891 Phil. 655
HERNANDO, J.:
That on or about September 5, 2007, at xxxxxxxxxxx[5] Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused [Nicanor [XXX]], with lewd design, did then and there committed an act of sexual assault on one [AAA],[6] an eight-year old female child, by forcing the said child to perform fellatio on him, that is, by inserting his penis into the said child's mouth, to gratify his sexual desire.Criminal Case No. 9995-G- Statutory Rape
That the accused is the common-law spouse of [AAA's] mother, [BBB].[7]
That in committing the offense, the said accused abused his moral ascendancy and influence over the said child and showed moral depravity by telling her, "huwag kang masamok kay Mama at kapag may asawa ka na ay hindi na kita[g]agalawin."
Contrary to law.[8]
That on or about September 5, 2007, at xxxxxxxxxxx Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused [Nicanor [XXX]], with lewd design, did then and there have carnal knowledge of one [AAA], an eight-year old female child, by inserting his penis inside her vagina, against her will.In Criminal Case No. 10479-G- Statutory Rape
That the accused is the common-law spouse of [AAA's] mother, [BBB]. That in committing the offense, the said accused abused his moral ascendancy and influence over the said child and showed moral depravity by telling her, "huwag kang masamok kay Mama at kapag may asawa ka na ay hindi na kita agalawin."
Contrary to law.[9]
That on or about the month of September 2007, xxxxxxxxxxx Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused [Nicanor [XXX]], with lewd design, did then and there have carnal knowledge of one [AAA], an eight-year old female child, by inserting his penis inside her vagina, against her will.XXX pleaded "not guilty" to all charges.[11] The three criminal cases were tried jointly[12] by the RTC.
That the accused is the common-law spouse of [AAA's] mother, [BBB]. Contrary to law.[10]
07. TANONG: Maari mo bang isalaysay ang buong pangyayari kung paano kang iniyot ni [XXX]?
SAGOT: Opo, kapag po umaalis si Mama ay tinatawag po ko ni [XXX] sa loob [ng aming] bahay at sinasabi po ni [XXX] na huwag akong maingay at iyong pong aking mga kapatid ay hindi pinapapasok sa loob at hinubad [na po] ni [XXX] ang aking suot na short at pinasok [na po] ni [XXX] ang kanyang ari sa aking puki at pagkatapos po ay pinapadede ni [XXX] ang kanyang ari sa akin at hinihimas niya ang aking dede at pagkatapos po ay sinasabi po ni [XXX] sa akin na 'HUWAG KANG MASAMOK KAY MAMA AT KAPAG MAY ASAWA KANA AY HINDI NAKITA GAGALAWIN.'[20]
05. TANONG: Maari mo bang isalaysay kung paano ginahasa ni [XXX] ang iyong anak na si AAA?BBB confirmed that AAA is her child with her previous husband and not with :XXX.[24]
SAGOT: Opo, [n]oon pong petsa 5 ng Setyembre 2007 oras humigit kumulang sa ika tatlo (3:00pm) ng hapon pag uwi ko pong aming bahay galing sa paglaba ay naabutan ko po ang aking anak na si [AAA] at ang aking kinakasamang si XXX na nasa loob ng aming bahay na nakita ko po na pinapasuso ni XXX ang aking anak na si [AAA] sa kanyang ari habang nakahiga si XXX sa gilid ng aming lamesa habang ang anak ko ay [magulong magulo] ang buhok at ng makita po niya ako ay pinahawakan ni XXX ang kanyang kamay sa aking anak na si [AAA] na pinapahilot ang kanyang kamay, at ng tinanong ko po ang aking anak ay sinabi po niya sa akin na huwag ko daw pong sasabihin kay XXX na nagsumbong siya sa akin na pinapadede siya ni XXX sa kanyang ari, nilalamas ang suso at iniiyot ni XXX.[23]
When recalled to the witness stand, AAA related the incident as follows:
T Sabi mo mag-isa ka sa kuwarto noong mangyari yoon? S Opo. T Natutulog ka ba? S Hindi po. T Ano ang ginagawa mo? S Tinawag po niya ako sa labas. T Si XXX ba ang tumawag sa iyo sa labas? S Opo. T Lumabas ka ba? S Pumasok po ako sa loob. T Saan ka pumasok? S Pumasok po ako sa loob ng bahay. T Andoon basi XXX sa loob ng bahay? S Opo, sinara po niya ang mga kurtina. T Siya mismo ang nagsara ng mga kurtina? S Opo. x x x x T Pagkasara ng kurtina, ano ang nangyari? S Pumasok po siya sa loob ng kuwarto. T Saan siya pumasok? S Sa loob po ng kuwarto. x x x x T Pagkatapos niyang pumasok sa kuwarto ano ang nangyari? S Sabi po niya ay maghubad ako. T Ano ang nangyaring kasunod, naghubad ka ba? S Opo. x x x x T Ano ang nangyari pagkatapos tanggalin ang short mo, [m]ay nangyari ba? S Opo. T Ano ang ginawa sa iyo, may ipinasok ba siya sa bibig mo? S Opo. T Ano ang ipinasok sa bibig mo, ano ang tawag doon, meron ka ba noon? S Wala po. x x x x TY Yoong ipinasok sa iyong bibig, ano ang hitsura? S Ari niya. T Titi niya ba yon? S Opo. T Ilang beses niya ipinasok sa bibig mo yong titi niya? S Isa (1) lamang po. x x x x T Alam mo ba kung nasaan ang pipi mo? S [(Witness pointed to her vagina)]. T May ipinasok ba siya sa pipi mo? S Opo, meron. T Kailan, yon ding araw na yoon na ipinasok niya ang ari niya sa bibig mo? S Opo. x x x x T Halimbawa ito ang pipi mo, ituro mo nga kung paano niya ipinasok. (Fiscal Begonia is demonstrating her hands to the witness) S [(The witness [pushed] the forefinger of this representation inside the fist of her left hand indicating the penis is penetrating the vagina.)] T Ano ang naramdaman mo ng pumasok ang ari niya sa pipi mo? S Masakit po. T Inilabas pasok ba niya? S Opo. T Paglabas pasok nasaktan ka ba? S Opo. T May sinabi ka [ba sa] kanya ng ipinasok at inilabas niya sa pipi mo ang ari niya? S Wala po. T Umiyak ka ba? S Opo. x x x x T Nagsabi ka ba sa Mama mo tungkol doon sa ginawa sa iyo ni XXX? S Opo. T Kailan ka nagsabi kay Mama? S Noong kinabukasan po. x x x x T Pag-naaalala mo ba yong nangyari sa iyo, naiiyak ka pa ba, ano ang nararamdaman mo? S Natatakot po ako. T Natatakot ka ba kay XXX? S Opo. T Bakit ka natatakot kay XXX? S Sinasaktan po kami.[25]
BBB also testified that on September 5, 2007, she saw AAA sitting in between the legs of :XXX and said, "Pinadede po niya [XXX] sa ari niya iyong anak ko [AAA]."[27]
Q You earlier mentioned that the accused inserted his penis to your vagina, before the said incident, what were you doing then in the said room? A I was lying [down], sir. Q How about the accused, what [was] the accused doing [in] the said room? A He was on top of me, sir. x x x x Q You mean he is totally naked then? A He was not wearing short, sir. Q You said naked, he is naked on his lower portion? A Yes, sir. Q How about you when you said he was on top of you, what then [were you] wearing? A None, sir. Q Did the accused have any weapon then? A None, he was not carrying any, sir. Q Was he uttering anything? A Yes, sir. Q What is that? A 'Huwag ko daw pong sasabihin kay mama.' x x x x Q Do you recall how many times the said accused inserted his penis inside your vagina? A Two (2) times/twice, sir. x x x x Q When you said that the penis was inserted twice, after the second insertion, what happened next? A He kissed me, sir. Q After that? A He was inserting his penis inside my vagina, sir.[26]
WHEREFORE, finding that [the] prosecution evidence has established the guilt of the accused beyond reasonable doubt in all three cases, accused [XXX] is adjudged GUILTY [in] Criminal Cases Nos. 9994-G; 9995-G and 10479-G. He is hereby sentenced as follows:Ruling of the Court of Appeals:
l. In Criminal Case No. 9994-G for Object Rape, [XXX] is hereby sentenced to suffer the penalty of 12 years of prision mayor as minimum to 20 years of reclusion temporal as maximum. Accused is ordered to pay the private complainant [the] amounts of P30,000.00 as civil indemnity, P30,000.00 as moral damages, and P30,000.00 as exemplary damages.
2. In Criminal Cases Nos. 9995-G and 10479-G; accused is sentenced to suffer the penalty of Reclusion Perpetua in each case. He is likewise ordered to pay the private [complainant] the amounts of P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary damages for each case.
SO ORDERED.[35]
WHEREFORE, premises considered, the instant Appeal is PARTLY GRANTED. The Judgment dated 04 December 2015 of Branch 61, Regional Trial Court of Gurnaca, Quezon is hereby AFFIRMED but with the following MODIFICATIONS, in that -XXX filed a Motion for Partial Reconsideration[38] which the CA denied in a Resolution[39] dated September 29, 2017.
x x x x
1. In Criminal Case No. 9994-G for Qualified Rape by Sexual Assault, [XXX] is hereby CONVICTED of the crime charged and sentenced to suffer the indeterminate penalty of nine (9) years of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. Accused is ordered to pay the private complainant [the] amounts of P30,000.00 as civil indemnity, P30,000.00 as moral damages, and P30,000.00 as exemplary damages.
2. In Criminal Case No. 10479-G for Qualified Rape, accused is hereby CONVICTED of the crime charged and sentenced to suffer the penalty of reclusion perpetua, without eligibility for parole. He is likewise ordered to pay the private [complainant] the amounts of P100,000.00 as civil indemnity, P100,000.00 as moral damages, and P100,000.00 as exemplary damages.
3. Interest at the rate of six percent (6%) per annum is imposed on all the damages awarded in this case from date of finality of this judgment until fully paid.
4. In Criminal Case [No.] 9995-G, accused-appellant is hereby ACQUITTED due to reasonable doubt.
x x x x
SO ORDERED.[37]
x x x When the offended party is of tender age and immature, courts are inclined to give credit to her account of what transpired, considering not only her relative vulnerability but also the shame to which she would be exposed if the matter to which she testified is not true. Youth and immaturity are generally badges of truth and sincerity. Errorless recollection of a harrowing incident cam10t be expected of a witness, especially when she is recounting details of an experience so humiliating and so painful as rape. What is important is that the victim's declarations are consistent on basic matters constituting the elements of rape and her positive identification of the person who did it to her.[44]Moreover, Dr. Laguerta's medical findings that AAA suffered hymenal lacerations suggesting that an object or a male organ had penetrated her vagina corroborated AAA's testimony that she was raped. Thus, "[w]here the victim's testimony is corroborated by physical findings of penetration, there is sufficient basis for concluding that sexual intercourse did take place."[45]
Article 266-A. Rape; When and How Committed. -Rape is committed-Rape through sexual intercourse and rape through sexual assault are further described as follows:
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or is otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.[47] (Emphasis supplied)
In rape under paragraph 1 or rape through sexual intercourse, carnal knowledge is the crucial element which must be proven beyond reasonable doubt. This is also referred to as 'organ rape' or 'penile rape' and must be attended by any of the circumstances enumerated in subparagraphs (a) to (d) of paragraph 1. There must be evidence to establish beyond reasonable doubt that the perpetrator's penis touched the labia of the victim or slid into her female organ, and not merely stroked the external surface thereof, to ensure his conviction of rape by sexual intercourse.Before determining the appropriate felony committed by XXX, it is important to emphasize that the title of the felony as stated in the Information is not controlling but the allegations in the body therein. Indeed, what controls is not the title of the information or the designation of the offense, but the actual facts recited in the information constituting the crime charged."[49] The Court clarified in Quimvel v. People[50] that:
On the other hand, rape under paragraph 2 of the above-quoted article is commonly known as rape by sexual assault. The perpetrator, under any of the attendant circumstances mentioned in paragraph I, commits this kind of rape by inserting his penis into another person's mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person. It is also called 'instrument or object rape,' also 'gender-free rape,' or the narrower 'homosexual rape.'[48]
Jurisprudence has already set the standard on how the requirement is to be satisfied. Case law dictates that the allegations in the Information must be in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. The facts and circumstances necessary to be included therein are determined by reference to the definition and elements of the specific cnmes.The Information in Criminal Case No. 9994-G denominated the felony as Object Rape under Article 266-A, paragraph 2 of the RPC, otherwise known as Rape by Sexual Assault. Based on the facts, and as found by both the RTC and the CA, XXX forced AAA to perform fellatio on him by placing his penis inside her mouth. By this, XXX should be adjudged guilty of Rape by Sexual Assault under the RPC. However, the recent case of People v. Tulagan (Tulagan)[52] prescribed guidelines regarding the proper designation or nomenclature of acts constituting sexual assault and the corresponding penalty depending on the victim's age, to wit:
The main purpose of requiring the elements of a crime to be set out in the Information is to enable the accused to suitably prepare his defense because he is presumed to have no independent knowledge of the facts that constitute the offense. The allegations of facts constituting the offense charged are substantial matters and the right of an accused to question his conviction based on facts not alleged in the information cannot be waived. As further explained in Andaya v. People:No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be convicted of any offense unless it is charged in the information on which he is tried or is necessarily included therein. To convict him of a ground not alleged while he is concentrating his defense against the ground alleged would plainly be unfair and underhanded. The rule is that a variance between the allegation in the information and proof adduced during trial shall be fatal to the criminal case if it is material and prejudicial to the accused so much so that it affects his substantial rights.[51] (Citations omitted.)
Considering the development of the crime of sexual assault from a mere 'crime against chastity' in the form of acts of lasciviousness to 'crime against persons' akin to rape, as well as the ruling in Dimakuta and Caoili, We hold that if the acts constituting sexual assault are committed against a victim under 12 years of age or is demented, the nomenclature of the offense should now be 'Sexual Assault under paragraph 2, Article 266-A of the RPC in relation to Section 5(b) of R.A. No. 7610' and no longer 'Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5(b) of R.A. No. 7610,' because sexual assault as a form of acts of lasciviousness is no longer covered by Article 336 but by Article 266-A(2) of the RPC, as amended by R.A. No. 8353. Nevertheless, the imposable penalty is still reclusion temporal in its medium period, and not prision mayor.[53]Thus, pursuant to Tulagan, and considering the fact that AAA was eight years old when the crime was committed against her, the proper designation of the crime in Criminal Case No. 9994-G should be "Sexual Assault under paragraph 2, Article 266-A of the RPC in relation to Section 5(b) of R.A. No. 7610."[54] Moreover, this crime shall be punished by prision mayor in accordance with Article 266-B of the RPC. However, the penalty shall be increased to reclusion temporal if an aggravating or qualifying circumstance is present in the case.[55]
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 affirmity within the third civil degree, or the common law spouse of the parent of the victim[.][57]The elements of qualified rape are: "(1) sexual congress; (2) with a woman; (3) done by force and without consent; (4) the victim is under [eighteen] years of age at the time of the rape; and (5) the offender is [either] a parent (whether legitimate, illegitimate or adopted), [ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent] of the victim."[58]
Children, whether male or female, who for money, profit or any other consideration or due to 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:[55] REVISED PENAL CODE, Article 266-A, as amended by Republic Act No. 8353 (I997).
x x x
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected 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