802 Phil. 766; 113 OG No.

39, 7131 (September 25, 2017)

THIRD DIVISION
[ G.R. No. 216061, December 07, 2016 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, V. NAPOLEON
BENSURTO, JR. Y BOLOHABO, ACCUSED-APPELLANT.

DECISION
PERALTA, J.:
This is an appeal of the Court of Appeals' (CA) Decision[1] dated March 28, 2014 dismissing appellant's appeal
and affirming the Joint Decision[2] dated November 28, 2011 of the Regional Trial Court, Branch 48, Masbate
City, in Criminal Cases Nos. 10225-26 convicting appellant of two (2) counts of the crime of qualified rape
defined and penalized under Article 266-A (1) (a), in relation to Article 266-B (1) of the Revised Penal Code, as
amended by Republic Act (R.A.) No. 8353.
The facts follow.

The victim, AAA,[3] was born on July 10, 1991, and sometime in February 1999, when she was only 9 years old,
she was left alone by her adoptive mother, BBB, in their house, together with appellant, her father (as indicated in
the birth certificate presented before the court). While she was sleeping in her room, appellant entered thereat
with a rope in his hand. AAA was awakened by the presence of her father who proceeded to tie her feet.
Appellant then pulled AAA's underwear to her feet and immediately laid on top of her. Thereafter, appellant
undressed himself and then forced his penis into AAA's vagina. After appellant satisfied his carnal desires, he
threatened AAA not to tell anyone about the incident or else he would kill her and her mother. Fearing for her life,
as well as her mother, AAA never told anyone about the incident. The said incident, however, was repeated
sometime in June 2000. After appellant ordered their househelper to go home, he instructed AAA to sleep in his
room. Left alone with only her father as companion, she was forced to accede to her father's demand. While in
the appellant's room, the latter pulled down AAA's underwear and again sexually abused her despite her pleas
not to. Appellant again told her not to tell anyone under the threat of death upon her and her mother. AAA was
only able to relate the incident to her mother in November 2000. Subsequently, AAA and her mother went to
Edna Romano, the Rural Health Midwife of Cabitan, Mandaon, Masbate to seek assistance. Romano, thereafter,
accompanied BBB and AAA to the Mandaon Medicare Community Hospital where AAA was examined by Dr.
Napoleon Villasis. Based on the examination, AAA was found to have hymenal tears at 10 o'clock position.
Hence, two (2) Informations were filed against appellant, which read as follows:
Criminal Case No. 10225

That sometime in the month of February, 1999 at Barangay Cabitan, Municipality of Mandaon, Province of
Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of
violence and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with his 9-
year-old daughter, [AAA], against her will.

CONTRARY TO LAW.

Criminal Case No. 10226

That sometime in the month of June 2000 at Barangay Cabitan, Municipality of Mandaon, Province of Masbate,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of violence
and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with his 9-year-old
daughter, [AAA], against her will.

CONTRARY TO LAW.

AAA testified during the trial, as well as Dr. Napoleon Villasis, Edna Romano and BBB, AAA's mother.

Appellant offered denial, alibi and no ill motive as defenses. According to him, all the accusations against him
were mere fabrications of his wife who only forced AAA to file the two criminal cases and testify against him. He
added that he knew about the illicit affair of his wife with a certain Relino Retudo, hence, his wife was only trying
to escape from him for fear that he would kill her together with her paramour.

After more than 7 years since AAA testified in court, the latter retracted her previous testimony that she was
raped by appellant. Testifying for the defense, AAA narrated that she was not raped by her father and was
merely being dictated by her mother to fabricate the rape charges against appellant so as to allow her mother to
live freely together with her paramour.

The RTC, on November 28, 2011, convicted the appellant on both counts of rape, the dispositive portion of the
Joint Decision reads as follows:
WHEREFORE, premises considered, the Court finds, accused Napoleon [Bensurto] y Bolohabo GUILTY of:

1. Qualified Rape in Criminal Case No. 10225, defined and penalized under Article 266-A of the Revised Penal
Code for which he is sentenced to suffer the penalty of reclusion perpetua without eligibility for parole and
ordered to pay "AAA" P75,000.00 as moral damages and P50,000.00 as exemplary damages without subsidiary
imprisonment in case of insolvency;
2. Qualified Rape in Criminal Case No. 10226, defined and penalized under Article 266-A of the Revised Penal
Code for which 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 P50,000.00 as
exemplary damages without subsidiary imprisonment in case of insolvency;
The period of detention of accused Napoleon [Bensurto, Jr.] y Bolohabo shall be credited in his favor.

The Provincial Jail Warden of the Provincial Jail, Masbate is directed to immediately transfer Napoleon [Bensurto
Jr.] y Bolohabo to the National Bilibid Prison, Muntinlupa City.

SO ORDERED.[4]
Notwithstanding the recantation of AAA, the RTC gave credence to her earlier testimony wherein she clearly
narrated how the appellant raped her.

On appeal, the CA, in its Decision dated March 28, 2014, dismissed the same with the following disposition:

WHEREFORE, in view of the foregoing premises, the instant appeal is hereby ordered DENIED and,
consequently, DISMISSED. The appealed Joint Decision rendered by Branch 48 of the Regional Trial Court of
the Fifth Judicial Region in Masbate City dated November 28, 2011 in Criminal Cases Nos. 10225-26 is hereby
AFFIRMED,

SO ORDERED.[5]
According to the CA, the presence of healed lacerations is consistent with and corroborative of AAA's testimony
that she had indeed been raped by the appellant months before the date of examination. The CA added that the
trial court's evaluation of the credibility of witnesses is viewed as correct and entitled to the highest respect
because it is more competent to do conclude, having the opportunity to observe the witnesses' demeanor and
deportment on the stand and the manner in which they gave their testimony. It was also adjudged that it was not
adequately and convincingly shown that the trial court had overlooked or disregarded significant facts and
circumstances which, when considered, would have affected the outcome of the case or justify a departure from
the assessments and findings of the trial court. Furthermore, it ruled that a recantation or an affidavit of
desistance is viewed with suspicion and reservation. According to the CA, it is worth noting that the recantation
was made only seven years from the date of her last testimony in open court, when AAA was already 19 years
old and, as noted by the trial court, unemployed. It was also ruled that the failure of AAA to shout for help or
resist the sexual advances of the appellant is not equivalent to consent. Lastly, the CA ruled that long silence and
delay in reporting the crime is not an indication that the accusations are false.

Hence, the present appeal where appellant insists that the prosecution was not able to prove his guilt beyond
reasonable doubt.

The appeal has no merit.

Under paragraph 1 (a) of Article 266-A of the RPC, the elements of rape are: (1) that the offender had carnal
knowledge of a woman; and (2) that such act was accomplished through force, threat, or intimidation. However,
when the offender is the victim's father, as in this case, there need not be actual force, threat or intimidation
because when a father commits the odious crime of rape against his own daughter who was also a minor at the
time of the commission of the offenses, his moral ascendancy or influence over the latter substitutes for violence
and intimidation.[6] All the elements, therefore, are present. The clear and straightforward testimony of AAA, as
corroborated by the medical findings show beyond reasonable doubt that AAA was already in a non-virginal state
after she was raped. When the victim's testimony is corroborated by the physical findings of penetration, there is
sufficient foundation to conclude the existence of the essential requisite of carnal knowledge. [7]
The appellant claims that the medical evidence, with respect to the lacerations on the hymen of AAA, failed to
convincingly corroborate the crime of rape as the cause of the same was not determined with possibility. This is a
flawed argument. The medical report revealed that AAA suffered hymenal lacerations at 10 o'clock position and it
must be emphasized that the said examination was made in November 2000, or months after the incidents of
rape occurred in February of 1999 and June of 2000. Thus, the CA was correct when it ruled that the presence of
such healed lacerations is consistent with and corroborative of AAA's testimony that she had indeed been raped
by appellant months before the date of the medical examination. [8] The healed lacerations on the victim's hymen
do not disprove that accused appellant raped the victim and cannot serve to acquit him.[9] Proof of hymenal
laceration is not even an element of rape, so long as there is enough proof of entry of the male organ into
the labia of the pudendum of the female organ.[10]
Appellant also contends that the testimony of AAA is full of inconsistencies and, hence, should not be given
credence, however, this Court has ruled that discrepancies referring only to minor details and collateral matters
do not affect the veracity or detract from the essential credibility of a witness' declarations, as long as these are
coherent and intrinsically believable on the whole.[11] Furthermore, it is an accepted doctrine in rape cases that in
the absence of evidence of improper motive on the part of the victim to falsely testify against the accused, her
testimony deserves credence.[12]
As to the retraction of AAA, this Court has ruled that when a rape victim's testimony is straightforward and
marked with consistency despite gruelling examination, it deserves full faith and confidence and cannot be
discarded. 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.[13] As a rule, recantation is viewed with disfavor firstly
because the recantation of her testimony by a vital witness of the State like AAA is exceedingly unreliable, and
secondly, because there is always the possibility that such recantation may later be repudiated. Indeed, to
disregard testimony solemnly given in court simply because the witness recants it ignores the possibility that
intimidation or monetary considerations may have caused the recantation. [14] Court proceedings, in which
testimony upon oath or affirmation is required to be truthful under all circumstances, are trivialized by the
recantation. The trial in which the recanted testimony was given is made a mockery, and the investigation is
placed at the mercy of an unscrupulous witness. Before allowing the recantation, therefore, the court must not be
too willing to accept it, but must test its value in a public trial with sufficient opportunity given to the party
adversely affected to cross-examine the recanting witness both upon the substance of the recantation and the
motivations for it.[15] The recantation, like any other testimony, is subject to the test of credibility based on the
relevant circumstances, including the demeanor of the recanting witness on the stand. In that respect, the finding
of the trial court on the credibility of witnesses is entitled to great weight on appeal unless cogent reasons
necessitate its re-examination, the reason being that the trial court is in a better position to hear first-hand and
observe the deportment, conduct and attitude of the witnesses. [16] In this regard, the CA was correct with the
following findings:
In the case at bench, the determination by the trial court of the credibility of "AAA's" accusations and recantation
is facilitated by the fact that her recantation was made in open court, by testifying for the defense. Unlike in cases
where recantations were made in affidavits, the trial court in this case had the opportunity to see the demeanor of
"AAA" not only when she narrated the sordid details of the alleged rape by her "adoptive" father, but also when
she claimed that she made up the previous rape charges upon the ill advice of her "adoptive" mother.

As such, it is difficult to overlook the fact that the trial court convicted accused-appellant even after examining the
young witness as she made a complete turnaround and admitted to perjury. The legal adage that the trial court is
in the best position to assess the credibility of witnesses thus finds an entirely new significance in this case where
"AAA" was subjected to gruelling cross examinations, redirect examinations and re-cross examinations both as a
prosecution and defense witness. Still, the trial court found that the private complainant's testimony for the
prosecution was the one that was worthy of belief.

Even if we disregard the elusive and incommunicable evidence of the witnesses' deportment on the stand while
testifying, it is clear which of the narrations of "AAA" was sincere and which was concocted. As found by the trial
court, "AAA's" testimony for the prosecution was clear, candid, and filled with emotions. It is worth noting that the
recantation was made only seven years from the date of her last testimony in open court, when "AAA" was
already nineteen (19) years old and, as noted by the trial court, unemployed.

Verily, the trial court gave credence to the testimony of "AAA" when she was presented as witness for the
prosecution. The RTC found that her clear narration of how the crime of rape on two counts was committed and
her categorical statement that the accused-appellant committed said crime, are sufficient to warrant the
conviction of the appellant for two counts of rape.[17]
Another point raised in this appeal is AAA's lack of resistance if indeed it was true that she was subjected to
sexual abuse because according to appellant, such absence of resistance tarnished AAA's testimony. Such
argument, however, deserves scant consideration. In People v. Enrique Quintos,[18] this Court ruled that
resistance or the absence thereof does not carry any weight in proving the crime of rape, thus:
In any case, resistance is not an element of the crime of rape. It need not be shown by the prosecution. Neither is
it necessary to convict an accused. The main element of rape is "lack of consent."

"Consent," "resistance," and "absence of resistance" are different things. Consent implies agreement and
voluntariness. It implies willfulness. Similarly, resistance is an act of will. However, it implies the opposite of
consent. It implies disagreement.

Meanwhile, absence of resistance only implies passivity. It may be a product of one's will. It may imply consent.
However, it may also be the product of force, intimidation, manipulation, and other external forces.

Thus, when a person resists another's sexual advances, it would not be presumptuous to say that that person
does not consent to any sexual activity with the other. That resistance may establish lack of consent. Sexual
congress with a person who expressed her resistance by words or deeds constitutes force either physically or
psychologically through threat or intimidation. It is rape.

Lack of resistance may sometimes imply consent. However, that is not always the case. While it may imply
consent, there are circumstances that may render a person unable to express her resistance to another's sexual
advances. Thus, when a person has carnal knowledge with another person who does not show any resistance, it
does not always mean that that person consented to such act. Lack of resistance does not negate rape.

Hence, Article 266-A of the Revised Penal Code does not simply say that rape is committed when a man has
carnal knowledge with or sexually assaults another by means of force, threat, or intimidation. It enumerates at
least four other circumstances under which rape may be committed: (1) by taking advantage of a person's
deprived reason or unconscious state; (2) through fraudulent machination; (3) by taking advantage of a person's
age (12 years of age) or demented status; and (4) through grave abuse of authority. Article 266-A recognizes that
rape can happen even in circumstances when there is no resistance from the victim.

Resistance, therefore, is not necessary to establish rape, especially when the victim is unconscious, deprived of
reason, manipulated, demented, or young either in chronological age or mental age.

This Court also not persuaded by appellant's contention that AAA's delay in reporting the crime indicates that the
accusations against him are false. The failure of complainant to disclose her defilement without loss of time to
persons close to her or to report the matter to the authorities does not perforce warrant the conclusion that she
was not sexually molested and that her charges against the accused are all baseless, untrue and fabricated.
[19]
Delay in prosecuting the offense is not an indication of a fabricated charge. Many victims of rape never
complain or file criminal charges against the rapists.[20] They prefer to bear the ignominy and pain, rather than
reveal their shame to the world or risk the offenders' making good their threats to kill or hurt their victims. [21]
Anent appellant's defense of denial and alibi, bare assertions thereof cannot overcome the categorical testimony
of the victim. Denial is an intrinsically weak defense which must be buttressed with strong evidence of non-
culpability to merit credibility. On the other hand, for alibi to prosper, it must be demonstrated that it was
physically impossible for appellant to be present at the place where the crime was committed at the time of
commission.[22]
As to the penalty imposed, the RTC and the CA were correct in imposing the penalty of reclusion
perpetua instead of death by virtue of R.A. No. 9346, as the rape is qualified by private complainant AAA's
minority and appellant's paternity. However, in the award of damages, a modification must be made per People
v. Ireneo Jugueta.[23] Where the penalty imposed is Death but reduced to reclusion perpetua because of R.A. No.
9346, the amounts of damages shall be as follows:
1. Civil Indemnity - P100,000.00
2. Moral Damages - P100,000.00
3. Exemplary Damages - P100,000.00
WHEREFORE, the appeal of Napoleon Bensurto, Jr. y Bolahabo is DISMISSED for lack merit and the Decision
dated March 28, 2014 of the Court of Appeals, affirming the Joint Decision dated November 28, 2011 of the
Regional Trial Court, Branch 48, Masbate City, in Criminal Cases Nos. 10225-26, convicting appellant of two (2)
counts of the crime of qualified rape defined and penalized under Article 266-A (1) (a) in relation to Art. 266-B (1)
of the Revised Penal Code, as amended by R.A. No. 8353 and imposing on each count, the penalty of Reclusion
Perpetua without eligibility for parole is AFFIRMED with the MODIFICATION that the award of damages on each
count must be in this manner per People v. Ireneo Jugueta:[24] P100,000.00 as civil indemnity, P100,000.00 as
moral damages, and P100,000.00 as exemplary damages, with legal interest on all damages awarded at the rate
of 6% per annum from the date of the finality of this Decision until fully paid.
SO ORDERED.
Velasco, Jr., (Chairperson), Perez, Reyes, and Perlas-Bernabe,* JJ., concur.