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[ G.R. No. 224597, July 29, 2019 ]




The Case

This appeal[1] seeks to reverse and set aside the Decision[2] dated November 24, 2015 of the Court of Appeals in CA-G.R. CR-HC No. 01145-MIN, which affirmed the trial court's verdict of conviction[3] against accused-appellant Dante Cubay y Ugsalan for forty-four (44) counts of rape. Its dispositive portion reads:
WHEREFORE, the appeal is DENIED. The Joint Judgment dated 30 January 2013 of the Regional Trial Court (RTC) of Manolo Fortich, Bukidnon, Branch 11 in Criminal Case Nos. 08-05-3536 to 08-05-3579 finding accused-appellant Dante Cubay guilty beyond reasonable doubt of forty-four (44) counts of rape is AFFIRMED in toto.

The Informations

Appellant Dante Cubay y Ugsalan was charged with forty-four (44) counts of rape under separate Informations which, except for the material dates, uniformly read, thus:
That on or about the 7th day of September, 2007, in the evening, at XXX, province of Bukidnon, Philippines particularly at the Special Education Dormitory (SPED) and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have sexual intercourse with [AAA], (an) 18 year-old (who) suffered (a) physical defect (hearing impaired) against her will, to the damage and prejudice of [AAA] in such amount as (may be) allowed by law.

CONTRARY to (and) in violation of R.A. 8353.[5]
The forty-four (44) Informations bore the following details, viz:
Case Number
Date of Commission
1.Crim. Case No. 08-05-3536September 7, 2007 
2.Crim. Case No. 08-05-3537September 10, 2007 
3.Crim. Case No. 08-05-3538September 11, 2007 
4.Crim. Case No. 08-05-3539September 12, 2007 
5.Crim. Case No. 08-05-3540September 13, 2007 
6.Crim. Case No. 08-05-3541September 14, 2007 
7.Crim. Case No. 08-05-3542September 17, 2007 
8.Crim. Case No. 08-05-3543September 18, 2007 
9.Crim. Case No. 08-05-3544September 19, 2007 
10.Crim.Case No. 08-05-3545September 20, 2007 
11.Crim. Case No. 08-05-3546September 21, 2007 
12.Crim. Case No. 08-05-3547September 24, 2007 
13.Crim. Case No. 08-05-3548September 25, 2007 
14.Crim. Case No. 08-05-3549September 26, 2007 
15.Crim. Case No. 08-05-3550September 27, 2007 
16.Crim. Case No. 08-05-3551September 28, 2007 
17.Crim. Case No. 08-05-3552October 1, 2007 
18.Crim. Case No. 08-05-3553October 3, 2007 
19.Crim. Case No. 08-05-3554October 4, 2007 
20.Crim. Case No. 08-05-3555October 5, 2007 
21.Crim. Case No. 08-05-3556October 8, 2007 
22.Crim. Case No. 08-05-3557October 9, 2007 
23.Crim. Case No. 08-05-3558October 10, 2007 
24.Crim. Case No. 08-05-3559October 11, 2007 
25.Crim. Case No. 08-05-3560October 12, 2007 
26.Crim. Case No. 08-05-3561November 6, 2007 
27.Crim. Case No. 08-05-3562November 7, 2007 
28.Crim. Case No. 08-05-3563November 8, 2007 
29.Crim. Case No. 08-05-3564November 9, 2007 
30.Crim. Case No. 08-05-3565December 7, 2007 
31.Crim. Case No. 08-05-3566December 6, 2007 
32.Crim. Case No. 08-05-3567December 5, 2007 
33.Crim. Case No. 08-05-3568December 4, 2007 
34.Crim. Case No. 08-05-3569December 3, 2007 
35.Crim. Case No. 08-05-3570November 13, 2007 
36.Crim. Case No. 08-05-3571November 14, 2007 
37.Crim. Case No. 08-05-3572November 15, 2007 
38.Crim. Case No. 08-05-3573November 16, 2007 
39.Crim. Case No. 08-05-3574January 14, 2008 
40.Crim. Case No. 08-05-3575January 15, 2008 
41.Crim. Case No. 08-05-3576January 16, 2008 
42.Crim. Case No. 08-05-3577January 17, 2008 
43.Crim. Case No. 08-05-3578January 18, 2008 
44.Crim. Case No. 08-05-3579
November 12, 2007
The cases were raffled to the Regional Trial Court, Branch 11, Manolo Fortich, Bukidnon.

Arraignment and Plea

On arraignment, appellant pleaded "not guilty" to all the charges.[6] Thereafter, the cases were consolidated and jointly tried.

During the trial, complainant AAA, her attending doctor Rubee Ann Go-Gotil, her two aunts BBB and CCC, SPED Teacher DDD, and sign language experts Joshua Asuela, Jr. and Roygie Gantalao testified for the prosecution. On the other hand, appellant Dante Cubay alone testified for the defense.

The Prosecution's Version

Complainant is a congenital deaf mute.[7] Her hearing impairment was classified as "profound" and her level of education in formal sign language, low, i.e. that of a grade two (2) pupil. But she is teachable in the informal or basic sign language.

In 2003, complainant started studying at XXX Special Education (SPED) Center - a special school for children with disabilities, i.e. mental, visual, and hearing impairment.[8] The SPED Center and dormitory were located inside XXX Elementary School, XXX, Bukidnon. The school required SPED students to stay in the dormitory. Complainant stayed in the dormitory during school days and went home to her grandfather's house at XXX, Bukidnon on weekends.[9]

Appellant is the school watchman assigned at XXX Elementary School, XXX SPED Center, and the SPED dormitory. His wife is the dormitory's caretaker.[10]

Complainant's aunt, BBB is a SPED teacher in XXX SPED Center.[11] One time, complainant's teacher DDD told BBB that she (DDD) saw complainant eating snacks with appellant. To quell rumors about complainant and appellant, BBB convinced her father (complainant's grandfather) to have complainant move in with her.[12] Complainant initially agreed but when her grandfather came to fetch her, she refused to go because she was afraid her grandfather would scold her. Three (3) days later, she voluntarily went to her grandfather's house which was closer to the house of her other aunt CCC.[13]

Complainant's physical and behavioral changes, including her frequent headache and stomach ache aroused her aunts' suspicion. Then CCC learned complainant had missed her menstrual period, CCC caused complainant to take a pregnancy test which yielded a positive result.[14] When asked who the father of her child was and who molested her, complainant motioned the name "Dante," herein appellant. She then charged appellant with rape before the XXX Police Station.[15]

With the assistance of sign language interpreters Joshua Asuela, Jr. and Roygie Gantalao, complainant testified that sometime in September 2007, while she was studying inside her dormitory room, appellant entered her room, undressed her, touched her body, and inserted his penis in her vagina. She pushed appellant, but it was in vain.[16] The incident was repeated several times, specifically on September 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27, and 28, 2007; October 1, 3, 4, 5, 8, 9, 10, 11, and 12, 2007 November 6, 7, 8, 9, 12, 13, 14, 15, and 16, 2007; December 3, 4, 5, 6, and 7, 2007; and January 14, 15, 16, 17, and 18, 2008. The rape incidents happened at night during school days inside complainant's dormitory room. Complainant consequently conceived and gave birth to a child in June 2009.[17]

On January 28, 2008, Dr. Rubee Ann Go-Gotil examined complainant and found old healed hymenal lacerations at 3 and 9 o'clock positions. She also confirmed complainant's pregnancy. Her Living Case Report[18] contained her findings.

The prosecution presented as documentary evidence: Living Case Report dated January 29, 2008[19] (Exhibit "A"); Certification dated January 30, 2008[20] (Exhibit "B"); and Complainant's Sworn Statement dated January 27, 2008[21] (Exhibit "C").

The Defense's Version

Appellant denied the charges. He admitted he had sexual congress with complainant for more than forty-four (44) times but asserted they were all consensual. Complainant filed the rape charges only because her pregnancy and illicit affair with him brought embarrassment to her family.

On February 27, 2007, he got employed as watchman of XXX SPED School and Dormitory in XXX Elementary School. He worked from 7:30 in the evening until 4:30 in the morning and resided in the school dormitory. His wife also worked and resided in the SPED dormitory as caretaker tasked to look after the blind students. He met complainant on the same day he got employed. She and her friend EEE frequently roamed around the school premises and visited him in his post at night. Complainant communicated with him through sign language which EEE, a polio victim with no hearing impairment, would interpret to him.[22]

On February 28, 2007, complainant spoke signs to appellant. EEE said complainant was telling him he was handsome and she liked him. He knew complainant liked him because she even wrote him a letter which his wife had torn. Complainant told him she wanted them to be friends even after he confided to her he was already married. They had since become lovers. Complainant visited him in his post every night. She became close to him and even gave him a stuff toy, watch, and a photo of them together with dedication at the back.[23]

On October 3, 2007, complainant went to his sleeping quarters and gave him a watch and a stuff toy.[24] Because of the heavy rains that night, his companion who occupied the quarters with him did not arrive. He told complainant to go home but the latter refused and even slept beside him. Complainant pinched him, then they started kissing, tickling, and hugging each other. They eventually had sexual intercourse. Complainant never resisted but consented to everything they did. She even sucked his lips when he inserted his sex organ into hers. After October 3, 2007, they had many more nights of sexual congress in his quarters, all with complainant's full consent. Complainant was already of legal age when they started having sexual intercourse.[25] He had sexual intercourse with complainant more than forty-four (44) times.[26] EEE and his wife's male cousin named Rey knew about his sexual congress with complainant as they, too, were lovers.[27]

Complainant charged him with rape only because her aunt BBB had threatened her.[28]

The defense offered in evidence the stuff toy (Exhibit "1"); a ladies' watch (Exhibit "2"); and a picture (Exhibit "3").[29]

The Trial Court's Ruling

By Joint Judgment[30] dated January 30, 2013, the trial court found appellant guilty of forty-four (44) counts of rape, thus:
WHEREFORE, premises above considered, the court finds DANTE CUB AY y Ugsalan GUILTY beyond reasonable doubt of rape of AAA for 44 counts and hereby sentences him to suffer the penalty each of RECLUSION PERPETUA in Criminal Case Numbers 08-05-3536 up to Criminal Case No. 08-05-3579 and he is further ordered:

A - To pay AAA -
  1. Civil Indemnity - Php 75,000.00 each for forty-four counts of rape aforementioned;

  2. Moral Damages - Php 50,000.00 each for 44 counts of rape aforementioned;

  3. Exemplary damages - Php 25,000.00 each for forty- four counts of rape aforementioned;
B - In every case -
  1. Recognition of the child of AAA;

  2. To support the offspring of AAA; and
C -
  1. Pay the costs.
Accused is credited (for) his preventive detention at the PDRC-Manolo Fortich, Bukidnon, and the remainder of his penalties shall be served at the Davao Prison and Penal Farm, B.E. Dujali, Davao del Norte, where he properly belongs.

The Proceedings before the Court of Appeals

On appeal, appellant faulted the trial court for finding him guilty of forty-four (44) counts of rape despite the prosecution's alleged failure to prove his guilt beyond reasonable doubt. Appellant essentially argued: (1) Complainant's testimony did not deserve credence as it was uncorroborated, implausible, and replete with inconsistencies. More, complainant's testimony was only conveyed to the court by sign language interpreters who were engaged by complainant's family and who appeared biased in favor of the prosecution. (2) The trial court erred in allowing the prosecution to propound leading questions on complainant. (3) There was no rape because his sexual congress with complainant was consensual, they being lovers. Although complainant had impaired hearing, she was capable of giving consent to the sexual intercourse. She was already eighteen (18) years old during all their forty-four (44) sexual encounters. She had normal mental faculties during all those times.[32]

On the other hand, the Office of the Solicitor General (OSG), through State Solicitor Alberto T. Talampas maintained that the prosecution was able to prove to a moral certainty that appellant had carnal knowledge of complainant for forty-four (44) times through force, threat, or intimidation. Her consistent and positive identification of appellant as the man who raped her prevails over appellant's self-serving denial and uncorroborated sweetheart theory.[33]

The Court of Appeals' Ruling

By Decision[34] dated November 24, 2015, the Court of Appeals affirmed.

The Present Appeal

Appellant now seeks affirmative relief from the Court and prays anew for his acquittal. In compliance with Resolution[35] dated July 13, 2016, both appellant and the OSG manifested[36] that, in lieu of supplemental briefs, they were adopting their respective briefs before the Court of Appeals.


Did the Information validly charge the crime of rape?

Assuming the affirmative, was the prosecution able to prove beyond reasonable doubt the forty-four (44) counts of rape?


The Informations do not charge the crime of rape.

The principal purpose of an Information is to ensure that the accused is formally informed of the facts and acts constituting the offense charged[37] in accordance with the rights of the accused enshrined in the Constitution.[38] Toward this end, the Rules of Court requires that the Information clearly accurately allege every element of the offense charged. Section 6, Rule 110 pertinently provides:
Section 6. Sufficiency of complaint or information. - A complaint or information is 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.[39] (Emphasis supplied)
Where the Information is insufficient, it cannot be the basis of any valid conviction. Quimvel v. People of the Philippines[40] decrees:
The main purpose of requiring the elements of a crime to be set out in the Information is to enable the accused to suitably prepare his defense because he is presumed to have no independent knowledge of the facts that constitute the offense. The allegations of facts constituting the offense charged are substantial matters and the right of an accused to question his conviction based on facts not alleged in the information cannot be waived. As further explained in Andaya v. People:
No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights. (Emphasis added)
Here, appellant was charged with forty-four (44) counts of rape. The elements of rape are as follows: (1) the offender had carnal knowledge of a woman; and (2) the offender accomplished such act through force or intimidation, or when the victim was deprived of reason or otherwise unconscious, or when she was under twelve (12) years of age or was demented.

We quote anew the forty-four (44) separate Informations, which except for the material dates, uniformly read:
That on or about the 7th day of September, 2007, in the evening, at XXX, province of Bukidnon, Philippines particularly at the Special Education Dormitory (SPED) and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have sexual intercourse with [AAA], (an) 18 year-old (who) suffered (a) physical defect (hearing impaired) against her will, to the damage and prejudice of [AAA] in such amount as (may be) allowed by law.

CONTRARY to (and) in violation of R.A. 8353.[41]
The Informations conspicuously lack the second element of rape, i.e. the accused employed force or intimidation, or that the victim was deprived of reason, unconscious, under twelve (12) years of age, or was demented.

Surely, being a deaf-mute does not necessarily take the place of the element of force or intimidation or having been deprived of reason, unconscious, or demented. The allegation that "the accused did then and there willfully, unlawfully and feloniously have sexual intercourse with AAA, an 18 year-old (who) suffered a physical defect (hearing impaired) against her will, xxx" does not equate to force or intimidation either.

In fine, the Informations do not validly charge the crime of rape or any offense at all. The same, for sure, cannot be the basis of a valid judgment of conviction.

We are not unmindful of the rule that by his plea, an accused is deemed to have waived all objections to the information. This rule, however, is correct only insofar as formal objections to the pleadings are concerned. By express provision of Section 9, Rule 117 of the Rules of Court and by established jurisprudence, the validity of the Information vis-a-vis the essential issue of whether or not it sufficiently charges an offense goes into the very foundation of jurisdiction, hence, may be raised and addressed at any stage of the proceedings. Sections 9 and 3 of Rule 117 relevantly provide:
Sec. 9. Failure to move to quash or to allege any ground therefor. - The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of Section 3 of this Rule. (Emphasis supplied)

Sec. 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;


(g) That the criminal action or liability has been extinguished; and


(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. (Emphasis supplied)
In some cases, the Court considered the omission of the essential element of "force or intimidation" to be non-fatal in view of its recital in the complaint itself which at any rate formed part of the Information.[42]

But this is not the case here. Both the Information and Complaint did not allege the essential element of "force or intimidation," specifically, that the accused employed force or intimidation, or that the victim was deprived of reason, unconscious, under twelve (12) years of age, or was demented. For easy reference, the Complaint reads, thus:
The undersigned offended party, hereby accuses Dante U. Cubay, 40 years old, married a caretaker of XXX Central School, a resident of XXX, Bukidnon for the crime of RAPE, committed as follows, to wit:
That every ten (o'clock) in the evening during school days of September 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 2007, October 1, 3, 4, 5, 8, 9, 10, 11, 12, 2007, November 6, 7, 8, 9, 12, 13, 14, 15, 16, 2007, December 3, 4, 5, 6, 7, 2007 and January 14, 15, 16, 17, 18, 2008 at SPED Dormitory, XXX, Province of Bukidnon, Philippines and within the (jurisdiction) of this Honorable Office of the Department of Justice, the (above-named) accused did then and there willfully, unlawfully, maliciously intend and with lewd desire rape the minor who is a hearing impaired and had given her money and other things thus sex was not freely given.
CONTRARY TO LAW, under ART. 335 of the RPC.[43]
To repeat, an Information which does not sufficiently charge an offense is fatally defective and warrants the acquittal of the accused.

Guelos v. People[44] explains the significance of the propriety and sufficiency of the charge made in the information, viz:
In People v. Flores, Jr., as reiterated in the more recent cases of People v. Pangilinan and People v. Dadulla, the Court ruled that the constitutional right of the accused to be informed of the nature and cause of the accusation against him cannot be waived for reasons of public policy. Hence, it is imperative that the complaint or information filed against the accused be complete to meet its objectives. As such, an indictment must fully state the elements of the specific offense alleged to have been committed. For an accused cannot be convicted of an offense, even if duly proven, unless it is alleged or necessarily included in the complaint or information. In other words, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged, the accused being presumed to have no independent knowledge of the facts that constitute the offense. Under Section 9 of Rule 117 of the 2000 Revised Rules on Criminal Procedure, an accused's failure to raise an objection to the insufficiency or defect in the information would not amount to a waiver of any objection based on said ground or irregularity. (Emphasis supplied)
So must it be.

The elements of rape were not established

Even assuming the Informations validly charged the crime of rape, a verdict of acquittal here is still in order.

In convicting appellant of forty-four (44) counts of rape, the trial court and the Court of Appeals mainly relied on complainant's testimony on direct and cross. The full text of her testimony reads:
Do you recall what did Dante do to you?
Yes Dante entered my room and I was raped by Dante.[45]

xxx xxx xxx
Where did this happen?
In the room in the dormitory where I was sleeping.
When you said rape, what do you mean by that?
Undressed, touched my body and then I pushed him, I was afraid.
You mean he inserted his penis to your vagina?
Yes sir.[46]

xxx xxx xxx
Now, if you can recall, how many times did he rape you?
September, October, November, December and January.[47]

xxx xxx xxx
And do you recall if these incidents of rape happened during school days?
Yes sir.[48]
The thing speaks for itself. On the whole, AAA's testimony is noticeably terse, vague, equivocal, and seriously wanting in details pertaining to the presence of the essential element of force or intimidation. AAA's testimony only bears the element of carnal knowledge.

That AAA pushed appellant when he "undressed, touched my body. . ., I was afraid" is at best equivocal. Again, this hardly equates with "force or intimidation" within the penal provision defining and penalizing rape.

For one, the act of pushing did not emanate from appellant but from AAA. For another, "pushing" is equivocal subject to different interpretations depending on the attendant circumstances. It may mean a gentle "no, " "not yet," "wait," "I am shy," "not here," and many more possible interpretations or meanings. One thing is sure though: under the attendant circumstances, it cannot be deemed sufficient proof of resistance or unconsented sex.

In any event, People v. Tionloc[49] decrees that resistance must be manifested and tenacious, viz:
In People v. Amogis this Court held that resistance must be manifested and tenacious. A mere attempt to resist is not the resistance required and expected of a woman defending her virtue, honor and chastity. And granting that it was sufficient, "AAA" should have done it earlier or the moment appellant's evil design became manifest. In other words, it would be unfair to convict a man of rape committed against a woman who, after giving him the impression thru her unexplainable silence of her tacit consent and allowing him to have sexual contact with her, changed her mind in the middle and charged him with rape.
The short and long of it is this: The evidence on record indubitably show that then eighteen (18) year old AAA, albeit she is a deaf-mute with low capacity to learn formal sign language, is in truth, mentally capable of giving or withholding consent.

For even though AAA is a deaf-mute and certified to be only at Grade 2 level in formal sign language education does not mean she is suffering from mental abnormality, deficiency, or retardation which has the effect of hindering her capacity to give consent. People v. Butiong[50] elucidates:
Carnal knowledge of the female with her consent is not rape, provided she is above the age of consent or is capable in the eyes of the law of giving consent. xxx

xxx  xxx  xxx

In his commentary on the Revised Penal Code, Justice Aquino discusses the concept of committing rape against the female's will or without her consent, to wit:

xxx xxx  xxx

The deprivation of reason need not be complete. Mental abnormality or deficiency is enough. Cohabitation with a feebleminded, idiotic woman is rape. Sexual intercourse with an insane woman was considered rape. But a deaf-mute is not necessarily deprived of reason. This circumstances must be proven. Intercourse with a deaf-mute is not rape of a woman deprived of reason, in the absence of proof that she is an imbecile. xxx (Emphasis supplied)
Notably, AAA had reached Grade VI of elementary education and her teacher assessed her to be an average student and a normal child, viz:[51]
Ms. AAA finished Grade 6 Elementary (Education) the lessons you thought (sic) from the start of the school year from June up to January?
Yes Sir.[52]

xxx xxx xxx
The education that you thought (sic) AAA include the education on Morals and Values, is that correct?
Yes Sir.[53]

xxx xxx xxx
Now in your teaching, you being instructor or teacher of AAA as per your experience, can you consider her to be intelligent pupil?
Yes Sir.
Meaning she can understand the lessons that you thought (sic)?
She is average in my assessment.
But in your assessment, she could determine what is right and what is wrong and what is good and what is bad?
Yes Sir.[54]

xxx xxx xxx
When you say hearing impaired child, who is a special child, you mean to say she is not a normal child?
Normal but she cannot hear and cannot talk that is why they are called special because they are not like us that can hear and can talk.
In your lectures and in your dealings with her you treat her as normal but they are not sensitive as to the use of her sense of hearing?
Yes Your Honor.
So they are considered special in the sense that, they are normal but they could not hear?
They cannot talk because they cannot hear.[55]
Her relatives acknowledged her to be normal and capable of engaging into romantic relations, albeit they opposed the idea as she was still studying at that time.[56]
But you considered (your) niece as normal except that she has hearing impaired?
Yes Sir.
Do you not want her happy and have relationship with a person who is of the opposite sex?
Maybe in that time. For me it is not proper time that she engaged in that, because she still studying.[57]
In another vein, AAA's broadly sweeping statement that "I was raped . . . in September, October, November, December, and January" is a conclusion of law. On this score, We have consistently ruled that the victim's bare statement that the accused raped her again on the succeeding dates is a conclusion of law which cannot serve as sole basis for appellant's conviction. People v. Nuyte[58] lucidly teaches:
AAA's bare statements that appellant repeated what he had done on her previously were not enough to establish beyond reasonable doubt the incidents subject of Criminal Case Nos. FC-00-781, FC-00-784 and FC-00-785. Said declarations were mere general conclusions. The prosecution must endeavor to present in detailed fashion the manner by which each of the crimes was committed. "Every charge of rape is a separate and distinct crime and each must be proved beyond reasonable doubt." There is no reason why the foregoing principle should not be applied in the aforementioned cases. Prescinding therefrom, appellant should be acquitted in these cases.
To emphasize, sexual intercourse here between appellant and AAA happened at least forty-four (44) times over only a period of five (5) months. And through all these times, AAA never complained. She did not even want to leave the dormitory where all her forty-four (44) sexual encounters with appellant happened. She was even seen by one of her teachers "eating snacks with appellant," hence her aunt BBB, also a SPED teacher, proposed to AAA's grandfather to pull AAA from the dormitory and make her live with her (BBB) because she did not want ugly rumors to spread.[59]

Too, AAA testified she did not go with her grandfather the first time the latter came to pull her out from the dormitory because "he might scold her." For what? If we put it in context, it was because of the "ugly rumor spreading" about her and appellant.

Finally, AAA revealed the supposed rape (forty-four [44] counts altogether) only when her relatives discovered she was pregnant.

The foregoing circumstances taken singly or collectively, are exculpatory evidence which compel no less than a verdict of acquittal.

It is settled that in every criminal prosecution, the accused is presumed innocent until the contrary is established by the prosecution. The prosecution bears the burden of establishing an accused's guilt beyond reasonable doubt.[60] Its evidence must stand or fall on its own merits and cannot draw strength from the weakness of the defense. When the evidence fails to establish all the elements of the crime, as in this case, the verdict must be one of acquittal.[61]

ACCORDINGLY, the appeal is GRANTED. The Decision dated November 24, 2015 of the Court of Appeals in CA-G.R. CR-HC No. 01145-MIN is REVERSED and SET ASIDE and a new one rendered ACQUITTING DANTE CUBAY Y UGSALAN of rape in Criminal Case Nos. 08-05-3536 to 08-05-3579.

The Court ORDERS the Superintendent of the Davao Prison and Penal Farm, B.E. Dujali, Davao del Norte to immediately release DANTE CUBAY Y UGSALAN unless he is being detained for some other cause; and to submit his compliance report within five (5) days from notice.

Let an entry of final judgment be issued immediately.


Carpio, (Chairperson), Perlas-Bernabe, and Caguioa, JJ., concur.
J. Reyes, Jr., J., See my dissenting opinion.

[1] CA rollo, pp. 300-301, filed under Section 2, Rule 125 in relation to Section 3, Rule 56 of the Rules of Court.

[2] Penned by Associate Justice Oscar V. Badelles and concurred in by Associate Justices Romulo V. Borja and Pablito A. Perez, rollo, pp. 3-13.

[3] CA rollo, pp. 239-252, Joint Judgment dated January 30, 2013 of the Regional Trial Court, Manolo Fortich, Bukidnon, Branch 11, in Criminal Case Nos. 08-05-3536 to 08-05-3579.

[4] Rollo, p. 13.

[5] Record (Criminal Case No. 08-05-3536), p. 2.

[6] Id. at 22-24.

[7] TSN, April 10, 2012, p. 6.

[8] TSN, August 11, 2010, p. 5-8; Exhibit "B," Record (Criminal Case No. 08-05-3536), p. 11.

[9] TSN, April 6, 2011, pp. 16-18; TSN, April 10, 2012, pp. 4-7.

[10] TSN, August 11, 2010, p. 10.

[11] Id. at 11-12.

[12] TSN, August 11, 2010, pp. 11-12; TSN, November 17, 2010, p. 18.

[13] TSN, November 17, 2010, pp. 13-20.

[14] Id. at 25-27.

[15] TSN, April 10, 2012, pp. 17-18; TSN, August 7, 2012, pp. 8-11; TSN, May 29, 2012, pp. 8-11.

[16] TSN, April 10, 2012, pp. 7-16.

[17] Id. at 16-18.

[18] Exhibit "A," Record (Criminal Case No. 08-05-3536), p. 10.

[19] Id.

[20] Id. at 11.

[21] Record (Criminal Case No. 08-05-3537), p. 7.

[22] TSN, November 13, 2012, pp. 7-12.

[23] Id. at 13-19.

[24] TSN, November 27, 2012, p. 26.

[25] Id. at 13-19.

[26] Id. at 33.

[27] Id. at 20-22.

[28] Id. at 23.

[29] See Order dated December 17, 2012, Record (Criminal Case No. 08-05-3537), pp. 123-124; TSN, December 17, 2012, pp. 3-5.

[30] Penned by Presiding Judge Jose U. Yamut, Sr., CA rollo, pp. 239-252.

[31] Id. at 251-252.

[32] CArollo, pp. 209-238.

[33] Id. at 263-281.

[34] Rollo, pp. 3-13.

[35] Id. at 19-20.

[36] Id. at 21-22, and 24-25.

[37] See People v. Sandiganbayan, 769 Phil. 378, 387 (2015).

[38] Article III, Section 14 of the 1987 Constitution pertinently provides:

Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided that he has been duly notified and his failure to appear is unjustifiable.

[39] See also People v. Gutierrez, 451 Phil. 227, 239 (2003).

[40] 808 Phil. 889, 912-913 (2017).

[41] Record (Criminal Case No. 08-05-3536), p. 2.

[42] People v. Mendez, 390 Phil. 449, 458 (2000), citing People v. Oso, 62 Phil. 271, 274-275 (1935).

[43] Record (Criminal Case No. 08-05-3536), p. 6.

[44] 811 Phil. 37, 62-63 (2017), citing People v. Flores, 442 Phil. 561, 569-570 (2002).

[45] TSN, April 10, 2012, p. 8.

[46] Id. at 9.

[47] Id.

[48] Id. at 10.

[49] 805 Phil. 907, 918 (2017).

[50] 675 Phil. 621, 632 (2011).

[51] TSN, July 30, 2012, pp. 3-6 and 14.

[52] Id. at 4.

[53] Id. at 5.

[54] Id. at 6.

[55] Id. at 14.

[56] TSN, November 17, 2010, p. 21.

[57] Id.

[58] G.R. No. 219111, March 12, 2018.

[59] TSN, August 11, 2010, p. 12.

[60] See People v. Salidaga, 542 Phil. 295, 308 (2007).

[61] People v. Tionloc, supra note 49, at 909.


REYES, J. JR., J.:

But let your communication be, Yea, Yea; Nay, Nay for whatsoever is more than these cometh of evil.

Matthew 5:37

History is telling that those who pursued the primrose path oft courted their own demise and eventual ruin. There is nothing more sinister than a gardener who feels entitled to indiscriminately pick a flower from a garden without the permission from his/her master just because he/she was allowed to tend it. For the most dangerous thief is not the one that lingers outside your home, but the one who enters it and pretends to be your friend.

The ponencia acquits the accused-appellant on the ground that 1) the Information do not charge the crime of rape; and 2) the elements of rape were not established.

I disagree.

At the outset, it is beyond comprehension how a young girl, of tender age and afflicted with significant communication deficiency, could possibly give her consent to an opportunistic and unscrupulous deviant, who has no ability or knowledge whatsoever to receive the same. Moreover, to rely on the opinion that the complainant's "weak resistance" justified the unwarranted advances of accused-appellant should deserve the utmost disdain from this Court and has no place in our jurisprudence lest it encourage malicious elements to abuse and exploit more victims in the future.

The Information had sufficiently and substantially established all the elements of the crime of rape

The ponencia postulates that the Information failed to state all the elements of the crime of rape, specifically that the accused-appellant employed force or intimidation, or that the victim was deprived of reason, unconscious, under 12 years of age, or was demented.

The separate Information charging accused-appellant with 44 counts of rape generally states the following, to wit:
That on or about the (7th day of September, 2007), in the evening, at XXX, Province of Bukidnon, Philippines, particularly at the Special Education (SPED) Dormitory and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have [sic] sexual intercourse with [AAA], an 18-year-old but [sic] suffered a physical defect (hearing defect) against her will, to the damage and prejudice of [AAA] in such amount as may be allowed by law. (Emphasis supplied)
It is well-established in our jurisprudence that the acts or omissions constituting the offense and the qualifying and aggravating circumstances alleged must be stated in ordinary and concise language; they do not necessarily need to be in the language of the statute, and should be in terms sufficient to enable a person of common understanding to know what offense is charged and what qualifying and aggravating circumstance are alleged, so that the court can pronounce judgment.[1]

The essence of rape is carnal knowledge of a female either against her will (through force or intimidation) or without her consent (where the female is deprived of reason or otherwise unconscious, or is under 12 years of age, or is demented).[2] There is nothing more concise and direct statement/description to allege that accused-appellant employed force or intimidation, or that the victim was deprived of reason, unconscious, under 12 years of age, or was demented, from that he had carnal knowledge with the complainant against her will. While the means or methods employed by the accused were not specifically described in the legal terms used by the law, it was sufficiently implied by the use of the phrase "against her will."

Furthermore, contrary to the assertions of the ponencia, it cannot be said that accused-appellant was not formally informed of the facts and the acts constituting the offense charged. The phrase "against her will" connotes deprivation of will or consent from the victim, as opposed to the defense of accused-appellant that his carnal knowledge of the former was mutual and with consent. The fact that he used the "sweetheart defense" necessarily means that he understood and denies the allegation that any sexual congress that occurred between him and the complainant was against her will or consent.

Any ground to quash an Information does not entitle the accused to an acquittal

Assuming arguendo that the Information lacks an element of the crime charged against the accused-appellant, Section 4, Rule 117 of the Revised Rules of Criminal Procedure clearly states that if the ground based upon is that "the facts charged do not constitute an offense," the prosecution shall be given by the court an opportunity to correct the defect by amendment.[3]

In People v. Leviste,[4] this Court stressed that the State, like any other litigant, is entitled to its day in court; in criminal proceedings, the public prosecutor acts for and represents the State, and carries the burden of diligently pursuing the criminal prosecution in a manner consistent with public interest. Thus, by not allowing the prosecution to have the opportunity to amend the alleged defect in the Information during the trial stage and worse, to acquit the accused-appellant outright, effectively curtailed the State's right to due process.

In any event, any ground to sustain a motion to quash under Section 3, Rule 117 of the Rules of Court, except Section 3(g) and (i), is not a bar to another prosecution for the same offense[5] and if in custody, the accused shall not be discharged unless admitted to bail, if allowed.[6] Thus, it is incorrect to order the acquittal of accused-appellant because it would serve as double jeopardy and therefore, bar any subsequent complaint or information to be filed against him for the same offense. The rules regarding the same are clear and there is no room for any other interpretation thereto.

The date of the commission of the rape is not an essential element of the crime

The ponencia finds that the prosecution has failed to establish the elements of the crime of rape. The majority faults the complainant for: 1) failing to testify the accurate dates when she was raped by accused-appellant; 2) the testimony of the complainant was "noticeably terse, vague, equivocal and seriously wanting in details pertaining to the presence of the essential element of force and intimidation;" and 3) failing to prove that her resistance was manifested and tenacious.

It is well-established that the date of commission of the rape is not an essential element of the crime.[7] Since human memory is fickle and prone to the stresses of emotion, accuracy in a testimonial account has never been used as a standard in testing the credibility of a witness.[8] This is even truer in cases where the victim suffers from a disability which clearly prevents her from effectively communicating with another person, as is in the instant case.

Neither is the belated filing of the Information against accused-appellant relevant, as jurisprudence is replete with rulings that a rape victim's deferral in reporting the crime does not equate to falsification of the accusation.[9]

It has been repeatedly ruled that "delay in reporting an incident of rape is not necessarily an indication that the charge is fabricated, particularly when the delay can be attributed to fear instilled by threats from one who exercises ascendancy over the victim."[10] The accused-appellant was the caretaker of the school dormitory where the complainant was residing. Under the context of "friendship," he gained the trust and goodwill of complainant in her vulnerable state. He had access to the complainant any time of the day, which was clearly shown when he went to her room, sent her roommate away and satisfied his lust against her will. The absence of force or intimidation during the subsequent times that he raped her gains no valuable significance considering that accused-appellant exerted a moral influence over the complainant, over which may substitute for actual physical violence and intimidation.[11]

Furthermore, to blame the victim for not raising the injustice that had happened to her immediately after her first ordeal to the proper authorities and allowing the perpetrator to continue with his vile advances would be absurd. Every person's reaction to a heinous act committed against his/her person, honor, liberty and/or property cannot be simply chalked up to mathematical statistics and logical drivel. One may instantly fling himself/herself against his/her attacker in righteous fury and seek immediate and just reparation for the damage done to his/her person and honor, while another may need a longer time to recover his/her sanity due the shock of the abuse, thus, committed against him/her and prefer to delay his/her retaliation against his/her tormentors. Only an omnipotent, omniscient and omnipresent God could tell how a rape victim should and would react after such harrowing and stressful situation. If even trained experts in this field have differing opinions on how the abused mind of a rape victim reacts after the fact, the Court should apply the same level of caution and not make any speculative judgments regarding when a rape victim should have been considered recovered enough to face his/her abuser/s privately, much less publicly in court.

As held in People v. Ducay,[12] [t]he range of emotions shown by rape victims is yet to be captured even by the calculus. It is, thus, unrealistic to expect uniform reactions from rape victims. We have no standard form of behavior for all rape victims in the aftermath of their defilement, for people react differently to emotional stress.

Thus, the Court should only rely on the evidence presented before it and not engage in guesswork on how the complainant should have reacted or the decisions she should have taken after being subjected to a traumatizing event at the hands of her abuser. That kind of "what-ifs" scenario should be left to the unforgiving imagination of the victim herself and the Court should not allow guilt to compound with the already insufferable grief she is already experiencing at the present.

The refusal of the victim to the advances of the accused, no matter when and how it was employed, can never ripen to an assent to the same

The ponencia opined that complainant's testimony attesting that she pushed accused-appellant away when he undressed her and touched her body, and that she was afraid when all of these were happening to her, "is at best equivocal" that is "subject to different interpretations depending on the attendant circumstances" and "hardly equates with force or intimidation within the penal provision defining and penalizing rape."

I strongly disagree.

This view should never be considered, much less accepted by the Court, as long as it still stands by its mandate to serve justice when it is due. It is incredible to consider the complainant's actions as anything but for accused-appellant to desist from satisfying his lust for her. It is not "a gentle 'no,' 'not yet,' 'wait,' 'I am shy' or 'not here.'" This is not a matter of coyness or bashfulness coming from complainant to entice or tempt accused-appellant to proceed with his sexual advances.

NO means NO. NO can never be a YES under any circumstance or event whatsoever. To say otherwise is the height of folly bordering on guesswork and speculations to ascribe validation to what is inherently a horrendous act against one's honor and person.

From the direct testimony of the complainant's interpreter, she narrated that she was raped by accused-appellant and even told him that she hated him, to wit:

When was the first time you met this (complainant) and narrated to you facts relating to these cases now on trial?
If I'm not mistaken, it's late last year.

And what information or informations did (complainant) tell you in relation to these cases?
She told me that she was raped several times.

How did you know these?
Because of her actions Sir.

What actions did she give you?
She has the pushing action, she even sign like this, it means I hate you, she [doesn't] like you.


Witness signing using his 2 hands xxx

I know that she was raped because the action of (complainant) who demonstrated the pushing action by demonstrating pushing the other party and showed sign of "litik" kicking with the use of her finger means the sign language "I hate that person and in Tagalog "pinagdidirihan," "loathing." [sic]

FISCAL DALAPO: (to the witness)

What action did she give you when she said she was raped?
Aside from pushing action[,] she was laid down with Dante on top of her.[13]
The complainant's testimony was direct, clear and straightforward. It was neither noticeably terse, nor vague, nor equivocal, nor seriously wanting in details. She testified that she was raped, that she pushed away accused-appellant when he approached her to satisfy his lust for her and that she hated him to the point of disgust. There is absolutely nothing in her testimony that indicates consent or willingness to submit to accused-appellant's advances.

The degree of resistance employed by the victim in the crime of rape is immaterial and irrelevant to prove the same

In the more recent case of People v. Romobio,[14] citing People v. Gayeta,[15] this Court ruled that tenacious resistance against rape is not required; neither is a determined or a persistent physical struggle on the part of the victim is necessary.

Furthermore, the cited case by the ponencia was not even on all fours with the instant case. In People v. Tionloc,[16] the accused was an 18-year-old boy while the victim was 24 years old at the time of the incident and the latter was not inhibited by any disability that could affect her consent.

Even assuming arguendo that complainant did not offer resistance to accused-appellant's advances the first time that he raped her, it does not mean that she agreed or consented to the same.

Absence of resistance only implies passivity. It may be the product of one's will. It may imply consent. However, it may also be the product of force, intimidation, manipulation and other external forces.[17] To say that complainant, in keeping silent throughout her ordeal implied that she had given her consent would be a stretch of supposition and postulation that paints a colorful narrative on the events that transpired within the confines of the room where the rape incidents happened.

Complainant did not and was not able to give her consent, informed or otherwise, to the advances of the accused-appellant

The ponencia suggests that because the complainant is deaf-mute and certified to be only at Grade 2 level in formal sign language education, it does not mean that she is suffering from such mental abnormality, deficiency or retardation as hindering her capacity to give consent.

The term "deprived of reason" has been construed to encompass mental abnormality, deficiency or retardation.[18] In People v. Quintos,[19] this Court described a person "deprived of reason" as having deficiency in his/her general mental abilities and has an impaired conceptual, social and practical functioning relative to his/her age, gender and peers. Because of such impairment, he/she does not meet the "socio-cultural standards of personal independence and social responsibility."[20]

In this case, at the time of the incident, complainant was a minor. She is a congenital deaf-mute.[21] Her disability is classified as "profound,"[22] which means very great, extreme or intense. Her level of communication in formal sign language is low, i.e., that of a Grade 2 pupil,[23] as opposed to her peers in the same age group. And while she can discern what is right and what is wrong, it takes her a long time to do so.[24] Thus, it is highly doubtful how accused-appellant had managed to reach the conclusion that she had agreed or even consented to having sexual intercourse with him. In fact, he admitted he could only communicate with the complainant through her friend, EEE.[25]

Further still, under Article 266-A of the Revised Penal Code, rape can be committed by means of fraudulent machination or grave abuse of authority. It is established that accused-appellant is the school watchman assigned at XXX Elementary School, XXX SPED Center, and the SPED female dormitory, where the complainant was residing at the time of the incident. His wife is even the caretaker of the said dormitory where he, using this influence, had managed to board in one of its rooms. It is through his position in the school and his marriage to his wife that accused-appellant managed to form a connection with AAA, and eventually, finesse his way to the latter's room to unleash his bestiality.

Complainant was admittedly innocent to the notion of love between a man and a woman, much less any sexual congress that happens during the same

The ponencia pointed out that complainant's relatives acknowledged her to be normal and capable of engaging into romantic relations, albeit they opposed the idea as she was still studying at that time. However, complainant's own testimony clearly reveals that she does not even understand the concept of love between a man and a woman, to wit:
Ms. Witness, during your schooling at [SPED] School[,] you take lessons as mathematics, is that correct?

How about English?

You also learn like such terms as friendship, is that correct? [sic]

And love, is that correct?

You were also learned [sic] concept as emotions?


Boyfriend and girlfriend?

But there are books that were taught to you by your teacher, is that correct?

And these books are about some kind of a relationship between a man and a woman?

And from these books[,] you learned concepts or stories about love?
I cannot see how the complainant would be able to give her informed consent to engage in a sexual congress willingly when she could not even comprehend how a relationship between a man and a woman works.

There were indications that complainant was traumatized because she was raped by accused-appellant

Finally, the ponencia took notice that the complainant resisted when it was proposed that she leave her dormitory and instead live with her aunt, BBB, and interpreted it as "consent" to her (complainant) relationship with accused-appellant. However, BBB's testimony would show otherwise, as such:
During the cross [BBB], you said that your niece refuses to go with your father to transfer with you, and you only said that she resisted but you were not there present when she actually resisted, what do you mean by this?
It was my father and [CCC] who told me that she did not go with my father.

Did they tell you how your niece resisted?
Yes sir, she resisted and she doesn't want even to be held.[27] (Emphasis supplied)
To my mind, the actions of the complainant do not show consent, much less affirm her supposed romantic relationship with accused-appellant. Her actions would suggest that she was traumatized to the extent that she does not even want to be touched.

Verily, already 12 years had lapsed since this case was filed before the trial court. While the rules are clear that instead of acquittal, the case should be remanded to the lower court for re-trial or require the prosecution to file another case against accused-appellant for the same offense, it would be a complete waste of time and resources. More importantly, it would only subject the victim and her family anew to the agony and suffering associated with the prosecution of crimes of this kind. Given the fact that accused-appellant was not deprived of his opportunity to be heard and present his evidence for his defense, I find that another trial for the same offense would only be futile and mundane.

May we be guided by the story of Medusa, who was obstinately hounded by the Greek God Poseidon until she ran to the temple of Athena for her guidance and protection. However, Athena simply stood by and watched as Poseidon raped Medusa. Worse, Athena cursed Medusa to become a monster, just because she (Medusa) let herself be violated by Poseidon inside Athena's temple.

Let this Court not be that temple, that stands by and watch as accused-appellant leave with his freedom then shackle the victim with the consequences of the sickening crime, thus, committed.

WHEREFORE, I vote to AFFIRM the conviction of accused-appellant Dante Cubay y Ugsalan.

[1] Olivarez v. Court of Appeals, 503 Phil. 421, 435 (2005).

[2] People v. Butiong, 675 Phil. 621, 634 (2011).

[3] People v. Andrade, 747 Phil. 703, 716 ( 2014).

[4] 325 Phil. 525, 538 (1996).

[5] RULES OF COURT, Rule 117, Section 6.

[6] Id. at Sec. 5.

[7] People v. Escultor, 473 Phil. 717, 727 (2004).

[8] People v. Zafra, 712 Phil. 559, 570-571 (2013).

[9] People v. Brioso, 788 Phil. 292, 308 (2016); People v. Pareja, 724 Phil. 759, 779 (2014); People v. Ogarte, 664 Phil. 642, 661 (2011).

[10] People v. Cañada, 617 Phil. 587, 604 (2009).

[11] People v. Opeña, G.R. No. 220490, March 21, 2018.

[12] 747 Phil. 657, 670 (2014).

[13] TSN, October 5, 2010, p. 21.

[14] G.R. No. 227705, October 11, 2017, 842 SCRA 512.

[15] 594 Phil. 636 (2008).

[16] G.R. No. 212193, February 15, 2017, 818 SCRA 1.

[17] People v. Quintos, 746 Phil. 809, 828 (2014).

[18] People v. Monticalvo, 702 Phil. 643, 657 (2013).

[19] Supra.

[20] Id. at 830.

[21] TSN, April 10, 2012, p. 6.

[22] TSN, October 5, 2010, pp. 18-19.

[23] Id. at 18.

[24] Id. at 26.

[25] TSN, November 13, 2012, pp. 7-12.

[26] TSN, May 14, 2012, p. 4.

[27] TSN, November 17, 2010, p. 24.

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