THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DIOSDADO EGOT, ACCUSED-APPELLANT.

Automatic review of the decision rendered by the defunct Court of First
Instance of Zamboanga del Sur in Criminal Case No. 72 because of the
imposition of the death penalty.

In an information dated July 15, 1970, DIOSDADO EGOT was accused of rape said to have been committed as follows:

“That on February 4, 1970, at about 5:00 o’clock in the afternoon,
in the cemetery of barrio Pangi, municipality of Ipil, pro­vince of
Zamboanga del Sur, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused with lewd
designs, in order to facilitate the commission of the crime, did, then
and there wilfully and feloniously bring one Liberty Siodora, an eleven
year old girl to the ceme­tery an isolated place, with the pretext that
they will look for his lost horse, upon reaching the cemetery, with his
bolo intimidated the young girl and by force have carnal knowledge with
her against her will.” (Expediente, p. 1.)

EGOT pleaded “not guilty” when he was arraigned and after trial the court rendered the following sentence:

“WHEREFORE, this Court hereby finds the accused DIOSDADO EGOT
guilty beyond reasonable doubt of the crime of RAPE penalized under
Article 333 of the Revised Penal Code, as amended, and pursuant to said
article, sentences him to suffer the supreme penalty of DEATH, and to
pay to the offended party Liberty Siodora the SUM OF EIGHT THOUSAND
(P8,000.00) PESOS as moral damages, with Costs against the accused.” (Id., pp. 62-63.)

In imposing the death penalty the trial court said:

“Under Article 333 of the Revised Penal Code the crime of rape
committed either by force or inti­midation or even without such force or
intimidation, where the woman raped is below 12 years old, the penalty
shall be reclusion perpetua (life imprisonment) and where the
rape was committed with the use of deadly weapon, as in this case, since
there is evidence that the accused Egot used a sharp-pointed bolo in
the commission of the offense, the penalty shall be reclusion perpetua
to death. Considering that the offense was attended with the
aggravating circumstance of uninha­bited place as it was committed in a
cemetery which is uninhabited and isolated and far from the road and
grassy, the penalty imposable on the accused is the supreme penalty of death.” (Id., p. 62.)

The People’s version of the facts is as follows:

“At around 4:00 o’clock in the afternoon of February 4, 1970, at
barrio of Pangi, Municipality of Ipil, Zamboanga del Sur, Pelagia
Siodora left her house and went to her neighbor’s farm (p. 28, tsn.,
February 22, 1972), leaving her daughter Liberty who was eleven years
old (Exhibits C, C-1 and C-3; p. 79, tsn., March 23, 1972) and her other
younger children (p. 28 tsn., February 22, 1972). Before she left her
house that afternoon, she saw appellant Diosdado Egot riding on
horseback and alighting at the house of his aunt Candida Ramos, whose
house is about ten meters from her house (pp. 28-30, tsn., February 22,
1972).

“At about 5:00 o’clock of the same afternoon appellant went to the
house of Pelagia Siodora who was no longer there at that time. He
talked to complainant Liberty asking her to ‘accompany me look for my
horse, if we find it I will give you biscuit’ (p. 75, tsn., March 23,
1972). Liberty unsuspectingly agreed to accompany appellant ostensibly
to look for his horse. Upon reaching the cemetery, which was about one
hundred fathoms from Liberty’s house (p. 31, tsn., February 22, 1972),
appellant pointed a bolo at her (p. 72, tsn., March 23, 1972) and told
her to lie down (p. 71, tsn., March 23, 1972). Appellant then removed
her panty and after opening the front part of his pants let his penis
come out (p. 72, tsn., March 23, 1972). Then appellant went on top of
her and inserted his penis into Liberty’s vagina and had sexual
intercourse (p. 74, tsn., March 23, 1972).

“After the incident Liberty went home and reported the matter to
her mother (p. 67, tsn., March 23, 1972). The following day the mother
reported the incident to the police (p. 33, tsn., February 22, 1972).
She could not report the incident on the same date to the police as it
was already nighttime and barrio Pangi is about three kilometers from
the town proper (p. 73, tsn., February 22, 1972). The police told her to
secure a medical certificate (p. 32, tsn., February 22, 1972). She
submitted her daughter for physical examination to Dr. Henry de Villa,
Rural Health Officer of Ipil, Zamboanga del Sur (p. 34, tsn., February
22, 1972), who issued a medical certificate (Exhibit A) which reads:

‘I. General data:

Liberty Siodora, 11 years old, female child, residing at Pangi, Zamboanga del Sur;

‘II. Time and place of commission of offense:

About 5:00 P.M., February 4, 1970, at Pangi, Ipil, Zbga Sur;

‘III. Time and place of examination:

About 11:00 A.M. Feb. 7, 1970 at Ipil, Zbga. Sur;

‘IV. Findings:

1. Laceration, one cm., fourchette, posterior;

2. Hymen – lacerated at 10:00, 2:00, and 6:00 o’clock; admits
one finger; Urethral opening irritated, Abrasion deltoid area, left.

‘V. Conclusion –

The findings are compatible with history of the victim.'” (Brief, pp. 1-4.)

EGOT denied the rape. He interposed the defense of alibi. He said that
he could not have raped Liberty as alleged because at that time he was
in the cornfield of Pelagia Siodora, Liberty’s mother, together with his
aunt Candida Ramos; they were there to retrieve his horse which strayed
after it got freed from its tether.

In this review, the appellant is represented by counsel de oficio, Atty.
Salvador B. Britanico, who made the following assignment of errors:

“A. THAT THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY OF RAPE; and,

“B. THAT, ASSUMING ARGUENDO THAT THE EVIDENCE ARE ADEQUATE TO
SUPPORT THE CONVICTION OF THE HEREIN ACCUSED, THE TRIAL COURT ERRED IN
IMPOSING THE DEATH PENALTY. THE APPRO­PRIATE PENALTY SHOULD HAVE BEEN RECLUSION PERPETUA.” (Brief, p. 1.)

According to the trial court, “At the time of the sexual intercourse
Liberty was only 11 years and 7 months old, having been born on July 4,
1958.” (Expediente, p. 53.) The trial court relied on the
testimony of Pelagia Siodora that Liberty was born on July 4, 1958.
(TSN, Feb. 22, 1972, p. 27.) It also relied on Exhbit C, the supposed
birth certificate of Liberty where her date of birth is given as July 4,
1958. (Expediente, p. 33.)

The appellant questions the authenticity of Exhibit C; it “is being
disputed by the defense on the ground that she could not have been born
on that date considering that the Birth Certificate (Exhibit “C”) was
filed and registered on April 14, 1958 (Exhibit “1”) or three (3) months
before the alleged birth.” (Brief, p. 3.)

Indeed, Exhibit C is of doubtful authenticity. For aside from the
circumstance cited by the appellant, Exhibit C does not have the
signature of the Local Civil Registrar. But the testimony of Pelagia
Siodora in respect of the date when her daughter Liberty was born has
not been subs­tantially impugned. Liberty must be deemed to have been
below 12 years old on February 4, 1970. Moreover, Liberty’s age becomes
unimportant in the light of the allegation in the information that the
appellant used a bolo to intimidate her to submit to his carnal desire.

The first assignment of error questions the appreciation of the evidence
by the trial court. To be sure this raises a problem albeit not
insur­mountable. “The difficulty, recognized and acknowledged, in the
decision-making process where the prosecution is for rape, arises from
the fact that usually only the participants can testify as to the
alleged sexual abuse. The accused may deny such an occurrence, put up
the defense that he was somewhere else, or allege the consent on the
part of the complainant. The court then is left with no choice but to
exert the utmost effort to determine the likelihood that a sexual act
did take place and under what circumstances. Such choice is not always
easy.” (People vs. Imbo, G.R. No. L-36759, Aug. 31, 1982, 116 SCRA 355, 357.)

The appellant questions the credibility of Liberty Siodora. He claims
that she was not a reliable witness “because of her proven retarded
mentality.” (Brief, p. 8.) He quotes from the decision which states:
“The Court which had the opportunity to observe the offended party
Liberty Siodora, had noticed her stunted growth and somewhat retarded
personality and mentality.” (Expediente, pp. 56-57.) But the
appellant ignores completely the other statements of the trial court
that: “According to the prosecution’s evidence, as a consequence of the
rape committed by accused Egot on the person of Liberty, she became
somewhat mentally deranged and from the time of the incident up to the
present, she shivers and gets scared whenever she sees the accused Egot
or a male person. x x x But at the trial, she positively demonstrated in
open court how the accused Egot raped her on that un­fortunate
afternoon of February 4, 1970, stating that he (Egot) told her to lie
down and, armed with a sharp-pointed bolo, went on top of her and forced
his penis into her vagina and had sexual intercourse with her. She
positively identified accused Egot in open court as the man who ravished
her.” (Id., pp. 56-57.)

Liberty’s tender age lends credibility to her testimony. For as this
Court said: “Moreover, if there is anything apparent from our past
decisions on rape cases, with the offended parties being young and
immature girls from the ages of twelve to sixteen, it is that there is
considerable receptivity on the part of this Tribunal to lend credence
to their version of what transpired, considering not only their relative
vulnerability but also the shame and embarrassment to which such a
gruelling experience as a court trial, where they are called upon to lay
bare what perhaps should be shrouded in secrecy did expose them to.
This is not to say that an uncritical acceptance should be the rule. It
is only to emphasize that skepticism should be kept under control.”
(People vs. Molina, G.R. No. L-30191, Oct. 27, 1973, 53 SCRA 495,
500-501.)

There is circumstantial evidence to support the testimony of Liberty
that she was raped by the appellant: when Liberty came home and was
asked by her mother why she was crying she replied that she had been
raped by Egot at the cemetery; and then there was the physical
examination conducted by Dr. Henry de Villa which showed that Liberty’s
sexual organ had lacerations, irritation and abrasion.

The appellant’s alibi must fail because of the positive identification
made by Liberty that he was the culprit and also because it was not
phy­sically impossible for him to be at the cemetery when the rape was
com­mitted.

The second assignment of error assumes the guilt of the appellant but seeks to mitigate his liability.

The appellant claims that the use of a bolo had not been legally
established; hence the aggravating circumstance of use of a deadly
weapon cannot be considered. Suffice it to say that Liberty
categorically stated that Egot “used his bolo.” (TSN, March 23, 1972, p.
72.)

The appellant also claims that the aggravating circumstance of despoblado was not present. He asserts:

“By the very evidence of the prosecution, the cemetery was merely
100 meters away from the house of Siodoras, that is, within the hearing
distance when one shouts for assistance. This is therefore not an
uninhabited place in the contemplation of law (People vs. Laoto,
et al. 52 Phil. 401). As one authority puts it, ‘An uninhabited place
is one where there are no houses at all, a place at a considerable
distance from town, or where the houses are scattered at a great
distance from each other’ (Reyes, Ibid, page 318). In this
case, the houses of the Siodoras and the Ramoses are merely 10 meters
apart from one another and only 100 meters away from the cemetery. What
the Supreme Court considered as uninhabited is a place about a kilometer
from the nearest house or other inhabited place (People vs. Aguinaldo, 55 Phil. 610; People vs. Mendoza,
et al., 100 Phil. 818). The cemetery of Barrio Pangi, Ipil, Zamboanga
del Sur was therefore not an uninhabited place.” (Brief, pp. 13-14.)

Pelagia did not say that her house is only 100 meters from the cemetery.
What she said was that the cemetery is about “100 fathoms more or less
from our house.” (TSN, Feb. 22, 1972, p. 31.) A fathom is equal to 6
feet so that 100 fathoms is equal to 600 feet which is equal to 200
yards or 180 meters. A distance of 200 yards to the nearest house is
sufficient to make the scene of the crime uninhabited. (See People vs. Pulido, 85 Phil. 695 [1950].)

The appellant likewise claims despoblado “is not present even
if the crime was committed in an uninhabited place, if the offended
party was casually encountered by the accused and the latter did not
take advantage of the place or it can not be shown that it facilitated
the com­mission of the crime (People vs. Luneta, et al., 79 Phil. 815, cited in Reyes, Ibid,
page 320).” (Brief, pp. 14-15.) He forgets that he did not meet Liberty
at the cemetery; he purposely brought her there to facilitate the
commission of the crime.

There is no evidence that the appellant surrendered voluntarily. In
fact, according to his own testimony, the police went to his house and
they brought him to the municipal jail. Neither can it be conceded that
he should be accorded the mitigating circumstance of voluntary surrender
because “while the case was already pending in the Court of First
Instance of Zamboanga del Sur, notwithstanding that he had all the
opportunity to do so while in the house of provincial guard Minsay.”
(Brief, p. 17.) Suffice it to say that such a claim has no legal or
jurisprudential basis.

WHEREFORE, the judgment under review is hereby modified in the sense
that for lack of the necessary number of votes DIOSDADO EGOT is
sentenced to suffer the penalty of reclusion perpetua instead
of death and moral damages to be paid to Liberty Siodora shall be in the
amount of P20, 000.00. Costs against the appellant.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Aquino, Concepcion, Jr.,
Guerrero, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De
La Fuente, and Cuevas, JJ., concur.