389 Phil. 267

EN BANC

[ G.R. No. 130509-12, June 19, 2000 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARCELO "MARLON" NAVA, JR., ACCUSED-APPELLANT.

D E C I S I O N

BUENA, J.:

On automatic review is the decision dated May 28, 1997 of the Regional Trial Court, First Judicial Region, Branch 69, Lingayen, Pangasinan in Criminal Cases Nos. 5525, 5526, 5527 and 5528. The dispositive portion reads:
"WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered, finding the accused Marcelo "Marlon" Nava, Jr., guilty beyond reasonable doubt of the crime of Rape in all these four (4) cases. Accordingly, the accused Marlon Nava, Jr. is hereby sentenced in each case to suffer the penalty of DEATH, and to indemnify the private complainant Maribeth A. Nava the sum of PhP200,000.00 as moral damages, and PhP25,000.00 as exemplary damages, and to pay the costs.

May God have mercy on his soul.

SO ORDERED."[1]
The antecedents as culled from the records show:

Private complainant Maribeth A. Nava is the second of the nine children of accused-appellant Marcelo Nava, Jr. and his wife Leonarda A. Nava.[2]

One Thursday morning in January 1996, while Maribeth's mother and eldest sibling were in Manila, accused-appellant forced himself on Maribeth. While Maribeth's other siblings were then playing outside their house in Naguelguel, Lingayen, Pangasinan, accused-appellant asked Maribeth to give him a massage. Soon thereafter, he grabbed her left arm causing her to fall on the bed where accused-appellant lay. Armed with a knife, accused-appellant forced her to undress and to part her legs. Then, he went on top of her and inserted his penis in her vagina by making "push and pull" movements. She felt pain and became weak. A whitish substance came out from accused-appellant's private part. He threatened to kill her if she revealed the incident to anyone.[3]

In the evening of that same day, Maribeth was again raped by accused-appellant. He was lying on the bed while Maribeth was at the rear part thereof. Maribeth's younger siblings were on the floor sleeping. Accused-appellant removed her shorts and panty and parted her legs before he raped her. With accused-appellant's threats, Maribeth was too frightened to shout.[4]

The third incident of rape complained of took place one Monday evening in the same month of January 1996, while Maribeth's mother and eldest sibling were still in Manila. While the rest of her siblings were fast asleep, accused-appellant undressed her by removing her short pants and panty. Then, he disrobed and went on top of Maribeth and raped her. She acceded to her father's bestial advances for fear of being harmed. She feared for her life because accused-appellant poked a knife at her. The pain she felt at the height of the despicable act left her weak.[5]

On August 9, 1996, accused-appellant, Maribeth, her four (4) year old sister Marina, and her ten (10) year old brother Marcelo went to the house of their paternal grandmother at Matalava, Lingayen, Pangasinan. At that time her paternal grandfather was ill and was confined in the hospital. While her paternal grandmother accompanied her grandfather to the hospital, Maribeth's group together with her cousins, Ronald and Joel, slept over at her grandmother's house. That evening, accused-appellant took two (2) shots of Tanduay, and while everyone was sound asleep, Maribeth was awakened by accused-appellant who was in the process of undressing her. She shouted, "ayaw ko po, ayaw ko po." When Maribeth reached for her brother Marcelo to wake him up, accused-appellant pulled her hair and boxed her. She was hit on her stomach, mouth and the upper part of her left and right arm. Then, accused-appellant went on top of her and made "push and pull" movements. After the incident, accused-appellant hurriedly put on his pants. Immediately thereafter, Maribeth and accused-appellant noticed the former's cousin Ronald peeping. This prompted accused-appellant to pretend that he was trying to wake-up Maribeth from a bad dream.[6]

When Maribeth went home to Naguelguel the following day, she decided to tell everything to her mother. She found the latter in their neighbor's house doing laundry. When Maribeth confided that she was raped by her father, her mother suggested that they talk about it later in private at their house. After Maribeth narrated her ordeal at the hands of her father, her mother callously replied, "kaunting tiis lang." Disheartened by her mother's indifference, she answered, "I could no longer bear it, so I better go away." On August 25, 1996, Maribeth left their house and went to the Lingayen Police Station on her own. She was subsequently placed under the custody of the Department of Social Welfare and Development.[7]

On August 27, 1996, Maribeth underwent a physical examination which resulted in the following:
"PE genitalia with old hymenal lacerations at 6 o'clock, 7 o'clock and 9 o'clock positions."[8]
Maribeth Nava, accompanied by her mother Leonarda A. Nava, filed this criminal complaint for all the four (4) incidents of rape:

"The undersigned offended complainant MARIBETH NAVA y ARIAS with the consent of her mother, LEONARDA ARIAS NAVA, after having been duly sworn to in accordance with law, hereby accuses, his father MARCELO `Marlon' NAVA Jr., of the crime of Multiple Rape, committed as follows: That on or about undetermined time and date of January 1996 and undetermined time of the night of 09 August 1996, inside the house of her grandfather at Barangay Naguelguel and Matalava, in the municipality of Lingayen, province of Pangasinan, Philippines and within the Jurisdiction of this Honorable Court, the above named accused, motivated with lewd designs and by using force, violence, threats and intimidation, did then and there, wilfully, unlawfully, feloneously and criminally have carnal knowledge with his daughter, the herein complainant, a 14yrs old, innocent looking girl, despite the latter resisted as it was against her will to have sexual intercourse with the said accused. Medico-legal certificate issued by Dr Revelina Millan, medical officer 3 of Pangasinan Hospital in Dagupan City is hereto attached and made as integral parts of this Criminal Complaint."
Consequently, accused-appellant Marcelo "Marlon" Nava, Jr. was charged with four (4) counts of Rape under four (4) separate informations, thus:
CRIMINAL CASES NOS. L-5525, L-5526 AND L-5527

"The undersigned upon a verified complaint of Maribeth A. Nava, a minor of 13 years old, assisted by her mother Leonarda Arias Nava, hereby accuses MARCELO "Marlon" NAVA, Jr. of the crime of RAPE, committed as follows:

That on or about the month of January 1996 in barangay Naguelguel, municipality of Lingayen, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with Maribeth A. Nava, against her will and consent, to the damage and prejudice of said Maribeth A. Nava."[9]

CRIMINAL CASE NO. L-5528

"The undersigned upon a verified complaint of Maribeth A. Nava, a minor of 13 years old, assisted by her mother Leonarda Arias Nava, hereby accuses MARCELO "Marlon" NAVA, Jr. of the crime of RAPE, committed as follows:

That on or about the 9th day of August 1996 in the evening, in barangay Matalava, municipality of Lingayen, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have sexual intercourse with Maribeth A. Nava, against her will and consent, to the damage and prejudice of said Maribeth A. Nava."[10]
Upon arraignment, accused-appellant entered a plea of not guilty to each one of these informations.[11]

In order to avoid liability for these offenses, accused-appellant offered the defense of alibi in Criminal Cases Nos. L-5525; L-5526 and L-5527 and denial with regard to Criminal Case No. L-5528.

As regards the three offenses that happened sometime in January 1996, accused-appellant claimed that from January 4, 1996 to February 25, 1996 he was working for a foreman, Jerry Gonzales, in repairing a house located in a certain "Villa Subdivision" somewhere in Baguio City.[12]

As regards the fourth incident of rape that happened on August 9, 1999, accused-appellant denied the charge, contending that Maribeth had a bad dream that fateful night and that he merely shook and slap Maribeth to wake her up.[13]

After trial on the merits, accused-appellant Marcelo "Marlon" Nava, Jr. was found guilty beyond reasonable doubt of the crimes charged and was sentenced accordingly. Hence, this case before us for automatic review with the following assigned errors:

ASSIGNMENT OF ERRORS

"I

THE COURT A QUO ERRED IN ACCORDING WEIGHT AND CREDENCE TO THE TESTIMONY OF PRIVATE COMPLAINANT MARIBETH A. NAVA DESPITE ITS LACK OF CREDIBILITY.

"II


THE COURT A QUO ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF FOUR (4) COUNTS OF RAPE AND SENTENCING THE LATTER TO SUFFER THE PENALTY OF DEATH AND TO INDEMNIFY THE PRIVATE COMPLAINANT THE SUM OF PhP 200,000.00 AS MORAL DAMAGES AND THE SUM OF PhP 25,000.00 AS EXEMPLARY DAMAGES."[14]
Since both errors are interrelated, accused-appellant discussed them jointly. In support of these errors, accused-appellant attacked the credibility of private complainant, Maribeth A. Nava, by pointing out inconsistencies in her testimony.

First, accused-appellant invites our attention to Maribeth's testimony that for the month of January 1996 she was raped three times[15] while she said she was only raped twice during her preliminary examination before MTC Judge Hermogenes C. Fernandez.[16]

Second, Maribeth testified that the first incident of rape in January 1996 happened in the morning[17] while on preliminary examination she said it was in the mid-evening.[18]

Third, Maribeth testified that the second incident of rape in January 1996 happened in the evening[19] while her answer on preliminary examination is that it happened in the afternoon.[20]

Next, accused-appellant called our attention to Maribeth's testimony with regard to how the first incident of rape was committed, thus: "he (accused-appellant) raped me, he let removed my dress. He moved my two (2) feet far a part and then he went on top of me."[21] Then accused-appellant pointed to Maribeth's sworn statement which declared, "he (accused-appellant) forcibly removed my short pants and panty, ordered me to open my legs apart while he is holding a kitchen knife."[22]

Finally, accused-appellant referred to Maribeth's testimony that she was threatened[23] while on preliminary examination, she answered in the negative when asked whether or not accused-appellant told her something.[24]

As regards the first three enumerations, there were indeed inconsistencies between Maribeth's testimony and her answers on preliminary examination. We do not, however, find these to be sufficient to erode Maribeth's credibility as a witness. A reexamination of the records reveal that Maribeth's testimony is substantially corroborated by her sworn statement executed before SPO1 Jose Tandoc of the Lingayen Police Station, Mrs. Teresita Manoloto, and Ms. Marietta Loresco of the Department of Social Work and Development.[25] Moreover, Judge Hermogenes C. Fernandez, the MTC Judge who conducted the preliminary examination, adopted the more detailed narration of Maribeth's ordeal in her sworn statement[26] and even made the following observation in the conduct of the preliminary examination:
"During the preliminary examination, the court observed that complainant could not exactly recall the dates when her father sexually abused her. She was however, consistent in her claim that she was raped several times. The first occasion of molestation visited upon her person by her father was when she was in Grade III. She never wavered in her statements."[27]
Likewise, Judge Emilio V. Angeles of the regional trial court made uncurtailed observations during the proceedings, thus:
"X X X.

At the witness stand, the Court noticed that complainant sometimes wiped the tears in her eyes as she recalled her ordeal in the hands of her father. x x x."[28]

"X X X.

She was candid to admit that her father touched softly her hair and mashed her breast but she was categorical and emphatic that she refused to remove her panty and short pants. She remained consistent even on cross-examination. x x x."[29]
In this light, we are convinced of Maribeth's credence. Besides, the precise time of the commission of the crime is not an essential element in the crime of rape. In fact, "It is settled that even a variance of a few months between the time set out in the indictment and that established by the evidence during trial has been held not to constitute an error so serious as to warrant reversal of a conviction solely on that score."[30]

We now go to the fourth inconsistency where Maribeth's testimony is pitted against her sworn statement.

The discord as to whether accused-appellant personally undressed Maribeth or that he merely intimidated her into undressing is inconsequential.

Considering that Maribeth had been molested by accused-appellant since she was in Grade III,[31] and considering also that the episode referred to was only the first of three in January 1996, we cannot expect her to narrow down to a particular incident and mechanically remember the triviality of the same. We must keep in mind that after the first incident mentioned above, three more followed. Save for the last, which may still be vivid in her memory, Maribeth could not possibly give an exacting detail for each of the previous incidents since, for Maribeth, these may just be but mere fragments of a prolonged and continuing nightmare. A calvary she might even be struggling to forget. Thus,
"Errorless testimony cannot be expected of a rape victim for she may not be able to remember and recount every ugly detail of the harrowing experience and appalling outrage she went through, especially so since she might in fact be trying not to recall the same, as they are too painful to remember."[32]
Indeed, an accurate account of a harrowing experience such as rape has never been required from a victim.[33]

While a precise accounting of all the incidents is not required from Maribeth, it is worthy to note that the details she supplied regarding the last incident of rape was affirmed by no less than accused-appellant himself.

According to Maribeth, she was boxed in the face by accused-appellant.[34] Leonarda A. Nava, Maribeth's mother, confirmed this when she testified that she noticed the swollen lips of Maribeth.[35] More importantly however, accused-appellant himself admitted that he slapped Maribeth in order to wake her up from a bad dream.[36] We are not at all convinced of accused-appellant's explanation. Accused-appellant's version does not only lack substance, it is down right theatrical to be believable.

As regards the fifth and final inconsistency, the same also fails to convince us. The question during the preliminary examination asking Maribeth whether or not accused-appellant told her something when the latter raped her is vague. Consequently, it cannot nullify Maribeth's testimony that she was threatened.

We have consistently held that rape is committed when intimidation is used on the victim, which includes the moral kind of intimidation or coercion.[37] In incestuous rape, actual force and intimidation is not even necessary.[38] The reason is that in a rape committed by a father against his own daughter, the moral ascendancy of the former over the latter substitutes for violence or intimidation.[39] Thus, no young woman would accuse her own father, or anybody else for that matter, of so grave a crime as rape unless she truly has been aggrieved."[40] And, "no one would undergo the ordeals of a public trial for rape against her own father if she was not motivated by her own desire to seek justice."[41]

With regard to accused-appellant's defense of denial and alibi, the same must fail against Maribeth's categorical and positive testimony.[42] In view of this, accused-appellant's conviction is in order.

Besides, accused-appellant did not only fail to establish his presence at another place, he likewise failed to demonstrate that it was physically impossible for him to be at the scene of the crime.[43] In view of this, we find the trial court's evaluation of the witnesses' conduct and demeanor to be in order,[44] and hence, affirm its findings.

We do not agree, however, with the imposition of the death penalty by the court a quo. In recent cases, we have affirmed that the special circumstances of rape introduced by Republic Act 7659 partake of the nature of qualifying circumstances for they increase the penalty for rape. Consequently, these circumstances should be properly pleaded in the information in order to be appreciated as having qualified the crime.[45]

Article 335 of the Revised Penal Code, as amended by Section 11 of the R.A. 7659, provides:
"Article 335. When and how rape is committed. -

x x x

The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

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."
In the present case therefore, the concurrence of the minority of Maribeth and her relationship to the accused-appellant should have been specifically alleged in the information in order to afford the latter of his right to be informed of the nature and cause of the accusation against him. Although the complaint initiating the present case sufficiently established the age as well as the relationship between Maribeth and accused-appellant, the indictment on which he was arraigned failed to reiterate the same. Hence, accused-appellant can only be held liable for simple rape.[46]

At this juncture, we take notice of the fact that Abraham L. Ramos, II, the Assistant City Prosecutor who assisted Maribeth in the preparation of the complaint,[47] was the same person who prepared the information in all the four (4) criminal cases, which were approved by 1st Assistant Provincial Prosecutor and Officer-in-Charge Laurencia A. Abelon. Prosecutors had been admonished once before.[48] They are warned once more that nothing but utmost diligence in the preparation of complaints and informations is expected of them.

As regards the trial court's order to "indemnify private complainant Maribeth A. Nava the sum of P200,000.00 as moral damages,"[49] we find the same to be erroneous. In People vs. Prades, We had occasion to declare, thus:
"Jurisprudence has elucidated that the award authorized by the criminal law as civil indemnity ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. For that matter, the civil liability ex delicto provided by the Revised Penal Code, that is, restitution, reparation and indemnification, all correspond to actual or compensatory damages in the Civil Code, since the other damages provided therein are moral, nominal, temperate or moderate, liquidated, and exemplary or corrective damages which have altogether different concepts and fundaments.

We reiterate here that said civil indemnity is mandatory upon the finding of the fact of rape; it is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound discretion."[50]
It is evident, therefore, that the lower court's award of P200,000.00 to Maribeth is actually civil indemnity for the four (4) counts of rape. An award of P50,000.00 as moral damages, for each of the four (4) counts of rape, is granted in recognition of the victim's injury as being inherently concomitant with and necessarily resulting from the odious crime of rape to warrant per se an award of moral damages.[51] On the other hand, the award of P25,000.00 for exemplary damages must be deleted in the absence of any basis thereof pursuant to Article 2230 of the New Civil Code.[52] In this score, members of the bench are enjoined to follow these rules in the award of damages in criminal cases for rape.

WHEREFORE, the judgment of conviction of the Regional Trial Court, in Criminal Cases Nos. 5525, 5526, 5527 and 5528 is hereby AFFIRMED, with the modification that the penalty in each case is reduced to reclusion perpetua and the accused-appellant is hereby ordered to pay the amount of P50,000.00 as civil indemnity for each of the four (4) counts of rape, and the amount of P50,000.00 as moral damages for each of the four (4) counts of rape. The P25,000.00 awarded as exemplary damages is deleted. Costs against appellant.

Let a copy of this Decision be furnished to the Honorable Secretary of Justice for whatever action he may deem appropriate to take.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

Vitug, J., on official leave.



[1] RTC Decision, p. 45, ROLLO.

[2] RTC Decision, p. 119, RECORDS; TSNs, January 30, 1997, p. 23; February 11, 1997, p. 10; and February 27, 1997, p.3.

[3] RTC Decision, p. 119, RECORDS; TSN, January 30, 1997, pp. 24-27; in relation with Exhibit "D" sworn statement p.7, RECORDS.

[4] RTC Decision, p. 119, RECORDS; TSN, January 30, 1997, pp. 27-28.

[5] RTC Decision, p. 120, RECORDS; TSN, January 30, 1997, pp. 28-29.

[6] RTC Decision, p. 120, RECORDS; TSN, January 30, 1997, pp. 30-35; in relation with Exhibit "D" sworn statement p. 7, RECORDS.

[7] RTC Decision, pp. 120-121, RECORDS; TSN, January 30, 1997, pp. 36-38.

[8] RTC Decision, p. 121, RECORDS; TSN, February 6, 1997, pp. 8-9; in relation with exhibit "C" Medico-legal Certificate p. 6, RECORDS.

[9] Information for Criminal Cases Nos. L-5525, L-5526 and L-5527, pp. 1, 147 and 65 (and/or 162) respectively, RECORDS.

[10] Information for Criminal Case No. L-5528, p. 156, RECORDS.

[11] Certificate of Arraignment, p. 39, RECORDS; and TSN, January 29, 1997, p.3.

[12] Appellant's Brief, p. 73, ROLLO.

[13] Appellant's Brief, p. 73, ROLLO.

[14] Appellant's Brief, p. 63, ROLLO.

[15] TSN, January 30, 1997, pp. 24-25, 27 and 28.

[16] Exhibit "2-B," p. 13, RECORDS.

[17] TSN, January 30, 1997, p. 24.

[18] Exhibit "2-C," p. 13, RECORDS.

[19] TSN, January 30, 1997, p. 27.

[20] Exhibit "2-D," p. 13, RECORDS.

[21] TSN, January 30, 1997, p. 24; underscoring supplied.

[22] Exhibit "3-A-1," p. 7, RECORDS.

[23] TSN, January 30, 1997, p. 26.

[24] Exhibit "2-E," p. 13, RECORDS.

[25] Exhibit "D," p. 7, RECORDS.

[26] MTC Resolution, p. 23, RECORDS; underscoring supplied.

[27] MTC Resolution, p. 23, RECORDS; underscoring supplied.

[28] RTC Decision, p. 125, RECORDS.

[29] RTC Decision, p. 134, RECORDS.

[30] People v. Bernaldez, 294 SCRA 317 (1998)

[31] RTC Decision, p. 119, RECORDS.

[32] People v. Venerable, 290 SCRA 15, 25 (1998); see also People v. Tumala, Jr. 284 SCRA 436, 442 (1998)

[33] People v. Garcia, 281 SCRA 463 (1997); People v. Rabosa, 273 SCRA 142 (1997); People v. Butron, 272 SCRA 352 (1997)

[34] TSN, January 30, 1997, p. 33.

[35] TSN, February 11, 1997, pp. 12 and 19.

[36] TSN, February 27, 1997, pp. 7-8 and 9.

[37] People v. Garcia, 281 SCRA 463, 478 (1997)

[38] People v. Tabugoca, 285 SCRA 312 (1998)

[39] People v. Taneo 284 SCRA 251 (1998); People v. Agbayani, 284 SCRA 315 (1998); People v. Bartolome, 296 SCRA 615 (1998)

[40] People v. Escala, 292 SCRA 48 (1998)

[41] People v. Magpantay 284 SCRA 96 (1998)

[42] People v. Taneo, 284 SCRA 251 (1998); People v. Garcia, 281 SCRA 463 (1997)

[43] People v. Magpantay, 284 SCRA 96, 101; People v. Taneo, 284 SCRA 251, 271; People v. Venerable, 290 SCRA 15, 23.

[44] People v. Emocling, 297 SCRA 214 (1998); People v. Magpantay, 284 SCRA 96 (1998); People v. Tumala, Jr., 284 SCRA 436 (1998)

[45] People v. Perez, G.R. No. 122764, September 24, 1998; People v. Magbanua, G.R. No. 128888, December 3, 1999; People v. Ramon, G.R. No. 130407, December 15, 1999.

[46] People v. Garcia, 281 SCRA 463 (1997); People v. Magbanua, G.R. No. 128888, December 3, 1999; People v. Ramon, G.R. No. 130407, December 15, 1999.

[47] Informations, pp. 1, 147, 65/162, 156; in relation to the Complaint, p. 5, RECORDS.

[48] People v. Manhuyod, 290 SCRA 257, 278.

[49] RTC Decision, p. 138, RECORDS.

[50] People v. Prades, 293 SCRA 411, 429-430 (1998); reiterated in People v. Mostrales, 294 SCRA 701, 712-713 (1998); People v. Emocling, 297 SCRA 214, 227 (1998); underscoring supplied.

[51] People v. Prades, 293 SCRA 411; cited in People v. Perez, 296 SCRA 17, 37 (1998); People v. Fuertes, 296 SCRA 602, 614 (1998); People vs. Ramos, 296 SCRA 559, 578 (1998)

[52] People vs. Bernaldez, 294 SCRA 317, 335 (1998)




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