463 Phil. 492
PANGANIBAN, J.:
"WHEREFORE, x x x.Appellant was charged with two counts of rape, one in the criminal Complaint filed by AAA and in another, by BBB. The Complaints, both dated June 24, 1997 and docketed as Criminal Case Nos. 0458-97 and 0460-97, respectively, read as follows:
"x x x x x x x x x
"Anent Crim. Case No. 0460-97, the Court finds Avelino Latag y Dita alias `Pauto' guilty beyond reasonable doubt, as principal, of the crime of Rape, as defined and penalized under Article 335, par. 3 of the Revised Penal Code, as amended by Republic Act. No. 7659 and sentences him to suffer the supreme penalty of DEATH [and] to pay the costs of this suit. In addition, he is also ordered to indemnify BBB and/or her heirs the sum of P75,000.00, to pay the amount of P10,000.00, as moral damages, pursuant to Article 2219(3) of the Civil Code and the sum of P5,000.00, as exemplary damages pursuant to Article 2229 of the same Code, in order that this case may serve as an object lesson to the public - that no uncle may ever again deprive his niece of `the right to grow up and discover the wonder of womanhood in the normal way.'"[2]
During his arraignment on August 27, 1997,[7] appellant, with the assistance of his counsel,[8] pleaded not guilty to both charges. After trial in due course, the court a quo rendered the assailed decision.Criminal Case No. 0458-97
"That on or about the 5th day of April, 1997 in the evening, at Sitio Santol, Barangay Nangkaan,[3] Municipality of Mataasnakahoy,[4] Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge of the said twelve (12) year-old girl, AAA, against her will and consent."[5]Criminal Case No. 0460-97
"That sometime in the month of April, 1997, at Sitio Santol, Barangay Nagkaan, Municipality of Mataasnakahoy, Province of Batangas, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously lie with and have carnal knowledge of the said ten (10) year-old girl, BBB, against her will and consent."[6]
"BBB was born in Manila to the Spouses Virgilio and Babylita Latag Sarmiento. BBB and her brothers and sisters lived with their parents in Paco, Manila until they transferred to Sitio Santol, Brgy. Nangkaan, Mataas na Kahoy, Batangas in their maternal grandparents' house. In June 1996, the Spouses Sarmiento left all their children at said house as Virgilio had to attend to his occupation as a taxi driver in Manila.
"In April, 1997, at nigh[t]time, appellant Avelino Latag raped BBB. BBB at that time was only ten (10) years old. On that night of April, 1997, BBB was sleeping with her brothers and sisters, AAA (12), Daisy (4), Regienalyn (3), Jandie (1) and Jenevecher (7), and their Tiya Nancy (10) and Tiyo Ronaldo (11) at the second floor of the house. While BBB was sleeping, appellant removed her short pants and panty which roused her from sleep. After appellant removed his short pants and briefs, he placed himself on top of her and inserted his penis into her vagina.
"BBB tried to resist by removing his penis from her vagina, but when she tried to remove it, appellant would box her. She felt pain in her vagina when appellant succeeded in inserting his penis into her vagina. She was not able to shout because everytime she would attempt to do so, appellant would slap her. Appellant stayed on top of her for about one (1) minute. While she was being abused, her grandparents, brothers and sisters, and her aunt and uncle, were sound asleep. After raping her, appellant went back to the lower portion of the house where he normally slept. BBB was able to recognize appellant Avelino Latag because of the lighted kerosene lamp placed on top of the cabinet at the place she had been sleeping.
"After the incident, BBB reported the incident to her older sister, AAA. The sisters reported the incident to their maternal grandparents but they did not believe the children.
"BBB and AAA submitted themselves to a medical examination on May 8, 1997 at the Lipa City District Hospital before Dr. Alex Agato. Upon internal examination of BBB, Dr. Agato found her vaginal opening inflamed and admitted the 5th digit of his examining finger, right hand, with difficulty up to 2 cms. in depth. Dr. Agato also noted that the hymen was absent, which was not natural, and its absence was due to penetration of an object, probably a finger or a penis. Dr. Agato also found that the vaginal opening could be seen and not coopted, something unusual for a ten (10) year-old girl because normally for her age, the vaginal opening can hardly be seen. Dr. Agato issued a medico-legal certificate in favor of BBB dated May 8, 1997 and concluded that she was no longer a virgin."[9] (Citations omitted)
"Enrique Latag averred that BBB is his granddaughter, while Avelino Latag is his son. BBB and her sister AAA arrived in their house sometime in the month of June and lived with him at Nagkaraan, Mataasnakahoy, Batangas for almost one (1) year. He was the one who supported them.
"He came to know for the first time that his two (2) sons Yolito and Avelino Latag were charged with rape when Avelino was apprehended. BBB did not complain to him regarding the alleged rape committed by his sons. During the trial of these cases, he talked to BBB regarding the filing of these cases, but the latter just kept quiet.
"On the month of April 1997, his son Avelino lived at the house of his `kumpare' because he was working with the latter's son.
"Avelino Latag denied the allegation that he raped BBB sometime in the month of April 1997. He was then living in the house of the `kumpare' of his father.
"He claimed that BBB is his niece, being the daughter of his sister. BBB, together with her brothers and sisters, arrived in their house at Nagkaan, Mataasnakahoy, Batangas in order to reside thereat. There are seven (7) children of her sister. When BBB and her brothers and sisters lived at Barangay Nangkaan, their father likewise lived at the house of his uncle Rogelio Tipan at Mataas Na Lupa. Whenever his brother-in-law would be scolded by his uncle, he would sleep in their house. His brother-in-law was staying in the house of his uncle because their house is very small.
"While his nieces and nephews were living in their house, he lived at the house of the `kumpare' of his father near the lakeshore at [S]itio Santol. He started living at the house of the `kumpare' of his father in February 1996 up to May 1997. He was then working with his father's `kumpare' in a construction. During the entire period of his stay at the house of his father's `kumpare', there was no occasion that he sleeps in their own house. It was always late in the evening when they came from work, so he did not have time to go home and sleep in their house.
"His brother-in-law had mauled his sister many times. The last time that his sister was mauled by his brother-in-law was on April 1997 in their house. He and his brother Yolito were then present, so they helped each other in likewise mauling their brother-in-law."[10] (Citations omitted)
I.
"The trial court gravely erred in not considering the Information in Criminal Case No. 0460-97 insufficient to support a judgment of conviction for failure of the prosecution to state the precise date of the commission of the alleged rape, it being an essential element of the crime charged.II.
"The trial court gravely erred in imposing the penalty of death upon accused-appellant despite failure of the prosecution to allege in the information the relationship between the victim and accused-appellant on the assumption that he is guilty of the crime charged."[12]
"SEC. 11. Date of the commission of the offense. - It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission."Furthermore, People v. Gianan[18] explained as follows:
"It is settled that the time of the commission of the rape is not an element thereof, as this crime is defined in Art. 335 of the Revised Penal Code. The gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated therein, i.e., (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. In accordance with Rule 110, §11, as long as it alleges that the offense was committed `at any time as near to the actual date at which the offense was committed,' an information is sufficient. x x x.The rationale for Section 6 of Rule 110 of the Rules of Court is to inform the accused of the nature and cause of the accusation.[20] This right has not been violated in the present case. Appellant's counsel took an active part in the trial by cross-examining the prosecution witnesses and presenting evidence for the defense. It is now too late in the day for appellant to claim that the Complaint was defective. Furthermore, the defense never objected to the presentation of the prosecution evidence proving that the offense had been committed in April 1997. It has not been shown that the testimony of the victim (to the effect that she had been raped during that month) caught appellant by surprise and thus made it difficult for him to defend himself properly.x x x x x x x x x
"Indeed, this Court has held that the allegations that rapes were committed, `before and until October 15, 1994,' `sometime in the year 1991 and the days thereafter,' and `on or about and sometime in the year 1998' constitute sufficient compliance with Rule 110, §11. In any event, even if the information failed to allege with certainty the time of the commission of the rapes, the defect, if any, was cured by the evidence presented during the trial and any objections based on this ground must be deemed waived as a result of accused-appellant's failure to object before arraignment. Accused-appellant's remedy was to move either for a bill of particulars of for the quashal of the information on the ground that it does not conform substantially to the prescribed form."[19]
"x x x A careful study of the Dichao case reveals that what was questioned therein was an order of the trial court sustaining a demurrer to an information on the ground that it failed to substantially conform to the prescribed form when it did not allege the time of the commission of the offense with definiteness. The information therein stated that the sexual intercourse occurred `[o]n or about and during the interval between October, 1910, to August, 1912,' which statement of time the Court described as `x x x so indefinite and uncertain that it does not give the accused the information required by law x x x' and the `x x x opportunity to prepare his defense x x x.' The lower court in allowing the demurrer authorized the dismissal of the case against the accused herein. The Court upheld the order of the trial court. x x x."[22]The accused in Dichao submitted, within the prescribed time, a Motion to quash the Information. In the present case, however, no such motion was ever filed by appellant before the trial court. As he never raised any objection to the sufficiency of the Complaint, he is thus deemed to have waived whatever formal defect it had.[23]
"In the case before us the statement of the time when the crime is alleged to have been committed is so indefinite and uncertain that it does not give the accused the information required by law. To allege in an information that the accused committed rape on a certain girl between October, 1910, and August, 1912, is too indefinite to give the accused an opportunity to prepare his defense, and that indefiniteness is not cured by setting out the date when a child was born as a result of such crime. x x x."[24]Third, appellant did not raise before the trial court any objection to the alleged insufficiency of the Complaint. Consequently, he is deemed to have waived whatever objections he had, and he cannot now seek affirmative relief.[25]
"SEC. 11. Article 335 of the same Code is hereby amended to read as follows:Indeed, the death penalty cannot be imposed upon the perpetrator, if his relationship with the victim is not duly alleged in the complaint or information.[29] "If the offender is merely a relation -- not a parent, ascendant, step-parent, guardian, or common law spouse of the mother of the victim -- the specific relationship must be alleged in the information, i.e., that he is `a relative by consanguinity or affinity [as the case may be] within the third civil degree.'"[30] Both minority and actual relationship must be alleged and proved; if not, a conviction for rape in its qualified form will be barred.[31] In the present case, while the minority of the victim was properly alleged in the Complaint, her relationship with appellant was not specifically stated therein.Art. 335. When and how rape is committed. –The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:x x x x x x x x x
- when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law-spouse of the parent of the victim."
"Q Will you please tell us how Avelino Latag rape[d] you?A He raped me in the evening of April 1997, sir.Q In what exact place in your house were you raped by Avelino Latag?A At the place where he was lying down, sir.x x x x x x x x x Q Now, you said that you were raped by this Avelino Latag, will you please tell the court how he [did it to] you?A He undressed me, thereafter he also remove[d] his clothes, after that he inserted his private organ to my private organ, sir.Q By the way who undressed you?A Avelino Latag, sir.x x x x x x x x x Q After removing your short and panty and after Avelino Latag also removed his short and brief what else did he do, if any?A He inserted his private organ into my private organ, sir.Q Will you please tell the Honorable Court the position of Avelino Latag in relation to you when he inserted his private organ into your private organ?A He laid me down and he also lie[d] down, sir.Q Where was he, was he on top of you while inserting his private part to your private part?A Yes[,] sir.Q What were you doing while he was on top of you and inserting his private part into your vagina?A I was removing it and whenever I was removing it he boxed me, sir.Q You said that you were removing something whenever you removed it you were being boxed by Avelino Latag[,] what was that something that you were removing?A His private organ which was inserted into my private organ, sir.x x x x x x x x x Q How did you come to know that it was inserted into your private part?A Because I felt pain, sir.Q What was the cause of that [pain]?A The inside of my vagina was painful, sir.Q Why was it painful?A I felt pain because he inserted his private organ into my private organ, sir.Q How long did Avelino Latag stay on top of you and inserted his private part into your private part?A Only one (1) minute, sir.Q Did you not shout when he stayed on top of you and inserted his private part into your private part?A No, sir.Q Why?A Whenever I shout[ed] he slapped me, sir."[35]