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EN BANC

G.R. No. 130662. October 15, 2003

PEOPLE OF THE PHILIPPINES, Appellee, v. SERGIO ABON y ESTEBAN, Appellant.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For automatic review is the Decision1 dated April 22, 1997 of the Regional Trial Court, Branch 47, Urdaneta, Pangasinan in Criminal Case No. U-8671, convicting Sergio Abon y Esteban, appellant, of qualified rape and sentencing him to suffer the supreme penalty of death. He was ordered to pay the victim, Charito L. Abon, P50,000.00 as civil indemnity, P50,000.00 as moral and exemplary damages, and costs.

The Information charges appellant as follows:

That on or about the month of January, 1995 at barangay Linmansangan, municipality of Binalonan, province of Pangasinan, and within the jurisdiction of this Honorable Court, the said accused who is the grandfather of the victim, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge on the person of Charito L. Abon, a woman of 13 years old, against her will.

CONTRARY to Article 335, Revised Penal Code, as amended by Section 11, Rep. Act 7659.2cräläwvirtualibräry

Upon arraignment on November 10, 1995, appellant, assisted by counsel, pleaded not guilty. Trial ensued thereafter.

The evidence for the prosecution, as borne by the records, shows that complainant Charito Abon was born on September 29, 19823 to spouses Nelson and Felicidad Emma Lominoque Abon. But the couple separated, prompting Charito, her elder sister Laarni, and younger brother Alexander to live with their paternal grandparents, appellant and Alejandra Abon, at Barangay Linmansangan, Binalonan, Pangasinan. They provided for their support and education.

Sometime in January, 1995, at about 4:00 oclock to 5:00 oclock in the afternoon, appellant, Charito, then barely thirteen (13) years old, and Alexander were at their backyard gathering vegetables. Appellant instructed Alexander to buy cigarettes at the store. While Charito was harvesting some mangoes, appellant suddenly pulled down her shorts and drew his panabas (bolo). Frightened, she asked him what he was doing but he simply admonished her not to make any noise. He then proceeded to undress her and remove her panty. He also removed his shorts. Pointing the panabas to her, he ordered her to lie down. He placed himself on top of her, touched her breasts, and even forced her to hold his penis. Thereafter, he inserted his penis inside her vagina and sexually ravished her. She felt pain and dizziness. But still she tried to push him away. However, she was overpowered by his strength. After his bestial act, he dressed up and left for the farm.

Meanwhile, Alexander, who returned from the store, hid behind a mango tree. He saw both appellant and Charito naked, indulging in sexual activity. Scared, Alexander decided to go back to the store and then went home.

The next day, Charito informed her grandmother Alejandra that she was sexually molested by appellant. However, she refused to believe and even accused Charito of fabricating the incident. After a month, she stayed with her aunt Cristeta Bayno and revealed her traumatic experience to her.

On August 15, 1995, Cristeta brought Charito to Don Amadeo J. Perez, Sr. Memorial General Hospital at Urdaneta, Pangasinan. There, she was examined by Dr. Noel Obedoza who issued a Medical Certificate4 with the following findings:

(1) No sign of external physical injury such as abrasions, contusion and laceration on examination;

(2) Hymen is raptured with old healed laceration at 3-6 and 8 oclock;

(3) Vaginal intoitus admit tip of a forefinger with minimal resistance;

(4) Pregnancy test: negative (-). (Emphasis supplied)

Dr. Obedoza confirmed on the witness stand that the lacerations at Charitos hymen were at 3, 6 and 8 oclock positions and more than two to three weeks old.

Charito and her aunt reported the incident to the Binalonan Police Station, where she executed and signed a sworn statement. Eventually, she was brought to the Department of Social Welfare and Development in La Union.

The defense presented appellant, Alejandra, Alexander and his other granddaughter as witnesses. Appellant denied having raped Charito, whom he admitted is his own granddaughter, being the daughter of his son Nelson. He claimed that in January, 1995, (the alleged date when the rape was committed), Charito was in Manila. The filing of the rape charge against him was instigated by Cristeta Bayno, his wifes niece, who felt slighted after Francisco Novido, his brother-in-law, transferred the possession and cultivation of his land to him (appellant) in place of Cristeta. Charito denounced him because she resented being disciplined by him and his wife.

Alejandra Abon, appellants wife, corroborated his testimony.

Alexander, Charitos brother, recanted his earlier testimony for the prosecution, explaining that he was instigated by their aunt Cristeta in testifying against appellant.

On April 22, 1997, the trial court rendered a Decision, the dispositive portion of which reads:

WHEREFORE, finding the accused SERGIO ABON y ESTEBAN GUILTY of the crime of incestuous rape under Article 335 of the Revised Penal Code, as amended by Section 11, Republic Act No. 7659, beyond reasonable doubt, he is hereby sentenced to suffer the supreme penalty of DEATH.

In addition, he is ordered to pay the victim CHARITO ABON the sum of FIFTY THOUSAND (P50,000.00) as indemnity, the sum of FIFTY THOUSAND (P50,000.00) as moral damages and exemplary damages, and the costs.

SO ORDERED.5cräläwvirtualibräry

Hence, this automatic review.

Appellant, in his brief, ascribes to the trial court the following errors:

FIRST: THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE FACT THAT THE ACCUSED IS INNOCENT OF THE CRIME CHARGED.

SECOND: THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE FACT THAT THERE IS ULTERIOR OR ILL MOTIVE ON THE PART OF THE PRIVATE COMPLAINANT AND CRISTETA T. BAYNO IN FILING THE RAPE COMPLAINT AGAINST THE ACCUSED.

THIRD: THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THAT THE PROSECUTIONS EVIDENCE IS INSUFFICIENT TO SUPPORT CONVICTION OF THE ACCUSED.

FOURTH: THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THAT THERE IS REASONABLE DOUBT AS TO THE TRUTH OF THE RAPE CHARGE, AND THAT THE DOUBT SHOULD BE RESOLVED IN FAVOR OF THE ACCUSED.

The law applicable to the case at bar is Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659,6 which provides:

Article 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 or is demented.

The crime of rape shall be punished by reclusion perpetua.

x x x

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant 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.

Under the above provisions, the essential elements of incestuous rape are: (1) the offender had carnal knowledge of a woman; (2) the victim is under eighteen (18) years of age; and (3) 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.

Appellant, in assailing the evidence for the prosecution, contends that: (1) Charito admitted in the course of her testimony that at the time of the commission of the crime in January, 1995, she was actually in Metro Manila; (2) there is substantial delay of 240 days or 8 months before she reported the crime to the proper authorities; (3) the prosecution failed to establish his guilt beyond reasonable doubt because its witness Alexander recanted his testimony; (4) the results of Charitos physical examination negate the finding that she was raped; and (5) the filing of the complaint was instigated by Charitos aunt.

In a prosecution for rape, the victims credibility becomes the single most important issue, and when her testimony satisfies the test of credibility, an accused may be convicted solely on the basis thereof.7cräläwvirtualibräry

The trial court, in giving full credence to Charitos testimony, held:

This Court observed the deportment and demeanor of the complainant when she testified on the witness chair. She uncontrollably cried while narrating her unfortunate experience. She appeared candid and honest in her testimony; unsophisticated and so young. She claimed to have been born on 29 September 1982, which claim was never rebutted by the accused. It would appear that when she was allegedly sexually abused, she was less than thirteen years old. She was only in elementary school.

She was subjected to thorough, extensive and rigid cross-examination for three settings, but her testimony remained unshaken. While there may have been some inconsistencies and contradictions in her testimony, these were expected considering her juvenility and inexperience and her apparent inability to grasp the cross-examination questions.

Indeed, Charitos declaration has sufficiently and convincingly proved that appellant had sexually ravished her sometime in January, 1995. Her direct and straightforward account of the harrowing incident could not be any clearer, thus:

x x x

Q. Sometime in the month of January, 1995, do you recall if there was any unusual incident that happened to you at your place?

x x x

A. Yes, sir.

Q. What was that all about?

A. I was raped by my grandfather, sir.

Q. What is the name of your grandfather?

A. Sergio Abon, sir.

Q. If Sergio Abon whom you claimed raped you sometime in the month of January, 1995 is now inside the courtroom, kindly stand up and point to said accused?

A. Witness stood up and pointed to a person who when asked of his name, answered Sergio Abon.

Q. You said that Sergio Abon raped you, where did he rape you?

A. At the back of our house, sir.

Q. And what time of the day if you remember?

A. In the afternoon, sir.

Q. About what time did he rape you?

A. Between 4:00 oclock to 5:00 oclock in the afternoon.

Q. You said Madam Witness, that your grandfather raped you at the back of your house between the hours of 4:00 to 5:00 p.m., how did your grandfather rape you?

A. He undressed me, sir.

Q. You said he undressed me, tell us if your grandfather removed your clothes including your panty, is that what you mean?

A. Yes, sir.

Q. And what happened after Sergio Abon removed your clothes and your panty?

x x x

A. He went on top of me and he raped me.

x x x.8

Q. x x x what do you mean by he raped you?

A. Sergio Abon undressed me then he was on top. What I meant by he raped me, he put his penis on my private part, sir.

x x x

Q. What do you mean by your alleged testimony that Sergio Abon put his penis inside your private part?

A. When he was on top of me he put his penis inside my vagina.

Q. And what did he do after he put his penis inside your vagina?

A. He pushed and pulled. (Witness demonstrating the motion of pumping, moving up and down, push and pull).

Q. How long did the accused make a push and pull or pumping motion?

A. Quite short time, sir.

Q. And what did you do when the accused was making the pumping motion of push and pull motion while he was on top of you and his penis was inside your vagina?

A. He was holding my hand and he was on top of me. I was pushing him but he was strong.

Q. What happened after that?

A. He dressed up before he left the place.

Q. What did you feel after you experienced his penis inside your vagina and made a pumping motion and after the accused dressed up?

A. I felt pain and felt dizzy, sir.

x x x.9cräläwvirtualibräry

During the cross-examination, Charito never wavered in her assertion that appellant raped her; that during the act, he placed his bolo on her neck; and that he threatened to oust her and her brother from his house, thus:

Q. Last time also Madam Witness, you testified that your grandfather Sergio Abon raped you at the back of your house, my question is, what particular place at the back of your house were you raped by your grandfather, the accused herein?

A. Right at the back of the house and sometimes inside our house, sir.

Q. How many times were your raped by your grandfather?

A. He raped me once, sir.

x x x

Q. Now, you also said that your grandfather undressed you, where did your grandfather undress you?

A. In the fields, sir.

Q. Will you demonstrate before this Honorable Court how your grandfather undressed you or how he removed your clothes?

A. When I was then standing picking up mango fruits, my grandfather removed my shorts.

Q. How did he remove your shorts Madam Witness, will you please demonstrate to us?

A. When I was standing, he suddenly pulled down my shorts and then suddenly, he drew his panabas and pointed it to me.

x x x

Q. And after your grandfather pulled down your shorts with garter, will you demonstrate to us the other things that happened?

A. He just told me to lie down and when I asked him what is he doing, he just replied just lie down and I was then crying.

x x x

Q. x x x, when you lied down, where was your grandfather Sergio Abon?

A. He went on top of me, sir.

x x x

Q. Now, what was the appearance of your grandfather when he went on top of you?

A. He touched my breasts, sir.

Q. Was that the only thing he did to you, Madam Witness?

A. He then told me to hold his penis.

Q. Did you touch his penis, Madam Witness?

A. I did not touch his penis, sir. But he placed his panabas on my neck, forcing me to hold his penis.

x x x

Q.       And when your grandfather went on top of you, what did he tell you while he was on top of you?

A. He told me not to tell to anybody what happened or else he threatened that my brother and I will be kicked out of his house.

x x x.10cräläwvirtualibräry

Certainly, a rape victims testimony is entitled to great weight especially when she accuses a close relative of having ravished her.11 For there can be ascribed no greater motivation for a woman abused by her own kin than that innate yearning of the human spirit to declare the truth to obtain justice.12cräläwvirtualibräry

However, appellant insists that he could not have committed the crime considering that Charito admitted during the cross-examination that she stayed with her aunt Remedios Novido in Manila from December, 1994 up to March, 1995, in effect negating the trial courts finding that she was sexually abused by appellant at Binalonan, Pangasinan sometime in January, 1995.

The exact time or date of the commission of rape is not an element of the crime. What is decisive is that the commission of rape by the accused has been sufficiently proved. Inconsistencies and discrepancies as to minor matters irrelevant to the elements of the crime cannot be considered grounds for acquittal.13 In this case, the alleged inconsistency in Charitos testimony regarding the exact date and place of the commission of rape does not impair her credibility.

In fact, no less than Alexander, Charitos brother, testified categorically that he saw appellant having sexual intercourse with his sister on the day in question, thus:

x x x

Q. Do you recall of any incident that happened to your sister Charito Abon sometime in January 1995?

A. Yes, sir.

Q. What was that incident that happened to your sister?

A. She was raped, sir.

Q. You said your sister Charito Abon was raped, who raped her?

A. Sergio Abon, sir.

Q. You claimed that your sister Charito Abon was raped by the accused Sergio Abon, where did Sergio Abon rape your sister?

A. At the back of our house, sir.

Q. What time did the accused rape your sister?

A. In the afternoon, sir.

Q. You said your sister was raped at the back of your house, where in particular in that place?

A. Near the place where we are taking rice, sir.

Q. Where were you at the time when Charito Abon was being raped by the accused Sergio Abon?

A. I was at the mango tree, sir.

Q. Why were you at the mango tree at that time?

A. I was hiding, sir.

Q. How far is that mango tree where you were hiding to the place where your sister Charito Abon was raped by the accused?

A. Maybe at the door of the courtroom from the witness stand [witness indicating a distance of more or less eight (8) meters].

x x x

Q. You said you witnessed the incident, will you tell us how Sergio Abon raped your sister Charito Abon?

A. When Sergio Abon asked me to buy cigarette I heeded his order and I bought cigarette and upon returning l saw Sergio Abon on top of my sister, so I hid behind the mango tree because I was afraid to go near them, sir.

Q. What was the physical appearance of Sergio Abon when he was raping your sister Charito Abon?

A. He was naked, sir.

Q. How about your sister?

A. She was naked too, sir.

Q. When you saw the accused Sergio Abon naked and you also saw your sister naked what did Sergio Abon do to your sister?

A. She was raping my sister, sir. He was having sex with my sister, sir.

Q. How did your grandfather have sex with your sister? Was your sister lying down at the time when she was being raped by your grandfather, the accused?

A. Yes, sir.

Q. And when you said Sergio Abon had sex with your sister, the accused was on top of your sister?

A. Yes, sir.

Q. How many times did your grandfather Sergio Abon rape your sister?

A. Only one time, sir.

xxx.14cräläwvirtualibräry

But appellant discredits the above testimony because Alexander retracted. A mere retraction by a prosecution witness does not necessarily vitiate the original testimony if credible.15 The rationale for the rule is obvious: Affidavits of retraction can easily be secured from witnesses, usually through intimidation or for a monetary consideration. Moreover, recanted testimony is exceedingly unreliable. There is always the probability that it will later be repudiated.16cräläwvirtualibräry

On appellants contention that the results of the physical examination on Charito belie the charge that the crime was committed sometime in January, 1995, suffice it to state that Dr. Obedoza, emphatically testified that the old healed hymenal lacerations were more than two to three weeks old17 from the date of examination.

The alleged ulterior motive of Charito in testifying against his grandfather also deserves scant consideration. As correctly observed by the Solicitor General:

Appellant argues that Charito filed a rape complaint against him because of ill feelings, hatred and jealousy against him and his wife who tried to discipline her to be a good child, but Charito however, refused to be disciplined and was stubborn and hard-headed.

x x x

Even when consumed with revenge, it takes a certain amount of psychological depravity for a young woman to concoct a story of defloration, which would put her grandfathers liberty and life in peril and drag herself to a lifetime of shame. (People vs. Sangil, 276 SCRA 532; People vs. Silvano, G.R. No. 127356, June 29, 1999).18cräläwvirtualibräry

Appellant also submits that the unreasonable delay of 240 days or 8 months in reporting the rape incident to the authorities evinces that the charge is a mere fabrication.

We are not convinced. The Solicitor General prudently observed:

When the rape happened, Charito was a 13-year old unsophisticated barrio lass who was living with appellant and dependent upon him for support. At first, she admitted the commission of the rape to Alexander when the latter confronted her. The morning after the rape incident, she revealed the same to her grandmother, wife of appellant, but her grandmother would not believe her.

After Charito fled her grandparents house, she reported the rape to her aunt, Cristeta Bayno, who immediately accompanied her to the police authorities and to a physician for gynecological examination.

Considering the foregoing, there was therefore no unreasonable delay in revealing the molestation to the police authorities. Charito immediately reported the same to a relative (grandmother) who did not mind the same probably because of the scandal it might create. The delay in reporting the matter to the police was caused by the grandmothers refusal to believe Charitos account of rape. Indeed, it would be quite unnatural for a 13-year old unsophisticated barrio lass to go straight to the police authorities to reveal the defloration which her grandfather did to her.

And so, complainants delay in divulging what she knows, such as the identity of the offender, is not by itself a setback to the probative value of her testimony.19 To reiterate, what is important is that there is nothing to indicate that Charito had any improper motive to implicate appellant. Here, a young girls revelation that she had been raped, coupled by her voluntary submission to medical examination and willingness to undergo public trial where she gave out the details of the assault on her dignity, cannot be easily dismissed as mere concoction.

In People vs. Ocumen,20 we emphasized that the qualifying circumstances of minority and relationship must concur. As these circumstances, if proven, raise the penalty of the crime to death, great caution must be exercised in their evaluation. For these circumstances to be appreciated, both must be specifically alleged in the Information and duly proved during the trial with equal certainty as the crime itself.

Here, it is undisputed that the minority of the victim - that she was 13 years old when she was raped in January 1995 - and appellants relationship with the victim - that he is complainants grandfather - have been alleged in the Information.

But, were these qualifying circumstances of minority and relationship sufficiently established during the trial?

The prosecution has duly established that appellant is the grandfather of Charito.21 The appellant himself, in his direct testimony, categorically admitted that Charito is his granddaughter, she being the daughter of his son Nelson.22cräläwvirtualibräry

However, the prosecution failed to prove that Charito was 13 years old when she was raped. No certificate of live birth or any authentic document was presented and offered in evidence to prove her age. The fact that there was no objection from the defense regarding her age could not be taken against appellant since it is the prosecution that has the burden of proving her age.23cräläwvirtualibräry

Thus, in the absence of sufficient proof of Charitos minority, appellant cannot be convicted of qualified rape and sentenced to suffer the death penalty. He should only be convicted of simple rape and meted the penalty of reclusion perpetua.

As regards the civil liability of appellant, the trial courts award of P50,000.00 as moral and exemplary damages is erroneous.

In line with current jurisprudence, where, as here, the death penalty is not imposed, the victim should be entitled to P50,000.00 as indemnity ex delicto. Such award is mandatory upon the finding of the fact of rape.24 We likewise award the victim moral damages which is fixed at P50,000.00 without need of pleading or proof of basis thereof.25 In addition, exemplary damages of P25,000.00 is awarded to deter grandfathers with aberrant sexual behavior.26cräläwvirtualibräry

WHEREFORE, the Decision of the Regional Trial Court, Branch 47, Urdaneta, Pangasinan, in Criminal Case No. U-8671, is hereby AFFIRMED with MODIFICATION in the sense that appellant Sergio Abon y Esteban is found guilty beyond reasonable doubt of simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the victim, Charito L. Abon, P50,000.00 as civil indemnity; P50,000.00 as moral damages; and P25,000.00 as exemplary damages.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Ynares-Santiago, J., on official leave.

Corona, J., on leave.



Endnotes:

1 Penned by Judge Meliton G. Emuslan.

2 Rollo at 15.

3 Transcript of Stenographic Notes (TSN), March 13, 1996 at 4.

4 Exhibit C, TSN, June 17, 1996 at 10-11.

5 Rollo at 36.

6 An Act To Impose The Death Penalty On Certain Heinous Crimes, Amending For That Purpose The Revised Penal Code, As Amended, Other Special Penal Laws, And For Other Purposes, which took effect on December 31, 1993.

7 People vs. Ruben Dalisay, G.R. No. 133926, August 6, 2003, citing People vs. Agustin, 365 SCRA 667 (2001).

8 TSN, March 6, 1996 at 3-10.

9 TSN, March 13, 1996 at 1-3.

10 TSN, April 29, 1996 at 10-18.

11 People vs. Ruben Dalisay, supra at 14, citing People vs. Sagarino, 364 SCRA 438 (2001).

12 Id.

14 TSN, January 29, 1996 at 5-9.

15 Virgilio Santos vs. People, G.R. No. 147615, January 20, 2003, citing People vs. Dulay, 217 SCRA 103 (1993).

16 Id., citing Lopez vs. Court of Appeals, 239 SCRA 562 (1994).

17 TSN, June 17, 1996 at 24.

18 Appellees Brief, Rollo at 252-253.

20 G.R. No. 135559, September 17, 2003, citing People vs. Padilla, 355 SCRA 741 (2001).

21 TSN, March 6, 1996 at 3; January 29, 1996 at 4.

22 TSN, November 14, 1996 at 7-8.

23 People vs. Ruben Dalisay, supra at 18.

24 People vs. Escano, G.R. Nos. 140218-23, February 13, 2002; People vs. Arizapa, G.R. No. 131814, March 15, 2000, 328 SCRA 214.

26 People vs. Ruben Dalisay, supra at 19, citing People vs. Salalima, 363 SCRA 193 (2001) and People vs. Docena, 379 Phil. 903 (2000).




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