Today is Sunday, April 29, 2018

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

DECISION

pe and acts of lasciviousness. The felony of attempted rape requires such intent; the felony of acts of lasciviousness
ape without proof of his erectile penis being in a position to penetrate the female's vagina.

The Case

ppeals (CA) affirmed the conviction for attempted rape of the petitioner by the Regional Trial Court, Branch 34, in Bala
rision mayor, as maximum, and ordering him to pay moral damages of ₱20,000.00 to AAA, 2 the victim.

Antecedents

ving different victims. At arraignment, he pleaded not guiltyto the respective informations, to wit: Criminal Case No. 2

Attempted Rape

g the Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar,Province of La Union, Philippines an
ion ofrape directly byovert acts, to wit: While private complainant AAA, an unmarried woman, fifteen (15) yearsold, w
with intent of having carnal knowledge of her by means of force, and if the accused did not accomplish his purpose th
of said accused to the damage and prejudice of said offended party.
ng the Bangar-Luna Road, Barangay Central West No. 2, Municipality of Bangar, Province of La Union, Philippines a
ainst the latter’s will and with no other purpose but to satisfy his lascivious desire to the damage and prejudice of said

Version of the Prosecution

g of plastic wares and glass wares in different municipalities around the country. On December 20, 1993, Norberto an
La Union, AAA and BBB boarded a passenger jeepney owned by Norberto. The young girls were accompanied by N

y parked in front of Maroon enterprises. They brought out all the goods and wares for display. Two tents were fixed in

. Less thanan hour later, AAA was awakened when she felt that somebody was on top of her. Norberto was mashing
d. AAA tried to push Norberto away and pleaded to have pity on her but her pleas fell on deaf ears. She fought back

r not totell the incident to her mother otherwise, she will be killed. AAA went out of the tent to seek help from Jess (th

parts of BBB. AAA saw her companion awake but her hands wereshaking. When she finally entered the tent, Norbe

g. Later still, while they were on their way to fetch water, AAA and BBB asked the people around where they can find

re they met a policeman by the name of "Sabas".

to the police station where he personally confronted his accusers. When Norberto’s wife, Belinda, arrived at the polic

ed the complainants to return at6:00 o’clock in the morning. Norberto and Belinda were still able to bring AAA and BB

worn statements against Norberto.

Version of the Defense

sailed decision of the CA,7 as follows:

ory. The accused maintains that it was not possible for him to commit the crimes hurled against him. On the date of th
, he could not possibly do the dastardly acts out in the open, not to mention the fact that once AAA and BBB would s
money from him.

Judgment of the RTC

finding the petitioner guilty beyond reasonable doubt of attempted rape in Criminal Case No. 2388 and acts of lasciv

e accused NORBERTO CRUZ Y BARTOLOME guilty beyond reasonable doubt of the crimes of ATTEMPTED RAPE
o the crime of ATTEMPTED RAPE, the Court hereby sentences the accused to suffer an indeterminate penalty of im
provided for by law and to pay the victim AAA the amount of ₱20,000.00 as moral damages.

ccused to suffer an indeterminate penalty of imprisonment from FOUR (4) MONTHS ARRESTO MAYOR as Minimu
10,000.00 as moral damages.

d in his favor.

Decision of the CA

ed rape despite the dubious credibility of AAA, and of acts of lasciviousness despite the fact that BBB did not testify.

or attempted rape in Criminal Case No. 2388, but acquitting him of the acts of lasciviousness charged in Criminal Ca

ent, even slightly, the overall integrity and probative value of the prosecution's evidence insofar as AAA is concerned

alty lower by two (2) degrees" prescribed by law for the consummated felony. In this case, the penalty for rape if it ha
wer than reclusion perpetuais prision mayor.

edium period of prision mayorin the absence of any mitigating or aggravating circumstance and the minimum shall be

al damages against the accused-appellant. In a rape case, moral damages may be awarded without the need of pro

hat there is not enough evidence to support such accusation. BBB did not testify and neither her sworn statement wa

ge of acts of lasciviousness against the accusedappellant. The basis of the complaint for acts of lasciviousness is the
y. While AAA claims that she personally saw the accused touching the private parts of BBB, there was no testimony

Issues

jurisprudence, particularly:

ged victim; and

rove the guilt of the petitioner beyond reasonable doubt.

at AAA still continued working for him and his wife until December 30, 1994 despite the alleged attempted rape in the
an hour before, because her bra was locked at her back; that her testimony about his having been on top of her for n
her fertileimagination; that the record does not indicate if he himself was also naked, or that his penis was poised to

AA that cast doubt on her veracity.

 Ruling of the Court

No review of the findings of fact by the CA is involved. As a consequence of thisrule, the Court accords the highest
actual findings, particularly when they are affirmed by the CA. Judicial experience has shown, indeed, that the trial c
he manner of testifying under exacting examination. As such, the contentionsof the petitioner on the credibility of AA
ch is not a trier of facts, review the entire evidence adduced by the Prosecution and the Defense.

of whether or not the petitioner’s climbing on top of the undressed AAA such thatthey faced each other, with him ma
tion, supra, he committed such acts "with intent of having carnal knowledge ofher by means of force, and if the accu
esisting the criminal attempt of said accused to the damage and prejudice of said offended party."

ommences the commission of a felony directly by overt acts, and does not perform all the acts of execution which sho
t Justice Claro M.Recto, eruditely expounded on what overt acts would constitute anattempted felony, to wit:

t which has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of the offe
ective is ambiguous, is not a juridical fact from the standpoint of the Penal Code. xxxx But it is not sufficient, for the p
al and natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one
hout being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and neces

rial damage iswanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same mus
he circumstances of the persons performing the same, and by the things connected therewith, they must show withou
cent aswell as a punishable act, must not and cannot furnish grounds by themselves for attempted or frustrated crime
rom the facts and therefore it is necessary, in order to avoid regrettable instance of injustice, that the mind be able to
t, the offender must commence the commission of the felony directly by overt acts, that is to say, that the acts perfor

ave to determine the law on rape in effect on December 21, 1993, when the petitioner committed the crime he was co

edge of a woman under any of the following circumstances:

circumstances mentioned in the two next preceding paragraphs shall be present.

xxxx

e isdefined simply as "theact of a man having sexual bodily connections with a woman," 16 which explains why the slig
genitalia of the female.17 In People v. Campuhan,18 the Court has defined the extent of "touching" by the penis in rap

king or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina, or the mo
surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be "touch
urface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consum

the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The m
mposed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair
Jurisprudence dictates that the labia majoramust be entered for rape to be consummated, and not merely for the pen
summated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of t

20 whereby the offender was declared guilty of frustrated rapebecause of lack of conclusive evidence of penetration o
its frustrated stage is a physical impossibility, considering that the requisites of a frustrated felony under Article 6 of t
pendent of the perpetrator’s will. Obviously, the offender attains his purpose from the moment he has carnal knowled

overt actsfor purposes of the attempted stage has been explained in People v. Lizada:22

to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete terminati
e offense. The raison d’etrefor the law requiring a direct overtact is that, in a majority of cases, the conduct of the ac
must be lacking before the act becomes one which may be said to be a commencement of the commission of the cri
inty what the intent of the accused is.It is necessary that the overt act should have been the ultimate step towards th
The act done need not constitute the last proximate one for completion. It is necessary, however, that the attempt m

all the acts of execution of having carnal knowledge. If the slightest penetration of the female genitalia consummates
should produce the felony, the only means by which the overt acts performed by the accused can be shown to have
al law,23 that showing must be through his overt acts directly connected with rape. He cannot be held liable for attem
ent be carried to its complete termination without being thwarted by extraneous matters, would ripen into rape,24 for,
rcourse, i.e., penetration of the penis into the vagina, before the interruption."

th his hands and mashing her breasts when she freed herself from his clutches and effectively ended his designs on
r being fully manifest. Such circumstances remained equivocal, or "susceptible of double interpretation," as Justice R
clusively be rapehad he been allowed by her to continue, and to have sexual congress with her, for some other felon

pe did not include equivocal preparatory acts. The former would have related to his acts directly connected to rape as
der him guilty of an attempt to commit such felony.27 His preparatory acts could include his putting up of the separate
s. Such acts, being equivocal, had no direct connection to rape. As a rule, preparatory acts are not punishable unde
erpetrator’s intent really was. 28

viousness?

ness is the offender’sintent to lie with the female. In rape, intent to lie with the female is indispensable, but this eleme
o penetrate is manifest only through the showing of the penis capable of consummating the sexual act touching the e
summated whenthe following essential elements concur, namely: (a) the offender commits any act of lasciviousness
y is deprived ofreason or is otherwise unconscious; or (iii) when the offended party is under 12 years of age. 32 In tha
3

n top of said AAA embracing and touching her vagina and breast." With such allegation of the information being com
did not directly manifest his intent to lie with her. The lack of evidence showing his erectile penis being in the positio

own declaration of it, if any, unless he committed overt acts directly leading to rape. A good illustration of this can be
ully, unlawfully and feloniously commence the commission of the crime of Rape directly by overt acts, by then and the
n which would have produced the crime of Rape by reason of some causes other than his own spontaneous desista
actdescribed," and the intent to have sexual intercourse with her was not inferable from the act of licking her genitalia

civiousness, is punished with prision correccional. In the absence of modifying circumstances, prision correccional is
nimum of the penalty should come from arresto mayor, the penalty next lower than prision correccionalwhich ranges
onths and one day of prision correccional, as the maximum.

chastity by his lewdness.1âwphi1 "Moral damages include physical suffering, mental anguish, fright, serious anxiety,
y are the proximate result of the defendant's wrongful act for omission." 36 Indeed, Article 2219, (3), of the Civil Code
30,000.00 is a reasonable award of moral damages.38 In addition, AAA was entitled to recover civil indemnity of ₱20

erest as a part of the damages in crimes and quasidelicts. In that regard, the moral damages of ₱20,000.00 shall earn

TOLOME guilty of ACTS OF LASCIVIOUSNESS, and, ACCORDINGLY, PENALIZES him with the indeterminate sen
amages of ₱30,000.00 and civil indemnity of ₱20,000.00 to the complainant, with interest of 6% per annum on such

MARIA LOURDES P. A. SERENO

Chief Justice

TERESITA J. LEONARDO-DE CASTRO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice
 CERTIFICATION

bove Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Cour

eased), and concurred in by Associate Justice Delilah Vidallon-Magtolis (retired) and Associate Justice Arturo D. Brio

7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act); Republic Act No. 92
Children). See also People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, 421-423.

note 2.

ppeal by certiorarifrom a judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of
he petition may include an application for a writ of preliminary injunction or other provisional remedies and shall raise
eeding at any time during its pendency.
lack’s Law Dictionary, Fifth Edition, p. 193.

179, 202.

58), Central Book Supply, Inc., Manila, p. 29., to wit:

vidual puts his organism into motion. In order to produce some change or effect in the external world, it being unnec
be, cannot constitute a felony because the act must be external, and internal acts are beyond the sphere of criminal

ction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age, committe

paratory acts remain unpunished unless the Revised Penal Codepenalizes them (e.g., conspiracy and proposal to co
unterfeiting (Article 176, paragraph 2, Revised Penal Code); and possession of picklocks or similar tools adapted to

SCRA 328, 333.

; citing People v. Collado, G.R. Nos. 135667-70, March 1, 2001, 353 SCRA 381, 392.
ous cases:

xxxx

xxxx

61; People v. Domingo, G.R. No. 184343, March 2, 2009, 580 SCRA 436, 459.

Republic of the Philippines

Supreme Court
Manila
THIRD DIVISION
PEOPLE OF THE PHILIPPINES, G. R. No. 172321
Plaintiff-Appellee,
Present:

CARPIO MORALES, Chairperson,

-versus-
BRION,
PERALTA,*
BERSAMIN, and
VILLARAMA, JR., JJ.
RENATO DADULLA y
CAPANAS, Promulgated:
Defendant-Appellant. February 9, 2011
 x----------------------------------------------------------------------------------------x

DECISION

BERSAMIN, J:

A rapacious father who vented his lust on his own daughter without any qualms is allowed to
suffer the lesser penalty because of the failure of the criminal information to aver his relationship
with the victim. Even so, the Court condemns his most despicable crime.
The father is now before the Court to assail the decision promulgated on January 20,
2006 in C.A.-G.R. CR.-H.C. No. 01021, whereby the Court of Appeals (CA) pronounced him
guilty beyond reasonable doubt of simple rape in Criminal Case No. 98-2304,
imposing reclusion perpetua, and of acts of lasciviousness in Criminal Case No. 98-2305,
thereby modifying the sentences handed down by the Regional Trial Court, Branch 272 (RTC),
in Marikina City.[1]

The Charges

On January 28, 1998, the accused was charged in the RTC with rape and attempted rape through
separate informations, as follows:

Criminal Case No. 98-2304-MK

That on or about the 15th day of January, 1998 in the City of Marikina,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, by means of threats, force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge with AAA,[2] against her will
and consent.[3]

Criminal Case No. 98-2305-MK

 That on or about the 22nd day of January, 1998 in the City of Marikina,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, by means of force, violence and intimidation and with lewd design, did
then and there willfully, unlawfully and feloniously try and attempt to have carnal
knowledge of herein complainant one AAA, thus commencing the commission of
the crime of rape directly by overt acts but did not perform all the acts of
execution that could have produced the crime of rape by reason of cause or causes
other than his own spontaneous desistance.[4]

Evidence of the Prosecution

In the evening of January 15, 1998, AAA, then sleeping in the bedroom that she and her
five younger siblings shared with their father, was roused from sleep by someone undressing
her.[5] It was her father. AAA resisted, but the accused, wielding a bladed weapon,[6] threatened
to kill her if she shouted.[7] The accused then forcibly kissed her on the lips, mashed her breasts,
touched her private parts, and had carnal knowledge of her. After her ordeal, she put on her
garments and just cried.[8] She recalled that her father had first sexually abused her on February
14, 1992.[9]

On January 22, 1998, AAA was again roused from sleep by her father touching her body.
Noticing that her shorts were already unzipped and unbuttoned, she zipped and buttoned them up
and covered herself with a blanket. But her father pulled the blanket away and tried to unzip her
shorts. However, she was able to go under the wooden bed to evade him. She resisted his
attempts to pull her out from under the bed by firmly holding on to the bed. She told him that she
would not get out from under the bed because what he was doing to her was bad.[10] Upon
hearing her, he stopped and withdrew, telling her to leave the house. He then went to sleep. [11] In
the meanwhile, BBB, AAAs younger sister, was awakened by what she thought was an argument
between her father and AAA. She heard him tell AAA: Tumigil ka na nang kaiiyak, wala ka
nang pakinabang. AAA just cried under the bed and did not say anything. BBB soon fell
asleep,[12] but AAA could not sleep and remained under the bed until morning when the accused
left to ply his jeepney route.[13]

Upon waking up, BBB saw her father as he was about to leave the house. She heard him
telling AAA to leave the house.[14]As soon as he had left, BBB approached the crying AAA and
asked what had happened to her. AAA related her ordeal and pleaded with BBB to help
her.[15] Together, they went to their uncle, CCC, to report the incident. CCC queried AAA
whether she wanted her father to be thrown in jail, and she replied in the affirmative. Thus, CCC
requested his wife to accompany AAA to the barangay to file a complaint. Later, AAA and
CCCs wife went to Camp Crame for the physical and genital examinations, which established
that AAA had a deep healed hymenal laceration at 5:00 oclock position.[16]

Evidence of the Defense

 The accused denied molesting AAA. He narrated that on January 15, 1998, AAA and
BBB left the house at around 6:30 p.m. to watch television elsewhere and returned only at
around 11:00 p.m.; that on January 22, 1998, he scolded AAA for her failure to cook on time;
that at around 4:00 a.m. of January 23, 1998, he struck AAAs face with his fist (dinunggol sa
mukha) and told her to leave the house because he was slighted by AAAs laughing instead of
answering his query of whether she had understood why he had scolded her the previous night;
and that AAA was no longer a virgin due to her having been raped by Joel Cloma in 1992, and
by another man in 1993.[17]

The RTC Decision

On March 24, 1999, the RTC found the accused guilty of rape in Criminal Case No. 98-
2304-MK, and imposed the death penalty, ordering him to pay to AAA P50,000.00 as civil
indemnity and P20,000.00 as moral damages; and of attempted rape in Criminal Case No. 98-
2305-MK, and imposed the indeterminate penalty of four years, nine months, and eleven days
of prision correccional, as minimum, to five years, four months, and twenty days, as maximum,
ordering him to pay to AAA P20,000.00 as moral damages.

The CA Decision

On appeal, the accused assigned the following errors, to wit:

I.
THE TRIAL COURT ERRED IN IMPOSING THE DEATH PENALTY IN
CRIMINAL CASE NO. 98-2304 DESPITE THAT ACCUSED WAS NOT
PROPERLY INFORMED OF THE NATURE AND CAUSE OF ACCUSATION
AGAINST HIM WHICH IS IN VIOLATION OF HIS CONSTITUTIONAL
RIGHT.

II.
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF
ATTEMPTED RAPE DOCKETED AS CRIMINAL CASE NO. 98-2305.

Nonetheless, the CA disposed in its decision promulgated on January 20, 2006:

WHEREFORE, the Decision appealed from is AFFIRMED with the

following MODIFICATION:

In Criminal Case No. 98-2304-MK, accused-appellant Renato Dadulla y

Capanas is found guilty beyond reasonable doubt of simple rape and is sentenced
to suffer the penalty of reclusion perpetua. Accused-appellant is also ordered to
pay AAA moral damages in the amount of P50,000.00, in addition to civil
indemnity in the amount of P50,000.00.

In Criminal Case No. 98-2305-MK, accused-appellant Renato Dadulla y

Capanas, is found guilty beyond reasonable doubt of the crime of acts of
 lasciviousness and is sentenced to suffer an indeterminate penalty of 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 the amount of P30,000.00
as moral damages.

SO ORDERED.

The CA held that the correct penalty in Criminal Case No. 98-2304-MK was reclusion
perpetua because the accused was liable only for simple rape by virtue of the information not
alleging any qualifying circumstances; and that in Criminal Case No. 98-2305-MK the accused
was guilty only of acts of lasciviousness, not attempted rape, because his act of opening the
zipper and buttons of AAAs shorts, touching her, and pulling her from under the bed constituted
only acts of lasciviousness.

Ruling of the Court

We sustain the conviction but correct the award of civil liability.

I
Criminal Liabilities

The CA correctly determined the criminal liabilities in both cases.

To begin with, the finding and conclusion of the RTC that the totality of the evidence
presented by the State painted a convincing tale of AAAs harrowing experience at the hands of
the accused are well founded and supported by the records. Her unwavering testimonial account
of the bestiality of her own father towards her reflected her singular reliability. The CAs holding
that a woman would think twice before concocting a story of rape unless she was motivated by a
desire to seek justice for the wrong committed against her[18] was apt and valid. Indeed, her
revelation of being sexually assaulted by her own father several times could only proceed from
innate sincerity, and was entitled to credence in the absence of strong showing by the accused of
grounds to disbelieve her. Also, her immediate willingness to report to and face the police
investigation and to undergo the trouble and humiliation of a public trial was a badge of
trustworthiness.

Secondly, the failure to allege the qualifying circumstance of relationship in the

information in Criminal Case No. 98-2304-MK precluded a finding of qualified rape against the
accused. Section 8,[19] Rule 110 of the Rules of Court has expressly required that qualifying and
aggravating circumstances be specifically alleged in the information. Due to such requirement
being pro reo, the Court has authorized its retroactive application in favor of even those charged
with felonies committed prior to December 1, 2000 (i.e., the date of the effectivity of the 2000
revision of the Rules of Criminal Procedure that embodied the requirement).[20]

The term aggravating circumstance is strictly construed when the appreciation of the
modifying circumstance can lead to the imposition of the maximum penalty of
death.[21] Consequently, the qualifying circumstance of relationship, even if established during
trial, could not affect the criminal penalty of the accused by virtue of its non-allegation in the
information. The accused could not be convicted of the graver offense of qualified rape, although
proven, because relationship was neither alleged nor necessarily included in the
information.[22] Accordingly, the accused was properly convicted by the CA for simple rape and
justly punished with reclusion perpetua.

Thirdly, it is notable that the RTC outrightly concluded that the crime committed
on January 22, 1998 constituted attempted rape, after quoting the testimony of AAA and BBB. It
offered no analysis or discussion of why the accused was criminally liable for attempted rape.
The omission contravened Section 14,[23] Article VIII of the Constitution, as reiterated in Section
1,[24] Rule 120 of the Rules of Court, which enjoined that decisions should state clearly and
distinctly the facts and the law on which they are based.[25]

Nonetheless, the omission did not invalidate or render ineffectual the conviction, for the
CA in due course reformed the RTCs error. In its disquisition on why the accused should be held
liable for acts of lasciviousness, instead of attempted rape, the CA explained the true nature of
the crime of the accused thus:
We likewise agree with accused-appellant that the court a quo erred in
convicting him of attempted rape in Criminal Case No. 98-2305-MK. In
connection with the incident that transpired on January 22, 1998, Liza testified as
follows:

Pros. Dela Pea:

Q: While you were sleeping in the evening on January 22, 1998, do you
recall of any instance (sic) or incident which awakened you?

Witness:

A: Yes, sir.

Q: Again Miss Witness, tell us this incident that you are referring to?

A: While I was sleeping, I was awakened that my zipper was already opened
and my buttons were already loosened.

Q: And upon noticing that the zipper and the buttons of your short[s] are
already loosened or opened, what did you do?

A: I zipped it again and unbuttoned it.

Q: Was your father there on that night?

A: Yes, sir.
Q: What about your brother and sisters?

A: They were already asleep.

Q: Like on January 15, 1998, you slept, on January 22, 1998, you slept side
by side with your brothers and sisters and your father?

A: Yes, sir.

Q: Did you notice the presence of your father when you said you were
awakened on that night?

A: Yes, sir.

Q: What was he doing?

A: He was sitting and touching me, sir.

Q: How far was he from you?

A: He was near me.

Q: And upon seeing your father near you and the button and zipper of
your short[s] was open, what did you do?

A: I zipped and unbuttoned my short[s] and covered myself with

blanket.

Q: Why did you cover yourself with blanket?

A: Because I do not want to see him beside me.

Q: Did you not ask your father to leave because you do not want to see
him?

A: I told him.

Q: Did your father leave?

A: No, sir.

Q: Why dont you like your father beside you?

A: Because of these things he was doing to me.

Q: And after covering yourself with blanket, what transpired next?

 A: He removed the blanket from me, sir.

Q: And after that, what happened?

A: He was forcibly opening my short[s].

Q: What did you do when your father was forcibly opening your
short[s]?

A: I covered myself under the wooden bed.

Q: How wide is this wooden bed?

A: From that wall up to the rostrum.

Pros. Dela Pea:

About a distance of two meters in width. Why did you hide yourself under
the wooden bed?

A: In order not to repeat what he was doing to me.

Q: After you hi[d] yourself under the wooden bed, what did your father
did [sic] to you?

A: He held me on my hands and tried to pull me out under the wooden

bed.

Q: And was your father able to pull you out under the wooden bed?

A: No sir.

The act of accused-appellant in opening the zipper and buttons of the

shorts of Liza, touching her and pulling her when she hid under the bed
showed that he employed force on Liza and was motivated by lewd
designs. The word lewd is defined as obscene, lustful, indecent, and
lecherous. It signifies that form of immorality which has relation to moral
impurity; or that which is carried in a wanton manner. Thus, the crime
committed by accused-appellant is merely acts of lasciviousness, which is
included in rape. The elements of the crime of acts of 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.[26]

According to People v. Collado,[27] the difference between attempted rape and acts of
lasciviousness lies in the intent of the perpetrator as deduced from his external acts. The
intent referred to is the intent to lie with a woman.[28] Attempted rape is committed when
the touching of the vagina by the penis is coupled with the intent to penetrate; otherwise,
there can only be acts of lasciviousness.[29] Thus, the accuseds act of opening the zipper and
buttons of AAAs shorts, touching her, and trying to pull her from under the bed
manifested lewd designs, not intent to lie with her. The evidence to prove that a definite
intent to lie with AAA motivated the accused was plainly wanting, therefore, rendering him
guilty only of acts of lasciviousness in Criminal Case No. 98-2305-MK.

And, fourthly, the indeterminate penalty imposed by the RTC was erroneous for not
being in accord with the Indeterminate Sentence Law. This impelled the CA to revise the
indeterminate penalty, rationalizing:

Under Article 336 of the Revised Penal Code, the penalty for acts of
lasciviousness is prision correccional. We impose the penalty in its medium
period, there being no aggravating or mitigating circumstance alleged and proved.
Applying the Indeterminate Sentence Law, the proper penalty imposable is from
six months of arresto mayor, as minimum, to four years and two months
of prision correccional, as maximum.[30]

We uphold the revision by the CA. The RTC fixed the minimum of the indeterminate
penalty from within prision correccional, when Section 1[31] of the Indeterminate Sentence
Law expressly required that the minimum shall be within the range of the penalty next lower to
that prescribed by the Code for the offense. The penalty next lower is arresto mayor.

II
Civil liability must be modified

Under Article 2230 of the Civil Code,[32] the attendance of any aggravating circumstance
(generic, qualifying, or attendant) entitles the offended party to recover exemplary damages.
Here, relationship was the aggravating circumstance attendant in both cases. We need to
award P30,000.00 as exemplary damages in rape and of P10,000.00 as exemplary damages in
acts of lasciviousness.

Although, as earlier mentioned, an aggravating circumstance not specifically alleged in

the information (albeit established at trial) cannot be appreciated to increase the criminal liability
of the accused, the established presence of one or two aggravating circumstances of any kind or
nature
entitles the offended party to exemplary damages under Article 2230 of the Civil Code because
the requirement of specificity in the information affected only the criminal liability of the
accused, not his civil liability. The Court has well explained this in People v. Catubig:[33]

The term aggravating circumstances used by the Civil Code, the law not
having specified otherwise, is to be understood in its broad or generic sense. The
commission of an offense has a two-pronged effect, one on the public as it
breaches the social order and the other upon the private victim as it causes
personal sufferings, each of which is addressed by, respectively, the prescription
of heavier punishment for the accused and by an award of additional damages to
the victim. The increase of the penalty or a shift to a graver felony underscores the
exacerbation of the offense by the attendance of aggravating circumstances,
whether ordinary or qualifying, in its commission. Unlike the criminal liability
which is basically a State concern, the award of damages, however, is
likewise, if not primarily, intended for the offended party who suffers
thereby. It would make little sense for an award of exemplary damages to be
due the private offended party when the aggravating circumstance is
ordinary but to be withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a distinction that should
only be of consequence to the criminal, rather than to the civil, liability of the
offender. In fine, relative to the civil aspect of the case, an aggravating
circumstance, whether ordinary or qualifying, should entitle the offended
party to an award of exemplary damages within the unbridled meaning of
Article 2230 of the Civil Code.

That People v. Catubig was subsequent to the dates of the commission of the crimes
charged did not matter. Like any other judicial interpretation of an existing law, the ruling
in People v. Catubig settled the circumstances when Article 2230 of the Civil Code applied,
thereby reflecting the meaning and state of that legal provision. The retroactivity of the
ruling vis--vis the accused could not be challenged or be barred by virtue of its being civil, not
penal, in effect.

WHEREFORE, the Decision promulgated on January 20, 2006 in CA-G.R. CR-H.C.

No. 01021 is affirmed in all respects, subject to the modification that the civil liabilities
include P30,000.00 as exemplary damages for the rape (Criminal Case No. 98-2034-MK),
and P10,000.00 as exemplary damages for the acts of lasciviousness (Criminal Case No. 98-
2035-MK).

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:
 CONCHITA CARPIO MORALES
Associate Justice
Chairperson

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

RENATO C. CORONA
Chief Justice

*
In lieu of Justice Maria Lourdes P. A. Sereno who is on leave per Office Order No. 944
dated February 9, 2011.
[1]
Rollo, pp. 3-14; penned by Associate Justice Marina L. Buzon (retired), with Associate Justice
Aurora Santiago-Lagman (retired) and Associate Justice Arcangelita Romilla-Lontok (retired),
concurring.
[2]
Pursuant to Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act
of 2004), and its implementing rules, the real names of the victims, as well as those of their
immediate families or household members, are withheld and instead fictitious initials are used to
represent them, to protect their privacy. See People v. Cabalquinto, G.R. No. 167693, September
19, 2006, 502 SCRA 419.
[3]
CA Rollo, pp. 4-5.
[4]
Id., pp. 6-7.
[5]
TSN, June 3, 1998, p. 10.
[6]
Id., p. 46.
[7]
Id., p. 10.
[8]
Id., pp. 11-18.
[9]
Id., p. 16.
[10]
Id., pp. 22-26.
[11]
Id., p. 26.
[12]
TSN, June 9, 1998, pp. 20-21.
[13]
TSN, June 3, 1998, pp. 26-27.
[14]
Id., p. 24.
[15]
Id., pp. 25-26.
[16]
Exhibit Folder No. 2, Exhibits for the Plaintiff, marked as Exhibit B.
[17]
TSN, June 24, 1998, pp. 3-16.
[18]
Rollo, p. 11.
[19]
Sec. 8. Designation of the offense. The complaint or information shall state the designation of
the offense given by the statute, aver the acts or omissions constituting the offense, and specify
its qualifying and aggravating circumstances. If there is no designation of the offense,
reference shall be made to the section or subsection of the statute punishing it.
[20]
People v. Mondijar, G.R. No. 141914, November 21, 2002, 392 SCRA 356; People v.
Marquez, G.R. No. 136736, April 11, 2002, 380 SCRA 561.
[21]
People v. Orilla, G.R. No. 148939-40, February 13, 2004, 422 SCRA 620, 640.
[22]
People v. Flores, Jr., G. R. No. 128823-24, December 27, 2002, 394 SCRA 325, 333.
[23]
Section 14. No decision shall be rendered by any court without expressing therein clearly and
distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall be refused
due course or denied without stating the legal basis therefor.
[24]
Section 1. Judgment; definition and form. Judgment is the adjudication by the court that the
accused is guilty or not guilty of the offense charged and the imposition on him of the proper
penalty and civil liability, if any. It must be written in the official language, personally and
directly prepared by the judge and signed by him and shall contain clearly and distinctly a
statement of the facts and the law upon which it is based. (1a).
[25]
People v. Ernas, G.R. Nos. 137256-58, August 6, 2003, 408 SCRA 391; People v. Bugarin,
G.R. Nos. 110817-22, June 13, 1997, 273 SCRA 384.
[26]
Rollo, pp. 12-15; bold underscoring is supplied for emphasis.
[27]
G.R. Nos. 135667-70, March 1, 2001, 353 SCRA 381, 392.
[28]
People v. Mendoza, G.R. Nos. 152589 and 152758, January 31, 2005, 450 SCRA 328, 333.
[29]
Supra, note 28.
[30]
Rollo, p. 15.
[31]
Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum which shall be within the
range of the penalty next lower to that prescribed by the Code for the offense; and if the offense
is punished by any other law, the court shall sentence the accused to an indeterminate sentence,
the maximum term of which shall not exceed the maximum fixed by said law and the minimum
shall not be less than the minimum term prescribed by the same. (As amended by Act No. 4225)
[32]
Article 2230. In criminal offenses, exemplary damages as a part of the civil liability may be
imposed when the crime was committed with one or more aggravating circumstances. Such
damages are separate and distinct from fines and shall be paid to the offended party.
[33]
G.R. No. 137842, August 23, 2001, 363 SCRA 621, 635 (bold emphasis supplied).

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 183619

Appellee,
Present:

CARPIO, J.,
Chairperson,
- versus - CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:
SALVINO SUMINGWA,
Appellant. October 13, 2009

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

DECISION

NACHURA, J.:

On appeal before us is the January 31, 2008 Court of Appeals (CA) Decision[1] in CA-G.R. CR
No. 30045 affirming with modification the February 14, 2006 Regional Trial Court[2] (RTC)
Consolidated Judgment[3] against appellant Salvino Sumingwa in Criminal Case Nos. 1644 and
1645 for Acts of Lasciviousness; 1646, 1649 and 1654 for Rape; 1651 for Attempted Rape; and
1655 for Unjust Vexation. Assailed also is the June 5, 2008 CA Resolution[4] denying appellants
motion for reconsideration.

In twelve Informations, the prosecution charged appellant with two (2) counts of Acts of
Lasciviousness,[5] four (4) counts of Rape,[6] three (3) counts of Unjust Vexation,[7] one (1) count
of Other Light Threats,[8] one (1) count of Maltreatment,[9] and one (1) count of Attempted
Rape[10] for acts committed against his minor[11] daughter AAA from 1999-2001.

Appellant pleaded not guilty to all the charges. On September 24, 2004, the RTC
dismissed[12] Criminal Case Nos. 1647 for Rape; 1648 for Unjust Vexation; 1650 for Other Light
Threats; 1652 for Unjust Vexation; and 1653 for Maltreatment, on the basis of the Demurrer to
Evidence[13] filed by appellant.

Sometime in August 1999, between 8:00 and 10:00 in the morning, AAA, together with
her brothers and her father, appellant herein, was in their residence in Mountain Province,
watching television. Appellant called AAA and ordered her to sit in front of him. As she was
sitting, appellant told her that it was not good for a girl to have small breasts. Suddenly, he
inserted his hands into AAAs shirt then fondled her breast. AAA resisted by moving her hands
backwards.[14]

One afternoon in September 1999, AAAs mother and brothers went to school leaving AAA and
appellant in their house. While in the masters bedroom, appellant ordered AAA to join him
inside. There, appellant removed his undergarments then forced her to grasp and fondle his penis
until he ejaculated. Appellant thereafter told her not to be malicious about it.[15]
The same incident took place in August 2000. This time, appellant forced AAA to lie down on
the bed, went on top of her, removed her short pants and panty, then rubbed his penis against her
vaginal orifice. AAA resisted by crossing her legs but appellant lifted her right leg and partially
inserted his penis into her vagina. As she struggled, appellant stood up then ejaculated. AAA felt
numbness on her buttocks after the bestial act committed against her.[16]

Appellant repeated his dastardly act against AAA on separate occasions in September and
November 2000. During these times, appellant satisfied himself by rubbing his penis against
AAAs vagina without trying to penetrate it. After reaching the top of his lust, he used AAAs
short pants to wipe his mess. Instead of keeping her harrowing experience to herself, AAA
narrated it to her best friend.[17]

On November 24, 2000, appellant approached AAA and told her that he wanted to have sex with
her. When she refused, appellant forcibly removed her pants and boxed her right buttock. AAA
still refused, which angered appellant. He then went to the kitchen and returned with a bolo
which he used in threatening her. Luckily, AAAs grandmother arrived, prompting appellant to
desist from his beastly desires.[18]

On December 20, 2000, AAA and her best friend were doing their school work in front of the
formers house. When appellant arrived, he embraced AAA. He, thereafter, pulled her inside the
house and kissed her on the lips.[19]
The last incident occurred inside the comfort room of their house on May 27, 2001. When AAA
entered, appellant pulled down her short pants and panty, unzipped his trousers, brought out his
penis, then repeatedly rubbed it on her vagina while they were in a standing position.[20]

AAA decided to report the sexual abuses to her grandmother who forthwith brought her to the
National Bureau of Investigation where she was examined by the medico-legal officer. It was
found during the examination that there were no extragenital physical injuries on AAAs body but
there were old, healed, and incomplete hymenal lacerations.[21]

Appellant denied all the accusations against him. He claimed that in August and September
1999, he was at the house of his mistress in Antipolo City. He also explained that in August
2000, he stayed in Baguio City and worked there as a karate instructor.He added that he only
went home in September 2000 but left again in October for Quirino, Ilocos Sur where he stayed
for three weeks. When he went back home, his wife informed him that AAA had not been
coming home. Thereafter, appellant went to Baguio City to buy medicine for his wife, then
returned home again on the third week of December 2000. While there, he was confronted by his
wife about his womanizing. His wife got mad and refused to forgive him despite his repeated
pleas. Consequently, he became furious and almost choked his wife to death when she ignored
and refused to talk to him. This prompted him to leave and go back to Baguio.[22]

Sometime in April 2001, appellant went back home to reconcile with his wife. While talking to
his wife and the latters family, his mother-in-law berated him and demanded his separation from
his wife. Appellant got mad and threatened to kill his wifes family. His mother-in-law, in turn,
threatened to file charges against him.[23]

To belie the claim of AAA that she was sexually abused in August, November and December
2000, allegedly during school hours, her teacher testified that the former was not absent in class
during those times.[24]

On November 24, 2004, AAA executed an Affidavit of Recantation[25] claiming that while
appellant indeed committed lascivious acts against her, she exaggerated her accusations against
him. She explained that appellant did not actually rape her, as there was no penetration. She
added that she charged appellant with such crimes only upon the prodding of her mother and
maternal grandmother.

On February 14, 2006, the RTC rendered a decision convicting appellant of six (6) counts of acts
of lasciviousness,[26] one (1) count of attempted rape[27] and one (1) count of unjust
vexation,[28] the dispositive portion of which reads:

WHEREFORE, a Consolidated Judgment is hereby rendered sentencing Salvino

Sumingwa to suffer

1. The penalty of six (6) months of [arresto mayor] as minimum to six (6)
years of [prision correccional] as maximum; and ordering him to pay the
offended party P10,000.00 [as] indemnity [ex-delicto], P10,000.00 as moral
 damages and P5,000.00 as exemplary damages for each count of Acts of
Lasciviousness charged in Crim. Cases 1644, 1645, 1646, 1649 and 1654;

2. The penalty of six (6) years of [prision correccional] as minimum to

twelve (12) years of [prision mayor] as maximum; and ordering said offender to
pay the victim P15,000.00 as indemnity [ex-delicto], P15,000.00 as moral
damages and P10,000.00 as exemplary damages in Crim. Case 1651 for
Attempted Rape; and

3. The penalty of thirty (30) days of [arresto menor] and fine of P200.00
for Unjust Vexation in Crim. Case 1655.

SO ORDERED.[29]

The trial court gave credence to AAAs testimonies on the alleged lascivious acts committed
against her. In view of the withdrawal of her earlier claim of the fact of penetration, the court
sustained the innocence of appellant on the rape charges and concluded that the crime committed
was only Acts of Lasciviousness.

In Criminal Case No. 1651, the RTC found that appellant committed all the acts of execution of
the crime of Rape, but failed to consummate it because of the arrival of AAAs
grandmother. Hence, he was convicted of attempted rape. In embracing and kissing AAA in full
view of the latters best friend, appellant was convicted of Unjust Vexation.

On appeal, the CA affirmed the conviction of appellant, except that in Criminal Case No. 1646;
it convicted him of Qualified Rape instead of Acts of Lasciviousness. The pertinent portion of
the assailed decision reads:

WHEREFORE, premises considered, herein appeal is

hereby DISMISSED for evident lack of merit and the assailed Consolidated
Judgment dated 14 February 2006 is hereby AFFIRMED with the following
MODIFICATION:

1. The Appellant SALVINO SUMINGWA is hereby convicted of the

crime of QUALIFIED RAPE in Criminal Case No. 1646and the
penalty of RECLUSION PERPETUA is hereby imposed upon
him. The Appellant is likewise ordered to pay the Victim, [AAA],
civil indemnity in the amount of Php75,000.00 as well as moral
damages in the amount of Php50,000.00, in conformity with
prevailing jurisprudence.

2. In Criminal Case No. 1651 for Attempted Rape, the Appellant, is

hereby ordered to indemnify the victim [AAA] in the sum
of P30,000.00 as civil indemnity, plus the sum of P25,000.00 as
moral damages.
 SO ORDERED.[30]

The appellate court concluded that, notwithstanding AAAs retraction of her previous
testimonies, the prosecution sufficiently established the commission of the crime of Rape. It
added that the qualifying circumstances of minority and relationship were adequately proven.

Hence, this appeal.

First, in light of the recantation of AAA, appellant questions the credibility of the
prosecution witnesses and insists that his constitutional right to be presumed innocent be
applied.[31] Second, he argues that in Criminal Case No. 1651 for Attempted Rape, he should
only be convicted of Acts of Lasciviousness, there being no overt act showing the intent to have
sexual intercourse.[32] Lastly, he insists that he could not be convicted of all the charges against
him for failure of the prosecution to show that he employed force, violence or intimidation
against AAA; neither did the latter offer resistance to appellants advances.[33]

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. When a rape victims
testimony is straightforward and marked with consistency despite grueling examination, it
deserves full faith and confidence and cannot be discarded.[34] If such testimony is clear,
consistent and credible to establish the crime beyond reasonable doubt, a conviction may be
based on it, notwithstanding its subsequent retraction. Mere retraction by a prosecution witness
does not necessarily vitiate her original testimony. [35]

A retraction is looked upon with considerable disfavor by the courts.[36] It is exceedingly

unreliable for there is always the probability that such recantation may later on be repudiated. It
can easily be obtained from witnesses through intimidation or monetary consideration.[37] Like
any other testimony, it is subject to the test of credibility based on the relevant circumstances
and, especially, on the demeanor of the witness on the stand.[38]

As correctly held by the CA, AAAs testimony is credible notwithstanding her subsequent
retraction. We quote with approval its ratiocination in this wise:

Clearly, the retraction made by the Victim is heavily unreliable. The primordial
factor that impelled the Victim to retract the rape charges against her father was
her fear and concern for the welfare of her family especially her four (4)
siblings. It does not go against reason or logic to conclude that a daughter, in
hopes of bringing back the harmony in her family tormented by the trauma of
rape, would eventually cover for the dastardly acts committed by her own father.
Verily, the Victims subsequent retraction does not negate her previous testimonies
accounting her ordeal in the hands for (sic) her rapist.[39]
We now proceed to discuss the specific crimes with which appellant was charged.

Criminal Case Nos. 1646, 1649 and 1654 for Rape

The CA correctly convicted appellant of Qualified Rape in Criminal Case No. 1646, and of Acts
of Lasciviousness in Criminal Case Nos. 1649 and 1654.

The crime of rape is defined in Article 266-A of the Revised Penal Code (RPC), as amended
by the Anti-Rape Law of 1997, as follows:

ART. 266-A. Rape, When and How Committed. - Rape is committed

1. By a man who shall have carnal knowledge of a woman under any of the
following circumstances:

a. Through force, threat or intimidation.

In her direct testimony, AAA stated that appellant removed her short pants and panty, went on
top of her and rubbed his penis against her vaginal orifice. She resisted by crossing her legs but
her effort was not enough to prevent appellant from pulling her leg and eventually inserting his
penis into her vagina. Clearly, there was penetration.

It is noteworthy that appellant pulled AAAs leg, so that he could insert his penis into her
vagina. This adequately shows that appellant employed force in order to accomplish his purpose.
Moreover, in rape committed by a father against his own daughter, the formers moral
ascendancy and influence over the latter may substitute for actual physical violence and
intimidation. The moral and physical dominion of the father is sufficient to cow the victim into
submission to his beastly desires, and no further proof need be shown to prove lack of the
victims consent to her own defilement.[40]

While appellants conviction was primarily based on the prosecutions testimonial

evidence, the same was corroborated by physical evidence consisting of the medical findings of
the medico-legal officer that there were hymenal lacerations. When a rapevictims account is
straightforward and candid, and is corroborated by the medical findings of the examining
physician, the same is sufficient to support a conviction for rape.[41]

Aside from the fact of commission of rape, the prosecution likewise established that
appellant is the biological father of AAA and that the latter was then fifteen (15) [42] years
old. Thus, the CA aptly convicted him of qualified rape, defined and penalized by Article 266-B
of the RPC, viz.:

ART. 266-B. Penalties. x x x.

xxxx
 The death penalty shall also be imposed if the crime of rape is committed
with any of the following aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is
a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common law spouse of the parent of the
victim.

In view of the effectivity of Republic Act (R.A.) 9346, appellant was correctly meted the penalty
of reclusion perpetua, without eligibility for parole.

As to damages, appellant should pay AAA P75,000.00 as civil indemnity, which is

awarded if the crime is qualified by circumstances that warrant the imposition of the
death penalty.[43] In light of prevailing jurisprudence,[44] we increase the award of moral damages
from P50,000.00 to P75,000.00. Further, the award of exemplary damages in the amount
of P30,000.00[45] is authorized due to the presence of the qualifying circumstances of minority
and relationship.[46]

In Criminal Case Nos. 1649 and 1654, although appellant was charged with qualified
rape allegedly committed on the second week of November 2000 and May 27, 2001, he should
be convicted with Acts of Lasciviousness committed against a child under Section 5(b), Article
III of R.A. 7610,[47] which reads:

SEC. 5. Child Prostitution and Other Sexual Abuse. Children, whether

male or female, who for money, profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:

xxxx

(b) Those who commit the act of sexual intercourse or lascivious

conduct with a child exploited in prostitution or subjected to other sexual
abuse: Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or
lascivious conduct, as the case 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. (Italics supplied.)

The elements of sexual abuse under the above provision are 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 to

other sexual abuse.

3. The child, whether male or female, is below 18 years of age.[48]

AAA testified that in November 2000, while she and appellant were inside the bedroom,
he went on top of her and rubbed his penis against her vaginal orifice until he ejaculated.[49] She
likewise stated in open court that on May 27, 2001, while inside their comfort room, appellant
rubbed his penis against her vagina while they were in a standing position.[50] In both instances,
there was no penetration, or even an attempt to insert his penis into her vagina.

The aforesaid acts of the appellant are covered by the definitions of sexual abuse and
lascivious conduct under Section 2(g) and (h) of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases promulgated to implement the provisions of R.A. 7610:

(g) Sexual abuse includes the employment, use, persuasion, inducement,

enticement or coercion of a child to engage in, or assist another person to engage
in, sexual intercourse or lascivious conduct or the molestation, prostitution, or
incest with children;

(h) Lascivious conduct means the 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 public area of a person.

Following the variance doctrine embodied in Section 4, in relation to Section 5, Rule 120
of the Rules of Criminal Procedure, appellant can be found guilty of the lesser crime of Acts of
Lasciviousness committed against a child. The pertinent provisions read:

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

SEC. 5. When an offense includes or is included in another. An offense charged

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

As the crime was committed by the father of the offended party, the alternative
circumstance of relationship should be appreciated. In crimes against chastity, such as Acts of
Lasciviousness, relationship is always aggravating.[51]

Section 5(b) of R.A. 7610 prescribes the penalty of reclusion temporal in its medium
period to reclusion perpetua. Since there is an aggravating circumstance and no mitigating
circumstance, the penalty shall be applied in its maximum period --- reclusion perpetua for each
count.[52]

Consistent with previous rulings[53] of the Court, appellant must also indemnify AAA in
the amount of P15,000.00 as moral damages and pay a fine in the same amount in Criminal Case
Nos. 1649 and 1654.

Criminal Case Nos. 1644 and 1645 for Acts of Lasciviousness

Appellant is likewise guilty of two (2) counts of Acts of Lasciviousness under Section 5(b),
Article III, R.A. 7610 committed against AAA on the second week of August 1999 and on the
first week of September 1999. AAA testified that in August, appellant, with lewd design,
inserted his hands inside her shirt then fondled her breasts; and in September, he forced her to
hold his penis until he ejaculated.

The trial and the appellate courts were correct in giving credence to the victims testimony, in
dismissing appellants defense of denial and alibi, and in disbelieving that AAA initiated the
criminal cases only upon the prodding of the latters grandmother.Settled jurisprudence tells us
that the mere denial of ones involvement in a crime cannot take precedence over the positive
testimony of the offended party.[54]

We are not unmindful of the fact that appellant was specifically charged in an
Information for Acts of Lasciviousness defined and penalized by Article 336 of the
RPC. However, the failure to designate the offense by statute, or to mention the specific
provision penalizing the act, or an erroneous specification of the law violated, does not vitiate the
information if the facts alleged clearly recite the facts constituting the crime charged.[55] The
character of the crime is not determined by the caption or preamble of the information nor from
the specification of the provision of law alleged to have been violated, but by the recital of the
ultimate facts and circumstances in the complaint or information.[56]

In the present case, the body of the information contains an averment of the acts
alleged to have been committed by appellant which unmistakably refers to acts punishable
under Section 5(b), Article III, R.A. 7610.
Appellant should, therefore, be meted the same penalties and be made to answer for damages as
in Criminal Case Nos. 1649 and 1654.

Criminal Case No. 1651 for Attempted Rape

AAA testified that on November 24, 2000, while AAA and her brothers were sleeping inside
their parents bedroom, appellant entered and asked AAA to have sex with him. When AAA
refused, appellant forcibly removed her clothes and boxed her right buttock. As she still resisted,
he took a bolo, which he poked at her. Appellant desisted from committing further acts because
of the timely arrival of AAAs grandmother. With these, appellant was charged with Other Light
Threats in Criminal Case No. 1650; Attempted Rape in Criminal Case No. 1651; Unjust
Vexation in Criminal Case No. 1652; and Maltreatment in Criminal Case No. 1653.

On September 24, 2004, the RTC dismissed Criminal Case Nos. 1650, 1652 and 1653 for
insufficiency of evidence. Criminal Case No. 1651, among others, proceeded,
however. Eventually, appellant was convicted of Attempted Rape, which the CA affirmed.

A careful review of the records reveals, though, that the evidence is insufficient to support
appellants conviction of Attempted Rape.
Rape is attempted when the offender commences the commission of rape directly by
overt acts and does not perform all the acts of execution by reason of some cause or accident
other than his own spontaneous desistance.[57] The prosecution must, therefore, establish the
following elements of an attempted felony:

1. The offender commences the commission of the felony directly by overt

acts;

2. He does not perform all the acts of execution which should produce the
felony;

3. The offenders act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident

other than his spontaneous desistance.[58]

The attempt that the RPC punishes is that which has a logical connection to a particular,
concrete offense; and that which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation.[59] In the instant case, the
primary question that comes to the fore is whether or not appellants act of removing AAAs pants
constituted an overt act of Rape.

We answer in the negative.

Overt or external act has been defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation, which if
carried out to its complete termination following its natural course, without being frustrated by
external obstacles nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense.[60]

The evidence on record does not show that the above elements are present. The detailed acts of
execution showing an attempt to rape are simply lacking. It would be too strained to construe
appellants act of removing AAAs pants as an overt act that will logically and necessarily ripen
into rape. Hence, appellant must be acquitted of Attempted Rape.

Neither can we hold appellant liable for Other Light Threats for threatening AAA with a bolo;
for Unjust Vexation for undressing her without her consent, causing disturbance, torment,
distress, and vexation; nor for Maltreatment for boxing the right side of AAAs buttocks.
Although all of the above acts were alleged in the Information for Attempted Rape in the Order
dated September 24, 2004, Criminal Case Nos. 1650, 1652 and 1653 involving the above crimes
were dismissed for insufficiency of evidence based on the demurrer to evidence filed by
appellant.

The order granting appellants demurrer to evidence was a resolution of the case on the merits,
and it amounted to an acquittal. Any further prosecution of the accused after an acquittal would
violate the proscription on double jeopardy.[61] Accordingly, appellants conviction of any of the
above crimes, even under Criminal Case No. 1651, would trench in his constitutional right
against double jeopardy.
Criminal Case No. 1655 for Unjust Vexation

Appellant was charged with Unjust Vexation, defined and penalized by Article 287 of the RPC,
which reads:

ART. 287. Light coercions. Any person who, by means of violence, shall seize
anything belonging to his debtor for the purpose of applying the same to the
payment of the debt, shall suffer the penalty of arresto mayor in its minimum
period and a fine equivalent to the value of the thing, but in no case less than 75
pesos.

Any other coercion or unjust vexation shall be punished by arresto

menor or a fine ranging from 5 to 200 pesos, or both.

The second paragraph of this provision is broad enough to include any human conduct that,
although not productive of some physical or material harm, could unjustifiably annoy or vex an
innocent person. The paramount question to be considered is whether the offenders act caused
annoyance, irritation, torment, distress, or disturbance to the mind of the person to whom it was
directed.[62]

Appellants acts of embracing, dragging and kissing AAA in front of her friend annoyed
AAA. The filing of the case against appellant proved that AAA was disturbed, if not distressed
by the acts of appellant.
The penalty for coercion falling under the second paragraph of Article 287 of the RPC is arresto
menor or a fine ranging from P5.00 to P200.00 or both. Accordingly, appellant is sentenced to 30
days of arresto menor and to pay a fine of P200.00, with the accessory penalties thereof.

WHEREFORE, the Court AFFIRMS the January 31, 2008 Court of Appeals Decision
in CA-G.R. CR No. 30045 with MODIFICATIONS. The Court finds appellant Salvino
Sumingwa:

1. GUILTY of QUALIFIED RAPE in Criminal Case No. 1646. He is sentenced to

suffer the penalty of reclusion perpetua without eligibility for parole and ordered to pay
AAA P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as
exemplary damages.

2. GUILTY of four (4) counts of ACTS OF LASCIVIOUSNESS under Section 5 (b)

Article III of R.A. 7610 in Criminal Case Nos. 1644, 1645, 1649, and 1654. He is sentenced to
suffer the penalty of reclusion perpetua and ordered to pay AAA P15,000.00 as moral damages
and a fine of P15,000.00, for EACH COUNT.

3. NOT GUILTY in Criminal Case No. 1651.

4. GUILTY of UNJUST VEXATION in Criminal Case No. 1655. He is sentenced to

suffer 30 days of arresto menor and to pay a fine of P200.00, with the accessory penalties
thereof.
SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice
 DIOSDADO M. PERALTA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Acting Chief Justice

[1]
Penned by Associate Justice Myrna Dimaranan Vidal, with Associate Justices Jose Catral
Mendoza and Jose C. Reyes, Jr., concurring; rollo, pp. 2-38.
[2]
Branch 35, Bontoc Mountain Province.
[3]
Penned by Pairing Judge Artemio B. Marrero; CA rollo, pp. 59-74.
[4]
Rollo, pp. 42-44.
[5]
Docketed as Criminal Case Nos. 1644 and 1645.
[6]
Docketed as Criminal Case Nos. 1646, 1647, 1649 and 1654.
[7]
Docketed as Criminal Case Nos. 1648, 1652 and 1655.
[8]
Docketed as Criminal Case No. 1650.
[9]
Docketed as Criminal Case No. 1653.
[10]
Docketed as Criminal Case No. 1651.
[11]
The acts complained of were committed when the victim was 15 and 16 years old.
[12]
Records (Criminal Case No. 1644), pp. 156-158.
[13]
Id. at 141-148.
[14]
TSN, December 10, 2003, pp. 4-6.
[15]
Id. at 6-8.
[16]
Id. at 8-10.
[17]
Id. at 11-12.
[18]
Id. at 12-13.
[19]
Id. at 14.
[20]
Id. at 14-15.
[21]
Records (Criminal Case No. 1644), p. 20.
[22]
Rollo, pp. 10-11.
[23]
Id. at 11.
[24]
Id
[25]
Records (Criminal Case No. 1644), p. 206.
[26]
In Criminal Cases No. 1644, 1645, 1646, 1649, and 1654.
[27]
In Criminal Case No. 1651.
[28]
In Criminal Case No. 1655.
[29]
CA rollo, p. 73.
[30]
Rollo, pp. 37-38.
[31]
Id. at 56.
[32]
Id. at 56-58.
[33]
CA rollo, p. 53.
[34]
People v. Abulon, G.R. No. 174473, August 17, 2007, 530 SCRA 675, 687-688.
[35]
People v. Deauna, 435 Phil. 141, 163 (2002).
[36]
People v. Mion, G.R. Nos. 148397-400, July 7, 2004, 433 SCRA 671, 685-686.
[37]
People v. Deauna, supra note 35, at 164.
[38]
People v. Mion, supra note 36, at 685-686.
[39]
Rollo, pp. 17-18.
[40]
Campos v. People, G.R. No. 175275, February 19, 2008, 546 SCRA 334, 347-348; People v.
Balonzo, G.R. No. 176153, September 21, 2007, 533 SCRA 760, 771.
[41]
People v. Guambor, 465 Phil. 671 (2004).
[42]
AAA was born on November 12, 1984 as shown in her Certificate of Live Birth; records
(Criminal Case No. 1644), p. 138.
[43]
People v. Antonio, G.R. No. 180920, March 27, 2008, 549 SCRA 569, 574.
[44]
People v. Bejic, G.R. No. 174060, June 25, 2007, 525 SCRA 488; People v. Ibaez, G.R. No.
174656, May 11, 2007, 523 SCRA 136.
[45]
People of the Philippines v. Lilio U. Achas, G.R. No. 185712, August 4, 2009; People of the
Philippines v. Adelado Anguac y Ragadao, G.R. No. 176744, June 5, 2009; ThePeople of the
Philippines v. Lorenzo Layco, Sr., G.R. No. 182191, May 8, 2009.
[46]
People v. Bejic, supra note 44; People v. Ibaez, supra note 44, at 145.
[47]
Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act.
[48]
Malto v. People, G.R. No. 164733, September 21, 2007, 533 SCRA 643, 656; Navarrete v.
People, G.R. No. 147913, January 31, 2007, 513 SCRA 509, 521; Olivares v. Court of Appeals,
G.R. No. 163866, July 29, 2005, 465 SCRA 465, 473.
[49]
TSN, December 10, 2003, p. 22.
[50]
Id. at 25.
[51]
People v. Montinola, G.R. No. 178061, January 31, 2008, 543 SCRA 412.
[52]
Id.
[53]
Id; People v. Candaza, G.R. No. 170474, June 16, 2006, 491 SCRA 280; Olivares v. Court of
Appeals, supra note 48.
[54]
People of the Philippines v. Heracleo Abello y Fortada, G.R. No. 151952, March 25, 2009.
[55]
Malto v. People, supra. note 48.
[56]
Olivares v. Court of Appeals, supra note 48.
[57]
People of the Philippines v. Catalino Mingming y Discalso, G.R. No. 174195, December 10,
2008; Baleros, Jr. v. People, G.R. No. 138033, February 22, 2006, 483 SCRA 10, 27.
[58]
People of the Philippines v. Catalino Mingming y Discalso, supra note 57; People v. Lizada,
G.R. Nos. 143468-71, January 24, 2003, 396 SCRA 62, 94.
[59]
Baleros, Jr. v. People, supra note 57, at 27.
[60]
Baleros, Jr. v. People, id. at 27-28; People v. Lizada, supra note 58, at 94.
[61]
People v. Lizada, Jr., G.R. No. 128587, March 16, 2007, 518 SCRA 393, 403; People v.
Sandiganbayan, 426 Phil. 453 (2002).
[62]
Maderazo v. People, G.R. No. 165065, September 26, 2006, 503 SCRA 234, 247; Baleros,
Jr. v. People, supra note 57, at 30.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 188979 September 5, 2012

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
CHRISTOPHER PAREJA y VELASCO, Appellant.

DECISION

BRION, J.:

This is an appeal from the June 15, 2009 decision 1 of the Court of Appeals (CA) in CA-
G.R. CR HC No. 02759. TheCA affirmed the February 22, 2007 decision 2

of the Regional Trial Court (RTC), Branch 209, Mandaluyong City, finding appellant
Christopher Pareja guilty beyond reasonable doubt of the crime of rape and sentencing
him to suffer the penalty of reclusion perpetua.

THE CASE

The prosecution charged the appellant before the RTC with the crime of rape under an
Amended Information that reads:
That on or about the 16th day of June 2003, in the City of Mandaluyong, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously lie and have carnal knowledge of AAA, 3 13
years of age, sister of the common law spouse of accused, against her will and consent,
thus debasing and/or demeaning the intrinsic worth and dignity of the victim thereby
prejudicing her normal development as a child.4

The evidence for the prosecution disclosed that at around 3:30 a.m. of June 16, 2003,
AAA was sleeping beside her two-year old nephew, BBB, on the floor of her sister’s
room, when the appellant hugged her and kissed her nape and neck.5 AAA cried, but
the appellant covered her and BBB with a blanket.6 The appellant removed AAA’s
clothes, short pants, and underwear; he then took off his short pants and briefs. 7 The
appellant went on top of AAA, and held her hands. AAA resisted, but the appellant
parted her legs using his own legs, and then tried to insert his penis into her
vagina.8 The appellant stopped when AAA’s cry got louder; AAA kicked the appellant’s
upper thigh as the latter was about to stand up. The appellant put his clothes back on,
and threatened to kill AAA if she disclosed the incident to anyone. Immediately after, the
appellant left the room.9 AAA covered herself with a blanket and cried.10

At around 6:00 a.m. of the same day, AAA’s brother, CCC, went to her room and asked
her why she was lying on the floor and crying. AAA did not answer, and instead hurled
invectives at CCC.11 AAA went to the house of her other brother, but the latter was not
in his house. AAA proceeded to the house of her older sister, DDD, at Block 19,
Welfareville Compound, and narrated to her what had happened. Afterwards, AAA and
her two (2) siblings went to the Women and Children’s Desk of the Mandaluyong City
Police Station and reported the incident.12

For his defense, the appellant declared on the witness stand that he hauled "filling
materials" at his house, located at Block 38, Fabella Compound, on the evening of June
15, 2003. At around 10:00 p.m., he went to his room and slept.13 On the next day, the
appellant, accompanied by his mother and brother-in-law, went to the municipal hall to
ask for financial assistance for his wife who was confined in the hospital. Upon arrival at
the hospital, the doctor told him that his wife needed blood. Immediately after, the
appellant and his companions went to Pasig City to find blood donors.14

On the evening of June 16, 2003, and while the appellant was folding the clothes of his
son, two policemen entered his house and informed him that a complaint for attempted
rape had been filed against him. The police brought him to the Criminal Investigation
and Detection Group, forced him to admit the crime, mauled him, and then placed him
in a detention cell.15 The appellant added that he filed a complaint before the Office of
the Ombudsman against the police officers who beat him up.16

The RTC convicted the appellant of rape in its decision of February 22, 2007, under the
following terms:
WHEREFORE, the Court finds accused CHRISTOPHER PAREJA y VELASCO GUILTY
beyond reasonable doubt of the crime of RAPE and hereby sentences him as he is
hereby sentenced to suffer the penalty of reclusion perpetua; and to indemnify the
victim, AAA, the amount of ₱ 50,000.00 as moral damages and ₱ 50,000.00 as civil
indemnity.17

The CA, in its decision dated June 15, 2009, affirmed the RTC decision. It explained
that a slight penetration of the labia by the male organ is sufficient to constitute rape,
and held that a slight penetration took place when the appellant’s penis touched AAA’s
vagina as he was trying to insert it.

The appellate court further ruled that the presence of people in the other room did not
make it impossible for the appellant to have raped the victim, because lust is no
respecter of time and place. It also held that the victim’s lack of tenacity in resisting the
appellant’s sexual aggression did not amount to consent or voluntary submission to the
criminal act.18

In his brief,19 the appellant argued that the lower courts erred in convicting him for the
crime of rape, as the prosecution failed to prove even the slightest penetration of his
penis into the victim’s vagina. He added that the victim’s testimony was incredible and
contrary to human experience.

THE COURT’S RULING

We find that the prosecution failed to prove the appellant’s guilt beyond reasonable
doubt of the crime of consummated rape. We convict him instead of attempted rape, as
the evidence on record shows the presence of all the elements of this crime.

Carnal Knowledge Not Proven With

Moral Certainty

By definition, rape is committed by having carnal knowledge of a woman with the use of
force, threat or intimidation, or when she is deprived of reason or otherwise
unconscious, or when she is under 12 years of age or is demented.20 "Carnal
knowledge is defined as the act of a man having sexual intercourse or sexual bodily
connections with a woman."21 Carnal knowledge of the victim by the accused must be
proven beyond reasonable doubt, considering that it is the central element in the crime
of rape.22

In her testimony of February 9, 2004, AAA recounted the alleged rape, as follows:

FISCAL TRONCO:

Q: You said that the three of you then was (sic) sleeping on the floor, what is it that
happened on that particular day and time that is unusual?
A: It was like somebody was embracing me or hugging me, ma’am.

Q: When you felt that some (sic) is embracing and hugging you, what did you do?

A: I didn’t mind it because I thought that the person beside me just moved and when
he made the movement, it’s like that I was embraced, ma’am.

Q: Whom are you referring to?

A: My brother-in-law, ma’am.

Q: And after that, what else happened, if any, AAA?

A: Before that happened, my nephew cried and so I picked him up and put him on my
chest and after a while, I slept again and brought him down again and then "dumapa po
ako" and I felt that somebody was kissing my nape, ma’am.

Q: Were you able to see who was that somebody kissing your nape?

A: When I tried to evade, I looked on my side where the room was not that dark that I
could not see the person and so, I saw that it was my brother-in-law, ma’am.

xxxx

Q: When you saw that it was your brother-in-law kissing your nape while you were on
a prone position, what else happened, if any?

A: He kissed my neck, ma’am.

Q: What was your position while he was kissing your neck?

A: I was on my side at that time and I was also crying, ma’am.

xxxx

Q: Why were you crying at that time while he was kissing your neck?

A: I was afraid of what will happen next, ma’am.

Q: Aside from that incident that he was kissing your neck, was there any other
previous incident that happened?

A: Yes, ma’am.

xxxx
Q: What incident was that?

A: At that time, my brother-in-law covered me and my nephew with a blanket and he

tried to get my clothes off, ma’am.

Q: When did this happen, AAA?

A: Also on said date, ma’am.

Q: You said that he covered you and your nephew with a blanket and then taking (sic)
off your clothes?

A: Yes, ma’am.

xxxx

Q: Was he able to take off your clothes?

A: Yes, ma’am.

Q: What particular clothing was he able to take off?

A: My short pants and underwear, ma’am.

Q: While he was taking off your short pants and your underwear, what did you do, if
any?

A: I tried to fight him off, ma’am.

xxxx

Q: You said that he was trying to take off your clothes and undergarments, what was
your position at that time?

A: I was lying down, ma’am.

Q: What about him?

A: He was on my lap, ma’am.

xxxx

Q: You said that you saw him take off his short pants?

A: Yes, ma’am.
xxxx

Q: Did he also take off his brief?

A: Yes, ma’am.

xxxx

Q: And after that what happened, AAA?

A: After removing his undergarments, he suddenly brought his body on top of me and
he held my hands. At that time I was crying and still resisting and then he was trying to
get my legs apart. I was still resisting at that time, and at some point in time I felt weak
and he was able to part my legs, ma’am.

Q: Could you please tell us how did (sic) he able to part your legs?

A: He did that with his legs while he was holding my hands, ma’am.

Q: And when he was able to part your legs, what happened next?

A: He tried to insert his sexual organ but he was not able to do so, ma’am.

Q: How did you know that he was trying to insert his sexual organ?

A: "Naidikit po niya sa ari ko."

Q: Which part of your body was he able to touch his sexual organ? (sic)

A: On my sexual organ, ma’am.

xxxx

Q: You mentioned earlier that he was not able to penetrate your private part, AAA?

A: Yes, ma’am.

Q: So, what happened after that?

A: I cried and then while I was resisting, I hit my wrist on the wall and my wrist was
"nagasgas," ma’am.

xxxx

Q: And were you able to successfully resist?

A: Yes, ma’am, I was able to kicked (sic) his upper thigh, ma’am. 23 (italics supplied;
emphasis ours)

From the foregoing, we find it clear that the appellant’s penis did not penetrate, but
merely ‘touched’ (i.e., "naidikit"), AAA’s private part. In fact, the victim confirmed on
cross-examination that the appellant did not succeed in inserting his penis into
her vagina. Significantly, AAA’s Sinumpaang Salaysay24 also disclosed that the
appellant was holding the victim’s hand when he was trying to insert his penis in her
vagina. This circumstance – coupled with the victim’s declaration that she was
resisting the appellant’s attempt to insert his penis into her vagina – makes penile
penetration highly difficult, if not improbable. Significantly, nothing in the records
supports the CA’s conclusion that the appellant’s penis penetrated, however slightly, the
victim’s female organ.

Did the touching by the appellant’s penis of the victim’s private part amount to carnal
knowledge such that the appellant should be held guilty of consummated rape?

In People v. Campuhan,25 the Court laid down the parameters of genital contact in rape
cases, thus:

Thus, touching when applied to rape cases does not simply mean mere epidermal
contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the
external layer of the victim's vagina, or the mons pubis, as in this case. There must be
sufficient and convincing proof that the penis indeed touched the labias or slid into the
female organ, and not merely stroked the external surface thereof, for an accused to be
convicted of consummated rape. As the labias, which are required to be "touched" by
the penis, are by their natural situs or location beneath the mons pubis or the vaginal
surface, to touch them with the penis is to attain some degree of penetration beneath
the surface, hence, the conclusion that touching the labia majora or the labia minora of
the pudendum constitutes consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are
visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the
clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes
hairy after puberty, and is instantly visible within the surface. The next layer is the labia
majora or the outer lips of the female organ composed of the outer convex surface and
the inner surface. The skin of the outer convex surface is covered with hair follicles and
is pigmented, while the inner surface is a thin skin which does not have any hair but has
many sebaceous glands. Directly beneath the labia majora is the labia minora.
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.26 (italics supplied)
Simply put, "rape is consummated by the slightest penile penetration of the labia
majora or pudendum of the female organ."27 Without any showing of such
penetration, there can be no consummated rape; at most, it can only be
attempted rape [or] acts of lasciviousness."28

As earlier discussed, the prosecution failed to present sufficient and convincing

evidence to establish the required penile penetration. AAA’s testimony did not establish
that the appellant’s penis touched the labias or slid into her private part. Aside from
AAA’s testimony, no other evidence on record, such as a medico-legal report, could
confirm whether there indeed had been penetration, however slight, of the victim’s
labias. In the absence of testimonial or physical evidence to establish penile
penetration, the appellant cannot be convicted of consummated rape.

Article 6 of the Revised Penal Code, as amended, states that there is an attempt when
the offender commenced the commission of the crime directly by overt acts but does not
perform all the acts of execution by reason of some cause or accident other than his
own spontaneous desistance. In People v. Publico,29 we ruled that when the
"touching" of the vagina by the penis is coupled with the intent to penetrate,
attempted rape is committed;otherwise, the crime committed is merely acts of
lasciviousness.

CAN BE USED FOR ANALYSIS/RECOMMENDATION

In the present case, the appellant commenced the commission of rape by the following
overt acts: kissing AAA’s nape and neck; undressing her; removing his clothes and
briefs; lying on top of her; holding her hands and parting her legs; and trying to insert his
penis into her vagina. The appellant, however, failed to perform all the acts of execution
which should produce the crime of rape by reason of a cause other than his own
spontaneous desistance, i.e., the victim's loud cries and resistance. The totality of the
appellant’s acts demonstrated the unmistakable objective to insert his penis into the
victim’s private parts.

A review of jurisprudence reveals that the Court has not hesitated to strike down
convictions for consummated rape when the evidence failed to show that penetration,
however slight, of the victim’s vagina took place. In People v. Bon,30 the Court found
the appellant guilty of attempted rape only, as there was no indication that the
appellant’s penis even touched the labia of the pudendum of the victim. We further
held that the appellant could not be convicted of consummated rape by presuming
carnal knowledge out of pain.

The Court had a similar ruling in People v. Miranda,31 where the accused tried to insert
his penis into the victim’s private parts, but was unsuccessful, so he inserted his fingers
instead. We convicted the accused of attempted rape only due to lack of evidence to
establish that there was even a slight penile penetration. We noted, however, that the
appellant’s act of inserting his fingers would have constituted rape through sexual
assault had the offense occurred after the effectivity of the Anti-Rape Law of 1997.

In People v. Alibuyog,32 the victim declared that the accused placed his penis on her
vagina; and claimed that it touched her private parts. The Court set aside the accused’s
conviction for rape, and convicted him of attempted rape only, because we found the
victim’s testimony too ambiguous to prove the vital element of penile penetration.
We added that the victim’s testimony was "replete with repeated denial of penile
insertion."33

Similarly, in People v. Quarre,34 the evidence for the prosecution consisted only of the
victim’s testimony that the accused tried, but failed, to insert his penis into her vagina,
and she felt pain in the process. No medico-legal examination report was presented in
evidence. Accordingly, the Court reversed the accused’s conviction for rape, and found
him guilty of attempted rape only.

In People v. Ocomen,35 the Court also set aside the appellant’s conviction for rape
because no proof was adduced of even the slightest penetration of the female organ,
aside from a general statement of the victim that she had been "raped."

People v. Monteron36 is another noteworthy case where the Court set aside the
appellant’s conviction for rape. In this case, the victim testified that the accused placed
his penis on top of her vagina, and that she felt pain. In finding the accused guilty of
attempted rape only, we held that there was no showing that the accused’s penis
entered the victim’s vagina. We added that the pain that the victim felt might have been
caused by the accused’s failed attempts to insert his organ into her vagina.

In People v. Mariano,37 the accused tried to insert his penis into the victim’s vagina, but
failed to secure penetration. The Court set aside the accused’s conviction for three (3)
counts of rape and found him guilty of attempted rape only. We explained the necessity
of carefully ascertaining whether the penis of the accused in reality entered the
labial threshold of the female organ to accurately conclude that rape had been
consummated.

In People v. Arce, Jr.,38 the Court found the accused guilty of attempted rape only,
because the victim did not declare that there was the slightest penetration, which was
necessary to consummate rape. On the contrary, she categorically stated that the
accused was not able to insert his penis into her private parts because she was moving
her hips away. We further ruled that the victim’s attempt to demonstrate what she meant
by "idinidikit ang ari" was unavailing to prove that rape had been consummated.

In People v. Francisco,39 the victim testified that the accused "poked" her vagina. The
Court set aside the accused’s conviction for qualified rape, and convicted him instead
only of attempted rape after failing to discern from the victim's testimony that the
accused attained some degree of penile penetration, which was necessary to
consummate rape.1âwphi1
In People v. Dimapilis,40 the Court refused to convict the accused for consummated
rape on the basis of the victim's testimony that she felt the accused's penis pressed
against her vagina as he tried to insert it. We explained that in order to constitute
consummated rape, there must be entry into the vagina of the victim, even if only in the
slightest degree.

Finally, in People v. Tolentino,41 the Court reversed the accused’s conviction for rape
and convicted him of attempted rape only, as there was paucity of evidence that the
slightest penetration ever took place. We reasoned out that the victim’s statements that
the accused was "trying to force his sex organ into mine" and "binundol-undol ang
kanyang ari" did not prove that the accused’s penis reached the labia of the pudendum
of the victim’s vagina.

"In rape cases, the prosecution bears the primary duty to present its case with clarity
and persuasion, to the end that conviction becomes the only logical and inevitable
conclusion."42 We emphasize that a conviction cannot be made to rest on possibilities;
strongest suspicion must not be permitted to sway judgment. In the present case, the
prosecution failed to discharge its burden of proving all the elements of consummated
rape.

The Proper Penalty and Indemnities

Under Article 51 of the Revised Penal Code, the imposable penalty for attempted rape
is two degrees lower than the prescribed penalty of reclusion perpetua for
consummated rape. Two degrees lower from reclusion perpetua is prision mayor whose
range is six (6) years and one (1) day to 12 years. Without any attendant aggravating or
mitigating circumstances and applying the Indeterminate Sentence Law, the maximum
of the penalty to be imposed upon the appellant is prision mayor in its medium period,
while the minimum shall be taken from the penalty next lower in degree, which is prision
correccional whose range is six (6) months and one (1) day to six (6) years, in any of its
periods. Accordingly, we sentence the appellant to suffer the indeterminate penalty of
six (6) years of prision correccional, as minimum, to 10 years of prision mayor, as
maximum.

In addition, we order the appellant to pay the victim ₱ 30,000.00 as civil indemnity, ₱
25,000.00 as moral damages and ₱ 10,000.00 as exemplary damages, in accordance
with prevailing jurisprudence on attempted rape cases.43

WHEREFORE, premises considered, the June 15, 2009 decision of the Court of
Appeals in CA-G.R. CR HC No. 02759 is MODIFIED, as follows:

The appellant's conviction for the crime of rape is VACATED, and

(1) we find appellant Christopher Pareja y Velasco GUILTY of the crime

of ATTEMPTED RAPE;
 (2) we SENTENCE him to suffer the indeterminate penalty of six ( 6) years of
prision correccional, as minimum, to 10 years of prision mayor, as maximum; and

(3) we ORDER him to PAY the victim the amounts of ₱ 30,000.00 as civil
indemnity; ₱ 25,000.00 as moral damages; and ₱ 10,000.00 as exemplary
damages.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court's
Division.

MARIA LOURDES P. A. SERENO

Chief Justice
Footnotes
1 Penned by Associate Justice Jose L. Sabio, Jr., and concurred in by Associate
Justice Vicente S.E. Veloso and Associate Justice Ricardo R. Rosario; rolla, pp.
2-17.
2 CA rollo, pp. 34-42.
3 The Court shall withhold the real name of the victim-survivor and shall use
fictitious initials instead to represent her. Likewise, the personal circumstances of
the victims-survivors or any other information tending to establish or compromise
their identities, as well as those of their immediate family or household members,
shall not be disclosed.
4 CA rollo, p. 87.
5 Records, pp. 109-110, 115-117.
6 Id. at 118-120.
7 Id. at 121-124.
8 Id. at 126-128.
9 Id. at 130-132.
10 Id. at 133.
11 Id. at 135-137.
12 Id. at 140-147.
13 Records, pp. 300-302.
14 Id. at 307-310.
15 Id. at 311-315.
16 Id. at 316.
17 Supra note 2, at 41.
18 Supra note 1, at 9-14.
19 CA rollo, pp. 72-85.
20 Article 266-A(1) of the Revised Penal Code, as amended.
21 See People v. Bon, 444 Phil. 571, 579 (2003).
22 See People v. Brioso, G.R. No. 182517, March 13, 2009, 581 SCRA 485, 493.
23 Records, pp. 113-131.
24 Id. at 5-6.
25 385 Phil. 912 (2000).
26 Id. at 920-922 (citations omitted).
27 See People v. Pancho, 462 Phil. 193, 205-206 (2003).
28 People v. Brioso, supra note 22, at 495.
29 G.R.
No. 183569, April 13, 2011, 648 SCRA 734, 748, citing People v. Collado,
405 Phil. 880 (2001).
30 536 Phil. 897 (2006).
31 519 Phil. 531 (2006).
32 469 Phil. 385 (2004).
33 Id. at 393.
34 427 Phil. 422 (2002).
35 432 Phil. 57 (2002).
36 428 Phil. 401 (2002).
37 420 Phil. 727 (2001).
38 417 Phil. 18 (2001).
39 406 Phil. 947 (2001).
40 397 Phil. 607 (2000).
41 367 Phil. 755 (1999).
42 See People v. Poras, G.R. No. 177747, February 16, 2010, 612 SCRA 624,
644.
43 Supra note 29, at 752.

SECOND DIVISION

G.R. No. 183453 : March 9, 2010

PEOPLE OF THE PHILIPPINES, Appellee, vs. DANILO

PACULBA, Appellant.

DECISION

PEREZ, J.:

On appeal is the Decision1cЃa of the Court of Appeals

dated 29 April 2008 in CA-G.R. CR-HC No. 00280,
affirming with modification the Decision2cЃa of the
Regional Trial Court (RTC) of Kapatagan, Lanao del
Norte, Branch 21, finding appellant Danilo Paculba,
guilty beyond reasonable doubt of the crime of Qualified
Rape and Attempted Rape.chanroblesvirtua|awlibary

Appellant was charged with four (4) counts of qualified

rape in the Informations which read as follows:

Criminal Case No. 21-1220

That sometime in the month of June, 2002 at

[xxx,xxx],3cЃa Lanao del Norte, Philippines and within
the jurisdiction of this Honorable Court, the above-
named accused did then and there willfully, unlawfully
and feloniously have carnal knowledge upon one
[AAA],4cЃa a minor 12 years of age and who is accuseds
own daughter, against her will and consent, which acts
of the accused debases, degrades and demeans the
intrinsic worth and dignity of said child as a human
being.chanroblesvirtua|awlibary

Contrary to and in VIOLATION OF R.A. 8353 in relation

to R.A. 7610.
Criminal Case No. 21-1221

That sometime in the month of August, 2002 at

[xxx,xxx], Lanao del Norte, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused did then and there willfully, unlawfully and
feloniously have carnal knowledge upon one [AAA], a
minor 12 years of age and who is accuseds own
daughter, against her will and consent, which acts of the
accused debases, degrades and demeans the intrinsic
worth and dignity of said child as a human
being.chanroblesvirtua|awlibary

Contrary to and in VIOLATION OF R.A. 8353 in relation

to R.A. 7610.

Criminal Case No. 21-1222

That sometime in the month of November, 2002 at

[xxx,xxx], Lanao del Norte, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused did then and there willfully, unlawfully and
feloniously have carnal knowledge upon one [AAA], a
minor 12 years of age and who is accuseds own
daughter, against her will and consent, which acts of the
accused debases, degrades and demeans the intrinsic
worth and dignity of said child as a human
being.chanroblesvirtua|awlibary

Contrary to and in VIOLATION OF R.A. 8353 in relation

to R.A. 7610.

Criminal Case No. 21-1223

That sometime in the month of January[,] 2003 at

[xxx,xxx], Lanao del Norte, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused did then and there willfully, unlawfully and
feloniously have carnal knowledge upon one [AAA], a
minor 12 years of age and who is accuseds own
daughter, against her will and consent, which acts of the
accused debases, degrades and demeans the intrinsic
worth and dignity of said child as a human
being.chanroblesvirtua|awlibary

Contrary to and in VIOLATION OF R.A. 8353 in relation

to R.A. 7610.chanroblesvirtua|awlibary

In addition, an Information was filed charging appellant

with attempted rape. The accusatory portion reads:

Criminal Case No. 21-1219

That on or about the 21st day of November[,] 2003, at

[xxx, xxx], Lanao del Norte, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused did then and there willfully, unlawfully and
feloniously commence the commission of the crime of
rape directly by overt acts, to wit: that while
complainant [AAA], a minor 12 years of age and who is
accuseds own daughter, was sleeping inside their house,
the said accused removed her short pants and panty,
placed himself on top of her without underwear, with the
intention of having carnal knowledge of her, but did not
perform all the acts of execution which should have
produced the crime of rape as a consequence by reason
of some cause or accident other than his own
spontaneous desistance, that is, the timely awakening of
said complainant who was able to push the accused and
run away.chanroblesvirtua|awlibary

CONTRARY to and in VIOLATION OF R.A. 8353 in

relation to Article 6 of the Revised Penal Code and R.A.
7610.5cЃa

Appellant pleaded not guilty to all the charges. Trial on

the merits ensued.chanroblesvirtua|awlibary

Testifying for the prosecution, AAA, who was only twelve

(12) years old at the time of the commission of the
crimes, recounted all the harrowing details which
transpired in June, August, November 2002, January
2003, and 21 November 2003. In the first four (4)
occasions, AAA narrated that while she was sleeping
inside her grandparents house during the night,
appellant suddenly covered her mouth, removed her
pants and panty, and placed his body on top of her.
Appellant then allegedly inserted his penis into AAAs
vagina and she felt pain. She, however, kept the
incidents to herself out of fear.6cЃa Finally, on 21
November 2003, at around 10:00 p.m., AAA mustered
courage to resist appellants advances. When appellant
removed his brief and attempted to place his body on
top of AAAs, the latter pushed him away and ran
towards the room of her grandmother, BBB.7cЃaAAA told
BBB about how appellant tormented her. BBB went out
to look for appellant, who was able to escape by jumping
out of the window. When appellant returned to the
house, CCC,8cЃa AAAs grandfather, wanted to hack him
but the latter threatened to chop CCC into pieces.
Thereafter, appellant left the house.9cЃa

On the following morning, AAA, accompanied by CCC,

went to report the incident first to the barangay captain
and then to the police.chanroblesvirtua|awlibary

AAA was subjected to a physical examination by Dr. Ava

Liwanag on 3 November 2003. Her findings were
contained in a medico-legal report which states:

No hematoma, no abrasion, no contusion seen

Hymen severely lacerated (old)

Vaginal rugal slightly exposed.10cЃa

cralawDuring the direct examination, Dr. Liwanag

concluded that AAA had sexual intercourse on several
times.11cЃa

Mrs. Amparo Baydal, the Municipal Civil Registrar of xxx,

Lanao del Norte, testified on the genuineness of the
entries in the certified true copy of AAAs birth
certificate.chanroblesvirtua|awlibary

The prosecution presented a certified true copy of AAAs

birth certificate to show that she was born on 23 January
1980, and that her father is Danilo Paculba.12cЃa

On the other hand, appellant interposed alibi as his

defense. He claimed that in June 2002, the date when
the first rape was apparently committed, he lived in the
house of a certain Nadong Tabias situated in Magsaysay,
Lanao del Norte. In August 2002, appellant declared that
he was in Cebu working as a quack doctor. In November
2002, he stated that he was in Malabang, Lanao del Sur.
In January 2003, he purportedly went back to
Magsaysay, Lanao del Norte. And on 21 November 2003,
appellant said that he was living in the house of Baking
Dumasig in Tangub, Lanao del Norte. He denied the
accusations of AAA and intimated that the relatives of
his deceased wife blamed him for the death of his wife,
hence these cases were filed against him.13cЃa

Appellant was found guilty by the RTC of four (4) counts

of rape and one (1) count of attempted rape. The
dispositive portion of the decision reads:

WHEREFORE, in view of the foregoing considerations,

judgment is hereby rendered:

cralawa) finding accused DANILO PACULBA guilty

beyond reasonable doubt for raping AAA in June, 2002,
and the Court hereby sentences him to death by lethal
injection and to indemnify AAA in the amount of
P75,000.00;

b) finding accused DANILO PACULBA guilty beyond

reasonable doubt for raping AAA in August, 2002, and
the Court hereby sentences him to death by lethal
injection and to indemnify AAA in the amount of
P75,000.00;

c) finding accused DANILO PACULBA guilty beyond

reasonable doubt for raping AAA in November, 2002,
and the Court hereby sentences him to death by lethal
injection and to indemnify AAA in the amount of
P75,000.00;

d) finding accused DANILO PACULBA guilty beyond

reasonable doubt for raping AAA in January, 2003, and
the Court hereby sentences him to death by lethal
injection and to indemnify AAA in the amount of
P75,000.00; and
e) finding accused AAA guilty beyond reasonable doubt
for attempting to rape AAA on 21 November 2003,and
the Court hereby sentences him to suffer an
indeterminate prison term of 6 years and 1 day of
prision mayor as minimum to 12 years and 1 day of
reclusion temporal as minimum.14cЃa

cralawThe trial court gave full credence to the testimony

of AAA and found her answers to be "simple and candid,
and were all reinforced and sufficiently explained by
succeeding ones."15cЃa Appellants alibi was dismissed
for being weak and unsubstantiated.16cЃa

In view of the penalty imposed, the case was elevated to

this Court for review. However, conformably with our
decision in People v. Mateo,17cЃa the case was
transferred to the Court of Appeals for appropriate
action and disposition.18cЃa

The Court of Appeals affirmed with modification the

judgment of the trial court, viz:

WHEREFORE, in light of the foregoing, the Decision

dated December 29, 2004 of the Regional Trial Court,
12th Judicial Region, Branch 21, Kapatagan, Lanao del
Norte, is hereby AFFIRMED with MODIFICATIONS.
Accused-appellant Danilo Paculba is SENTENCED to the
penalty of reclusion perpetua with no possibility of
parole for each of the four (4) counts of qualified rape
committed against AAA in Criminal Case Nos. 21-1220,
21-1221, 21-1222 and 21-1223. Accused-appellant is
further ORDERED to indemnify AAA for each count of
qualified rape, in the amounts of P75,000.00 as civil
indemnity, P75,000.00 as moral damages
and P25,000.00 as exemplary
damages.chanroblesvirtua|awlibary

For the crime of attempted rape committed against AAA

in Criminal Case No. 21-1219, accused-appellant is
hereby SENTENCED to an indeterminate penalty of two
(2) years, four (4) months and one (1) day of prision
correccional as minimum, to eight (8) years and one (1)
day of prision mayor as maximum. In addition, accused-
appellant is ORDERED to indemnify AAA for the crime of
attempted rape, in the amounts of P30,000.00 as civil
indemnity, P25,000.00 as moral damages
and P10,000.00 as exemplary damages. With costs.19cЃa

The appellate court found AAAs testimony credible and

consistent with the medical findings that she was raped.

Appellant filed a notice of appeal on 29 May

2008.chanroblesvirtua|awlibary

In the Resolution of 27 August 2008, this Court gave

due course to the appeal and ordered the respective
parties to file their supplemental briefs.20cЃa Both
parties manifested that they shall adopt their briefs filed
before the appellate court.21cЃa Thereafter, the case was
deemed submitted for
decision.chanroblesvirtua|awlibary

In his brief, appellant essentially questions the credibility

of AAA. He argues that AAAs account of each rape was
devoid of any distinctive detail which would render her
testimony spontaneous and candid.22cЃa Appellant also
points out that the date when the alleged attempted
rape was committed, or on 21 November 2003, cannot
be reconciled with the date when AAA was examined by
the medico-legal expert, which was on 3 November
2003.23cЃa Moreover, appellant claims that the existence
of erasures on entries in AAAs birth certificate renders
the document doubtful and, thus, did not sufficiently
establish the real age of AAA.24cЃa

The Office of the Solicitor General, in its brief, vouches

for the credibility of AAA. Furthermore, it belies
appellants defense of denial because it was not
corroborated by any other witness.25cЃa

The lone issue to be resolved by this Court is whether

appellants guilt has been proven beyond reasonable
doubt.chanroblesvirtua|awlibary

We completely agree with the findings of the Court of

Appeals, particularly on the credibility of the rape
victim.chanroblesvirtua|awlibary
In a prosecution for rape, the victims credibility becomes
the single most important issue. For when a woman says
she was raped, she says in effect all that is necessary to
show that rape was committed; thus, if her testimony
meets the test of credibility, the accused may be
convicted on the basis thereof.26cЃa

The rule is settled that the trial courts findings on the

credibility of witnesses and of their testimonies are
entitled to the highest respect and will not be disturbed
on appeal, in the absence of any clear showing that the
court overlooked, misunderstood or misapplied some
facts or circumstances of weight and substance which
would have affected the result of the case. This is
because the trial court, having seen and heard the
witnesses themselves, and observed their behavior and
manner of testifying, is in a better position to decide the
question of credibility.27cЃa

In this case, the test of credibility for a rape victim was

more than sufficiently met.chanroblesvirtua|awlibary

The lower court lent full credence to AAAs testimony that

appellant raped her on four occasions and attempted to
rape her on 21 November 2003. AAA testified in a clear,
spontaneous and candid manner. AAA categorically
testified that her father sexually abused her, thus:

Q: Sometimes (sic) on the night of June 2002, what

incident have you recalled?

A: He did something to me.

Q: Who is the person who do (sic) something to you?

A: Danilo Paculba.

Q: Your father?

A: Yes, sir.

Q: What did he do to you?

A: He cover (sic) my mouth and removed my pants and

panty and placed his body on top of me.

Q: What else?

A: He make (sic) a push and pull movement.

Q: Towards whom that he made the push and pull

movement?

A: My father made a push and pull movement on me.

Q: What do you mean by this push and pull movement

by your father towards you?

A: I feel pain.

Q: What part of your body (sic) feel pain?

A: My vagina.

Q: Why, what did your father do to your vagina?

A: He inserted his penis into my vagina.

Q: While he inserted his penis to your vagina, what did

you feel?

A: I was afraid.

Q: What else?

A: A heavy pain.28cЃa

cralawAAA's testimony regarding the subsequent rapes

in August and November 2002, and January 2003 was
also of the same import.29cЃa

Appellant seeks to destroy AAAs credibility by assailing

her testimony for lack of details as to how rape was
committed. In People v. Alipio,30cЃa the Court ruled that
rape is a harrowing experience, the exact details of
which are usually not remembered. Inconsistencies,
even if they do exist, tend to bolster, rather than
weaken the credibility of the witness, for they show that
the testimony was not contrived or rehearsed.31cЃa AAA
recounted in simple yet very clear terms the different
instances of how she was ravished by appellant. Through
her account, the elements of the crime of qualified rape
were sufficiently established.chanroblesvirtua|awlibary

Article 335 of the Revised Penal Code, as amended by

Section 11 of Republic Act No. 7659, provides in the first
paragraph as follows:

When and how rape is committed. - Rape is committed

by having carnal knowledge of a woman under any of
the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise

unconscious; and

3. When the woman is under twelve years of age or is

demented.

The crime of rape shall be punished by reclusion

perpetua.

First, AAA testified that appellant had sexual intercourse

with her. Her testimony was supported by the medical
certificate issued and testified on by Dr. Liwanag. Hence,
the element of carnal knowledge is present in this
case.chanroblesvirtua|awlibary

Second, force or intimidation was employed by appellant

and he succeeded in having carnal knowledge of AAA.
AAA testified several times that she was afraid of her
father. Appellant was able to effectively intimidate and
threaten AAA to submit to his will because he wields
moral ascendancy over her. As aptly put by this Court in
People v. Sandico:32cЃa

x x x force and intimidation necessary in rape is

naturally a relative term, depending not only on
the age, size and strength of the parties, but also
on their relation to each other. Considering that
the assailant is no less than complaining witness
own father who wields parental influence over her
person, the crime undoubtedly was consummated
with facility. The reason is that in rape committed
by a father against his own daughter, the formers
moral ascendancy over the latter substitutes for
violence or intimidation. A rape victims actions are
oftentimes overwhelmed by fear rather than
reason. It is this fear, springing from the initial
rape, that the perpetrator hopes to build a climate
of extreme psychological terror which would, he
hopes, numb his victim into silence and
submissiveness. Incestuous rape magnifies the
terror because the perpetrator is the person
normally expected to give solace and protection to
the victim. Furthermore, in incest, access to the
victim is guaranteed by the blood relationship,
proximity magnifying the sense of helplessness
and degree of fear.33cЃa

Alibi is an inherently weak defense and can easily be

fabricated.34cЃa The settled jurisprudence is that
categorical and consistent positive identification, absent
any showing of ill motive on the part of the eyewitness
testifying thereon, prevails over the defenses of denial
and alibi which, if not substantiated by clear and
convincing proof, as in the case at bar, constitute self-
serving evidence undeserving of weight in
law.35cЃa Thus, appellants alibi, more so that it is not
corroborated by any witness, cannot prosper over AAAs
positive identification.chanroblesvirtua|awlibary

Appellant noted a discrepancy on the dates provided in

the documentary evidence presented by the prosecution.
The alleged date of the last crime of attempted rape was
committed on 21 November 2003. On the other hand,
AAA underwent medical examination presumably after
the attempted rape but the date indicated in the medical
report was 3 November 2003. Indeed, there seems to be
an error in specifying the dates. At any rate, errors or
inconsistencies as to the exact time or date or day of the
week when the rape was consummated do not impair
the credibility of the complaining witness, for as long as
there is consistency in relating the principal occurrence
and positive identification of the
assailant.36cЃa Moreover, the exact date is not an
essential element of rape.37cЃa It bears no significance
to the actual commission of the crime.

Paragraph 7(1) of Article 335 further provides that:

The death penalty shall also be imposed if the crime of

rape is committed with any of the following attendant
circumstances:

1. when the victim is under eighteen (18) years of age

and the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the
parent of the victim.chanroblesvirtua|awlibary

Minority and relationship qualify the crime of rape.

These circumstances were properly appreciated by the
courts. AAAs birth certificate clearly shows that she was
twelve years old at the time of the incident and that
appellant is her father. Relationship between father and
daughter was already stipulated by the parties during
pre-trial.38cЃa

The supposed erasures made on the birth certificate are

too trivial to deserve consideration. Nonetheless, the
local civil registrar explained that they ran out of forms
so they instead used an old form.39cЃa Verily, the
prosecution had sufficiently alleged and duly proved the
twin qualifying circumstances of minority and
relationship.chanroblesvirtua|awlibary

Finally, appellant imputes ill motive on the part of AAAs

relatives in filing the present case against him. Motives
such as family feuds, resentment, hatred or revenge
have never swayed this Court from giving full credence
to the testimony of a rape victim. Also, ill motives
become inconsequential if there is an affirmative and
credible declaration from the rape victim, which clearly
establishes the liability of the accused.40cЃa

The Court of Appeals correctly reduced the death penalty

to reclusion perpetua for each count of rape in Criminal
Cases No. 21-1220, No. 21-1221, No. 21-1222, and No.
21-1223. The passage of Republic Act No. 9346, debars
the imposition of death penalty without however
declassifying the crime of qualified rape as
heinous.chanroblesvirtua|awlibary

Likewise, the Court upholds the appellate courts award

of damages.chanroblesvirtua|awlibary

WHEREFORE, in view of the foregoing, the decision of

the Court of Appeals finding appellant DANILO PACULBA
guilty of qualified rape in Criminal Cases No. 21-1220,
No. 21-1221, No. 21-1222, and No. 21-1223, and
attempted rape in Criminal Case No. 21-1219, is
AFFIRMED in toto.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL
ARTURO D. BRION
CASTILLO
Associate Justice
Associate Justice

ROBERTO A. ABAD
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were

reached in consultation before the case was assigned to
the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution,

and the Division Chairpersons Attestation, it is hereby
certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to
the writer of the opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

cralaw Endnotes:

cralaw1cЃa Penned by Associate Justice Elihu A. Ybañez

with Associate Justices Romulo V. Borja and Mario V.
Lopez, concurring. Rollo, pp. 3-31.

cra|aw

2cЃaPresided by Judge Jacob T. Malik. Records, pp. 48-

74.chanroblesvirtua|awlibary

3cЃa The place of commission is withheld to preserve

confidentiality of the identity of the victim. See People v.
Cabalquinto, G.R. No. 167693, 19 September 2006, 502
SCRA 419, 425-426.chanroblesvirtua|awlibary

4cЃa Likewise, the victims real name, as well as the

members of her immediate family, is withheld to protect
her privacy, also pursuant to People v. Cabalquinto.

cra|aw

5cЃa Records, pp. 48-50.

cra|aw

6cЃa TSN, 14 September 2004, pp. 23-28.

cra|aw
7cЃa Supra note 4.

cra|aw

8cЃa Id.

cra|aw

9cЃa TSN, 14 September 2004, pp. 29-30.

cra|aw

10cЃa Records, p. 5.

cra|aw

11cЃa TSN, 24 August 2004, pp. 3-4.

cra|aw

12cЃa Records, p. 6.

cra|aw

13cЃa TSN, 5 October 2004, pp. 48-52.

cra|aw

14cЃa CA rollo, p. 52.

cra|aw

15cЃa Records, p. 37.

cra|aw

16cЃa Id. at 49-50.

cra|aw

17cЃa G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.

cra|aw
18cЃa CA rollo, p. 54.

cra|aw

19cЃa Rollo, p. 30.

cra|aw

20cЃa Id. at 37.

cra|aw

21cЃa Id. at 45-46 and 51.

cra|aw

22cЃa CA rollo, p. 72.

cra|aw

23cЃa Id. at 73.

cra|aw

24cЃa Id.

cra|aw

25cЃa Id. at 128.chanroblesvirtua|awlibary

26cЃaPeople v. Mingming, G.R. No. 174195, 10

December 2008, 573 SCRA 509, 532; People v.
Capareda, 473 Phil. 301, 330 (2004); People v. Galido,
G.R. Nos. 148689-92, 30 March 2004, 426 SCRA 502,
516.

cra|aw

27cЃaPeople v. Palgan, G.R. No. 186234, 21 December

2009.

cra|aw
28cЃa TSN, 14 September 2004, p. 5.

cra|aw

29cЃa Id. at 25-27.chanroblesvirtua|awlibary

30cЃaG.R. No. 185285, 5 October 2009, citing People v.

Sagun, 363 Phil. 1 (1999).

cra|aw

31cЃaPeople v. Sagun, id. at

17.chanroblesvirtua|awlibary

32cЃaPeople v. Sandico, 366 Phil. 663 (1999), citing

People v. Melivo, 323 Phil. 412, 421-422 (1996).

cra|aw

33cЃaPeople v. Sandico, id. at 675-

676.chanroblesvirtua|awlibary

34cЃa People v. Tamolon, G.R. No. 180169, 27 February

2009, 580 SCRA 384, 395, citing People v. Penaso, 383
Phil. 200, 210 (2000); People v. Evina, 453 Phil. 25, 42
(2003), citing People v. Cabiles, 348 Phil. 220, 239
(1998).chanroblesvirtua|awlibary

35cЃa People v. Payot, Jr., G.R. No. 175479, 23 July

2008, 559 SCRA 609, 621, citing People v. Moralde, 443
Phil. 369, 383 (2003).chanroblesvirtua|awlibary

36cЃa People v. San Agustin, 403 Phil. 93, 104 (2001),

citing People v. Valla, 380 Phil. 31, 40
(2000).chanroblesvirtua|awlibary

37cЃaPeople v. Aboganda, G.R. No. 183565, 8 April

2009; People v. Arraz, G.R. No. 183696, 24 October
2008, 570 SCRA 136, 146; People v. Ibañez, G.R.
No.174656, 11 May 2007, 523 SCRA 136, 142.

cra|aw
38cЃa Records, pp. 20-22.

cra|aw

39cЃaTSN, 7 September 2004, p.

14.chanroblesvirtua|awlibary

40cЃaDizon v. People, G.R. No. 170342, 18 September

2009, citing People v. Audine, G.R. No. 168649, 6
December 2006, 510 SCRA 531, 549 and People v.
Santos, G.R. No. 172322, 8 September 2006, 501 SCRA
325, 343.