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^{DISSENTING OPINION}

VITUG, J.:

The life of the accused in this case literally has hanged by the thread until fate has decreed that his life is to be spared from an impending execution, ironically in the case at bench, through a perceived lapse on the part of the prosecution.

With due respect, I cannot join my colleagues in absolving the accused from the crime of rape.

The question of whether or not a person may be convicted for the commission of an offense depends on whether or not there is, in the mind of the court, moral certainty that a crime has been done and that the accused is the person who has committed it. In my view, these requirements have been sufficiently met in the case before the Court. The fact of rape has been established and the identity of the perpetrator has been duly proven, as so adverted to in both the testimony of the complainant before the trial court and the police investigation report. I give in to the statement that the questions propounded by the judge and the answer given during the preliminary investigation which could have clinched the case for the prosecution have been rightly discarded for not having been referred to in the testimony of the complainant. Nevertheless the evidence on hand, I still submit, can be held sufficient to establish the guilt beyond reasonable doubt of accused-appellant.

The initiatory complaint, signed by Analyn C. Masalihit and filed with the 2nd Municipal Circuit Trial Court ("MCTC") of Silang-Amadeo, Cavite, on 08 June 1994, Charged the accused with the crime of rape, briefly described to have been committed, as follows:

"That on or about 1:00 o'clock in the morning at the 1st day of January 1994 at the house of Cesar Masalihit at Phase IV-B, Bgy. Ipil III, Municipality of Silang, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court the above-named accused by means of force, violence and intimidation did then and there, wilfully, unlawfully and feloniously abuse, ravish and have carnal knowledge with one Analyn Masalihit against her will and without her consent to the moral damage as may be awarded to her."¹cräläwvirtualibräry

Finding probable cause for the commission of the offense, the MCTC forwarded the case to the Office of the Provincial Prosecutor of Cavite for appropriate action. On 10 October 1994, the Assistant Provincial Prosecutor filed with the Regional Trial Court the corresponding information. Arraigned, the accused pleaded, "not guilty," to the charge. The presentation of evidence by the prosecution and by the defense followed shortly thereafter.

His Honor, Judge Eleuterio F. Guerrero, after reciting his evaluation of the evidence, found for the prosecution; he concluded:

"WHEREFORE, this Court finds the accused CESAR MASALIHIT Y MONDIDO 'GUILTY' beyond reasonable doubt as principal of the crime of rape, defined and penalized under paragraph 1 of Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, and there being proven the aggravating circumstance of relationship with the complainant without any mitigating circumstance to offset the same, hereby sentences him to suffer the penalty of DEATH to be executed on a date to be set for such purpose by the authorities in accordance with law; to pay the offended party, Analyn Masalihit, the amount of P50,000.00 by way of indemnity, P25,000.00; as moral damages, and P25,000.00, as exemplary damages, without subsidiary imprisonment in case of insolvency in view of the penalty imposed upon the accused, and to pay the costs."²cräläwvirtualibräry

The Solicitor General, who has recommended an affirmance in toto of the judgment of conviction, summarizes the prosecution's factual version of the case.

"It was about an hour past midnight of January 1, 1994 when the smoke from the firecrackers had hardly cleared and the noise that usually welcomed the new year had almost died out. Sleeping at their house in Bulihan in Silang, Cavite, was fourteen-year old Analyn Masalihit, private complainant herein. Beside her slept Angelo Masalihit, her eleven-year old brother. There was nobody else at home with them when they went to bed. Their neighbor, Ate Pilar, who usually accompanied them at home, joined her family and slept in her house as it was New Year. Their father, appellant, was then in a drinking spree just outside the house while their mother, who is separated from appellant, lived in Imus, Cavite. (TSN, May 16, 1995, pp. 3-5, 11-15)

"While private complainant was sleeping, she was suddenly roused by a distinct feeling that her private parts were being wiped. She also felt something heavy on top of her, like there was somebody on top of her. Sure enough, when private complainant woke up completely she saw that it was her father. Appellant quietly pulled up his shorts and left the house. At this point, private complainant noticed that her panty had been lowered. Filled with fright and shock after realizing that something unthinkable had just happened to her, that of being ravished by her own father, private complainant immediately stood up and ran to one corner of the house and there stayed speechless. (TSN, May 16, 1995, pp. 6, 18-20)

"Subsequent to the above incident, private complainant felt pain in her private parts which she had to endure for a few days thereafter. It took longer still for her to break her self-imposed silence and muster the courage to tell her mother or anybody about her traumatic and horrifying experience because of fear that, just like from what she has read in the newspapers about how some fathers raped and killed their daughters, she would end up with the same fate. It was only the greater fear of again being sexually abused by appellant which prompted private complainant to later tell her mother and grandmother regarding appellant's assault of her (private complainant) virtue. In the meantime, however, private complainat slept in their house only when her father was not around; otherwise, she would stay in the adjacent house of her aunt. (TSN, May 16, 1995, pp. 6-8, 20-21)

"On May 27, 1994, private complainant submitted herself for medical examination. The examining physician, Dr. Godwyn Bernardo, rural health doctor assigned in Imus, Cavite, found three (3) hymenal lacerations which were almost completely healed, and which he explained may have been caused by the penetration of a blunt object or a male organ. (TSN, June 7, 1995, pp. 8, 15-18, 26; Exhibit C, medical certificate)."³cräläwvirtualibräry

In any review of a decisionof a trial court convicting an accused of rape, the Court is guided by the now accepted norms (a) that an accusation for rape can easily be made, and, although rape may not be easy to prove, it is, however, even more difficult to disprove; (b) that since the crime, by its very nature, would generally involve only the offender and the victim, great care must be exercised in scrutinizing the testimony of the complainant; and (c) that the case for the prosecution must depend on the merits of its own evidence and not be allowed to draw strength form the weakness of the defense.⁴ All these, the Court observes each time with deep sense of responsibility and duty and, when confronted particulary by a death penalty situation, it spares neither time nor effort in the review process in order to ensure that nothing of substance is missed that might yet point to the innocence of the accused. The Court is certainly beholden to the sanctity of human life and constantly mindful that no punishment can be graver than a sentence to terminate that life. Like in previous cases, the Court, still coming to grips with yet another unfortunate saga, must exercise the greatest circumspection in passing upon its verdict.

The defense deplores the long interval of over five months between the alleged commission of the rape on 01 January 1994 and the filing of the complaint on 08 June 1994. Perhaps it could have indeed been sooner than actually done but it is not really all that strange that an offended party in a rape case procrastinates in coming up with a complaint to the authorities.⁵ Strong apprehensions, brought about by fear, stress, or anxiety can easily put the offended party, as well as her family, to doubt, suspicion or even distrust on what should otherwise ba a positive attitude of bringing the culprit to justice. The Court has thus heretofore considered justified the filing of complaints for rape months, even years, after the commission of the offense. In People vs. Malagar,⁶ the Court has observed:

"Vacillation in the filing of complaints by rape victims is not an uncommon phenomenon. This crime is normally accompanied by the rapist's threat on the victim's life, and the fear can last for quite a while. There is also the natural reluctance of a woman to admit her sullied chastity, accepting thereby all the stigma it leaves, and to then expose herself to the morbid curiosity of the public whom she may likely perceive, rightly or wrongly, to be more interested in the prurient details of the ravishment than in her vindication and the punishment of the rapist. In People vs. Coloma [222 SCRA 255] we have even considered an 8-year delay in reporting the long history of rape by the victim's father as understandable and so not enough to render incredible the complaint of a 13-year old daughter."⁷cräläwvirtualibräry

The trial court, in my view, aptly brushed aside the claim that the complaint had been ill-motivated. Said the court:

"As to the claim of the accused that the instant charge was inspired by his father-in-law and estranged wife, such an excuse is too lame to be legally accepted as true by the Court. On the contrary, the Court, taking into account the relationship between accused and complainant as father and daughter to each other, is more inclined to accept the view that complainant had no ulterior motive to fabricate a story of rape against her own father, filed a complaint in the instant case and expose herself and her family to public ridicule in denouncing the accused, her own father, for such rape."⁸cräläwvirtualibräry

Verily, it would be unthinkable for a daughter to accuse her own father,⁹ submit herslf for examination of her most intimate parts, put her life to public scrutiny, and expose her, along with her family, to likely shame, pity or even ridicule,¹⁰ not jutst for a simple offense but for a crime so serious that could mean a death sentence on the very person to whom she owes her life. How such a young woman could accept all these consequences, if not truly for truth and justice, is beyond me. Neither can I accept the theory that accused-appellant has been wrongly charged simply to vindicate Merlinda Masalihit, mother of Analyn, with whom accused-appellant has had a "serious quarrel" prior to the alleged incident. A mother scarcely would sacrifice her own daughter to public trial if her motive were otherwise than to have the culprit punished.¹¹cräläwvirtualibräry

Quite telling of all, of course, is the testimony of the young victim herself, hereunder quoted, in petinent parts, thus:

"FISCAL VELAZCO:

Now, on the firt day of January, about one o'clock in th morning, January 1, 1994, also at 1:00 o'clock in the morniing, do you recall of any incident tha occurred?

"A Yes, sir.

"Q What was that unusual incident?

"A I was raped by my father , sir.

"x x x

Q" Do you understand what is the meaning of rape?

"A Yes, sir.

"Q What do you understand by rape?

"A Being raped by person, sir.

"Q Now, who raped you?

"A My father, sir.

"Q You mean the accused.

"A Yes, sir.

"Q Please tell the Honorable Court how you were raped by your father, if you still recall?

"WITNESS:

I was then sleeping when I woke up, I felt that there was something heavy abve me, and I sensed that there was a person on top of me, sir.

"x x x

"Q Now, what about your father. What was he doing when you first noticed him up on top of you?

"A When I noticed him, I suddenly stood up, sir.

"Q How about you? After you stood up did you feel something?

"A Yes, sir.

"Q What did you feel?

"A I felt on my private organs, sir."

The above narration, coupled with the statement she gave during the police investigation, i.e., that "(n)aisakatuparan niya (referring to her father) ang makamundong pagnanasa," which has formed part of her testimony, leaves no room for doubt in my mind of accused-appellant's guilt. At all events, when a young woman of fourteen years of age states that she has been "raped," common sense tells me that it is all that should be needed to prove that her honor, indeed, has been violated in a manner that the law prescribes.

Nor can the sexual assault on Analyn be really disputed. The medical report prepared by Dr. Godwyn N. Bernardo, rural health physician in Imus, Cavite, indicates that Analyn has suffered a lacerated and raptured hymen; viz:.

"EXT: Normal looking, pubescent perineal area (-) lacerations

INT: Speculum examination not done (upon patients

request)

Hymen with healed laceration.

Lacerations observed at 11:00 o'clock, 7:00

o'clock, 5:00 o'clock

DX: Hymen, Ruptured membrane."¹²cräläwvirtualibräry

The offense charged in this case is punishable, under Article 335 of the Revised Penal code, as amended by Section 11 of Republic Act No. 7659,¹³ by terminating the life of the accused.

I take the opportunity to strongly urge a prompt re-examination of the death penalty law. The determination of when to prescribe the death penalty lies, in the initial instance, with the law-making authority, the Congress of the Philippines, subject to the conditions that the Constitution itself has set forth; viz: (1) That there must be compelling reasons to justify the imposition of the death penalty; and (2) That the capital offense must involve a heinous crime. It appears to me that the fundamental law did not contemplate a simple "reimposition" of the death penalty to offenses theretofore already provided in the Revised Penal Code or, let alone, just because of it. The term "compelling reasons" would indicate that there must first be a marked change in the milieu from that which has prevailed at the time of adoption of the 1987 Constitution, on the one hand, to that which exists at the enactment of the statute prescribing the death penalty, upon the other hand, that would make it distinctively inexorable to allow the re-imposition of the death penalty. Most importantly, the circumstances that would characterize the "heinous nature" of the crime and make it so exceptionally offensive as to warrant the death penalty must be spelled out with great clarity in the law albeit without necessarily precluding the Court from exercising its power of judicial review given the circumstances of each case. To venture, in the case of murder, the crime could become "heinous" within the Constitutional concept when, to exemplify, the victim is unnecessarily subjected to a painful and excruciating death or, in the crime of rape when the offended party is callously humiliated or even brutally killed by the accused. The indiscriminate imposition of the death penalty could somehow constrain courts to apply, perhaps without consciously meaning to, stringent standards for conviction, not too unlikely beyond what might normally be required in criminal cases, that can, in fact, result in undue exculpation of offenders to the great prejudice of victims and society.

I vote for the affirmance of the trial court's decision convicting the accused for the crime of rape but I would strongly urge a re-examination by Congress of the propriety and wisdom of the law in the imposition of the death penalty.

Endnotes:

---

¹ Ibid.

² Ibid., p. 20.

³ Brief for Plaintiff-Appellee, pp. 2-5.

⁴ People v. Tacipit, 242 SCRA 241; People v. Sanchez, 250 SCRA 14.

⁵ People v. Montefalcon, 243 SCRA 617.

⁶ 238 SCRA 512.

⁷ At p. 521.

⁸ Rollo, p. 18.

⁹ People v. Lao, 249 SCRA 137.

¹⁰ People v. Bantisil, 249 SCRA 367.

¹¹ People v. Tabao, 240 SCRA 758.

¹² Records, p. 3.

¹³ The amendatory law, Republic Act No. 7659, became effective on 31 December 1993 (People v. Godoy, 250 SCRA 676). The more recent enactment, Republic Act No. 8353, entitled "AN ACT EXPANDING THE DEFINITION OF THE CRIME OF RAPE, RECLASSIFYING THE SAME AS A CRIME AGAINST PERSONS, AMENDING FOR THE PURPOSE ACT NO. 3815, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE, AND FOR OTHER PURPOSES," being neither favorable nor unfavorable to the accused, is inconsequential in this instance.