G.R. Nos. 143002-03. July 17, 2003
PEOPLE OF THE PHILIPPINES, appellee, vs. CHARMIE SERVANO y GAOR, appellant.
D E C I S I O N
For automatic review is the joint decision[1 of Branch 30 of the Regional Trial Court of the Fifth Judicial Region stationed in San Jose Camarines Sur, finding appellant guilty beyond reasonable doubt of two counts of rape and imposing upon him the death penalty in each case.
Two separate informations were filed against appellant Charmie Servano charging him with two counts of rape both committed on June 13, 1998 against his daughter, Ailyn Servano. The first information alleged:
Criminal Case No. T-1904
That on or about the 13th day of June, 1998 at around 9:00 oclock in the morning at Barangay Himanag, Municipality of Lagonoy, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused by means of force, threats and intimidation did then and there, wilfully, unlawfully and feloniously have carnal knowledge with his daughter, Ailyn Servano y Clores, a 12 year old girl, against her will, to her damage and prejudice.
Acts Contrary to Law.
The other information (Criminal Case No. T-1905) was identically worded except for the time of the commission of the offense.[2cräläwvirtualibräry
Upon arraignment, the appellant, assisted by his counsel, pleaded not guilty to both charges.
Considering that the parties were the same in both cases and the incidents which gave rise thereto occurred on the same date, joint trial on the merits was conducted by the trial court.
The prosecution presented three witnesses: private complainant Ailyn Servano, Dr. Roberto Enriquez and Barangay Chairman Jose Barro. It rested its case with the admission of its Exhibits A to E with submarkings for both cases. On the other hand, the defense presented the appellant, Charmie Servano, as its lone witness and rested its case without any documentary evidence.
Private complainant Ailyn Clores Servano is the only daughter of appellant with his common-law wife Salome Clores. On June 13, 1998, at about 7:00 a.m., Ailyn was alone in their house in Himanag, Lagonoy, Camarines Sur, when her father, herein appellant, sexually assaulted her. He inserted his penis, although with some difficulty, into her vagina and pushed it in as she was lying down on her back. Thereafter, appellant left her alone. Meanwhile, Ailyn cooked rice and washed clothes. Around two hours later, appellant returned home and sexually assaulted her again. He went on top of Ailyn and inserted his penis into his daughters vagina. He then left for work. Ailyn then left their house right after that to inform her half-sister Mylene of what their father had just done. The angry half-sisters proceeded to their Aunt Precy to apprise her of the incident.
On June 14, 1998, Precy reported the matter to Barangay Captain Jose Barro of Himanag. The offense being grave, the barangay captain instructed a tanod to invite appellant for interrogation. Thereafter, appellant was brought to the police station in Garchitorena. He was later transferred to the police station in Lagonoy, Camarines Sur. Ailyn executed her sworn statement[3 on June 17, 1998 at Lagonoy police station. On the same date, she was examined by Dr. Jose Roberto Enriquez who issued a medical certificate[4 which showed that Ailyn suffered hymenal lacerations at 3, 9 and 12 oclock positions which were possibly inflicted only about four to ten days earlier.
The defense, on the other hand, presented the appellant as its sole witness. He testified that he came down from the mountain at 10:00 a.m. on June 12, 1998 to attend a dance party in their barangay that evening. From 8:00 p.m. on June 12, 1998 until 4:00 a.m. the following day, he partook of some drinks with friends. After returning home, he lay down to rest. Later on, he felt a hand on his forehead. He pulled it towards him and, thinking that it was the hand of his paramour, he touched her organ and inserted his finger. He came to his senses when he heard his name called. Stunned, he got up and realized that it was his daughter Ailyn. He asked Ailyns forgiveness but Ailyn rejected him and instead filed the complaints against him.
On February 28, 2000, the trial court rendered its decision as follows:
In Criminal Case No. T-1904, the accused Charmie Servano y Gaor is
hereby sentenced to suffer the supreme penalty of death, to indemnify the
private complainant Ailyn Servano [his] daughter, the sum of Seventy Five
Thousand Pesos (
In Criminal Case No. T-1905, the accused Charmie Servano y Gaor is
hereby sentenced to suffer the supreme penalty of death to indemnify private
complainant Ailyn Servano, [his] daughter the sum of Seventy Five Thousand
Pursuant to Article 47, RPC, as amended, let the whole original records of these two (2) cases be forwarded to the Honorable Supreme Court, for automatic review.5cräläwvirtualibräry
In his brief[6 before this Court, the appellant raises a lone assignment of error:
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES CHARGED.
In essence, appellant assails the credibility of the private complainant whose behavior, according to him, was not consistent with that of a rape victims. He theorizes that private complainant would not have nonchalantly stayed at home to cook rice and wash clothes if indeed she had been raped. Likewise, the medical certificate did not show any spermatozoa in Ailyns private part while the healed hymenal lacerations in her vagina, per se, did not prove sexual intercourse. Appellant insists that he merely touched his daughters private part on the mistaken assumption that he was doing it to his paramour. Upon realizing his mistake, appellant immediately desisted and even asked for forgiveness.
Appellants obvious pretense cannot prevail over the testimony of private complainant which the trial court found to be categorical, straightforward, detailed and consistent. When the offended party is a young and immature girl, courts are inclined to lend credence to their version of what transpired, not only because of their relative vulnerability but also because of the shame and embarrassment to which they would be exposed by court trial if the matter about which they testified were not true.[7 More so when, as here, the private complainant was appellants own daughter. Generally, no young woman will accuse her own father of so grave a crime as rape unless she has truly been aggrieved.[8 Besides, we note that private complainant could not hold back her emotions and cried profusely at a certain point during the trial.[9 It is a matter of judicial cognizance that the spontaneous crying of the victim during her testimony is evidence that speaks well of her credibility.[10cräläwvirtualibräry
Q: While you were at your house at Barangay Himanag, Lagonoy, Camarines Sur on June 13, 1998, xxx about 7:00 oclock in the morning, tell us if there was an unusual incident that took place.
A: There was, sir.
Q: Tell us what that was?
A: I was abused by my father.
Q: When you say you were abused, tell us what exactly do you mean by that?
A: He raped me, sir.
Q: When you said you were raped, what do you mean by that?
A: He what my organ.
May we translate the answer of the witness. Our translation, he made something in my vagina.
That is not proper, that is very leading.
When she said inano niya an sakong ari translated into English, he made something in my vagina.
What do you mean by ari?
A: The organ of my father was inserted in my organ.
Again may it be put on record that the answer of the witness pinapasok is a tagalog term.
What organ of your father?
A: His penis was inserted in my vagina.
When the penis of your father was inserted inside your vagina, tell us what you felt?
A: Painful, sir.
How do you know that it was inserted?
A: It was painful and he inserted it.
Q: How did he insert it?
A: He was pushing it in.
A: In the hole of my vagina.
ATTY. BRIONES - The witness stated the term butas which is a Tagalog term, not in Bicol, meaning hole.
FISCAL SOLANO - Tell us Miss Witness what was your position when your father inserted his penis inside your vagina?
A: I was lying on my back, sir.
Q: Where were you at that time?
A: In the room where he sleeps.
Q: Now, what was also the position of your father when he inserted his penis inside your vagina as you said you were lying down?
A: He was on top of me, sir.
Q: On June 13, 1998 at 7:00 oclock in the morning, who were the persons inside the house beside yourself and your father, tell us?
A: None, sir, except the two of us.
xxx xxx xxx
After the insertion of your father as you already well related to the Honorable Court on June 13, 1998 at 7:00 oclock in the morning, where did your father go?
A: He went to the barrio to work.
Q: And after your father left, what did you do also, if any?
A: He went to the barrio to work.
Q: And after your father left, what did you do also, if any?
A: I cooked rice in our house and washed the clothes.
Q: After cooking rice and washing the clothes, what did you do if any?
A: No more, sir.
Q: And what time did your father return on the same date?
A: 9:00 oclock, sir.
Q: And after your father arrived home, what happened if any, again?
A: He did a bad thing again to me.
Q: What was that bad thing that was done to you by your father?
A: He did again what he had done to me at 7:00 oclock.
Q: Tell us again what did your father do when you said he repeated the same thing he did at 7:00 oclock, what was that?
A: He again inserted his organ in my organ.
Again the answer of the witness is in perfect Tagalog, Pinapasok niya ang kanyang ari sa aking ari.
What is that organ you are referring to?
A: He inserted his penis.
A: In the hole of my vagina.
Q: And what did you feel when as you said your father inserted again his penis inside your vagina?
A: Pain, sir.11cräläwvirtualibräry
While it may be true that complainant failed to categorically declare in her testimony that appellant employed force, threat or intimidation upon her, the records, however, provide sufficient proof that force and intimidation indeed attended both acts of rape. During the trial, the prosecution produced in evidence the sworn statement[12 executed and signed by the private complainant, Ailyn C. Servano, on June 17, 1998 before SPO2 Claudio B. Esmeralda, Jr. of the Lagonoy PNP Station in Camarines Sur. The sworn statement read in part:
4. Q. When and where that incidents you are referring to happened?
A. Last June 13, 1998 in the morning at about 7:00 oclock and 9:00 oclock inside our residence at Himanag, Lagonoy, Camarines, Sur.
5. Q. Who was with you when these incidents happened?
A. I was alone, sir.
6. Q. Did you resist when your father sexually abused you for two times?
A. No, sir.
7. Q. Did you shout for help so that someone may help you?
A. No, sir because of fear that he might harm me.
8. Q. Will you narrate to us in details how these incidents happened?
A. That on or about 7:00 a.m. of June 13, 1998 while I was sitting on the floor of our house at Himanag, this municipality, my father Charmie Servano suddenly cuddled (kinolkol) me then forcibly brought me to our rooms hose (sic) then took off my panty and dress then pushed me towards the mat afterwhich he took off his short pant and underwear then put his body on top of mine and forcibly inserted his erected penis inside my vagina.
9. Q. What did you feel when your fathers penis entered in your vagina?
A. I felt great pain, sir.
10. Q. After your father succeeded his lust (sic), what did you do if any?
A. I fixed myself and cooked rice for our breakfast.
11. Q. After that what happened next, if any?
A. After cooking I ate my breakfast while my father left by going somewhere and when he returned back home at about 9:00 a.m. of that same date he again raped me.
12. Q. After your father raped you for the second time what did your father do?
A. He went out of the house and proceeded to our barangay proper.
13. Q. How about you, did you do something?
A. I went to the house of my Ate Maileen Servano and told her what our father did to me.
xxx xxx xxx
From the foregoing, it is clear that private complainant was alone in their house when appellant suddenly cuddled (kinolkol) her. He forcibly brought private complainant inside the room where appellant undressed her before pushing her to the mat. After undressing himself, appellant mounted private complainant and finally consummated his lust. He was apparently so gratified by his sexual perversion that, after leaving their house for a while, appellant returned to rape his hapless daughter again. In both instances, private complainant could not resist appellants unwelcome and detestable sexual advances for fear that he might hurt her even more after having been forcibly brought inside the room and pushed to the mat to be raped.
It should also be stressed that this sworn statement was identified by complainant in open court and was, in fact, offered as evidence by the prosecution as Exhibits D, D-1, and D-2. In the direct examination of the complainant, the prosecutor asked her if she made them. She was asked to confirm the truth thereof. The trial court allowed this without any objection from the defense. Complainant thus affirmed the veracity and truthfulness of all the statements appearing therein. Further, when the prosecution made its offer of documentary evidence, the trial court admitted the same sworn statement as part of the prosecution evidence.[13cräläwvirtualibräry
Evidence in criminal cases is not limited to the declarations made in open court; it includes all documents, affidavits or sworn statements of the witnesses, and other supporting evidence. It comprehends something more than just the mere testimony of a witness.[14 Thus, when a sworn statement has been formally offered as evidence, it forms an integral part of the prosecution evidence which should not be ignored for it complements and completes the testimony on the witness stand. A sworn statement is a written declaration of facts to which the declarant has sworn before an officer authorized to administer oaths. This oath vests credibility and trustworthiness on the document. The fact that a witness fails to reiterate, during trial, the contents of his sworn statement should not affect his credibility and render the sworn statement useless and insignificant, as long as it is presented as evidence in open court. This is not to say, however, that the sworn statement should be given more probative value than the actual testimony. Rather, the sworn statement and the open court declarations must be evaluated and examined together in toto so that a full and thorough determination of the merits of the case may be achieved. Giving weight to a witness oral testimony during the trial should not mean being oblivious to the other pieces of available evidence such as the sworn statement. In like manner, the court cannot give probative value to the sworn statement to the exclusion of the oral testimony. In every case, the court should review, assess and weigh the totality of the evidence presented by the parties. It should not confine itself to oral testimony during trial. In the instant case, the sworn statement of complainant contained a detailed account of the two rape incidents which made it as convincing and as persuasive as her testimony.
It is likewise true that the prosecutor in this case was not able to propound questions concerning the details of the sexual assault, particularly on the use of force and intimidation by appellant. But this should not preclude resort to complainants sworn statement in order to provide the missing details for the reason that the said sworn statement was part of the testimony of complainant Ailyn Servano and it constituted relevant and competent evidence for the prosecution. Likewise, although the testimony of complainant failed to state that the sexual act was done through force and intimidation, she, however, never declared either that appellant did not employ force and intimidation on her. Thus, she never contradicted the recitals in her sworn statement. She was merely unable to recite the exact contents of the sworn statement, specifically the fact of force and intimidation because, as earlier mentioned, the prosecutor failed to focus on this specific detail. Moreover, complainant could not be expected, on account of her young age and lack of experience, to be precise in her testimony. The rule that an affidavit or sworn statement is inferior to testimony in open court applies only when there are discrepancies and inconsistencies between the allegations in the sworn statement and those made on the witness stand. No such conflict or contradiction exists in the instant case. Hence, the narration made in complainants sworn statement should not be at all disregarded.
It has been indubitably shown in this case that appellant used force and intimidation on his daughter and this effectively cowed her to submission. Such submissive attitude could be explained by private complainants misfortune of growing up without a mother who abandoned her from infancy. Hence, at 44, the appellant wielded complete control and authority over his daughter. She was all alone in the house on the two occasions of rape. No directly threatening words were necessary because appellants commanding presence and bullying behavior were too intimidating for a child like her to resist. Undoubtedly, complainants tender age and appellants custodial control and domination over her rendered complainant subservient to her fathers lechery. Indeed, it is difficult to believe that, given a choice, a daughter will willingly submit to the sexual perversity of her father.
Fear, being a state of mind, is necessarily subjective. Its determination depends on the peculiar circumstances affecting the parties in every case. Complainants fear was particularly evident in this case. According to the social case study report[15 conducted by the Department of Social Welfare and Development (DSWD) of Sorsogon, complainant was withdrawn and looked scared. It was also shown that complainant suffered tremendous physical beatings and abuses in the hands of appellant even before the alleged rape incidents happened. Appellant would inhumanely punish complainant for the small mistakes she committed. To say that complainant was afraid of her father would be an understatement, for the truth was, she dreaded him. This fear was enough for complainant to believe that, if she did not yield to the bestial demands of her father, something would happen to her at that moment or thereafter. She did not have to be intimidated in so many words and actions right at that moment in order to make her submit to his sexual desires. There was an unmistakable learned helplessness on the victims part. The cumulative effects of the fear and intimidation instilled in the minds of victims of incestuous rapes cannot be tested by any hard and fast rule. They must be viewed in the light of the victims perception and judgment not only at the time of the commission of the crime but also at the time immediately after.[16cräläwvirtualibräry
Granted that the prosecution failed to prove that appellant employed force and intimidation upon his daughter, appellants conviction by the trial court for the crime of rape is nevertheless affirmable. We have to bear in mind that, in incest rape, the minor victim is at a great disadvantage because the assailant, by his overpowering and overbearing moral influence, can easily consummate his bestial lust with impunity. As a consequence, proof of force and violence is unnecessary unlike where the accused is not an ascendant or blood relative of the victim. Thus, the failure of the victim to explicitly verbalize, as in this case, the use of force, threat, or intimidation by the accused should not adversely affect the case of the prosecution as long as there is adequate proof that sexual intercourse did take place. Here lies the wisdom of the principle first articulated in People vs. Erardo[17 and affirmed in People vs. Miranda[18 where this Court emphatically held that:
Indeed, in cases of incestuous rape, the accused-appellants moral ascendancy over the victim takes the place of the force and intimidation in rape. The force and intimidation is subjective and should be viewed in the context of the victims perception and judgment at that time of the commission of the offense. Teresita testified that she submitted herself to the father because she was afraid that he might hurt her. She noticed that her father was drunk, knowing that he had a drinking spree in their house at that time. No words of threat were necessary because her fathers presence and moral ascendancy was intimidating enough for Teresita not to resist his advances. The fact that Teresita failed to put up a strong resistance or shout for help cannot be considered consent. xxx In Philippine society, the father is considered the head of the family, and the children are taught not to defy the fathers authority even when this is abused. They are taught to respect the sanctity of marriage and to value the family above everything else. Hence, when the abuse begins, the victim sees no reason or need to question the righteousness of the father whom she has trusted right from the start. The value of respect and obedience to parents instilled among Filipino children is transferred into the very same value that exposes them to risks of exploitation by their own parents. The sexual relationship could begin so subtly that the child does not realize that it is abnormal. Physical force then becomes unnecessary. The perpetrator takes full advantage of this blood relationship. Most daughters cooperate and this is one reason why they suffer tremendous guilt later on. It is almost impossible for a daughter to reject her fathers advances, for children seldom question what grown-ups tell them to do.
In a rape committed by a father against his own daughter, the formers moral ascendancy and influence over the latter substitute for violence and intimidation. That ascendancy or influence necessarily flows from the fathers parental authority, which the Constitution and the laws recognize, support and enhance, as well as from the childrens duty to obey and observe reverence and respect towards their parents. Such reverence and respect are deeply ingrained in the minds of Filipino children and are recognized by law. Abuse of both by a father can subjugate his daughters will, thereby forcing her to do whatever he wants.
Indeed, as between a father and his daughter in incestuous sexual assault, this Court has unqualifiedly upheld the view that the formers moral ascendancy and influence over the latter sufficiently substitute for force and intimidation. Appellants moral ascendancy over the victim satisfies the elements of force and intimidation. Evidence of force and intimidation is therefore not even necessary to secure conviction of the appellant for the crime of rape.
Against the tremendous weight of evidence ranged against him, all appellant could do was put up a lame defense: the two acts of rape could not have possibly happened because the private complainant remained at home to cook rice and wash his clothes. It should be emphasized that there is no standard form of behavior that is expected of rape victims right after they have been defiled because people react differently to emotional stress.[20 It is entirely possible for a rape victim to go through what psychologists describe as a state of denial which is a way of coping with the overwhelming emotional stress of an extremely shocking event. While in that state of denial, the victim refuses either to accept reality or to allow the occurrence to sink in. If this happens, the accused should be the last person to take advantage of it in his defense.
In any event, appellants claim about the victims alleged nonchalance is not true at all. The records show that private complainant did not lose time in reporting her fathers dastardly act to her half-sister when he left the house after the second rape. The fact that complainant immediately told her half-sister about her nightmarish experience, after which they hurriedly went to their aunt Precy to whom they angrily and emotionally reported the matter, leaves little doubt as to the truth or veracity of the charge of rape. Appellant himself admitted that complainant could not be appeased despite his apology. In fact, she was unforgiving. Her spontaneous conduct was an eloquent attestation of her abhorrence and repugnance to her fathers perversity.
Furthermore, the absence of spermatozoa is not a defense since the overriding consideration in rape cases is not the emission of semen but the unlawful penetration of the female genitalia by the male organ.[21 Moreover, while it is true that the victims hymenal lacerations did not necessarily prove rape, it nevertheless acquired significance as corroborative evidence in the light of private complainants accusation that she was sexually abused.
Appellants claim that he merely touched the private part of his daughter on the mistaken assumption that she was his paramour, is totally beyond belief. As aptly observed by the trial court, appellant would not have committed the sexual act for the second time if his tale of mistaken identity had been true. Besides, how could he have mistaken his daughter for his paramour in broad daylight at 7:00 oclock and 9:00 oclock in the morning?
Ailyn bore no grudge against her father. She even admitted during the trial that she loved and trusted him until he raped her. It was thus absurd to accuse her own father of rape had it not been the truth.[22 Accordingly, justice demands that appellant be made to pay for his crimes.
The two informations alleged that the appellant committed the crimes of rape against his 12-year-old daughter. This Court has consistently ruled that the twin circumstances of minority and relationship are in the nature of qualifying circumstances which must be alleged in the information and proved during trial beyond reasonable doubt, otherwise, the accused should only be held liable for the crime of simple rape.[23cräläwvirtualibräry
That Ailyn was appellants daughter was never in dispute. This was one of the admissions made by the appellant during the joint pre-trial of these cases where the parties were duly represented by their respective counsels.
To prove her age, the prosecution adduced in evidence what purported to be Ailyn Servanos certificate of live birth.[24 However, this document was correctly disregarded by the trial court because, aside from its belated registration,[25 there were irregularities attendant to its preparation, such as the erroneous dates and names of certain persons appearing thereon. While complainant testified that she was born on January 7, 1986,[26 the date of birth on her birth certificate is August 4, 1986. Also, the middle initial of the private complainant herself was written erroneously as F instead of C. The name of the appellant under the space for informant was merely superimposed on what appeared to be that of another person.
In the absence of any other competent evidence, such as the baptismal certificate, school records or the testimony of the victims relatives, the testimony of the private complainant was not sufficient proof of her actual age without an express and clear admission thereof by the appellant, pursuant to our ruling in People vs. Pruna.[27 Since it was the prosecution that had the burden of proving the age of the offended party, the failure of the appellant to object to the testimonial evidence regarding the victims age could not be taken against him. The prosecution failed to prove the actual age of the private complainant as alleged in the separate informations, thus the appellant should be convicted of simple rape and sentenced accordingly to reclusion perpetua in each case.
Jurisprudence dictates that, upon a finding of the fact of rape,
the award of civil indemnity ex delicto in the amount of
WHEREFORE, the judgment of the lower court is hereby
AFFIRMED with the MODIFICATION that appellant Charmie Servano is found guilty
of two counts of simple rape and is sentenced to suffer the penalty of reclusion
perpetua for each count of rape.
is also ordered to pay for each count of rape the amount of (a)
Puno, Panganiban, Ynares-Santiago, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Davide, Jr., C.J., joins Mr. Justice Vitug in his dissents.
Bellosillo, J., see concurring opinion.
Vitug, J., see dissenting opinion.
Quisumbing and Sandoval-Gutierrez, JJ., on official leave.
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