Appellant challenges the credibility of the
complainant, Aileen S. Alba, by capitalizing on his physical handicap of being
a one-armed man, his right arm having been amputated. He submits that with this
physical disadvantage, the complainant’s assertions that she was raped eight
(8) times on four (4) occasions; that her mouth was covered with a handkerchief
and her hands and feet were tied; that after each incident, the handkerchief
was removed from her mouth and her hands and feet untied; that this same
procedure was followed in all incidents, are incredible, and the consummation
of the crimes ascribed to him, highly impossible.
We find appellant’s reliance upon his disability as a futile attempt to disprove the charge against him and escape liability. While it is true that he is one-armed, such fact alone does not sufficiently prove that he could not have committed the crime. His physical defect does not make it entirely implausible for him to have committed the crime of rape, in the face of 12-year old Aileen’s positive identification and unwavering testimony that appellant raped her. What is essential is that the essence of the crime – sexual penetration of the female genitalia by the male organ – is established beyond reasonable doubt.
After a thorough review of the declaration on the witness stand of complainant Aileen, we find her testimony very typical of an innocent child whose virtue has been violated. Aileen testified that appellant used his left hand and his teeth to tie both ends of the handkerchief. Thus, it was not impossible for appellant to cover Aileen’s mouth with a handkerchief. As to the fact that her feet were tied when she was raped, Aileen testified that her feet were tied near the ankle. Aileen remained constant and steadfast despite intense grilling by defense counsel on cross-examination. Enlightening are the following excerpts from her candid and unequivocal testimony which we quote verbatim:
|“Q||Now, what did the accused do next to you?|
|“A||He removed my shortpant, sir.|
|“Q||Removed or just lowered your shortpant?|
|“A||He lowered, sir.|
|“Q||Then he went on top of you?|
|“A||But first, he removed his pants, sir.|
|“Q||Then he went on top of you?|
|“Q||Then, you claim that he inserted his penis to your vagina?|
|“Q||Now, in spite of the fact that the accused did not remove your panty first before he inserted his penis to your vagina?|
|“A||He lowered my panty, sir.|
|“Q||I thought what was lowered only is shortpant?|
|“A||He lowered my shortpant and my underwear, sir.|
|“Q||And in spite of the fact that your thighs are near each other you claim still that the accused was able to insert his penis to your vagina?|
|“A||My thighs were not too close, sir.|
|“Q||What do you mean that your thighs were not too close when you said before hand during all the time that you were raped by the accused on January 16, 23, February 16 and your thighs were near to each other?|
|“A||What I mean my legs were quite open, sir?|
|“Q||With your knees pointed upward?|
|“xxx xxx xxx.|
|“A||My legs are about three (3) inches apart, sir.|
|“Q||Are you very sure that is your position when the accused laid you down and rape you on top of the bed?|
|“With due respect, she was ordered to lie down, Your Honor.|
|“Q||In spite of the fact that you claim that your feet were tightly tight that was your position?|
|“A||My feet were tightly tight but the accused spread my legs a little far apart, sir.|
|“xxx xxx xxx|
|“Q||Now, when did the accused open your legs a little apart was it before he went on top of you or he was already on top of you?|
|“A||Before he went on top of me, sir.|
|“xxx xxx xxx|
|“Q||Did you feel pain when the accused sexually abused you?|
|“Q||What part of your body?|
|“A||My whole body, sir.|
|“xxx xxx xxx|
|“Q||In spite of the pain you felt on your body, you did not cry?|
|“A||I cried, sir.|
|“Q||You cried loud?|
|“Q||How loud was your cry?|
|“A||My tears were just flowing, sir.|
|“xxx xxx xxx|
|“Q||You said the accused was able to insert his penis to your vagina, for how long did the accused take before he could finally insert his penis to your vagina on January 23, 1995?|
|“A||Quite sometime, sir.|
|“Q||How long is that quite sometime?|
|“A||Quite long time, sir.|
|“Q||While he was trying his penis to insert into your vagina was he embracing you titely?|
|“Q||He kiss you also?|
|“xxx xxx xxx|
|“Q||For how long did the accused make sexual intercourse against you on January 23, 1995?|
|“A||Long time, sir.|
|“Q||How long is that long time?|
|“A||I cannot remember how many minutes at that time, sir.|
|“xxx xxx xxx|
|“Q||Considering that you are now Grade VI, how long is that one (1) minute, more or less?”|
|“A||The accused take a long time in sexually but I cannot tell how many minutes, sir.|
|“xxx xxx xxx|
|“Q||Were you also enjoying the act being done to you by the accused?|
|“Q||And what did you feel?|
|“A||I felt pain, sir.|
|“Q||When you were feeling that pain, did you try to move your buttocks counter likewise in order to remove the penis of the accused or just remain stand still?|
|“A||When I tried to move I cannot because Beriong (the accused) was very heavy, sir.”|
The child remained steadfast and candid on
|“Q||Now, when the accused was on top of you, did he embrace you tightly?|
|“Q||And after that he inserted his penis to your vagina?|
|“Q||And you claim that despite of facts that you ties are very closed to each other, Beriong was able to insert his penis to your vagina?|
|“Near not very close.|
|“Reform the question.|
|“Q||Was he able to insert his penis to your vagina with ease?|
|“Q||How long was he able to insert his penis to your vagina?|
|“A||I don’t know, sir.|
|“Q||You also claimed no one guided his penis to your vagina he was able to insert his penis to your vagina?|
|“Q||How were he able to insert his penis to your vagina and your ties were closed to each other?|
|“A||I cannot tell, sir.|
|“Q||The accused did not hold his penis, then, inserted it in your vagina?|
|“A||He held, sir.|
|“Q||Is it not you claimed a while ago before the accused inserted his penis to your VAGINA?|
|“Objection, there is no showing it was simultaneous embracing and inserting of the penis with the use of the nad.|
|“A||He first placed his penis on top of my vagina and embrace me tightly, sir.|
|“Q||How were he able to insert his penis with the use of his hand?|
|“A||I cannot describe, sir.|
The physical evidence corroborates Aileen’s
testimony. The medico-legal report of Dr. Mary Gwendolyn Luna on the evidence
of the non-virgin state of Aileen is the definitive proof that penetration did
in fact occur. The examination conducted by Dr. Luna revealed that Aileen’s
hymen bore two old, deep lacerations at 5 and 7 o’clock, and superficial
lacerations at 3, 6, 9 and 11 o’clock. It is settled that when the victim’s
testimony is corroborated by the physician’s finding of penetration, there is
sufficient foundation to conclude the existence of the essential requisite of
carnal knowledge. Laceration, whether healed or fresh, is the best physical
evidence of forcible defloration.
Thus, we are not inclined to deviate from the established rule that testimonies of rape victims, especially child victims, are given full weight and credit. It bears emphasis that the victim in this case was barely twelve (12) years old when she was raped. In a litany of cases, the Court has applied the well settled rule that when a woman, more so if she is a minor, says she has been raped, she says in effect, all that is necessary to prove that rape was committed. We give greater weight to the testimony of a girl who is a victim of sexual assault, especially a minor, for it is most unnatural for a young and immature girl to fabricate a story as sordid as her own defilement, allow a medical examination of her genitalia, subject herself to a public trial and expose herself to public ridicule for no reason other than her thirst for justice.
Mere surmises on the improbability of penetration due to the fact that the feet of the victim were tied at the ankles and appellant is a one-armed man, do not overcome our foregoing rulings in the face of the unfaltering testimony of Aileen and the physical evidence testified to by Dr. Luna.
Furthermore, Aileen’s conduct of simply going home after the commission of the rape should not be taken against her. The non-revelation of the first and succeeding incidents of rape can be attributed to the fear created in her mind by the threats appellant made against her. Rape victims, especially child victims, should not be expected to act the way mature individuals would when placed in such a situation. It is not proper to judge the actions of children who have undergone traumatic experience by the norms of behavior expected from adults under similar circumstances. “The range of emotions shown by rape victims is yet to be captured even by the calculus. It is thus unrealistic to expect uniform reactions from rape victims”.
In stark contrast to the categorical declarations of Aileen, appellant merely raised denial and alibi as his defenses. Denial and alibi are weak defenses which are unavailing in the face of positive identification by the victim of the appellant as the violator of her honor. Furthermore, appellant’s alibi was shattered by the prosecution’s rebuttal witness, Felisa Soriano, who testified that she never sent the appellant to Baguio to buy Campri leaves on January 15, 1995 since she has children whom she could send to Baguio City to buy the medicine. It is further weakened by the fact that he escaped from detention on March 8, 1995 and was subsequently re-arrested two (2) days later on March 10, 1995. before his arraignment on May 9, 1995.. Such escapade is akin to flight before arrest in the commission of a crime, which signifies an awareness of guilt and a consciousness that he had no tenable defense against the rape charge.
The Informations in Criminal Cases Nos. L-5256, 5292, 5294, 5295 and 5257 alleged that the appellant committed the rape while “armed with a fan knife and a handgun”, thus he is charged with rape qualified by the use of a deadly weapon. It must be stressed that what qualifies the crime of rape is not just the overt act of “being armed with a weapon” but the “use of a deadly weapon” in the commission of the crime, i.e., when a deadly weapon is used to make the victim submit to the will of the offender and not when it is simply shown to be in the possession of the latter.
In this case, complainant Aileen S. Alba testified that appellant brandished the balisong at her and threatened her with death if she did not submit to his lustful desires; and that the balisong was placed beside her and the handgun was above her head while she was being raped. Thus, the threat to kill her was imminent and constant. While the record is bereft of evidence to show how appellant used the handgun other than placing it above the head of Aileen when he raped her, we find that when appellant brandished the balisong at her, it was sufficient to make twelve-year old Aileen submit to appellant’s beastly will.
Although neither the fan knife nor the handgun were presented in court, the production of the weapon used in the commission of the crime is not a condition sine qua non for the discharge of the burden of proof beyond reasonable doubt for the same may not have been recovered at all from the assailant. The presentation of the weapon used in the commission of the rape is not essential to the conviction of the accused for it suffices that the testimony of the rape victim is credible. The trial court did not err in finding that the testimony of the offended party is credible and therefore worthy of full faith and credit, sufficient to sustain the conviction of the accused, beyond reasonable doubt.
However, we find that the trial court erred in imposing the penalty of “reclusion perpetua to death”. Rape with the Use of a Deadly Weapon is punishable by two indivisible penalties, i.e., reclusion perpetua to death, under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659. This is called the prescribed penalty which is distinct from the imposable penalty. The imposable penalty is that which is applicable after considering the evidence on the modifying circumstances which mitigate or aggravate criminal liability, provided under Articles 13, 14 and 15 of the Revised Penal Code in relation to Article 63 of the same Code.
Article 63 provides for the applicable rules in cases where the law prescribes a penalty composed of two indivisible penalties, thus:
|“1.||When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied.|
|“2.||When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied.|
|“3.||When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied.|
|“4.||When both mitigating and aggravating circumstances attended the commission of the act, the courts shall reasonable allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation.”|
The prosecution failed to establish any aggravating circumstance. While nighttime was alleged in the Informations, it does not appear that it was purposely sought by or afforded some degree of impunity to appellant. The mere fact that the rape was committed at nighttime with nothing more than that does not make nocturnity an aggravating circumstance. Neither can the alleged abuse of superior strength be appreciated as an aggravating circumstance. No proof was offered that superior strength was deliberately taken advantage of.
No mitigating circumstance as provided for in Article 13 of the Revised Penal Code was established.
Hence, pursuant to Article 63 (2) of the Revised Penal Code, the lesser penalty of reclusion perpetua should be imposed upon appellant for each of the five (5) counts of rape.
Civil indemnity must be awarded to complainant Aileen S. Alba. Civil indemnity, which is mandatory in a finding of rape, is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound discretion. In accordance with prevailing jurisprudence, we grant civil indemnity of Fifty Thousand Pesos (P50,000.00) in each case.
Moreover, exemplary damages should be awarded. In the recent case of People vs. Yonto we reiterated our ruling in People vs. Catubig that exemplary damages are justified under Article 2230 of the Civil Code if there is an aggravating circumstance, whether ordinary or qualifying. Since the qualifying circumstance of the use of a deadly weapon was present in the commission of the rapes subject of these cases, exemplary damages may be awarded to the offended party. Thus, an award in each case of P25,000.00 as exemplary damages should also be given to the complainant Aileen S. Alba.
WHEREFORE, the Joint Decision dated January 17, 1996, of Branch 38 of the Regional Trial Court of Lingayen, Pangasinan, finding accused Silverio Montemayor alias “Beriong” guilty beyond reasonable doubt of five (5) counts of rape of Aileen S. Alba with the use of a deadly weapon is hereby AFFIRMED, with the MODIFICATION that accused-appellant is sentenced to suffer the penalty of reclusion perpetua for each count and ordered to pay complainant Aileen S. Alba the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages, for each of the five (5) rapes, or a total of P625,000.00.
Costs de oficio.
SOURCE: [ G.R. No. 124474 & 139972-78, January 28, 2003 ]PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SILVERIO MONTEMAYOR ALIAS ‘BERIONG”, ACCUSED-APPELLANT. Tags: Alcantara Alcoy moral damages Alegria actual damages Aloguinsan Argao Asturias Badian Balamban Bantayan Barili Boljoon Borbon Carmen Catmon Compostela Consolacion Cordova Daanbantayan Dumaguete Bais Sibulan Tampi Bacong Negros Bacolod Separation pay Resign Resignation Back wages Backwages Length of service pay benefit employee employer relationship Silay Kabankalan Daan Bantayan Dalaguete Dumanjug Ginatilan Liloan compensatory damages Madridejos Malabuyoc Medellin Minglanilla Moalboal Oslob Pilar Pinamungajan Poro Ronda Samboan San Fernando San Francisco San Remigio Sante Fe Santander Sibonga Sogod Tabogon Tabuelan Tuburan attorney’s fees Tudela exemplary damages Camotes General Luna Siargao Cagayan Davao Kidapawan Attorney Abogado Lawyer Architect Real Estate Broker nominal damages Sales Agent Properties for Sale Looking for Buyers Design Build House and Lot for Sale for Rent Talisay City Mandaue City Lapu Lapu Lapu-Lapu City Yncierto Sesante Villanueva Ruz Jan Edmond Marc Tim Timothy temperate damages Luz liquidated damages Kristin tct transfer certificate of title tax declaration birth certificate relocation survey surveying judicial titling administrative titling patent title denr cenro foreshore lease ecc environmental compliance certificate design build architect cebu engineer interior design designer residential commercial cebu property warehouse for rent for lease marc Christian yncierto ruz jan Edmond yncierto ruz Kristin Villanueva ruz Edmond mabalot ruz marriage certificate timber land forest land watershed agricultural lot land use conversion hearing trial illegal drugs trial lawyer business corporate lawyer labor lawyer immigration law bureau of immigration cebu 9g visa search warrant warrant of arrest motion to quash information complaint police officers buy bust physical suffering shocked horrified mental anguish fright serious anxiety besmirched reputation sleepless nights wounded feelings moral shock social humiliation similar injuries