459 Phil. 114
VITUG, J.:
The last of the enumeration, item (d) above, constitutes what is so often referred to as statutory rape. Rape by sexual assault, mentioned in the second paragraph of the same article, is committed by any person who, under any of the aforestated circumstances, inserts his penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person.
(a) Through force, threat, or intimidation; (b) When the offended party is deprived of reason or otherwise unconscious; (c) By means of fraudulent machination or grave abuse of authority; and (d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
Olaybar entered a plea of "not guilty" to both charges; the cases were consolidated and tried jointly with the prosecution and the defense, in that order, presenting their respective versions of the case.Criminal Case No. 00-1600
"That on or about the 5th day of September, 2000, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, JAIME OLAYBAR y ODTUHAN, by means of force and intimidation did then and there, willfully, unlawfully and feloniously have carnal knowledge of the complainant, AAA, a minor, eight (8) years of age, against her will and consent."[1]
Criminal Case No. 00-1601
"That on or about the 6th day of September 2000, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, JAIME OLAYBAR Y ODTUHAN, did then and there, willfully, unlawfully and feloniously commit acts of sexual assault by inserting his penis into the anus of complainant, AAA, a minor, eight (8) years of age, against the latter's will and by means of force and intimidation."[2]
"GENERAL PHYSICAL EXAMINATION | |
| |
HEIGHT 112 cm WEIGHT 17.5 kg TANNER STAGE 2 | |
GENERAL SURVEY | No stunting, No wasting, Ambulant, Not |
In Respiratory Distress | |
MENTAL STATUS | Oriented to place and person |
Conscious | |
PERTINENT PHYSICAL | Breast Tanner Stage: 2 |
FINDINGS / PHYSICAL | (R)->LOWER EXTREMITIES-> |
INJURIES | Gluteals-> Abrasion - 4 abrasions |
about 1-1.5 cm; | |
(L)->LOWER EXTREMITIES-> | |
Gluteals-> Abrasion - 4 abrasions | |
about 1-1.5 cm | |
ANO-GENITAL EXAMINATION | |
EXTERNAL GENITALIA | Tanner Stage 2, Labia Minora:swelling, Labia Majora: swelling, Clitoris: swelling, Vestibule: swelling |
URETHRA AND | Swelling, swelling |
PERIURETHRAL AREA | |
PERIHYMENAL AREA | swelling |
AND FOSSA | |
NAVICULARIS | |
HYMEN | Tanner Stage 2, swelling of whole hymen, |
Type of Hymen: Annular | |
PERINEUM | Perineal Body: swelling |
DISCHARGE | profuse whitish yellowish |
IE AND SPECULUM EXAM | Not Indicated |
ANAL EXAMINATION | Buttocks: abrasions, Perianal Skin: swelling, Anal Verge, Folds, Rugae: swelling, laceration of anal folds and rugae at 5 and 7 o'clock |
REMARKS | |
| |
FORENSIC EVIDENCE | None |
COLLECTED | |
LABORATORY | Trichomonas (Wet Prep)(Laboratory |
EXAMINATION (EXAM AND RESULT) | examination results pending.), Monilia (KOH Prep) (Laboratory examination results pending.), Gram Stain (Positive)(gram (-) intracellular diplococci = + 1), Gonorrhea Culture of Vaginal Swab (Positive)(for Neisseria gonorrhoeaae;), Gonorrhea Culture of Rectal Swab |
"WHEREFORE in Criminal Case No. 00-1600, accused Jaime Olaybar y Odtuhan is hereby sentenced to suffer the penalty of Death and to pay the victim civil indemnity of P75,000.00 and P50,000.00 moral damages.With the imposition below of the penalty of death, the records were elevated to this Court for review. Challenging the decision of the trial court, appellant would aver that -
"Likewise, in Criminal Case No. 00-1601, accused Jaime Olaybar y Odtuhan is hereby sentence to suffer the penalty of Death and to pay the victim civil indemnity of P75,000.00 and P50,000.00 moral damages.
"It would appear from the testimony of the complainant, AAA that on September 5, 2000, aside from having carnal knowledge of the victim, accused Jaime Olaybar also inserted his finger in her vagina and also inserted his penis into her anus. In view thereof, the City Prosecutor is hereby ordered to conduct an investigation on the liability of the accused for Sec. 10 (a), Art. VI of RA 7610 and Rape, in so far as the above revelation of the complainant which were not alleged in Criminal Case No. 00-1600."[4]
While the Office of the Solicitor General argues that no cogent reasons exist to overturn the conviction of appellant, it does agree with the latter, however, that in neither of the two cases, could the penalty of death be aptly imposed.
"I. THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WHEN THE LATTER'S GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.
"II. THE LOWER COURT ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH DESPITE THE ABSENCE OF ANY QUALIFYING CIRCUMSTANCE IN THE INFORMATIONS."[5]
The testimony of AAA was corroborated by the medical findings of Dr. Merle P. Tan, who found that there was swelling of the victim's labia majoris and minoris clitoris, the urethra and periurethral area, the perihymenal area, the whole hymen and the perineal area. The second assault was likewise confirmed by the anal examination which showed swelling perianal skin and laceration of anal folds and rugae at "5 and 7 o'clock positions."[7] Dr. Tan, confirming her findings in open court, declared:
"FISCAL BARRERA: "Q Now, on September 5, 2000 at around 7:00 p.m. where were you? "A I was home at that time. "Q While you were in your house fronting Meralco office, Pasay City while in your house, do you recall of any unusual incident that transpired to you? "A Yes, there was. "Q What was that unusual incident that happened to you at around 7:00 p.m.? "A I was called. "Q Who called you? "A Jimmy, sir. "Q This Jimmy who called you, is he inside the courtroom? "A Yes, sir. "Q Will you kindly point to Jimmy who called you inside your house? "A Yes, sir. "Court Interpreter: Witness pointing to a person who answered by the name of Jaime Olaybar. "Fiscal Barrera: "Q What happened when he called for you whom you identified in open court as Jaime Olaybar? "A I came near him. "Q Where did you proceed when you came near him? "A He brought me to a jeep. "Q Is that near your house? "A It is far. "Q But it is near Meralco? "A The jeep was beside Meralco. "Q What happened when Jaime Olaybar brought you to a jeep? "A He made me to lay down. "Q And did you lay [sic] down? "A Yes, sir. "Q What happened after you were being made by accused Jaime Olaybar to lay down? "A Then he put his penis inside my vagina (pinasok ang titi niya sa pepe ko.) "Q What happened after he placed his penis inside your vagina? "A He also inserted his finger inside my vagina. "Q What else did Jaime Olaybar do to you? "A `kinalong po niya ako.' "Q What else happened? "A He inserted his penis inside my anus. "Q What else happened after he placed his penis inside your anus? "A After that nothing else happened. "Q You mean to say, after that you went home? "A He brought me home. "Q On the following day, September 6, 2000 between 7:00 to 7:30 p.m., do you know of any unusual incident that happened to you on the night of September 6, 2000? "A Yes, there was. "Q What was that unusual incident that happened to you? "A Jimmy put a saliva on his finger. "Q With that what did Jimmy do? "A Then he again put me on his lap. "Q After he placed you on his lap, what happened next? "A Then he put his penis inside my anus. "Q After accused Jaime Olaybar placed his penis in your anus, what happened next? "A After that nothing else happened. "Q What did you do next? "A He brought me home."[6]
Mere denial without any strong evidence to support it, can scarcely overcome the positive declaration by the child-victim of the identity and involvement of appellant in the crimes attributed to him. The defense of alibi is likewise unavailing. It is not enough, in order that alibi might prosper, to prove that the accused has been somewhere else during the commission of the crime; it must also be shown that it would have been impossible for him to be anywhere within the vicinity of the crime scene.[9] In this case, appellant himself has admitted being just around the neighborhood at the time.
"Q So, after the said mother Rea Into as well as the patient gave their consent for medico genital examination and anal examination, what step did you take? "A We interviewed the mother regarding their complaint. After which we talked with the patient. "Q What did you gather from your interview? "A During the interview she said, `Si Jimmy pinasok ang titi sa puwet ko.' Then I asked her how many times, she said in her finger `dalawa.' "Q After the said interview, what did you do? "A After that we subjected the patient to medico genital and anal examinations. "Q What was the result of your medico genital examination? "A The patient has labia majora and labia minora. Clitoris; swelling urethra and periurethral area, including the hymen was swollen it was annular type. "Q What else did you find? "A Profuse white yellowish discharge. I also found that the perineum was swollen, the same with the anus. "Q: What did you find when you examined the anus? "A: The anus is also swollen with laceration at 5 and 7 o'clock laceration. "Q: So, what else happened after conducting medico genital and anal examination and come out with your finding as you earlier stated? "A: I did some laboratory examination such as vaginal swab culture and gram staining. I did also anus swab culture and urinalysis of the patient. "Q: And Dr. Tan, what did the said vaginal swab culture and gram staining reveal? "A: The result of gram stain `positive for intracellular diplococci.' "Q: What do you mean by that in your finding? "A: That there is a bacteria inside that stain. "Q: What would be the cause of bacteria? "A: The bacteria is caused through the vaginal discharge from the patient. Regarding the culture vaginal swab also positive for neisseria gonorrhea. "Q: And this gonorrhea you referred to sexually transmitted disease? "A: Yes, sir. "Q: What about the anal examination as you mentioned you perform[ed] anal swab culture and urinalysis, what was this urinalysis? "A: Urinalysis shows white blood cells. "Q: Is that all that you [found] during laboratory examination? "A: The anal swab showed negative for gonorrhea. "Q: The result of your vaginal as well as anal examination are all contained in these four document[s] previously marked as Exhs. E to E-3? "A: Yes, sir. "Q: Were you also furnished copy of the Salaysay of the patient regarding her complaint? "A: We were not furnished by said statement. "Q: Doctor, a perusal of the complaint of AAA, would reveal that she was complaining she was sexually abused by the herein accused Jaime Olaybar by [inserting] his penis [into] her vagina and inserted his finger insider her vagina also and inserted his penis inside the anus, would your finding regarding the said medico genital examination as well as the anal examination as contained in Exhs. C and D would be compatible in your finding? "Atty. Casas: We object to the question because as the summary of the interview as stated in the medical certificate. "Court: Forget the interview she was testifying in her finding. Overruled, answer. "A: Yes, sir, there is a penetration done with the child. "Fiscal Barrera: "Q: I'm confronting you with your finding, there was an examination on the hymen as well as the anus? "A: Yes, sir. There was penetration that has been done to the child, specifically the child acquired sexually transmitted disease that can be gathered such as an act. "Q: What an act, is it compatible with the complaint of the child? "A: There is a penetration done and according to the laboratory examination the patient has acquired sexually transmitted disease. This can be done by sexual act. "Q: By sexual act, you mean by insertion of the penis inside the vagina? "A: Yes, sir. "Q: When you stated you found that the patient contracted gonorrhea? "A: The time that I examined the patient, the patient has already vaginal discharge. "Q: And with that medico genital examination as well as anal examination, am I correct to say, you now gave your impression disclosure of sexual abuse? "A: Yes, sir. "Q: And that there was a clear evidence of penetration? "A: Yes, sir. "Q: And you stated the swelling of the hymen could have been caused by the penetration of a male penis? "A: The swelling of the hymen due to any penetration. "Q: When you say swelling of the hymen could it be caused by any penetration and it is possible at any cause by insertion of the finger? "A: Yes, it can be possible. "Q: Regarding your finding as to the anal examination, you said you found swelling perianal skin with laceration of anal folds and rugae at 5 and 7 o'clock, what would have been the cause of the swelling of the anus as well as the 5 and 7 o'clock position? "A: The cause can be anything from insertion to the anus be caused laceration. "Q: Both swelling and laceration is caused by insertion and continued insertion of a male penis? "A: It can be. "Q: And your finding are all contained in Exhs. C and D, Provisional Medico-Legal Report and Final Medico Legal Report? "A: Yes, sir."[8]