400 Phil. 186
MENDOZA, J.:
The information against accused-appellant alleged that:When arraigned, the accused-appellant pleaded not guilty,[3] whereupon his trial ensued.
On or about April 30, 1997, in San Juan, Metro Manila and within the jurisdiction of this Honorable Court, the accused, by means of force, violence and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with Roxanne Pedro y Montemayor @ "Budick," a minor, ten (10) years of age, against her will and consent.
CONTRARY TO LAW. [2]
FINDINGS:Dr. Bellin opined that the deep healed laceration found on the victim's vagina could have been caused by the introduction of a hard blunt object, such as an erect penis. He estimated that the laceration of the victim's hymen occurred around three weeks prior to the examination. However, he could not determine whether the victim resisted the sexual act or voluntarily submitted herself to it.[7] On cross-examination, Dr. Bellin admitted that it was possible that the laceration was caused by the insertion of a finger.[8]
GENERAL AND EXTRAGENITAL:
Fairly developed, fairly nourished and coherent female child. Breasts are undeveloped. Abdomen is flabby and soft.
GENITAL:
There is absence of pubic hair. Labora majora is full, convex and coaptated with the light brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy-type hymen with deep healed laceration at 6 o'clock position. External vaginal orifice offers strong resistance to the introduction of the examining index finger.
xxx xxx xxx
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of violence.
REMARKS:
Vaginal and peri-urethral smears are negative for gram-negative diplococci and for spermatozoa.[6]
WHEREFORE, premises considered, this Court finds accused, Rommel Pine y Garcia, guilty beyond reasonable doubt as principal of the crime of rape and imposes upon him the penalty of reclusion perpetua; to indemnify Roxanne Pedro the sum of P200,000.00 as moral damages; and to pay the costs.First. This Court has laid down the following guidelines in the decision of rape cases, to wit: (a) a rape charge can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (b) in view of the intrinsic nature of the crime of rape where generally only two persons are involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) the evidence for the prosecution must stand or fall on its merits and cannot draw strength from the weakness of the evidence for the defense.[12]
Any detention service rendered by the accused should be credited in his favor computed pursuant to Batas Pambansa Blg. 85.[10]
Hence, this appeal. Accused-appellant contends that:
I. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE ALLEGED VICTIM'S CONFLICTING AND UNCERTAIN TESTIMONY.
II. THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE.[11]
Q On April 30, 1997 at about 8:30 to 8:45 in the evening, do you recall whereRoxanne deserves credit for truthfulness. She said she could not tell with certainty whether it was accused-appellant's penis which he inserted to her vagina or only his finger or a hard instrument because she was lying on her back. Perhaps a mature woman with sexual experience would be able to tell whether it was a penis, a finger, or an instrument which was inserted into her private part. But in this case the following circumstances make it improbable that the penetration was other than penile penetration: (1) According to Roxanne, accused-appellant was able to penetrate her because, with one hand covering her mouth and the other holding her hands, she was rendered helpless. This makes it improbable, if not impossible, for accused-appellant either to insert his finger or to poke an instrument into her vagina; (2) Accused-appellant was not engaged in foreplay but in sexual intercourse. It was, therefore, improbable that he would use his finger or an instrument to obtain sexual gratification.
were you?
A I was in the playroom, Ma'am.
Q Where is that play room located?
A Inside the house, Ma'am.
. . . .
Q So, when Manang Piring went out of the play room, and went to
the kitchen, who was left behind?
A Emil and myself, Ma'am.
Q . . . [W]hen you were left [with] Emil inside the room, could
you recall . . . any unusual incident that transpired during that time when
you were left, the two (2) of you?
A Yes, Ma'am.
Q What was that?
A When I was seated on the bed, Emil approached me.
Q When he approached, what happened?
A He lay me down on the bed.
Q What did you do when Emil [laid] you down on the bed?
A I tried to stand up but he prevented me from standing up.
Q At that time, how old [were] you?
A Ten (10) years old.
Q How did he prevent you from standing up [from] the bed?
A He was holding my left shoulder.
Q After that, what happened?
A He undressed me.
. . . .
Q Was he able to undress you?
A Only my short.
Q Was he able to remove your short?
A No, Ma'am. Up to my knee only.
Q After that, what happened?
A He undressed himself.
Q What clothes did he undress?
A Short, Ma'am.
. . . .
Q After Emil undressed himself, what happened?
A He raped me.
Q What do you mean, he raped you?
A He inserted his penis into my vagina.
Q Did you try to scream during that time?
A Yes, Ma'am.
Q What happened when you scream?
A He covered my mouth, Ma'am.
Q So that prevented you from screaming?
A Yes, Ma'am.
Q Did you not try to resist when Emil inserted his penis into
your vagina?
A I kicked him, Ma'am.
Q Where did you kick him?
A I just kicked him, I do not know where I hit him.
. . . .
Q After Emil inserted his penis into your vagina, what happened
after that?
A When I tried to scream, he covered my mouth and told me not
to tell anybody.
Q After that, what happened?
A I ran towards the kitchen.
. . . .
Q When he inserted his penis into your vagina, did he make a
push and pull movement?
A Yes, Ma'am.
Q What did you feel when he inserted his penis into your
vagina?
A Painful, Ma'am.[14]
Accused-appellant makes much of the fact that Roxanne admitted that she was unable to see whether what had been inserted in her vagina was a penis, a finger, or an instrument. Accused-appellant says that this concerns a material fact which renders Roxanne's entire testimony suspect.
Roxanne's testimony is as follows:
Q What is the exact position of your buttocks in relation to
the side of the bed?
A At the corner of the bed.
Q Assuming this is your vagina, in relation to the side of the
bed, where was your vagina?
A Here, sir. (Witness pointing to the edge of the bed).
Q How tall is the bed?
A Twenty-five inches.
Q Was he in the kneeling position?
A Yes, sir.
Q Was it the time he inserted his penis?
A Yes, sir.
Q You really did not see what was inserted in your vagina?
A No, because I was lying.
Q You just feel there was somet[hing] insert[ed] in your vagina?
A Yes, sir.
Q You really not sure whether it is finger, penis or instrument, hard
instrument?
A I am not sure.
. . . .
Q After inserting his penis, what happened? What did Emil do?
A I shouted and he covered my mouth.
Q What did Emil do?
A He told me not to tell to anybody.
Q Did he already remove his penis?
A Yes, sir.
Q How long did he insert his penis?
A I do not know, sir.
Q He did not insert his penis?
A He inserted it.
Q You are really sure whether or not what he inserted into your vagina
was penis, finger or hard instrument?
A I am not sure, sir.
Q You are only sure that something is inserted but you are not
sure whether it is a penis, finger or any hard instrument?
A I am sure, sir.
. . . .
Q Isn't it the truth of the matter is that, you are really not
sure what was inserted into your vagina, considering that you were lying
on the bed?
A Yes, sir.
COURT:
Q And you did not see what was inserted into your vagina?
A Yes, sir.
COURT:
Redirect
PROSEC. LEONARDO:
Redirect, Your Honor.
Q When that thing was inserted into your vagina, where was the
hand or hands of Emil?
A One hand on my mouth and one hand holding my hands.[15]
In the case at bar, however, no birth or baptismal certificate was presented to prove the age of the victim. Neither was there a showing that said documents were lost or destroyed to justify their nonpresentation. The trial court should not have relied on the testimony of Cornelia as to her age nor on the testimony of her aunt Margarila Quilang. Both testimonies are hearsay. Nor was it correct for the trial court to judge the victim's age by considering her appearance. As correctly pointed out by appellant, Cornelia could easily be mistaken for a child below 12 years of age. The difference of two or three years in age may not always be readily apparent by mere physical manifestations or appearance. Indeed, there is generally no noticeable difference between the appearance of a ten (10) year old child from that of a twelve (12) year old. The age of the victim is an essential element in the crime of statutory rape and must be indubitably proved by the prosecution. As there was failure of proof by the prosecution, appellant cannot be convicted of statutory rape.This does not, however, mean that accused-appellant could no longer be convicted of rape. It must be noted that the information[25] against him likewise charged that accused-appellant had carnal knowledge of Roxanne Pedro "by means of force, violence and intimidation." The age of complainant is inconsequential.[26] The evidence shows that accused-appellant succeeded in having sex with Roxanne through the use of force. He pinned her hands and covered her mouth to prevent her from resisting and crying out for help. Roxanne tried to kick him but to no avail. Accused-appellant lay on top of her on the bed, forced her legs apart, and inserted his penis into her vagina. When he was through with her, he threatened her with harm if she told anyone about what happened to her.[27] Surely, Roxanne's narration of events could by no means be interpreted as consensual sex. On the contrary, her testimony showed her lack of consent to the sexual congress and the use of force and intimidation to consummate accused-appellant's unlawful design.
In this case, it is enough that the prosecution had proven that force or intimidation was exerted in the commission of the crime. The law does not impose upon a rape victim the burden of proving resistance. Moreover, physical resistance need not be established in rape when intimidation is exercised upon the victim and she submits herself against her will to the rapist's lust because of the fear for her life or personal safety. Indeed, it has been said that, in rape cases, it is not necessary that the victim should have resisted unto death or sustained physical injuries in the hands of the rapist. It suffices that the intercourse takes place against her will, or that she yields because of a genuine apprehension of great harm.Accused-appellant was a houseboy in the house where Roxanne and her mother lived. He was trusted by them. He was a 26-year old man while the victim was but a child. Under such circumstances, Roxanne, shocked and frightened, could not have been prepared to handle accused-appellant's sexual assault. To silence and intimidate the young girl would not have required that degree of force that would otherwise have been necessary in order to force an older and stronger woman into submission.