522 Phil. 340
CALLEJO, SR., J.:
That on or about the 24th day of September 2002, in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, NEIL LLAVE Y FLORES, aka NIEL F. LLAVE, a minor over nine (9) years of age and under fifteen (15) but acting with discernment, by means of force threat and intimidation, did then and there willfully, unlawfully, feloniously have carnal knowledge of the complainant, DEBBIELYN SANTOS y QUITALES, a minor, seven (7) years of age, against her will and consent.
Contrary to law.[3]
FROM ALL THE FOREGOING, the Court opines that the prosecution has proven the guilt of the xxx Niel Llave y Flores beyond reasonable doubt when he forcibly pulled the complainant towards the vacant lot, laid on top of her and had carnal knowledge with the [complainant] against her will and consent who is only seven (7) years old (sic). Moreover, he being a minor, he cannot be meted with the Death penalty.The trial court declared that based on the evidence of the prosecution that petitioner pushed the victim towards the vacant house and sexually abused her, petitioner acted with discernment. It also considered petitioner's declaration that he had been a consistent honor student.[54]
WHEREFORE, the Court finds the CICL [Child in Conflict with the Law] Niel Llave y Flores guilty beyond reasonable doubt, and crediting him with the special mitigating circumstance of minority, this Court hereby sentences him to prision mayor minimum, Six (6) years and One (1) day to Eight (8) years, and pay civil indemnity of Fifty Thousand Pesos (Php50,000.00).[53]
The CA rendered judgment affirming the decision with modification as to the penalty meted on him.I
THE LOWER COURT ERRED WHEN IT DISREGARDED THE MATERIAL INCONSISTENCIES OF THE TESTIMONY OF COMPLAINING WITNESS WITH THAT OF THE MEDICAL REPORT ON THE FACTUAL ALLEGATION OF BLEEDING.II
THE LOWER COURT ERRED WHEN IT GAVE CREDENCE TO THE TESTIMONY OF THE PROSECUTION WITNESS TEOFISTO BUCUD WHO HAS REASON TO FABRICATE A SCENARIO AGAINST ACCUSED-APPELLANT BECAUSE HE HAS PERSONAL VENDETTA AGAINST THE LATTER'S FAMILY/RELATIVES.III
THE LOWER COURT ERRED IN UPHOLDING THE THEORY OF THE PROSECUTION OF RAPE BY HAVING CARNAL KNOWLEDGE, BEING CONTRARY TO THE PHYSICAL EVIDENCE.[55]
WHEREFORE, the decision subject of the instant appeal is hereby MODIFIED in that the accused-appellant is sentenced to an indeterminate penalty of two (2) years and four (4) months of prision correccional medium as the minimum to eight (8) years and one (1) day of prision mayor medium as the maximum. Additionally, the accused-appellant is ordered to pay the complaining witness the amount of P50,000 by way of moral damages and P20,000 by way of exemplary damages.Petitioner filed a Motion for the Reconsideration,[57]contending that the prosecution failed to adduce proof that he acted with discernment; hence, he should be acquitted. The appellate court denied the motion in a Resolution[58] dated November 12, 2004 on the following finding:
SO ORDERED.[56]
As regards the issue of whether the accused-appellant acted with discernment, his conduct during and after the "crime" betrays the theory that as a minor, the accused-appellant does not have the mental faculty to grasp the propriety and consequences of the act he made. As correctly pointed out by the prosecution, the fact that forthrightly upon discovery, the accused-appellant fled the scene and hid in his grandmother's house intimates that he knew that he did something that merits punishment.Petitioner now raises the following issues and arguments in the instant petition before this Court:Contrary to the urgings of the defense, the fact that the accused-appellant is a recipient of several academic awards and is an honor student further reinforces the finding that he [is] possessed [of] intelligence well beyond his years and is thus poised to distinguish, better at least than other minors his age could, which conduct is right and which is morally reprehensible.[59]
The issues raised by the petitioner in this case may be summarized as follows: (1) whether he was deprived of his right to a preliminary investigation; (2) whether he had carnal knowledge of the private complainant, and if in the affirmative, whether he acted with discernment in perpetrating the crime; (3) whether the penalty imposed by the appellate court is correct; and (4) whether he is liable to pay moral damages to the private complainant.ISSUESIWHETHER OR NOT EVIDENCE WAS SUFFICIENT TO CONVICT PETITIONER BEYOND REASONABLE DOUBT.IIWHETHER OR NOT PETITIONER, WHO WAS A MINOR ABOVE 9 YEARS BUT BELOW 15 YEARS OF AGE AT THE TIME OF THE CRIME, ACTED WITH DISCERNMENT.IIIWHETHER OR NOT PETITIONER WAS DENIED DUE PROCESS OF LAW.ARGUMENTSI
THE MATERIAL INCONSISTENCIES BETWEEN THE TESTIMONY OF COMPLAINING WITNESS WITH THE MEDICAL REPORT BELIE THE FINDING OF RAPE.II
PRIVATE COMPLAINANT IS NOT A CREDIBLE WITNESS.III
PETITIONER ACTED WITHOUT DISCERNMENT.IVTHE TESTIMONY RELIED UPON BY THE PROSECUTION IS HEARSAY.VTHE COMPLAINT IS FABRICATED.VIPETITIONER WAS DENIED DUE PROCESS OF LAW.[60]
Petitioner argues that since he was only 12 years old at the time of the alleged rape incident, he is presumed to have acted without discernment under paragraph 3 of Article 12 of the Revised Penal Code. Under said provision, the prosecution has the burden of proving that he acted with discernment. In the instant case, petitioner insists that there was no evidence presented by the prosecution to show that he acted with discernment. Hence, he should be exempt from criminal liability.In reply, petitioner asserts that the only abrasion found by Dr. Castillo was on the peri-anal skin and not in the labia of the hymen. He further insists that there can be no consummated rape absent a slight penetration on the female organ. It was incumbent on the prosecution to prove that the accused acted with discernment but failed. The mere fact that he was an honor student is not enough evidence to prove that he acted with discernment.Petitioner's arguments are bereft of merit.
Discernment, as used in Article 12(3) of the Revised Penal Code is defined as follows: "the discernment that constitutes an exception to the exemption from criminal liability of a minor under fifteen (15) years of age but over nine (9), who commits an act prohibited by law, is his mental capacity to understand the difference between right and wrong" (People v. Doquena, 68 Phil. 580 [1939]). For a minor above nine but below fifteen years of age, he must discern the rightness or wrongness of the effects of his act (Guevarra v. Almodova, G.R. No. 75256, January 26, 1989).
Professor Ambrocio Padilla, in his annotation of Criminal Law (p. 375, 1998 Ed.), writes that "discernment is more than the mere understanding between right and wrong. Rather, it means the mental capacity of a minor between 9 and 15 years of age to fully appreciate the consequences of his unlawful act" (People v. Navarro, [CA] [51 O.G. 4062]). Hence, in judging whether a minor accused acted with discernment, his mental capacity to understand the difference between right and wrong, which may be known and should be determined by considering all the circumstances disclosed by the record of the case, his appearance, his attitude and his behavior and conduct, not only before and during the commission of the act, but also after and even during the trial should be taken into consideration (People v. Doquena, supra).
In the instant case, petitioner's actuations during and after the rape incident, as well as his behavior during the trial showed that he acted with discernment.The fact appears undisputed that immediately after being discovered by the prosecution's witness, Teofisto Bucud, petitioner immediately stood up and ran away. Shortly thereafter, when his parents became aware of the charges against him and that private complainant's father was looking for him, petitioner went into hiding. It was not until the Barangay Tanod came to arrest him in his grandmother's house that petitioner came out in the open to face the charges against him. His flight as well as his act of going into hiding clearly conveys the idea that he was fully aware of the moral depravity of his act and that he knew he committed something wrong. Otherwise, if he was indeed innocent or if he was not least aware of the moral consequences of his acts, he would have immediately confronted private complainant and her parents and denied having sexually abused their daughter.
During the trial, petitioner submitted documentary evidence to show that he was a consistent honor student and has, in fact, garnered several academic awards. This allegation further bolstered that he acted with discernment, with full knowledge and intelligence. The fact that petitioner was a recipient of several academic awards and was an honor student further reinforces the finding that he was possessed of intelligence well beyond his years and thus was able to distinguish, better than other minors of his age could, which conduct is right and which is morally reprehensible. Hence, although appellant was still a minor of twelve years of age, he possessed intelligence far beyond his age. It cannot then be denied that he had the mental capacity to understand the difference between right and wrong. This is important in cases where the accused is minor. It is worthy to note that the basic reason behind the enactment of the exempting circumstances under Article 12 of the Revised Penal Code is the complete absence of intelligence, freedom of action, or intent on the part of the accused. In expounding on intelligence as the second element of dolus, the Supreme Court has stated: "The second element of dolus is intelligence; without this power, necessary to determine the morality of human acts to distinguish a licit from an illicit act, no crime can exist, and because" the infant has no intelligence, the law exempts (him) from criminal liability" (Guevarra v. Aldomovar, 169 SCRA 476 [1989], at page 482).
The foregoing circumstances, from the time the incident up to the time the petitioner was being held for trial, sufficiently satisfied the trial court that petitioner acted with discernment before, during and after the rape incident. For a boy wanting in discernment would simply be gripped with fear or keep mum. In this case, petitioner was fully aware of the nature and illegality of his wrongful act. He should not, therefore, be exempted from criminal liability. The prosecution has sufficiently proved that petitioner acted with discernment.[61]
SEC. 7. When accused lawfully arrested without warrant. - When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.As gleaned from the Certification[62] of the City Prosecutor which was incorporated in the Information, petitioner did not execute any waiver of the provisions of Article 125 of the Revised Penal Code before the Information was filed. He was arraigned with the assistance of counsel on October 10, 2002, and thereafter filed a petition for bail.[63] Petitioner's failure to file a motion for a preliminary investigation within five days from finding out that an Information had been filed against him effectively operates as a waiver of his right to such preliminary investigation.[64]
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided for in this Rule.
Fiscal Barrera:On cross-examination, the victim was steadfast in her declarations:
Q: From what time up to what time?
A: From 12:00 o'clock noon up to 6:00 p.m.
Q: September 24, 2002 and going over the calendar, it was Tuesday. Did you go to school from 12:00 o'clock noon up to 6:00 p.m.?
A: Yes, Sir, on the same date I went to school.
Q: At about 6:00 p.m., Sept. 24, 2002, where were you?
A: I went home.
Q: And by whom you are referring to your house at 1-C Carnation St., R. Higgins, Maricaban, Pasay City?
A: Yes, Sir.
Q: And what did you do after you went home?
A: I changed my clothes and then I proceeded to the store of my mother.
Q: And where is that store of your mother where you went?
A: It is near our house, walking distance.
Q: What is your mother selling in that store?
A: She sells quail eggs.
Q: And were you able to immediately go to the store of your mother where she was selling quail eggs?
A: Yes, sir.
Q: And that was past 6:00 p.m. already?
A: Yes, sir.
Q: And what happened when you went to the store where your mother is selling quail eggs past 6:00 p.m.?
A: My mother asked me to bring home something.
Q: What were these things you were asked by your mother to bring home?
A: The things she used in selling.
Q: And did you obey what your mother told you to bring home something?
A: Yes, Sir.
Q: And what happened to you in going to your house?
A: Totoy pulled me.
Q: Pulled you where?
A: Totoy pulled me towards an uninhabited house.
Q: What happened after Totoy pulled you in an uninhabited house?
A: He told me to lie down on the cement.
Q: What happened after he laid you down on the cement?
A: He removed my shorts and panty. He also removed his shorts.
Q: After Totoy removed your shorts and panty and he also removed his shorts, what happened next?
A: He inserted his penis inside my vagina.
Q: What did you feel when Totoy inserted his penis inside your vagina?
A: It was painful.
Q: Aside from inserting his penis inside your vagina, what else did you do to you?
A: He kissed me on my lips.
Q: After Totoy inserted his penis inside your vagina and kissed you on your lips, what did you do?
A: I cried.
Q: What happened when you were crying when he inserted his penis inside your vagina and kissed you on your lips. What happened next?
A: Somebody heard me crying.
Q: Who heard you crying?
A: Kuya Teofe, Sir.
Q: What happened after you cried and when somebody heard you crying?
A: Totoy ran away.
Q: After Totoy ran away, what happened next?
A: When Totoy ran away, I was left and Kuya Teofe told me to tell the matter to my parents.
Q: Did you tell your parents what Totoy did to you?
A: Yes, Sir.[68]
ATTY. BALIAD:When questioned on cross-examination whether she could distinguish a vagina from an anus, the victim declared that she could and proceeded to demonstrate. She reiterated that the penis of petitioner penetrated her vagina, thus, consummating the crime charged:
Q: Again, in what particular position were you placed by Totoy when he inserted his penis inside your vagina?
A: I was lying down.
Q: Aside from lying down, how was your body positioned at that time?
A: He placed on top of me.
Q: After he placed on top of you, what else did he do to you, if any?
A: He started to kiss me and then he inserted his penis inside my vagina.
Q: Did you feel his penis coming in into your vagina?
A: Yes, Sir.
Q: Are you sure that his penis was inserted inside your vagina?
A: Yes, Sir.[69]
Atty. Baliad:While it is true that Dr. Castillo did not find any abrasion or laceration in the private complainant's genitalia, such fact does not negate the latter's testimony the petitioner had carnal knowledge of her. The absence of abrasions and lacerations does not disprove sexual abuses, especially when the victim is a young girl as in this case.[71] According to Dr. Castillo, the hymen is elastic and is capable of stretching and reverting to its original form. [72] The doctor testified that her report is compatible with the victim's testimony that she was sexually assaulted by petitioner:
Q: Do you recall having stated during the last hearing that the accused, Neil Llave or "Totoy" inserted his penis in your vagina, do you recall that?
A: Yes, Sir.
Q: And likewise, you testified that you feel that the penis of Neil entered your vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus?
A: Yes, Sir.
Q: Where is your "pepe?"
A: (Witness pointing to her vagina.)
Q: Where is your anus?
A: (Witness pointing at her back, at the anus.)
Q: In your statement, am I correct to say that Neil, the accused in this case penetrated only in your vagina and not in your anus?
A: Yes, Sir.
Q: So that, your anus was not even touched by the accused neither by his penis touched any part of your anus?
A: He did not insert anything on my anus, Sir.[70]
Atty. Baliad:Dr. Castillo even testified that the abrasion near the private complainant's anal orifice could have been caused by petitioner while consummating the crime charged:
Q: Do you recall having stated during the last hearing that the accused, Neil Llave or "Totoy" inserted his penis in your vagina, do you recall that?
A: Yes, Sir.
Q: And likewise, you testified that you feel (sic) that the penis of Neil entered your vagina?
A: Yes, Sir.
Q: Could you distinguish vagina from your anus?
A: Yes, Sir.
Q: Where is your "pepe'"
A: (Witness pointing to her vagina.)
Q: Where is your anus?
A: (Witness pointing at her back, at the anus.)
Q: In your statement, am I correct to say that Neil, the accused in this case penetrated only in your vagina and not in your anus?
A: Yes, Sir.
Q: So that, your anus was not even touched by the accused neither by his penis touched any part of your anus?
A: He did not insert anything on my anus, Sir.
x x x x
Fiscal Barrera:
Q: Based on your testimony doctor, and the medico genital examination propounded on the report that the victim here, Debbielyn Santos is complaining that around 6:00 in the evening of September 24, 2002, she was sexually abused and that on the following day, September 25, you interviewed her and stated to you that her genitalia was hurting and in binocular (sic) "masakit ang pepe ko, ni-rape ako," would your findings as contained in this Exh. B and C be compatible with the allegation if the minor victim that she was sexually abused on September 24. 2002 at around 6:00 p.m.?
Atty. Baliad:
Objection, Your Honor. The one who narrated the incident is the mother.
Court:
What is your objection?
Atty. Baliad:
The objection, Your Honor, is the question propounded is that it was the minor who made the complaint regarding the allegation.
Fiscal Barrera:
The answer were provided"..
Court:
The doctor is being asked whether or not her findings is compatible with the complaint of the minor. Overruled. Answer.
Witness:
A It is compatible with the allegation of the minor.
Fiscal Barrera:
Confronting you again with your two (2) medico-genital documents, the Provincial and Final Report mark[ed] in evidence as Exhs. B and C, at the lower portion of these two exhibits there appears to be a signature above the typewritten word, Mariella Castillo, M.D., whose signature is that doctor?
A Both are my signatures, Sir.[73]
Petitioner' s contention that the private complainant was coached by her parents into testifying is barren of merit. It bears stressing that the private complainant testified in a straightforward and spontaneous manner and remained steadfast despite rigorous and intensive cross-examination by the indefatigable counsel of the petitioner. She spontaneously pointed to and identified the petitioner as the perpetrator.Fiscal Barrera:
Q: With your answer, would it be possible doctor that in the process of the male person inserting his erect penis inside the vagina, in the process, would it be possible that this abrasion could have been caused while in the process of inserting the penis into the vagina touch the portion of the anus where you find the abrasion?
A: It is possible, Sir.
Q: Now, are you aware, in the course of your examination, that the alleged perpetrator is a 12-year-old minor?
A: I only fount it out, Sir, when I testified.
Q: Do you still recall your answer that a 12-year-old boy could cause an erection of his penis?
A: Yes, sir.
Q: To enlight[en] us doctor, we, not being a physician, at what age could a male person can have erection?
A: Even infants have an erection.[74]
Fiscal Barrera:There is no evidence that the parents of the offended party coached their daughter before she testified. No mother or father would stoop so low as to subject their daughter to the tribulations and the embarrassment of a public trial knowing that such a traumatic experience would damage their daughter's psyche and mar her life if the charge is not true.[78]
Q: As you testified earlier that you have played post cards with Debbielyn Santos alias Lyn-lyn and you have no quarrel or misunderstanding with Lyn-lyn. Do you know of any reason why Lyn-lyn complaint (sic) against you for sexual abuse?
A: I don't know of any reason, Sir.
Q: You also testified that you do not have any quarrel or misunderstanding with Lyn-lyn's parents, spouses Domingo Santos, Jr. and Marilou Santos, do you think of any reason as to why they would file a complaint against you for molesting their 7-year-old daughter?
A: I do not know of any reason why they filed a complaint against me, Sir.
Fiscal Barrera:
That would be all, Your Honor.[77]
Taking into account the fact that when the accused Valentin Doqueña committed the crime in question, he was a 7th grade pupil in the intermediate school of the municipality of Sual, Pangasinan, and as such pupil, he was one of the brightest in said school and was a captain of a company of the cadet corps thereof, and during the time he was studying therein he always obtain excellent marks, this court is convinced that the accused, in committing the crime, acted with discernment and was conscious of the nature and consequences of his act, and so also has this court observed at the time said accused was testifying in his behalf during the trial of this case.[88]The CA ordered petitioner to pay P50,000.00 as moral damages and P20,000.00 as exemplary damages. There is no factual basis for the award of exemplary damages. Under Article 2231, of the New Civil Code, exemplary damages may be awarded if the crime was committed with one or more aggravating circumstances. In this case, no aggravating circumstance was alleged in the Information and proved by the People; hence, the award must be deleted.