401 Phil. 676
YNARES-SANTIAGO, J.:
In Criminal Case No. 97-01815-DAccused-appellant was arraigned on July 23, 1997 for the first five (5) counts of rape, wherein he pleaded NOT GUILTY. The following day, the Public Prosecutor filed a Motion for Leave to Amend the five (5) criminal complaints to allege the relationship of the victim and the accused. On July 31, 1997, accused-appellant was scheduled to be arraigned for the other two (2) counts of rape but he failed to appear because of lack of notice on the Provincial Warden. At this point, the Public Prosecutor called the attention of the Court to the Amended Informations he filed in the first five (5) cases, to which accused-appellant has already been arraigned and has pleaded not guilty on July 23, 1997. Counsel for the defense objected on the ground that the amendment would prejudice the right of accused-appellant.
That on or about May 5, 1995 at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant TERESA MICU y FERNANDEZ, against her will and consent, to the damage and prejudice of the latter.
CONTRARY TO LAW.
In Criminal Case No. 97-01816-D
That on or about May 9, 1995 at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant TERESA MICU y FERNANDEZ, against her will and consent to the damage and prejudice of the latter.
CONTRARY TO LAW.
In Criminal Case No. 97-01817-D
That on or about April 24, 1995 at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant TERESA MICU y FERNANDEZ, against her will and consent, to the damage and prejudice of the latter.
CONTRARY TO LAW.
In Criminal Case No. 97-01818-D
That on or about April 18, 1995 at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant TERESA MICU y FERNANDEZ, against her will and consent to the damage and prejudice of the latter.
CONTRARY TO LAW.
In Criminal Case No. 97-01819-D
That on or about May 5, 1995 at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, threat and intimidation, did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned complainant TERESA MICU y FERNANDEZ, against her will and consent to the damage and prejudice of the latter.
CONTRARY TO LAW.
In Criminal Case No. 97-01820-D
That sometime in April 2, 1997 in the evening thereof, at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the stepfather, by means of force, threat and intimidation, did, then and there, wilfully, unlawfully and feloniously have sexual intercourse in their conjugal house with VICTORIA "RHEA" F. MICU, who is under twelve (12) years old, against her will and consent, to her damage and prejudice.
CONTRARY to Art. 335, par. 3 of the Revised Penal Code, in relation to R.A. 7659.
In Criminal Case No. 97-01821-D
That sometime in April 5, 1997 in the evening thereof, at barangay Casibong, municipality of San Jacinto, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then the stepfather, by means of force, threat and intimidation, did, then and there, wilfully, unlawfully and feloniously have sexual intercourse in their conjugal house with VICTORIA "RHEA" F. MICU, who is under twelve (12) years old, against her will and consent, to her damage and prejudice.
CONTRARY to Art. 335, par. 3 of the Revised Penal Code, in relation to R.A. 7659.
WHEREFORE, premises considered, the accused NOEL SANDOVAL is found guilty beyond reasonable doubt of six (6) counts of the crime of rape in Criminal Cases Nos. 97-01815-D, 97-01816-D, 97-01817-D, 97-01819-D, 97-01820-D and 97-01821-D and is hereby sentenced to suffer the mandatory penalty of DEATH for each act of rape. In addition, he is ordered to pay P50,000.00 as moral damages for each case or a total of P300,000.00. Also for each count of rape, he is further ordered to pay P5,000.00 as exemplary damages as example for the public good or a total of P30,000.00. He is however acquitted in Criminal Case No. 97-01818-D for insufficiency of evidence.In view of the penalty imposed, the records were elevated to this Court for automatic review pursuant to Article 47 of the Revised Penal Code and Rule 122, Section 10 of the Rules of Court.
SO ORDERED.
The court a quo erred in convicting the accused-appellant of the crime of Rape on the person of Teresa Micu and imposing the death penalty upon him notwithstanding the fact that, at the time of the alleged commission, he was not yet married to the victims' mother.After a thorough scrutiny of the records of the case at bar, this Court finds that the trial court did not err in convicting accused-appellant of the crime of rape on the person of Teresa Micu. During her testimony, she clearly and convincingly established before the court a quo the facts and circumstances that transpired during the several occasions when accused-appellant raped her.[3]II
The court a quo erred in convicting the accused-appellant of the crime of Rape over Rhea Micu, considering her lack of credibility which finds support in the medical findings of the physician who examined her.III
The court a quo erred in awarding damages to the complainants notwithstanding that the latter never testified to establish the same and the only basis of such on record is the testimony of their aunt, Perlita Fernandez, who is not their legal guardian.
ART. 335. When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any of the following circumstances:The above-quoted provision states, inter alia, that where the victim of the crime of rape is under eighteen (18) years of age and the offender is a common-law spouse of the parent of the victim, the death penalty shall be imposed. This is one of the seven (7) modes enumerated in Section 11 of R.A. No. 7659 which are considered special circumstances specifically applicable to the crime of rape. In the subsequent cases of People v. Ilao[6] and People v. Medina,[7] it was ruled that the seven new attendant circumstances in Section 11 of R.A. No. 7659 "partake of the nature of qualifying circumstances and not merely aggravating circumstances," since said qualifying circumstances are punishable by the single indivisible penalty of death and not by reclusion perpetua to death. A qualifying circumstance increases it to a higher penalty while an aggravating circumstance affects only the period of the penalty but does not increase it to a higher degree. Unlike a generic aggravating circumstance which may be proved even if not alleged, a qualifying aggravating circumstance cannot be proved as such unless alleged in the information.
1. By using force or intimidation;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 attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a 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. (Underscoring ours)
The information or complaint may be amended, in substance or form, without leave of court, at anytime before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done, without prejudice to the rights of the accused. x x x.In sum, the failure of the prosecution to allege the relationship of the accused to the victim has effectively removed the crime from the ambit of Section 11 of Republic Act No. 7659, which prescribes the death penalty 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.[11] In the recent cases of People v. Calayca,[12] People v. Tabion[13] and People v. Acala,[14] where the prosecution failed to allege the fact of minority of the victim in the Informations, we reduced the penalty imposed from death to reclusion perpetua.
In the crime of rape, complete or full penetration of the complainant's private part is not necessary. Neither is the rupture of the hymen essential. What is fundamental is that the entrance or at least the introduction of the male organ into the labia of the pudendum is proved. The mere introduction of the male organ into the labia majora of the victim's genitalia and not the full penetration of the complainant's private part consummates the crime.[17] More importantly, it has been ruled in People v. San Juan[18] that in crimes against chastity, the medical examination of the victim is not an indispensable element for the successful prosecution of the crime, as her testimony alone, if credible, is sufficient to convict the accused thereof.
Q Likewise one of your findings is that her vagina admits one finger, in this finding of yours, it does not show any force or can be interpreted that there was no force of inserting something on the vagina of the patient, is that right?A I cannot say directly that there was no force because the vagina is so elastic like a rubber, sir.Q And so you can conclude that there was really no force?A I cannot say that there was no force because as I have said the vaginal canal is so elastic, sir.COURT Q There may be force or no force? A Yes, Your Honor. Proceed, ATTY. TAMINAYA Q When you stated in your findings, "admits one finger", could you tell this Court that there was no penis yet or any object that was inserted? A As I have said, the vaginal canal is so elastic so I cannot say if there was or there was no object that was inserted, sir. COURT Q Was there something introduced into the vagina or inserted inside? A Maybe yes, maybe no, sir. Q I think that the hymen can tell you that something was inserted into the vagina because of the laceration? A It is possible, sir. Proceed. ATTY. TAMINAYA Q In this case, there was no showing that the hymen was lacerated? A There was healed laceration, sir. COURT Q But whether or not the laceration was caused by force or no force, you could not tell? A Yes, Your Honor.[16]
It is a well-settled rule that an affirmative testimony is far stronger than a negative testimony, especially so when it comes from the mouth of a credible witness.[20]
Q Sometime in the evening of April 2, 1997, do you remember where you were? A Yes, sir. Q Where were you? A I was in Brgy. Casibong, San Jacinto, Pangasinan, sir. Q Where in Brgy. Casibong were you staying? A In the house of my step-father, sir. Q Your step-father, you are referring to the accused in this case? A Yes, sir. Q While you were in the house of your step-father in the evening of April 2, 1997, where were you in relation to that house? A I was inside the house, sir. Q What were you doing at that precise time? A I was tending the small child to sleep, sir. Q What is the name of that small child? A John, sir. Q While you were tending the small child by the name of John, what happened next after that? A While tending, I was able to sleep, sir. Q Were you awakened? A Yes, sir. Q Why were you awakened, could you explain to the Honorable Court? A I was awaken because somebody went on top of me, sir. Q When somebody went on top of you, who was that person? A Noel Sandoval, sir. Q When Noel Sandoval went on top of you, what happened next after that?
A He removed my shortpant and my pantie, sir. Q After Noel Salvador removed your shortpant and pantie, what did Noel Sandoval do, if he did anything? A After he removed my shortpant and my pantie, Noel Sandoval also removed his pants and brief and thereafter, he inserted his penis into my vagina, sir. Q After Noel Sandoval inserted his penis to your vagina, what did Noel Sandoval do, if he did anything? A He kissed me, sir. Q What part of your body did Noel Sandoval kiss you? A My neck, sir. Q What else? A Only my neck, sir. Q On April 5, 1997, do you remember where you were? A I was also in the house of my step-father, sir. Q What were you doing in that precise time of the day? A I was already asleep then, sir. Q Were you awakened? A Yes, sir.
Q Why? Could you explain before the Honorable Court why you were awakened on the evening of April 5, 1997? A I was awakened because I felt pain, sir. Q Why did you feel pain. A I felt pain inside my vagina, sir. Q Why? Can you explain before the Honorable Court why you felt pain in your vagina? A Because my step-father inserted his penis inside my vagina, sir. Q What part of the house of your step-father did he insert his penis? A Inside the house, sir.[19]