On automatic review is the decision 1 dated September 12, 1996, of the Regional Trial Court of Parañaque City, Branch 259, in Criminal Case No. 96-361, convicting appellant Carlito Salazar Oliva for Kidnapping with Rape and imposing upon him the penalty of death.
Upon the complaint by Remedios Baldon, on behalf of her five and one-half-year-old daughter, Analyn Baldon, appellant Carlito Salazar Oliva was charged as follows:chanrob1es virtual 1aw library
That on or about the 4th day of April 1996 in the Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused a private individual, did then and there willfully, unlawfully and feloniously kidnap and detain one Analyn Baldon, 5½ years old, by then and there taking away said minor, against the will of the minor’s mother;chanrob1es virtua1 1aw 1ibrary
That on the occasion of the said kidnapping the above-named accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of said victim, against her will.
CONTRARY TO LAW. 2
On arraignment, appellant pleaded not guilty. Thereupon, trial proceeded.
The prosecution presented as witnesses Analyn Baldon, Remedios and Elmer Baldon, Elmer Reyes, and Rudy Javier Jerusalem.
The first witness, REMEDIOS BALDON, testified that she and Elmer Baldon are the parents of Analyn Baldon, the victim. They live in Lower Sta. Ana, Barangay Sun Valley, Parañaque City with their two (2) children, Analyn and Elmy, five and one-half (5½) years old and three (3) years old, respectively. She stated that Analyn was born on November 5, 1990 (Exhibit A). 3 On April 4, 1996 about 4:00 P.M., she and Elmer, together with Analyn and Elmy, were walking towards the basketball court at the plaza of Lower Sta. Ana, Barangay Sun Valley, Parañaque City. Elmer saw appellant, who was called "Inggo", having a drinking spree at a store about fifty (50) meters away from the basketball court with Elmer’s cousin, Oscar, and Alfredo Reyes. When appellant saw Elmer, he gave him a shot of gin. Elmer then asked permission to leave and rejoin his family. Appellant was known to her for about a year. He was an uncle of her cousin. 4
She testified that at the plaza Analyn was playing with her cousins, Karen and Ching-Ching, when she saw appellant approach Analyn and give her P100.00 and another P1.00 to buy barbecue. She scolded Analyn when she saw her take the money, but Analyn replied that the money had been given to her. After eating at the plaza, Remedios went home with Elmy, leaving behind Analyn who asked for more time to play at the plaza.
She further testified that at 6:30 P.M. she fetched her husband, Elmer, from the house of his in-law (bilas) for supper at home. Elmer asked her about their children. She told him that Analyn asked permission to play at the basketball court. Before 7:00 P.M., Elmer and Remedios went back to the basketball court to look for Analyn but they could not find her there. They inquired from the people around, and a certain Elmer Reyes answered that he saw Analyn with appellant. 5
Elmer and the witness proceeded to appellant’s "barong-barong" at Lower Sta. Ana, Sun Valley, Parañaque City, but appellant was not there. They learned from appellant’s neighbor that Elmer did not stay there but across the creek ("kabilang sapa"). They did not find him there either. They went back to appellant’s "barong-barong" because somebody told them that appellant was still living there. When they reached the "barong-barong", they learned appellant had been there with a child. Since they could not find Analyn, they reported her missing to Barangay Tanod Rudy Jerusalem of Barangay Sun Valley, Parañaque City. The witness said she went home, while Elmer hired a tricycle to look for Analyn. 6
About 4:45 A.M. next morning, April 5, 1996, Analyn came home. The witness said she noticed that Analyn’s pair of shorts was dirty, and had dried mucus in front of the inner thigh. She asked what happened but Analyn just cried, and refused to talk. When she asked "Sinabihan ka ba na huwag kang magsusumbong?" Analyn had answered, "Opo." Asked where she had been taken, Analyn answered, "damuhan." The witness said she inspected Analyn’s body and found that she had plenty of mosquito bites. Then she let Analyn sleep. When Analyn woke up, the witness cleaned her up and saw that Analyn’s vagina was swollen and had a wound. 7 She then asked Analyn if Inggo was the one who molested her and she answered in the affirmative. They then went to the police station where she filed a complaint dated April 5, 1996 and from there they brought Analyn to the NBI where she was examined.
RUDY JERUSALEM, Barangay Tanod at Barangay Sun Valley, Parañaque City, was the second witness for the prosecution. He testified that on April 4, 1996, about 9:00 P.M., he received a complaint filed by Remedios Baldon that her daughter, Analyn, was missing and was last seen in the company of appellant; that on April 5, 1996, about 6:30 P.M., he and another Barangay Tanod, Jesus Malsada, arrested appellant; that Remedios Baldon positively identified appellant as the one who took Analyn away; and that he and Jesus Malsada executed a "Pinagsamang Salaysay" about the incident. 8
DR. VALENTIN BERNALES, medico-legal officer of the NBI, was the third witness. He testified that he conducted a physical examination on Analyn Baldon. 9 In his Medico-Legal Report No. MG 96-518 (Exhibit D), he stated:chanrob1es virtual 1aw library
Genital examination:chanrob1es virtual 1aw library
. . . Hymen, short, thin with superficial, incomplete laceration at 7:00 o’clock position corresponding to the face of a watch, edges congested; . . . Hymenal orifice admits a tube of 1.0 cm. in diameter. Vaginal walls and rugosities can not be reached by an examining finger.
CONCLUSIONS:chanrob1es virtual 1aw library
1. No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination.
2. Vaginal and hymenal laceration, present. 10
The fourth prosecution witness, ELMER REYES Y MUÑOZ, 30 years old, testified that on April 4, 1996 at around 7:00 P.M., he was tending the store of his sister located along Sta. Ana, Sun Valley, Parañaque, when he saw appellant with Analyn. He stated that he saw appellant with Analyn walking towards the wet market ("talipapa") area, Lower Sta. Ana, Sun Valley, Parañaque, Metro Manila. He added that he was not related to the family of the victim. 11
ELMER BALDON, father of the victim and the fifth witness corroborated part of the testimony of Remedios Baldon. He testified that at about 4:00 P.M. of April 4, 1996 he and his wife, Remedios, and their two children, Analyn, 5½ years old and Elmy, 3 years old, were on their way to the basketball court when they happened to pass by the place where appellant Oliva was drinking with his (Elmer) cousin Oscar and Alfred Reyes. Appellant Oliva, also known as "Inggo", gave him a shot of gin and after taking it he asked permission to leave and they then proceeded directly to the basketball court. Elmer chatted with his "bilas" up to about 6:30 P.M. while his wife went home with the children to prepare their supper. Later, he was fetched by his wife to have their supper and he asked her about Analyn because she arrived only with Elmy and his wife replied that Analyn asked permission to play while she was cooking. They started looking for Analyn and when they inquired from the people in the basketball court near a store, one Elmer Reyes told them that he saw their daughter with the appellant. Thereafter, they proceeded to the place where the appellant was residing. Not finding him there, they sought help from the barangay tanod but they failed to locate Analyn.
Elmer Baldon recalled that he hired a tricycle to look for Analyn around nearby Multinational Village, Parañaque City. Failing to find her there, he returned to the basketball court and stayed there until about 4:45 A.M. of April 5, 1996, when his wife fetched him and told him that Analyn was already home. Elmer asked Analyn where she had been taken and she told him appellant took her to a grassy area. As Elmer was going out of his house to look for appellant, he saw appellant being accompanied by a barangay tanod. When Elmer confronted him, appellant berated him and denied taking Analyn.
Thereafter, he recalled, Remedios and he took Analyn to the Parañaque Police Station. A policeman examined the private part of Analyn and saw sperm on it. Remedios executed a Sworn Statement ("Sinumpaang Salaysay") 12 at the Parañaque Police Station. They were told to take Analyn to a hospital for examination. While at the Parañaque Police Station, Elmer saw appellant being investigated and he heard him saying before the police investigator that he just masturbated over his child. ("Sinalsalan lang niya ang anak ko" .) Analyn underwent physical examination at the National Bureau of Investigation (NBI). 13
The five-year old victim, ANALYN BALDON, was the last witness presented by the prosecution. She testified that she knew appellant. She said that appellant took her to a grassy area, kissed her on the lips and without taking off her clothes, appellant removed her panty and then inserted his penis inside her vagina. Appellant told her "Huwag kang magsusumbong kay Mama at Papa." From the grassy area, they went to the house of appellant where they slept. When she woke up, appellant brought her to the house of her "Ate Eva" and then Analyn went home, while appellant took a tricycle and left. 14
The defense presented as its lone witness appellant, CARLITO OLIVA Y SALAZAR, 50 years old and single. He studied only up to Grade II and worked as a construction worker. He testified that he was previously charged for frustrated homicide, but was acquitted. He stated that Analyn was his neighbor but denied taking or molesting her. On April 4, 1996, at about 3 to 4 P.M., he said that he saw the Baldon family passing by while he was drinking along with two other companions. They started drinking at about 10:00 A.M. and they drank about 4 cases of beer and ended at about 7:00 P.M. the same day. Then he went home. He stated that at about 4:00 P.M. he left the group for awhile to get the salary of some workers and he then paid them. He later rejoined the group drinking. He went home alone and slept at about 8:30 P.M.. He woke up at about 6:00 A.M. the following day. He claims that the last time he saw the victim was at the time he saw her with her family on April 4.
On cross-examination, he denied that he offered to buy barbecue for Analyn. He denied that he knew witness Elmer Reyes before the incident but disclosed that he did hear he was a cousin of the Baldons. Appellant said that Reyes mauled him at the police station in Coastal, Parañaque. He said he knew no reason why Baldon or Reyes would implicate him in this case. He knew no one who could corroborate his alibi. 15
On September 12, 1996, the trial court rendered its decision, finding appellant guilty as charged and sentencing him to suffer the penalty of death. The decretal portion of the decision reads:chanrob1es virtual 1aw library
WHEREFORE, premises considered, finding accused Carlito Oliva y Salazar GUILTY beyond reasonable doubt for the crime of kidnapping with Rape as defined and penalized under Art. 267 and Art. 335 of the Revised Penal Code as amended by Sections 8 and 11 of RA 7659, this Court hereby sentences him to the penalty of DEATH and to suffer the accessory penalties provided by law specifically Art. 40 of the Revised Penal Code. For the civil liability he is hereby further condemned to indemnify the victim the amount of P50,000.00 in line with existing jurisprudence, P50,000.00 as moral damages and P50,000.00 as exemplary damages.
The Clerk of Court, Atty. Clemente Boloy is directed to prepare the Mittimus for the immediate transfer of accused Carlito Oliva from the Parañaque Municipal Jail to the Bureau of Corrections in Muntinlupa City and finally to forward all the records of this case to the Supreme Court for automatic review in accordance with Section 9, Rule 122 of the Rules of Court and Article 47 of the Revised Penal Code as amended by Section 22 of Republic Act No. 7659.
SO ORDERED. 16
In his brief, appellant assigns the following as lone error of the trial court:chanrob1es virtual 1aw library
THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF KIDNAPPING WITH RAPE AS WELL AS IN NOT ACQUITTING ACCUSED-APPELLANT ON GROUND OF REASONABLE DOUBT. 17
Before us, the lone issue for resolution is whether appellant’s guilt has not been proven beyond reasonable doubt. 18 But we must also inquire whether the penalty of death has been properly imposed on him. Appellant contends that: (1) The elements of illegal detention were not supported or proved by the evidence of the prosecution. (2) There are inconsistencies in the testimonies of the victim. (3) The lacerations found in Analyn’s vagina could have been caused by the insertion of a hard object. Appellant stresses that the offended child had testified that she did not see the penis of the appellant, and he did not bring out his penis. 19 He adds that the victim only thought that it was his penis that caused the pain in her private organ. 20 Moreover, appellant contends that no sexual contact was proved since Analyn did not say that he went on top of her to insert his penis into her private part. 21
For the State, the Solicitor General is of the view that under the circumstances of the case, the offense committed was not kidnapping with rape under Article 267 of the Revised Penal Code. 22 According to the OSG, the evidence on record shows that the crime committed is qualified rape of a minor below seven years old, considering that the victim, Analyn Baldon, is a five and one-half (5½) year old girl. The OSG argues that the guilt of the appellant for qualified rape has been sufficiently established by the prosecution, 23 and that the sentence of death has been correctly meted out on him.chanrob1es virtua1 1aw 1ibrary
Well established is the rule that, where the culpability or innocence of an accused hinges on the issue of credibility of witnesses and the veracity of their testimony, findings of the trial court are given the highest respect. For it is the trial judge who has the advantage of personally observing the conduct and demeanor of declarants, an opportunity not available to an appellate court. 24
After reviewing the records of this case, we find credible Analyn’s testimony in court. The trial court observed that initially, Analyn could not utter a word when she was placed on the witness stand. The Department of Social Welfare and Development was even given added time for therapy to stabilize her condition. 25 When she was ready to testify, she did so in a straightforward manner. She said she knew appellant and pointed to him as the person who took her to a grassy area, removed her panty, and inserted his penis into her vagina, at which time she felt pain in her private part. When the defense counsel on cross-examination told her if it was appellant’s finger which was inserted into her vagina, she answered she was sure that it was appellant’s penis that was inserted. 26 In this instance, young as Analyn was, we find her version of the incident believable. The testimony of a rape victim of tender age deserves full credit, especially where the facts point to her having been a victim of sexual assault. 27
Analyn’s testimony did occasionally reflect inconsistencies. During re-direct, she stated that she was sure it was appellant’s penis that penetrated her although she admits not actually seeing the penis itself. 28 This minor variance, however, is in our view, insignificant and does not weaken her testimony that she was raped by appellant. Error-free testimony cannot be expected, most especially when a witness is recounting details of a harrowing experience, one which even an adult would like to bury in oblivion. 29 Even if her testimony is not impeccable, the minor inconsistencies therein serve to reinforce rather than weaken her credibility. They are but minor lapses of a 5-year old child, who was traumatized by the bestial act done on her innocent person by appellant. 30
As earlier observed, the victim’s testimony shows plainly that there was actual carnal knowledge. In unmistakable terms, she testified on direct examination to the fact of actual penetration as follows:chanrob1es virtual 1aw library
Atty. Ambrosio:chanrob1es virtual 1aw library
Q: Natatandaan mo ba kung saan ka sinamahan ni Inggo?
A: Sa damuhan.
Q: Noong makarating na kayo sa damuhan, ano ang ginawa ni Inggo sa iyo?
A: Pinasok ang titi niya.
Q: Saan pinasok ni Inggo ang titi niya?
A: Sa pipi ko.
Q: Ano pa ang ginawa ni Inggo sa iyo noong ipasok niya ang titi niya sa pipi mo?
A: Hinalikan niya ako.
Q: Saan ka hinalikan ni Inggo?
A: Sa bibig.
Q: May suot ka bang damit noon?
Q: May suot ka bang panty noon?
A: Wala po.
Q: Sino ang naghubad ng panty mo?
(WITNESS POINTED TO THE ACCUSED CARLITO OLIVA) 31
Neither can we brush aside the findings of Dr. Bernales that there were lacerations present in Analyn’s vagina. When the testimony of a rape victim is consistent with the medical findings, sufficient basis exists to warrant a conclusion that the essential requisite of carnal knowledge has thereby been established. 32
Significantly, the prosecution has adequately established the allegation in the information that Analyn was only 5½ years old at the time of her rape. She was born on November 5, 1990 as evidenced by her Certificate of Live Birth. 33 It must be stressed that in cases of statutory rape, as in this case where the age of the victim was established with certainty to be below seven years as shown by her birth certificate and testimonial evidence, force is not an essential element since the absence of free consent is presumed when the woman is below such age. 34 Therefore, to convict appellant in the case at bar, the only circumstance that needs to be proved is the fact of intercourse which was sufficiently substantiated by the prosecution. 35
Nonetheless, although we affirm the findings of the trial court as to appellant’s guilt of the crime of statutory rape, the trial court, in our view, erred in its finding that kidnapping attended the commission of the crime of rape.
In the present case, we are left only with the following proven facts that pertain to the kidnapping of Analyn: that the victim’s mother learned from one Elmer Reyes that he saw the victim in the company of appellant; that Reyes saw the victim along with the appellant on the day the rape occurred; that per victim’s testimony, appellant brought the victim to a grassy area where he raped her; that after the rape, appellant brought the child to his house where they slept; and, that the following morning, appellant brought the victim to her "Ate Eva" .
Under Article 267 of the Revised Penal Code, as amended by R.A. 7659, kidnapping or serious illegal detention is committed when the following elements of the crime are present: (1) that the offender is a private individual; (2) that he kidnaps or detains another, or in any manner deprives the latter of his liberty; (3) that the act of detention or kidnapping must be illegal; and (4) in the commission of the offense, any of the following circumstances is present: (a) that the kidnapping or detention lasts for more than 5 days; or (b) that it is committed simulating public authority; or (c) that any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) that the person kidnapped or detained is a minor, female, or a public officer. 36
The primary element of the crime of kidnapping is actual confinement, detention and restraint of the victim. 37 A review of the prosecution’s own narration of events shows that the prosecution did not establish actual confinement, detention or restraint of the child, which is the primary element of kidnapping. The victim’s and Reyes’ testimonies do not adequately prove that the victim was forcefully transported, locked up or restrained. 38 The mother’s testimony — based on what Elmer Reyes said — was obviously hearsay and could not establish what appellant’s intent was. Absent any indubitable proof of a purposeful or knowing action by the accused to forcibly restrain the victim, there can be no taking coupled with intent to complete the commission of the offense. 39
Under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, 40 the death penalty shall also be imposed if the crime of rape is committed where the victim is a child below seven (7) years old. Here, Analyn Baldon was five years old when she was sexually molested.
We find modification on the civil liability of appellant in order too. The civil indemnity is increased to P75,000.00 since the rape is qualified by the circumstance of age which makes the death penalty imposable. 41 The award of moral damages in the amount of P50,000.00 is justified without need of any proof of Analyn Baldon’s physical suffering. However, only the amount of P25,000.00 is in order as exemplary damages.
Four justices of the Court, however, have continued to maintain the unconstitutionality of Republic Act No. 7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar.
WHEREFORE, the appealed judgment finding Carlito Oliva guilty of the crime of statutory rape and sentencing him to suffer the penalty of DEATH together with all the accessory penalties is AFFIRMED, with the MODIFICATIONS that the civil indemnity to be paid to the offended party is increased to P75,000.00, together with P50,000.00 as moral damages and P25,000.00 as exemplary damages.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon the finality of the decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power.
Davide, Jr., C.J.
, Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ.
, on official leave.
1. Rollo, pp. 15-27.
2. Original Records, p. 1.
3. Id. at 176.
4. TSN, June 17, 1996, pp. 4-6; TSN, August 7, 1996, pp. 5-7.
5. Id. at 7-8; Id. at 8-9.
6. Id. at 9-10; Ibid.
7. TSN, June 17, 1996, pp. 10-12.
8. Exhibit C, Original Records, p. 178; TSN, June 17, 1996, pp. 14-16.
9. Exhibit D, Original Records, p. 179; TSN, June 27, 1996, pp. 2-6.
10. Original Records, p. 179.
11. TSN, August 6, 1996, pp. 4-16.
12. Exhibit B, Original Records, p. 177.
13. TSN, June 17, 1996, p. 13; TSN, August 7, 1996, pp. 10-14.
14. TSN, August 12, 1996, pp. 14-17.
15. TSN, August 14, 1996, pp. 2-23.
16. Rollo, p. 27.
17. Id. at 51.
18. Id. at 60-64.
19. TSN, August 12, 1996, p. 20.
20. Rollo, p. 62.
21. Id. at 62-63.
22. ART. 267. Kidnapping and serious illegal detention. — Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:chanrob1es virtual 1aw library
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by R.A. 7659)
23. Rollo, p. 104.
24. People v. Deleverio, G.R. Nos. 118937-38, 289 SCRA 547, 563 (1998).
25. Rollo, p. 25.
26. TSN, August 12, 1996, pp. 14-20.
27. People v. Pagdayawon, G.R. No. 130522, February 15, 2001, pp. 8-9.
28 TSN, August 12, 1996, p. 20.
29 People v. Tumala, Jr., G.R. No. 122100, 284 SCRA 436, 442 (1998).
30. People v. Osing, G.R. No. 138959, January 16, 2001, p. 4.
31. TSN, August 12, 1996, p. 15.
32. People v. Ybañez, G.R. No. 136257, February 14, 2001, p. 6; People v. Tabion, G.R. No. 132715, 317 SCRA 126 (1999).
33. Exhibit A, Original Records, p. 176.
34. People v. Manalo, G.R. Nos. 135964-71, February 21, 2001, p. 11.
35. People v. Osing, supra.
36. People v. Paloma, G.R. No. 116595, 279 SCRA 352, 357-358 (1997), citing People v. Mercado, L-65152, 131 SCRA 501 (1984).
37. People v. Astorga, G.R. No. 110097, 283 SCRA 420, 439 (1997).
38. People v. Ubongen, G.R. No. 126024, April 20, 2001, p. 7; citing People v. Astorga, G.R. No. 110097, 283 SCRA 420 (1997); People v. Godoy, G.R. Nos. 115908-09, 250 SCRA 676, 728 (1995); People v. Soberano, G.R. No. 116234, 281 SCRA 438, 447 (1997); People v. Cua, G.R. No. 82292, 232 SCRA 507, 516 (1994).
39. People v. Ubongen, supra.
40. ARTICLE 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances:chanrob1es virtual 1aw library
x x x
3. When the woman is under twelve years of age.
x x x
"The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:chanrob1es virtual 1aw library
x x x
"4. When the victim is a religious or child below seven (7) years old.
x x x
41. People v. Victor, G.R. No. 127903, 292 SCRA 186, 200-201 (1998).