466 Phil. 733
VITUG, J.:
“That on or about the 23rd day of November, 1997, at or about 10:00 o’clock in the evening, in barangay Bunawan, municipality of Calamba, province of Misamis Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, entered the bedroom in the dwelling of the offended party, and by means of force and intimidation, with the use of a hunting knife, did then and there willfully, unlawfully and feloniously have carnal knowledge of the offended party Genalyn Camporedondo, a 10-year-old girl who is the step granddaughter of said accused, without her consent and against her will.In Crim. Case No. 36-09 for statutory rape, the accusation was to the following effect, viz:
“CONTRARY TO LAW, with the qualifying circumstance that the victim is under twelve (12) years of age and the offender is a stepgrandfather of the victim, and the use of a deadly weapon, and the aggravating circumstance that the offense was committed in the dwelling of the offended party.”[2]
“That on or about November 23, 1997, at about 10:00 o’clock in the evening, more or less, in the kitchen of their house, at barangay Bunawan, municipality of Calamba, province of Misamis Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with lewd design, and with the used (sic) of a hunting knife, with violence, force, and intimidation, did then and there, willfully, unlawfully and feloniously have carnal knowledge with GENALYN CAMPOREDONDO, a minor 10 years old, without her consent and against her will.Appellant pleaded not guilty to the charges. The trial ensued with the prosecution first presenting its evidence on, and the defense thereafter submitting its own version of, the incidents complained of.
“CONTRARY TO LAW, with the presence of the qualifying circumstance of minority and the aggravating circumstance of relationship the accused being the step-father of the mother of the victim.”[3]
“WHEREFORE, premise considered, finding accused Pedro Intong guilty beyond reasonable doubt of having committed the crime of RAPE in CRIMINAL CASE NO. 36-05 as defined and penalized under Article 335 of the Revised Penal Code as amended by Article 266-A and 266-B of Republic Act 8353 in relation to R.A. 7610 with the attending (sic) or presence of three qualifying aggravating circumstances, namely: 1) that victim Genalyn Camporedondo is below 12 years old; 2) that the crime of rape was committed with the use of a deadly weapon; and 3) that the crime of rape was committed in the house or dwelling place of victim Genalyn Camporedondo, and likewise the presence of the generic aggravating circumstance that the crime of rape was committed in the presence of Gino Camporedondo, a brother of victim Genalyn Camporedondo, this is so because this aggravating circumstance was not alleged in the Information although it was proven, accused Pedro Intong is hereby sentenced to a penalty of DEATH. Pedro Intong is hereby directed to pay the amount of P75,000.00 as civil indemnity and the additional amount of P50,000.00 as moral damages to Genalyn Camporedondo and to her parents.Appellant, through the Public Attorney’s Office, interposed a lone assignment of error; viz: “THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE WHEN THE LATTER’S GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.”[6]
“In CRIMINAL CASE NO. 36-09, accused Pedro Intong is found guilty beyond reasonable doubt of having committed the crime of RAPE as defined and penalized under Article 335 of the Revised Penal Code as amended by Article 266-A and 266-B of Republic Act 8353 in relation to section 11 of R.A. 7659, with the presence of qualifying aggravating circumstances, namely: 1) that victim Genalyn Camporedondo is below 12 years old, and 2) that the crime of rape was committed with the use of a deadly weapon, and likewise also, with the presence of two generic aggravating circumstances, namely: 1) that the crime of rape was committed in the presence of the brother of the victim, Gino Camporedondo, and 2) that the crime of rape was committed in the house or dwelling place of victim Genalyn Camporedondo — hese are considered only as generic aggravating circumstances for the same are not alleged in the Information although they were proven, accused Pedro Intong is hereby sentenced to a penalty of DEATH. Pedro Intong is hereby directed to pay to Genalyn Camporedondo and [her] parents the amount of P75,000.00 as civil indemnity and the additional amount of P50,000.00 as moral damages.”[5]
“x x x [C]omplainant’s identification of the appellant was not based solely on the latter’s physical defect, but by his voice as well, when he warned complainant, `Flor, keep quiet.’ Although complainant did not see appellant’s face during the sexual act because the house was dark, nevertheless, no error could have been committed by the complainant in identifying the voice of the accused, inasmuch as complainant and appellant were neighbors.”[13]The young victim, narrating her ordeal, declared before the trial court:
Pitted against the victim’s unflinching and consistent testimony, given during both the direct examination and the cross-examination, was appellant’s declaration that he was at home during the material time, too drunk to move from where he slept. Apparently, in a bid to add flair to his story, appellant claimed that he could not have raped the victim due to an unnamed illness that caused him to dislike sexual intercourse[15] adding that his penis, when enlarged, would have a circumference of about six inches or the size of an 8-ounce Pepsi Cola bottle[16] or, according to his wife, the size of the gavel of the judge.[17] Indeed, appellant had clutched at the last straw in a bid for exoneration.
“Q - You said that you were able to wake up in that late evening and you saw Pedro Intong on top of you, was Pedro Intong having his pants on when he was on top of you? “A - He has no more pants. “Q - How about you when you were awakened and you saw Pedro Intong on top of you and you can hardly breathe, where was your dress? “A - He raised up my dress. “Q - You said that your dress was raised up to your waist and Pedro Intong had no more pants and on top of you what did he do next to you? “A - He kissed me at my cheeks. “Q - Aside from kissing your cheeks what did Pedro Intong do to the lower part of your body especially your vagina? “A - He made a push and pull motions. “Q - You said that Pedro Intong had no more pants and made a push and pull motions, did you notice the organ or penis and eggs of Pedro Intong touching your vagina? “A - Yes. “Q - It was evening Genalyn, in fact you were sleeping and then you were awakened, how were you able to identify that it was Pedro Intong when it was evening? “A - Because I am familiar with his voice and at the time he kissed me he told me to respond in kissing. “Q - Am I right Genalyn that the roofing of your house is dilapidated and the roofing is covered with cellophane? “A - Yes. “Q - There was lightning during that time? “A - Yes. “Q - When there was lightning you were able to see Pedro Intong? “A - Yes. “Q - On top of you? “A - Yes. “Q - Doing the push and pull motions? “A - Yes. “x x x x x x x x x “Q - After accused Pedro Intong made push and pull movements on top of you and your skirt was raised up to your waist and Pedro Intong had no more pants, where did Pedro Intong bring you next? “A - He brought me to the kitchen. “Q - In the same house? “A - Yes. “Q - How did Pedro Intong bring you to the kitchen, dragging you or carrying you? “A - He carried me. “Q - How far was the kitchen where he brought you from the room where you were sleeping when accused was on top of you? “A - The kitchen is just below the portion of where we were sleeping. “Q - How many steps was the kitchen from the room where you were sleeping? “A - One (1) step. “Q - You said Pedro Intong carried you to the kitchen which was one step only from the bedroom on the top, what did Pedro Intong do to you when you reached the kitchen? “A - He dropped me then he mounted on top of me. “Q - You were dropped on the floor and accused Pedro Intong mounted on top of you? “A - Yes. “Q - After Pedro Intong mounted on top of you, what did he do next?
“A - Again he made a push and pull motions. “Q - Did the organ of Pedro Intong touch your vagina? “A - Yes. “Q - Was it inserted inside your vagina? “A - Yes. “Q - When you were in your bedroom did accused Pedro Intong aside from doing the push and pull movements did he insert his penis to your vagina? “A - Yes.”[14]
“Article 266-A. Rape; When And How Committed. — Rape is Committed —The crime of rape is thus committed either (a) by carnal knowledge or (b) by the insertion of the penis into the mouth or anal orifice of the victim or by the insertion of any object or instrument into the genital or anal orifice of a person. The sexual congress and the insertion of appellants’ fingers into the sex organ of the victim, twice committed, have been sufficiently established. Unexplainably, appellant has not been additionally charged in the information under the second mode of committing rape.
“1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:“a) Through force, threat, or intimidation;“2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.
“b) When the offended party is deprived of reason or otherwise unconscious;
“c) By means of fraudulent machination or grave abuse of authority; and
“d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
“Article 266-B. Penalties. — Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
“Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.“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 aggravating/qualifying circumstances:
“1) 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:“x x x x x x x x x
“3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity;“x x x x x x x x x
“Rape under paragraph 2 of the next preceding article shall be punished by prision mayor.
“Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be prision mayor to reclusion temporal.”
“x x x What can qualify the offense under Republic Act No. 7659 so as to warrant the imposition of the death penalty would be when the rape is committed with the use of a deadly weapon and not just the overt act of `being armed with a weapon.’ Although the victim in the instant case testified about the accused being armed with a knife, the record, however, is bereft of evidence to show that he actually has used it, the knife having all along been just tucked at the back of his trousers.”The informations alleged that the victim was a minor, and that appellant was her step-grandfather. The qualifying circumstances of minority and relationship, if indeed in attendance, could elevate the penalty to one of death.
The victim’s relationship with appellant, however, is not among the qualifying circumstances of relationships covered by the law. Article 266-B requires that “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.” Conformably with the principle of exclusio unius est exclusio alterius, the relationship of the offender, as being just a step-grandfather of the victim, cannot be deemed embraced by the enumeration.[27] Furthermore, there is no evidence submitted that appellant is legally married to the victim’s grandmother.“2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.
“3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:“x x x x x x x x x
“c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.”