328 Phil. 412
PUNO, J.:
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]
CONTRARY TO LAW.
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 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]
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.
SO ORDERED.[12]
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]x x x
PROS. JURADO:
Q: Miss Witness, do you remember where you were on April 25,
1991 at around three o'clock in the afternoon?
WITNESS:
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
"dadaliriin"?
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:xxx
Q: How did you(r) brother able to know (sic) about the
incident?
A: Because my brother saw what Rodelio Cruz did to me.
Q. Why do you say that your brother witnessed the said
incident?
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.
COURT:
This brother of yours is he older or younger than you?
WITNESS:
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
bathroom?
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?
COURT:
Fiscal did you read the affidavit of the witness?
PROS. JURADO:
Yes, your honor.
COURT:
And in that affidavit it is mentioned that there are several incidents?
PROS. JURADO:
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
Court:
What happened after the accused called you?
A: He immediately closed the door and tried to undress me.
Court:
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
consummated.
Court:
Can you please try to recall if you were investigated by the police officer on your complaint?
A: Yes, your honor.
Court:
And the result of that investigation was your statement now marked as Exhibit A, is it not?
A: Yes, your honor.
Court:
Did you read your statement before you affixed your signature?
A: Yes, your honor.
Court:
Did you understand the contents of this statement before you affix (sic) your signature?
A: Yes, your honor.
Court:
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.
Court:
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]
1. By using force or intimidation;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.
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]