Before this Court for automatic review^[1] is the Joint Decision^[2] of Branch 163 of the Regional Trial Court of Pasig City, in Criminal Cases Nos. 116859-H, 116860-H and 116861 promulgated on July 13, 2000. In Criminal Case No. 116859-H, the lower court sentenced appellant Rodelio Aquino y Roda to suffer the death penalty.

The prosecutor charged appellant with two (2) counts of Rape under Article 266-A of the Revised Penal Code, as amended by R.A. No. 8353, committed against appellant’s nieces, 5-year old Charlaine Bautista and 4-year old Charmela Bautista. The prosecutor also charged appellant with one (1) count of Acts of Lasciviousness under Article 336 of the Revised Penal Code, as amended by R.A. No. 7610, committed against appellant's other niece, 6-year old Charmaine Bautista. The Informations read as follows:

Criminal Case No. 116859-H

“Sometime in October, 1999 in Taguig, Metro Manila and within the jurisdiction of this Honorable Court, the accused, being the uncle of the 5-year old Charlaine Bautista, with lewd designs, did then and there willfully, unlawfully and feloniously have sexual  intercourse with said Charlaine Bautista, by then and there touching her vagina and inserting his penis into her vagina, against the latter’s will and consent.

Contrary to law.”

Criminal Case No. 116860-H

“On or about or prior to October 12, 1999 in Taguig, Metro Manila and within the jurisdiction of this Honorable Court, the accused, being the uncle of the 4-year old Charmela Bautista, with lewd designs, did then and there willfully, unlawfully and feloniously commit[ted] sexual assault upon the person of said Charmela Bautista, by then and there touching her vagina and inserting one of fingers (sic) into her vagina, against the latter’s will and consent.

Contrary to law.”

Criminal Case No. 116861

"On or about or prior to October 12 1999 in Taguig, Metro Manila and within the jurisdiction of this Honorable Court, the accused, being the uncle of the 6-year old Charmaine Bautista, with lewd designs, did then and there willfully, unlawfully and feloniously commit acts of lasciviousness upon the person of said Charmaine Bautista, by then and there touching her vagina, against the latter’s will and consent.

Contrary to law.”

On December 7, 1999, the appellant, assisted by counsel, entered a plea of not guilty to each of the Informations. After pre-trial, a joint trial on the merits ensued.

Winnie Bautista is a 28-year old, single mother, residing at No. 58-C Lower Bicutan, Taguig, Metro Manila. She has three young daughters: Charmaine who is (6) years old, Charlaine, five (5) years old, and Charmela, four (4) years old.  Winnie is estranged from her husband. The children use the surname Bautista, Winnie’s maiden name, instead of Congollo, their father’s surname, although their birth certificates bear the surname of their father. Winnie testified that appellant Rodelio Aquino is her brother. She explained during trial that Aquino is their biological father’s surname while Bautista is their stepfather’s surname, which she as been using since she was a child.^[3]

Appellant’s house is situated about one meter away from the complainants’ house.^[4] The children would often go to their uncle’s house and spend time with him while their mother was at work. This explains why the children developed a certain fondness for their uncle and called him “daddy” since he had no children of his own.^[5]

Cherry Lauria, a friend of Winnie, stayed with the latter’s family for a few days and was tasked to look after the children while their mother was at work. It was during Cherry’s stay that she learned of the children’s unfortunate experience with “daddy”.^[6]

On October 12, 1999, at around 6 p.m., while waiting for the show time of a television soap opera, Cherry told the children to take their dinner first before watching television. Charmela, the youngest of the three, did not want to eat and instead told Cherry that she wanted to go to “daddy”. Charlaine suddenly blurted out to Charmela not to go to appellant’s house because he might do to her what he did to Charlaine - rape her. Shocked by what she heard from Charlaine, Cherry turned off the TV and asked the children one by one what happened.^[7]

It turned out that appellant had been abusing his nieces.

Sometime in October of 1999, Charlaine, then about 5 years old, made one of her usual visits to appellant’s house. No other person was then present at the house except appellant and Charlaine. Appellant handed to Charlaine a bottle of baby oil and asked her to put some on his penis, a request which she innocently and obediently followed. Appellant then applied some oil on the vagina of Charlaine and thereafter inserted his oily penis into Charlaine’s vagina.^[8]

Charmaine and Charmela likewise related to Cherry that appellant had fondled their genitals when they went to his house.^[9]

The children begged Cherry not to tell their mother and grandmother about the incident because appellant had threatened to kill them.^[10]

The following day, Cherry reported the children’s plight to their mother.

Winnie reported the matter to the Taguig Police Station as well as to the Department of Social Welfare and Development.^[11] The Taguig Police then requested PNP Crime Laboratory Service at Camp Crame, Quezon City, to conduct a Physical examination on Charlaine, Charmaine, and Charmela to determine if they were victims of sexual abuse.^[12]

On October 14, 1999, Dr. Emmanuel Reyes of the PNP Crime Laboratory examined the children. He found the presence of a healing laceration at a 5 o’clock position on Charlaine’s hymen. While he found both Charmaine and Charmela in a virgin state physically, he noted that their fourchettes^[13] were congested. Dr. Reyes said that the most likely explanation for this condition was that their genitals had been manipulated.^[14]

Appellant asserted the defense of alibi in denying the charges against him. On October 12, 1999, the day of the alleged incident, accused claimed that he was buying silver at the garbage dumpsite of Uniden, located at Lower Bicutan, Taguig, Metro Manila. Accused stressed that he usually stays at the dumpsite from 6 a.m. until the afternoon. The accused surmised that his refusal to loan P5,000.00 to his sister Winnie might have provoked the latter into falsely accusing him.^[15]

The trial court, relying on the credibility of the prosecution witnesses and the personal testimonies of the victims themselves, found appellant guilty beyond reasonable doubt of the charges against him. It held, “The three kids, despite their tender age, said in a direct, clear, straightforward and spontaneous manner that they were violated by the accused.”^[16] The trial court found appellant guilty of qualified rape and imposed upon him the penalty of death in Criminal Case No. 116859-H. The trial court also found appellant guilty of acts of lasciviousness in Criminal Cases Nos. 116860-H and 116861. The dispositive portion^[17] of the trial court’s decision reads:

“WHEREFORE:

1. In Criminal Case No. 116859-H, this Court finds accused Rodelio Aquino y Roda GUILTY beyond reasonable doubt of Rape qualified by minority of the victim and her relationship with the accused, defined under Article 266-I-A and penalized under Art. 266-B of the Revised Penal Code and hereby imposes upon him the penalty of DEATH. Accused is further ordered to indemnify Charlaine Bautista for P50,000.00 as indemnity.
   
   
2. In Criminal Case No. 116860-H, the Court likewise finds accused, Rodelio Aquino y Roda, GUILTY beyond reasonable doubt of the offense of Acts of Lasciviousness only defined under Article 365^[18] of the Revised Penal Code but is penalized under Sec. 5 (h), Article III of R.A. No. 7610, as amended. Accused is hereby sentenced, there being no mitigating or aggravating circumstances, to an indeterminate penalty ranging from 14 years, 8 months and 1 day of reclusion temporal as minimum, to 16 years, also of reclusion temporal, as maximum.
   
   
3. In Criminal Case No. 116861, this Court finds accused Rodelio Aquino y Roda also GUILTY beyond reasonable doubt of Acts of Lasciviousness defined and penalized under Article 336 of the Revised Penal Code and Sec. 5 (b), Article III of R.A. No. 7610, as amended. Accused is hereby sentenced, there being no mitigating nor aggravating circumstances, to an indeterminate penalty ranging from 14 years, 8 months and 1 day of reclusion temporal, as minimum, to 16 years, also of reclusion temporal, as maximum.
   
   With costs against the accused in all these cases.
   
   SO ORDERED.”

Hence, this automatic review.

Appellant made the following assignment of errors:

“I.

THE COURT A QUO ERRED IN GIVING UNDUE CREDENCE TO THE TESTIMONIES OF THE COMPLAINING WITNESSES DESPITE THE CLEAR INCONSISTENCIES IN THEIR NARRATION OF THE ALLEGED INCIDENT AND THE EVIDENCE PRESENTED.

II.

THE COURT A QUO ERRED IN FINDING THE ACCUSED GUILTY FOR THE COMMISSION OF THE ALLEGED OFFENSES WHEN THE EVIDENCE ADDUCED TENDS TO PROVE OTHERWISE.”^[19]

At the outset, we find that we cannot, for lack of jurisdiction, entertain the appeals in Criminal Cases Nos. 116860-H and 116861 where the trial court sentenced appellant to reclusion temporal in each of these cases. Appellant merely relied on the automatic appeal of Criminal Case No. 116859 wherein the death penalty was imposed. However, this Court has held that an automatic review of the death penalty imposed by the trial court includes an appeal of the less serious crimes (not punished by death) only if the lesser crimes are committed on the same occasion or arise out of the same occurrence as that which gives rise to the more serious offense.^[20] Section 17 (1) of R.A. 296, as amended (The Judiciary Act of 1948), provides that-

”SECTION 17. The Supreme Court shall have exclusive jurisdiction to review, revise, reverse, modify or affirm on appeal, as the law or rules of  court may provide, final judgments and decrees of inferior courts as herein  provided, in--

(1)

All criminal cases involving offenses for which the penalty imposed is death or life imprisonment; and those involving other offenses which, although not so punished, arose out of the same occurrence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense, regardless of whether the accused are charged as principals, accomplices or accessories or whether they have been tried jointly or separately.”

What we have here is a consolidation of three cases brought against the appellant by his nieces. The two counts of acts of lasciviousness were not committed on the same occasion and did not arise out of the same occurrence as that which gave rise to the crime of rape. Thus, this Court has no jurisdiction to review the decision of the trial court on the two counts of acts of lasciviousness jointly with the automatic review of crime of qualified rape for which the death penalty was imposed.^[21] Clearly, for Section 17 (1) of R.A. No. 296 to apply, the lesser offenses must be committed on the same occasion or must arise out of the same occurrence as that the graver offense which merited the death penalty. The Informations for three cases merely state that these offenses were committed on or about October 1999 in Taguig where the appellant and complainants’ houses were located. Nothing in the record even remotely suggests that appellant abused all three children on the same occasion. In fact, Charlaine even tried to warn Charmela about her unfortunate experience not knowing that their uncle had already molested her sisters on separate occasions. Thus, the three offenses were committed during the same period in October but on different dates. For this reason, appellant should have filed separate notices of appeal for the two counts of acts of lasciviousness.

In People vs. Alay-ay,^[22] this Court held that the appeal from a judgment rendered by the Regional Trial Court in its original jurisdiction imposing a penalty other than reclusion perpetua or death must be taken to the Court of Appeals by filing of a notice of appeal with the trial court and by serving a copy thereof on the adverse party. Since appellant did not appeal the decision of the Regional Trial Court in Criminal Cases Nos. 116860-H and 116861 to the Court of Appeals, the decision became final and executory after the lapse of the 15-day period for perfecting an appeal. With this result, we now limit our review to Criminal Case No. 116859-H for qualified rape where the trial court imposed the death penalty.

Appellant faults the trial court for giving credence to the testimony of Charlaine despite the fact that her testimony was allegedly replete with inconsistencies.

Appellant argues that Charlaine’s testimony was a mere product of an orchestrated coaching initiated by her mother and the prosecutor. To stress his point, appellant directs us to Charlaine’s testimony during cross-examination where she said that appellant did not really insert his penis into her vagina but merely asked her to apply baby oil on it. When asked whether the prosecutor instructed her to say that there was penetration, Charlaine answered positively. Thus, appellant concludes that Charlaine was not really raped.

We do not agree.

Charlaine’s testimony during the entire trial clearly shows that appellant indeed raped her. Her convincing account of how appellant asked her to put baby oil on his penis, and how he applied the same on her vagina, shows the lecherous intent of her uncle to rape her. It was not logical for appellant to stop after he had applied baby oil on Charlaine’s vagina. The logical implication would be that the baby oil was a “lubricant” to facilitate the penetration of appellant’s penis into Charlaine’s vagina. True enough, Charlaine narrated in court that after appellant applied baby oil on her vagina, he proceeded to insert his penis into her private organ.

“DIRECT Examination:
FISCAL:
	Mayroon ka bang natatandaang ginawang masama sa iyo si Daddy?
INTERPRETER:
	Witness shook her head by answering yes (sic).
FISCAL:
	Ano iyong masamang ginawa sa iyo ni Daddy?
A.	Nagpalagay po siya ng langis sa titi.
Q.	Kanino niya sinabi iyon?
A.	Sa akin po.
Q.	So, nung sinabi sa iyo ni Daddy Rodelio, lagyan mo ng langis ang titi ko, anong ginawa mo?
A.	Nilagyan ko po.
Q.	Pagkatapos mong lagyan ng langis, ano palang langis ang nilagay mo?
A.	Baby oil.
Q.	Nung nilagyan mo ng langis iyong titi ni Daddy, anong ginawa ni Daddy pagkatapos?
A.	Iyong pekpek ko nilagyan niya ng langis.
Q.	Pagkatapos ano na ang nangyari nung nilagyan ng langis iyong pekpek mo?
A.	Nagsumbong po ako kay Ate Cherry nung gabi po.
	xxx
FISCAL:
	Nung nagpalagay si Daddy ng langis dun sa titi niya tapos nilagyan ni Daddy ng langis iyong pekpek mo, anong ginawa ni Daddy sa titi niya?
A.	Pinasok niya po sa pekpek ko.
Q.	Pagkatapos noon anong nangyari?
A.	Nagsumbong po ako kay Ate Cherry.
Q.	Nasaktan ka ba noon?
INTERPRETER:
	Witness nodded her head by answering yes (sic).”[23]

Appellant’s argument that Charlaine retracted her statement on cross-examination, saying that there was no “penetration,” is rendered illusory by Charlaine’s own clarification on re-direct examination that appellant truly inserted his penis into her vagina.

“RE-DIRECT Examination:
FISCAL:
Q.	Hindi ipinasok ni Daddy iyong titi niya sa pepe mo?
A.	Pinasok po.
Q.	Bakit kanina sabi mo kay Danny hindi ipinasok? Tinanong ka niya, di ba sabi niya hindi ba ipinasok iyong titi, sabi mo Oo. Alin ang totoo, ipinasok o hindi?
A.	Pinasok.”[24]

The alleged lapses on Charlaine’s testimony serve to strengthen rather than weaken her credibility.^[25] This is particularly true where, as in this case, the rape victim is only five (5) years of age. In the case of People vs. Baygar,^[26] this Court gave full credence to the testimony of a five-year old minor who was raped, thus:

“The victim, Joanna, was only five years old at the time of the rape. At such a tender age, she could not be expected to weave with uncanny recollection such a complicated tale as the sexual assault that Lito unconscionably perpetrated on her. Even on cross-examination, Joanna’s candor and honesty were evident; her language simple and spontaneous, consistent of and befitting someone her age testifying to such a horrible experience.”

It did not help either that appellant’s counsel was obviously trying to mislead Charlaine into retracting her testimony. However, this notwithstanding, we uphold the trial court in giving full credence to Charlaine’s original statement and her confirmation on re-direct examination that appellant indeed raped her. It is improbable for a girl of tender age like Charlaine, not exposed to the ways of the world, to impute a crime as serious as rape to her own uncle, if it were not true.^[27]

Moreover, the medical findings of Dr. Emmanuel Reyes (“Dr. Reyes” for brevity), medico-legal officer of PNP Crame, support the testimony of Charlaine. Medico Legal Report No. M-2616-99 on Charlaine reveals the presence of a “deep healing laceration at a 5 o’clock position and findings compatible with recent loss of physical virginity.”^[28] Dr. Reyes explained in court that the deep healing laceration could have been caused by the insertion of a hard blunt object similar to an erect penis penetrating the vagina during a sexual intercourse.

“Q.	With respect to your findings as to the hymen there is a presence of a deep healing laceration at 5:00 o’clock position, what do you mean by deep healing laceration?
A.	By healing means a duration any day within a four (4) day period before the time of my examination. And by deep means that it extended beyond one half of the width of the hymen.
Q.	What would have caused the deep healing laceration?
A.	It could have been caused by the insertion of a hard blunt object similar to an erectment (sic) penis as in the process of sexual intercourse
Q.	The deep healing laceration could have been caused by an insertion of a penis right?
A.	Yes, ma’am.”[29]

Thus, Charlaine’s positive testimony, corroborated by Dr. Reyes’ medical findings, suffices to support a conviction against appellant.^[30]

Appellant further contends that the statement in the medico-legal report, which says that Charlaine bore “no external signs of recent application of any form of physical trauma,”^[31] negates the fact of sexual abuse.

Admittedly, there was no sign of any physical trauma on Charlaine. This could be attributed to the fact that there was no resistance on her part. Nevertheless, such fact does not exculpate appellant from his beastly act. Charlaine grew up without her real father and she turned to her uncle for paternal guidance. She even calls appellant “daddy”.^[32] Thus, it cannot be denied that appellant exercised a great amount of influence and authority over Charlaine. We have held that resistance is immaterial in a rape committed by an uncle against his own niece, since the uncle’s moral ascendancy and influence over his niece sufficiently take the place of violence or intimidation.^[33] Even intimidation leaves no traces of struggle which could indicate that the victim fought off her attacker.^[34]

The absence of external signs of physical trauma does not negate the fact of sexual abuse. Jurisprudence has shown that the absence of any external sign of physical injury does not necessarily negate the occurrence of rape, proof of injury not being an essential element of the crime.^[35] Notwithstanding this, however, we hold that the laceration in Charlaine’s hymen confirms the fact of sexual abuse. We have held that lacerations, whether healed or fresh, are the best physical evidence of forcible defloration.^[36]

Appellant, moreover, asserts that granting that his penis touched Charlaine’s vagina, it does not satisfy the “penetration” required under existing jurisprudence. Appellant’s main argument relies on the testimony of the child-victim that she neither felt pain, nor cried, or saw blood on her underwear, at the time appellant raped her. According to appellant, it was incredible that none of these events transpired, considering that Charlaine was a mere five-year (5) old and appellant was an adult. Appellant argues that a penetration of that sort would have provoked those reactions.

We do not agree. The “penetration” which ensued in this case fulfills the requirement under existing jurisprudence. The case of People vs. Campuhan,^[37] cited by the appellant, provides the criterion in determining whether there was penetration sufficient to warrant a rape conviction. This case states, “There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape.”^[38]

We reiterate that Charlaine manifested in the lower court that appellant inserted his penis into her vagina. To borrow the words of Charlaine, “pinasok niya po sa pekpek ko.”^[39] This categorical statement is sufficient to support the conclusion that there was penetration. This testimony is even buttressed by physical evidence since the medical finding on Charlaine showed that she suffered a recent loss of physical virginity. Add this to the fact that Charlaine’s hymen was lacerated. It would have been improbable for Charlaine’s hymen to be lacerated if appellant’s penis merely stroked the external surface, or mons pubis, of her vagina.

Dr. Reyes explained that the laceration could have been caused by the insertion of a hard blunt object similar to an erect penis, or even a smaller sized hard blunt object provided there was a “more extensive manipulation.”^[40] Thus, the fact that there has to be an extensive manipulation by a blunt object in order to produce the kind of laceration inflicted on Charlaine’s vagina rules out the suggestion that appellant’s penis merely grazed the external surface of Charlaine’s private organ.

Furthermore, appellant’s contention that Charlaine’s reaction during the sexual abuse was atypical of a victim of rape deserves no credit. We have repeatedly held that different people react differently to a given type of situation. There is no standard form of human behavioral response when one is confronted with a strange, mysterious, startling or frightful experience, such as when the crime of rape is perpetrated by a person with moral ascendancy over the victim who is a child of tender age.^[41] In the case of People vs. Gajo,^[42] this Court held that-

“The defense capitalizes on the victims admission that she did not cry at all when she was being raped, which is contrary to human nature. But persons react differently when confronted with situations like this one. One cannot expect a child of five (5) years to act the same way a ten (10)-year old or an older woman would. Crying is almost always brought about by the horrifying experience a woman has undergone and the shame and scandal that she has to go through after the dastardly act has been committed. Not so in the case of a five (5)-year old who has not fathomed the ways of man. If she did not cry while she was being raped, it could be because she was afraid of what was being done to her. Fear would oftentimes overwhelm the victim or stupefy her into inaction. This kind of apprehension comes to one when somebody older and close to her does something she does not comprehend but she just keeps quiet because the other person might get mad.”

This Court also had several occasions to accord credence to a child-victim’s testimony that she was raped even without a showing that she felt pain or saw blood during the sexual act, for we have held that pain or vaginal bleeding is not an element of rape.^[43] However, it was not correct for appellant to say that Charlaine did not feel pain during the sexual abuse. Charlaine told the judge in court that she felt pain when appellant inserted his penis into her vagina.^[44] It was possible, however, that the penetration was not extremely painful, as may have been expected, considering that baby oil lubricated their genitalias before appellant inserted his penis into Charlaine’s vagina. People differ on the degree of pain that they could bear. It is not proper to judge the actions of children who have undergone traumatic experiences by the norms expected under the circumstances from mature persons.^[45] The range of emotions shown by rape victims is yet to be captured even by the calculus. It is thus unrealistic to expect uniform reactions from rape victims.

Finally, for his part, appellant can only offer the alibi that he was at the garbage dumpsite in Taguig, from 6:00 a.m. to sometime in the afternoon, at the time of the incident.^[46] Even granting that he was indeed at that place, at that time, it still does not rule out the possibility that he committed the sexual abuse on Charlaine since he could have done it in the evening when he went home from work. The Information shows the time of the commission of the crime to be “sometime in October 1999” without giving the exact day of commission. Considering the many occasions where Charlaine went to appellant’s house, the rape could have been committed during any of those occasions. Even appellant himself testified that his house is only one (1) meter away from the house of his niece.^[47]

Appellant attributes the charge against him to his refusal to lend P5,000.00 to his sister, the mother of Charlaine.

Again, we are not convinced. Not a few accused in rape cases have attributed similar motives to those who brought the charges against them.^[48] However, courts are seldom, if at all, convinced that a mother would stoop so low as to subject her daughter to physical hardship and shame concomitant to a rape prosecution just to assuage her own hurt feelings.^[49] No amount of money is worth letting one’s daughter undergo all the anguish and shame of a rape trial, not for the measly sum of P5,000.00.

The Court therefore finds that the trial court did not err in finding appellant guilty beyond reasonable doubt of the crime of rape and sentencing him to death.

To warrant the imposition of the supreme penalty of death in qualified rape under Article 266-B (1) of the Revised Penal Code,^[50] the concurrence of the minority the victim and her relationship to the offender must be specifically alleged and proved with equal certainty as the crime itself.

In the instant case, the Information alleges that the child-victim was a five (5)-year old minor and appellant was the child-victim’s uncle. The prosecution presented Charlaine’s birth certificate^[51] to prove her age. This undisputed circumstance, standing alone, qualifies the rape. Under Article 266-B (5) of the Revised Penal Code, the death penalty is mandated in rape cases “when the victim is a child below seven (7) years old” The qualifying circumstance of relationship was also undisputedly proven by the prosecution. The child-victim’s mother, Winnie Bautista, testified in court that appellant is her brother, making appellant a blood relative of the victim within the third civil degree. Moreover, appellant categorically admitted during trial that the child-victim is his niece.^[52]

With regard to the civil liability of appellant, the indemnity of P50,000.00 awarded by the lower court should be increased to P75,000.00, in line with recent case law.^[53] The amount of P50,000.00 as moral damages is also awarded, without need for pleading or proof of the basis thereof.^[54] We have also held that the presence of an aggravating circumstance, whether ordinary or qualifying, entitles the offended party to an award of exemplary damages, hence, the amount of P25,000.00.^[55]

WHEREFORE, the ruling of the Regional Trial Court of Pasig City, Branch 163 in Criminal Case No. 116859-H, finding the accused Rodelio Aquino y Roda GUILTY beyond reasonable doubt of Rape qualified by the minority of the victim and his relationship with the complainant, and imposing the penalty of DEATH,^[56] is AFFIRMED with the MODIFICATION that the civil indemnity of P50,000.00 be raised to P75,000.00, and appellant shall further pay complainant Charlaine Bautista P50,000.00 as moral damages and P25,000.00 as exemplary damages.

In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of R.A. No. 7659, upon finality of this decision, let certified true copies of the records of this case be forwarded forthwith to the President of the Philippines for the possible exercise of the pardoning power.

SO ORDERED.

Bellosillo, (Acting C.J.), Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.
Davide, Jr., C.J., Melo, Kapunan, and Austria-Martinez, JJ.,  abroad, on official leave.
Corona, J., took no part in the deliberations.

---

^[1] Pursuant to Article 47 of the Revised Penal Code, as amended by Section 11 of R.A. No. 7659.

^[2] Penned by Judge Librado S. Correa.

^[3] TSN, April 11, 2000, p. 7.

^[4] TSN, May 30, 2000, p. 15.

^[5] TSN, March 7, 2000, p. 30.

^[6] TSN, February 22, 2000, p. 11.

^[7] TSN, February 22, 2000, pp. 5-6.

^[8] TSN, March 7, 2000, pp. 31-36.

^[9] TSN, March 14, 2000, pp. 5-6; March 22, 2000, pp. 6-7.

^[10] TSN, February 22, 2000, p. 6.

^[11] Records of Criminal Cases Nos. 116859-H-116861, Exhibit “H”, “H-1”, “H-2”, pp. 104-105.

^[12] Rollo, p.19.

^[13] A membrane at the posterior junction of the labia minora.

^[14] Rollo, pp. 78-80.

^[15] Rollo, p. 42.

^[16] Rollo, p. 20.

^[17] Rollo, p. 22.

^[18] This should read Art. 336.

^[19] Rollo, p. 42.

^[20] People vs. Francisco, G.R. Nos. 135201-02, March 15, 2001.

^[21] Sec. 3, Rule 122, of the 2000 Rules of Criminal Procedure, states as follows:

“How appeal taken. - (a) x x x.

(c)           The appeal to the Supreme Court in cases where the penalty imposed by the Regional  Trial Court is reclusion perpetua or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal x x x.” (Emphasis supplied)

^[22] G.R. Nos. 137199-230, August 31, 2001.

^[23] TSN, March 7, 2000, pp. 31-32, 34.

^[24] TSN, March 7, 2000, p. 40.

^[25] People vs. Garigadi, 317 SCRA 399 (1999).

^[26] 318 SCRA 358 (1999).

^[27] Ibid.

^[28] Records of Criminal Cases Nos. 116859-H-116861, Exhibit “C”, p. 16.

^[29] TSN, March 7, 2000, pp.  9-10.

^[30] People vs. Brondial, 343 SCRA 600 (2000); People vs. Rosales, 313 SCRA 757 (1999).

^[31] Ibid.

^[32] TSN, March 7, 2000, p. 29.

^[33] People vs. Bentonio, 297 SCRA 532 (1997).

^[34] Ibid.

^[35] People vs. Abella, 315 SCRA 36 (1999); People vs. Patriarca, 319 SCRA 87 (1999).

^[36] People vs. Acala, 307 SCRA 330 (1999); People vs. Espinoza, 247 SCRA 66 (1995).

^[37] People vs. Campuhan, 329 SCRA 270 (2000).

^[38] Ibid.

^[39] TSN, March 7, 2000, p. 34.

^[40] TSN, March 7, 2000 p. 17.

^[41] People vs. Pedres, 306 SCRA 579 (1999); People vs. Lopez, 302 SCRA 669 (1999).

^[42] 327 SCRA 612 (2000), citing People vs. Dominador Tabion, 317 SCRA 126 (1999).

^[43] People vs. Garigadi, 317 SCRA 399 (1999); People vs. Nagsagaray, 319 SCRA 622 (1999).

^[44] TSN, March 7, 2000, p. 42.

^[45] People vs. Nagsagaray, 319 SCRA 622 (1999).

^[46] TSN, May 30, 2000, p. 4.

^[47] Ibid, p. 5.

^[48] People vs. Marcelo, 305 SCRA 105 (1999); People vs. Gagto, 253 SCRA 455 (1996).

^[49] People vs. Batoon, 317 SCRA 545 (1999); People vs. Marcelo, 305 SCRA 105 (1999).

^[50] Under Article 266-B (1) of the Revised Penal Code, as amended by R.A No. 7659, the death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:


^[51] Record of Criminal Cases Nos. 116859-60-H-116861, p. 101.

^[52] TSN, May 30, 2000, p. 2.

^[53] People vs. Nerio, G.R. No. 142564, September 26, 2001; People vs. Agustin, G.R. Nos. 135524-25, September 24, 2001.

^[54] Ibid.

^[55] Ibid.

^[56] Three members of the Court maintain their position that Republic Act No. 7659, insofar as it prescribes the death penalty, is unconstitutional. Nevertheless, they submit to the ruling of the Court, by majority vote, that the law is constitutional and the death penalty should be accordingly imposed.