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328 Phil. 412


[ G.R. No. 116728, July 17, 1996 ]




Accused-appellant Rodelio Cruz appeals from a judgment of conviction[1] meted out to him by the Regional Trial Court of Antipolo, Rizal for raping his twelve year old niece, Mary Jane Alonzo.
In a Complaint[2] dated October 30, 1991, Mary Jane Alonzo charged accused-appellant with the crime of rape committed as follows:
That on or about the 25th day of April, 1991, in the Municipality of Taytay, province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs (sic) and by means of force and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with a twelve (12) year old girl, Mary Jane Alonzo y Cruz, without her consent and against her will.

Accused-appellant pleaded "not guilty" to the charge.[3]

The evidence for the prosecution shows that accused-appellant is the brother of Mary Jane's mother, Belinda Alonzo.[4] He lives at the house adjoining the Alonzos' dwelling in Elwood Street, Taytay, Rizal.[5] On April 25, 1991, around three o'clock in the afternoon, Mary Jane was about to take a bath, when accused-appellant entered the bathroom of the Alonzos located at the back of their house. Accused-appellant entered through the side of the bathroom which was covered only by jute sack. Once inside, accused-appellant took off his clothes and forcibly undressed Mary Jane. Mary Jane tried to run but accused-appellant blocked her way and forced her to lie down. Then, he mounted her and tried to have sexual intercourse with her.[6] By stroke of fate, Mary Jane's brother, Roberto Alonzo, passed by the bathroom and saw accused-appellant lying on top of her. Accused-appellant saw Roberto hurriedly put on his clothes and rushed to their house. Roberto pursued accused-appellant and challenged him to a fight.[7] Later that night, Roberto revealed the incident to their father, Juanito Alonzo. The following day, April 26, 1991, Juanito accompanied Mary Jane to the police station where she executed a sworn statement.[8] Mary Jane alleged in her sworn statement that accused-appellant deflowered her for the first time in 1988 when she was only nine years old. This was followed by several more assaults, the last of which happened on April 25, 1991 when she was already twelve years old.[9] The medical examination conducted by Dr. Vlademir Villaseñor, medico-legal officer of the PNP Crime Laboratory, disclosed the presence of deep healed lacerations in Mary Jane's genitalia, showing that she has had sexual experience in the past.[10]

For his defense, accused-appellant denied forcing any sexual intercourse with Mary Jane on April 25, 1991. He claimed that at the time when the alleged rape was committed, he was at the factory of High Grades Packaging Product located at Libid, Kay Tikling, Taytay, Rizal where he worked as machine operator. He went home at four o'clock in the afternoon. Upon reaching their house, he rested for a few minutes, and then went to the bathroom to freshen himself. Their bathroom is located at the back of their house, beside the bathroom of the Alonzos. While in the bathroom, he heard a rustling sound. He peeped through a hole on the wall to determine its source, and saw Mary Jane bathing at the back of their bathroom. Surprised, he immediately covered the hole and continued to wash himself. Moments later, he heard somebody calling his name. It turned out to be Roberto, Mary Jane's brother, who accused him of peeping at Mary Jane.[11]

The trial court found the accused guilty as charged. Accused was sentenced as follows:
WHEREFORE, the Court finds the accused Rodelio Cruz y San Jose GUILTY beyond reasonable doubt of the crime of rape defined and penalized under Art. 335 of the Revised Penal Code, and he is hereby sentenced to suffer and undergo imprisonment of reclusion perpetua, to pay the complaining witness the sum of P50,000.00 as moral damages and to pay the costs.

In the service of his sentence he shall be credited with the full benefits of the preventive imprisonment undergone by him, pursuant to Art. 29 of the Revised Penal Code, as amended by R.A. 6127, if he voluntarily agrees in writing to abide by the same disciplinary rules imposed upon convicted prisoners.

In this appeal, accused-appellant faults the trial court for finding him guilty of the crime of rape and for giving weight and credence to the improbable and inconsistent testimony of Mary Jane.[13]

We disagree with the trial court's conclusion that accused-appellant is guilty of consummated rape. It appears from the records that accused-appellant did not succeed in having sexual intercourse with Mary Jane on April 25, 1991 because her brother happened to pass by the scene of the crime just when accused-appellant was about to ravish her. Mary Jane admitted on several occasions that accused-appellant was unable to consummate the act of rape.[14]

In the earlier part of her direct testimony, Mary Jane gave a detailed account on how accused-appellant violated her:
x x x


Q:    Miss Witness, do you remember where you were on April 25,     
             1991 at around three o'clock in the afternoon?


A:    Yes, sir.

Q:    Where were you and what happened to you?

A:    I was at home and I was in our bathroom.

Q:    What were you doing in your bathroom?

A:    I was taking a bath.

Q:    Was there anything unusual that happened to you when you 
             were taking a bath in your bathroom?

A:     Yes, sir.

x x x

Q:    You said that there was something unusual that happened to
             you. What is that?

A:    While I was taking a bath in our bathroom my uncle get
             (sic) inside the bathroom and he forced me to strip.

Q:    What happened next?

A:    He would first finger (dadaliriin) me and he wanted his
             penis inserted inside my vagina.

Q:    What do you mean by dadaliriin? What was the manner of

A:    He would first finger my vagina and he would insert his
             penis into my vagina.

Q:    Was he successful in placing his finger in your vagina?

A:    Yes sir.

Q:    After that what did he do next?

A:    After that he wanted to place his penis into my vagina.

Q:    You were talking about "finger" what hand or finger of what
             hand was used by the accused in this case?

A:    His right hand.

Q:    Which finger did he use?

A:    I do not know, sir.
x x x

Q:    After he inserted his finger what did the accused do to you next?

A:    He wanted to insert his penis into my vagina and caress my body.

Q:    Was the accused able to insert his penis into your vagina?

A:    Yes sir.

Q:    How did the accused do it?

A:    After he fingered me he inserted his penis into my vagina.

x x x[15]

However, in the later part of her direct testimony, Mary Jane clarified that she was actually referring to incidents which happened prior to April 25, 1991. She testified:


Q:    How did you(r) brother able to know (sic) about the                        

A:    Because my brother saw what Rodelio Cruz did to me.

Q.    Why do you say that your brother witnessed the said

A:    Because while we were (witness referring to her and accused
             Rodelio Cruz) inside the comfort room, my brother passed thru (sic) the comfort room and saw Rodelio lying on top of   me.


             This brother of yours is he older or younger than you?


A:    He is older, sir.

Q:    How old is he?

A:    Nineteen (19) years old, sir.

Q:    Did you see him peeping when both of you are inside the 

A:    No, sir.

Q:    How did you come to know that your brother was peeping?

A:    Because Rodelio Cruz saw my brother peeping at us and
             Rodelio Cruz suddenly wear (sic) his clothes and ran to their house and my brother followed him to their house.

Q:    When did you(r) brother chase him?

A:    On that very day, April 25.

Q:    In relation to the rape incident when did your brother
             chase Rodelio?

A:    When Rodelio was about to ran to their house my brother
             followed suit.

Q:    Do you mean after the accused had finished what he had done
             to you your brother waited first and gave chase to the accused, is that correct?

A:    What I am telling this honorable court are those that
             happened during 1988, 1989, 1990. What I am relating now is about April 25, 1991 when my brother saw that Rodelio Cruz was about to rape me and my brother chased Rodelio and Rodelio ran to their house.

Q.    Before we started questioning you Miss witness I asked you
             the particular date and time and you mentioned that the accused raped you on such date and time and a little while back you mentioned that the accused raped you on the dates you are now mentioning how would you cor(r)elate this incident?


             Fiscal did you read the affidavit of the witness?


             Yes, your honor.


             And in that affidavit it is mentioned that there are several incidents?


             Yes, your honor. (Emphasis supplied)

x x x[16]

On cross-examination, Mary Jane admitted that the alleged rape committed on April 25, 1991 was not consummated:

x x x

Q:    Ms. witness, you testified on June 10, 1992 (sic) that you
             were about to be raped by the accused on April 25, 1991 when your brother saw the incident and chased the accused, do you remember having said that?

A:    Yes, sir.

Q:    Do we understand from you M(s). witness that this supposed           
             rape was not consummated on April 25, 1991?

A:    Yes, sir.[17]

x x x

Q:    You likewise testified during the direct examination that
             what you testified was the incident that did not happen on April 25, 1991 but on some other dates mentioned earlier, is that correct?

A:    Yes, sir.

Q:    You testified also that you were about to take a bath at t
             the comfort room?

A:    Yes, sir.

Q:    Were you already naked when you entered the comfort room?

A:    Not yet.

Q:    How about the accused was he already naked when he entered
             the comfort room on April 25, 1991?

A:    No, sir.

Q:    What did you do when the accused entered your comfort room?

A:    I went out right away.

Q:    And what did the accused do when you went out of the
             comfort room right away?

A:    He called me inside.
x x x


             What happened after the accused called you?

A:    He immediately closed the door and tried to undress me.


             Did he succeed in undressing you?

A:    No, your honor. (Italics supplied)

x x x[18]

Again, on re-direct examination, Mary Jane confirmed her prior statement by testifying thus:

Prosecutor Glorioso:

Q:    Tell us Maryjane did you(r) uncle succeed in raping you on
             April 25, 1991 in the afternoon?

A:    No, sir.

Q:    Now tell us Maryjane the reason why your uncle Rodelio Cruz
             did not succeed in raping you on April 25, 1991?

A:    When he suddenly saw my brother, he ran so the rape was not


             Can you please try to recall if you were investigated by the police officer on your complaint?

A:    Yes, your honor.


             And the result of that investigation was your statement now marked as Exhibit A, is it not?

A:    Yes, your honor.


             Did you read your statement before you affixed your signature?

A:    Yes, your honor.


             Did you understand the contents of this statement before you affix (sic) your signature?

A:    Yes, your honor.


             When you came to that portion of question No. 10 and the answer thereto which states that the accused raped you inside your comfort room of the afternoon of April 25, 1991 at 3:00 o'clock in the afternoon which is not true because you said now that the accused did no(t) succeed in raping you on said date?

A:    I was confused your honor.


             In other words you were raped by your uncle not on April 25 but in some other date as you mentioned?

A:    Yes, sir.

Q     How many times were you raped by your uncle before April 25, 1991?

A:    I do not remember. (emphasis supplied)

x x x[19]
It is clear from Mary Jane's testimony that accused-appellant succeeded in raping her in the past, but not on April 25, 1991. Accused-appellant cannot be convicted for consummated rape on the basis of such evidence as the complaint specifically refers to the offense committed on April 25, 1991. Due process demands that the accused in a criminal case should be informed of the nature of the offense with which he is charged before he is put on trial. To convict him for an offense not alleged in the complaint or information will violate such right.[20]

Considering the evidence presented, we find the accused-appellant guilty of attempted rape. Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
1.  By using force or intimidation;

2.  When the woman is deprived of reason or otherwise unconscious; and

3.  When the woman is under twelve years of age or is demented.[21]
In the case at bar, there was no carnal knowledge although accused-appellant has commenced the commission of the offense by overt acts. He surreptitiously entered the bathroom when Mary Jane was about to take a bath. He removed his clothes, afterwhich he started to disrobe Mary Jane. The intention of accused-appellant is obvious. The circumstances show that he had nothing in mind at that time but to satisfy his carnal desire. If it were not for the timely intervention of Mary Jane's brother, accused-appellant would have again consummated his lust against Mary Jane's will.

IN VIEW WHEREOF, the appealed judgment is MODIFIED. Accused-appellant Rodelio Cruz y San Jose is hereby declared GUILTY of ATTEMPTED RAPE. He is sentenced to an indeterminate penalty ranging from six (6) years of prision correccional as minimum to ten (10) years of prision mayor as maximum and to pay the offended party the sum of P30,000.00 as civil indemnity.[22]


Regalado (Chairman), Romero, Mendoza, and Torres, Jr., JJ., concur.

Decision penned by Judge Felix S. Caballes, Rollo, pp. 11-14.

[2] Rollo, pp. 4-5.

[3] Original Records, p. 35.

[4] TSN, August 11, 1992, p. 5.

[5] TSN, August 11, 1992, p. 2.

[6] TSN, June 9, 1992, pp. 3-16.

[7] TSN, June 9, 1992, pp. 19-20.

[8] TSN, June 9, 1992, p. 19.

[9] Exhibit "A".

[10] Exhibit "C"; TSN, August 13, 1992, p. 3.

[11] TSN, November 4, 1993, pp. 2-5.

[12] Rollo, p. 14.

[13] Appellant’s Brief, Rollo, p. 32.

[14] See People vs. Dela Peña, 233 SCRA 573 (1994).

[15] TSN, June 9, 1992, pp. 3-7.

[16] TSN, June 9, 1992, pp. 19-22.

[17] TSN, August 11, 1992, p. 2

[18] TSN, August 11, 1992, pp. 2-4

[19] TSN, August 11, 1992, pp. 5-6.

[20] See People vs. Vitor, 245 SCRA 392 (1995); People vs. Joya, 227 SCRA 9 (1993).

[21] Article 335 of the Revised Penal Code, as amended.

[22] See People vs. Lucas, 232 SCRA 537 (1994).

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