THIRD DIVISION
VIRGILIO SANTOS,
Petitioner,
G.R.
No.
147615
January 20, 2003 -versus- chanrobles virtuallaw libraryred
THE PEOPLE OF THE
PHILIPPINES,
Respondent.
D E C I S I O N
PUNO,
J.:
Before us is a Petition
for Review of the Court of Appeals[1]
Decision dated October 19, 2000, in CA-G.R. CR No. 18994, which found
the
accused, Virgilio Santos, guilty beyond reasonable doubt of the crime
of
Attempted Rape.chanrobles virtuallaw libraryred
On November 22, 1988,
Transuelo de Jesus filed with the Regional Trial Court of Malolos,
Bulacan
a Criminal Complaint against Virgilio Santos, charging him with
Attempted
Rape committed as follows: chanrobles virtuallaw libraryred
"That on or about the
10th day of May, 1987, in the municipality of Hagonoy, province of
Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named
accused did then and there wilfully, unlawfully and feloniously
commence
the commission of rape directly by overt acts, by then and there
forcing
one Transuelo Paguinto de Jesus to have sexual intercourse with him by
dragging her to an uninhabited place and by means of force and
violence;
embracing and kissing her, touching her private parts and even
undressing
her with intent of having carnal knowledge of her; and if the accused
was
not able to accomplish his purpose, that is, to have carnal knowledge
of
the said Transuelo Peguinto de Jesus, it was not because of his
voluntary
desistance but because of the intervention of a third party. chanrobles virtuallaw libraryred
Contrary to law."[2]chanrobles virtuallaw libraryred
On January 9, 1989,
the accused was arraigned, and pleaded not guilty. Trial ensued.chanrobles virtuallaw libraryred
The prosecution established
the following facts: chanrobles virtuallaw libraryred
On May 10, 1987, between
8:00 and 9:00 in the evening, the private complainant, Transuelo P. de
Jesus, an eighteen-year old housewife, was on her way to buy a mosquito
coil or "katol" from the store of Marina Ablaza when she was grabbed by
the accused, Virgilio Santos, and pulled into a vacant lot. The accused
covered her mouth, and then started embracing and kissing her. He also
touched her private parts. After forcibly raising the victim’s skirt
and
removing her underwear, the accused lowered his own pants and briefs,
and
began "poking" the victim’s vagina with his penis. Transuelo could only
beg for mercy. She could not shout for help as the accused was holding
a bladed weapon. At this point, they heard Transuelo’s mother-in-law,
Emeteria
de Jesus, calling her name. The accused immediately stood up and warned
the victim not to tell anyone about what happened, otherwise, he would
kill her. Still holding the bladed weapon, the accused left.chanrobles virtuallaw libraryred
Transuelo got up and
headed home. She met her mother-in-law about 5 meters away from the
place
of the incident. When the latter asked where she came from, Transuelo
replied
that she went to buy "katol" but the store was already closed. chanrobles virtuallaw libraryred
The following morning,
Transuelo decided to tell her mother-in-law about the incident. She
refused
to tell her husband for fear that he would kill the accused. She did
tell
him, however, two days after the incident. On the same day, she was
accompanied
by her mother-in-law and reported the incident to the chairman of the
barangay.
She also filed a complaint with the Municipal Trial Court of Hagonoy,
Bulacan,
which, however, dismissed said complaint for lack of probable cause.
Private
complainant appealed the dismissal to the Provincial Prosecutor of
Bulacan
who likewise dismissed the complaint. Unfazed, the private complainant
elevated her complaint to the Secretary of the Department of Justice
who
reversed the earlier rulings and issued an Order directing the
Provincial
Prosecutor of Bulacan to file an appropriate case against the accused.chanrobles virtuallaw libraryred
In defense, the accused
claims that from 4:00 to 6:00 p.m. on the day of the incident, he
played
mahjong with Marina Ablaza and two other persons in Ablaza’s store.
Then,
he went home to his mother-in-law’s house, located "just opposite the
store."[3]
At 6:30 in the evening, he returned to the store to pay for his
merienda,
then went back home after thirty minutes, and never left again that
evening.chanrobles virtuallaw libraryred
The accused avers that
the complaint was filed by Transuelo because of a rumor circulating in
their neighborhood that he embraced the latter. A misunderstanding
between
the wife of the accused and Transuelo’s mother-in-law developed. He
presented
witnesses - storeowner Marina Ablaza and neighbor Teodora Gonzales - to
corroborate his testimony.[4]chanrobles virtuallaw libraryred
On February 10, 1993,
judgment was rendered by Judge Amante M. Laforteza of the Regional
Trial
Court of Malolos, Bulacan, Branch 20, finding the accused guilty beyond
reasonable doubt of the crime of attempted rape. The dispositive
portion
of the Decision states:chanrobles virtuallaw libraryred
"WHEREFORE, judgment
is hereby rendered finding the accused Virgilio Santos guilty beyond a
(sic) reasonable doubt of attempted rape with the aggravating
circumstance
of nighttime and hereby sentences him to suffer an indeterminate
penalty
of imprisonment of SIX (6) MONTHS AND ONE (1) DAY, as minimum, to TEN
(10)
YEARS and ONE (1) DAY, as maximum, and to indemnify the complainant
Transuelo
de Jesus the sum of ONE THOUSAND THREE HUNDRED TWENTY (P1,320.00)
PESOS,
Philippine Currency, as actual expenses, and the sum of SEVEN THOUSAND
(P7,000.00) PESOS, Philippine Currency, as attorney’s fees.chanrobles virtuallaw libraryred
Costs againts the accused.chanrobles virtuallaw libraryred
SO ORDERED."[5]chanrobles virtuallaw libraryred
On February 22, 1993,
the accused filed a Motion for New Trial or Reconsideration. Four days
later, he filed a Supplemental Motion for New Trial or Reconsideration,
with attached "Sinumpaang Salaysay" or Sworn Statements of private
complainant
Transuelo de Jesus and witness Emeteria de Jesus. On April 21, 1993,
the
Regional Trial Court, through pairing judge, Judge Cesar M. Solis,
granted
the motion and set aside the February 10, 1993 Decision, viz:
"The Motion for New
Trial with the Provincial Prosecutor interposing ‘No Objection’ has
been
found to be tenable. In view thereof, the evidence received in the
proceedings
of March 5, 1993 shall be taken and considered together with the
evidence
already on record. Accordingly, the decision promulgated on February
10,
1993 is hereby set aside for a new judgment to be rendered therein.chanrobles virtuallaw libraryred
SO ORDERED."[6]chanrobles virtuallaw libraryred
On November 4, 1994,
Judge Oscar C. Herrera of the RTC of Malolos, Bulacan, Branch 20,
issued
the following Order respecting the pending case:
"Pursuant to the Administrative
Circular No. 14-94 of the Honorable Chief Justice Andres R. Narvasa,
dated
September 14, 1994, authorizing Assisting Judges assigned to the
Regional
Trial Courts of the National Capital Judicial Region and holding office
at Judiciary Planning Development and Implementation Office (JPDIO),
Supreme
Court, to assist in the resolution of ‘inherited cases’ in Regions III,
IV and V, and the communication to the Court dated September 28, 1994
of
Justice Oscar R. Victoriano, Consultant/National Coordinator, JPDIO,
Supreme
Court that the records of the ‘inherited cases’ in this sala be
forwarded
to the said office, let the complete records of the above-entitled
case,
together with the transcripts of stenographic notes (TSNs) and the
exhibits,
be forwarded to the Judiciary Planning Development Implementation
Office,
Supreme Court, Manila for resolution/decision.chanrobles virtuallaw libraryred
SO ORDERED."[7]chanrobles virtuallaw libraryred
Assisting Judge Recaredo
P. Barte then rendered a Decision, dated June 6, 1995, on the
"inherited
case," the dispositive portion of which states, thus:
WHEREFORE, judgment
is hereby rendered finding the accused VIRGILIO SANTOS, guilty beyond
reasonable
doubt of the crime of Attempted Rape and sentences him to suffer an
indeterminate
prison term of from four (4) years, two (2) months and one (1) day of
prision
correccional as minimum, to ten (10) years and one (1) day of prision
mayor
as maximum, the same being fixed in its maximum period considering the
attendance of the aggravating circumstance of nighttime, in the absence
of any mitigating circumstance, and to indemnify the offended party
Transuelo
de Jesus, the sum of P1,320.00 as actual expenses, and P7,000.00 for
attorney’s
fees and to pay the costs.chanrobles virtuallaw libraryred
SO ORDERED.[8]chanrobles virtuallaw libraryred
On appeal, the RTC Decision
was affirmed in toto by the Court of Appeals. The accused moved to
reconsider
but his motion was denied. Hence, this appeal where he raises the
following
assignments of error:chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
"A. The
Honorable
Court of Appeals erred in not giving due credence to the affidavit of
desistance
of the private complainant and her witness;
B. The Honorable
Court
of Appeals erred in disregarding the entries in the barangay blotter of
Carillo, Hagonoy, Bulacan, as well as the Police Blotter of
PNP-Hagonoy,
Bulacan;chanrobles virtuallaw libraryred
C. The Honorable
Court
of Appeals erred in ruling in favor of the appellee as to effect of the
material discrepancies in the sworn statements of the private
complainant
and her witnesses;chanrobles virtuallaw libraryred
D. The Honorable
Court
of Appeals erred in disregarding the reason for the dismissal of the
same
case at the Municipal Trial Court and the Provincial Prosecutor’s
Office;chanrobles virtuallaw libraryred
E. The Honorable
Court
of Appeals erred in appreciating nighttime as aggravating circumstance."[9]
The appeal is partly
meritorious.chanrobles virtuallaw libraryred
We will jointly resolve
the first, second and fourth assignments of error. The accused contends
that credence should be given to the affidavits of desistance of the
private
complainant and her witness even though filed after his conviction. The
affidavits of desistance allegedly cast serious doubt on his criminal
liability,
especially when taken in conjunction with the private complainant’s
initial
complaint entered in the barangay and the police blotters, which
contains
no allegation of attempted rape. He also stressed the dismissal of the
complaint during the preliminary investigation by the municipal trial
judge,
and subsequently, by the provincial prosecutor.chanrobles virtuallaw libraryred
We are not convinced.
It is settled that an affidavit of desistance made by a witness after
conviction
of the accused is not reliable, and deserves only scant attention.[10]
The affidavits of desistance filed by the private complainant and her
witness
were executed twelve (12) days after the promulgation of judgment of
conviction,
and are clearly mere afterthoughts. Hence, they cannot have the effect
of negating a previous credible declaration. As we held in the case of
People vs. Dalabajan:[11]chanrobles virtuallaw libraryred
"A recantation does
not necessarily cancel an earlier declaration. Like any other
testimony,
it is subject to the test of credibility based on the relevant
circumstances
and especially the demeanor of the witness on the stand. Moreover, it
should
be received with caution as otherwise it could ‘make solemn trial a
mockery
and place the investigation of truth at the mercy of unscrupulous
witnesses.’
[People vs. Davatos, 229 SCRA 647 (1994)]chanrobles virtuallaw libraryred
xxxxxxxxchanrobles virtuallaw libraryred
We have previously held
that mere retraction by a prosecution witness does not necessarily
vitiate
the original testimony if credible. [People vs. Dulay, 217 SCRA 103
(1993)]
The Court looks with disfavor upon retractions of testimonies
previously
given in court. The rationale for the rule is obvious: Affidavits of
retraction
can easily be secured from witnesses, usually through intimidation or
for
a monetary consideration. Recanted testimony is exceedingly unreliable.
There is always the probability that it will later be repudiated.
[Lopez
vs. Court of Appeals, 239 SCRA 562 (1994)]"[12]chanrobles virtuallaw libraryred
Rationalizing its unwillingness
to give weight to the belated affidavits, the trial court aptly held,
viz:chanrobles virtuallaw libraryred
"Besides, the affidavits
of retraction of both the offended party and her mother-in-law,
Emeteria
de Jesus, had not been subjected to an exhaustive and probing
cross-examination,
if only to discover the motives that prompted complainant to repudiate
her open court declarations and previous written statement executed
before
Municipal Judge Jose Torres. Had the desistance of offended party come
at a seasonable time at least before she had told everything on the
witness
stand that convinced the trial judge and this Court of her sincerity,
or
had the accused thought of and earnestly sought the cooperation of
offended
party before the full dress presentation of prosecution evidence, it
would
have been less difficult for the court to set aside its judgment of
conviction.
But here lies already before the Court, a quantum of evidence
supportive
of the accused’s guilt that is beyond obliteration or capable of being
expunged from the court’s record, without committing a miscarriage of
justice
or judicial anomaly."[13]chanrobles virtuallaw libraryred
The accused contends
that the entries of Transuelo’s complaint in the barangay and the
police
blotters prove the innocence of the accused of the crime charged.chanrobles virtuallaw libraryred
The entry in the barangay
blotter provides, viz:chanrobles virtuallaw libraryred
"Si Bebot ay nagreklamo
sa punong barangay na siya ay niyakap ni Ver noong Linggo ng gabi sa
pagitan
ng alas 8:00 at alas 9:00 ng gabi, Mayo 10, 1987."[14]
On the other hand, the
certification of the entry in the police blotter provides the
following:chanrobles virtuallaw libraryred
"‘ACT OF LASCIVIOUSNESS’
The person of Mrs. Transuelo de Jesus, 19 years old, married, of Bgy.
Carillo,
this [municipality] complained to this [Headquarters] one @ Ver Santos
of Bgy. Iba, this [municipality], for Act of Lasciviousness. According
to reportee, suspect forcibly touch (sic) the different parts of her
body
and threaten (sic) her to kill (sic). Incident happened at Bgy. Iba,
this
[municipality] on 10 May ’87, between the hour (sic) of 2000H and 2100H.cralaw:red
(SGD.) TRANSUELO DE
JESUSchanrobles virtuallaw libraryred
RECORDED BY:chanrobles virtuallaw libraryred
PAT. ROLANDO B. RONQUILLO
INP
Desk Officer"[15]chanrobles virtuallaw libraryred
The above reports may
be wanting in details of the incident, but they do not negate the
charge
of attempted rape. The entry in the barangay blotter merely states that
private complainant was embraced ("niyakap") by the accused. This may
be
attributed to inaccurate reporting or to the victim’s incomplete
narration
of events, whether or not intentionally done. Well-known is the
Filipina
trait of being shy and coy, "not readily prone to reveal any violation
against her private person such as rape due to concomitant shame and
embarrassment."[16]
There might have also been a lack of fair opportunity for the victim to
narrate her full story. The incompleteness and inaccuracy of reports in
the barangay and police blotters inspired our ruling in the case of
Santiago
vs. Court of Appeals,[17]
viz:
chanrobles virtuallaw libraryred
"xxx [T]he entries
in the police blotter should not be given significance or probative
value,
as they do not constitute conclusive proof of the truth thereof. These
entries are usually incomplete and inaccurate, as ‘[s]ometimes they are
taken from either partial suggestion or inaccurate reporting and are
hearsay,
untested in the crucible of a trial on the merits."[18]chanrobles virtuallaw libraryred
Next, the accused argues
that the dismissal of the complaint by the municipal trial court, and
subsequently,
by the provincial prosecutor, during its preliminary investigation,
should
be taken into account in determining whether the accused is criminally
liable. The appellate court dismissed the contention with the following
ruling, viz: chanrobles virtuallaw libraryred
"It may be stated that
although the instant case had been earlier dismissed during its
preliminary
investigation and said dismissal was later sustained by the provincial
prosecutor, said case however was allowed to be refiled by the
Department
of Justice upon appeal of the dismissal of the case thereto.
The previous dismissal
of the case during its preliminary investigation stage before the
fiscal
is immaterial for the records gathered therein do not even form part of
the present records of the present case. Section 8, Rule 112 of the
Rules
on Criminal Procedure provides: chanrobles virtuallaw libraryred
‘Sec. 8. Record of preliminary
investigation - The record of preliminary investigation whether
conducted
by a judge or a fiscal shall not form part of the record of the case in
the Regional Trial Court. However, the said court, on its own
initiative
or that of any party may order the production of the record or any part
thereof whenever the same shall be necessary in the resolution of the
case
or any incident therein, or shall be introduced as evidence by the
party
requesting for its production.’"[19]chanrobles virtuallaw libraryred
In the case of People
vs. Crispin,[20]
this Court held that the record of the preliminary investigation does
not
form part of the regional trial court records unless introduced as
evidence
during the trial. Absent such introduction, the records of preliminary
investigation cannot be treated as evidence in court; neither may the
trial
court be compelled to take judicial notice of the same.[21]
A careful review of the records of this case, however, will show that
the
accused presented, and formally offered as evidence,[22]
the records of the preliminary investigation. Nonetheless, we remain
unconvinced
that these records will exculpate the accused. The dismissal of the
case
by the investigating municipal trial judge and by the provincial
prosecutor
was based on the report in the barangay blotter which we earlier held
as
highly unreliable and undeserving of any probative value. For good
reasons,
the dismissal of the case was reversed by the Secretary of Justice.chanrobles virtuallaw libraryred
On the second assignment
of error, the accused contends that the material discrepancies in the
sworn
statements of the private complainant and her mother-in-law, Emeteria
de
Jesus, erode their credibility. He alleges that in their sworn
statements
before Patrolman Mario Reyes of the Hagonoy Police Station and in their
answer to the inquiry of the municipal trial judge during the
preliminary
investigation, both the private complainant and her mother-in-law
claimed
that it was on the day after the incident that the private complainant
revealed to her mother-in-law about the incident. However, in their
sworn
statements before the provincial prosecutor, they claimed that the
private
complainant told her mother-in-law about the incident right after it
occurred.
Also, the statements made by Emeteria de Jesus before the police
officer
in Hagonoy and the investigating judge were to the effect that she met
her daughter-in-law on the street, coming from the vacant lot where the
incident happened. She declared before the provincial prosecutor,
however,
that she found her daughter-in-law in the place where "she also saw the
accused emerge."[23]chanrobles virtuallaw libraryred
Time and again, we hold
that not all kinds of discrepancies and inconsistencies in testimonies
have the effect of discrediting a witness. On the contrary, some
discrepancies
may actually strengthen the witness’ credibility as they erase the
suspicion
of a rehearsed testimony.[24]
These are the discrepancies and inconsistencies which refer to minor
details
outside the essential elements of the crime charged.[25]chanrobles virtuallaw libraryred
In the case at bar,
the alleged discrepancies and inconsistencies refer to the time and
place
when the private complainant met and told her mother-in-law about the
incident.
These are mere collateral matters inconsequential in the determination
of the criminal liability of the accused. More important is the
spontaneous,
categorical and straightforward testimony of the private complainant on
the violation against her person. She never faltered in her narration
of
the essential elements of the subject offense, whether before the
investigating
judge or prosecutor, or the trial judge.chanrobles virtuallaw libraryred
We quote the pertinent
portions of the private complainant’s testimony during the trial of the
case, to wit:chanrobles virtuallaw libraryred
DIRECT EXAMINATION OF
THE WITNESS BY ATTY. KLIATCHKO:chanrobles virtuallaw libraryred
Q. Mrs. De
Jesus, do you know the accused in this case, Virgilio Santos?
A. Yes, sir.chanrobles virtuallaw libraryred
Q. If he is in
Court
now, will you please point to him?
A. He is there, sir.chanrobles virtuallaw libraryred
(Witness pointing to
a person who responded by the name Virgilio Santos.)
Q. Why do you know
the
accused in this case, Virgilio Santos?
A. Because our house
is near their house, sir.chanrobles virtuallaw libraryred
Q. Do you know
this
accused Virgilio Santos already on May 10, 1987?
A. Yes, sir.chanrobles virtuallaw libraryred
Q. On May 10,
1987,
between the hours of 8:00 to 9:00 in the evening, where were you?
A. I was then on a
path going towards the store of Marina Ablaza, sir.chanrobles virtuallaw libraryred
Q. Where is the
store
of Marina Ablaza?
A. Iba, Hagonoy,
Bulacan,
sir.chanrobles virtuallaw libraryred
Q. What is the
relation
of this Iba to Carillo, the place where you said of your (sic) you
reside
as you said a while ago?
A. These two places
were near each other, sir.chanrobles virtuallaw libraryred
Q. While you were
as
you said on the path leading towards the store of Marina Ablaza, was
there
anything unusual that happened?
A. While I was then
walking on the path towards the store of Marina Ablaza, this Virgilio
Santos
suddenly grabbed me, touched my (sic) delicate parts of my body, kiss
(sic)
me, embraced me, and in doing so (sic) he removed his pants while he
was
removing his pant (sic) he was forecibly (sic) trying to insert his
organ
into mine, sir.chanrobles virtuallaw libraryred
Q. When you said
he
removed his pants, what do you mean by that?
A. After removing his
pants, he suddenly laid on top of me, sir.chanrobles virtuallaw libraryred
Q. When you said
that
he was trying to lay (sic) on top of you, what was your position?
A. I was then leaning
on the rice paddy, sir (Pilapil) (sic).chanrobles virtuallaw libraryred
Q. Now, when he
was
trying to insert his private organ on (sic) your private organ, what
was
the condition of your dress?
A. My skirt was
raised
up, because it was raised up by him, sir.
Q. Now, when he
was
trying to insert his private organ on (sic) your private organ, what
was
the condition of his pants?
A. His pants was
placed
lower, sir.chanrobles virtuallaw libraryred
Q. Up to what
place
of (sic) part of his body was his pants lowered?
A. On the thigh, sir.chanrobles virtuallaw libraryred
Q. Now, you stated
that
you were kissed, on what part of your body were you kissed by the
accused?
A. On the face, the
lips and the neck, sir.chanrobles virtuallaw libraryred
Q. You stated also
that
the accused touched your private parts, which private parts of your
body
were touched by the accused?
A. Breast, my nipple,
and my private organ, sir.
Q. You stated that
you
were embraced by the accused, will you kindly illustrate or demonstrate
to his (sic) Court how you were embraced by the accused?
A. We are (sic) both
standing and while I was in front of the accused and my back towards
him,
he suddenly embraced me from behind then turned my right since (sic)
towards
hin (sic) and touched my private organ, sir.
Q. After you were
embraced,
touch (sic) on your private parts and kiss (sic) you in the way you
have
just demonstrated to this Honorable Court, after that what happened?
A. He threw (Binuwal)
me to the rice paddy (Pilapil) where I was made to lean, sir.chanrobles virtuallaw libraryred
Q. After you were
embraced,
kissed and touched your (sic) private parts and then you were made to
lean
on the rice paddy then, what happened after that?
A. He laid on top of
me and then after he removed his pants he put out (sic) his private
organ
poke (sic) (Itinutok) to my private organ, sir.
Q. Now, when you
said
he removed his pants which you have described here before the Honorable
Court by putting down up (sic) to his thight (sic), what kind of pants
was he wearing?
A. A hard pants
(sic),
sir.chanrobles virtuallaw libraryred
Q. And how long is
this
hard pants?
A. Short pants, sir.chanrobles virtuallaw libraryred
Q. Now, and after
(sic)
he was trying to poke or insert his private parts on (sic) your private
part (sic) while you were on a leanning (sic) position on the rice
paddy,
what happened?
ATTY. LIWANAG:
Now, I will object
to the word insert because there is no word "ipinasok" she said
"itinutok".
COURT:chanrobles virtuallaw libraryred
Let the witness
answer.
A. While he was
trying
to insert his organ upon (sic) my organ, I was asking mercy from him
and
then at that moment he heard a voice coming from my mother-in-law, sir.chanrobles virtuallaw libraryred
Q. Why did you say
that
the accused heard (sic) the voice of your mother-in-law?
A: He suddenly
released
his hold upon (sic) my body and afterwards he even threatened me not to
tell anybody because if I will do so he will kill me, sir.[26]chanrobles virtuallaw libraryred
chanrobles virtuallaw libraryred
We also accord respect
to the trial court’s finding of credibility in the persons and
testimonies
of the private complainant and her witness. Rudimentary is the rule
that
matters of assessing and assigning values to the testimonies of
witnesses
is best and most competently performed by a trial judge who has the
unique
opportunity to observe the behavior, demeanor and conduct of the
witness
at the stand.[27]
Thus, absent any showing that the trial court has overlooked some
material
facts or gravely abused its discretion, this Court will not interfere
with
its assessment of the credibility of the witnesses.[28]
Although it may be argued that this case was merely "inherited" by
Judge
Recaredo P. Barte, we note that his decision is in accord with that of
the judge who originally tried this case, Judge Amante M. Laforteza.chanrobles virtuallaw libraryred
Finally, we consider
the defense of alibi. The accused claims to be in the house of his
mother-in-law
as early as 7:00 p.m. on the day of the incident, and that he never
went
out of the house again that evening. We find this alibi weak and
unconvincing.
For alibi to prosper, it must preclude any doubt on the physical
impossibility
of the presence of the accused at the scene of the crime or its
vicinity.[29]
In this case, the house of the accused’s mother-in-law is "just
opposite
the store"[30]
of Marina Ablaza, which is only about 8 to 12 meters away from the
vacant
lot where the incident happened.[31]
The accused could have left the house of his mother-in-law sometime
between
8:00 and 9:00 p.m., committed the crime (which according to the victim
lasted for only about 5 minutes)[32]
and returned to the house unnoticed.chanrobles virtuallaw libraryred
Anent the aggravating
circumstance of nighttime, we note that this is not even alleged in the
information. Sections 8 and 9 of Rule 110 of the Revised Rules of
Criminal
Procedure provide, thus:chanrobles virtuallaw libraryred
Sec. 8. Designation
of the Offense. The complaint or information shall state the
designation
of the offense given by the statute, aver the acts or omissions
constituting
the offense, and specify its qualifying and aggravating circumstances.
If there is no designation of the offense, reference shall be made to
the
section or subsection of the statute punishing it.chanrobles virtuallaw libraryred
Sec. 9. Cause of the
accusation."The acts or omissions complained of as constituting the
offense
and the qualifying and aggravating circumstances must be stated in
ordinary
and concise language and not necessarily in the language used in the
statute
but in terms sufficient to enable a person of common understanding to
know
what offense is being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment."
chanrobles virtuallaw libraryred
According to the
foregoing
provisions, any circumstance that would qualify or aggravate the crime
charged must be specified in the information. Following the established
rule that a penal statute, whether substantive or procedural, shall be
given a retroactive effect if favorable to the accused,[33] we hold
that
the aforequoted provisions are applicable to this case, and
accordingly,
rule that the aggravating circumstance of nighttime cannot be
appreciated.
chanrobles virtuallaw libraryred
WHEREFORE, the assailed
Decision of the Court of Appeals dated October 19, 2000, affirming the
Decision dated June 6, 1995 of the Regional Trial Court of Malolos,
Bulacan,
Branch 20 which found the accused, Virgilio Santos, guilty beyond
reasonable
doubt of the crime of Attempted Rape, is hereby AFFIRMED with
MODIFICATION
that the accused is sentenced to an indeterminate penalty of two (2)
years,
four (4) months and one (1) day of prision correccional medium, as the
minimum penalty, and eight (8) years and one (1) day of prision mayor
medium,
as the maximum penalty.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Panganiban,
Sandoval-Gutierrez,
Corona and Carpio-Morales, JJ., concur.chan
robles virtual law library
____________________________
Endnotes:
[1]
Special Eleventh Division composed of J. Bernardo P. Abesamis, ponente;
J. Godardo A. Jacinto, chairman, and J. Rebecca De Guia-Salvador,
member.
The decision affirmed the Decision dated
June
6, 1995 of the RTC of Malolos, Bulacan.chanrobles virtuallaw libraryred
[2]
Original Records, p. 1.chanrobles virtuallaw libraryred
[3]
TSN dated August 15, 1990, p. 14.chanrobles virtuallaw libraryred
[4]
TSN dated September 21, 1990 and October 17, 1990.chanrobles virtuallaw libraryred
[5]
Original Records, pp. 212-213.chanrobles virtuallaw libraryred
[6]
Id., p. 268.
[7]
Id., p. 271.chanrobles virtuallaw libraryred
[8]
Id., pp. 298-299.chanrobles virtuallaw libraryred
[9]
Rollo, p. 7. chanrobles virtuallaw libraryred
[10]
Villanueva vs. People, 330 SCRA 695, 703 (2000), citing Molina vs.
People,
259 SCRA 138, 157 (1996).
[11]
280 SCRA 696 (1997).chanrobles virtuallaw libraryred
[12]
Id., pp. 706-707.
[13]
RTC Decision dated June 6, 1995, p. 12; Original Records, p. 296.
[14]
Annex 'J' to the Motion for New Trial; Original Records, p. 246.
[15]
Annex 'L' to the Motion for New Trial; Original Records, p. 251.
[16]
People vs. Limon, 306 SCRA 367, 376 (1999).chanrobles virtuallaw libraryred
[17]
295 SCRA 334 (1998).
[18]
Id., p. 354; citations omitted.chanrobles virtuallaw libraryred
[19]
Court of Appeals Decision, p. 19; Rollo, p. 31.
[20]
327 SCRA 167 (2000).
[21]
Id., p. 178, citing Sec. 8, Rule 112 of the Rules on Criminal
Procedure,
supra, and People vs. dela Iglesia, 241 SCRA 718 (1995).
[22]
See Original Records, pp. 161-165.chanrobles virtuallaw libraryred
[23]
Rollo, pp. 28-29; Original Records, p. 216.chanrobles virtuallaw libraryred
[24]
People vs. Bergonio, Jr., 340 SCRA 269, 282 (2000); People vs. Villar,
322 SCRA 393, 401 (2000); People vs. Dando, 325 SCRA 406, 424 (2000).
[25]
People vs. Quillosa, 325 SCRA 747, 754 (2000); People vs. Mercado, 346
SCRA 256, 280 (2000).chanrobles virtuallaw libraryred
[26]
TSN dated March 8, 1989, pp. 3-7.chanrobles virtuallaw libraryred
[27]
People vs. Cantuba, G.R. No. 126022, March 12, 2002.chanrobles virtuallaw libraryred
[28]
Id., citing People v. Daroy, 336 SCRA 24, 37 (2000).
[29]
People vs. Mercado, supra at 287.
[30]
TSN dated August 15, 1990, p. 14; See also TSN dated September 21,
1990,
p. 1.
[31]
TSN dated June 26, 1989, pp. 4-5.
[32]
Id., p. 8.chanrobles virtuallaw libraryred
[33]
People vs. Alba, G.R. No. 130523, January 29, 2002; People vs. Suela,
G.R.
Nos. 133570-71, January 15, 2002; People vs. Moreno, G.R. No. 140033,
January
25, 2002.
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