364 Phil. 576
VITUG, J.:
"CRIM. CASE NO. Q-93-51490When arraigned, the accused pleaded not guilty to the commission of the crimes charged. Trial thereupon ensued.
"That on or about the 11th day of March 1993, in Quezon City, Philippines, the above-named accused, by means of force and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, JOSEFINA P. CANTILLO, a minor, seven (7) years of age, all done against her will and without her consent, to the damage and prejudice of the said offended party.
"CONTRARY TO LAW."
"CRIM. CASE NO. Q-93-51491
"That on or about the 10th day of March 1993, in Quezon City, Philippines, the above-named accused, by means of force and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, JOSEFINA P. CANTILLO, a minor, seven (7) years of age, all done against her will and without her consent, to the damage and prejudice of the said offended party.
"CONTRARY TO LAW."
"CRIM. CASE NO. Q-93-51492
"That on or about the 6th day of March 1993, in Quezon City, Philippines, the above-named accused, by means of force and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge of the complainant, JOSEFINA P. CANTILLO, a minor, seven (7) years of age, all done against her will and without her consent, to the damage and prejudice of the said offended party."
"CONTRARY TO LAW."[1]
"ERNESTO MARCELO denied the charges of rape against him. He testified that he first met Carmelita and her two daughters Josefina and Jaezel on March 5, 1993. He was sitting in front of his store when Carmelita and her two (2) daughters passed by. Josefina smiled at him and called him Daddy. He asked Carmelita if the child's father was still alive and Carmelita replied that the child's father is already dead. Their conversation, however, was only for a short while because Carmelita was then bringing Josefina to school. Later in the morning, after Carmelita fetched Josefina from school, the three (3) went directly to his store. Marcelo invited them inside his store and since it was already lunch time, he invited them to have lunch. Carmelita and her two (2) daughters left after one (1) hour.After the parties had rested their respective propositions, the trial court found for the prosecution on two of the three counts of rape imputed against the accused, thereby sentencing him to suffer two terms of reclusion perpetua and to indemnify the offended party in the amount of P50,000.00 for each count of rape by way of moral damages.
"The following day, March 6, 1993, Carmelita and her two (2) daughters arrived in his store. Carmelita told him that she was going to Marikina to wash clothes and asked his permission to leave her children with him. In answer, he told Carmelita to talk to his daughter Cheryll because it would be Cheryll who will take care of the children. Carmelita then talked to Cheryll who agreed. It was Cheryll and her friend Margarita who took care of the two (2) children. At 6:00 o'clock in the evening, he went to the house of his neighbor and compadre Danilo Bautista, located just across the street. He stayed there until 2:00 o'clock in the next morning. When he returned to his store, Cheryll and Margarita were still awake and chatting. While Josefina and Jaezel already fast asleep on a bed inside his store. He did not go to sleep anymore.
"On March 7, 1993 at about 11:00 to 12:00 noon, Carmelita arrived to fetch her daughters but left only his store at past 6:00 o'clock in the evening. After March 7, 1993, Carmelita and her two (2) daughters were in his store almost everyday. (TSN, July 17, 1995, pp. 3-11)
"He further testified that his store is just a small one and part of the house they used to own. Since there is no comfort room inside the store, they used the comfort room inside the house at the back of the store. The comfort room was accessible through a door at the end of the store's kitchen. However, when his sister sold the house, the new owner padlocked the door going to the comfort room. Since February 1993 and up to December 1993, he and his family used the comfort room of his neighbor Danilo Bautista located just across the street.
"He also admitted that on one occasion he brought Josefina with him to Makati. On the returned trip they took an aircon bus. The bus was then full and it was impossible for him to have caressed and fondled Josefina's private parts as claimed by her. The last time he saw Carmelita and her daughters was towards the end of March 1993 when the latter borrow P1,500.00 from him. (TSN, October 10, 1995, pp. 2-10).
"CHERYLL MARCELO testified that on March 6, 1993 at about 9:00 o'clock in the morning, Carmelita arrived at their store and asked permission from his father to leave her two (2) children, Josefina and Jaezel, in the store . Her father in turn asked her if Carmelita could leave her children to her which she agreed. The whole day, Josefina and Jaezel played with her brother Claver. In the evening, Josefina and Jaezel slept in the only bed inside the store side by side with her, Claver and her friend Margarita. The following morning at about 11:00 o'clock, Josefina and Jaezel were fetched by their mother.
"She further testified that their sari-sari store was very small. It has no divider between the store and the bedroom neither has it comfort room inside. When their father sold the house to their present landlady, they had been using the comfort room of their neighbor Danilo Bautista, located just across the street since January, 1993.
"She further testified that before her father was charged, Carmelita borrowed money from her father. Her father, however, did not give money to Carmelita and since then she never saw Carmelita and her two (2) daughters again. (TSN, March 13, 1995, pp. 3-13).
"DANILO BAUTISTA testified that the accused is his neighbor at Villa Nova Subdivision, Novaliches, Quezon City. He knew the accused since 1990. Since January 1993, he allowed the accused and his family to use the comfort room in his house because there is no comfort room in Marcelo's store. Accused Marcelo and his family used his comfort room up to December 1993. (TSN, April 24, 1995, pp. 2-6)."[5]
"1. The Court a quo erred in finding accused-appellant guilty beyond reasonable doubt of the crime of two (2) counts of statutory rape defined and penalized under par. 3, Article 335 of the Revised Penal Code and sentencing him to suffer imprisonment for two (2) terms of reclusion perpetua despite the weakness and insufficiency of prosecution evidence.The defense contends that if it were true that the laceration of the victim's hymen has been caused by the insertion of the accused-appellant's genital organ into the victim's vagina, the laceration of the hymen would not have been merely a shallow laceration from the edge up to the middle part or about thirty percent of its width considering the tender age of the victim.
"2. The trial court likewise erred in giving due weight and credible to the testimony of complainant Josefina Cantillo and her mother, Carmelita Cantillo despite its inherent inconsistencies, contradictions and improbabilities which renders their testimonies untruthful.
"3. The trial court erred in rejecting accused-appellant defense of denial."[6]
"GENERAL AND EXTRAGENITAL:The testimony of Josefina on her harrowing ordeal could not be more vivid than as so testified to by her; thus:
"Fairly developed, fairly nourished and coherent female child. Breasts are undeveloped. Abdomen is flat and tight.
"GENITAL:
"There is absence of pubic hair. Labia majora are full, convex and coaptated with the light brown labia minora presenting in between. On separating the same is disclosed an elastic, fleshy-type and congested hymen with shallow healed laceration at 9 o'clock. External vaginal orifice offers admits the tip of the examining index finger.
"CONCLUSION:
"Subject is in non-virgin state physically.
"There are no external signs of recent application of any form of violence.
"REMARKS:
"Vaginal and peri-urethral smears are negative for gram negative diplococci and for spermatozoa."[7]
"Q Were you and your sister ever left along in the house of Ernesto Marcelo?Even if it were to be assumed that the penetration of the female organ has been incomplete, such fact will not necessarily negate the commission of rape.[9] It is not legally required in order to constitute rape that there be a full penetration of the genital organ of the victim.[10] Consistently, this Court has held that rape can be committed even with the slightest penetration of the sex organ of the woman. The mere entry by the penis into the lips of the said organ, even without rupture or laceration of the hymen, is enough.[11] Laceration of the hymen, even if considered the most telling and irrefutable physical evidence of sexual assault, is not always essential to establish the consummation of the crime of rape.[12]
"A Everytime his children will go to school me and my sister Bing were left behind.
"Q Do you remember an instances when the children of the accused Ernesto Marcelo went to school and you were left together with your sister alone in the house of Ernesto Marcelo in that instance did Marcelo ever touch you?
"A Sir, before he played with me he closed his store and then he called me to the bed and that he told me that we will play.
"Q What happened next when you were already in the bed?
"A Sir, he removed my panty.
"Q What about your t-shirt did he remove?
"A No, sir.
"Q After removing your panty what happened next?
"A He also removed his brief.
"Q After he removed his brief what happened next?
"A Sir he placed himself on top of me and he pumped at me and then a fluid came out from his penis.
"Q Now, you said that the accused went on top of you and started pumping. Would you describe further how he did pumping you?
"A Sir, his body was moving in a pumping condition.
"Q Were you hurt when he was pumping?
"A Yes, sir.
"Q What portion of your body was hurt?
"A My vagina, sir.
"Q Why was your vagina hurt?
"A Sir because he put his penis inside my vagina.
"Q How long was he pumping on top of you?
"A Sir I cannot remember the duration of his pumping.
"Q Now, you said earlier that he inserted his penis in your vagina that is why you were hurt. How did he insert his penis into your vagina?
"A Sir at first he held his penis and insert it into my vagina.
"Q Did the accused spread your legs?
"A Yes sir.
"Q Now, you said that you felt pain when he inserted his penis. Did you immediately feel that pain when he immediately entered his penis into your vagina?
"A No sir I felt the pain gradually.
"Q Was he able to insert his entire penis into your vagina?
"A Yes sir.
"Q Now, you said that he was pumping you while his penis was inside your vagina and you said earlier that you felt something. What was this something?
"A It seems like a fluid was coming out from his penis sir.
"Q Now, you said that you gradually felt pain while he was pumping you. Did you shout?
"A No sir.
"Q During that time that he was pumping you do you remember what his hands were doing at that time?
"A Sir I cannot recall anymore.
"Q Was Ernesto Marcelo kissing you at that time also?
"A Yes sir.
"Q Where he was kissing you?
"A On my breast sir.
"Q Now, did Ernesto Marcelo ever take out his penis from your vagina?
"A Yes sir.
"Q How many times did Ernesto Marcelo did this to you?
"A Sir for several times but I cannot remember the exact number of times."[8]
"ART. 335. When and how rape is committed.- Rape is committed by having carnal knowledge of a woman under any of the following circumstances:Given the facts and the law heretofore expressed the trial court has correctly imposed two terms of reclusion perpetua. In addition to the P50,000.00 moral damages awarded by the trial court for each count of rape, the complainant is also entitled, pursuant to prevailing jurisprudence, to a civil indemnity ex delicto of P50,000.00 in each case.
"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, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.
"The crime of rape shall be punished by reclusion perpetua.
"Whenever the crime of rape is committed with the use of a 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 likewise death.
"When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. (As amended by Rep. Act No. 2632, approved June 18, 1960, and Rep. Act No. 4111, approved June 20, 1964)."