G.R. No. L-35915. October 30, 1981
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MAXIMO PIZARRAS Y ASOMBRADO, ACCUSED-APPELLANT.
MELENCIO-HERRERA, J.:
This is an automatic
review of the death sentence imposed on accused-appellant Maximo
Pizarras y Asombrado by the
Circuit Criminal Court, Seventh Judicial District, Pasig,
Rizal, in Criminal Case No. 1048 entitled
“People of the Philippines vs. Maximo Pizarras y Asombrado, Virgino Acojido y Granada (both
in jail), Romeo Quijano y Gustilo
alias Romy, Edmundo Obispo
y Garcia (both at large)” for Robbery in Band with Multiple Rape.
The Information filed
against them on May 18, 1972 alleged:
“That on or about the 17th day of May, 1972, in Pasay City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused Maximo Pizarras y Asombrado, Virgilio Acojido y Granada, Romeo
Quijano y Gustilo alias Romy and Edmundo Obispo y Garcia, all four of them armed with
bladed weapons and sharp-pointed instruments, conspiring and confederating
together and mutually helping one another, by means of force, threats and
intimidation, with intent of gain and against the will and consent of the
owner, Asuncion Sigua, did then and there wilfully, unlawfully and feloniously take, rob and carry
away from said Asuncion Sigua the following articles,
to wit:
One (1) men’s wrist watch
—————————————–P120.00
Cash money
————————————————————-160.00
One (1) lady’s gold necklace
—————————————-
30.00
P310.00
which articles have a total value of
P310.00 to the damage and prejudice of the owner thereof in the aforesaid
amount of P310.00; the said accused, with the exception of Virgilio
Acojido y Granada, in accordance with and pursuant to
their conspiracy and in order to carry out their avowed purpose, with lewd
design and by means of the same force, threats and intimidation did then and
there wilfully, unlawfully and feloniously take
turns, one after the other and in the presence of one another, in lying with
and having carnal knowledge of the said Asuncion Sigua
against her will and consent.
That in the commission of the
offense, the following aggravating circumstance was present:
(1) Nocturnity, a
circumstance deliberately sought to insure the commission thereof.
Contrary to law.”
On July 10,
1972, the trial Court rendered judgment as
follows;
“WHEREFORE, finding the accused, MAXIMO
PIZARRAS Y ASOMBRADO and VIRGILIO ACOJIDO Y GRANADA,
GUILTY beyond reasonable doubt, of the crime of Robbery in Band with Multiple
Rape, as defined under Article 294, paragraph 2 of the Revised Penal Code, in
relation to Republic Act No. 4111, as charged in the Information, the Court
hereby sentences each one of them to suffer the penalty of DEATH; to indemnify
the offended party, Mrs. Asuncion Sigua y Marlen the amount of P310.00; to pay moral damages in the
amount of P10,000.00 and exemplary damages in the amount of P10,000.00; and to
pay their proportionate share of the costs.”
This automatic review pertains to PIZARRAS
alone as the appeal of Virgilio Acojido,
who was also sentenced to death in the same decision, was dismissed on July 22, 1976 in view of his
demise. The records also show that Romeo
Quijano was never apprehended and has remained at
large. Edmundo
Obispo was tried separately as he was arrested later than PIZARRAS,
but sentence was suspended due to his minority and because of his drug
addiction, he was ordered committed to DARE
Foundation for rehabilitation.
However, said Obispo escaped from DARE Foundation and has since evaded
pronouncement of judgment.
The defense does not dispute that ASUNCION Sigua
was a victim of the crime of Robbery with Rape.
It maintains, however, that the accused did not take part in the
commission thereof, and that the testimonies of prosecution witnesses,
particularly ASUNCION and the
passerby Ernesto Villanueva, relied upon by the trial Court, are full of
inconsistencies and improbabilities that they should not have been given full
faith and credence.
We shall examine those testimonies as well as those of the
defense witnesses.
ASUNCION SIGUA-MARLEN, the offended party, 37, married, mother of
eight (8) children, market vendor selling fruits, and resident of 788 Cabrera
St., Pasay City, narrated the incident thus:
At around 3:00 o’clock in the early morning of May 17, 1972, she
was walking along Cabrera St., Pasay City, on her way
to the public market at Libertad St., when she met
four men (two of whom she
recognized in a confrontation later at
the Pasay City Police Department as PIZARRAS and Acojido). From a distance of about 2 meters, the men
poked sharp weapons at her (an icepick and a knife) blocking her way “ako ay kinupkop at hinarang“. Two
of the men cupped her mouth with their
hands, one asking “Where is your money?” and she pointed to her
basket. She was then and there divested
of her money in the amount of P160.00.
(in
P20.00 denominations) and jewelry consisting of a Seiko watch worth P120.00 and
necklace worth P30.00. Thereafter, she
was brought to a dark spot beside a sand and gravel truck where they removed
her panty and each of them fingered her private part. She was then laid against the
truck and in a semi-reclining position she was raped by the first man, who was
wearing blue, who told her “Do not shout:
otherwise I’ll kill you.” After the first assault, she was dragged
under the truck where she was raped successively by the second and third
man. She identified the third man as PIZARRAS as he was the one whose left arm encircled her
neck and whose right hand held a knife against her while being raped by the
first two men. While she was being
ravished by the three men, Acojido was holding her
legs apart and was about to take his turn in assaulting her when a person, (who
turned out to be Ernesto Villanueva) passed by. The passerby helped in taking her to the Pasay City Police Department. ASUNCION further stated that she did not fight off
the four attackers as they were
pointing sharp weapons at her but she pleaded to them crying “Please do
not do this to me; I’ve many children and I’m already old”. She declared that the houses in the vicinity of the incident were closed but lighted. She admitted that it was the first time that
she met the four men but that she recognized them because she kept on staring at them.[1]
On cross-examination, ASUNCION identified a dagger in a sheath,
shown to her (Exhibit “B”), as the weapon poked at her by PIZARRAS and
describing it as “gilet-gilet“.[2]
ERNESTO VILLANUEVA, 39,
married, foreman in a
construction firm and resident of 164 Dolores, Pasay City, declared that at the time of the incident, he and Dan Saguil were riding in a car on
their way home from a party when
they passed by Cabrera St. where
he saw people milling around. When
he alighted from the car to
inquire, somebody told him that a woman
had been raped and that they were holding a male person (who turned
out to be Acojido).
He then saw the victim, ASUNCION, crawling from under the truck, assisted by someone, crying, and with
hair disarranged. ASUNCION sought help from him and he brought her and Acojido to
police headquarters. Thereat, the witness observed that the back
of the head of ASUNCION and her dress were dirty.
Ernesto Villanueva further declared that the place of the incident was
well lighted as there was a Meralco post.[3]
Patrolman OSCAR de la
CRUZ, 30, single, resident of
958 Quezon Boulevard, Quezon
City, assigned to the Secret Service Division of the Pasay
City Police Department, testified that at about 3:00 o’clock in the morning of
May 17, 1972, ASUNCION, the accused Acojido, and a
civic minded citizen, arrived at police headquarters. In a confrontation between ASUNCION and Acojido, the
former pointed to the latter saying “Iyan ang isang kasama
sa nangholdup
at gumahasa sa akin”, to which accusation Acojido
did not comment. After ASUNCION informed the police officers that Acojido was not alone, and upon investigation, Acojido revealed the names of his companions. Thereafter, Patrolmen de la
Cruz, Chua, and others, accompanied by Acojido,
apprehended PIZARRAS at Vergel St. From there, Pat. de la Cruz
proceeded to the scene of the crime where he recovered the knife with a
scabbard (Exhibit “B”) under a tire of the truck. Pat. de la Cruz then
looked for the other two accused, Quijano and Obispo,
before returning to police headquarters, but without success. On his return, Pat. de la Cruz took the voluntary statement of Acojido,[4] who also admitted his culpability. While Pat. de la
Cruz was taking Acojido’s statement, Patrolmen Leyva and Chua took the statements of ASUNCION and PIZARRAS,
respectively. Pat, de la Cruz also identified
the Booking Sheets and Police Reports signed by Acojido
and PIZARRAS.[5] Assistant City Fiscal Gebana,
before whom Acojido and PIZARRAS
were taken, recommended no bail. Pat. de la Cruz noted that when Acojido
was taken to headquarters he smelled of liquor and had a slight injury on the
face allegedly caused by fist blows by civic-minded citizens. At the Fiscal’s
Office, Pat. de la Cruz also noted that PIZARRAS had a plaster on his upper brow.[6]
Patrolman ERNESTO CHUA,
32, single and resident of 242-C, P. Villanueva, Pasay
City, testified that at the time of the incident, he was assigned at the Theft
and Robbery Section, Investigation Division, Pasay
City police Department, his tour of duty being from 8:00 p.m. of May 16, 1972
to 8:00 a.m. of May 17, 1972. He was the
officer who apprehended PIZARRAS at the latter’s
house at Vergel St., Pasay City.
After apprehending PIZARRAS the patrolman,
accompanied by said accused and Acojido went to Apelo Cruz St. to apprehend Romeo Quijano
but the latter was not around. From there, Pat. Chua took PIZARRAS
and Acojido to the Pasay City
Police Department for investigation.
Pat. Chua took the voluntary statement of PIZARRAS[7], who admitted his participation in the
commission of the crime charged. Pat.
Chua effected a confrontation between ASUNCION and PIZARRAS and
the former unerringly pointed to the latter saying “iyan
ang pangatlong gumahasa sa
akin”, after which identification
ASUNCION fainted.
Thereafter, Pat. Chua took PIZARRAS to the Fiscal’s Office at Pasay City.[8]
On
cross-examination, Pat.
Chua disclosed that when he took PIZARRAS to police
headquarters he had a bandage on his head which had stains of fresh
blood. He further declared that PIZARRAS‘ mother was present during the investigation and even gave her son
coffee and sandwiches. He overheard the
mother muttering over and over again “iyan ang bunga ng
barkada mo kay Romy“, referring to Romy
Quijano, a co-accused.[9]
Dr. RODOLFO SURATOS, 27, married, Medico-Legal Officer of the NBI, resident of 22-B Bulacan
St., Quezon City, testified that ASUNCION was brought
to him for examination on May 17, 1972
at around 11:30 a.m. in a
stretcher with intravenous fluid, weak, apprehensive and in “shock-like
condition” but not suffering from psycho-neurotic attack. He identified Living Case Report No.
MG-72-363[10] as the one he prepared after physical and
genital examination of ASUNCION, which showed:
“Abrasion
with reddish scab formation; knee, anterior aspect, right 4.0 x 3.0 cms. and left, 5.0 x 2.0. cms.
(linear); foot, dorsal aspect, left, near medial malleolar
region, 2.0 x 1.0 cms; big toe, left, 1.0 x 1.0 cms and right, 1.0 x 1.0″
x x x x x x
“Pubic
hairs, fully grown, moderate in number. Labia majora
and minora, both gaping. Fourchette, lax. Vestibule, pinkish. Hymen, reduced to tags (hymenal caruncles). Hymenal orifice, admits tube 3.1 cms. in diameter with moderate
resistance. Vaginal walls, lax, rugosities, obliterated.”
Dr. Suratos
explained that the genital examination indicated that ASUNCION had multiple sexual
intercourse and that she was positive for human sperm indicating recent
sexual intercourse with a man or a number of men. Dr. Suratos further
opined that force was applied on the victim due to the presence of “gasgas” on her knees.[11]
On the other hand, the
evidence for the defense consisted of denials and alibi. Testimonial evidence was presented by PIZARRAS, Virgilio Acojido, Zosima Pizarras, Patrolmen Ernesto Chua and Oscar de la Cruz, the
latter two as hostile witnesses.
MAXIMO PIZARRAS, 25,
single, jobless and resident of 210 Vergel St., Pasay City, alleged that at the time of the
incident, he and Virgilio Acojido
were eating pancit, drinking beer, telling stories
and listening to juke box music at the Pacita
Restaurant. They were in said restaurant
since 11:00 o’clock
in the evening of May 16, 1972. At
around 3:00 o’clock
in the morning of May 17, 1972, they decided to go home and walked to Cabrera St. where they met two acquaintances Romy and Bandying (co-accused Romeo Quijano
and Edmundo Obispo).
Romy was an old acquaintance, having once been
a neighbor, but he had known Bondying for
only one day. PIZARRAS did not mind the latter two as he was sleepy and took a jeep for home
at Zamora. At
around 6:00 o’clock
in the morning of May 17, 1972, he was apprehended by Pat. Ernesto Chua still sleeping under a mosquito net with his wife
(common-law) and his son. He was
about to change into long pants as he was wearing shorts but was not allowed by
Pat. Chua who, instead, kicked him. He
was brought to police
headquarters where he was maltreated as evidenced by a 1 1/2 inch scar above the eyebrow.
After being maltreated, he saw a statement being prepared. He was told to read and sign the statement
but was unable to do so as blood was oozing from his forehead. However, when he
could not endure the pain any longer he admitted the charge. His hand was trembling when he signed the
statement (Exhibit “A”). He
denied having carried any sharp weapon but the police insisted that he admit
ownership of the knife (Exhibit “B”).
He asserted that when he was brought to the scene of the crime, a man
took a knife from the cabinet of the truck and handed it to the police.
On cross-examination, PIZARRAS admitted that Pacita
Restaurant was near Cabrera St. and that he and Acojido met Romy and Bondying a few
meters away from the scene of the crime.
When shown his signature on
his statement (Exhibit
“A”) PIZARRAS admitted that the strokes
were straight because his hands were “not so trembling”. In the confrontation between himself and
ASUNCION, the latter allegedly did
not say anything. Lastly, PIZARRAS
emphasized that his purported statement was prepared before he was maltreated
by two police officers. However, he did
not report their acts of violence for fear that he would be shot or that they
may take vengeance.[12]
ZOSIMA PIZARRAS, mother
of PIZARRAS, 52, jobless and resident of 210. Vergel St., Pasay City, was presented
as witness for co-accused Acojido. She testified that her son was at their house
the whole day of May 16, 1972. In
the evening of said day, at around 7:00, she saw her son lying down in their “silong” but
did not know whether he had left the house between 11:00 P.M. and 3:00 A.M. of May 17, 1972. Then at around 6:00 A.M. of May 17, 1972, the police, accompanied by Acojido, arrived and told her that her son had committed a
crime. When
asked for her son’s whereabouts
she said “I do not know.” Despite her protestations, the police
entered the “silong“, pulled her son, without pants and slippers, and brought him to police
headquarters. Zosima
then went to look for Rene Gementina (allegedly a
P.C. investigator) to seek his help
but the latter was not
around. She then proceeded to the police
headquarters where her son was investigated and maltreated. She saw her son hit on the mouth once. Zosima admitted
knowing Acojido as he used to visit her son at their
house where they played the guitar, but denied knowing accused Obispo and Romeo
Quijano.
However, when shown the knife encased in a cardboard scabbard, she
asserted that said knife did not belong to them but to her son’s friend Romy.
She specified that she saw said knife tucked under the waistline of Romy when he, Acojido and Obispo
and others were at their house.[13]
Patrolman ERNESTO CHUA
was presented by the defense as a hostile witness. He declared that he was among the
investigators who went to the scene of the crime but was not around when Pat. de la Cruz recovered the knife. At headquarters, Pat.
Chua did not bother to test said knife for fingerprints as it had a rough
surface and because PIZARRAS admitted that it was the
knife used in the commission of the crime.
PIZARRAS admitted that said knife was given to
him by accused Romy Quijano. When he was at the scene of
the crime, Pat. Chua neither bothered to look for fingerprints around the
truck because it was muddy and dirty.
On
cross-examination, Pat.
Chua denied that PIZARRAS was maltreated when he was
investigated. Said investigation was
conducted in the presence of about 30-40 people including ASUNCION’s
relatives, onlookers, Zosima Pizarras
and some members of mass media (Pilipino Star).
Pat. Chua stated that he investigated PIZARRAS
as if he were a brother as the latter sought his help “because if I will
be left alone, I will be maltreated by other persons outside the headquarters”. Pat. Chua declared that PIZARRAS
sustained injuries when he left the scene of the crime. Pat. Chua also denied PIZARRAS’s
charge that he just prepared the latter’s statement without the latter’s
knowledge when, in fact, he had asked the latter if he had a lawyer and PIZARRAS informed him that his father was in Bohol. Pat.
Chua asserted that PIZARRAS‘ statement was
voluntarily given by him. With respect to the accused Acojido, Pat.
Chua averred that he noted a black-eye when Acojido
was investigated by Pat. de la Cruz.[14]
In his
testimony as hostile witness for the defense, Pat. Oscar de la Cruz affirmed the fact that he
recovered the knife at the scene of the crime but did not test the same for
fingerprints for lack of facilities. He,
however, looked around the sides of truck but could not find any fingerprints
because the truck was dirty. Pat. de la Cruz denied ever maltreating Acojido
stating that when he took the statement of said accused he had
already a slight injury on his face.
Pat. de la Cruz averred that he did not find
any money in Acojido’s possession.[15]
The accused VIRGILIO ACOJIDO, 20, single,
helper of his father in carpentry, and resident of 2192 Tramo St., Pasay City, declared that at around 3:00 o’clock in the morning of May 17,
1972, he was with PIZARRAS at the Pacita Restaurant
eating and narrating stories. Between 3:00 and 3:30, PIZARRAS led him
to the corner of the highway and Cabrera St. where they parted ways. Since his house was about 300 meters away
from Pacita Restaurant, Acojido
just walked home passing by Cabrera St. where he met two men whom he did not
recognize but would be able to identify if
he sees them again. Then, a woman
just appeared and the two men took hold of her by the neck and pulled her
towards the truck. He heard the woman
plead “mga anak ko, huwag ninyong
gawin ito, huwag ninyo akong
patayin, marami akong anak“. Acojido wanted to shout but the two men (one tall and the other short) held
him and delivered fist blows on him. He
was taken inside a car where the men continued maltreating him and even removed
his clothes. While inside the car, he
saw the woman crying in the middle of the street. He was then taken to police headquarters and
there the two men took his wallet containing P10.00 for merienda. Acojido confirmed
that he accompanied the police officers to the house of PIZARRAS,
who was his companion at the Pacita Restaurant and
his best friend. However, he denied
knowing the accused Quijano and Obispo. He stated that the place of the incident was lighted. Acojido also
averred that he and PIZARRAS were investigated at the
same time in the same room by different officers; that while he was being
investigated two police officers rained fist blows on him, pulled his neck and
bumped his head against the wall about ten times. PIZARRAS‘ mother
was outside the door of the room which was ajar a little. When he signed the prepared statement, he was
trembling for fear that he would be maltreated again. Acojido further
alleged that when he was brought before the Fiscal before whom he subscribed
his statement the Fiscal merely asked him to raise his right hand and did not
say anything. He did not complain of
maltreatment to the Fiscal because the police officers were there.[16]
After assessing the
evidence, the trial Court gave full credence to the evidence of the
prosecution, stating: “The defense
of denial and alibi interposed by accused Maximo Pizarras and Virgilio Acojido must yield to the positive identification made by
the complainant-victim Asuncion Sigua.”
PIZARRAS now alleges:
“1) That the lower court
erred in giving credence to the testimony of the witnesses for the prosecution
despite its inconsistencies, flaws and improbabilities;
2) That the lower court erred in not giving
credence to the denial and alibi of accused-appellants;
3) That the lower court erred in not acquitting
accused-appellants on the grounds that their guilt were
not proved beyond reasonable doubt;
4) That assuming arguendo
that accused-appellants are guilty of the charge, the lower court erred in
imposing the death penalty to them when it applied Republic Act No. 4111 to
Article 294(2) of the Revised Penal Code;
5) That the lower court erred in finding that the
crime of robbery with multiple rape was committed by a band and in applying
Article 295 to paragraph 2 of Article 294 of the Revised Penal Code.”
The principal issues may
be condensed into two:
1) Whether or
not the trial Court erred in giving full credence to the evidence of the
prosecution and in disregarding the defense of denial and alibi presented by PIZARRAS; and
2) Whether or
not the trial Court erred in convicting the accused of the crime of
Robbery in Band with Multiple Rape as defined in Article 294(2) of the Revised
Penal Code but imposing the penalty as prescribed in Article 335 of the Revised
Penal Code, as amended by RA 4111.
I
The credence given by the
trial Court to the prosecution evidence, particularly, ASUNCION’s
positive identification of PIZARRAS as one of the
four men who robbed and abused her in the early morning of May 17, 1972, has
not been misplaced. In assailing ASUNCION‘s credibility, PIZARRAS
contends 1) that ASUNCION could not have possibly recognized the culprits as the place of
occurrence was dark and 2) that his identification by ASUNCION in the confrontation conducted by the police
authorities was unreliable considering that she was in a state of shock. Said contentions are untenable.
It must be remembered
that the crime charged was not executed in a few seconds. ASUNCION was first divested of her money and jewelry
and then raped by three of the four men.
While it may be true that ASUNCION declared that she was dragged to a dark
place near a parked truck, she averred that the houses in the vicinity of the
place of the incident were lighted.[17] That testimony was corroborated by Ernesto
Villanueva (the passerby from whom ASUNCION sought help and who brought her to
police headquarters), who stated that the place of the incident was lighted as
there was a Meralco post, and even by Acojido, who alleged that he met the two men in a lighted
place.[18]
The
fact that ASUNCION may have been in a state of near-shock although “not quite suffering from a psycho-neurotic
attack”, as opined by Dr. Rodolfo Suratos, does
not diminish her credibility. A close scrutiny of her testimony reveals her unwavering stand that PIZARRAS was one of the four men who robbed and ravished
her. She declared categorically that PIZARRAS was the third man who raped her and that while she
was being abused by the first two men, PIZARRAS‘ left
arm encircled her neck while his right arm was pointing a knife against
her.[19]
In the light of such
positive, categorical, and convincing evidence, PIZARRAS‘
defense of alibi and denial must fail, as held by the trial Court. The legal yardstick is that alibi is
unavailing once the accused is positively identified by one without motive to
charge falsely said accused especially with a grave offense that could bring
death by execution on the culprit.[20] Furthermore, PIZARRAS‘
admission that the Pacita Restaurant is near Cabrera St., the place of the incident, militates
against his defense of alibi.
Well-entrenched is the rule that for alibi to prosper, the evidence must
show that the accused was so far away that he could not have been physically
present at the place of the crime or its immediate vicinity at the time of its
commission.[21]
In sum, we concur with
the trial Court’s finding of moral certainty as to PIZARRAS‘
guilt.
II
As the law now stands,
and as contended by the defense and concurred in by the Solicitor General, the
proper denomination of the offense should be Robbery with Rape and not Robbery
in Band with Multiple Rape as held by the trial Court. The element of “in band” may now
only be appreciated as a generic aggravating circumstance.[22]
Contrary to the defense
contention, “in band” has been sufficiently proven. Although ASUNCION mentioned only two kinds of weapons – an icepick and a knife with “gilet-gilet“, she
positively stated that when she met the four men they were all armed and while
they took turns in abusing her they were aiming their sharp instruments at her.[23]
Thus, the element of “in band”, that is, “whenever more than
three armed malefactors shall have acted together in the commission of an
offense”, has been satisfied.
Nocturnity as an aggravating circumstance, however, has
not been proven. It has not been shown
by the prosecution that it was specially sought by the offender or taken
advantage of to facilitate the commission of the crime or to avoid discovery
and thus minimize the risk of capture.[24]
In imposing the death
penalty, the trial Court applied Article 335 of the Revised Penal Code and not
Article 294(2) of the same Code. Article
294(2), prior to its amendment by Presidential Decree No. 767 which took effect
on August 15, 1975,
reads:
“Article
294. Robbery with violence
against or intimidation of persons
– Penalties. –
1. x x x
2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when
the robbery shall have been accompanied by rape or intentional mutilation, or
if by reason or on occasion of such robbery, any of the physical injuries
penalized in subdivision 1 of article 263 shall have been inflicted.”
(Italics supplied)
While Article 335, as
amended by Republic Act No. 4111, provides:
“Article
335. When and how rape is committed. –
1. x x x
Whenever the crime of rape is committed with the use of deadly
weapon or by two or more persons, the penalty shall be reclusion perpetua to death. (Italics ours)
For Robbery with Rape,
this Court imposed reclusion perpetua, as prescribed by Article 294(2), in People
vs. Olden[25] and People vs. Otto[26].
However, in People vs. Corpin,[27] and People vs. Obtinalia,[28] this Court imposed for the same crime the
graver penalty provided for in Article 335, as amended by RA No. 4111.
In the more recent cases
of People vs. Mabag[29] and People vs. Arias, et als.,[30] the majority of this Court adhered to
the doctrine in the Obtinalia case, which gave the rationale
for the imposition of the graver penalty, as follows:
“x x if a rape alone, when committed
by two or more persons, is penalized with death, it would be highly illogical
and irrational to hold that when such rape is committed with the addition of a robbery,
the offense should only be punishable with life imprisonment. Thus the reclusion perpetua
prescribed by Article 294(2) of the Revised Penal Code, for robbery with rape,
must be understood as limited to cases where there is a single rapist, and that
in those cases where the rape on occasion of the robbery is committed by two or
more persons, the death penalty provided by Republic Act No. 4111 must
apply. All the more so because the crime
was committed with the aggravating circumstances of its being perpetrated in
the dwelling of the complainant victims, and with attendant ignominy, since the
rapes were done in the presence of the woman’s husband (p. 661).”
At
this juncture, it should be pointed out that if the crime were committed after
August 15, 1975, the issue would be moot as Article 294(2) was amended by Presidential
Decree No. 767 specifically providing that when the robbery accompanied by rape
is committed with the use of a deadly weapon or by two or more persons the
penalty shall be reclusion perpetua to death.
As earlier stated, the
commission of the crime herein was attended by the aggravating circumstance of
“in band” without any mitigating circumstance. The rape was qualified by the use of deadly
weapons and was committed by four persons, thereby
warranting the imposition of the death penalty pursuant to Article 335 of the
Revised Penal Code.
As in the Mabag and Arias cases, Chief Justice Enrique M. Fernando,
following his opinion in People vs. Carandang,[31] believes that the appropriate penalty is reclusion
perpetua pursuant to Article 294(2) of the Revised Penal Code prior to its amendment. Justice Ramon
C. Aquino, who dissented in the Mabag and
Arias cases, was of the
opinion that reclusion perpetua should be imposed pursuant to Article 294(2)
of the Revised Penal Code prior to its amendment, and not by virtue of Article
335 of the same Code. As the Chief
Justice and Justice Aquino maintain their previous
stand, for lack of the required number of votes, the penalty in the instant
case is reduced to reclusion perpetua.
PIZARRAS should be convicted of three
separate crimes of Robbery with Rape because, during the robbery, he, Romeo Quijano and Edmundo Obispo
cooperated with one another in successively abusing ASUNCION.[32]
Virgilio Acojido held her
legs apart while she was being ravished by the three and would have taken his
turn in committing the vile act were it not for a passerby who appeared at the
scene.
WHEREFORE, the
judgment appealed from is hereby modified in that Maximo
Pizarras y Asombrado shall
suffer three (3) reclusion perpetua for three separate crimes of Robbery with Rape, but affirmed in
all other respects. With
one-fourth (1/4) of the costs.
SO ORDERED.
Fernando, C.J., Barredo,
Concepcion, Jr., Fernandez, Guerrero, Abad Santos, and De
Castro, JJ., concur.
Teehankee, J., votes for imposition of
the death penalty in line with his separate opinions in the cited cases of Arias
(102 SCRA 303, 329) and Mabag
(98 SCRA 730, 750) and in People vs. Cabatlao, G.R. No. L-42149,
scheduled for release also in this month of October, 1981.
Makasiar, J., nocturnity should be
appreciated as aggravating and death should be imposed.
Aquino, J., the crime committed is robbery with multiple rape, one special complex
offense. Hence, only one reclusion perpetua
should be imposed.
[1]
T.s.n., May
22, 1972, pp. 2-7.
[2]
T.s.n., May 25, 1972, pp. 14-15.
[3]
T.s.n., June
2, 1972, pp. 2-8.
[4]
Exhibit “F”, p. 140, Original Records.
[5]
Exhibits “G”
and “H”, pp. 141-142, Original Records.
[6]
T.s.n., May
29, 1972, pp. 2-31.
[7]
Exhibit “A”, p. 135, Original Records.
[8]
T.s.n., May 23, 1972, pp. 19-21.
[9]
T.s.n., May
23, 1972, pp. 21-22.
[10]
Exhibit “C”, p. 137, Original Records.
[11]
T.s.n., May
25, 1972, pp. 15-17.
[12]
T.s.n., June
2, 1972, pp. 11-29.
[13]
T.s.n., June
5, 1972, pp. 2-21.
[14]
T.s.n., June
6, 1972, pp. 2-7.
[15]
T.s.n., June
5, 1972, pp. 20-26.
[16]
T.s.n., June
8, 1972, pp. 2-14; T.s.n., June 9, 1972, pp. 2-5.
[17]
T.s.n., May
22, 1972, p. 6.
[18]
T.s.n., June 2, 1972, p. 24; June 8, 1972, p. 5,
respectively.
[19]
T.s.n., May
22, 1972, p. 3; T.s.n., May 25, 1972, p. 13.
[20]
People vs. Estante, 92 SCRA 122, 1979; People vs. Cabeltes,
91 SCRA 208, 1979.
[21]
People vs. Lengenos Peñafiel, 3 SCRA 911, 1961;
People vs. Beralde, 91 SCRA
125, 1979.
[22]
People vs. Otto, 49 SCRA 306, 1973.
[23]
T.s.n., May
22, 1972, p. 2; May 25,
1972, p. 13.
[24]
People vs. Flores, 40 SCRA
230, 1971; People vs. Sumayo, 70 SCRA 488, 1976.
[25]
47 SCRA 45, 1972.
[26]
49 SCRA 306, 1973.
[27]
31 SCRA 354, 1970.
[28]
38 SCRA 651, 1971.
[29]
98 SCRA 730, 1980.
[30]
G.R. No.
L-40531, January 27, 1981.
[31]
52 SCRA 259, 1973.
[32]
People vs. Aleman, et al., G.R. No. L-39776, February 20, 1981.