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SECOND DIVISION

G.R. No. L-40621 August 21, 1982

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. AQUILINO PADUNAN alias "QUILIN", Accused-Appellant.

&

ABAD SANTOS, J.:

This is an appeal from a decision of the Court of First Instance of La Union, Branch III at Agoo, convicting Aquilino Padunan of the crime of rape. The decision which was promulgated on January 28, 1975, has the following dispositive portion: chanrobles virtual law library

WHEREFORE, the Court finds the accused Aquilino Padunan alias Quilin, guilty beyond reasonable doubt, of the offense of Rape and hereby sentences him to suffer reclusion perpetua (life imprisonment) and pay the costs.

An amended complaint for rape against Aquilino Padunan was filed in the Municipal Court of Caba, La Union, on December 11, 1965, by Estrella Ismael Vallejo. A preliminary investigation, first stage, was conducted by the court but the accused waived the second stage and so the case was elevated to the Court of First Instance. There the following information was filed: chanrobles virtual law library

The undersigned Assistant Provincial Fiscal accuses Aquilino Padunan, alias Quilin of the crime of Rape committed as follows: chanrobles virtual law library

That on or about the 29th of November, 1965, in the Municipality of Caba, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and taking advantage of his superior strength and by means of violence and intimidation, did then and there willfully unlawfully and feloniously have carnal knowledge of the complainant, Estrella Ismael Vallejo against her will and congent.chanroblesvirtualawlibrary chanrobles virtual law library

That in the commission of the crime charged, the following aggravating circumstances were present: chanrobles virtual law library

1. By taking advantage of night time; chanrobles virtual law library

2. That the crime was committed in an uninhabited place;chanrobles virtual law library

3. That the accused was previously convicted for Unjust Vexation in Criminal Case No. 253, Municipal Court of Caba; and chanrobles virtual law library

4. That the accused was previously punished for Theft in Criminal Case No. 359, Municipal Court of Caba.

It is to be noted that while the case was initiated as early as December, 1965, it was decided by the trial court only in January, 1975, or after a lapse of almost ten years. In the meantime, it had gone thru the following judges: Damian L. Jimenez, Arsenio Alcantara, Santiago Ranada, Eliodoro E. Marasigan, Javier Pabalan and Antonio G. Bautista who wrote the decision.chanroblesvirtualawlibrary chanrobles virtual law library

The People's version of the facts is as follows: chanrobles virtual law library

At about 3:00 o'clock in the early morning of November 29, 1965, complainant Estrella Ysmael Vallejo, then 15 years of age, arrived by train from Manila at the railroad station of Caba, La Union (pp. 18-19, t.s.n., Sept. 3, 1970, Trinidad). While waiting for her uncle, Sating Runas, whom she expected would meet her, appellant approached and talked with her (pp. 19, 43, t.s.n., Id.). She knew appellant very well because during her fifth and sixth grades at the Caba Elementary School, she used to see him whenever she passed by his house to get water for her plants in school (p. 58, t.s.n., Id.). Appellant told her that he would escort her home upon instructions of her uncle (pp. 19, 43, t.s.n., Id.) chanrobles virtual law library

Thereafter, appellant carried her baggage and together they proceeded towards her house, passing along the railroad tracks. It was a moonlight night (p. 44, t.s.n., Id.). As they walked, appellant engaged her in a conversation (p. 19, t.s.n., Id.). Afterwards, appellant told her to wait because he was going to urinate, but she continued on her way. Suddenly, appellant grabbed her long hair and wound it around her neck (pp. 19, 47, t.s.n., Id.). She shouted and fought back. She scratched appellant on the face (pp, 47- 49, t.s.n., Id.). Appellant held her hands, twisted them behind her back and then pushed her against the trunk of an acacia tree. Complainant struggled to free herself and kicked appellant. Appellant pushed her face to the ground. With a handkerchief, Exhibit "C", he tied her hands behind her. Then he turned her over, kissed her and mashed her breast (pp. 19-20, 46-47, 50, t.s.n., Id.). Appellant pulled down her panty which was torn in the process. He strapped the panty across her mouth and tied it at the back of her head (pp. 54-55, t.s.n., Id.). Appellant boxed her stomach and thighs several times (pp. 21, 23, t.s.n., Id.). Again, he pushed her to the ground, face up. He lay on top of her, inserted, his penis into her sexual organ and commenced the coital act. She felt pain. Even in her weakened condition, she tried to avoid the appellant. Because her hands were tied behind her back she could hardly move. Her strength began to ebb and her efforts to save her honor failed as the appellant, maddened by his bestial desire, consummated the sexual act (pp. 21-24, 55, t.s.n., Id.). She began to cry.chanroblesvirtualawlibrary chanrobles virtual law library

When appellant stood up he tied her feet with a piece of string and told her not to leave the place, otherwise he would kill her. Her half-slip (Exh. "D") which she wore was smeared with blood (Exh. "D-1 ") (pp. 24-25, 27, 56, 61, t.s.n., Id.). Then appellant ran away (P. 56, t.s.n., Trinidad). Subsequently, complainant was able to untie her feet (p. 28, t.s.n., Id.). She stood up and ran towards the house of her Nana Onang (Balbina Nillusgin), which was about 200 meters away (p. 29, t.s.n., Id.). It was almost half past 3:00 o'clock in the morning. With her panty still strapped across her mouth, she shouted the name of her Nana Onang who was awakened. She related to her how she was abused. Complainant's uncle and an auntie, Mr. Alfonso de Villa and Mrs. Conchita de Villa were immediately informed of the incident (p. 29, t.s.n., Id.) They went to the place where she was sexually assaulted. Complainant found her pair of earrings on the ground. The contents of her paper bag were scattered all over. She also found her overnight bad beside the river some distance away from the crime scene. Two days later, she found her handbag but the contents thereof consisting of P22.00, a nail cutter, a ballpen and other personal effects were missing (p. 30, t.s.n., Id.) chanrobles virtual law library

That same morning (November 29, 1965) complainant, accompanied by her aunt, reported the incident to the Chief of Police of Caba, La Union. During the investigation, she told the Chief of Police that appellant whom she knew as "Mang Quilin, the driver", was the one who abused her (p. 31, t.s.n., Id.). After the investigation, the Chief of Police took her to the Provincial Hospital at San Fernando, La Union.chanroblesvirtualawlibrarychanrobles virtual law library

At the provincial hospital, she was examined by Dr. Rufino Garcia (pp. 33, 39, t.s.n., Id.). Said doctor issued a medical certificate, Exhibit "A", dated December 2, 1965. According to him, the victim suffered fresh lacerations of the hymen at 6 and 7 o'clock, with bleeding on some parts which could have been due to sexual intercourse committed about the time stated by the complainant (pp. 5-6, t.s.n., Aug. 2, 1967, Nisperos).chanroblesvirtualawlibrary chanrobles virtual law library

Several days later, complainant was called to the office of the Chief of Police to Identify her abuser. In the presence of Municipal Judge Jose Salomon, the Chief of Police, appellant's wife, and her auntie, four persons were brought inside the room one after the other for her to Identify. Appellant was not one of them. When the fifth man was brought in, she immediately recognized him as her ravisher In the heat of her anger, she got her slipper and threw it at the appellant (p. 33, t. s.n. Id.). The municipal judge made note of this incident, Exhibit "I" (pp. 69-70, t.s.n., Id.).chanroblesvirtualawlibrary chanrobles virtual law library

As a result of this incident, complainant who was studying in the third year high school, failed to continue her studies because she was ashamed of what had happened to her (p. 34, t.s.n., Id.).chanroblesvirtualawlibrary chanrobles virtual law library

Judge Crispin Peralta, the Municipal Judge of Caba, La Union since 1968, in compliance with the subpoena duces tecum issued by the trial court on the request of the prosecuting fiscal, presented in court certified true copies of the conviction of the appellant in Criminal Case No. 283 for unjust vexation (Exh. "L"). In the latter case appellant was convicted with his co-accused Benjamin Runas (pp. 86, 87, t.s.n., Trinidad). (Brief, pp. 1-5.)

The accused interposed the defense of alibi.chanroblesvirtualawlibrary chanrobles virtual law library

Consuelo Picar Padunan, 42 years old and wife of the appellant, testified on March 24, 1972, in part as follows: chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q - Now on November 29, 1965 at around 3:00 o'clock in the morning, where were you? chanrobles virtual law library

A - I was at home.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Who were with you in your home? chanrobles virtual law library

A - My husband.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Aside from your husband who were with you in the house? chanrobles virtual law library

A - My children.chanroblesvirtualawlibrarychanrobles virtual law library

Q - How many children do you have? chanrobles virtual law library

A - Eleven.chanroblesvirtualawlibrary chanrobles virtual law library

Q - That night you said at 3:00 o'clock your husband was with you, now, before that 3:00 o'clock did you ever see whether your husband leave your house? chanrobles virtual law library

A - No, he did not leave the house.chanroblesvirtualawlibrary chanrobles virtual law library

And on August 28, 1972, she also testified in part as follows: chanrobles virtual law library

Q - Mrs. Padunan, you have already testified that your husband was in your house on November 28, 1965 at around 3:00 o'clock A.M. is that correct? chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Now, before 3:00 A.M. did he ever leave your house? chanrobles virtual law library

A - No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - What is the calling or job of your husband? chanrobles virtual law library

A - He is a driver, chanrobles virtual law library

Q - That day, before 3:00 o'clock in the morning I mean November 28, did he work as a driver?chanrobles virtual law library

A - No sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - What did he do that day? chanrobles virtual law library

A - "nagsinglag" (he made coconut oil)chanrobles virtual law library

Q - How far is your house from the station of Caba?chanrobles virtual law library

A - It's quite far.chanroblesvirtualawlibrary chanrobles virtual law library

Q - How many kilometers? chanrobles virtual law library

A - I do not know how many kilometers.chanroblesvirtualawlibrary chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q - What did your husband do that night of the 28th in your house? chanrobles virtual law library

A - None.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Did he sleep in your house that evening? chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrary chanrobles virtual law library

Q - With whom did he sleep? chanrobles virtual law library

A - We, his family.

The accused who took the witness stand on January 16, 1973, testified in part as follows:

xxx xxx xxxchanrobles virtual law library

Q - On November 29, 1965 at around 3 A.M. do you remember where you were? chanrobles virtual law library

A - Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Where were you at the time? chanrobles virtual law library

A - I was sleeping.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Where were you sleeping?chanrobles virtual law library

A - In my house sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - That 3 o'clock A.M., November 29, 1965 did you go to the railroad station at Caba, La Union? chanrobles virtual law library

A - No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - You were accused here for having raped a certain girl by the name of Estrella Vallejo, have you ever met this girl?chanrobles virtual law library

A - No sir I do not know her.chanroblesvirtualawlibrary chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q - Do you have children? chanrobles virtual law library

A - Plenty of them sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - How many of them? chanrobles virtual law library

A - Thirteen (13).chanroblesvirtualawlibrary chanrobles virtual law library

Q - On that night of November 29, 1965 did you stay with your children? chanrobles virtual law library

A - I was in our house.chanroblesvirtualawlibrary chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

FISCAL: chanrobles virtual law library

Q - Do you remember the railroad station at Caba, La Union? chanrobles virtual law library

A - Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - How far is your house in relation to the railroad station of Caba, La Union? chanrobles virtual law library

A - It is far sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Will you kindly estimate the distance? chanrobles virtual law library

A - Less than one-half (1/2) kilometer.chanroblesvirtualawlibrary chanrobles virtual law library

Q - In relation to the railroad station what direction is your house? chanrobles virtual law library

A - East of the railroad station in Caba.chanroblesvirtualawlibrarychanrobles virtual law library

Q - As a driver could you tell the Court how many minutes more or less will you negotiate from your house to the railroad station? chanrobles virtual law library

A - I could not calculate.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Why could you tell the Court?chanrobles virtual law library

A - I have not tried walking from our house to the railroad station.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Do you mean to tell us that since you are a resident of Caba you have not tried to walk from the railroad station to your house? chanrobles virtual law library

A - I have not.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Could you tell or could you not estimate how many minutes to negotiate that distance?chanrobles virtual law library

A - I could not.

And Mercedes, the daughter of the appellant, who testified on March 29, 1973, said in part the following:

xxx xxx xxxchanrobles virtual law library

Q - Do you know a certain person by the name of Aquilino Padunan?chanrobles virtual law library

A - He is my father.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Now you said you are 17 years old, in the year 1965 do you know more or less what was your age? chanrobles virtual law library

A - 10 years old.chanroblesvirtualawlibrary chanrobles virtual law library

Q - By the way who is your mother? chanrobles virtual law library

A - Consuelo Padunan.chanroblesvirtualawlibrary chanrobles virtual law library

Q - What is the family name of your mother? chanrobles virtual law library

A - Picar.chanroblesvirtualawlibrary chanrobles virtual law library

Q - This Consuelo Picar is she the wife of Aquilino Padunan? chanrobles virtual law library

A - Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - In the night of November 28, 1965, do you remember where you were? chanrobles virtual law library

A - I was at the house.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Who were your companions in your house? chanrobles virtual law library

A - My brothers and sisters, my father and mother.chanroblesvirtualawlibrarychanrobles virtual law library

Q - That night of November 28, 1965, do you know where your father was? chanrobles virtual law library

A - He was inside the house.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Do you knw whether that night when you were sleeping whether when you woke up whether he left the house? chanrobles virtual law library

A - I know he is sleeping because I went to urinate that time.chanroblesvirtualawlibrarychanrobles virtual law library

Q - What time precisely did you go to urinate that night? chanrobles virtual law library

A - Around 2:00 o'clock in the morning.chanroblesvirtualawlibrary chanrobles virtual law library

Q - You said 2:00 o'clock did you hear the passing of the train that night which usually passes Caba to the north that evening? chanrobles virtual law library

A - Yes, sir, because I was then urinating when the train passed.chanroblesvirtualawlibrary chanrobles virtual law library

Q - When you went to urinate did you open your eyes? chanrobles virtual law library

A - Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - That night did you have light in your house? chanrobles virtual law library

A - There was.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Why was there light in your house? chanrobles virtual law library

A - Where my mother and father slept.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Do we understand from you that your father and mother have another room? chanrobles virtual law library

A - There is.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And you, do you sleep with them? chanrobles virtual law library

A - No, sir, we slept side by side.chanroblesvirtualawlibrary chanrobles virtual law library

Q - When you woke up when you went to urinate upon returning did you see your father sleeping there? chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrary chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

Q - So you all slept inside the house in one place? chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrary chanrobles virtual law library

Q - There is no separate room in the house? chanrobles virtual law library

A - There is a room and there is no curtain, you could see outside where my father and mother slept.chanroblesvirtualawlibrarychanrobles virtual law library

Q - That day in the morning do you know if there is somebody who came to your house? chanrobles virtual law library

A - None.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Do you know what happened whether your father was taken by somebody one day after November 28? chanrobles virtual law library

A - After two or three days somebody called my father.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Did you ever ask why your father was taken? chanrobles virtual law library

A - No.

The appellant claims that: chanrobles virtual law library

I. THE LOWER COURT ERRED IN NOT BELIEVING THE ALIBI OF THE ACCUSED-APPELLANT; and, chanrobles virtual law library

II. THE LOWER COURT ERRED IN NOT FINDING THAT THE OFFENSE OF RAPE BY FORCE WAS NOT ESTABLISHED BEYOND REASONABLE DOUBT IN THE CASE AT BAR."

Both assignments of errors are not well-founded.chanroblesvirtualawlibrary chanrobles virtual law library

The appellant's alibi is not worthy of credence. By his own admission his house is less than half a kilometer or less than 500 meters from the Caba railroad station. But Paulino Runas who was the Chief of Police of Caba at the time the complaint against Padunan was filed testified that the distance between the latter's house and the railroad station is only 100 meters. In either case, the two are proximate to each other and the distance can be traversed by a few minutes walk. Accordingly, it was not physically impossible for Padunan to be at the scene of the crime when it was committed. His alibi is manifestly inadequate. For the rule is well-settled that alibi, in order to be given full faith and credit, must be clearly established and must not leave any room for doubt as to its plausibility and verity. (People vs. Sagario, L-18659, June 29, 1965, 14 SCRA 468.) chanrobles virtual law library

The supporting testimony of his wife and daughter are for naught not only because they were naturally biased in his favor but also because he was positively Identified by the complainant as the one who raped her. Thus on September 3, 1970, she testified in part as follows: chanrobles virtual law library

xxx xxx xxxchanrobles virtual law library

ATTY. GENEROSA: chanrobles virtual law library

Q - Will you please tell the Honorable Court where were you on November 29, 1965? chanrobles virtual law library

A - I was at the train station at Caba, La Union.chanroblesvirtualawlibrary chanrobles virtual law library

COURT: chanrobles virtual law library

Q - What time was that? chanrobles virtual law library

A - 3:00 o'clock I was at the railroad station at Caba .chanroblesvirtualawlibrarychanrobles virtual law library

ATTY. GENEROSA: chanrobles virtual law library

Q - How come that you were in the railroad station at that early morning of November 29, 1965 at 3:00 o'clock in the morning? chanrobles virtual law library

A - I alighted from the train coming from Manila. I am expecting a person to meet me.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Then what happened when you said you were expecting a person to meet you?chanrobles virtual law library

A - While I was waiting for that person a man came and he said that he is going to escort me.chanroblesvirtualawlibrarychanrobles virtual law library

Q - What did this man tell you? chanrobles virtual law library

A - He told me that he is going to escort me to my house because the station master who is my uncle told him to meet me and escort me to my house.chanroblesvirtualawlibrarychanrobles virtual law library

Q - And what happened after that man told you to escort you to your house? chanrobles virtual law library

A - After that he took my paper bag which is one of my baggages and the overnight bag and another bag being carried by me then we proceeded to our house.chanroblesvirtualawlibrary chanrobles virtual law library

Q - On your way to your house, will you please tell us what happened? chanrobles virtual law library

A - He was asking me what was my work. I told him I was only a maid working in Manila. Then he told me that he has also a daughter in Manila.chanroblesvirtualawlibrarychanrobles virtual law library

Q - During those conversation what happened next if any? chanrobles virtual law library

A - He said he told me that I will wait for him because he is going to urinate.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And what happened after that? chanrobles virtual law library

A - I keep on walking I did not wait for him.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And while you were walking, what happened next? chanrobles virtual law library

A - While I was walking he suddenly grabbed my hair because my hair was very long.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And what happened? chanrobles virtual law library

A - And he tied my hair to my neck.chanroblesvirtualawlibrary chanrobles virtual law library

Q - You said he, who grabbed your hair, will you please tell? chanrobles virtual law library

A - Mr. Aquilino Padunan.chanroblesvirtualawlibrary chanrobles virtual law library

Q - If he is in Court, will you please point to him? chanrobles virtual law library

A - Witness pointing to the accused Aquilino Padunan, who is in Court.chanroblesvirtualawlibrary chanrobles virtual law library

Q - After Mr. Aquilino Padunan grabbed your hair and tied around your neck, what happened next? chanrobles virtual law library

A - After he has tied my hair on my neck he took hold of my hands and put it on my back.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And after that what happened? chanrobles virtual law library

A - Then he pushed me in a trunk towards an acacia tree.chanroblesvirtualawlibrary chanrobles virtual law library

Q - When he pushed you in that acacia tree, what happened next? chanrobles virtual law library

A - I was struggling against him.chanroblesvirtualawlibrarychanrobles virtual law library

Q - And when you said you were struggling what was Mr. Aquilino Padunan doing at that time? chanrobles virtual law library

A - He pushed me towards the ground face downward and tied my hands with long handkerchief.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And when he tied your hands, what happened next?chanrobles virtual law library

A- Then he turned me upward my back on the ground.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And when Mr. Padunan turned you upward and your back on the ground, what did Mr. Padunan do? chanrobles virtual law library

A - He kissed me and mashed my breast.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And what did you do while Mr. Padunan kissed you and mashed your breast? chanrobles virtual law library

A - I keep on struggling and I keep my face away from him because he is kissing me. chanrobles virtual law library

Q - And while on that situation, what more did Mr. Padunan do to you if there was anything? chanrobles virtual law library

A - He pulled down my panty.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And when you said he pulled down your panty what did you do? chanrobles virtual law library

A - I keep on struggling but I could not move freely because my hands were tied.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And after that what did Mr. Padunan do to you? chanrobles virtual law library

A - He boxed me on my stomach.chanroblesvirtualawlibrary chanrobles virtual law library

Q - How many times did he box you on your stomach? chanrobles virtual law library

A - Several times.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And when he boxed you what did he do more to you? chanrobles virtual law library

A - After that he lay on top of me.chanroblesvirtualawlibrarychanrobles virtual law library

Q - And when he laid on top of you, what did he do? chanrobles virtual law library

A - He inserted his private part into my private part but I could still feel it because I am still half conscious at that time.chanroblesvirtualawlibrary chanrobles virtual law library

Q - When you feel that his penis was on your private part, what did you do? chanrobles virtual law library

A - I wanted to avoid him but I could not move freely because my hands were tied and on that condition I could not move.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And what did you feel if there was any when you said he inserted his private part? chanrobles virtual law library

A - I felt painful.chanroblesvirtualawlibrary chanrobles virtual law library

Q - When you felt the pain, what did you do when you feel the pain? chanrobles virtual law library

A - I forced to move his body away from me because he was still on top of me.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And what happened next? chanrobles virtual law library

A - He was able to have a sexual intercourse with me.

Earlier, on December 3, 1965, there was a confrontation between Estrella and Padunan before Judge Jose A. Solomon of Caba, La Union. In his testimony on October 8, 1970, Judge Solomon narrated the confrontation as follows:

xxx xxx xxxchanrobles virtual law library

Q - On December 3, 1965, do you remember if you were in Caba?chanrobles virtual law library

A - Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And in connection with this case Judge Solomon do you remember if you had conducted a confrontation by the complaining witness Estrella Ismael Vallejo and the accused Aquilino Padunan? chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrary chanrobles virtual law library

Q - If you remember now Judge, do you remember if there was if you reduced into writing your confrontation of yours between the accused and the offended party? chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrary chanrobles virtual law library

Q - If you could see that record, could you still recognize the same?chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Showing to you this note appearing at the back of the affidavit, will you kindly inform the Court what note you had in connection with the confrontation? chanrobles virtual law library

A - This is my notation with respect to the confrontation.chanroblesvirtualawlibrary chanrobles virtual law library

Q - And this signature appearing here Jose A. Solomon, whose signature is that? chanrobles virtual law library

A - My signature.chanroblesvirtualawlibrary chanrobles virtual law library

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FISCAL: chanrobles virtual law library

Q - Who was Identified by the complainant Estrella Ismael Vallejo at the time of the confrontation? chanrobles virtual law library

A - If you please allow me to read the notation and I can answer that.chanroblesvirtualawlibrary chanrobles virtual law library

Q - Yes, read it? chanrobles virtual law library

A - Note: On the morning of December 3, 1965, the wife of the accused requested that the offended party should Identify the accused in person. So, the undersigned asked the Chief of Police to call for the offended party.chanroblesvirtualawlibrary chanrobles virtual law library

That morning in the office of the Chief of Police in the presence of the wife of the accused and the undersigned, the offended party was asked to point out the accused from among several individuals who were brought into the office one by one with the cooperation of the Chief of Police. When the accused, then under detention, was brought inside, the offended party immediately pointed to him as the offender and even hurled her slipper in his direction. Not only that, the offended party cried then and there.chanroblesvirtualawlibrary chanrobles virtual law library

I confirmed the truth of what I have noted and what I have read.

It is contended that rape by force was not established beyond reasonable doubt because Estrella who was then only 15 years old and presumably still a virgin could not have been entered so easily. But as Estrella testified, supra, she could not move freely because her hands were tied and she was boxed several times on the stomach. She also testified that prior to the rape the appellant tore her panty and stuffed it in her mouth. In such a condition she could not be expected to repel her assailant. Hence the facile penetration of her body.chanroblesvirtualawlibrary chanrobles virtual law library

The appellant attempts to attach importance to the fact that "there are certain claims made by her in her testimony which she did not mention in her affidavit (Exh. F)." Thus Estrella testified that she scratched the face of the appellant but did not say so in her statement; she testified that she was boxed on the stomach but nothing was mentioned in the affidavit that she had been boxed.chanroblesvirtualawlibrarychanrobles virtual law library

By their very nature, there can be no complete congruence between the affidavit in support of the complaint for rape and the testimony given during the trial on the merits-the latter is necessarily more extensive because the witness is exposed to questions propounded not only in direct but also in cross-examination and by the court as well. Moreover, as Chief Justice Manuel V. Moran has said: chanrobles virtual law library

There might, indeed, be contradictions between the testimony of some of the witnesses for the prosecution and their affidavits executed prior to the trial of this case, but such contradictions do not materially impair the intrinsic veracity of said witnesses, particularly when they have been satisfactorily explained. Generally, an affidavit is not prepared by the affiant himself. Omissions and misunderstandings by the writer are not infrequent particularly under circumstances of hurry or impatience. For this reason, the infirmity of affidavits as a species of evidence is much a matter of judicial experience. If the contradiction between the testimony of a prosecution witness and his affidavit executed prior to the trial of the case is not satisfactorily explained, the latter should prevail. Written words speak a uniform language. Oral recollection, in turn, could suffer from the treachery of memory or from coloring. (6 Moran, Rules of Court, 1970 ed., pp. 140- 141.)

Be it noted that there are no contradictions between Estrella's affidavit and her oral testimony, there are merely statements made in the latter which were not made in the former.chanroblesvirtualawlibrary chanrobles virtual law library

Rape is penalized under Art. 335 of the Revised Penal Code with reclusion perpetua which is an indivisible penalty. The trial court has correctly stated that, "There being no mitigating circumstance, consideration of the alleged aggravating circumstances has become moot and academic." chanrobles virtual law library

The record does not show that the civil action for damages on account of the rape had been reserved. Accordingly, it is not inappropriate to award moral damages in this case conformably to Art. 2219 of the Civil Code.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the judgment sentencing the appellant to suffer reclusion perpetua is hereby affirmed; the appellant is further adjudged to pay Estrella Ismael Vallejo to the sum of Ten Thousand (P10,000.00) Pesos as moral damages; and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.