460 Phil. 642


[ G.R. Nos. 152589 and 152758, October 24, 2003 ]





Antonio Butones Mendoza, appellant, was indicted for two (2) counts of incestuous rape, i.e., rape of his minor daughter on 18 March 1998 and 10 September 1999, both in Lakip, Atimonan, Quezon Province, under two separate Informations docketed as Crim. Cases Nos. 6636-G and 6637-G, respectively, before the RTC-Br. 61 of Gumaca, Quezon.[1] The charges are specified in the affidavit-complaint of his daughter Maricar T. Mendoza who on 18 March 1998 was only fourteen (14) years old and on 10 September 1999 was fifteen (15).[2]

The cases were consolidated and joint trial was subsequently conducted as they involved the same parties.

At the trial, the birth certificate of Maricar was offered in evidence where her date of birth is indicated as "23 December 1983" and her father as "Mendoza, Antonio," thus corroborating her personal circumstances alleged in the Informations as a minor and daughter of appellant.[3] Maricar's mother Leonida Mendoza affirmed the date of birth of Maricar and her affiliation to appellant as her father,[4] which appellant himself admitted.[5] He also testified that he and Leonida, mother of Maricar, were common-law spouses.[6]

On 18 March 1998 victim Maricar was left in her family's rickety hut together with her father, herein appellant, and her six (6)-year old sister.[7] On that day, Maricar's mother was in San Narciso, Quezon, to visit a relative.[8] As nighttime fell, Maricar retired to her space in the hut while her younger sister stayed outside.[9] While Maricar was alone, appellant who was already naked, and taking advantage of the darkness and the sleepy condition of his daughter, moved over to Maricar and removed her clothes.[10] He placed himself on top of her, both of them being already undressed, kissed his daughter and touched her breasts, at the same time threatening to kill her if she would shout or tell anybody afterwards what he was doing to her.[11] He boxed her on the stomach that sent her unconscious; she did not know what transpired after that.[12]

Maricar could only describe her physical appearance when she woke up the following day. Her relevant testimony was -
After boxing you on your stomach, what else did he do?
I do not know already, Ma'am.

Why did you not know?.
Because I lost consciousness.

You lost consciousness and when you regained consciousness, what did you notice about your body?
I saw blood, Ma'am.

Where did you see blood?
On my thigh, Ma'am.

And where was the blood coming?
From my vagina, Ma'am.

And what did you feel in your vagina?
It was painful, Ma'am.

Was that your first sexual experience?
Yes, Ma'am.

And who caused your vagina to bleed?
My father, Ma' am.[13]
Maricar further testified that after 18 March 1998 her father still abused her sexually many times.[14] She remembered the date 10 September 1999 because it was then when her mother was in the poblacion to set up her stall for selling vegetables.[15] Maricar was left in the hut with her younger sister and herein appellant.[16] It was nighttime and she was sleeping beside her sister when her father suddenly placed himself on top of Maricar.[17] Awakened by the startling occurrence, Maricar found herself bare as was appellant whose exposed body was rubbing against hers.[18] He kissed her on the cheeks and breasts[19] and for thirty (30) minutes his penis was inside her vagina.[20]

On 22 September 1999 Maricar's school principal discovered that Maricar was on the family way.[21] The principal called for Maricar's mother so she could confer with her. During the meeting, she told the mother that "it was the father of Maricar who raped her."[22] On the same day, they had Maricar examined by government doctor who found her already four (4) months pregnant.[23] To account for her pregnancy, Maricar explained that she was sexually abused by her father repeatedly between their first encounter on 18 March 1998 and the apparently last instance on 10 September 1999.[24] On 23 September 1999, mother and daughter filed the complaint for incestuous rape against appellant.[25]

Significantly, when Maricar testified before the trial court on 29 March 2001 she admitted being again pregnant.[26] She said that the common-law spouse of an older sister forced her to have sexual intercourse with him, hence her unwanted condition all over again.[27]

In his defense, appellant denied any sexual union with his daughter Maricar.[28] He claimed that he had been a good provider for his family, Maricar included, and that there was no reason for Maricar or her mother to file the charges against him which he claimed to be trumped-up.[29] He ventured though that the probable motive could be because Maricar wanted to be left alone so she could be with her many boyfriends.[30] He however admitted that he had no personal knowledge of this allegation, and that this theory was peddled to him by a certain Erlinda Rivera who, curiously, is the mother of the live-in partner of Maricar's older sister whom Maricar incriminated as the author of her second unwelcome pregnancy.[31]

On 13 December 2001 the trial court found appellant guilty of rape of his minor daughter Maricar on two (2) counts[32] and sentenced him to two (2) death penalties. It also ordered appellant to pay Maricar for each count of rape P50,000.00 as indemnity, P10,000.00 as moral damages, and P5,000.00 as exemplary damages.

In this automatic review, appellant argues that Maricar and her testimony lack credibility to prove his guilt beyond reasonable doubt.v.Firstly, he posits that the pregnancy of Maricar on 22 September 1999 could not have been due to the rape alleged in the Informations considering that the first rape happened way back on 18 March 1998 and that the second instance on 10 September 1999 was too recent to cause the bulge in her stomach.v.Secondly, she wavered and gave inconsistent answers when asked about the whereabouts of her mother on 18 March 1998.v.Thirdly, it was contrary to normal human experience for his penis to wallow in Maricar's vagina for thirty (30) minutes when a rapist would ordinarily not dilly-dally.v.And, lastly, Maricar had the bad habit of accusing her relatives for her unexpected pregnancies just as she did when she was heavy with her second child.

After a careful assessment of the facts, we find that the prosecution in Crim. Case No. 6636-G failed to prove beyond reasonable doubt that incestuous rape was consummated. The testimony of Maricar does not establish carnal knowledge considering that she did not know what happened while she was unconscious. The blood had already dried up when she was awakened, and the traces thereof were on her thighs, not in her vagina. For us to conclude sexual intercourse from her conjecture that the blood might have come from her private part would be engaging in too much speculation. This is not to mention that we do not even have corroborative evidence to confirm that the blood splattered on her thighs was indeed hers.

Neither could we associate the pain in her vagina with consummated carnal knowledge. Several alternative explanations for the pain, such as disease or exertion of varied forms of manipulation,[33] can be reasonably imagined and propounded, besides the essential fact of sexual congress. "Pain" is subjective and so easy to feign unless the specific cause is pinpointed which, in this case, should be an insertion of the penis into the vagina.[34] To insist on this inference of carnal knowledge on the strength solely of "pain" in the vagina effectively emasculates the critical distinction between consummated and attempted rape that we laid down in People v. Campuhan,[35] i.e., the touching of the female organ to constitute consummated rape should be construed in relation to the entry by the penis, however slight, into the labia majora.

Indeed, the defense has no duty to justify why we should take the side of such probable explanations as would exculpate appellant, much less are we obliged to find more severe culpability under otherwise less grave circumstances; rather, it is the business of the prosecution to prove why the incriminatory interpretation of the evidence should be preferable.v.The prosecution has the onus probandi of establishing the precise degree of culpability of the appellant; it must demonstrate in sufficient detail the manner by which the crime was perpetrated. Where the evidence gives rise to two possibilities, one consistent with the innocence and the other indicative of the guilt of the accused, that which favors the accused should be properly considered.[36] Thus, absent any compelling reason to agree with the prosecution's assessment of the evidence, we cannot affirm the conviction in Crim. Case No. 6636-G.

This of course does not mean that no crime was perpetrated in Crim. Case No. 6636-G. The criminal acts ascertained by the prosecution are that appellant went on top of Maricar while both were naked and then kissed his daughter and touched her breasts, at the same time threatening to kill her if she would shout or thereafter tell anybody of what he was then doing.v.Under these circumstances, while incestuous rape can be rationally ruled out since there is no evidence of the introduction of the penis of appellant into the aperture or within the pudendum of the vagina of private complainant,[37] accused-appellant is positive for having an intent to lie with his victim. He is guilty of attempted rape.

Rape is merely attempted when the offender commenced the commission of the crime directly by overt acts but does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance.[38] Appellant's unclothed being which he rubbed against the torso of his daughter whom he had also stripped of clothing, his acts of kissing and touching the victim's breasts while the latter was flat on the bed and rendered purposely unconscious by appellant, evidently demonstrate the intent of appellant to have carnal knowledge of her against her will.[39]

Clearly, the acts of appellant are of such nature that they themselves, by the facts to which they are related, by the circumstances of the person performing the same, and by the things connected therewith, obviously disclose the criminal objective necessarily intended by appellant.[40] They are overt acts of rape which have an immediate and necessary relation to the offense.[41] It is simply unfortunate that the court record is barren of evidence beyond reasonable doubt that his acts ended up with the consummation of his criminal objective, and so, we cannot convict him of consummated incestuous rape.

However, the conviction of appellant for incestuous rape[42] in Crim. Case No. 6637-G must be affirmed. The factual findings of the trial judge who had the opportunity to observe the demeanor of the witnesses and to assess their credibility are entitled to the highest degree of respect.[43] Upon our own review, the testimony of Maricar is clear, straightforward and convincing; the circumstances of the crime's discovery unmistakably show that the harrowing events of which Maricar testified were not rehearsed, invented or contrived.

Time and again we have held that not all kinds of discrepancies and inconsistencies in testimonies have the effect of discrediting a witness. On The contrary, some variances may actually strengthen the witness' credibility as they erase the suspicion of a rehearsed testimony. The alleged incongruities in the testimony of Maricar, as pointed out by appellant, are of this nature. They reinforce the credibility of Maricar and her testimony as they manifest her innocence and spontaneity in relating her story in court amidst the petrifying experience of a trial proceeding.v.She never faltered in her narration of the essential elements of the subject felony whether before the investigating judge or prosecutor, or the trial judge.[44]

Furthermore, the alleged inconsistencies and improbabilities in the testimony of Maricar refer to minor details outside the essential elements of the crime charged. In the case at bar, the attack is upon the period or time that private complainant's mother was away from their residence; her unwanted pregnancy when she was medically examined for purposes of filing the rape cases under consideration did not jibe with the incidents of rape that were charged in the Informations; the sexual intercourse for thirty (30) minutes which was contrary to the normal human experience of a rapist; and, Maricar's supposedly bad habit of implicating her relatives for her unexpected pregnancies.

These allegations are mere collateral matters inconsequential in the determination of the criminal liability of appellant. Or, they can easily be debunked by reference to Maricar's testimony. Her first pregnancy is explained in her testimony that between 18 March 1998 and 10 September 1999 she was raped several times more. There was no need for appellant to hurry with the rape on 10 September 1999 because Maricar's mother was in the poblacion selling vegetables.v.Finally, who can say for sure that the victim was not raped by her sister's live-in partner as she otherwise sincerely and voluntarily narrated?v.Certainly, not appellant nor his counsel de oficio since they have no personal knowledge of the facts of this supposed crime, and thus have no basis for saying that Maricar was lying.

The defense of denial peddled by appellant is not only weak but obviously manufactured. He blamed his daughter for his misfortune by stating that she merely wanted to gallivant with her many boyfriends. The value of this argument is belittled by the fact that it was not of his personal knowledge but only derived from one Erlinda Rivera who intriguingly was the mother of the man who allegedly raped Maricar after the latter's ordeal with her father.

In addition, if Maricar were yearning to be freed from the purported watchful eyes of her father, she could have easily eloped with her alleged boyfriends as her other sisters had done previously. In implying evil motive to Maricar's charges, appellant appears to contradict that part of his testimony where he claimed that he had always been a caring father to his family. If he were indeed a good provider and counselor to his children, why would Maricar then accuse him of such grave criminal act that may cost him his life?v.The pictures he paints of himself are truly contrary to human family experience as we have known it to be.

As to the proper penalties, in Crim. Case No. 6636-G, appellant is liable for attempted rape. Nighttime is alleged in the Information as an aggravating circumstance and proved beyond doubt by the prosecution to have been exploited by him in the execution of the felony. The penalty for attempted rape is two (2) degrees lower than the prescribed penalty of death for consummated incestuous rape of a minor.[45] Two (2) degrees lower from death is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years.

Applying the Indeterminate Sentence Law, and taking account of nighttime, the maximum of the penalty to be imposed upon accused-appellant shall be taken from the maximum period of reclusion temporal, the range of which is seventeen (17) years, four (4) months and one (1) day to twenty (20) years, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is six (6) years and one (1) day to twelve (12) years, in any of its periods.[46]

As to the amount of damages in Crim. Case No. 6636-G, prevailing jurisprudence sets the amount of the civil indemnity in attempted rape at P30,000.00.[47] Thus, the victim Maricar T. Mendoza must be awarded civil indemnity in the sum of P30,000.00.

Moral damages may be adjudged in recognition of her injury as being inherently concomitant with and necessarily resulting from the attempted rape, especially since the victim is the offender's own daughter who shall forever be haunted by a most unpleasant memory of a beastly father.[48] We allot to her moral damages of P25,000.00,[49] and in addition, exemplary damages in the amount of P10,000.00 must be imposed in the hope of deterring other fathers with perverse tendencies and aberrant sexual behavior from preying upon and sexually abusing their young daughters.[50]

In Crim. Case No. 6637-G, we hold that appellant is guilty of incestuous rape of a minor under Art. 266-B of The Revised Penal Code as amended by RA 8353 where the imposable penalty is death -
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
The civil indemnity for the victim shall be P75,000.00 since the rape was committed with the attending qualifying circumstances of minority and affinity that require the imposition of the death penalty.[51]

Again, moral damages are awarded without need of proof other than the fact of rape because it is assumed that the victim has suffered moral injuries entitling her to such an award[52] which is P75,000.00 pursuant to current jurisprudence on qualified rape.[53] Lastly, exemplary damages in the amount of P25,000.00 is also called for by way of public example and to protect the young from sexual abuse.[54]

Three (3) Justices of this Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the Majority that the law is constitutional, and that the death penalty can be lawfully imposed in the case at bar.

WHEREFORE, the assailed Decision of the court a quo in Crim. Cases Nos. 6636-G and 6637-G is MODIFIED:

In Crim. Case No. 6636-G appellant ANTONIO MENDOZA y BUTONES is found guilty of ATTEMPTED RAPE and is sentenced to an indeterminate prison term of six (6) years, two (2) months and one (1) day of prision mayor minimum as minimum, to eighteen (18) years, four (4) months and ten (10) days of reclusion temporal maximum as maximum; to indemnify the victim Maricar T. Mendoza the sum of P30,000.00 as civil indemnity, plus P25,000.00 as moral damages and P10,000.00 as exemplary damages.

In Crim. Case No. 6637-G we find appellant ANTONIO MENDOZA y BUTONES guilty of INCESTUOUS RAPE OF A MINOR as charged under Art. 266-B of The Revised Penal Code as amended by RA 8353 and is sentenced to the supreme penalty of death. He is also ordered to pay the victim Maricar T. Mendoza P75,000.00 as civil indemnity, another P75,000.00 as moral damages, and P25,000.00 as exemplary damages.

In accordance with Sec. 25 of RA 7659 amending Sec. 83 of The Revised Penal Code, upon finality of this Decision let the records of this case be forwarded forthwith, to the President of the Philippines for the possible exercise of the pardoning power.

Finally, as the circumstances demand immediate counseling and other remedial measures, let copy of this Decision be served upon the Department of Social Welfare and Development so the victim Maricar T. Mendoza may be extended such vital assistance for her healing, recovery and reintegration to society as a rape survivor under RA 8505, "The Rape Victim Assistance and Protection Act of 1998."

Costs de oficio.


Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Ynares-Santiago, J., on leave.

[1] Rollo, pp. 6-7.

[2] Id.; Exh. "C."

[3] Exb. "B."

[4] TSN, 29 March 2001, p. 22.

[5] TSN, 18 April 2001, pp. 4-5.

[6] TSN, 29 March 2001, p. 21.

[7] Id., pp. 3-4.

[8] Id., pp. 6, 12, 24.

[9] Id., p. 4.

[10] Ibid.

[11] Ibid.

[12] Id., p. 5.

[13] Id., p. 5.

[14] Id., p. 6.

[15] Id., pp. 6, 25.

[16] Id., p. 6.

[17] Id., p. 7.

[18] Ibid.

[19] Ibid.

[20] Id., p. 9.

[21] Id., p. 10, 22-23.

[22] Id., p. 22.

[23] TSN, 28 March 2001, p. 4.

[24] TSN, 29 March 2001, p. 9.

[25] Exh. "C."

[26] TSN, 29 March 2001, p. 20.

[27] Ibid.

[28] TSN, 18 April 2001, pp. 3-7.

[29] Id., pp. 12-13.

[30] Id., p. 7.

[31] Id., pp. 13-14.

[32] Decision penned by Judge Aurora V. Maqueda-Roman; Record, pp. 102-116.

[33] Other than those mentioned as rape in Art. 266-A of The Revised Penal Code as amended by RA 8353, i.e., "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."

[34] See People v. Tamsi, G.R. Nos. 142928-29, 11 September 2002.

[35] G.R. No. 129433, 30 March 2000, 329 SCRA 270.

[36] People v. Relorcasa, G.R. No. 102725, 3 August 1993, 225 SCRA 59.

[37] People v. Lizada, G.R. Nos. 143468-71, 24 January 2003; People v. Francisco, G.R. Nos. 135201-02, 15 March 2001, 354 SCRA 475; People v. Collado, G.R. Nos. 135667-701, 1 March 2001, 353 SCRA 381.

[38] The Revised Penal Code as amended, Art. 6 in relation to Arts. 266-A and 266-B.

[39] People v. Gajetas, No. L-38325, 24 February 1981, 103 SCRA 75.

[40] People v. Lizada, supra.

[41] Ibid.

[42] The Revised Penal Code as amended, Art. 266-B.

[43] People v. Castillon, G.R. No. 100586, 15 January 1993, 217 SCRA 76.

[44] Santos . People, G.R. No. 147615, 10 January 2003.

[45] The Revised Penal Code, Art. 51; People v. Tolentino, 367 Phil. 755, 764 [1999].

[46] People v. Mariano, G.R. Nos. 135511-13, 14 November 2001, 368 SCRA 238; People v. Francisco, supra.

[47] People v. Mariano, supra; People v. Tolentino, supra.

[48] People v. Mariano, supra; People v. Nava, G.R. Nos. 130509-12, 19 June 2000, 333 SCRA 749.

[49] People v. Tolentino, supra.

[50] People v. Mariano, supra.

[51] People v. Calderon, G.R. Nos. 145343-46, 3 December 2002.

[52] People v. Marahay, G.R. Nos. 120625-29, 28 January 2003.

[53] People v. Soriano, G.R. Nos. 142779-95, 29 August 2002.

[54] People v. Delos Santos, G.R. No. 137047, 15 October 2002.

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