361 Phil. 138
AUSTRIA-MARTINEZ, J.:
“INFORMATIONWhen arraigned under the above-quoted Information, the appellant entered a plea of “Not guilty” to the crime charged. Trial on the merits ensued thereafter.
“The undersigned Assistant Provincial Prosecutor II, upon sworn complaint of the offended party, Neddy Calayca, accuses ARTEMIO CALAYCA of the crime of RAPE, committed as follows:That on or about the 29th day of January, 1994 at about 1:00 o’clock in the morning, more or less, at Barangay Solo, Municipality of Balingasag, Province of Misamis Oriental, Philippines and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously and by means of force and intimidation, succeeded in having carnal knowledge (sexual intercourse) with her(sic) own daughter, Neddy Calayca, against her will and consent.“CONTRARY TO and in VIOLATION OF Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659.
“Cagayan de Oro City, Philippines, March 6, 1995.(SGD.) ROBERTO S. CASIÑO
“Asst. Provincial Prosecutor II”
“WHEREFORE, premises considered, judgment is hereby rendered finding accused ARTEMIO CALAYCA guilty beyond reasonable doubt as principal of the offense of rape defined and penalized by Article 335 of the Revised Penal Code as amended by Section 11 of Republic Act 7659. Consequently, he is hereby sentenced to suffer the extreme penalty of death, the private offended party being below 18 years of age (as she was 15 years of age at the time of the incident) and the accused being her parent, the same to be executed by electrocution as the facilities for gas poisoning is not yet provided by the Bureau of Prisons. In addition, accused is hereby ordered to pay the private offended party, Neddy Calayca, the sum of P50,000.00.Appellant now assails the judgment of conviction claiming that –
“In view of the penalty imposed, let the whole record of the case including the evidence oral and documentary be forwarded to the Honorable Supreme Court, Manila, for automatic review. In addition, let the living body of the accused be committed to the New Bilibid Prison, Muntinlupa, Metro Manila.
“SO ORDERED.”
Appellant hammers on the alleged inconsistencies in private complainant’s testimony regarding the frequency of the commission of rape by appellant against her and the kind of weapon he used in forcing her to succumb to his bestial lust. More specifically, appellant pointed out that private complainant, at one instance, testified that he raped her for the first time on January 29, 1994,[14] and yet, she later declared that she was raped by him several times even before that date. Appellant further claims that private complainant likewise testified that he threatened her with a bolo when she tried to resist his bestial act on January 29, 1994,[15] but afterward she stated that it was a knife which appellant used to threaten her.[16]“I
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE PRIVATE COMPLAINANT DESPITE ITS GLARING INCONSISTENCIES.“II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF RAPE DESPITE THE INSUFFICIENCY OF THE PROSECUTION EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.”[13]
But whether the rape committed on January 29, 1994 was the first or just one in the series of rapes is, to our mind, immaterial in the prosecution of appellant for the rape he committed on said date, although this particular telling circumstance of habitual sexual abuse convincingly shows the appellant’s perversity to commit the crime of rape.
“Q – Did you inform them (private complainant’s relatives) that your father will kill you if you will inform them?
“A – Yes. “Q – What was their reaction? “A – When I told them that my father raped me several times, they feel bad. “COURT
Before January 29, 1994 your father used to have sexual intercourse with you?
“A – Yes, sir. ATTY. FELICIA
What was the comment of your relatives when you told them that you were raped by your father several times?
“A – They commented that my father is a pig.”[20] [emphasis supplied]
“FISCAL KHOThe inaccuracy in private complainant’s description of the weapon used is insignificant and understandable. To a young and naïve girl, there is not much difference between a bolo and a knife since both weapons are sharp and deadly. What is important to consider is that the weapon was effectively used by appellant to intimidate private complainant into submission to his dastardly act.“Q – After you saw the knife that your father was holding, what did you feel?“COURT
“A – I was afraid.“Q – We will clarify, was it a bolo or a knife?“FISCAL KHO
“A - A knife.
“Q – Not a bolo?
“A – No, sir.“Q – How long is that knife?
“A – About this long (witness demonstrated, counsels agreed to a 6 to 8 inches in length).
“Q – With that length, does that include the handle?
“A – Yes, including the handle.”[21] [emphasis supplied]
The victim’s brief but candid and straightforward narration of how she was raped by appellant bears the earmarks of a credible witness.[23]“Private complainant on direct examination:ATTY. FELICIA
“Q – In what specific place at Solo, San Juan, Balingasag, Misamis Oriental where you were situated on January 29, 1994?
“A – Inside the house.
“Q – At about 1:00 at dawn, more or less, were you still in your house?
“A – I was asleep inside our house.
“Q – When you were asleep inside the house, was there any unusual incident?
“A – Yes, sir.
“Q – Will you please tell the Honorable Court, what it was all about?
“A – My father placed himself on top of me and made a push and pull motion.
“Q – Was he dressed or naked?
“A – He was naked.
“Q – How about you at that time?
“A – He undressed me.
“Q – What did you do, when your father made sexual intercourse with you?No basis, Your Honor.FISCAL KHOI will reform the question, Your Honor.“COURT
“Q – You said that your father undressed you and he placed himself on top of you and made a push and pull motion, was there anything that happened to you.
“A – Yes, there was.
“Q – And, you please tell the Court what it was all about?
“A – It was painful.
“Q – Why is it that you felt a pain?
“A – Because he made a push and pull motion.
“Q – What particular part of your body was painful?
“A – My vagina.
“Q – Why what happened to your vagina?
“A – It was inserted.
“Q – What was inserted?
“A – A penis.
“Q – The penis of whom that inserted your vagina?
“A – Of my father.
“Q – Is your father around in Court?
“A – Yes, sir.
“Q – Will you please point on him?
“A – Yes, sir, he is there. (witness pointing to a man, and upon asked of his name responded that he is ARTEMIO CALAYCA).
“Q – What did you do when your father inserted his penis into your vagina?
“A – I was lying down.
“Q – Did you agree that your father will have a sexual intercourse with you?
“A – I did not agree but I just followed him because he had a bolo with him.
“Q – What did he do with the bolo?
“A – He would hacked me if I will not agree.x x x x x x x x x “Q – How old have you been at that time?
“A – 15 years old.”[22]
“x x x . Although, this allegation was not rebutted as the trial prosecutor did not present again Neddy Calayca as a rebuttal witness, to the mind of the court, the fact of slapping is not enough reason on the part of private offended party to file such heinous case as rape against her own father. If it were true that Neddy Calayca got his money without his permission, she would not be slighted if slapped knowing that she got it and she deserved such punishment. This is in accord with human experience.”[24]We believe that a teenage unmarried lass would not ordinarily file a rape charge against anybody, much less her own father, if it were not true.[25] For, it is unnatural for a young and innocent girl to concoct a story of defloration, allow an examination of her private parts, and thereafter subject herself to a public trial if she has not, in fact, been a victim of rape and deeply motivated by a sincere desire to have the culprit apprehended and punished.[26] The alleged slapping by appellant on private complainant over money in the amount of merely P5,000.00 is too frail a reason for a teenage daughter to falsely charge her own father with the heinous crime of rape that is punishable by death.
“SEC. 11. Article 335 of the same Code (Revised Penal Code, as amended) is hereby amended to read as follows:The above-quoted Section 11 provides, inter alia, that where the victim of the crime of rape is under eighteen (18) years of age and the offender is a parent of the victim, the death penalty shall be imposed. This is among the seven (7) circumstances enumerated in Section 11 which, as we have held in the recent case of People v. Garcia,[32] are considered special qualifying circumstances specifically applicable to the crime of rape. In Garcia, this Court en banc, speaking through Justice Florenz D. Regalado,[33] declared that “although the crime is still denominated as rape, such (enumerated) circumstances have changed the nature of simple rape by producing a qualified form thereof punishable by the higher penalty of death.”[34] We reiterated this ruling in subsequent en banc cases of People v. Ramos,[35] People v. Leopoldo Ilao[36] and People v. Omar Medina,[37] with further pronouncement that these seven new attendant circumstances introduced in Section 11 of R.A. No. 7659 “partake of the nature of qualifying circumstances and not merely aggravating circumstances,” since the said qualifying circumstances are punishable by the single indivisible penalty of death and not by reclusion perpetua to death. A qualifying circumstance increases the penalty by degree, while an aggravating circumstance affects only the period of the penalty but does not increase it to a higher degree.[38]“ART. 335. When and how rape is committed. – Rape is committed by having carnal knowledge of a woman under any of the following circumstances:
“1. By using force or intimidation;
“2. When the woman is deprived of reason or otherwise unconscious; and
“3. When the woman is under twelve years of age or is demented.
“The crime of rape shall be punished by reclusion perpetua.
“Whenever the crime of rape is committed with the use of deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.
“When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death.
“When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.
"When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death.
“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.
“2. When the victim is under the custody of the police or military authorities.
“3. When the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity.
“4. When the victim is a religious or a child below seven (7) years old.
“5. When the offender know that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease.
“6. When committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency.
“7. When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation.” [underscoring supplied]
“While Republic Act No. 7659 did not give a legal designation to the crime of rape attended by any of the seven new circumstances introduced in Article 335 on December 31, 1993, this Court has referred to such crime as qualified rape in a number of its decisions. However, with or without a name for this kind of rape, the concurrence of the minority of the victim and her relationship with the offender give a different character to the rape defined in the first part of Article 335. They raise the imposable penalty upon a person accused of rape from reclusion perpetua to the higher and supreme penalty of death. Such an effect conjointly puts relationship and minority of the offended party into the nature of a special qualifying circumstance.” (Underscoring supplied)A reading of the Information for rape filed against appellant in the present case reveals that he is merely charged with the crime of simple rape which warrants the imposition of the penalty of reclusion perpetua. This is so because the fact of the minority of the victim, is not stated in the Information. What was alleged therein was only the relationship of the offender as the parent of the victim. Again, as we have emphasized in People v. Ramos, the elements of minority of the victim and her relationship to the offender must concur. As such, the charge of rape in the Information is not in its qualified form so as to fall under the special qualifying circumstances stated in Section 11 of R.A. 7659. Thus, the penalty of death prescribed in R.A. 7659 should not have been imposed against appellant. In the aforecited case of People v. Garcia, we ruled:
“x x x, it has long been the rule that qualifying circumstances must be properly pleaded in the indictment. If the same are not pleaded but proved, they shall be considered only as aggravating circumstances (People v. Collado, 60 Phil. [1934]; People v. Jovellano, et al., 56 SCRA 156 [1974]; People v. Fuertes, 229 SCRA 289 [1994]; People v. Rodico, et al., 249 SCRA 309 [1995] ), since the latter admit of proof even if not pleaded (U.S. v. Campo, 23 Phil. 368 [1912]; People v. Domondon, 60 Phil. 729 [1934]; People v. de Guzman, 164 SCRA 215 [1988] ). Indeed, it would be a denial of the right of the accused to be informed of the charges against him and, consequently, a denial of due process, if he is charged with simple rape and be convicted of its qualified form punishable with death, although the attendant circumstance qualifying the offense and resulting in the capital punishment was not alleged in the indictment on which he was arraigned.There being no allegation of the minority of the victim in the Information under which the appellant was arraigned, he cannot be convicted of qualified rape as he was not properly informed that he is being accused of qualified rape.[39] Appellant’s conviction of qualified rape violates his constitutional right to be properly informed of the nature and cause of accusation against him.[40] In a criminal prosecution, it is the fundamental rule that every element of the crime charged must be alleged in the Information. The main purpose of this constitutional requirement is to enable the accused to properly prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense.[41]
“Recapitulating, the information filed against the appellant charged only the felony of simple rape and no attendant qualifying circumstance, specifically that of his being supposedly a guardian of the victim, was alleged. On this additional consideration, he cannot, therefore, be punished with the penalty of death even assuming arguendo that he is such a guardian. Neither can that fact be considered to aggravate his liability as the penalty for simple rape is the single indivisible penalty of reclusion perpetua (Article 63, Revised Penal Code).
“x x x. He must, x x x, be further held liable for the corresponding indemnity to the victim, as well as exemplary damages for each count of rape (People v. Villanueva, 254 SCRA 202 [1996] ).” (underscoring supplied)