THIRD DIVISION
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
137366
November 27, 2003
-versus-
ROMEO MOLE Y
SANTOS,
Appellant.
D E C I S I O N
CARPIO
MORALES, J.:
On appeal is the
Decision[1]
of the Regional Trial Court of Makati City, Branch 143, finding
appellant
Romeo Mole y Santos guilty of the crime of rape and sentencing him to
suffer
the penalty of reclusion perpetua and to pay the victim P50,000.00 and
to pay the costs.chanrobles virtuallaw libraryred
The accusatory portion
of the Information[2]
charged appellant as follows:
That on or
about the 13th day of April, 1997 in the City of Makati, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named
accused,
with lewd designs, did then and there willfully, unlawfully and
feloniously
have sexual intercourse with one EMERITA REYES Y TAMAYO, against her
will
and consent.chanrobles virtuallaw libraryred
On motion of the
prosecution,
the accusatory portion was later amended to read:
That on or
about the 13th day of April, 1997 in the City of Makati, Philippines, a
place within the jurisdiction of this Honorable Court, the above-named
accused, with lewd designs, did then and there willfully, unlawfully
and
feloniously have sexual intercourse with one EMERITA REYES Y TAMAYO,
against
her will and consent, while dizzy or otherwise unconscious. (Emphasis
supplied.) chanrobles virtuallaw libraryred
Culled from the
documentary
and the testimonial evidence for the prosecution consisting of the
testimonies
of the following witnesses, to wit: private complainant Emerita Reyes
(Emerita);
Aurea Villena, the Medico-Legal Officer from the National Bureau of
Investigation;
SPO4 Lilia R. Hogar, the police investigator; and Wilfredo Reyes, the
husband
of Emerita, are the following:chanrobles virtuallaw libraryred
On April
11,
1997, the then 34-year old Emerita, her husband Wilfredo and their
three
children consulted appellant, Romeo Mole, an albularyo (quack doctor),
in the latter's house, they having been experiencing itchiness all over
their bodies. Appellant, diagnosing the Reyeses to be victims of kulam
(witchcraft), asked for and was given P935.00 for the purchase of 17
black
candles which he needed to insulate them from the spell. Appellant
asked
them to return the next day for treatment.[3]chanrobles virtuallaw libraryred
As advised, the Reyeses
returned to appellant's house the next day, April 12, 1997. On
appellant's
instructions, the Reyeses removed their clothes upon which appellant
massaged
their bodies one at a time with cotton dipped in oil.[4]chanrobles virtuallaw libraryred
After the "treatment,"
the Reyeses repaired home, accompanied by appellant who brought with
him
two black candles. Upon reaching the Reyeses' house, appellant lit the
candles and placed one at the main door and another near the door of
the
kitchen. He then invited Emerita's husband Wilfredo to drink gin while
waiting for the candles to burn out. After three shots, Wilfredo became
dizzy and passed out. Appellant thereupon brought Wilfredo to the only
bedroom of the house and blew something on his (Wilfredo's) chest.[5]chanrobles virtuallaw libraryred
At about 11:00 p.m.,
appellant left the Reyeses' residence after asking for and receiving
the
amount of P350.00 representing payment for his services.[6]
Emerita then went to
sleep. At about 12:00 midnight, however, she heard someone knock at the
main door. Clad in a duster, she opened the door and saw appellant who
was looking for her youngest son, he saying that "the sorcerer will
take
and kill him" and to save him (the son), appellant needed P2,500.00.
Panicky
and crying, Emerita immediately gave the said amount to appellant who
thereafter
went to the bedroom and sprinkled a pungent liquid on Wilfredo and
their
three children. Appellant also sprinkled the same liquid on Emerita,
blew
something on her chest and, while looking at her eyes, mumbled as if in
prayer at which point Emerita instantly felt weak and dizzy.[7]chanrobles virtuallaw libraryred
Appellant then dragged
Emerita to the kitchen, laid her on the floor and removed her
underwear.
She felt appellant, who was naked from the waist down, lie on top of
her.
While she wanted to resist she was too weak and dizzy and eventually
lost
consciousness.[8]chanrobles virtuallaw libraryred
Before losing consciousness,
however, Emerita felt something heavy on her breast as appellant lay on
top of her.[9]
When Emerita regained
consciousness, appellant had left and her entire body, including her
vagina,
was aching. She was later to declare in the course of her testimony in
court, when asked why her vagina was aching, that appellant "raped" her.[10]chanrobles virtuallaw libraryred
The next morning, or
on April 13, 1997, Emerita, without the knowledge of her husband,
reported
her experience to the police.[11]
Her husband, however, was informed by a neighbor that Emerita went to
the
police station, prompting him to follow her. On arrival at the police
station,
he was unable to talk to his wife, and it was only on her return home
at
around 3:00 or 4:00 p.m. of that day that Emerita related to him the
incidents
that occurred the night before, albeit he could not remember if Emerita
ever mentioned to him that she became unconscious, because there have
been
a lot of things which then occupied his mind.[12]
On April 14, 1997, Emerita
was physically examined by Dr. Aurea Villena who found multiple
lacerations
on her hymen which are secondary to child birth[13]
and noted the following:chanrobles virtuallaw libraryred
1. No
extragenital
physical injuries noted on the body of the subject at the time of the
examination.
2. Hymen, reduced
to
myrtiformis.[14]
At the witness stand,
the
doctor disclosed that the seminology examination conducted on Emerita
yielded
negative result, and that there was no medical basis to conclude that
she
had been subjected to sexual abuse.[15]chanrobles virtuallaw libraryred
From the Final Investigation
Report[16]
of SPO4 Lilia Hogar to whom the case was referred for investigation,
the
following datum appears:
x
x
x
x
x
x
x
x
x
07. Suspect ROMEO
MOLE
when apprised of his constitutional rights admitted raping EMERITA and
also told the same admission to the PRESS people who interviewed him.chanrobles virtuallaw libraryred
x
x
x
x
x
x
x
x
x
SPO4 Hogar's
testimony
in court was dispensed with after the prosecution stipulated that
appellant
was investigated and "gave the statement to her."[17]chanrobles virtuallaw libraryred
Appellant on the other
hand denied the accusation. He claims that it was his wife Adoracion
Mole,
not him, who treated Emerita; that both Emerita and Wilfredo were awake
when he returned to their house on the night of April 13, 1997; that he
merely fell asleep on the Reyeses' sofa in the living room; and that
when
he awoke at around 8:00 the following morning, Wilfredo even offered
him
breakfast which he turned down as it was already late. He, however,
admitted
that there is no reason why Emerita would file a complaint for rape
against
him.[18]chanrobles virtuallaw libraryred
Appellant's testimony
was corroborated by his wife Adoracion Mole.[19]
Giving weight to the
testimony of Emerita and relying on Romeo's verbal admission to SPO4
Hogar
of having raped the victim, as reflected in the aforementioned datum in
the Final Investigation Report, the trial court convicted appellant of
rape by the assailed decision, the dispositive portion of which reads:chanrobles virtuallaw libraryred
WHEREFORE,
the Court finds Romeo Mole y Santos GUILTY beyond reasonable doubt of
the
crime of rape. Accordingly, accused Romeo Mole y Santos is hereby
sentenced
to reclusion perpetua and to indemnify private complainant Emerita
Reyes
y Tamayo in the amount of P50,000.00 and to pay the costs.[20]chanrobles virtuallaw libraryred
In his brief, appellant
assigns the following errors to the trial court:
1.
x x x IN DECIDING THE CASE BY MERE CONFUSION OR
SUPPOSITION, AND IN FAILING TO CONSIDER CERTAIN UNREBUTTED SUBSTANTIAL
MATTERS OF FACTS TENDING TO SHOW THE NON-OCCURRENCE OR AT LEAST A
DOUBTFUL
OCCURRENCE OF RAPE.
2.
x
x x IN FAILING TO APPLY THE RULE THAT IN CASE OF
DOUBT,
THE SAME MUST BE RESOLVED IN FAVOR OF THE ACCUSED.[21]
In rape cases, it is
the
primordial duty of the prosecution to present its case with clarity and
persuasion to the end that conviction becomes the only logical and
inevitable
conclusion.[22]chanrobles virtuallaw libraryred
And the credibility
of the private complainant is of vital importance for, in view of the
peculiar
nature of rape, conviction or acquittal rests entirely upon her.[23]
It has thus become doctrine that the accused may be convicted even
solely
on the basis of the victim's testimony provided that the testimony is
clear,
credible, convincing, unshaken by rigid cross-examination and unflawed
by inconsistencies or contradictions in its material points.[24]chanrobles virtuallaw libraryred
Although the findings
of trial courts are normally respected and not disturbed on appeal,[25]
inconsistencies in the testimony of Emerita put serious doubts on her
claim
of rape, compelling this Court to reverse appellant's conviction.chanrobles virtuallaw libraryred
Thus, on direct examination,
she related that appellant, who was naked from waist down, lay on top
of
her after removing her underwear, whereupon she lost consciousness; and
that after she regained consciousness, her entire body, including her
vagina,
was aching. She thus concluded that she was raped:
Q You mean
Madam Witness that after your panty was removed and accused was able to
lay you down on the floor you lost consciousness and you don't remember
anything?chanrobles virtuallaw libraryred
A Yes, sir.
Q Prior to your
loss
of consciousness, what was the accused doing to you that you could
remember?
A I just felt that
there
was something heavy on my breast, sir.
x
x
x
x
x
x
x
x
x
Q What was the
condition
of your body when you regained consciousness?
A I felt pain all
over
my body, sir.
Q What particular
portion
of your body was aching or suffering from pain?
A My whole body
and
also my vagina, sir.
Q Do you know of
any
reason why your vagina is aching?
A Yes, sir.
Q What was that?
A He raped me, sir.[26]
(Emphasis
supplied.)
On
cross-examination,
Emerita gave the following account:
ATTY. OLIVA
Q You testified
Madam
Witness on direct examination that the last time you were conscious
that
you felt that the accused was on top of you, is that correct?chanrobles virtuallaw libraryred
A Yes, sir.
Q You also
testified
that you lost consciousness and that when you regained consciousness
the
accused had left already, am I right, Madam Witness?chanrobles virtuallaw libraryred
A Yes, sir.
Q Now, my
question,
Madam Witness, when did you lose your consciousness?
A When he was
halfway
with what he was doing to me, Sir.
Q Are you
referring
to the x x x mashing of your breast
and kissing of your lips, Madam Witness?
A Yes, Sir.
x
x
x
x
x
x
x
x
x
Q Miss Witness,
can
you possibly tell the Honorable Court if there was actual penetration
of
the sexual organ of the accused to you?
WITNESS
A Yes, sir.
COURT
Q Why do you know
that
there was full penetration Madam Witness?
A Because Your
Honor,
when I regained consciousness and he already left the house, I felt
that
my vagina was somewhat forced and it was very painful, Sir.chanrobles virtuallaw libraryred
x
x
x
x
x
x
x
x
x
Q Why do you know
that
he was able to have sexual intercourse with you?
WITNESS
A Because my organ
was
wet, Sir.[27]
(Emphasis
supplied.)
When, also on
during
cross-examination, she was questioned by the trial court, she gave the
following statement:
COURT
Q What was that
thing
that he did which you felt the accused was doing to you?
WITNESS
A I felt that he
put
his sexual organ on top of my body, Sir.
COURT
Q On top of your
body?
Q Where did the
accused
place his sexual organ, Madam Witness?
WITNESS
A On my vagina,
Sir.[28]
(Emphasis
supplied.)
The foregoing testimony
of Emerita prompted the defense to propound the following question
which
elicited the following answer:
ATTY. OLIVA
Q Madam Witness,
you
made several inconsistent statements during your direct examination
that
you lost consciousness and that you learned that you were raped after
you
regained consciousness. Likewise, when asked by this Honorable Court
when
you came to know that you were raped, you also said that you learned
that
you were raped because when you woke up, your sexual organ was painful
and when you were finally asked when for the first time you came to
know
that you were raped, you changed your testimony that you felt that the
accused inserted his sex organ into your vagina, which is which now,
Madam
Witness?chanrobles virtuallaw libraryred
A I lost
consciousness
after he was finished having sexual intercourse with me, Sir.[29]
(Emphasis
and italics supplied.)
When asked to clarify
her
statements, Emerita did not give categorical answers:
ATTY. OLIVA
Q When the accused
was
holding your breast and kissing your lips, in the middle of that, you
lost
consciousness, Madam Witness?
A I felt what he
was
doing to me but because my body was very weak, I tried to move my head
around so he could not kiss me, Sir.[30]
x
x
x
x
x
x
x
x
x
COURT
Q When did you
know
that your organ was wet?
WITNESS
A When he was gone
already,
Sir.
COURT
Q In other words,
you
only came to know tha[t] there was sexual intercourse after the accused
has already left the premises, is that correct?
WITNESSchanrobles virtuallaw libraryred
A No, Your Honor,
because
when he dragged me, I already felt weak and dizzy but I felt all those
things that he did to me.[31]
(Emphasis
supplied.)
Emerita's vacillating
account
of the incident failed to stand the test of consistency. This Court is
thus put on guard as to the veracity of her claim. For while minor
inconsistencies
do not detract from the actual fact of rape,[32]
those in Emerita's testimony may not be considered minor for they
relate
to the fact of commission of the offense charged.chanrobles virtuallaw libraryred
A woman raped in a state
of unconsciousness would not be able to narrate her defloration during
that state, and her violation may be proved indirectly by other
evidence.[33]
Whereas, a woman fully conscious at the time of rape need only testify
in a categorical, straightforward, spontaneous and frank manner, and
remain
consistent in her testimony to convict the accused.[34]chanrobles virtuallaw libraryred
While this Court has
held in numerous rape cases that no person would subject herself to a
rape
trial given the attendant embarrassment of a medical examination and
the
stigma of a sexual assault unless the accusation be true,[35]
it is gathered from those cases that the victim was able to clearly and
categorically impute the crime on the offender.chanrobles virtuallaw libraryred
In the case at bar,
save for Emerita's inconsistent testimonies as noted above, there is no
other evidence showing that appellant did have carnal knowledge with
her.chanrobles virtuallaw libraryred
The testimony of Wilfredo
merely dwelt on events that occurred before and after the alleged rape,
while the result of the medical examination showed no physical
manifestations
of sexual intercourse. While Dr. Villena did not rule out the
possibility
of sexual intercourse, her testimony could hardly be characterized as
consistent
and unwavering, having first ruled out the possibility of sexual
intercourse,
only to later retract upon being scrutinized by the trial court.[36]
As for the trial court's
reliance on the investigative report-Exhibit "E" of SPO4 Lilia Hogar in
this wise:chanrobles virtuallaw libraryred
Incidentally,
the defense did not interpose any objection to the admission of Exhibit
"E", the Investigation report. SPO4 Lilia Hogar, the
Investigator-on-Case,
stated in the said report that ROMEO, when interviewed by the media
people
admitted raping EMERITA.[37]
the same report showing
that appellant admitted having raped Emerita is inadmissible in
evidence.
The admission was not in writing and there is no showing that appellant
was assisted by a competent and independent counsel of his choice when
he made such statement in accordance with Section 2 (d)[38]
of Republic
Act
7438[39]
in relation to Section 12 (1) Article III of the Constitution.[40]chanrobles virtuallaw libraryred
The failure of the prosecution
to establish appellant Mole's guilt for rape notwithstanding, this
Court
finds him liable for the lesser crime of acts of lasciviousness. The
records
clearly show that appellant lay on top of the victim, mashed her
breasts
and kissed her lips, acts from which appellant's lewd design was
evident.
Although the information filed was for the crime of rape, appellant can
be convicted of acts of lasciviousness because the latter is
necessarily
included in rape.[41]chanrobles virtuallaw libraryred
There being no aggravating
or mitigating circumstances alleged in the information or proven during
trial, the penalty of prision correccional[42]
shall be imposed in its medium period. Applying the Indeterminate
Sentence Law, appellant must suffer the penalty of Six (6) Months
of
arresto mayor as minimum, to Four (4) Years and Two (2) Months of
prision
correccional, as maximum.chanrobles virtuallaw libraryred
WHEREFORE, the July
15, 1998 Decision of the Regional Trial Court of Makati City is hereby
MODIFIED. Appellant Romeo Mole y Santos is CONVICTED of the crime of
ACTS
OF LASCIVIOUSNESS and is sentenced to suffer the indeterminate penalty
of Six (6) Months of arresto mayor as minimum, to Four (4) Years and
Two
(2) Months of prision correccional as maximum, and to pay the costs of
suit. chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Vitug, Sandoval-Gutierrez
and Corona, JJ., concur.chanrobles virtuallaw libraryred
____________________________
Endnotes:
[1]
Rollo at 16–23.chanrobles virtuallaw libraryred
[2]
Records at 1.chanrobles virtuallaw libraryred
[3]
Transcript of Stenographic Notes (TSN), June 2, 1997 at 3–4.chanrobles virtuallaw libraryred
[4]
Id. at 4.chanrobles virtuallaw libraryred
[5]
Id. at 4–5; TSN, July 30, 1997 at 7–9.chanrobles virtuallaw libraryred
[6]
Id. at 6.chanrobles virtuallaw libraryred
[7]
TSN, June 2, 1997 at 5–9.chanrobles virtuallaw libraryred
[8]
Id. at 9–11.chanrobles virtuallaw libraryred
[9]
Id. at 9–11.chanrobles virtuallaw libraryred
[10]
Id. at 11–12.chanrobles virtuallaw libraryred
[11]
Id. at 13.chanrobles virtuallaw libraryred
[12]
TSN, June 30, 1997 at 23–32.chanrobles virtuallaw libraryred
[13]
TSN, May 28, 1997 at 10–12.chanrobles virtuallaw libraryred
[14]
Records at 65; Exhibit "B".chanrobles virtuallaw libraryred
[15]
Id. at 13–14.chanrobles virtuallaw libraryred
[16]
Records at 68–69, Exhibit "E".chanrobles virtuallaw libraryred
[17]
TSN, June 13, 1997 at 26.chanrobles virtuallaw libraryred
[18]
TSN, August 11, 1997 at 5–26.chanrobles virtuallaw libraryred
[19]
TSN, July 14, 2001 at 3–19.chanrobles virtuallaw libraryred
[20]
Rollo at 23.chanrobles virtuallaw libraryred
[21]
Id. at 48.chanrobles virtuallaw libraryred
[22]
People v. Aballe, 357 SCRA 802, 810 (2001).chanrobles virtuallaw libraryred
[23]
People v. Blazo, 352 SCRA 94, 100 (2001).chanrobles virtuallaw libraryred
[24]
People v. Umayam, G.R. No. 147033, April 30, 2003; People v. Biong,
G.R.
Nos. 144445-47, April 30, 2003; People v. Manallo, G.R. No. 143704,
March
28, 2003; People v. Delos Santos, G.R. No. 134525, February 28, 2003;
People
v. Sorongon, G.R. No. 142416, February 11, 2003.chanrobles virtuallaw libraryred
[25]
People v. Balano, 355 SCRA 627, 638–639 (2001).chanrobles virtuallaw libraryred
[26]
TSN, June 2, 1997 at 11–12.chanrobles virtuallaw libraryred
[27]
TSN, June 13, 1997 at 9–14.chanrobles virtuallaw libraryred
[28]
Id. at 14–15.chanrobles virtuallaw libraryred
[29]
Id. at 15–16.chanrobles virtuallaw libraryred
[30]
Id. at 10.chanrobles virtuallaw libraryred
[31]
Id. at 14.chanrobles virtuallaw libraryred
[32]
People v. Sagarino, 364 SCRA 438, 447 (2001).chanrobles virtuallaw libraryred
[33]
People vs. Mercado, 367 SCRA 252, 261 (2001) citing People v. Perez,
307
SCRA 276, 290–291 (1999).chanrobles virtuallaw libraryred
[34]
People v. Supnad, 362 SCRA 346, 354 (2001).chanrobles virtuallaw libraryred
[35]
People v. Vidal, 353 SCRA 194, 201–202 (2001); People v. Cuadro, 352
SCRA
537, 545 (2001).chanrobles virtuallaw libraryred
[36]
TSN, May 28, 1997 at 13–21.chanrobles virtuallaw libraryred
[37]
Rollo at 22–23.chanrobles virtuallaw libraryred
[38]
Any extrajudicial confession made by a person arrested, detained or
under
custodial investigation shall be in writing and signed by such person
in
the presence of his counsel or in the latter's absence, upon a valid
waiver,
and in the presence of any of the parents, older brothers and sisters,
his spouse, the municipal mayor, the municipal judge, district school
supervisor,
or priest or minister of the gospel as chosen by him; otherwise, such
extrajudicial
confession shall be inadmissible as evidence in evidence in any
proceeding.chanrobles virtuallaw libraryred
[39]
An Act Defining Certain Rights of Persons Arrested, Detained or Under
Custodial
Investigation as well as the Duties of the Arresting, Detaining and
Investigating
Officers and Providing Penalties for Violations thereof.chanrobles virtuallaw libraryred
[40]
Sec. 12. (1) Any person under investigation for the commission of an
offense
shall have the right to be informed of his right to remain silent and
to
have competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must be provided
with
one. These rights cannot be waived except in writing and in the
presence
of counsel.
[41]
Rule 120 of the Rules of Court states:chanroblesvirtuallawlibrarychanrobles virtuallaw libraryred
Section 4. When there is variance between the offense charged in the
complaint
or information and that proved, and the offense as charged is included
in or necessarily includes the offense proved, the accused shall be
convicted
of the offense proved which is included in the offense charged, or of
the
offense charged included in the offense proved.chanrobles virtuallaw libraryred
[42]
ART. 336. Acts of lasciviousness. — Any person who shall commit any act
of lasciviousness upon other persons of either sex, under any of the
circumstances
mentioned in the preceding article, shall be punished by prision
correccional.chanrobles virtuallaw libraryred | 
