444 Phil. 571
YNARES-SANTIAGO, J.:
That on or about the 19th day of August 1997 in Caloocan City, Metro Manila, Philippines and within the jurisdiction of the Honorable Court, the above-named accused, with lewd design and by means of force and intimidation and taking advantage of the innocence and minority of one AAA, a minor of 6 years old, did then and there willfully, unlawfully and feloniously lie and have carnal knowledge with said AAA, against her will and without her consent.On November 9, 1998, accused-appellant pleaded not guilty.[3] Thereafter, trial on the merits followed.
Contrary to law.[2]
GENERAL AND EXTRAGENITAL:Testifying in his own behalf, accused-appellant denied the accusation against him and claimed that Violeta filed the rape case against him because she was influenced by her sister-in-law who filed a case for acts of lasciviousness against him. He narrated that he lived with the family of AAA and that she and her 2 other sisters were close to him. At around 2:00 in the afternoon of August 19, 1997, when he went upstairs to sleep, the victim and her sisters followed and lay beside him. Later, the three children went downstairs. After some time, AAA came back and lay on top of him with her face pressed to his chest. He heard a noise from the stairs, so he got up and lay AAA on her back. It turned out that the noise came from Violeta, who looked angrily at him. Violeta must have thought that he abused her daughter because she saw him in the act of laying the victim on her back.[9]
Fairly developed, fairly nourished and coherent female child. Breasts are underdeveloped. Abdomen is flat and soft.
GENITAL:
There is absence of pubic hair. Labia majora are full, convex and coaptated with pinkish brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy-type hymen with deep healed laceration at 5 o’clock position. External vaginal orifice admits tip of the examiner’s smallest finger.
CONCLUSION:
Subject is in non-virgin state physically. There are no external signs of application of any form of violence.[8]
WHEREFORE, in view of all the foregoing premises, the accused Nemesio Bon is found guilty beyond reasonable doubt and is hereby sentenced to death by lethal injection.In view of the imposition of the death penalty, the case is now before us on automatic review, pursuant to Article 47 of the Revised Penal Code, as amended.
The accused is also ordered to pay AAA the amount of P50,000.00 as moral damages and P75,000.00 as civil indemnity. There shall be no subsidiary imprisonment in case of insolvency.
Further, he shall suffer all the accessory penalties attached to the penalty provided for by law.
The City Jail Warden of Caloocan City is hereby ordered to transfer the accused Nemesio Bon to the National Bilibid Prisons, Muntinlupa City for the service of his sentence.
Let the records of this case be forwarded to the Supreme Court for automatic review.
SO ORDERED.[10]
It is therefore clear from the foregoing testimony that accused-appellant did not have sexual intercourse or sexual bodily connections with the victim. Absent direct proof of carnal knowledge, accused-appellant cannot be convicted of rape.
Q. What did your uncle [do] to you? A. He kissed my vagina. Q. And after your uncle kissed your vagina, what did he do next if any? A. He was pulling down my panty. Q. What else did he do to your vagina? A. SINUNDOT PO. x x x x x x x x x Q. You said your uncle “SINUNDOT” your vagina, what did he use when he SINUNDOT your vagina? A. Hands, sir. Q. When your uncle “SINUNDOT” your vagina with his finger, how did you feel? A. MASAKIT PO. x x x x x x x x x Q. You said that your uncle kissed your vagina, how did he kiss your vagina? A. He licked my vagina. “DINILAAN PO”.[15]
Similarly, in People v. Contreras,[21] all that the prosecution was able to establish was the accused “sitting on the floor, his fly open, and his sex organ out, while [the victim] was sitting on his lap, facing him, her legs spread apart, and without any underwear on.” In the said case, we ruled that since there was no direct evidence showing that the accused was able to insert his organ into the victim’s vagina or that his penis made contact with the labia, he cannot be convicted of rape.
Q. And what you saw precisely was that they were playing on August 19, 1997, when you went upstairs, is that [what] you imply? A. No, sir. Q. But you admit that Mr. Bon, your brother, was fully dressed? A. Yes, sir. Q. Also, his pants was on (sic)? A. Yes, sir. Q. And you also saw your daughter was fully dressed or clothed? A. Yes, sir. Q. Was she still in school uniform? A. No more, sir. Q. What was she wearing at the down portion (sic)? A. AAA was wearing sando and shorts, sir. Q. When you said AAA was underneath your brother Nemesio, you did not see her face? A. I saw her face, sir. Q. What [was the] precise position of the body of the accused when for the first time you saw him on top of her? A. He was lying down on top of my daughter, sir. Q. When you saw first the lower portion of his body, both feet (sic)? A. I saw his whole body, sir. Q. You said the whole body, you also noticed where his hand [was]? A. (Witness demonstrating that both hands of Nemesio was spread.) Q. That is precisely what you saw and immediately, he stood up and went down, is that what you mean? A. He suddenly stood up and he did not know what to do. Q. Did [he] try to explain what he was doing? A. I did not ask him because I got hurt, sir.[20]
Judgment in case of variance between allegation and proof. – When there is variance between the offense charged in the complaint or information, and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in that which is proved.The elements of the crime of acts lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done: (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex.
“[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.”In the case at bar, all the elements of the offense were established, making accused-appellant liable for the crime of acts of lasciviousness, as defined and penalized under Article 366 of the Revised Penal Code in relation to R.A. No. 7610 or the Child Abuse Law.[25] As evidenced by her birth certificate,[26] the victim was 6 years of age at the time of the commission of the offense on August 19, 1997, having been born on November 3, 1991. Accused-appellant’s acts of removing the victim’s underwear, inserting his finger into and licking her vagina, and lying on top of her, constitute lascivious conduct intended to arouse or gratify his sexual desire. Indeed, the victim’s testimony that accused-appellant performed the said lecherous acts should be given full faith and credence. In cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused. Such is the testimony of victims who are young, immature, and have no motive to falsely testify against the accused, as in the instant case.[27]
Child Prostitution and other Sexual Abuse. – Children, whether male or female, who for money or profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be children exploited in prostitution and other sexual abuse.Considering that the victim in the instant case was only 6 years old[28] at the time the crime was committed, accused-appellant should be meted the penalty of reclusion temporal in its medium period. In the absence of any mitigating or aggravating circumstance, the penalty shall be imposed in its medium period, which has a range of fifteen (15) years, six (6) months and twenty (20) days to sixteen (16) years, five (5) months and nine (9) days.[29] Notwithstanding that R.A. No. 7610 is a special law, accused-appellant may enjoy the benefits of the Indeterminate Sentence Law.[30] Thus, he shall be entitled to a minimum term to be taken within the range of the penalty next lower to that prescribed by the Code. The penalty next lower in degree is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years. Hence, for the crime of acts of lasciviousness, accused-appellant shall suffer the indeterminate sentence of eight (8) years and one (1) day of prision mayor, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum.[31]
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
x x x x x x x x x
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x . (Emphasis supplied)