EN BANC
PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
G.R.
No.
124474 & 139972-78
January 28, 2003
-versus-
SILVERIO MONTEMAYOR
ALIAS "BERIONG",
Accused-Appellant.
D E C I S I O N
AUSTRIA-MARTINEZ,
J.:
Before us is an appeal
from the joint decision dated January 17, 1996 of the Regional Trial
Court
of Lingayen, Pangasinan (Branch 38), finding accused Silverio
Montemayor
alias "Beriong" guilty beyond reasonable doubt of five (5)[1]
counts of rape of Aileen S. Alba with the use of a deadly weapon and
imposing
upon him the penalty of "reclusion perpetua to death" for each count.chanrobles virtuallaw libraryred
Accused was charged
in eight (8) Informations[2]
with eight (8) counts of rape alleged to have been committed on four
(4)
separate dates: four counts of rape on January 16, 1995, one count of
rape
on January 23, 1995, two counts of rape on February 4, 1995, and one
count
of rape on February 19, 1995.[3]
Except as to the material dates of the commission of the crimes
charged,
the Informations are similarly worded as follows:chanrobles virtuallaw libraryred
That on or about the
16th day of January 1995, in the evening in barangay Manat,
municipality
of Binmaley, province of Pangasinan, Philippines and within the
jurisdiction
of this Honorable Court, the above-named accused, armed with a fan
knife
and a handgun, taking advantage of nighttime and his superior strength,
by means of force and intimidation, did then and there wilfully,
unlawfully
and feloniously have sexual intercourse with Aileen S. Alba against her
will, to her damage and prejudice.chanrobles virtuallaw libraryred
CONTRARY to Article
335 of the Revised Penal Code.chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
Upon being arraigned
on May 9, 1995, accused, assisted by counsel, pleaded "not guilty" to
each
count of rape.[4]
Thereafter, joint trial on the merits ensued.
chanrobles virtuallaw libraryred
The prosecution
evidence
established the following facts:chanrobles virtuallaw libraryred
On January 16, 1995,
twelve-year old Aileen S. Alba was a grade V pupil of the Manat
Elementary
School then staying with her grandparents, Gualberto and Felisa
Soriano,
in Manat, Binmaley, Pangasinan while her parents, Valentino and Dolores
Alba, reside at Sapang Palay, Bulacan where her father sells ready-made
clothings.[5]chanrobles virtuallaw libraryred
At about 6:30
in the evening of said date, Aileen decided
to
go to the house of her playmate Agnes de Vera. She
passed
by the barangay hall, which was about twelve arms-length from her
grandparents’
house. Accused Montemayor, who was inside the barangay hall,
called
Aileen to tell her something. Since Aileen knew accused, also
known
as "Beriong", she went near him. Accused, who had a gun tucked in
his waist and was holding a balisong, held Aileen’s hand and dragged
her
inside the barangay hall. Aileen did not resist and shout as she
was afraid that accused might stab her. Once inside the barangay
hall, accused covered Aileen’s mouth with a handkerchief and tied her
hands
and feet with a rope. Accused told her to lie down on a wooden
bed
inside the hall, after which accused lowered her short pants and
underwear
and proceeded to remove his own pants. Then, accused went on top
of Aileen, inserted his penis in her vagina and made a push and pull
movement.
Aileen was unable to shout despite the intense pain she felt in her
vagina
since her mouth was covered. After satisfying his lust, accused
removed
himself from Aileen, and ate a piece of bread. Having eaten,
accused
again ravaged Aileen the second time, then ate bread and drank water.[6]
Accused raped Aileen two (2) more times that harrowing night. All
the while, accused’s gun was placed above her head while the balisong
was
beside her.
chanrobles virtuallaw libraryred
After the fourth rape,
accused warned Aileen not to report the incident to anybody or else he
will kill her. Then, Aileen’s hands and feet were untied and the
handkerchief removed from her mouth. Aileen went home and did not
report what happened to anyone since she was afraid of the
accused.
All Aileen did was go to her room and cry. She had a fever for
five
(5) days.[7]chanrobles virtuallaw libraryred
Unknown to Aileen and
the accused, Jennifer Soriano, Aileen’s eleven-year old cousin, saw the
accused on top of Aileen. Jennifer was asked by their
grandparents
to look for Aileen. After looking for Aileen at the house of the
latter’s friend, Jennifer passed by the barangay hall when she heard
the
creaking sound of a bed. Out of curiosity, Jennifer climbed a chico
tree
near the barangay hall and she saw the accused on top of Aileen.[8]
When Jennifer told Aileen that she saw what accused did to Aileen,
Aileen
told her not to tell anyone because accused had warned Aileen not to
report
the rape, otherwise, she will be killed.[9]
Also unknown to Aileen, the four rapes did not end her ordeal.chanrobles virtuallaw libraryred
On January 23, 1995,
at 6:30 in the evening, as Aileen passed by the barangay hall, accused
once again called her. When Aileen was near him, accused grabbed
her hand and pulled her inside the barangay hall. Once inside,
the
previous harrowing scenario repeated itself. Accused, once again
with a gun on his waist and holding a balisong, covered Aileen’s mouth
with a handkerchief, tied her hands and feet with a rope, ordered her
to
lie down on the wooden bed, lowered her short pants and panty, removed
his short pants, went on top of her and inserted his penis in her
vagina.
Aileen felt pain but was unable to shout. His lust sated, accused
repeated his warning to Aileen not to report the incident or he will
kill
her.[10]chanrobles virtuallaw libraryred
The foregoing incidents
again happened for three more times, twice on February 4, 1995 and
finally
on February 19, 1995, at 6:30 in the evening when Aileen passed by the
barangay hall on her way to see Francing de Vera and Laya Rosario on
said
dates, respectively. On February 19, 1995, when accused called,
Aileen
did not go near accused and instead turned around to go back
home.
But accused followed Aileen, poked his balisong at Aileen’s back and
dragged
Aileen to the barangay hall where Aileen was once again ravaged by the
accused. Aileen was again crippled with fear, unable to shout for
fear that the accused would stab her. Aileen again did not tell
anyone
of this harrowing incident since accused warned her again of what would
befall her if she told anyone.[11]chanrobles virtuallaw libraryred
Aileen’s lips were sealed
but not those of her cousin Jennifer’s. When Aileen and
Jennifer
quarreled on February 20, 1995 due to the former’s incessant teasing of
the latter, Jennifer revealed to Nova Soriano, the aunt of both Aileen
and Jennifer, what accused did to Aileen on January 16, 1995.
Aileen
was confronted about the rape and she admitted it.[12]chanrobles virtuallaw libraryred
On February 20, 1995,
Aileen was brought to the Pangasinan Provincial Hospital where she was
medically examined by Dr. Mary Gwendolyn Luna.[13]
The latter’s medical examination revealed that: (a) Aileen’s hymen bore
old deep lacerations at 5 and 7 o’clock, and superficial lacerations at
3, 6, 9 and 11 o’clock;[14]
(b) the deep lacerations are one cm. deep from the base of the hymen
while
superficial lacerations are ½ cm. from the base of the hymen;[15]
(c) the lacerations are one week or more old and it is possible that
they
were inflicted sometime on January 15, 1995;[16]
(d) the lacerations were caused by the insertion of an erect male organ
causing the rupture of the hymen;[17]
(e) the vagina admits two fingers with slight difficulty showing that
something
had entered it like an erect penis;[18]
and, (f) the six (6) lacerations show that Aileen was sexually abused.[19]chanrobles virtuallaw libraryred
On February 22, 1995,
Aileen executed a sworn statement,[20]
along with her father Valentino Alba.[21]
On March 15, 1995, four (4) Informations charging accused for the rapes
allegedly committed on January 16, 1995, January 23, 1995, February 4,
1995, and February 19, 1995. Four additional Informations were
filed
on June 15, 1995 after the provincial prosecutor took a second look at
the sworn complaint and found that he failed to consider that the three
(3) other counts of rape alleged to have been committed on January 16,
1995 and one (1) other count of rape alleged to have been committed on
February 4, 1995 were separate and distinct counts of rape.[22]chanrobles virtuallaw libraryred
On February 23, 1995,
accused was arrested.[23]
However, he escaped detention on March 8, 1995[24]
but was subsequently re-arrested on March 10, 1995.[25]
chanrobles virtuallaw libraryred
Accused had a different
story to tell. He denied the allegations against him and offered
alibi as his defense. Accused testified that in the evening of
January
15, 1995, he was not in Manat, Binmaley, Pangasinan because Felisa
Soriano
(grandmother of Aileen) sent him to Baguio City to buy Campri leaves as
medicine for Gualberto Soriano; that he came back to Manat the next
day,
January 16, 1995, at nine-thirty in the evening; that on January 23,
1995,
he spent the whole evening at the house of his sister, Marissa
Zembrana,
so he was not at the barangay hall at the time Aileen Alba was
allegedly
raped; that on both dates of February 4 and 19 he was at the house of
his
sister, Marissa Zembrana, where he prepared and assisted in the
offering
for the unseen spirits which his sick mother might have offended; and
that
the offering on both occasions ended at past midnight. Accused
denied
having a gun or balisong and claims that he could not afford to buy a
gun.
To corroborate his testimony, Felisa Sanchez and his mother, Pacita
Montemayor,
testified in court.chanrobles virtuallaw libraryred
The prosecution presented
Felisa Soriano, as rebuttal witness. She testified that she never
sent accused to Baguio City to buy Campri leaves on January 15, 1995
because
she has children whom she could send to Baguio City to buy the
medicine.chanrobles virtuallaw libraryred
On January 17, 1996,
the trial court rendered a joint Decision[26]
finding accused guilty of the four (4) counts of rape committed on
January
16, 1995 and the one (1) count of rape committed on January 23, 1995,
but
acquitted him for the rapes committed on February 4 and 19, 1995, thus:chanrobles virtuallaw libraryred
Wherefore, in light
of all the foregoing considerations discussed above, judgment is hereby
rendered in the above-entitled cases as follows:chanrobles virtuallaw libraryred
In Criminal Cases Nos.
L-5256, 5992[27],
5994[28],
5295 and 5257, this court finds and holds the accused, Silverio
Montemayor
alias Beriong, guilty beyond reasonable doubt of the crime of Rape on
five
(5) counts as charged in the informations filed against him, defined
and
penalized under the provisions of Article 335 of the Revised Penal Code
as amended by R.A. 7659, and conformable thereto, pursuant to law,
hereby
sentences said accused in each case, to suffer the penalty of Reclusion
Perpetua to Death and to pay the costs of the proceedings.chanrobles virtuallaw libraryred
The court further directs
the accused to indemnify the offended party, Aileen Alba the sum of
P50,000.00
in each case or a total sum of P250,000.00 as moral damages without
subsidiary
imprisonment in case of insolvency.chanrobles virtuallaw libraryred
In Criminal Cases Nos.
L-5258, 5293 and 5259, the court finds that the guilt of the accused
Silverio
Montemayor alias Beriong not having been established beyond
preadventure
of doubt by the evidence adduced by the prosecution said accused is
therefore
declared not guilty of the offenses charged against him in the
aforesaid
cases, therefore, he should be acquitted with costs de officio.chanrobles virtuallaw libraryred
SO ORDERED.[29]chanrobles virtuallaw libraryred
Assailing his conviction,
accused filed the appeal before us anchored on three (3) assigned
errors,
to wit:chanrobles virtuallaw libraryred
I.
THE TRIAL COURT
ERRED
IN GIVING PROBATIVE VALUE TO THE INCREDIBLE, IMPLAUSIBLE AND HIGHLY
INCONGRUOUS
TESTIMONY OF PRIVATE COMPLAINANT ANENT THE IMPUGNED INCIDENTS IN
CRIMINAL
CASE NOS. L-5256, 5992, 5994 AND 5295.
chanrobles virtuallaw libraryred
II
“THE TRIAL COURT
ERRED
IN NOT GIVING DUE WEIGHT AND CREDENCE TO THE EVIDENCE ADDUCED BY
ACCUSED-APPELLANT
WHICH WAS AMPLY CORROBORATED ON MATERIAL POINTS.
chanrobles virtuallaw libraryred
III
THE TRIAL COURT
MANIFESTLY
ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIMES CHARGED IN CRIMINAL
CASE NOS. L-5256, 5992, 5994 AND 5295 DESPITE THE FACT THAT HIS GUILT
WAS
NOT ESTABLISHED BEYOND REASONABLE DOUBT.[30]
chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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.[31]
Aileen testified that appellant used his left hand and his teeth to tie
both ends of the handkerchief.[32]
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.[33]
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:chanrobles virtuallaw libraryred
Q Now, what
did the accused do next to you?
A
He removed my shortpant, sir.chanrobles virtuallaw libraryred
Q Removed
or just lowered your shortpant?
A
He lowered, sir.chanrobles virtuallaw libraryred
Q Then he
went on top of you?
A
But first, he removed his pants, sir.chanrobles virtuallaw libraryred
Q Then he
went on top of you?chanrobles virtuallaw libraryred
A
Yes, sir.chanrobles virtuallaw libraryred
Q Then,
you claim that he inserted his penis to your vagina?chanrobles virtuallaw libraryred
A
Yes, sir.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
Q I thought
what was lowered only is shortpant?chanrobles virtuallaw libraryred
A
He lowered my shortpant and my underwear, sir.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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?chanrobles virtuallaw libraryred
A
What I mean my legs were quite open, sir?chanrobles virtuallaw libraryred
Q With your
knees pointed upward?chanrobles virtuallaw libraryred
xxx
xxx
xxx.cralaw:red
WITNESS:
A
My legs are about three (3) inches apart, sir.cralaw:red
COURT:
Q Are you
very sure that is your position when the accused laid you down and rape
you on top of the bed?
FISCAL:
With due respect, she
was ordered to lie down, Your Honor.cralaw:red
A
Yes, sir.cralaw:red
COURT:chanrobles virtuallaw libraryred
Q In spite
of the fact that you claim that your feet were tightly tight that was
your
position?chanrobles virtuallaw libraryred
WITNESS:chanrobles virtuallaw libraryred
A
My feet were tightly tight but the accused spread my legs a little far
apart, sir.chanrobles virtuallaw libraryred
xxx
xxx
xxx
ATTY. CASTRO:chanrobles virtuallaw libraryred
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?chanrobles virtuallaw libraryred
WITNESS:chanrobles virtuallaw libraryred
A
Before he went on top of me, sir.chanrobles virtuallaw libraryred
xxx
xxx
xxx
COURT:
Q Did you
feel pain when the accused sexually abused you?chanrobles virtuallaw libraryred
WITNESS:chanrobles virtuallaw libraryred
A
Yes, sir.chanrobles virtuallaw libraryred
Q What part
of your body?
A
My whole body, sir.chanrobles virtuallaw libraryred
xxx
xxx
xxx
ATTY. CASTRO:
Q In spite
of the pain you felt on your body, you did not cry?
WITNESS:
A
I cried, sir.chanrobles virtuallaw libraryred
Q You cried
loud?
A
No, sir.chanrobles virtuallaw libraryred
Q How loud
was your cry?
A
My tears were just flowing, sir.chanrobles virtuallaw libraryred
xxx
xxx
xxx
ATTY. CASTRO:chanrobles virtuallaw libraryred
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?chanrobles virtuallaw libraryred
WITNESS:
A
Quite sometime, sir.chanrobles virtuallaw libraryred
Q How long
is that quite sometime?
A
Quite long time, sir.chanrobles virtuallaw libraryred
Q While
he was trying his penis to insert into your vagina was he embracing you
titely?
A
Yes, sir.chanrobles virtuallaw libraryred
Q He kiss
you also?
A
No, sir.chanrobles virtuallaw libraryred
xxx
xxx
xxx
ATTY. CASTRO:chanrobles virtuallaw libraryred
Q For how
long did the accused make sexual intercourse against you on January 23,
1995?chanrobles virtuallaw libraryred
WITNESS:chanrobles virtuallaw libraryred
A
Long time, sir.cralaw:red
Q How long
is that long time?
A
I cannot remember how many minutes at that time, sir.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
xxx
xxx
xxx
COURT
Q Were you
also enjoying the act being done to you by the accused?
A
No, sir.cralaw:red
ATTY. CASTRO:
Q And what
did you feel?
WITNESS:
A
I felt pain, sir.chanrobles virtuallaw libraryred
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.[34]chanrobles virtuallaw libraryred
The child remained steadfast
and candid on further cross-examination:
Q Now, when
the accused was on top of you, did he embrace you tightly?
A
Yes, sir.chanrobles virtuallaw libraryred
Q And after
that he inserted his penis to your vagina?
A
Yes, sir.chanrobles virtuallaw libraryred
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?
FISCAL:
Near not very close.cralaw:red
COURT:
Reform the question.cralaw:red
Near.cralaw:red
WITNESS:
A
Yes, sir.chanrobles virtuallaw libraryred
ATTY. CASTRO:
Q Was he
able to insert his penis to your vagina with ease?
WITNESS:
A
No, sir.chanrobles virtuallaw libraryred
Q How long
was he able to insert his penis to your vagina?
A
I don’t know, sir.chanrobles virtuallaw libraryred
Q You also
claimed no one guided his penis to your vagina he was able to insert
his
penis to your vagina?
COURT: (interrupted)
Q How were
he able to insert his penis to your vagina and your ties were closed to
each other?
WITNESS:
A
I cannot tell, sir.chanrobles virtuallaw libraryred
Q The accused
did not hold his penis, then, inserted it in your vagina?
A
He held, sir.chanrobles virtuallaw libraryred
ATTY. CASTRO:
Q Is it
not you claimed a while ago before the accused inserted his penis to
your
VAGINA?
FISCAL:
Objection, there is
no showing it was simultaneous embracing and inserting of the penis
with
the use of the nad.cralaw:red
COURT:
Answer.cralaw:red
WITNESS:
A
He first placed his penis on top of my vagina and embrace me tightly,
sir.chanrobles virtuallaw libraryred
COURT:
Q How were
he able to insert his penis with the use of his hand?chanrobles virtuallaw libraryred
WITNESS:
A
I cannot describe, sir.[35]chanrobles virtuallaw libraryred
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.[36]
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.[37]
Laceration, whether healed or fresh, is the best physical evidence of
forcible
defloration.[38]chanrobles virtuallaw libraryred
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.[39]
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.[40]
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.[41]chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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".[42]chanrobles virtuallaw libraryred
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.[43]
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.[44]
It is further weakened by the fact that he escaped from detention on
March
8, 1995[45]
and was subsequently re-arrested two (2) days later on March 10, 1995[46]
before his arraignment on May 9, 1995.[47]
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.[48]
chanrobles virtuallaw libraryred
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,[49]
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.[50]chanrobles virtuallaw libraryred
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.[51]
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.chanrobles virtuallaw libraryred
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.[52]
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,[53]
beyond reasonable doubt.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
Article 63 provides
for the applicable rules in cases where the law prescribes a penalty
composed
of two indivisible penalties, thus:chanrobles virtuallaw libraryred
1.
When in the commission of the deed there is present only one
aggravating
circumstance, the greater penalty shall be applied.chanrobles virtuallaw libraryred
2.
When there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied.chanrobles virtuallaw libraryred
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.cralaw:red
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.chanrobles virtuallaw libraryred
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.[54]
The mere fact that the rape was committed at nighttime with nothing
more
than that does not make nocturnity an aggravating circumstance.[55]
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.[56]chanrobles virtuallaw libraryred
No mitigating circumstance
as provided for in Article 13 of the Revised Penal Code was
established.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
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.[57]
In accordance with prevailing jurisprudence, we grant civil indemnity
of
Fifty Thousand Pesos (P50,000.00) in each case.[58]chanrobles virtuallaw libraryred
Moreover, exemplary
damages should be awarded. In the recent case of People vs. Yonto[59]
we reiterated our ruling in People vs. Catubig[60]
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.chanrobles virtuallaw libraryred
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.chanrobles virtuallaw libraryred
Costs de oficio.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Davide, Jr., C.J.,craPuno,
Vitug, Mendoza, Panganiban, Quisumbing,craYnares-Santiago,
Sandoval-Gutierrez,Carpio,
Corona, Carpio-Moralescra,
Callejocra,
Sr., and Azcunacra,
JJ.,
concur.
Bellosillo, J., on
leave.chanrobles virtuallaw libraryred
____________________________
Endnotes:
[1]
Criminal Cases Nos. L-5256, 5292, 5294, 5295 and 5257.chanrobles virtuallaw libraryred
[2]
Docketed as Criminal Cases Nos. L-5256 to L-5259, L-5292 to L-5295.
[3]
Original Records, pp. 32-33.chanrobles virtuallaw libraryred
[4]
Original Records, p. 25.chanrobles virtuallaw libraryred
[5]
TSN, July 5, 1995, pp. 2-3.chanrobles virtuallaw libraryred
[6]
TSN, July 5, 1995, pp. 3-7; TSN, July 12, 1995, pp. 5-6.chanrobles virtuallaw libraryred
[7]
TSN, July 5, 1995, pp. 7-9.chanrobles virtuallaw libraryred
[8]
TSN, August 28, 1995, pp. 4-6, 7-13.chanrobles virtuallaw libraryred
[9]
TSN, July 5, 1995, pp. 9; TSN, July 31, 1995, pp. 40-41.chanrobles virtuallaw libraryred
[10]
TSN, July 5, 1995, pp. 9-11; TSN, July 12, 1995, pp. 2-3, 6-14, 16-19.chanrobles virtuallaw libraryred
[11]
TSN, July 5, 1995, pp. 11-14; TSN, July 31, 1995, pp. 3-11, 27-35.chanrobles virtuallaw libraryred
[12]
TSN, July 5, 1995, p. 14; TSN, August 22, 1995, pp. 5, 11; TSN, August
28, 1995, p. 6.
[13]
TSN, June 15, 1995, p. 4; TSN, July 5, 1995, p. 15; TSN, August 22,
1995,
p. 6.
[14]
TSN, June 14, 1995, pp. 6-7; Original Records, p. 6.chanrobles virtuallaw libraryred
[15]
TSN, June 14, 1995, p. 6.chanrobles virtuallaw libraryred
[16]
TSN, June 14, 1995, p. 6.chanrobles virtuallaw libraryred
[17]
TSN, June 14, 1995, p. 7.chanrobles virtuallaw libraryred
[18]
TSN, June 14, 1995, p. 7; Original Records, p. 6.chanrobles virtuallaw libraryred
[19]
TSN, June 14, 1995, p. 12.chanrobles virtuallaw libraryred
[20]
TSN, July 5, 1995, pp. 15-16; Original Records, p. 8.chanrobles virtuallaw libraryred
[21]
Original Records, p. 9.chanrobles virtuallaw libraryred
[22]
Original Records, pp. 32-33.chanrobles virtuallaw libraryred
[23]
Original Records, p. 67.chanrobles virtuallaw libraryred
[24]
Original Records, p. 68.chanrobles virtuallaw libraryred
[25]
Original Records, p. 66.chanrobles virtuallaw libraryred
[26]
Rollo, pp. 30-45.chanrobles virtuallaw libraryred
[27]
Should be Criminal Case No. L-5292.chanrobles virtuallaw libraryred
[28]
Should be Criminal Case No. L-5294.chanrobles virtuallaw libraryred
[29]
Rollo, pp. 44-45.chanrobles virtuallaw libraryred
[30]
Rollo, p. 100.chanrobles virtuallaw libraryred
[31]
People vs. Balgos, 323 SCRA 372, 385 (2000); People vs. Jose, 307 SCRA
571, 578 (1999).
[32]
TSN, July 12, 1995, pp. 7-8.chanrobles virtuallaw libraryred
[33]
TSN, July 5, 1995, p. 5.chanrobles virtuallaw libraryred
[34]
TSN, July 12, 1995, pp. 12-18.chanrobles virtuallaw libraryred
[35]
TSN, July 31, 1995, pp. 9-10.chanrobles virtuallaw libraryred
[36]
TSN, June 14, 1995, pp. 6-7; Original Records, p. 6.chanrobles virtuallaw libraryred
[37]
People vs. Belen, G.R. Nos. 137991-92, June 10, 2002; People vs.
Brondial,
343 SCRA 600, 621 (2000); People vs. Rosales, 313 SCRA 757, 763 (1999).
[38]
People vs. Belen, supra.; People vs. Acala, 307 SCRA 330, 345 (1999);
People
vs. Espinoza, 247 SCRA 66, 73 (1995).
[39]
People vs. Galvez, G.R. Nos. 136867-68, September 25, 2001; People vs.
Lusa, 288 SCRA 296, 303 (1998); People vs. Escober, 281 SCRA 498, 508
(1997);
People vs. Rosare, 264 SCRA 398, 412
(1996); People vs. Galimba, 253 SCRA 722, 728 (1996).chanrobles virtuallaw libraryred
[40]
People vs. Galvez, supra.; People vs. Balmoria, 287 SCRA 687, 707-708
(1998);
People vs. Tabugoca, 285 SCRA 312, 329 (1998); People vs. Tumala, Jr.,
284 SCRA 436, 439 (1998).
[41]
People vs. Talo, 344 SCRA 294, 311 (2000); People vs. Adora, 275 SCRA
441,
467 (1997); People vs. Junio, 237 SCRA 826, 831 (1994); People vs.
Lagrosa,
Jr., 230 SCRA 298 (1994); People vs.
Domingo, 226 SCRA 156, 174 (1993).chanrobles virtuallaw libraryred
[42]
People vs. Dizon, 356 SCRA 69, 84 (2001); People vs. Sta. Ana, 291 SCRA
188, 209 (1998).
[43]
People vs. Libeta, G.R. No. 139231, April 12, 2002; People vs. Elpedes,
350 SCRA 716, 726 (2001).
[44]
TSN, November 6, 1995.chanrobles virtuallaw libraryred
[45]
Original Records, p. 68.chanrobles virtuallaw libraryred
[46]
Original Records, p. 66.chanrobles virtuallaw libraryred
[47]
Original Records, p. 25.chanrobles virtuallaw libraryred
[48]
People vs. Gallate, G.R. Nos. 144395-98, June 26, 2002; People vs. De
Las
Eras, G.R. No. 134128, September 28, 2001; People vs. Nerio, G.R. No.
142564,
September 26, 2001.
[49]
People vs. Sagaysay, 308 SCRA 455, 465 (1999); People vs. Poculan, 167
SCRA 176, 191 (1988)
[50]
People vs. Napiot, 311 SCRA 772, 782 (1999). See also People vs.
Emocling, 297 SCRA 214 (1998); People vs. Cantos, Sr., 305 SCRA, 786
(1999);
People vs. Padilla, 301 SCRA 265 (1999); People
vs. Ranido, 288 SCRA 369 (1998); People vs. Taton, 282 SCRA 300 (1997);
People vs. Tadulan, 271 SCRA 233 (1997); People vs. Igdanes, 272 SCRA
113
(1997).
[51]
TSN, July 5, 1995, pp. 3-7; TSN, July 12, 1995, pp. 5-6.chanrobles virtuallaw libraryred
[52]
People vs. Agoncillo, G.R. No. 138983, May 23, 2001.chanrobles virtuallaw libraryred
[53]
People vs. Siao, 327 SCRA 231, 241 (2000); People vs. Travero, 276 SCRA
301, 313 (1997).
[54]
People vs. Baroy, G.R. Nos. 137520-22, May 9, 2002.chanrobles virtuallaw libraryred
[55]
People vs. Oranza, G.R. No. 127748, July 25, 2002; People vs. Lining,
G.R.
No. 138401, July 11, 2002; People vs. Lomerio, 326 SCRA 530, 551-552
(2000).
[56]
People vs. Onabia, 306 SCRA 23, 33 (1999).chanrobles virtuallaw libraryred
[57]
People vs. Galvez, G.R. Nos. 136867-68, September 25, 2001.chanrobles virtuallaw libraryred
[58]
People vs. Orani, G.R. No. 144429, July 30, 2002; People vs. Ponsica,
G.R.
Nos. 137661-63, July 4, 2002.
[59]
G.R. Nos. 148917-18, November 21, 2002.chanrobles virtuallaw libraryred
[60]
G.R. No. 137842, August 23, 2001.chanrobles virtuallaw libraryred
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