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THIRD DIVISION

G.R. No. 106539 July 18, 1995

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. TORTILLANO NAMAYAN, Accused-Appellant.chanrobles virtual law library

FRANCISCO, J.:

Convicted of rape for having carnal knowledge with complainant Margie Pagaygay, a woman deprived of reason and mentally retarded, against her will, by means of violence and intimidation, sometime in March, 1991, in Barangay Giliga-on, Siaton, Negros Oriental, appellant Tortillano Namayan, alias Dodo was sentenced "to suffer the penalty of imprisonment (sic) of reclusion perpetua; to compulsorily acknowledge the child when born as a result of his act; to render support to the same child until he or she attains the age of 21 years; to indemnify the offended party the sum of P30,000.00 and to pay the cost".chanroblesvirtualawlibrarychanrobles virtual law library

Appellant now seeks the reversal of the decision in this appeal assigning as errors the following:

Ichanrobles virtual law library

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF RAPE EVEN THOUGH THERE WAS PHYSICAL IMPOSSIBILITY OF COMMITTING THE SAME, THE ACCUSED BEING DETAINED IN JAIL AT THE TIME OF THE INCIDENT.

IIchanrobles virtual law library

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE AS DEFINED AND PENALIZED UNDER ART. 335 OF THE REVISED PENAL CODE DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. ¹chanrobles virtual law library

This much has been established by the evidence for the prosecution: The complainant, who was twenty years old at the time of the alleged offense, is moderately retarded with a mental age comparable to that of a three to seven year old child. Her mental defect was found to be congenital in nature. She had an impaired judgment and insight and an I.Q. of 25 to 50. She could neither do simple arithmetical solutions nor answer hypothetical questions. She had difficulty remembering dates, times and places. Although she went to school for four years, she was unable to pass Grade 1. ²

Sometime in July, 1991, complainant's mother, Estelita Pagaygay, noticed the bulging stomach and enlarging breasts of complainant. The mother surmised that she was pregnant. On July 30, 1991, she was brought to the Negros Oriental Provincial Hospital. There, Dr. Teresito Orbito examined her and subjected her to an ultra sound examination. She was found to be four to five months pregnant.chanroblesvirtualawlibrarychanrobles virtual law library

Complainant blamed appellant, their long-time neighbor in Barangay Giliga-on, Municipality of Siaton, Negros Oriental, for her condition. She disclosed that appellant raped her on several occasions. In the month of March, 1991, as she was fetching water from an artesian well, appellant suddenly approached her, pulled out a hunting knife and poked it at her neck. At knife's point, she was brought to a banana hill where, sheltered by the clump, appellant undressed her, removed her panty and had intercourse with her. Appellant offered her five pesos but she refused. ³

The incident was subsequently repeated but this time it took place in a bathroom near the artesian well. Appellant who was then taking a bath and in his underwear suddenly pushed complainant who had come to fetch water from the well, to the ground. He removed her underwear and inserted his penis into her vagina while telling her that they were to make a child. This sexual assault was repeated a third time when she was sent by her mother to buy a bottle of beer. Appellant approached complainant with a hunting knife in hand and brought her to a bridge where he again had carnal knowledge with her. ⁴

The appellant simply made a bland denial of his presence at the place, time and date, charged in the information. According to him he could not have committed the alleged crime because he was under detention at the Siaton Municipal Jail, Negros Oriental from February 5, 1991 to April 12, 1991 due to a pending case of illegal discharge of firearms filed against him. On this score, he lays stress on the testimony and certification of Ruben Gadayan in that as the jailer of Siaton, he checks the inmates twice a day, once in the morning and in the afternoon and that the appellant was released only on April 12, 1991 upon an order of Judge Fe Bustamante due to the withdrawal of the case against him. Appellant further harps on the presumption that Gadayan, being a law enforcer, is presumed to have regularly performed his duty. ⁵It appears, in this connection, that appellant was also charged of frustrated murder on November 28, 1990 and the case was provisionally dismissed on January 24, 1991. ⁶

The court cannot repose much reliance on the testimony of Gadayan. No less than Gadayan himself confirmed the fact that his duty is limited to entering into the record the detention prisoners as well as those facing criminal charges. It does not include "guarding of the detainees". Furthermore, some detainees are even allowed to live outside the Municipal Jail upon the discretion of the guard in-charge. Thus:

Q. Mr. Gadayan, you said you are the jailer of Siaton, Negros Oriental. What do you mean by that?chanrobles virtual law library

A. The jailer is the one incharge of the records of the inmates or prisoners.chanroblesvirtualawlibrarychanrobles virtual law library

Q. In short, your duty as a jailer does not include guarding of detainees?chanrobles virtual law library

A. Yes, sir.

xxx xxx xxx

Court:chanrobles virtual law library

Q. Your duty being a jailer is only to take the records of those prisoners and to enter into the police blotter those persons who are to be detained and who are facing criminal charges?chanrobles virtual law library

A. Yes, sir. ⁷

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Q. So you do not know if some detainees are placed by the guard at living out after you check up at 8:00 o'clock in the morning?chanrobles virtual law library

A. I do not know - its up to the outgoing guard to allow him. It depends upon the discretion of the guard. ⁸

Clearly, from the foregoing, Gadayan is not in a position to categorically state that appellant never left his detention cell during the period when the alleged acts of rape were committed. Similarly, his certification (Exhibit "1") merely contains a statement that appellant was a detainee at the municipal jail from February 5, 1991 to April 12, 1991. It does not recite any other details which would duly prove that appellant never left the place during the period of his detention.chanroblesvirtualawlibrarychanrobles virtual law library

At any rate, the presence of the appellant at the time and place essential to the commission of the offense charged has been sufficiently established by the prosecution witnesses Lilian Gomez and Gaudencio Pagaygay who testified as follows:

LILIAN Gomez:chanrobles virtual law library

Q - On March 6, 1991 did you see the accused, your neighbor in
Giliga-on, Siaton, Negros Oriental?chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Where did you see him?chanrobles virtual law library

A - I saw him in sitio Looc, that was fiesta, March 6, 1991, playing "hantak".chanroblesvirtualawlibrarychanrobles virtual law library

Q - Where is this Looc situated?chanrobles virtual law library

A - Half (1/2) kilometer from our barangay.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Looc is part of Giligaon?chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Was there any unusal (sic) incident that happened on March 6, 1991?chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrarychanrobles virtual law library

Q - What was that?chanrobles virtual law library

A - There was a fistfight between him, Tortillano Namayan, and a person by the name of "Bongoy".chanroblesvirtualawlibrarychanrobles virtual law library

Q - The following day after that fistfight, was there any complaint before the office of your mother the barangay captain of barangay Giligaon?chanrobles virtual law library

A - The father-in-law of "Bongoy" reported the matter to my mother.chanroblesvirtualawlibrarychanrobles virtual law library

Q - What was the report about?chanrobles virtual law library

A - About the fighting of "Bongoy" his son-in-law with Tortillano Namayan.chanroblesvirtualawlibrarychanrobles virtual law library

Q - What is the full name of "Bongoy"?chanrobles virtual law library

A - I do not know. They just call him "Bongoy" but the surname is Sarita.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Aside from that incident of March 6, 1991, wherein you saw the accused Tortillano Namayan playing "hantak" and had a fistfight with a certain "Bongoy" Sarita, have you ever seen this Tortillano Namayan in some other dates in the month of March, 1991?chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrarychanrobles virtual law library

Q - In what occasion was that?chanrobles virtual law library

A - Fiesta of barangay Giligaon, March 19, 1991.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Who was with Tortillano Namayan when you saw him during the fiesta of Giligaon on March 19, 1991?chanrobles virtual law library

A - He was alone eating at my Lolo's house in the kitchen.chanroblesvirtualawlibrarychanrobles virtual law library

Q - What time was that?chanrobles virtual law library

A - 11:30 o'clock in the morning.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Did you ever know that this Tortillano Namayan was a detention prisoner in the month of March, 1991?chanrobles virtual law library

A - I heard that he is in prison because he has a case by Mr. Rolando Namayan, but I don't know why he was in Giligaon. ⁹

Gaudencio Pagaygay:chanrobles virtual law library

Q - Do you know the accused in this case, Tortillano Namayan?chanrobles virtual law library

A - I know.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Why do you know him?chanrobles virtual law library

A - Because we are neighbors.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Where?chanrobles virtual law library

A - At Giligaon, Siaton.chanroblesvirtualawlibrarychanrobles virtual law library

Q - How long have you known him before this incident subject matter of this case on March 6, 1991?chanrobles virtual law library

A - I lived there for about twenty (20) years already.chanroblesvirtualawlibrarychanrobles virtual law library

Q - You mean, you have known Tortillano Namayan for twenty (20) years before the time of the incident subject matter of this case?chanrobles virtual law library

A - Yes.chanroblesvirtualawlibrarychanrobles virtual law library

Q - If he is in the courtroom, please point to him?chanrobles virtual law library

A - He is there.chanroblesvirtualawlibrarychanrobles virtual law library

(Witness, Gaudencio Pagaygay pointing to a person sitting on the bench intended for the accused)chanrobles virtual law library

CLERK OF COURT: (Addressing to the person being pointed to by the witness)chanrobles virtual law library

Q - What is your name?chanrobles virtual law library

A - Tortillano Namayan.chanroblesvirtualawlibrarychanrobles virtual law library

FISCAL VERGARA: (Continuation of her direct examination of witness, Gaudencio Pagaygay)chanrobles virtual law library

Q - According to him in his defense, he was detained on March, 1991, at the Siaton municipal jail. Did you see him in Giligaon Siaton, Negros Oriental, on March, 1991?chanrobles virtual law library

A - I saw him because there was a time while I was sitting in my store, he approached me and asked me to play with him "Mahjong".chanroblesvirtualawlibrarychanrobles virtual law library

Q - What date was that if you can remember?chanrobles virtual law library

A - That was March, 1991.chanroblesvirtualawlibrarychanrobles virtual law library

Q - And what time was that when he approached you while you were sitting at your store?chanrobles virtual law library

A - Around 5:00 o'clock in the afternoon.chanroblesvirtualawlibrarychanrobles virtual law library

Q - You testified that he asked you to play "Mahjong" with him. Did you eventually play "Mahjong" with him?chanrobles virtual law library

A - We played "Mahjong" at that time.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Until what time was that?chanrobles virtual law library

A - We played only one (1) game because he had no more money to pay. He did not pay me anymore the bet.chanroblesvirtualawlibrarychanrobles virtual law library

Q - How much did he owe you?chanrobles virtual law library

A - P6.00.chanroblesvirtualawlibrarychanrobles virtual law library

Q - After March 9, 1991, did you see again Tortillano Namayan the accused in this case?chanrobles virtual law library

A - I saw him dancing.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Where?chanrobles virtual law library

A - Dance hall.chanroblesvirtualawlibrarychanrobles virtual law library

Q - Dancing hall of where?chanrobles virtual law library

A - Giligaon.chanroblesvirtualawlibrarychanrobles virtual law library

Q - When?chanrobles virtual law library

A - Fiesta.chanroblesvirtualawlibrarychanrobles virtual law library

Q - When was that fiesta of Giligaon?chanrobles virtual law library

A - March 19.chanroblesvirtualawlibrarychanrobles virtual law library

Q - What time did you see him at the dancing hall of Giligaon, Siaton, on March 19, 1991?chanrobles virtual law library

A - About 10:00 o'clock past. ¹⁰

This was unrebutted.chanroblesvirtualawlibrarychanrobles virtual law library

It is worth stressing, in this connection, that alibi is one of the weakest defenses that can be resorted to by an accused, especially if there is direct testimony of an eyewitness duly corroborated by that of another, not only because it is inherently weak and unreliable but also because of the ease of fabricating evidence of alibi and the difficulty of checking or rebutting it. People vs. Estrada, L-261003, January 17, 1968, 22 SCRA 111 was cited in support of such a view. Thus: "No jurisprudence in criminal cases is more settled than the rule that alibi is the weakest of all defenses and that the same should be rejected when the identity of the accused has been sufficiently and positively established by eye witnesses to the crime." Such should be the rule, for as a defense, alibi is easy to concoct. It is not enough to prove that defendant was somewhere else, when the crime was committed, but he must, likewise, demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission. ¹¹

But appellant cautions that the testimony of complainant betrays the normal behavior of a girl whose virtue was threatened. Having allegedly been raped several times, dominated more by fear and ignorance, rather than by reason. In the same manner, it is incredible to believe that she could have fabricated the charges against the accused. The filing of the complaint was impelled by no other reason than to vindicate an offense committed against the victim and her family. It is hard to believe that a rape victim and her family would publicly disclose the incident and thus sully their honor and reputation in the community unless it is true. ¹²

While the evidence shows three acts of rape, there can be prosecution for only one, because the information charges only one offense. ¹³

In any event, whether under paragraph 1 or under paragraph 2 of Article 335 ¹⁴of the Revised Penal Code, appellant's guilt is demonstrated beyond reasonable doubt.chanroblesvirtualawlibrarychanrobles virtual law library

There is no question that the child then being conceived by the complainant resulted from the act of sexual intercourse complained of. As correctly observed by the trial court:

According to the Medical witness, Margie Pagaygay, at the time of examination on July 30, 1991, was found to be pregnant with fetus aging 4 to 5 months old. Based on this (sic) findings, the act or acts of sexual intercourse might have happened during approximately the period of between March 15, 1991 to April 15, 1991, a period of one month before the start of the conception. Even assuming that the accused was released from confinement in jail on April 12, 1991 as contented (sic) by him, yet from April 15, 1991, to July 30, 1991, would be approximately four (4) months after April 12, 1991. Time computation here is not so exact as like any other mathematical computation because coetus (sic) and pregnancy are mysterious acts of nature which only the Great Creator knows with exactitude. Added is the fact that on March 19, 1991, during the fiesta of Barangay Giligaon, Municipality of Siaton, Province of Negros Oriental, Lilian Gomez, a prosecution rebuttal witness saw the accused Tortillano Namayan in the said place playing "jantac" a game of chance played by means of tossing up coins. Besides, the alleged charge for which the accused Tortillano Namayan claims he had been detained is not serious and only requires minimum security risks if ever he was detained from February, 1991 to April 12, 1991. Therefore, the oral rebuttal testimony furnished by Lilian Gomez for the prosecution is credit worthy. ¹⁵chanrobles virtual law library

Compulsory acknowledgment, as well as the support of the child is indeed proper there being no legal impediment in doing so, as it appears that complainant and appellant are both single. The crime of rape committed by the accused carries with it, among others, the obligations to acknowledge the offspring if the character of its origin does not prevent it and to support the same. ¹⁶

WHEREFORE, the judgment appealed from is hereby AFFIRMED, modified only as far as the award of damages is concerned, which is increased to FORTY THOUSAND PESOS (P40,000) in line with current jurisprudence. ¹⁷

SO ORDERED.

Feliciano, Romero, Melo and Vitug, JJ., concur.

1 Brief for the Appellant, p. 1; Rollo, p. 23.chanrobles virtual law library

2 Decision, p. 2; Psychiatric Evaluation, Exhibit "A"; TSN, pp. 3-7.chanrobles virtual law library

3 TSN, pp. 5-6, Hearing of November 19, 1991.chanrobles virtual law library

4 TSN, pp. 6-8, Hearing of November 19, 1991.chanrobles virtual law library

5 TSN, p. 8, Hearing of November 28, 1991.chanrobles virtual law library

6 TSN, p. 4, Hearing of December 10, 1991.chanrobles virtual law library

7 Appellee's Brief, pp. 9-10, citing TSN, R. Gadayan, December 10, 1991,
pp. 11, 13.chanrobles virtual law library

8 Id., p. 10, citing TSN, R. Gadayan, December 10, 1991, p. 16.chanrobles virtual law library

9 TSN, pp. 4-6, Hearing of January 8, 1992.chanrobles virtual law library

10 TSN, pp. 14-16, Id.chanrobles virtual law library

11 People vs. Brioso, G.R. No. L-28482, January 30, 1971; 37 SCRA 336.
See also "People vs. Umali", G.R. No. 76530, March 1, 1995; "People vs. Morin", G.R. No. 101794, February 24, 1995.chanrobles virtual law library

12 People vs. Robles, 170 SCRA 557.chanrobles virtual law library

13 People vs. Coral, Matilde, Jr. vs. Jabson, 68 SCRA 456; People vs. Robles,
170 SCRA 557; People vs. Joya, 227 SCRA 9.chanroblesvirtualawlibrarychanrobles virtual law library

14 xxx xxx xxx

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

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15 RTC Decision, pp. 2-3; Rollo, pp. 13-14.chanrobles virtual law library

16 People vs. Luchico, 49 Phil. 689, 698.chanrobles virtual law library

17 People vs. Antonio, 233 SCRA 283.