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439 Phil. 394


[ G.R. Nos. 136899-904, October 09, 2002 ]




Irene dela Cerna did not experience and enjoy the natural love and affection of a father. Instead, at fifteen, she went through an ordeal, characterized by suffering and torment perpetrated by the very person who was supposed to protect and shield her from harm — her own father.

Six separate complaints were filed on May 16, 1997 against accused-appellant charging him with rape committed on January 15, 1989, December 26, 1993, March 3, 1996, August 25, 1996, February 10, 1997 and March 5, 1997. The first complaint alleged: 

That on or about the 5th day of March, 1997, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, who is her father, by means of force and intimidation upon undersigned complainant, then only fifteen (15) years old to wit: by carrying her to a room and forcibly lie down on bed and removed her panty and short, placed himself on top of her, did then and there have carnal knowledge with the undersigned against her will. 


The five other complaints were identically worded except for the dates of the commission of the crime and the age of private complainant.

Upon arraignment, accused-appellant pleaded not guilty. Thereafter, the cases were jointly tried.

As principal witness for the prosecution, Irene recounted her harrowing experience at the hands of her father, which began when she was only seven years old. Her testimony was faithfully summarized by the Solicitor General as follows: 

Irene dela Cerna was born on August 26, 1982 at Negros Occidental, San Carlos City (p. 2, TSN, March 25, 1998). She recalled that one afternoon when she was only seven (7) years old, her father, appellant herein, beckoned her to come inside the room. At the time, her mother was not at home. When she went inside the room, appellant undressed her and made her lie down. Appellant then played with her private parts and touched her vagina with his penis which lasted for about fourteen (14) minutes (p. 4, TSN, ibid.). Thereafter, appellant instructed her to put on her clothes as her mother was due to arrive any time. Appellant did the same act to Irene many times (p. 5, id.

On January 15, 1989 at about 5:00 o’clock in the afternoon, appellant called Irene from inside the room. Once Irene was inside the room, appellant undressed her and made her lie down. Appellant played with her vagina for about ten (10) minutes (p. 5, id.) and ”pushed” his penis into the lips of her vagina (p. 16, id.). 

On December 26, 1993 at about 5:00 o’clock in the afternoon while her mother was out taking up dressmaking, appellant forced Irene to enter the room. Appellant stripped her naked, forced his penis into her vagina (pp. 14-15, id.) and performed the push and pull movement for about ten (10) minutes. Irene did not shout for help because of fear. In one occasion, Irene saw appellant with a gun. After the rape, appellant cautioned Irene not to report to anybody what happened (p. 16, id.). 

On March 3, 1996, at about 5:00 o’clock in the afternoon while her mother was out, appellant called Irene in the room and stripped her naked. Appellant ordered Irene to lie down and mounted on top of her. Appellant inserted his penis into her vagina and performed the push and pull movement. Irene tried to shake appellant off but he was too heavy for her. Irene did not shout for help because of fear that appellant might harm her and her siblings. Irene had witnessed appellant punched her mother on the stomach during a quarrel (pp. 12-13, id.). After the rape, appellant warned her not to tell anybody of what transpired between them (p. 13, id.). 

On August 25, 1996, when Irene was fourteen (14) years old, appellant called her from the room. Irene was already reluctant to go alone near appellant as she knew what appellant would do to her. Irene was constrained to go to appellant when her other sister told her to go to him as beckoned. Inside the room, appellant undressed her (p. 7, id.). Irene did not utter a word while she was being undressed because she was afraid that appellant might get angry and she and her siblings will again be subjected to physical abuse as they used to be (p. 8, id.). Irene tried to resist appellant but he was too strong for her (p. 7, id.). Appellant mounted on top of Irene, inserted his penis into her vagina, and performed the sexual act of push and pull. After the sexual act, Irene was ordered to leave the room. On the same day, her mother delivered the dresses she had sewn to her customers. Irene did not report the sexual abuse to the police authorities because she was afraid of appellant and she pitied her mother who was suffering from tension (p.9, id.). 

On February 10, 1997 while her mother was out, appellant dragged Irene up the stairs of their new house towards the room. Appellant pushed her on the bed, inserted his penis into her vagina and performed the push and pull movement. The sexual act lasted for just a short time as her mother was expected to arrive any time. Irene hated appellant for raping her. After the rape, appellant warned her not to tell anybody what happened (pp. 18-19, id.). 

On March 5, 1997, appellant forced Irene inside the room and stripped her naked. Appellant made her lie down on the bed, inserted his penis into her vagina and performed the push and pull movement for about ten (10) minutes. Irene initially resisted appellant but she was no match for him. After the rape, appellant warned her not to tell anybody what happened. Irene cried thereafter (pp. 20-22, id.). 

Irene described appellant as a mean person. She was afraid to tell anyone about the rape as she believed appellant is capable of killing her and her siblings (p. 24, id.). 

Irene eventually revealed the rapes to her two (2) best friends in school, namely, Cheryl Quano and Bernadette Comita. Bernadette, in turn, told her own mother what Irene divulged (p. 27, id.). Bernadette’s mother talked with Irene regarding the rape incidents after which the former brought her to the office of the Department of Social Welfare and Development (DSWD) at the City Hall where she was interviewed by a social worker (pp. 28-28, id.).[2]

Emma Patalinghug, a social worker at the Department of Social Welfare and Development (DSWD) Center for Women and Children, declared that private complainant, accompanied by her mother, was referred to her office on March 21, 1997. She testified that the victim told her that she had been sexually abused by her father since she was seven years old.[3]

Dra. Aster Khusravibabadi of the Cebu City Medical Center examined the victim on March 21, 1997 and found “old healed hymenal lacerations at 5:00 and 6:00 o’clock positions, and the introitus admits two fingers with ease.”[4]

Accused-appellant opted not to testify invoking his constitutional right to remain silent.

On September 15, 1998, the defense presented private complainant to prove that she voluntarily executed an affidavit of desistance. Private complainant explained that she decided to forgive her father for the sake of her mother and her younger siblings who experienced pain and difficulty in sustaining their daily needs as their whole family was dependent upon their father for support.[5]

The affidavit of desistance, dated July 3, 1998, was made in the vernacular and was offered in evidence for the defense. Pertinent portions thereof stated that “complainant was no longer interested in pursuing the cases against her father; the complaints filed with the Prosecutor’s Office and in Court were not her voluntary acts as she was only influenced and forced by the people who came to support and intercede in her action; the testimony she made in court on March 25, 1998 was not of her own free will as she was only forced to do so; there were false statements she made during the hearing of the case; she had truly forgiven her father; she wanted harmony and happiness; nobody influenced her to execute the said affidavit of desistance to end the cases she filed against her father x x x.“[6]

On November 29, 1998, the trial court rendered judgment finding accused-appellant Ernesto dela Cerna guilty of six counts of rape, as follows: 

WHEREFORE, premises all considered, judgment is hereby rendered finding the accused, ERNESTO DELA CERNA, GUILTY beyond reasonable doubt of the crime of RAPE committed against complainant, IRENE DELA CERNA, his minor daughter, in the aforequoted six (6) charges and consequently, he is hereby imposed the penalty of reclusion perpetua in the aforesaid Third and Sixth Complaints in accordance with the Revised Penal Code and the supreme penalty of DEATH in the First, Second, Fourth, and Fifth Complaints, conformably with the provisions of the Death Penalty Law (R.A. No. 7659) and ordered to pay the complainant Irene dela Cerna, the sums of FIFTY THOUSAND (P50,000.00) PESOS in each of the six (6) cases as damages, with all the accessory penalties provided for by law and to pay the costs. 

The entire records of these cases must be forwarded to the Honorable Supreme Court for automatic review. 


Accused-appellant assails said decision and contends that the trial court erred in convicting him despite the insufficiency of evidence to prove his guilt beyond reasonable doubt.

Accused-appellant mainly relies on the affidavit of desistance executed by private complainant, claiming that said affidavit created a reasonable doubt as to his guilt.

An affidavit of desistance is a sworn statement, executed by a complainant in a criminal or administrative case, that he or she is discontinuing or disavowing the action filed upon his or her complaint for whatever reason he or she may cite. A survey of our jurisprudence reveals that the court attaches no persuasive value to a desistance, especially when executed as an afterthought. The unreliable character of this document is shown by the fact that it is quite incredible that a victim, after going through the trouble of having the accused-appellant arrested by the police, positively identifying him as the person who raped her, enduring the humiliation of a physical examination of her private parts, repeating her accusations in open court and recounting her anguish in detail, will suddenly turn around and declare that she is no longer interested in pursuing the case.[8]

A careful scrutiny of the affidavit of desistance in this case reveals that private complainant never retracted her allegation that she was raped by her father. Neither did she give any exculpatory fact that would raise doubts about her rape. Plainly, all the affidavit really stated was that she had decided to withdraw the complaints as she had already forgiven her father and she wanted peace and happiness for her family. Rather than contradict, this affidavit reinforces complainant’s testimony that accused-appellant raped her on several occasions.

Likewise, when asked on the witness stand what prompted her to sign the affidavit, Irene answered:

What prompted you to write that letter?
I was already staying with the DSWD and my condition there was all right but the problem was my mother, whenever she visited me, she told me that they were really hard in their daily existence. They were just staying in the house of a friend and they have no means to support themselves. My brothers and sister at times cannot even go to school because of lack of money and they cannot eat properly.[9]

But, in her earlier testimony for the prosecution, Irene demonstrated a firm resolve to have accused-appellant punished for his crime, as can be gleaned from the following:

Prosecutor Solima
Are you aware that your father would be penalized the moment he would be convicted for the crime of rape?
Yes, sir.
And you would want him to die?
Although I have forgiven him for what he did to me considering that he is my father, but I will not also agree that he will not be penalized of imprisonment for what he did to me.[10]

Also, during cross-examination, Irene testified:          

Atty. Porio
And you earlier testified that you pity your mother and that you have forgiven your father for what he had done to you, do you know that if it is proven that your father is guilty he would be sentenced to a death penalty?
Yes, sir.
Are you not bothered by your conscience if your father would be sentenced to death?
Yes I would surely be bothered but that is his fault.[11]

A comparison of Irene’s previous and subsequent testimonies leads to the inference that the affidavit of desistance was executed merely as an afterthought. As such, it has no persuasive effect. 

Accused-appellant cannot capitalize on Irene’s affidavit of desistance. Such an affidavit, by and of itself, does not mean that what she previously said was false or the recitals of the affidavit itself are true. On the contrary, the Court has invariably regarded such affidavits as exceedingly unreliable. The reason is because affidavits of retraction can all too easily be secured from poor and ignorant witnesses, usually through intimidation or monetary consideration. Thus, there is always the probability that they will later be repudiated and there will never be an end to criminal litigation.[12] It is also a dangerous rule for courts to reject testimony solemnly taken before courts of justice simply because the witness who gave it later changed his or her mind for one reason or another. This will make a mockery of solemn trials and put the investigation of crimes at the mercy of unscrupulous witnesses.[13]

It is worthy to note that the rape incidents in this case occurred prior to the effectivity of RA 8353, “The Anti-Rape Law of 1997” which took effect on October 22, 1997 and classified the crime of rape as a crime against persons. Such being the case, we shall apply the old law and treat the acts of rape herein committed as private crimes. Thus, their institution, prosecution and extinction should still be governed by Article 344 of the Revised Penal Code (RPC): 

“Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness.- The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. 

The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor in any case, if he shall have consented or pardoned the offenders. 

The offenses of seduction, abduction, rape, or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor in any case, the offender has been expressly pardoned by the above-named persons, as the case may be. 

In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes.”

The aforequoted article provides for the extinction of criminal liability in private crimes. For the crimes of adultery and concubinage, the pardon extended by the offended spouse results in the extinction of the liability of the offender. On the other hand, in seduction, abduction, rape and acts of lasciviousness, two modes are recognized for extinguishing criminal liability - pardon and marriage. In all cases, however, the pardon must come prior to the institution of the criminal action. After the case has been filed in court, any pardon made by the private complainant, whether by sworn statement or on the witness stand, cannot extinguish criminal liability.[14] 

It must be stressed that private complainant in this case filed her complaint on May 16, 1997 and even testified against accused-appellant on March 25, 1998. On the other hand, she executed her affidavit of desistance only on July 3, 1998. Clearly, the pardon extended by the victim to her father was made after the institution of the criminal action. Consequently, it cannot be a ground to dismiss the action in these cases. The reason for this rule is that the true aggrieved party in a criminal prosecution is the People of the Philippines whose collective sense of morality, decency and justice has been outraged. In such a case, the offended party becomes merely a complaining witness. The complaint required by Article 344 of the Revised Penal Code is but a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties in the name of the People of the Philippines. Such condition is imposed out of consideration for the offended woman and her family who might prefer to suffer the outrage in silence rather than go through with the scandal of a public trial. Hence, once filed, control of the prosecution is removed from the offended party’s hands[15] and any change of heart by the victim will not affect the state’s right to vindicate the atrocity committed against itself.

At any rate, there is hardly any doubt about the truthfulness and reliability of Irene’s initial testimony in the trial court which we find to be positive, credible and convincing. To be sure, she would not have accused her own father of a serious offense like rape had she really not been aggrieved.[16]  Likewise, a rape victim’s testimony against her father is entitled to much credibility since respect for elders is deeply ingrained in Filipino children and is even recognized by law.[17]

Considering all these premises, we are impelled to affirm the trial court’s conviction of accused-appellant for the six counts of rape committed upon Irene dela Cerna.

Certain facets of this case, however, need to be carefully threshed out in order to fully administer justice to all parties concerned. Conformably, it is a well-established procedure that an appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the appellate court to correct an error in the appealed judgment, whether this is assigned as an error or not.[18] In the case at bar, two of the six instances of rape — on January 15, 1989 and December 26, 1993 — occurred before the effectivity of RA 7659 (Death Penalty Law) which took effect only on December 31, 1993. As correctly held by the trial court, the imposable penalty is reclusion perpetua for each of these two crimes of rape.

However, with respect to the four other incidents of rape which were committed after the effectivity of RA 7659 and in each of which the trial court imposed the extreme penalty of death, an exhaustive discussion is called for.

Article 335 of the Revised Penal Code, as amended by Section 11 of RA 7659, was already the pertinent statutory provision prevailing at the time of the latter four rape incidents. It categorized as a “heinous” offense punishable by death the rape of a minor by her own father. Said provision reads: 

“Art. 335. When and how rape is committed.-

xxx xxx 

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant 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. 

xxx xxx

In a number of cases, this Court ruled that both the age  of the offended party and her relationship with the accused  must be alleged in the information as part of the constitutional right of the accused to be informed of the nature and cause of the accusation against him. Failure to specifically state these attendant circumstances of minority and relationship in the information will bar the imposition of the death penalty.[19] 

In the instant case, the trial court, pursuant to Section 11 of RA 7659, imposed the penalty of death on accused-appellant Ernesto dela Cerna after taking into account the minority of Irene as well as the relationship of father and daughter between them. Both circumstances of minority and relationship were alleged in the informations. However, jurisprudence requires that the victim’s minority must not only be specifically alleged in the information but must likewise be established beyond reasonable doubt during trial. The leading case on this point is People vs. Javier,[20]  where this Court unanimously held: 

However, it is significant to note that the prosecution failed to present the birth certificate of the complainant. Although the victim’s age was not contested by the defense, proof of age of the victim is particularly necessary in this case considering that the victim’s age which was then 16 years old is just two years less than the majority age of 18. x x x. In a criminal prosecution especially of cases involving the extreme penalty of death, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which an accused is charged must be established by the prosecution in order for said penalty to be upheld x x x. Verily, the minority of the victim must be proved with equal certainty and clearness as the crime itself. Otherwise, failure to sufficiently establish the victim’s age is fatal and consequently bars conviction for rape in its qualified form.

This doctrine has since been reiterated in a plethora of cases with the Court consistently holding that proof of the victim’s age must be indubitable in order to justify the imposition of the death penalty.

In People vs. Cula,[21]  this Court lowered the penalty from death to reclusion perpetua  in a case of rape committed on a 16-year-old victim by her father on the ground that the prosecution did not present any independent proof of age, such as a birth certificate, and the trial court failed to render a categorical finding on the matter.

In People vs. Liban,[22] we held that the birth certificate of the victim, or in lieu thereof, any other documentary evidence, like a baptismal certificate or school record, that can help establish the age of the victim beyond reasonable doubt should be presented. While the declaration o4f a victim as to her age, being an exception to the hearsay proscription, would be admissible under the rule on pedigree, the question of the relative weight that may be accorded to it is an entirely different matter. Corroborative evidence would be most desirable or even essential when circumstances call for it.

The case of People vs. Pecayo, Sr.,[23] reiterated the pronouncement in Liban that a duly certified certificate of live birth accurately showing the complainant’s age, or some other authentic document such as a baptismal certificate or school record, is competent evidence. Even the lack of objection on the part of appellant does not excuse the prosecution from proving such fact beyond reasonable doubt. 

In this case, the prosecution utterly failed to discharge its burden of proving the minority of the victim beyond reasonable doubt. No single independent proof was offered in court to establish the fact that complainant was below 18 years old at the time of the incidents. Irene merely stated during her direct examination that she was born on August 26, 1982. We find Irene’s casual testimony as to her age insufficient.

Once again, we need to emphasize that the penalty of death is an extreme sanction as it carries with it the forfeiture of life. Which makes it imperative for this Court to carefully weigh every piece of evidence presented by all parties. We cannot presume that the victim is a minor simply because she claims to be one.

In sum, the Court upholds the decision of the trial court convicting accused-appellant of the crime of rape in the latter four instances but must reduce the penalty of death to reclusion perpetua on account of the prosecution’s failure to satisfactorily prove the qualifying circumstance of minority of the victim.

Finally, the award of damages made by the trial court should likewise be modified. In accordance with current case law, accused-appellant should be ordered to pay complainant the amount of P50,000 as civil indemnity for each of the six counts of rape.[24] In addition, the victim should be awarded moral damages in the amount of P50,000 for each of the six counts of rape without need of pleading or proof. This Court has held many times that a rape victim’s injury is inherently concomitant to and results from the odiousness of the crime.[25] Lastly, accused-appellant is also liable to pay the sum of P25,000 as exemplary damages to deter other fathers with perverse tendencies or aberrant sexual behavior from sexually abusing their own daughters.[26]

WHEREFORE, the judgment appealed is hereby AFFIRMED with the MODIFICATION that accused-appellant Ernesto dela Cerna is found guilty beyond reasonable doubt of six counts of simple rape and is sentenced in each count to suffer the penalty of reclusion perpetua and to indemnify the victim Irene dela Cerna the following: (1) P50,000 as civil indemnity; (2) P50,000 as moral damages and (3) P25,000 as exemplary damages.

Costs de oficio.


Davide, Jr., C.J., Puno, Vitug, Panganiban, Sandoval-Gutierrez, Morales, and Callejo, Sr., JJ., concur.
Bellosillo, Mendoza, Quisumbing, Ynares-Santiago, Carpio, and Austria-Martinez, JJ., on leave.

[1] Rollo, p. 26.

[2] Appellee’s Brief, pp. 3-7. 

[3] TSN, January 21, 1998, pp. 3-4. 

[4] TSN, January 16, 1998, p. 3. 

[5] TSN, September 15, 1998, pp. 4-7. 

[6] Decision, p. 5. 

[7] Rollo, p. 33. 

[8] People vs. Junio, 237 SCRA 826 (1994). 

[9] TSN, September 15, 1998, p. 11. 

[10] TSN, March 25, 1998, p. 20. 

[11] Ibid., pp. 30-31. 

[12] Lopez vs. Court of Appeals, 239 SCRA 562 (1994). 

[13] Alonte vs. Savellano, Jr., 287 SCRA 245 (1998). 

[14] Alonte vs. Savellano, Jr.., supra. 

[15] People vs. Yparraguire, 335 SCRA 69 (2000); People vs. Manhuyod, Jr., 290 SCRA 257 (1998). 

[16] People vs. Bernaldez, 322 SCRA 462 (2000). 

[17] People vs. Docena, 322 SCRA 820 (2000). 

[18] People vs. Calayca, 301 SCRA 192 (1999). 

[19]  People vs. Gianan, 340 SCRA 477 (2000); People vs. Teves, 310 SCRA 788 (1999); People vs. Perez, 296 SCRA 17 (1998). 

[20] 311 SCRA 122 (1999). 

[21] 329 SCRA 101 (1999). 

[22] 345 SCRA 453 (2000). 

[23] 348 SCRA 95 (2000). 

[24] People vs. Santos, 334 SCRA 655 (2000). 

[25] People vs. Prades, 293 SCRA 411 (1998). 

[26] People vs. Javier, supra.

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