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673 Phil. 58


[ G.R. No. 189579, September 12, 2011 ]




This is an appeal from the August 10, 2009 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 03234, which affirmed the February 4, 2008 Decision of the Regional Trial Court (RTC), Branch 106 in Quezon City, in Criminal Case No. Q-05-136600. The RTC found accused Joselito Orje guilty beyond reasonable doubt of rape and sentenced him to suffer the penalty of reclusion perpetua.

The Facts

The information charging the accused with rape reads as follows:

That on or about the 1[st] day of September, 2005, in Quezon City, Philippines, the above-named accused, being then the father, did then and there, willfully, unlawfully and feloniously, by means of force and intimidation have sexual intercourse with one [AAA],[1] his own daughter, a minor 16 years old, inside their residence located at [XXX], this City, against her will and without consent, thereby degrading or demeaning the intrinsic worth and dignity of the said offended party as a human being.


Accused pleaded not guilty to the above charge.  During the pre-trial, the parties stipulated on the following relevant facts:

(1) AAA is accused's biological daughter;

(2) AAA was only 16 years old at the time of the alleged rape incident, subject to the presentation of her original certificate of live birth; and

(3) Accused and AAA were staying in the same house at the time of the alleged incident.

The prosecution later presented AAA's Certificate of Live Birth (Exhibit "E").[3]

Version of the Prosecution

At the trial, the prosecution presented, as witnesses, AAA and medico-legal officer Police Inspector Edilberto Antonio (P/Insp. Antonio).

AAA testified sleeping in their house and waking up at around six o'clock in the evening of September 1, 2005 with the feeling of something heavy pressing on her body. It turned out to be her father, the accused, on top of her. At that point, accused proceeded to strip her of her shorts, then her underwear and then inserted his penis into her vagina. She attempted to shout and struggled to break free, but her efforts proved futile at the start as he was holding her hands and covering her mouth at the same time.  Eventually, however, she succeeded in extricating herself and got hold of a chair which she threw at the accused.[4]

AAA further narrated that two days after that harrowing incident, accused slapped her for arriving home late.  Thereafter, AAA repaired to her bedroom and took a bath. As she was combing her hair after her bath, accused suddenly came up from behind and started to fondle her breasts. This turn of events prompted AAA to run to her cousin (BBB) for help and, in the latter's house, AAA confided what she had just gone through. BBB informed her parents who, in turn, reported the matter to the police. Accused's arrest followed.[5]

AAA also testified that, apart from the above incidents, accused also molested her in December 2003 and again on March 15, 2004. She, however, kept both painful episodes to herself out of fear that her father would make good on his threat to kill her mother. AAA likened the abuse she received in the hands of her father to being treated as a prostitute. On the witness stand, she stated wanting her father to land in jail for what he had done to her. [6]

Marked as Exhibit "B" and adduced in evidence was Medico-Legal Report No. M-3314-05 dated September 9, 2005, containing, among others, the following entries: "Findings: hymen, Presence of deep healed laceration at 2, 4, 7 or 8 o'clock position. Conclusion: Genetal [sic] examination [conducted on AAA] shows clear evidence of penetrating trauma."[7] This means, according to P/Insp. Antonio, that something entered or was inserted into AAA's vagina causing lacerations. The depth of the hymenal lacerations indicates, so P/Insp. Antonio testified, a forceful insertion or penetration of something into the vagina.[8]

Version of the Defense

The defense called to the witness stand AAA who earlier executed a Sinumpaang Salaysay (hereinafter referred to also as affidavit of desistance), in which she expressed her desire to desist from pursuing the sham case against her father. As she explained while testifying this time, the rape incidents never happened. AAA pointed to her aunt, CCC, as having compelled her to falsely accuse her father to get back at him for leaving  the family when AAA was barely nine years old.  AAA also testified being mad at the appellant for the slap she got after arriving  home late one rainy night.[9]

Dated December 16, 2005, the Sinumpaang Salaysay partly reads as follows:

Na aking pong iniuurong ang aking habla sa aking ama na si Joselito Orge [sic], sa kasong rape;

Na wala pong katotohanan ang aking habla laban sa kanya. Na ang lumabas na positibong resulta tungkol sa pagkapilas ng aking pagkababae ay gawa naming ng aking kasintahan;

Na mahal ko po ang aking mga magulang, na ang aking habla laban sa aking ama ay dahil lamang sa galit sa kanya matapos na ako'y kanyang pagalitan;

Na ako po ay handing magpatawad sa aking ama sa kanyang nagawa sa akin at ako'y handa naring humingi ng tawad sa kanya sa aking mga kamalian;

Na ang aking sinumpaang salaysay ay buong puso kong lalagdaan ng walang pananakot, pangako o ano mang katumbas na halaga kapalit na pag-urong ko sa habla.[10]

The Rulings of the RTC and CA

On February 4, 2008, the RTC rendered judgment finding accused guilty beyond reasonable doubt of the crime charged, disposing as follows:

IN VIEW WHEREOF, accused JOSELITO ORJE y BORCE is hereby found guilty beyond reasonable doubt of the crime of RAPE under Art. 266-A, in relation to R.A. 7610, and he is sentenced to suffer the penalty of RECLUSION PERPETUA without eligibility for parole; to pay the private complainant the amount of P75,000.00 as civil indemnity; P75,000.00 as moral damages, and P25,000.00 as exemplary damages. No costs.


The trial court appreciated in its Decision the twin qualifying aggravating circumstances of minority and relationship.

On appeal, the CA affirmed[12] the RTC's Decision, noting AAA's unequivocal testimony in court while responding to questions from the prosecuting fiscal on the rape incidents.  For reasons articulated in its Decision dated August 10, 2009, the CA, just like the RTC, gave short shrift to AAA's recantation.[13]

On August 24, 2009, accused filed a Notice of Appeal, which the CA gave due course to and directed the elevation of the records to this Court. In response to a Resolution for the submission of supplemental briefs, if they so desired, the parties, by separate manifestations, informed the Court that they are no longer submitting supplemental briefs, but are each maintaining their positions and arguments in their respective briefs filed with the CA.

The Issue

The sole issue, as raised and argued before the CA, boils down to the question of whether or not the prosecution has established accused-appellant's guilt beyond the reasonable doubt.

This Court's Ruling

It should be stressed at the outset that while it is not a trier of facts and is not wont to winnow and re-asses anew the evidence adduced below, it still behooves the Court, in criminal cases falling under its review jurisdiction pursuant to Article VIII, Section 5(2) of the Constitution,[14] to take a careful and hard look at the testimony given in rape cases. The Court is constantly mindful of the pernicious consequences that a rape charge bears on both the accused and the private complainant.[15] It exposes both to humiliation, hatred and anxieties, more so if the element of kinship comes into the picture.  And to stress familiar dicta, an accusation for rape can be made with facility, albeit difficult to prove, but more difficult for the accused, though innocent, to disprove, and that conviction in rape cases usually rests solely on the basis of the testimony of the offended party.[16] This attitude of caution and circumspection becomes all the more compelling in this case in light of the recantation of a key witness, the victim herself.

We deny the appeal.

The following are the elements of rape as provided under Art. 266-A of the Revised Penal Code (RPC), as amended:  (1) that the accused had carnal knowledge of a woman; and (2) the accused accomplished such act (a) through the use of force or intimidation, or (b) when the victim is deprived of reason or otherwise unconscious, or (c) when the victim is under 12 years of age or is demented.[17]

In determining whether the elements of rape have been established by the prosecution, courts recognize that conviction or acquittal depends almost always entirely on the credibility of the victim's testimony, the crime being ordinarily perpetrated in seclusion[18] and only the participants can testify as to its occurrence.[19]

Hence, the matter of AAA's credibility is front and foremost before the Court.

That credibility, accused-appellant urges, has been shattered to pieces by her recantation of her previous testimony. The Court is not persuaded.

When called by the prosecution to testify on January 20, 2006, AAA pointed at accused-appellant as the person who raped her. There can be no mistake about the identification as she and accused-appellant were family, living under the same roof. Her testimony, as uniformly found by the trial and appellate courts, was clear, categorical and straightforward and withstood an intense cross-examination. It was observed, too, that consistency on material points marked her recollection of the details of the sexual molestation, including how she struggled, at that precise time, to free herself from her father's hold. Her claim of being a rape victim found corroboration by the medical findings of the examining medico-legal officer. We reproduce a portion of AAA's direct testimony on January 20, 2006:

Fiscal Mangente
On September 1, 2005, about 6:00 o'clock in the evening do you recall if there was any unusual incident that happened?
There was.
Where were you then at that particular date and time?
I was at home.
Could you tell us what was that unusual incident [that] happened while you were inside your residence?
I was then sleeping and my siblings [were] outside the house. My father was inside the house and it was me and my father who were inside the house.
Could you tell this court where you were living then?
x x x x
What happened while you were sleeping in your house with your father?
I felt that he suddenly approached me and put himself on top of me.
When you realized that your father [was] putting himself on top of you what did you do if any?
I was struggling and while I was struggling he held my two hands and I was not able to move anymore.
What other things did your father do aside from putting his hands in your mouth?
There was no mention that the hands of the accused [were] put in the mouth, what was stated by the witness was he held her hands and [she] was not able to move.
After holding your hands what other things did accused do if any?
He closed my mouth [with] his hands and I felt that his private part was put inside my private part.
[Did] you have any clothing at the time that you said your father was putting his private part [in] your private part?
Yes, sir.
Could you tell us what was your clothing at that time?
And how about underwear?
So, while your father was doing that to you what did you do?
I was crying.
Did you shout for help?
I could not shout because one of his hands covered my mouth.
So, after that incident what did you do, if any?
I [ran] away from him.[20]

We fully agree with the findings of the RTC, as affirmed by the CA, that accused-appellant sexually abused AAA in the early hours of the evening of September 1, 2005. Both courts were correct in giving credence to AAA's positive testimony the first time around notwithstanding her retraction of her previous testimonies and the allegations contained in her affidavit of desistance.  Indeed, there is no cogent reason to deviate from their findings as to AAA's credibility as a prosecution witness and the weight and value they accorded her sworn accounts.

Rape is no longer considered a personal criminal offense listed as among the crimes against chastity defined and punishable under Title 11 of the RPC, as amended. Republic Act No. (RA) 8353, or the Anti-Rape Law of 1997, has reclassified rape as a crime against persons.[21]  In effect, rape may now be prosecuted de oficio; a complaint for rape commenced by the offended party is no longer necessary for its prosecution.[22]  As corollary proposition, an affidavit of desistance by the complaining witness is not, by itself, a ground for the dismissal of a rape action over which the court has already assumed jurisdiction.[23]

Courts look with disfavor on affidavits of desistance and/or retraction.[24] In People v. Bation, We explained why:

x x x [An affidavit of desistance] can easily be secured from poor and ignorant witnesses, usually for monetary considerations and because it is quite incredible that after going through the process of having the accused apprehended by the police, positively identifying him as the rapist, and enduring humiliation and examination of her private parts, the victim would suddenly declare that the wrongful act of the accused does not merit prosecution.[25]

And still another reason:

[A]n affidavit of desistance is merely an additional ground to buttress the accused's defenses, not the sole consideration that can result in acquittal. There must be other circumstances which, when coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the trial and accepted by the judge.[26] (Emphasis added.)

Accused-appellant cannot plausibly bank on AAA's affidavit of desistance, complemented by her testimony for the defense, as an exonerating vehicle for his dastardly act. Other than the retraction or desistance affidavit, nothing in the records would show any other circumstance of substance accepted by the trial court that would becloud the veracity of AAA's earlier inculpating testimony.

As long as the complaining witness musters the test of credibility and consistency, her testimony deserves full faith and confidence and cannot be discarded. And if such testimony is clear and credible to establish the crime beyond reasonable doubt, a conviction of rape based on it may lie even if she subsequently retracted her earlier testimony.   So it must be here. As We ruled:

A retraction x x x is exceedingly unreliable for there is always the probability that such recantation may later on be repudiated. It can easily be obtained from witnesses through intimidation or monetary consideration. Like any other testimony, it is subject to the test of credibility based on the relevant circumstances and, especially, on the demeanor of the witness on the stand.[27]

As the appellate court correctly held, citing case law, AAA's testimony deserves full credence, notwithstanding her subsequent retraction. We are reproducing with approval what the CA wrote in this regard:

Mere retraction by a witness or complainant of her testimony does not necessarily vitiate the original testimony or statement. x x x The previous testimony and the subsequent one must be carefully compared and the circumstances under which each was given and the reason and motives for the change carefully scrutinized. The veracity of each statement or testimony must be tested by the credibility of the witness, which is left for the judge to decide. Only when there exists special circumstances in the case which when coupled with the retraction raise doubts as to the truth of the testimony or statement given, can a retraction be considered and upheld. x x x

In this case, AAA alleged in her affidavit of desistance that she fabricated the case against her father because she got angry when he slapped her for [coming] x x x home late at night and that she was just induced and forced by her aunt, CCC, to file a case for rape because the latter was so mad at her father for leaving her mother for eight (8) years. We do not agree. It must be emphasized that a daughter, especially one in her minority, would not accuse her own father of such unspeakable crime as incestuous rape had she really not been aggrieved. AAA withstood all the rigors of the case. x x x If it was true that she merely made up the charge, she should have been bothered by her conscience at the sight of her father in prison. It was only when she returned to her family's custody that she made the retraction. Before that, she maintained her story that she was raped and withstood cross-examination.

As to the allegation that her aunt only forced her to file a complaint for rape, it should be noted that it was AAA who sought for her cousin's [CCC's daughter] help and not the other way around. x x x During her testimony, [AAA] was always accompanied by the DWSD social worker and not once did CCC appear when AAA was testifying. Besides no aunt x x x would possibly wish to stamp a minor falsely with the stigma that follows rape only for the purpose of punishing someone for a flimsy reason that doesn't even concern her personally.[28]

Indeed, a daughter angered by a single slapping incident and an aunt who wishes to get back at a brother-in-law for abandoning his family would not typically go so far as to falsely accuse a man of rape. Normal human experience does not support such behavioral decisions of frightful implication consequence. Given the stigma of a public trial where the humiliating details of sexual molestation and the embarrassing findings of the medical-legal are laid bare before the court, it is, to be sure, unthinkable, if not entirely preposterous, for a daughter of tender years to concoct a tale of rape against her own father if her motive were other than to have the culprit punished.

But the trial court gave the simple but arguably the more compelling reason why AAA's affidavit of desistance should altogether be rejected. According to the RTC, AAA executed the document on December 16, 2005, or two months after the rape incident happened. Yet, when AAA testified on January 20, 2006 against accused-appellant, no mention was made whatsoever of the affidavit, much less of its contents which attributed  her loss of virginity to what she and her purported boyfriend did together. During her January 20, 2006 testimony, AAA minced no words in venting her anger against accused-appellant and about her wish to see him in prison as a consequence of a guilty verdict. AAA's responses to the public prosecutor's questions speak for themselves:

Howdo you express yourself about what you felt about your father?
I am ashamed.
After your father have done this to you and you know that there will legal consequences, if ever the court would be able to decide this case and your father will be convicted and there will be a penalty imposed on him you are still willing to push through with the complaint of yours?
Yes sir
Because of what he did to me `sobrang baboy'.
And you could not forgive your father ....?
I can forgive my father but I cannot accept that he is going to be free. I want him to be imprisoned.[29]

In all, the commission of rape by accused-appellant has been sufficiently established. As earlier indicated, the parties have stipulated during the pre-trial that AAA, then 16 years of age when the incident occurred, is accused-appellant's biological daughter. AAA's age and her relationship with accused-appellant were alleged in the information and AAA testified to these facts. Thus, the RTC correctly convicted accused-appellant of qualified rape as defined and penalized by Art. 266-B of the RPC, thus:

ART. 266-B. Penalties. x x x The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a parent x x x

With the abolition of the death penalty by RA 9346, the penalty for qualified rape is reclusion perpetua. The imposition of the penalty of reclusion perpetua by the RTC without eligibility for parole is correct.

Pecuniary Liability

The Court affirms the award of PhP 75,000 as civil indemnity and PhP 75,000 as moral damages. Civil indemnity ex delicto is mandatory on the finding that rape was committed, while moral damages are assessable upon such finding without need of proof.[30] The presence of aggravating circumstance entitles the offended party to exemplary damages. Thus, We also affirm the award for exemplary damages, but, pursuant to established jurisprudence, in the amount of PhP 30,000,[31] up from the PhP 25,000 fixed by the RTC and affirmed by the CA.

WHEREFORE, the appeal is DENIED. The CA Decision in CA-G.R. CR-H.C. No. 03234 finding accused-appellant guilty beyond reasonable doubt of qualified rape is AFFIRMED with the MODIFICATION that the amount of exemplary damages is increased to PhP 30,000.


Peralta, Bersamin,* Abad, and Villarama, Jr.,** JJ., concur.

* Additional member per Raffle dated September 7, 2011.

** Additional member per Special Order No. 1076 dated September 6, 2011.

[1] The name and other personal circumstances tending to establish the victim's identity and those of her immediate family are withheld pursuant to  Republic Act No. 7610, "An Act Providing for Stronger Deterrence and Special Protection Against Child Abuse, Exploitation and Discrimination, and for Other Purposes"; Republic Act No. 9262, "An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes;" Section 40 of A.M. No. 04-10-11-SC, known as the "Rule on Violence Against Women and Their Children," effective November 5, 2004; and People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.

[2] CA rollo, p. 42.

[3] Id. at 43.

[4] Id.

[5] Id. at 44.

[6] Id.

[7] Id. at 45.

[8] Id.

[9] Id. at 12.

[10] Id. at 12-13.

[11] Id. at 54. Penned by Judge Angelene Mary W. Quimpo-Sale.

[12] Rollo, p. 14. Penned by Associate Justice Sesinando E. Villon and concurred in by Associate Justices Jose Catral Mendoza (now a member of this Court) and Romeo F. Barza.

[13] Id. at 12.

[14] SEC. 5. The Supreme Court shall have the following powers: x x x (2) Review, revise, reverse, modify or affirm on appeal or certiorari x x x final judgments and orders of lower court: x x x (d) All criminal cases in which the penalty imposed in reclusion perpetua or higher.

[15] People v. Malones, G.R. No. 124388-90, March 11, 2004, 425 SCRA 318.

[16] People v. Bidoc, G.R. No. 169430, October 21, 2006, 506 SCRA 481.

[17] People v. Quintal, G.R. No.184170, February 2, 2011.

[18] People v. Macapagal, Jr., G.R. No. 155335, July 14, 2005, 463 SCRA 387.

[19] People v. Painitan, G.R. No. 137665, January 16, 2001, 349 SCRA 266, 279.

[20] TSN, January 20, 2006, p. 4.

[21] People v. Lindo, G.R. No. 189818, August 09, 2010, 627 SCRA 519, 526.

[22] People v. Castel, G.R. No. 171164, November 28, 2008, 572 SCRA 642, 676.

[23] People v. Dimaano, G.R. No. 168168, September 14, 2005, 469 SCRA 647, 664.

[24] People v. Soriano, G.R. No. 178325, February 22, 2008, 546 SCRA 514, 521; citing People v. Alicante, 388 Phil. 233, 258 (2000).

[25] G.R. Nos. 134769-71, October 12, 2001, 367 SCRA 211, 231.

[26] People v. Echegaray, G.R. No. 117472, February 7, 1997, 267 SCRA 682.

[27] People v. Sumingwa, G.R. No. 183619, October 13, 2009, 603 SCRA 638, 649-650.

[28] Rollo, p. 13; citing Appellee's Brief, CA rollo, pp. 75-76.

[29] TSN, January 20, 2006, pp. 2-8.

[30] People v. Malibiran, G.R. No. 173471, March 17, 2009, 581 SCRA 655.

[31] People v. Combate, G.R. No. 189301, December 15, 2010.

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