657 Phil. 577
CARPIO, J.:
CRIMINAL CASE NO. 98-651 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows:
That in between the period of April-May 1993, in Parañaque, Metro Manila, and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then ten (10) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously fondled (sic) the breast of [AAA].
CRIMINAL CASE NO. 98 - 652 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows:
That sometime in May 1993, in Parañaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then ten (10) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously fondled (sic) the breasts of [AAA], touched (sic) and inserted (sic) his finger into the vagina of said minor-victim.
CRIMINAL CASE NO. 98 - 653 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows:
That sometime in between the period commencing in June 1993 until August 1993, in Parañaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then ten (10) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously fondled (sic) the breasts of [AAA], touched (sic) and inserted (sic) his finger into the vagina of said minor-victim.
CRIMINAL CASE NO. 98 - 654 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows:
That sometime in between the period of October to December 1993 at Shaolin Chinese Restaurant located at Sucat Road, Parañaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then eleven (11) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously fondled (sic) and sucked the breasts of [AAA], and thereafter touched the vagina of said minor-victim.
CRIMINAL CASE NO. 98 - 655 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows:
That sometime in December 1993 at Shaolin Chinese Restaurant located at Sucat Road, Parañaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then eleven (11) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously fondled (sic) and sucked the breasts of [AAA], and thereafter touched the vagina of said minor-victim.
CRIMINAL CASE NO. 98 - 656 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows:
That sometime in between the period commencing in January 1994 to August 1994, in Parañaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then eleven (11) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously touched (sic) and sucked the breasts of [AAA], licked (sic) her vagina and inserted (sic) his finger into the private part of said minor-victim.
CRIMINAL CASE NO. 98 - 657 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows:
That sometime in between the period commencing in August 1994 until September 1995, in Parañaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then twelve (12) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously touched (sic) and sucked (sic) the breasts of [AAA], licked (sic) her vagina and inserted (sic) his finger into the private part of said minor-victim.
CRIMINAL CASE NO. 98 - 658 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows:
That sometime in September 1997, in Parañaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then fifteen (15) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously touched (sic) and sucked (sic) the breasts of [AAA], licked (sic) her vagina and inserted (sic) his finger into the private part of said minor-victim.
CRIMINAL CASE NO. 98 - 659 for Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows:
That sometime in (sic) October 25, 1997, in Parañaque, Metro Manila and within the jurisdiction of this Honorable Court, above-named accused, by taking advantage of his then fifteen (15) year old biological daughter, [AAA], and with lewd designs, did then willfully, unlawfully and feloniously touched (sic) and sucked (sic) the breasts of [AAA], licked (sic) her vagina and inserted (sic) his finger into the private part of said minor-victim.
CRIMINAL CASE NO. 98 - 660 for Violation of Article 335 of the RPC, as amended, in relation to Section 5(b), Art. III of R.A. 7610, committed as follows:
That sometime in September 1995, in Parañaque, Metro Manila and within the jurisdiction of this Honorable Court, above named accused, by taking advantage of his then thirteen (13) year old biological daughter [AAA], and with lewd designs, did then willfully, unlawfully and feloniously, lie and had carnal knowledge with the said minor victim, against her will.[5]
Ernesto A. Fragante (Ernesto hereafter) married CCC on October 6, 1975, in Sta. Cruz Manila, and such marriage was ratified on December 7, 1995 celebrated in San Sebastian Parish Church. That union, produced three offsprings. [AAA], the victim herein, is their third child. She was born on August 23, 1982. x x x
Sometime in April 1993 to May 1993, three or four months before her eleventh (11) birthday, [AAA] woke up one early morning to prepare for the driving lessons which her father Ernesto, promised to teach them that day. [AAA] was the first to wake up. She was in her room when her father entered and lay on her bed. He then asked [AAA] to lie beside him to which [AAA] obeyed. While lying beside her, Ernesto was talking to her about a lot of things, and as he talked he started to fondle her breast and suck her nipples.
x x x x
The incident was repeated sometime between June 1993 and August 1993. Ernesto told [AAA] to get inside his room, then he would lock the door. Once inside the room, he would scold [AAA] for reasons unknown to her. When she would start to cry, her father would start to touch her breast, then he would suck her nipples while he was rubbing her vagina.
On two occasions, between October 1993 and December 1993, at Shaolin Chinese Restaurant located in Sucat, Parañaque, which the Fragante family owned, there was a small back room used as an office which later was converted into a room where they could rest. [AAA] was told by her father to rest in that room and once inside, while talking to her, he covered the windows with manila paper. He lay down beside her in the folding bed. He fondled her breast, squeezed them and then later inserted his hand under her shirt as he pull it up and put his mouth on her breast to suck it alternately. He started stroking her genitals with her shorts on. She did not do anything as she was in shock at that time.
In December 1993, [AAA] and her father bought food from Jollibee. She was instructed to eat it at the back room of their Shaolin Chinese Restaurant so that other employees would not see it. After eating, Ernesto asked her to lie down in the folding bed and he again lay down beside her and massaged her breast and sucked her nipples while continuously rubbing her vagina by inserting his hand inside her shorts.
Sometime in January 1994, around 10 o'clock in the evening, while [AAA] was sleeping in another room, Ernesto entered her room. He lay beside her, and started sucking her breast. He removed her shorts and then touched her vagina. He then inserted his finger inside her vagina.
In August-September 1994, she was around twelve (12) years old, Ernesto molested her again inside his room, by massaging her private parts and sucking her nipples while continuously rubbing her vagina and afterwards inserting his finger inside it.
In September 1995, at the age of thirteen (13), [AAA] was raped by her father Ernesto. She was told to get inside his room and was scolded by him before she was made to lie down in his bed. Her shirt was removed, and her breast and vagina were fondled by him. Thereafter, he sucked her nipples while continuously touching her vagina. He removed her shorts and panty, then spreaded her legs and inserted his penis in her vagina. She struggled and begged him to remove his penis. She said she could not recall the exact details of what her father was doing. He stayed on top of her despite her pleas. x x x
Ernesto was not able to find time to molest [AAA] in September 1995-1996, because he was hardly home and was busy with his bookstore business in Visayas and Mindanao.
x x x x
In the evening of October 25, 1997, Irma, together with their brother Marco accompanied their mother Gaudencia to a wake of their mother's friend. [AAA] wanted to go with them but she was left home alone with Ernesto who refused to allow [AAA] to go with them. x x x
x x x x
Her father started massaging her breast and [AAA] removed his hands and stood up but she was bitten and pushed towards the bed. Her father strangled her and asked whether she preferred to be strangled first and she answered no. He started touching her private parts again and this time she continued warding off his hands and when she heard their car entering their garage, she told her father that her mother had arrive. That was the only time she was allowed to leave but was stopped by her father and warned not tell her mother what happened.
x x x They later proceeded to the NBI, Taft Ave. Manila to report the incidents and where [AAA] executed her complaint-affidavit. Her mother and siblings also executed their affidavits.[6]
x x x x
During arraignment on April 26, 1999, the accused entered separate pleas of "Not Guilty" to all the crimes charged.
Joint trial ensued thereafter.
Prosecution presented the following witnesses: [AAA], BBB, CCC, and Dr. Bernadette Madrid. The defense presented Ernesto Fragante as the sole witness.[7]
WHEREFORE, after careful perusal of the evidence presented, this Court finds as follows: for (sic)
Criminal Case No. 98-651 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS.
Criminal Case No. 98-652 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS.
Criminal Case No. 98-653 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS.
Criminal Case No. 98-654 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS.
Criminal Case No. 98-655 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS.
Criminal Case No. 98-656 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS.
Criminal Case No. 98-657 For Violation of Art. 336 of the RPC, as amended, in relation to Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of reclusion temporal of FOURTEEN (14) YEARS EIGHT (8) MONTHS and ONE (1) DAY to FIFTEEN (15) YEARS SIX (6) MONTHS and TWENTY (20) DAYS.
Criminal Case No. 98-658 for Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of SIX (6) MONTHS and ONE (1) DAY to SIX (6) YEARS.
Criminal Case No. 98-659 for Section 5(b), Art. III of RA 7610 finds the accused Ernesto Ayuda Fragante GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to suffer an imprisonment of SIX (6) MONTHS and ONE (1) DAY to SIX (6) YEARS.
Criminal Case No. 98-660 for RAPE this court finds the accused ERNESTO AYUDA FRAGANTE GUILTY BEYOND REASONABLE DOUBT and is hereby sentenced to DEATH. He is ordered to pay the complainant P50,000.00 as civil liability and P50,000.00 as moral damages.
SO ORDERED.[8]
WHEREFORE, the decision of the Regional Trial Court, of Parañaque City, Branch 260, dated July 4, 2003 is AFFIRMED with MODIFICATION as follows:
- In Criminal Cases Nos. 98-651, 98-652, 98-653, 98-654, 98-655, 98-656, 98-657, accused-appellant Ernesto A. Fragante is hereby sentenced to suffer Indeterminate Penalty, the minimum of which is fourteen (14) years and eight (8) months of reclusion temporal minimum and the maximum of which is seventeen (17) years and four (4) months of reclusion temporal medium, for acts of lasciviousness under Article III, Section 5 (b) of Republic Act No. 7610, and is also ordered to pay [AAA] the amount of P50,000.00 as moral damages for each count of acts of lasciviousness;
- In pursuant with Section 31(f), Article XII, of Republic Act No. 7610, a FINE in the amount of Thirty Thousand (Php30,000.00) Pesos for each count of the nine (9) counts of lascivious conduct is hereby imposed;
- The penalty imposed in Criminal Case No. 98-658 and Criminal Case No. 98-659 by the trial court is hereby AFFIRMED without modification;
- In Criminal Case No. 98-660, the penalty imposed is hereby reduced to reclusion perpetua by virtue of R.A. No. 9346, which prohibits the imposition of death penalty.
- In view of the jurisprudential trend, the amount of moral damages for Criminal Case No. 98-660 is hereby INCREASED to Seventy Five Thousand (Php 75,000.00) Pesos and the civil indemnity is likewise increased to Seventy Five Thousand (Php 75,000.00) and an additional amount of Twenty Five Thousand (Php 25,000.00) as exemplary damages.
SO ORDERED.[9]
Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
- By using force or intimidation;
- When the woman is deprived of reason or otherwise unconscious; and
- When the woman is under twelve years of age or is demented.
[AAA] also admitted that after accused-appellant has started sexually molesting her until she was raped, she was so frightened of him. In fact she could not tell her mother of her ordeal, mindful of the serious threats on her life and of the chaos it would cause their family.[17]
Art. 336. Acts of lasciviousness. -- Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional.
Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether male or female, who for money, 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.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:
x x x x
(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 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
- The accused commits the act of sexual intercourse or lascivious conduct.
- The said act is performed with a child exploited in prostitution or subjected to sexual abuse.
- The child, whether male or female, is below 18 years of age.[31]
(h) "Lascivious conduct" means the 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 public area of a person.
A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group.
SECTION 3. Definition of Terms. -
(a) "Children" refers [to] persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition;
Sec. 11. Time of the commission of the offense. -- It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as to the actual date at which the offense was committed as the information or complaint will permit.
Thus, as early as 1903, this Court has ruled that while the complaint must allege a specific time and place when and where the offense was committed, the proof need not correspond to this allegation, unless the time and place is material and of the essence of the offense as necessary ingredient in its description. Evidence so presented is admissible and sufficient if it shows 1) that the crime was committed at any time within the period of the statute of limitations; and 2) before or after the time stated in the complaint or indictment and before the action is commenced.
Atty. Rosanna Elepaño-Balauag: How many times[,] because the witness answered that his father was sexually abusing her. Court: Witness may answer. Atty. Rosanna Elepaño-Balauag: How many times if you remember? A: Many times. x x x x Q: When was (sic) [did] the incident happened? A: Sa bahay po namin at madaling araw po iyon dahil nagpapaturo kami ng driving at ako po iyong unang nagising at sabi ko nga po magdriving na turuan niya akong magmaneho at tapos po pinahiga niya ako sa tabi nya at tapos po kinausap po niya ako at habang kinakausap niya ako, he started touching my private parts and later on he sucked my nipple, mam. Q: What else did he do? A: That's all mam. Q: And what happened after that? A: He did you (sic) it again, mam. x x x x Q: What she did you to? [sic] A: Ganoon pa rin po, he sucked my breast at tapos po niyon, papasukin niya ako sa kanyang room at ila-lock niya iyong pinto; minsan po naman, pagagalitan niya ako na walang kabagay bagay at hindi ko naman po alam kung ano iyon; ganoon po lagi, hinawakan niya iyong breast, papagalitan ako, iyon paulit ulit na lang po, mam. Q: After he scolded you what happened next? A: Iyon pag umiiyak na po ako, uumpisahan po niyang hawakan muli iyong mga private parts. x x x x Q: And after that incident what transpired next? A: Paulit ulit po niyang ginagawa, lagi po niya akong hinhahawakan ang breast ko at vagina and then nira-rub po nang kamay niya.[35]
Section 11. Article 335 of the same Code is hereby amended to read as follows:
x x x x
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:
1. 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.
The penalty for acts of lasciviousness under Art. III, 5(b) of R.A. No. 7610 is reclusion temporal in its medium period, the range of which is from 14 years, 8 months and 1 day to 17 years and 4 months. Applying the Indeterminate Sentence Law and in the absence of modifying circumstances, the maximum term of the sentence to be imposed shall be taken from the medium period of the imposable penalty, which is reclusion temporal medium, the range of which is from 15 years, 6 months and 20 days to 16 years, 5 months and 9 days, while the minimum term shall be taken from the penalty next lower in degree, which is reclusion temporal minimum, the range of which is from 12 years and 1 day to 14 years and 8 months.
x x x Aira is a two-year old child. The penalty imposable for acts of lasciviousness against children under 12 years of age should be that provided by R.A. 7610, which is reclusion temporal in its medium period. Accused-appellant is Aira's grandfather. His relationship to his victim aggravates the crime, and, as provided by R.A. 7610, Section 31, the penalty shall be imposed in the maximum period when the perpetrator is an ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity. Hence, the maximum period of reclusion temporal medium should be imposed. Applying the provisions of the Indeterminate Sentence Law, the minimum of the penalty to be imposed should be reclusion temporal minimum.