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FIRST DIVISION

G.R. No. 109144 August 19, 1994

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MORENO L. TUMIMPAD, Accused-Appellant.

The Solicitor General for plaintiff-appellee.chanrobles virtual law library

Miguel M. Lingating for accused-appellant.

KAPUNAN, J.:

Accused-appellant Constable Moreno L. Tumimpad and co-accused Constable Ruel C. Prieto were charged with the crime of rape committed against a 15-year old Mongoloid child in a complaint dated on May 24, 1991, signed by her mother, Mrs. Pastora L. Salcedo, which reads:

That during the period between the last week of March 1989 and the first week of April 1989, in Barangay Lower Lamac, Oroquieta City, Philippines, and within the jurisdiction of this Honorable Court, the said accused did then and there, wilfully, unlawfully and feloniously, have (sic) carnal knowledge with Sandra Salcedo, complainant's daughter, a woman who is a mongoloid and so weak of mind and in intellect as to be capable of giving rational and legal consent. ¹chanrobles virtual law library

Upon arraignment, accused-appellant pleaded not guilty to the crime charged and due trial ensued.chanroblesvirtualawlibrarychanrobles virtual law library

The facts as established by evidence are as follows:chanrobles virtual law library

Sandra Salcedo at the time of the incident was a 15-year old Mongoloid and daughter of Lt. Col. Teofisto Salcedo and Pastora Salcedo. She had a mind of a five-year old child, who still needed to be fed and dressed up. Her vocabulary was limited and most of the time she expressed herself by motions.chanroblesvirtualawlibrarychanrobles virtual law library

Col. Teofisto Salcedo was then Provincial Commander of Misamis Occidental. Four security men were assigned to him, two of whom were accused Constable Ruel Prieto and accused-appellant Moreno Tumimpad.chanroblesvirtualawlibrarychanrobles virtual law library

The Salcedo family, composed of Col. Salcedo, his wife Pastora, his son Alexander and wife and daughter Sandra, lived in a two-storey officers' quarters inside Camp Lucas Naranjo, Provincial Headquarters, in Oroquieta City. The upper storey of the house was occupied by Col. Salcedo, his wife and Sandra while the lower storey had two (2) rooms, one of which was occupied by the four security men and the other by Alexander Salcedo and his wife.chanroblesvirtualawlibrarychanrobles virtual law library

It was on August 7, 1989, when Sandra complained of constipation. Mrs. Salcedo then brought her to a doctor in Oroquieta City for a checkup. Medication was given to Sandra but her condition did not improve. Sandra became irritable and moody. She felt sick and unhappy.chanroblesvirtualawlibrarychanrobles virtual law library

The following day, August 8, 1989, Sandra saw Moreno Tumimpad coming out from the kitchen and told her mother, "Mama, patayin mo 'yan, bastos." ²chanrobles virtual law library

Mrs. Pastora Salcedo, worried of her daughter's condition, brought her to Regina Hospital. Sandra was able to relieve herself the following day but still remained moody and irritable. She refused to take a bath in spite of scoldings from her mother. She did not want to eat and whenever she did, she would vomit.chanroblesvirtualawlibrarychanrobles virtual law library

Sandra was brought to a doctor in Oroquieta City for a second checkup. Dr. Conol, the examining physician, ordered a urinalysis. Jose C. Lim, a Medical Technologist, conducted the urinalysis. The result revealed that Sandra was pregnant. ³Mrs. Pastora Salcedo could not believe that her daughter was pregnant and so she brought Sandra to Madonna and Child Hospital in Cagayan de Oro City. Dr. Kho, and OB-GYNE Specialist, examined Sandra and subjected her to a pelvic ultra-sound examination. The results were positive. The fetus' gestational age was equivalent to 17.1 weeks. ⁴Another ultra-sound examination at the United Doctors Medical Center (UDMC) at Quezon City on September 11, 1989 confirmed that she was indeed pregnant. ⁵chanrobles virtual law library

On January 11, 1990, Sandra gave birth to a baby boy who was named Jacob Salcedo. Hence, the filing of the complaint ⁶by Mrs. Pastora Salcedo.chanroblesvirtualawlibrarychanrobles virtual law library

During the investigation conducted by the CIS, about thirty (30) pictures of different persons were laid on the table and Sandra was asked to pick up the pictures of her assailants. Sandra singled out the pictures of Moreno Tumimpad and Ruel Prieto. ⁷Later, Sandra was brought out of the investigation room to a police line-up of ten people, including Moreno Tumimpad and Ruel Prieto. She was again asked to point to her assailants. Without hesitation, Sandra fingered Moreno Tumimpad and Ruel Prieto. ⁸chanrobles virtual law library

Mrs. Pastora Salcedo testified that she requested her two daughters-in-law, Joy Salcedo and Celsa Salcedo, to ask Sandra the identity of the persons who sexually molested her. ⁹chanrobles virtual law library

Joy confirmed in her testimony that she asked Sandra who sexually molested her. Sandra revealed that Moreno Tumimpad and Ruel Prieto were the ones who raped her. Sandra demonstrated how she was raped. First, her thighs were touched, then she was hugged and her panty was taken off. A push and pull movement followed. ¹⁰Celsa testified that she was present when the victim demonstrated how she was sexually abused by the two accused, including the way her nipples were touched saying "dito hawak," and holding her breasts to emphasize. She likewise went through the motion of removing her panty, uttering at the same time "hubad panty."chanrobles virtual law library

Sandra identified in open court accused Moreno Tumimpad and Ruel Prieto as the persons who raped her and said she wished them dead, as they did something bad to her. ¹¹She once again demonstrated how she was sexually abused. She held her two thighs with her two hands next to her sexual organ saying, "panty" and then placed her hand on her breast and gestured as if she were sucking. She also touched her private organ and made a push and pull movement. ¹²chanrobles virtual law library

During the trial, the accused moved that a blood test, both "Major Blood Grouping Test" and "Pheno Blood Typing" be conducted on the offended party, her child Jacob and the two accused. The result of the test conducted by the Makati Medical Center showed that Jacob Salcedo has a type "O" blood, Sandra Salcedo type "B", accused Ruel Prieto type "A" and accused-appellant type "O".chanroblesvirtualawlibrarychanrobles virtual law library

Both accused anchored their defense on mere denial contending that it was impossible for them to have committed the crime of rape.chanroblesvirtualawlibrarychanrobles virtual law library

After trial on the merits, the trial court convicted Moreno Tumimpad of the crime charged but acquitted the other accused, Ruel Prieto, on reasonable doubt, stating that he "has a different type of blood with (sic) the child Jacob Salcedo as his type of blood is "A", while that of child Jacob Salcedo is
type "O".chanroblesvirtualawlibrarychanrobles virtual law library

The dispositive portion of the decision reads:

WHEREFORE, premises considered, the Court finds the accused, PO1 Moreno Tumimpad, guilty beyond reasonable doubt of the crime of Rape, as charged in the information, and pursuant to the provisions of Article 335 of the Revised Penal Code, as amended, there being no aggravating nor mitigating circumstance attendant in the commission of the crime, said accused Moreno Tumimpad is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; to indemnify the offended girl, Sandra Salcedo, in the amount of P20,000.00; and to suffer the other accessory penalties provided for by laws; and to pay the costs of the proceedings.chanroblesvirtualawlibrarychanrobles virtual law library

On reasonable doubt, accused Ruel Prieto is hereby declared ACQUITTED from the charge.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED. ¹³chanrobles virtual law library

Accused-appellant assigns the following as errors of the lower court:

1. The lower court erred in not appreciating the impossibility of committing the offense charged without detection.chanroblesvirtualawlibrarychanrobles virtual law library

2. The lower court erred in convicting the accused-appellant base on major blood grouping test known as ABO and RHS test, not a paternal test known as chromosomes or HLA test.

The appeal is devoid of merit.chanroblesvirtualawlibrarychanrobles virtual law library

Accused-appellant argues that it was impossible for him to have committed the crime of rape because most of the time he and his co-accused Ruel Prieto were together with Col. Salcedo on inspection tours while the victim was always in the company of her mother. He further contends that it was likewise impossible for Sandra, if she had really been molested, not to have shouted out of pain, she being a virgin. As if adding insult to injury, accused-appellant suggests that it was Sandra's brother, Cristopher Salcedo, allegedly a drug user, who could have raped her.chanroblesvirtualawlibrarychanrobles virtual law library

We are not convinced.chanroblesvirtualawlibrarychanrobles virtual law library

It is true that the accused usually went with Col. Salcedo during inspection tours but sometimes they were left behind and would play pingpong or card games with Sandra at the ground floor of the house. While Sandra was always with her mother, there were times when she was left alone in the house with the accused. ¹⁴chanrobles virtual law library

Mrs. Pastora Salcedo testified:

Q How many security men remain if you can recall when your husband reported for work?chanrobles virtual law library

A Two (2).chanroblesvirtualawlibrarychanrobles virtual law library

Q Who were these security men who remained?chanrobles virtual law library

A Moreno Tumimpad and Ruel Prieto.chanroblesvirtualawlibrarychanrobles virtual law library

Q How about the 2 other security men Tanggan and Colaljo?chanrobles virtual law library

A My husband sent (sic) them for an errand and sometime they used to go with my husband to the office.chanroblesvirtualawlibrarychanrobles virtual law library

Q Every time when your husband is out what they do while they were (sic) at the headquarter?chanrobles virtual law library

A I saw them sleeping and sometime they were playing at the porch with my daughter Sandra playing pingpong and sometime they were listening music.chanroblesvirtualawlibrarychanrobles virtual law library

Q Where did they play usually take place? chanrobles virtual law library

A Living room. ¹⁵

xxx xxx xxx

Q By the say, (sic) Mrs. Salcedo, you said a while ago when you were at the headquarters you were able to do your choirs, (sic) doing laundry jobs in the second storey of your house. Do you know where is your daughter Sandra at that time?chanrobles virtual law library

A Yes, she spent her time at the second floor.chanroblesvirtualawlibrarychanrobles virtual law library

Q What part of the ground floor she used (sic) to stay?chanrobles virtual law library

A Because she is found (sic) of music she stay in the living room.chanroblesvirtualawlibrarychanrobles virtual law library

Q Did she has (sic) any playmates?chanrobles virtual law library

A Moreno and Prieto.chanroblesvirtualawlibrarychanrobles virtual law library

Q Have you seen actually the 2 accused playing with your daughter?chanrobles virtual law library

A Yes, playing pingpong and playing cards. ¹⁶

The victim more than once positively identified accused-appellant Moreno Tumimpad as one of the perpetrators of the crime. First, during the investigation conducted by the CIS, Sandra singled out accused-appellant and his co-accused from among the thirty (30) pictures of different persons shown to her. Second, at the police lineup of several persons, likewise conducted by the CIS, Sandra once again unerringly pointed accused-appellant and his co-accused as the ones who raped her. Third, in open court, Sandra without hesitation, pointed to accused- appellant as the perpetrator of the crime.chanroblesvirtualawlibrarychanrobles virtual law library

The following is the victim's own testimony:

PROS. RAMOS:chanrobles virtual law library

Will you please demonstrate before this Honorable Court what Moreno and Ruel did to you?

RECORD:chanrobles virtual law library

The witness when she stood up held both her thighs (sic) with her two hand (sic) down to her sexual organ saying a word "panty" and she placed her hand on her breast and did something as if sucking and held her private part (sic) and did a push and pull movement and she cried.chanroblesvirtualawlibrarychanrobles virtual law library

Q When you said that there was a push and pull movement of the body and when this was being done did you feel pain?

A Yes pain.chanrobles virtual law library

Q What part of your body is painful?

RECORD:

The witness touching her private parts.chanrobles virtual law library

Q Did you also see blood on your sexual organ?

A Yes.chanrobles virtual law library

Q Where did you see these blood?

RECORD:

The witness touching her private parts.chanroblesvirtualawlibrarychanrobles virtual law library

Q When this push and pull movement was being made, did you see a man's organ?

A Yes sir.chanrobles virtual law library

Q Where did you see this male organ?

A Witness touching her private part.chanrobles virtual law library

Q Who did this to you, who removed your panty?

A Moreno and Ruel.chanrobles virtual law library

Q Did you see Moreno taking off his pants?

A Yes.chanrobles virtual law library

Q Did you see his sex organ?

A The witness touching her private parts.chanrobles virtual law library

Q How about this Ruel, did you see if he taken (sic) off his pants?

A Yes.chanrobles virtual law library

Q Did you see his sex organ?

A Yes, witness again touching her private part.chanrobles virtual law library

Q Both of them?

A Yes.chanrobles virtual law library

Q Where did Moreno and Ruel removed (sic) your panty?

A Moreno.chanrobles virtual law library

Q In your house?

A Yes.chanroblesvirtualawlibrarychanrobles virtual law library

Q What part of your house did Moreno and Ruel remove your panty?

A Downstairs Moreno and Ruel remove panty.chanroblesvirtualawlibrarychanrobles virtual law library

Q What part of the ground floor, was it outside or inside the room?

A In the room.chanroblesvirtualawlibrarychanrobles virtual law library

Q When (sic) Moreno and Ruel are inside the courtroom now, can you point to them?

A Yes.chanrobles virtual law library

Q Will you please point to them?

PROS. RAMOS:

May we request the accused to stand up your honor?

RECORD:chanrobles virtual law library

Both accused stood up from where they were sitting inside the courtroom.chanrobles virtual law library

PROS. RAMOS:chanrobles virtual law library

Who is that person (prosecutor Ramos point to accused Moreno Tumimpad)?

A Moreno.chanrobles virtual law library

RECORD:chanrobles virtual law library

The witness pointing to a certain person who is standing and when asked what is his name, he readily answered that he is Moreno Tumimpad.chanrobles virtual law library

PROS. RAMOS:chanrobles virtual law library

Who is that person standing besides Moreno?

A Joel.chanrobles virtual law library

PROS. RAMOS:chanrobles virtual law library

If your honor please, she could not pronounced (sic) well the word Ruel but the way she called this name is Joel which refers to the same person who is one of the accused in this case. ¹⁷

Melinda Joy Salcedo, the victim's sister-in-law, testified that Sandra demonstrated to her how she was ravished by the two accused, thus:

Q Now, will you please tell us what did Sandra Salcedo told (sic) you as to how she was abused?chanrobles virtual law library

A By what she had stated there were also actions that she made.chanroblesvirtualawlibrarychanrobles virtual law library

Q Will you please demonstrate to this Honorable Court how did Sandra Salcedo was abused as narrated or demonstrated to you by Sandra Salcedo?chanrobles virtual law library

A According to her she was held in her thigh and then she was hugged and then the panty was taken off and making a push and pull movement (witness demonstration by holding her thigh)?chanrobles virtual law library

Q Now, after Sandra Salcedo told you and demonstrated to you how she was abused. What else did Sandra Salcedo tell you if she had told you any more matter?chanrobles virtual law library

A She did not say anything more.chanroblesvirtualawlibrarychanrobles virtual law library

Q Now, when Sandra Salcedo refused to talk or say anything else. What happened next?chanrobles virtual law library

A Then it was Celsa who asked her.chanroblesvirtualawlibrarychanrobles virtual law library

Q Where were you when Celsa asked Sandra Salcedo?chanrobles virtual law library

A I was just beside her.chanroblesvirtualawlibrarychanrobles virtual law library

Q You said that after Sandra Salcedo refused to talk, Celsa did the questioning, did you hear the question being asked by Celsa to Sandra Salcedo?chanrobles virtual law library

A Yes.chanroblesvirtualawlibrarychanrobles virtual law library

Q And what was the question being asked by Celsa to Sandra Salcedo?chanrobles virtual law library

A Celsa asked Sandra Salcedo as to what other things that these two had done to her?chanrobles virtual law library

Q And what if any did Sandra Salcedo tell you as to what was done to her?chanrobles virtual law library

A By way of talking and action.chanroblesvirtualawlibrarychanrobles virtual law library

Q And what was the answer of Sandra Salcedo?chanrobles virtual law library

A He (sic) answered it by action and talking.chanroblesvirtualawlibrarychanrobles virtual law library

Q And what was the answer of Sandra Salcedo as related by her to Celsa through words and action?

RECORD:

The witness demonstrated by holding his (sic) nipple going down to her thigh.chanroblesvirtualawlibrarychanrobles virtual law library

Q What else had transpired next?chanrobles virtual law library

A No more.chanroblesvirtualawlibrarychanrobles virtual law library

Q Now, whenever Sandra Salcedo mentioned the names of accused Moreno Tumimpad and Ruel Prieto, have you observed whose names was usually mentioned first by Sandra Salcedo?chanrobles virtual law library

A She mentioned first the name of Moreno Tumimpad and Ruel.chanroblesvirtualawlibrarychanrobles virtual law library

Q And what happened after that?chanrobles virtual law library

A I informed my mother-in-law of what Sandra Salcedo had told us.chanroblesvirtualawlibrarychanrobles virtual law library

Q When did you tell your mother-in- law about what Sandra Salcedo told you and Celsa?chanrobles virtual law library

A That very evening sir. ¹⁸

Accused-appellant simplistically and quite erroneously argues that his conviction was based on the medical finding that he and the victim have the same blood type "O".chanroblesvirtualawlibrarychanrobles virtual law library

Accused-appellants' culpability was established mainly by testimonial evidence given by the victim herself and her relatives. The blood test was adduced as evidence only to show that the alleged father or any one of many others of the same blood type may have been the father of the child. As held by this Court in Janice Marie Jao vs. Court of Appeals ¹⁹:

Paternity - Science has demonstrated that by the analysis of blood samples of the mother, the child, and the alleged father, it can be established conclusively that the man is not the father of a particular child. But group blood testing cannot show only a possibility that he is. Statutes in many states, and courts in others, have recognized the value and the limitations of such tests. Some of the decisions have recognized the conclusive presumption of non-paternity where the results of the test, made in the prescribed manner, show the impossibility of the alleged paternity. This is one of the few cases in which the judgment of the Court may scientifically be completely accurate, and intolerable results avoided, such as have occurred where the finding is allowed to turn on oral testimony conflicting with the results of the test. The findings of such blood tests are not admissible to prove the fact of paternity as they show only a possibility that the alleged father or any one of many others with the same blood type may have been the father of the child.

WHEREFORE, accused-appellant's guilt of the crime of rape having been proven beyond reasonable doubt, the decision appealed from is hereby AFFIRMED.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

Davide, Jr., Bellosillo and Quiason, JJ., concur.chanroblesvirtualawlibrarychanrobles virtual law library

Cruz, J., is on leave.