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EN BANC

[G.R. No. 117682. August 18, 1997]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SILVINO (SILVERIO) SALARZA, JR. accused-appellant.

BELLOSILLO, J.:

DEATH, the punishment in extremis, was imposed on Silvino Salarza Jr. for rape. We now review his conviction.

Zareen Smith, British, was 30, single, a television and stage actress. Sometime in 1994 she came to the Philippines and chose Boracay in Aklan and Port Barton in Palawan for her vacation retreats. In Port Barton she met Enrico de Jesus, Filipino, 26, caretaker of Elsa's Place, a resort owned by his parents. Soon enough a mutual attraction developed between them which ripened into an intense love affair that they would have sex almost every night.

On 30 April 1994 Enrico brought Zareen to Mary's Cottage in Sitio Sabang, Bgy. Cabayugan, and introduced her to his granduncle Rogelio Maraon and grandaunts Nenita Maraon and Maria Ausan who collectively owned and managed the resort. Enrico and Zareen occupied Cottage No. 1. They spent the day at the beach where they drank and swam. They were later joined in by Enrico's friend Silvino Salarza Jr., a tourist guide, a press relations officer and a fisherman.

In the evening Enrico and Zareen went to Sabang Centro together with Silvino, Julio Morales and a certain Tonton to attend a dance. The dance however was canceled so they proceeded to Coco Grove Restaurant and drank a bottle of rhum. Zareen did not drink as she preferred red wine which was not available. At eleven o' clock the group returned to Mary's Cottage where Enrico awakened his grandaunt Nenita and asked her for two (2) more bottles of rhum, after which, they went back to the beach and continued drinking. This time Zareen opted for a bottle of beer. After a while Zareen said she felt tired and sleepy so she excused herself and retired to the cottage. She was accompanied by Enrico who left her there to sleep. Back at the beach Enrico asked his friends to go spearfishing. Although Silvino went with them he later returned to the beach because he could not stand the cold and was feeling dizzy. From this point on the prosecution and the defense presented varying versions.

According to the prosecution, at two o'clock in the morning of 1 May 1994 Zareen woke up when she felt somebody take off her underwear.¹ The room was dark as the resort management switched off the lights at ten o'clock. Zareen said she did not stop the man from removing her panties as she thought it was Enrico, her boyfriend, and she was half-asleep. The man in turn removed his briefs and placed himself on top of her, spread her legs, penetrated her and executed push-and-pull movements. Later, the man softly whispered: "Zareen, it's not Ricky; it's Jun. I love you." According to Zareen, when she heard those words, she pushed him aside. She cried and became hysterical. She went to the bathroom and washed herself, at the same time telling Silvino, "Why? Why did you do that to me? You have ruined everything. You know that Ricky and I are trying to have a baby of our own, what will happen now? I might get impregnated by what you did to me." Silvino however assured her that pregnancy was out of the question as he did not ejaculate.

Maria Ausan heard Zareen cry so she awakened Nenita. Thinking that Enrico was forcing himself on Zareen, Nenita went near Cottage No. 1 and pleaded, "Rico, please naman, kung ayaw huwag mong pilitin." But she did not enter the cottage. At this moment she noticed a lighted petromax approaching. It was Enrico with Julio and Tonton coming from the beach. Enrico hurriedly walked to the cottage. He saw Silvino coming out. At once he assumed that Silvino must have molested Zareen. Upon nearing Silvino, Enrico punched him even before Zareen could narrate what happened to her. Rogelio Maraon and Julio Morales then reported the incident at the police station and Patrolmen Eleazar and Rodillo immediately responded.

On the other hand, Silvino claims that it was Zareen who was flirting with him. His version is that while at Coco Grove Restaurant, whenever Enrico was not looking, Zareen would whisper to him and place her arm on his shoulder. She would talk to him about her stay in Boracay with her sister Lucila and the men she met there. In turn, he spoke to her about his former girlfriends. When Enrico invited him to go spearfishing he went with the group but after a while he returned to the beach saying he was feeling cold and dizzy having imbibed one too many. He even stumbled and fell on the sand. As a result, he got sand all over his body so he proceeded to the public restroom for a shower. On the way to get his t-shirt and cigarettes he saw Zareen lying on the hammock. She asked him for a cigarette and insisted that he take his shower inside her cottage instead of the public restroom which was about a hundred meters away. He hesitated for a while but finally acceded.

After emerging from his shower he was surprised to see Zareen on the bed. She pulled him towards her and asked him to make love to her. She embraced him tightly and kissed him lustfully. He was surprised with the turn of events and felt uncomfortable because of Enrico whom he did not wish to offend, much less betray, so he pushed her away. In her exasperation she shouted, Sh---t you, you are stupid!" Then she rushed to the bathroom and washed herself.

He heard the voice of Nenita Maraon coming from outside Cottage No. 1 calling for Enrico and inquiring what was happening, apparently thinking it was her grandnephew with Zareen having a lover's quarrel. So Silvino answered, "This is not Ricky, Tiyay, this is me, Jun." He informed her that he had just taken his shower inside. While Silvino and Nenita were talking, Zareen was simply keeping quiet. As he went out of the cottage he met Enrico on the way. Nenita shouted, "Jun, Ricky is coming; you're dead!" True enough Enrico boxed Silvino. Tonton and Julio ganged up on him, beat him, poured pepper on his body and pulled him towards the river. Fearful that they would eventually kill him, Silvino crawled towards the coconut grove and upon reaching the road leading to Sabang Centro he walked to the police station to lodge his complaint. On his way, he met Policemen Eleazar and Rodillo. Rodillo brought him to the police station while Eleazar continued his way towards Mary's Cottage to conduct an investigation.

But the trial court was not persuaded by Silvino's story. It pronounced him guilty of rape and imposed upon him the supreme penalty of death. The court threw out his declaration that Zareen had been flirting with him earlier and was the one who even proposed that they engage in sex that night. It found incredible that Zareen would fall for Silvino and substitute him for Enrico, rationalizing that Zareen was 30 years old, Enrico 26, and Silvino already 35, and that Enrico was 5'8" tall, handsome, with a well-shaped face and nose, while Silvino was not generously endowed and standing only at 5'2". Besides, it argued that a woman would not charge a person with the heinous crime of rape if it were not true, for she would not allow the examination of her private parts and subject herself to a public trial which are both embarrassing if her accusation was merely fabricated. It quoted People v. Selfaison,² where it was held that it was difficult to believe that the complainants, who were young and unmarried, would tell a story of defloration, allow the examination of their private parts and thereafter permit themselves to be the subject of a public trial if they were not motivated by an honest desire to have the culprits apprehended and punished. Obviously the court did not find it pertinent that Zareen was already 30, a stage and television actress, by her admission had several boyfriends in the past with whom she had sexual relations, and was possessed with a vigorous appetite for sex as she was indulging in intercourse with Enrico almost every night without benefit of marriage.

Quite interestingly, the Information alleges that Silvino had carnal communication with Zareen while she was asleep, with the use of force, against her will and without her consent.

We do not find the facts substantiating the Information. We must acquit.

Under Art. 335 of the Revised Penal Code, as amended by Sec. 11, RA 7659, rape is committed by having carnal knowledge of a woman under any of the following circumstances: (a) by using force or intimidation; (b) when the woman is deprived of reason or otherwise unconscious; and, (c) when the woman is under twelve (12) years of age or is demented. The facts of this case do not by any means show the existence of any of these circumstances; thus we cannot see how the trial court could have convicted and, worse, sentenced the accused to die.

First, the complaining witness was not below twelve (12) years of age at the time of the alleged commission of the offense. She was already thirty (30) years old. Neither was she demented.

Second, the Information avers use of force but the evidence negates any use of force, nay, not even intimidation, in the commission of the offense charged. In fact, as discussed hereunder, the sexual advances of the accused were done with the consent of the complaining witness although she claimed she thought that the man who laid with her was her boyfriend Enrico. Here it may be argued that consent to the sexual act was given by Zareen only because of her erroneous belief that the man on top of her was Enrico, thus implying that had she known it was someone else she would have resisted.

The explanation is not persuasive. The evidence shows that this mistake was purely a subjective configuration of Zareen's mind - an assumption entirely contrived by her. Our impression is that Silvino had nothing to do with the formulation of this belief; he did nothing to mislead or deceive Zareen into thinking that he was Enrico. In fact, Silvino precisely, and confidently, told her, "Zareen, it's not Ricky; it's Jun. I love you." It is thus obvious that whatever mistake there was could only be attributable to Zareen - and her inexcusable imprudence - and to nobody else. Clearly, the fault was hers. She had the opportunity to ascertain the identity of the man but she preferred to remain passive and allow things to happen as they did. Silvino never used force on her and was even most possibly encouraged by the fact that when he pulled down her panties she never objected; when her legs were being parted she never objected; and, when he finally mounted her she never objected. Where then was force?

Third, Zareen was not deprived of reason or otherwise unconscious when the accused had intercourse with her. Her lame excuse was that she was half-asleep. However she admitted that in the early morning of 1 May 1994 she woke up to find someone removing her underwear. Thuswise it cannot be said that she was deprived of reason or unconscious. She knew, hence was conscious, when her panties were being pulled down; she knew, hence was conscious, when her legs were being parted to prepare for the sexual act; she knew, hence was conscious, when the man was pulling down his briefs to prepare himself likewise for the copulation; she knew, hence was conscious, when the man mounted her and lusted after her virtue. Her justification was that she never objected to the sexual act from the start because she thought that the man was her boyfriend with whom she was having sex almost every night for the past three (3) weeks as they were getting married and wanted already to have a baby. In other words, her urge could not wait for the more appropriate time.

The prosecution would have the accused convicted of rape under its hypothesis that the complaining witness was half-asleep, ergo unconscious, when the sexual assault took place. Obviously, it had in mind the doctrine enunciated in 1929 in People v. Corcino,³ and later in 1935 in People v. Caballero.⁴ These cases however do not apply because the offended parties there were unquestionably fast asleep - and not just half-asleep as in the instant case - when the act was perpetrated. Consequently, there was no opportunity for them to either object or give their consent as they were in deep slumber at the time of the coition. It was only some time after they woke up that they realized that the men having sex with them were not their husbands they thought them to be. In convicting the accused, this Court held, as the trial courts did, that the crime of rape had already been consummated even before the offended parties woke up from their sleep. In Caballero it was found that -

x x x when Consorcia, the offended party, awoke the appellant had already introduced his organ into her genitals and in fact he was already having sexual intercourse with her. We mention this fact on account of a certain doubt arising from the offended party's testimony during the direct examination relative to this detail, but in the attempt of the attorney for the defense to clarify this point during his cross-examination, the offended party categorically affirmed that she had been unaware when the appellant introduced his organ into hers x x x x when the offended party awoke, the crime of rape committed by the appellant was already consummated, having had carnal knowledge with the offended party while she was unconscious for being asleep. The offended party's consent to the act was subsequent thereto and it was given on the belief that the man lying with her was her own husband (underscoring supplied).⁵chanroblesvirtuallawlibrary

The import of this pronouncement is that it was no longer relevant, much less significant, that after waking up the offended party continued to have sex with the man she thought was her husband. Her "consent" to the act was subsequent to the rape, or after the crime was already committed; the fact that the consent - even if only implied - was given on the belief that the man was her spouse, was inconsequential. In the case of Zareen, her "consent" was given prior to the carnal act, i.e., the act was done because of her passivity, if not consent.

The record abounds with indicia to discredit the theory of the prosecution that Zareen was dead drunk when the alleged rape took place. Having consumed only a small quantity of rhum during the day, according to her, and a bottle of beer in the evening on a normal pace, she could not have been so drunk as to be deprived of reason or otherwise rendered unconscious. When she returned to her cottage she immediately fell asleep as she was tired and remained so for some time. When she was supposedly molested at around two-thirty the following morning she must have already been, as we believe she was, in full possession of her mental and physical faculties. Whatever intoxicating effect the rhum and beer might have had on her would have already worn off.

Zareen herself claimed that she woke up when she felt someone removing her panties. This means she was fully conscious when somebody approached her bed, removed her panties, spread her legs although not far apart but just enough to get her underwear off, and then proceeded to perform coital movements with her. Her testimony that she knew that the "intruder" removed his own briefs; that his penis was already erect; that no effort at foreplay was made before penetrating her in his first attempt; that the man did not kiss her nor touch her breasts; that she did not even guide his penis into the trough of her femininity; and, that he pushed-and-pulled on top of her for approximately less than a minute, all validate our conviction that she was fully conscious - not asleep nor even half-asleep - of what was being done to her from the beginning. She was also aware that there was no light as the gas lamp inside the cottage was not lighted and the electricity was already shut off.

Most significantly, Zareen was acutely aware of the manner by which Silvino identified himself - "Zareen, it's not Ricky; it's Jun" - because she testified that " x x x it was not preceeded by a question. It was as if Jun wanted to wake me up fully."⁶ To repeat, all these details vividly recalled and recounted by her ineluctably indicate that she was awake all the time and capable of comprehending the nature of the sexual act and of exercising her own free will as to yield to or resist a Lothario's libido.

Zareen had known Enrico for three (3) weeks and since then had been making love with him almost every night. It strains credulity and understanding that she could have mistaken Silvino for Enrico. Their constant lovemaking and togetherness would have already made her familiar with the physical attributes of Enrico and accustomed to his fornicating peculiarities. Zareen even asserted that Enrico was not inclined to sexual intercourse when drunk and would usually indulge in foreplay before actual copulation. These oddities are cues which reasonably engender suspicion that the man she was having carnal communication with was not her lover but someone else. She had the moral responsibility not only to herself but to society itself to ascertain first the identity of her "ravisher" before yielding completely to him. It can hardly be said that she was not imprudent, reckless and irresponsible in giving in to her own sexual impulses. Moreover, being almost a stranger in the place, Zareen should have been leery of her surroundings especially at night. In this regard, she should not have left her cottage door unlocked as much as she did leave pregnable and unshielded the portals of her womanhood.

In People v. Bacalzo,⁷ the accused boxed his victim into unconsciousness. When the victim regained her consciousness she felt the flaccid penis of her ravisher still inside her vagina and that thereafter he removed his sexual organ. He then warned her not to divulge what had happened or else she and her family would be killed. Force, which was used to knock the victim into unconsciousness, was employed before the act was done to ensure its consummation. In People v. Corcino⁸ the complaining witness was totally asleep and when she woke up the organ of the accused was already inside her genitalia. In People v. Caballero⁹ the victim was fully asleep when the accused had carnal communication with her, such that when she woke up the crime of rape was already consummated. The same was true in People v. Inot.¹⁰ In People v. Dayo,¹¹ the rapist's organ was already in the vagina of the offended party when she woke up, so she pushed him away and screamed. But the accused pulled out his revolver and threatened to kill her if she made any further outcry. She fainted, and the accused continued having sex with her. In fine, in all these cases rape was already consummated before the offended parties could even exercise their volition to grant or deny access to erotic consortium.

Under the circumstances we cannot help entertaining serious doubts on the culpability of the accused. Rape is a charge easy to make, hard to prove and harder to defend by the party accused, though innocent. Experience has shown that unfounded charges of rape have frequently been proferred by women actuated by some sinister, ulterior or undisclosed motive. Convictions for such crime should not be sustained without clear and convincing proof of guilt. On more than one occasion it has been pointed out that in crimes against chastity the testimony of the injured woman should not be received with precipitate credulity. When the conviction depends on any vital point upon her uncorroborated testimony, it should not be accepted unless her sincerity and candor are free from suspicion. A little insight into human nature is of utmost value in judging matters of this kind.¹²chanroblesvirtuallawlibrary

But even from the narration of Zareen, the elements of the crime of rape are, regretfully, miserably wanting. There was no force nor intimidation; Zareen was not deprived of reason nor otherwise unconscious; and, she was not below twelve nor demented.

WHEREFORE, the decision appealed from is REVERSED and SET ASIDE and accused-appellant SILVINO SALARZA JR. is ACQUITTED of the crime charged; consequently, he is ordered immediately RELEASED from confinement unless held for some other lawful cause. Costs de oficio.

SO ORDERED.

Narvasa, C.J., Puno, Kapunan, and Hermosisima Jr., JJ., concur.

Padilla, Romero, Melo, and Panganiban, JJ., joined the dissenting opinions of Justices Regalado and Davide, Jr.

Regalado, and Davide, Jr., JJ., See Dissenting Opinion.

Vitug, J., voted for acquittal not for anything attributable to complainant but simply because of a failure of proof beyond reasonable doubt.

Mendoza, J., joined in the majority opinion of Justice Josue N. Bellosillo and in the concurring opinion of Justice Ricardo J. Francisco.

Francisco, J., See concurring opinion.

Torres, Jr., on leave.