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338 Phil. 1010


[ G.R. No. 121176, May 14, 1997 ]



Before Us for automatic review is the Joint Decision[1] dated March 24, 1995 rendered by the Regional Trial Court of Cabanatuan City, Branch 27, convicting appellant for Rape and Frustrated Homicide, the dispositive portion of which reads:
"WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of Rape and Frustrated Homicide and therefore sentences him to suffer the penalty of:

"1. Death in Criminal Case No. 6167-AF and to indemnify the offended party in the amount of P50,000.00 as moral and exemplary damages (People vs. Perez, 175 SCRA 203);

"2. Eight (8) years and one (1) day to ten (10) years of prision mayor in its medium period in Criminal Case No. 6168-AF, and pay damages to the offended party in the amount of P30,000.00, and

"3. To pay the costs.

We find on record the following facts:

On January 7, 1995, Cristina Capulong filed with the RTC of Cabanatuan City, a complaint accusing Marlon Parazo y Francisco of the crime of rape, committed as follows:

"That on or about the 6th day of January 1995, in the City of Cabanatuan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, motivated by lewd design and by means of threat, force and intimidation and with the use of a knife, did then and there, willfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant, against the latter's will and consent and to her damage and prejudice.

Also on January 7, 1995, an Information was filed by Asst. City Prosecutor Marius L. Abesamis accusing Marlon Parazo y Francisco of the crime of Frustrated Homicide, committed as follows:
"That on or about the 6th day of January, 1995, in the City of Cabanatuan, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, did then and there, willfully, unlawfully and feloniously attack, assault and use personal violence upon the person of one CRISTINA CAPULONG y AROCENA, by stabbing the latter with the use of knife, thereby inflicting upon her stab wounds on the different parts of her body that would ordinarily cause her death, and said accused having thus performed all the acts of execution which would produce the crime of Homicide, as a consequence thereof, but which nevertheless did not produce it by reason independent of his will, that is, by the timely medical assistance rendered unto the aforesaid Cristina Capulong y Arocena.

Upon arraignment on January 25, 1995, the accused pleaded not guilty in Crim. Case No. 6167 for Rape. Meanwhile, on January 30, 1995, the Judge handling Crim. Case No. 6168 for Frustrated Homicide, granted the Asst. City Prosecutor's motion for consolidation of Crim. Case No. 6168 with Crim. Case No. 6167. On February 1, 1995, the accused pleaded not guilty in Crim. Case No. 6168 for frustrated homicide.

Complainant Cristina Capulong y Arocena, 21 years old, single, a 4th year college student of Araullo University at Cabanatuan City, testified that: On January 6, 1995, at around 3:30 o'clock in the morning, she was sleeping in her room in a boarding house in Mabini Extension, Cabanatuan City, when she was suddenly awakened because someone was ransacking her things near her feet. The man whom she identified in court as the accused, then pointed a knife at her and motioned to her to keep quiet. She pleaded with him for mercy and to spare her life but the accused suddenly boxed her twice in her stomach, poked the knife at her neck, and forcibly undressed her. Then, the accused, still pointing the knife at her neck, forcibly inserted his private part on her private part and she felt pain. While she was being raped by the accused, the latter dropped the knife on the table. She managed to grope for the knife and was able to stab him. The accused got up, took the knife from her and in turn stabbed her on her right side. While they were struggling near the door, the accused stabbed her again, this time, in her breast. After the accused had left thinking that she was already dead since she lay slumped on the floor, she was able to stand up even though blood was spurting from her wounds. She went to the adjoining room and knocked at the door. She felt she was going to die because of her stab wounds. Her boardmate Josie Martinez, a nurse at the P.J.G. Hospital, and her landlady brought her to the Good Samaritan Hospital. While she was at the x-ray room of the hospital, a policeman came to investigate about the incident. There she made a statement to the police. She was operated on and stayed in the hospital for eight (8) days.[4]

Another prosecution witness, SPO2 Nemensio Atendido, 41 years old, a police investigator, recounted that: On January 6, 1995, at about 4:00 o'clock in the morning, he was in the Police Station at General Luna, when an unidentified nurse at Good Samaritan Hospital informed their station through telephone that they have a victim of a stabbing incident. He was immediately dispatched to said hospital. He found the victim (complainant) inside the emergency room of the hospital. Upon questioning her, he found out that aside from having been stabbed, she was also raped. He also found out that the assailant was showing her an ATM card which bears the name of a certain Ariel Parungao. The victim supplied to him Ariel Parungao's address at 106 Barangay Rizdeliz of Cabanatuan City. When he brought Ariel Parungao before the victim, the latter told him that he was not the one. So, he went to the victim's boarding house but he failed to gather information therefrom. He went back to the victim and talked to her some more. He thought it strange that the assailant who was unable to talk would identify himself through an ATM card. From the owner of the ATM card, he learned that on January 2, 1995, an unidentified person forcibly entered their house and took away personal property belonging to him, such as ATM card, camera and P800.00 cash. He was able to determine that the accused was the perpetrator of the crime because the victim told him that she was able to stab the accused once or more than once. So, he sounded off an alarm to all the hospitals in Cabanatuan City telling them that if a male person with stab wounds will be admitted to the hospital, to please inform him so he can conduct the proper investigation. At around 6:00 o'clock on the same morning, an information was given to him through telephone by a nurse and a doctor at the P.J.G. that there was a male patient bearing stab wounds who was admitted thereto. He immediately went to the P.J.G. hospital and there he saw the accused. The reason why he zeroed in on accused Marlon Parazo was that this person has previous records in their office that he was always accused of breaking and entering other people's home for purposes of thievery from 1991 up to 1994 and as a matter of fact, last August 1994, he went out from jail. On that particular morning there were no other incidents regarding a male person who sustained stab wounds as far as other hospitals are concerned. Since he could not bring the accused to the complainant nor the complainant to the accused as both were in critical condition, he brought a photographer to the hospital where the accused was confined and had the latter's photograph taken. When he showed to the victim, the accused's photo, the former identified the latter as her assailant. On cross-examination, this witness said that it took only one or two hours to develop the pictures;[5] that he asked her why she was certain that the man in the photo was her assailant; and that the victim said the room was lighted.[6]

Another prosecution witness, Dr. Ricardo Gavino, 38 years of age, married, a doctor by profession, testified that: He is connected with the Nueva Ecija Good Samaritan Hospital as a Consultant in the department of Surgery. In the early morning of January 6, 1995, he was called to the hospital as a certain patient with stab wounds was admitted and said patient needs immediate operation. He did the operation on said patient. Based on their examination, he found out that the two stab wounds caused injuries which penetrated the plevical cavity, hitting the lung and the edge of the liver causing sanctioning of air and causing malfunctioning and collapsing of the left lung. He issued a medical certificate after performing the operation with respect to the victim Cristina Capulong. Prior to the operation, while he was interviewing the patient at the emergency room about her medical history, the patient told him that she was stabbed by the accused while she was being sexually abused by the same man. With respect to the physical examination of the victim, the doctor made the following findings:
"Finding: Internal examination admits one finger with ease, meaning to say, that the vaginal opening admits one finger with ease, with no resistance at all, positive with fresh laceration at 7 o'clock position, no bleeding was noted. With whitish male secretion from the vaginal canal."[7]
He also testified that from the findings he had that morning, and in his experience, he thinks that the patient was really raped.[8]

For his part, accused Marlon Parazo, 24 years old, single, jobless and a resident of Palayan City, denied complainant's accusations and interposed the defense of alibi. He testified that from the early evening of January 5, 1995 up to the early morning of January 6, 1995, he was in his father's house in Palayan City. His companions therein were his father Terry, his mother Shiela, Loida and Naty Parungao. On cross-examination, he testified that he knows how to ride a motor vehicle and he frequently visited Cabanatuan City to buy clothes. In the morning of January 6, 1995, he was admitted in the P.J.G. hospital with stab wound which was caused by a woman whom he did not know. When asked in what particular place he was stabbed, the accused replied it was in Palayan City. No other defense witnesses were presented.

After trial, a joint decision was rendered by the trial court in the two cases, which as heretofore mentioned, convicted accused of both crimes of rape and frustrated homicide.

In this appeal, accused-appellant raises the sole error that:
"The lower court erred in not appreciating the defense of the accused-appellant that he was not at the scene of the crime when the alleged incident took place, a defense sufficient to overcome and destroy the evidence presented by the prosecution which would have warranted the acquittal of the accused-appellant."[9
The lower court's decision should be affirmed.

This Court will not interfere with the trial court's judgment on the trustworthiness of witnesses unless there appears on record facts and circumstances of real weight which might have been overlooked or misapprehended.[10] In the case at bar, there appears no such facts and circumstances which the trial court might have overlooked or misapprehended.

The test to determine the value of the testimony of a witness is whether or not such is in conformity with knowledge and consistent with the experience of mankind.[11] All the witnesses for the prosecution testified in a simple, straightforward manner and their declarations jibed in such a way that nobody could doubt the truthfulness of all their testimonies which are consistent with common experience and the natural course of things. More specifically, the complainant herein who testified in a categorical, candid, spontaneous and frank manner, is a credible witness.[12] On cross-examination by the defense counsel, she remained unshaken.

On the other hand, accused-appellant's claim that he was sleeping in their house at the time of the incident, remained unsubstantiated and uncorroborated. As aptly pointed out by the trial court, and the Court quotes with approval, viz:
"The Court has not been remiss in its duty of extending all opportunities to the accused for him to adduce evidence for his defense. Pursuant to the accused's request, subpoena were issued to his father, mother and sister to be his witnesses apparently to corroborate his assertion that he slept in their house in Palayan City on the night in question. But that his parents and sister -despite due notice to them to appear on February 21 and 22, 1995, both at 8:30 o'clock in the morning - did not appear, at the least to show sympathy, and at most to lend credence to his allegation that he, indeed, slept at home on the night of the incident, only casts doubt on the truthfulness of his claim.

"That not one of his parents or brothers or sisters appeared in court, even as a mere show of sympathy, speaks ill of the accused. For no parents - most of all a mother would abandon their kith and kin, that is, if he were one devoid of evil in his character or is capable of telling the truth worthy of belief.

"With the accused facing a heinous charge, and, for lack of convincing corroborative witness risks receiving a death sentence, how easy for any of his relatives to come forth and vouch that his allegations were true and without any tint of confabulation. Such absence of filial support only strengthens the court's belief that the accused is capable of the atrocious deed he is now accused of."
Denials unsubstantiated by clear and convincing evidence are negative, self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight over the testimony of credible witnesses who testified on affirmative matters.[13]

Accused-appellant's denial and alibi do not inspire belief. When confronted with the question of how he sustained his stab wounds on January 6, 1995, all he could say was that a woman did it and he does not know why the woman stabbed him. He failed to explain the surrounding circumstances when he was stabbed. The Court cannot simply choose to believe appellant's bare assertions as against the prosecution's concrete evidence. Moreover, accused-appellant claims to have been in Palayan City all the time and yet the hospital (P.J.G.) where he was confined due to his stab wounds was located in Cabanatuan City. This further disproves his claim that he was with his parents and sisters in his father's house in Palayan City from the evening of January 5 to the early morning of January 6, 1995.

Time and again, it has been held that alibi is a weak defense and cannot prevail over the positive identification of the accused by the prosecution's witness who has no motive to testify falsely against him.[14]

Thus, the Court finds that the trial court correctly convicted accused-appellant of both crimes.

Article 335 of the Revised Penal Code, as amended by R.A. 7659,[15] provides that, "Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death."

Death and reclusion perpetua are principal indivisible penalties.[16]

Art. 63 of the Revised Penal Code provides the Rules for the application of indivisible penalties. The pertinent provision thereof reads:
"In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:

"1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied.

"2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied."
Art. 14 of the Revised Penal Code states that the following are aggravating circumstances:


"3. xxx that it be committed in the dwelling of the offended party, if the latter has not given provocation;

The crime of rape was committed in the boarding house where the complainant was staying. Dwelling may be aggravating even if it does not belong to the victim.[17] The dwelling need not be owned by the victim. The Code speaks of "dwelling", not domicile.[18] In People vs. Daniel,[19] where the victim was raped in the boarding house where she was a bedspacer, this Court held that:

"xxx her room constituted for all intents and purposes a 'dwelling' as the term is used in Article 14(3) of the Revised Penal Code. It is not necessary, under the law, that the victim owns the place where he lives or dwells. Be he a lessee, a boarder, or a bed-spacer, the place is his home the sanctity of which the law seeks to protect and uphold.

"Hence, the correct penalty for the crime committed is death pursuant to Article 335 of the Revised Penal Code as amended. xxx"
And in People vs. Sto. Tomas,[20] where the victim was killed in her mother's house where she was temporarily staying to avoid appellant in their conjugal house, this Court held that dwelling is aggravating even if victim's stay in the house is temporary. "Dwelling is considered an aggravating circumstance because primarily of the sanctity of privacy the law accords to human abode. According to one commentator, one's dwelling place is a 'sanctuary worthy of respect' and that one who slanders another in the latter's house is more guilty than he who offends him elsewhere."[21] "Cuello Calon says that the commission of the crime in another's dwelling shows greater perversity in the accused and produces greater alarm."[22]

Within the ambit of the law applicable, nighttime and unlawful entry may be considered as aggravating circumstances, thus: In People vs. Garcia (No. L-30449. Oct. 31, 1979, 94 SCRA 14) and People vs. Palon, (No. L-3271, Feb. 20, 1984) this Court emphasized the two tests for nocturnity as an aggravating circumstance:
 "There are two tests for nocturnity as an aggravating circumstance: the objective test, under which nocturnity is aggravating because it facilitates the commission of the offense; and the subjective test, under which nocturnity is aggravating because it was purposely sought by the offender. These two tests should be applied in the alternative. xxx In this case, the subjective test is not passed because there is no showing that the accused purposely sought the cover of nighttime." There are other similar cases on this point.[23]
We find, however, that a discussion or further survey on these aspects would no longer be necessary because when in the commission of the offense, there is present only one aggravating circumstance, the greater penalty of death shall be applied.[24] Thus, with the presence of one aggravating circumstance, i.e., dwelling, the law has made it inevitable under the circumstances of this case that the greater penalty of death shall be applied.

While compassion is, in itself, a virtue, it cannot and should not replace justice under law, in this particular case, justice to the victim.[25] The narration of the witnesses for the prosecution would show how brave enough the victim was, to defend her honor and her life; how SPO2 Nemensio Atendido proved true to his duty, relentless in his search for the perpetrator of the crimes; and how Dr. Ricardo Gavino likewise quickly responded to the call and performed a successful operation on the victim. The prosecuting fiscal and the judge also did their best to give justice to the victim. All their efforts must not be put to naught.

In the case for frustrated homicide, the same carries with it the penalty of prision mayor. There being one (1) aggravating circumstance attending the commission of the crime, the imposable penalty is the maximum period of prision mayor. Applying the Indeterminate Sentence Law, accused-appellant should be meted the indeterminate sentence of six (6) years of prision correccional as minimum penalty to twelve (12) years of prision mayor maximum, as maximum penalty.

The Court notes that the trial judge failed to consider the aggravating circumstance of dwelling in determining the penalties to be imposed in the two cases. This is a flaw or defect which is too prevalent coming in appealed criminal cases before us. Judges of the lower courts are hereby reminded of their duty to consider in all cases, the proper appreciation of aggravating and/or mitigating circumstances attendant to the commission of the crime, which is decisive in determining whether the penalty should be increased or decreased, and would thus contribute to the orderly administration of justice.

WHEREFORE, the joint decision appealed from dated March 24, 1995, is hereby AFFIRMED with respect to Crim. Case No. 6167, and accused Marlon Parazo y Francisco is found guilty of the crime of rape under Section 11 of Republic Act No. 7659 amending Article 335 of the Revised Penal Code, with the aggravating circumstance of dwelling, and is sentenced to the penalty of death, with two (2) members of the Court, however, voting to impose reclusion perpetua.

The decision appealed from with respect to Crim. Case No. 6168, for frustrated homicide is MODIFIED in that the accused is sentenced to suffer the indeterminate penalty of six (6) years of prision correccional as minimum penalty to twelve (12) years of prision mayor maximum, as maximum penalty.

In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban, and Torres Jr., JJ., concur.
Padilla, J., on leave.

[1] Pp. 40-61, Original Record, Crim. Case No. 6167-AF.

[2] Original Record, Crim. Case No. 6167, p. 1.

[3] Original Record, Crim. Case No. 6168, p. 1.

[4] TSN, February 1, 1995, pp. 3-10.

[5] Exhs. "E," "F," "G," and "H," Folder of Exhibits.

[6] TSN, February 1, 1995, pp. 18-24.

[7] TSN, Feb. 7, 1995, p. 7.

[8] TSN, Feb. 7, 1995, pp. 2-7.

[9] Brief for Accused-Appellant, p. 3, Rollo, p. 46.

[10] People vs. Marinas, G.R. No. 97953-56, September 14, 1995, 248 SCRA 165.

[11] People vs. Gazmen, G.R. No. 110034, August 16, 1995, 247 SCRA 414.

[12] People vs. Nuestro, G.R. No. 111288, January 18, 1995, 240 SCRA 221.

[13] People vs. Morales, G.R. No. 104994, February 13, 1995, 241 SCRA 267; People vs. Macario, G.R. No. 109616, January 25, 1995, 240 SCRA 531.

[14] People vs. Pacapac, G.R. No. 90623, September 7, 1995, 248 SCRA 77.

[15] An Act To Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as Amended, Other Special Penal Laws, and For Other Purposes.

[16] Revised Penal Code Annotated by Retired Chief Justice Ramon C. Aquino, 1987 Ed., Vol. I, p. 679.

[17] People vs. Celestino Basa, 83 Phil 622.

[18] Ibid.

[19] No. L-40330, Nov. 20, 1978, 86 SCRA 511, 531.

[20] L-40367-69, 22 Aug. 1985, 138 SCRA 206.

[21] People vs. Balansi, G.R. No. 77284, July 19, 1990, 187 SCRA 566, 575; Revised Penal Code Annotated, by Reyes, Vol. I, 1993 Ed., p. 338; Revised Penal Code Annotated, by Aquino, Vol. I, 1987 Ed., p. 315; Viada, 5th Edition, Vol. II, pp. 323-324.

[22] Revised Penal Code Annotated, by Aquino, Vol. I, 1987 Ed., p. 315; Viada, 5th Edition, Vol. II, pp. 323-324.

[23] Then in People vs. Bato (No. L-23405. Dec. 29, 1967, 21 SCRA 1445) the place was well-lighted, so visible and recognizable; in People vs. Corachea (No. L-30101. July 16, 1979, 91 SCRA 422) where the crime was committed inside the bus, recognizable by other passengers; in People vs. Cristobal (No. L-32562. June 29, 1979, 91 SCRA 71) the crime took place in a well-lighted jeepney, accused was recognizable, hence, "nighttime was not especially sought for"; and in People vs. Moral (No. L-31139. Oct. 12, 1984) it was held that "nocturnity cannot also be appreciated as an aggravating circumstance since there is no evidence that the accused has purposely sought the cover of darkness."

[24] Article 63, par. 1, Revised Penal Code.

[25] Justice Padilla's Dissenting Opinion, G.R. No. 115686, December 2, 1996.

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