EN BANC.
.
PEOPLE OF THE
PHILIPPINES,
Appellee,
G.R.
No.
146188
December 11, 2003
-versus-
DIONISIO ROTE
ALIAS
TAMBUTSO,
Appellant.
D E C I S I O N
CARPIO,
J.:
The Case
For automatic review
is the decision[1]
dated 5 October 2000 of the Regional Trial Court of San Jose,
Occidental
Mindoro, Branch 46, in Criminal Case No. R-4477 finding Dionisio Rote
alias
Tambutso ("Appellant") guilty beyond reasonable doubt of qualified
rape.
The dispositive portion of the decision reads:
WHEREFORE,
the Court finds the accused guilty beyond reasonable doubt of having
committed
the crime of rape and is sentenced to DEATH.
The accused is
further
ordered to indemnify the complainant Elma Luna Bacelonia the amount of
P75,000.00 plus P50,000.00 for moral damages.
The accused who is
presently
detained at the Provincial Jail at Magbay, San Jose, Occidental
Mindoro,
is ordered immediately transferred to the New BilIbid Prisons,
Muntinlupa
City, Metro Manila.chanrobles virtuallaw libraryred
Costs against said
accused.
SO ORDERED. The Charge
Appellant was charged
with the crime of rape under Article 335 of the Revised Penal Code, as
amended by Republic Act No. 7659 and Republic Act No. 8353 for raping
Elma
Luna Bacelonia[2]
("Elma Luna"). The Information reads as follows:chanrobles virtuallaw libraryred
That on or
about the 29th day of October 1998, at around 9:00 o'clock in the
evening
in Barangay San Francisco, Municipality of Sablayan, Province of
Occidental
Mindoro, Philippines and within the jurisdiction of this Honorable
Court,
the accused, with lewd design, by means of force and intimidation, did
then and there willfully, unlawfully, and feloniously have carnal
knowledge
of Elma Luna Ba(c)elonia, who is a minor, against her will and consent.chanrobles virtuallaw libraryred
Arraignment
and Plea
When arraigned on 8
January 1999, appellant, with the assistance of counsel, entered a plea
of not guilty.[3]
Thus, trial ensued.
The Trial
Version of the
Prosecution
The prosecution presented
four witnesses:
(1) Elma
Luna's
mother, Marcelina dela Cruz Bacelonia;
(2) Dr. Wilfred
Kenept;
(3) Elma Luna
herself;
and
(4) Elma Luna's
brother,
Elvimar Bacelonia.
In the People's Brief,
the Solicitor General summarized the prosecution's version of the
incident
as follows:
The
offended
party was born on May 14, 1989 to Elpidio Bacelonia and Marcelina
Bacelonia
(Exhibit D, p. 2, TSN, July 7, 1999). After the death of Elpidio,
Marcelina
cohabited with appellant without the benefit of marriage (pp. 2, 13,
TSN,
July 7, 1999; p. 4, TSN, March 15, 1999). Appellant, complainant and
her
children by her former husband, including the offended party, lived in
Barangay San Francisco, Sablayan, Occidental Mindoro.
Around 9:00
o'clock
in the evening of October 29, 1998, appellant invited the offended
party
and her brother Elvimar to fish at a pond about one hundred (100)
meters
away
from their house. Appellant told Elvimar to stay at the road, while he
brought the offended party to a place where straws were stacked
(dayamihan).
He undressed and laid her down and inserted his penis in her vagina.
The
offended party shouted in pain. Her cries of pain were heard by
Elvimar,
who remained nearby. After consummating his lust, appellant threatened
the offended party that he would kill her if she would tell her mother
about the incident (pp. 4–7, TSN, July 7, 1999).chanrobles virtuallaw libraryred
When the offended
party
went home, Elvimar informed complainant (their mother, Marcelina) that
he heard her sister cry. Complainant asked the offended party what
happened.
Instead of answering, the offended party just wept. Complainant noticed
that her daughter had a "hickee" on her neck. Breaking her silence, the
offended party confirmed that she was sexually abused by appellant (pp.
5–7, TSN, March 15, 1999).
Dr. Wilfred D.
Kenept,
the Municipal Health Officer of Sablayan, Occidental Mindoro, examined
the offended party and found out:
x x x
GENITALIA —
normal looking
external genitalia. Laceration noted in the Labia Majora 9 o'clock
position,
laceration noted in the Labia Minora 3 o'clock and 9 o'clock position.
(Exhibit B, p. 81, Record)[4]chanrobles virtuallaw libraryred
Version of the
Defense
The defense presented
three witnesses:
(1)
appellant
himself;
(2) Dr. Nuela
Manzanida;
and
(3) Ricardo Aguirre.
The Public Attorney
summarized
the defense's version as culled from the testimonies of its witnesses
as
follows:
Dionisio
Rote
averred that Elma Luna Bacelonia is his stepdaughter. He denied that he
invited Elvimar and Elma Luna to go fishing and that he intentionally
left
Elvimar by the road before they went fishing; and that he brought Elma
Luna to a "dayamihan" and sexually abused her at around 9:00 o'clock in
the evening on October 29, 1998. At that time, he was in the place of a
certain Dodong Aguirre in Sitio Cabacungan which is about 50 meters
away
from their house. He, together with Giovanni Flores and Dodong Aguirre
had a drinking spree in the said place from 6:00 o'clock in the evening
up to 12:00 midnight. After consuming six (6) bottles of gin, he,
together
with Giovanni Flores went home. When he arrived home, the children
(Netnet
and Jess) were already sleeping but his common-law wife was still
awake.
He likewise denied that on October 30, 1998, at around 6:30 o'clock in
the morning the complainant (Elma Luna) had reported to her mother that
he sexually abused her at the "dayamihan." Apparently, prior to the
filing
of the criminal complaint against him, he had a quarrel with his
common-law
wife when he refused to lend money to her eldest daughter (Alma) who
was
then planning to build a house. In fact, the common-law wife even told
him, "bakit paabutin ng umaga, hiwalay kung hiwalay." He replied that
if
she does not leave the house the next morning, he would be the one to
leave.
So, she left the house the next morning and went to Sitio Kastila and
she
never returned. He further denied that he invited Elvimar and Elma Luna
to go fishing on October 29, 1998, at around 9:00 o'clock p.m. and that
Elvimar heard the cry of Elma Luna when the latter was allegedly
sexually
molested by him. He was arrested on October 30, 1998. (TSN, November 4,
1999, pp. 2–12)chanrobles virtuallaw libraryred
Dr. Nuela C.
Manzanida,
Municipal Health Officer of San Jose, Occidental Mindoro, testified
that
the complainant's hymen could still be intact because Dr. Kenept did
not
put anything about it in his findings. Based on the Medico Legal
Certificate,
the lacerations were found only in the labia minora and labia majora
which
could be caused by other objects aside from the insertion of a human
penis.
In fact, said lacerations could also be caused by accident. (TSN,
February
16, 2000, pp. 2–6)chanrobles virtuallaw libraryred
Ricardo Aguirre
testified
that on October 29, 1998, at around 6:00 o'clock in the evening, while
he was sitted (sic) in front of their house, Dionisio Rote and Diovanie
(sic) Flores approached him because they were able to buy fish which
they
later cooked as "pulutan". They had a drinking spree which lasted up to
12:00 o'clock midnight. They were able to consume 3 bottles of gin.
During
the duration of their drinking spree, there was no occasion that
accused
Dionisio Rote left the place. In fact, Dionisio went home at around
12:00
o'clock midnight. He knew the complainant (Elma Luna) by face and not
by
name. At around 7:00 o'clock the following day, he saw the complainant
and her mother waiting for a bus going to Sitio Castila, Sablayan.
While
waiting for the bus, the complainant and her brother alternately rode a
bicycle and roamed around their place. The complainant and her mother
were
able to board the bus at around 8:00 o'clock in the morning. He learned
that the accused was charged by his own stepdaughter only on the
afternoon
of October 30, 1998. (TSN, March 21, 2000, pp. 2–8)[5]chanrobles virtuallaw libraryred
The Trial
Court's
Judgment
The trial court did
not give credence to appellant's imputation of ill-motive on the part
of
his common-law wife, Marcelina, in bringing the charges against him.
The
trial court also disbelieved appellant's defenses of denial and alibi
which
cannot hold up against Elma Luna's positive identification of appellant
as her rapist. The trial court stated that appellant failed to show
that
it was physically impossible for him to be at the scene of the crime at
the time of its commission. In the evening of 29 October 1998,
appellant
could have gone fishing, carried out his evil deed and then proceeded
to
Ricardo Aguirre's house for a drinking spree since these locations were
well within a hundred meters from each other. Lastly, the trial court
pointed
out that the fact that Elma Luna's hymen has remained intact does not
preclude
the finding of rape since mere entrance of the male organ within the
labia
of the pudendum still constitutes rape.chanrobles virtuallaw libraryred
Hence, this
automatic
review.chanrobles virtual law library
Issues
Appellant raises the
following assignment of errors:
1. The
trial
court gravely erred in finding him guilty beyond reasonable doubt of
the
crime of rape under Article 335 of the Revised Penal Code, as amended
by
Republic Act No. 7659 and Republic Act No. 8353;chanrobles virtuallaw libraryred
2. The trial court
gravely
erred in imposing the capital punishment of death on the assumption
that
he is guilty of the crime charged. The Court's
Ruling
By the very nature of
the crime of rape, conviction or acquittal depends almost entirely on
the
credibility of the victim's testimony because usually only the
participants
can testify as to its occurrence.[6]
To exculpate himself, appellant tries to discredit and assail Elma
Luna's
credibility. However, he does not point to any particular portion of
Elma
Luna's testimony or any other prosecution evidence which casts doubt on
his guilt or evinces the improbability of the commission of the crime
charged.
The only conclusion is that Elma Luna's credibility is beyond dispute
and
her testimony is worthy of full faith and credence. Elma Luna recounted
her ordeal in the hands of appellant in a straightforward, candid and
firm
manner thus:chanrobles virtuallaw libraryred
Q: On the
evening
of October 29, 1998, do you remember having invited (sic) by your
stepfather
to go with your brother Elvimar to go fishing?
A: Yes, sir.
Q: Did you in fact
went
(sic) fishing on that night?
A: Yes, sir.
Q: Together with
your
brother Elvimar?
A: Yes, sir.
Q: How far was
that
fishing ground away from your house?
A: From here up to
the
plaza.
FISCAL SALCEDO:
Estimated to
be
100 meters.
Q: After you
arrived
at the place where you intended to fish with your stepfather Dionisio
Rote
what did he do to you?
A: "Isinama po
niya
ako."
FISCAL SALCEDO:
Q: Where did you
go
when you said, "isinama niya ako"?
A: We went to the
"dayamihan",
sir.
Q: And when you
went
to that "Dayamihan" where was your brother Elvimar?
A: Elvimar was at
that
road, sir.
Q: How far was the
road
where your brother Elvimar was left to the "dayamihan" where the
accused
brought you?
A: Just near, from
here
up the Governor's building.
ATTY. CASTILLO:
About 20
meters,
Your Honor.
FISCAL SALCEDO:
Q: Do you know why
Dionisio
Rote left your brother at the road and brought you in the "dayamihan"?
A: No, sir.
Q: While you were
already
at the "dayamihan" what did Dionisio Rote do if any?
A: "Hinubaran po
niya
ako", he undressed me, sir.
Q: By the way,
what
were you wearing at the time?
A: Shorts and
T-shirt,
sir.
Q: You said
"hinubaran"
what apparel did Dionisio Rote remove?
A: Shorts, sir.
Q: Are you wearing
panty
at the time?
A: Yes, sir.
FISCAL SALCEDO:
Q: What did he do
to
your panty after he removed your shorts?
A: He also removed
my
panty, sir.
Q: After he
removed
your panty and short what did he do to himself?
A: After
undressing
me he removed his shorts.
Q: After he
removed
his shorts what did he do to you, if any?
A: He inserted his
private
part to my private part, "ipinasok po niya".
Q: But before he
inserted
his private part in your private part did he lay you down?
A: Yes, sir.
Q: Where?
A: At the
"dayamihan",
sir.
FISCAL SALCEDO:
We would
like
to manifest, Your Honor, that these "dayamihan" are palay straws.
Q: What did he say
if
any before he inserted his private part into your private part?
A: Before
inserting
his private part he told me, "kung magsusumbong ka sa Nanay mo
papatayin
kita!"
Q: What did you do
at
the time he was inserting his private part in your private part?
A: I cried, sir.
Q: Why did you not
refuse?
A: Because I was
afraid,
sir.
Q: Why, your
stepfather
had a bolo at the time?
A: There was, sir.
FISCAL SALCEDO:
Q: Considering
your
tender age which you are barely 9 years old at the time what do you
feel
at the time when the accused was inserting his penis in your private
part?chanrobles virtuallaw libraryred
A: I felt pain,
sir.
Q: When you said
"masakit"
what did you say, if any when he was inserting his private part in your
private part?
A: "Napaaray po
ako,"
sir.
Q: And when you
were
"napaaray" where was your brother Elvimar?
A: At the road,
sir.
Q: Your voice when
you
said "napaaray" was loud that could be heard by your brother?
A: Yes, sir.
Q: After the
accused
inserted his private part in your private part what else did he do to
you,
if any?
A: After that he
dressed
himself, sir.
Q: And you also
dressed
yourself?
A: Yes, sir.
Q: And where did
you
proceed after that?
A: We went
fishing,
Sir.[7]
It is improbable that
Elma
Luna, then only a 9-year old child and not exposed to the ways of the
world,
would impute a crime as serious as rape to any man if what she claims
is
not true. It becomes even more improbable if the man she accuses of
rape
is the common law husband of her mother, unless the man indeed raped
her.[8]
Appellant claims that an argument he had with Elma Luna's mother
prompted
the latter to file the rape case against him. It is highly unlikely
that
a mother would expose her own daughter to the embarrassment and
humiliation
as well as to the trouble, ridicule and scandal arising from a public
trial
involving rape if such was not the truth.[9]chanrobles virtuallaw libraryred
Moreover, the medical
examination conducted on Elma Luna buttressed her testimony that she
was
raped. Dr. Wilfred Kenept who examined Elma Luna a day after the
incident
on 30 October 1998, testified that there were fresh lacerations with
swelling
in Elma Luna's vagina. Although he stated that the hymen might still be
intact since he did not see it because of the lacerations,[10]
the rupture of the hymen is not necessary to consummate rape.[11]
As correctly held by the trial court, mere touching by the male's organ
of the labia of the pudendum of the female's private part is sufficient
to consummate rape.[12]chanrobles virtuallaw libraryred
Appellant's twin defenses
of denial and alibi, already recognized as inherently weak, appear even
more feeble and self-serving in the face of Elma Luna's positive and
credible
testimony.chanrobles virtuallaw libraryred
Appellant was prosecuted
and penalized under Article 335 of the Revised
Penal Code, as amended by Republic
Act No. 7659[13]
and Republic
Act No. 8353,[14]
which reads:chanrobles virtuallaw libraryred
Article
266-A.
Rape; When And How Committed. — Rape is Committed —
1) By a
man
who shall have carnal knowledge of a woman under any of the
circumstances:
x x x
d) When the
offended
party is under twelve (12) years of age or is demented, even though
none
of the circumstances mentioned above is present.chanrobles virtuallaw libraryred
x x x.
Article 266-B.
Penalties.
- x x x
The death penalty shall also be imposed if the crime of rape is
committed
with any of the following aggravating/qualifying circumstances:
1) When
the
victim is under eighteen (18) years of age and the offender is a
parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent
of
the victim; x x x.
The prosecution has
proven
beyond reasonable doubt that appellant succeeded in having carnal
knowledge
with Elma Luna. The prosecution established Elma Luna's minority by
presenting
her birth certificate which showed her date of birth as 14 May 1989.
Hence,
when appellant raped Elma Luna on 29 October 1998, she was only 9 years
old. Where the girl is below 12 years old, the only subject of inquiry
is whether "carnal knowledge" took place.[15]
Proof of force, intimidation or consent is unnecessary since none of
these
is an element of statutory rape. There is a conclusive presumption of
absence
of free consent when the rape victim is below the age of twelve.[16]chanrobles virtuallaw libraryred
Nevertheless, the death
penalty is not the correct penalty for the rape committed by appellant
because the information filed against him failed to state his
relationship
with Elma Luna. To justify imposing the death penalty, the information
must specifically allege the qualifying circumstances of the minority
of
the victim and her relationship to the offender, and the prosecution
must
prove during the trial these attendant circumstances.[17]
While the prosecution did prove that appellant was the common-law
spouse
of Elma Luna's mother, the information failed to allege such fact. The
Court has consistently held that where the information merely alleged
the
minority of the victim but not the fact of relationship with the
accused,
the latter is liable only for simple rape punishable with reclusion
perpetua.[18]
This is to comply with the constitutional right of the accused to be
informed
of the nature and cause of accusation against him.[19]
Lastly, we reduce the
trial court's award of civil indemnity from P75,000 to P50,000
following
prevailing jurisprudence in rape cases.[20]
We affirm the award of P50,000 in moral damages, which we award to a
rape
victim without need of pleading or proof of its basis.chanrobles virtuallaw libraryred
WHEREFORE, the Decision
dated 5 October 2000 of the Regional Trial Court of San Jose,
Occidental
Mindoro (Branch 46), in Criminal Case No. R-4477, is AFFIRMED with
MODIFICATION.
Appellant DIONISIO ROTE @ TAMBUTSO is adjudged guilty only of SIMPLE
RAPE
and sentenced to suffer the penalty of reclusion perpetua and to pay
Elma
Luna Bacelonia P50,000 as civil indemnity and P50,000 as moral damages.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Davide, Jr., C.J., Puno,
Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez,
Corona, Carpio Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur.chan
robles virtual law library
____________________________
Endnotes:
[1]
Penned by Judge Ernesto P. Pagayatan.chanrobles virtuallaw libraryred
[2]
In the Information, Elma Luna's surname is spelled "Baselonia." In the
criminal complaint signed by her mother, the surname is spelled
"Bacelonia."
In Elma Luna's birth certificate (Exhibit "D"), her surname is likewise
spelled "Bacelonia" which we will thus be adopting.
[3]
Records, p. 19.chanrobles virtuallaw libraryred
[4]
Rollo, pp. 91–94.chanrobles virtuallaw libraryred
[5]
Rollo, pp. 52–55.chanrobles virtuallaw libraryred
[6]
People v. Abuan, 348 Phil. 52 (1998).chanrobles virtuallaw libraryred
[7]
TSN dated 7 July 1999, pp. 4–7.chanrobles virtuallaw libraryred
[8]
People v. Manggasin, 365 Phil. 683 (1999).chanrobles virtuallaw libraryred
[9]
People v. Yparaguirre, G.R. No. 124391, 5 July 2000, 335 SCRA 69.chanrobles virtuallaw libraryred
[10]
TSN dated 14 June 1999, pp. 6–9.chanrobles virtuallaw libraryred
[11]
People v. Rafales, 379 Phil. 980 (2000); People v. Lerio, 381 Phil. 80
(2000).chanrobles virtuallaw libraryred
[12]
People v. Ulgasan, G.R. 131824-26, 11 July 2000, 335 SCRA 441; People
v.
Castillo, G.R. No. 130205, 5 July 2000, 335 SCRA 100.
[13]
Effective 31 December 1993.chanrobles virtuallaw libraryred
[14]
Effective 22 October 1997.chanrobles virtuallaw libraryred
[15]
People v. Lerio, supra, see note 11.chanrobles virtuallaw libraryred
[16]
People v. Castillo, supra, see note 12.chanrobles virtuallaw libraryred
[17]
People v. Santos, G.R. No. 145305, 26 June 2003.chanrobles virtuallaw libraryred
[18]
People v. Baybado, G.R. No. 132136, 14 July 2000, 335 SCRA 712; People
v. Bartolome, 380 Phil. 804 (2000).
[19]
Ibid.chanrobles virtuallaw libraryred
[20]
People vs. Bato, 382 Phil. 558 (2000).chanrobles virtuallaw libraryred |