EN BANC
PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
G.R.
No.
127152
February 12, 2003
-versus-
FILOMENO
AVERGONZADO
ALIAS "MINOC,"
Accused-Appellant. chanrobles virtuallaw libraryred
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D E C I S I O N
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BELLOSILLO,
J.: chanrobles virtuallaw libraryred
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Geralyn R. Udarbe,
a thirteen (13)-year old barrio lass, was walking home midday of 10
June
1994. She just came from the TTFA cooperative store of Sitio TTFA,[1]
Barangay Zamora, Talibon, Bohol, about half a kilometer away from her
house
to buy salted fish[2]
for her grandmother Winefreda Roselim.chanrobles virtuallaw libraryred
Some twenty (20) meters
ahead on her trail was accused Filomeno Avergonzado, a twenty-two
(22)-year
old farmer and chairman of the Sangguniang Kabataan of TTFA, who left
the
store before she did. Upon reaching the bridge traversing a creek
Filomeno
tarried and waited for Geralyn. However she stopped before him and
politely
suggested that he crossed the bridge ahead. But Filomeno did not
respond
nor did he show any sign that he was yielding to the suggestion.cralaw:red
As Geralyn was anxious
to go ahead, she decided not to wait; instead, she proceeded on her way
passing by him. She had barely taken three (3) steps when Filomeno
suddenly
placed his arm around her neck and threatened to kill her with his
hunting
knife on hand if she shouted. He dragged her under the bridge and then
to a place about twenty (20) meters away from the creek. He pushed her
to the ground. He raised her skirt, removed her panty, unzipped his
pants
and then inserted his penis in her vagina. Geralyn felt pain but,
fearing
for her life, she did not shout for help as he kept pointing his knife
at her neck.chanrobles virtuallaw libraryred
After he was through,
Filomeno stood up. Geralyn asked who he was, but he simply told her to
inform anyone who would ask that his name was Boning Polestico, and
then
left. Geralyn then retrieved her underwear and as she put it on again
she
noticed blood in her private part.chanrobles virtuallaw libraryred
Geralyn went back to
her grandmother crying and told her she was raped. Winefreda
immediately
accompanied Geralyn back to the store to inquire about the person who
sexually
assaulted her.chanrobles virtuallaw libraryred
From a salesgirl of
the store, Winefreda learned that a certain Minoc[3]
was also at the store that noon. Winefreda then reported the incident
to
Boyboy Fuentes, chairman of Sitio TTFA, who happened to be there.
Fuentes
promptly sent for Minoc who turned out to be the accused Filomeno
Avergonzado.chanrobles virtuallaw libraryred
When the accused arrived,
Boyboy asked Geralyn, "Is this the man, Day?"[4]
Geralyn answered in the affirmative. Having ascertained the identity of
the person who molested her granddaughter, Winefreda took Geralyn to
her
parents' house. Evangeline, Geralyn's mother, who came home that
afternoon
after spending a day rehearsing songs at the Iglesia ni Cristo was
informed
of the incident.chanrobles virtuallaw libraryred
After informing her
husband about what happened, Evangeline forthwith proceeded to the
cooperative
store to look for Filomeno. She found him drinking with Boyboy Fuentes.
When confronted, Filomeno simply stood up and pointed a finger at her.
Infuriated, Evangeline tried to hack him with a bolo but Boyboy Fuentes
intervened and advised her instead to have her daughter examined by a
doctor.chanrobles virtuallaw libraryred
The Udarbe spouses brought
Geralyn that evening to the Garcia Memorial Provincial Hospital where
she
was examined by Dr. Romeo Camargo. The medical certificate issued by
Dr.
Camargo showed the "presence of blood at the vaginal canal" and the
"presence
of vaginal laceration at 6:00 o'clock with fresh blood." There was also
laceration of the hymen.[5]chanrobles virtuallaw libraryred
On 11 June 1994 Geralyn
filed a complaint[6]
with the assistance of her mother before the Municipal Circuit Trial
Court
of Talibon-Getafe, Bohol, charging Filomeno Avergonzado with rape with
use of a deadly weapon. On 23 August 1994 the complaint was amended to
specifically allege that the rape was committed in violation of Art.
335
of The Revised Penal Code as amended by RA 7659.[7]chanrobles virtuallaw libraryred
When the case reached
the Regional Trial Court of Tagbilaran City it was raffled to Branch 1
presided over by Judge Antonio H. Bautista. On 20 December 1994 the
accused
pleaded not guilty to the charge. On 2 March 1995 the trial started,
but
due to the retirement of Judge Bautista, it had to be continued by
Judge
Teofilo B. Buslon, Jr., with the prosecution presenting Geralyn Udarbe,
Winefreda Roselim, Evangeline Udarbe and Dr. Romeo Camargo as
witnesses.chanrobles virtuallaw libraryred
The accused took the
witness stand in his defense. He denied raping Geralyn and claimed he
was
in Brgy. San Agustin, Talibon, Bohol, sawing coconut trees from the 8th
to the 11th of June 1994. He said that Brgy. San Agustin was
approximately
seven (7) kilometers away from the center of TTFA. To corroborate his
claim,
the defense presented Felix Polistico, owner of the coconut trees he
allegedly
sawed and in whose house he lodged in Brgy. San Agustin.chanrobles virtuallaw libraryred
The defense also presented
Herminigildo Caparoso, brother-in-law of the accused who ran his own
store
twenty (20) meters away from the TTFA cooperative store. Caparoso
testified
that about noon of 10 June 1994 Geralyn went to his store to buy a
bottle
of kulafu wine but asserted that at that time he did not see Filomeno
among
those in the TTFA cooperative store.chanrobles virtuallaw libraryred
The trial court did
not sustain the alibi of the accused Filomeno Avergonzado. On 9 July
1996
the court adjudged him guilty of rape, sentenced him to death, and
ordered
him to indemnify his victim Geralyn Udarbe the sum of P50,000.00 for
moral
damages.[8]chanrobles virtuallaw libraryred
The case is now before
us on automatic review. Accused Filomeno Avergonzado contends that the
court a quo erred in its findings and urges the reversal of his
conviction.
As his conviction hinged primarily on her testimony, he assails the
credibility
of complainant Geralyn Udarbe and claims that the trial court
erroneously
relied on her testimony that was tainted with discrepancies.chanrobles virtuallaw libraryred
We find no merit in
the appeal. While the trial court was not unmindful of some lapses in
the
testimony of the complainant, it found them to be minor and
insignificant
to destroy the integrity of her testimony which the court characterized
as "plain and straightforward."[9]chanrobles virtuallaw libraryred
Time and again this
Court has deferred to the trial court's assessment of the witnesses and
their credibility having the opportunity to observe the witnesses on
the
stand and to detect if they were telling a lie.[10]
This Court does not have the vantage position of a trial judge but
merely
relies on the cold records and the judge's discretion. In the absence
of
any showing that his factual findings were reached arbitrarily or
without
sufficient basis, these findings are to be received with great respect
by this Court, and indeed are binding upon it.[11]
A cautious examination of the records and stenographic notes required
in
reviewing rape cases convinces us that the supposed inconsistencies
have
been satisfactorily explained.chanrobles virtuallaw libraryred
The defense makes much
of the alleged failure of Geralyn to inform chairman Fuentes that the
name
of the person who raped her was Boning Polestico, and of the swift
summons
made by the chairman specifically for the accused notwithstanding the
fact
that the complainant did not disclose the name of her abuser. But the
omission
to relay the name given by the rapist is understandable. It is
incredible
for a person who perpetrated the crime of rape to leave his real name
to
his victim, like giving her his printed calling card, and thus pave the
way for his easy apprehension and facilitate his prosecution. Neither
Geralyn
nor her grandmother could have been expected to accept the name left by
the culprit as his correct name. Apparently, it was Winefreda's
skepticism
that led her back to the store together with Geralyn to ascertain the
real
identity of the rapist.chanrobles virtuallaw libraryred
We do not find anything
suspicious with the action of the sitio chairman to summon the accused.
The accused was sent for precisely because he was known by the sitio
chairman
as Minoc, the same person identified by the salesgirl to have been
present
that noon at the store, and who was suspected to be the same person who
sexually assaulted Geralyn.chanrobles virtuallaw libraryred
It is also suggested
that the complainant lied when she claimed that she did not know the
accused
before the sexual encounter. The defense points out that both the
complainant
and the accused were residents of the same sitio and had on several
occasions
assisted in palay harvests in other people's ricefields. In her first
affidavit,
which was sworn before the mayor of Talibon and filed with her
complaint,[12]
Geralyn claimed that she knew the accused for a long time. In the
second,
executed before MCTC Judge Romualdo G. Buno who conducted the
preliminary
investigation,[13]
she stated that she knew him only recently.chanrobles virtuallaw libraryred
We agree with the Solicitor
General that we cannot infer from the mere fact that they were
residents
of the same sitio that the complainant and the accused already knew
each
other before then. There is no showing that their houses were located
in
close proximity. Geralyn was barely in her teens and had yet to attend
any of the social gatherings in their community.[14]
The two (2) were also unlikely to share the same circle of friends as
the
accused is almost ten (10) years her senior. Nor can we presume such an
acquaintance only because of their presence at palay harvests under the
local residents' customary bayanihan. These activities are usually
participated
in by numerous people and there is not even any insinuation that the
thirteen
(13)-year old complainant was ever introduced much less talked to the
accused.chanrobles virtuallaw libraryred
What lent more credence
to the complainant's averment was the defense's dubious assertion that
even before January 1993 the accused had approached Geralyn twice to
invite
her to "join the Sangguniang Kabataan."[15]
Under the Local Government Code, only persons who are fifteen (15) but
not more than twenty-one (21) years of age are allowed to register with
the Sangguniang Kabataan or be included in the official barangay list
as
members of the Katipunan ng Kabataan.[16]
This is also the same age requirement for those who wish to run for a
post
in the Sangguniang Kabataan.[17]
Although the records do not state the complainant's exact date of
birth,
it is not disputed that she was thirteen (13) years old on 10 June 1994
when the rape was committed. At most, she could not have been more than
eleven (11) years old at the time she was supposedly invited to join
the
organization in January 1993.chanrobles virtuallaw libraryred
The inconsistencies
between a complainant's testimony in open court and her sworn statement
before the investigators are generally not fatal defects to justify a
reversal
of conviction. Affidavits being taken ex parte are almost always
incomplete
and often inaccurate that they are generally considered to be inferior
to the testimony given in open court.[18]
Hence, variances between the affidavit and the court testimony do not
by
themselves affect credibility. The affidavit is frequently not a
complete
reproduction of what the declarant had in mind, considering that it is
often prepared by the administering officer and cast in the latter's
language
or according to the latter's understanding of what the affiant has
said,
while the affiant would simply sign the affidavit after it has been
read
to him.[19]chanrobles virtuallaw libraryred
To be excepted from
this rule and to seriously impair the credibility of a witness,
contradictions
between the testimony and the narrations made in the affidavit must
refer
to important and substantial matters and not merely to trivial ones.[20]
The inconsistencies indicated by the defense in this case pertain to
details
extraneous to the rape. We hold that they are inconsequential matters
which
do not affect the weight and veracity of her declarations. Insofar as
the
authorship of the crime is concerned, the complainant clearly and
consistently
testified in court that it was the accused who raped her.chanrobles virtuallaw libraryred
We also reject the defense's
contention that the trial court incorrectly appreciated the medical
certificate
and the testimony of the examining physician, Dr. Romeo Camargo. The
accused
argues that the finding of a tight vaginal canal upon the insertion of
a finger and the absence of spermatozoa disprove that any sexual
intercourse
occurred. He posits that injuries discovered by the examining physician
may have resulted from the insertion of a blunt instrument during
medical
examination.chanrobles virtuallaw libraryred
We do not agree. The
presentation of a medical certificate and the testimony of the
examining
physician, although not essential in the prosecution of rape,
substantiated
the allegations and reinforced the testimony of the complainant. The
tightness
of the vaginal canal does not negate rape. The complainant's vagina was
found to be elastic, given her age. Thus even with the insertion of an
object like the penis in the vaginal canal, the examining physician
concluded
that the same would still return to its normal size.[21]
The presence of spermatozoa is not a prerequisite for conviction of
rape,
the important consideration being the penetration of the pudenda by the
male organ, no matter how slight, and not the emission of seminal fluid.[22]chanrobles virtuallaw libraryred
Nor can we seriously
consider the defense's theory on the cause of complainant's injuries.
The
attribution of the lacerations in the genitalia of the complainant to
the
examination performed by the physician is simply ludicrous, clearly a
desperate
attempt to provide an alternative explanation for the blatant evidence
of sexual assault.chanrobles virtuallaw libraryred
The defense also claims
as an error the failure of the prosecution to present the barangay
chairman
and the saleslady of the cooperative store to corroborate the
statements
of the complainant. The argument is unavailing for evidence is assessed
in terms of quality, not necessarily of quantity.[23]
The chairman and the saleslady could not augment the testimony of the
complainant
as to the commission of the crime itself as they were not witnesses to
it. Their testimonies are not indispensable, particularly in rape
cases,
where the conviction may rest solely on the testimony of the victim if
found credible since the crime is seldom committed in the presence of
third
parties.chanrobles virtuallaw libraryred
The defense also faults
the trial court for rejecting the testimonies of the defense witnesses.
We rule that the lower court did so properly. Evidence indicates that
they
were merely requested to testify for the accused to corroborate his
alibi.
Moreover, the defense of alibi cannot be sustained as these witnesses
failed
to show that not only was the accused somewhere else when the crime was
committed but that it was also physically impossible for him to be
present
at the place of the crime or its immediate vicinity at the time of its
commission.[24]
Their testimonies cannot prevail over the complainant's positive
identification
of the accused as the perpetrator of the crime.[25]chanrobles virtuallaw libraryred
We take exception however
to the lower court's imposition of the capital punishment. Where rape
is
committed with the use of a deadly weapon, the penalty imposable under
the law is reclusion perpetua to death.[26]
There being no aggravating circumstance, the lesser penalty of
reclusion
perpetua should be applied.[27]
The trial court also
awarded moral damages in the amount of P50,000.00 but failed to award
civil
indemnity which is mandatory upon a finding of the fact of rape.[28]
Moral damages is separate and distinct from the civil indemnity awarded
to rape victims and it cannot take the place of the civil indemnity.
Pursuant
to recent jurisprudence, the rape victim is also entitled to civil
indemnity
of P50,000.00.[29]chanrobles virtuallaw libraryred
WHEREFORE, the Decision
of the court a quo finding the accused FILOMENO AVERGONZADO alias Minoc
guilty of rape is AFFIRMED with the modification that the penalty is
reduced
from death to reclusion perpetua. The accused is ordered to pay the
victim
P50,000.00 as civil indemnity in addition to the P50,000.00 already
awarded
by the court a quo as moral damages.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Davide, Jr., C.J.,
Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez,
Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ.,
concur.chan
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Ynares-Santiago, J.,
on leave.chan
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____________________________
Endnotes:
[1]
TTFA is an acronym for an organization; TSN, 3 March 1995, p. 2.chanrobles virtuallaw libraryred
[2]
Locally known as "ginamos."chanrobles virtuallaw libraryred
[3]
Also spelled as "Menok" in the TSN.chanrobles virtuallaw libraryred
[4]
TSN, 7 March 1995, p. 9.chanrobles virtuallaw libraryred
[5]
Records, p. 2.chanrobles virtuallaw libraryred
[6]
Id., p. 1.chanrobles virtuallaw libraryred
[7]
Id., p. 14.chanrobles virtuallaw libraryred
[8]
Decision penned by Judge Teofilo B. Buslon, Jr., RTC- Br. 1, Tagbilaran
City, Records, pp. 87-89.chanrobles virtuallaw libraryred
[9]
People v. Verano, G.R. No. 110109, 21 November 1996, 264 SCRA 202;
People
v. Villanueva, G.R. No. 96469, 21 October 1992, 215 SCRA 22.
[10]
People v. Recio, G.R. Nos. 118104-06, 28 November 1997, 282 SCRA 274.chanrobles virtuallaw libraryred
[11]
People v. Tulop, G.R. No. 124829, 21 April 1998, 289 SCRA 316.chanrobles virtuallaw libraryred
[12]
Records, p. 4.chanrobles virtuallaw libraryred
[13]
Id., p. 9.chanrobles virtuallaw libraryred
[14]
TSN, 3 March 1995, p. 2.chanrobles virtuallaw libraryred
[15]
TSN, 8 February 1996, p. 15.chanrobles virtuallaw libraryred
[16]
Rep. Act No. 7160, also known as the Local Government Code of 1991,
sec.
424.chanrobles virtuallaw libraryred
[17]
Ibid.chanrobles virtuallaw libraryred
[18]
People v. Pontillar, G.R. No. 104865, 11 July 1997, 275 SCRA 338.chanrobles virtuallaw libraryred
[19]
People v. Banguis, G.R. No. 121626, 26 June 1998, 291 SCRA 279; People
v. Verano, G.R. No. 110109, 21 November 1996, 264 SCRA 202.
[20]
People v. Castillo, G.R. No. 116122, 6 September 1996, 261 SCRA 493.chanrobles virtuallaw libraryred
[21]
TSN, 20 March, p. 11.chanrobles virtuallaw libraryred
[22]
People v. Quinones, G.R. No. 102719, 16 June 1995, 245 SCRA 87; People
v. Ferrer, G.R. No. 142662, 14 August 2001.
[23]
People v. Recio, G.R. Nos. 118104-06, 28 November 1997, 282 SCRA 274.chanrobles virtuallaw libraryred
[24]
People v. Lazaro, G.R. No. 99263, 12 October 1995, 249 SCRA 234.chanrobles virtuallaw libraryred
[25]
People v. Espanola, G.R. No. 119308,18 April 1997, 271 SCRA 689.chanrobles virtuallaw libraryred
[26]
The Revised Penal Code, art. 335.chanrobles virtuallaw libraryred
[27]
People v. Añonuevo, G.R. No. 137843, 12 October 2001.chanrobles virtuallaw libraryred
[28]
People v. Alay-ay, G.R. Nos. 137199-230, 23 August 2001.chanrobles virtuallaw libraryred
[29]
See Note 21.chanrobles virtuallaw libraryred |