376 Phil. 466
DAVIDE, JR., C.J.:
That on or about the 7th day of December, 1993, in the Municipality of Antipolo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of threats, force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant, JOANNA KRISTIN F. NABLE, a minor 5 years of age, against her will and consent.LITO pleaded not guilty upon arraignment. Trial ensued thereafter and the prosecution presented JOANNA; her mother Emma F. Nable; Dr. Jesusa Nieves Vergara, Medico-Legal Officer of PNP; and Dr. Rosauro Cabailo, consultant-surgeon of the V. Luna Hospital. Their testimonies, as summarized by the trial court, are as follows:
Contrary to law."[2]
The complainant minor after she was qualified as a competent witness testified that at the time of the incident she was only with the accused at their home. The accused asked her to let him see her "pipe" (vagina) which she complied. After she showed to him her "pipe" the accused removed his pants and showed her his "titi" (penis). The accused then asked her to hold his penis which she again complied. After that, the accused put on his pants. When asked if the penis of the accused touched her "pipe", the latter answered in the negative. But on the question whether the accused tried to put his penis inside her vagina, she answered in the affirmative. The complainant said that the accused put his penis twice inside her vagina during the night time while her panties was on. Although she felt pain, she did not cry. Instead, she let him do it. She saw urine came out of his penis the color of which she does not know but she described it as sticky. What happened to her was left to herself. However, the incident was discovered by her Mama Coring (grandmother) when she undressed the complainant who was about to sleep.LITO denied having raped JOANNA. He testified he was the houseboy of the Nables and that the case was filed against him because he tried to collect his unpaid salary in the amount of P5,000 to buy new clothes. Instead of paying him his salary, the parents of JOANNA threatened him and told him that he can be arrested at any time. He was subsequently arrested on 7 December 1993. Prior to the arrest he was left alone in their house as the couple and their children went out to work for money. He was told to guard the house while they were away. They left the house at 1:00 o'clock in the afternoon and returned at 8:00 o'clock in the evening. When they returned they were accompanied by a barangay tanod who arrested him. He was brought to the police headquarters and was subsequently detained.[4]
On cross-examination, it was further adduced that when the incident happened her parents were away from their home. The persons left in their house were her Ate Maricel and Mama Coring (Cornelia Formentina, complainant's grandmother). It happened in the latter's room beside the room of her parents. The room has no lock. She confirmed that she was still wearing her panties when accused inserted his penis into her vagina. The sticky fluid which came out from accused's penis was placed outside her panty. After that incident, the accused just picked up his shorts and went to the sala which she also did.
Mrs. Nable testified that the accused became her houseboy on August of 1993 but until December only because he was caught by her mother doing bad acts to her daughter. Her mother complained to her on December 8, 1993 that she saw the accused and the complainant inside the room. She saw her daughter lying on bed who immediately dressed up. Lito Baygar was on top of her who was covered by a thin blanket and immediately zippered his pants. When she learned this from her mother she hurriedly went back home and brought her daughter to the house of her brother whom she asked to follow them. At around 3:00 p.m. when her husband arrived she informed him of the incident and they brought their daughter to Lourdes Hospital and had her examined there. Afterwhich, they went home first and then proceeded to the barangay chairman of Cupang, Antipolo to file a complaint. What happened next was the arrest of the accused and the taking of statements of the complainant and her mother at the police station.
Dra. Nieves Vergara testified that she examined the person of Joanna Kristin Nable on December 9, 1993 upon a letter request from officer on case of Antipolo Municipal Police Station and submitted a Medico-Legal Report No. M-1753-93. Her report on the genital of the complainant stated that:"There is absence of pubic hair. Labia majora are full, convex and coaptated with the congested labia minora presenting in between. On separating the same disclosed an elastic fleshy-type, congested and intact hymen. External vaginal orifice does not admit the tip of the examining index finger."The congestion or redness on the said area could have been caused by application of pressure by any hard object such as fully erected penis.
Dr. Cabailo testified that she also examined the person of the complainant minor in coordination with the Bacteriologist and OB-Gyne of Lourdes Hospital on December 10, 1993. On said examination, they obtained pus on the vaginal discharge of the complainant, meaning that there was an infection on the genital area of the complainant where the smear was taken.[3]
WHEREFORE, finding accused Lito Baygar y Escobar guilty beyond reasonable doubt of rape, under No. 3 of Article 335 of the Revised Penal Code, as charged, he is hereby sentenced to suffer the imprisonment of reclusion perpetua; to indemnify the victim in the amount of P50,000 and costs of suit.LITO seasonably appealed to us from the decision.
The victim, JOANNA, was only five years old at the time of the rape. At such a tender age, she could not be expected to weave with uncanny recollection such a complicated tale as the sexual assault that LITO unconscionably perpetrated on her.[8] Even on cross-examination, JOANNA'S candor and honesty were evident; her language simple and spontaneous, consistent of and befitting someone her age testifying to such a horrible experience, to wit. Thus:
x x x Fiscal Clutario: Do you know what "titi" or penis means Joanna? Joanna: No. Q [Do you know what is called on the part of the body from where a person urine?]sic A No. Q What about the part of your body your urine [sic] comes out do you know what it is called? A Yes. Q What do you [called]sic that? A "Pipe" (vagina). Q Did Lito ask you to let him see your "pipe"? A Yes. Q And did you let him see your vagina? A Yes. Q After you showed to Lito your "pipe", what did he do? A He removed his pants. Q What happened after he removed his pants, what did he do? A He showed me his penis ("titi".) Q And Lito asked you to hold his penis? A Yes. Q Did you hold the penis of Lito? A Yes. Q What did Lito do after you held his penis? A He put on his pants. Q After Lito put on his pants, did the penis of Lito touch your "pipe"? A No. Q Did Lito try to put his penis inside your vagina? A He placed his penis inside my vagina. Q Did anybody see you when Lito was doing that? A None. Q When Lito tried to put his penis inside your vagina, did you feel any pain? A Yes. Q What did you do when you felt pain. A I just let him do it. Q Did you cry out when you felt pain? A No. Q When Lito put his penis inside your vagina, did you feel anything [comes]sic out from the penis of Lito? A Yes. Q Did you see what came out of his penis? A Urine. Q What was the color of that urine? A I do not know. Q Was it sticky? A Yes. Q When Lito put his penis inside your vagina, you were not wearing any panty? A I was wearing my panty. Q How many times [happened]sic that Lito Baygar put his penis inside your vagina? A Two times. Q When he was doing that to you, was it during the night? A Yes. Q Did you tell anyone what happened between you and this Lito? A No. Q Do you know the name of your grandmother? A Yes, I [called]sic her Mama. Q Did you tell your Mama? A No. Q What about your Mommy, did you tell your Mommy? A No.x x x[7]
The victim has been consistent and positive in her testimony that LITO inserted his penis in her vagina and felt pain in the process. LITO has not successfully controverted this testimony. JOANNA's testimony that she had her panty on was not inconsistent with her testimony that LITO inserted his penis into her vagina. The fact that the victim was wearing a panty when the sexual assault was committed did not negate penetration.
Atty. Wilfredo Linaac: Joanna, when Lito put his penis inside your vagina, where was your Mommy and Daddy? Joanna: They left. Q Who was left at the house? A Ate Maricel and Mama Coring. Q How old is your Ate Maricel? A I do not know. Q Where were they when the said Lito Baygar put his penis inside your vagina? A They were inside the room. Q And that Lito Baygar put his penis inside your vagina? A Yes. Q At the room where you are sleeping during the night and so with your Mama and Papa? A No. Q Whose room is that? A Ate Maricel and Ate Baby. Q You said that your Mama was at the other room, which room are you referring to? At the room which your Mama and Papa where sleeping? A Yes. Q And that two rooms were beside each other? A Yes. Q Was there any lock in that door when this Lito inserted his penis into your vagina? A None. Q And that when Lito Baygar inserted his penis into your vagina you said that you felt pain, did you not shout being having felt the pain? A No. Q You said some sticky material coming from him, which part of his body which said liquid to be placed? INTERPRETER: Witness pointing to her vagina. Q You mean to say you were still wearing panty when he inserted his penis into your vagina? A Yes. Q And that sticky fluid placed outside of your panty? A Yes. Q Outside of your panty? A Yes. Q You said that Lito inserted his penis two times into your vagina, after Lito doing that to you, what did he do after that? A He just picked up his pants. Q After that what did he do? A He went out to the sala. Q And that you also went out to the sala? A Yes. Q When did your parents discover that you were being raped by this Lito Baygar? A Mama Coring told them about it. Q You said in your direct examination you did not tell anybody even your Mama Coring, is that right? A Yes. Q Do you know how [hid]sic Mama Coring knew that Lito Baygar [do]sic this to you? A When Mama Coring undressed me. Q When was that? A When I went to sleep, she undressed me. Q That was after the time Lito inserted his penis into your vagina? A Yes.[9]