405 Phil. 794
YNARES-SANTIAGO, J.:
That on or about the 13th day of August 1995 in Kalookan City, MM., Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and taking advantage of his superior strength being her father, by means of force, threats and intimidation employed upon the complainant LOLITA CALDONA Y PONTIVEROS, did then and there wilfully, unlawfully and feloniously lie with and have sexual intercourse with said complainant against her will and without her consent.Upon arraignment, accused, duly assisted by counsel, refused to enter a plea. The trial court thus entered a plea of not guilty in his behalf.[2] The case thereafter proceeded to trial.
Contrary to law.
WHEREFORE, judgment is rendered CONVICTING Mario Caldona of the crime of Rape, an offense defined and penalized under Art. 335 of the Revised Penal Code, as amended by R.A. 7659, and the Court sentences MARIO CALDONA to suffer the penalty of DEATH. Ordering Mario Caldona to pay the victim (Ma. Lolita) P50,000.00 as moral damages and P25,000.00 as exemplary damages.On automatic review, accused-appellant alleges that -
Mario Caldona shall be committed immediately to the National Bilibid Prisons. The Branch Clerk of Court is hereby ordered to transmit the entire record of this case to the Hon. Clerk of Court, Supreme Court for automatic review of the decision of this Court.
SO ORDERED.
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED DESPITE THE INCREDIBLE AND INCONSISTENT TESTIMONIES OF THE PROSECUTION WITNESSES.The prosecution's version of the incident is summarized in the People's Brief as follows:II
GRANTING THAT ACCUSED-APPELLANT IS GUILTY, THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH DESPITE THE FAILURE OF THE PROSECUTION TO ALLEGE IN THE INFORMATION THE QUALIFYING CIRCUMSTANCE OF THE OFFENDED PARTY'S AGE TO BE UNDER EIGHTEEN (18)YEARS.
On August 13, 1995, private complainant Ma. Lolita Caldona and her sister Ma. Cristina went to 148 B. Serrano Street to ask money from their father, appellant Mario Caldona.[3]Accused-appellant denied the charge[21] and gave a different version of what transpired. He claimed that the filing of the rape case against him was instigated by his brother-in-law and sister-in-law to keep him away from his women and also as a reprisal for his interference in his in-laws' quarrel over family inheritance.[22] More specifically, accused-appellant testified that in the morning of August 13, 1995, at around 7:00 to 7:30 a.m., he was at home in 148 Macabagdal St., Grace Park, Caloocan City with his live-in partner, Honey Bell Meniano, who was then preparing breakfast.[23] He saw his wife, Lolita, the complainant, Ma. Lolita, her siblings Ma. Teresa, Mario, Jr., Ma. Cristina and Mica pass by all dressed up.[24] He called them and asked his wife where they were going.[25] His wife approached and told him that they were going for a walk to the Cultural Center while the children were going swimming.[26] He berated his wife, telling them it was already late in the morning, but still he gave them P100.00 for their taxi fare.[27] The complainant then approached him, kissed him and asked for his permission.[28] He handed the money over and called a cab and after his family left, he went back to eat his breakfast.[29] Thereafter, he proceeded to 59 Macabagdal Street, Grace Park, Caloocan City to see his son Reynold, who was not with the group that went to the Cultural Center. He found the boy sleeping.[30] He woke up Reynold and asked him to send a telegram to his new-found flame, Virgie Labata.[31] Reynold proceeded to the Grand Central Station and sent the telegram.[32]
Appellant gave private complainant money and asked her to go to 59 B. Serrano Street, Kalookan City.[4] Private complainant proceeded to the said address.[5] After a while, appellant arrived at 59 B. Serrano Street and started undressing private complainant.[6] Thereupon, appellant sexually molested private complainant and inserted his penis into the latter's private parts.[7]
After her ravishment, private complainant proceeded to 148 Macabagdal St. where she saw her sisters.[8] Private complainant did not tell anybody about her ordeal in the hands of appellant.[9] She and her sisters went to the Cultural Center of the Philippines.[10]
Subsequently, private complainant, together with her sisters and mother went to the house of a certain "Auntie Thelma."[11] They collected their things and went to Payatas, Fairview where they stayed for a week.[12] Thereafter, they transferred to a rented house in Manggahan, Quezon City.[13]
Sometime in November 1995, private complainant, accompanied by her aunt, Paz Hontiveros went to Dr. Liza de Guzman of the Mental Hospital for consultation.[14] Private complainant told the doctor about the rape incident.[15] Later on, she was confined at the Mental Hospital for three days because she was hallucinating.[16] She could hear the voice of appellant threatening her and was imagining what the latter was doing to her.[17]
On December 14, 1995, private complainant accompanied by her aunt, Paz Hontiveros, proceeded to the National Bureau of Investigation (NBI) to file a complaint against appellant.[18] Private complainant was examined by Dr. Maximo Reyes, NBI.[19] The findings of the examination are as follows:
- No evident sign of extra-genital physical injuries noted on the body of the subject at the time of examination.
- Hymen, intact but distensible and its orifice wide (2.5 cms. In diameter) as to allow complete penetration by an average-sized, adult Filipino male organ in full erection without producing any hymenal laceration.[20]
Despite persistent efforts by defense counsel to elicit an admission that she had many suitors,[46] that she had four (4) boyfriends,[47] and that she had sex with them,[48] private complainant insisted that she was never touched by anybody except her father, who forced her to have sexual intercourse with him.[49]
ATTY. CEBALLOS:
Q Miss Caldona, you mentioned that you brought a complaint for rape against your father, when was the time you were raped?A When I was nine years old. Q How did this happen? A When he arrived home, his eyes were red. He drove away my mother and afterwards he undressed me and I asked him what he was going to do with me. He said, nothing, I will just do something.Q After your father undressed you on that particular date, what did he do to you? A He forced his private part inside my private part. Q Was he able to penetrate his private part into your private part? A He forced his penis inside my private part and I told him it was painful. Q When he forced his private part into your private part, what did you do? A I was fighting back and I refused. I was then noisy and fighting back but he placed a pillow case inside my mouth.Q And then after he placed the pillow case inside your mouth, what happened next? A He tied a wire on my back and he did what he wanted with me. Q After he was able to do what he wanted to do, what happened next? A After that I was not talking anymore. x x x x x x x x xQ After this first incident [of] you being raped by your father, was there any incident that happened? A After three days, I was then preparing food, he called me and told me to go inside the room. Q What happened next? A He told me to get a Vicks (sic) to massage his head and afterwards he undressed me and abused me again.Q On that particular incident, was your father able to penetrate his private part into your private part? A He forced his penis inside my private part.
Q And what were you doing when he was able to penetrate? A I was crying and crying.
Q Where did this happen? A Inside our house. Q Where is your house? A At 178 B. Serrano Street, Grace Park, Kal. City. Q Who was inside your house at the time? A Our workers who were then busy working on the compressors and my sisters who were there outside playing.Q What time did it happen? A It happened in the afternoon. Q Where was your mother at the time? A My mother has not returned yet to the house. Q And after this second incident, was this repeated? A It happened everyday. COURT:
Q You were then nine years old? A Yes, Your Honor. Q The first time you were abused, when was that? A I could not recall the date. Q How old are you now? A 16 years old. Q So about 7 years ago? A Yes, Your Honor.[43]
x x x x x x x x xQ Why did you go to [to] the house of your father when you were residing at 59 Macabagdal and you went to 148 Serrano?A We intended to ask money for our transportation to go to Cultural. x x x x x x x x xPROSECUTOR: Q Were you able to talk personally to your father? A Yes, sir. Q What happened?
A I asked money from him and he gave money. COURT: Q You said we, we asked money, you must be with somebody? A Yes, Your Honor. Q Who was your companion? A My sister Cristina. Q How old is this Cristina at the time? A 14. x x x x x x x x xQ After he gave you money, what happened next? A He told me to go at (sic) No. 59 B. Serrano but before proceeding at 59, he sexually abused me. Q In what particular place did he abuse you? A My father went with me. He abused me at No. 59. Q You said your father told you to go to No. 59 Serrano and that was the time that he abused you... COURT: No clarify that. x x x x x x x x xQ So there are three houses or residential places of your father. One is 148 Serrano, 59 Serrano and 59 Macabagdal?A Yes, Your Honor. Q Why did your father tell you to go to 59 Serrano? A He would tell me something. COURT: Go ahead. PROSECUTOR: Q What did you say? A I obeyed him. Q What time did you arrive there? A It was in the morning. I can no longer remember the exact date. Q What happened when you arrived there? A He undressed me. x x x x x x x x xQ When your father told you to go to 59 Serrano, did it occur to you [that] there was no reason why you should go there?A I understood what he meant by that. Q What was your understanding while you were being sent at 59? A That he would abused (sic) me again. COURT: Go ahead.
PROSECUTOR: Q Now when you arrived at 59, you were undressed by your father. How did he undress you? A He removed the buttons of my dress.[44] x x x x x x x x xATTY. CEBALLOS: Q Miss Caldona, in your statement a while ago, you said that when you were at No. 59 Serrano St., your father undressed you. Now, you said that he was unbuttoning his shirt. After unbuttoning his shirt, what happened next?A He removed my shorts and kissed me on my lips, neck and breast. Q While he was kissing you on your lips, neck and breast, what were you doing? A None sir, I was just crying. Q Did you say anything to your father? A Yes sir, there was. Q What did you tell your father? A I told my father these words "Sawang-sawa na ako sa iyong panggaganyan." Q When you said that to your father, what did he say? A "Masarap di ba ang ginagawa ko?" Q And what did you say when your father said that? A I said, "Hindi ako nasasarapan sa ginagawa mo." Q What did your father say after that, if you can recall? A He told me "Masarap di ba, masarap di ba?" and he boxed me and I cried, so I just said "Oo masarap ho" so he will not box me again.Q What did your father say after saying those words? A He did not box me because I said "masarap." COURT:
When he said "masarap di ba ang ginagawa ko" to what does he refer? A He was referring to what he was doing to me. COURT: What was he doing to you? A He was always raping me many times, Your Honor. COURT: What do you mean by "raping you often"? A What he was doing to my mother, he was doing also to me. COURT:
The Court is not clear on that - when he said "di ba masarap ang ginagawa ko", at the time he uttered those words what was he doing to you?A He was inserting his private parts inside my vagina, Your Honor. ATTY. CEBALLOS: Q Was he able to put his penis into your vagina? A Yes, sir. Q And after that, what did your father do? A He was pumping and pumping sir. Q And what were you doing when he was pumping and pumping? A I was then crying and crying. Q In what position was your father [when he] pumped you? A He was on top of me, sir. Q Where [were] you? On the floor or on the bed? A We were on the floor , sir. Q After he was pumping you, what happened next? A After a while there was a white discharge that came out from his private parts. Q And what did you do when a white discharge came out of his private parts? A So, I stood up. Q What did you do after that? A I put on my clothing. Q What was your father doing while you were putting on your clothes? A He was wiping his private parts, sir. COURT: Why must he wipe his private parts? Did he produce oil that makes his penis sticky? A Because something came out from his penis, Your Honor. COURT: You said that when you received the money from your father, you were with your sister Cristina, and your father told you to go to No. 59 Serrano Street, and Cristina left the house of Mama Annabel in order to eat, is that correct?A Yes, Your Honor. COURT: And you said further that you knew your father will be following you and he will sexually abuse you at No. 59 Serrano, is that not correct?A Yes, Your Honor, I knew. COURT: That he will abuse you there? x x x x x x x x xA I knew my father would follow me to No. 59 Serrano Street because if I will not obey him, he will beat me up again and threaten me with a samurai.ATTY. CEBALLOS: What do you mean by he will threaten you with a samurai? A It is a big long knife which is used to Mang Ramon, sir. Q Have you ever seen that samurai before? A It's been in his custody for a long time and he usually sharpens it. x x x x x x x x xATTY. CEBALLOS: After you saw your father wiping his penis, what did you do? A I put on my dress, sir. Q And after putting on your dress, where did you go? A When I was dressed up already, I left the house ahead of my father and then he followed and locked the door, sir.COURT: You said that since you were 9 years old, you were sexually abused by your father up to August 1993 (sic), is that correct?A Yes, Your Honor. COURT: And that sexual abuse is that your father inserted his penis into your vagina, is that correct? A Yes, your Honor. COURT:
Did you have other experiences other than your father? A None, your Honor. COURT: You said your father did to you what he was doing to your mother? You mean to say you were watching your father and mother do these things?A Because there were occasions when my father would use my mother but my mother refused and my father would get angry.COURT: You mean, they had sexual intercourse in your presence? A It happened many times, Your Honor. COURT: Was it done purposely for you to see them? A Yes, your Honor. x x x x x x x x x
ATTY. CEBALLOS: Did you tell your mother about what happened at No. 59 Serrano? A I did not tell her sir. Q Why did you not tell? A Because I do not want her to go crazy, sir. Q After August 13, did you again see your father? A No more sir. x x x x x x x x xCOURT: You said that your father and mother had sexual intercourse in your presence. Did your father tell you to watch while they were having sexual intercourse?A No, Your Honor, he told that to my mother. Q What did your father tell your mother? A Tingnan mo Lita, manood ka, di ba gusto mo? Masyado ka kasing tsismosa. Q While he was doing that what did your father do? A He was trying to touch my breast and to remove my dress. Q What was the reply of your mother? A My mother did not say anything. She just cried, Your Honor. PROSECUTOR MANANQUIL: I would like to make on record that while [the] witness is answering the question she was crying. COURT: Why must your father have to tell your mother about that? Why must he utter those words? A Because my father does not want my mother to interfere with what he was doing to the three of us, Your Honor.Q You said that your father and mother, in several occasions had sexual intercourse in your presence, that is correct is it not?A Yes, Your Honor. Q Was it whose idea (sic) that you must be present during the time they had sexual intercourse? A My father's idea, Your Honor. Q How did he manifest that you should be there? A Because one time, when my father came home and tried to have sexual intercourse with my mother but my mother said I should go into our room but my father prevented my mother telling me and said "pabayaan mo siya."[45]
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:More particularly, the trial court imposed the penalty of death after taking into consideration the age of Ma. Lolita who was then fifteen (15) years and eight (8) months old[57] and the fact that accused-appellant is her father. However, while the qualifying circumstance of relationship has been alleged in the Information, it is devoid of any averment on private complainant's minority. Since one of the twin requirements mentioned, namely, minority, was not alleged in the Information, accused-appellant can neither be convicted for qualified rape nor could the death penalty be meted upon him because to do so would be to deprive him of the right to be informed of the nature and cause of the accusation against him.
- 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.