359 Phil. 870
PANGANIBAN, J.:
"The undersigned 1st Asst. City Prosecutor hereby accuses RODELIO BUGAYONG a.k.a. "BOY" of the crime of RAPE, at the instance, relation and written complaint of ARLENE CAUAN, a minor, 11 years of age. Copies of her statement are hereto attached and made an integral part of this INFORMATION, committed as follows:When arraigned on July 10, 1995,[3] appellant, with the assistance of counsel, entered a plea of not guilty. After trial in due course, the court a quo rendered the assailed Decision, the dispositive portion of which we quote below:
"That sometime before and until October 15, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously, and by means of force or intimidation, have carnal knowledge of the said complainant, several times, against her will and consent."
"WHEREFORE, premises considered, the accused RODELIO BUGAYONG is hereby found GUILTY of the crime of Acts of Lasciviousness committed on October 15, 1994 and he is hereby sentenced to suffer an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two (2) months of prision correccional as maximum, and of the crime of Rape he committed in 1993 for which he is sentenced to suffer the penalty of reclusion perpetua."[4]Hence, this appeal filed directly before this Court.[5]
"Alberto Cauan and Leticia Yu Cauan got married on May 14, 1978. Out of this marital union they begot three (3) children, namely: ALBERT, HONEYLET and ARLENE[,] the private complainant herein. The spouses Alberto and Leticia Cauan separated way back in 1983. Albert and Arlene stayed with their mother Leticia while Honeylet stayed with her grandmother Anita Yu at Slaughter Comp[o]und, Baguio City. Later, Alberto and Leticia started living together with another woman and another man respectively, [with whom each of them] raised another family xxx. Leticia cohabited with the accused RODELIO BUGAYONG and had one (1) child, a minor by the name of CATHERINE BUGAYONG. For his part, ALBERTO CAUAN lived in with another woman with whom he has six (6) children.
"In October 1994, Leticia, the accused RODELIO BUGAYONG, ALBERT and the then 11-year-old ARLENE (who was born on November 19, 1982) were residing at No. 13 MRR Queen of Peace, Baguio City. On October 15, 1994 accused RODELIO BUGAYONG had ARLENE hold his penis inside the room he share[d] with Leticia. At that time CATHERINE BUGAYONG who was six (6) years old was also inside the same room and her father, the accused was letting her sleep. Bugayong threatened to maim Arlene if she [did] not hold his penis. When the penis was already hard and stiff, he placed it inside the mouth of Arlene and a white substance came out from the penis. The young girl CATHERINE BUGAYONG saw this incident. Arlene testified that her stepfather had been doing the same act when she was still in Grade 3 and was nine years old. She also said that there were occasions when BUGAYONG played first with his penis then touched her vagina with his penis until a white substance [came] out [of] it and that was the time BUGAYONG would pull back his penis, or in the words of Arlene "idinidikit at pag may lumabas saka inilalayo." When asked to explain what she meant by "idinidikit", Arlene said that the penis of BUGAYONG partly entered [her] vagina and she got hurt.
"In any event, when LETICIA arrived home that day, CATHERINE reported to her that her father, RODELIO BUGAYONG, had Arlene hold his penis and put it inside the mouth of the former. Leticia called for RODELIO BUGAYONG and they talked. While the two (2) were talking, Alberto, the elder brother of Arlene, called for the latter and they went to the house of their grandmother ANITA YU at Slaughter Compound for fear that something [would] happen. Arlene reported the incident to her grandmother. Anita Yu told Arlene that she [would] not allow her to go to her mother and that she (YU) [would] file a case against Bugayong.
"In the morning of October 27, 1994, Arlene Cauan accompanied by her father Alberto Cauan and her aunt Marilyn Yu, Carmelita Yu and Rosie Yu went to the National Bureau of Investigation to file a complaint. They were advised by an NBI agent to go to the hospital to have Arlene examined by a Medico-legal Officer. Dr. HUMBELINA HARRIET M. LAZO examined Arlene and issued a certification stating therein her findings. The medical findings (EXH. "A") are hereunder quoted:CERTIFICATION
TO WHOM THIS MAY CONCERN:
This is to certify that I have personally seen and examined ARLENE CAUAN, 11 years old, female, child, a Grade V pupil from Slaughter Compound, who was allegedly sexually assaulted, xxx by father Alberto Cauan.
NOI: Alleged Sexual Assault
POI: #13 Queen of Peace Road, Baguio City
TOI: 3:15 P.M.
DOI: 15 October 1994
G/S: Conscious, coherent, ambulatory, afebrile.
Skin: No abrasion, no hematoma.
C/L: Clear breath sounds.
Extremities: No edema.
Perineal Inspection:
Posterior fourchette - not well coaptated.
Labia majora - with erythema.
Labia minora - with erythema.
Hymen: open with old healed laceration at 5 o’clock
and 8 o’clock position[s].
V[a]gina: Admit one finger with ease.
Laboratory Result:
Sperm Cell Identification: Negative for sperm cell.
Gram Stain: Smear shows moderate gram (+) cocci appearing singly and in pairs with rare (+) rods
Epithelial cells: few.
Pus cells: 5-8.
"The following day, October 28, 1994 they went back to the NBI office. Arlene gave her sworn statement (EXH. "C"). Alberto Cauan also gave his sworn statement (EXH "E").
"Pertinent portions of Arlene’s statement given to the NBI read -
‘4. Q. Of what nature [is the complaint you are] filing xxx against your stepfather?
A. The nature of my xxx complaint against my “TATAY” (RODELIO BUGAYONG) is [that] he raped me several times ever since I was nine years old and while I was in Grade 3.
7. Q. Were there other instances that your father sexually molested you?
A. I could no longer remember how many times and everytime he sexually molested me he would threaten to hurt me. There were even times that he would force me to put his penis into my mouth until something sticky would come out of his penis and inside my mouth. At times he would play with his penis and when that sticky liquid already c[a]me out [of] his penis, he would put his penis into my vagina and force it inside and he [would] put the sticky liquid inside my vagina. He did this when I was around 10 years old but lately he would only force me to lick and swallow his penis until the sticky liquid which comes out of his penis suddenly comes out.’"
In fine, he poses the question of whether he may be convicted of rape committed in 1993, under the present Information, which accused him of committing the said crime "before and until October 15, 1994 xxx several times." In other words, the issue is whether appellant’s conviction for the said act is warranted under the Information. In resolving this issue, the Court will determine whether the averment in the Information in respect to the time of the commission of the crime sufficiently apprised appellant of the "nature and cause of the accusation against him."[8]The Issues
In his Brief, appellant raises the following issues:"I
The lower court erred in convicting the accused-appellant [of] statutory rape that was proved to have been committed in 1993 under an information alleging that the offense was committed on or before October 15 of the year 1994."II
The lower court erred [i]n convicting the accused [of] statutory rape [on] an unspecified date in 1993."[7]
"Section 11. Time of the commission of the offense. - It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit."It bears emphasis that the date is not an essential element of rape, for the gravamen of the offense is carnal knowledge of a woman.[11] The time-tested rule is that "when the ‘time’ given in the complaint is not of the essence of the offense, it need not be proven as alleged and that the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action."[12]
"It is true that the complaint must allege a specific time and place when and where the offense was committed. The proof, however, need not correspond to this allegation, unless the time and place [are] material and of the essence of the offense as a necessary ingredient in its description. The evidence is admissible and sufficient if it shows that the crime was committed at any time within the period of the statute of limitations and before or after the time stated in the complaint or indictment and before the action is commenced."[13]In US v. Dichao,[14] the Court also ruled that "the question [of] whether the allegations of the information are sufficiently definite as to time and the question which arises [from] a variance between the allegations and the proof are different in nature and legal effect, and are decided on different principles."
In effect, the Sworn Statement substantiated the averments in the Information. Hence, appellant was sufficiently apprised that the "several" instances of rape committed "before and until October 15, 1994," which were asserted in the body of the Information, included the sexual assault on the victim in 1993 as alleged in the said Statement.
"04. Q Of what nature [is the complaint you are] filing xxx against your stepfather? A The nature of my filing a complaint against my “TATAY” is [that] he raped me several times ever since I was nine years old and while I was in Grade 3. 05. Q Could your please narrate to me how this happened? A Ever since I was [in] Grade 3, my stepfather always forced me to play with his penis and whenever I refused, he would threaten to hurt me by saying "KUNG HINDI KA PAPAYAG, LULUMPUHIN KITA", so I played with his penis until it was fully erect, then he [would] tell me to get out of their room. 06. Q Was your mother ever around, when he forced you to play with his penis? A No sir, he would always make it a point that my mother was out of the house when be molested me. 07. Q [Were] there other instances that your father sexually molested you? A I could no longer remember how many times sir, the only thing that I could remember is he did it to me many times and ever[y]time he sexually molested me he would threaten to hurt me. There were even times that he would force me to put his penis into my mouth until something sticky would come out of his penis and inside my mouth. At times he would play with his penis and when that sticky liquid [would] already come out [of] his penis, he would put his penis into my vagina, and force it inside and he [would] put the sticky liquid inside my vagina[;] he did this when I was around 10 years old but lately he would only force me to lick and swallow his penis until the sticky liquid which comes out of his penis suddenly comes out. 08. Q Did he ever repeat the forcing of his penis into your vagina? A Many times sir, he would always pin me down [o]n the bed and force his penis in[to] my vagina. 09. Q When was the last time he molested you? A The last time he sexually molested me was when my younger sister, CATHERINE BUGAYONG caught us. 10. Q When was this? A Last October 15, 1994 sir, my sister CATHERINE caught me while my stepfather was forcing me to swallow his penis and letting me play with it. My sister CATHERINE told my mother about the incident when she arrive[d], then my mother talked to me and asked me if it was true[;] at first I denied it because my "TATAY" might hurt me, but after a while I confessed to her so she talked to my stepfather and they had a fight. When my relatives learned of the incident, they fetched me at home and brought me to my grandmother‘s house at Slaughter House Compound." (Underscoring supplied.)
The foregoing shows that appellant sexually assaulted complainant in 1993 when she was 10 years old. Thus, the trial court correctly convicted him of statutory rape under Article 335 (3) of the Revised Penal Code. Moreover, appellant is also guilty of acts of lasciviousness committed on October 15, 1995.
"Q. Do you know Arlene, will you please tell the Court if in the month of October Rodelio Bugayong did something to you? A. Yes, sir. Q. What did he do to you? A. He had his penis held by me, sir. Q. Where did this happen? A. At Queen of Peace, sir. Q. In your house? A. Yes, sir. Q. Who were the persons there at the time when Bugayong told you to hold his penis, in your house at the time? A. I was with my younger stepsister. PROS. DIZON: Q. How old is this younger sister? A. Six (6) years old. Q. In 1994, how old was she? A. Five (5). Q. So you mean to say younger stepsister, this stepsister is the daughter of Bugayong? A. Yes, sir. Q. I see! Now, what did you do when Bugayong told you to hold his penis? A. I just held it. Q. Why did you hold it? A. Because I was afraid of him. Q. Why, what did he say, if any, to make you afraid of him? A. He told me that ‘lulumpuhin kita’ (I will maim you). Q. In what place of the house did this incident happen? A. In their room with my mother. Q. Who were in the room at the time aside from you and Rodelio? A. My stepsister. Q. Your stepsister [was] inside the room at the time or she was outside the room? A. She was inside the room but my stepfather was letting her sleep. Q. Was she asleep at that time? A. Yes, sir. Q. Now, so did you hold the penis of Bugayong the accused? A. Yes, sir. Q. What else did he tell you to do, if any? A. He placed his penis in my mouth, sir. Q. Was the penis hard at that time or stiff? A. Yes, sir. Q. And what did he do when his penis was already inside your mouth? A. Whenever his penis [was] xxx placed inside my mouth I [would] go out to drink water because I [would feel] like vomitting, sir. PROS. DIZON: Q. You say whenever[;] you mean to say that was not the only time he did that to you? A. No, sir. Q. How many times did he do that to you? A. When I was still in Grade 3. Q. And how young were you when you were in Grade 3? ATTY. ESTRADA: At this point in time, Your Honor, we now object to this line of questioning because this was never stated in the information. PROS. DIZON: This is preliminary, Your Honor. ATTY. ESTRADA: Because what is being elicited now is that incident when she was in Grade 3. PROS. DIZON: We have to consider the tender age of the accused. COURT: I will allow the prosecution to propound additional questions. ATTY. ESTRADA: We submit, Your Honor. PROS. DIZON: Q. How old were you when you were in Grade 3? A. Nine (9) years old. Q. Now, why did you feel like vomitting whenever he did that thing to you? A. Because whenever he [put] his penis inside my mouth it seem[ed] like pus [was] coming out [of] his penis. Q. What [was] the color, if you know? A. White. Q. Now, aside from all those things, do you remember if in the month of October, the same month, 1994, he did anything else to you aside from what you have relayed before this Court? A. Sometimes he [put] his penis in my vagina and when something sticky ... COURT: Agree on the translation. ATTY. ESTRADA: We object to that translation. INTERPRETER: Whenever the penis of Rodelio Bugayong touche[d] my vagina something ... ATTY. ESTRADA: May we just have the word ‘idinidikit’ ... COURT: All right! The word ‘dikit’ will remain and [the] translation - touch. INTERPRETER: Whenever the penis of Rodelio touche[d] my vagina something white [would come] out and he [would take] his penis farther from me. PROS. DIZON: Before [d]oing that he [would] first [play] with his penis and then the moment ... COURT: You agree first on the translation. PROS. DIZON: There were occasions when he brought out his penis and touch[ed] xxx my vagina [with it] but before doing so he played with his penis until the sticky white substance xxx c[a]me out and that [was] the time he touched my vagina, the penis touched my vagina. I think that is the answer. I do not know if counsel is agreeable. COURT: Will you please read back the translation? Stenographer reading back the answer, as follows:There were occasions when he brought out his penis and touch[ed] xxx my vagina [with it] but before doing so he playe[d] with his penis first until the sticky white substance xxx c[a]me out and that [was] the time the penis touched my vagina.
COURT; If I remember correctly the testimony of the victim in Tagalog was that ‘idinidikit at pag may lumabas saka inilalayo’. PROS. DIZON: Okay, we submit. INTERPRETER: Rodelio Bugayong touche[d] my vagina with his penis until such time that a sticky substance [came] out and that [was] the time that he pull[ed] back. COURT: Official translation, Mrs. Lockey? Stenographer reading back the translation, as follows:Rodelio Bugayong touche[d] my vagina with his penis until such time that a sticky substance [came] out and that [was] the time that he pull[ed] back.
ATTY. ESTRADA; I think the interpretation is not accurate. PROS. DIZON: May we just be allowed to ask the witness? Q. Aside from putting his penis in[to] your mouth, what other things did he do to you in the month of October and previous to that, if any? COURT: Defense counsel please assist the interpreter. INTERPRETER: The penis of Rodelio touche[d] my vagina and sometimes he ... PROS. DIZON: We really have to ask the assistance of ... COURT: Again! INTERPRETER: A. Sometimes his penis touche[d] my vagina but before doing that he played first with his penis until a white substance [came] out of his penis and after that his penis touche[d] my vagina. PROS. DIZON: Q. I see! How may times did he do that to you? A. Maybe five (5) times or ten (10) times, sir. Q. During th[o]se times he did that to you[,] were there people in the house? A. None, sir. PROS. DIZON: Q. And in those five (5) or ten (10) times, where did this happen, where did he do that to you, in what place in the house? A. In our house, sir. Q. In what particular place in the house? A. In their room, sir. Q. The room of Bugayong and your mother? A. Yes, sir. Q. Why did you not object? A. Because I was afraid of what he told me that xxx ‘lulumpuhin niya ako’. Q. Now, every time he did that thing to you, that is the touching of xxx your vagina [with his penis], what did you feel, if any? Do you not feel any pain? A. I got hurt, sir. Q. Now, you remember the last time he had his penis touch your vagina? A. I could not remember, sir. Q. Now, you said that his penis touched your vagina. You mean to say the penis [--] we will withdraw that in the meantime. We will rephrase it rather. Q. You said that his penis touched your vagina. You said ‘idinikit’. Will you please tell the Court what do you mean by ‘idinikit’ or touched your vagina? A. He had his penis partly enter my vagina that is why I got hurt, sir."[21]