THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSE ABING, DEFENDANT-APPELLANT.

Jose Abing appealed from the decision of the Court of First Instance
of Zamboanga del Norte, Dipolog City
Branch I, convicting him of rape, sentencing him to an indeterminate penalty of
six years and one day of prision mayor as minimum to fourteen
years, eight months and one day of reclusion temporal as maximum and
ordering him to pay complainant Norma Banagua the sum of four thousand pesos as
indemnity and to support his illegitimate child, Joselito Banagua (Criminal
Case No. 4712).

Norma Banagua was born on November
5, 1953 (5 tsn, July 28, 1967).  She was the daughter of the spouses Piano
Banagua and Pelicula Bulay.  When Norma
was about seven months old, Pelicula, already a widow,
entrusted her to the spouses Jose Abing and Ruperta Banagua, Piano’s sister.

The Abing spouses brought up Norma as their foster daugh­ter.  They sent her to school.  She reached Grade six.  In 1963, when Pelicula resided with the Abing
spouses at their house in Senaman, Dipolog, Zamboanga del
Norte, Abing had illicit relations with her. 
They begot a child.  Pelicula left
the house with her baby and stayed in Tanjay, Negros Oriental.

Norma testified that after midnight or in the early morning of
Christmas day, December 25, 1966, while she was sleeping in an unlocked room of
Abing’s house in Senaman, he entered the room, covered her mouth with his hand,
thereby almost suffocating her, removed her panties with his other hand and
placed himself on top of her.

She resisted the assault and struggled to free herself from his
clutches but because of his superior strength (he was a fifty-six-year-old
farmer and she was then only thirteen years old) he was able to insert his
penis into her vagina and to make push-and-pull movements.  The sexual congress caused her much
pain.  She cried.

After the carnal intercourse, he warned her that he would kill her
if she revealed what had been done to her. 
Abing left the room and slept in the sala.

On that occasion, her aunt Ruperta, Abing’s wife, was in Galas,
Dipolog, having been fetched by her brother, Martin Banagua.  She returned to the house at about noontime.

Abing repeated the sexual assault in the evening of January 1, 1967, when Ruperta was
again in Galas because it was New Year’s day.  Abing once more
threatened to kill her if she would squeal.

Norma’s last menstruation was on December 7, 1966. 
When she did not menstruate in January, 1967, she reported that fact to
Abing and his wife.  They made Norma
drink several times the bitter juice of mashed “handilib-on” leaves
in order to induce her menstruation, a fact admitted by Abing.  She did not menstruate.

As Norma’s abdomen became bigger because of preg­nancy, her
uncle, Martin Banagua, brought her to his house in Galas.  Norma disclosed to him that she was abused by
Abing.  She was taken to a physician who
gave her twelve injections of an unspecified drug so that she would
menstruate.  The injec­tions did not
work.

In the meantime, her mother was apprised of what had happened to
Norma.  She left Tanjay and went to
Dipolog.  Norma was examined by a doctor
of the Rizal Memorial
Hospital in Dapitan
City on April 3 and May 5, 1967.  She was found to be five months pregnant
(Exh. B).  She
gave birth to a baby boy on September
19, 1967 (Exh. A).

A complaint for rape was filed on May 10, 1967 in the municipal court of Dipolog by Norma’s
mother.  It was supported by the
affidavits of mother and daughter.  After
Abing’s arrest, he waived the second stage of the preliminary
investigation.  The case was remanded to
the Court of First Instance.

On June 14, 1967,
the provincial fiscal filed a single information charging Abing with two
rapes.  After trial, the lower court
rendered the judgment already mentioned. 
Abing appealed to the Court of Appeals which certified the case to this
Court on the ground that the imposable penalty should be two reclusion perpetuas.

Abing’s sole assignment of error is that the trial court erred in
not acquitting him.  He assails Norma’s
credibility, imputes the rape to his nephew, Luciano Engito, and argues, in the
alternative, that if there was sexual intercourse between him and his foster
daughter, it was with her consent.

Abing also contends that complainant’s mother concocted the rape
charge in retaliation against Abing’s supposed misdeed in having illicit
intercourse with Norma’s mother.  To show
the improbability of the alleged rape, Abing wonders why Norma did not leave
his house after she was ravished.  He
said that it was unbelievable that the rapes were committed in the morning of
Christmas day and in the evening of New Year’s day
when Abing’s wife would be in their house.

These contentions, which were ably refuted in the Soli­citor General’s brief, are flimsy, puerile
and conjectural.  The trial court found
Norma’s testimony to be credible and trust­worthy.  Abing in his testimony did not deny the rape
committed on New Year’s day.  His fabricated version of what happened on
December 24 and 25, 1966 only served to strengthen Norma’s testimony.

Abing and his wife testified that Norma left their house on November 5, 1966 and
returned in January, 1967 and that they slept in their barn or granary on
the night of December 24, 1966
in order to guard their palay.  The barn
was about five hun­dred meters away from their house.

That version is diametrically opposed to the version of Victoria
Quisel, a defense witness, that on the night of Decem­ber 24, 1966, Norma slept
on the floor of Abing’s house beside Victoria while Victoria’s husband, Luciano
Engito, slept on the other side of Victoria and that at about two o’clock in
the morning of December 25, Victoria discovered that Luciano was on top of
Norma, making “push-and-pull” movements.

The contradictory testimonies of Victoria Quisel and Abing
indicate that Abing had no tenable defense to the rape charge.  On the other hand, it is noteworthy that if
the offended girl had not suffered a grievous outrage in the hands of Abing,
she would not have been provoked to charge him with rape, considering that she
owed a lot to the Abing spouses for having brought her up and spent for her
subsistence for more than thirteen
years.

Moreover, it should be borne in mind that Abing’s wife is Norma’s
aunt.  There is no reason why Norma would
frame up Abing.  The circumstance that
Abing had begotten a child with Norma’s mother is not a sufficient motive to
induce Norma to fabricate a charge of rape against her benefactor.

We hold that Abing’s commission of two rapes was proven beyond
reasonable doubt.  The trial court erred
in con­victing him of only one rape and in imposing upon him the penalty of reclusion
temporal and not reclusion perpetua, which is the penalty
applicable to this case under Republic Act No. 4111.

However, considering the circumstances of the case, particularly
Abing’s old age and the fact that his constant association with his
niece-in-law and his propinquity to her had tempted him to lust after her, had
weakened his moral fiber and scruples and undermined his self-control, we are
impelled, under article 5 of the Revised Penal Code, to recommend to the Chief
Executive, through the Minister of Justice, that after.  Abing had served an additional term of his
two life sentences consistent with the demands of retributive justice,
executive clemency may be extended to him.

WHEREFORE, the judgment of conviction is affirmed but the
lower court’s decision is modified by sentencing accused-appellant Jose Abing
to two reclusion perpetuas, subject to the forty-year limit, and
ordering him to pay Norma Banagua two indemnities of five thousand pesos each,
or a total indemnity of ten thousand pesos, in addition to the support of his
child, Joselito Banagua.  Costs against the appellant.

SO ORDERED.

Barredo, (Chairman), Concepcion, Jr., Abad Santos, De Castro, and Ericta, JJ., concur.

Escolin, J., no part.