People vs. Bello, G.R. Nos. 130411-14 October 13, 1999

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. 130411-14 October 13, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODRIGO BELLO, accused-appellant.

MELO, Acting C.J.:

In a highly conservative and religious society like ours, no crime is perhaps more repulsive and disgusting than incestuous rape, and much more so, rape by fathers of their minor daughters. As such, our Legislature has declared such offense undeserving of society's mercy, compassion, and leniency, providing, that the offense should rightfully carry with it the supreme penalty of death. Regrettably, the imposition of said penalty in the case at bar cannot be properly sustained due to the requirements of substantial justice and procedural rules not having been fully satisfied.1âwphi1.nêt

Accused-appellant was charged with four (4) counts of rape committed against his own legitimate daughter, Jenalyn A. Bello, committed on August 13, 14, 19, and 24, 1995. The first information alleged:

That on or about the 13th day of August, 1995, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being the father of Jenalyn A. Bello, a minor, twelve (12) years of age, by means of force and intimidation, did, then and there wilfully, unlawfully and feloniously have carnal knowledge with Jenalyn A. Bello against her will, and consent, with the aggravating circumstance of relationship.

CONTRARY TO LAW.

(p. 9, Rollo.)

The three other informations were identically worded as the above information, except that they respectively charged that the rape therein committed occurred on August 14, 19, and 24, 1995.

At the arraignment on February 13, 1996, accused-appellant pleaded not guilty. Thereafter, the prosecution presented its side through the lone testimony of the victim which was summarized by the Office of the Solicitor General as follows:

THE RAPE OF AUGUST 13, 1995

Around 3 o'clock in the early morning of August 13, 1995, while Jenalyn was soundly sleeping in the bedroom of their house together with her two younger brothers, her drunken father woke her up and ordered her to go to the kitchen. She walked to the kitchen and he followed her. In the kitchen, he angrily ordered her to undress, promising to give her money. Realizing the evil intent of her father, she gently pleaded: "Do not do that". Gripped with fear, however, Jenalyn followed his command. Naked, he made her lie on a bench, laid on top of her and inserted his erect penis into her vagina. Feeling intense pain, she continued her plea: "Do not do that." But he paid no heed. She called for her mother, who was then sleeping at the sala, but to no avail. Jenalyn could not do anything but submit herself to the evil desires of the man whom she feared and from whose hands she suffered several punishments. Appellant succeeded in having carnal knowledge of his own daughter.

(pp. 2-3, Appellee's Brief.)

THE RAPE OF AUGUST 14, 1995

Around 1 o'clock in the early morning of August 14, 1995, appellant woke up Jenalyn and sternly whispered: "Do not say anything. Do not tell your mother. Anyway, you are not a virgin anymore." He, thereafter, ordered her to undress. At that time, Jenalyn's mother was at the public market selling fish to the early fish buyers.

When she was already naked, appellant placed himself on top of her and inserted his private organ into hers. Jenalyn repeatedly pleaded: "Father, do not do that!" He did not mind her. Instead, and in a jeer his father remarked: "Why are you saying that, anyway you are no longer a virgin like your elder sister" (appellant was obviously referring to his daughter Juliet Bello who was also victimized by him, but lucky to escape his clutches). After he was through with his sexual carnage, appellant just left the room.

Jenalyn cried the whole day, but her mother did not even ask what was bothering her. Sensing that her mother knew what was happening, Jenalyn lost the courage to approach and tell her about the matter.

(pp. 3-4, Appellee's Brief.)

THE RAPE OF AUGUST 19, 1995

Around 3 o'clock in the morning of August 19, 1995, appellant replayed the sexual assault upon Jenalyn at the kitchen of their abode while his wife was sleeping at the sala. After threatening her, he compelled her to lie on the floor. Appellant positioned himself and inserted his erect organ into her vagina enjoying his bestial act. Unable to bear the pain, she repeated her plea: "Father, do not do it anymore." Appellant bluntly replied: "Do not say anything." Her mother's lack of concern and her own fear for her father, muted Jenalyn from crying for help.

(p. 4, Appellee's Brief.)

THE RAPE OF AUGUST 24, 1995

Around 9 o'clock in the morning of August 24, 1995, Jenalyn was at Sankalan Elementary school to attend her first periodical examination. Realizing that she did not have enough paper for the examination, she returned home to ask money from her mother to buy paper. When she reached home, she saw her father and brother J.R. She went straight to their comfort room as she had then her menstrual period. From there, she proceeded to their bedroom to get something. Her father followed her and asked if she still had classes. She answered in the affirmative. Thereafter, he ordered her to undress. She refused, saying "Father, don't do that because I have my menstruation, besides, we are having now our periodical tests." Appellant insisted that she undress. Afraid of his usual maltreatment, Jenalyn gave in. After satisfying his lust, appellant just left his devastated daughter.

(p. 5, Appellee's Brief.)

On April 16, 1996, the scheduled date of the cross-examination of the complainant, accused-appellant, through his counsel de oficio, manifested that he wished to withdraw his earlier plea of not guilty and to substitute the same with one of guilty. Convinced that accused-appellant understood the consequences of his change of plea, the Honorable Mateo M. Leanda, presiding judge of Branch 8 of the Regional Trial Court of the 8th Judicial Region stationed in Tacloban City, allowed the same to be entered in the record of the four rape cases. The defense proceeded to cross-examine complainant and thereafter presented accused-appellant for the purpose of proving mitigating circumstances. Later, accused-appellant moved for the reinstatement of his plea of not guilty, but this was denied by the trial court in its order dated October 4, 1996.

On November 21, 1996, the trial court rendered judgment finding accused-appellant guilty of four counts of rape, and disposed as follows:

WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING, this Court finds accused RODRIGO BELLO, alias "Rudy", guilty beyond reasonable doubt, as principal, of the consummated four counts of RAPE, as defined and penalized under Art. 225 of the Revised Penal Code, as amended by Republic Act No. 7659, and he is hereby sentenced accordingly to suffer the supreme penalty of DEATH, for each count. In addition thereto, the accused's estate, if any, is ordered to indemnify the offended party, JENALYN A. BELLO, the sum of fifty thousand (P50,000.00) pesos, for each count of rape, as the subjects of this case, or the total amount of two hundred thousand pesos (P200,000.00). The accused's properties is also condemned to pay exemplary damages to the complainant in the sum of P20,000.00 per count, or a total of eighty thousand (P80,000.00) pesos in all.1âwphi1.nêt

With costs de oficio.

(pp. 35-36, Rollo.)

Accused-appellant assails said judgment, arguing that the trial court erred in: (a) convicting accused-appellant despite the failure of the prosecution to prove his guilt beyond reasonable doubt, and (b) in not allowing him to present additional evidence.

After a meticulous and objective evaluation of the record of this case, this Court is of the carefully considered opinion that the court a quo failed to observe the required procedure for cases where the accused pleads guilty to a capital offense.

Sec. 3, Rule 116 of the Revised Rules on Criminal Procedure is explicit that "when the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and require the prosecution to prove his guilt and the precise degree of culpability. The accused may also present evidence in his behalf." Under this Rule, three things are enjoined upon the trial court when a plea of guilty to a capital offense is entered: (1) the court must conduct a searching inquiry into the voluntariness of the plea and the accused's full comprehension of the consequences thereof; (2) the court must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability; and (3) the court must ask the accused if he desires to present evidence on his behalf and allow him to do so if he desires (Pamaran, Manuel, R., 1995 Rules on Criminal Procedure, Annotated, Rules 110-127, 1998 Edition, p. 307, citing People vs. Camay, 152 SCRA 401 [1987]). This procedure is mandatory and a judge who fails to observe it commits grave abuse of discretion (People vs. Dayot, 187 SCRA 637 [1990]).

In People vs. Albert (251 SCRA 293 [1995]), we pointed out that the rationale behind the aforequoted rule is that courts must prove with more care wherever the possible punishment is in its severest form — death — for the reason that the execution of such a sentence is irrevocable and experience has shown that innocent persons have at times pleaded guilty.

A careful perusal of the record of this case reveals a measure of shortcoming on the part of the trial court to explain fully to accused-appellant the consequences of his plea of guilty, the trial court failing as it did to conduct the requisite searching inquiry so as to determine whether accused-appellant's plea possessed all the requirements of an acceptable one. The proceedings below on this point transpired as follows:

ATTY. ESBER:

For the accused. Before I proceed to cross-examine the witness, the accused intimated to me that he be allowed to change his previous plea of not guilty to "yes guilty."

COURT:

ORDER

Before the cross-examination of the complainant in her joint testimony for all the four (4) rape cases, the defense counsel moved the Court that the accused be allowed to withdraw his former plea of "Not Guilty" to the charge of "Rape" and substitute the same with that of "Yes Guilty."

There being no objection from the prosecution, let the accused be re-arraigned.

SO ORDERED.

INTERPRETER:

Accused pleading guilty, Your Honor.

ATTY. ESBER:

With the change of the plea of the accused from a former plea of "Not Guilty" to "Yes Guilty" to the four (4) counts of Rape, that a lesser penalty of reclusion perpetua instead of death be imposed.

PROS. CAÑA:

In the meanwhile, we would like to be allowed to present evidence if only to determine the degree of the culpability of the accused pursuant to the Rules of Court.

COURT:

ORDER

After the re-arraignment, the accused voluntarily pleaded guilty to the four (4) counts of Rape. However, the Court insisted that Fiscal Caña should continue presenting the evidence constituting the testimony of complainant to comply with the requirements of law on procedure to determine the gravity of the offense charged and, likewise, the defense is required to present evidence to satisfy the requirement of the law.

SO ORDERED.

(tsn, April 16, 1996, pp. 2-3.)

Evidently, there is no showing that accused-appellant was put on the stand for purposes of inquiring whether he fully comprehended the legal consequences of his plea of guilt. The original record of this case is completely bereft of any document concerning accused-appellant's supposed re-arraignment. We cannot presume that the re-arraignment of accused-appellant was regularly conducted. We cannot lean on this rebuttable presumption especially when a man's life is at stake. We cannot anchor our judgment based on mere speculations and conjectures. Rather, we must be positively convinced. Where a capital offense like incestuous rape becomes the subject of a positive plea, it becomes imperative for the trial court to administer a searching inquiry and receive evidence undisputably showing that the accused admits his guilt freely, voluntarily, and with full knowledge of the consequences and meaning of such a plea (People vs. Albert, supra). And a plea of guilty is improvidently accepted where no effort is even made to explain to the accused that a plea of guilty to an information for a capital offense may result in the imposition of the death penalty (People vs. Derilo, 271 SCRA 633 [1997]).

A "searching inquiry", under the Rules, means more than informing cursorily the accused that he faces a jail term but so also, the exact length of imprisonment under the law and the certainty that he will serve time at the national penitentiary or a penal colony. Not infrequently indeed, an accused pleads guilty in the hope of a lenient treatment, or upon bad advice, or because of promises of the authorities or parties of a lighter penalty should he admit guilt or express remorse. It is the duty of the judge to see to it that the accused does not labor under these mistaken impressions (People vs. Dayot, supra).

Although there is no definite and concrete rule as to how a trial judge may go about the matter of a proper "searching inquiry", it would be well for the court, for instance, to require the accused to fully narrate the incident that spawned the charges against him, or by making him reenact the manner in which he perpetrated the crime, or by causing him to furnish and explain to the court missing details of significance (People vs. Estomaca, 256 SCRA 429 [1996]). In the case under review, the record does not reveal any information about the personality profile of accused-appellant which can serve as a trustworthy index of his capacity to give a free and informed plea of guilt. Questions pertaining to the age, socio-economic status, and educational background of accused-appellant which may provide contributory insights for a proper verdict in this case were not propounded by the trial court.

Further, the trial court did not bother to explain to accused-appellant the essential elements of the crime of rape pursuant to Section 11 of Republic Act No. 7659 violation of which he was charged with. The trial judge also failed to inform accused-appellant that he would be made to indemnify his victim. As a result, accused-appellant was not properly accorded his fundamental right to be informed of the precise nature of the accusation against him, which is an integral aspect of the due process clause under the Constitution (People vs. Sevilleno, G.R. No. 129058, March 29, 1999).

Likewise, there is no showing that accused-appellant was specifically warned that on his plea of guilty, he would definitely and in any event be given the death penalty under Republic Act No. 7659. He was categorically advised that his plea of guilty would not under any circumstance affect or reduce the death sentence as he may have believed or as it may have been erroneously suggested to him. Such mistaken belief on the part of accused-appellant which may have impelled him to plead guilty is demonstrated in his testimony, to wit:

PROS. CAÑA:

Q: Knowing the contents of the four Informations during the re-arraignment, you pleaded "Guilty" to each of them?

A: I was afraid because, according to them, I will be hanged and I do not want to be hanged because who will support my wife and my children. My wife has no work.

(tsn, May 9, 1996, p. 6.)

COURT:

Q: As a whole, you deny these four (4) incidents of Rape you have committed against your daughter?

A: I do not know about that.

Q: Inspite of the fact that previously you entered a plea of "guilty" to each of these four (4) counts?

A: Because I am afraid, I might be killed.

(tsn, ibid., p. 5.)

These repeated and emphatic declarations of accused-appellant should have attracted the attention of the trial court that accused-appellant did not have full knowledge of the consequences of his plea. The trial judge at this instance should have informed and forewarned accused-appellant, in ordinary language, of three things: First, that accused-appellant's plea of guilty cannot be considered mitigating as it was made after the presentation of the evidence for the prosecution, thus, foreclosing the application of Paragraph 7, Article 13 of the Revised Penal Code. Second, that the penalty of death shall be imposed when the rape is committed by a father against a minor daughter, in accordance with Section 11 of Republic Act No. 7659. Third, that inasmuch as death is a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstance that may have attended the commission of the offense, as provided by Article 63 of the Revised Penal Code. Verily, accused-appellant cannot be reasonably expected to fully understand all the implications of his plea without the necessary detailed elucidation on the part of the trial judge. Clearly, the latter failed to observe the quantum of care which the Court had prescribed for the valid admission of a plea of guilty by an accused. As a dispenser of justice, the trial judge should have endeavored to discharge his duties competently and efficiently so as not to erode public confidence in the judiciary.

Finally, a plea of guilty must be an unconditional admission of guilt. It must be of such nature as to foreclose the defendant's right to defend himself from said charge, thus leaving the court no alternative but to impose the penalty fixed by law (People vs. De Luna, 174 SCRA 204 [1989]). An accused may not foist a conditional plea of guilty on the court in the sense that he admits his guilt provided that a certain penalty will be meted unto him. Likewise, a formal plea of not guilty should properly be entered if an accused admits the truth of some or all the allegations of the information, but interposes excuses or additional facts which, if duly established would exempt or relieve him in whole or in part of criminal responsibility (People vs. Albert, supra). The ungrammatical answers of accused-appellant to equally fractured questions during his direct examination is, on this point, revealing:

ATTY. ESBER:

Q: What happened to Jenalyn, who is now being a subject matter of this case? The question now is: Is it your own will that what happened to Jenalyn is intentionally done by you?

A: No, sir.

Q: Why do you say that it was not done intentionally by you?

A: Because, that time, I was drank. I usually do not drink I am not a habitual drinker.

Q: As a follow-up question. Do you mean to convey that because you were drank at that time you do not know what you were doing?

A: No, sir.

(tsn, May 9, 1996, p. 4.)

COURT:

Q: One of the charge against you for Rape was allegedly committed, according to the Information, was on August 13, 1996, do you know that?

A: I do not know, Your Honor.

Q: So, you do not know what happened to you and your daughter on this particular date of August 13, 1995?

A: I do not know. I was not even at home on that day.

Q: Where were you then?

A: I was at my place of work.

Q: Did you, at any time, met your daughter and have a contact with her on said date the whole day?

A: No, sir, because I have an overtime with my work.

Q: Your daughter testified in court that she was raped by you on August 13, 1995, was she telling a lie?

A: Yes, she was telling a lie because she is being coached by her sister and by her aunt.

Q: Your daughter testified in court under oath that on August 13, 1995, at 10 o'clock in the evening, while she was in the bedroom, she was awakened by you and you inserted your penis in her vagina, is this true?

A: That is a lie because my wife, myself and my daughter are sleeping together.

Q: Your daughter further testified that on August 14, 1995, at 1 o'clock in the early morning, you requested her to boil water in her kitchen because you were drank, you took advantage of her, you layed her down and took advantage of her. Did you hear that statement of your daughter here in court?

A: Yes, I have heard the testimony but I did not do it.

Q: Another incident. On August 19, 1995, at 3 o'clock in the early morning, you woke her up while she was sleeping in the bedroom and then told her to go to the kitchen, and while at the kitchen you commanded her to undress, and then you even told her that before you will die you should be able to abuse herself first or have sexual intercourse with her. Did you hear that statement of your daughter here in court?

A: She is telling a lie.

Q: As a whole, you deny these four (4) incidents of Rape you have committed against your daughter?

A: I do not know about that.

Q: Inspite of the fact that previously you entered a plea of "Guilty" to each of these four (4) counts?

A: Because I am afraid, I might be killed.

(tsn, p. 5, May 9, 1996.)

It is without doubt that accused-appellant was adamant in his denial of the charges filed against him. Such being the case, the trial court should have required accused-appellant to plead anew to the charges, or at least, it should have directed that a new plea of not guilty be entered for him since said testimony had the effect of vacating his plea of guilty. Thereafter, the court a quo should have proceeded with the trial of the case to determine the guilt or innocence of accused-appellant (People vs. Balisacan, 17 SCRA 119 [1966]).

Let it be clearly understood that the administration of justice, including among other things, the punishment of guilty persons and the protection of the innocent, is the very reason for the existence of courts. While justice demands speedy administration, courts are in duty bound to be extra solicitous in seeing to it that when an accused pleads guilty he understands fully the meaning of his plea and the import of his inevitable conviction. Any court which abets injustice or neglects to ascertain the truth with the use of all the faculties at its command abdicates its most important function and forfeits its very right to existence (Nitafan, David G., Arraignment in Serious Offenses, 251 SCRA 161 [1995]).1âwphi1.nêt

WHEREFORE, the judgment of the court a quo convicting accused-appellant Rodrigo Bello of four counts of rape is hereby vacated. The four rape cases are REMANDED to the court of origin for proper arraignment and trial of the accused, with instructions that the same be given topmost priority and the proceedings therein be conducted with deliberate dispatch and circumspection.

SO ORDERED.

Puno, Vitug, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., Bellosillo and Kapunan, JJ., are on leave on official business.

People vs Diño, G.R. No. L-41462, April 15, 1988

Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-41462 April 15, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
REMY DIÑO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Efrain B. Treñas for accused-appellant.

MELENCIO-HERRERA, J.:

Originally, this was an appeal by the three accused. Remy Diño, Jose Dequito and Salvador Dequito from the Decision of the then Court of First Instance of Iloilo , Branch III, finding each of them guilty of three (3) crimes of Rape with Homicide and sentencing each one to three (3) penalties of reclusion perpetua; to indemnify the heirs of Melinda Boglosa, jointly and severally, in the sum of P12,000.00; and to pay the costs.

On November 26, 1985, accused Salvador Dequito and Jose Dequito filed an Urgent Motion to Withdraw Appeal, which was granted by the Court, and entry of judgment in their respect was made on December 13, 1985 (p. 172, Rollo).

The evidence for the prosecution is summarized in the People's Brief, thus:

Jose and Salvador, both surnamed Dequito, Remy Diño and one Melinda Boglosa were all from the barrio of Tambuelan, Municipality of Dumangas, Iloilo (p. 7, tsn, May 3, 1974).

On November 13, 1973 at about noontime, while Roberto Dumancas, a ten-year old boy and a relative of Remy Diño was herding his carabao in a ricefield situated at Sitio Sapa, Barrio Tambuelan, Municipality of Dumangas, Iloilo, he saw Jose and Salvador Dequito and Remy Diño at about a distance of fifty (50) meters away (pp. 5, 6, 17, 26, tsn, May 3, 1974). Shortly after, Roberto Dumancas saw Melinda Boglosa come along (pp. 8, 27, tsn, May 3, 1974). As Melinda neared the group, Salvador Dequito suddenly pulled her down which caused both of them to fall on the rice paddy (p. 8, tsn, May 3, 1974). Remy Diño held the hands of Melinda, while Jose Dequito, held her legs (pp. 8, 9, tsn, May 3, 1974). Thereafter, Salvador Dequito took off his pants and underwear and went on top of Melinda and had carnal knowledge of her (p. 9, tsn, May 3, 1974). Jose Dequito and Remy Diño then took turns ravishing Melinda Boglosa (pp. 11, tsn, May 3, 1974). When the three were through with their beastly act, Salvador Dequito choked Melinda Boglosa and with an engine cranker, struck her on the forehead (pp. 12, 14, t.s.n, May 3, 1974). Then the three dragged Melinda Boglosa and pushed her head on the ground which was knee-deep with water. She was later found dead (p. 14, tsn, May 3, 1974).

It appears that at the start of the above-described incident, Roberto Dumancas sought cover behind some talahib from where he witnessed the incident in its entirety (p. 15, tsn, May 3, 1974).

After the incident, Roberto Dumancas returned to his carabao, which was a meter away from where he was hiding (p. 15, tsn, May 3, 1974), and then went home. He told a relative named Fe of the incident he had witnessed (pp. 16, 18, 27, tsn, May 3, 1974).

Days after the incident, Roberto Dumancas was brought by a PC soldier to Barotac, Nuevo Iloilo where he was investigated regarding the incident (pp. 18, 19, 29, tsn, May 3, 1974). Afterwards, he was brought to Fort San Pedro, Iloilo City, headquarters of the Philippine Constabulary where he signed a statement (p. 19, tsn, May 3, 1974; Exh. "A" p. 55, Records).

Remy Diño also gave a written statement on November 19, 1973, before PC Soldier Ismael Suyo confessing his participation in the crime as well as those of his companions, Salvador and Jose Dequito (pp. 83, 84, 87, tsn May 30, 1974; p. 9, tsn, May 31, 1974; Exh. "C" p. 57, Records). The said confession was sworn to and subscribed before Atty. Salvador Solis, Assistant Clerk of Court of the Court of First Instance, Iloilo (p. 75, tsn, May 30, 1974; pp. 42, 45, 46, tsn, May 31, 1974). (pp. 2-4, Brief for the Appellee).

The Necropsy Report of the NBI Medico-Legal Officer gave the following:

Post Mortem Findings:

Height—148 cms. Weight—115 lbs.

Well developed, healthy victim, froth with blood coming out of both nostrils, around 22 hours dead.

WOUND 1 -1/2 cms. x 0.2 cms. 75 degrees perpendicular to the left, right side neck, 128 cms. from the heel of the feet right, 7 cms. from the median line, at the level of hyoid bone of the neck.

GENITALIA—Hymen-laceration, deep at 3:00 blood coming out from the site. Vaginal, filled with viscid, albuminous fluid with faint grayish-yellow color, having the characteristic of fishy odor.

MICRO-CHEMICAL EXAMINATION OF THE FLUID CONTENT OF THE VAGINA

1. Positive for seminal fluid

2. Positive for spermatozoa

CONCLUSION

1. Sexually abused

2. Died of asphyxia by strangulation and drowning.

On the other hand, the evidence for the accused-appellant, Remy Diño, as narrated in his Brief, reads in full as follows:

... the Lower Court found the evidence for the accused Remy Diño which consisted of the testimonies of the following witnesses:

Marcelino Dequito, 62 years old, a fishpond watcher and resident of Barrio Tambuelan, Dumangas, Iloilo testified that he knows the accused Remy Diño and the two other accused Salvador Dequito and Jose Dequito since they were small.

In the morning of November 13, 1973, he saw Remy Diño in the house of Dominic Doronilla, which was near his house, together with other persons and they were singing.

Before lunch on that day, Remy Diño went to his house and he told him to wait for his father (Remy's father) who was arriving from Barotac, Nuevo, Iloilo after lunch and he would be bringing some ice and also to borrow the carabao and cart of Violeta Donguila so that he can load the ice on it to bring it to the fishpond as they were harvesting fish that evening.

Remy left to go to the house of Violeta which was also near by and later had lunch at his, house and came back while they were having lunch.

In his house then was living an American Peace Corps by the name of Kathleen Hustace. After lunch that day, she (Kathleen) and Remy Diño fed the birds.

After lunch, he (Marcelino Dequito) left for his farm which was about one-half kilometer away and when he left his house he still saw Remy and Kathleen feeding the birds.

While going to his farm he saw Simon Dequito who was calling for him and when he went to the place where he was standing, he saw that there was a body of a girl and they both helped each other to place the body on the rice paddy in order to revive her as she was still warm but they found that she was already dead.

Simon Dequito called for help from the neighborhood while he went back to the barrio to inform Teopisto Dumayas, the Barrio Captain. The Barrio Captain then requested somebody to inform the authorities in the Poblacion, while he went to his house to rest and later on he went to the fishpond as they were going to harvest fish that evening. In the fishpond he saw the accused Remy Diño, who was then there and who brought the ice together with his father. They harvested the fish that evening and they, together with Remy Diño returned to the barrio the next day (t.s.n., pp. 117-151; Sept. 12, 1974).

The next witness Kathleen Hustace testified that she was an American Peace Corps assigned to the Philippines. She arrived in the Philippines in August, 1973 and in the Barrio of Tambuelan, Dumangas, Iloilo in September, 1973.

In Barrio Tambuelan, she stayed at the house of Marcelino Dequito (who testified before her). She knows Remy Diño and in the morning of November 13, 1973, she saw Remy in the house of Dominic Doronila, which was nearby, singing with other boys.

After lunch, she and Remy Diño fed the birds and a little before one o'clock she went up the house to change and left afterwards as she had an appointment (t.s.n., pp. 151-197; September 12, 1974).

The third witness was the accused Remy Diño who testified that he is one of the accused in this case. That in the morning of November 13, 1973, he, together with other boys were singing at the house of Dominic Doronila.

Later he went to the house of Marcelino Dequito, which was also nearby and Marcelino told him to borrow the carabao and cart of Violeta Donguila as his father was arriving from Barotac Nuevo, Iloilo, after lunch with the ice which they were going to use to freeze the fish they were going to harvest that evening, and he and his father were supposed to load the ice in said cart to bring it to the fishpond.

Because of said request of Marcelino, he borrowed the carabao and cart of Violeta and then went to his house for lunch. After lunch, he went back to the house of Marcelino and found them still having lunch. After lunch, he and Kathleen Hustace, an American Peace Corps living in the house of Marcelino Dequito fed the birds until a little before one o'clock when Kathleen went upstairs to change and later left.

In the meantime, he waited for his father who later on arrived at around two o'clock in the afternoon in a tricycle from Barotac Nuevo, Iloilo, with the ice which they loaded in the cart of Violeta and which they brought to Palok Bigki, a distance of about one and a half kilometers away, there to be unloaded and brought to the fishpond by boat.

Thereafter, he returned the carabao and cart to Violeta and returned to Palok Bigki and helped his father load the ice to the boat and brought it to the fishpond to be used in the harvest of the bangus fish that evening. That evening he was in the fishpond together with his father, Marcelino Dequito and others harvest bangus and returned to the barrio only the next morning.

On November 18, 1973 he was arrested by two PC soldiers, one of whom he came to know as Sgt. Ledesma, together with Salvador Dequito and they were brought to the PC Detachment at Barotac Nuevo, Iloilo at around 10:00 o'clock in the morning of the said date.

In the evening they were investigated by Sgt. Ybarzabal in connection with the rape and death of the said girl by the name of Melinda Boglosa but he vehemently denied having anything to do with it. Because of his denial, he was boxed, pushed and kicked by the PC soldiers who wanted him to admit that he committed the crime but he continued to deny that he had any connection with the same.

His companion Salvador Dequito was also investigated.

After he was investigated he was set out of the room and told by Sgt. Ledesma to run but he did not run and embraced Sgt. Ledesma as he was afraid to run because he might be shot; on the contrary he insisted that he did not commit the crime that they wanted him to admit. In the next morning he was brought to the PC stockade at Fort San Pedro, Iloilo City where he was again investigated and maltreated and because of the maltreatment he was forced to sign a document that which he was told, if he will sign he will be released.

While he was being investigated his companion Salvador Dequito was in the same room and later on investigated and maltreated by the PC soldiers.

The next morning, he was brought to the Provincial Building before Atty. Salvador Solis of the Clerk of Court, who notarized his signature. He was afraid to complain to Atty. Solis about the maltreatment as he was accompanied by PC soldiers who warned him not to tell anybody what happened to him; thereafter, he was returned to the PC Stockade where he stayed for about three months where he was transferred to the Provincial Jail.

When he was transferred to the Provincial Jail he became ill because of the maltreatment and in fact he was sent several times to the Provincial Hospital as he was spitting blood because of his maltreatment.

He categorically denied having to do with the rape and killing of Melinda Boglosa (t.s.n., pp. 163-197; October 8, 1974) and his testimony was corroborated by Salvador Dequito who later on testified of the maltreatment that they suffered from the PC soldiers (t.s.n., pp. 2-20; August 2, 1974; t.s.n., pp. 119-137, October 9, 1974). Thereafter, the three accused presented Teopisto Dumayas, a Barrio Captain of Barrio Tambuelan, Dumangas, Iloilo who testified that after he came to know of the maltreatment of the three accused, the barrio captain and Barrio Council of Barrio Tambuelan, Dumangas, Iloilo, filed a petition, dated December 8, 1973, Exh. "I," addressed to the Provincial Commander complaining of said maltreatment but no action was done on the matter (t.s.n., pp. 19-23; October 29, 1974).

The next witness Simon Dequito testified that he knows the accused Remy Diño as well as the other accused since they were small. Remy Diño was in his house in the morning of November 13, 1973 but he (Simon Dequito) left the house after lunch to go to his farm around one (1) kilometer away situated at Sitio Sapa, Barrio Tambuelan, Dumangas, Iloilo, which was planted with palay. It was raining in the morning and when he reached his farm he saw a body lying on the rice paddy. He looked around and saw Paquita Cagison and Marcelino Dequito and he shouted and waved at them to come. When Marcelino arrived he pulled out the head of the victim because the head was submerged in the mud and then Marcelino Dequito helped him to put the body on the top of the rice paddy. As the body was still warm they put her on her side as she might still be alive and the water might come out. He did not then recognize the victim. Later he went to the house of Nicanor Divinagracia which was nearby if they recognized the victim but they did not recognize the deceased. Marcelino Dequito on the other hand went to notify Teopisto Dumayas, the Barrio Captain. Later Teopisto Dumayas, the Barrio Captain arrived and still later the police also arrived. He further stated that he did not request the accused to plow that morning of November 13, 1973 because it was raining and there was deep water in his field (t.s.n., pp. 73-117, Sept. 9, 1974).

Dr. Ricardo Jaboneta, medico legal officer of Iloilo City also testified that from his opinion as medico legal officer it is impossible to determine from a specific type of the semen whether it came from two or more persons (t.s.n., pp. 225-247; November 19, 1974). (pp. 5-12, Brief for Accused-Appellant Remy Diño)

In this appeal, appellant Remy Diño makes the following Assignments of Error:

I. The lower Court (through the Honorable Judge Numeriano G. Estenzo) erred in deciding the case without the transcript of stenographic notes of the testimony of all the accused and their witnesses having been transcribed as he (Judge Estenzo) did not hear the testimony of the witness as all the witnesses (both the prosecution and accused) testified before then Judge Castrense C. Veloso but whose resignation was accepted by the President before he can decide the case.

II. The lower Court likewise erred in giving weight and credence to the unreliable testimony of prosecution witness Roberto Dumancas.

III. The lower Court also erred in admit the alleged confession of the accused Remy Diño (Exh. "C") and in not finding the same as secured through force and intimidation.

IV. The lower Court further erred in not considering the defense of the accused Remy Diño and in not believing the testimony of Kathleen Hustace, a peace corps assigned in the barrio of the accused, that she and Remy Diño were together at the time the alleged crime was committed.

V. The lower Court finally erred in convicting the accused Remy Diño of the crime of rape with homicide and imposing three (3) penalties of reclusion perpetua.

The errors assigned are bereft of support from the evidence on record.

1. It is a fact that all the witnesses, both of the prosecution and the defense testified before then Judge Castrense C. Veloso whose resignation, however, was accepted by the President before he could decide the case. It was Judge Numeriano G. Estenzo, assigned temporarily to preside over Branch III, who eventually rendered the Decision on June 30, 1975.

Notwithstanding that circumstance,

There is no provision of law which would preclude a Judge of the Court of First Instance from deciding a case on the basis of the oral and documentary evidence presented before the first judge who resigned from the service without deciding the case, which oral evidence was taken by a stenographer and was produced before the second judge. This rule is rooted in practical considerations. Sometimes it is an impossibility for the judge who tried the case to be the same judicial officer to decide it. The judge who tried the case may die, resign or retire from the bench before he could render judgment thereon. In that case, We find no legal impediment to his successor's continuing with the trial or rendering judgment on the basis of the evidence submitted if the trial has been terminated. It is sufficient that in such circumstances the judge, in deciding the case, must base it completely on the cold record before him, in the same manner as appellate courts when they review the evidence of the case raised to them on appeal. (Villanueva vs. Estenzo, No. L-30050, June 27, 1975, 64 SCRA 407)

While it may be that not all of the stenographic notes had been transcribed at the time the judgment was prepared, the more crucial ones were before the lower Court. Besides, the separate memoranda of the three accused, particularly that of Remy Diño, summarized the major testimonies of witnesses for both the prosecution and the defense and contained an exhaustive discussion of the facts of substance essential to the defense of the respective accused. Thus, it was on the basis of the evidence of both the prosecution and the defense, with reference to stenographic notes when called for, that Judge Estenzo rendered his Decision.

2. No error was committed by the Court in giving weight and credence to the testimony of the only prosecution eyewitness Roberto Dumancas, a ten-year old boy. He had positively identified appellant Remy Diño as one of the malefactors. The error committed in identification of the two other accused was because he did not know them by their full Christian names but only by their nicknames. He had also described clearly and straigthforwardly the particular acts performed by each accused in the commission of the crime. That said witness was familiar with the three accused cannot be doubted, all three being from the same barrio as the witness himself.

Roberto's failure to inform his parents of the incident is not "contrary to human conduct," as claimed. He could have been too shocked at what he had witnessed, or he may have had certain inhibitions. He did reveal the incident, however, to a relative "Fe," also from the same barrio, on the same day of the incident (t.s.n., p. 28, May 3, 1974).

Roberto's age should not militate against his competence, the records of the proceedings showing that the Court found him a reliable and trusthworthy witness who was fully cognizant of the importance of an oath and of the significance of telling the truth (Decision, pp. 14 & 15).

3. The extra-judicial confession of appellant Remy Diño, executed on November 19, 1973, is challenged on the ground that the same was secured through force and intimidation. It narrated in detail how, when the victim passed by the rice paddies at about 1:00 o'clock P.M., more or less, of November 13, 1973, she was "immediately caught by Badong (Salvador Dequito) and he then kissed her;" that appellant himself took hold of her two arms; and thereafter the three of them (Salvador Dequito, Alex Dequito and he) took turns in having carnal knowledge of the victim; that appellant did so only once; that the victim was strangled by Salvador so that "she cannot inform the authorities;" and that only the three of them did "the raping and killing of Miss Melinda Boglosa."

While the evidence negates that the confession was extracted by force and intimidation, nevertheless, having been obtained after the effectivity of the 1973 Constitution on January 17, 1973, it is inadmissible in evidence, as the accused was not clearly and unequivocally informed of his constitutional rights to remain silent and to counsel, in violation of the prescribed safeguards in Section 20, Article IV of the 1973 Constitution. ¹ The confession was merely prefaced with the perfectory statement that "the one making a sworn statement was informed of his right under our Constitution and the reason for this investigation," without more.

Be that as it may, the testimony of the sole eyewitness, Roberto Dumancas, sufficiently establishes the guilt of appellant, which testimony is corroborated in its material aspects by the postmortem findings and the testimony of the medico-legal officer in respect thereto.

4. No error was committed by the lower Court in not giving credence to the testimony of Kathleen Hustace, a Peace Corps volunteer assigned in the barrio where the crime was committed. She testified that at about the time the crime was perpetrated, she and Remy Diño were together feeding birds. Even granting it to be so, that does not exclude the possibility that Remy Diño could have slipped out either before or after the feeding of the birds in order to commit the crime. Kathleen herself testified that she had to leave around 1:00 P.M. of that fateful day in order to make an appointment.

To establish alibi, an accused must show that he was at some other place for such a period of time that it was impossible for him to have been at the place where the crime was committed at the time of its commission (People vs. Urgel, No. L-34861, February 25, 1985, 134 SCRA 483). In this case, the place where Kathleen Hustace and Remy Diño were feeding the birds was in the same barrio where the crime was perpetrated.

5. The lower Court correctly rendered a verdict of guilty. The elements of rape — that of having carnal knowledge of a woman by using force and depriving her of consciousness — are indubitably present. Eyewitness Roberto Dumancas testified that while he was herding his carabao, he saw the victim approaching from a distance; suddenly Salvador Dequito pulled her down causing them both to fall to the ground; appellant Remy Diño then held the hands of the victim while Jose Dequito held her two legs; thereafter Salvador Dequito took off his pants and underwear and had carnal knowledge of the victim; and that thereafter, Jose Dequito and Remy Diño took turns abusing her.

The elements of the crime of Homicide are likewise attendant — namely, that a person is killed; that the accused are the authors of the killing without justifiable reason; and that the accused had the intention to kill, which is usually the case when death results because the law presumes that they had intended the material consequences of their unlawful act.

Citing again from the testimony of Roberto Dumancas, he declared that when the three accused were through abusing the victim, Salvador Dequito choked her, and with an engine cranker, struck her on the head; subsequently, the trio dragged the victim and pushed her head into the rice paddy, which was knee-deep with water. The medico-legal officer corroborated this testimony in his Necropsy Report where he disclosed that the victim had been abused and that she died as asphyxia by strangulation and drowning. The fact that said officer found no wound on the forehead does not necessarily imply that the victim was not so struck as a gaping wound need not necessarily have resulted.

Finally, the three penalties of reclusion perpetua were properly imposed. It is evident that conspiracy attended the perpetuation of the crime of Rape with Homicide by the three accused. By their contemporaneous acts it was evident that they were acting in concert and pursuing the same objective and design — that of raping the victim and killing her. The act of one is the act of all and each of the conspirators must be held liable for each of the felonious acts committed in conspiracy (People vs. Beltran, Nos. L-37168- 69, September 13, 1985, 138 SCRA 521). The penalty should, in fact, be death since by reason or on the occasion of the rape, a homicide was committed (Article 335, Revised Penal Code), but with the abolition of the death penalty in the 1987 Constitution, the imposable penalty would be reclusion perpetua just the same. So that, instead of three (3) death penalties, the accused Remy Diño should suffer three (3) penalties of reclusion perpetua.

WHEREFORE, the judgment appealed from is hereby AFFIRMED, except that the indemnity to the heirs of the victim, Melinda Boglosa, is hereby increased to P20,000.00. With one-third (1/3) of the costs against accused-appellant, Remy Diño.

SO ORDERED.

Yap (Chairman), Paras, Padilla and Sarmiento, JJ., concur.

Footnotes

1 Sec. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence.

People vs. Orita, G.R. 88724, April 3, 1990

Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

C. Manalo for defendant-appellant.

MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as follows:

That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of this Honorable Court, above named accused with lewd designs and by the use of a Batangas knife he conveniently provided himself for the purpose and with threats and intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S. Abayan against her will and without her consent.

CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the People testified and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the dispositive portion of which reads (pp. 59-60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs.

SO ORDERED.

Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p. 102, Rollo):

WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):

Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.

In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another boarder (pp. 8-9, ibid).

She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor was locked from the inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look for a room. With the Batangas knife still poked to her neck, they entered complainant's room.

Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and panty (p. 20, ibid).

He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She followed his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a portion of his penis entered her as she kept on moving (p. 23, ibid).

Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was inserted into her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20, ibid).

She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a window (p. 27, ibid).

Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and knocked on the door. When there was no answer, she ran around the building and knocked on the back door. When the policemen who were inside the building opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When they discovered what happened, Pat. Donceras and two other policemen rushed to the boarding house. They heard a sound at the second floor and saw somebody running away. Due to darkness, they failed to apprehend appellant.

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically examined.

Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which states:

Physical Examination — Patient is fairly built, came in with loose clothing with no under-clothes; appears in state of shock, per unambulatory.

PE Findings — Pertinent Findings only.

Neck- — Circumscribed hematoma at Ant. neck.

Breast — Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast.

Back — Multiple pinpoint marks.

Extremities — Abrasions at (R) and (L) knees.

Vulva — No visible abrasions or marks at the perineal area or over the vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal canal tight; no discharges noted.

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and

2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.

The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo)

A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as manifestations of truthfulness on material points. These little deviations also confirm that the witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her. According to the accused, this is strange because "this is the only case where an aggressor's advances is being helped-out by the victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the testimony of the victim ended there. The victim testified further that the accused was holding a Batangas knife during the aggression. This is a material part of the victim's testimony which the accused conveniently deleted.

We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of witnesses should be accorded the highest respect because it has the advantage of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding the testimony of the victim (p 56, Rollo):

As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party in her testimony before the court. Her answer to every question profounded (sic), under all circumstances, are plain and straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to her honor. It is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally her honor.

When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her testimony is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified convincingly on how the rape was committed. The victim's testimony from the time she knocked on the door of the municipal building up to the time she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of the scene of the incident and the conditions therein is true (p. 54, Rollo):

. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and offended party without the slightest difficulty, even in the manner as narrated. The partitions of every room were of strong materials, securedly nailed, and would not give way even by hastily scaling the same.

A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):

. . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated to be less than eight (8) meters, will perhaps occasion no injury to a frightened individual being pursued. Common experience will tell us that in occasion of conflagration especially occuring (sic) in high buildings, many have been saved by jumping from some considerable heights without being injured. How much more for a frightened barrio girl, like the offended party to whom honor appears to be more valuable than her life or limbs? Besides, the exposure of her private parts when she sought assistance from authorities, as corroborated, is enough indication that something not ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to show that she was out of her mind.

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that:

What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that even in her nudity, she had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts she would not have done nor would these facts have occurred unless she was sexually assaulted in the manner she narrated.

The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint and the non-presentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the parties that another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not bother to contradict this statement.

Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even substantiated and do not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe the subject matter that really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus convicted the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view.

Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:

Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

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.

xxx xxx xxx

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193).

On the other hand, Article 6 of the same Code provides:

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.

Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily understood even by law students:

. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is stopped short of that point by some cause apart from his voluntary desistance.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.

Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it appears that this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have prompted the law-making body to include the crime of frustrated rape in the amendments introduced by said laws.

In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):

. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the instant case. The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing doubt has surfaced in the mind of the court. It should be stressed that in cases of rape where there is a positive testimony and a medical certificate, both should in all respect, compliment each other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance in the medical certificate, would be productive of mischievous results.

The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He merely testified that there was uncertainty whether or not there was penetration. Anent this testimony, the victim positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

xxx xxx xxx

Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply?

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely corroborative and is not an indispensable element in the prosecution of this case (People v. Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after a thorough review of the records, We find the evidence sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not declare the abolition of the death penalty but merely prohibits the imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).

ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.