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466 Phil. 733

EN BANC

[ G. R. No. 145034-35, February 05, 2004 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. PEDRO INTONG Y AGAPAY, APPELLANT.

D E C I S I O N

VITUG, J.:

For review is a decision[1] of the Regional Trial Court of Calamba, Misamis Occidental, Branch 36, in Criminal Case No. 36-05 and Criminal Case No. 36-09, finding appellant Pedro Intong y Agapay guilty beyond reasonable doubt, on two counts, of the crime of rape.  In each of these two cases, the trial court imposed on appellant the penalty of death and the payment of P75,000.00 civil indemnity and P50,000.00 moral damages to the victim and her parents.

In Crim. Case No. 36-05 for rape, the accusatory information read:
“That on or about the 23rd day of November, 1997, at or about 10:00 o’clock in the evening, in barangay Bunawan, municipality of Calamba, province of Misamis Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, entered the bedroom in the dwelling of the offended party, and by means of force and intimidation, with the use of a hunting knife, did then and there willfully, unlawfully and feloniously have carnal knowledge of the offended party Genalyn Camporedondo, a 10-year-old girl who is the step granddaughter of said accused, without her consent and against her will.

“CONTRARY TO LAW, with the qualifying circumstance that the victim is under twelve (12) years of age and the offender is a stepgrandfather of the victim, and the use of a deadly weapon, and the aggravating circumstance that the offense was committed in the dwelling of the offended party.”[2]
In Crim. Case No. 36-09 for statutory rape, the accusation was to the following effect, viz:
“That on or about November 23, 1997, at about 10:00 o’clock in the evening, more or less, in the kitchen of their house, at barangay Bunawan, municipality of Calamba, province of Misamis Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, and with the used (sic) of a hunting knife, with violence, force, and intimidation, did then and there, willfully, unlawfully and feloniously have carnal knowledge with GENALYN CAMPOREDONDO, a minor 10 years old, without her consent and against her will.

“CONTRARY TO LAW, with the presence of the qualifying circumstance of minority and the aggravating circumstance of relationship the accused being the step-father of the mother of the victim.”[3]
Appellant pleaded not guilty to the charges.  The trial ensued with the prosecution first presenting its evidence on, and the defense thereafter submitting its own version of, the incidents complained of.

Genalyn Camporedondo, the eldest child of the spouses Jimmy and Emma Camporedondo, was born on 5 July 1987.  Along with her siblings named Gino, Raymond, Lenie and Roselle, Genalyn treated appellant with respect, he being the second husband of her grandmother, the mother of her own mother Emma.  The Camporedondo family lived in an old and dilapidated house in Bunawan, Calamba, Misamis Occidental.  Its roof was made of nipa shingles, with a portion made only of “cellophane.”  Its walls were matted bamboo slats.  Two lamps lighted the dwelling at night.

After supper on the evening of 23 November 1997, Jimmy and Emma, accompanied by appellant, Andrew and Ronnie Intong, went to the benefit disco dance of the barangay, leaving their children sleeping at home.  Appellant later decided not to proceed to the dance party and returned home.

It was raining, with the darkness of the night intermittently interrupted by flashes of lightning.  About ten o’clock that night, Genalyn was awakened by difficulty in breathing and felt somebody mounting her.  She recognized that person to be her step-grandfather when she saw his face by the lightning flashes and also by his voice as he urged her to respond to his kisses.  Genalyn shouted for help and resisted the assault, in the process kicking her nine-year old brother Gino who then woke up.  Gino was unable to help his sister. While on top of Genalyn, appellant, who was naked from waist down, inserted his penis into the vagina of Genalyn and did the push-and-pull movement.  Soon thereafter, he inserted his fingers into her vagina.  His lust apparently still unsated, he carried Genalyn to the kitchen where he laid her down the floor and then, again, inserted his penis into her vagina.  After doing the push-and-pull movement, he, like before, inserted his fingers into her vagina.  During the assault, Genalyn felt excruciating pain.  She shouted for help but nobody responded.  When it was over, appellant got hold of a sanggot, a scythe used in harvesting coconut, from the kitchen and threatened Genalyn and her siblings with death if they were to mention the incident to their parents.  Appellant then left.

Jimmy and Emma arrived home at two o’clock in the morning.  Gino promptly reported to the couple the sexual assaults committed by appellant against his sister.  Expectedly taken aback, Jimmy immediately took the matter up with the barangay tanod of Bunawan.  At daybreak, barangay officials brought Genalyn and her parents to the Calamba District Hospital.  Dr. Jona C. Handumon, who examined her, found tenderness in Genalyn’s left breast, erythema of the introitus, fresh laceration of the posterior fourchette, fresh abrasions on the 5, 6, 7 and 9 o’clock positions of the hymen, erythema, as well as abrasions of the posterior vaginal wall, a firm but tender cervix with bloody mucoid discharge and a strand of pubic hair.  Dr. Handumon did not conduct a speculum examination.  The findings, reflected in the medico-legal report, were attested to by Dr. Rodolfo L. Nazareno.[4]

In his defense, the 52-year-old appellant interposed alibi and denial.  A laborer and tuba-gatherer, appellant claimed that right after lunch on 23 November 1997, a Sunday, he drank Tanduay at the public market in the company of his wife, Antonina Remorosa, and the Camporendondo spouses.  He was so drunk that Jimmy and Emma had to help him get home.  On the morning of 24 November 1997, the barangay captain, a barangay tanod, and a member of the CAFGU arrested him.  Appellant asserted that he could not have possibly raped Genalyn, whom he treated as his own granddaughter, and that, in any event, he was too drunk to commit the sexual abuse.  He could not, however, think of an evil motive that could have led Jimmy and Emma to charge him with rape.  His daughter by Antonina, Merlita Intong Aca, did claim that Jimmy and Emma harbored ill-feelings against appellant because the couple wanted to take over the tenancy of the land that appellant and his wife were tilling.  Antonina corroborated Merlita’s claim.

The trial court saw the case for the prosecution and convicted appellant; it concluded:
“WHEREFORE, premise considered, finding accused Pedro Intong guilty beyond reasonable doubt of having committed the crime of RAPE in CRIMINAL CASE NO. 36-05 as defined and penalized under Article 335 of the Revised Penal Code as amended by Article 266-A and 266-B of Republic Act 8353 in relation to R.A. 7610 with the attending (sic) or presence of three qualifying aggravating circumstances, namely: 1) that victim Genalyn Camporedondo is below 12 years old; 2) that the crime of rape was committed with the use of a deadly weapon; and 3) that the crime of rape was committed in the house or dwelling place of victim Genalyn Camporedondo, and likewise the presence of the generic aggravating circumstance that the crime of rape was committed in the presence of Gino Camporedondo, a brother of victim Genalyn Camporedondo, this is so because this aggravating circumstance was not alleged in the Information although it was proven, accused Pedro Intong is hereby sentenced to a penalty of DEATH. Pedro Intong is hereby directed to pay the amount of P75,000.00 as civil indemnity and the additional amount of P50,000.00 as moral damages to Genalyn Camporedondo and to her parents.

“In CRIMINAL CASE NO. 36-09, accused Pedro Intong is found guilty beyond reasonable doubt of having committed the crime of RAPE as defined and penalized under Article 335 of the Revised Penal Code as amended by Article 266-A and 266-B of Republic Act 8353 in relation to section 11 of R.A. 7659, with the presence of qualifying aggravating circumstances, namely: 1) that victim Genalyn Camporedondo is below 12 years old, and 2) that the crime of rape was committed with the use of a deadly weapon, and likewise also, with the presence of two generic aggravating  circumstances, namely: 1) that the crime of rape was committed in the presence of the brother of the victim, Gino Camporedondo, and 2) that the crime of rape was committed in the house or dwelling place of victim Genalyn Camporedondo — hese are considered only as generic aggravating circumstances for the same are not alleged in the Information although they were proven, accused Pedro Intong is hereby sentenced to a penalty of DEATH. Pedro Intong is hereby directed to pay to Genalyn Camporedondo and [her] parents the amount of P75,000.00 as civil indemnity and the additional amount of P50,000.00 as moral damages.”[5]
Appellant, through the Public Attorney’s Office, interposed a lone assignment of error; viz: “THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WHEN THE LATTER’S GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.”[6]

Appellant focuses much on the question of credibility of the witnesses for the prosecution.  This Court has consistently held, however, that such an issue is, by and large, within the proper competence of the trial court.  The credibility of a witness is a matter best left to the trial court because of its peculiar position of being able to observe his deportment on the stand while testifying, an opportunity that is denied to an appellate court.  Thus, there is good reason for the latter to almost always accord finality to the findings of the trial court unless, as so often said, “there appears in the record some fact or circumstance of weight which the lower court may have overlooked, misunderstood or misappreciated and which, if properly considered, would alter the results of the case.”[7]

Understandably, appellant assails the reliability of the identification made by the prosecution for, after all, it is the only way by which his alibi could carry some weight.  It is well-settled that a categorical and positive identification of an accused, without any showing of ill-motive on the part of the eyewitness testifying on the matter, prevails over alibi and denial, which are negative and self-serving evidence undeserving of real weight in law unless substantiated by clear and convincing evidence.[8] In this case, both Genalyn and Gino have been able to identify appellant by the lightning flashes that illuminated their otherwise dark house and through his voice.  It is known that the most natural reaction of a witness to a crime is to strive to look at the appearance of the perpetrator and to observe the manner in which the offense is perpetrated.[9] Even the split-second illumination by a flash of lightning could suffice to confirm identification of appellant.  Identification of an accused by his voice has also been accepted particularly in cases where, such as in this case, the witnesses have known the malefactor personally for so long[10] and so intimately.[11] In People v. Calixtro,[12] the Court has given credence to the blindfolded rape victim’s identification of the accused, a barriomate, by his voice.  Still in an earlier case, the Court has said:
“x x x [C]omplainant’s identification of the appellant was not based solely on the latter’s physical defect, but by his voice as well, when he warned complainant, `Flor, keep quiet.’ Although complainant did not see appellant’s face during the sexual act because the house was dark, nevertheless, no error could have been committed by the complainant in identifying the voice of the accused, inasmuch as complainant and appellant were neighbors.”[13]
The young victim, narrating her ordeal, declared before the trial court:
“Q -You said that you were able to wake up in that late evening and you saw Pedro Intong on top of you, was Pedro Intong having his pants on when he was on top of you?
“A -  He has no more pants.
  
“Q - How about you when you were awakened and you saw Pedro Intong on top of you and you can hardly breathe, where was your dress?
“A - He raised up my dress.
  
“Q - You said that your dress was raised up to your waist and Pedro Intong had no more pants and on top of you what did he do next to you?
“A - He kissed me at my cheeks.
  
“Q - Aside from kissing your cheeks what did Pedro Intong do to the lower part of your body especially your vagina?
“A - He made a push and pull motions.
  
“Q - You said that Pedro Intong had no more pants and made a push and pull motions, did you notice the organ or penis and eggs of Pedro Intong touching your vagina?
“A - Yes.
  
“Q - It was evening Genalyn, in fact you were sleeping and then you were awakened, how were you able to identify that it was Pedro Intong when it was evening?
“A - Because I am familiar with his voice and at the time he kissed me he told me to respond in kissing.
  
“Q - Am I right Genalyn that the roofing of your house is dilapidated and the roofing is covered with cellophane?
“A - Yes.
  
“Q - There was lightning during that time?
“A -  Yes.
  
“Q - When there was lightning you were able to see Pedro Intong?
“A - Yes.
  
“Q - On top of you?
“A -  Yes.
  
“Q - Doing the push and pull motions?
“A - Yes.
  
 “x x x                    x x x                 x x x
  
“Q - After accused Pedro Intong made push and pull movements on top of you and your skirt was raised up to your waist and Pedro Intong had no more pants, where did Pedro Intong bring you next?
“A - He brought me to the kitchen.
  
“Q - In the same house?
“A -  Yes.
  
“Q - How did Pedro Intong bring you to the kitchen, dragging you or carrying you?
“A - He carried me.
  
“Q - How far was the kitchen where he brought you from the room where you were sleeping when accused was on top of you?
“A - The kitchen is just below the portion of where we were sleeping.
  
“Q - How many steps was the kitchen from the room where you were sleeping?
“A - One (1) step.
  
“Q - You said Pedro Intong carried you to the kitchen which was one step only from the bedroom on the top, what did Pedro Intong do to you when you reached the kitchen?
“A - He dropped me then he mounted on top of me.
  
“Q - You were dropped on the floor and accused Pedro Intong mounted on top of you?
“A -  Yes.
  
“Q -

After Pedro Intong mounted on top of you, what did he do next?

“A -  Again he made a push and pull motions.
  
“Q - Did the organ of Pedro Intong touch your vagina?
“A -  Yes.
  
“Q - Was it inserted inside your vagina?
“A - Yes.
  
“Q - When you were in your bedroom did accused Pedro Intong aside from doing the push and pull movements did he insert his penis to your vagina?
“A - Yes.”[14]
Pitted against the victim’s unflinching and consistent testimony, given during both the direct examination and the cross-examination, was appellant’s declaration that he was at home during the material time, too drunk to move from where he slept.  Apparently, in a bid to add flair to his story, appellant claimed that he could not have raped the victim due to an unnamed illness that caused him to dislike sexual intercourse[15] adding that his penis, when enlarged, would have a circumference of about six inches or the size of an 8-ounce Pepsi Cola bottle[16] or, according to his wife, the size of the gavel of the judge.[17] Indeed, appellant had clutched at the last straw in a bid for exoneration.

Similarly futile is his defense of alibi.  For this defense to be appreciated in favor of an accused, it would be necessary that he is able to establish his presence at another place at the time of the perpetration of the offense, and that it would have been physically impossible for him to be at the crime scene.[18] Appellant’s house, however, where he claims to have been at the time of the incident, is only about 150 meters away.  Like denial, alibi is a feeble defense not only because of its inherent weakness and unreliability but also because it is easy to fabricate.[19]

Appellant has been charged, in two separate informations, with “the crime of rape, defined and penalized under Article 335 of the Revised Penal Code, as amended by Republic Act No. 8353, which has reclassified the offense of rape as a crime against persons under Title Eight of Act No. 3813 of the Revised Penal Code.”  Section 266-A of the Code provides:
“Article 266-A. Rape; When And How Committed. — Rape is Committed —

“1)     By a man who shall have carnal knowledge of a woman under any of the following circumstances:
“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.
“2)     By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.

“Article 266-B. Penalties. — Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.

“Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

“x x x                                     x x x                             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, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim:

“x x x                                     x x x                                         x x x

“3)     When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;

“x x x                                     x x x                             x x x

“Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.

“Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be prision mayor to reclusion temporal.
The crime of rape is thus committed either (a) by carnal knowledge or (b) by the insertion of the penis into the mouth or anal orifice of the victim or by the insertion of any object or instrument into the genital or anal orifice of a person.  The sexual congress and the insertion of appellants’ fingers into the sex organ of the victim, twice committed, have been sufficiently established.  Unexplainably, appellant has not been additionally charged in the information under the second mode of committing rape.

The crime of rape is penalized with reclusion perpetua; the penalty becomes reclusion perpetua to death when committed with the use of a deadly weapon and the attendance of other circumstances therein stated.  When the rape is attended by the qualifying circumstances of minority of the victim and of her relationship with the culprit, the imposable penalty is death.

The victim did not testify on the use of a deadly weapon in the commission of the crime.  It was her 9-year-old brother Gino but who merely testified that appellant “had” or “held” a knife.[20] In People vs. Sagaysay,[21] the Court said:
“x x x What can qualify the offense under Republic Act No. 7659 so as to warrant the imposition of the death penalty would be when the rape is committed with the use of a deadly weapon and not just the overt act of `being armed with a weapon.’  Although the victim in the instant case testified about the accused being armed with a knife, the record, however, is bereft of evidence to show that he actually has used it, the knife having all along been just tucked at the back of his trousers.”
The informations alleged that the victim was a minor, and that appellant was her step-grandfather.  The qualifying circumstances of minority and relationship, if indeed in attendance, could elevate the penalty to one of death.

The minority of the victim at the time of commission of the rape incidents was sufficiently established.  The victim testified,[22] and her mother corroborated the testimony,[23] that she was born on 5 July 1987 or just a little over ten years and four months old when the crime was committed on 23 November 1997.  According to Emma, the victim’s mother, she tried to secure a copy of the birth certificate of Genalyn but she failed to get one.  Instead, the civil registrar issued her a certification[24] showing that the records of birth from 1936 to 26 June 1988 of the municipality of Sindangan, where Genalyn was born, were destroyed by fire.  Hence, the prosecution presented the baptismal certificate[25] issued by the parish priest of St. Joseph the Worker in Sindangan, Zamboanga del Norte, showing that Genalyn, who was baptized on 1 February 1988, was born on 5 July 1987.  In People vs. Pruna, [26] the Court said:
    “2.     In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

    “3.     If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:
“x x x                                     x x x                             x x x

“c.     If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.”
The victim’s relationship with appellant, however, is not among the qualifying circumstances of relationships covered by the law.  Article 266-B requires that “the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.”  Conformably with the principle of exclusio unius est exclusio alterius, the relationship of the offender, as being just a step-grandfather of the victim, cannot be deemed embraced by the enumeration.[27] Furthermore, there is no evidence submitted that appellant is legally married to the victim’s grandmother.

Absent one of the twin qualifying circumstances heretofore discussed, the rape committed may only be subject to the single indivisible penalty of reclusion perpetua.  Article 63 of the Revised Penal Code provides that “[i]n all cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed.”  Accordingly, the attendance of the aggravating circumstance of dwelling may not raise the penalty to death but it may serve as a basis for the award of exemplary damages.[28]

The crime has been witnessed by the nine-year-old brother of the victim.  Under Article 266-B(3), the penalty of death may be imposed if the crime of rape is committed with the qualifying circumstance of the crime having been witnessed “in full view” by any of the victim’s relatives “within the third civil degree of consanguinity.”  While Gino is a full-blood brother of the victim, or a relative within the second degree, this qualifying circumstance, however, has not been alleged in the Information so as to warrant the imposition of the death penalty.  Sections 8 and 9, Rule 110 of the Revised Rules on Criminal Procedure requires the  recital in the charge or information of aggravating circumstances.  The commission of the crime prior to the effectivity of the Rules on 1 December 2000 does not deprive the appellant of its favorable consequence.[29]

The trial court imposed the civil indemnity of P75,000.00 for each crime apparently because of its imposition of the death penalty.[30] The amount is reduced to P50,000.00 under the prevailing jurisprudence when reclusion perpetua is instead decreed.  The award of P50,000.00 moral damages accords with the current rule.  In addition, the attendance of the  aggravating circumstance of dwelling warrant the imposition of exemplary damages for each count of rape.

WHEREFORE, the decision of the Regional Trial Court of Calamba, Misamis Occidental, Branch 36, is AFFIRMED subject to the MODIFICATIONS that (a) appellant Pedro Intong y Agapay is found guilty beyond reasonable doubt, on two counts, of the crime of simple rape; and (b) for each crime of rape, he shall suffer the penalty of reclusion perpetua, and indemnify, in each case, the victim Genalyn Camporedondo and her parents P50,000.00 civil indemnity, P50,000.00 moral damages, and P25,000.00 exemplary damages.  Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ., concur.

Azcuna, J., on official leave.



[1] Penned by Judge Paulino L. Conol, Jr.

[2] Rollo, p. 11.

[3] Rollo, p. 12.

[4] Exh. C.

[5] Rollo, p. 58.

[6] Rollo, p. 77.

[7] People v. Bontuan, G.R. Nos. 142993-94, 5 September 2002, 388 SCRA 436, 442.

[8] People v. Lovedorial, G.R. No. 139340, 17 January 2001, 349 SCRA 402.

[9] People v. Pedroso, G.R. No. 125128, 19 July 2000, 336 SCRA 163, 173.

[10] People v. Avillano, 336 Phil. 534, 542.

[11] People v. Galo, G.R. No. 132025, 16 January 2001, 349 SCRA 161, 173.

[12] G.R. No. 92355, 24 January 1991, 193 SCRA 303, 313.

[13] People v. Inot, G.R. No. 36790, 29 May 1987, 150 SCRA 322, 326-327.

[14] TSN, 13 May 1999, pp. 23-26.

[15] TSN, 18 May 1999, p. 6.

[16] Id. pp. 23-24.

[17] TSN, 2 March 2000, p. 9.

[18] People v. Torres, 418 Phil. 694.

[19] People v. Bation, 419 Phil. 494.

[20] TSN, 14 May 1999, p. 12.

[21] 367 Phil. 726.

[22] TSN, 13 May 1999, p. 22.

[23] TSN, 15 April 1999, p. 6.

[24] Exh. A.

[25] Exh. B.

[26] G.R. No.138471, 10 October 2002, 390 SCRA 577, 604.

[27] People v. Deleverio, 352 Phil. 382, 404 citing People v. Atop, 349 Phil. 825.

[28] People v. Mangompit, Jr., G.R. Nos. 139962-66, 7 March 2001, 353 SCRA 833, 853.

[29] People v. Pagalasan, G.R. Nos. 131926 & 138991, 18 June 2003.

[30] People v. Victor, 354 Phil. 195, 209-210.

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