea with an admission of all the aggravating circumstances alleged in the Information, we categorically stated that a formal plea of guilt was insufficient to sustain a conviction of the aggravated crime charged in the Information. We ratiocinated that it happens not infrequently that upon arraignment the accused pleads guilty to the commission of an offense qualified by aggravating circumstances, when in truth his intention was merely to admit that he committed the act charged in the complaint without an understanding of the aggravating circumstances. It is highly unreasonable to assume that an accused, untutored in the ways of the judicial system, would fully comprehend the allegation that the aggravating circumstances of treachery and evident premeditation attended the commission of the crimes inasmuch as treachery is a highly

technical term the juridical meaning of which is beyond the understanding not only of the illiterates but even those who, being educated, are not lawyers.[3] Too, it should no longer be assumed that the profession of guilt includes an admission of the attending circumstances alleged in the Information considering that Sec. 3, Rule 116, of the Rules of Court mandates the presentation of evidence in capital offenses where the accused has entered a plea of guilty. This rule would be rendered nugatory if we were to determine the liability of the accused for an aggravated crime based on the dubious strength of a presumptive rule. Thus, although the accused herein pleaded guilty to the charges alleged in the three (3) separate Informations, treachery may not be taken against him if the evidence presented by the prosecution failed to adequately establish its existence. Hence, the primordial issue to be resolved now is whether the assaults perpetrated by the accused were attended with treachery. To sustain a finding of treachery, two (2) conditions must be established: (a) the means, method and form of execution employed by the accused gave the victim no opportunity to defend himself or to retaliate; and, (b) such means, method or form of execution was deliberately and consciously adopted by the accused to eliminate or diminish the risk to his person from any defense which the party attacked might offer.[4] Treachery may not simply be deduced from presumptions as it is necessary that its elements be fully established as the crime itself. In the instant case, however, we are not prepared to rule that treachery attended the killing of Lorelie de la Cruz. As borne out by the records, prosecution witness Venus Ramos did not actually see how the stabbing began, how it developed, and how the unfortunate victim succumbed to death on the second floor of the ancestral house. Venus witnessed only a portion of the assault, so that she would be unable to paint an accurate picture of the killing. We have consistently ruled that absent any particulars as to the manner with which the aggression was commenced, or how the act that resulted in the death of the victim unfolded, treachery cannot be appreciated.[5] Thus, no matter how truthful the suppositions offered by Venus appear, they do not, as they cannot produce the effect of aggravating the liability of the accused. Treachery likewise was not attendant in the killing of Rializa. The attendant circumstances indicate that the attack on Rializa was the result of a rash and impetuous impulse rather than of a deliberate, conscious and willful act. We have ruled in a catena of cases that where the meeting between the accused and the victim was casual and the attack was done impulsively or devoid of any plan, there can be no treachery even if the attack was sudden and unexpected. In treachery, the mode of attack must not spring from the unexpected turn of events but must have been deliberately thought of by the offender.[6] As the meeting between the accused and Rializa was purely accidental, and in the absence of proof of any evil motive, it becomes obvious that the accused had no opportunity to plan the killing, much less map the strategy with which to implement it. No evidence on record supports the theory that he had previously decided to kill Rializa. There is even no proof that he purposely sought her out, much less that he had even any motive aforethought preceding the perpetration of the crime.

We likewise take exception to the view of the trial court denominating the assault upon Lilian Trabel as serious physical injuries for the reason that the medical certificate estimated the healing period of one (1) month for her wounds. Article 265 ofThe Revised Penal Code, in relation to par. (4), Art. 263 thereof, provides that where the incapacity of the victim or his required medical attendance is from ten (10) to thirty (30) days the offense would be less serious physical injuries, and if for more than thirty (30) days, it would be serious physical injuries.[7] Article 13 of the Civil Code explicitly provides that when the law speaks of months it shall be understood that they are of thirty (30) days. Applied in the present case, the one (1) month healing period provided in Lilians medical certificate should thus be interpreted as referring to thirty (30) days of incapacity. The liability therefore of the accused for the wounding of Lilian Trabel should fall under Art. 265 of The Revised Penal Code for less serious physical injuries, and not under par. (4), Art. 263, of the aforesaid law. Treachery should not also aggravate the liability of the accused as the attack upon Lilian, similarly to that of her daughter Rializa, was devoid of any predetermination. There being no aggravating or mitigating circumstance attendant to the assault, and taking into consideration theIndeterminate Sentence Law, the penalty for the crime of less serious physical injuries should be taken from arresto menor in any of its periods, which is from one (1) day to thirty (30) days, as minimum, and arresto mayor medium, which is two (2) months and one (1) day to four (4) months, as maximum, or a straight penalty of two (2) months will suffice. In light of our finding that treachery did not qualify the killings of Lorelie and Rializa to murder, the accused could only be held liable for homicide. There being no aggravating or mitigating circumstance in both assaults, the proper imposable penalty isreclusion temporal in its medium period. Applying theIndeterminate Sentence Law, the minimum term imposable upon the accused for each killing should be within the range of prision mayorreclusion temporal medium or from fourteen (14) years eight (8) months and one (1) day to seventeen (17) years and four (4) months. or from six (6) years and one (1) day to twelve (12) years, and the maximum should be within the range of We see no need to modify the civil indemnity of the accused. Apart from the award of civil indemnity ex delicto in the amount of P100,000.00, or P50,000.00 each for the heirs of Lorelie dela Cruz and Rializa Trabel, each set of heirs is likewise entitled to an award of moral damages in the amount of P50,000.00.[8] We delete however the award of actual damages to Lilian Trabel as no competent proof was presented in support thereof.[9] WHEREFORE, the Decision appealed from is MODIFIED. According, accused Manuel Gutierrez is found guilty instead of two (2) counts of homicide for the death of Lorelie dela Cruz and Rializa Trabel and is sentenced to an indeterminate prison term of eight (8) years four (4) months and twenty (20) days ofprision mayor medium, as minimum, to fifteen (15) years eight (8) months and twenty (20) days of reclusion temporal medium, as maximum, for each of the killings. For the assault upon Lilian Trabel, the accused Manuel Gutierrez is found guilty of less serious physical injuries and is sentenced to a straight prison term of two (2) months.

Accused Manuel Gutierrez is further ordered to pay the heirs of Lorelie dela Cruz and Rializa Trabel P50,000.00 each as death indemnity, and another P50,000.00 each for moral damages, plus the costs of suit. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 176265 April 30, 2008

THE PEOPLE OF THE PHILIPPINES, appellee, vs. JOSE MAGBANUA y MORIO, appellant. DECISION TINGA, J.: Two informations were filed against appellant charging him with the crimes of rape1 and attempted rape.2Appellant pleaded not guilty. The prosecution presented the victim AAA3 and the NBI medico-legal officer, Dr. Armie Soreta-Umil. The evidence for the prosecution establishes the following facts: AAA was residing in the City of Malabon4 with appellant and her two uncles when appellant sexually assaulted her on two occasions. The four of them shared one room together. The first incident occurred on 1 October 1998 at around 1 oclock in the afternoon. AAA was lying on the floor of their room when appellant suddenly pinned her down, covered her mouth, and pointed a knife at her. He told AAA that he was going to marry her no matter what happened; then he threatened to kill her should she reveal the incident to anyone. Thereupon, appellant removed her shorts and raped her. He succeeded in inserting his penis inside her vagina. She did not inform anyone about the incident for fear of appellant. During the rape, her uncles were at work in a construction project.5 The second incident occurred on 13 January 1999. AAA was sleeping on the floor of their room when she felt appellant insert his finger into her vagina. This time, she shouted. One of her uncles was awakened and appellant quickly left the house. She told her uncle what appellant did to her.6 AAA reported both incidents to the NBI. She underwent a medico-legal examination with Dr. Armie Soreta-Umil conducting the procedure. The doctor made a report.7 For his part, appellant did not deny having sexual intercourse with AAA on 1 October 1998. Instead, he interposed the "sweetheart defense," claiming that he and AAA had been lovers since that date. As regards the 13 January 1999 incident, appellant simply dismissed it, noting that there were other persons inside the room with them.8Evelyn Magbanua, appellants sister, tried to corroborate appellants sweetheart defense by testifying that appellant and AAA were sweethearts as she observed them to be happy and helping each other do household chores.9

The trial court10 found appellant guilty of simple rape11 and act of lasciviousness12 in a decision13 dated 18 July 2001. Undaunted, appellant interposed an appeal.14 The Court of Appeals affirmed the trial courts judgment with modification by awarding moral damages in the amount of P50,000.00 in a decision15 dated 10 April 2006. Undaunted, appellant filed a notice of appeal.16 Before this Court, appellant claims that the trial court erred in finding him guilty of the crimes of rape and acts of lasciviousness absent evidence beyond reasonable doubt. The appeal is bereft of merit. The issues raised by the appellant involve weighing of evidence already passed upon by the trial court and the appellate court. The age-old rule is that the task of assigning values to the testimonies of witnesses in the stand and weighing their credibility is best left to the trial court which forms its firsthand impressions as a witness testifies before it. It is also axiomatic that positive testimony prevails over negative testimony.17 Appellant never denied having sexual intercourse with AAA. Instead, he claimed that he and AAA were sweethearts since 1 October 1998. However, all that he adduced to bolster the claim is his naked selfserving assertion and the equally unconvincing observation of his sister. The defense had to be proven. Up to the end it remained unsubstantiated, as appellant failed to present any token of the alleged relationship like love notes, mementos or pictures.18 In any event, the claim is inconsequential since it is well-settled that being sweethearts does not negate the commission of rape because such fact does not give appellant license to have sexual intercourse against her will, and will not exonerate him from the criminal charge of rape.19 Being sweethearts does not prove consent to the sexual act.20 The use of a fan knife and the threat of death by appellant against AAA constituted sufficient force and intimidation to cow her into obedience.21 Moreover, appellant, who is known to AAA as her grandfather, undoubtedly exerted a strong moral influence over her. His moral ascendancy and influence over AAA may even substitute for actual physical violence and intimidation.22 Appellant also claims that AAA failed to show that she exerted sufficient resistance to his sexual advances. Suffice it to say, in rape cases it is not necessary that the victim should have resisted unto death. Physical resistance need not be established in rape when intimidation is exercised upon the victim and the latter submits herself, against her will, to the rapists embrace because of fear for life and personal safety. Actual resistance on the part of the victim is not an essential element of rape. What the victim should adequately prove is the use of force or intimidation by the alleged rapist.23 In any case, from AAAs testimony, it is clear that she tried to stop appellants advances during the two incidents but her efforts proved futile as her strength was no match to his. Appellant pinned down AAA while the latter was lying on the floor, covered her mouth, and threatened her with a fan knife. AAA could not push appellant off her body.24 In a prosecution for rape, the complainants candor is the single most important issue. If a complainants testimony meets the test of credibility, the accused may be convicted solely on that basis. 25 We have thoroughly examined AAAs testimony and find nothing that would cast doubt as to her credibility. All

said, there is no evidence to show any improper motive on the part of AAA to falsely charge appellant with rape and to testify against him; hence, the logical conclusion is that her testimony is worthy of full faith and credence. The prosecution has established beyond reasonable doubt that appellant had carnal knowledge of AAA against her will, through force and intimidation, and with the use of a fan knife. Appellant attempted to downplay the 13 January 1999 episode by claiming that there were other persons inside the room with them. It was precisely the presence of other persons that foiled appellants plan. AAAs uncle heard her scream and appellant scampered away. It was then that AAA revealed that she was raped by appellant. Neither the crampness of the room, nor the presence of other people inside it, nor the high risk of being found out has been held sufficient and effective obstacles to deter the commission of rape. As this Court observed in People v. Umali:26 [I]t has become a matter of judicial notice that rape can be committed in many different kinds of places which many would consider as unlikely or inappropriate and that the scene of the rape is not always or necessarily isolated or secluded for lust is no respecter of time or place. Thus, the crime can, and has been, committed in places where people congregate, e.g., inside a place where there are occupants, a five-meter room with five people inside, and even the same room which the victim was sharing with the accused's sisters. Therefore, we find it not so incredible that accused somehow had the temerity to sexually assault private complainant even with his wife and two small children just nearby. To repeat what has been said before, animal lust is an aberration which this Court will not explain for the benefit of the accused. Appellant's threats had intimidated AAA and kept her from immediately reporting the sordid rape incident to her uncles. As this Court held, it is not uncommon for young girls to conceal for some time the violation of their honor because of the threats on their lives.27 The trial court correctly imposed the penalty of reclusion perpetua for the 1 October 1998 rape. The use by appellant of a knife to consummate the crime is a special aggravating circumstance which warrants the imposition of the penalty of reclusion perpetua to death. Since the prosecution failed to prove any other aggravating circumstance in the commission of the crime, the imposable penalty is reclusion perpetua conformably with Article 6328 of the Revised Penal Code. The trial court also correctly sentenced appellant to an indeterminate penalty of four (4) months of arrresto mayoras minimum to four (4) years of prision correccional as maximum for the act of lasciviousness, which carries the penalty of prision correccional. In the absence of modifying circumstances,29 the maximum shall be taken from the medium period of prision correccional, which is two (2) years four (4) months and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from the penalty next lower in degree, which is arresto mayor in its medium period, which ranges from two (2) months and one (1) day to four (4) months.30 As to damages, the appellate court correctly awarded P50,000.00 as moral damages, an award that rests on the jural foundation that the crime of rape necessarily brings with it shame, mental anguish, besmirched reputation, moral shock and social humiliation.31 In addition, exemplary damages in the amount of P25,000.00 should be granted pursuant to the ruling in People v. Catubig32 that the award of

exemplary damages is justified pursuant to Article 2230 of the Civil Code.33 Since the special aggravating circumstance of the use of a deadly weapon attended the commission of the rape, the offended party is entitled to exemplary damages. The Court further awards moral damages for the act of lasciviousness committed against AAA in the amount ofP20,000.00 pursuant to Article 221934 of the Civil Code,35 and civil indemnity in the amount of P20,000.00.36 The Court observes that the prosecutor wrongly designated AAA as a minor in the information,37 when in the same breath he alleged that she was already 18 years of age. While the prosecutor also alleged that appellant is the grandfather of AAA to qualify the crime of rape, yet he failed to prove the relationship beyond reasonable doubt. AAA even testified that she was merely told by her father that appellant is her grandfather but in reality he is only a distant relative since AAAs grandmother and appellants father are cousins.38 Even if the prosecutor had succeeded in proving qualified rape,39 the penalty would still be reclusion perpetua and not death because Republic Act No. 934640 prohibits the imposition of death penalty and instead ordains the meting out of reclusion perpetua without the possibility of parole. The Court of Appeals correctly observed that since the second sexual assault occurred on 13 January 1999, Article 266-A of the Revised Penal Code, as amended by Republic Act No. 8353, otherwise known as "The Anti-Rape Law of 1997" which took effect on 22 October 1997, should have been applied. Under that law, the insertion of ones finger into the genital of another already constitutes rape through sexual assault.41 Appellant would have been convicted of consummated rape for inserting his finger into the vagina of AAA were it not for the fact that the information charged him with attempted rape only. This being so, he cannot be convicted of the graver offense of rape by sexual assault. Nevertheless, appellant can be convicted of acts of lasciviousness because said crime is included in attempted rape.42 WHEREFORE, the Decision of respondent Court of Appeals in CA-G.R. CR-H.C. No. 01658 is AFFIRMED with FURTHER MODIFICATION that appellant is ordered to further pay AAA P25,000.00 as exemplary damages for the rape, and P20,000.00 as civil indemnity and P20,000.00 as moral damages for the act of lasciviousness. SO ORDERED.

EN BANC

THE PEOPLE OF THE PHILIPPINES, Appellee,

G.R. No. 174473

Present:

PUNO, C.J., QUISUMBING, YNARES-SANTIAGO, - versus SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO-MORALES, AZCUNA, ALVIN ABULON y SALVANIA, Appellant. TINGA, CHICO-NAZARIO, GARCIA, VELASCO, JR., NACHURA, and REYES, JJ.

Promulgated:

August 17, 2007

x-------------------------------------------------------------------------------- x

DECISION

TINGA, J.:

For automatic review is the decision[1] of the Court of Appeals (CA) dated 28 April 2006, affirming with modification the decision[2] of the Regional Trial Court (RTC) of Santa Cruz, Laguna, Branch 28,[3] dated 27 December 2000, finding him guilty beyond reasonable doubt of two (2) counts of qualified rape and one (1) count of acts of lasciviousness.

In three (3) separate Informations[4] for Criminal Cases No. SC-7422, SC-7423 and SC-7424 all dated 16 June 1999, appellant was indicted before the RTC for three (3) counts of qualified rape against his minor daughter AAA.[5] The accusatory portions in all the Informations are identical, except as regards the date of commission of the crime. The Information in Criminal Case No. SC-7422 reads:

At the instance of the private complainant [AAA] with the conformity of her mother [BBB][6] in a sworn complaint filed with the Municipal Circuit Trial Court of Lumban-Kalayaan (Laguna), the undersigned Assistant Provincial Prosecutor of Laguna hereby accuses ALVIN ABULON Y SALVANIA, of the crime of RAPE, committed as follows:

That on or about March 14, 1999, in the Municipality of Kalayaan, Province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, with grave abuse of confidence or obvious ungratefulness, and with force and intimidation, did then and there wilfully [sic], unlawfully and feloniously have carnal knowledge of his legitimate minor daughter, [AAA], who at the [sic] time was thirteen (13) years of age, against her will and consent and to her damage and prejudice.

CONTRARY TO LAW.

After appellant pleaded not guilty, trial ensued with AAA herself, as the first prosecution witness, testifying to the following facts:

AAA is the oldest of five (5) legitimate children born to appellant and BBB. On 14, 15, and 16 March 1999, appellant raped AAA. The first rape incident occurred at around 1:30 in the morning of 14 March 1999. AAA was home, fast asleep next to her brother and sister when she suddenly woke up to the noise created by her father who arrived drunk, but who likewise soon thereafter returned to the wedding festivities he was attending. Abiding by their fathers instructions, AAA and her siblings went back to sleep.[7]

AAA was next awakened by the weight of her father lying naked on top of her. Appellant had removed her underwear while she slept. He poked a knife on AAAs waist and threatened to kill her and her siblings if she reported the incident to anyone. She begged him to stop but he proceeded to kiss her mouth, vagina, and breast, and to have carnal knowledge of her.[8] Although they witnessed the ongoing ordeal, AAAs siblings could do nothing but cry as appellant likewise poked the knife on them.[9] The following morning, AAA found a whitish substance and blood stains on her panty.[10]

On 15 March 1999, at around 10:30 in the evening, AAA and her siblings were awakened as appellant came home drunk. He told them to eat first as they had not taken their supper yet. After dining together, appellant left and AAA, her brother, and her sister went back to sleep.[11] As in the previous evening, appellant roused AAA in mid-sleep. This time, she woke up with her father holding her hand, covering her mouth and lying on top of her. He undressed AAA, then mounted her. Repeatedly, he inserted his penis into her vagina, and AAA felt pain in her private parts. Appellant also kissed and fondled AAA on different parts of her body.[12]

Again, AAAs siblings could only cry as they saw appellant rape their sister. AAAs sister, however, took a pen and wrote her a note which read: Ate, let us tell what father was doing to the police officer. After appellant had raped AAA, the latters sister asked their father why he had done such to AAA. In response, appellant spanked AAAs sister and threatened to kill all of them should they report the incidents to the police.[13] The sisters nonetheless related to their relatives AAAs misfortune, but the relatives did not take heed as they regarded appellant to be a kind man.[14]

The third rape episode happened at around 3:30 in the morning of 16 March 1999. Although appellant did not insert his penis into AAAs vagina on this occasion, he took off her lower undergarments and kissed her vagina.[15] On cross-examination, AAA asserted that her father inserted his tongue into the hole of her vagina and she felt pain because of this.[16]

To corroborate AAAs testimony, the prosecution presented BBB and AAAs 6-year old brother CCC. BBB testified that she was a stay-in housemaid working in Las Pias on the dates that her daughter was raped by appellant. On 26 March 1999, she went home and stayed with her family. However, it was only on 4 May 1999 that BBB learned of the rape, when CCC told her that appellant had raped AAA three (3) times and that he had seen his father on top of his sister during those occasions. BBB then verified the matter with AAA herself, and the latter affirmed the incidents. BBB thus took AAA with her to the barangay and police authorities to report the incidents, and later to the provincial hospital for medical examination.[18]
[17]

CCC testified that on three (3) separate occasions, he saw his father lying naked on top of AAA, who was likewise naked.[19]

The prosecution also presented SPO1 Bayani G. Montesur (SPO1 Montesur) and Dr. Gloria Cabael (Dr. Cabael). SPO1 Montesur identified the Police Blotter of 4 May 1999 which recorded the complaints of rape against appellant and the report of the latters arrest.[20] Dr. Cabael, on the other hand, testified that she examined AAA on 4 May 1999 upon the request of Police Officer Gallarosa. She identified the Rape Case Report she prepared thereafter.[21]

Appellant testified as the sole witness on his behalf, proffering denial and alibi as his defenses. According to appellant, he was hired by his aunt, Raquel Masangkay, to deliver hogs and that at 1:30 in the morning of 14 March 1999, he was in Calamba, Laguna pursuant to such employment. He averred that he went home at 7:00 in the morning of the following day and thus could not have raped his daughter as alleged.[22] Likewise denying the second rape charge, appellant testified that on 15 March 1999, he attended a wedding ceremony in Sityo Kalayaan, San Antonio, Kalayaan, Laguna. He went home drunk at 6:00 that evening and promptly went to sleep.[23] Similarly, at 3:00 in the morning of 16 March 1999, appellant claimed to have been asleep with his children and could not have thus committed the rape as charged.[24]

Finding that the prosecution had proven beyond reasonable doubt the guilt of appellant of the crime of qualified rape in Criminal Case Nos. SC-7422 and SC-7423 and the crime of acts of lasciviousness in

Criminal Case No. SC-7424, the RTC rendered a Consolidated Judgment against appellant and sentenced him accordingly, thus:

WHEREFORE:

Under Criminal Case No. SC-7422, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as PRINCIPAL of CONSUMMATED QUALIFIED RAPE as defined and penalized under Article 335 of the Revised Penal Code, as amended by Rep. Act No. 7639, otherwise known as the DEATH PENALTY LAW, and hereby sentences him to suffer the SUPREME PENALTY of DEATH and to indemnify the offended party [AAA] the following sums:

P 75,000.00 50,000.00 50,000.00

as civil indemnity as moral damages; and as exemplary damages.

Under Criminal Case No. SC-7423, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as PRINCIPAL of CONSUMMATED QUALIFIED RAPE as defined and penalized under Article 335 of the Revised Penal Code, as amended by Rep. Act No. 7639, otherwise known as the DEATH PENALTY LAW, and hereby sentences him to suffer the SUPREME PENALTY of DEATH and to indemnify the offended party [AAA] the following sums:

P 75,000.00 50,000.00 50,000.00

as civil indemnity as moral damages; and as exemplary damages.

Under Criminal Case No. SC-7424, this Court finds the accused ALVIN ABULON y SALVANIA GUILTY BEYOND REASONABLE DOUBT as PRINCIPAL of ACTS OF LASCIVIOUSNESS as defined and penalized under Article 336 of the Revised Penal Code and hereby sentences him to suffer the penalty of imprisonment for SIX (6) MONTHS of ARRESTO MAYOR as MINIMUM to SIX (6) YEARS of PRISION CORRECCIONAL as MAXIMUM.

The accused is further ordered to pay the costs of the instant three (3) cases.

SO ORDERED.[25]

With the death penalty imposed on appellant, the case was elevated to this Court on automatic review. However, pursuant to this Courts ruling in People v. Mateo,[26] the case was transferred to the Court of Appeals. On 28 April 2006, the appellate court rendered its decision affirming appellants conviction, but with modification as to damages awarded to the victim. The dispositive portion of the decision states:

WHEREFORE, the decision of the Regional Trial Court of Santa Cruz, Laguna, Branch 28, in Criminal Case Nos. SC-7422 and SC-7423 finding appellant Alvin S. Abulon guilty beyond reasonable doubt of the crimes of qualified rape, and in Criminal Case No. SC-7424, finding appellant guilty beyond reasonable doubt of the crime of acts of lasciviousness, are hereby AFFIRMED.

The civil aspect of the case is MODIFIED to read: In Criminal Case Nos. SC-7422-7423, the award of exemplary damages in the amount of [P]50,000.00 is reduced to [P]25,000.00. In Criminal Case No. SC-7424, appellant is ordered to pay the victim the amount of [P]30,000.00 as moral damages. We affirm in all other respects.

Pursuant to A.M. 00-5-03-SC (Amendments to the Revised Rule of Criminal Procedure to Govern Death Penalty Cases), which took effect on October 15, 2004, this case is elevated and certified to the Supreme Court for its automatic review.

SO ORDERED.[27]

In his Brief,[28] appellant assails his conviction and imputes grave error to the trial court for giving weight and credence to the testimony of AAA. In particular, he makes capital of AAAs delay in reporting the incidents to her mother. He likewise impugns the trial courts alleged bias in propounding inappropriate leading questions to private complainant AAA. Finally, he maintains that the Informations against him are defective as they failed to allege the key element of force and/or intimidation.[29]

We affirm the decision of the Court of Appeals with modifications.

The duty to ascertain the competence and credibility of a witness rests primarily with the trial court, because it has the unique position of observing the witnesss deportment on the stand while testifying. Absent any compelling reason to justify the reversal of the evaluations and conclusions of the trial court, the reviewing court is generally bound by the formers findings.[31]
[30]

In rape cases particularly, the conviction or acquittal of the accused most often depends almost entirely on the credibility of the complainants testimony. By the very nature of this crime, it is generally unwitnessed and usually the victim is left to testify for herself.[32] Her testimony is most vital and must be received with the utmost caution.[33] When a rape victims testimony, however, is straightforward and marked with consistency despite grueling examination, it deserves full faith and confidence and cannot be discarded. Once found credible, her lone testimony is sufficient to sustain a conviction.[34]

The court a quo found the testimony of AAA in its entirety to be credible, made in a candid, spontaneous, and straightforward manner and never shaken even under rigid cross-examination.[35] We agree that AAAs narration of her harrowing experience is worthy of credence, thus:

Criminal Case No. SC-7422

Trial Prosecutor: Q: Tell us what happened at around 1:30 in the morning of March 11, [sic] 1999 to you?

A: My brother and sister and I were already asleep when my father who was drank [sic] came home. We told him to just sleep. My father told us that he would still return to the wedding celebration (kasalan).

x x x x

Q: A:

What happened next when you continued sleeping? I was awakened when I felt my father already on top of me, sir.

Q : A:

Tell us exactly what was [sic] your position then at that time you woke up? I was still lying straight down, sir.

Q : A :

How about your father in relation to you, where was he at the time you woke up? He was on top (nakadagan) of me, sir.

Court: Q: A: Was he naked? Already naked, Your Honor.

Q: A:

How about you, do [sic] you have your clothes on? I have [sic] my lady sando on, Your Honor.

Trial Prosecutor: Q: A: Are [sic] you still wearing your panty when you were awakened? No more, sir.

x x xx

Q: A:

What did your father do aside from placing his body on top of you? He poked a knife on [sic] me, sir.

Court: Q: A: Did he say something? Yes, Your Honor.

Q: A:

What did he say? He said that if he [sic] report her [sic] to anybody he would kill us, Your Honor.

x x x x

Trial Prosecutor: Q: A: What else did he do aside from telling you huag kang magsusumbong? He also poked the knife on [sic] my brother and sister, sir.

Q: A:

They were already awakened at that time? Yes, sir.

Q: A:

What else did he do aside from poking a knife on [sic] you and your brother and sister? No more, sir.

Court: Q: A: While your father according to you is [sic] on top of you, what did he do if any? Kinayog na po niya ako.

Q: A:

What do you mean by telling [sic] kinayog na po niya ako? He was moving, Your Honor.

Q: A:

While your father was moving, what else was happening at that time? I felt pain, Your Honor.

Trial Prosecutor: Q: A: From where did you feel that pain? From my private part, sir.

xxxx

Q: A:

Do you know if you know why you felt the pain on the lower portion of your body? Yes, sir.

Q: A:

Please tell us if you know? Something whitish coming out from it, sir.

Court: Q: A: From where did it come from [sic]? That whitish substance? From my fathers private part, Your Honor.

Q: A:

Why, what happened to the private part of your father? I do not know, Your Honor.

Q: A:

When you felt pain, what was your father doing then? He repeated what he told [sic] previously not to tell to [sic] anybody.

Q: A:

At that time, did you see the private part of your father? Yes, Your Honor.

Q: A:

When you felt pain. Do you know what is [sic] happening to the private part of your father? Yes, Your Honor.

Q: A:

What was happening? His private part stiffened or hardened (tumirik), Your Honor.

Q: A:

Where was it placed if any? Into my private part, Your Honor.

Q: A:

Did the private part of you father actually penetrate your vagina? Yes, Your Honor.

Q: A:

What did you feel at the time the penis of your father entered your vagina? It was painful, Your Honor.

Q: A:

At that time was your father making any movement? Yes, Your Honor.

Q:

Will you describe the movement made by your father?

A: (Witness demonstrating an upward and downward stroke by placing her right palm over her left hand)

Trial Prosecutor: Q: A: Did he kiss you? Yes, sir.

Q: A:

In what part of your body? On my mouth, sir.

Q: A:

Aside from your mouth, what other part or parts of your body did he kiss? On my private part, sir.

Q: A:

When did he kiss you private part, before inserting his penis or after? After he inserted his penis, sir.

Q: A:

What other part of your body did he kiss? On my breast, sir.[36]

xxxx

Criminal Case No. SC-7423

TP. Arcigal, Jr.: Q: A: Now, you said that the second incident happened [on] March 15, 1999, am I correct? Yes, sir.

Q: A:

And where and what time said [sic] second incident happened? 10:30 in the evening, sir, also in our house, sir.

xxxx

Q: A:

And what were you doing when your father returned at around 11:00 oclock in the evening? We were all asleep, sir.

Q: A:

And how did you come to know that he returned at around 11:00 P.M.? My father suddenly held my hand, sir.

Q: A:

And because of that, you were awakened? Yes, sir.

Q: A:

And what happened when you were awakened because your father held your hand? He covered my mouth, sir.

Q: A:

And after covering your mouth, what else did he do? He removed the lower portion of my clothes. Hinubuan po niya ako.

xxxx

Q: A:

After removing your lady sando, what else did he do? He laid himself on top of me, sir.

xxxx

Q: A:

Now, what did he do to you when he was already on top of you? He was kinakayog niya po ako.

Q: A:

Aside from kinakayog, what else did he do? He kissed my breast, sir.

Q: A:

Aside from that, what else? He likewise touched my private part, sir.

Q: A:

When he was on top of you, do you know where was [sic] his penis at that time? Yes, sir.

Q: A:

Where? Into my vagina, sir.

Q: A:

How did you come to know that the penis of your father was inside your vagina? I felt pain in my private part, sir.

Q: A:

And do you know why you felt pain in your private part? Yes, sir.

Q:

Why?

A: His private part . (Thereafter witness is crying while uttering words: I am afraid I might be killed by my father.) He held his penis into my vagina. Thereafter, inserted it repeatedly into mine, sir.

Q: A:

And you were able to actually feel his penis inside your vagina? Yes, sir. [37]

xxxx

Criminal Case No. SC-7424

TP. Arcigal, Jr.: Q: A: Now, you said also that you were raped on March 16, 1999, am I correct? Yes, sir.

Q: A:

What time? It was 3:30 oclock in the morning, sir.

xxxx

TP. Arcigal, Jr.: Q Now, how did it happen, that third incident?

A I was able to run downstairs but when I was about to open the door, he was able to hold my dress, sir.

Q: A:

Was your father drunk at that time? Yes, sir.

Q:

How did you come to know?

A: His eyes were red and he was laughing at me while telling me: It is your end. (Witness crying while answering the question.)

Q: A:

Now, what happened when your father was able to hold your dress? He carried me upstairs, sir.

Q: A:

Was he able to carry you upstairs? Yes, sir.

Q: A:

What did he do, if any, when you were upstairs? He removed my panty and shortpants, sir.

Q: A:

After removing your shorts and panty, what else did he do? No more but he kissed my vagina.

Q: A:

Which part of your vagina did he kiss? That part of my vagina with hold [sic].

Court: Q: A: What about your upper garments at that time? He did not remove it, Your Honor.

Q: A:

What else did he do, aside from that? Nothing more, just that.

Q: A:

After kissing your vagina, what else happened, if any? He again poked the knife on us, Your Honor.

Q: A:

At that time, was your father naked or not? Still with his clothes on, Your Honor.

xxxx

Q: A:

For clarification, what else, if any, did your father do after your father kissed your vagina? Nothing more, merely that act, Your Honor.

Q: A:

You mean your father did not insert his penis to [sic] your vagina anymore? No more, Your Honor.

xxxx

TP. Arcigal, Jr.: Q: A: Now, what did he use in kissing your clitoris? His tongue, sir.

Q: A:

How did you come to know that it was his tongue that he used? It is because I saw him put out his tongue, sir.[38]

Verily, it is inconceivable and contrary to human experience for a daughter, who is attached to her father by the natural bond of love and affection, to accuse him of rape, unless he is the one who raped and defoliated her.[39] As we have pronounced in People v. Canoy:[40]

It is unthinkable for a daughter to accuse her own father, to submit herself for examination of her most intimate parts, put her life to public scrutiny and expose herself, along with her family, to shame, pity or even ridicule not just for a simple offense but for a crime so serious that could mean the death sentence to the very person to whom she owes her life, had she really not have been aggrieved. Nor do we believe that the victim would fabricate a story of rape simply because she wanted to exact revenge against her father, appellant herein, for allegedly scolding and maltreating her.[41]

In stark contrast with AAAs convincing recital of facts, supported as it was by the testimonies of BBB and CCC, are appellants uncorroborated and shaky defenses of denial and alibi. Nothing is more settled in criminal law jurisprudence than that alibi and denial cannot prevail over the positive and categorical

testimony and identification of the complainant.[42] Alibi is an inherently weak defense, which is viewed with suspicion because it can easily be fabricated.[43] Denial is an intrinsically weak defense which must be buttressed with strong evidence of non-culpability to merit credibility.[44]

The records disclose that not a shred of evidence was adduced by appellant to corroborate his alibi. Alibi must be supported by credible corroboration from disinterested witnesses, otherwise, it is fatal to the accused.[45] Further, for alibi to prosper, it must be demonstrated that it was physically impossible for appellant to be present at the place where the crime was committed at the time of its commission.[46] By his own testimony, appellant clearly failed to show that it was physically impossible for him to have been present at the scene of the crime when the rapes were alleged to have occurred. Except for the first incident, appellant was within the vicinity of his home and in fact alleged that he was supposedly even sleeping therein on the occasion of the second and third incidents.

Appellants contention that AAAs accusations are clouded by her failure to report the alleged occurrences of rape is unmeritorious. To begin with, AAA categorically testified that she told her fathers niece about the incidents. However, the latter doubted her, believing instead that appellant was not that kind of man. AAAs subsequent attempt to report the incidents to the barangay turned out to be futile as well as she was only able to speak with the barangay driver, who happened to be appellants brother-in-law. She was likewise disbelieved by the latter. Her disclosure of the rapes to a certain Menoy did not yield any positive result either. Fearing for the lives of her grandparents, AAA decided not to tell them about the incidents.[47]

A child of thirteen years cannot be expected to know how to go about reporting the crime to the authorities.[48] Indeed, We see how AAA must have felt absolutely hopeless since the people around her were relatives of her father and her attempts to solicit help from them were in vain. Thus, AAAs silence in not reporting the incidents to her mother and filing the appropriate case against appellant for over a month is sufficiently explained. The charge of rape is rendered doubtful only if the delay was unreasonable and unexplained.[49] It is not beyond ken that the child, living under threat from appellant and having been turned away by trusted relatives, even accused by them of lying, would simply opt to just suffer in silence thereafter. In People v. Gutierrez,[50] we held:

Complainants failure to immediately report the rape does not diminish her credibility. The silence of a victim of rape or her failure to disclose her misfortune to the authorities without loss of material time does not prove that her charge is baseless and fabricated. It is not uncommon for young girls to conceal

for some time the assault on their virtues because of the rapists threat on their lives, more so when the offender is someone whom she knew and who was living with her.[51]

Appellant brands the trial judge as partial against him for propounding leading questions to AAA. According to him, were it not for the lower courts and the prosecutions biased leading questions, AAA would not have proven the elements of the crimes charged.[52]

Appellants argument is not well-taken. It is the judges prerogative to ask clarificatory queries to ferret out the truth.[53] It cannot be taken against him if the questions he propounds reveal certain truths which, in turn, tend to destroy the theory of one party.[54] After all, the judge is the arbiter and ought to be satisfied himself as to the respective merits and claims of both parties in accord with the stringent demands of due process.[55] Also, being the arbiter, he may properly intervene in the presentation of evidence to expedite proceedings and prevent unnecessary waste of time.[56]

Besides, jurisprudence explains that allegations of bias on the part of the trial court should be received with caution, especially when the queries by the judge did not prejudice the accused. The propriety of the judges questions is determined by their quality and not necessarily by their quantity and, in any event, by the test of whether the defendant was prejudiced by such questioning or not.[57] In the instant case, the Court finds that on the whole, the questions propounded by the judge a quo were but clarificatory in nature and that, concomitantly, appellant failed to satisfactorily establish that he was prejudiced by such queries.

The matter of the purportedly defective Informations was properly addressed by the Court of Appeals, pointing out that a close scrutiny of the Informations would reveal that the words force and/or intimidation are specifically alleged therein.[58] Even if these were not so, well-established is the rule that force or intimidation need not be proven in incestuous cases. The overpowering moral influence of a father over his daughter takes the place of violence and offer of resistance ordinarily required in rape cases where the accused is unrelated to the victim.[59]

Now, we turn to the determination of the crime for which appellant under the third charge is liable and the corresponding penalty therefor. In the Brief for the People, the Office of the Solicitor General (OSG) argues that all three (3) charges of rape, including the rape committed on 16 March 1999 subject of Criminal Case No. SC-7424, were proved beyond reasonable doubt. The court a quo held that it was

clear from the evidence that appellant merely kissed the vagina of AAA and made no attempt of penetration, meaning penile penetration, and for that reason found him guilty of acts of lasciviousness only.[60] Yet, in affirming the trial court, the Court of Appeals did not find any categorical testimony on AAAs part that appellant had inserted his tongue in her vagina, stressing instead that the mere probability of such insertion cannot take the place of proof required to establish the guilt of appellant beyond reasonable doubt for rape.[61]

The automatic appeal in criminal cases opens the whole case for review,[62] as in this case. Thus, this Court is mandated to re-examine the vital facts establisheda quo and to properly apply the law thereto. The two courts below were both mistaken, as we note that AAA unqualifiedly testified on crossexamination to appellants insertion of his tongue into her vagina, viz:

Court: Q: On the third time you are [sic] allegedly raped, you said it happened at 3:30 in the morning of March 16, 1999. A: Yes, sir.

Q: A:

And you said yesterday that he did not insert his pennies [sic] to [sic] your vagina on March 16? Yes, sir.

Q: A:

What he did is he kissed your vagina? Yes, sir.

Q: A:

For how long did he kiss your vagina? Two minutes, sir.

Q: A:

What did he actually do when he kissed your vagina? He kissed my vagina, thereafter he laughed and laughed.

Q: A:

You mean to tell the court when he kissed your vagina he used his lips? His lips and tongue, sir.

Q: A:

What did he do? He put out his tongue thereafter he inano the hole of my vagina.

Court: Q: A: What did your father do with his tongue? He placed it in the hole of my vagina.

Q: A:

Did you feel pain? Yes, sir.

Q: A:

By just kissing your vagina you felt pain? Yes, Your Honor.[63]

Notwithstanding the explicit testimony of AAA on the matter, this Court cannot find appellant guilty of rape as proved, but of acts of lasciviousness only. In reaching this conclusion, we take a route different from the ones respectively taken by the courts below.

With the enactment of Republic Act No. 8353 (R.A. No. 8353), otherwise known as the Anti-Rape Law of 1997,[64] the concept of rape was revolutionized with the new recognition that the crime should include sexual violence on the womans sex-related orifices other than her organ, and be expanded as well to cover gender-free rape.[65] The transformation mainly consisted of the reclassification of rape as

a crime against persons and the introduction of rape by sexual assault[66] as differentiated from the traditional rape through carnal knowledge or rape through sexual intercourse.

Section 2 of the law provides:

Sec. 2. Rape as a Crime Against Persons. The crime of rape shall hereafter be classified as a Crime Against Persons under Title Eight of Act No. 9815, as amended, otherwise known as the Revised Penal Code. Accordingly, there shall be incorporated into Title Eight of the same Code a new chapter to be known as Chapter Three on Rape, to read as follows:

Article 266-A. Rape; When And How Committed. Rape Is Committed

1) By a man who shall have carnal knowledge of a circumstances: (a) (b) unconscious; (c) and By means of fraudulent machination or Through force, threat, or intimidation; When the offended party is deprived of

woman under any of the following

reason or otherwise is

grave abuse of authority;

(d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

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

Paragraph 1 under Section 2 of R.A. No. 8353, which is now Paragraph 1 of the new Article 266-A of the Revised Penal Code, covers rape through sexual intercourse while paragraph 2 refers to rape by

sexual assault. Rape through sexual intercourse is also denominated as organ rape or penile rape. On the other hand, rape by sexual assault is otherwise called instrument or object rape,[67] also gender-free rape,[68] or the narrower homosexual rape.[69]

In People v. Silvano,[70] the Court recognized that the fathers insertion of his tongue and finger into his daughters vaginal orifice would have subjected him to liability for instrument or object rape had the new law been in effect already at the time he committed the acts. Similarly, in People v. Miranda,[71] the Court observed that appellants insertion of his fingers into the complainants organ would have constituted rape by sexual assault had it been committed when the new law was already in effect.

The differences between the two modes of committing rape are the following:

(1) In the first mode, the offender is always a man, while in the second, the offender may be a man or a woman; (2) In the first mode, the offended party is always a woman, while in the second, the offended party may be a man or a woman; (3) In the first mode, rape is committed through penile penetration of the vagina, while the second is committed by inserting the penis into another persons mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person; and (4) The penalty for rape under the first mode is higher than that under the second.

In view of the material differences between the two modes of rape, the first mode is not necessarily included in the second, and vice-versa. Thus, since the charge in the Information in Criminal Case No. SC-7424 is rape through carnal knowledge, appellant cannot be found guilty of rape by sexual assault although it was proven, without violating his constitutional right to be informed of the nature and cause of the accusation against him.

However, following the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120, Rules of Criminal Procedure, appellant can be found guilty of the lesser crime of acts of lasciviousness. Said provisions read:

SEC. 4. Judgment in case of variance between allegation and proof. When there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.

SEC. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitutes the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter.

Indeed, acts of lasciviousness or abusos dishonestos are necessarily included in rape.[72]

In light of the passage of R.A. No. 9346, entitled An Act Prohibiting the Imposition of Death Penalty in the Philippines,[73] the penalty of death can no longer be imposed. Accordingly, the penalty meted out to appellant for rape through sexual intercourse in Criminal Cases No. SC-7422 and SC-7423 is reduced in each case from death to reclusion perpetua without eligibility for parole.[74] We affirm the conviction of appellant in Criminal Case No. SC-7424 for acts of lascivousness but modify the penalty imposed by the Court of Appeals instead to an indeterminate sentence of imprisonment of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum as neither mitigating nor aggravating circumstances attended the commission of the crime.

With respect to the civil liability of appellant, we modify the award in Criminal Cases No. SC-7422 and SC-7423 in light of prevailing jurisprudence. Therefore, appellant is ordered to indemnify AAA, for each count of qualified rape, in the amount of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages.[75] The award of damages in Criminal Case No. SC-7424 is affirmed.

WHEREFORE, the Decision of the Court of Appeals in CA G.R. CR-HC No. 01926 is AFFIRMED WITH MODIFICATIONS. In Criminal Cases No. SC-7422 and SC-7423, appellant is found guilty beyond reasonable doubt of the crime of qualified rape and sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and to pay the victim, AAA, in the amounts of P75,000.00 as civil

indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages plus costs. In Criminal Case No. SC-7424, appellant is found guilty of the crime of acts of lasciviousness and sentenced to suffer the indeterminate penalty of imprisonment for six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum, and to pay AAA moral damages in the amount of P30,000.00 plus costs.

SO ORDERED.

EN BANC [G.R. Nos. 132875-76. November 16, 2001] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs., ROMEO G. JALOSJOS, accused-appellant. DECISION YNARES-SANTIAGO, J.: This Court has declared that the state policy on the heinous offense of rape is clear and unmistakable. Under certain circumstances, some of them present in this case, the offender may be sentenced to a long period of confinement, or he may suffer death. The crime is an assault on human dignity. No legal system worthy of the name can afford to ignore the traumatic consequences for the unfortunate victim and grievous injury to the peace and good order of the community.[1] Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral depravity, when committed against a minor.[2] In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant is always scrutinized with extreme caution.[3] In the present case, there are certain particulars which impelled the court to devote an even more painstaking and meticulous examination of the facts on record and a similarly conscientious evaluation of the arguments of the parties. The victim of rape in this case is a minor below twelve (12) years of age. As narrated by her, the details of the rape are mesmerically sordid and repulsive. The victim was peddled for commercial sex by her own guardian whom she treated as a foster father. Because the complainant was a willing victim, the acts of rape were preceded by several acts of lasciviousness on distinctly separate occasions. The accused is also a most unlikely rapist. He is a member of Congress. Inspite of his having been charged and convicted by the trial court for statutory rape, his constituents liked him so much that they knowingly re-elected him to his congressional office, the duties of which he could not perform. Statutory rape committed by a distinguished Congressman on an eleven (11) year old commercial sex worker is bound to attract widespread media and public attention. In the words of accused-appellant, he has been demonized in the press most unfairly, his image transmogrified into that of a dastardly, ogre, out to get his slimy hands on innocent and nave girls to satiate his lustful desires.[4] This Court, therefore, punctiliously considered accused-appellants claim that he suffered invidiously discriminatory treatment. Regarding the above allegation, the Court has ascertained that the extensive publicity generated by the case did not result in a mistrial; the records show that the accused had ample and free opportunity to adduce his defenses. This is an appeal from the decision[5] of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986, convicting accused-appellant Romeo Jalosjos of two (2) counts of statutory rape, and in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, for six (6)

counts of acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, also known as the Child Abuse Law. There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, where the accused-appellant was acquitted of the charges of acts of lasciviousness for failure of the prosecution to prove his guilt beyond reasonable doubt. On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12) for acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, were filed against accused-appellant. The accusatory portion of said informations for the crime of statutory rape state: In Criminal Case No. 96-1985: The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows: That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and prejudice. CONTRARY TO LAW.[6] In Criminal Case No. 96-1986: The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows: That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and prejudice. CONTRARY TO LAW.[7] For acts of lasciviousness, the informations[8] under which accused-appellant was convicted were identical except for the different dates of commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20, 1996; June 21, 1996; and June 22, 1996, to wit: The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of the crime of ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act No. 7610, otherwise known as the Special Protection of Children against Abuse, Exploitation and Discrimination Act, committed as follows:

That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers, Makati City, MetroManila and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there wilfully, unlawfully and feloniously kiss, caress and fondle said complainant's face, lips, neck, breasts, whole body, and vagina, suck her nipples and insert his finger and then his tongue into her vagina, place himself on top of her, then insert his penis in between her thighs until ejaculation, and other similar lascivious conduct against her will, to her damage and prejudice. CONTRARY TO LAW. In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on the different dates, the accused gave the complainant P10,000.00, P5,000.00 and P5,000.00 respectively. Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the trial court entered a plea of not guilty for him. At the trial, the prosecution presented eight (8) main witnesses and seven (7) rebuttal witnesses as well as documentary evidences marked as Exhibits A to EEEE, inclusive of submarkings. The defense, on the other hand presented twenty-six (26) witnesses. Its documentary evidence consists of Exhibits 1 to 153, inclusive of submarkings. The records of the case are extremely voluminous. The Peoples version of the facts, culled mainly from the testimony of the victim, are as follows: Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and almond-shaped black eyes. She grew up in a two-storey apartment in Pasay City under the care of Simplicio Delantar, whom she treated as her own father. Simplicio was a fifty-six year old homosexual whose ostensible source of income was selling longganiza and tocino and accepting boarders at his house. On the side, he was also engaged in the skin trade as a pimp. Rosilyn never got to see her mother, though she had known a younger brother, Shandro, who was also under the care of Simplicio. At a very young age of 5, fair and smooth-complexioned Rosilyn was exposed by Simplicio to his illicit activities. She and her brother would tag along with Simplicio whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known as Mr. Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors. Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his office located near Robinsons Galleria. Rosilyn and Simplicio were brought there and introduced by a talent manager by the name of Eduardo Suarez. Accused-appellant promised to help Rosilyn become an actress. When he saw Rosilyn, accused-appellant asked how old she was. Simplicio answered, 10. She is going to be 11 on May 11. Accused-appellant inquired if Rosilyn knows how to sing. Simplicio told Rosilyn to sing, so she sang the song, Tell Me You Love Me. Accused-appellant then asked if Rosilyn has nice legs and then raised her skirt up to the mid-thighs. He asked if she was already menstruating, and Simplicio said yes. Accused-appellant further inquired if Rosilyn already had breasts. When nobody answered, accused-appellant cupped Rosilyns left breast. Thereafter, accused-appellant assured them that he

would help Rosilyn become an actress as he was one of the producers of the TV programs, Valiente and Eat Bulaga. Simplicio and Suarez then discussed the execution of a contract for Rosilyns movie career. Accusedappellant, on the other hand, said that he would adopt Rosilyn and that the latter would have to live with him in his condominium at the Ritz Towers. Before Simplicio and Rosilyn went home, accusedappellant gave Rosilyn P2,000.00. The second time Rosilyn met accused-appellant was at his condominium unit, located at Room 1702, Ritz Towers, Makati City. Accused-appellant and Simplicio discussed the contract and his plan to finance Rosilyns studies. Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn, Shandro and Simplicio left. The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss her acting career. Accused-appellant referred the preparation of Rosilyns contract to his lawyer, who was also present. After the meeting, Simplicio and Rosilyn left. As they were walking towards the elevator, accused-appellant approached them and gave Rosilyn P3,000.00. On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-appellants condominium unit at Ritz Towers. When accused-appellant came out of his bedroom, Simplicio told Rosilyn to go inside the bedroom, while he and accused-appellant stayed outside. After a while, accused-appellant entered the bedroom and found Rosilyn watching television. He walked towards Rosilyn and kissed her on the lips, then left the room again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio that accused-appellant kissed her to which Simplicio replied, Halik lang naman. Rosilyn was left alone in the bedroom watching television. After some time, accused-appellant came in and entered the bathroom. He came out clad in a long white T-shirt on which was printed the word, Dakak. In his hand was a plain white T-shirt. Accused-appellant told Rosilyn that he wanted to change her clothes. Rosilyn protested and told accused-appellant that she can do it herself, but accused-appellant answered, Daddy mo naman ako. Accused-appellant then took off Rosilyns blouse and skirt. When he was about to take off her panties, Rosilyn said, Huwag po. Again, accusedappellant told her, After all, I am your Daddy. Accused-appellant then removed her panties and dressed her with the long white T-shirt. The two of them watched television in bed. After sometime, accused-appellant turned off the lamp and the television. He turned to Rosilyn and kissed her lips. He then raised her shirt, touched her breasts and inserted his finger into her vagina. Rosilyn felt pain and cried out, Tama na po. Accused-appellant stopped. He continued to kiss her lips and fondle her breasts. Later, accused-appellant told Rosilyn to sleep. The following morning, Rosilyn was awakened by accused-appellant whom she found bent over and kissing her. He told her to get up, took her hand and led her to the bathroom. He removed Rosilyns shirt and gave her a bath. While accused-appellant rubbed soap all over Rosilyns body, he caressed her

breasts and inserted his finger into her vagina. After that, he rinsed her body, dried her with a towel and applied lotion on her arms and legs. Then, he dried her hair and told her to dress up. Rosilyn put on her clothes and went out of the bathroom, while accused-appellant took a shower. Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching television. When accused-appellant entered the room, he knelt in front of her, removed her panties and placed her legs on his shoulders. Then, he placed his tongue on her vagina. Thereafter, he gave Rosilyn P10,000.00 and told his housemaid to take her shopping at Shoemart. When she returned to the Ritz Towers, Simplicio was waiting for her. The two of them went home. Rosilyn narrated to Simplicio what accused-appellant did to her, and pleaded for him not to bring her back to the Ritz Towers. Simplicio told her that everything was alright as long as accused-appellant does not have sexual intercourse with her. That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn to the Ritz Towers. After Simplicio left, accused-appellant removed Rosilyns clothes and dressed her with the same long T-shirt. They watched television for a while, then accused-appellant sat beside Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt above her breasts, and inserted his finger into her vagina. Then, accused-appellant removed his own clothes, placed his penis between Rosilyns thighs and made thrusting motions until he ejaculated on her thighs. Thereafter, accused-appellant kissed her and told her to sleep. The next day, June 16, 1996, accused-appellant roused her from sleep and bathed her. Again, he rubbed soap all over her body, washed her hair, and thereafter rinsed her body and dried her hair. While accused-appellant was bathing Rosilyn, he asked her to fondle his penis while he caressed her breasts and inserted his finger into her vagina. After their shower, accused-appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just wait for Simplicio in the condominium unit. On their way home, Simplicio told Rosilyn that if accused-appellant tries to insert his penis into her vagina, she should refuse. At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They found accusedappellant sitting on the bed in his bedroom. Simplicio told Rosilyn to approach accused-appellant, then he left. Accused-appellant took off Rosilyns clothes and dressed her with a long T-shirt on which was printed a picture of accused-appellant and a woman, with the caption, Cong. Jalosjos with his Toy. They watched television for a while, then accused-appellant lay beside Rosilyn and kissed her on the lips. He raised her shirt and parted her legs. He positioned himself between the spread legs of Rosilyn, took off his own shirt, held his penis, and poked and pressed the same against Rosilyns vagina. This caused Rosilyn pain inside her sex organ. Thereafter, accused-appellant fondled her breasts and told her to sleep. When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no longer around but she found P5,000.00 on the table. Earlier that morning, she had felt somebody touching her private parts but she was still too sleepy to find out who it was. Rosilyn took a bath, then went off to school with Simplicio, who arrived to fetch her. The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00 oclock in the evening in his bedroom at the Ritz Towers. Accused-appellant stripped her naked and again put on her

the long shirt he wanted her to wear. After watching television for a while, accused-appellant knelt beside Rosilyn, raised her shirt, caressed her breasts and inserted his finger into her vagina. Then, he clipped his penis between Rosilyns thighs, and made thrusting motions until he ejaculated. Thereafter, Rosilyn went to sleep. The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing her and fondling her sex organ. She, however, ignored him and went back to sleep. When she woke up, she found the P5,000.00 which accused-appellant left and gave the same to Simplicio Delantar, when the latter came to pick her up. On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-appellant took photographs of Rosilyn. He asked her to pose with her T-shirt pulled down thereby exposing her breasts. He also took her photographs with her T-shirt rolled up to the pelvis but without showing her pubis, and finally, while straddled on a chair facing the backrest, showing her legs. Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and inserted his finger into her vagina. The following morning, she woke up and found the P5,000.00 left by accusedappellant on the table. She recalled that earlier that morning, she felt somebody caressing her breasts and sex organ. On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had to wait for accused-appellant, who arrived between 12:00 to 1:00 a.m. He again dressed her with the long white shirt similar to what he was wearing. While sitting on the bed, accused-appellant kissed her lips and inserted his tongue into her mouth. He then fondled her breasts and inserted his finger into her vagina, causing her to cry in pain. Accused-appellant stopped and told her to sleep. The next morning, accused-appellant bathed her again. While he soaped her body, he fondled her breasts and inserted his finger in her vagina. Rosilyn felt pain and shoved his hand away. After bathing her, accused-appellant had breakfast. Before he left, he gave Rosilyn P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money and then they left for school. On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant was waiting in his bedroom. He took off Rosilyns clothes, including her panties, and dressed her with a long T-shirt similar to what he was wearing. After watching television, accused-appellant kissed Rosilyn on the lips, inserted his tongue in her mouth and fondled her breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and placed a pillow under her back. He inserted his finger in her vagina and mounted himself between her legs with his hands rested on her sides. After that, he lifted his shirt, then pointed and pressed his penis against her vagina. Accused-appellant made thrusting motions, which caused Rosilyn pain. Thereafter, accused-appellant told her to sleep. In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but she did not wake up. When she woke up later, she found P5,000.00 on the table, and she gave this to Simplicio when he came to fetch her.

On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00 p.m. Accusedappellant was about to leave, so he told them to come back later that evening. The two did not return. The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their boarders. Yamie accompanied Rosilyn to the Pasay City Police, where she executed a sworn statement against Simplicio Delantar. Rosilyn was thereafter taken to the custody of the Department of Social Welfare and Development (DSWD). The National Bureau of Investigation (NBI) conducted an investigation, which eventually led to the filing of criminal charges against accused-appellant. On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp Crame. The examination yielded the following results: EXTERNAL AND EXTRAGENITAL Fairly developed, fairly nourished and coherent female subject. Breasts are conical with pinkish brown areola and nipples from which no secretions could be pressed out. Abdomen is flat and soft GENITAL There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pinkish brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock position and deep healed laceration at 8 o'clock position. External vaginal orifice offers moderate resistance to the introduction of the examining index finger and the virgin sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of application of any form of violence.[9] During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it was his brother, Dominador Jun Jalosjos, whom Rosilyn had met, once at accused-appellants Dakak office and twice at the Ritz Towers. Accused-appellant insisted that he was in the province on the dates Rosilyn claimed to have been sexually abused. He attributed the filing of the charges against him to a small group of blackmailers who wanted to extort money from him, and to his political opponents, particularly Ex-Congressman Artemio Adaza, who are allegedly determined to destroy his political career and boost their personal agenda. More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He stayed in Dipolog until June 18, 1996. He submitted in evidence airline ticket no. 10792424,[10] showing that he was on board Flight PR 165; the said flights passengers manifest,[11] where the name JALOSJOS/RM/MR appears; and photographs showing

accused-appellants constituents welcoming his arrival and showing accused-appellant talking with former Mayor Hermanico Carreon and Fiscal Empainado. Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight from Manila to Dipolog City. On the same flight, he met Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after talking to his representatives, he proceeded to his residence known as Barangay House in Taguinon, Dapitan, near Dakak Beach resort, and spent the night there. On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in the house of Barangay Captain Mila Yap until 5:30 p.m. Then, together with some friends, he visited the Rizal Shrine and the Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the Barangay House in Taguilon. On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with his political leaders at the Blue Room of Dakak, which lasted till the afternoon. In the evening, he went home and slept in the Barangay House. On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night in the Barangay House. On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach Resort. The blessing ceremony was officiated by Assistant Parish Priest Adelmo Laput. On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering District of Dapitan City. After the mass, he visited the Jamboree site in Barangay Taguilon, Dapitan City. He further contended that after his arrival in Dipolog on June 28, 1996, there was never an instance when he went to Manila until July 9, 1996, when he attended a conference called by the President of the Philippines. Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of PAL from Manila to Dumaguete City. From there, he was flown by a private plane to Dipolog, where he stayed until the President of the Philippines arrived. To buttress the theory of the defense, Dominador Jun Jalosjos testified that he was the one, and not accused-appellant, whom Rosilyn met on three occasions. These occurred once during the first week of May 1996, at accused-appellants Dakak office where Rosilyn and Simplicio Delantar were introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the proposed entry of Rosilyn into the show business. Dominadors admission of his meetings with Rosilyn on three instances were limited to interviewing her and assessing her singing and modeling potentials. His testimony made no mention of any sexual encounter with Rosilyn. After trial, the court rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in the two (2) counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code. He is hereby declared CONVICTED in each of these cases. 2. Accordingly, he is sentenced to: 2a. suffer the penalty of reclusion perpetua in each of these cases.

2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages for each of the cases. 3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-1993, the prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts of lasciviousness defined under Article 336 of the Revised Penal Code and penalized under Section 5 (b) of R.A. 7610 otherwise known as the Child Abuse Law. He is hereby declared CONVICTED in each of these cases; 4. Accordingly he is sentenced to: 4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period, as maximum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum; 4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY THOUSAND (P20,000.00) as moral damages for each of the cases; 5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998, the prosecution has failed to prove beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of lasciviousness. Therefore, on the ground of reasonable doubt, the accused in these cases is hereby ACQUITTED. SO ORDERED.[12] Hence, the instant appeal. Accused-appellant contends: A. THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF INCONSISTENCIES AND UNTRUTHS. B.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY THE PRIVATE COMPLAINANT. C. THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO IDENTIFY THE ACCUSED-APPELLANT. D. THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE. E. THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED AGAINST THE PRIVATE COMPLAINANT.[13] In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with utmost caution. The constitutional presumption of innocence requires no less than moral certainty beyond any scintilla of doubt. This applies with more vigor in rape cases where the evidence for the prosecution must stand or fall on its own merits and is not allowed to draw strength from the weakness of the evidence of the defense. As an inevitable consequence, it is the rape victim herself that is actually put on trial. The case at bar is no exception. Bent on destroying the veracity of private complainants testimony, the errors assigned by accused-appellant, particularly the first three, are focused on the issue of credibility. Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994, 96-1995, 961996, 96-1997, and 96-1998, for acts of lasciviousness. According to him, the fact that the trial court sustained his defense of alibi in the said cases only shows that Rosilyn concocted her stories and the rest of her testimony ought not to be believed. Stated differently, accused-appellant urges the application of the doctrine of "falsus in uno falsus in omnibus (false in part, false in everything).[14] The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied in modern jurisprudence.[15] Thus, in People v. Yanson-Dumancas,[16] citingPeople v. Li Bun Juan,[17] this Court held that: ... In this connection it must be borne in mind that the principle falsus in uno falsus in omnibus is not an absolute one, and that it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 32223223, the following was quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23: 18. Testimony may be partly credited and partly rejected. --- Trier of facts are not bound to believe all that any witness has said; they may accept some portions of his testimony and reject other portions, according to what seems to them, upon other facts and circumstances to be the truth Even when

witnesses are found to have deliberately falsified in some material particulars, the jury are not required to reject the whole of their uncorroborated testimony, but may credit such portions as they deem worthy of belief. (p. 945)[18] Being in the best position to discriminate between the truth and the falsehood, the trial court's assignment of values and weight on the testimony of Rosilyn should be given credence. Significantly, it should be borne in mind that the issue at hand hinges on credibility, the assessment of which, as oftrepeated, is best made by the trial court because of its untrammeled opportunity to observe her demeanor on the witness stand. On the demeanor and manner of testifying shown by the complainant, the trial court stated: Guided by the foregoing principles, this court found no reason why it should not believe Rosilyn when she claimed she was raped. Testimonies of rape victims especially those who are young and immature deserve full credence (People v. Liquiran, 228 SCRA 62 (1993) considering that no woman would concoct a story of defloration, allow an examination of her private parts and thereafter allow herself to be perverted in a public trial if she was not motivated solely by the desire to have the culprit apprehended and punished. (People v. Buyok, 235 SCRA 622 [1996]). When asked to describe what had been done to her, Rosilyn was able to narrate spontaneously in detail how she was sexually abused. Her testimony in this regard was firm, candid, clear and straightforward, and it remained to be so even during the intense and rigid cross-examination made by the defense counsel.[19] Accused-appellant next argues that Rosilyns direct and redirect testimonies were rehearsed and lacking in candidness. He points to the supposed hesitant and even idiotic answers of Rosilyn on cross and recross examinations. He added that she was trained to give answers such as, Ano po?, Parang po, Medyo po, and Sa tingin ko po. Accused-appellants arguments are far from persuasive. A reading of the pertinent transcript of stenographic notes reveals that Rosilyn was in fact firm and consistent on the fact of rape and lascivious conduct committed on her by accused-appellant. She answered in clear, simple and natural words customary of children of her age. The above phrases quoted by accused-appellant as uttered by Rosilyn are, as correctly pointed out by the Solicitor General, typical answers of child witnesses like her. At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand, may have given some ambiguous answers, they refer merely to minor and peripheral details which do not in any way detract from her firm and straightforward declaration that she had been molested and subjected to lascivious conduct by accused-appellant. Moreover, it should be borne in mind that even the most candid witness oftentimes makes mistakes and confused statements. At times, far from eroding the effectiveness of the evidence, such lapses could, indeed, constitute signs of veracity.[20]

Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in the five (5) sworn statements executed by Rosilyn as well as in the interviews and case study conducted by the representatives of the DSWD. In particular, accused-appellant points to the following documents: (1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A. Carrasco of the Pasay City Police; (2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents Cynthia L. Mariano and Supervising NBI Agent Arlis E. Vela; (3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996; (4) DSWD Final Case Study Report dated January 10, 1997. It must be stressed that rape is a technical term, the precise and accurate definition of which could not have been understood by Rosilyn. Indeed, without the assistance of a lawyer, who could explain to her the intricacies of rape, she expectedly could not distinguish in her affidavits and consequently disclose with proficient exactitude the act or acts of accused-appellant that under the contemplation of law constitute the crime of rape. This is especially true in the present case where there was no exhaustive and clear-cut evidence of full and complete penetration of the victims vagina. It may well be that Rosilyn thought, as any layman would probably do, that there must be the fullest penetration of the victims vagina to qualify a sexual act to rape. In People v. Campuhan,[21] we ruled that rape is consummated by the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis. There need not be full and complete penetration of the victims vagina for rape to be consummated. There being no showing that the foregoing technicalities of rape was fully explained to Rosilyn on all those occasions that she was interviewed by the police, the NBI agents and DSWD social workers, she could not therefore be expected to intelligibly declare that accused-appellants act of pressing his sex organ against her labia without full entry of the vaginal canal amounted to rape. In the decision of the trial court, the testimony on one of the rapes is cited plus the courts mention of the jurisprudence on this issue, to wit: Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were spread wide apart, what else did he do? A: He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko. (underscoring supplied) Q: And, after doing that: Idinikit-dikit niya yong ari niya sa ari ko; what else did he do? A: After that, Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko. (underscoring supplied) (pp. 23, 25 to 30, TSN, 16 April 1997)

It is well-entrenched in this jurisdiction that rape can be committed even without full penetration of the male organ into the vagina of the woman. It is enough that there be proof of the entrance of the male organ within the labia of the pudendum of the female organ. (People vs. Mangalino, 182 SCRA 329; People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA 393). Penetration of the penis by entry into the lips of the female organ suffices to warrant a conviction. (People vs. Galimba, G.R. No. 11156364, February 20, 1996 citing People vs. Abonada, 169 SCRA 530). Hence, with the testimony of Rosilyn that the accused pressed against (idiniin) and pointed to (itinutok) Rosilyns vagina his sexual organ on two (2) occasions, two (2) acts of rape were consummated.[22] Moreover, it must be borne in mind that Rosilyns purpose in executing the affidavits on August 22 and 26, 1996 before the Pasay City Police was to charge Simplicio Delantar, not accused-appellant. As aptly pointed out by the trial court, it is preposterous to expect Rosilyn to make an exhaustive narration of the sexual abuse of accused-appellant when he was not the object of the said complaint. Additionally, Rosilyns statements, given to the NBI on September 11 and 19, 1996, concerned mainly the identification of pictures. There was thus no occasion for her to narrate the details of her sexual encounter with accused-appellant. As to the interviews and studies conducted by the DSWD, suffice it to state that said meetings with Rosilyn were specially focused on the emotional and psychological repercussions of the sexual abuse on Rosilyn, and had nothing to do with the legal actions being prepared as a consequence thereof. Thus, the documents pertaining to said interviews and studies cannot be relied upon to reveal every minute aspect of the sexual molestations complained of. At any rate, the inconsistencies between the affidavits and Rosilyns testimony, if at all they existed, cannot diminish the probative value of Rosilyns declarations on the witness stand. The consistent ruling of this Court is that, if there is an inconsistency between the affidavit of a witness and her testimonies given in open court, the latter commands greater weight than the former.[23] In the third assigned error, accused-appellant attempts to impress upon this Court that Rosilyn gave the name Congressman Romeo Jalosjos as her abuser only because that was the name given to her by the person to whom she was introduced. That same name, accused-appellant claims, was merely picked up by Rosilyn from the name plate, plaque, and memo pad she saw on accused-appellants office desk. Accused-appellant presented his brother, Dominador Jun Jalosjos, in an attempt to cast doubt on his culpability. It was Dominador Jun Jalosjos who allegedly met and interviewed Rosilyn at the Dakak office. In advancement of this theory, accused-appellant cites the fact that out of a total of 16 pictures presented to Rosilyn for identification, she picked up only 4, which depict Dominador Jun Jalosjos. In the same vein, accused-appellant claims that the resulting cartographic sketch from the facial characteristics given by Rosilyn to the cartographer, resembles the facial appearance of Dominador Jun Jalosjos. Accused-appellant also points out that Rosilyn failed to give his correct age or state that he has a mole on his lower right jaw. Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively and unhesitatingly identified accused-appellant at the courtroom. Such identification during the trial cannot

be diminished by the fact that in her sworn statement, Rosilyn referred to accused-appellant as her abuser based on the name she heard from the person to whom she was introduced and on the name she saw and read in accused-appellants office. Verily, a persons identity does not depend solely on his name, but also on his physical features. Thus, a victim of a crime can still identify the culprit even without knowing his name. Similarly, the Court, in People v. Vasquez,[24] ruled that: It matters little that the eyewitness initially recognized accused-appellant only by face [the witness] acted like any ordinary person in making inquiries to find out the name that matched [appellants] face. Significantly, in open court, he unequivocally identified accused-appellant as their assailant. Even in the case of People v. Timon,[25] relied upon by accused-appellant to discredit his identification, this Court said that even assuming that the out-of-court identification of accused-appellant was defective, their subsequent identification in court cured any flaw that may have initially attended it. In light of the foregoing, Rosilyns failure to identify accused-appellant out of the 16 pictures shown to her does not foreclose the credibility of her unqualified identification of accused-appellant in open court. The same holds true with the subject cartographic sketch which, incidentally, resembles accusedappellant. As noted by the trial court, accused-appellant and his brother Dominador Jalosjos have a striking similarity in facial features. Naturally, if the sketch looks like Dominador, it logically follows that the same drawing would definitely look like accused-appellant. Likewise, Rosilyns failure to correctly approximate the age of accused-appellant and to state that he has a mole on the lower right jaw, cannot affect the veracity of accused-appellants identification. At a young age, Rosilyn cannot be expected to give the accurate age of a 56 year-old person. As to accusedappellants mole, the Solicitor General is correct in contending that said mole is not so distinctive as to capture Rosilyns attention and memory. When she was asked to give additional information about accused-appellant, Rosilyn described him as having a prominent belly. This, to our mind, is indeed a more distinguishing feature that would naturally catch the attention of an eleven year-old child like Rosilyn. In his fifth assigned error, accused-appellant insists that the words idinikit, itinutok, and idiniindiin, which Rosilyn used to describe what accused-appellant did to her vagina with his genitals, do not constitute consummated rape. In addition, the defense argued that Rosilyn did not actually see accused-appellants penis in the supposed sexual contact. In fact, they stressed that Rosilyn declared that accused-appellants semen spilled in her thighs and not in her sex organ. Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that, assuming that his penis touched or brushed Rosilyns external genitals, the same is not enough to establish the crime of rape. True, in People v. Campuhan,[26] we explained that the phrase, the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge, means that the act of touching should be understood here as inherently part of the entry

of the penis into the labia of the female organ and not mere touching alone of the mons pubis or the pudendum. We further elucidated that: The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hairs but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.[27] In the present case, there is sufficient proof to establish that the acts of accused-appellant went beyond strafing of the citadel of passion or shelling of the castle of orgasmic potency, as depicted in theCampuhan case, and progressed into bombardment of the drawbridge [which] is invasion enough,[28] there being, in a manner of speaking, a conquest of the fortress of ignition. When the accused-appellant brutely mounted between Rosilyns wide-spread legs, unfetteredly touching, poking and pressing his penis against her vagina, which in her position would then be naturally wide open and ready for copulation, it would require no fertile imagination to belie the hypocrisy claimed by accusedappellant that his penis or that of someone who looked like him, would under the circumstances merely touch or brush the external genital of Rosilyn. The inevitable contact between accused-appellants penis, and at the very least, the labia of the pudendum of Rosilyn, was confirmed when she felt pain inside her vagina when the idiniin part of accused appellants sex ritual was performed. The incident on June 18, 1996 was described by Rosilyn as follows: PROS. ZUNO: Q. And, after kissing your lips; after kissing you in your lips, what else did he do? A. After that, he was lifting my shirt. Q. Now, while he was lifting your shirt, what was your position; will you tell the court? A. I was lying, sir. Q. Lying on what? A. On the bed, sir.

Q. And, after lifting your shirt, what else did he do? A. He spread my legs sir. Q. And, after spreading your legs apart; what did he do? A. After that, he lifted his shirt and held his penis. Q. And while he was holding his penis; what did he do? A. He pressed it in my vagina. ATTY. FERNANDEZ: May we request that the vernacular be used? A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko. PROS. ZUNO: May I respectfully move that the word: idinikit-dikit niya ang ari niya sa ari ko, be incorporated? Q. And while he was doing that; according to you, idinikit-dikit niya ang ari niya sa ari mo; what did you feel? A. I was afraid and then, I cried. Q. Will you tell the Court why you felt afraid and why you cried? A. Because I was afraid he might insert his penis into my vagina. Q. And, for how long did Congressman Jalosjos perform that act, which according to you, idinikit-dikit niya yong ari niya sa ari ko? COURT: Place the Tagalog words, into the records. A. Sandali lang po yon. Q. What part of your vagina, or ari was being touched by the ari or penis? xxx xxx xxx

Q. You said that you felt I withdraw that question. How did you know that Congressman Jalosjos was doing, idinikit-dikit niya yung ari niya sa ari ko? A. Because I could feel it, sir.

Q. Now, you said you could feel it. What part of the vagina in what part of your vagina was Congressman Jalosjos, according to you, idinikit-dikit niya yong ari niya sa ari mo? A. In front of my vagina, sir. Q. In front of your vagina? O.K.; will you tell the Court the position? Will you describe the position of Congressman Jalosjos when he was doing that. Idinikit-dikit niya sa ari ko? A. Ide-demonstrate ko po ba? FISCAL ZUNO: Q. Can you demonstrate? xxx xxx xxx

A. He was holding me like this with his one hand; and was holding his penis while his other hand, or his free hand was on the bed. xxx PROS. ZUNO: Now, according to you, you dont know how to say it; or what was done to you. Now, will you tell the Court how can you describe what was done to you? A. After he dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito. Q. O.K. you said itinutok niya ito; what else did he do? PROS. ZUNO: She is now trying to describe. COURT: Translate. A. He seems to be parang idinidiin po niya. Q. Now, what did you feel, when according to you; as I would quote: parang idinidiin niya? A. Masakit po. Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya? COURT: xxx xxx

Q. Sabi mo itinutok. Nakita mo bang itinutok? A. I saw him na nakaganuon po sa ano niya. PROS. ZUNO: Q. O.K., clarify. You said nakaganuon siya what do you mean by nakaganuon siya? A. He was holding his penis, and then, that was the one which he itinutok sa ari ko. PROS. ZUNO: Q. And, when you said idinidiin po niya; to which you are referring? What is this idinidiin niya? A. Idinidiin niya ang ari niya sa ari ko. Q. And what did you feel when you said: he was idinidiin niya ang ari niya sa ari ko? A. Masakit po. COURT: The answer is masakit po. Proceed. PROS. ZUNO: Q. Where did you feel the pain? A. Inside my ari po. (Sa loob po ng ari ko.) xxx PROS. ZUNO: Q. And then, after that, what else did he do A. After that, he touched my breast, sir. Q. And, after touching your breast, what did he do? A. And after that I felt that he was (witness demonstrating to the court, with her index finger, rubbing against her open left palm) Q. And after doing that, what else did he do? A. After that, he instructed me to go to sleep. xxx xxx xxx xxx xxx

A. I put down my clothes and then, I cried myself to sleep, sir. Q. Why did you cry? Will you tell the court, why did you cried after putting down your clothes? A. Because I felt pity for myself. (Naaawa po ako sa sarili ko.) xxx (Emphasis supplied.)[29] Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the sketchy visualization of the nave and uninitiated to conclude that there was indeed penile invasion by accusedappellant of Rosilyns labia. On that occasion, accused-appellant was similarly ensconced between the parted legs of Rosilyn, except that, this time, Rosilyn was conveniently rested on, and elevated with a pillow on her back while accused-appellant was touching, poking and pressing his penis against her vagina. Topped with the thrusting motions employed by accused-appellant, the resulting pain felt by Rosilyn in her sex organ was no doubt a consequence of consummated rape. The pertinent portions of Rosilyns account of the July 20, 1996 incident is as follows: PROS. ZUNO: xxx xxx xxx xxx x x x.

Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your position? INTERPRETER: The witness is asking he (sic) she has to demonstrate? FISCAL ZUNO: Q. Ipaliwanag mo lang? A. My back was rested on a pillow and my legs were spread apart. Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were spread wide apart, what else did he do? A. He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko. Q. And what did you feel when he was doing that which according to you and I would quote in Tagalog: idinikit-dikit niya yong ari niya sa ari ko? A. I was afraid sir. Q. And, after doing that: idinikit-dikit niya yong ari niya sa ari ko, what else did he do?

A. After that, itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko. Q. You said: Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari niya sa ari ko; Now, while he was doing that act, what was the position of Congressman Jalosjos? A. His two (2) hands were on my side and since my legs were spread apart; he was in-between them, and doing an upward and downward movement. (Witness demonstrated a pushing, or pumping movement) Q. For how long did Congressman Jalosjos perform that act, pushing or pumping movement while his penis, or ang ari niya ay nakatutok at idinidiin-diin yong ari niya sa ari mo? A. I dont know. Q. And what did you feel when Congressman Jalosjos was making that movement, pushing, or pumping? A. I felt pain and then I cried. Q. Where did you feel the pain? A. Inside my vagina, sir. xxx xxx x x x.[30]

The childs narration of the rape sequence is revealing. The act of idinikit-dikit niya was followed by itinutok niya xxx at idiniin-diin niya. The idiniin-diin niya was succeeded by Masakit po. Pain inside her ari is indicative of consummated penetration. The environmental circumstances displayed by the graphic narration of what took place at the appellants room from June 14 to June 16 and June 21 to June 22, 1996 are consistent with the complainants testimony which shows that rape was legally consummated. In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs close together --which, although futile, somehow made it inconvenient, if not difficult, for the accused-appellant to attempt penetration. On the other hand, the ease with which accused-appellant herein perpetrated the sexual abuse, not to mention the absence of time constraint, totally distinguishes the instant case fromCampuhan. Here, the victim was passive and even submissive to the lecherous acts of accusedappellant. Thus, even assuming that his penis then was flaccid, his act of holding, guiding and assisting his penis with his one hand, while touching, poking and pressing the same against Rosilyn's vagina, would surely result in even the slightest contact between the labia of the pudendum and accusedappellant's sex organ. Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the alleged sexual assault at bar, the defense argued that it is highly improbable and contrary to human experience that accused-appellant exercised a Spartan-like discipline and restrained himself from fully consummating

the sexual act when there was in fact no reason for him not to do so. In the same light, the defense likewise branded as unnatural the testimony of Rosilyn that accused-appellant contented himself with rubbing his penis clipped between her thighs until he reached orgasm and desisted from fully penetrating her, when Rosilyn was then entirely at his disposal. The defense seems to forget that there is no standard form of behavior when it comes to gratifying ones basic sexual instinct. The human sexual perversity is far too intricate for the defense to prescribe certain forms of conduct. Even the word perverse is not entirely precise, as what may be perverse to one may not be to another. Using a child of tender years who could even pass as ones granddaughter, to unleash what others would call downright bestial lust, may be utterly nauseating and repulsive to some, but may peculiarly be a festive celebration of salacious fantasies to others. For all we know, accused-appellant may have found a distinct and complete sexual gratification in such kind of libidinous stunts and maneuvers. Nevertheless, accused-appellant may not have fully and for a longer period penetrated Rosilyn for fear of perpetrating his name through a child from the womb of a minor; or because of his previous agreement with his suking bugaw, Simplicio Delantar, that there would be no penetration, otherwise the latter would demand a higher price. This may be the reason why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is bad if accused-appellant inserts his penis into her sex organ, while at the same time ordering her to call him if accused-appellant would penetrate her. Such instance of penile invasion would prompt Simplicio to demand a higher price, which is, after all, as the Solicitor General calls it, the peculiarity of prostitution. The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her thighs and not in her vagina, only proves that there was no rape. It should be noted that this portion of Rosilyns testimony refers to the June 15 and 21, 1996 charges of acts of lasciviousness, and not the rape charges. In any event, granting that it occurred during the twin instances of rape on June 18 and July 20, 1996, the ejaculation on the victims thighs would not preclude the fact of rape. There is no truth to the contention of the defense that Rosilyn did not see the penis of accusedappellant. As can be gleaned from the above-quoted portions of the transcripts, Rosilyn unequivocally testified that accused-appellant held his penis then poked her vagina with it. And even if she did not actually see accused-appellants penis go inside her, surely she could have felt whether it was his penis or just his finger. We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at the time the rape complained of occurred. To bolster the declaration of Rosilyn that she was then eleven years old, the prosecution presented the following documents: (1) Rosilyns birth certificate showing her birthday as May 11, 1985;[31] (2) Rosilyns baptismal certificate showing her birthday as May 11, 1985;[32]

(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to Librada Telen as the mother;[33] (4) Marked pages of the Cord Dressing Room Book;[34] (5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her parents (Librada Telen and Simplicio Delantar) patient file number (39-10-71);[35] (6) Record of admission showing her parents patient number (39-10-71) and confinement at the Jose Fabella Memorial Hospital from May 5-14, 1985.[36] It is settled that in cases of statutory rape, the age of the victim may be proved by the presentation of her birth certificate. In the case at bar, accused-appellant contends that the birth certificate of Rosilyn should not have been considered by the trial court because said birth certificate has already been ordered cancelled and expunged from the records by the Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 97-81893, dated April 11, 1997.[37] However, it appears that the said decision has been annulled and set aside by the Court of Appeals on June 10, 1999, in CA-G.R. SP No. 45289. The decision of the Court of Appeals was appealed to this Court by petition for review, docketed as G.R. No. 140305. Pending the final outcome of that case, the decision of the Court of Appeals is presumed valid and can be invoked as prima facie basis for holding that Rosilyn was indeed eleven years old at the time she was abused by accused-appellant. However, even assuming the absence of a valid birth certificate, there is sufficient and ample proof of the complainants age in the records. Rosilyns Baptismal Certificate can likewise serve as proof of her age. In People v. Liban,[38] we ruled that the birth certificate, or in lieu thereof, any other documentary evidence that can help establish the age of the victim, such as the baptismal certificate, school records, and documents of similar nature, can be presented. And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn are inadmissible to prove her age, the Master List of Live Births and the Cord Dressing Book of Dr. Jose Fabella Memorial Hospital where Rosilyn was born are sufficient evidence to prove that her date of birth was May 11, 1985. These documents are considered entries in official records, admissible as prima facie evidence of their contents and corroborative of Rosilyns testimony as to her age. Thus, Rule 130, Section 44, of the Rules of Court states: Entries in official records. --- Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty especially enjoined by law, areprima facie evidence of the facts therein stated. In Africa v. Caltex, et al., (Phil), Inc., et al.,[39] the Court laid down the requisites for the application of the foregoing rule, thus:

(a) That the entry was made by a public officer, or by another person specially enjoined by law to do so; (b) That it was made by the public officer in the performance of his duties or by such other person in the performance of a duty specially enjoined by law; and (c) That the public office or the other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information. In order for a book to classify as an official register and admissible in evidence, it is not necessary that it be required by an express statute to be kept, nor that the nature of the office should render the book indispensable; it is sufficient that it be directed by the proper authority to be kept. Thus, official registers, though not required by law, kept as convenient and appropriate modes of discharging official duties, are admissible.[40] Entries in public or official books or records may be proved by the production of the books or records themselves or by a copy certified by the legal keeper thereof.[41] It is not necessary to show that the person making the entry is unavailable by reason of death, absence, etc., in order that the entry may be admissible in evidence, for his being excused from appearing in court in order that public business be not deranged, is one of the reasons for this exception to the hearsay rule.[42] Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,[43] mandates hospitals to report and register with the local civil registrar the fact of birth, among others, of babies born under their care. Said Decree imposes a penalty of a fine of not less that P500.00 nor more than P1,000.00 or imprisonment of not less than three (3) months nor more than six (6) months, or both, in the discretion of the court, in case of failure to make the necessary report to the local civil registrar. Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44, of the Rules of Court, it is clear that the Cord Dressing Room Book where the fact of birth, name of the mother and other related entries are initially recorded, as well as the Master List of Live Births of the hospital, are considered entries in official record, being indispensable to and appropriate modes of recording the births of children preparatory to registration of said entries with the local civil registrar, in compliance with a duty specifically mandated by law. It matters not that the person presented to testify on these hospital records was not the person who actually made those entries way back in 1985, but Amelita Avenante, the records custodian of the hospital in 1995. To reiterate, these records may be proved by the presentation of the record itself or by a certified copy or the legal keeper thereof. Proof of the unavailability of the person who made those entries is not a requisite for their admissibility. What is important is that the entries testified to by Avenante were gathered from the records of the hospital which were accomplished in compliance with a duty specifically mandated by law. Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital are admissible as evidence of the facts stated therein.

The preparation of these hospital documents preceded that of the birth and baptismal certificates of Rosilyn. They establish independent and material facts prepared by unbiased and disinterested persons under environmental circumstances apart from those that may have attended the preparation of the birth and baptismal certificates. Hence, these hospital records, to reiterate, are sufficient to support the testimony of Rosilyn as to her age. Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of Rosilyn are false and that he merely made them up, particularly her date of birth, was correctly disregarded by the trial court. It should be noted that the criminal charges for child abuse filed by Rosilyn against him was the direct cause of his incarceration. This raises a possibility that Simplicio falsely testified in the present case, to get even with Rosilyn. Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito Intruzo because the defense failed to prove that they were knowledgeable as to the circumstances of Rosilyns birth. Their testimonies consist mainly of observations tending to show that Rosilyns appearance belie her claim that she was born on May 11, 1985. In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July 2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 96-1995, 96-1996, and 96-1997, respectively), the trial court acquitted accused-appellant on the ground of reasonable doubt as the defense was able to prove that accused-appellant was not in Manila but either in Dipolog or Dapitan City at the time the lascivious acts were supposedly committed. The evidence of the defense established that accused-appellant flew to Dipolog on June 28, 1996, and stayed there until July 9, 1996. In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness allegedly committed both in the early mornings of June 19 and July 21, 1996, Rosilyn merely testified that she felt somebody touching her private part but failed to identify the person who was performing those lecherous acts as she was too sleepy to wake up. Hence, accused-appellant was likewise acquitted in these cases on the ground of reasonable doubt. With respect, however, to the acts of lasciviousness committed in the morning of June 15 and 22, 1996, and in the evening of June 14, 15, 18, and 21, 1996, as well as the rape perpetrated on June 18, 1996 and July 20, 1996, accused-appellant failed to account for his whereabouts. A careful review of the pertinent transcript of stenographic notes reveals that accused-appellant did not give any testimony as to where he was at the time these crimes were committed. Clearly, therefore, the trial court correctly disregarded his unsubstantiated defense of denial, which cannot prevail over his positive identification by Rosilyn as the culprit. As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996, accusedappellant claimed that it was impossible for him to have committed the same because he flew to Dipolog on that day. The records disclose, however, that accused-appellants flight was at 9:40 a.m. The possibility, therefore, of accused-appellants having performed the lascivious acts on the victim before he went off to the airport is not at all precluded. For his failure to prove the physical impossibility of his

presence at the Ritz Towers in the morning of June 16, 1996, when the sexual abuse of Rosilyn was committed, his defense of alibi must fail. Article III, Section 5 of Republic Act No. 7610, states: Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who for money or profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be:Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x . (Emphasis supplied.) In People v. Optana,[44] the Court, citing the case of People v. Larin,[45] explained the elements of the offense of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows: 1. The accused commits the act of sexual intercourse or lascivious conduct. 2. The said act is performed with a child exploited in prostitution or subjected other sexual abuse. 3. The child, whether male or female, is below 18 years of age. A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. Under RA 7610, children are persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition. Lascivious conduct is defined under Article XIII, Section 32 of the Implementing Rules and Regulation of R.A. 7610, as follows: [T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

In the case at bar, accused-appellants acts of kissing Rosilyn on the lips, fondling her breast, inserting his finger into her vagina and placing his penis between her thighs, all constitute lascivious conduct intended to arouse or gratify his sexual desire. Hence, the trial court correctly convicted accusedappellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, in Criminal Cases Nos. 961987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, charging him with the above-described lascivious acts. The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is below 12 years of age, is reclusion temporal in its medium period. The records show that on at least nine (9) separate occasions, the accused-appellant inserted his finger into the complainants vagina. These insertions took place in 1996. A year later, Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it indicates state policy on rape. The Revised Penal Code is now amended to read as follows: Article 266-A. Rape; When and How Committed. Rape is committed 1. By a man who have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat or intimidation; b) When the offended party is deprived of reason or otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. 2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied.) Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now classifies the crime as an offense against persons. Any public prosecutor, not necessarily the victim or her parents, can prosecute the case. The penalties for the crime of rape in the light of various circumstances, which are now set forth and contained in Article 266-B of the Revised Penal Code, have also been increased. Considering that there are neither mitigating nor aggravating circumstance, the trial court correctly imposed on accused-appellant the maximum penalty of fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, which is within the medium period of reclusion temporal medium, pursuant to our ruling in Dulla v. Court of Appeals.[46] Notwithstanding that R.A. 7610 is a special law, accused-appellant may enjoy a minimum term of the indeterminate sentence to be taken within the range of the penalty next lower to that prescribed by the Code.[47] However, the trial court erroneously fixed the minimum term of the indeterminate sentence at eight (8) years, eight (8) months and one (1)

day of prision mayor in its medium period. In the aforesaid case of Dulla,[48] we held that the penalty next lower in degree to reclusion temporal medium is reclusion temporal minimum, the range of which is from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, for violation of Article III, Section 5 (b) of R.A. 7610, accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum. At the time of commission of the crimes complained of herein in 1996, statutory rape was penalized under Section 11 of R.A. 7659, which amended Article 335 of the Revised Penal Code, to wit: When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. 2. 3. By using force or intimidation; When the woman is deprived of reason or otherwise unconscious; and When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. xxx. In statutory rape, mere sexual congress with a woman below twelve years of age consummates the crime of statutory rape regardless of her consent to the act or lack of it. The law presumes that a woman of tender age does not possess discernment and is incapable of giving intelligent consent to the sexual act. Thus, it was held that carnal knowledge of a child below twelve years old even if she is engaged in prostitution is still considered statutory rape. The application of force and intimidation or the deprivation of reason of the victim becomes irrelevant. The absence of struggle or outcry of the victim or even her passive submission to the sexual act will not mitigate nor absolve the accused from liability.[49] In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had carnal knowledge of Rosilyn. Moreover, the prosecution successfully proved that Rosilyn was only eleven years of age at the time she was sexually abused. As such, the absence of proof of any struggle, or for that matter of consent or passive submission to the sexual advances of accused-appellant, was of no moment. The fact that accused-appellant had sexual congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory rape, and sentenced to suffer the penalty of reclusion perpetua. As to accused-appellant's civil liability, the amount of moral damages awarded by the trial court for each count of acts of lasciviousness under Section 5 (b) of R.A. 7610 should be increased from P20,000.00 to P50,000.00.[50] On the other hand, the award of the amount of P50,000.00 as moral damages for each count of statutory rape was correct. In People v. Lor,[51] citing the cases of People v. Victor,[52] and People v. Gementiza,[53] we held that the indemnity authorized by our criminal law as civil indemnity ex delicto for the offended party, in the

amount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. Said civil indemnity is mandatory upon finding of the fact of rape; it is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound judicial discretion.[54] Hence, accused-appellant should be ordered to pay the offended party another P50,000.00 as civil indemnity for each count of rape and acts of lasciviousness. WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 961985 and 96-1986 finding accused-appellant Romeo Jalosjos guilty beyond reasonable doubt of two counts of statutory rape, and sentencing him to suffer the penalty of reclusion perpetua for each count, is AFFIRMED. Likewise, the appealed Decision of the Regional Trial Court of Makati, Branch 62 in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, finding accusedappellant guilty beyond reasonable doubt of acts of lasciviousness in six counts, is AFFIRMED with MODIFICATIONS. As modified, accused-appellant is sentenced to suffer, for each count of acts of lasciviousness, the indeterminate penalty of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum. Further, accused-appellant is ordered to pay the victim, Ma. Rosilyn Delantar, the additional amount of P50,000.00 as civil indemnity for each count of statutory rape and acts of lasciviousness. Finally, the award of moral damages for each count of acts of lasciviousness is increased to P50,000.00. SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ULDARICO HONRA, JR., accused-appellant. DECISION GONZAGA-REYES, J.: This is an appeal from the decision,[1] dated January 18, 1998, of the Regional Trial Court, Branch 52, of Sorsogon, finding accused-appellant Uldarico Honra, Jr. guilty of two counts of murder and three counts of rape with frustrated homicide and sentencing him as follows: WHEREFORE, in the light of the foregoing, the Court finds Uldarico Honra, Jr. guilty beyond reasonable doubt in Criminal Cases Nos. 3333, 3338, 3341, 3342, and 3343 and hereby sentences him to two (2) counts of Reclusion Temporal in the maximum period of twenty years for the murders of Pacita and Rustico Jerao and three (3) counts of Reclusion Perpetua for the Rape with Frustrated Homicide of Jocelyn Jerao and to indemnify in solidum the heirs of Pacita and Rustico Jerao in the amount of P50,000.00 as indemnity for each case or total of P250,000.00 without subsidiary imprisonment in case of insolvency and to pay` the cost. In the service of his imprisonment his detention at the Sorsogon Provincial Jail shall be fully credited. SO ORDERED. Two informations for murder were filed against accused-appellant Uldarico Honra, Jr. along with three others, namely, Ronnie Gipaya, Cristobal Jintalan and Jose Jintalan for the deaths of Pacita Jerao and Rustico Jerao in the Regional Trial Court of Sorsogon, where the cases were docketed as Criminal Case Nos. 93-3333 and 93-3338. Except for the names of the victims, the informations uniformly alleged: Criminal Case No. 93-3333 That on or about the 9th of May, 1993 at barangay Guinlajon, municipality of Sorsogon, province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armed with guns and bolos, conspiring, confederating and mutually helping each other, with treachery and evident premeditation, did then and there, willfully, unlawfully and feloniously attack, assault and shot one Pacita Jerao,[2] thereby inflicting upon the latter mortal wound which directly caused the death of said Pacita Jerao, to the damage and prejudice of her legal heirs. Contrary to law.[3] The three informations for rape with frustrated homicide filed against the above-named accused before the same court were docketed as Criminal Case Nos. 93-3341, 93-3342 and 93-3343. The informations uniformly alleged: That on or about the 9th day of May, 1993, at sitio Lantik, barangay Guinlajon, municipality of Sorsogon, province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused armed with guns and bolos, conspiring, confederating and mutually helping each other, did then and there, willfully, unlawfully and feloniously, by means of force, violence and/or

intimidation have carnal knowledge of one Jocelyn Jerao, a fifteen year old girl against her will and consent and immediately thereafter, with intent to kill, attack, assault, and stab said Jocelyn Jerao, thereby inflicting upon her several serious injuries which could have caused her death, thus, accused performed all the acts of execution which would have produced the crime of Homicide, as a consequence but which nevertheless, did not produce it by reason of causes independent of the will of the accused, that is, because of the timely and able medical attendance rendered to said Jocelyn Jerao which prevented her death, to her damage and prejudice. Contrary to law.[4] Upon arraignment on July 19, 1993, the four (4) accused, with the assistance of a counsel de oficio, entered pleas of not guilty in Criminal Case Nos. 93-3333[5] and 93-3343.[6]On July 21, 1993, with the assistance of a counsel de oficio, the four (4) accused entered pleas of not guilty in Criminal Case Nos. 93-3338[7] and 93-3341.[8] On August 25, 1993, accused-appellant Uldarico Honra, Jr., together with accused Cristobal Jintalan and Jose Jintalan, each pleaded not guilty to Criminal Case No.93-3342.[9] On September 7, 1993, the trial court entered a plea of not guilty in favor of accused Ronnie Gipaya in Criminal Case No. 93-3342[10] on account of the fact that after entering a plea of guilty, he refused to sign the certificate of arraignment provided for the purpose. Joint trial of the cases thus ensued. However, on May 5, 1997, accused Ronnie Gipaya, with the assistance of Atty. Manuel Fortes, Jr., withdrew his plea of not guilty and upon rearraignment pleaded guilty to all the crimes charged against him.[11] On September 26, 1997, accused Cristobal Jintalan, likewise withdrew his previous plea and entered pleas of guilty to all charges.[12] The trial court then conducted a searching inquiry into the voluntariness and full comprehension of the consequences of their pleas. Meantime, all the charges against Jose Jintalan were dismissed after the trial court granted his demurrer to evidence.[13] Eventually, on October 8, 1997, the trial court rendered its judgment against accused Ronnie Gipaya and Cristobal Jintalan, finding them guilty beyond reasonable doubt in all the five (5) criminal cases.[14] Trial proceeded as to herein accused-appellant Uldarico Honra, Jr. Jocelyn Jerao, Dr. Marlon Gapayao and Dr. Liduvina Dorion testified for the prosecution. Jocelyn Jerao , a sixteen-year old third year high school student, testified that on May 9, 1993, while she was asleep with her parents, Pacita and Rustico Jerao in their house in the northern portion of Guinlajon, municipality of Sorsogon, somebody called for them at around 2 a.m. asking for water to drink but they did not open the door. Then she heard somebody fire a shot from a gun. Her parents opened the door and her mother gave the person outside the door water to drink. The person told her mother to drink first as he was afraid that the water was poisoned. So her mother drank the water. The person outside the door introduced himself as Eric and assured her mother that she will not be harmed then asked permission to leave. But according to Jocelyn, he did not leave, but only went around the house because they returned. Thereupon they knocked on the door and told them that somebody wanted to see her father in the northern portion of their place. Her parents opened the door and she saw three people whom she did not yet recognize as they were wearing masks. She described their

masks as t-shirts covering their faces. Her mother, father and herself went out of the house and the three of them stood side by side each other.The person who introduced himself as Eric told her father to go to the northern portion of the place but the latter refused. She stated that only Eric was wearing a mask while the two other companions were not. Then, Eric pointed the barrel of his gun to her father and squeezed the trigger but the gun did not go off. Eric then commented , Jesus Christ, its good that it did not go off, and then laughed together with his two other companions. Eric took hold of the gun and squeezed it a second time and this time it went off hitting her father in the forehead. She shouted and tried to grab the gun from Eric but the latter boxed her twice. She then covered her father with her body. She heard another gun shot and saw her mother's body slumped on her fathers body. Before she heard the gunshot, she saw Eric still holding the gun which was pointed towards her mother. She testified further that the two companions helped Eric as when she started shouting the two tried to cover her mouth with their hands and to lift her up. The person who introduced himself as Eric removed his mask then raped her. She narrated that Eric removed his pants and removed her clothes including her panty and performed sexual intercourse on her. He lay on top of her then inserted his penis in her vagina and moved his buttocks up and down. She felt pain and pretended to be unconscious. The other two companions were standing guard by her side. After Eric performed the sexual act on her, the other companion removed his clothes and did the same thing to her. She identified the second person as the one who had a tattoo on his forehead and goes by the name Cristobal Jintalan. He also placed himself on top of her and performed the sexual act. After he finished, the third companion took his turn. He also removed his pants and placed himself on top of her and did the same thing that Honra and Jintalan did. After this third companion was through with her, he took a very long machite, but Eric shouted that he use a luknit. Eric handed the luknit or bladed weapon to the third companion whom she later identified as Ronnie Gipaya. After Eric handed the latter the luknit, Ronnie Gipaya stabbed her on the stomach once. She turned to her side and she was stabbed three more times at her back. All this time, Eric and Cristobal Jinatalan did not leave. After Gipaya delivered the third blow he said, Lets go she is already dead. Then they left. Dr. Marlon Gapayao, a resident physician of the Sorsogon Provincial Hospital, testified that he examined Jocelyn Jerao and her mother Pacita Jerao. Dr. Gapayao confirmed the findings he made on the injuries of Jocelyn in a medical report. His findings revealed the following: - Stab wound peri umbilical area penetrating abdominal cavity with moderate intra-abdominal bleeding; - Stab wound right chest penetrating thoracic cavity with intra thoracic bleeding moderate; - Multiple stab wounds back. - Alleged rape; positive for spermatozoa. - Healing time barring complications - Three (3) weeks.[15] Dr. Gapayao likewise confirmed the findings he made in his medical report on Pacita Jerao. The medical report stated as follows:

- Gun shot wound right supra clavicular (point of entry) with bullet lodged at the right thoracic cavity; - Stab wound left lumbar area non penetrating; - Stab wound supra umbilical area left penetrating abdominal cavity non perforating with moderate intra abdominal hemorrhage. Cause of death: -Hypovolemic shock scc. To multiple stab wounds and gun shot wound.[16] Dr. Liduvina Dorion conducted the post mortem examination on Rustico Jerao. She testified that she found a single gunshot wound on the forehead of the victim.[17] In the death certificate issued by the Office of the Civil Registrar, the cause of death was stated as intracranial hemorrhage caused by a gunshot wound.[18] On the other hand, herein accused-appellant and his brother Jose Honra testified for the defense. Accused-appellant Uldarico Honra, Jr., a twenty-eight year old security guard denied participation in the crimes charged and offered an alibi as his defense. He testified that on May 9, 1993, at about 2 a.m., he was in the house of the barangay captain in barangay Casini, Irosin, Sorsogon. He testified that he was there to attend the birthday celebration of the barangay captain. He was there at 8 p.m. and stayed overnight in that place. He stated that this was on May 9, 1993 as this was the birthday of the barangay captain. He slept at one oclock in the morning of May 9, 1993 on a bench because he was very drunk that night. The barangay captain was in the house with his family and the visitors already left. He woke up at 7 a.m. of the following day and returned home. He arrived home fifteen minutes later and ate his breakfast and took a bath. His brothers, nephews and nieces were home when he arrived. On May 10, 1993, at about 3 p.m., he heard on the radio that he was involved in a case and he went to the municipal building of Sorsogon to verify the matter. However, he found nothing there. The next day, on May 11, 1993 he went to the police station and was dumbfounded by the news relayed to him by a certain Major Uy that there was already a warrant for his arrest and a shoot to kill order against him. He also narrated that he was present when Jocelyn Jerao testified against him and that she did so only because she followed the statement of Gipaya. According to him, Ronnie Gipaya killed his mother and the formers brother raped her sister. He stated further that this Ronnie Gipaya is the same co-accused in the criminal cases. According to him, Ronnie Gipaya implicated him in his statement as a means of avenging his mothers death and his sisters rape. He does not remember the date the statement was made but he was able to read the same which among others implicated him in the commission of the crimes. Jose Honra, 17 years old, brother of accused-appellant recalled that on May 9, 1993, at about 2 a.m., his brother was sleeping in their home in Casini, Irosin, Sorsogon. They were then together with their sisters Soledad, Rosalina and her husband and the accused. According to him, no member of their family went out from the time they went to sleep at 9 p.m. up to early morning. He said that his brother, herein accused-appellant was still sleeping when he woke up at about 7 a.m. the following day.

The trial court convicted accused-appellant of two counts of murder and three counts of rape with frustrated homicide. In upholding complainants testimony and rejecting accused-appellants alibi, the trial court ruled: There is no doubt in the mind of the Court that Uldarico Honra Jr. did the crimes as charged against him. The victim, Jocelyn Jerao, positively identified Eric whom she later identified as Uldarico Honra Jr. as the one who pulled the trigger that killed her parents, Pacita Jerao and Rustico Jerao. She was also able to recognize Ronnie Gipaya and Cristobal Jintalan as among those present during the killing of her father and mother. The victim recognized accused Uldarico Honra Jr. when the latter took off his mask when the latter raped her. With respect to the two others, Gipaya and Jintalan, the accused was able to recognize them thru their tattoo marks. The victim cannot be mistaken as it was then a bright night. The Court likewise finds that all the aforesaid accused, including Uldarico Honra Jr. thru force and without Jocelyn Jeraos consent had carnal knowledge with her. The victim of these acts could not have imagined it as no young Filipina woman of decent repute could publicly admit that she had been criminally assaulted unless that it is the truth (People vs. Sambangan 125 SCRA 726). Conspiracy of accused Honra Jr. with the other accused in committing all the crimes charged against them was likewise shown in the prosecutions witness testimony. Jocelyn Jerao testified that when Uldarico Honra Jr. was shooting her parents the two companions of Honra Jr., Ronnie Gipaya and Cristobal Jintalan covered her mouth to prevent her from shouting and likewise tried to lift her. That later on when she was about to be stabbed by Gipaya, Uldarico Honra Jr. advised Gipaya to use a luknit instead of a machete, who then stabbed her once in the stomach and thrice at her back. These acts show that there was unity of purpose and unity of the execution among the accused of their unlawful objectives which are the murders of the parents of Jocelyn and the rape with frustrated homicide of the latter. Anent Uldarico Honra Jr.s defense of alibi, it cannot be sustained in the face of clear and positive identification of the accused (People vs. Gonzaga 77 SCRA 140). Likewise for alibi to be given merit the defense must prove it with probable evidence which would reasonably satisfy the Court of the truth of such defense (ibid). In the instant case, the Court finds the positive and clear identification by the victim herself of the three accused including Honra Jr. to be credible. The Court cannot believe the tale of accused that he was not present at the crime scene as his brothers testimony that he (Honra Jr.) was sleeping at their sisters house in Casini, Irosin, Sorsogon when the crimes occurred is materially inconsistent with the testimony of the accused himself that he slept at the house of their barangay captain in Casini, Irosin, Sorsogon after a drinking session celebrating the natal day of the said barangay captain. He could have presented the barangay captain to corroborate his testimony but was not able to. Hence, this appeal where accused-appellant ascribes the following sole error to the trial court: THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT ULDARICO HONRA, JR. FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.[19] The appeal is without merit.

Accused-appellants argument that prosecution witness Jocelyn Jerao could have been mistaken as to the identity of her assailants and that she failed to establish his identity is not well-taken. According to accused-appellant, Jocelyns testimony is totally devoid of any narration as to when accused-appellant removed his mask during the rape; that it was not possible for Jocelyn to recognize accused-appellant as she testified that she pretended to be unconscious during the rape; and that the crime took place at 2 a.m. in an isolated place where there is no electricity making it impossible for her to recognize accusedappellant who was a total stranger to her. To support this stance, accused-appellant quotes the following portions of Jocelyns testimony as follows: Q And when they returned, Madam Witness, what happened? A They knocked at the door and informed us that somebody wanted to see my father in the northern portion of our place. Q Did your parents open the door when they knocked at your door? A Yes, sir. Q You said they, how many persons were you referring to who returned to your house the second time around? A Three (3). Q And were you able to recognize these 3 persons who returned to your house for the second time? A I did not yet recognize them because they were wearing mask. Q What kind of covering did they use as masks for covering their faces? A: Their t-shirts. (TSN, August 25, 1993, pp. 7-8; emphasis ours) xxx xxx xxx. Q A moment. When Eric fired the first shot hitting your father, did you notice what (sic) were the two other companions? A They were also helping because at that time when I was already shouting they tried to cover my mouth with their hands. Q When you said they, you were referring to the other two companions of Eric who were trying to cover your mouth? A They were trying to lift me up. Q And one or both of them also tried to cover your mouth to prevent you from shouting?

A Yes, your Honor. Q Were you able to identify who was that particular companion who tried to cover your mouth to prevent you from shouting? A I did not recognize. Q What about the other companion of Eric who tried to lift you up or who helped in lifting you up, were you able to recognize him also? A I did not recognize his face. (Ibid, pp. 12-13; emphasis supplied) Prosecutor: Q How did Eric rape you? A Eric removed my clothes and after removing my clothes, Eric performed the act of intercourse. Q How did Eric perform the act of intercourse? xxx xxx xxx Q Please answer. A He inserted his penis on my vagina and performed the act of sexual intercourse by moving up and down his buttocks. Court: Q You testified that the accused Uldarico Honra, Jr. removed your clothes. What about your panty, assuming that you have one, was it also removed by the said accused? A Yes, Your Honor. They also removed my panty and he also removed his pants. (to the prosecutor) Proceed. Prosecutor: Q After he removed his pants and your clothes as well as your panty, what else did he do? A He placed his body on top of me. Q And when his body was on top of you, what was he doing? A He was performing the act of sexual intercourse by moving his buttocks up and down.

Q What else did you feel at that time when he was moving his buttocks up and down? A I felt pain. Q Did you try to react. . . Atty. Armes: Leading. Court: Sustained. Prosecutor: Q What did you do when you felt the pain? A I suffered the pain because they were thinking that I was unconscious. Q You pretended to be unconscious? Atty. Armes: Leading. Court: May answer. A Yes, sir. Prosecutor: Q During that time that Eric was having a sexual intercourse with you, what were his two other companions doing? A They were guarding me by my side. Q By the way, why did you pretend to be unconscious during that time? A I was acting unconscious during that time because I know that they already killed my mother and father and if I tried to resist them, I am sure they kill me. Q For how long did this Eric lay on top of you, in your estimate? A About 30 minutes. Q Then after Eric completed his sexual intercourse or act on you, what happened next?

A He asked me this way; Do you know me? and I answered him back: No and he said: Im Alberto Jasmin. Q What was your condition during that time when you were answering him? A I was feeling weak. Q After that, Madam Witness, I mean after Eric performed his sexual act on you, what happened next? The other one who followed also removed his clothes and pants. (Id., pp. 20-23; emphasis supplied).[20] It is a legal truism that in criminal prosecutions, the State has the burden of proving the guilt of the accused beyond reasonable doubt. It has to prove the identity of the accused as the malefactor, as well as the fact of the commission of the crime for which he is alleged to be responsible.[21] However, we find that contrary to the assertions of accused-appellant, the prosecution did not fail to establish the onus on his identity. First. It is not true that Jocelyns testimony is devoid of any narration as to when accused-appellant took off his mask. On the witness stand, Jocelyn explained that while she did not initially recognize accusedappellant as he was wearing a mask, she recounted how she subsequently recognized accused-appellant when he removed his mask while he was raping her. Accused-appellant overlooked the following portions of Jocelyns testimony, to wit: Prosecutor: Q This Eric whom you said was the one responsible for shooting your father and mother, if you happen to see him again, will you be able to recognize him? A I know him. Q Will you kindly look around and tell us if this Eric is now here inside the courtroom? A He is here. Q Please point to him. (The one at the center, witness pointed to the man who identified himself as Uldarico Honra, Jr.) xxx xxx xxx. Court: Q This person whom you pointed and who answered that his name is Uldarico, Jr., was he the same person whom you saw and heard introducing himself to your mother when he asked water as Eric? A Yes, Your Honor.

Q And the very same person whom you personally saw pointing a gun to your mother and father and shooing each of them, (I am referring to Eric)? A Yes, your Honor. Q The same Uldarico Honra, Jr. whom you identified as the very Eric who introduced himself that night? A Yes, Your Honor.[22] x x x xxx xxx. Court: A moment. Q You testified a while ago that while Eric whom you identified in Court as Uldarico Honra, Jr. was conversing with your mother and later pointing a gun at your mother and father, he was wearing mask and associate him with the accused in this case who answered to the name of Uldarico Honra, Jr.? A I recognized him when he was already raping me because he removed his mask. Q Are you in fact telling the Court that the killing of your mother and your being subjected to rape by said Eric took place on that same occasion and same night? A Yes, Your Honor. Q Which took place first, the act of killing your parents or your being raped? A The killing of my parents took place first. Q And seconds after the killing of your parents, you saw Eric removing his mask while raping you. A Yes, Your Honor. (to Prosecutor) Proceed. Prosecutor Q Madam Witness, Court Q And you are very certain that the person who was raping you and removed his mask and who identified himself before as Eric is the very person you pointed to in court is Uldarico Honra, Jr.? A Yes, Your Honor.[23]

Second. We likewise reject as purely speculative accused-appellants contention that Jocelyn could not have recognized her assailant as she pretended to be unconscious at the time. The truth of the matter of is, she only pretended to be unconscious out of fear for her life having already witnessed the brutal killing of her parents, and was in fact conscious and got a good look at the physical features of her assailant during the rape. At that point, Jocelyn as the victim, was as close to the accused as is physically possible, for a man and woman cannot be physically closer to each other than during sexual act.[24] Thus, it cannot be doubted that she could easily see and recognize the face of the man who was ravaging her. Moreover, the most natural reaction of victims of violence is to strive to see the appearance of the perpetrators of the crime and observe the manner in which the crime is being committed.[25] Third. While it may be true that the crime took place in a dark area, this does not prevent the identification of accused-appellant. As testified to by Jocelyn, she could not have been mistaken in the identification of accused-appellant as the night was illuminated by a bright moonlight. This Court has ruled that the light of the moon is sufficient for a person to identify another.[26] All told, we see no reason to reject or doubt the identification made by Jocelyn of accused-appellant. Finally, the reliance being made by accused-appellant on the affidavit of Jocelyn in order to discredit her is likewise futile. According to accused-appellant, Jocelyn did not mention his name but only that of accused Ronnie Gipaya in her sworn statement taken on May 11, 1993. The Court has consistently ruled that discrepancies between the statement of an affiant in an affidavit and those made on the witness stand do not necessarily downgrade testimonial evidence. Ex parte affidavits are usually incomplete and frequently prepared by an administering officer and cast in the latters language and understanding of what the affiant has said. Quite frequently, the affiant would simply sign the affidavit after it has been read to him or to her.[27] After a thorough review of the records in the instant case, we see no reason to reverse the trial courts factual finding and conclusion on the credibility of Jocelyn Jeraos testimony; we are likewise unpersuaded by accused-appellants alibi. Well-settled is the rule that the assessment of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude under grilling examination. Findings of the trial court on such matters are binding and conclusive on the appellate court, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted.[28] The testimony of Jocelyn on how she saw her parents brutally murdered and how she was defiled by three men one after the other was clear, direct and honest and could only inspire belief. We have held that when the offended parties are young and immature girls from the ages of twelve to sixteen, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability but also the shame and embarrassment to which they would be exposed by court trial if the matter about which they testified is not true.[29] Jocelyns credibility is enhanced considering that she has no motive to testify against accused-appellant and there is absolutely no evidence on record which can even remotely suggest that she could have been actuated by any motive.[30]

On the contrary, we note that accused-appellants alibi is uncorroborated by the only other defense witness, accused-appellants brother. It was not clearly established where he actually was at the time of the commission of the crimes at 2 a.m. of May 9, 1993. He said he was at the barangay captains house sleeping, as he was drunk the night before celebrating the barangay captains birthday. However, his bother testified that accused-appellant was in their home sleeping on the night in question. Alibi is inherently weak and certainly insufficient to outweigh Jocelyns positive and categorical assertions on the commission of the crimes. The contradictory statements of accused-appellant and his brother further add to the dubiety and weakness of his defense. Moreover, whether he spent the night at the barangay captains home or in their own home, accused-appellant has not shown the physical impossibility of his presence at the place and time of the commission of the crime. The proffered defense of alibi cannot be sustained where it is not only without credible corroboration but it also does not on its face demonstrate the physical impossibility of the accuseds presence at the place of the crime or in its immediate vicinity at the time of its commission.[31] In the instant case, accused-appellant could not offer a corroborated and coherent alibi; and he has not shown that it was not possible for him to go to Jocelyns house from the barangay captains house. We now review the other aspects of accused-appellants conviction in keeping with the Courts duty, as an appellate tribunal, to correct such errors as may be found in the judgment appealed from, whether they are made the subject of assignment of errors or not.[32] In Criminal Case Nos. 93-33333 and 93-3338, accused-appellant was convicted of the murders of Pacita Jerao and Rustico Jerao. The killings were properly classified as murder upon the existence of treachery[33] as alleged in the information. There is treachery where the attack upon the unarmed victim, who had not committed the slightest provocation, and who were totally unaware of the murderous designs of the accused, was swift and unexpected.[34] Pacita and Rustico were unarmed, defenseless and helpless, andhad absolutely no opportunity to defend themselves from accused-appellants sudden and unexpected assault with the use of a gun. Evident premeditation which was also alleged in the information cannot be appreciated in the absence of direct evidence of the planning and preparation to kill when the plan was conceived.[35] Under Article 64 of the Revised Penal Code, when the penalties prescribed by law contain three periods, the penalty in its medium period shall be imposed when there are neither aggravating nor mitigating circumstances present. Under Article 248 of the Revised Penal Code[36], the penalty for murder is reclusion temporal in its maximum period to death, the medium period of which is reclusion perpetua.[37] Hence, accused-appellant should suffer the penalty of reclusion perpetua for each count of murder. We affirm the award of P50,000.00 for each count as indemnity for death to the heirs of the two victims in conformity with prevailing jurisprudence.[38] We cannot award actual damages absent proof of actual losses suffered. However, the award of P50,000.00 as moral damages is in order considering that Jocelyn Jerao testified on her own anguish suffered as a result of the death of her parents.[39] Absent any aggravating circumstance attending the murders committed, we cannot award exemplary damages pursuant to Article 2230 of the New Civil Code. In Criminal Case Nos. 93-3341, 93-3342 and 93-3343, the prosecution charged accused-appellant with rape with frustrated homicide and the trial court convicted him of three counts thereof. The case is wrongly denominated as there is no complex crime of rape with frustrated homicide. Article 48 of the

Revised Penal Code[40] requires the commission of at least two crimes, but the two or more grave or less grave felonies must be the result of a single act, or an offense must be a necessary means for committing the other.[41]Negatively put, when two or more crimes are committed but (1) not by a single act or (2) one is not a necessary means for committing the others, there is no complex crime. In the instant case, accused-appellant committed separate crimes of rape and frustrated homicide. They do not constitute a complex crime of rape with frustrated homicide. Neither does this case fall under Article 335 of The Revised Penal Code which provides for a special complex crime of rape with homicide. Pertinent portion of Article 335 reads: xxx xxx xxx. When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall likewise be death. When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. Clearly, the law does not contemplate consummated rape with frustrated homicide as in the instant case. Nevertheless, while the three informations were captioned rape with frustrated homicide and alleged the elements of said crimes, it should be noted that the defense did not object to the information despite its imperfection. The defect of charging two offenses in one information, that is, rape and frustrated homicide, was deemed waived by accused-appellants failure to raise it in a motion to quash before he pleaded to the information.[42] Hence, conviction for three separate counts of rape and three counts of frustrated homicide may lie. Conviction for rape must be sustained considering that all the elements of rape under Article 335(1) of the Revised Penal Code were established beyond reasonable doubt. The accused had carnal knowledge of Jocelyn; and that coitus was done through the use of force and intimidation.[43] Failure to shout or offer resistance did not make voluntary Jocelyns submission to the criminal acts of the accused.[44] Jocelyn pretended to be unconscious during the rape as she was subdued and cowed to submit in fear, having just witnessed the killing of her parents in the hands of her assailants. The use of deadly weapons (guns and bolos) as alleged in the information could not be appreciated as a qualifying circumstance absent evidence that the same were used to realize the crime of rape against Jocelyn. Conviction for frustrated homicide must likewise be sustained considering that the accused intended to kill the victim as shown by the weapon used and the parts of the victims body at which the weapon was aimed, as shown by the wounds inflicted. In fact, there is testimony to the effect that the accused left Jocelyn for dead. In fine, the accused performed all the acts of execution which could have produced the felony as a consequence, but did not on account of timely and adequate medical intervention. Accused-appellant is liable for three counts of rape and three counts of frustrated homicide on account of a clear conspiracy among the three accused shown by their obvious concerted efforts to perpetrate, one after the other the crime of rape, and then the crime of homicide. Conspiracy was properly

appreciated by the trial court because the individual acts of the accused when taken together as a whole showed that they were acting in concert and cooperating to achieve the same unlawful objective.[45] While accused-appellant was shooting Jocelyns parents, his co-accused were covering the latters mouth and lifting her up. While they took turns defiling her, the others stood guard. It has been held that in multiple rape, each of the defendants is responsible not only for the rape committed by him but also for those committed by the others.[46] Accused-appellant, therefore, is responsible not only for the rape committed personally by him but also for the rape committed by the others as well.[47] In the same vein, he is liable for three counts of frustrated homicide. In a conspiracy, it is not necessary to show that all the conspirators actually hit and killed the victim.[48]Accused-appellant ordered which weapon to use and handed the same to a co-accused who delivered the stab wounds on Jocelyn which could have resulted in her death if not for immediate medical intervention. This is a clear manifestation of a common purpose or design as well as concerted action on their part to kill. Finding accused-appellant guilty beyond reasonable doubt of three counts of rape, this Court imposes upon him the penalty of reclusion perpetua for each count. Latest jurisprudence awards the victim in a rape case the minimum amount of P50,000.00 as moral damages. Moral damages may be awarded to the victim without need for pleading or proof of the basis thereof.[49] Accused-appellant is also ordered to pay Jocelyn the amount of P50,000.00 as civil indemnity for each count of rape. Civil indemnity is mandatory upon a finding of the fact of rape.[50] Finding accused-appellant guilty beyond reasonable doubt of three counts of frustrated homicide, this Court imposes upon him the indeterminate penalty of 4 years and 2 months of prision correccional as minimum up to 10 years of prision mayor as maximum. WHEREFORE, in the light of the foregoing, accused-appellant Uldarico Honra, Jr. is found guilty of two counts of murder in Criminal Case Nos. 93-3333 and 93-3338 and is correspondingly sentenced to suffer the penalty of reclusion perpetua for each count; in Criminal Case Nos. 93-3341, 93-3342 and 933343, accused-appellant is found guilty of three counts of rape and is sentenced to suffer the penalty of reclusion perpetua for each count; accused-appellant is also found guilty of three counts of frustrated homicide and sentenced to suffer the indeterminate penalty of 4 years and 2 months of prision correccional as minimum up to 10 years of prision mayor as maximum for each count. In addition, accused-appellant Uldarico Honra, Jr. is ordered to PAY the following sums: (a) P100,000.00 to the heirs of Pacita and Rustico Jerao, as death indemnity; (b) P100,000.00 to the heirs of Pacita and Rustico Jerao as moral damages; (c) P150,000.00 to Jocelyn Jerao as civil indemnity; (d) P150,000.00 to Jocelyn Jerao as moral damages. SO ORDERED.

G.R. No. 137299

August 21, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO NANAS alias "IKOT", accused-appellant. GONZAGA-REYES, J.: For our review is the decision1 of the Regional Trial Court of Iloilo City, Branch 31, dated July 31, 1998 finding the accused-appellant Francisco Nanas, alias "Ikot" guilty beyond reasonable doubt of the crime of rape with homicide in Criminal Case No. 43624 and sentencing him to the supreme penalty of death. The accused-appellant Francisco Nanas was charged with the crime of rape with homicide in an information2dated May 23, 1994 which reads as follows: "That on or about April 25, 1994, in the municipality of Miagao, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused, armed with a knife, bolo, and a piece of bamboo, and by the use of force and intimidation, did, then and there willfully, unlawfully and feloniously had sexual intercourse with Edna Fabello without her consent and against her will and on the occasion of such rape, with deliberate intent and decided purpose to kill, did, then and there willfully, unlawfully and feloniously attack, assault and stab, hack and strike said Edna Fabello with the weapons which the accused was then provided, hitting the victim on the different parts of her body which caused her death." On August 3, 1994, accused-appellant was arraigned whereupon he entered a plea of not guilty to the crime charged.3 The prosecution presented four (4) witnesses: Dr. Mary Joyce M. Faeldan, Bienvenido Beatisola, Serapion Feronilmo, and Primitivo Fabello. The case against the accused-appellant, as culled from the testimonial and documentary evidence presented by the prosecution, is as follows: At about 8:00 in the evening of April 25, 1994, witness Bienvenido Beatisola and a certain Esteban Jumadron arrived at the dance hall in Barangay Tugara-ao, Miagao, Iloilo, where a dance was being held on the occasion of the fiesta of the barangay. Beatisola saw the victim Edna Fabello at the gate of the dance hall pinning ribbons on some of the revelers at the dance hall. As he was acquainted with the victim, he approached her and exchanged some pleasantries. Edna Fabello asked Beatisola to help her sister who was a candidate in the fund raising contest but he replied that he has no money4 . After this brief conversation with the victim, Beatisola went out of the dance hall to urinate and there he saw accused-appellant Francisco Nanas, alias "Ikot", drinking beer at the store under a camachile tree located some six (6) arms length from him. The appellant offered him a drink but he declined and instead he went back to the dance hall5 .

Beatisola noticed that Edna Fabello constantly went in and out of the dance hall. She had no companions. He last saw her going out of the dance hall and he was able to observe her passing the place where accused-appellant was drinking on her way to the rice paddies6 . Beatisola and his companion Esteban Jamadron left the dance hall at about 12:00 o'clock midnight and they proceeded to the house of a certain Elias Monsale, the brother-in-law of the witness. While walking thru the rice paddies, Beatisola paused to urinate by the bushes. He then heard a thudding sound and when he looked around, he saw a person lying face down on the ground. He surmised that the person was a girl as she had long hair tapering down to her shoulders. The girl was being beaten up by two other persons with the use of a wooden bamboo pole. From his vantage point, he was able to identify accused-appellant as one of the persons beating up the girl. He was able to identify him because of the moonlight and because during one instance, accused-appellant's companion pointed a flashlight at accused-appellant's face7 . The companion of accused-appellant apparently saw the witness hiding behind some cassava and banana plants and told accused-appellant about it. Instead of running away, accused-appellant allegedly drew his bolo and said "make them come because I will kill them." Accused-appellant then hacked the girl twice. Beatisola and his companion became scared and they ran to the house of his brother-in-law. When they reached the house, Beatisola immediately told his brother-in-law about what he witnessed and that accused-appellant had killed a person. However, he did not initially report the incident he witnessed to the authorities8 . It was only in June 1996 that Beatisola became aware that the person who was killed was Edna Fabello. She learned this from her sister Editha who apparently was the aunt of the victim. He decided to testify on what he had witnessed because of the pleas of his sister9 . Primitivo Fabello, the father of the victim, also attended the fund raising dance. He left the dance hall at around 3:00 in the early morning of April 26, 1994 and he began looking for Edna whom he noticed was missing. He proceeded to the cornfield and there he chanced upon the accused-appellant who was apparently searching for something. When Primitivo asked what he was doing, accused-appellant told him that he was looking for his knife. Primitivo then continued to search for his daughter10 . A short while later and while accused-appellant was still nearby, Primitivo found the shoes, hairpin and handkerchief of his daughter. The accused-appellant suddenly became agitated and he immediately fled the scene. After appellant was gone, Primitivo continued looking for his daughter and he was able to see bloodstains on the dike and on a bamboo pole. He followed the trail of blood and this led him to the dead body of his daughter lying face down in a canal. Thereafter, he reported the incident to the Barangay Captain and later on he turned over the personal effects of his daughter to the police11 . Police Officer Serafin Feronilmo, who received the report about the crime, went to the crime scene and there he found the dead body of Edna Fabello in the canal. Edna's neck was slashed and her body bore stab wounds. Nearby, he found a bloodstained bamboo pole, a pair of slippers, the scabbard of a knife, a toy gun and a hair clip.

As Primitivo Fabello had earlier told him that he had chanced upon accused-appellant near the place where the body was found, he proceeded to the place of accused-appellant to continue his investigation. Accused-appellant was in his house and so the police officer invited the accused-appellant to the police station for questioning. In the station, accused-appellant allegedly admitted to the police officer that he owned the pair of red rubber slippers found at the crime scene but he denied responsibility for the crime12 . The body of Edna Fabello was retrieved and it was examined by Dr. Mary Joyce M. Faeldan, the acting Municipal Health Officer of Miag-ao, Iloilo. She identified her medico-legal report13 in open court. However, she was deemed by the trial court as not qualified to be an expert witness and so she was not allowed to elaborate on her findings14. Her report showed that the witness died from avulsion of the parts of the brain and asphyxia secondary to a hack wound. Her body bore contusions and hematoma and she was found to have been stabbed and hacked twelve (12) times on different parts of her body. The speculum examination on her sex organ revealed that there were "positive multiple minute lacerations around the external (opening) of the cervix" and "positive hymenal lacerations at (the) 3 o'clock and 10 o'clock positions."15 For his part, accused-appellant denied the charge leveled against him. He admitted that on April 25, 1994, the date of the criminal incident, he was in Miag-Ao, Iloilo as he was taking part in the fiesta celebrations. He admitted further that he was at the dance hall of the barangay with his brother, sister, and daughter as his companions. He denied ever seeing witness Bienvenido Beatisola at the dance hall. He claimed that he was at the dancehall all night and that he only left the place at around 4:00 a.m. the following day as he was already sleepy and he had work that morning16 . His companions stayed behind as the dance was still ongoing. On his way home, accused-appellant passed through some corn paddies and when he was about fifty meters away from the dancehall, he saw Primitivo Fabello, the father of the victim. He denied, however, the testimony of Primitivo that he was looking for his knife and that he ran away when the shoes of Edna were found. He claimed that Primitivo only asked him whether he had seen his daughter Edna Fabello to which he replied that that he saw her earlier in the evening but he had not seen her since.17 He then continued on his way home and he arrived there past 4:00 in the morning. He woke up the following morning at around 8:00 a.m. He was then told by a barangay councilor that the policemen were looking for him and so he looked for the policemen on the road. When he met the policemen, he was asked whether he was Francisco Nanas to which he replied in the affirmative. The policemen then took him to his house where they proceeded to look for his clothes and bolo. They were able to find his clothes and bolo but there were no bloodstains on them. The policemen left the clothes and the weapon and instead they said that accused-appellant should accompany them to the police station for questioning. There he was placed inside a prison cell and since then he had not been released from detention.18 He denied that he raped and killed Edna Fabello and that he admitted in the police station that he owned the red rubber slippers found at the crime scene. He likewise denied the accusation of

Bienvenido Beatisola that he beat up and hacked a girl in the corn paddies. He claimed that Beatisola was a planted witness who had a quarrel with him sometime in 1980. Teresa Napilanga, the sister of the accused, corroborated the account of her brother regarding the incident which happened at their house in the morning of April 26, 1994, right after the body of Edna Fabello was found. She claimed that the police came to their house and questioned her brother about the death of Edna Fabello and that they also searched the house for evidence against the accusedappellant. They were not able to find any evidence linking his brother to the crime yet the policemen still brought accused-appellant to the police station for questioning and thereafter proceeded to detain him.19 Teresa likewise corroborated the testimony of her brother on the long-standing enmity between him and the witness Bienvenido Beatisola.20 Romeo Famanila, the barangay captain of Calagtangan, Miag-Ao, Iloilo and a distant relative of accusedappellant, testified that there was a fight between accused-appellant and witness Bienvenido Beatisola in their barangay sometime in May 1980. The two of them were fighting with knives but they ran away when they saw him. According to him, Beatisola likewise assaulted accused-appellant the day after the fighting incident.21 On cross-examination, Famanila admitted that the incident was never recorded in the barangay nor reported to the police.22 After trial on the merits, the court a quo convicted accused-appellant of the complex crime of rape with homicide and sentenced him to the supreme penalty of death. The dispositive portion of the decision dated July 31, 1998 reads: "WHEREFORE, finding the accused Francisco Nanas guilty beyond reasonable doubt for the crime of Rape with Homicide, under Art. 355 of the Revised Penal Code as amended by Rep. Act No. 7659, judgment is hereby rendered sentencing the said accused to suffer the penalty of death, and further ordering the accused to pay the heirs of Edna Fabello the sum of P50,000.00 for civil indemnity and P100,000.00 for exemplary and moral damages. Costs against the accused. SO ORDERED."23 Due to the imposition by the trial court of capital punishment, the case is now before us on automatic review. In his Appellant's Brief, accused-appellant raises the following assignment of errors:24 A. THAT THE TRIAL COURT ERRED IN HOLDING THAT ALL THE ELEMENTS OR RAPE HAVE BEEN ESTABLISHED. THE ELEMENTS WHICH HAVE NOT BEEN ESTABLISHED BY THE EVIDENCE OF THE PROSECUTION ARE THE FOLLOWING: A.1 THE ELEMENT OF CARNAL KNOWLEDGE OR SEXUAL INTERCOURSE AS NO EXPERT MEDICAL OPINION WAS PRESENTED TO PROVE SUCH FACT AND LACERATIONS REFLECTED IN THE MEDICAL REPORT, BY ITSELF, DO NOT CONCLUSIVELY ESTABLISH SEXUAL INTERCOURSE.

A.2 ASSUMING WITHOUT ADMITTING THAT THE PROSECUTION ESTABLISHED SEXUAL INTERCOURSE, IT FAILED TO ESTABLISH THE ELEMENT OF RAPE THAT THE INTERCOURSE IS ACCOMPLISHED BY THE FOLLOWING CIRCUMSTANCES, TO WIT: a) By using force or intimidation; b) When the woman is deprived of reason or otherwise unconscious; or c) When the woman is under 12 years of age; A.3 ASSUMING THAT A SEXUAL INTERCOURSE HAS BEEN ESTABLISHED AND IT WAS ACCOMPLISHED UNDER THE ABOVE-ENUMERATED THREE CIRCUMSTANCES OF ACCOMPLISHING RAPE, THERE IS NO EXPERT TESTIMONY SHOWING THAT IT WAS MADE DURING THE DAY OF THE ALLEGED COMMISSION OF THE CRIME AND NO EVIDENCE THAT THE AUTHOR OF IT IS THE ACCUSED. A.4 PROSECUTION WITNESS BIENVENIDO BEATISOLA, ASSUMING HIS TESTIMONY TO BE CREDIBLE, HAS ONLY WITNESSED CIRCUMSTANCES TO HOMICIDE AND NOT RAPE WHILE THE REST OF THE WITNESSES TESTIFIED ON CIRCUMSTANTIAL EVIDENCE ON HOMICIDE AND NOT RAPE. B. THE TRIAL COURT ERRED IN RELYING IN THE TESTIMONY OF PROSECUTION WITNESS BIENVENIDO BEATISOLA AS HE IS NOT A CREDIBLE WITNESS, WITH UNREBUTTED CRIMINAL RECORDS AND HAS THE MOTIVE TO FABRICATE AGAINST THE ACCUSED. C. THE TRIAL COURT ERRED IN RELYING ON THE ACCOUNT OF PROSECUTION WITNESSES WHICH IS INCREDIBLE AND FULL OF INCONSISTENCIES. D. THE TRIAL COURT ERRED IN HOLDING THAT THE PROSECUTION ESTABLISHED THE CRIMINAL LIABILITY OF THE ACCUSED BEYOND REASONABLE DOUBT. E. THAT TRIAL COURT ERRED IN NOT APPRECIATING MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND INTOXICATION. It is settled that in the special complex crime of rape with homicide, both the rape and the homicide must be established beyond reasonable doubt.25 In this regard, we have held that the crime of rape is difficult to prove because it is generally unwitnessed and very often only the victim is left to testify for herself. It becomes even more difficult when the complex crime of rape with homicide is committed because the victim could no longer testify. Thus, in crimes of rape with homicide resort to circumstantial evidence is usually unavoidable.26 In the case at bench, there was no eyewitness to the crime of rape allegedly committed on the person of Edna Fabello. Bienvenido Beatisola only witnessed the accused beating-up and hacking a woman, acts which are consistent with homicide but not with rape. The father of the victim Primitivo Fabello merely testified that he saw accused-appellant near the scene of the crime at the time of the incident. He did not actually witness accused-appellant rape his daughter. As such, if the crime of rape is to be proven, resort must be had to circumstantial evidence.

Circumstantial evidence is sufficient to sustain a conviction if: (a) there is more than one circumstance; (b) the facts from which inferences are derived are proven; and (c) the combination of all circumstances is such as to produce conviction beyond reasonable doubt.27 Sadly, not one of these requisites is present in the case at bar. In the present case, the only evidence offered by the prosecution which has any connection with a finding that the victim has been raped is the report of Dr. Mary Joyce M. Faeldan which stated that there were multiple lacerations around the external opening of the cervix of the victim and on her hymen. It is axiomatic that hymenal laceration is not necessary to prove rape.28 Thus, the presence of lacerations does not likewise conclusively prove its commission. In People vs. Domantay,29 we had occasion to expound on the evidentiary value of a finding of hymenal lacerations. To wit: "(A) medical certificate or the testimony of the physician is presented not to prove that the victim was raped but to show that the latter had lost her virginity. Consequently, standing alone, a physician's finding that the hymen of the alleged victim was lacerated does not prove rape. It is only when this is corroborated by other evidence proving carnal knowledge that rape may be deemed to have been established. This conclusion is based on the medically accepted fact that a hymenal tear may be caused by other objects other than the male sex organ or may arise from other causes." (citations omitted) In the case at bar, not only is there an absence of other circumstances from which it might be reasonably inferred that rape was committed, there is also no testimony that the hymenal lacerations themselves may have been caused in the course of coitus or by a male organ. It must be recalled that Dr. Faeldan merely identified the medico-legal report which she executed. Because of her lack of experience, the trial court, to which the prosecution agreed, deemed her not to be an expert on the matter and thus, she was prevented from giving expert medical opinion on the implications of her findings. For their part, the prosecution did not present any other doctor or witness who was qualified to render a medical opinion that rape may indeed have occurred. As such, there is no proof that the lacerations and ruptures found on the sex organ of the victim were caused by sexual intercourse.30 Consequently, the trial court erred in concluding that rape was committed. To be sure, this Court has sustained a number of convictions for rape with homicide based on purely circumstantial evidence. In those instances however, the prosecution was able to present other telltale signs of rape such as the location and description of the victim's clothing, especially her undergarments, the position of the body when found, and the like.31 In the case at bar, there is no convincing circumstantial evidence from which we might establish beyond reasonable doubt that accused-appellant sexually abused the victim. There is no evidence that the victim was naked when found, that her

undergarments were torn or missing, that there was spermatozoa in the girl's vaginal canal and other such evidence from which we might infer that rape was committed. While we sustain the contention of accused-appellant that rape was not proven beyond reasonable doubt, we do not agree with his argument that his guilt of the crime of homicide was likewise not proven beyond reasonable doubt. In contrast with the evidence for rape offered by the prosecution, the circumstantial evidence linking accused-appellant to the death of Edna Fabello is sufficient to convict him of the crime of homicide. We quote with approval the following finding of the trial court on the circumstantial evidence linking the accused-appellant to the death of Edna Fabello: "It is argued that evidence with respect to the identity of the victim is circumstantial in nature. Yet, the circumstantial evidence if you may, is not isolated, but consist of a chain of circumstances, like the finding and recovery of the personal effects of Edna Fabello by her father who without doubt is very familiar with the personal belongings of his daughter since they live under the said roof, the fact that as testified to by Bienvenido Biatisola, he saw the accused hack twice a person lying in the canal whom he suspected to be a girl with long hair that tapers to her shoulder, the fact that when Primitivo Fabello met the accused at the cornfield at around 3 o'clock in the morning of April 26, 1994, he was looking for his knife, the scabbard of which was likewise found by Fabello in the cornfield together with the victim's shoes, hairpin, and handkerchief, and the fact that no other victim except Edna Fabello was found dead in the canal the following morning after her disappearance from the dance hall. (These) are overwhelming circumstantial evidence, which together with the oral testimony of eyewitnesses Primitivo Fabello and Bienvenido Beatisola point to no other logical conclusion except that of the guilt of the accused Francisco Nanas . . .32" Aside from these pieces of circumstantial evidence cited by the trial court, we likewise have the testimony of Police Officer Serapion Feronilmo who stated that accused-appellant admitted in the police station that he was the owner of the red slippers recovered from the crime scene. To the unprejudiced mind, the circumstantial evidence in the case at bar, when analyzed and taken together, leads to no other conclusion except that of accused-appellant's culpability for the death of the victim. Accused-appellant admitted that he was near the crime scene at the time the crime was being committed. He was seen by a witness beating up and hacking a girl with a bolo. He was seen by the father of the victim lingering near the crime scene apparently looking for his knife. He ran away from the crime scene when the personal effects of the victim were found. The dead body of Edna Fabello was found near the place where he was seen beating up and hacking a girl. Finally, he admitted before the police authorities that he owned the pair of rubber slippers found at the crime scene. Conviction based on circumstantial evidence will be upheld, provided the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all others, as the guilty person,33 a conclusion adequately established in this case.

It is suggested by accused-appellant that the testimony of witness Bienvenido Beatisola should be rejected considering the witness's questionable reputation and personal background as evidenced by the criminal charges filed against him34 . It is true that under the Rules of Court, a witness may be impeached by evidence that his general reputation for truth, honesty, or integrity is bad. However, a witness cannot be impeached by evidence of particular wrongful acts unless there is a showing of previous conviction by final judgment35 . Such that not even the existence of a pending information may be shown to impeach him36 . In the present case, there was no testimony that the reputation of Beatisola for truth, honesty or integrity is bad. The defense merely presented evidence of the witness's alleged previous wrongful acts by the introduction into evidence of criminal complaints filed by police officers and offended parties against the witness before the municipal trial court. There is no showing that these cases were eventually tried and that Beatisola was convicted thereof. Thus, they only establish that criminal complaints were filed against the witness and as such, the fact thus established will not detract from Beatisola's competence as a witness37 . Accused-appellant likewise points to the alleged bad blood between him and Beatisola as the motive behind his testimony linking him to the crime. Allegedly, they engaged in a knife fight sometime in 1980 which was witnessed by the people in their barangay. We cannot give credence to the alleged motive of witness Beatisola in testifying against accusedappellant. Besides the fact that there is absolutely no record of the fight between the two either with the barangay or in court, the witnesses who testified on this matter were admittedly biased and interested witnesses. Moreover, even if there had been a fight between accused-appellant and Beatisola sometime in 1980, it is incredible to believe that the latter would be inclined to wait for fourteen (14) years before exacting his revenge if such indeed was his inclination. As to accused-appellant's argument that Beatisola only came out to testify about six months after the death of Edna Fabello and not immediately after, suffice it to say that it is not uncommon for a witness to a crime to show some reluctance about getting involved in a criminal case. In fact, the natural reticence of most people to get involved is a matter of judicial notice.38 As aptly explained by Beatisola, he only decided to testify when his sister, a relative by affinity of the victim, cried before him and told him to testify as to his knowledge about the incident39 . Moreover, as previously shown, the trial court did not convict accused-appellant solely on the testimony of Beatisola. The trial court likewise took into account the testimonies of the father of the victim and the policeman who investigated the killing. The Court notes that accused-appellant merely imputes a motive against Beatisola for falsely testifying against him. He cannot impute any ill motive against the other witnesses as in fact, there was none. Finally, accused-appellant argues that the trial court erred in relying on the account of prosecution witnesses which allegedly was incredible and full of inconsistencies. According to accused-appellant, no person in his right mind would stay at the scene of the crime despite knowing that he was already

noticed and that no person will talk to the father of his victim at the scene of the crime despite the fact that he was already recognized and the body of the victim was still at the crime scene. The submission of accused-appellant is bereft of any sustainable basis. The improbabilities alluded to are more imagined than real and they do not adversely affect the credibility of the witnesses40 . Moreover, we have previously held that the criminal mind is generally an irrational mind and hence, its actuations are often abnormal, erratic, and unpredictable41 . In view of the foregoing, we hold that it was only the crime of homicide which was proven beyond reasonable doubt. It is well settled in this jurisdiction that where a complex crime is charged and the evidence fails to support the charge as to one of the component offense, the accused can be convicted of the other.42 It is true that in the special complex crime of rape with homicide, the term "homicide" is to be understood in its generic sense, and includes murder and slight physical injuries committed by reason or on occasion of the rape43 . However, in rape with homicide, in order to be convicted of murder in case the evidence fails to support the charge of rape, the qualifying circumstance must be sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be informed of the nature of the offense for which he is charged44 . In the case at bench, no circumstance which would qualify the killing to murder was sufficiently alleged in the information charging accused-appellant with rape with homicide. Consequently, considering that the evidence presented fails to support the charge for rape, accused-appellant may only be convicted of homicide. With regards to the imposable penalty, we are not persuaded by the submission of accused-appellant that the mitigating circumstances of voluntary surrender and intoxication should be appreciated in his favor. With respect to the circumstance of voluntary surrender, accused-appellant claims that the same must be appreciated considering that he voluntarily went to the police station when his presence was requested the morning immediately following the incident. However, for voluntary surrender to be considered, the following requisites must concur: (1) the offender was not actually arrested; (2) he surrendered to a person in authority or to an agent of a person in authority; and (3) his surrender was voluntarily45 . A surrender to be voluntary must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities either because (a) he acknowledges his guilt or (b) he wishes to save them the trouble and expense necessarily incurred in his search and capture46 . That accused-appellant submitted himself to the custody of law even though there was yet no warrant of arrest or information against him is of no moment. The police authorities had to go to the house of accused-appellant in order to take the latter to the police station. Accused-appellant did not present himself voluntarily to the police; neither did he ask them to fetch him at his house so he could surrender. The fact alone that he did not resist but went peacefully with the police officers does not mean that he voluntarily surrendered47 . Besides, voluntary surrender presupposes repentance48 . This circumstance was not present in the instant case as accused-appellant denied any participation and knowledge of the crime when he was in the custody of the police authorities. Hence, the mitigating circumstance of voluntary surrender cannot be appreciated.

Neither can we appreciate in favor of accused-appellant the alternative circumstance of intoxication. To be mitigating, the accused must show that (1) at the time of the commission of the criminal act, he has taken such quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of selfcontrol; and (2) such intoxication is not habitual or subsequent to the plan to commit the felony49 . No such evidence was presented in the case at bar. The fact that accused-appellant was seen drinking before the incident does not lead to the conclusion that he has taken such quantity of liquor so as to deprive him of self-control. Similarly, there is also no evidence that his intoxication was not habitual. Under Article 249 of the Revised Penal Code, the imposable penalty for homicide is reclusion temporal. Considering that no mitigating or aggravating circumstance may be appreciated, the penalty is to be imposed in its medium period. Applying the benefits of the Indeterminate Sentence Law, accusedappellant may thus be sentenced to an indeterminate penalty ranging from eight (8) years and one day of prision mayor as minimum to fourteen (14) years, eight (8) months and one day of reclusion temporal as maximum50 . Consistent with current jurisprudence, we maintain the award made by the trial court in the amount of P50,000.00 as civil indemnity for the death of Edna Fabello51 . The trial court erred, however, in awarding the amount of P100,000.00 as exemplary and moral damages. Exemplary damages may not be awarded considering that such damages can only be recovered in criminal cases when the crime is committed with one or more aggravating circumstances52 . In the case at bench, the prosecution failed to prove that the killing of Edna Fabello was attended by any aggravating circumstance. Consequently, the award for exemplary damages must be deleted for lack of legal basis.53 Likewise, despite the demise of the victim on account of the felonious act of accused-appellant, moral damages cannot be awarded to the victim's heirs. The prosecution here did not present evidence, testimonial or otherwise, to show that the heirs of the deceased are entitled thereto54 . Under the present stage of case law on crimes involving the taking of human life, evidence must be adduced by the offended parties to warrant an award for moral damages55 . WHEREFORE, the assailed decision of the Regional Trial Court, Branch 31, Iloilo City finding accusedappellant Francisco Nanas guilty of the crime of rape with homicide is hereby MODIFIED. As modified, Francisco Nanas is hereby found guilty beyond reasonable doubt of the crime of Homicide, defined under Article 249 of the Revised Penal Code, and is hereby sentenced to suffer an indeterminate penalty ranging from eight (8) years and one day of prision mayor as minimum to fourteen (14) years, eight (8) months and one day of reclusion temporal as maximum. Accused-appellant is likewise ordered to pay the heirs of the victim Edna Fabello the sum of P50,000 as civil indemnity. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 149199 January 28, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NEMESIO BON, accused-appellant. YNARES-SANTIAGO, J.: For automatic review is the decision1 of the Regional Trial Court of Caloocan City, Branch 128, in Criminal Case No. C-54211, finding accused-appellant Nemesio Bon guilty beyond reasonable doubt of raping 6year old Maricris Bonode, and imposing upon him the penalty of death. The Information filed against accused-appellant reads: That on or about the 19th day of August 1997 in Caloocan City, Metro Manila, Philippines and within the jurisdiction of the Honorable Court, the above-named accused, with lewd design and by means of force and intimidation and taking advantage of the innocence and minority of one MARICRIS BONODE, a minor of 6 years old, did then and there willfully, unlawfully and feloniously lie and have carnal knowledge with said MARICRIS BONODE, against her will and without her consent. Contrary to law.2 On November 9, 1998, accused-appellant pleaded not guilty.3 Thereafter, trial on the merits followed. The facts are as follows: The victim, Maricris Bonode, was at the time material to this case 6 years of age and living with her family at 128 Bearbrand Alley, Pangako Street, Bagong Barrio, Caloocan City. Also staying in their house was accused-appellant, the eldest brother of Violeta Bonode, the victim's mother.4 At about 3:00 in the afternoon of August 19, 1997, the victim was playing on the upper level of their house while Violeta was downstairs washing their clothes. After Violeta finished her laundry, she went upstairs and saw accused-appellant lying on top of the victim. They were fully clothed when she saw them. He had his pants on while Maricris was wearing "sando and shorts". Upon seeing Violeta, accused-appellant immediately stood up and ran downstairs. Maricris also ran downstairs crying.5 Violeta asked her daughter about the incident but the latter refused to answer and just cried. The following morning, Violeta learned from her youngest daughter that accused-appellant sexually abused Maricris. When confronted, the victim told her that accused-appellant poked (sinundot) her private part.6

Violeta feared accused-appellant so she chose not to confront him about the incident. Instead, she transferred to Atimonan, Quezon with her family. Sometime in January 1998, Violeta learned that he was in jail for acts of lasciviousness committed on the daughter of her sister-in-law. Emboldened by his arrest, Violeta revealed to her husband that accused-appellant molested their daughter. Thus, a complaint for rape was filed against him.7 On January 21, 1998, Dr. Tomas D. Suguitan, Medico-Legal Officer of the PNP Crime Laboratory examined the victim. Said examination yielded the following results: GENERAL AND EXTRAGENITAL: Fairly developed, fairly nourished and coherent female child. Breasts are underdeveloped. Abdomen is flat and soft. GENITAL: There is absence of pubic hair. Labia majora are full, convex and coaptated with pinkish brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy-type hymen with deep healed laceration at 5 o'clock position. External vaginal orifice admits tip of the examiner's smallest finger. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of application of any form of violence.8 Testifying in his own behalf, accused-appellant denied the accusation against him and claimed that Violeta filed the rape case against him because she was influenced by her sister-in-law who filed a case for acts of lasciviousness against him. He narrated that he lived with the family of Maricris and that she and her 2 other sisters were close to him. At around 2:00 in the afternoon of August 19, 1997, when he went upstairs to sleep, the victim and her sisters followed and lay beside him. Later, the three children went downstairs. After some time, Maricris came back and lay on top of him with her face pressed to his chest. He heard a noise from the stairs, so he got up and lay Maricris on her back. It turned out that the noise came from Violeta, who looked angrily at him. Violeta must have thought that he abused her daughter because she saw him in the act of laying the victim on her back.9 In its decision of May 7, 2001, the trial court found accused-appellant guilty of rape committed on a child below seven (7) years of age. He was sentenced to suffer the penalty of death, pursuant to Article 335 of the Revised Penal Code as amended by Republic Act No. 7659. The dispositive portion of the decision reads: WHEREFORE, in view of all the foregoing premises, the accused Nemesio Bon is found guilty beyond reasonable doubt and is hereby sentenced to death by lethal injection.

The accused is also ordered to pay Maricris Bon the amount of P50,000.00 as moral damages and P75,000.00 as civil indemnity. There shall be no subsidiary imprisonment in case of insolvency. Further, he shall suffer all the accessory penalties attached to the penalty provided for by law. The City Jail Warden of Caloocan City is hereby ordered to transfer the accused Nemesio Bon to the National Bilibid Prisons, Muntinlupa City for the service of his sentence. Let the records of this case be forwarded to the Supreme Court for automatic review. SO ORDERED.10 In view of the imposition of the death penalty, the case is now before us on automatic review, pursuant to Article 47 of the Revised Penal Code, as amended. Under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659,11 the law in force at the time of the commission of the offense on August 19, 1997, rape is committed by having carnal knowledge of a woman under any of the following circumstances: (1) By using force or intimidation; (2) When the woman is deprived of reason or otherwise unconscious; and (3) When the woman is under twelve years of age or demented. Carnal knowledge is defined as the act of a man having sexual intercourse or sexual bodily connections with a woman.12In People v. Campuhan,13 we held that the touching of the external genitalia by the penis capable of consummating the sexual act should be understood as inherently part of the entry of the penis into the labia of the female organ and not mere touching alone of the mons pubis or the pudendum. The general rule is that factual findings by the trial court deserve a high degree of respect and will not be disturbed on appeal in the absence of any clear showing that it overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could alter the result of the case.14 However, a careful review of the evidence on record of the case compels us to take exception to the aforesaid rule. The prosecution has failed to discharge its onus of proving, beyond reasonable doubt the guilt of accused-appellant for the crime of rape. Specifically, the evidence adduced by the prosecution does not conclusively establish the element of carnal knowledge. As testified to by the victim, accused-appellant removed her underwear, inserted his finger into and licked her vagina, thus: Q. A. Q. A. Q. A. xxx What did your uncle [do] to you? He kissed my vagina. And after your uncle kissed your vagina, what did he do next if any? He was pulling down my panty. What else did he do to your vagina? SINUNDOT PO. xxx xxx

Q. A. Q. A. xxx Q. A.

You said your uncle "SINUNDOT" your vagina, what did he use when he SINUNDOT your vagina? Hands, sir. When your uncle "SINUNDOT" your vagina with his finger, how did you feel? MASAKIT PO. xxx xxx

You said that your uncle kissed your vagina, how did he kiss your vagina? He licked my vagina. "DINILAAN PO".15

It is therefore clear from the foregoing testimony that accused-appellant did not have sexual intercourse or sexual bodily connections with the victim. Absent direct proof of carnal knowledge, accused-appellant cannot be convicted of rape. It appears that in the "Sinumpaang Salaysay"16 of the victim, she never claimed that accused-appellant's penis grazed or touched her private parts. According to her, he committed the following acts: "Sinundotsundot ang pekpek ko, dinilaan ang pekpek ko." The presence of a deep healed laceration on the hymen of the victim does not conclusively prove carnal knowledge.17 As testified to by Dr. Suguitan, the laceration could have been caused by introduction of any of the following objects into the victim's vagina: (1) finger; (2) erect penis; or (3) any other blunt instrument that can be inserted in the vagina.18 Standing alone, a physician's finding that the hymen of the alleged victim was lacerated does not prove rape. It is only when this is corroborated by other evidence proving carnal knowledge that rape may be deemed to have been established.19 Likewise, the testimony of Violeta failed to establish the element of carnal knowledge. Violeta saw that accused-appellant was lying on top of the victim; and that accused-appellant and the victim were fully clothed. Note that she never witnessed any sexual act, thus: Q. And what you saw precisely was that they were playing on August 19, 1997, when you went upstairs, is that [what] you imply? A. Q. A. Q. A. Q. No, sir. But you admit that Mr. Bon, your brother, was fully dressed? Yes, sir. Also, his pants was on (sic)? Yes, sir. And you also saw your daughter was fully dressed or clothed?

A. Q. A. Q. A. Q. A.

Yes, sir. Was she still in school uniform? No more, sir. What was she wearing at the down portion (sic)? Maricris was wearing sando and shorts, sir. When you said Maricris was underneath your brother Nemesio, you did not see her face? I saw her face, sir.

Q. What [was the] precise position of the body of the accused when for the first time you saw him on top of her? A. Q. A. Q. A. He was lying down on top of my daughter, sir. When you saw first the lower portion of his body, both feet (sic)? I saw his whole body, sir. You said the whole body, you also noticed where his hand [was]? (Witness demonstrating that both hands of Nemesio was spread.)

Q. That is precisely what you saw and immediately, he stood up and went down, is that what you mean? A. Q. A. He suddenly stood up and he did not know what to do. Did [he] try to explain what he was doing? I did not ask him because I got hurt, sir.20

Similarly, in People v. Contreras,21 all that the prosecution was able to establish was the accused "sitting on the floor, his fly open, and his sex organ out, while [the victim] was sitting on his lap, facing him, her legs spread apart, and without any underwear on." In the said case, we ruled that since there was no direct evidence showing that the accused was able to insert his organ into the victim's vagina or that his penis made contact with the labia, he cannot be convicted of rape. Verily, from the testimony of Violeta, it is easy to speculate that the victim was raped. But in criminal cases, speculation and probabilities cannot take the place of proof required to establish the guilt of the accused beyond reasonable doubt. Suspicion, no matter how strong, must not sway judgment.22 Under the present law on rape, Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353 (or the "The Anti-Rape Law of 1997" which took effect on October 22, 1997), and interpreted in People

v. Soriano,23insertion of one's finger into the genital of another constitutes "rape through sexual assault." This law, however, finds no application in the case at bar, considering that the governing law at the time of the commission of the crime on August 19, 1997 was Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, where insertion of one's finger into the genitals of another does not amount to rape. Nevertheless, accused-appellant is not completely without liability. In Dulla v. Court of Appeals, et al.,24 we held that although the information charged the crime of rape, accused-appellant can be convicted of acts of lasciviousness because it is included in rape. Rule 120, Sec. 4 of the Rules of Court states: Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information, and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in that which is proved. The elements of the crime of acts lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done: (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex. Section 32, Article XIII, of the Implementing Rules and Regulations of RA 7610 or the Child Abuse Law defines lascivious conduct, as follows: "[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person." In the case at bar, all the elements of the offense were established, making accused-appellant liable for the crime of acts of lasciviousness, as defined and penalized under Article 366 of the Revised Penal Code in relation to R.A. No. 7610 or the Child Abuse Law.25 As evidenced by her birth certificate,26 the victim was 6 years of age at the time of the commission of the offense on August 19, 1997, having been born on November 3, 1991. Accused-appellant's acts of removing the victim's underwear, inserting his finger into and licking her vagina, and lying on top of her, constitute lascivious conduct intended to arouse or gratify his sexual desire. Indeed, the victim's testimony that accused-appellant performed the said lecherous acts should be given full faith and credence. In cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused. Such is the testimony of victims who are young, immature, and have no motive to falsely testify against the accused, as in the instant case.27 Article III, Section 5, of Republic Act No. 7610, provides:

Child Prostitution and other Sexual Abuse. Children, whether male or female, who for money or profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; . . . . (Emphasis supplied) Considering that the victim in the instant case was only 6 years old28 at the time the crime was committed, accused-appellant should be meted the penalty of reclusion temporal in its medium period. In the absence of any mitigating or aggravating circumstance, the penalty shall be imposed in its medium period, which has a range of fifteen (15) years, six (6) months and twenty (20) days to sixteen (16) years, five (5) months and nine (9) days.29Notwithstanding that R.A. No. 7610 is a special law, accused-appellant may enjoy the benefits of the Indeterminate Sentence Law.30 Thus, he shall be entitled to a minimum term to be taken within the range of the penalty next lower to that prescribed by the Code. The penalty next lower in degree is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years. Hence, for the crime of acts of lasciviousness, accused-appellant shall suffer the indeterminate sentence of eight (8) years and one (1) day of prision mayor, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum.31 In line with current jurisprudence, accused-appellant is liable to pay the victim the amount of P30,000.00 as moral damages.32 WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of Caloocan City, Branch 128, in Criminal Case No. C-54211, finding accused-appellant guilty beyond reasonable doubt of rape and sentencing him to death, is MODIFIED. Accused-appellant Nemesio Bon is found guilty beyond reasonable doubt of the crime of acts of lasciviousness, as defined and penalized under Article 336 of the Revised Penal Code, in relations to Article III, Section 5 (b), of Republic Act No. 7610, and is sentenced to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fifteen (15) years, six (6) months and twenty (20) days ofreclusion temporal as maximum, and to pay the victim, Maricris Bonode the amount of P30,000.00 as moral damages. Costs de oficio. SO ORDERED.