Cases.docx

G.R. No. 107801 March 26, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROSARIA V. IGNACIO, accused-appellant.

VITUG, J.: Rosaria V. Ignacio was accused of parricide before the Regional Trial Court of Rizal, Branch 76 (Criminal Case No. 1700),1 for fatally hitting her husband, Juan Ignacio, with a wooden club (palo-palo). The deceased was Rosaria's fourth husband. Juan died after having lived with Rosaria for two (2) years and seven (7) months. On 19 February 1992, the following information was filed against accused Rosaria Ignacio: That on or about the 10th day of February 1992 in the Municipality of Rodriguez, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill and while armed with the wooden club (palo-palo) did then and there willfully, unlawfully and feloniously attack, assault and hit her lawfully wedded husband Juan Ignacio, whereby inflicting upon the latter serious injuries which directly caused his death. Contrary to law.2 Rosaria pleaded not guilty to the charge.3 The prosecution gave the following narration of its version of the incident. Rosaria Ignacio, then 44 years of age, lived with her husband, Juan Ignacio, 67 years old, in a small two-storey house of sawali and cogon grass in Sampaguita Street, San Jose, Montalban (Rodriguez), Rizal. Residing with them was Rosaria's daughter, Milagros V. Cabanilla, by a previous marriage. On the night of 09 February 1992, Rosaria and Juan had a heated argument. Milagros, entreated them to stop but the couple were in no mood to heed her. The following night (10 February 1992), at dinner, Juan and Rosaria had another quarrel. Milagros grudgingly went upstairs and tried instead to put her child to sleep. She could hear, after a brief moment, that the fight had become somewhat violent (nagrarambulan). Milagros peeped. She saw by the gas lamp (batutoy), that both were pulling a piece of lawanit and each tried to take possession of it. Juan

ultimately released the lawanit and turned to go for his bolo when Rosaria picked up a palo-palo and hit Juan on the nape.4 Rosaria left the straggling (kikisay kisay) Juan and surrendered to the police at the municipal building. Rolando Ignacio, Juan's son by his former wife, was fishing in the San Jose river when he learned of the unfortunate incident. At the municipal hall in Montalban, Rizal, Rosaria voluntarily disclosed before Rolando and Pat. San Diego that she hit Juan with a wooden club.5 She repeated this statement at the Office of the Prosecutor in Marikina in the presence of Rolando. Juan died the following day.6 His body underwent postmortem examination at the Francisco Memorial Homes in Montalban, Rizal, by Dr. Emmanuel Aranas of the PNP Crime Laboratory Service.7 Dr. Aranas found a contusion on the left occipital region, a lacerated wound on the right occipital area and an abrasion on the right elbow. The cause of death, per the autopsy report, was attributed to hemorrhage resulting from the traumatic injuries on the head.8 Dr. Aranas opined that the contusion and laceration on Juan's head, which fractured the bones of the skull,9 had badly affected the cranial cavity of the brain. Testifying in her defense, Rosaria did not deny having inflicted the fatal wounds on her husband. According to her, between seven and eight o'clock in the evening of 10 February 1992, while she was resting on the wooden bed near the kitchen, after having returned home from her laundry work, her husband arrived. He was drunk. Armed with a bolo, he went around the wooden bed and then faced her. Exasperated, she finally stood up, pulled his hair, got hold of a palo-palo and hit him once on the head. The assault sent Juan hovering down the floor seriously wounded. Rosaria went to the municipal hall and surrendered to police officer San Diego. No other witness was presented by the defense. On 08 September 1992, the trial court rendered judgment convicting the accused and concluded: WHEREFORE, premises considered, judgment is hereby rendered finding herein accused Rosaria V. Ignacio guilty beyond reasonable doubt of the crime of Parricide as defined and penalized under Art. 246 of the Revised Penal Code, and sentencing her to suffer the penalty of reclusion perpetua, and to indemnify the heirs of Juan Ignacio in the amount of P30,000.00. 10

Rosaria has interposed this appeal praying that she be acquitted on the basis of self-defense or, in the alternative, that she be held guilty only of homicide rather than of parricide. An accused who interposes self-defense admits the commission of the act complained of. The burden of proving self-defense would now be on the accused who must show by strong, clear and convincing evidence that the killing is justified and that, therefore, no criminal liability has attached. 11 The first paragraph of Article 11 of the Revised Penal Code requires, in a plea of self-defense, (1) an unlawful aggression on the part of the victim, (2) a reasonable necessity of the means employed by the accused to prevent or repel it, and (3) the lack of sufficient provocation on the part of the person defending himself. 12 Unlawful aggression is a condition sine qua non for the justifying circumstance of self-defense. Without it, there can be no self-defense, whether complete or incomplete, that can validly be invoked. 13 The importance of this requisite must remain underscored. In De Luna vs. Court of Appeals, 14 the Court has explained: . . . . We did repeatedly say before that, whether complete or incomplete, self-defense, by its very nature and essence, always would require the attendance of unlawful aggression initiated by the victim which must clearly be shown. When unlawful aggression on the victim's part is alone established, incomplete self-defense is so appreciated merely as an ordinary mitigating circumstance under Article 13, paragraph 1, of the Code. When such unlawful aggression is coupled with still another element of self-defense, incomplete self-defense becomes a privileged mitigating circumstance, referred to in Article 69 of the Revised Penal Code, that entitles the accused to a reduction of the penalty imposed by law for the felony by one or two degrees depending on the conditions and circumstances therein obtaining. 15 The presence of the requisite of unlawful aggression is pivotal. In the case at bench, appellant has sought to prove unlawful aggression by her testimony; thus — Q. Please tell the court what was that unusual incident? A. That night, as I was taking a rest, my husband arrived and he was drunk. When I was on top of our wooden bed, I saw him armed with a bolo going around me, I lost my patience

(nagdilim ang aking paningin), I got hold of a palo-palo and hit him on his head, sir. Q. And what was your relative position as compared to the position of the victim when you hit him with a palo-palo? A. He was facing me and I was on top of the wooden bed and as I was on top of it, I hit him, sir. xxx

xxx

xxx

Q. You also testified that prior to that incident, before you hit your husband with a palo-palo, he was armed with a bolo, is that correct? A. Yes, sir. Q. Where did he get that bolo, if you know? A. At the post, near the wooden bed, sir. Q. Are you aware as to the whereabouts of that bolo now? A. I do not know, sir. 16 In People vs. Pletado 17 the Court, quoting from People vs. Bausing, 18 has reiterated the acceptable test in determining the presence of unlawful aggression; viz: . . . . (F)or unlawful aggression to be appreciated, there must be an actual, sudden, unexpected attack or imminent danger thereof, and not merely a threatening or intimidating attitude (People vs. Pasco, Jr., supra; People vs. Rev, 172 SCRA 149 [1989]) and the accused must present proof of positively strong act of real aggression (Pacificar vs. Court of Appeals, 125 SCRA 716 [1983]; People vs. Aquiatan, 123 SCRA 501 [1983]; People vs. Aquino, 124 SCRA 835 [1983]). Unlawful aggression must be such as to put in real peril the life or personal safety of the person defending himself or of a relative sought to be defended and not an imagined threat. 19 By her own admission, appellant only thought that her husband would strike her. Answering questions from the trial court, she testified:

COURT: Q. Was he really about to strike you?

A. Just opposite the place where they were sleeping, sir. Q. What was the position of Juan Ignacio when you saw him, as you said, he was getting a bolo?

A. Yes, sir. Q. What made you say that? A. Because even before, he was doing that to me, sir. Q. But at that very precise moment, were you really certain that he was going to hit you?

A. He stood up to get his bolo but he felt so weak because he was drunk, sir. (Emphasis supplied.) 21 Self-defense, being essentially a factual matter furthermore, is best addressed by the trial court. 22 Here, the trial court has also observed:

A. I am sure that he will hit me, sir. Q. Was it necessary to hit him with this palopalo? A. I hit him because I defended myself, sir. (Emphasis supplied.) 20 In fact, appellant's claim of self-defense was belied by her own daughter, Milagros, who declared that even before the victim could get his bolo, appellant already picked up her palo-palo and hit him. Q. You also made mention in your statement, particularly in question No. 6 to which you answered "nakarinig po ako ng kalabugan" what is that noise all about? A. Both of them were pulling the lawanit and as they were pulling the lawanit, Juan Ignacio then freed the lawanit and was about to get his bolo but my mother was able to get at once the palo-palo and hit Juan Ignacio, sir. xxx

xxx

xxx

Q. Mrs. Witness, you said during the crossexamination that the deceased tried to get a bolo, is that correct? A. Yes, sir. Q. And do you know where the deceased was keeping his bolo?

Accused's claim of self-defense cannot be sustained. The bolo which was allegedly in victim's possession and with which the victim allegedly attempted to hit the accused, was never found, as in fact, admittedly, its whereabouts [was] unknown to the accused (TSN, p. 4, July 29, 1992 hearing) who naturally would have preserved the same and utilized it in evidence to corroborate her claim. Under the circumstances, the existence of the bolo particularly on the occasion alleged, is even doubtful. 23 Appellant contends that, if at all, she should be convicted only of homicide, not parricide, because "there was no clear evidence of marriage" between her and the victim. 24 Article 246 of the Revised Penal Code defining and penalizing the crime of parricide provides: Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death. Indeed, the phrase "whether legitimate or illegitimate" characterizes the relationship between the accused and his victim who might be his father, mother, or child, but not the "spouse" who obviously refers to either the legitimate husband or the lawful wife. 25 Here, appellant not only declared in court that the victim was her fourth husband 26 but she also swore that they were married before a judge in Montalban, Rizal. 27 The victim's son testified that his father and appellant were husband and wife, 28 in much the same way that appellant's daughter, Milagros, held the victim to be her mother's husband. 29 Appellant's own admission that she was married to the victim was a confirmation of the semper praesumitur

matrimonio and the presumption that a man and a woman so deporting themselves as husband and wife had verily entered into a lawful contract of marriage. 30 In People vs. Borromeo, 31 the Court has said: Persons living together in apparent matrimony are presumed, in the absence of any counter presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would be living in constant violation of decency and law (Son Cui vs. Guepangco, 22 Phil. 216). The presumption in favor of matrimony is one of the strongest known in law. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. There is the presumption that persons living together as husband and wife are married to each other. 32 In view of the presence of the mitigating circumstance of voluntary surrender, the trial court correctly imposed upon appellant the penalty of reclusion perpetua. 33 WHEREFORE, the decision of the trial court finding appellant Rosaria V. Ignacio guilty beyond reasonable doubt of the crime of parricide and imposing upon her the penalty of reclusion perpetua is AFFIRMED subject to the modification that the indemnity awarded to the heirs of the victim, Juan Ignacio, is increased to Fifty Thousand Pesos (P50,000.00). Costs against accused-appellant. SO ORDERED. Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

G.R. No. 177218

October 3, 2011

PEOPLE OF THE PHILIPPINES, Appellee, vs. NOEL T. SALES, Appellant. DECISION DEL CASTILLO, J.:

When arraigned on April 11, 2003 and July 1, 2003, appellant pleaded not guilty for the charges of parricide7 and slight physical injuries8 respectively. The cases were then consolidated upon manifestation of the prosecution which was not objected to by the defense.9 During the pre-trial conference, the parties agreed to stipulate that appellant is the father of the victims, Noemar Sales (Noemar) and Noel Sales, Jr. (Junior); that at the time of the incident, appellant’s family was living in the conjugal home located in Barangay San Vicente, Tinambac, Camarines Sur; and, that appellant voluntarily surrendered to the police.10

A father ought to discipline his children for committing a misdeed. However, he may not employ sadistic beatings and inflict fatal injuries under the guise of disciplining them.

Thereafter, trial ensued.

This appeal seeks the reversal of the December 4, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01627 that affirmed the August 3, 2005 Joint Decision2 of the Regional Trial Court (RTC), Branch 63 of Calabanga, Camarines Sur in Criminal Case Nos. RTC’03-782 and RTC’03-789, convicting appellant Noel T. Sales (appellant) of the crimes of parricide and slight physical injuries, respectively. The Information3 for parricide contained the following allegations:

On September 19, 2002, brothers Noemar and Junior, then nine and eight years old, respectively, left their home to attend the fluvial procession of Our Lady of Peñafrancia without the permission of their parents. They did not return home that night. When their mother, Maria Litan Sales (Maria), looked for them the next day, she found them in the nearby Barangay of Magsaysay. Afraid of their father’s rage, Noemar and Junior initially refused to return home but their mother prevailed upon them. When the two kids reached home at around 8 o’clock in the evening of September 20, 2002, a furious appellant confronted them. Appellant then whipped them with a stick which was later broken so that he brought his kids outside their house. With Noemar’s and Junior’s hands and feet tied to a coconut tree, appellant continued beating them with a thick piece of wood. During the beating Maria stayed inside the house and did not do anything as she feared for her life.

That on or about the 20th day of September, 2002, at around or past 8:00 o’clock in the evening at Brgy. San Vicente, Tinambac, Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with evident premeditation and [in] a fit of anger, did then and there willfully, unlawfully and feloniously hit [several] times, the different parts of the body of his legitimate eldest son, Noemar Sales, a 9-year old minor, with a [piece of] wood, measuring more or less one meter in length and one [and] a half inches in diameter, [thereby] inflicting upon the latter mortal wounds, which cause[d] the death of the said victim, to the damage and prejudice of the latter’s heirs in such amount as may be proven in court. ACTS CONTRARY TO LAW.4 On the other hand, the Information5 in Criminal Case No. RTC’03-789 alleges that appellant inflicted slight physical injuries in the following manner: That on or about the 20th day of September, 2002, at around or past 8:00 o’clock in the evening, at Brgy. San Vicente, Tinambac, Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named [accused] assault[ed] and hit with a piece of wood, one Noel Sales, Jr., an 8-year old minor, his second legitimate son, thereby inflicting upon him physical injuries which have required medical attendance for a period of five (5) days to the damage and prejudice of the victim’s heirs in such amount as may be proven in court. ACTS CONTRARY TO LAW.6

The Version of the Prosecution

When the beating finally stopped, the three walked back to the house with appellant assisting Noemar as the latter was staggering, while Junior fearfully followed. Maria noticed a crack in Noemar’s head and injuries in his legs. She also saw injuries in the right portion of the head, the left cheek, and legs of Junior. Shortly thereafter, Noemar collapsed and lost consciousness. Maria tried to revive him and when Noemar remained motionless despite her efforts, she told appellant that their son was already dead. However, appellant refused to believe her. Maria then told appellant to call a quack doctor. He left and returned with one, who told them that they have to bring Noemar to a hospital. Appellant thus proceeded to take the unconscious Noemar to the junction and waited for a vehicle to take them to a hospital. As there was no vehicle and because another quack doctor they met at the junction told them that Noemar is already dead, appellant brought his son back to their house. Noemar’s wake lasted only for a night and he was immediately buried the following day. His body was never examined by a doctor. The Version of the Defense

Prior to the incident, Noemar and Junior had already left their residence on three separate occasions without the permission of their parents. Each time, appellant merely scolded them and told them not to repeat the misdeed since something untoward might happen to them. During those times, Noemar and Junior were never physically harmed by their father. However, Noemar and Junior again left their home without their parents’ permission on September 16, 2002 and failed to return for several days. Worse, appellant received information that his sons stole a pedicab. As they are broke, appellant had to borrow money so that his wife could search for Noemar and Junior. When his sons finally arrived home at 8 o’clock in the evening of September 20, 2002, appellant scolded and hit them with a piece of wood as thick as his index finger. He hit Noemar and Junior simultaneously since they were side by side. After whipping his sons in their buttocks three times, he noticed that Noemar was chilling and frothing. When Noemar lost consciousness, appellant decided to bring him to a hospital in Naga City by waiting for a vehicle at the crossroad which was seven kilometers away from their house. Appellant held Noemar while on their way to the crossroad and observed his difficulty in breathing. The pupils of Noemar’s eyes were also moving up and down. Appellant heard him say that he wanted to sleep and saw him pointing to his chest in pain. However, they waited in vain since a vehicle never came. It was then that Noemar died. Appellant thus decided to just bring Noemar back to their house. Appellant denied that his son died from his beating since no parent could kill his or her child. He claimed that Noemar died as a result of difficulty in breathing. In fact, he never complained of the whipping done to him. Besides, appellant recalled that Noemar was brought to a hospital more than a year before September 2002 and diagnosed with having a weak heart.

aggravating circumstance of evident premeditation against appellant since there is no proof that he planned to kill Noemar. But the trial court appreciated in his favor the mitigating circumstances of voluntary surrender and lack of intent to commit so grave a wrong. The dispositive portion of said Joint Decision reads: WHEREFORE, in view of the foregoing, the prosecution having proven the guilt of Noel Sales, beyond reasonable doubt, he is found guilty of parricide in Crim. Case No. RTC’03-782 and sentenced to suffer the penalty of reclusion perpetua. He is likewise ordered to pay the heirs of Noemar Sales, the amount of ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; ₱25,000,00 as exemplary damages and to pay the costs. Furthermore, accused Noel Sales is also found guilty beyond reasonable doubt of the crime of slight physical injuries in Crim. Case No. RTC’03-789 and sentenced to suffer the penalty of twenty (20) days of Arresto Menor in its medium period. Accused Noel Sales is likewise meted the accessory penalties as provided under the Revised Penal Code. Considering that herein accused has undergone preventive imprisonment, he shall be credited in the service of his sentence with the time he has undergone preventive imprisonment in accordance with and subject to the conditions provided for in Article 29 of the Revised Penal Code. SO ORDERED.14 Appellant filed a Notice of Appeal15 which was given due course in an Order16 dated September 21, 2005. Ruling of the Court of Appeals However, the appellate court denied the appeal and affirmed the ruling of the trial court. The dispositive portion of its Decision17 reads as follows:

On the other hand, Maria testified that Noemar suffered from epilepsy. Whenever he suffers from epileptic seizures, Noemar froths and passes out. But he would regain consciousness after 15 minutes. His seizures normally occur whenever he gets hungry or when scolded.

WHEREFORE, premises considered, the appeal is DENIED. The assailed decision dated August 3, 2005 in Criminal Case Nos. RTC’03-782 and RTC’03-789 for Parricide and Slight Physical Injuries, respectively, is AFFIRMED.

The death of Noemar was reported to the police captain.11 Thereafter, appellant surrendered voluntarily.12

Pursuant to Section 13(c), Rule 124 of the Revised Rules of Criminal Procedure, appellant may appeal this case to the Supreme Court via a Notice of Appeal filed before this Court.

by

the

barangay

Ruling of the Regional Trial Court In a Joint Decision,13 the trial court held that the evidence presented by prosecution was sufficient to prove that appellant was guilty of committing crimes of parricide and slight physical injuries in the manner described in Informations. In the crime of parricide, the trial court did not consider

SO ORDERED.18 the the the the

Issues Hence, appellant is now before this Court with the following two-fold issues: I

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES CHARGED. II THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT TO THE TESTIMONIES OF THE DEFENSE WITNESSES.19 Our Ruling The appeal is without merit. The Charge of Parricide Appellant admits beating his sons on September 20, 2002 as a disciplinary measure, but denies battering Noemar to death. He believes that no father could kill his own son. According to him, Noemar had a weak heart that resulted in attacks consisting of loss of consciousness and froth in his mouth. He claims that Noemar was conscious as they traveled to the junction where they would take a vehicle in going to a hospital. However, Noemar had difficulty in breathing and complained of chest pain. He contends that it was at this moment that Noemar died, not during his whipping. To substantiate his claim, appellant presented his wife, Maria, who testified that Noemar indeed suffered seizures, but this was due to epilepsy. The contentions of appellant fail to persuade. The imposition of parental discipline on children of tender years must always be with the view of correcting their erroneous behavior. A parent or guardian must exercise restraint and caution in administering the proper punishment. They must not exceed the parameters of their parental duty to discipline their minor children. It is incumbent upon them to remain rational and refrain from being motivated by anger in enforcing the intended punishment. A deviation will undoubtedly result in sadism. Prior to whipping his sons, appellant was already furious with them because they left the family dwelling without permission and that was already preceded by three other similar incidents. This was further aggravated by a report that his sons stole a pedicab thereby putting him in disgrace. Moreover, they have no money so much so that he still had to borrow so that his wife could look for the children and bring them home. From these, it is therefore clear that appellant was motivated not by an honest desire to discipline the children for their misdeeds but by an evil intent of venting his anger. This can reasonably be concluded from the injuries of Noemar in his head, face and legs. It was only when Noemar’s body slipped from the coconut tree to which he was tied and lost consciousness that appellant stopped the beating. Had not Noemar lost consciousness, appellant would most likely not have

ceased from his sadistic act. His subsequent attempt to seek medical attention for Noemar as an act of repentance was nevertheless too late to save the child’s life. It bears stressing that a decent and responsible parent would never subject a minor child to sadistic punishment in the guise of discipline. Appellant attempts to evade criminal culpability by arguing that he merely intended to discipline Noemar and not to kill him. However, the relevant portion of Article 4 of the Revised Penal Code states: Art. 4. Criminal liability. – Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. xxxx In order that a person may be criminally liable for a felony different from that which he intended to commit, it is indispensible (a) that a felony was committed and (b) that the wrong done to the aggrieved person be the direct consequence of the crime committed by the perpetrator.20 Here, there is no doubt appellant in beating his son Noemar and inflicting upon him physical injuries, committed a felony. As a direct consequence of the beating suffered by the child, he expired. Appellant’s criminal liability for the death of his son, Noemar, is thus clear. Appellant’s claim that it was Noemar’s heart ailment that caused his death deserves no merit. This declaration is self-serving and uncorroborated since it is not substantiated by evidence. While Dr. Salvador Betito, a Municipal Health Officer of Tinambac, Camarines Sur issued a death certificate indicating that Noemar died due to cardio-pulmonary arrest, the same is not sufficient to prove that his death was due mainly to his poor health. It is worth emphasizing that Noemar’s cadaver was never examined. Also, even if appellant presented his wife, Maria, to lend credence to his contention, the latter’s testimony did not help as same was even in conflict with his testimony. Appellant testified that Noemar suffered from a weak heart which resulted in his death while Maria declared that Noemar was suffering from epilepsy. Interestingly, Maria’s testimony was also unsubstantiated by evidence. Moreover, as will be discussed below, all the elements of the crime of parricide are present in this case. All the Elements of Parricide are present in the case at bench. We find no error in the ruling of the trial court, as affirmed by the appellate court, that appellant committed the crime of parricide. Article 246 of the Revised Penal Code defines parricide as follows:

Art. 246. Parricide. – Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.

presentation by appellant of himself to the police officer on duty in a spontaneous manner is a manifestation of his intent "to save the authorities the trouble and expense that may be incurred for his search and capture"25 which is the essence of voluntary surrender.

"Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of accused."21

However, there was error in appreciating the mitigating circumstance of lack of intention to commit so grave a wrong. Appellant adopted means to ensure the success of the savage battering of his sons. He tied their wrists to a coconut tree to prevent their escape while they were battered with a stick to inflict as much pain as possible. Noemar suffered injuries in his face, head and legs that immediately caused his death. "The mitigating circumstance of lack of intent to commit so grave a wrong as that actually perpetrated cannot be appreciated where the acts employed by the accused were reasonably sufficient to produce and did actually produce the death of the victim."26

In the case at bench, there is overwhelming evidence to prove the first element, that is, a person was killed. Maria testified that her son Noemar did not regain consciousness after the severe beating he suffered from the hands of his father. Thereafter, a quack doctor declared Noemar dead. Afterwards, as testified to by Maria, they held a wake for Noemar the next day and then buried him the day after. Noemar’s Death Certificate22 was also presented in evidence. There is likewise no doubt as to the existence of the second element that the appellant killed the deceased. Same is sufficiently established by the positive testimonies of Maria and Junior. Maria testified that on September 20, 2002, Noemar and his younger brother, Junior, were whipped by appellant, their father, inside their house. The whipping continued even outside the house but this time, the brothers were tied side by side to a coconut tree while appellant delivered the lashes indiscriminately. For his part, Junior testified that Noemar, while tied to a tree, was beaten by their father in the head. Because the savagery of the attack was too much for Noemar’s frail body to endure, he lost consciousness and died from his injuries immediately after the incident.

The Award of Damages and Penalty for Parricide We find proper the trial court’s award to the heirs of Noemar of the sums of ₱50,000.00 as civil indemnity, and ₱50,000.00 as moral damages. However, the award of exemplary damages of ₱25,000.00 should be increased to ₱30,000.00 in accordance with prevailing jurisprudence.27 "In addition, and in conformity with current policy, we also impose on all the monetary awards for damages an interest at the legal rate of 6% from the date of finality of this Decision until fully paid."28

As to the third element, appellant himself admitted that the deceased is his child. While Noemar’s birth certificate was not presented, oral evidence of filial relationship may be considered.23 As earlier stated, appellant stipulated to the fact that he is the father of Noemar during the pre-trial conference and likewise made the same declaration while under oath.24 Maria also testified that Noemar and Junior are her sons with appellant, her husband. These testimonies are sufficient to establish the relationship between appellant and Noemar.

As regards the penalty, parricide is punishable by reclusion perpetua to death. The trial court imposed the penalty of reclusion perpetua when it considered the presence of the mitigating circumstances of voluntary surrender and lack of intent to commit so grave a wrong. However, even if we earlier ruled that the trial court erred in considering the mitigating circumstance of lack of intent to commit so grave a wrong, we maintain the penalty imposed. This is because the exclusion of said mitigating circumstance does not result to a different penalty since the presence of only one mitigating circumstance, which is, voluntary surrender, with no aggravating circumstance, is sufficient for the imposition of reclusion perpetua as the proper prison term. Article 63 of the Revised Penal Code provides in part as follows:

Clearly, all the elements of the crime of parricide are obtaining in this case.

Art. 63. Rules for the application of indivisible penalties. - x x x

There is Mitigating Circumstance of Voluntary Surrender but not Lack of Intention to Commit so Grave a Wrong

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:

The trial court correctly appreciated the mitigating circumstance of voluntary surrender in favor of appellant since the evidence shows that he went to the police station a day after the barangay captain reported the death of Noemar. The

xxxx 3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied.

xxxx

xxxx

The crime of parricide is punishable by the indivisible penalties of reclusion perpetua to death. With one mitigating circumstance, which is voluntary surrender, and no aggravating circumstance, the imposition of the lesser penalty of reclusion perpetua and not the penalty of death on appellant was thus proper.29

There being no mitigating or aggravating circumstance present in the commission of the crime, the penalty shall be in its medium period. The RTC was thus correct in imposing upon appellant the penalty of twenty (20) days of arresto menor in its medium period.

The Charge of Slight Physical Injuries

WHEREFORE, the appeal is DENIED. The Decision of the Court of Appeals in CAG.R. CR-H.C. No. 01627 that affirmed the Joint Decision of the Regional Trial Court, Branch 63 of Calabanga, Camarines Sur in Criminal Case Nos. RTC’03-782 and RTC’03-789, convicting Noel T. Sales of the crimes of parricide and slight physical injuries is AFFIRMED with MODIFICATIONS that the award of exemplary damages is increased to ₱30,000.00. In addition, an interest of 6% is imposed on all monetary awards from date of finality of this Decision until fully paid.

The victim himself, Junior testified that he, together with his brother Noemar, were beaten by their father, herein appellant, while they were tied to a coconut tree. He recalled to have been hit on his right eye and right leg and to have been examined by a physician thereafter.30 Maria corroborated her son’s testimony.31 Junior’s testimony was likewise supported by Dr. Ursolino Primavera, Jr. (Dr. Primavera) of Tinambac Community Hospital who examined him for physical injuries. He issued a Medical Certificate for his findings and testified on the same. His findings were (1) muscular contusions with hematoma on the right side of Junior’s face just below the eye and on both legs, which could have been caused by hitting said area with a hard object such as a wooden stick and, (2) abrasions of brownish color circling both wrist with crust formation which could have been sustained by the patient due to struggling while his hands were tied. When asked how long does he think the injuries would heal, Dr. Primavera answered one to two weeks.32 But if applied with medication, the injuries would heal in a week.33 We give full faith and credence to the categorical and positive testimony of Junior that he was beaten by his father and that by reason thereof he sustained injuries. His testimony deserves credence especially since the same is corroborated by the testimony of his mother, Maria, and supported by medical examination. We thus find that the RTC correctly held appellant guilty of the crime of slight physical injuries.1awphil Penalty for Slight Physical Injuries We likewise affirm the penalty imposed by the RTC. Dr. Primavera testified that the injuries sustained by Junior should heal in one week upon medication. Hence, the trial court correctly meted upon appellant the penalty under paragraph 1, Article 266 of the Revised Penal Code which provides: ART. 266. Slight Physical Injuries and maltreatment. – The crime of slight physical injuries shall be punished: 1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for labor from one to nine days or shall require medical attendance during the same period.

SO ORDERED.

G.R. No. 74433 September 14, 1987 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRANCISCO ABARCA, accused-appellant.

of his will, that is by the timely and able medical assistance rendered to Lina Amparado and Arnold Amparado which prevented their death. 1 xxx xxx xxx On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately the facts as follows:

SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the accused-appellant Francisco Abarca to death for the complex crime of murder with double frustrated murder. The case was elevated to this Court in view of the death sentence imposed. With the approval of the new Constitution, abolishing the penalty of death and commuting all existing death sentences to life imprisonment, we required the accused-appellant to inform us whether or not he wished to pursue the case as an appealed case. In compliance therewith, he filed a statement informing us that he wished to continue with the case by way of an appeal. The information (amended) in this case reads as follows: xxx xxx xxx The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the crime of Murder with Double Frustrated Murder, committed as follows: That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with evident premeditation, and with treachery, armed with an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously attack and shot several times KHINGSLEY PAUL KOH on the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which caused his instantaneous death and as a consequence of which also caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the different parts of their bodies thereby inflicting gunshot wounds which otherwise would have caused the death of said Lina Amparado and Arnold Amparado, thus performing all the acts of execution which should have produced the crimes of murders as a consequence, but nevertheless did not produce it by reason of causes independent

Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently began while the accused was in Manila reviewing for the 1983 Bar examinations. His wife was left behind in their residence in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984). On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning of that date he went to the bus station to go to Dolores, Eastern Samar, to fetch his daughter. However, he was not able to catch the first trip (in the morning). He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then proceeded to the residence of his father after which he went home. He arrived at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.). Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and Koh noticed the accused, the wife pushed her paramour who got his revolver. The accused who was then peeping above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.). The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find his wife and Koh there. He proceeded to the "mahjong session" as it was the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina Amparado who were occupying a room adjacent to the room where Koh was playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died

instantaneously of cardiorespiratory arrest due to shock and hemorrhage as a result of multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also exh. C). His wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of his wounds. He spent P15,000.00 for medical expenses while his wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2 On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof reads as follows: xxx xxx xxx WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of the complex crime of murder with double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does not consider the effect of mitigating or aggravating circumstances when the law prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000, complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. It appears from the evidence that the deceased Khingsley Paul Koh and defendant's wife had illicit relationship while he was away in Manila; that the accused had been deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his reasoning faculties and deprived him of the capacity to reflect upon his acts. Considering all these circumstances this court believes the accused Francisco Abarca is deserving of executive clemency, not of full pardon but of a substantial if not a radical reduction or commutation of his death sentence. Let a copy of this decision be furnished her Excellency, the President of the Philippines, thru the Ministry of Justice, Manila. SO ORDERED. 3

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

elements are present in this case. The trial court, in convicting the accusedappellant of murder, therefore erred. Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the accused's rage. It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v. Araque, 6 we said: xxx xxx xxx As may readily be seen from its provisions and its place in the Code, the above-quoted article, far from defining a felony, merely provides or grants a privilege or benefit — amounting practically to an exemption from an adequate punishment — to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused — who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be — is punished only with destierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circumstances mentioned therein, amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a

distinct crime, would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the information. Such an interpretation would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only "acts or omissons . . . constituting the offense" should be pleaded in a complaint or information, and a circumstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense charged-but a matter of defense that must be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.) That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There can, we think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate crime. xxx xxx xxx We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. ... 7 xxx xxx xxx Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. 8 It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circumstances, We cannot accordingly appreciate treachery in this case. The next question refers to the liability of the accused-appellant for the physical injuries suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accused-appellant shot the victim. The Solicitor General recommends a finding of double frustrated murder against the accused-appellant,

and being the more severe offense, proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The accused-appellant did not have the intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony. 9 But the case at bar requires distinctions. Here, the accused-appellant was not committing murder when he discharged his rifle upon the deceased. Inflicting death under exceptional circumstances is not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries suffered by the Amparados. This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that before firing at the deceased, he uttered warning words ("an waray labot kagawas,") 10 that is not enough a precaution to absolve him for the injuries sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable under the first part, second paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or negligence. (The records show that Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing, with respect to Lina Amparado, as to the extent of her injuries. We presume that she was placed in confinement for only ten to fourteen days based on the medical certificate estimating her recovery period.) 12

For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellant arresto mayor (in its medium and maximum periods) in its maximum period, arresto to being the graver penalty (than destierro). 13 WHEREFORE, the decision appealed from is hereby MODIFIED. The accusedappellant is sentenced to four months and 21 days to six months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs. IT IS SO ORDERED.

G.R. Nos. 130634-35

March 12, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANOLITO OYANIB y MENDOZA, accused-appellant.

premeditation, attack, assault, stab and wound his wife, as a result of said attack, the said Tita Oyanib died. "Contrary to and in violation of Article 246 of the Revised Penal Code."6

PARDO, J.: Accused Manolito Oyanib y Mendoza appeals from the joint decision1 of the Regional Trial Court, Branch 02, Iligan City finding him guilty beyond reasonable doubt of homicide and parricide and sentencing him to an indeterminate penalty2 of six (6) months one day (1) to six (6) years of prision correccional as minimum to six (6) years one (1) day to eight (8) years of prision mayor as maximum,3 and to pay P50,000.00 civil indemnity and the costs for the death of Jesus Esquierdo, and to reclusion perpetua, to pay P50,000.00 and the costs for the death of his wife, Tita T. Oyanib.4 On September 11, 1995, Iligan City Prosecutor Ulysses V. Lagcao filed with the Regional Trial Court, Iligan City two (2) separate informations charging accused Manolito Oyanib y Mendoza with murder and parricide, as follows: Criminal Case No. 6012

"That on or about September 4, 1995, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a deadly weapon to wit: a hunting knife about six inches long and with intent to kill and evident premeditation and by means of treachery, did then and there willfully, unlawfully and feloniously attack, assault, stab and wound one Jesus Esquierdo, thereby inflicting upon him the following physical injuries, to wit: Cardiorespiratory Hypovolemic shock Multiple organ Multiple stab wound chest & abdomen

arrest irreversible injury

and as a result thereof the said Jesus Esquierdo died. "Contrary to and in violation of Article 248 of the Revised Penal Code with the aggravating circumstances (sic) of evident premeditation."5 Criminal Case No. 6018 "That on or about September 4, 1995, in the City of Iligan, Philippines, and within the jurisdiction of this Honorable Court, the said accused, having conceived and (sic) deliberate intent to kill his wife Tita Oyanib, did then and there willfully, unlawfully and feloniously and with evident

The prosecutor recommended no bail for the temporary liberty of accused Manolito Oyanib y Mendoza in both cases. On September 11, 1995, accused voluntarily surrendered to the police authorities7 and was immediately detained at the Iligan City Jail.8 On January 17, 1996, the trial court arraigned accused Manolito Oyanib y Mendoza by reading the informations against him and translating them into the Visayan dialect.9 He pleaded not guilty to both charges. As the two (2) cases arose from the same set of facts, the trial court conducted a joint trial. Accused Manolito Oyanib y Mendoza (hereafter Manolito) and Tita T. Oyanib (hereafter Tita) were married on February 3, 1979 10 and had two (2) children, Desilor and Julius. They lived in Purok 1, Tambacan, Iligan City. In 1994, due to marital differences, Manolito and Tita separated, with Manolito keeping custody of their two (2) children. Tita rented a room at the second floor of the house of Edgardo Lladas (hereafter Edgardo), not far from the place where her family lived. At about 9:30 in the evening of September 4, 1995, while Edgardo and his family were watching TV at the salalocated at the ground floor of their house at Purok 3-A, Tambacan, Iligan City, they heard a commotion coming from the second floor rented by Tita. The commotion and the noise lasted for quite some time. When it died down, Edgardo went upstairs to check.11 Upstairs, Edgardo saw Tita wearing a duster, bloodied and sprawled on the floor. He saw Manolito stabbing Jesus Esquierdo (hereafter Jesus) while sitting on the latter's stomach. Jesus was wearing a pair of long black pants. When Edgardo asked Manolito what he was doing, accused told Edgardo not to interfere. Thereafter, Edgardo left the house and called the police. Meanwhile, the neighbors brought Tita to the hospital. She died on the way to the hospital.12 SPO3 Eduard Tubil, police investigator, General Investigation Office, Iligan City Police Command, Precinct I, Poblacion, Iligan City said that at about 9:00 in the evening of September 4, 1995, while he was on duty, he received an information regarding a stabbing incident at the Llagas residence at Purok 3-A, Tambacan, Iligan City.13

At the crime scene, SPO3 Tubil saw the lifeless body of Jesus lying face up with several stab wounds in different parts of the body. Jesus was clad in t-shirt and long pants. From the crime scene, he recovered a knife. Afterwards, he went to Dr. Uy Hospital to check on Tita; he was informed that she was dead. Manolito was the suspect in the killing of Jesus and Tita.14 The incident was recorded in the police blotter as Entry No. 137138.15 On September 5, 1995, Dr. Leonardo A. Labanon, Medico-Legal Officer, Iligan City examined the bodies of Jesus and Tita.16 Jesus sustained multiple stab wounds, and those inflicted in the right and left chests and stomach were fatal.17 The cause of death was "cardiorespiratory arrest, hypovolemic shock irreversible, multiple organ injury and multiple stab wound chest and abdomen."18 Likewise, Tita sustained several stab wounds, with the fatal wounds inflicted in the left chest and right side of the abdomen. The cause of death was "cardiorespiratory arrest, hypovolemic shock and multiple stab wound."19 As heretofore stated, in 1994, following a series of arguments, Manolito and Tita decided to live separately. Manolito retained custody of their two (2) children. Immediately after the separation, Tita stayed at her friend Merlyn's house for two (2) months. Afterwards, she transferred to the Lladas residence, located at Purok 3, G. Tambacan, Iligan City, and rented the second floor.20 The rented space consisted mainly of a sala with one adjoining room. It was arranged in a manner that if one enters the main entrance door, one is immediately led to the sala and from the sala, directly to the door of the adjoining room. Despite their separation, Manolito tried to win Tita back and exerted all efforts towards reconciliation for the sake of the children. However, Tita was very reluctant to reconcile with Manolito.21 In fact, she was very open about her relationship with other men and would flaunt it in front of Manolito. One time, he chanced upon his wife and her paramour, Jesus, in a very intimate situation by the hanging bridge at Brgy. Tambacan, Iligan City.22 Manolito confronted Tita and Jesus about this. He censured his wife and reminded her that she was still his wife. They just ignored him; they even threatened to kill him.23 In the evening of September 4, 1995, after supper, his daughter Desilor handed Manolito a letter from the Iligan City National High School. The letter mentioned that his son Julius failed in two (2) subjects and invited his parents to a meeting at the school. Because he had work from 8:00 in the morning until 5:00 in the afternoon the next day, Manolito went to Tita's house to ask her to attend the school meeting in his behalf.24 Upon reaching Tita's rented place, he heard "sounds of romance" (kissing) coming from the inside. He pried open the door lock using a hunting knife. He caught his

wife Tita and Jesus having sexual intercourse. Jesus was on top of Tita and his pants were down to his knees. Upon seeing him, Jesus kicked Manolito in the cheek. Manolito immediately stabbed Jesus. Though Jesus was 5'9" in height and weighed about 70 kg., the suddenness of the assault caused him to lose his balance and fall down. Manolito took advantage of this opportunity and stabbed Jesus in the stomach. Tita left the room upon seeing Manolito, only to come back armed with a Tanduay bottle. She hit Manolito in the head, while at the same time shouting "kill him Jake, kill him Jake."25 In the commotion, Manolito stabbed Jesus, hitting him in the abdomen. Jesus fell down and Manolito stabbed him again. Meanwhile, Tita stabbed Manolito in the arm with the broken Tanduay bottle. This angered Manolito and he stabbed Tita in the left breast. He stabbed her three (3) more times in different parts of her body. Tita fell near the lifeless body of her paramour. It was at this point that Edgardo, the owner of the house Tita was renting, appeared from the ground floor and inquired about what had happened. Manolito told Edgardo not to interfere because he had nothing to do with it. Thereafter, Manolito left the house of Edgardo and went to Kilumco, Camague, Iligan City and stayed at the wake of his friend's neighbor. He threw away the knife he used in stabbing his wife and her paramour. At around 4:00 in the morning of the following day, he went to Camague Highway to catch a bus for Lentogan, Aurora, Zamboanga. While in Lentogan, he heard over radio DXIC that there was a call for him to surrender. He heeded the call and gave himself up to the police authorities in Precinct 2, Nonocan, Iligan City.26 When asked why he was carrying a knife when he went to his wife's place, Manolito said that he brought it for self-defense. Prior to the incident, he received threats from his wife and her paramour, Jesus, that they would kill him so they could live together.27 After trial, on May 26, 1997, the trial court promulgated a joint decision finding accused guilty beyond reasonable doubt of the crimes charged. The dispositive portion reads: "WHEREFORE, in the light of the foregoing findings and pronouncements and having carefully observed the demeanor of witnesses, this Court hereby declares accused MANOLITO OYANIB y Mendoza GUILTY beyond reasonable doubt of the crime of Homicide (Crim. Case No. II6012) and Parricide (Crim. Case No. II-6018) and and appreciating the two (2) mitigating circumstances of passion or obfuscation and voluntary surrender without any aggravating circumstances to consider, this Court

sentences accused Manolito Oyanib y Mendoza to suffer an imprisonment as follows: "1) In Criminal Case No. II-6012: To an Indeterminate Penalty ranging from SIX (6) MONTHS ONE (1) DAY to SIX (6) YEARS as Minimum to Six (6) YEARS ONE (1) DAY to EIGHT (8) YEARS as Maximum; to indemnify heirs of Jesus Esquierdo the sum of P50,000.00 as civil indemnity, and to pay the costs. 2.) In Criminal Case No. II-6018: To RECLUSION PERPETUA pursuant to Republic Act No. 7659; to indemnify heirs of his wife P50,000.00 as civil indemnity and to pay the costs. "It is likewise ordered that the aforesaid imprisonment is subject to the forty (40) years limitation prescribed in Article 70 of the Revised Penal Code. "Accused is likewise entitled to full credit of his preventive imprisonment. "SO ORDERED. "Iligan City, Philippines, May 26, 1997. "MAXIMO B. RATUNIL Presiding Judge"28 On June 17, 1997, accused Manolito Oyanib y Mendoza interposed an appeal from the joint decision of the trial court to the Supreme Court.29 Accused admitted the killings. He argued that he killed them both under the exceptional circumstances provided in Article 247 of the Revised Penal Code. He raised several errors allegedly committed by the trial court, which boiled down to the basic issue of whether accused is entitled to the exceptional privilege under Article 247 of the Revised Penal Code. 30 He questioned the trial court's appreciation of the facts and the evidence, contending that it ignored and overlooked vital pieces of physical evidence material to the defense of the accused, like the photograph of the lifeless body of Jesus. Accused contends that the photograph graphically showed that Jesus' pants were wide open, unzipped and unbuttoned, revealing that he was not wearing any underwear, lending credence to his defense that he caught his wife and her paramour in the act of sexual intercourse. On the other hand, the Solicitor General submitted that accused-

appellant failed to discharge the burden of proving, by clear and convincing evidence, that he killed the victims under the exceptional circumstances contemplated in Article 247 of the Revised Penal Code. Hence, the trial court did not err in denying him the exempting privilege under the Article. 31 We find the appeal meritorious. At the outset, accused admitted killing his wife and her paramour. He invoked Article 247 of the Revised Penal Code as an absolutory and an exempting cause. "An absolutory cause is present 'where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed."'32 Having admitted the killing, it is incumbent upon accused to prove the exempting circumstances to the satisfaction of the court in order to be relieved of any criminal liability. Article 247 of the Revised Penal Code prescribes the following essential elements for such a defense: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; (2) that he kills any of them or both of them in the act or immediately thereafter; and (3) that he has not promoted or facilitated the prostitution of his wife (or daughter) or that he or she has not consented to the infidelity of the other spouse.33 Accused must prove these elements by clear and convincing evidence, otherwise his defense would be untenable. "The death caused must be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the act of infidelity. Simply put, the killing by the husband of his wife must concur with her flagrant adultery."34 There is no question that the first element is present in the case at bar. The crucial fact that accused must convincingly prove to the court is that he killed his wife and her paramour in the act of sexual intercourse or immediately thereafter. After an assiduous analysis of the evidence presented and the testimonies of the witnesses, we find accused to have acted within the circumstances contemplated in Article 247 of the Revised Penal Code. Admittedly, accused-appellant surprised his wife and her lover in the act of sexual intercourse. To the mind of the court, what actually happened was that accused chanced upon Jesus at the place of his wife. He saw his wife and Jesus in the act of having sexual intercourse. Blinded by jealousy and outrage, accused stabbed Jesus who fought off and kicked the accused. He vented his anger on his wife when she reacted, not in defense of him, but in support of Jesus. Hence, he stabbed his wife as well several times. Accused Manolito Oyanib y Mendoza surrendered to the police when a call for him to surrender was made.

The law imposes very stringent requirements before affording the offended spouse the opportunity to avail himself of Article 247, Revised Penal Code. As the Court put it in People v. Wagas:35 "The vindication of a Man's honor is justified because of the scandal an unfaithful wife creates; the law is strict on this, authorizing as it does, a man to chastise her, even with death. But killing the errant spouse as a purification is so severe as that it can only be justified when the unfaithful spouse is caught in flagrante delicto; and it must be resorted to only with great caution so much so that the law requires that it be inflicted only during the sexual intercourse or immediately thereafter." WHEREFORE, the Court REVERSES the appealed decision of the Regional Trial Court, Branch 02, Iligan City in Criminal Cases Nos. II-6012 and II-6018. The Court sentences accused Manolito Oyanib y Mendoza to two (2) years and four (4) months of destierro.36 He shall not be permitted to enter Iligan City, nor within a radius of one hundred (100) kilometers from Iligan city.37 Costs de oficio. SO ORDERED.

G.R. No. 172608

February 6, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. BERNARD MAPALO, Accused-Appellant. DECISION CHICO-NAZARIO, J.: In its Decision1 dated 27 October 2004, the Regional Trial Court (RTC), Branch 32 of Agoo, La Union, in Criminal Case No. A-2871, found appellant Bernard Mapalo guilty beyond reasonable doubt of the crime of Murder, and imposed upon him the penalty of reclusion perpetua. On appeal, the Court of Appeals rendered a Decision2 dated 21 November 2005, modifying the Decision of the RTC, and finding Bernard Mapalo guilty beyond reasonable doubt of the crime of Frustrated Murder. The Indictments Appellant, together with Peter Doe, John Doe and Peter Doe, Jr., was charged before the RTC of Agoo, La Union with the crime of Murder, said to have been committed as follows: That on or about the 13th day of February, 1994, in the Municipality of Aringay, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill and being then armed with lead pipes and bladed weapons and conspiring, confederating and mutually helping each other, did then and there by means of treachery and with evident premeditation and taking advantage of their superior strength, wil[l]fully, unlawfully and feloniously attack, assault and use personal violence on one Manuel Piamonte y Ugay by clubbing him with the said pipes and stabbing him several times with the said bladed weapons, and thereby inflicting on the aforenamed victim fatal injuries which were the direct and immediate cause of his death, to the damage and prejudice of his heirs. Contrary to law.3 The RTC ordered the issuance of a warrant of arrest for the apprehension of the appellant. No bail was recommended.4 When the case was called, appellant filed a Motion for Reinvestigation and Bail, which was granted. On 27 March 1995, 3rd Assistant Provincial Prosecutor Manuel S. Oliva filed a Motion to Admit Amended Information and for the Issuance of Warrant of Arrest for the Apprehension of the Other Accused,5 alleging that a reinvestigation was conducted and a prima facie case was found against the other accused. It was

prayed that an amended information be admitted and a warrant of arrest be issued for the apprehension of Alejandro Fajardo, Jr., Jimmy Frigillana, and Rolando Mapalo alias "Lando." Finding the Motion to be well-taken, the RTC issued an Order,6 dated 27 April 1995, admitting the Amended Information, viz: The undersigned Assistant Provincial Prosecutor accuses BERNARD MAPALO, ALEJANDRO FAJARDO, JR., JIMMY FRIGILLANA and ROLANDO MAPALO alias Lando of the crime of MURDER, committed as follows: That on or about the 13th day of February, 1994, in the Municipality of Aringay, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to kill and being then armed with lead pipe and bladed weapons and conspiring, confederating and mutually helping each other, did then and there by means of treachery and with evident premeditation and taking advantage of their superior strength, wil[l]fully, unlawfully and feloniously attack, assault and use personal violence on one Manuel Piamonte y Ugay by clubbing him with the said pipe and stabbing him several times with the said bladed weapons, and thereby inflicting on the aforenamed victim fatal injuries which were the direct and immediate cause of his death, to the damage and prejudice of his heirs.7 Consequently, a warrant of arrest was issued for the apprehension of Alejandro Fajardo, Jr., Jimmy Frigillana, and Rolando Mapalo alias "Lando." Only Alejandro Fajardo, Jr. was apprehended; the other two remain at large. On arraignment, appellant pleaded not guilty.8 Thereafter, trial on the merits commenced. After the prosecution had rested its case, Alejandro Fajardo, Jr. filed a Demurrer to Evidence which was granted by the RTC, in its Order9 dated 5 November 1998, on the ground that the prosecution did not present any evidence against him. Thus, only accused Bernard Mapalo proceeded to present his evidence. He was eventually found guilty. The Case for the Prosecution The prosecution presented Calixto Garcia (Garcia) as its lone eyewitness. Garcia testified that on 12 February 1994, a pre-Valentine dance was held in Sitio Baracbac, Brgy. Sta. Cecilia in Aringay, La Union. He watched the dance, along with the appellant and Jimmy Frigillana.10 In the early morning of 13 February 1994, at around 3:00 a.m., a fight erupted between Manuel Piamonte (Piamonte) and the group of Lando Mapalo,11 Jimmy Frigillana, and the appellant.12

Garcia further testified that he witnessed the fight from a distance of more or less five (5) meters. He claimed that he could see the incident very clearly because of the light at the dancing hall.13 He saw the appellant club Piamonte with a lead pipe from behind, hitting him on the right side of the head.14 The pipe was one and a half (1 and ½) feet in length, and one and a half (1 and ½) inches in diameter.15 At that time when the appellant struck Piamonte with a lead pipe, he saw Jimmy Frigillana and Lando Mapalo standing in front of Piamonte. Later, he saw the dead body of Piamonte, which had suffered multiple stab wounds.16 He saw stab wounds on the left and right parts of the abdomen, and below the left breast, as well as small wounds on the front part of his left hip.17 Garcia disclosed that he neither witnessed how Piamonte was stabbed, nor did he see the act of stabbing Piamonte.18 He does not know who stabbed the latter.19 It was only when Piamonte’s shirt was removed when he saw stab wounds on the former’s dead body.20 The Case for the Defense Appellant testified that in the evening of 13 February 1994,21 at around 9:00 p.m., he, along with his wife, Caridad Mapalo, entertained several guests at their residence, namely, Crispin Calderon, Noel Cordero, Ruel Mercado, and Rolando Mapalo.22 They drank wine.23 Appellant knew that there was a Valentine’s Day dance celebration at the dance hall, located northeast of his house at a distance of about 20-30 meters.24 At 12:30 a.m., after his guests had left the house, he went to sleep.25 At 3:00 a.m., his wife woke him up and was informed that somebody had been stabbed. He said he came to know that Piamonte was the person who was stabbed.26 He added that he planned to go out of the house, but his wife prevented him from doing so.27 He, thereafter, returned to his room, and went back to sleep.28 Corroborating the appellant’s defense of denial and alibi, his wife, Caridad Mapalo, narrated that on 13 February 199429 at 8:00 p.m., she served brandy to her husband and their guests at their residence. The celebration finished at around 12:00 midnight.30 Thereafter, she and her husband went to sleep, while their guests proceeded to the dance hall. At 3:00 a.m., she awoke because of a commotion from the dance hall.31 She described that the dance hall is around 60 to 70 meters, southwest of their residence.32 She went outside of their house, and along with her sister-in-law, Marissa Dapit, proceeded to the edge of the dancing hall.33 She claimed that her husband did not go out and just stayed at their house.34 She explained that she and Marissa Dapit went out to see or to know the name of the person who died at the commotion.35 At the dancing hall, she saw the body of Piamonte, lying face down.36 The Ruling of the RTC

After trial, the RTC rendered a Decision, dated 27 October 2004, finding appellant guilty beyond reasonable doubt of the crime of Murder. It ruled that appellant’s defense of alibi cannot prevail over the positive identification of the lone eyewitness. As emphasized by the RTC, per admission of appellant, the distance between his house and the dancing hall is only 20 to 30 meters, more or less. There was no physical impossibility for the appellant to be present at the scene of the crime. Moreover, it found Garcia’s testimony to be consistent and uncontradicted. On the other hand, the RTC considered the testimony of Caridad Mapalo as defying the natural course of human reaction and experience. The RTC found it strange that it was only Caridad Mapalo who was awakened by the commotion, while the appellant remained asleep. Learning of the same, Caridad Mapalo exposed herself to danger by proceeding to the dance hall to see what the commotion was all about without even informing her husband. The RTC conjectured that Caridad Mapalo proceeded to the dance hall not to see what the commotion was all about, but because she was informed that her husband was involved in a fight.37 Further, the RTC ruled that conspiracy was established by the prosecution. According to the RTC, the appellant was clearly identified by Garcia as the one who struck Piamonte on the head with a lead pipe, which alone is "sufficient manifestation of a concerted, common and united design with the other accused to commit an unlawful and felonious act." The fact that the medical certificate shows the cause of death as stab wounds was deemed by the RTC as immaterial, in view of the presence of conspiracy. The RTC also appreciated the attendance of abuse of superior strength as a qualifying circumstance, on the rationalization that the perpetrators were armed with bladed weapons and a lead pipe that were out of proportion to the unarmed Piamonte. The decretal portion of the RTC Decision states: WHEREFORE, the accused BERNARD MAPALO is hereby found Guilty beyond reasonable doubt of the crime of MURDER and is sentenced to suffer the penalty of RECLUSION PERPETUA. Further, the accused is ordered to pay the heirs of Manuel Piamonte the amount of Twelve Thousand Seven Hundred Pesos (₱12,700.00) as actual damages. Fifty Thousand Pesos (₱50,000.00) as civil indemnity for the death of Piamonte and Fifty Thousand Pesos (₱50,000.00) as moral damages.38 The Ruling of the Court of Appeals Before the appellate court, appellant challenged the credibility of the prosecution’s lone eyewitness. Appellant similarly assailed the ruling of the RTC on the ground

that it erred in convicting him despite the failure of the prosecution to prove his guilt beyond reasonable doubt.39 The Court of Appeals found no adequate reason to disturb the findings of the RTC in weighing the testimony of Garcia. It did not find significant the alleged inconsistencies in Garcia’s affidavits as executed before the investigating police and the prosecutor.40 The appellate court did not accept the appellant’s defense of alibi. The positive identification of the prosecution witness which was consistent and categorical, and shown to be without ill-motive, has discredited appellant’s defense. The Court of Appeals, however, found reason to modify the findings of the RTC. It convicted the appellant of frustrated murder only. It was not convinced that the evidence on record established conspiracy among the appellant and his coaccused. The appellate court rationalized that while the evidence shows that Piamonte sustained stab wounds which caused his death,41 the appellant was never identified as the one who inflicted the stab wounds on the deceased. According to the appellate court, the prosecution’s evidence only established that the appellant clubbed Piamonte with a lead pipe. However, the prosecution’s witness did not see the stabbing. He was not able to describe the particular acts which caused Piamonte’s death. Hence, it cannot be inferred from the account of the witness that the appellant and his co-accused came to an agreement to commit a felony, or that they decided to commit the same, by concerted acts.42 The Court of Appeals made the following observations: In the first place, the killing was the result of a fight that erupted suddenly during the Valentine dance, which discourages the conclusion that the killing was planned. Also, the witness did not see any stabbing. He did not see anyone else perform any act of stabbing or hitting, other than the appellant delivering blows with a lead pipe on the victim. There is no proof, therefore, of any concerted action or common design to kill the victim that could be the basis for a finding of conspiracy among several malefactors. Because of this, it could not be said that conspiracy was proven attendant beyond reasonable doubt.43 In the absence of a conspiracy, the Court of Appeals said that the appellant could only be held liable for the consequences of his own criminal act. It ruled that when the appellant hit Piamonte in the head with the lead pipe, he performed all the acts that would have brought about the death of the victim.44 Piamonte’s death however was due to some other supervening cause, independent of the appellant’s will.45 The fallo of the Court of Appeals’ Decision reads, viz:

WHEREFORE, premises considered, the lower court’s Decision is hereby MODIFIED, in that the accused-appellant Bernard Mapalo is hereby found guilty beyond reasonable doubt of the crime of Frustrated Murder. Accused-appellant is hereby sentenced to 8 years and 1 day of prision mayor, as minimum to 14 years, 8 months and 1 day of reclusion temporal, as maximum. Further, the accused is ordered to pay the heirs of Manuel Piamonte[,] the amount of Twenty Five Thousand Pesos (₱25,000.00) as temperate damages, Thirty Thousand Pesos (₱30,000.00) as civil indemnity and Thirty Thousand Pesos (₱30,000.00) as moral damages pursuant to prevailing jurisprudence. (People v. Pacana, 345 SCRA 72 [2000]; People v. Givera, 349 SCRA 513 [2001]).46 The Issues Appellant contends that: I THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO IDENTIFY THE ACCUSED-APPELLANT IN OPEN COURT; and II ASSUMING THAT THE ACCUSED-APPELLANT IS GUILTY, THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING HIM OF FRUSTRATED MURDER INSTEAD OF FRUSTRATED HOMICIDE.47 The Ruling of the Court In support of the first assignment of error, appellant raises, for the first time, the defense that the witness for the prosecution failed to positively identify him during the trial proceedings. Citing People v. Galera48 and People v. Hatton,49 appellant submits that the prosecution failed to discharge its first duty, which is the identification of the accused as the author of the crime charged.50 Witness Garcia did not identify the appellant in open court. Appellant further posits that Garcia did not deny drinking gin at around 9:00 p.m. on 13 February 1994 until 3:00 a.m. of the following day. Garcia was then intoxicated if he had been drinking hard liquor continuously for six hours. At such point, he can no longer positively determine a person’s identity. It is argued that the foregoing circumstances create doubts as to the identity of the appellant as one of the perpetrators of the crime. We first tackle the issue on the lack of in-court identification.

True that on the matter of identification, the Court in Hatton said: More importantly, the accused-appellant was not positively identified in court. True, his name was referred to by both Basierto and Ongue in their respective direct testimonies. However, he was not identified in Court. The failure of the prosecution witness to positively identify the assailant in court is fatal to the prosecution’s cause. Pre-trial identification is not sufficient.51 Verily, the records are bereft of proof that there was in-court identification by the witness Garcia of the appellant. Indeed, Garcia did not point to the appellant in the courtroom. Such fact can be gleaned from the pertinent portion of the transcript of stenographic notes of the trial, reproduced hereunder, as follows: Direct-examination by Prosecutor Rudio of the witness Calixto Garcia Q Do you know the accused Bernard Mapalo? A I know, sir. Q If that accused is inside the courtroom now will you please stand up and point to him if he is inside the courtroom? A No, he is not around. COURT: Q Was he notified for (sic) today’s hearing? INTERPRETER: Yes, he signed, sir. COURT: O R D E R: It appears that the accused Bernard Mapalo was being notified for (sic) today’s hearing and his wife came to Court and informed the Honorable Court that her husband could not come to Court because he is sick.52 The same testimony, however, conspicuously reveals that there was no identification in open court of the appellant because said appellant was not present at the time, despite notice, as according to his wife, he was sick. In a later case, this Court clarified that a physical courtroom identification is essential only when there is a question or doubt on whether the one alleged to have committed the crime is the same person who is charged in the information and subject of the trial. In People v. Quezada,53 this Court expounded, thus:

We do not see the absolute need for complainant to point to appellant in open court as her attacker. While positive identification by a witness is required by the law to convict an accused, it need not always be by means of a physical courtroom identification. As the court held in People v. Paglinawan: "x x x. Although it is routine procedure for witnesses to point out the accused in open court by way of identification, the fact that the witness x x x did not do so in this case was because the public prosecutor failed to ask her to point out appellant, hence such omission does not in any way affect or diminish the truth or weight of her testimony." In-court identification of the offender is essential only when there is a question or doubt on whether the one alleged to have committed the crime is the same person who is charged in the information and subject of the trial. This is especially true in cases wherein the identity of the accused, who is a stranger to the prosecution witnesses, is dubitable. In the present case, however, there is no doubt at all that the rapist is the same individual mentioned in the Informations and described by the victim during the trial. (Emphasis supplied.)54 We do not find herein a case where there is a question or doubt as to whether the one alleged to have committed the crime is the same person charged in the information and subject of the trial. In fact, appellant never denied that he is the person indicted in the Information, and subject of the proceedings. His denial is that he did not participate in the commission of the crime. Hence, in-court identification is not indispensable in the case at bar. We are convinced that the identity of the appellant was sufficiently established by the evidence on record. The appellant is not a stranger to the witness Garcia. The identity of the appellant to Garcia does not appear to be controvertible. In fact, appellant himself admits that he and Garcia are friends. Thus: Cross-examination by Prosecutor Lachica of [appellant] Bernard Mapalo Q Mr. Witness you said that you were informed by your counsel a while ago that a certain Calixto Garcia testified against you in this case did I get you right? A Yes, sir. Q And this Calixto Garica is a resident of the same Barangay as you are? A Yes, sir. Q In fact this Calixto Garcia is an acquaintance of yours?

A Yes, sir.

Q His house is closed to your house, correct?

Q He is considered a friend?

A Far, sir.

A Yes, sir I consider him as such.

Q But he is staying within your barangay which is Sta. Cecilia?

Q Prior to the incident which happened sometime on February 13, 1994, you have never quarreled with this Calixto Garcia?

A Yes, sir.

A No, sir. Q Even after that incident that happened on February 13, 1994 you never quarreled with Calixto Garcia? A No, sir. Q You know that this Calixto Garcia is not a relative of Piamonte the victim in this case? A I do not know whether he is a relative of the victim or not. Q You know for a fact that Calixto Garcia executed a statement before the police pointing to you or pointing to you as the assailant of Paimonte did you come to know that?

Q This Calixto Garcia whom you know is a friend of your family, correct? A Yes, sir. Q In fact, your family have (sic) never quarreled with Calixto Garcia? A None, sir. Q Prior to the filing of this case, you know that Calixto Garcia being a friend will not falsify his testimony regarding your husband? A Yes, sir. ATTY. RIMANDO: Objection, your honor. COURT:

A No, sir. Objection overruled. Q You said that you know Calixto Garcia your friend according to you, did you confront him when he testified against you in court?

PROSECUTOR LACHICA:

A No, sir.

Q Until now, this Calixto Garcia is your friend?

Q You did not tell your friend that he was mistaken in identifying you as the assailant of Piamonte, correct?

A Yes, sir.

A No, sir. 55

That would be all for the witness.

The proper identification of the appellant is further bolstered by the fact that appellant’s wife, Caridad Mapalo corroborated the testimony that the witness Garcia is a family friend of the spouses. Thus:

RE-DIRECT EXAMINATION BY ATTY. RIMANDO:

Cross examination of Caridad Mapalo by Prosecutor Lachica

A No, sir.

Q Do you know a certain Calixto Garcia?

Q Is your family close with (sic) this Calixto Garcia?

A Yes, sir.

A Yes, sir.56

Q He is your Barangay mate? A Yes, sir.

PROSECUTOR LACHICA:

Q This Calixto Garcia was your guest in that evening in your residence?

Moreover, we do not find herein the presence of factors57 that could cause the witness Garcia to misidentify the appellant. In People v. Limpangog,58 this Court enumerated several other known causes of misidentification, viz:

Hence, we do not find any reason to depart from the general rule that the conclusions of the trial court on the credibility of witnesses deserve great respect, viz:

x x x Known causes of misidentification have been identified as follows:

The assessment of the credibility of witness and their testimony is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand; and to note their demeanor, conduct and attitude under examination. Its findings on such matters are binding and conclusive on appellate courts unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted.66

"Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences."59 There is no question that the witness Garcia was at a close range of merely five meters more or less from the scene of the incident.60 Neither can it be said that the illumination was poor. The dancing hall was lighted.61 No improper motive was attributed to the witness Garcia for testifying against the appellant. Moreover, witness Garcia is familiar not only to appellant. Garcia was also familiar with the deceased, Piamonte. Witness Garcia, in his testimony, referred to Piamonte as his third cousin.62 On appellant’s submission that it is doubtful if witness Garcia can still have positively identified him as one of the perpetrators of the crime considering that the former admitted to drinking hard liquor from 9:00 p.m. on 13 February 1994 until 3:00 a.m. of the following day, we are not convinced that the same can overthrow the trial court’s evaluation of Garcia’s testimony. Beyond appellant’s bare allegations, no evidence whatsoever was produced to show that Garcia suffered from such a level of intoxication as to impair his facility and disable him to identify appellant. In the case of People v. Dee,63 the credibility of the surviving victim therein as witness was disputed because he was under the influence of liquor at the time of the incident. In Dee, the witness was even found positive for alcoholic breath, but the Court ruled that such fact does not necessarily prevent him from making a positive identification of his attackers, especially since his level of intoxication was not shown to impair his faculties. The credibility of the witness therein was not made to suffer on that score alone.64 The foregoing material considerations, taken together with the fact that witness Garcia and the appellant are not strangers to each other, satisfy us that the danger of Garcia misidentifying the appellant does not exist. Where the prosecution eyewitness was familiar with both victim and accused, and where the locus criminis afforded good visibility, and where no improper motive can be attributed to the witness for testifying against the accused, his version of the story deserves much weight.65

Appellant’s defense of alibi and denial cannot stand in the face of the positive identification of the accused. We have unfailingly held that alibi and denial being inherently weak cannot prevail over the positive identification of the accused as the perpetrator of the crime.67 It is facile to fabricate and difficult to disprove, and is generally rejected.68 For the defense of alibi to prosper, it must be shown with clear and convincing evidence that at the time of the commission of the crime charged, the accused is in a place other than the situs of the crime such that it was physically impossible for him to have been at the situs criminis when the crime was committed.69 In the case at bar, appellant was not successful in invoking the defense of alibi. Appellant insists that he was sleeping at his residence at the time when the incident occurred. The RTC and the Court of Appeals consistently found that the distance between appellant’s residence and the dance hall, or the situs criminis, is 20 to 30 meters, more or less.70 Such a distance is negligible. In fact, appellant’s wife testified that from their residence, she could see the people dancing at the hall.71 It was not highly impossible for the appellant to be physically present at the dancing hall at the time of the occurrence of the incident. We, therefore, reject appellant’s defense of alibi. We shall now determine the criminal liability of the appellant. To reiterate, the RTC, in convicting the appellant guilty beyond reasonable doubt of the crime of murder, proceeded from a rationalization that there was conspiracy among appellant and his co-accused. It also appreciated the attendance of abuse of superior strength to qualify the crime to Murder. The Court of Appeals was unable to agree with the RTC. It found that the conspiracy was not proven beyond reasonable doubt. It ruled that the witness Garcia admitted to not being able to see the stabbing. He could only attest to the clubbing of the victim by appellant with a lead pipe. No proof was shown as to the

concerted action of the malefactors of their common design to kill. It, thus, modified the RTC’s conviction, and, instead, found appellant guilty of frustrated murder. The Amended Information charged the appellant and his co-accused with conspiracy in killing Piamonte. Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.72 Conspiracy as a basis for conviction must rest on nothing less than a moral certainty.73Considering the farreaching consequences of criminal conspiracy, the same degree of proof necessary in establishing the crime is required to support the attendance thereof, i.e., it must be shown to exist as clearly and convincingly as the commission of the offense itself.74 Thus, it has been held that neither joint nor simultaneous actions is per se sufficient proof of conspiracy.75 We are, further, guided by the following pronouncement of the Court: For conspiracy to exist, the participants must agree to the commission of the felony and decide to commit it, which agreement may be deduced from the mode and manner of the commission of the offense or inferred from the acts that point to joint purpose and design, concerted action and community of intent. x x x.76 While conspiracy need not be established by direct evidence, it is, nonetheless, required that it be proved by clear and convincing evidence by showing a series of acts done by each of the accused in concert and in pursuance of the common unlawful purpose.77 There is a want of evidence to show the concerted acts of the appellant and his coaccused in pursuing a common design - to kill the deceased, Piamonte. The sole eyewitness for the prosecution, Garcia, was categorical and precise in declaring that he did not see the act of stabbing Piamonte, nor the manner in which Piamonte was stabbed. He later learned that Piamonte died from stab wounds when he saw the latter’s dead body covered with stab wounds. The cause of death of Piamonte, as found by the RTC and the Court of Appeals,78 and as borne by the records, is multiple stab wounds.79 It was, thus, incumbent on the part of the prosecution to prove beyond reasonable doubt that the appellant and his coaccused acted in concert with a unity of purpose to kill Piamonte. They must show to the satisfaction of this Court the appellant’s overt act in pursuance or furtherance of the complicity.80 They must show that appellant’s act of striking Piamonte with a pipe was an intentional participation in the transaction with a view to the furtherance of the common design and purpose.81 The prosecution was unable to show, either by direct or indirect evidence, proof of the agreement among the appellant and his co-accused to warrant conspiracy as a

basis for appellant’s conviction. No evidence was even adduced to show implied conspiracy. Nothing has been shown that the appellant and his co-accused were "aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment."82 This complete absence of evidence on the part of the prosecution to show the conduct of the appellant and his co-accused, disclosing a common understanding among them relative to the commission of the offense,83 is fatal to the prosecution. The prosecution’s witness could not testify on the manner by which the deceased Piamonte was stabbed, precisely because by his own admission, he did not see the stabbing. No account of the stabbing which caused the death of the deceased Piamonte was ever given nor shown. Unfortunately, no account of how Piamonte died was ever given, except for the established fact that he died due to stabbing. The appellant’s act of holding a lead pipe and hitting the deceased in the head was not shown to be in furtherance of the common design of killing the deceased. What transpired during the stabbing of the victim, which is material to proving the fact of conspiracy, is, regrettably, left merely to speculation. This Court must neither conjecture nor surmise that a conspiracy existed. The rule is clear that the guilt of the accused must be proved with moral certainty.84 All doubts should be resolved in favor of the accused. Thus, the time honored principle in criminal law that if the inculpatory facts are capable of two or more explanations, one consistent with the innocence of the accused and the other with his guilt, the Court should adopt that which is more favorable to the accused for then the evidence does not fulfill the test of moral certainty.85 Liability of the Accused Bernard Mapalo There being no conspiracy, the liability of the appellant will revolve around his individual participation in the event.86 In the case of Li v. People,87 a street fight ensued resulting in the death of the victim therein. No conspiracy was proven beyond reasonable doubt. The liability of the accused Li who was shown to have struck the victim’s right arm with a baseball bat, resulting in a contusion was, thus, determined by the Court in the following manner: The only injury attributable to Li is the contusion on the victim’s right arm that resulted from Li striking [the victim] Arugay with a baseball bat. In view of the victim’s supervening death from injuries which cannot be attributed to Li beyond reasonable doubt, the effects of the contusion caused by Li are not mortal or at least lie entirely in the realm of speculation. When there is no evidence of actual

incapacity of the offended party for labor or of the required medical attendance, the offense is only slight physical injuries, penalized as follows:

in length, and one and a half inches in diameter. The relevant testimony of Garcia on the incident follows:

xxxx

Q Now you said that Bernard Mapalo clubbed this Manuel Piamonte. He clubbed him from behind?

The duration of the penalty of arresto menor is from one day to thirty days. The felony of slight physical injuries is necessarily included in the homicide charges. Since the Information against Li states that among the means employed to commit the felonious act was the use of the baseball bat, conviction on the lesser offense or slight physical injuries is proper. There being no aggravating or mitigating circumstances established, the imposition of the penalty in its medium period is warranted. Li was convicted by the RTC on January 5, 1994. Having long served more than the imposable penalty, Li is entitled to immediate release unless, of course, he is being lawfully detained for another cause.88 In the case at bar, no injury was shown to be attributable to the appellant. The only medical evidence that appears on records is the deceased Piamonte’s death certificate,89 which indicates that the cause of death is massive hypovolemia90 secondary to multiple stab wounds. The factual findings of the RTC and the Court of Appeals coincide to show that the cause of death of Piamonte is multiple stab wounds. Nothing has been shown otherwise. Other than the presence of multiple stab wounds, no other type of injury on the deceased was established. No contusions or injury on the head of the victim or anywhere else in his body caused by a lead pipe was shown. The witness Garcia, in his testimony, merely pointed to stab wounds on the different parts of the body of the deceased.91No proof on the injury that was sustained by the deceased that can be attributable to appellant’s act was demonstrated. No other physical evidence was proffered.92 We cannot convict appellant of Attempted or Frustrated Murder or Homicide. The principal and essential element of attempted or frustrated homicide or murder is the assailant’s intent to take the life of the person attacked.93 Such intent must be proved clearly and convincingly, so as to exclude reasonable doubt thereof.94 Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim.95 In the case at bar, no motive on the part of appellant to kill Piamonte was shown either prior or subsequent to the incident. Nor can such intent to kill be inferred from his acts. It bears reiterating that no injury on the body of the deceased was attributed to the appellant’s act of hitting the victim with a lead pipe. On the nature of the weapon used, the lead pipe was described by Garcia as one and a half feet

A Yes, sir. Q And what did he use in clubbing the victim, is it lead pipe? A Yes, sir. Q How long is that lead pipe? A Around this length. (Witness demonstrated 1 1/2 feet). Q And how wide is the diameter? A 1 ½ inches. Q What part of his body was hit? A Right side of the head, sir. (Witness showing the right side of his head.)96 Homicidal intent must be evidenced by the acts that, at the time of their execution, are unmistakably calculated to produce the death of the victim by adequate means.97 We cannot infer intent to kill from the appellant’s act of hitting Piamonte in the head with a lead pipe. In the first place, wounds were not shown to have been inflicted because of the act. Secondly, absent proof of circumstances to show the intent to kill beyond reasonable doubt, this Court cannot declare that the same was attendant. When the offender shall ill-treat another by deed without causing any injury, and without causing dishonor, the offense is Maltreatment under Article 266,98 par. 3 of the Revised Penal Code. It was beyond reasonable doubt that by hitting Piamonte, appellant ill-treated the latter, without causing any injury. As we have earlier stated, no proof of injury was offered. Maltreatment is necessarily included in Murder, which is the offense charged in the Information. Thus: ART. 266. Slight physical injuries and maltreatment. – The crime of slight physical injuries shall be punished: xxxx 3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall ill-treat another by deed without causing any injury.

The duration of the penalty of arresto menor in its minimum period is 1 day to 10 days. WHEREFORE, the Decision of the Court of Appeals, dated 21 November 2005, in CA-G.R. CR HC No. 00408 is MODIFIED. Appellant Bernard Mapalo is ACQUITTED of the charge of MURDER for lack of evidence beyond reasonable doubt. He is found GUILTY of the crime of MALTREATMENT, as defined and punished by Article 266, par. 3 of the Revised Penal Code. He is accordingly sentenced to suffer the penalty of imprisonment of arresto menor of 10 days. Considering that appellant has been incarcerated since 2004, which is well-beyond the period of the penalty herein imposed, the Director of the Bureau of Prisons is ordered to cause appellant’s IMMEDIATE RELEASE, unless appellant is being lawfully held for another cause, and to inform this Court, within five (5) days from receipt of this Decision, of the compliance therewith. SO ORDERED.

G.R. No. 198400

October 7, 2013

FE ABELLA y PERPETUA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION REYES, J.: This is a Petition for Review on Certiorari1 from the Decision2 and Resolution3 dated October 26, 2010 and August 11, 2011, respectively, of the Court of Appeals CA) in CA-G.R. CR No. 00336-MIN affirming with modifications the conviction4 by the Regional Trial Court RTC) of Misamis Oriental, Cagayan de Oro City, Branch 39 of Fe Abella y Perpetua petitioner) for the crime of frustrated homicide committed against his younger brother, Benigno Abella Benigno). The RTC sentenced the petitioner to suffer an indeterminate penalty of six 6) years and one 1) day to eight 8) years of prision mayor as minimum, to ten 10) years and one 1) day to twelve 12) years of prision mayor as maximum, and to pay Benigno ₱100,000.00 as consequential damages, ₱10,000.00 for the medical expenses he incurred, plus the costs of suit.5 The CA concurred with the RTC’s factual findings. However, the CA modified the penalty imposed to six (6) months and one (1) day to six (6) years of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor in its medium period as maximum. The CA also deleted the RTC’s award in favor of Benigno of (a) ₱10,000.00 as actual damages corresponding to the medical expenses allegedly incurred; and (b) ₱100,000.00 as consequential damages. In lieu of the preceding, the CA ordered the petitioner to pay Benigno ₱30,000.00 as moral damages and ₱10,000.00 as temperate damages.6 Antecedent Facts On October 7, 1998, the petitioner, who at times worked as a farmer, baker and trisicad driver, was charged with frustrated homicide in an Information7 which reads: That on or about September 6, 1998, at 11:00 o’clock in the evening, more or less, at Sitio Puli, Canitoan, Cagayan de Oro City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without any justifiable cause, did then and there willfully, unlawfully and feloniously and with intent to kill, attack, assault, harm and hack one, BENIGNO ABELLA y PERPETUA, with the use of a scythe, hitting the latter’s neck, thereby inflicting the injury described below, to wit: • hacking wound left lateral aspect neck; and • incised wound left hand dorsal aspect thus performing all the acts of execution which would produce the crime of homicide as a consequence,

but nevertheless, did not produce it by reason of some cause or causes independent of the will of the accused, that is the timely and able intervention of the medical attendance rendered to the said victim. Contrary to Article 249 in relation to 250 of the RPC.8 After the Information was filed, the petitioner remained at large and was only arrested by agents of the National Bureau of Investigation on October 7, 2002.9 During the arraignment, the petitioner pleaded not guilty to the crime charged. Pretrial and trial thus proceeded. The Prosecution offered the testimonies of: (a) Benigno;10 (b) Amelita Abella11 (Amelita), Benigno’s wife; (c) Alejandro Tayrus12 (Alejandro), with whom the petitioner had a quarrel; and (d) Dr. Roberto Ardiente13 (Dr. Ardiente), a surgeon from J.R. Borja Memorial Hospital, Cagayan de Oro City, who rendered medical assistance to Benigno after the latter was hacked by the petitioner. The Prosecution evidence established that on September 6, 1998, at around 11:00 p.m., Benigno was watching television in his house. A certain Roger Laranjo arrived and asked Benigno to pacify the petitioner, who was stirring trouble in a nearby store. Benigno and Amelita found the petitioner fighting with Alejandro and a certain Dionisio Ybañes (Dionisio). Benigno was able to convince the petitioner to go home. Benigno and Amelita followed suit and along the way, they dropped by the houses of Alejandro and Dionisio to apologize for the petitioner’s conduct. Benigno and Amelita were in Alejandro’s house when the petitioner arrived bringing with him two scythes, one in each of his hands. Benigno instructed Alejandro and Dionisio to run away and the latter two complied. The petitioner wanted to enter Alejandro’s house, but Benigno blocked his way and asked him not to proceed. The petitioner then pointed the scythe, which he held in his left hand, in the direction of Benigno’s stomach, while the scythe in the right hand was used to hack the latter’s neck once.14 Benigno fell to the ground and was immediately taken to the hospital15 while the petitioner ran to chase Alejandro.16 Benigno incurred an expense of more than ₱10,000.00 for hospitalization, but lost the receipts of his bills.17 He further claimed that after the hacking incident, he could no longer move his left hand and was thus deprived of his capacity to earn a living as a carpenter.18 Dr. Ardiente testified that Benigno sustained: (a) a "hacking wound left lateral aspect neck 11 cm"; and (b) an "incised wound left hand dorsal aspect 4 cm".19 Benigno was initially confined in the hospital on September 6, 1998 and was discharged on September 23, 1998.20 From Dr. Ardiente’s recollection, since the scythe used in the hacking was not sterile, complications and infections could

have developed from the big and open wounds sustained by Benigno, but fortunately did not.21 The defense offered the testimonies of: (a) the petitioner;22 (b) Fernando Fernandez23 (Fernando), a friend of the petitioner; and (c) Urbano Cabag24 (Urbano). The petitioner relied on denial and alibi as defenses. He claimed that from September 2, 1998 to October 2002, he and his family resided in Buenavista, Agusan del Norte. Sitio Puli, Canitoan, Cagayan de Oro City, where the hacking incident occurred, is about four (4) hours drive away. Fernando testified that on September 6, 1998, he saw the petitioner gathering woods to make a hut.25 Later in the evening, at around 5:00 p.m., Urbano spotted the petitioner drinking tuba in the store of Clarita Perpetua.26 The RTC Ruling On July 13, 2006, the RTC convicted the petitioner of the crime charged. The fallo of the Judgment27 reads: WHEREFORE, in view of the foregoing and finding the evidence presented by the prosecution sufficient to prove the guilt of the [petitioner] beyond reasonable doubt, judgment is rendered finding petitioner Fe Abella GUILTY beyond reasonable doubt of the crime of Frustrated Homicide as defined and penalized by Article 249 in relation to Article 50 and Art. 6 of the Revised Penal Code. Accordingly, petitioner Fe Abella is hereby sentenced to suffer an indeterminate penalty of Six (6) years and One (1) day to Eight (8) years of prision mayor as minimum to Ten (10) years and One (1) day to Twelve (12) years of prision mayor as maximum; to indemnify offended-party complainant Benigno Abella the sum of Ten Thousand ([P]10,000.00) Pesos for the medical expenses incurred; to pay the sum of ONE HUNDRED THOUSAND ([P]100,000.00) PESOS as consequential damages and to pay the costs. SO ORDERED.28 The RTC found the petitioner’s defenses of alibi and denial as weak. No disinterested witnesses were presented to corroborate the petitioner’s claim that he was nowhere at the scene of the hacking incident on September 6, 1998. Fernando and Urbano’s testimonies were riddled with inconsistencies. The RTC accorded more credence to the averments of the prosecution witnesses, who, without any ill motives to testify against the petitioner, positively, categorically and consistently pointed at the latter as the perpetrator of the crime. Besides, medical records show that Benigno sustained a wound in his neck and his scar was visible when he testified during the trial.

The RTC awarded ₱10,000.00 as actual damages to Benigno for the medical expenses he incurred despite the prosecution’s failure to offer receipts as evidence. The petitioner was likewise ordered to pay ₱100,000.00 as consequential damages, but the RTC did not explicitly lay down the basis for the award. The petitioner then filed an appeal29 before the CA primarily anchored on the claim that the prosecution failed to prove by clear and convincing evidence the existence of intent to kill which accompanied the single hacking blow made on Benigno’s neck. The petitioner argued that the hacking was merely accidental especially since he had no motive whatsoever which could have impelled him to hurt Benigno, and that the infliction of merely one wound negates intent to kill. The CA Ruling On October 26, 2010, the CA rendered the herein assailed Decision30 affirming the petitioner’s conviction for the crime of frustrated homicide ratiocinating that: Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) the words uttered by the offender at the time the injuries are inflicted by him on the victim. Here, the intent to kill was sufficiently proven by the Prosecution. The petitioner attacked Benigno with deadly weapons, two scythes. The petitioner’s blow was directed to the neck of Benigno. The attack on the unarmed and unsuspecting Benigno was swift and sudden. The latter had no means, and no time, to defend himself. Dr. Roberto Ardiente, Jr., who attended and issued the Medical Certificate, testified that Benigno suffered from a hack wound on the left neck, and an incised wound on the left hand palm. He said that the wounds might have been caused by a sharp, pointed and sharp-edged instrument, and may have resulted to death without proper medical attendance. Benigno was hospitalized for about a month because of the injuries. The location of the wound (on the neck) shows the nature and seriousness of the wound suffered by Benigno. It would have caused his death, had it not been for the timely intervention of medical science.31 (Citations omitted and emphasis supplied) However, the CA modified the sentence to "imprisonment of six (6) months and one (1) day to six (6) years of prision correccional as minimum, to eight (8) years and one (1) day of prision mayor in its medium period, as maximum."32 The CA explained that:

Article 249 of the Revised Penal Code provides that the penalty for the crime of consummated homicide is reclusion temporal , or twelve (12) years and one (1) day to twenty (20) years. Under Article 50 of the same Code, the penalty for a frustrated crime is one degree lower than that prescribed by law. Thus, frustrated homicide is punishable by prision mayor , or six (6) years and one (1) day to twelve (12) years. Applying the Indeterminate Sentence Law, absent any mitigating or aggravating circumstances, the maximum of the indeterminate penalty should be taken from the medium period of prision mayor . To determine the minimum of the indeterminate penalty, prision mayor should be reduced by one degree, which is prision correccional , with a range of six (6) months and one (1) day to six (6) years. The minimum of the indeterminate penalty may be taken from the full range of prision correccional.33(Citation omitted) The CA also deleted the RTC’s order for the payment of actual and consequential damages as there were no competent proofs to justify the awards. The CA instead ruled that Benigno is entitled to ₱30,000.00 as moral damages and ₱10,000.00 as temperate damages,34 the latter being awarded when some pecuniary loss has been incurred, but the amount cannot be proven with certainty.35 Issue Hence, the instant Petition for Review on Certiorari36 anchored on the issue of whether or not the RTC and the CA erred in rendering judgments which are not in accordance with law and applicable jurisprudence and which if not corrected, will cause grave injustice and irreparable damage to the petitioner.37 In support thereof, the petitioner avers that the courts a quo failed to appreciate relevant facts, which if considered, would justify either his acquittal or the downgrading of his conviction to less serious physical injuries. The petitioner points out that after the single hacking blow was delivered, he ran after Alejandro and Dionisio leaving Benigno behind. Had there been an intent to kill on his part, the petitioner could have inflicted more wounds since at that time, he had two scythes in his hands. Further, the CA erred in finding that the hacking blow was sudden and unexpected, providing Benigno with no opportunity to defend himself. Benigno saw the petitioner arriving with weapons on hand. Benigno could not have been unaware of the danger facing him, but he knew that the petitioner had no intent to hurt him. Benigno thus approached the petitioner, but in the process, the former was accidentally hit with the latter’s scythe. The petitioner also cites Pentecostes, Jr. v. People38 where this Court found the downgrading of a conviction from attempted murder to physical injuries as proper considering that homicidal intent was absent when the accused shot the victim once and did not hit a vital part of the latter’s body.39

Further, as per Dr. Ardiente’s testimony, no complications resulted from Benigno’s hacking wound in the neck and incised wound in the hand. Such being the case, death could not have resulted. The neck wound was not "so extensive because it did not involve a big blood vessel on its vital structure" while the incised wound in the hand, which only required cleansing and suturing, merely left a slight scarring.40 Besides, Benigno was only confined for seventeen (17) days at the hospital and the injuries he sustained were in the nature of less serious ones. In its Comment,41 the Office of the Solicitor General (OSG) seeks the dismissal of the instant petition. The OSG stresses that the petitioner raises factual issues, which call for a re-calibration of evidence, hence, outside the ambit of a petition filed under Rule 45 of the Rules of Court. Moreover, the petitioner’s argument that the development of infections or complications on the wounds is a necessary factor to determine the crime committed is specious. The petitioner’s intent to kill Benigno can be clearly inferred from the nature of the weapon used, the extent of injuries inflicted and the circumstances of the aggression. Benigno could have died had there been no timely medical assistance rendered to him. If it were the petitioner’s wish to merely get Benigno out of the way to be able to chase Alejandro and Dionisio, a kick, fist blow, push, or the use of a less lethal weapon directed against a non-vital part of the body would have been sufficient. However, the petitioner hacked Benigno’s neck with an unsterile scythe, leaving behind a big, open and gaping wound. This Court’s Ruling The instant petition raises factual issues which are beyond the scope of a petition filed under Rule 45 of the Rules of Court. Century Iron Works, Inc. and Benito Chua v. Eleto B. Bañas42 is instructive anent what is the subject of review in a petition filed under Rule 45 of the Rules of Court, viz: A petition for review on certiorari under Rule 45 is an appeal from a ruling of a lower tribunal on pure questions of law. It is only in exceptional circumstances that we admit and review questions of fact. A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the question must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a

review of the evidence presented, the question posed is one of fact.43(Citations omitted) In the case at bar, the challenge is essentially posed against the findings of the courts a quo that the petitioner had a homicidal intent when he hacked Benigno’s neck with a scythe and that the wounds the latter sustained could have caused his death had there been no prompt medical intervention. These questions are patently factual in nature requiring no less than a re-calibration of the contending parties’ evidence. It is settled that the general rule enunciated in Century Iron Works, Inc. and Benito Chua admits of exceptions, among which is, "when the judgment of the CA is premised on a misapprehension of facts or a failure to notice certain relevant facts that would otherwise justify a different conclusion x x x."44 However, the factual backdrop and circumstances surrounding the instant petition do not add up to qualify the case as falling within the exceptions. Even if this Court were to be exceptionally liberal and allow a review of factual issues, still, the instant petition is susceptible to denial. To successfully prosecute the crime of homicide, the following elements must be proved beyond reasonable doubt: (1) that a person was killed; (2) that the accused killed that person without any justifying circumstance; (3) that the accused had the intention to kill, which is presumed; and (4) that the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. Moreover, the offender is said to have performed all the acts of execution if the wound inflicted on the victim is mortal and could cause the death of the victim without medical intervention or attendance.45 In cases of frustrated homicide, the main element is the accused’s intent to take his victim’s life. The prosecution has to prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent. And the intent to kill is often inferred from, among other things, the means the offender used and the nature, location, and number of wounds he inflicted on his victim.46 The petitioner now wants to impress upon this Court that he had no motive to attack, much less kill Benigno. The petitioner likewise invokes the doctrine in Pentecostes, Jr.47 to argue that homicidal intent is absent in a case where the accused shot the victim only once when there was an opportunity to do otherwise. The petitioner belabors his claim that had he intended to kill Benigno, he could have repeatedly hacked him to ensure the latter’s death, and not leave right after the blow to chase Alejandro instead. The analogy is flawed.

In Pentecostes, Jr., the victim was shot only once in the arm, a non vital part of the body. The attending physician certified that the injury would require medical attendance for ten days, but the victim was in fact promptly discharged from the hospital the following day. In Benigno’s case, he sustained an 11-centimeter long hacking wound in the neck and a 4-cm long incised wound in his left hand caused by the unsterile scythe used by the petitioner. Dr. Ardiente testified that "it is possible to have complications resulting from these injuries because the wounds were extensive and they were big and they were open wounds, so there is a possibility of infections resulting from these kinds of wounds, and the instrument used was not a sterile instrument contaminated with other things."48 No complications developed from Benigno’s wounds which could have caused his death, but he was confined in the hospital for a period of 17 days from September 6, 1998 to September 23, 1998. From the foregoing, this Court concludes and thus agrees with the CA that the use of a scythe against Benigno’s neck was determinative of the petitioner’s homicidal intent when the hacking blow was delivered. It does not require imagination to figure out that a single hacking blow in the neck with the use of a scythe could be enough to decapitate a person and leave him dead. While no complications actually developed from the gaping wounds in Benigno’s neck and left hand, it perplexes logic to conclude that the injuries he sustained were potentially not fatal considering the period of his confinement in the hospital. A mere grazing injury would have necessitated a lesser degree of medical attention. This Court likewise finds wanting in merit the petitioner’s claim that an intent to kill is negated by the fact that he pursued Alejandro instead and refrained from further hacking Benigno. What could have been a fatal blow was already delivered and there was no more desistance to speak of. Benigno did not die from the hacking incident by reason of a timely medical intervention provided to him, which is a cause independent of the petitioner’s will.1âwphi1 All told, this Court finds no reversible error committed by the CA in affirming the RTC’s conviction of the petitioner of the crime charged. The Court modifies the award of damages. As to the civil liability of the petitioner, the CA was correct in deleting the payment of the consequential damages awarded by the trial court in the absence of proof thereof. Where the amount of actual damages cannot be determined because of the absence of supporting receipts but entitlement is shown by the facts of the case, temperate damages may be awarded.49 In the instant case, Benigno certainly suffered injuries, was actually hospitalized and underwent medical treatment.

Considering the nature of his injuries, it is prudent to award temperate damages in the amount of ₱25,000.00, in lieu of actual damages.50 Furthermore, we find that Benigno is entitled to moral damages in the amount of ₱25,000.00.51 There is sufficient basis to award moral damages as ordinary human experience and common sense dictate that such wounds inflicted on Benigno would naturally cause physical suffering, fright, serious anxiety, moral shock, and similar injury.52 WHEREFORE the instant petition is DENIED. The Decision and Resolution, dated October 26, 2010 and August 11 2011, respectively, of the Court of Appeals in CAG.R. CR No. 00336-MIN are AFFIRMED with MODIFICATIONS. The petitioner, Fe Abella y Perpetua is ORDERED TO PAY the offended party moral damages in the amount of ₱25,000.00 and temperate damages in the amount of ₱25,000.00. Further, the monetary awards for damages shall be subject to interest at the legal rate of six percent ( 6%) p r annum from the date of finality of this Decision until fully paid.53 SO ORDERED.

G.R. No. 213792

June 22, 2015

GUILLERMO WACOY y BITOL, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent,

Aro but was restrained from doing so. As Aro stood up, Quibac punched him on the stomach, causing him to collapse and cry in pain. Thereafter, Aro was taken to the hospital.5

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

At the hospital, Aro was diagnosed to be suffering from "blunt abdominal trauma with injury to the jejunum" and was set for operation. It was then discovered that he sustained a perforation on his ileum, i.e., the point where the small and large intestines meet, that caused intestinal bleeding, and that his entire abdominal peritoneum was filled with air and fluid contents from the bile. However, Aro suffered cardiac arrest during the operation, and while he was revived through cardiopulmonary resuscitation, he lapsed into a coma after the operation.6

G.R. No. 213886 JAMES QUIBAC y RAFAEL, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION PERLAS-BERNABE, J.: Assailed in these consolidated petitions for review on certiorari1 are the Decision2 dated December 6, 2013 and the Resolution3 dated July 21, 2014 of the Court of Appeals (CA) in CA-G.R. CR No. 34078, which, inter alia, found petitioners Guillermo Wacoy y Bitol (Wacoy) and James Quibac Rafael (Quibac) guilty beyond reasonable doubt of the crime of Homicide. The Facts In an Information dated June 10, 2004, Wacoy and Quibac were charged with the crime of Homicide, defined and penalized under Article 249 of the Revised Penal Code (RPC), before the Regional Trial Court of Benguet, Branch 10 (RTC), as follows: That on or about the 11th day of April 2004, at Ambongdolan, Municipality of Tublay, Province of Benguet, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding each other, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault, maul and kick the stomach of one ELNER ARO y LARUAN, thereby inflicting upon him blunt traumatic injuries which directly caused his death thereafter. That the offense committed was attended by the aggravating circumstance of superior strength. CONTRARY TO LAW.4 According to prosecution witness Edward Benito (Benito), at around 3 o'clock in the afternoon of April 11, 2004, he was eating corn at a sari-sari store located at Bungis Ambongdolan, Tublay, Benguet, when he heard a commotion at a nearby establishment. Upon checking what the ruckus was all about, he saw his cousin, Elner Aro (Aro), already sprawled on the ground. While in that position, he saw Wacoy kick Aro's stomach twice, after which, Wacoy picked up a rock to throw at

Due to financial constraints, Aro was taken out of the hospital against the doctor's orders and eventually, died the next day. While Aro's death certificate indicated that the cause of his death was "cardiopulmonary arrest antecedent to a perforated ileum and generalized peritonitis secondary to mauling," an autopsy performed on his remains revealed that the cause of his death was "rupture of the aorta secondary to blunt traumatic injuries."7 In their defense, herein petitioners, Wacoy and Quibac, denied the charge against them. They averred that while playing pool, they saw Aro drunk and lying down. Suddenly, Aro became unruly and kicked the leg of the pool table, causing Wacoy to shout and pick up a stone to throw at Aro but Quibac pacified him. They also claimed that Aro almost hit Wacoy with a 2x3 piece of wood if not for Quibac' s intervention. Wacoy ran but Aro chased him and then tripped and fell to the ground. Quiniquin Carias (Kinikin), Aro's companion, followed Wacoy to the waiting shed nearby, cornered and kicked the latter, and the two engaged in a fist fight. Quibac came over to pacify the two and told Wacoy to go home.8 The RTC Ruling In a Judgment9 dated February 28, 2011, the RTC found Wacoy and Quibac guilty beyond reasonable doubt of the crime of Death Caused in a Tumultuous Affray under Article 251 of the RPC and, accordingly, sentenced them to suffer the penalty of imprisonment for an indeterminate period of six (6) months and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor , as maximum, and ordered them to pay Aro's heirs the amounts of ₱25,000.00 as temperate damages, ₱50,000.00 as civil indemnity ex delicto, and ₱50,000.00 as moral damages.10 The RTC found that Benito's testimony on the mauling incident does not firmly establish that Wacoy and Quibac conspired in the killing of Aro, and that the medical reports were neither categorical in stating that the injuries Aro sustained from the mauling directly contributed to his death. 11

In this relation, it opined that "[a]s conspiracy was not proven and the prosecution has failed to show the extent and effect of injury [that Wacoy and Quibac] personally inflicted on [Aro] that led to his death xx x," Wacoy and Quibac should be held criminally liable for the crime of Death Caused in a Tumultuous Affray and not for Homicide.12

unassigned in the appealed judgment, or even reverse the trial court's decision based on grounds other than those that the parties raised as errors. The appeal confers upon the appellate court full jurisdiction over the case and renders such court competent to examine records, revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal law.21

Aggrieved, Wacoy and Quibac appealed to the CA.13

Proceeding from the foregoing, the Court agrees with the CA's ruling modifying Wacoy and Quibac' s conviction from Death Caused in a Tumultuous Affray to that of Homicide, as will be explained hereunder.

The CA Ruling In a Decision14 dated December 6, 2013, the CA modified Wacoy and Quibac's conviction to that of Homicide under A1iicle 249 of the RPC with the mitigating circumstance of lack of intent to commit so grave a wrong, and accordingly adjusted their prison term to an indeterminate period of six (6) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one ( 1) day of reclusion temporal, as maximum. Further, the CA also imposed a legal interest of six percent ( 6%) per annum on the damages awarded by the RTC pursuant to prevailing jurisprudence.15 In so ruling, the CA gave credence to Benito's simple, direct, and straightforward testimony. In this relation, it observed that the mere fact that Benito is Aro's cousin should not militate against his credibility since there was no proof that his testimony was driven by any ill motive.16 However, contrary to the RTC's findings, the CA ruled that Wacoy and Quibac should not be convicted of the crime of Death Caused in a Tumultuous Affray since there were only (2) persons who inflicted harm on the victim, and that there was no tumultuous affray involving several persons. Instead, they were convicted of the crime of Homicide, with the mitigating circumstance of lack of intent to commit so grave a wrong appreciated as it was shown that the purpose of their assault on Aro was only to maltreat or inflict physical harm on him.17 Aggrieved, Wacoy and Quibac separately moved for reconsideration. 18 In a Resolution19 dated July 21, 2014, the CA denied Quibac's motions for reconsideration;20 hence, the instant petitions. The Issue Before the Court The core issue for the Court's resolution is whether or not the CA correctly found Wacoy and Quibac guilty beyond reasonable doubt of the crime of Homicide. The Court's Ruling The petition is without merit. At the outset, it must be stressed that in criminal cases, an appeal throws the entire case wide open for review and the reviewing tribunal can correct errors, though

Article 251 of the RPC defines and penalizes the crime of Death Caused in a Tumultuous Affray as follows: Art. 251. Death caused in a tumultuous affray. - When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prision mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim. The elements of Death Caused in a Tumultuous Affray are as follows: (a) that there be several persons; (b) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (c) that these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (d) that someone was killed in the course of the affray; (e) that it cannot be ascertained who actually killed the deceased; and (j) that the person or persons who inflicted serious physical injuries or who used violence can be identified.22Based on case law, a tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained.23 On the other hand, the crime of Homicide is defined and penalized under Article 249 of the RPC, which reads: Art. 249. Homicide. - Any person who, not falling within the provisions of Article 246, shall kill another, without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by

reclusion temporal. The elements of Homicide are the following: (a) a person was killed; (b) the accused killed him without any justifying circumstance; (c) the accused had the intention to kill, which is presumed; and (d) the killing was not attended by any of the qualifying circumstances of Murder, or by that of Parricide or Infanticide.24

Jurisprudence instructs that such provision should only apply where the crime committed is different from that intended and where the felony committed befalls a different person (error in personae); and not to cases where more serious consequences not intended by the offender result from his felonious act (praeter intentionem),29

In the instant case, there was no tumultuous affray between groups of persons in the course of which Aro died.1âwphi1 On the contrary, the evidence clearly established that there were only two (2) persons, Wacoy and Quibac, who picked on one defenseless individual, Aro, and attacked him repeatedly, taking turns in inflicting punches and kicks on the poor victim. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression in that fateful incident.25 Since Wacoy and Quibac were even identified as the ones who assaulted Aro, the latter's death cannot be said to have been caused in a tumultuous affray.26 Therefore, the CA correctly held that Wacoy and Quibac' s act of mauling Aro was the proximate cause27 of the latter's death; and as such, they must be held criminally liable therefore, specifically for the crime of Homicide.

as in this case. It is well-settled that if the victim dies because of a deliberate act of the malefactors, intent to kill is conclusively presumed.30 In such case, even if there is no intent to kill, the crime is Homicide because with respect to crimes of personal violence, the penal law looks particularly to the material results following the unlawful act and holds the aggressor responsible for all the consequences thereof.31

On this note, the Court does not find merit in Wacoy's contention that in view of their intent only to inflict slight physical injuries on Aro, they should only be meted the corresponding penalty therefore in its maximum period,28pursuant to Article 49 of the RPC. The said provision reads: Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. - In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed. 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. 2. If the penalty prescribed for the felony committed be lower than that corresponding to the one which the accused intended to commit, the penalty for the former shall be imposed in its maximum period. 3. The rule established by the next preceding paragraph shall not be applicable if the acts committed by the guilty person shall also constitute an attempt or frustration of another crime, if the law prescribes a higher penalty for either of the latter offenses, in which case the penalty provided for the attempt or the frustrated crime shall be imposed in the maximum period.

Be that as it may, the penalty for the crime of Homicide must be imposed in its minimum period due to the presence of the mitigating circumstance of lack of intention to commit so grave a wrong under Article 13 (3) of the RPC in favor of Wacoy and Quibac, as correctly appreciated by the CA. In determining the presence of this circumstance, it must be considered that since intention is a mental process and is an internal state of mind, the accused's intention must be judged by his conduct and external overt acts.32 In this case, the aforesaid mitigating circumstance is available to Wacoy and Quibac, given the absence of evidence showing that, apart from kicking and punching Aro on the stomach, something else had been done; thus, evincing the purpose of merely maltreating or inflicting physical harm, and not to end the life of Aro. Anent the proper penalty to be imposed on Wacoy and Quibac, the CA correctly imposed the penalty of imprisonment for an indeterminate period of six ( 6) years and one ( 1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, taking into consideration the provisions of the Indeterminate Sentence Law. Finally, the awards of civil indemnity and moral damages in the original amount of ₱50,000.00 each are increased to ₱75,000.00 each in order to conform with prevailing jurisprudence.33 All other awards, as well as the imposition of interest at the rate of six percent ( 6%) per annum on all the monetary awards from the date of finality of judgment until the same are fully paid, are retained. WHEREFORE, the petition is DENIED. The Decision dated December 6, 2013 and the Resolution dated July 21, 2014 of the Court of Appeals in CA-G.R. CR No. 34078 are hereby AFFIRMED with MODIFICATION. Accordingly, petitioners Guillermo Wacoy y Bitol and James Quibac y Rafael are found GUILTY beyond reasonable doubt of the crime of Homicide defined and penalized under Article 249 of the Revised Penal Code with the mitigating circumstance of lack of intent to commit so grave a wrong under Article 13 (3) of the same Code. They are

sentenced to suffer the penalty of imprisonment for an indeterminate period of six ( 6) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as maximum, and ordered to pay the heirs of Elner Aro the amounts of ₱25,000.00 as temperate damages, ₱75,000.00 as civil indemnity ex delicto, and ₱75,000.00 as moral damages, all with interest at the rate of six percent (6%) per annum from the finality of this Decision until fully paid. SO ORDERED.

G.R. No. 170723

March 3, 2008

GLORIA PILAR S. AGUIRRE, petitioner, vs. SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA S. AGUIRREOLONDRIZ, PEDRO B. AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B. PASCUAL, respondents. DECISION CHICO-NAZARIO, J.: In this petition for review on certiorari1 under Rule 45 of the Rules of Court, as amended, petitioner Gloria Pilar S. Aguirre (Gloria Aguirre) seeks the reversal of the 21 July 2005 Decision2 and 5 December 2005 Resolution,3 both of the Court of Appeals in CA-G.R. SP No. 88370, entitled "Gloria Pilar S. Aguirre v. Secretary of the Department of Justice, Michelina S. Aguirre-Olondriz, Dr. Juvido Agatep, Dra. Marissa B. Pascual, Pedro B. Aguirre and John and Jane Does." The Court of Appeals found no grave abuse of discretion on the part of the Secretary of the Department of Justice (DOJ) when the latter issued the twin resolutions dated 11 February 20044 and 12 November 2004,5 respectively, which in turn affirmed the 8 January 2003 Resolution6 of the Office of the City Prosecutor (OCP) of Quezon City. The Assistant City Prosecutor for the OCP of Quezon City recommended the dismissal of the criminal complaint, docketed as I.S. No. 02-12466, for violation of Articles 172 (Falsification by Private Individuals and Use of Falsified Documents) and 262 (Mutilation), both of the Revised Penal Code, in relation to Republic Act No. 7610, otherwise known as "Child Abuse, Exploitation and Discrimination Act," for insufficiency of evidence. The case stemmed from a complaint filed by petitioner Gloria Aguirre against respondents Pedro B. Aguirre (Pedro Aguirre), Michelina S. Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr. Marissa B. Pascual (Dr. Pascual) and several John/Jane Does for falsification, mutilation and child abuse. The antecedents of the present petition are: Laureano "Larry" Aguirre7 used to be a charge of the Heart of Mary Villa, a child caring agency run by the Good Shepherd Sisters and licensed by the Department of Social Work and Development (DSWD). Sometime in 1978, respondent Pedro Aguirre; the latter's spouse, Lourdes S. Aguirre (Lourdes Aguirre); and their four daughters, who included petitioner Gloria Aguirre and respondent Olondriz, came to know Larry, who was then just over a year old. The Aguirres would have Larry spend a few days at their home and then return him to the orphanage thereafter. In June 1980, Larry, then two years and nine months of age, formally became the

ward of respondent Pedro Aguirre and his spouse Lourdes Aguirre by virtue of an Affidavit of Consent to Legal Guardianship executed in their favor by Sister Mary Concepta Bellosillo, Superior of the Heart of Mary Villa. On 19 June 1986, the Aguirre spouses' guardianship of Larry was legalized when the Regional Trial Court (RTC), Branch 3 of Balanga, Bataan, duly appointed them as joint co-guardians over the person and property of Larry. As Larry was growing up, the Aguirre spouses and their children noticed that his developmental milestones were remarkably delayed. His cognitive and physical growth did not appear normal in that "at age 3 to 4 years, Larry could only crawl on his tummy like a frog x x x;"8 he did not utter his first word until he was three years of age; did not speak in sentences until his sixth year; and only learned to stand up and walk after he turned five years old. At age six, the Aguirre spouses first enrolled Larry at the Colegio de San Agustin, Dasmariñas Village, but the child experienced significant learning difficulties there. In 1989, at age eleven, Larry was taken to specialists for neurological and psychological evaluations. The psychological evaluation9 done on Larry revealed the latter to be suffering from a mild mental deficiency.10 Consequent thereto, the Aguirre spouses transferred Larry to St. John Ma. Vianney, an educational institution for special children. In November of 2001, respondent Dr. Agatep, a urologist/surgeon, was approached concerning the intention to have Larry, then 24 years of age, vasectomized. Prior to performing the procedure on the intended patient, respondent Dr. Agatep required that Larry be evaluated by a psychiatrist in order to confirm and validate whether or not the former could validly give his consent to the medical procedure on account of his mental deficiency. In view of the required psychiatric clearance, Larry was brought to respondent Dr. Pascual, a psychiatrist, for evaluation. In a psychiatric report dated 21 January 2002, respondent Dr. Pascual made the following recommendation: [T]he responsibility of decision making may be given to his parent or guardian.11 the full text of which reads – PSYCHIATRY REPORT 21 January 2002 GENERAL DATA LAUREANO AGUIRRE, 24 years old, male, high school graduate of St. John [Marie Vianney], was referred for psychiatric evaluation to determine competency to give consent for vasectomy.

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

the drivers. There is no history of abuse of alcohol or any prohibited substances. MEDICAL STATUS EXAMINATION The applicant was appropriately dressed. He was cooperative and he had intermittent eye contact. Speech was spontaneous, soft, and relevant. He responded to questions in single words or simple sentences. He was anxious specially at the start of the interview, with full affect appropriate to mood and thought content. There was no apparent thought or perceptual disturbance. No suicidal/homicidal thoughts elicited. He was oriented to time, place and person. He has intact remote and recent memory. He could do simple calculation. He could write his name and read simple words. His human figure was comparable to a 7-8 year old. He demonstrated fair judgment and poor insight. He had fair impulse control. PSYCHOLOGICAL TESTS Psychological tests done on March 6, 1990 (Dr. Lourdes Ledesma) and on August 4, 2000 (Dr. Ma. Teresa Gustilo-Villaosor) consistently revealed mild to moderate mental deficiency. SIGNIFICANT LABORATORY EXAMS RESULTS CT scan done 09 January 2001 showed nonspecific right deep parietal subcortical malacia. No localized mass lesion in the brain. MRI done on 10 January 2001 showed bilateral parietal x x x volume loss, encephalomalacia, gliosis and ulegyria consistent with sequela of postnatal or neonatal infarcts. Ex-vacuo dilatation of the atria of lateral ventricles associated thinned posterior half of the corpus callosum. ASSESSMENT AND RECOMMENDATION Axis I None Axis II Mental Retardation, mild to moderate type Axis III None Axis IV None at present Axis V Current GAF = 50-60 Larry's mental deficiency could be associated with possible perinatal insults, which is consistent with the neuroimaging findings. Mental retardation associated with neurological problems usually has poorer

prognosis. Larry is very much dependent on his family for his needs, adaptive functioning, direction and in making major life decisions. At his capacity, he may never understand the nature, the foreseeable risks and benefits, and consequences of the procedure (vasectomy) that his family wants for his protection. Thus, the responsibility of decision making may be given to his parent or guardian. Marissa B. Pascual, M.D. Psychiatrist12 Considering the above recommendation, respondent Pedro Aguirre's written consent was deemed sufficient in order to proceed with the conduct of the vasectomy. Hence, on 31 January 2002, respondent Dr. Agatep performed a bilateral vasectomy on Larry. On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirre's eldest child, instituted a criminal complaint for the violation of the Revised Penal Code, particularly Articles 172 and 262, both in relation to Republic Act No. 7610 against respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr. Pascual and several John/Jane Does before the Office of the City Prosecutor of Quezon City. The Complaint Affidavit,13 docketed as I.S. No. 02-12466, contained the following allegations: 2. x x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners specializing in urology and psychiatry respectively; while respondent Pedro B. Aguirre is my father; Michelina S. Aguirre-Olondriz is my sister, and the victim Laureano "Larry" Aguirre xxx is my common law brother. JOHN and JANE DOES were the persons who, acting upon the apparent instructions of respondents Michelina Aguirre-Olondriz and/or Pedro B. Aguirre, actually scouted, prospected, facilitated, solicited and/or procured the medical services of respondents Dra. Pascual and Dr. Agatep vis-à-vis the intended mutilation via bilateral vasectomy of my common law brother Larry Aguirre subject hereof. xxxx 4. Sometime in March 2002, however, the Heart of Mary Villa of the Good Shepherd Sisters was furnished a copy of respondent Dra. Pascual's Psychiatry Report dated 21 January 2004 by the "DSWD," in which my common law brother "Larry" was falsely and maliciously declared incompetent and incapable of purportedly giving his own consent to the

MUTILATION VIA BILATERAL VASECTOMY intended to be performed on him by all the respondents. xxxx 6. Based on the foregoing charade and false pretenses invariably committed by all of the respondents in conspiracy with each other, on 31 January 2002, my common law brother Larry Aguirre, although of legal age but conspiratorially caused to be declared by respondents to be "mentally deficient" and incompetent to give consent to his BILATERAL VASECTOMY, was then intentionally, unlawfully, maliciously, feloniously and/or criminally placed thereafter under surgery for MUTILATION VIA "BILATERAL VASECTOMY" x x x, EVEN WITHOUT ANY AUTHORIZATION ORDER from the GUARDIANSHIP COURT, nor personal consent of Larry Aguirre himself. In addition to the above, the complaint included therein an allegation that – v. x x x without a PRIOR medical examination, professional interview of nor verification and consultation with my mother, Lourdes Sabino-Aguirre, respondent Dra. Pascual baselessly, fraudulently and with obvious intent to defame and malign her reputation and honor, and worse, that of our Sabido family, falsely concluded and diagnosed, via her falsified Psychiatry Report, that my mother Lourdes Sabido-Aguirre purportedly suffers from "BIPOLAR MOOD DISORDER" x x x. To answer petitioner Gloria Aguirre's accusations against them, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual submitted their respective CounterAffidavits. In her defense,14 respondent Olondriz denied that she "prospected, scouted, facilitated, solicited and/or procured any false statement, mutilated or abused" her common-law brother, Larry Aguirre. Further, she countered that: 3. x x x While I am aware and admit that Larry went through a vasectomy procedure, there is nothing in the Complaint which explains how the vasectomy amounts to a mutilation. xxxx 5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not participate in any way in the alleged mutilation. 6. Neither did I procure or solicit the services of the physician who performed the vasectomy, Dr. Juvido Agatep x x x. It was my father, Pedro

Aguirre, Larry's guardian, who obtained his services. I merely acted upon his instructions and accompanied my brother to the physician, respondents Dra. Marissa B. Pascual x x x. xxxx 10. Neither does the Complaint explain in what manner the Complainant is authorized or has any standing to declare that Larry's consent was not obtained. Complainant is not the guardian or relative of Larry. While she argues that Larry's consent should have been obtained the Complaint does not dispute the psychiatrist's findings about Larry's inability to give consent. xxxx 13. x x x the Complaint does not even state what alleged participation was falsified or the portion of the psychiatric report that allegedly states that someone participated when in fact that person did not so participate. xxxx 15. Again, I had no participation in the preparation of the report of Dr. Pascual x x x. xxxx 17. x x x the Complaint does not dispute that he (Larry) is mentally deficient or incompetent to give consent. xxxx 19. x x x I verified that the effect of a vasectomy operation was explained to him (Larry) by both respondent doctors. 20. x x x I accompanied Larry and obeyed my father on the belief that my father continues to be the legal guardian of Larry. I know of no one else who asserts to be his legal guardian x x x.15 Alleging the same statement of facts and defenses, respondent Pedro Aguirre argues against his complicity in the crime of mutilation as charged and asserts that: 5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not participate in any way in the alleged mutilation.16 Nevertheless, he maintains that the vasectomy performed on Larry does not in any way amount to mutilation, as the latter's reproductive organ is still completely

intact.17 In any case, respondent Pedro Aguirre explains that the procedure performed is reversible through another procedure called Vasovasostomy, to wit: 8. I understand that vasectomy is reversible through a procedure called Vasovasostomy. I can also state with confidence that the procedure enables men who have undergone a vasectomy to sire a child. Hence, no permanent damage was caused by the procedure. Respondent Pedro Aguirre challenges the charge of falsification in the complaint, to wit: 14. x x x I did not make it appear that any person participated in any act or proceeding when that person did not in fact participate x x x. xxxx 16. x x x I had no participation in the preparation of the report of Dra. Pascual. She arrived at her report independently, using her own professional judgment x x x. xxxx 31. What I cannot understand about Petita's Complaint is how Larry is argued to be legally a child under the definition of one law but nonetheless and simultaneously argued to be capacitated to give his consent as fully as an adult.18 Respondent Pedro Aguirre further clarifies that co-guardianship over Larry had been granted to himself and his wife, Lourdes Aguirre, way back on 19 June 1986 by the Regional Trial Court, Branch 3 of Balanga, Bataan. Respondent Pedro Aguirre contends that being one of the legal guardians, consequently, parental authority over Larry is vested in him. But assuming for the sake of argument that Larry does have the capacity to make the decision concerning his vasectomy, respondent Pedro Aguirre argues that petitioner Gloria Aguirre has no legal personality to institute the subject criminal complaint, for only Larry would have the right to do so. Just as the two preceding respondents did, respondent Dr. Agatep also disputed the allegations of facts stated in the Complaint. Adopting the allegations of his corespondents insofar as they were material to the charges against him, he vehemently denied failing to inform Larry of the intended procedure. In his counterstatement of facts he averred that: (b) x x x I scheduled Larry for consultative interview x x x wherein I painstakingly explained what vasectomy is and the consequences thereof; but finding signs of mental deficiency, x x x I advised his relatives and his

nurse who accompanied him to have Larry examined by a psychiatrist who could properly determine whether or not Larry x x x can really give his consent, thus I required them to secure first a psychiatric evaluation and clearance prior to the contemplated procedure.

(d) Child Abuse. x x x the complaint-affidavit is very vague in specifying the applicability of said law. It merely avers that Laureano "Larry" Aguirre is a child, and alleges his father, Pedro Aguirre, has parental authority over him x x x.20

(c) On January 21, 2002, I was furnished a copy of a psychiatric report prepared by Dr. Marissa Pascual x x x. In her said report, Dr. Pascual found Larry to suffer from "mental retardation, mild to moderate type" and further stated that "at his capacity, he may never understand the nature, the foreseeable risks and benefits and consequences of the procedure (vasectomy) x x x, thus the responsibility of decision making may be given to his parent or guardian x x x."

Similarly, respondent Dr. Pascual denied the criminal charges of falsification and mutilation imputed to her. She stands by the contents of the assailed Psychiatric Report, justifying it thus:

(d) x x x I was likewise furnished a copy of an affidavit executed by Pedro Aguirre stating that he was the legal guardian of Larry x x x Pedro Aguirre gave his consent to vasectomize Larry x x x. (e) Only then, specifically January 31, 2002, vasectomy was performed with utmost care and diligence.19 In defense against the charge of falsification and mutilation, respondent Dr. Agatep argued that subject complaint should be dismissed for the following reasons: 1. The complainant has no legal personality to file this case. As mentioned above, she is only a common law sister of Larry who has a legal guardian in the person of Pedro Aguirre, one of the herein respondents x x x. 2. x x x [t]he allegations in the complaint clearly centers on the condition of complainant's mother, Lourdes Aguirre, her reputation, and miserably fails to implicate the degree of participation of herein respondent. x x x xxxx (b) Falsification. x x x I strongly aver that this felony does not apply to me since it clearly gives reference to co-respondent, Dr. Marissa Pascual's Psychiatry Report, dated January 21, 2002, in relation with her field of profession, an expert opinion. I do not have any participation in the preparation of said report, x x x neither did I utilized (sic) the same in any proceedings to the damage to another. x x x I also deny using a falsified document x x x. (c) Mutilation. x x x Vasectomy does not in anyway equate to castration and what is touched in vasectomy is not considered an organ in the context of law and medicine, it is quite remote from the penis x x x.

x x x My opinion of Larry Aguirre's mental status was based on my own personal observations, his responses during my interview of him, the results of the two (2) psychological tests conducted by clinical psychologists, the results of laboratory tests, including a CT Scan and MRI, and his personal and family history which I obtained from his sister, Michelina Aguirre-Olondriz x x x. 5. x x x the reference in my report concerning Mrs. Lourdes Aguirre is not a statement of my opinion of Mrs. Aguirre's mental status, x x x. Rather, it is part of the patient's personal and family history as conveyed to me by Mrs. Aguirre-Olondriz. 6. x x x An expression of my opinion, especially of an expert opinion, cannot give rise to a charge for falsification. A contrary opinion by another expert only means that the experts differ, and does not necessarily reflect on the truth or falsity of either opinion x x x. 7. x x x I never stated that I examined Mrs. Aguirre, because I never did x x x. 8. I had no participation in the surgery performed on Larry Aguirre except to render an opinion on his capacity to give informed consent to the vasectomy x x x. 9. Without admitting the merits of the complaint, I submit that complainants are not the proper persons to subscribe to the same as they are not the offended party, peace officer or other public officer charged with the enforcement of the law violated x x x.21 The Assistant City Prosecutor held that the circumstances attendant to the case did not amount to the crime of falsification. He held that – [T]he claim of the complainant that the Psychiatric Report was falsified, because consent was not given by Larry Aguirre to the vasectomy and/or he was not consulted on said operation does not constitute falsification. It would have been different if it was stated in the report that consent was

obtained from Larry Aguirre or that it was written therein that he was consulted on the vasectomy, because that would mean that it was made to appear in the report that Larry Aguirre participated in the act or proceeding by giving his consent or was consulted on the matter when in truth and in fact, he did not participate. Or if not, the entry would have been an untruthful statement. But that is not the case. Precisely (sic) the report was made to determine whether Larry Aguirre could give his consent to his intended vasectomy. Be that as it may, the matter of Larry's consent having obtained or not may nor be an issue after all, because complainant's (sic) herself alleged that Larry's mental condition is that of a child, who can not give consent. Based on the foregoing consideration, no falsification can be established under the circumstances.22 Even the statement in the Psychiatric Report of respondent Dr. Pascual that Lourdes Aguirre had Bipolar Mood Disorder cannot be considered falsification since – The report did not state that Lourdes Aguirre was in fact personally interviewed by respondent Dr. Pascual and that the latter concluded that Lourdes Aguirre has Bipolar Mood Disorder. The report merely quoted other sources of information with respect to the condition of Lourdes Aguirre, in the same manner that the fact that Lourdes Aguirre was physically abusing Larry Aguirre was also not of Dra. Pascual personal knowledge. But the fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without saying that if the author of the report is not guilty, then with more reason the other respondents are not liable.23 Respecting the charge of mutilation, the Assistant City Prosecutor also held that the facts alleged did not amount to the crime of mutilation as defined and penalized under Article 262 of the Revised Penal Code, i.e., "[t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self." He ratiocinated that: While the operation renders him the inability (sic) to procreate, the operation is reversible and therefore, cannot be the permanent damage contemplated under Article 262 of the Revised Penal Code.24 The Assistant City Prosecutor,25 in a Resolution26 dated 8 January 2003, found no probable cause to hold respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr.

Pascual liable for the complaint of falsification and mutilation, more specifically, the violation of Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Accordingly, the Assistant City Prosecutor recommended the dismissal of petitioner Gloria Aguirre's complaint for insufficiency of evidence. The dispositive portion of the resolution reads: WHEREFORE, it is recommended that the above-entitled case be dismissed for insufficiency of evidence.27 On 18 February 2003, petitioner Gloria Aguirre appealed the foregoing resolution to the Secretary of the DOJ by means of a Petition for Review.28 In a Resolution dated 11 February 2004, Chief State Prosecutor Jovencito R. Zuño, for the Secretary of the DOJ, dismissed the petition. In resolving said appeal, the Chief State Prosecutor held that: Under Section 12, in relation to Section 7, of Department Circular No. 70 dated July 3, 2000, the Secretary of Justice may, motu proprio, dismiss outright the petition if there is no showing of any reversible error in the questioned resolution or finds the same to be patently without merit. We carefully examined the petition and its attachments and found no error that would justify a reversal of the assailed resolution which is in accord with the law and evidenced (sic) on the matter.29 Petitioner Gloria Aguirre's Motion for Reconsideration was likewise denied with finality by the DOJ in another Resolution dated 12 November 2004. Resolute in her belief, petitioner Gloria Aguirre went to the Court of Appeals by means of a Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court, as amended. On 21 July 2005, the Court of Appeals promulgated its Decision dismissing petitioner Gloria Aguirre's recourse for lack of merit. The fallo of the assailed decision reads: WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE and accordingly DISMISSED for lack of merit. Consequently, the assailed Resolutions dated February 11, 2004 and November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466 are hereby AFFIRMED.30 Petitioner Gloria Aguirre's motion for reconsideration proved futile as it was denied by the appellate court in a Resolution dated 5 December 2005.

Hence, the present petition filed under Rule 45 of the Rules of Court, as amended, premised on the following arguments: I. THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND REVERSIBLE ERRORS OF LAW WHEN IT CONCLUDED, BASED PURPORTEDLY ON THE INTERNET WHICH RUNS AMUCK WITH OUR SYSTEM OF THE RULE OF LAW AND THE EVIDENCE ON RECORD, THAT BILATERAL VASECTOMY IS PURPORTEDLY 100% REVERSIBLE BY A FUTURE MEDICAL PROCEDURE HENCE NOT AMOUNTING TO MUTILATION, X X X; AND xxxx II. WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND REVERSIBLE ERRORS OF LAW WHEN IT REFUSED TO DIRECT THE INDICTMENT OF THE PRIVATE RESPONDENTS FOR MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE OF SUFFICIENT PROBABLE CAUSE THEREFOR X X X.31 The foregoing issues notwithstanding, the more proper issue for this Court's consideration is, given the facts of the case, whether or not the Court of Appeals erred in ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when the latter affirmed the public prosecutor's finding of lack of probable cause for respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual to stand trial for the criminal complaints of falsification and mutilation in relation to Republic Act No. 7610. In ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction, the Court of Appeals explained that: Evidently, the controversy lies in the permanency of sterilization as a result of a vasectomy operation, and the chances of restoring fertility with a reversal surgery x x x. We sustain the DOJ in ruling that the bilateral vasectomy performed on Larry does not constitute mutilation even if intentionally and purposely done to prevent him from siring a child. xxxx Sterilization is to be distinguished from castration: in the latter act the reproductive capacity is permanently removed or damaged.32

It then concluded that: The matter of legal liability, other than criminal, which private respondents may have incurred for the alleged absence of a valid consent to the vasectomy performed on Larry, is certainly beyond the province of this certiorari petition. Out task is confined to the issue of whether or not the Secretary of Justice and the Office of the City Prosecutor of Quezon City committed grave abuse of discretion in their determining the existence or absence of probable cause for filing criminal cases for falsification and mutilation under Articles 172 (2) and 262 of the Revised Penal Code.33 Petitioner Gloria Aguirre, however, contends that the Court of Appeals and the DOJ failed to appreciate several important facts: 1) that bilateral vasectomy conducted on petitioner's brother, Larry Aguirre, was admitted34; 2) that the procedure caused the perpetual destruction of Larry's reproductive organs of generation or conception;35 3) that the bilateral vasectomy was intentional and deliberate to deprive Larry forever of his reproductive organ and his capacity to procreate; and 4) that respondents, "in conspiracy with one another, made not only one but two (2) untruthful statements, and not mere inaccuracies when they made it appear in the psychiatry report"36 that a) Larry's consent was obtained or at the very least that the latter was informed of the intended vasectomy; and b) that Lourdes Aguirre was likewise interviewed and evaluated. Paradoxically, however, petitioner Gloria Aguirre does not in any way state that she, instead of respondent Pedro Aguirre, has guardianship over the person of Larry. She only insists that respondents should have obtained Larry's consent prior to the conduct of the bilateral vasectomy. In contrast, the Office of the Solicitor General (OSG), for public respondent DOJ, argues that "the conduct of preliminary investigation to determine the existence of probable cause for the purpose of filing (an) information is the function of the public prosecutor."37 More importantly, "the element[s] of castration or mutilation of an organ necessary for generation is completely absent as he was not deprived of any organ necessary for reproduction, much less the destruction of such organ."38 Likewise, in support of the decision of the Court of Appeals, respondents Pedro Aguirre and Olondriz assert that, fundamentally, petitioner Gloria Aguirre has no standing to file the complaint, as she has not shown any injury to her person or asserted any relationship with Larry other than being his "common law sister"; further, that she cannot prosecute the present case, as she has not been authorized by law to file said complaint, not being the offended party, a peace officer or a public officer charged with the enforcement of the law. Accordingly, respondents Pedro Aguirre and Olondriz posit that they, together with the other respondents Dr. Agatep and Dr. Pascual, may not be charged with, prosecuted for

and ultimately convicted of: 1) "mutilation x x x since the bilateral vasectomy conducted on Larry does not involve castration or amputation of an organ necessary for reproduction as the twin elements of the crime of mutilation x x x are absent"39; and 2) "falsification x x x since the acts allegedly constituting falsification involve matters of medical opinion and not matters of fact,"40 and that petitioner Gloria Aguirre failed to prove damage to herself or to any other person. Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not mutilation. He elucidates that vasectomy is merely the "excision of the vas deferens, the duct in testis which transport semen"41; that it is the penis and the testis that make up the male reproductive organ and not the vas deferens; and additionally argues that for the crime of mutilation to be accomplished, Article 262 of the Revised Penal Code necessitates that there be intentional total or partial deprivation of some essential organ for reproduction. Tubes, seminal ducts, vas deferens or prostatic urethra not being organs, respondent Dr. Agatep concludes, therefore, that vasectomy does not correspond to mutilation. Anent the charge of falsification of a private document, respondent Dr. Agatep asseverates that he never took part in disclosing any information, data or facts as contained in the contentious Psychiatric Report. For her part, respondent Dr. Pascual insists that the assailed Psychiatry Report was the result of her independent exercise of professional judgment. "Rightly or wrongly, (she) diagnosed Larry Aguirre to be incapable of giving consent, based on interviews made by the psychiatrist on Larry Aguirre and persons who interacted with him."42And supposing that said report is flawed, it is, at most, an erroneous medical diagnosis. The petition has no merit. Probable cause has been defined as the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.43 The term does not mean "actual and positive cause" nor does it import absolute certainty.44 It is merely based on opinion and reasonable belief;45 that is, the belief that the act or omission complained of constitutes the offense charged. A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.46 The executive department of the government is accountable for the prosecution of crimes, its principal obligation being the faithful execution of the laws of the land. A necessary component of the power to execute the laws is the right to prosecute their violators,47 the responsibility of which is thrust upon the DOJ. Hence, the determination of whether or not probable cause exists to warrant the prosecution in

court of an accused is consigned and entrusted to the DOJ. And by the nature of his office, a public prosecutor is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. Put simply, public prosecutors under the DOJ have a wide range of discretion, the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by (public) prosecutors.48 And this Court has consistently adhered to the policy of noninterference in the conduct of preliminary investigations, and to leave to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the filing of an information against the supposed offender.49 But this is not to discount the possibility of the commission of abuses on the part of the prosecutor. It is entirely possible that the investigating prosecutor may erroneously exercise the discretion lodged in him by law. This, however, does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of discretion amounting to excess of jurisdiction.50 Prescinding from the above, the court's duty in an appropriate case, therefore, is confined to a determination of whether the assailed executive determination of probable cause was done without or in excess of jurisdiction resulting from a grave abuse of discretion. For courts of law to grant the extraordinary writ of certiorari, so as to justify the reversal of the finding of whether or not there exists probable cause to file an information, the one seeking the writ must be able to establish that the investigating prosecutor exercised his power in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be patent and gross as would amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is not enough.51 Excess of jurisdiction signifies that he had jurisdiction over the case but has transcended the same or acted without authority.52 Applying the foregoing disquisition to the present petition, the reasons of the Assistant City Prosecutor in dismissing the criminal complaints for falsification and mutilation, as affirmed by the DOJ, is determinative of whether or not he committed grave abuse of discretion amounting to lack or excess of jurisdiction. In ruling the way he did – that no probable cause for falsification and mutilation exists - the Assistant City Prosecutor deliberated on the factual and legal milieu of the case. He found that there was no sufficient evidence to establish a prima facie case for the crimes complained of as defined and punished under Articles 172, paragraph 2, and 262 of the Revised Penal Code in relation to Republic Act No.

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

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

to disclose the truth of the facts narrated by him; 3) the facts narrated by the offender are absolutely false; and 4) the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person. Applying the above-stated elements of the crime to the case at bar, in order that respondent Dr. Pascual, and the rest acting in conspiracy with her, to have committed the crime of falsification under par. 3 and 4 of Article 171 of the Revised Penal Code, it is essential that that there be prima facie evidence to show that she had caused it to appear that Larry gave his consent to be vasectomized or at the very least, that the proposed medical procedure was explained to Larry. But in the assailed report, no such thing was done. Lest it be forgotten, the reason for having Larry psychiatrically evaluated was precisely to ascertain whether or not he can validly consent with impunity to the proposed vasectomy, and not to obtain his consent to it or to oblige respondent Dr. Pascual to explain to him what the import of the medical procedure was. Further, that Larry's consent to be vasectomized was not obtained by the psychiatrist was of no moment, because nowhere is it stated in said report that such assent was obtained. At any rate, petitioner Gloria Aguirre contradicts her very own allegations when she persists in the contention that Larry has the mental age of a child; hence, he was legally incapable of validly consenting to the procedure. In the matter of the supposed incorrect diagnosis of Lourdes Aguirre, with regard to paragraph 2 of Article 171 of the Revised Penal Code, we quote with approval the succinct statements of the Assistant City Prosecutor: [T]he fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without saying that if the author of the report is not guilty, then with more reason the other respondents are not liable.54 As to the charge of mutilation, Art. 262 of the Revised Penal Code defines the crime as – Art. 262. Mutilation. – The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential organ for reproduction. Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods.

A straightforward scrutiny of the above provision shows that the elements55 of mutilation under the first paragraph of Art. 262 of the Revised Penal Code to be 1) that there be a castration, that is, mutilation of organs necessary for generation; and 2) that the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. According to the public prosecutor, the facts alleged did not amount to the crime of mutilation as defined and penalized above, i.e., "[t]he vasectomy operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his physical self." Petitioner Gloria Aguirre, however, would want this Court to make a ruling that bilateral vasectomy constitutes the crime of mutilation. This we cannot do, for such an interpretation would be contrary to the intentions of the framers of our penal code. A fitting riposte to the issue at hand lies in United States v. Esparcia,56 in which this Court had the occasion to shed light on the implication of the term mutilation. Therein we said that: The sole point which it is desirable to discuss is whether or not the crime committed is that defined and penalized by article 414 of the Penal Code. The English translation of this article reads: "Any person who shall intentionally castrate another shall suffer a penalty ranging from reclusion temporal to reclusion perpetua." The Spanish text, which should govern, uses the word "castrare," inadequately translated into English as "castrate." The word "capar," which is synonymous of "castrar," is defined in the Royal Academic Dictionary as the destruction of the organs of generation or conception. Clearly it is the intention of the law to punish any person who shall intentionally deprived another of any organ necessary for reproduction. An applicable construction is that of Viada in the following language: "At the head of these crimes, according to their order of gravity, is the mutilation known by the name of 'castration' which consists of the amputation of whatever organ is necessary for generation. The law could not fail to punish with the utmost severity such a crime, which, although not destroying life, deprives a person of the means to transmit it. But bear in mind that according to this article in order for 'castration' to exist, it is indispensable that the 'castration' be made purposely. The law does not look only to the result but also to the intention of the act. Consequently, if by reason of an injury or attack, a person is deprived of the organs of generation, the act, although voluntary, not being intentional to that end, it would not come under the provisions of this article, but under No. 2 of

article 431." (Viada, Codigo Penal, vol. 3, p. 70. See to same effect, 4 Groizard, Codigo Penal, p. 525.) Thus, the question is, does vasectomy deprive a man, totally or partially, of some essential organ of reproduction? We answer in the negative. In the male sterilization procedure of vasectomy, the tubular passage, called the vas deferens, through which the sperm (cells) are transported from the testicle to the urethra where they combine with the seminal fluid to form the ejaculant, is divided and the cut ends merely tied.57 That part, which is cut, that is, the vas deferens, is merely a passageway that is part of the duct system of the male reproductive organs. The vas deferens is not an organ, i.e., a highly organized unit of structure, having a defined function in a multicellular organism and consisting of a range of tissues.58 Be that as it may, even assuming arguendo that the tubular passage can be considered an organ, the cutting of the vas deferens does not divest or deny a man of any essential organ of reproduction for the simple reason that it does not entail the taking away of a part or portion of the male reproductive system. The cut ends, after they have been tied, are then dropped back into the incision.59 Though undeniably, vasectomy denies a man his power of reproduction, such procedure does not deprive him, "either totally or partially, of some essential organ for reproduction." Notably, the ordinary usage of the term "mutilation" is the deprivation of a limb or essential part (of the body),60 with the operative expression being "deprivation." In the same manner, the word "castration" is defined as the removal of the testies or ovaries.61 Such being the case in this present petition, the bilateral vasectomy done on Larry could not have amounted to the crime of mutilation as defined and punished under Article 262, paragraph 1, of the Revised Penal Code. And no criminal culpability could be foisted on to respondent Dr. Agatep, the urologist who performed the procedure, much less the other respondents. Thus, we find sufficient evidence to explain why the Assistant City Prosecutor and the DOJ ruled the way they did. Verily, We agree with the Court of Appeals that the writ of certiorari is unavailing; hence, should not be issued. It is once more apropos to pointedly apply the Court's general policy of noninterference in the conduct of preliminary investigations. As it has been oft said, the Supreme Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case.62 The courts try and absolve or convict the accused but, as a rule, have no part in the initial decision to prosecute him.63 The possible exception to this rule is where there is an unmistakable showing of a grave abuse of discretion amounting to lack or excess of jurisdiction that will justify judicial intrusion into the precincts of the executive. But that is not the case herein.

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed 21 July 2005 Decision and 5 December 2005 Resolution, both of the Court of Appeals in CA-G.R. SP No. 88370 are hereby AFFIRMED. Costs against petitioner Gloria Aguirre. SO ORDERED.

G.R. No. 88724

April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CEILITO ORITA alias "Lito," defendant-appellant. The Office of the Solicitor General for plaintiff-appellee. C. Manalo for defendant-appellant.

MEDIALDEA, J.:

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

suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of P30,000.00. SO ORDERED. On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948. The antecedent facts as summarized in the People's brief are as follows (pp. 7175, Rollo): Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier. In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another boarder (pp. 8-9, ibid). She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor was locked from the inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With the Batangas knife still poked to her neck, they entered complainant's room. Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid). He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She followed his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving (p. 23, ibid).

Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid). She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a window (p. 27, ibid). Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and knocked on the door. When there was no answer, she ran around the building and knocked on the back door. When the policemen who were inside the building opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When they discovered what happened, Pat. Donceras and two other policemen rushed to the boarding house. They heard a sound at the second floor and saw somebody running away. Due to darkness, they failed to apprehend appellant. Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically examined. Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which states: Physical Examination — Patient is fairly built, came in with loose clothing with no under-clothes; appears in state of shock, per unambulatory. PE Findings — Pertinent Findings only. Neck- — Circumscribed hematoma at Ant. neck. Breast — Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast. Back — Multiple pinpoint marks. Extremities — Abrasions at (R) and (L) knees. Vulva — No visible abrasions or marks at the perineal area or over the vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen intact; no laceration fresh and old

noted; examining finger can barely enter and with difficulty; vaginal canal tight; no discharges noted. As aforementioned, the trial court convicted the accused of frustrated rape. In this appeal, the accused assigns the following errors: 1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and 2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused. The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo) A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations of truthfulness on material points. These little deviations also confirm that the witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her. According to the accused, this is strange because "this is the only case where an aggressor's advances is being helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended there. The victim testified further that the accused was holding a Batangas knife during the aggression. This is a material part of the victim's testimony which the accused conveniently deleted. We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of witnesses should be accorded the highest respect because it has the advantage of observing the demeanor of witnesses and

can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p 56, Rollo): As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party in her testimony before the court. Her answer to every question profounded (sic), under all circumstances, are plain and straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally her honor. When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified convincingly on how the rape was committed. The victim's testimony from the time she knocked on the door of the municipal building up to the time she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of the scene of the incident and the conditions therein is true (p. 54, Rollo): . . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and offended party without the slightest difficulty, even in the manner as narrated. The partitions of every room were of strong materials, securedly nailed, and would not give way even by hastily scaling the same. A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo): . . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a frightened individual

being pursued. Common experience will tell us that in occasion of conflagration especially occuring (sic) in high buildings, many have been saved by jumping from some considerable heights without being injured. How much more for a frightened barrio girl, like the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the exposure of her private parts when she sought assistance from authorities, as corroborated, is enough indication that something not ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to show that she was out of her mind. In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that: What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that even in her nudity, she had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not have done nor would these facts have occurred unless she was sexually assaulted in the manner she narrated. The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the parties that another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not bother to contradict this statement. Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even substantiated and do not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the accused of frustrated rape only. The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view. Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:

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

xxx

xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193). On the other hand, Article 6 of the same Code provides: Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those which are frustrated and attempted, are punishable. A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape.1âwphi1 Our concern now is whether or not the frustrated stage applies to the crime of rape. The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily understood even by law students:

. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance. Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime.Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed. Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it

has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have prompted the lawmaking body to include the crime of frustrated rape in the amendments introduced by said laws. In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo): . . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant case. The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases of rape where there is a positive testimony and a medical certificate, both should in all respect, compliment each other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be productive of mischievous results. The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He merely testified that there was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984): Q Was the penis inserted on your vagina? A It entered but only a portion of it.

xxx

xxx

xxx

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

of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00. SO ORDERED.

G.R. No. 129433

March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y BELLO accused. BELLOSILLO, J.: On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only attempted rape and consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of

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

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

hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help from her brothers to stop him as he ran down from the second floor. Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him. Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs. The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for anybody to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration of Crysthel's private parts more than bolsters his innocence. In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel's vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising the penalty, from reclusion perpetuato death,

to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum. In People v. De la Peña 11 we clarified that the decisions finding a case for rape even if the attacker's penis merely touched the external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, 12 or that the penis of the accused touched the middle part of her vagina. 13 Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the 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. 14 As the labias, which are required to be "touched" by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape. The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be consummated, 16 and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute

consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ," 17but has also progressed into being described as "the introduction of the male organ into the labia of the pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of passion. A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly in a kneeling position, which Corazon described thus:

hold otherwise would be to resolve the doubt in favor of the prosecution but to run roughshod over the constitutional right of the accused to be presumed innocent. Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her the opportunity to fully witness his beastly act. We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and persist in satisfying his lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for Primo not only to desist from but even to conceal his evil design. What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court — Q: Did the penis of Primo touch your organ? A: Yes, sir. But when asked further whether his penis penetrated her organ, she readily said, "No." Thus —

Q: How was Primo holding your daughter?

Q: But did his penis penetrate your organ?

A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is holding his penis and his left hand is spreading the legs of the victim).

A: No, sir. 20

It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an unbridled observation impossible. Not even a vantage point from the side of the accused and the victim would have provided Corazon an unobstructed view of Primo's penis supposedly reaching Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that Primo's right hand was allegedly holding his penis thereby blocking it from Corazon's view. It is the burden of the prosecution to establish how Corazon could have seen the sexual contact and to shove her account into the permissive sphere of credibility. It is not enough that she claims that she saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious doubt that inter-genital contact was at all achieved. To

This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her vagina, however slight. Crysthel made a categorical statement denying penetration, 27 obviously induced by a question propounded to her who could not have been aware of the finer distinctions between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. 22 Corazon did not say, nay, not even hint that Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon even

narrated that Primo had to hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim. Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's own assertion that she resisted Primo's advances by putting her legs close together; 24 consequently, she did not feel any intense pain but just felt "not happy" about what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's testimony must be received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death.1âwphi1 Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no external signs of physical injuries on complaining witness' body to conclude from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the absence of complete penetration of the hymen does not negate the possibility of contact, she clarified that there was no medical basis to hold that there was sexual contact between the accused and the victim. 27

The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods. WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio. SO ORDERED.1âwphi1.nêt

In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin line that separates attempted rape from consummated rape will significantly disappear. Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some cause or accident other than his own spontaneous desistance. All the elements of attempted rape — and only of attempted rape — are present in the instant case, hence, the accused should be punished only for it.

G.R. No. 218404

December 13, 2017

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee vs. ROLANDO BAGSIC Y VALENZUELA, Accused-Appellant DECISION

MARTIRES, J.:

Accused-appellant pleaded not guilty to the crimes charged.

This is an appeal from the Decision,1 dated 30 June 2014, of the Court of Appeals (CA) in CA-G.R. CR.-H.C. No. 06043 which affirmed with modification the Joint Decision,2 dated 30 January 2013, of the Regional Trial Court, Branch 38, San Jose City (RTC), in Criminal Case Nos. 1515- 09-SJC and 1516-09-SJC finding Rolando Bagsic yValenzuela (accused-appellant) guilty of rape by sexual assault and of statutory rape.

Version of the Prosecution

The Facts On 21 July 2009, three Informations were filed before the RTC charging accusedappellant with one (1) count of statutory rape, one (1) count of rape by sexual assault, and one (1) count of violation of Section 5 (b) of Republic Act No. 7610 (R.A. No. 7610). In Criminal Case No. 1514-09-SJC, the information states: That on or about March 15, 2009, in the City of San Jose, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there wilfully, unlawfully, feloniously and with lewd design, commit lascivious conduct on the person of (AAA), a 12 year-old minor by mashing the latter's breast, against her will, which acts debase, degrade and demean the dignity of the latter and impair her normal growth and development and to her damage and prejudice. CONTRARY TO LAW.3 In Criminal Case No. 1515-09-SJC, the information states: That on or about April 18, 2009, in the City of San Jose, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there wilfully, unlawfully and feloniously has inserted his finger into the vagina (sexual assault) of the offended party, (BBB), a minor, who is eight (8) years of age, to her damage and prejudice. CONTRARY TO LAW.4 In Criminal Case No. 1516-09-SJC, the information states: That sometime in 2007, in the City of San Jose, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there wilfully, unlawfully and feloniously has sexual intercourse or carnal knowledge with the offended party, (BBB), a minor, who is eight (8) years of age, to her damage and prejudice. CONTRARY TO LAW.5

The prosecution presented AAA, BBB, and their mother CCC as witnesses. Their combined testimony tended to establish the following: AAA and BBB were born on 2 August 1996 and 18 June 2000, respectively. They called accused-appellant "Lolo" as he was the common law husband of their maternal grandmother.6 Sometime in 2007, while BBB was playing with her sisters, accused-appellant called her and brought her to a hut in a field located at Zone 7, Sto. Niño 3rd, San Jose City, Nueva Ecija. Inside the hut, accused-appellant told BBB to lie down, lifted her shirt, and removed her shorts and underwear. Accused-appellant then removed his lower garments and had carnal knowledge of BBB, but he was unable to make a full penetration.7 BBB cried and pushed accused-appellant away. She did not shout for help for fear that accused-appellant would hurt her. Whenever someone came by the field, accused-appellant desisted from assaulting her.8 For several times, thereafter, whenever accused-appellant urinated, he made BBB watch him and hold his penis.9 The assault upon BBB was repeated on 18 April 2009 at about five o’clock in the morning. At that time, BBB and her two female siblings had to sleep in accusedappellant’s house because their mother was at the hospital attending to AAA. While in bed, BBB was awakened by a finger being inserted into her vagina. When she opened her eyes, BBB saw accused-appellant. Sensing that BBB was already awake, accused-appellant left.10 About a month earlier or on 15 March 2009, AAA and her siblings stayed with accused-appellant and their maternal grandmother because their parents had to attend the wake of a deceased relative. At around four o'clock in the morning, AAA was awakened by somebody, whom she identified to be accused-appellant because of his rough hand and odor, fiddling her nipple. The incident lasted for about two minutes. Accused-appellant stopped when he realized that AAA's siblings were already awake.11 Thereafter, AAA and her siblings rose from bed and prepared breakfast. AAA did not tell anyone about the incident out of fear. It was only when BBB revealed the sexual acts committed against her by accused-appellant that AAA also mustered the courage to speak out.12

During the presentation of the prosecution’s evidence, however, an Affidavit of Desistance,13 dated 15 May 2012, was executed by AAA, BBB, and CCC. Version of the Defense

Said accused, however, is hereby found guilty of rape defined and penalized under Art. 266-A in relation to Art. 266-B of the Revised Penal Code in Criminal Cases No. 1515-2009-SJC and No. 15162009-SJC and is accordingly sentenced as follows:

The defense presented the maternal grandmother of AAA and BBB as its sole witness. She testified that accused-appellant became her common law partner in February 2010, about a year after the death of her husband. Her family resented her relationship with accused-appellant because she was no longer able to support them and their disagreement resulted in the filing of the rape cases against accused-appellant.14

a. In Criminal Case No. 1515-2009-SJC, to suffer an indeterminate penalty of imprisonment ranging from four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, for rape through sexual assault;

The RTC Ruling

b. In Criminal Case No. 1516-2009-SJC, to suffer the penalty of reclusion perpetua, for statutory rape, and such accessory penalties provided for by law.

In its decision, dated 30 January 2013, the RTC acquitted accused-appellant for violation of Section 5 (b) of R.A. No. 7610 for failure of the prosecution to sufficiently establish the identity of the perpetrator. It observed that AAA admitted that she was not able to see the face of the person who assaulted her but that she concluded that said person was accused-appellant on the basis of the assailant's rough hand and odor. The R TC reasoned that AAA' s mere general statement that the person who touched her breasts had the same rough hand and odor as the accused-appellant was not conclusive proof of the latter's identity as the culprit absent any showing why and how such could distinctly be attributable to accusedappellant. The trial court, however, found accused-appellant guilty of statutory rape and of rape by sexual assault. It noted that BBB, even at such a young age, was able to withstand the lengthy cross-examination. The RTC held that the affidavit of desistance was not sufficient to reverse BBB’s earlier testimony clearly narrating how accused-appellant had sexually molested her on two occasions. It added that the allegation that the cases were concocted by CCC to force a separation between accused-appellant and her mother should not be given weight because no parent would be so depraved to use her own daughter for such trivial purpose Finally, the RTC ruled that it was conclusively established that in 2007 and on 18 April 2009, BBB was under 12 years of age as evidenced by her birth certificate and by the defense's admission during the pre-trial conference that she was barely eight years old on 18 April 2009. It concluded that BBB’s straightforward testimony duly proved that accused-appellant had carnal knowledge of her in 2007 and had assaulted her by inserting his finger into her vagina on 18 April 2009. The fallo reads: WHEREFORE, his guilt for the offense charged in Criminal Case No. 1514-2009SJC not having been established beyond reasonable doubt, the accused Rolando Bagsic is ACQUITTED.

The accused is likewise found liable to pay BBB the following: In Crim. Case No. 1515-2009SJC

In Crim. Case No. 1516-2009SJC

a. Indemnity

₱30,000.00

₱50,000.00

b. Moral damages

₱30,000.00

₱50,000.00

₱60,000.00

₱100,000.00

TOTAL

All of which must earn interest at the rate of 6% per annum from finality of this judgment until fully paid.15 Aggrieved, accused-appellant appealed before the CA. The CA Ruling In a decision, dated 30 June 2014, the CA affirmed the conviction of accusedappellant but modified the amount of damages awarded. It opined that the court a quo correctly accorded credence to the testimony of BBB after finding her answers to the questions on direct and cross-examination tobe intelligible, candid, and unwavering. The CA found no merit in accused-appellant’s attempt to discredit BBB’s testimony by imputing ill motive against her; that is, that she had charged accused-appellant with rape at the instance of CCC who harbored resentment against him for being the common-law husband of her mother. The appellate court pointed out that during the hearing on 7 June 2011, BBB affirmed that she was executing an affidavit of desistance, but she remained silent when asked if accused-appellant did not actually rape her. It added that BBB's

testimony was corroborated by the Medico-Legal Report, dated 5 May 2009, finding that BBB's hymen suffered from incomplete laceration which suggested blunt or penetrating trauma. The CA disposed the case in this wise: WHEREFORE, premises considered, the instant appeal is hereby DENIED. The Joint Decision, dated January 30, 2013 of the Regional Trial Court, Branch 38, San Jose City is AFFIRMED with MODIFICATION in that appellant Rolando Bagsic is further ordered to pay private complainant BBB the amount of Thirty Thousand Pesos (₱30,000.00) as exemplary damages in Criminal Case No. 1516-2009-SJC for statutory rape; and Thirty Thousand Pesos (₱30,000.00) in Criminal Case No. 1515-2009-SJC for rape by sexual assault, in addition to the other award of damages, all of which are subject to interest of six percent (6%) per annum from the date of finality of this judgement until they are fully paid.16 Hence, this appeal. Accused-appellant adopts the same assignment of error he raised before the appellate court, viz: LONE ASSIGNMENT OF ERROR THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF THE CRIMES CHARGED DESPITE THE PROSECUTION'S FAILURE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.17 Accused-appellant asserts that he should be acquitted of the crimes charged because the testimonies of the prosecution witnesses raised reasonable doubt on whether he sexually abused BBB considering that the latter subsequently executed an affidavit of desistance. He avers that the filing of the cases was only due to the resentment of CCC towards him.18 THE COURT’S RULING The appeal is bereft of merit. BBB’s affidavit of desistance cannot be given any weight. BBB’s affidavit of desistance is not a ground for the dismissal of the case. Rape is no longer considered a private crime as R.A. No. 8353 or the Anti-Rape Law of 1997 has reclassified rape as a crime against persons.19 Rape may now be prosecuted de officio; a complaint for rape commenced by the offended party is no longer necessary for its prosecution.20 Hence, an affidavit of desistance, which may be considered as pardon by the complaining witness, is not by itself a ground for the dismissal of a rape action over which the court has already assumed jurisdiction.21

Moreover, it has been consistently held that courts look with disfavor on affidavits of desistance. The rationale for this was extensively discussed in People v. Zafra:22 We have said in so many cases that retractions are generally unreliable and are looked upon with considerable disfavor by the courts. The unreliable character of this document is shown by the fact that it is quite incredible that after going through the process of having the [appellant] arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, and then repeating her accusations in open court by recounting her anguish, [the rape victim] would suddenly turn around and declare that [a]fter a careful deliberation over the case, (she) find(s) that the same does not merit or warrant criminal prosecution. Thus, we have declared that at most the retraction is an afterthought which should not be given probative value. It would be a dangerous rule to reject the testimony taken before the court of justice simply because the witness who gave it later on changed his mind for one reason or another. Such a rule [would] make a solemn trial a mockery and place the investigation at the mercy of unscrupulous witnesses. Because affidavits of retraction can easily be secured from poor and ignorant witnesses, usually for monetary consideration, the Court has invariably regarded such affidavits as exceeding! y unreliable.23 [emphasis omitted.] In addition, when asked by the court a quo whether her affidavit of desistance meant that she was not raped by accused-appellant, BBB simply did not answer.24 Neither did she give any exculpatory fact that would raise doubts about the rape. BBB’s testimony should be given full weight and credence. It must be noted that accused-appellant’s only defense is the alleged resentment of CCC towards her mother's relationship with him.1âwphi1 Such argument is flimsy and superficial. In People v. Basmayor, 25 the Court ruled: This Court has held time and again that testimonies of rape victims who are young and immature deserve full credence, considering that no young woman, especially of tender age, would concoct a story of defloration, allow an examination of her private parts, and thereafter pervert herself by being the subject of a public trial, if she was not motivated solely by the desire to obtain justice for the wrong committed against her. Youth and immaturity are generally badges of truth. It is highly improbable that a girl of tender years, one not yet exposed to the ways of the world, would impute to any man a crime so serious as rape if what she claims is not true. [citations omitted]26

In this case, BBB was able to withstand the rigors of direct examination and crossexamination. Not once did she falter in narrating the dastardly act committed against her and identifying accused-appellant as the perpetrator. Moreover, no decent mother would use her daughter as an instrument of revenge, especially if it will subject her child to embarrassment and lifelong stigma.27 A disagreement among family members, even if true, does not justify dragging a young girl's honor to merciless public scrutiny that a rape trial brings in its wake.28 Finally, the testimony of BBB was also corroborated by the Medico Legal Report29 which stated that the physical findings suggested blunt or penetrating trauma. "When a rape victim's testimony on the manner she was defiled is straightforward and candid, and is corroborated by the medical findings of the examining physician as in this case, the same is sufficient to support a conviction for rape."30

A: In 2007 sir. Q: In 2007, were you studying then? A: Yes sir. Q: What grade are you then? A: Grade I, sir. Q: Kindly tell us how were you raped on 2007, while you were still Grade 1, by Rolando Bagsic? A: He called me up and brought me in the field sir.

Accused-appellant is guilty of statutory rape. For the accused to be found guilty of the crime of statutory rape, two (2) elements must concur: (1) that the offender had carnal knowledge of the victim; and (2) that the victim is below twelve (12) years old.31 If the woman is under 12 years of age, proof of force and consent becomes immaterial not only because force is not an element of statutory rape, but the absence of a free consent is presumed. Conviction will therefore lie, provided sexual intercourse is proven.32 BBB positively identified accused-appellant as the person who molested her. She clearly and straightforwardly narrated the incident of rape as follows: [Fiscal Escudero] Could you recall when was the first time you were raped by Rolando Bagsic?

Q: What were you doing when he called you and brought you to the field? A: I was playing with my elder sisters sir. Q: What happened when Rolando Bagsic called you? A: He brought me in a field where there was a hut and in that hut where Rolando Bagsic laid me down and took off my short and panty sir. Q: Where is the hut located Madam Witness? A: At the farm sir. Q: Where is the farm located, what barangay?

[BBB] A: In Zone 7, Sto. Nino 3rd sir. No, sir. Q: Are you referring to Sto. Nino 3rd San Jose City? Q: Could you recall what year? A: Yes sir. A: Yes sir. Q: Madam Witness what are you wearing in your upper body? Q: What year? A: I was wearing my upper clothes with sleeves sir.

Q: What happened to your clothes with sleeves after Rolando Bagsic take your shorts and panty off from you? A: He lifted it up sir.

(1) That the offender commits an act of sexual assault; (2) That the act of sexual assault is committed by any of the following means: (a) By inserting his penis into another person's mouth or anal orifice; or

Q: So what happened Madam Witness when Rolando Bagsic removed your shorts and panty and lifted your upper garments?

(b) By inserting any instrument or object into the genital or anal orifice of another person;

A: He also took off his short and underwear sir. Q: So what happened when Rolando Bagsic take his short pants and brief off?

(3) That the act of sexual assault is accomplished under any of the following circumstances: (a) By using force and intimidation;

A: He was forcibly inserting his penis in my private part sir. (Pinipilit po niyang ilusot yung ari niya sa ari ko)

(b) When the woman is deprived of reason or otherwise unconscious; or

Fiscal Escudero: May I please request your honor that the vernacular term as answered by the witness be put on record?

(c) By means of fraudulent machination or grave abuse of authority; or

Court: Put that on record.

(d) When the woman is under 12 years of age or demented.36 (emphasis supplied)

Fiscal Escudero: Was he successful in inserting his private part to your vagina Madam Witness? A: Only partial sir. (The vernacular term used by the witness is "konti lang po") Q: How would you explain that "konti lang po" or only partial Madam Witness?

All the foregoing elements were met beyond reasonable doubt. Accused-appellant inserted his finger into the vagina of BBB, a child under 12 years of age at the time of the incident, viz: [Fiscal Escudero] You mentioned a while ago Madam Witness that there were two separate occasions that you were raped by your Lolo Rolando Bagsic, when was the second time?

A: Only the head of his penis sir.33 [BBB] To reiterate, the Medico-Legal Report lends credence to BBB's testimony. When the testimony of a rape victim is consistent with the medical findings, there is sufficient basis to conclude that there has been carnal knowledge.34Further, at the time of the incident, it was sufficiently proven that BBBwas under 12 years of age as indicated in her Certificate of Live Birth.35

April 18, 2009 sir. Q: What time was that?

Accused-appellant is guilty of

A: 5:00 in the morning sir.

rape by sexual assault.

Q: On April 18, 2009 at around 5:00 in the morning, what were you doing then Madam Witness?

The following are the elements of rape by sexual assault:

A: I was sleeping sir.

A: Yes sir.

xxxx

Q: Was he able to insert his finger to your vagina?

Q: So while you were sleeping, how were you awaken?

A: Yes Sir.37

A: Because something hard was thrusting my private part sir. Q: Are you able to identify what is that hard object that is thrusting your private part? A: Yes sir. Q: Can you tell the Honorable Court what was that object that caused you to be awaken because it being thrusted to your private part? A: His hand sir. Q: Hand of whom?

In sum, the Court finds no convincing reason to disturb the findings of the trial court as affirmed by the appellate court. Proper penalty for rape by sexual assault Accused-appellant’s conviction for rape by sexual assault is affirmed, but the penalty imposed by the lower court is modified to the penalty under Article III, Section 5(b) of R.A. No. 7610: 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.

A: Hand of Lolo Bagsic sir.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

Q: How were you able to know that it is the hand of your Lolo Bagsic?

xxx

A: Because I was already awaken in that time and I saw his face sir.

(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 maybe: 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

xxxx Q: So kindly tell us how is he able to thrust his hand to your private part? A: Because my panty was moved sideward. (Yung panty ko ay nakatagilid) Q: If this is the hand of your Lolo Bagsic what part of the hand he used to thrust your private part? A: This sir. (The witness is pointing to the right index finger) Q: So you are referring to a finger not a hand Madam Witness?

The Implementing Rules and Regulations of R.A. No. 7610 defines "lascivious conduct" as [T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

In People v. Chingh,38 the accused’ conviction for rape by sexual assault was affirmed. However, in modifying the penalty imposed to that provided in Article III, Section 5(b) of R.A. No. 7610, the Court ruled: In this case, the offended party was ten years old at the time of the commission of the offense. Pursuant to the above-quoted provision of law, Armando was aptly prosecuted under paragraph 2, Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353, for Rape Through Sexual Assault. However, instead of applying the penalty prescribed therein, which is prision mayor, considering that VVV was below 12 years of age, and considering further that Armando's act of inserting his finger in VVV's private part undeniably amounted to lascivious conduct, the appropriate imposable penalty should be that provided in Section 5 (b), Article Ill of R.A. No. 7610, which is reclusion temporal in its medium period. The Court is not unmindful to the fact that the accused who commits acts of lasciviousness under Article 366, in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more severe penalty ofreclusion temporal in its medium period than the one who commits Rape Through Sexual Assault, which is merely punishable by prision mayor. This is undeniably unfair to the child victim. To be sure, it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. Despite the passage of R.A. No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children or those "persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition." Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be that which could be properly imposed under the law, which is fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal. On the other hand, the minimum term shall be within the range of the penalty next lower in degree, which is reclusion temporal in its minimum period, or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, Armando should be meted the indeterminate sentence of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum.39 [citations omitted] In People v. Ricalde,40 wherein accused was charged and convicted of rape by sexual assault, the same penalty was imposed.

In this case, BBB, as established by her birth certificate, was only 8 years old when the incident happened. Her age was also alleged in the information. Hence, the higher penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum, as applied in the foregoing cases of People v. Chingh and People v. Ricalde, should be similarly imposed. In the recent case of People v. Caoili,41 there had been divergent opinions as to whether the act of inserting the fingers into the vagina constitutes rape by sexual intercourse. In said case, the accused was charged with the crime of rape through sexual intercourse. However, after trial, the crime proved was rape by sexual assault through the insertion of the finger into the vagina. Thus, the majority held that the accused could not be convicted of rape through sexual intercourse. In so ruling, it declared that the variance doctrine cannot be applied to convict an accused of rape by sexual assault if the crime charged is rape through sexual intercourse, since the former offense cannot be considered subsumed in the latter. However, applying the same variance doctrine, it convicted the accused of the lesser crime of acts of lasciviousness performed on a child, i.e., lascivious conduct under Section 5 (b) of R.A. No. 7610, which was the offense proved because it is included in rape, the offense charged. Consequently, the accused was sentenced to suffer the penalty of reclusion perpetua. In this case, for the crime of sexual assault, the lower courts sentenced accusedappellant to suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. This Court, however, modified such penalty, and deemed it proper to impose the higher penalty of reclusion temporal in its medium period, to reclusion perpetua as provided in R.A. No. 7610. From the foregoing, it can be easily discerned that if the courts would not opt to impose the higher penalty provided in R.A. No. 7610 in cases of rape by sexual assault, wherein the victims are children, an accused who commits acts of lasciviousness under Article 336 of the RPC, in relation to Section 5 (b), Article III of R.A. 7610, suffers the more severe penalty of reclusion temporal in its medium period, than the one who commits rape by sexual assault which is punishable by prisi6n mayor. Finally, I maintain my position in People v. Caoili that the insertion of the finger into the vagina constitutes rape through sexual intercourse and not rape by sexual assault. Rape by sexual assault is the act of "inserting the penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person."42 Instrument is defined as "utensil or implement."43 On the other hand, object is defined as "a discrete visible or tangible thing."44 The

finger, however, is neither an instrument nor an object. Stripped to its most basic definition, a finger is a body part. Consequently, applying the principle of expressio unius est exclusio alterius which means that the express mention of one thing excludes all others,45 the insertion of the finger or any other body part into the genital or anal orifice of another person could not be properly categorized as rape by sexual assault. The basic difference between an instrument or object on the one hand and the finger or any body part on the other is that on account of its independent existence, the former, by itself, can be used in the dastardly act of assaulting another person; whereas the latter owes its function to the fact that it is attached to the body. For sure, aperson would not go to the extent of cutting his finger and then use the severed finger to sexually assault another person.

awarded shall earn legal interest at the rate of six percent (6%) per annum from the date of finality of the judgment until fully paid.

It is high time to revisit the archaic definition given to carnal knowledge, i.e., penile penetration, and acknowledge that the same may be accomplished in various ways: vaginal, oral, anal, and fingering. Intercourse means "physical sexual contact between individuals that involves the genitalia of at least one person."46 Further, jurisprudence has consistently held that "the crux of carnal knowledge is sexual bodily connection."47 From the foregoing definitions, the act of inserting the finger into the vagina already constitutes rape through sexual intercourse. Justice Marvic Leonen, in his dissent in People v. Caoili, has eloquently stated, "the finger is as much part of the human body as the penis. It is not a separate instrument or object. It is an organ that can act as a conduit to give both pleasure as well as raw control upon the body of another. At a certain age, when men have difficulty with erections, his finger or any other similar organ becomes a handy tool of oppression. This Court cannot maintain an artificially prudish construction of sexual intercourse. When it does, it becomes blind to the many ways that women's bodies are defiled by the patriarchy. To legally constitute the finger as a separate object not used in "sexual intercourse" or "carnal knowledge" not only defies reality, it undermines the purpose of the punishment under Article 266-A, paragraph 2."48

In Criminal Case No. 1516-2009-SJC, accused-appellant Rolando Bagsic is sentenced to suffer reclusion perpetua.He is further ordered to pay BBB the amounts of ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages, and ₱75,000.00 as exemplary damages.

Thus, in view of the foregoing considerations and in order to provide an unequivocal higher penalty in cases of rape by sexual assault committed against children, let copies of this decision be furnished the Speaker of the House of Representatives and the Senate President for possible legislation. Pecuniary liability The Court finds that pursuant to People v. Jugueta,49 the award of damages in the present case must be modified. As regards statutory rape, the award should be ₱75,000.00 as civil indemnity; ₱75,000.00 as moral damages; and ₱75,000.00 as exemplary damages. The same amounts should be paid by accused-appellant with respect to the crime of rape by sexual assault. In addition, all the damages

WHEREFORE, the appeal is denied. The 30 June 2014 Decision of the Court of Appeals in CA-G.R. CR-HC No. 06043 is AFFIRMED with MODIFICATION. In Criminal Case No. 1515-2009-SJC, accused-appellant Rolando Bagsic is sentenced to suffer the penalty of twelve (12) years, ten (10) months and twentyone (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum. He is further ordered to pay BBB the amounts of ₱75,000.00 as civil indemnity, ₱75,000.00 as moral damages, and ₱75,000.00 as exemplary damages.

The amounts of damages awarded shall have an interest of six percent (6%) per annum from the date of finality of judgment until fully paid. SO ORDERED.

G.R. No. 182230

September 19, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. EDGARDO LUPAC y FLORES, Accused-Appellant. DECISION BERSAMIN, J.: Under appeal is the decision promulgated on November 23, 2007,1 whereby the Court of Appeals (CA) affirmed the rape conviction of Edgardo Lupac y Flores but modified the trial court's characterization of the offense as statutory rape because of the failure of the People to properly establish the victim's minority under 12 years at the time of the commission of the rape.

The information filed on August 16, 1999 under which Lupac was arraigned and tried for statutory rape alleged as follows:

have recently lost her virginity based on her hymen revealing "a deep fresh bleeding at 9:00 o’clock position."9

That on or about the 21st day of May, 1999 in the Municipality of Taytay, Province of Rizal, Philippines and within the jurisdiction of this

Lupac’s defense consisted of denial and alibi.

Honorable Court, the above-named accused with lewd designs and by means of force and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with one, AAA,2 his niece, 10 years old against her will and consent. CONTRARY TO LAW.3 The version of the Prosecution follows. AAA, her mother (BBB), and Lupac (allegedly BBB’s brother) had originally been living together in the same house, but he eventually transferred to another place in the neighborhood. His transfer notwithstanding, he continued going to BBB’s house, where he occasionally took afternoon naps in the bedroom of the house. On May 21, 1999, BBB left AAA in the house alone with Lupac to sell peanuts in Mandaluyong City. At around 1:30 p.m., AAA told him that she was going to take a nap in the bedroom. She did not lock the bedroom door as was her usual practice. Waking up around 2:30 p.m., AAA was aghast to find herself naked from the waist down. She felt soreness in her body and pain in her genitalia. Momentarily, she noticed Lupac standing inside the bedroom near her, clad only in his underwear. He was apologetic towards her, saying that "he really did not intend to do ‘that’ to her."4 He quietly handed her a towel. As soon as she absorbed what had happened, she started to cry. He opened the windows and unlocked the door of the house.5 Seeing the chance, she rushed out of the house, and ran to the place of Tita Terry, a neighbor, who was a friend of her mother’s. AAA revealed to Tita Terry what he had done to her, saying: Inano ako ni Kuya Ega.6 She uttered the word hindot7 – vernacular for sexual intercourse. She and Tita Terry left together to find BBB and inform her about what had happened to AAA.8 The three of them reported the rape to the barangay. A barangay kagawad accompanied them to the Taytay Police Station to lodge a complaint for rape against Lupac. AAA submitted to a medico-legal examination, which found her to have suffered injuries inflicted deep inside her genitalia (described as congested vestibule within the labia minora, deep fresh bleeding laceration at 9 o’clock position of the hymen, and abraded and u-shape posterior fourchette). During the trial, Dr. Emmanuel N. Reyes, the medico-legal officer who had examined AAA, attested that he had found AAA at the time of the examination to

Lupac denied being related to AAA, either by consanguinity or otherwise, but admitted being her neighbor for a long time. He also denied the accusation, insisting that he had been asleep in his own house during the time of the rape. Nonetheless, he conceded not being aware of any motive for AAA to falsely charge him with rape. After trial, on August 11, 2006, the Regional Trial Court, Branch 73, in Antipolo City (RTC) convicted Lupac of statutory rape,10 disposing: WHEREFORE, PREMISES CONSIDERED, Edgardo Lupac is hereby found guilty of the crime of statutory rape and is sentenced to suffer the penalty of RECLUSION PERPETUA. He is also ordered to pay private complainant ₱ 50,000.00 as civil indemnity and ₱ 50,000.00 in moral damages plus the cost of the suit. SO ORDERED. In convicting Lupac of statutory rape as defined and penalized under paragraph 1(d), Article 266-A of the Revised Penal Code, as amended by Republic Act No. 8353, the RTC concluded that although the qualifying circumstance of relationship had not been proven, AAA’s testimony showing her age of only 11 years at the time of the rape, being born on December 23, 1988, sufficed to prove her age as an essential element in statutory rape. On intermediate appeal, Lupac assailed the credibility of AAA and argued that the RTC erred in accepting AAA’s testimony as proof of her date of birth and her minority under 12 years. On November 23, 2007, the CA affirmed the conviction,11 but modified it by holding that Lupac was guilty of simple rape under Article 266-A, paragraph 1(b) of the Revised Penal Code. It noted that the Prosecution was not able to effectively establish the victim’s minority under 12 years because of the non-submission of AAA’s birth certificate, such fact being essential in qualifying the offense to statutory rape. It observed, however, that the lack of consent as an element of rape was properly alleged in the information and duly established by the evidence showing that AAA had been asleep and unconscious at the time of the commission of the rape. It held that the variance in the mode of the commission of the rape was really a non-issue because he did not challenge the information at the arraignment, during the trial and even on appeal. It disposed:

IN VIEW THEREOF, the assailed Decision convicting the accused is hereby AFFIRMED. The penalty and the damages are likewise AFFIRMED. SO ORDERED. In his appeal, Lupac insists on his innocence, still impugning the credibility of AAA. We affirm the CA. Firstly, both the RTC and the CA considered AAA as a credible witness. We accord great weight to their assessment of the credibility of AAA as a witness as well as of her version. Verily, the personal observation of AAA’s conduct and demeanor enabled the trial judge to discern if she was telling the truth or inventing it.12 The trial judge’s evaluation, which the CA affirmed, now binds the Court, leaving to the accused the burden to bring to our attention facts or circumstances of weight that were overlooked, misapprehended, or misinterpreted but would materially affect the disposition of the case differently if duly considered.13 Alas, the accused made no showing that the RTC, in the first instance, and the CA, on review, had ignored, misapprehended, or misinterpreted facts or circumstances supportive of or crucial to his defense.14 Secondly, the CA rectified the mistaken characterization by the RTC of the crime as statutory rape. We concur with the CA. Although the information alleged that AAA had been only 10 years of age at the time of the commission of the rape, the State did not reliably establish such age of the victim in accordance with the guidelines for competently proving such age laid down by the Court in People v. Pruna,15 to wit: In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance. 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to

Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. 6. The trial court should always make a categorical finding as to the age of the victim.16 The foregoing guidelines (Pruna guidelines, for short) apply herein despite their being promulgated subsequent to the filing of the information, for they were only an amalgamation of the norms on proving the age of the victim in rape variously defined in jurisprudence. With the minority under 12 years of AAA being an element in statutory rape, the proof of such minority age should conform to the Pruna guidelines in order that such essential element would be established beyond reasonable doubt. That was not done because the evidence adduced by the Prosecution did not satisfy Pruna guidelines 4 and 5, supra, to wit: 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. As such, the RTC erred in giving credence to AAA’s declaration about her being under 12 years at the time of the rape.

Thirdly, the conviction of Lupac for rape is upheld despite AAA’s minority under 12 years not being competently proved. This is because the information also properly charged him with raping AAA by its express averment that the carnal knowledge of her by him had been "against her will and consent." The essence of rape is carnal knowledge of a female either against her will (through force or intimidation) or without her consent (where the female is deprived of reason or otherwise unconscious, or is under 12 years of age, or is demented).17 The Prosecution showed during the trial that AAA had been asleep when he forced himself on her. Such showing competently established the rape thus charged, as defined by paragraph 1 of Article 266-A, Revised Penal Code,18 for AAA, being unconscious in her sleep, was incapable of consenting to his carnal knowledge of her. Indeed, the Court has uniformly held in several rulings that carnal knowledge of a female while she was asleep constituted rape.19 Lastly, Lupac assails the absence of credible direct evidence about his having carnal knowledge of AAA because she herself, being then asleep and unconscious, could not reliably attest to his supposed deed. Consequently, he argues that the evidence against him did not amount to proof beyond reasonable doubt. Lupac’s argument hews closely to what the Court has stated in People v. Campuhan20 to the effect that there must be proof beyond reasonable doubt of at least the introduction of the male organ into the labia of the pudendum of the female genital organ, which required some degree of penetration beyond the vulva in order to touch the labia majora or the labia minora. The position of Lupac is bereft of merit, however, because his conviction should still stand even if direct evidence to prove penile penetration of AAA was not adduced. Direct evidence was not the only means of proving rape beyond reasonable doubt. Circumstantial evidence would also be the reliable means to do so, provided that (a) there was more than one circumstance; (b) the facts from which the inferences were derived were proved; and (c) the combination of all the circumstances was such as to produce a conviction beyond reasonable doubt.21 What was essential was that the unbroken chain of the established circumstances led to no other logical conclusion except the appellant’s guilt.22 The following circumstances combined to establish that Lupac consummated the rape of AAA, namely: (a) when AAA went to take her afternoon nap, the only person inside the house with her was Lupac; (b) about an hour into her sleep, she woke up to find herself already stripped naked as to expose her private parts; (c) she immediately felt her body aching and her vaginal region hurting upon her regaining consciousness; (d) all doors and windows were locked from within the house, with only her and the brief-clad Lupac inside the house; (e) he exhibited a remorseful demeanor in unilaterally seeking her forgiveness (Pasensiya ka na

AAA), even spontaneously explaining that he did not really intend to do "that" to her, showing his realization of the gravity of the crime he had just committed against her; (f) her spontaneous, unhesitating and immediate denunciation of the rape to Tita Terry and her mother (hindot being the term she used); and (g) the medico-legal findings about her congested vestibule within the labia minora, deep fresh bleeding laceration at 9 o’clock position in the hymen, and abraded and U-shaped posterior fourchette proved the recency of infliction of her vaginal injuries. The fact that all her injuries – congested vestibule within the labia minora, deep fresh bleeding laceration at 9 o’clock position of the hymen and abraded and Ushaped posterior fourchette – were confined to the posterior region area of her genitals signified the forceful penetration of her with a blunt instrument, like an erect penis. The Court holds that AAA’s denunciation of Lupac as her rapist to Tita Terry and her own mother with the use of the words hindot and inano ako ni Kuya Ega without any appreciable length of time having intervened following her discovery of the rape was part of the res gestae (that is, rape). Section 42, Rule 130 of the Rules of Court states: Section 42. Part of the res gestae. – Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of the res gestae. For the application of this rule, three requisites must be shown to concur, namely: (a) that the principal act, the res gestae, must be a startling occurrence; (b) the statements were made before the declarant had the time to contrive or devise a falsehood; and (c) the statements must concern the occurrence in question and its immediate attending circumstances. The requisites were met herein. AAA went to Tita Terry’s house immediately after fleeing from Lupac and spontaneously, unhesitatingly and immediately declared to Tita Terry that Lupac had sexually abused her.23Such manner of denunciation of him as her rapist was confirmed by Tita Terry’s testimony about AAA’s panic-stricken demeanor that rendered it difficult to quickly comprehend what the victim was then saying.24 Of course, AAA’s use of the words hindot and inano ako ni Kuya Ega said enough about her being raped. The nature of res gestae has been fittingly explained by the Court in People v. Salafranca,25 viz: The term res gestae has been defined as "those circumstances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act." In a general way, res gestae refers to the circumstances,

facts, and declarations that grow out of the main fact and serve to illustrate its character and are so spontaneous and contemporaneous with the main fact as to exclude the idea of deliberation and fabrication. The rule on res gestae encompasses the exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement. The test of admissibility of evidence as a part of the res gestae is, therefore, whether the act, declaration, or exclamation is so intimately interwoven or connected with the principal fact or event that it characterizes as to be regarded as a part of the transaction itself, and also whether it clearly negatives any premeditation or purpose to manufacture testimony. Lastly, the Court needs to add exemplary damages to the civil damages awarded to AAA.1âwphi1 Under the Civil Code, exemplary damages are imposed in a criminal case as part of the civil liability "when the crime was committed with one or more aggravating circumstances."26 Such damages are awarded "by way of example or correction for the public good, in addition to the moral, temperate, liquidated or compensatory damages."27 Conformably with the Civil Code, the CA and the RTC should have recognized the entitlement of AAA to exemplary damages on account of the attendance of the aggravating circumstance of her minority under 12 years. It should not matter that the CA disregarded her testimony on her age due to such testimony not measuring up to the Pruna guidelines. At least, the RTC found her testimony on her minority under 12 years at the time of the rape credible enough to convict the accused of statutory rape. Nor was it of any consequence that such minority would have defined the rape as statutory had it been sufficiently established. What mattered was to consider the attendance of an aggravating circumstance of any kind to warrant the award of exemplary damages to the victim. This was the point stressed in People v. Catubig,28 to wit: 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. For exemplary damages, therefore, the Court holds that the sum of ₱ 30,000.00 is reasonable and proper. The Court declares Lupac to be further liable to pay interest of 6% per annum on all the items of civil damages, to be reckoned from the finality of this decision until full payment. WHEREFORE, we AFFIRM the decision promulgated on November 23, 2007 in all respects, subject to the modification that EDGARDO LUPAC y FLORES shall pay the further amount of ₱ 30,000.00 as exemplary damages, plus interest of 6% per annum on the civil indemnity, moral damages, and exemplary damages, reckoned from the finality of this decision until full payment. Costs of suit to be paid by the accused. SO ORDERED.

G.R. No. 225642-43 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee vs. JUVY D. AMARELA AND JUNARD G. RACHO, Accused-Appellant DECISION MARTIRES, J.: This is an appeal from the 17 February 2016 Decision1 of the Court of Appeals (CA) in CA-G.R. CR HC Nos. 01226-MIN and 01227-MIN affirming in toto the 26 June 2012 Joint Judgment2 of the Regional Trial Court, Branch 11 of

Davao City (RTC). The RTC found Juvy D. Amarela (Amarela) and Junard G. Racho (Racho) guilty beyond reasonable doubt of two (2) different charges of rape. THE FACTS The two (2) Informations in this case read: Criminal Case No. 64,964-09 That on or about February 10, 2009, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, through force, did then and there willfully, unlawfully and feloniously have carnal knowledge of [AAA], against her will, immediately after boxing her legs.3 Criminal Case No. 64,965-09 That on or about February 11, 2009, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, through force, did then and there willfully, unlawfully and feloniously have carnal knowledge of [AAA], against her will, immediately after grappling her.4 These two (2) cases were jointly tried before the RTC, and Amarela and Racho's appeals, although separate, were consolidated in the CA on 13 November 2015.5 The RTC summarized the factual milieu of this case: Prosecution presented [AAA], single, housekeeper and a resident of [XXX], Calinan, Davao City. On February 10, 2009, at around 6:00 o'clock in the evening, she was watching a beauty contest with her aunt at Maligatong, Baguio District, Calinan, Davao City. The contest was being held at a basketball court where a make-shift stage was put up. The only lights available were those coming from the vehicles around. She had the urge to urinate so she went to the comfort room beside the building of the Maligatong Cooperative near the basketball court. Between the cooperative building and the basketball court were several trees. She was not able to reach the comfort room because [ Amarela] was already waiting for her along the way. Amarela suddenly pulled her towards the day care center. She was shocked and was no match to the strength of Amarela who pulled her under the stage of the day care center. He punched her in the abdomen which rendered her weak. Then Amarela undressed her. She tried to

resist him but he was stronger. He boxed her upper thigh and she felt numb. He placed himself on top of her and inserted his penis inside her vagina and made a push and pull movement. She shouted for help and then three (3) men came to her rescue [so] Amarela fled. The three (3) persons brought her to a hut. But they closed the hut and had bad intentions with her. So she fled and hid in a neighboring house. When she saw that the persons were no longer around, she proceeded on her way home. She went to the house of Godo Dumandan who brought her first to the Racho residence because Dumandan thought her aunt was not at home. Dumandan stayed behind So Neneng Racho asked her son [Racho] to bring her to her aunt's house instead. xxxx [AAA] then said that [Racho] brought her to a shanty along the way against her will. She was told to lie down. When she refused, [Racho] boxed her abdomen and she felt sick. She resisted by kicking him but he succeeded in undressing her. He, then, undressed himself and placed himself on top of [AAA]. [Racho] then inserted his penis into [AAA]'s vagina. After consummating the act, [Racho] left her. So [AAA] went home alone. When she reached home, her parents were already asleep. She went inside her room and cried. The following morning, she decided to leave home. Her mother was surprised at her decision until eventually, [AAA] told her mother about what happened to her. She told her [eldest] brother first who got very angry. They reported the matter to the police and eventually [ Amarela] and [Racho] were arrested.6 For the defense, Amarela testified for himself denying that he had anything to do with what happened with AAA: Defense presented [Amarela] who confirmed the fact that on February 10, 2009, he attended the fiesta celebrations in Maligatong, Baguio District, Calinan, Davao City. He said he met private complainant, [AAA], at the cooperative building at around 4:00 o'clock in the afternoon. [AAA] asked him if he knew a person by the name of Eric Dumandan who was allegedly her boyfriend. After a while, Eric Dumandan passed by and so he told him that [AAA] was looking for him. Then he left. Amarela said he had a drinking spree with his friend Asther Sanchez. While drinking, he felt dizzy and fell down from the bench. So

Sanchez brought him to the house of his elder brother Joey in Tawan-tawan. He did not know what happened next because he slept and woke up at six o'clock in the morning.7 On his part, Racho confirmed that he went with AAA to bring her home but also denied raping her: Defense also presented [Racho], a resident of Sitio Maligatong, Barangay Tawantawan, Baguio District, Calinan, Davao City. He testified that he was at the house of his mother on February 10, 2009. At around 10:00 o'clock in the evening, [AAA] arrived with Godo Dumandan. [AAA] was asking for help while crying because she was allegedly raped by three persons in the pineapple plantation. His mother advised her to just take a bath and change clothes and sleep at his brother's house. But [AAA] wanted to go home. Since he was the only one who was not drunk, Racho was instructed by [his] mother to accompany [AAA] in going to her aunt's house. When they reached Caniamo, [AAA] did not want to be brought to her aunt's house because she knows the latter would just scold her. Instead, she wanted to be conveyed to their house at Ventura. Since Ventura was far, Racho did not go with her and instead went back home. When asked about the charge of rape against him, Racho said he could not have done that because his hand is impaired while showing a long scar on his left arm. This was a result allegedly of a hacking incident on September 21, 2008. He offered a Medical Certificate (Exh. 1) issued by Dr. Lugi Andrew Sabal of the Davao Medical Center which indicates that Racho was confined in the said hospital from September 21, 2008 up to October 1, 2008 after an operation on his left forearm. He said that his left arm was placed in a plaster cast but that he removed the cast after three (3) months. He said that even after he removed the cast, his arm was still painful and he could not move it around. Racho said he was surprised when policemen came to his house on February 11, 2009 and invited him to the police station because there was a complaint for rape against him. Anita Racho testified that she was at home in the evening of February 10, 2009 together with her husband and sons Bobby and [Racho]. Godo Dumandan arrived together with [AAA] who was allegedly raped by three (3) men. [AAA] appeared madly and wet so she advised her to take a bath and not to go home anymore since it

was late. [AAA] insisted on going home, so she asked her son [Racho] to accompany her. [Racho] at first refused pointing to his elder brother Bobby to accompany her. He eventually brought [AAA] home. He came back at around 10:00 o'clock in the evening and then he went to sleep. The following day, she was surprised when [Racho] was arrested allegedly for raping [AAA]. [Racho] denied raping [AAA].8 Ruling of the Trial Court In its joint judgment, the RTC found AAA's testimony, positively identifying both Amarela and Racho, to be clear, positive, and straightforward. Hence, the trial court did not give much weight to their denial as these could not have overcome the categorical testimony of AAA. As a result, Amarela and Racho were convicted as follows: In view of all the foregoing, judgment is hereby rendered in Criminal Case No. 64964-09 finding [Amarela] GUILTY beyond reasonable doubt of the crime of RAPE and hereby imposes upon him the penalty of reclusion perpetua. He is further sentenced to pay [AAA] the sum of FIFTY THOUSAND PESOS (₱50,000.00) as civil indemnity and the further sum of FIFTY THOUSAND PESOS (₱50,000.00) as moral damages. In Criminal Case No. 64965-09, judgment is hereby rendered finding [Racho] GUILTY beyond reasonable doubt of the crime of RAPE and hereby imposes upon him the penalty of reclusion perpetua. He is further sentenced to pay [AAA] the sum of FIFTY THOUSAND PESOS (₱50,000.00) as civil indemnity and the further sum of FIFTY THOUSAND PESOS (₱50,000.00) as moral damages.9 The Assailed CA Decision Before the CA, Amarela and Racho pointed out that although there were other witnesses, the only material testimony on record was that of AAA. They argued that there were several circumstances casting doubt on AAA' s claim that she was raped because her testimony does not conform to common knowledge and to ordinary human experience. In the assailed decision, the CA affirmed the RTC's judgment in toto finding no reason to reverse the trial court's factual findings. It held:

[AAA] has testified in a straightforward manner during her direct examination and remained steadfast in her cross-examination that Amarela sexually abused her on February 10, 2009, and [Racho] abused her five hours later. The first rape incident took place in the daycare center. She was pulled by Amarela while she was on her way to the comfort room located at the back of the x x x cooperative building. Private complainant, full of mud and wet, with dress tom, took refuge at the house of her boyfriend and sought for help. Her boyfriend's father took her to the house of the in-laws of her cousin. [AAA], who was still wet and muddy, begged the motherin-law of her cousin that she be taken to the house of her aunt. While the in-laws of her cousin helped her by having escorted her to her aunt's house, it turned out however, that [Racho] her escort had another plan in mind. [Racho] sexually abused [AAA], who had no more strength to fight him. The records render no reason to reverse the factual findings of the court a quo. Both of the appellants' denials miserably fail in contrast to [AAA's] positive identification of the accused-appellants as the person who sexually abused her. There is no doubt in our mind that both appellants had carnal knowledge of [AAA]. Her credibility is cemented by her lack of motive to testify against the two appellants, Amarela and [Ra.cho]. There is no evidence to suggest that she could have been actuated by such motive. The People has ably demonstrated the existence of the elements of Rape under the Revised Penal Code, as amended by R.A. No. 8353, or the AntiRape Law of 1997, which states: xxxx The Court sees no reason to deviate from the well-entrenched rule that in matters of credibility of witnesses, the assessment made by the trial court should be respected and given preponderant weight. [AAA's] ordeal is so traumatic that she would rather forget the whole incident. But once a rape victim has decided to seek justice, that means she is willing to recall the dastardly detail of the animalistic act committed on her person. [Racho] would have us believe that the charge against him was merely fabricated because, according to him, being raped by two different assailants, on two different occasions and only hours apart, is contrary to the normal course of things. We are not convinced. The Supreme Court has once said that rape in itself is prompted by the abnormal need of a man to overpower and control a woman by way of sexual abuse. There is no typical mode, norm, or

circumstance in committing rape or sexual abuse for the evil in man has no conscience. In fact, in a catena of cases, the Supreme Court had ruled that rape is no respecter of time or place. Thus, we cannot agree with [Racho]'s argument that just because [AAA] had been raped five hours earlier, the possibility that she might get raped again is nil. Undeterred, appellants posit that [AAA's] testimony is not substantially corroborated by medical findings as the medical certificate does not show any physical injuries resulting from the alleged use of force by the appellants. We do not agree. The absence of any superficial abrasion or contusion on the person of the offended party does not militate against the claim of the latter whose clear and candid testimony bears the badges of truth, honesty, and candor. It must be stressed that the absence or presence of visible signs of injury on the victim depends on the degree of force employed by the accused to consummate the purpose which he had in mind to have carnal knowledge with the offended woman. Thus, the force employed in rape need not be so great nor of such a character as could not be resisted. It is only that the force used by the accused is sufficient to enable him to consummate his purpose. Appellant Amarela also argues that [AAA] could not have identified her assailant because it was very dark at the place where [AAA] was allegedly pulled by her assailant and the place where she was allegedly raped. [AAA], in her re-direct examination, testified that she knew it was Amarela who raped her because she saw Amarela's fact while Amarela brought her from the cooperative building to the daycare center. Time and time again, the High Court has repeatedly ruled that positive identification prevails over denial, a negative defense that is inherently unreliable. We have no reason to doubt [AAA's] unwavering assertions positively establishing the identities of the two accused-appellants. We find the guilt of each of the accusedappellants to have been proven beyond reasonable doubt. FOR THESE REASONS, the assailed judgment is AFFIRMED in toto. 10

OUR RULING More often than not, where the alleged victim survives to tell her story of sexual· depredation, rape cases are solely decided based on the credibility of the testimony of the private complainant. In doing so, we have hinged on the impression that no young Filipina of decent repute would publicly admit that she has been sexually abused, unless that is the truth, for it is her natural instinct to protect her honor. 11 However, this misconception, particularly in this day and age, not only puts the accused at an unfair disadvantage, but creates a travesty of justice.

evidence by the trial court be accorded great respect by this Court; for it can be expected that said determination is based on reasonable discretion as to which testimony is acceptable and which witness is worthy of belief.16 Although we put a premium on the factual findings of the trial court, especially when they are affirmed by the appellate court,17 this rule is not absolute and admits exceptions, such as when some facts or circumstances of weight and substance have been overlooked, misapprehended, and misinterpreted. We follow certain guidelines when the issue of credibility of witnesses is presented before us, to wit:

The "women's honor" doctrine surfaced in our jurisprudence sometime in 1960. In the case of People v. Tana, 12 the Court affirmed the conviction of three (3) armed robbers who took turns raping a person named Herminigilda Domingo. The Court, speaking through Justice Alejo Labrador, said:

First, the Court gives the highest respect to the R TC' s evaluation of the testimony of the witnesses, considering its unique position in directly observing the demeanor of a witness on the stand. From its vantage point, the trial court is in the best position to determine the truthfulness of witnesses.

It is a well-known fact that women, especially Filipinos, would not admit that they have been abused unless that abuse had actually happened. This is due to their natural instinct to protect their honor. We cannot believe that the offended party would have positively stated that intercourse took place unless it did actually take place.13

Second, absent any substantial reason which would justify the reversal of the RTC's assessments and conclusions, the reviewing court is generally bound by the lower court's findings, particularly when no significant facts and circumstances, affecting the outcome of the case, are shown to have been overlooked or disregarded.

This opinion borders on the fallacy of non sequitor. And while the factual setting back then would have been appropriate to say it is natural for a woman to be reluctant in disclosing a sexual assault; today, we simply cannot be stuck to the Maria Clara stereotype of a demure and reserved Filipino woman. We, should stay away from such mindset and accept the realities of a woman's dynamic role in society today; she who has over the years transformed into a strong and confidently intelligent and beautiful person, willing to fight for her rights.

And third, the rule is even more stringently applied if the CA concurred with the RTC.18

In this way, we can evaluate the testimony of a private complainant of rape without gender bias or cultural misconception. It is important to weed out these unnecessary notions because an accused may be convicted solely on the testimony of the victim, provided of course, that the testimony is credible, natural, convincing, and consistent with human nature and the normal course of things.14 Thus, in order for us to affirm a conviction for rape, we must believe beyond reasonable doubt the version of events narrated by the victim. In an appeal from a judgment of conviction in rape cases, the issue boils down, almost invariably, to the credibility and story of the victim and eyewitnesses. The Court is oftentimes constrained to rely on the observations of the trial court who had the unique opportunity to observe the witnesses firsthand and note their demeanor, conduct and attitude under grilling and at times unfriendly, examination.15 It has since become imperative that the evaluation of testimonial

After a careful review of the records and a closer scrutiny of AAA's testimony, reasonable doubt lingers as we are not fully convinced that AAA was telling the truth. The following circumstances, particularly, would cast doubt as to the credibility of her testimony: (1) the version of AAA's story appearing in her affidavit-complaint differs materially from her testimony in court; (2) AAA could not have easily identified Amarela because the crime scene was dark and she only saw him for the first time; (3) her testimony lacks material details on how she was brought under the stage against her will; and (4) the medical findings do not corroborate physical injuries and are inconclusive of any signs of forced entry. First, AAA narrates that she was on her way to the comfort room, isolated from the crowd at the beauty contest and made it easy for Amarela to grab her without anyone noticing: Q: Now, you said that you watched the beauty contest at around 7:00 in the evening on Feb. 10, 2009. After that, Ms. Witness, while watching, what did you do?

A: I was on my way to the CR.

A: At the back of the cooperative.

Q: And where is the CR located?

Q: And, upon seeing [Amarela] at the back of the cooperative, Ms. Witness, tell us what happened?

A: Near the coop. A: He pulled me. Q: Can you please tell us the name of that cooperative? Q: Going to what place? A: Cooperative. A: Going towards the day care center.19 Q: Can you recall the exact name? A: Maligatong Cooperative. Q: And, where is this Maligatong Cooperative, Ms. Witness, in relation to the basketball court where the beauty contest was held? A: It's near. xxxx Q: Now, between the basketball court and the cooperative you referred to, what separates these two buildings? A: Durian trees and cacao. Q: You said that you were going to the CR located at the back of the Maligatong Cooperative to relieve yourself. And, were you able to go to the CR at the back of the Maligatong Cooperative? A: Nomore.

Meanwhile, her affidavit-complaint would indicate that Amarela pulled AAA away from the beauty contest stage to the day care center: 6. At around 6:00 in the afternoon, I, my aunt [BBB] together with her siblings and grand children went back to Maligatong Cooperative Building to watch a beauty contest. My companions stayed at the multicab at the parking area of said building, while my cousin [CCC] and I went closer to the stage. While at there, the person of [Amarela], drunk, suddenly appeared and introduced himself to me. I resisted to get his hand on my hands because he is holding it tightly and forcibly brought me to the back portion of the building. I asked for help but nobody heard me maybe because of the high volume of the sound system. 7. While at the back of said building I saw my boyfriend Eric Dumandan coming and [Amarela] told him, "Ran (Eric's palayaw) naa si gemma diri!" and Eric responded, "ahh! tinga-a." 8. When Eric left us, [Amarela] grabbed me going to the purok beside the daycare center of Sitio Maligatong, Brgy. Tawan-Tawan, Baguio District [more or less] 20 meters away from the [cooperative] building. I shouted for help but still nobody heard me.20

Q: Why not? A: [Amarela] was waiting for me. Q: Exactly, can you please tell us the location where he was waiting for you?

It has often been noted that if there is an inconsistency between the affidavit and the testimony of a witness, the latter should be given more weight since affidavits being taken ex parte are usually incomplete and inadequate.21 We usually brush aside these inconsistencies since they are trivial and do not impair the credibility of the rape victim.22 In this case, however, the version in AAA's

affidavit-complaint is remotely different from her court testimony. At the first instance, AAA claims that she was pulled away from the vicinity of the stage; later, in court, she says that she was on her way to the rest room when she was grabbed. By this alone, we are hesitant to believe AAA's retraction because it goes into whether it was even possible for Amarela to abduct AAA against her will.

A: Several trees.

If we were to take into account AAA's initial claim that Amarela pulled her away from the vicinity of the stage, people facing the stage would easily notice that a man was holding a woman against her will. Thus, AAA's version that she was on her way to the rest room, instead of being pulled away from the crowd watching the beauty contest, would make it seem that nobody would notice if AAA was being taken away against her will. If indeed AAA was on her way to the rest room when she was grabbed by Amarela, why does her sworn statement reflect another story that differs from her court testimony? To our mind, AAA's testimony could have been concocted to just make her story believable rather than sticking to her original story that Amarela introduced himself and pulled her away from the stage. We cannot say that this inconsistency is simply a minor detail because it casts some doubt as to whether AAA was telling the truth - that she was abducted against her will before she was raped.

Q: Now, can you please tell us the illumination in that place?

Q: How about grass? A: Yes, sir.

A: It was dark. Q: Why is it that it was dark? A: Because there was no lighting.23 Cross-Examination Q: Since it was already night time, it was very dark at that time, correct? A: Yes, ma'am.

Although we cannot acquit Amarela solely based on an inconsistency, this instance already puts AAA's credibility in question. Again, we must remember that if we were to convict based solely on the lone testimony of the victim, her testimony must be clear, straightforward, convincing, and consistent with human experience. We must set a high standard in evaluating the credibility of the testimony of a victim who is not a minor and is mentally capable.

Q: And when you went to the CR to relieve yourself which CR was located at Maligatong Cooperative building, it was also dark on your way? A: Yes, ma'am. xxxx

Second, we also find it dubious how AAA was able to identify Amarela considering that the whole incident allegedly happened in a dark place. In fact, she had testified that the place was not illuminated and that she did not see Amarela's face:

Q: Now, while under the makeshift stage of that day care center, it was dark, very dark?

Direct Examination

A: Yes, ma'am.

Q: Now, what separates this beauty contest from what you were testifying a while ago as the daycare center?

Q: And you cannot see the face of [Amarela], was not clear to you because it was very dark, correct?

A: Coconut trees, durian trees, and cacao.

A: Yes, ma' am.24

Q: ·what else?

Re-Direct Examination

Q: At the time that you said that while [Amarela] was undressing you could not see his face, would you confirm that?

Q: At the day care center, where exactly did he bring you? A: Under.

A: Yes, sir. Q: Under what? Q: What about his body? A: Under the makeshift stage. A: No, sir. Q: You said there was also a makeshift stage at the day care center? Q: Why, Ms. Witness? A: Yes. A: It was dark. Q: Was it finished makeshift stage or not? xxxx A: Not yet finished. Q: Now, at the time that you were raped you said that it was too dark, how did you then identify that [Amarela] was the one who raped you?

Q: You said that he brought you under that makeshift stage?

A: I know him when he brought me from the Coop.

A: Yes.

Q: From the Coop. to the day care center that was the time that you identified him?

Q: Please tell us how did you fit in that makeshift stage?

A: Yes, sir.25 From AAA's testimony, we are unsure whether she was able to see Amarela given the lighting conditions in the crime scene. In her re-direct examination, AAA clarified that she identified Amarela while she was being pulled to the day care center. Even so, the prosecution failed to clarify as to how she was able to do so when, according to AAA herself, the way to the day care center was dark and covered by trees. Thus, leaving this material detail unexplained, we again draw reservations from AAA's testimony. Proving the identity of the accused as the malefactor is the prosecution's primary responsibility. The identity of the offender, like the crime itself, must be established by proof beyond reasonable doubt. Indeed, the first duty of the prosecution is not to prove the crime but to prove the identity of the criminal, for even if the commission of the crime can be established, there can be no conviction without proof of identity of the criminal beyond reasonable doubt.26 Third, her claim that she was forcibly brought under a makeshift stage, stripped naked, and then raped seems unrealistic and beyond human experience. She said:

A: Because the flooring is about 2 feet high. Q: Since you said he pulled you towards that makeshift stage, what was your reaction, Ms. Witness? A: I was scared. Q: And what did you do? A: I did not know what to do then. xxxx Q: Now, after that, what happened, Ms. Witness? A: He pushed me under. Q: What happened after that?

A: He [punched] me in my abdomen. Q: What else did he do to you?

stage without any sign of struggle or resistance. If indeed she was being held against her will, AAA could have easily called for help or simply run away. Fourth, the challenge to AAA's credibility is further supported by the medical findings of the medico-legal officer. The medico-legal certificate dated 12 February 2009 would reflect that AAA had no pertinent physical findings/or physical injuries:28

A: I felt weak. Q: After that what happened?

FINDINGS

A: He undressed me.

GENERAL PHYSICAL FINDINGS Q: While he was undressing you, what did you do, Ms. Witness?

Height

5 feet & 4 inches

A: I was just lying down.

General Survey

Awake, afebrile, not in respiratory distress

Mental Status

Conscious, coherent, respond well to questions when asked and maintained eye to eye contact

xxxx Q: What else did he do to you while you were resisting his advances?

Pertinent Physical Findings/Physical Injuries

A: I felt numbness. xxxx

44 Kg

Normal Findings ANO-GENITAL EXAMINATION

A: He boxed my upper left thigh. Q: .What did you feel when he boxed your left thigh?

Weight

External Genitalia

Normal findings

Urethra and Periurethral Area

Normal findings

Perihymenal Area and Fossa Narvicularis

(+) Hyperemic/Erythematous perihymenal area.

Hymen

(+) Complete laceration at 9 o’clock and 3 o’clock positions with minimal bloody secretion on the lacerated area.

Perineum

Normal findings

Discharge

None

Q: What did he do after that?

Internal and Speculum exam

Not done

A: He inserted his penis in my sex organ.27

Anal Examination

Good Sphincteric tone

Q: Now, you said that he undressed you, Ms. Witness, and you said he also undressed himself. What, then, [did he] do to you? A: He placed himself on top of me.

DIAGNOSTIC AND EVIDENCE GATHERING From this, AAA would like us to believe that Amarela was able to undress himself and AAA, and place himself on top of her while under a 2- feet high makeshiftForensic Evidence and Pending laboratory results (Spermatocyte determination gram stage. It is physically impossible for two human beings to move freely under aLaboratory Results staining). stage, much more when the other person is trying to resist sexual advances. IMPRESSONS Moreover, AAA failed to mention how exactly Amarela pulled her to the makeshift

Anogenital findings are diagnostic of blunt force or penetrating trauma.29 Insofar as the evidentiary value of a medical examination is concerned, we have held that a medico-legal report is not indispensable to the prosecution of a rape case, it being merely corroborative in nature.30 In convicting rapists based entirely on the testimony of their victim, we have said that a medico-legal report is by no means controlling.31Thus, since it is merely corroborative in character, a medicolegal report could even be dispensed with.32 A medico-legal's findings are at most corroborative because they are mere opinions that can only infer possibilities and not absolute necessities. A medico-legal, who did not witness the actual incident, cannot testify on what exactly happened as his testimony would not be based on personal knowledge or derived from his own perception. Consequently, a medico-legal's testimony cannot establish a certain fact as it can only suggest what most likely happened. In the same way, a medico-legal's findings can raise serious doubt as to the credibility of the alleged rape victim. Based on the testimony of the medico-legal officer who conducted the medical examination on AAA, she diagnosed that the ano-genital findings were caused by a blunt force or penetrating trauma. In a study conducted by Radostina D. Miterva,33 the most common sites for lacerations were determined, "in rape victims with ring-shaped hymens, lacerations were most commonly located as followed at dorsal recumbence of the patient: (1) one laceration at 6 o'clock position in 42.02% of cases; (2) two lacerations at 5 and 7 o'clock positions in 24.55% cases; (3) three lacerations at 3, 6 and 9 o'clock positions in 45.36% of cases; and (4) four lacerations at 3, 5, 6 and 9 o'clock positions in 25% of cases." These findings were supported by an earlier study that described patterns of genital injury resulting from sexual abuse.34 However, in a similar study comparing injuries from consensual and nonconsensual intercourse, the authors discovered that the statistical results of the locations of vaginal laceration are almost the same.35 Their findings suggest that the injuries are similar after consensual and non-consensual intercourse.36 From all this, we observe that a specific location of a vaginal laceration cannot distinguish consensual from non-consensual sex. Rather, other factors should be considered (such as, the frequency of lacerations and whether they are located in different positions) to determine whether the sexual act was consensual or not. If the frequency of lacerations is located in different areas of the vaginal orifice, then it would be a good indicator that there was sexual abuse. On the other hand, if the

lacerations are found in a specific area, it could indicate forced rape, but could also suggest consensual intercourse. In the instant case, the lacerations were found only at the 9 o'clock and 3 o'clock positions of the hymen. Considering the locality of these lacerations, we cannot completely rule out the probability that AAA voluntarily had sex that night. Moreover, the absence of bruises on AAA's thighs-when she said she was punched there twice-reinforces the theory that AAA may have had consensual intercourse. Rape is essentially a crime committed through force or intimidation, that is, against the will of the female.37 It is also committed without force or intimidation when carnal knowledge of a female is alleged and shown to be without her consent.38 Carnal knowledge of the female with her consent is not rape, provided she is above the age of consent or is capable in the eyes of the law of giving consent.39 The female must not at any time consent; her consent, given at any time prior to penetration, however reluctantly given, or if accompanied with mere verbal protests and refusals, prevents the act from being rape, provided the consent is willing and free of initial coercion.40 Although Amarela or Racho did not raise consensual intercourse as a defense, We must bear in mind that the burden of proof is never shifted and the evidence for the prosecution must stand or fall on its own merits. Whether the accused's defense has merit is entirely irrelevant in a criminal case. It is fundamental that the prosecution's case cannot be allowed to draw strength from the weakness of the evidence for the defense.41 As to Racho's case, we note that AAA testified only once for both criminal cases.1âwphi1 This means that both Amarela and Racho were convicted based on her lone testimony. When we rely on the testimony of the private complainant in rape cases, we require that her testimony be entirely credible, trustworthy, and realistic. For when certain parts would seem unbelievable, especially when it concerns one of the elements of the crime, the victim's testimony as a whole does not pass the test of credibility. Since we doubt AAA's account on how she was raped by Amarela, we have to consider her testimony against Racho under the same light. In her testimony, AAA claimed that Racho was instructed to bring her to her aunt's house, but instead forced her to go inside a house along the way. While inside the house, Racho supposedly boxed AAA's abdomen, undressed himself, placed himself on top of AAA, and inserted his penis into AAA's vagina. Afterwards, Racho got dressed and left AAA to go home by herself.42 We find it odd that AAA was not brought to the police right after she arrived at Godo Dumandan's house to seek help. Instead, she was brought to the Racho residence

where she told Neneng Racho what happened. Again, instead of reporting the incident to the police, AAA insisted that she be brought to her aunt's house nearby. This is way beyond human experience. If AAA had already told other people what happened, there was no reason for her not to report the incident to the proper authorities.

present a logical and realistic account of every alleged crime, and they should, to the best of their ability, present a detailed story to get a conviction. But here we cannot ascertain what happened based on the lone testimony of AAA. It should have been the prosecution's duty to properly evaluate the evidence if it had enough to convict Amarela or Racho.

Faced with AAA's doubtful narration before she went home alone, we are inclined to believe Racho's version that they parted ways when AAA insisted that she wanted to go home. To begin with, Racho did not even want to bring AAA to her aunt's house nearby.43 If he had the intention to have sex with AAA, Racho would not have declined her mother's instruction. To add, Racho said he left AAA by herself because he did not want to bring AAA to her house since this was in another town from her aunt's house.44 His reason for leaving AAA to go home alone is supported by the fact that he was able to immediately come home right after he left with AAA. Unlike AAA's testimony, the version offered by Racho is corroborated by the testimony of his mother.

Henceforth, we are constrained to reverse the R TC and the CA rulings due to the presence of lingering doubts which are inconsistent with the requirement of guilt beyond reasonable doubt as quantum of evidence to convict an accused in a criminal case. Amarela and Racho are entitled to an acquittal, as a matter of right, because the prosecution has failed to prove their guilt beyond reasonable doubt.

Undeniably, the defenses of denial and alibi are commonly raised in rape cases. Nevertheless, we have dismissed such defenses for being inherently weak, selfserving, and, more often than not, uncorroborated. To recall, Racho did not deny that he accompanied AAA to her aunt's house, but he said he left her when AAA insisted that she wanted to go home. Racho's mother corroborated this part of the story. To our mind, if the denial and alibi are readily available, Racho could have easily raised these defenses and denied that AAA ever came to the house. His mother could have likewise covered up this story, but she did not and confirmed that Racho was with AAA that night. If indeed Racho raped AAA that night, the best defense available for him was alibi which he thought he did not have to raise, given that he was telling the truth when he left AAA by herself to go home. To our mind, these are badges of truth which persuade us that Racho might be telling the truth. In the end, what needs to be stressed here is that a conviction in a criminal case must be supported by proof beyond reasonable doubt or moral certainty that the accused is guilty.45 Absolute guarantee of guilt is not demanded by the law to convict a person of a criminal charge but there must, at least, be moral certainty on each element essential to constitute the offense and on the responsibility of the offender.46 Thus, the prosecution has the primordial duty to present its case with clarity and persuasion, to the end that conviction becomes the only logical and inevitable conclusion.47 The prosecution in this case miserably failed to present a clear story of what transpired. Whether AAA's ill-fated story is true or not, by seeking relief for an alleged crime, the prosecution must do its part to convince the court that the accused is guilty. Prosecutors are given ample resources of the government to

WHEREFORE, premises considered, the 26 June 2012 Joint Judgment of the Regional Trial Court, Branch 11 of Davao City, in Criminal Case Nos. 64964-09 and 64965-09, as well as the 17 February 2016 Decision of the Court of Appeals in CAG.R. CR HC Nos. 01226 and 01227-MIN are hereby REVERSED and SET ASIDE. Accused-appellants Juvy D. Amarela and Junard G. Racho are ACQUITTED of the charge of rape on the ground of reasonable doubt. Their IMMEDIATE RELEASE from custody is hereby ordered unless they are being held for other lawful cause. SO ORDERED.