PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ERNESTO MARCELO, Accused-Appellant.
D E C I S I O N
In separate criminal complaints, Ernesto Marcelo was charged with three counts of rape; viz:
CRIM. CASE NO. Q-93-51490
That on or about the 11th day of March 1993, in Quezon City, Philippines, the above-named accused, by means of force and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, JOSEFINA P. CANTILLO, a minor, seven (7) years of age, all done against her will and without her consent, to the damage and prejudice of the said offended party.
CONTRARY TO LAW.
CRIM. CASE NO. Q-93-51491
That on or about the 10th day of March 1993, in Quezon City, Philippines, the above-named accused, by means of force and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, JOSEFINA P. CANTILLO, a minor, seven (7) years of age, all done against her will and without her consent, to the damage and prejudice of the said offended party.
CONTRARY TO LAW.
CRIM. CASE NO. Q-93-51492
That on or about the 6th day of March 1993, in Quezon City, Philippines, the above-named accused, by means of force and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, JOSEFINA P. CANTILLO, a minor, seven (7) years of age, all done against her will and without her consent, to the damage and prejudice of the said offended party.
"CONTRARY TO LAW."1
When arraigned, the accused pleaded not guilty to the commission of the crimes charged. Trial thereupon ensued.
The inculpatory facts presented by the prosecution were narrated by the Regional Trial Court of Quezon City, Branch 81, which tried the case. Briefly
In October 1992, Carmelita Cantillo, then a 38 year-old widow, went to live in a small rented room in Block 16, Lot 11, St. Peter Street, Villanova Subdivision, Novaliches, Quezon City, together with her two daughters, six-year old Josefina and two-year old Jaezel. Not far from where Carmelita and her two daughters resided was a small sari-sari store owned by accused Ernesto Marcelo which also doubled as his residence. Every now and then Carmelita would buy certain store items from the accused. Josefina would usually drop by at the store after her classes to get some snacks. On these occasions, the accused Marcelo would now and then hand free candy items to Josefina and her younger sister Jaezel. This show of generosity and accommodating attitude on the part of the accused led Carmelita to look up to him as a kind person and to regard him as a family friend. Josefina and Jaezel, at his prodding, even learned to call him Papa or Daddy.
Carmelita testified that she and her two daughters were in the store of the accused in the morning of 05 March 1993 when Che-che, the daughter of the accused, had suggested that Josefina and Jaezel could make it a point to stay awhile at the store after school classes or whenever they would be free so that they could play with her brother, Claver. The following morning of 06 March 1993, a Saturday, at about eleven oclock, Josefina and Jaezel went to the store. In the afternoon, at about two oclock, Carmelita herself dropped by to personally entrust her daughters to the care of the accused. She told Marcelo that she was going to do some washing in Marikina and that she would only be able to fetch her two daughters the following Monday. At around noon of Monday, 08 March 1993, Carmelita came to fetch Josefina and Jaezel and to bring Josefina, who was suffering from primary complex, to Caritas Clinic in Pandacan, Manila, for a medical check-up. At the clinic, Josefina told her mother that she would feel pain in her vagina whenever she urinated. Carmelita, however, did not attach too much importance to it. In the evening of the following day of 09 March 1993, Carmelita noticed for the first time that Josefina would insert her hand inside her panty to keep it from touching her vagina. The next two succeeding days, 10 and 11 March 1993, saw Carmelita leaving Josefina after school with the accused and then fetching her later in the day. In the early evening of 12 March 1993, Carmelita again noticed Josefina inserting her hand inside her panty to keep it from touching her vagina. She had a feeling that something untoward had happened to Josefina but she refused to imagine that Marcelo would be capable of doing any dastardly act to her daughter. At home in the evening of 13 March 1993, Carmelita once more noticed the strange behavior of Josefina. Carmelita finally confronted Josefina. The latter thereupon admitted that on several occasions when she was in the store of the accused, the latter would ask her to play and then he would insert his finger and later his penis inside her vagina. Josefinas graphic description of these incidents was Ipinapasok po niya ang titi niya sa pepe ko.2cräläwvirtualibräry
An alarmed and nervous Carmelita repaired to the City Hall in Novaliches and sought the help of a social worker who after interviewing Carmelita and Josefina, referred the matter to the Quezon City General Hospital which, in turn, endorsed the case to Camp Crame. On 16 March 1993, Josefina was examined by Dr. Vladimir Villasenor of the PNP Crime Laboratory.3 His findings revealed that there was a laceration of Josefinas hymen from the edge up to the middle part or about thirty percent (30%) of its entire width. The medico-legal report stated that Josefina had already experienced sexual intercourse and was in a non-virgin state physically.4cräläwvirtualibräry
The defense, through the Public Attorneys Office, gave its version of the case; thus:
ERNESTO MARCELO denied the charges of rape against him. He testified that he first met Carmelita and her two daughters Josefina and Jaezel on March 5, 1993. He was sitting in front of his store when Carmelita and her two (2) daughters passed by. Josefina smiled at him and called him Daddy. He asked Carmelita if the childs father was still alive and Carmelita replied that the childs father is already dead. Their conversation, however, was only for a short while because Carmelita was then bringing Josefina to school. Later in the morning, after Carmelita fetched Josefina from school, the three (3) went directly to his store. Marcelo invited them inside his store and since it was already lunch time, he invited them to have lunch. Carmelita and her two (2) daughters left after one (1) hour.
The following day, March 6, 1993, Carmelita and her two (2) daughters arrived in his store. Carmelita told him that she was going to Marikina to wash clothes and asked his permission to leave her children with him. In answer, he told Carmelita to talk to his daughter Cheryll because it would be Cheryll who will take care of the children. Carmelita then talked to Cheryll who agreed. It was Cheryll and her friend Margarita who took care of the two (2) children. At 6:00 oclock in the evening, he went to the house of his neighbor and compadre Danilo Bautista, located just across the street. He stayed there until 2:00 oclock in the next morning. When he returned to his store, Cheryll and Margarita were still awake and chatting. While Josefina and Jaezel already fast asleep on a bed inside his store. He did not go to sleep anymore.
On March 7, 1993 at about 11:00 to 12:00 noon, Carmelita arrived to fetch her daughters but left only his store at past 6:00 oclock in the evening. After March 7, 1993, Carmelita and her two (2) daughters were in his store almost everyday. (TSN, July 17, 1995, pp. 3-11)
He further testified that his store is just a small one and part of the house they used to own. Since there is no comfort room inside the store, they used the comfort room inside the house at the back of the store. The comfort room was accessible through a door at the end of the stores kitchen. However, when his sister sold the house, the new owner padlocked the door going to the comfort room. Since February 1993 and up to December 1993, he and his family used the comfort room of his neighbor Danilo Bautista located just across the street.
He also admitted that on one occasion he brought Josefina with him to Makati. On the returned trip they took an aircon bus. The bus was then full and it was impossible for him to have caressed and fondled Josefinas private parts as claimed by her. The last time he saw Carmelita and her daughters was towards the end of March 1993 when the latter borrow P1,500.00 from him. (TSN, October 10, 1995, pp. 2-10).
CHERYLL MARCELO testified that on March 6, 1993 at about 9:00 oclock in the morning, Carmelita arrived at their store and asked permission from his father to leave her two (2) children, Josefina and Jaezel, in the store . Her father in turn asked her if Carmelita could leave her children to her which she agreed. The whole day, Josefina and Jaezel played with her brother Claver. In the evening, Josefina and Jaezel slept in the only bed inside the store side by side with her, Claver and her friend Margarita. The following morning at about 11:00 oclock, Josefina and Jaezel were fetched by their mother.
She further testified that their sari-sari store was very small. It has no divider between the store and the bedroom neither has it comfort room inside. When their father sold the house to their present landlady, they had been using the comfort room of their neighbor Danilo Bautista, located just across the street since January, 1993.
She further testified that before her father was charged, Carmelita borrowed money from her father. Her father, however, did not give money to Carmelita and since then she never saw Carmelita and her two (2) daughters again. (TSN, March 13, 1995, pp. 3-13).
DANILO BAUTISTA testified that the accused is his neighbor at Villa Nova Subdivision, Novaliches, Quezon City. He knew the accused since 1990. Since January 1993, he allowed the accused and his family to use the comfort room in his house because there is no comfort room in Marcelos store. Accused Marcelo and his family used his comfort room up to December 1993. (TSN, April 24, 1995, pp. 2-6).5
After the parties had rested their respective propositions, the trial court found for the prosecution on two of the three counts of rape imputed against the accused, thereby sentencing him to suffer two terms of reclusion perpetua and to indemnify the offended party in the amount of P50,000.00 for each count of rape by way of moral damages.
In this appeal, accused assails the judgment of conviction rendered against him and puts up the following assignment of errors:
1. The Court a quo erred in finding accused-appellant guilty beyond reasonable doubt of the crime of two (2) counts of statutory rape defined and penalized under par. 3, Article 335 of the Revised Penal Code and sentencing him to suffer imprisonment for two (2) terms of reclusion perpetua despite the weakness and insufficiency of prosecution evidence.
2. The trial court likewise erred in giving due weight and credible to the testimony of complainant Josefina Cantillo and her mother, Carmelita Cantillo despite its inherent inconsistencies, contradictions and improbabilities which renders their testimonies untruthful.
3. The trial court erred in rejecting accused-appellant defense of denial.6
The defense contends that if it were true that the laceration of the victims hymen has been caused by the insertion of the accused-appellants genital organ into the victims vagina, the laceration of the hymen would not have been merely a shallow laceration from the edge up to the middle part or about thirty percent of its width considering the tender age of the victim.
The Court is not convinced by the above urgings of appellant.
The medical findings of Dr. Vladimir Villasenor would hardly leave room for doubt but that, in fact, there was carnal knowledge of the young victim by appellant. The medico-legal report disclosed these findings by the examining physician:
GENERAL AND EXTRAGENITAL:
Fairly developed, fairly nourished and coherent female child. Breasts are undeveloped. Abdomen is flat and tight.
There is absence of pubic hair. Labia majora are full, convex and coaptated with the light brown labia minora presenting in between. On separating the same is disclosed an elastic, fleshy-type and congested hymen with shallow healed laceration at 9 oclock. External vaginal orifice offers admits the tip of the examining index finger.
Subject is in non-virgin state physically.
There are no external signs of recent application of any form of violence.
Vaginal and peri-urethral smears are negative for gram negative diplococci and for spermatozoa.7
The testimony of Josefina on her harrowing ordeal could not be more vivid than as so testified to by her; thus:
Q Were you and your sister ever left along in the house of Ernesto Marcelo?
A Everytime his children will go to school me and my sister Bing were left behind.
Q Do you remember an instances when the children of the accused Ernesto Marcelo went to school and you were left together with your sister alone in the house of Ernesto Marcelo in that instance did Marcelo ever touch you?
A Sir, before he played with me he closed his store and then he called me to the bed and that he told me that we will play.
Q What happened next when you were already in the bed?
A Sir, he removed my panty.
Q What about your t-shirt did he remove?
A No, sir.
Q After removing your panty what happened next?
A He also removed his brief.
Q After he removed his brief what happened next?
A Sir he placed himself on top of me and he pumped at me and then a fluid came out from his penis.
Q Now, you said that the accused went on top of you and started pumping. Would you describe further how he did pumping you?
A Sir, his body was moving in a pumping condition.
Q Were you hurt when he was pumping?
A Yes, sir.
Q What portion of your body was hurt?
A My vagina, sir.
Q Why was your vagina hurt?
A Sir because he put his penis inside my vagina.
Q How long was he pumping on top of you?
A Sir I cannot remember the duration of his pumping.
Q Now, you said earlier that he inserted his penis in your vagina that is why you were hurt. How did he insert his penis into your vagina?
A Sir at first he held his penis and insert it into my vagina.
Q Did the accused spread your legs?
A Yes sir.
Q Now, you said that you felt pain when he inserted his penis. Did you immediately feel that pain when he immediately entered his penis into your vagina?
A No sir I felt the pain gradually.
Q Was he able to insert his entire penis into your vagina?
A Yes sir.
Q Now, you said that he was pumping you while his penis was inside your vagina and you said earlier that you felt something. What was this something?
A It seems like a fluid was coming out from his penis sir.
Q Now, you said that you gradually felt pain while he was pumping you. Did you shout?
A No sir.
Q During that time that he was pumping you do you remember what his hands were doing at that time?
A Sir I cannot recall anymore.
Q Was Ernesto Marcelo kissing you at that time also?
A Yes sir.
Q Where he was kissing you?
A On my breast sir.
Q Now, did Ernesto Marcelo ever take out his penis from your vagina?
A Yes sir.
Q How many times did Ernesto Marcelo did this to you?
A Sir for several times but I cannot remember the exact number of times.8
Even if it were to be assumed that the penetration of the female organ has been incomplete, such fact will not necessarily negate the commission of rape.9 It is not legally required in order to constitute rape that there be a full penetration of the genital organ of the victim.10 Consistently, this Court has held that rape can be committed even with the slightest penetration of the sex organ of the woman. The mere entry by the penis into the lips of the said organ, even without rupture or laceration of the hymen, is enough.11 Laceration of the hymen, even if considered the most telling and irrefutable physical evidence of sexual assault, is not always essential to establish the consummation of the crime of rape.12cräläwvirtualibräry
Neither sustainable is the contention that the rape charge has merely been concocted by Carmelita, Josefinas mother, who allegedly has harbored ill feelings against appellant for the latters refusal to give her a loan. Not a few accused in rape cases, in fact, have attributed similar charges brought against them to family feuds, resentment, or revenge.13 These supposed motives have never swayed the Court against lending credence to the testimony of complainants who remain firm and steadfast in their account of how they are ravished by sex offenders. Courts are seldom, if at all, convinced that a mother would stoop so low as to subject her daughter to physical hardship and shame concomitant to a rape prosecution just to assuage her own hurt feelings.14cräläwvirtualibräry
Appellant would bewail his conviction on the two counts of rape which the information averred to have taken place on 11 March 1993 and 06 March 1993, pointing out that the trial court convicted him in Criminal Case No. Q-93-51492 despite its opinion that rape had been committed not on 06 March 1993 but in the morning of 08 March before Carmelita arrived to fetch her children. Appellant might have forgotten that the victim, still then in her tender age, testified more than a year after the rape had taken place. Ample margin of error and understanding should be accorded to the young complainant who, naturally would be gripped with tension, certainly much more than adults, when required to relive an experience she would most definitely rather forget.15cräläwvirtualibräry
Coincidentally, the defense argues that the allegation in the information, not being sufficiently definite on the date of the commission of the crime, has violated the constitutional right of the accused to be informed of the nature and cause of accusation against him so as to give him the full opportunity to prepare for his defense. The Court is not persuaded. Section 6, Rule 110, of the Rules on Criminal Procedure, in relation to Section 11 thereof, provides that the complaint or information would be sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. With respect particularly to the time of the commission of the offense, it is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been commmitted at any time as near to the actual date at which the offense was committed as the information or complaint will permit.
The provisions of the Revised Penal Code, applicable at the time of commission of the crime, read:
ART. 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, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be likewise death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. (As amended by Rep. Act No. 2632, approved June 18, 1960, and Rep. Act No. 4111, approved June 20, 1964).
Given the facts and the law heretofore expressed the trial court has correctly imposed two terms of reclusion perpetua. In addition to the P50,000.00 moral damages awarded by the trial court for each count of rape, the complainant is also entitled, pursuant to prevailing jurisprudence, to a civil indemnity ex delicto of P50,000.00 in each case.
WHEREFORE, the appealed decision is AFFIRMED with the modification that an additional sum of P50,000.00, by way of civil indemnity for each count of rape, is awarded to the complainant. Costs against appellant.
Romero, (Chairman), Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.
1 Rollo, pp. 34-35.
2 Rollo, p. 39.
3 Rollo, pp. 36-38.
4 Rollo, p.40.
5 Rollo, pp. 90-92.
6 Rollo, p. 92.
7 Records, p. 24.
8 TSN, 01 August 1994, pp. 8-11.
9 People v. Hermosada, 143 SCRA 484.
10 People vs. Gagto, 253 SCRA 455.
11 People vs. Palicte, 229 SCRA 543.
12 People vs. Tumalad, 188 SCRA 203.
13 People vs. Gagto, ibid.
14 People vs. Rejano, 237 SCRA 627
15 People vs. Dela Cruz, 276 SCRA 352; People vs. Salazar, 221 SCRA 170.