406 Phil. 720
GONZAGA-REYES, J.:
The undersigned 4th Assistant Provincial Prosecutor of Camarines Sur upon a sworn complaint of the offended party Marites Alamani accuses EUSTAQUIO "TAQUIO" MORATA Y BIDOL of the crime of RAPE, defined and penalized under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, committed as follows:Upon arraignment, accused-appellant pleaded not guilty. During trial, the prosecution presented Victoria Tagum, a social worker of the Lingap Center, Sorsogon, Sorsogon who conducted counseling sessions with the victim and prepared the case study report; Marites, the victim herself; Dr. Salvador V. Betito, Jr. (Dr. Betito), the physician who examined the victim; and Maria Myrna Sarate, another social worker. The defense for its part presented accused-appellant himself, Salve Morata, the sister-in-law of accused-appellant and Shirley Abiog, who knows both accused-appellant and Maritess.
That during the month of April, 1997 at Barangay Antipolo, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Marites Alamani y Balimbing, an 11-year old (sic) minor, against her will and to her damage and prejudice.
ACTS CONTRARY TO LAW."[1]"INFORMATION
The undersigned 4th Assistant Provincial Prosecutor of Camarines Sur upon a sworn complaint of the offended party Marites Alamani accuses EUSTAQUIO "TAQUIO" MORATA Y BIDOL of the crime of RAPE, defined and penalized under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, committed as follows:
That on the 9th day of June, 1997 at midnight at Barangay Antipolo, Municipality of Tinambac, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Marites Alamani y Balimbing, an 11-year old (sic) minor, against her will and to her damage and prejudice.
ACTS CONTRARY TO LAW."[2]
"Sometime in April 1997, about midnight, in appellant's house, private complainant was roused from her sleep by the former who was in the act of undressing her. She was gripped with fear. Appellant ordered her to keep quiet and she did not have a choice as he gagged her by putting a handkerchief in her mouth. Her moves were also restrained as appellant held her hands and lay on top of her. Appellant then inserted his penis into private complainant's vagina, causing pain in her genitalia. He warned her not to tell anybody about what had just happened. Then, appellant left private complainant, who was so scared. (TSN, June 26, 1998, pp. 3-7). Little did she know that her harrowing experience would be repeated many times over within the next couple of months.Accused-appellant maintained that he did not rape Marites and interposed the defense of denial. On the alleged dates of the rapes, April 1997 and June 9, 1997, accused-appellant claimed that he went to sleep at 7:00 p.m. and wake up 6:00 a.m. the next day. Accused-appellant attributed to another person the rapes committed against Marites. Allegedly, it was Mariano Espartines, also a brother-in-law of Marites, who brought Marites to a grassy place and defiled her. Accused-appellant imputed ill motive on the part of Marites for filing the charges of rape against him. According to accused-appellant, he once spanked Marites after he found out that it was she who had tied a rope around his left ankle with the end of the rope tied to the post of the bed while he was asleep.
At a subsequent time, again about midnight in the house of appellant, private complainant was lying down when he approached her. He was holding an air rifle which he poked at her. Private complainant naturally got scared. After appellant undressed her and himself, he lay on top of her and attempted to insert his penis into her vagina. His sexual organ, however, touched only the outer part of her genitalia. Shortly, appellant left private complainant, crying in a corner. (TSN, June 26, 1998, pp. 8-11).
At another time, private complainant was left home with appellant and his eldest child, Joey. Emma[3] left the house early in the morning of that day to bring her younger child to the physician. Appellant again attempted to force himself on private complainant but she was able to bite his ear causing him to stop what he was doing and leave. (TSN, June 26, 1998, pp. 12-13).
There was also a time when appellant approached private complainant while she was cleaning the house. He lifted her, making her lie on the floor in a room. Both of them were wearing "shorts." Positioning himself on top of private complainant, appellant was in the course of removing her clothes, as he in fact had pushed down her "shorts" below the waistline. His dastardly act, however, was interrupted by Joey, who hit him at the buttocks with a coconut stalk. (TSN, June 26, 1998, pp. 14-17).
Appellant subjected private complainant to his vile sexual designs on other occasions, the last sexual intercourse he had against her will occurring on June 9, 1997. It was then midnight when he took the liberty of entering the bedroom of private complainant and again forced himself on her. (TSN, June 26, 1998, pp. 22-23)."[4]
"WHEREFORE, in view of the foregoing, for failure of the prosecution to prove beyond reasonable doubt the guilt of the accused in Crim. Cases Nos. RTC'98-219, 221, 222 and 223, accused Eustaquio Morata is hereby ACQUITTED of the offense charged. The prosecution having proven the guilt of the accused beyond reasonable doubt in Crim. Cases Nos. RTC'98-220 and 224, the accused Eustaquio Morata is hereby found guilty of the offense of rape. He is hereby sentenced to suffer the following penalties:In this appeal, accused-appellant anchors his prayer for an acquittal on this lone assignment of error:SO ORDERED."[5]
- In Crim. Case No. RTC'98-220, he is sentenced to suffer the penalty of Reclusion Perpetua and to indemnify the victim Marites Alamani the amount of P50,000.00;
- In Crim. Case No. RTC'98-224, he is sentenced to suffer the penalty of Relcusion Perpetua and to indemnify the victim Marites Alamani the amount of P50,000.00;
- No pronouncement as to costs.
"THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF TWO (2) COUNTS OF RAPE."[6]Accused-appellant calls attention to the pronouncement of the trial court that he was charged with six counts of rape and was being acquitted of four and convicted of only two. Accused-appellant then argues that he should have been consequently acquitted of the two other remaining charges because Marites narrated only four of the alleged rapes. The following portions of the direct testimony of Marites supposedly proves his claim:
Accused-appellant limits his arguments in this appeal for the reversal of the assailed judgment of conviction to the foregoing premise. He concludes that his acquittal should have been forthcoming considering that there is no other remaining evidence against him.
"Pros. Cu: Q: You have already told us at least 4 incidents which has (sic) a bearing in there (sic) cases. Marites Alamani, do you still have other complaints against Eustaquio Morata aside from these cases which you have already related?A: No more, sir. Pros. Cu: That would be all, your Honor. (TSN, June 26, 1998, pp. 18-19)"[7]
True, Marites affirmed on cross-examination a portion of her affidavit wherein she stated that there was no penile penetration in the rape that took place in April 1997. However, Marites confirmed on direct examination that accused-appellant slightly inserted his penis into her vagina and that she felt pain. The affirmation of Marites on cross-examination that she had made said statements in her affidavit cannot prevail over her testimony in open court detailing the consummation of this first incident of rape. Sworn statements or affidavits are generally subordinated in importance to open court declaration because the former are often executed when an affiant's mental faculties are not in such a state as to afford the affiant a fair opportunity of narrating in full the incident which has transpired.[16] More so in this case when the affiant is a child. It can be reasonably assumed that at the time Marites executed her affidavit she was not aware of the extent of the penetration; nonetheless, her straightforward testimony in court indicates that the rape passed the stage of consummation.
"PROS. CU:
The purpose for which we offer the testimony of Marites Alamani is to prove that on several occasions she was raped by herein accused Eustaquio Morata your Honor. The first incident occurred way back in the month of April, 1997; the other incident your Honor, occurred in the year 1997 also but which the witness seemed to have not a good recollection as to the specific dates when this occurred but the witness had a vivid recollection of the last incident of rape against her which might have happened sometime June 1997, your Honor. The present witness will also testify that force and intimidation attended the commission of the rape incidents your Honor. Lastly, your Honor, she will testify on all other points which are material to the main purpose for which we offer her testimony.With the permission of the Honorable Court. COURT: Proceed. PROS. CU: Do you know Eustaquio Morata, Marites Alamani? A: Yes, sir. Q: Why do you know him? A: He is my brother-in-law. Q: And do you know Eustaquio Morata's wife? A: Yes, sir. Q: Who is the wife of Eustaquio Morata? A: Ate Emma. Q: How are you related to this Ate Emma? A: She is my sister (sic) sir. Q: Do you live with your Ate Emma sometime April 1997? A: Yes, sir. Q: Presently, Marites Alamani, under whose care are you now? A: DSWD. Q: Do you know the person of Victoria Tagum? A: No, sir. Q: Do you know the Social Welfare officer who is in charge to (sic) you at the DSWD Center for Girls at Sorsogon?A: Yes, sir. Mama Vicky. Q: Do you know the real complete name of Mama Vicky? A: No, sir. Q: Marites Alamani, what is your complaint if any against Eustaquio Morata? A: He undress (sic) me sir. Q: And in what place did that happen Marites Alamani? A: At our house sir. Q: Where, exactly? A: In Antipolo. Q: Timambac, are your referring to that place? A: Yes, sir. Q: When this incident happened, was it in the morning, afternoon or in the evening? ATTY. TAYER: Objection. The question is leading. COURT: Sustained. PROS. CU:
Q: What time was it in your estimate that this incident took place? A: Midnight. Q: This took place on April 1997? ATTY. TAYER: Objection, your Honor, leading. COURT: Sustained. Q: When did this happen Marites Alamani? A: I cannot remember anymore sir. Q: What about the year, was it this year or last year? A: Last year sir, 1997. A: (sic) Tell us Miss Marites Alamani, immediately before you were undress (sic) by Eustaquio Morata on that night, what if anything were you doing?"A: I was sleeping sir. Q: So, when you were undress (sic) by Eustaquio Morata, what if anything did he tell you? A: He told me sir to keep quiete (sic) because my ate (sic) might be awakened. Q: And what if anything did you feel when you were told that way? A: I felt pain. Q: Now, Marites Alamani, when you were being undressed (sic) by Eustaquio Morata what if anything did you feel? ATTY. TAYER: Make it of record that the witness find (sic) a hard time in answering the question. A: I got scared sir. PROS. CU: Q: What if anything did Eustaquio Morata do after you were undressed already? A: He placed himself on top of me sir. Q: And when he placed himself on top of you (sic) was he still wearing his dress or not? ATTY. TAYER: Leading. COURT: Sustained. PROS. CU: Q: When Eustaquio Morata placed himself on top of you, what if anything did you do next? A: He was (sic) inserting his penis into my vagina. Q: Was he able to insert his penis into your vagina? A: Only a little sir. Q: What if anything did you feel when he has slightly penetrated his penis into your private organ? A: It is (sic) painful sir. Q: In what part is (sic) it painful? PROS. CU: I think the presence of Atty. Tayer is . . . COURT: The voice of the witness is very low, that is why Atty. Tayer is there. WITNESS: A: My vagina. PROS. CU: Q: Now, why did you not shout Marites Alamani when accused Eustaquio Morata placed himself on top of you and inserted slightly his penis into your vagina?ATTY. TAYER: Objection, there is no basis. It is only presuming that the witness did not shout, when there is no testimony that she did not shout. COURT: Lay the basis. PROS. CU: Q: When he undressed you and he placed (sic) on top of you, (sic) inserted his penis slightly into your vagina, did you shout?A: I could not shout sir (sic) because there was a hankie placed on my mouth. Q: Who placed that hankie on your mouth? A: Eustaquio Morata, sir. Q: Do you still recall how this hankie (sic) tied on your mouth? A: Yes, sir. Q: Marites Alamani, using this hankie as a medium, please demonstrate to us how this hankie (sic) placed by Eustaquio Morata in your mouth?A: The hankie was used to gag my mouth. ATTY. TAYER: Q: As remembered by this representation, the witness just placed the folded handkerchief and placed it on her mouth parallel to the lips and while the handkerchief is being handled by the hands of the witness in the opposite direction.PROS. CU: Q: Was this handkerchief tied around your mouth and jaw? ATTY. TAYER: The handkerchief was tied around his ... COURT: Witness may answer. WITNESS: A: Yes, sir. PROS. CU: Q: Who tied it? A: He, sir. Q: What is the name of this person who tied this hankie on your mouth? A: Eustaquio Morata, sir. Q: How long do you think was Eustaquio Morata on top of you (sic) inserting his penis into your vagina? A: Not very long sir. Q: And did you cry? ATTY. TAYER:
Objection, your Honor. Leading. COURT: Sustained. PROS. CU: Q: What if anything was happening to you when Eustaquio Morata undressed you, placed (sic) on top of you and inserted his penis into your vagina?A: I could not move because my hands were being held by him. PROS. CU: Q: And immediately before Eustaquio Morata left you, what if anything did he tell you? A: That if ever I told anybody about what happened to me he will kill me. Q: Having been threatened by Eustaquio Morata that if you tell what happened to you on that night, he will kill you, what if anything did you feel when he said that to you?A: I got scared sir. Q: If Eustaquio Morata is around in court can you be able to identify him? A: Yes, sir. Q: Please point at Eustaquio Morata whom you alleged undress (sic) you, placed (sic) on top of you and slightly inserted his penis into your vagina?INTERPRETER: Witness pointed to the person who when asked his name answered Eustaquio Morata."[15]
[26] See People vs. Calayca, 301 SCRA 192 (1999).
- 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.
- When the victim is under the custody of the police or military authorities.
- When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity.
- When the victim is a religious or a child below seven (7) years old.
- When the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.
- When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.
- When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.