EN BANC
THE PEOPLE OF THE
PHILIPPINES,
Plaintiff-Appellee,
G.R.
No.
142749
March 18, 2003
-versus-
BERNARDO C. GAVINO,
Defendant-Appellant.
D E C I S I O N
PUNO, J.:chanroblesvirtuallawlibrary
"The family is under attack,"
declared the Pope in the recently concluded Third World Meeting of
Families.
With the growing number of incestuous rape cases, however, it is
unfortunate
that one such attack comes from within the family.chanrobles virtuallaw libraryred
WENNA GAVINO charged
her father, appellant BERNARDO C. GAVINO, with multiple rape in an
Information
which reads:
"That sometime in the
year 1989 and up to March 10, 1995 in the premises and vicinity
particularly
at the house of the accused located at Purok 9, Poblacion, Prosperidad,
Agusan del Sur, Philippines and within the jurisdiction of this
Honorable
Court, the above-named accused by force, threats and intimidation, with
lewd design, did then and there wilfully, unlawfully and feloniously
succeed
in having sexual intercourse with his own daughter WENNA GAVINO, a girl
who (was) then nine (9) years of age, of good reputation, against her
will
and consent to the damage and prejudice of the said victim consisting
of
moral, actual and compensatory damages.cralaw:red
CONTRARY TO LAW.
Article 335 of the Revised Penal Code."[1]
Wenna, a resident of
Purok 9, Prosperidad, Agusan del Sur, recounted the sexual betrayal she
suffered in the hands of her own father, the appellant. Sometime in
1989,
Wenna, then nine (9) years old, was ordered by the appellant to sleep
beside
him in the bedroom. When she refused, the appellant got mad and
she
had to obey him. Her younger brothers slept in the living room
while
her mother spent the night in the town of Gakob where she had a
teaching
job. Wenna was only able to sleep briefly that night for, at
about
midnight, the appellant, wearing a sando and brief, suddenly pulled her
close to him. He hit her thrice on the abdomen and she felt
dizzy.
He then made her lie on the bed with her back against him. He
inserted
his fingers into her organ before he finally penetrated her.
Wenna
felt intense pain but could not shout for help as the appellant covered
her mouth with his palm. While molesting her, appellant told her
that it was she he loved and not her mother.cralaw:red
After satiating his
savage urge, appellant left the bedroom and repaired to the living
room.
Wenna continued to lie on the bed. She touched her organ and felt
it bleeding. She wreathed with pain, too weak to move.
Sleep
eluded her that night. She kept silent about her ordeal as the
appellant
threatened to kill her, her mother and siblings should she reveal her
defilement.chanrobles virtuallaw libraryred
Appellant's sexual assaults
on Wenna continued for the next six (6) years, until Wenna reached the
age of fifteen. Wenna recounted that she was last abused on March
10, 1995, at about 6:30 a.m. Her mother was then outside the house,
bathing
at the spring. The appellant ordered her brothers to go to school
earlier than usual. Then, alone in the house, Wenna was pulled by
the appellant to the bedroom. He hit her abdomen and kicked her
back.
He then lifted her, dropped her on the wooden bed and succeeded on
having
carnal knowledge of her. Pain engulfed her body.cralaw:red
Wenna finally decided
to break her silence. She reported to her science teacher, Ms.
Ismael,
that the appellant had been beating her up. Nonetheless, she did
not disclose the sexual abuses she suffered in the hands of the
appellant
out of embarassment. Ms. Ismael advised her to seek the
assistance
of the DSWD. Accompanied by a friend, Wenna summoned enough
courage
to reveal her sexual molestations to the DSWD in Cagayan de Oro City. A
DSWD personnel accompanied her to the police station where she executed
a statement. They proceeded to the Patin-ay Provincial Hospital
for
medical examination and then to the Bahbah Municipal Trial Court for
preliminary
investigation. Wenna was placed under the protective custody of
the
DSWD in Cagayan de Oro City for her total rehabilitation.[2]chanrobles virtuallaw libraryred
On February 2, 1996,
after the filing of the rape charges, Wenna was accosted by her mother
Estelita, Neneng Amper and Dodong Angub in her school in Cagayan de Oro
City. They forced her to go with them to Agusan del Sur. On
February 7, 1996, Wenna and her mother fetched Pastor Elizardo Amper
and
then proceeded to the house of Atty. Germiniano Demecillo, appellant's
counsel in the rape cases. Atty. Demecillo directed Wenna to sign
a document.[3]
She inquired about the nature of the document but her mother dismissed
her query. Her mother threatened that she would not be able to
return
to Cagayan de Oro City unless she affixed her signature on the
document.
She signed even as she could not see or read its contents as Atty.
Demecillo
covered its upper portion.cralaw:red
Thereafter, Wenna asked
her mother if she could return to Cagayan de Oro City as she had a
school
examination. Her mother refused but Wenna was able to return to
the
DSWD in Cagayan de Oro City a week later. She told social worker
Evelyn Sagusay that her mother forced her to sign a piece of
paper.
Evelyn suspected that the document was a desistance and would be used
to
cause the dismissal of the rape charges against the appellant.
Wenna
grew apprehensive. She went to the NBI and executed an affidavit of
retraction[4]
deposing that she signed the desistance under duress.[5]
Wenna's testimony was
corroborated by social worker CATALINA JOMOCAN.[6]
Likewise, DR. FLORIANO MANTILLA, who examined Wenna on the day she was
last abused by the appellant, corroborated her claim of
defloration.
His medical examination revealed that Wenna's organ had a gaping
introitus
or vaginal canal; there were also fresh and healed lacerated wounds on
the fourchette; and, Wenna's organ admitted two (2) fingers with ease,
indicating her non-virgin state.[7]
The defense proffered
the theory that Wenna filed the rape charges to get back at the
accused.
ESTELITA GAVINO, appellant's wife, testified that throughout their
marriage,
appellant never hurt her and had been a loving and caring father to all
their children. The rape charges were precipitated by the February 13,
1995 incident when Wenna came home late. Estelita and the
appellant
noticed a stain on Wenna's skirt, near her buttocks. Upon
questioning,
Wenna revealed that she has been sexually abused but refused to
identify
the culprit. They did not persist to know his identity and
allowed
Wenna to rest.cralaw:red
Estelita then sought
the help of NENENG AMPER, a friend of their family at the United
Pentecostal
Church. Neneng tried to discuss with Wenna about the reported
sexual
assault but the latter initially kept silent. On February 15,
1995,
Neneng accompanied Wenna to a doctor for physical examination. On
their way, Wenna confided to Neneng that she had sexual congress with
her
boyfriend Lino Racho. She, however, requested Neneng not to
reveal
anything to her parents as she wanted to tell them herself. At
the
hospital, the doctor refused to examine Wenna for lack of referral from
a government physician authorizing him to perform the examination on
the
alleged rape victim.chanrobles virtuallaw libraryred
As she wanted, Wenna
later divulged to her parents that it was Lino Racho who sexually
assaulted
her. The revelation angered the appellant. They did not,
however,
file a complaint against Lino as Wenna did not want to see him put
behind
bars. On March 3, 1995, Neneng and Lino Racho's mother went to
the
Gavinos to ask for Wenna's hand in marriage.cralaw:red
On March 10, 1995, Wenna
did not return to their house. Estelita asked the appellant to
look
for her. That same day, appellant was arrested by the police as a
suspect
in the rape charges. Estelita brought Lino Racho to the police
headquarters
to shed light on the charges but the police officers refused to
investigate
him as he was not implicated by Wenna in her complaints.cralaw:red
On cross-examination,
Estelita admitted that she, Neneng and other relatives fetched Wenna
from
Cagayan de Oro and brought her to the office of Fiscal Clapis where she
signed the affidavit repudiating her charges of rape against the
appellant.[8]
NENITA "Neneng" AMPER,
a friend of the Gavinos in the United Pentecostal Church, testified
that
she has known the accused since 1989 as they lived in the same
barangay.
He was a good father and provider. Neneng said that Wenna admitted to
her
that her boyfriend Lino Racho was the one who raped her. On
cross-examination,
however, Neneng confirmed that on February 2, 1996, she accompanied
Estelita
to Cagayan de Oro to visit Wenna. She claimed she could not
recall
whether they brought Wenna to the house of Atty. Demecillo, counsel of
the appellant.[9]
LEODEGARIO PULIDO, a
neighbor and co-worker of the appellant, attested to his good moral
character.
He said he never noticed any unusual incident in the appellant's house
during the alleged six (6) years' molestation of Wenna by the
appellant.
He confirmed that Wenna had a boyfriend named Lino Racho and that
sometimes
Lino visited Wenna in his house. Wenna's parents suspected about
the relationship when Wenna started going home late from school.
On March 10, 1995, at about 6:30 a.m., the date when the appellant
allegedly
last molested Wenna, Leodegario was in his house and heard how Wenna
was
scolded by her parents.[10]chanrobles virtuallaw libraryred
ELIZARDO F. AMPER,
Neneng's husband and a neighbor of the appellant since 1989, is a
pastor
at the United Pentecostal Church to which appellant's family
belonged.
On February 5, 1996, Wenna and her mother fetched Elizardo from his
house.
They proceeded to Atty. Demecillo as Wenna wanted to repudiate her
statements
charging appellant with rape. After Atty. Demecillo prepared her
affidavit
of retraction, they all repaired to Prosecutor Clapis where Wenna
attested
to the veracity of its contents. However, Elizardo said that he
was
not aware whether a promise of reward was made to Wenna or whether she
was coerced or intimidated to sign her affidavit.[11]
ATTY. GERMINIANO A.
DEMECILLO, the lawyer representing the appellant in the rape case,
testified
that Wenna requested him to prepare her affidavit of retraction.
She was then with her mother Estelita, Neneng and Pastor
Elizardo.
He prepared the affidavit upon the prodding of Wenna and her mother. He
first interviewed Wenna and then prepared the affidavit after
satisfying
himself that Wenna wanted him to repudiate her statements in connection
with the rape charges. He, however, refused to notarize the
affidavit
as he was appellant's counsel.[12]
The appellant testified
that he has five (5) children -- a girl and four boys. He has
never
maltreated his wife and is a good father to his children. He has
provided Wenna with everything she needed. The only time he
lifted
a hand against Wenna was when he discovered her sexual relationship
with
Lino Racho. Wenna insisted on marrying Lino but he refused to give his
consent as he wanted Wenna to finish her schooling first. In
retaliation,
Wenna filed rape charges against him.[13]
After trial, the court
found the appellant guilty of qualified rape and sentenced him to the
supreme
penalty of death, thus:chanrobles virtuallaw libraryred
"WHEREFORE, the Court
finds accused BERNARDO C. GAVINO, GUILTY beyond reasonable doubt as
principal
in the crime of RAPE as defined and penalized under Article 335 of the
Revised Penal Code as amended by R.A. No. 7659, Section 11 thereof and
hereby imposes upon the accused Bernardo C. Gavino the penalty of
DEATH;
to pay the victim Wenna S. Gavino civil indemnity in the amount of
FIFTY
THOUSAND (P50,000.00) PESOS and the costs."[14]
Hence, the automatic
review of the case by this Court.cralaw:red
Appellant contends that
his guilt was not proved beyond reasonable doubt. He argues that
Wenna's testimony is not worthy of credit. He opines that it is
unbelievable
for Wenna to have experienced pain when she was last abused in March,
1995
considering her claim that appellant had been sexually molesting her
since
she was nine (9) years old. Appellant likewise insists that
Wenna's
failure to report to her mother the continued assault on her virtue for
six (6) years further detracts from her credibility.chanrobles virtuallaw libraryred
Appellant's attempt
to discredit Wenna is unconvincing. First, Wenna's testimony that she
suffered
pain when she was last molested by the appellant is not
inconceivable.
The evidence shows that on the last sexual assault, appellant hit Wenna
on the abdomen and kicked her back. He then lifted the weakened
girl,
dropped her on the wooden bed and ravished her. Clearly, the
physical
attack that preceded the molestation contributed to the pain of
Wenna.
Second, the reluctance and delay of Wenna in reporting the series of
incestuous
abuses she suffered for many years is not necessarily indicative of a
fabricated
charge. The delay is due to the pattern of fear instilled by the
appellant on Wenna. The sexual assaults were accompanied with
death
threats from appellant who exercised moral ascendancy over her.cralaw:red
Neither do we agree
with appellant's contention that the trial court overlooked the
nefarious
motive of Wenna in accusing him of rape. We adhere to the settled
rule that the calibration of the credibility of a witness is best left
to the discretion of the trial judge who was able to observe the
demeanor
of the witness while testifying. In giving more weight to Wenna's
testimony, the trial court found her testimony to be sincere and
straightforward
as she narrated in detail the manner by which she was ravished by the
appellant.[15]
The trial court also took note of Wenna's agony as her testimony
throughout
the trial was punctuated by uncontrollable bursts of tears.[16]
Moreover, her positive testimony of forcible defloration was
corroborated
by the results of the physical examination conducted on her. It
is
settled that the existence of lacerations, coupled with the victim's
testimony,
are the best physical evidence of sexual abuse.[17]
In contrast, we find the defense adduced by the appellant to be
flimsy.
First, it is unnatural for a naïve, barrio lass to accuse her
father
of such a grave, personal offense and expose herself and her family to
social humiliation if it were not true. Second, the defense's
attempt
to shift the blame on Lino Racho has to fail for lack of evidence.chanrobles virtuallaw libraryred
Appellant likewise insists
that the trial court failed to give due weight to Wenna's affidavit of
retraction considering that its execution and signing was attended by
defense
witnesses Atty. Demecillo and Pastor Elizardo. We are not
persuaded.
For one, Atty. Demecillo who prepared Wenna's affidavit of retraction
cannot
be considered a neutral witness as he was the counsel of appellant
during
the trial of these cases. Thus, his testimony as to the alleged
voluntary
execution of Wenna's affidavit of retraction is immediately
suspect.
Secondly, Pastor Felizardo admitted during the trial that he was
unaware
whether Wenna signed the affidavit due to threats or a promise of
reward.
Thirdly, it is of judicial notice that an affidavit of desistance or
retraction
is easily procured through intimidation, threat or a promise of
reward.
Courts thus view such affidavit with suspicion and reservation.[18]
In the case at bar, the prosecution duly established that Wenna signed
the affidavit of retraction under duress. Her relatives accosted
her in school while she was under the custody of the DSWD and took her
to Agusan to sign the said affidavit. Its content was not
explained
to Wenna nor was she given a chance to read it. She was forced to
sign the affidavit as she was threatened that she could not return to
Cagayan
de Oro City if she refused.cralaw:red
Coming now to the penalty,
appellant rightly impugns the correctness of the sentence imposed by
the
trial court as the prosecution failed to adduce evidence to prove the
qualifying
circumstances of the victim's minority and her filiation with the
accused.
In People vs. Ramirez,[19]
the Court en banc laid down the guidelines for the proper appreciation
of minority either as an element of a crime or as a qualifying
circumstance.
It held that: (1) the best evidence to prove the age of the offended
party
is an original or certified true copy of the certificate of live birth
of such party; (2) in its absence, similar authentic documents such as
baptismal certificate and school records which show the date of birth
of
the victim would suffice to prove age; (3) if the certificate of live
birth
or authentic document is shown to have been lost or destroyed or
otherwise
unavailable, the testimony, if clear and credible, of the victim's
mother
or a member of the family either by affinity or consanguinity who is
qualified
to testify on matters respecting pedigree such as the exact age or date
of birth of the offended party pursuant to Section 40, Rule 130 of the
Rules of Evidence shall be sufficient; and, (4) in the absence of all
the
above, the complainant's testimony will suffice provided it is
expressly
and clearly admitted by the appellant.cralaw:red
In the case at bar,
no birth certificate or similar authentic document was offered by the
prosecution
to prove Wenna's minority. Neither was it shown that they were
lost,
destroyed or unavailable at the time of the trial. The testimony
of the mother or the victim relative to the latter's age cannot be
accepted
as adequate proof thereof. In addition, we note that the prosecution
failed
to adduce independent proof to establish appellant's relationship with
the victim. Although Wenna's filiation to appellant and minority
was neither refuted nor contested by the defense, proof thereof is
critical
considering the penalty of death imposed for qualified rape. Thus, the
prosecution's failure to sufficiently establish Wenna's minority and
relationship
to appellant bars the latter's conviction for qualified rape and the
imposition
of the extreme penalty of death.chanrobles virtuallaw libraryred
On a last note, we find
that the trial court erred in finding the appellant guilty of only one
(1) count of rape considering that the Information charged appellant
with
multiple rape and the commission of two (2) counts of simple rape was
established
beyond reasonable doubt by the prosecution at the trial.cralaw:red
IN VIEW WHEREOF, the
appealed Decision is modified. Appellant BERNARDO C. GAVINO is found
guilty
of two (2) counts of simple rape. He is sentenced to suffer the
penalty
of reclusion perpetua for each count and to pay Wenna Gavino the total
amount of two hundred thousand pesos (P200,000.00), broken down as
follows:
fifty thousand pesos (P50,000.00) as civil indemnity for each count of
rape, and another fifty thousand pesos (P50,000.00) as moral damages
also
for each count.cralaw:red
SO ORDERED.cralaw:red
Davide, Jr., C.J.,
Bellosillo,
Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio,
Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
Ynares-Santiago, J.,
on leave.cralaw:red
____________________________
Endnotes:
[1]
Rollo at 7.chanrobles virtuallaw libraryred
[2]
September 6, 1995 TSN at 2-16; September 7, 1995 TSN at 8-33; November
6, 1997 TSN at 2-6.
[3]
Records at 139; The document turned out to be an affidavit of
desistance
where Wenna retracted her testimony during the investigation of the
rape
cases and her court testimony relative to the rape cases.
[4]
Records at 140.chanrobles virtuallaw libraryred
[5]
November 6, 1997 TSN at 7-11.
[6]
November 23, 1995 TSN at 1-6.
[7]
Medical Certificate, Records at 6; September 7, 1995 TSN at 2-8.
[8]
May 20, 1998 TSN at 2-13.chanrobles virtuallaw libraryred
[9]
October 7, 1998 TSN at 2-13.
[10]
January 11, 1996 TSN at 1-7.
[11]
July 7, 1999 TSN at 3-6.
[12]
Id. at 7- 9.chanrobles virtuallaw libraryred
[13]
July 8, 1999 TSN at 2-7.
[14]
Decision, dated February 10, 2000; Rollo at 57.
[15]
RTC Decision at 7; Rollo at 26.chanrobles virtuallaw libraryred
[16]
Id. at 8; Id. at 27.chanrobles virtuallaw libraryred
[17]
People vs. Belen, G.R. Nos. 137991-92, June 10, 2002.
[18]
People vs. Bertulfo, G.R. No. 143790, May 7, 2002.
[19]
G.R. No. 138471, October 10, 2002. |