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THIRD DIVISION

[G.R. No. 124366-67. May 19, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. JOSE PEREZ y GALVEZ, accused-appellant

D E C I S I O N

GONZAGA-REYES, J.:

On appeal before us is the judgment rendered by Branch 76 of the Regional Trial Court of San Mateo, Rizal dated August 18, 1995 finding the appellant Jose Perez guilty of two counts of rape under Art. 335 of the Revised Penal Code and sentencing him to suffer the penalty of reclusion perpetua, to pay the victim the amount of P30,000.00 for each count of rape and to pay the costs of the suit.

The complainant Cristina Perez is a 16 year old student who has been residing with her maternal grandfather in San Mateo, Rizal after her father abandoned the family and her mother went to Cavite to take care of another daughter.[1 The accused appellant Jose Perez is a 45 year old bachelor who works as a caretaker of the barangay hall in Banaba, San Mateo, Rizal and lives in the barangay hall, which is just walking distance from where the complainant lives.2 The appellant and the mother of the complainant are first cousins which makes the appellant an uncle of the complainant.3 The appellant saw the complainant everyday as she passed by the barangay hall on her way to school in the area where he directs traffic, and because they are relatives, he used to frequent the house of the complainants grandfather and sometimes brings food and snacks.4cräläwvirtualibräry

On November 21, 1994 two separate Complaints were filed by Cristina Perez against her uncle Jose Perez for rape:5cräläwvirtualibräry

COMPLAINT

The undersigned complainant CRISTINA PEREZ under oath accuses JOSE PEREZ Y GALVEZ of the crime of rape, committed as follows:

That on or about the last week of May 1994 in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable court, the above-named accused, by means of threats, force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant against her will and consent.

COMPLAINT

The undersigned complainant CRISTINA PEREZ under oath accuses JOSE PEREZ Y GALVEZ of the crime of rape, committed as follows:

That on or about the 4th day of June 1994 in the Municipality of San Mateo, Province of Rizal, Philippines and within the jurisdiction of this Honorable court, the above-named accused, by means of threats, force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant against her will and consent.

In her sworn statement dated August 11, 19946 Cristina narrated that towards the end of May 1994 she was awakened and saw her Uncle Peping, herein appellant, walk towards her and place a piece of cloth like a handkerchief or small towel on her nose and mouth and she lost consciousness. When she awoke the following morning she felt pain in her vagina and noticed some blood coming out and that her clothing, including her undergarments, were inside out. She confronted her uncle about the incident; he threatened her not to tell anyone or something ill will befall her. She stated that the appellant raped her again sometime in the first week of June 1994 in her aunts house. She never told anyone about the incident until sometime in July 1994 when her relatives noticed that she is pregnant. She also stated that even prior to the said incidents, her uncle would call her to come to him but she never did and at times he would hit her with a stick or siit. A Medico-Legal Report was filed and it was found that Cristina was 22-23 weeks pregnant as of August 11, 1994. She gave birth to a baby boy on December 8, 1994.[7cräläwvirtualibräry

In court Cristina testified that on March 30, 1994, even before she was raped at home by her uncle, while she was in a peryahan her uncle grabbed her and brought her to the back of a hut where he pointed a knife at her neck; tied her up, undressed and caressed her and thereafter inserted his penis in her vagina. It was painful. The incident lasted for about an hour and before he let her go he threatened to kill her if she told anyone of what happened.[8 As regards the two other rape incidents, she testified that sometime towards the end of May 1994 she was awakened by somebody walking in the room, she saw the appellant who immediately covered her face with a handkerchief with a nauseous odor; and she lost consciousness. The following morning the appellant was gone. She felt pain in her vagina and saw blood and a white substance on it. She washed her vagina. She also noticed that her blouse had a tear, her shorts were inside out and her panty was found in a corner of the room.

The same thing transpired during the incident that occurred in the first week of June 1994. She saw the appellant come to the house in the wee hours of the morning. She covered herself with a blanket to hide. Again the appellant came to her and placed a cloth to cover her nose and mouth with the same suffocating odor. The complainant tried to fight back but the appellant pointed a balisong knife at her neck, threatened to kill her, undressed her and once again raped her, Pinagsamantalahan ho niya ulit ako. The complainant lost consciousness in the process. In the morning the appellant was gone and complainant woke up with her shirt rolled up and her undergarments removed.9cräläwvirtualibräry

On cross-examination Cristina stated that the two incidents happened at the ground floor (silong) living room of her Aunt Celestinas house, an arms length away from her grandfathers house, where she usually sleeps side by side with her 17-year old cousin Jocelyn . She also stated that she must have shoved Jocelyn while she struggled against the appellant but when she asked Jocelyn the morning after the incidents if she noticed anything unusual the previous night Jocelyn responded in the negative.10 On re-direct she stated that she and Jocelyn slept on the floor of the living room.11 On re-cross she stressed that she could not talk to any member of the family about what happened to her.12cräläwvirtualibräry

Celestina Perez, aunt of the complainant, testified for the prosecution and affirmed that the appellant is an uncle of the complainant and that he frequented their house before Cristina became pregnant. She stated that Cristina confided to the family that she was raped by her uncle only after they noticed her to be pregnant. She then accompanied Cristina to the police station to make a formal statement. Celestina testified that their family tried to settle the matter but Cristina refused to live as husband and wife with the appellant.13 Dr. Owen Lebaquin, PNP Medico-Legal officer testified and affirmed in court the contents of his Medico Legal Report dated August 12, 1994 (Exh. F) that Cristina was found pregnant 22-23 weeks as of August 11, 1994 which period coincides with the sexual molestation of the victim in March 1994.[14cräläwvirtualibräry

The accused denied the alleged sexual assault of his niece. He admitted that he frequented the house where Cristina lives as it is just walking distance from the barangay hall where he lives and that he saw Cristina everyday when she goes to school. He stated that he has no misunderstanding with Cristina Perez, Celestina Perez nor with Cristinas grandfather, Juanito Perez. His relations with Juanito Perez were however strained sometime in April 1994 for reasons unknown to him. He also admitted that he came to know that Cristina became pregnant and that he did not visit Cristinas house after that.15cräläwvirtualibräry

The trial court in a decision dated August 18, 1995 found the appellant guilty of two counts of rape and sentenced him to suffer the penalty of reclusion perpetua and to pay the complainant the sum of P30,000.00 for each count of rape and to pay the costs of the suit.

On appeal, the appellant raises the following assignments of error:

I

THE LOWER COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE ILL MOTIVATED AND FABRICATED TESTIMONY OF CRISTINA PEREZ

II

THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE.

The appellant maintains that while as a rule the findings of facts made by the trial court are accorded great respect on appeal the rule does not apply when the trial court overlooked or misappreciated some fact or circumstance which if properly considered may alter the outcome of the case. Appellant claims that the complainants testimony, on which the prosecutions evidence is mainly anchored, is of doubtful credibility; for the reason that the two rape incidents were allegedly committed towards the end of May 1994 and on the first week of June 1994 while the complainant was sleeping side by side with her cousin and it is highly improbable for the rape to have been committed without waking the complainants cousin sleeping alongside her. Moreover, Cristina gave birth to a baby boy on December 8, 1994, or barely six months after the rape incidents without a showing that the birth of the baby was premature. The appellant also argues that the charges against him were fabricated and ill motivated, fuelled by the resentment of the complainants family towards the appellant.

The Solicitor-General filed brief for the appellee praying for the affirmance of the judgment of conviction and for the increase in the civil indemnity from P30,000.00 to P50,000.00 for each count of rape pursuant to prevailing jurisprudence. The appellee states that it is not impossible for the rape to have been committed without waking the complainants cousin who was then sleeping beside her. The complainant testified that the appellant covered her nose and mouth with a malodorous handkerchief/towel and that she lost consciousness while she was being raped. She could not have raised a commotion to wake up her cousin who may have been in deep slumber in the early hours of the morning when the rape was committed. Appellee also argues that Cristinas pregnancy is not an element of rape; and the birth of her child six months after the incidents does not discredit her testimony that she was raped by her uncle in May and June of 1994 because she was previously raped by the appellant in March 1994 which incident coincides with the 9-month normal gestation period of the baby. The appellants contention that the charges are fabricated and ill-motivated lacks basis.

The appeal is without merit.

Art. 335 of the Revised Penal Code, as amended by RA 7659,16 states that the crime of rape is committed when the offender has carnal knowledge of a woman by using force or intimidation, or when the victim is deprived of reason or otherwise unconscious. The penalty for rape is reclusion perpetua.

The doctrinally accepted rule is that the trial courts assessment of the credibility of witnesses is accorded great respect and will not be disturbed on appeal unless a material or substantial fact has been overlooked or misappreciated, which if properly taken into account may alter the outcome of the case.17 Factual findings of the trial court are generally sustained on appeal unless clearly arbitrary or baseless.18cräläwvirtualibräry

Appellants plea for the application of the exception to the above rule cannot be sustained after a careful examination of the record. We find that the trial court accorded due weight and credence to Cristinas testimony.

As regards the first rape incident in March 1994 Cristina testified in court as follows:19cräläwvirtualibräry

A: When I was at the peryahan he held me, sir.

Q: Who held you?

A: Jose Perez, sir

Q: And where were you brought by Jose Perez?

A: At the back of the hut, sir.

Q: And what did he do to you?

A: He tied me and pointed a knife at my neck, sir.

Q: And after he tied you and pointed a knife at your neck, what else transpired, Ms. Witness?

A: He undressed me, sir.

Q: Was he able to undress you?

A: All, sir.

Q: And after he undressed you, what did he do next?

A: Pinaglalamas po niya ako at pagkatapos ay ipinasok niya ang ari niya sa akin, sir.

Q: Was he able to insert his penis to your vagina?

A: Yes, sir.

Q: And what happened to you while he was inserting his private part?

A: I was hurt, sir.

And as regards the May 1994 and June 4, 1994 rape incidents, respectively, she testified in court as follows:20cräläwvirtualibräry

Q: And you said that the rape was repeated on the last week of May 1994. Will you please tell before this court how it commenced?

A: While I was sleeping, I noticed that somebody was walking. Then, I looked for him and when I saw him, he covered my face, sir.

Q: You said him, who are you referring to?

A: Jose Perez, sir.

Q: What was he doing at the time?

A: I do not know,sir.

Q: And you said that all of a sudden, he covered your face. What happened to you after he covered your face?

A: I did not know anymore what happened to me that evening. But in the morning, I noticed that I was wearing a different dress, sir.

Q: Do you know what kind of material was used by Jose Perez in covering your face?

A: A white handkerchief, sir.

Q: How does it smell?

A: It has a bad odor, sir.

Q: Do you mean to say that because of that handkerchief you lost consciousness?

A: yes, sir.

Q: On the last week of May 1994, you said you were sleeping. What was your attire at the time?

A: I was wearing shorts and blouse, sir.

Q: And after you woke up, what happened to your blouse?

A: It was torn and my shorts was inverted and I was not wearing my panty anymore, sir.

Q: and where was your panty

A: It was in a corner, sir.

Q: And how was your feeling at that time?

A: I was hurt, sir.

Q: Did you examine your vagina immediately after you woke up?

A: Yes, sir.

Q: What did you find out?

A: There was blood and white substance, sir.

Q: What did you do next after you noticed the blood and the white substance on your vagina?

A: I washed my vagina, sir.

Q: Did you not confront your uncle, Jose Perez, why he did that to you?

A: I was not able to talk to him, sir.

Q: Why?

A: I was not able to talk to him because I do not want to talk to him since I was afraid when he did that to me, sir.

Q: Do you mean to say that since March 1994 incident you were afraid of your uncle, Jose Perez?

A: Yes, sir.

Q: You said that the second incident happened sometime in the last week of May 1994. Will you please tell before this honorable court where was the place of the incident ?

A: In the house of my auntie, sir.

Q: Where is that located?

A: Beside the house of my grandfather, sir.

Q: Also in Banaba?

A: Yes, sir.

xxx xxx xxx xxx

Q: And what happened when he returned in the early morning of June 4, 1994?

A: Matutulog pa lang po (ako) nung andun siya, tapos ay masam a po and tingin niya sa akin. Hindi ko po pinansin at nagtaslukbong na lang po ako ng kumot at antok na antok na po ako. Tapos po ay may itinakip siys sa aking mukha, sir.

Q: And what was that thing he used to cover your face?

A: A small towel ,sir.

Q: How does it smell?

A: It has a bad odor , sir.

Q: What happened to you after he covered your face with that towel?

A: Pinagsamantalahan ho niya ulit ako, sir.

Q: Do you mean to say that what he did during the March and May incident was repeated by Jose Perez?

A: Yes, sir.

Q: And did he again threaten you when he was raping you on June 4, 1994?

A: Yes, sir.

Q: What did he tell you.

A: He told me not to tell anybody , sir.

Q: Was he holding anything on June 4, 1994?

A: There was , sir.

Q: What was that?

A: A 29 knife, sir.

Q: And what was he doing with that?

A: He pointed it on my neck, sir

Q: Do you mean to say he abused you while he was pointing a knife on your neck on June 4, 1994?

A: Yes, sir.

Q: And what happened next?

A: He undressed me, sir.

Q: And after he undressed you what happened next?

A: Ginalaw na niya po ako.

Q: Were you conscious or not during the June 4, 1994 incident?

A: Wala po akong malay noon, sir

Q: Why did you become unconscious?

A: I was nervous because a knife was pointed at my neck, sir.

Q: When he began to rape you, were you conscious at the time or unconscious already?

A: I was conscious, sir.

Q: Do you mean to say that in the process you lost consciousness?

A: yes, sir.

Q: And when you regained consciousness where was Jose Perez?

A: He left already, sir.

Q: He was not inside the room anymore, is that what you mean?

A: No more, sir.

Q: And how about your dress at that time, what happened to your dress when you regained consciousness?

A: Nakataas ang T-Shirt ko, tanggal ang bra at tanggal din po ang panty ko, sir.

Q: And after this incident on June, did you relay that last incident to any of your relatives?

A: Not yet, sir, on July 1994.

Q: Do you know whether this incident was discovered by any of your relatives?

A: Yes, sir.

Q: And how were they able to discover the rape incident?

A: When they noticed that I am becoming fat, they asked me and I told them that I do not know, sir.

Q: And what happened next after they noticed that you were becoming healthy?

A: Ipinahilot po nila ako at sabi ng manghihilot ay buntis daw ako, at dun nila nalaman na buntis ako, sir.

Q: And after they were able to discover that you were pregnant, what happened next?

A: They reported it to the police immediately, sir.

Q: You said sila, whom are you referring to?

A: My auntie and my uncle, sir.

Q: What are the names of your uncle and auntie?

A: Auntie Celestina and Uncle Dory, sir.

Q: You said that this case was referred to the police, is that that you mean?

A: Yes, I was with them, sir.

Q: Did you reveal to them who was the culprit?

A: Yes, sir.

Q: And what was their reaction when you informed them about the culprit?

A: They got mad and they told me why he was able to do that to me since he is my uncle, sir.

Q: Will you please tell this honorable court your birthday?

A: November 1, 1977, sir.

Q: Do you mean to say that on June 4, 1994, you were still 16 years of at the time?

A: Yes, sir.

The complainants narration of the incidents was straightforward and categorical and free from any serious contradiction. We find no compelling reason to disturb or set aside the finding of the trial court giving due weight and credence to the testimony of the complainant that she was raped by her uncle, herein appellant.

The appellants conviction for the rape committed in May 1994 although based on circumstantial evidence is sustained. Conviction for rape may be based on circumstantial evidence when the victim cannot testify on the actual commission of the rape as she was rendered unconscious when the act was committed, provided that more than one circumstance is duly proved and that the totality or the unbroken chain of the circumstances proven lead to no other logical conclusion than the appellants guilt of the crime charged.21 Cristinas positive identification of the appellant as the person who came to the room where she slept one early morning towards the end of May 1994, and that he covered her nose and mouth with a foul smelling handkerchief until she lost consciousness, the blood and white substance she found on her vagina which ached the following morning, her torn shorts and her panty removed, all lead to one inescapable conclusion that the appellant raped her while she was unconscious.

The second rape committed on the first week of June 1994 is based on Cristinas positive identification of the appellant and her testimony that again he came to the room where she slept, covered her nose and mouth with a small towel with a nauseous odor and that before she lost consciousness she felt the complainant insert his penis inside her vagina and that the following morning she woke up with her T-shirt rolled up and her bra and panty removed. The plain denial made by the appellant of the charges against him cannot outweigh the clear and credible testimony of the complainant. While this court is not unmindful of its duty to subject any accusation for rape to the severest scrutiny due to the apparent facility to fabricate such a charge, the lone testimony of the victim if credible, as in this case, is sufficient to sustain a conviction and the prosecution is not bound to present other witnesses to corroborate the testimony of the victim.22cräläwvirtualibräry

The supposed ill motive of the complainant and her family which allegedly impelled them to accuse the appellant of this crime is vague and unsubstantiated. If the defense fails to prove that the accusation against him is moved by improper motives, the accusation is entitled to full faith and credence.23 This court has repeatedly opined that it is unlikely for a young girl like the complainant, and her family to impute the crime of rape to their own blood relative and face social humiliation if not to vindicate the honor of the complainant.24cräläwvirtualibräry

The appellants contention that he could not have raped the complainant without waking her cousin who was then sleeping beside her is flimsy. The complainant stated that she and her cousin slept on the floor of the ground floor living room and that she tried to awaken her cousin but failed because she lost consciousness while she was being raped. The complainants inability to cry out for help while she was being sexually abused does not refute the fact of rape. She not only feared her uncle who had moral ascendancy over her, but there was a threat on her life, and the nauseous substance which she was forced to inhale quieted her and prevented her from creating a disturbance enough to awaken her cousin sleeping beside her. Moreover, there is no standard or typical reaction when a person is confronted with a disconcerting and agonizing experience, such as being raped by your own uncle.25 Cristinas silence cannot be construed as an acquiescence to the sexual act.26cräläwvirtualibräry

Cristinas failure to state in her affidavit the March 1994 incident when her uncle first raped her near the peryahan should not be taken as a badge of dishonesty nor of fabrication. In her affidavit, she stated that she was raped twice in her aunts house by her uncle Jose Perez, first, sometime towards the end of May and second, on the first week of June 1994. Only these two incidents became the subject of the present indictments. In court she clearly and positively stated that her uncle first raped at the back of a hut near the peryahan in March 1994. Discrepancies and/or inconsistencies between a witness affidavit and testimony in open court do not impair credibility as affidavits are taken ex parte and are often incomplete or inaccurate for lack of or absence of searching inquiries by the investigating officer.27 Nevertheless such omission does not detract from her testimony that she was indeed raped in May and June 1994, for which the appellant is presently charged. Likewise, Cristinas reluctance to confide to any member of her family much less to the police what her uncle did to her until after she was discovered pregnant was satisfactorily explained both in her affidavit and in court when she stated that one time the appellant grabbed her in the market place, covered her mouth and threatened her not to tell anyone or something ill will befall her and that during the June 1994 incident the appellant threatened to kill her while he was raping her.28 It has been held that a rape victims delay or hesitation in reporting the crime is not an indicia of deceit as it is quite common for a rape victim to prefer silence for fear of her aggressor, and the lack of courage to face the public stigma of having been sexually abused.29cräläwvirtualibräry

The Solicitor-General correctly pointed out that Cristinas failure to state in her affidavit the March 1994 rape incident and the prosecutions failure to explain why Cristina gave birth six months after the commission of the two rape incidents which are the subject of the present indictments are both inessential to the prosecution and conviction of the appellant for the rape committed in May and June 1994. Cristinas testimony in court that she was first raped by the appellant in March 1994 simply showed the repeated sexual assaults committed against her by the appellant. The March 1994 incident is not a subject of any of the present indictments. It has been held that the prosecution need not prove that the appellant is the father of the victims baby as pregnancy is not an element of rape and is a non-issue in the prosecution thereof.30 Indeed rape may still be committed even if the victim is already pregnant at the time of the commission of the crime.31cräläwvirtualibräry

Accordingly, we affirm the judgment of conviction rendered by the trial court. Pursuant to prevailing jurisprudence , the civil indemnity granted by the trial court to the complainant in the amount of P30,000.00 is modified and is hereby increased to P50,000.00 for each count of rape and an additional amount of P50,000.00 for moral damages is likewise granted for each count of rape.32cräläwvirtualibräry

WHEREFORE, the decision of the trial court finding the appellant guilty of two counts of rape and sentencing him to suffer the penalty of reclusion perpetua for each count, is AFFIRMED, with modification that the civil indemnity is increased to P50,000.00 and an additional award of P50,000.00 for moral damages is hereby granted for each count of rape.

SO ORDERED.

Romero, (Chairman), Vitug, and Panganiban, JJ., concur.

Purisima, J., took no part in the deliberation.

Endnotes:


1 Exh. F, Medico-Legal Report, August 11, 1994, p. 63, OR; Tsn, January 25, 1995, pp. 4 and 15; Tsn., February 16, 1995, p. 6 .

2 Tsn., May 11, 1995, p.6.

3 Tsn., January 25, 1995, p.4; Tsn., February 16, 1995, p.3.

4 Tsn., May 11, 1995, pp. 10-11; tsn., January 25, 1995, p.8; Tsn., February 16, 1995, p.6.

5 Exhs. B and C, pp. 60-61, OR.

6 Exh. A, p. 58, OR.

7 Exh F, supra, Tsn., January 25, 1995, p. 23.

8 Tsn., January 25, 1995, pp. 4-7.

9 Ibid., pp. 6-10.

10 Tsn., January 25, 1995, pp.15,17, 20-21.

11 Ibid. p.23.

12 Ibid. p.24.

13 Tsn., February 16, 1995, pp. 4, 6, 11-12.

14 Tsn., April 6, 1995, pp. 5-6.

15 Tsn., May 11, 1995, pp. 6, 10-12.

16 RA 8353, The Anti-rape Law of 1997 was not yet in effect.

17 People v. Ramos, 240 SCRA 191; People vs. Nicolas, 241 SCRA 67; People vs. Marias, 248 SCRA 165; People v. Ramirez, 266 SCRA 135; People vs. Teodoro, 280 SCRA 384.

18 People vs. Talingting, 281 SCRA 91.

19 Tsn., January 25, 1995, pp. 4-5.

20 Ibid., pp. 6-10.

21 People vs. Diaz, G.R. No. 117323, October 4, 1996; People vs. Tabarangao, G.R. No. 116535-36, February 25, 1999; People vs. Robles, G.R.No. 124300, March 25, 1999.

22 People vs. Gabayron, 278 SCRA 78; People vs. Banela, G.R. No. 124973, January 18, 1999.

23 People vs. Panganiban, 241 SCRA 91; People vs. Pija, 245 SCRA 80.

24 People vs. Namayan, 246 SCRA 646.

25 People vs. Cabrera, 241 SCRA 28.

26 People vs. Miranda, 262 SCRA 351.

27 Sumalpong vs. Court of Appeals, 268 SCRA 764; Naval v. Panday, 275 SCRA 654.

28 Tsn., January 25, 1994, pp. 5, 7-9; O.R., p.3.

29 People vs. Antipona, 274 SCRA 328; People vs. Adora, 275 SCRA 441; People vs. Astorga, 283 SCRA 420; People vs. Soan 243 SCRA 627.

30 People vs. Alib, 222 SCRA 517; People vs. Adora, G.R. No. 116528-31, July 14, 1997; People vs. Sta. Ana, G.R. No. 115657-59, June 26, 1998;

31 People vs. Adora, ibid.

32 People vs. Prades, G.R. No. 127569, July 30,1998; People vs. Manggasin, G.R. No. 130599-600, April 21, 1999.




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