331 Phil. 869
PANGANIBAN, J.:
On arraignment, appellant, duly assisted by counsel, pleaded not guilty to both charges.[3] Thereafter, trial on the merits ensued."AMENDED INFORMATION
The undersigned Assistant Prosecutor, hereby accused (sic) HENRY APILO of the crime of RAPE, at the instance, relation and written complaint of MADONNA SALDIVAR, copies of her statements are hereto attached and made an integral part of this Information, committed as follows:
That on or about the 2nd day of October, 1989, in the City of Baguio, 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 or intimidation with the use of a handgun, have carnal knowledge of the complainant MADONNA SALDIVAR, a minor -- 11 years of age, against the latter’s will and consent."
"Wherefore, Judgement (sic) is hereby rendered as follows:Not unexpectedly, accused-appellant interposed the defense of alibi and narrated, in essence, that on the dates of the incidents, he was in Metro Manila with Victor and Lito Balisi. Thereafter, he was invited by the two to go to Canlubang, Laguna and they stayed there for one week.[7]
1. In Criminal Case No. 7129-R, the Court Finds accused Henry Apilo guilty beyond reasonable doubt of the offense of Rape defined and penalized under Article 335 of the Revised Penal Code as charged and hereby sentences him to suffer imprisonment of Reclusion Perpetua; to indemnify the offended party Madonna Saldivar the sum of P40,000.00 as Moral Damages without subsidiary imprisonment in case of insolvency, and to pay the costs.
The accused Henry Apilo being a detention prisoner is entitled to 4/5 of his preventive imprisonment in the service of his sentence in accordance with Art. 29 of the Revised Penal Code.
2. In Criminal Case No. 7130-R, the Court Finds accused Henry Apilo guilty beyond reasonable doubt of the offense of Rape defined and penalized under Article 335 of the Revised Penal Code as charged and hereby sentences him to suffer imprisonment of Reclusion Perpetua; to indemnify the offended party Madonna Saldivar the sum of P40,000.00 as Moral Damages without subsidiary imprisonment in case of insolvency, and to pay the costs.
The accused Henry Apilo being a detention prisoner is entitled to 4/5 of his preventive imprisonment in the service of his sentence in accordance with Art. 29 of the Revised Penal Code."The Facts
The trial court made the following factual findings:[6]
"x x x Madonna Saldivar is a young orphan, born of the late Sally Saldivar with an unknown father sometime May 23, 1978 (Exhibit H), living with her grandmother Esperanza Saldivar Laureta at San Roque Village, Baguio City, and a Grade III pupil of the Baguio Central School.
On October 1, 1989, at about 3:30 PM, Madonna Saldivar stayed at the house of her classmate, Princess Balisi, because her (Madonna) grandmother lost some money and she was afraid to go home as she may be whipped.
The house of Princess Balisi is located at San Carlos Heights, Baguio City. At the time Madonna Saldivar stayed in the Balisi house, with Catherine, another classmate, those who were in the house were Princess Balisi, her brother Victor Balisi, their mother Rhodora Balisi, the accused Henry Apilo, who was a visitor in said house and Joey (Jun) Balisi. The Balisi house has three rooms.
On the night of October 1, 1989, Madonna Saldivar, Princess Balisi and Catherine, who were all classmate, slept in the room of Princess. However, sometime later that night, Princess Balisi and Catherine were called by the mother of Princess. While waiting for them to come back, Madonna fell asleep only to be awakened subsequently as she felt somebody who was naked embraced her. Madonna saw accused Henry Apilo on top of her and Victor Balisi at her feet.
Henry Apilo boxed Madonna on the stomach, put a cloth in her mouth, and then carried and transferred her to the other room, the third room. There, Henry Apilo ordered her to remove her dress while holding a gun. Scared, Madonna complied. Henry Apilo placed himself on top of Madonna and had sexual intercourse with her by spreading her legs and inserting his penis on her vagina and Madonna felt a white sticky substance in her vagina.
Thereafter, Henry Apilo went out and Victor Balisi entered the room and did the same thing to her. Afterwards, they locked Madonna inside the room.
The next day, October 2, 1989, Madonna was afraid to go home as she might be killed and besides she was locked inside the room.
And on the night of October 2, 1989, Bong Balisi, together with two others entered the room and were told by Victor Balisi to use Madonna or to have sexual intercourse with her. But Bong Balisi and the two others said they could not do it with her and so went out of the room.
Thus, Henry Apilo entered the room again but this time without a gun. Instead, Henry Apilo had a knife and told Madonna not to shout or he will kill her. And he again put himself on top of Madonna, kissed her, touched her breasts, and inserted his penis in her vagina, and moved his body up and down, and after which Madonna felt a whitish sticky substance went out of him. And after the sexual intercourse, Henry Apilo went out of the room.
Like the first time, Victor Balisi followed inside the room thereafter and did the same thing to Madonna. Victor Balisi went on top of her, spread her legs, inserted his penis inside her vagina, and had intercourse with her. And when the whitish sticky substance came out of him, Victor Balisi left the room and locked Madonna inside the room.
The next morning of October 3, 1989, Henry Apilo told Madonna to dress up as he was bringing her home. But instead, he took her in a taxi to the Victory Liner Bus Station. And they rode in a Victory Bus going down all the way to a place Madonna did not know. (The place could be Pasay City in Metro Manila as that is the last station of Victory Liner in their Baguio Pasay route) Henry Apilo took Madonna to his Auntie’s place which appears to be a Disco house or a club as at night they told her to dress up and put on some make-up as she would be invited to a table by a male customer apparently to be a hostess or a hospitality girl.
Madonna stayed in said place for about 5 days only as on the fourth day she did not like the work and so was made a janitor and cleaner of the place. And when she took money as she wanted to go back to Baguio and told them about it, they relented and allowed her to go back to Baguio. Thus, the aunt of Henry Apilo even called for a police to accompany Madonna to the Victory Liner Station and, ultimately, Madonna was able to go home to Baguio.
Back in Baguio, Madonna immediately proceeded to her lola at the latter’s store at the Empire theatre and related all that happened. And her lola told her to tell her Ninong Bert Arquinte, who worked at City Hall at the City Jail, about it.
And so by the morning of October 9, 1989, Madonna went to the police station to report but her ninong was not around and by chance she met Atty. Rolando Vergara of the NBI, who was at the Police Station at the time to whom she reported the incident and who invited her to go to the NBI office.
Thus, on October 10, 1989, Madonna Saldivar went to the NBI office and complained about what happened to her and signed a Complaint Assignment Sheet under oath (Exhibit B). After which, Atty. Rolando Vergara brought her to the Baguio General Hospital for medical examinations by Dr. Eileen Mae Bandonill, whose findings (Exhibit A) were as follows:‘Republic of the Philippines
Department of Health-CAR
DR. EFRAIN C. MONTEMAYOR MEMORIAL MEDICAL CENTER
Baguio City
11 October 1989
TO WHOM IT MAY CONCERN:
This is to certify that I have seen and examined MADONNA SALDIVAR, 13 years old, from #12 San Roque Village, Baguio City who was brought by Atty. Rolando Vergara because of alleged rape (multiple) committed against her person by known assailantNOI : Alleged Rape (Multiple) (4x)Menstrual History : No menarche yet.
DOI : October 1 and 2, 1989
TOI : Unrecalled (nighttime)
POI : San Carlos Heights, B.C.
Pertinent P.E.:
General Survey: Fairly nourished, fairly developed, conscious, coherent, ambulatory, with no signs of external physical injury at the time of examination.
Perineal Inspection: No hematoma nor lacerations noted at the vulva ad perineum.
Hymen - - with old laceration at 5 & 7 o’ clock position.
Internal Exam.: Non-parous introitus
Vagina admits 2 fingers snugly.
Cervix-small, closed, non-tender.
Uterus-small, non-tender.
Bleeding-none.
Discharge-minimal, whitish, non foul discharge.
Specimen taken for gram’s stain and sperm cell identification.
(Sgd) EILEEN MAE B. BANDONILL, M.D.
OB-Resident on Duty - 101-10-89
Result :
Gram Stain : Smear shows plenty of gram (-) negative rods and coccie in pairs.
Pus cells - rare
Sperm cell Identification: Negative for sperm cell.’
Dr. Bandonill, in her testimony in Court, explained that the old laceration of the hymen at 5 to 7 o’clock position is indicative of the fact that Madonna had sexual intercourse prior to the examination as her hymen is no longer intact and that means her vagina was already penetrated by a male organ possibly more than 7 days prior to examination.
After the medical examination of October 10, 1989, Madonna returned to the NBI office in Baguio and there the NBI formed a team to apprehend Henry Apilo and Victor Balisi since Madonna said she can identify them and point to their place.
And so NBI agent Rolando Vergara and other NBI agents, with Madonna Saldivar, proceeded to the Balisi house in San Carlos Heights in the afternoon of October 10, 1989.
Once inside the Balisi house, Madonna Saldivar immediately saw Henry Apilo and pointed to the letter, who was thus arrested by the NBI. On the same occasion, Victor Balisi, too, was apprehended.
Thus, Henry Apilo, Victor Balisi and Rhodora Balisi were apprehended, while Joselito Balisi and Albert Balisi were invited for questioning. And all were brought to the NBI office."
We shall first take up the issue of the credibility of complainant and her testimony, followed by the question of sufficiency of the prosecution’s evidence, and lastly, the question of whether the offended party filed a valid complaint sufficient to confer jurisdiction upon the trial court over the case."I
That the trial court erred in convicting the accused despite the fact that his guilt was not proven beyond reasonable doubt.II
That the trial court erred in giving credence to the incredible and unbelievable testimony of the private complainant.III
That the informations are null and void and do not confer jurisdiction on the trial court over the case considering that the very affidavit of the private-complainant supporting said informations is (sic) being denied as duly executed by said private-complainant."
"x x x the clear, positive, candid and natural testimony of Madonna Saldivar strikes the Court as logical, credible, consistent and convincing.The trial court further held that "(t)he spontaneous and candid narration of Madonna", whom the court found to be "a guileless young girl who is very shy", "was not shown to have been animated by any dishonest motive in imputing rape to the accused x x x".
For one thing, how can a young girl like Madonna Saldivar, under 12 years of age, vividly described (sic) in detail the two occasions she was sexually abused if the sexual intercourse forced upon her by accused did not happen.
Obviously, the exhaustive details narrated by her on the witness stand could not just be the product of her imagination but were actually the unforgettable horrowing (sic) experience left imprinted in her mind. Consider the details she described about the night of October 1, 1989 x x x.
And consider, too, the details she described about the second night of October 2, 1989 x x x.
Surely, a young girl like Madonna Saldivar, if she did not go thru the traumatic sexual experience, cannot describe the details of the sexual intercourse as only in the actual act may all these be known. These matters are not ordinarily taught to Grade III pupils and are not the subject of conversation of girls her age. These details described by Madonna can only mean that indeed, she was raped twice by accused.
Her declarations has all the earmarks of truth and cannot just be concocted."
"x x x it was clearly established beyond reasonable doubt by the evidence above narrated that accused Henry Apilo had carnal knowledge of Madonna Saldivar, a young girl under 12 years of age, by force and intimidation twice; the first, on the night of October 1, 1989 with accused threatening Madonna with a gun to consummate the intercouse; and the second, on the night of October 2, 1989, with accused threatening to kill Madonna while holding a knife to consummate the intercourse; both committed at the Balisi house at San Carlos Heights, Baguio City."The trial court was also correct in holding that, even assuming arguendo that appellant did not resort to force and intimidation and complainant willingly consented to have sexual intercourse with him, such act would still constitute rape since she was below twelve (12) years of age at the time of the commission of the act, as evidenced by her certificate of live birth[30] which shows that she was born on May 23, 1978 and was 11 years old on the dates of the incident on October 1 and 2, 1989.[31]
"Sec. 4. Information defined. -- An information is an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court." (Underscoring supplied).Clearly then, complainant’s failure to sign the Amended Informations is of no moment as she was not required under the law to sign the same.
From the foregoing, it is evident that appellant’s contention is totally baseless.
"Q Now, Madam witness, what time, if you know, was the sinumpaang salaysay finished? A I cannot remember sir. Q And definitely, you signed the sinumpaang salaysay, is that correct, Madam witness? A Yes, sir. Q And that you did not read the sinumpaang salaysay, Madam witness, because you do not know how to read, Madam witness, is that correct? A I did not read this but it was interpreted and explained to me. Q And who explained to you this sinumpaang salaysay, Madam witness. A Atty. Vergara, sir. Q You believed what Atty. Vergara explained to you despite not havingread (sic) this document, is that correct, Madam witness? A Yes, because I was the one who gave the statement, sir. Q Up to now, Madam witness, you do not know word by word what is contained in the sinumpaang salaysay, is that correct, Madam witness? A I know sir. Q Because it was explained to you by Atty. Vergara, is that correct? A Yes, sir. Q You signed this document, Madam witness, is that correct? A Yes, sir. Q And you affixed your thumbmark, is that correct? A Yes, sir.
Q Now, do you know the reason why inspite of the fact that you were asked to sign the document, your thumbmark is (sic) still placed, is that correct, madam witness? A What I know is that, when I was asked to affix my signature here Iwas (sic) made to state if all the contents of this document is true. That is why I affixed my thumbmark. Q So, madam witness, you signed and affixed your thumbmark on this document because you believed that what was explained to you by Atty. Vergara was as it is written here in the document? A Yes, sir."[32]
Let us be very clear about one thing: the complaint at the time of her testimony was 12 years of age, barely able to comprehend the legal implications of her signing the affidavit to support the Information. In the proceedings below, Madonna did not have kith not kin to aid her. In fact, during the preliminary investigation, she was "assisted" only by Rhodora Balisi, whose importunings and false representation (of having paid the NBI P10,000.00 so that Victor Balisi would be dropped) finally led Madonna to sign the affidavit. Perhaps, she may have thought it right, out if gratitude to the NBI who assisted her in preparing her sinumpaang salaysay and to Atty. Vergara who arrested the appellant, that if the NBI was paid for the exoneration of one of the accused, she should so act according to the terms of such arrangment. Her ignorance of the fact that criminal cases cannot be compromised, borne of her tender age, plus the pressures being applied by the adults around her, should not be taken against her. Undeniably, the intent was there: she wanted to prosecute the appellant for the crime of rape, and she had acted accordingly.
"Atty. Orate: Q Now, Madam witness, definitely, you do not want your case against Victor Balisi to be dropped, is that correct Madam witness? A Yes, sir. x x x x x x x x x Q Why did you agree, Madam witness, to sign this document despite the fact thatyou (sic) know that Victor Balisi would be dropped if really you are angry with Victor Balisi and Henry Apilo? A Because according to Rhodora, she has paid already the NBI the amount of P10,000.00 they told me to sign that document so, I signed it. Q Does Vicky or Rebecca know about that? A No, sir. Q Now, Madam witness, was it not a fact that before you sign this affidavit dated October 18, 1989, it was explained to you fully by that person with eyeglasses? A No, sir, it was not explained to me. Q Madam witness, you trust very much Atty. Vergara. Why did you not try to contract Atty. Vergara before signing this document? A No, I did notcall (sic) anymore for Atty. Vergara because I thought it was true that Rhodora had already the NBI thatamount (sic) Q So, are we made to understand, Madam witness, that if you are paid, you are willing to drop all your cases? Fiscal: Misleading, You Honor, because he is (sic) not being paid. Atty. Orate: I withdraw that. Q Do you mean to say that if the NBI will be paid certain amount for all those people involved in this case or in that other case, you are willing to change this sinumpaang salaysay, Madam witness? A No, sir. Q Why then did you agree as in the case of Victor Balisi, Madam witness? A Because of the fact that Rhodora Balisi told me that they gave money to the NBI so I was forced to sign. Q Were you able to verify from the NBI whether that is true, Madam witness? A When I went to the office of the NBI, I asked if it is true that Rhodora Balisi paid that amount but they told me ‘no.’ I was very mad and said to myself I am ‘tanga’ so I signed."
"x x x However, the Court feels Victor Balisi should have been included in the charge of Rape in the two occasions."Thus, we also order the conduct of preliminary investigation of ascertain if there is probable cause to warrant the filing of an Information against Victor Balisi for rape.
"x x x This case involves the crime of rape committed against a very young girl who has been further denied thereby of her right to grow up and discover the wonders of womanhood in the normal way. As we have heretofore declared, uncompromising judicial sanction should stem the growing tide of paraphilia that seeks the youth for its victims, leaving inevitable traumatic and psychological scars on their young and innocent lives."WHEREFORE, the judgment appealed from is hereby AFFIRMED with the ADDITION of civil indemnity of P50,000.00 for each count of rape, for a total of P100,000.00. The Department of Justice is likewise DIRECTED to conduct a preliminary investigation to determine if there is probable cause to file an Information for rape against Victor Balisi.