848 Phil. 173
PERALTA, J.:
That on or about June 24, 2008, in the City of xxxxxxxxxxx, Philippines, the said accused, did then and there[,] willfully, unlawfully, and feloniously, by means of force, violence and intimidation have (sic) carnal knowledge with said AAA, a minor, 14 years old, to wit: by then and there touching her thigh, forcibly holding her hands with his left arm, covering her mouth using his left hand, using his right hand on (sic) removing her short (sic) and pant (sic), kissing her neck, inserting his penis to the vagina of said AAA, succeeding in having carnal knowledge with her, against her will and consent, thereby gravely endangering her normal growth and development and to the damage and prejudice of said AAA.
Contrary to law.[4]
WHEREFORE, accused ANTHONY MABALO y BACANI is hereby found GUlLTY beyond reasonable doubt of RAPE under Article 266-A paragraph l(a) of the Revised Penal Code. in relation to Republic Act No. 7610. He is sentenced to suffer the penalty of RECLUSION PERPETUA, and is ORDERED to pay the victim (75,000.00) as civil indemnity, (75,000.00) as moral damages, and P75,000.00 as exemplary damages, plus interest of 6% per annum on the amount of damages, reckoned from the finality of this decision until full payment.
SO ORDERED.[5]
WHEREFORE, based on the foregoing, the Judgment dated 5 September 2016 of the Regional Trial Court,xxxxxxxxxxx in Crim. Case No. 08-262219 is hereby AFFIRMED in toto.
SO ORDERED.[6]
Under Article 266-A, paragraph 1 of the Revised Penal Code, the crime of rape is committed when a man 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 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 previously mentioned are present. It is penalized with reclusion perpetua as provided under Article 266-B of the Revised Penal Code, as amended by Republic Act No. 8353.
On the other hand, Section 5(b), Article III of Republic Act No. 7610 provides:Section 5. Child Prostitution and Other Sexual Abuse.-Children, whether male or female, who for money, profit, or any other consideration or due to the 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.
x x x x
(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject 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; and
x x x x
The essential elements of Section 5(b) are: (a) the accused commits the act of sexual intercourse or lascivious conduct; (b) the said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and, (c) the child whether male or female, is below 18 years of age.[10] The imposable penalty is reclusion temporal in its medium period to reclusion perpetua, except that the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period.
In People v. Abay,[8] the RTC found the accused "guilty beyond reasonable doubt of committing the crime of rape under Article 335 of the Revised Penal Code in relation to Section 5, Article III of R.A. No. 7610" and imposed upon him the death penalty; although, on appeal, the CA found the accused guilty only of simple rape and reduced the penalty imposed to reclusion perpetua. The Court instructs that if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of R.A. No. 7610, or rape under Article 266-A (except paragraph l(d)) of the Revised , Penal Code; but, he cannot be accused of both crimes. Otherwise, his right against double jeopardy will be prejudiced. Neither can these two (2) crimes be complexed. The Court's disquisition in the Abay case reads:Under Section 5(b), Article III of RA 7610 in relation to RA 8353, of the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A(l)(d) of the revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b of RA 7610 or rape under A1iicle 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes, a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense by a special law.
1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;
b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;
c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended .party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.
6. The trial court should always make a categorical finding as to the age of the victim.
FISCAL MAGAYANES Q You said you were rape[d]. How were you rape[d]? A He held my right thigh using his left hand and then push[ed] me to [lie] on the floor, he covered my mouth with his left hand, Ma'am. Q And then when covering your mouth[,] what happened to the other palm of the accused? A He uses his right hand to pull down my pants, Ma'am. Q By the way, what [were] you wearing at the time? A Jogging pants and sleeveless shirt, Ma'am. Q [Were] you wearing a panty? A Yes, Ma'am. x x x x Q After pulling down your panty[,] what else happened? A He unzipped his short pants and brought out his penis, Ma'am. Q Which part of his arm did he [use] to bring out his penis? A His right hand, Ma'am. Q After that[,] when the accused brought out his penis[,] what else happened? A He lifted his hips, open[ed] my legs and inserted his penis, Ma'am. Q Where did he [insert] his penis? A On my private part, Ma'am. Q How did you know that his penis was already inserted in your private part? A There was as if something was broken and my abdomen hurts, Ma'am. Q When he inserted his penis into your private part, did the accused do any motion? A Yes, Ma'am. Q How can you [describe] that motion? A There was a pumping motion, Ma'am. Q Do you recall how many times did he make the pumping motion? A Two (2) times, Ma'am. Q After that pumping motion[,] what else happened? A I felt something [come] off from him, Ma'am. Q Was this something that came off from him some sort of a liquid? A Yes, Ma'am. x x x x Q After you felt that there [was] liquid coming from the accused, what else happened? A Before he stood up, he still [covered] my mouth [with] his hand and put back his penis inside [his] short[s], Ma'am. Q Did he not [utter] any word while raping you? A No, Ma'am. Q After he zipped his short pants[,] what happened to you? A I pulled up my panty and jogging pants and the accused went inside his room. Q Did he not say anything? A He told me not to tell anybody, Ma'am.[l4]
Whereas a single and consistent testimony of the victim would suffice to sustain a conviction, it is worthy to note that the prosecution was able to further buttress the testimony of AAA by presenting the testimony of both officers, SPO1 Santos and SPO1 Reyes, who both attested to the arrest of Accused-Appellant. Of similar import is the presentation of Dr. Tan's medico-legal report which appear to affirm AAA's version of the story. Such findings reveal the impression that is "diagnostic of blunt force or penetrating trauma," which, according to Dr. Tan, are bruises that may be caused by hard or blunt objects, such as a penis. While it is a shopworn rule that medical finding is not an element of rape and cannot establish the one responsible for the same, jurisprudence dictates that it is corroborative of the testimony of the rape victim that she has been raped. [15]
Aside from the fact that he miserably failed to present the testimony of any of his relatives who he claims to be with him at the time of the incident and could attest to his whereabouts, Accused-Appellant was unable to prove that it was physically impossible for him to be at the place of the crime or at its immediate vicinity; militating against his defense. Accused-Appellant himself testified that xxxxxxxxxxx, where he claims to have been, and the residence of AAA, is but a mere walking distance away. Consequently, Accused-Appellant cannot insist that his denial should not have been completely disregarded due to the blatant lack of substantiating evidence, other than his own concocted story.[20]